Administrative Council Radisson Hotel, Bismarck August 27, 2010
Present: Chief Justice Gerald W. VandeWalle, Chair Judge Sonja Clapp Justice Daniel Crothers Judge Laurie Fontaine Judge Donovan Foughty Judge John Greenwood for Judge Paulson Judge William Herauf Maureen Holman Judge Steven McCullough Judge William McLees Judge Frank Racek Judge Bruce Romanick for Judge Hagerty Judge Robert Wefald
Absent: Judge Gail Hagerty Judge John Paulson
Staff: Louis Hentzen
Others Present: Jim Ganje Dennis Herbeck Rod Olson Don Wolf Carolyn Woolf Donna Wunderlich Larry Zubke
Minutes: Renee Barnaby
Chief Justice Gerald VandeWalle called the meeting to order at 10 a.m. and welcomed Judge
Racek, the new presiding judge for the East Central Judicial District, and Maureen Holman, the
new SBAND representative.
Minutes It was moved by Judge Wefald, seconded by Judge McLees, to approve the May 14, 2010
minutes. An editorial correction was noted on page 8. The motion carried.
District Court Budget Don Wolf presented the proposed District Court budget for the 2011-13 biennium. He said the
proposed budget request is for $69.3 million, which is 5.5% less than the 2009-11 biennium
appropriation of $73.3 million. However, the proposed 2011-13 biennium budget request shows
a 6.6% increase after removing one-time funding of $8,294,832 from the 2009-11 biennium
appropriation. The salaries and wages budget is in the process of being prepared. The $50
million designated for salaries and wages is based on the 2009-11 appropriation. The proposed
budget does include a 3% annual salary increase for judges and provides for two additional
FTEs, a law clerk for the South Central Judicial District and a deputy clerk for Burleigh County.
The budget also includes funding for a temporary research analyst, 75% of which will be paid
for with a federal Court Improvement Grant and the remaining 25% with a state General Fund
match. The Governor will release his recommendation for 2011-13 biennium salary increases in
In response to a question from Judge Wefald asking if the $7 million budget for Odyssey has
been spent, Mr. Wolf indicated it will be spent by the end of the biennium. The Odyssey project
budget includes funding for licensing fees, project oversight, and equipment and implementation
It was moved by Judge Wefald, seconded by Judge Herauf, to approve the budget as
It was moved by Justice Crothers, seconded by Judge McCullough, to table the current
motion until after discussion of the juvenile court staffing study. The motion carried with
Juvenile Court Staffing Study Judge Herauf, Chair of the Juvenile Policy Board, explained the National Center for State Courts
conducted a workload assessment study for the juvenile court officers similar to the weighted
caseload study for judges and clerks. The assessment shows a need for an additional 6.68
juvenile officers and 2.4 secretaries. He said the Juvenile Policy Board reviewed the assessment
and is requesting the Administrative Council approve funding for two juvenile court officer
positions for the next biennium, one located Fargo and one in Bismarck. They are also
requesting temporary funding for two half-time secretarial staff for the two offices. Mr. Hentzen
emphasized the two halftime secretaries are not FTE positions but temporary part-time positions.
In response to a question from Justice Crothers on whether Burleigh County and Cass County
have adequate space for the additional personnel, Donna Wunderlich responded they have eight
cubicles in Bismarck and one of them is currently occupied by the drug court coordinator who
could be moved elsewhere in the building. She said the secretarial work space would need to be
reworked to allow for another work station. Judge Racek stated with regard to the Fargo office,
if the referees were moved over into the new building, it would free up space in the annex, which
is where the juvenile offices are located.
In response to a question from Chief Justice VandeWalle asking if any juvenile officers were
shared between the Southwest District and the South Central District, Ms. Wunderlich stated the
Southwest juvenile officers cover Mercer, Grant and Oliver Counties, which are located in the
South Central District.
Rod Olson added that Unit 1 has offered to take over the juvenile probation services in Traill
County in an effort to help out with the heavy caseload in Fargo.
Judge Racek asked if there was an assessment done on extra duties that are being done in the
juvenile office that are not necessarily the responsibility of that office. Mr. Hentzen responded it
did come to light in the secretarial time surveys. A number of secretaries in several juvenile
offices are preparing pleadings for states attorney’s offices. He said while not all of the 12
offices prepare the pleadings, approximately 60% do. One secretary indicated that 48-50% of
her job was preparing pleadings. However, due to political ramifications, this was not included
in the report. Another situation that came out of the assessment is that some of our juvenile
officers are reading the police officer’s report from the witness stand on behalf of the
complaining witness in the case, and the police officer is not coming into the courtroom.
Chief Justice VandeWalle indicated we are working with the state’s attorneys and the
Association of Counties to develop a solution to some of the issues.
Judge McCullough indicated he is the new juvenile drug court judge in Fargo. He said one of
the biggest limiting factors on the number of drug court participants is we do not have enough
juvenile court officers. He said based on that factor alone, he is in favor of adding the additional
In response to a question from Judge McCullough asking what effect the recommended juvenile
positions would have on the budget, Mr. Wolf responded that adding the two juvenile court
officers would be $315,000 and the part-time secretaries at 20 hours per week would be $96,000.
The four positions together would add an additional $411,000 to the budget for the biennium.
Maureen Holman stated that after reviewing the chart on page 11 of the report, it appears that the
juvenile officers take six weeks of leave per year. Donna Wunderlich said the National Center
calculated the average leave (annual, sick, maternity, etc.) used, not earned, in North Dakota, and
that is how they arrived at the 31.5 days. Long-term employees accrue two days per month.
When you add that to the average sick leave used, that is how it was calculated. Mr. Hentzen
indicated it is a national formula.
It was moved by Judge Herauf, seconded by Justice Crothers, to add two juvenile court
officer positions and two part-time temporary secretary positions into the budget. The
It was moved by Judge McCullough, seconded by Justice Crothers, to take the previous
motion to adopt the proposed budget off the table. The motion carried.
The motion carried to approve the budget as amended.
Parks and Recreation Department Proposed Bond Schedule Jim Ganje said the ND Parks and Recreation Department is requesting approval for a proposed
bond schedule to be used by the district court for infraction violations in conjunction with a Rule
43 plea and waiver of appearance. The bond schedule was distributed for comment and review
in advance of the meeting. Comments were received from Judges McCullough and
Christofferson. Judge McCullough’s comment regards whether the statute governing disposition
of department rule violations permits use of a bond schedule. Mr. Ganje said the use of the
uniform complaint and summons for department violations, similar to that used for Game and
Fish violations, is authorized by N.D.C.C. 55-08-16. However, as Judge McCullough indicates,
the statute does not explicitly authorize imposition of a bond, which can be forfeited by the
violator. What Parks and Rec is recommending is essentially the same process we use for Game
and Fish violations. Game and Fish has a Rule 43 plea and waiver of appearance process. We
have a bond schedule for criminal Game and Fish violation, which the Council of Presiding
Judges approved several years ago and is routinely used. The Council of Presiding Judges also
adopted Policy 509, which establishes a procedure for handling infraction violations.
Consideration of a uniform procedure initially involved determining how to handle over-the-road
truck driving infractions, and then it was expanded to include all infractions except a couple
involving snowmobile operators. The procedure essentially involves providing the violator a
form for a Rule 43 plea of guilty and waiver of appearance. Any fine or restitution imposed is
included on the form. For all intents and purposes, the fee and restitution indicated in the form is
a “bond” which the violator can forfeit by signing the form and not appearing at the hearing.
There is no statutory authority for that process, just as there is no statutory authorization for the
Game and Fish violation and associated bond schedule.
Judge Christofferson's comments related to public access to department rules; whether
department employees appointed as peace officers are required to be licensed as such; and
whether a Rule 43 waiver form would indicate the right to a jury trial, arguably in light of the
Supreme Court’s recent opinion in Riemers v. Eslinger, 2010 ND 76. Mr. Ganje stated the park
department rules on park use are on their website and, according to the department staff, they are
available at every park location. With regard to the question regarding if department employees
being appointed as peace officer had to be licensed, the governing statute in the Parks and Rec
chapter allows the department director to appoint personnel to peace officer status. The statutes
on peace officers require that you be licensed unless there is an exemption. There is no
exemption that applies to Parks and Rec, so it is fairly clear that they have to be licensed as
peace officers and the Attorney General’s Office has confirmed that. With regard to the last
question regarding the right to a jury trial, Mr. Ganje said in the absence of extended historical
and legal analysis, it is difficult to determine whether the right to a jury trial would extend to
Parks and Rec rule violations.
Judge McCullough added, with regard to his comment, the court could set any kind of a bond
schedule on a Rule 43 basis, but it is bond forfeiture for nonappearance and the entrance of a
disposition that causes him a little concern. He suggested another alternative would be to amend
the statute to clarify whether a bond can be imposed as a condition of release.
Judge Romanick said it is his understanding that violators do not post a bond unless they are
waiving an appearance. The violator is given a date and time for a hearing so there is no actual
bond posted. If the violator does not want to attend the hearing, they just need to send in the
Judge Racek stated it is really a Rule 11 plea agreement rather than a Rule 43 waiver of
appearance. He said what is at issue is really a disposition, rather than a bond for appearance
and then forfeiture. The Game and Fish schedule was changed to call it a disposition schedule, it
is not really a bond schedule.
Justice Crothers agreed amendments could be considered for both the Game and Fish statute and
the Parks and Rec statute to address the question.
It was moved by Judge Racek, seconded by Judge McLees, to change the name from Bond
Schedule to Disposition Schedule and to adopt the schedule as proposed. The motion
Comments on Policy 505 and Policy 520 Policies 505 and 520 were sent out for comment and no comments were received. Those
changes are now in effect and no further action is required.
Chief Justice VandeWalle said Sally Holewa will be meeting with Jim Fleming, the acting
administrator of child support and enforcement. Among other things, they will be discussing
some of the issues raised by Judge Racek at the last meeting concerning action alerts.
Judge Racek suggested it may be beneficial to amend Policy 505 to include procedures to close
out cases that have gone to IV-D and have already been reported as unenforceable because there
is nothing the court can do.
Chief Justice VandeWalle said he was told some of the alerts are caused by the fact that the
information from the order is not being inserted into the system correctly, which is causing some
of those alerts. Rod Olson stated while there may be training issues, there are also issues with
the software. The software is hard to use and is time consuming.
Proposed Policy on Preparation of Transcripts after Separation from Employment or
Incapacitation of Court Reporter Chief Justice VandeWalle said Sally Holewa had indicated that a problem arises when a reporter
leaves employment and is no longer available to prepare a transcript. To help address the
situation, Ms. Holewa has drafted a proposed policy.
Judge Clapp said she reviewed the policy with the court reporters from the Northeast Central
Judicial District, and they asked her to share some of their concerns with the Council. They are
requesting that diligent efforts be used by the court to encourage the reporter who is unable or
has separated from the system to prepare the transcript. They are also requesting the court
require a medical excuse if a reporter is unable to prepare the transcript. Another concern they
had was if a current court reporter needs to prepare a transcript from a dictionary of another
court reporter, because it is such a difficult task, they would like to be compensated even if it is
an indigent defense case.
Chief Justice VandeWalle said before the policy is approved, it will be sent out for comment.
He encouraged the court reporters to submit their comments in writing at that time.
Donna Wunderlich said the court reporters in the South Central Judicial District had expressed
concern regarding the password. Their thought was if a document is password protected and a
transcript is needed in the future, how will a retired reporter remember the password? They
suggested amending the policy to address that issue because the integrity of the Court System
should imply that we wouldn't misuse their files and even if they are required to backup their
dictionaries, they wouldn't be used unless necessary.
Rod Olson said once a reporter completes their steno notes, it can be uploaded into the case
catalyst system and basically the transcript is 95% complete. If we would require a reporter to
do that before leaving the system, it would be easier for another reporter to complete the
transcript. He said one of the court reporters in Bismarck demonstrated the upload of their notes
and it took less than a minute. Perhaps the dictionary should be uploaded more than twice a
Ms. Wunderlich stated the court reporters in the South Central upload their notes routinely on a
daily or weekly basis.
Dennis Herbeck suggested taking the issue to the court reporters association and asking them for
Judge Wefald stated he would not be in favor of additional compensation for preparing the
It was moved by Judge Herauf, seconded by Judge Clapp, to send the draft proposal out
In response to a question from Justice Crothers inquiring if any other jurisdictions have these
types of provisions, Mr. Herbeck stated to the best of his knowledge, we did inquire of courts in
California and South Dakota. They both have similar systems in place and their IT departments
upload the dictionaries.
Justice Crothers suggested instead of sending numerous iterations of the policy out for comment
the Council considering holding off until a suitable draft is prepared. In the interim, the court
reporters could review the policy and provide their input.
Judge Racek said if you remove the first sentence from section 1 of the proposed policy, the two
issues can be separate. Policy 523 could address the post retirement and another policy could be
drafted to address work rules.
Chief Justice VandeWalle responded it is also important to address the sudden death of a court
Judge McCullough stressed the importance of getting a policy in place as soon as possible.
The motion failed.
It was the consensus of the Council to send the proposed policy back to Ms. Holewa to discuss
the content with Arnie Strand, President of the court reporters association, and report back to the
Council at the next meeting.
It was moved by Judge Wefald to adjourn the meeting.