Chief Justice Gerald W. VandeWalle, Chair
Judge Karen K. Braaten (via telephone)
Judge Georgia Dawson (via telephone)
Judge Donovan Foughty (via telephone)
Judge M. Richard Geiger (via telephone)
Judge John Greenwood
Judge Gail Hagerty
Judge William McLees
Justice Dale V. Sandstrom
Judge Allan Schmalenberger
Judge Robert Wefald
Judge John T. Paulson
Chris Bleuenstein (via telephone)
Robin Huseby, Director of Commission on Indigent Defense
Chief Justice Gerald VandeWalle welcomed everyone to the meeting and introduced Donna Fair as the new court administrator for Unit 3. The first item on the agenda was the approval of the minutes of the September 27, 2005 meeting. Chief Justice VandeWalle asked it be noted that the October 28, 2005 meeting was cancelled. It was moved by Justice Sandstrom, seconded by Jim Hill, to approve the minutes of the September 27, 2005 meeting. The motion carried.
Commission on Legal Counsel for Indigents Commission
Chief Justice VandeWalle welcomed and introduced the Director of the Indigent Defense Commission, Robin Huseby. Ms. Huseby informed the Council she became the Director on November 1, 2005, and the Commission has been working hard to achieve some of the legislative mandates regarding the Commission. She said the judiciary's input is critical to making the adventure successful.
The Commission has met approximately four times and plans meet monthly. At the last meeting, the Commission voted to put public defenders in the Cities of Williston, Dickinson, and Minot. Ms. Huseby said they tried unsuccessfully to get contracts for adult criminal defense in those areas. Currently, the area attorneys are operating on a case-by-case assignment except for juvenile and some misdemeanor contracts. The Commission plans to have attorneys in place by April 2006.
With regard to the assignment of counsel, Ms. Huseby said the judges will continue to make the eligibility determination, however, pursuant to legislation, the assignment procedure will now be handled by the Commission. Once the judge makes the eligibility determination, the trial court manager or clerk will fill out a form and fax it, along with the defendant’s information, to the Commission.
Judge Geiger said with regard to the approval of investigative funds, if an attorney wants to exceed the $500 amount that is available under the contract, he or she currently makes the request to the trial judge who then gets approval from the presiding judge. Ms. Huseby responded that all extraordinary expenses such as investigative services will be handled by the Commission.
Ms. Huseby explained one of the complaints from contract counsel is when they are assigned to represent the mental commitment of sexual offenders when there is no indigency finding. She said that is a county responsibility financially and contract counsel are not obligated to take those cases. The cases are being assigned and even though he or she is being paid by the county, the cases are very time consuming. There are other people available for assignment other then contract counsel.
In response to a question from Judge Geiger on what procedure will be used when there are multiple defendants and no contract attorneys available in the district or unit, Ms. Huseby said the Commission will locate non-contract counsel, whether it is in or out of the district.
Ms. Huseby said they are waiting for one more appointment from the governor and then they will have a full commission.
With regard to the issue of the termination of parental rights, Ms. Huseby could not find in the statute that an attorney guardian ad litem (GAL) has to be appointed. If a child is appointed an attorney because of indigency, it is not mandated that there be an attorney GAL. If there is an attorney GAL, she asked the judges to be sure there was a determination of indigency.
Judge Schmalenberger commented that we have turned our GAL program over to the University of North Dakota. Ms. Huseby said she will speak with the program coordinator at UND regarding the issue.
Jim Ganje said under the Juvenile Court Act, every party to a proceeding is entitled to representation if they are indigent. If counsel is going to be assigned for the child in a termination of parental rights case, it is the Commission that will do the assignment. The terminology is confusing using legal guardian ad litem as opposed to court appointed counsel. Apparently, contract counsel has been assigned for the child because the child, whether indigent or not, might have some legal interests that ought to be protected.
With regard to the issue of transcripts, Robin Huseby said according to Unified Judicial System policy, it appears that it is the responsibility of the state.
Chief Justice VandeWalle expressed the need for cooperation and patience between the judges and the Commission as there will be problems that need to be resolved. He said we need to make sure our indigency determinations are made under the same standards and expressed the importance of examining the indigency status before counsel is appointed.
Judge Hagerty suggested education be provided to the employees who will be making the initial review of the application on determining indigencies.
Judge Schmalenberger said under the system that Sally Holewa implemented, we get very few requests for review. Once the applicant completes the application form, the clerk reviews it and an initial determination is made. Notice is then sent to the applicant stating if they disagree with the clerk's determination, they must explain why the clerk made a mistake. The applicant must explain what changed from the initial application and supply the appropriate supporting documentation.
Ms. Huseby confirmed that the Commission has agreed the current benchmark, 125% of poverty, would be the basic standard for determining indigency. Jim Ganje said the application forms currently being used in the districts will continue to be used until the Commission develops a new form for the courts to use in determining eligibility.
Before Ms. Huseby left the meeting, Chief Justice VandeWalle thanked her for appearing.
It was moved by Judge Braaten, seconded by Judge Hagerty, that the State Court Administrator's Office review procedures utilized in Burleigh, Grand Forks, Stark, and Walsh Counties and develop a proposal for consistent determination of indigency. The motion carried.
Appointment of Juvenile Policy Board Representative
Judge Debbie Kleven's term on the Juvenile Policy Board expires December 31, 2005. She is eligible for reappointment and has expressed her desire to continue. It was moved by Judge Wefald, seconded by Judge McLees, to reappointment Judge Kleven to another term on the Juvenile Policy Board. The motion carried.
Expungement of Records
Judge Wefald said after reviewing the draft policy at the last meeting, he believes it is impossible to expunge all records, especially electronically. He said he spoke with some of the legislators and none of them thought expungement involved shredding records, deleting electronic files and references from the Register of Deeds, etc. He suggested going to the legislature suggesting the definition of expungement mean sealing the file and marking it as expunged.
Judge Hagerty disagreed with Judge Wefald and likes the draft policy as revised.
Chief Justice VandeWalle said the Committee on Trial Court Operations revised Section 4 to provide that the order would be sealed and maintained in the original file, with the file disclosing only the case number and type.
Jim Ganje said the policy would involve, in most cases, the destruction of the paper records with the exception of the order, which would be sealed. In other cases, the record information would be destroyed where expungement is provided for by statute, with the exception of bankruptcies.
Judge Wefald stated Section 2 refers to the complete removal and destruction of all court record information. It is impossible to completely remove all records out of the system.
Jim Ganje commented that if you have a misdemeanor that is deemed by statute to be expunged, such as simple drug possession after successful probation, the clerk destroys that file and the information is deleted from our electronic court record file.
Judge Dawson suggested changing the word from expunged to “replaced” or something similar because it is not consistent with everyone's understanding of what that word means and what should happen for the record.
Judge Wefald suggested sending a bill draft to the legislature.
Rod Olson said in Minnesota, they interpret expungement to mean sealed. When someone needed something out of the file, a letter would be sent to the judge, the judge would unseal the file so we could prove it was dismissed, and then we sealed it back up. After reviewing the issue for quite some time, they came up with expungement to mean sealed.
Justice Sandstrom stated as a matter of policy, we need an audit trail to show that there was some authorization to expunge the record.
Judge Braaten suggested adopting the proposed policy as it has been presented for use during any intervening period until the legislature acts on it. She believes we need this policy in place to give some direction to the clerks of court.
Judge Wefald said he assumes with the adoption of such a policy we are going to start shredding records as well as electronically deleting them.
Judge Braaten suggested adding to the policy that it would be applied prospectively. She said our personal computer and email are not court record and should not be subject to expungement.
Jim Ganje said if the Council's determination is to seek legislative clarification, it would not be a good idea to adopt a policy that provides for destruction of records because if the Legislative Assembly would determine that it means something else, then we have destroyed a bunch of records. In the interim, sealing may be the step that would be more appropriate, if legislative clarification sought.
It was moved by Judge Wefald, seconded by Jim Hill, to draft a bill and send it to the legislature suggesting the definition of expungement mean sealing the file. The motion carried.
It was moved by Judge Hagerty, seconded by Judge Schmalenberger, to adopt an interim policy requiring that files be sealed.
Judge Braaten said with regard to Section 3, she feels the language in the last sentence is necessary. When the debt is discharged, the lien survives. Title companies are always searching records for liens so the property lien is still there even though the judgment is not.
With regard to line 9, on page 1, Justice Sandstrom suggested striking the words "complete removal and destruction" and inserting the word "sealing." He also suggested on page 2, line 8, after the word "original file," a period be inserted and the rest of the paragraph be deleted.
In response to a question on how an electronic document would be sealed, Jim Ganje responded he spoke with Kurt Schmidt and there are some glitches but you do essentially the same thing with misdemeanor cases that are deferred and dismissed. Under the court rule, it says that the file would be sealed so you might be able to treat it the same way as deferred misdemeanors are dismissed and sealed by rule.
Judge Wefald said on page 2, line 2, the word should be changed from "expunged" to "sealed."
Justice Sandstrom said on page 1, line 12, it should say "used" rather than "retained" for statistical purposes.
A substitute motion was moved by Judge Wefald to have staff prepare the draft policy in final form reflecting the proposed amendments and bring it back to the next meeting. Judge Wefald's motion died for a lack of second.
With the consent of the second, the motion to adopt an interim policy requiring that files be sealed was modified to include the suggested revisions. The motion carried.
Trial Court Operations Committee Memberships
Jim Ganje said the Committee on Trial Court Operations has three membership vacancies. The policy provide for three clerks of court as members on the Committee. Currently, there are only two clerk members, Deb Simenson and Kay Braget. The vacancy is for a term ending June 1, 2008. The policy also requires two trial court administrative staff representatives and both positions are vacant. One of these vacancies is for a term ending June 1, 2007 and the other is a for a term ending June 1, 2008.
Mr. Ganje referred the Council to the proposed amendments to Section 2 of Policy 513. He said the Trial Court Operations Committee reviewed the policy at their last meeting and concluded that the configuration of the membership should be changed. There are two district court judge members, and the current policy requires that one be a presiding judge. There are no presiding judges members on the committee, and the committee recommends striking that qualification. They also recommend increasing the clerk membership to four, with at least one of those being a non-state employed clerk. There is one non-state employed clerk on the committee. The last recommendation reduces the trial court administrative staff representatives from two to one.
It was moved by Judge Wefald, seconded by Jim Hill, that the amendments to Section 2 of Policy 513 be approved.
In response to a question from Sally Holewa as to the rationale behind the reduction, Jim Ganje said there was a sense among the members of the committee that since the predominant amount of work of the committee associated with the clerks, increasing the clerk membership would be of more use than having a trial court administrator.
Dixie Knoebel commented that the trial court administrator is the supervisory authority for the state-employed clerks.
Ms. Holewa suggested the Assistant State Court Administrator be a permanent member of the committee, and two trial court administrators should be elected to serve on the committee. She said anytime we are talking about policy procedure, we are in essence talking about committing state funds and state personnel, and it is important to have someone from the state office present.
Judge Schmalenberger commented the way the policy is drafted, it requires one trial court administrative staff representative, not necessarily a trial court administrator.
With the consent of the second, it was moved to amend the motion to include the Assistant State Court Administrator for the Trial Courts as a permanent member of the Committee on Trial Court Operations. The motion carried.
Chief Justice VandeWalle said with regard to the membership vacancies, if someone has suggestions, send them to him concerning the two clerks and one trial court administrative staff.
Clerk of Court Manual Revisions
Jim Ganje recalled at the March 2005 meeting, the Council reviewed the revised Clerk of Court Manual prepared by the Committee on Trial Court Operations along with comments that were solicited and received. At that meeting, the Council directed that the comments be sent back to the Committee for consideration. Mr. Ganje referred the Council to the summary of the changes made to the Manual. The vast majority of the comments were nonsubstantial suggestions and were grammatical and technical corrections.
It was moved by Judge Wefald, seconded by Judge Schmalenberger, to approve the manual as amended. The motion carried.
The manual will be available on the Administrative web site.
Sally Holewa announced the Bench and Bar Seminar is scheduled for September 14 and 15, 2006. The theme of the Bench and Bar Seminar is Family Law. The Administrative Council meeting originally set for September 14 will be held on September 13 beginning at 2:00 p.m.
It was the consensus of the members to continue to hold Administrative Council meetings in conjunction with the June and November Judicial Conferences.
Louie Hentzen announced that Carl Wigglesworth passed away on December 18 and his funeral will be December 21 in West Fargo.