Chief Justice Gerald W. VandeWalle, Chair
Justice Daniel Crothers
Judge Georgia Dawson
Judge Donovan Foughty
Judge John Greenwood
Judge Gail Hagerty
Judge William McLees
Judge Joel D. Medd for Judge Karen K. Braaten
Judge Allan Schmalenberger
Judge Michael Sturdevant for Judge M. Richard Geiger
Judge Robert Wefald
Judge M. Richard Geiger
Judge John Paulson
Chief Justice Gerald VandeWalle called the meeting to order at 10:00 a.m. and welcomed Justice Crothers as a recently elected member to the Council. Chief Justice VandeWalle then drew the Council's attention to the minutes of the September 13, 2006, meeting. It was moved by Judge Wefald, seconded by Jim Hill, to approve the minutes. The motion carried.
Sally Holewa said the subject of background checks came up recently stemming partly from the Valley City incident but also after someone applied for a position in Grand Forks. The applicant had a number of misdemeanor offenses that were not disclosed on the application that we would not have been aware of if we had not run a UCIS check. The court does not have a formal policy on background checks. Under former administrators, we had an informal policy where if people were applying for a job at the State Court Administrator's Office, a background check was preformed on the applicant. Ms. Holewa inquired of the Council if they thought such a policy was necessary and, if so, to what extent. Chief Justice VandeWalle said the Council also needed to decide whether to do a nationwide (FBI) or a statewide background check (BCI).
Judge Wefald and Judge Medd suggested it was important to do the checks.
In response to a question from Judge Dawson asking what expense would be involved, Ms. Holewa responded there is no expense to run a check through the North Dakota Bureau of Criminal Investigation (BCI). The turnaround time is only a few hours. There is an expense for the FBI check. The FBI check requires fingerprints, which would cause a two to three week delay if you were going to hold the employment offer open.
Mike Sandal suggested that whatever level of background check the Council chooses, it be administered across the board consistently to all applicants.
Louie Hentzen commented that with regard to other state agency investigation units, the information in the unit's database is only as good as the person who reports it. If the law enforcement agencies and the county or state's attorneys are not reporting convictions, they are not going to be on the report.
Judge Schmalenberger suggested something might be missed if only a partial check is performed.
It was moved by Judge Wefald, seconded by Judge Dawson, to implement a two-pronged background check policy. First, an initial background check with the name, date of birth, and possibly the social security number, be performed with BCI so the applicant can be hired. Secondly, within the first few of weeks of the probationary period, the new employee will be fingerprinted so a nationwide check can be preformed.
Chief Justice VandeWalle suggested the cost of the nationwide check be determined before anything is implemented.
Mike Sandal said it is common, in many large organizations requiring background checks, to have the applicant pay for the check.
Judge Hagerty expressed concerned about requiring applicants to pay because most of the turnover is with the lower paying positions where the extra expense might create an unfair burden on applicants with an already low income.
In response to a question from Judge Medd as to whether the motion should include a UCIS check, Chief Justice VandeWalle suggested the UCIS check be done at the local level because the information is readily available to the administrators.
Judge Wefald stated even if the background check comes back with negative information, it does not necessarily mean an applicant will not be considered. He said it gives the court a basis for determining the many factors to be considered as to whether an applicant should be hired.
Judge Foughty added it also helps determine if the applicant provided false information on the application, and it becomes a test of the applicant's character.
Mr. Sandal suggested the first step would be to draft a policy and present it to the Personnel Policy Board. Once a formal policy is adopted, notice would be included in the recruitment process so proper notice is given to the applicants.
With the consent of the second, the motion was amended to include that the background checks would be effective at the adoption of the policy. The motion carried.
Policy 220, Cellular Phone Service
Policy 220 was revised to allow an employee to use his or her state-owned cell phone for personnel use as long as it does not interfere with the employee's work and the cost for the use is nominal.
It was moved by Justice Crothers, seconded by Jim Hill, to adopt the proposed amendments to the Policy 220. The motion carried.
Sally Holewa asked if the policy would be sent out for comment. Chief Justice VandeWalle suggested it be adopted subject to comment.
It was moved by Judge Wefald, seconded by Judge Hagerty, to make the policy effective immediately. The motion carried.
Policy 503 - Procedure for Accessing Tapes
Chief Justice VandeWalle then directed the members to the proposed policy for accessing tapes. He said the proposal is a relaxation of current policy and asked for the Council's input.
It was moved by Judge Schmalenberger, seconded by Judge Wefald, to adopt the amendments to Policy 503.
Chief Justice VandeWalle asked if the motion included an effective date and indicated that the Council should give some notice on this proposal. Judge Schmalenberger indicated that he had no preference for an effective date but noted the draft had a tentative date of January 1, 2007. Chief Justice VandeWalle was in agreement with that date.
There being no further discussion, with the consent of the second, the motion was amended to include an effect date of January 1, 2007.
Proposed Policy on Realtime Technical Fee
Sally Holewa said in 2005, the Subcommittee on Realtime Reporting suggested the state court administrator set a technical expertise fee to cover the cost of purchasing the cabling and the software needed to hookup a litigant to a court reporter's laptop. The subcommittee suggested a $50 technical fee. A policy was sent to the Personnel Policy Board, but no action was taken on the technical fee. Since the court's fee for the equipment is minimal, Ms. Holewa suggested a $25 fee, per day, per litigant, be paid to the state. She also said if the litigant has the necessary hardware and software and the court is already providing realtime reporting on a regular basis, a court reporter would not be able to refuse a request.
Judge Medd said he uses the realtime and suggested the $25 fee is reasonable. Jim Hill also agreed it is very reasonable and suggested the litigants would be willing to pay the fee.
It was moved by Justice Crothers, seconded by Jim Hill, to send the proposed policy out for comment. The motion carried.
Pay Grade Review of Judicial Referees
Mike Sandal said the Personnel Policy Board (PPB) has received a request from Judge Hagerty to consider changing the pay grade of the judicial referees from pay grade 21 to pay grade 23. The Board, at its December meeting, considered the request and other potential opportunities. The Board could not clearly identify changes in the duties and responsibilities in the salary information provided. However, there may be some salary disparity when comparing the referees' salaries to other jurisdictions. Mike said he would be performing an in-depth salary survey so the Board can study the issue further. One of the options the Board is considering is exempting the judicial referees from the classification system and tying them to a percentage of a district judge's salary.
Judge Hagerty said she is concerned about the level of pay for the judiciary referees. She said if we value the referees' services, we are not paying them as those services are valued. She also added that we currently have a court reporter that makes more than the referees do.
Judge Wefald said he was strongly in favor of tying the pay to the judges, perhaps maybe 80%, as opposed to adjusting the classifications, and inquired how this would fit in terms of the budget.
Chief Justice VandeWalle said because we are early in the process, any changes would not be effective until the next biennium.
Court Improvement Project Committee
Louie Hentzen said at the last meeting, Judge Christofferson offered some amended language in Section 1 to reflect the language referred to in the federal statute. He said there is some sense of urgency in establishing the Committee because grant applications are due by June 30.
In response to the Chief's question, Mr. Hentzen indicated that he had received no further comments from Judge Christofferson. He said Judge Christofferson's changes were to Section 1, and it was his understanding from talking to Lee Ann Barnhardt that those concerns had been addressed.
Justice Crothers said Justice Maring inquired whether there was any thought to putting a foster parent on the committee.
Mr. Hentzen responded the most recent committee, which was made up of 22 to 25 members, had a foster parent as a member representing the Foster Parent Association. There are a number of subcommittees as a part of the Court Improvement Project Committee, and the chair of the subcommittee may invite anyone to participate. It is anticipated that county social service directors, supervisors, guardians ad litem, and members of the Foster Parent Association will become members of those subcommittees.
Justice Crothers said the second question Justice Maring asked him to address was whether the chair of the Juvenile Policy Board has typically been the chair the Court Improvement Project Committee.
Mr. Hentzen responded the chair of the Juvenile Policy Board is Judge Kleven. The chair of the Court Improvement Committee has been a co-chair configuration consisting of Judge Christofferson, representing the court side, and Paul Ronningen, representing the Department of Human Service (DHS) side. The DHS Adoption Safe Families Act Committee was merged with the Court Improvement Committee creating the co-chairs. Thus, the chairs of the Juvenile Policy Board and Court Improvement Committee have not been one and the same. However, the Juvenile Policy Board is associated with the Court Improvement Project Committee as a result of the Chief's Task Force. Some of the recommendations from the Task Force will be funneled through the Juvenile Policy Board to follow up on those recommendations to implement the changes and improvements in the court system.
With regard to the membership, Mr. Hentzen said the Committee has not had much participation from the tribal community.
Judge Wefald suggested adding the words "in cooperation with the tribal court" to Section 1. He also suggested spelling out acronyms the first time they are used, such as in Section 1(2) (a).
Judge Foughty suggested the words "tribal council" be used rather than tribal court.
It was moved by Judge Schmalenberger, seconded, by Judge Medd, to adopt the proposed policy and insert reference to the tribes in Section 1.
Chief Justice VandeWalle said he would work with Mr. Hentzen on the exact language to be inserted in Section 1.
The motion carried.
For the Good of the Order
Judge Greenwood raised a question with regard to whether or not the court can forfeit bond to pay the posting party's overdue fines if neither the defendant nor the posting party consents to it. It was the consensus of the Council that the bond money must be returned to the posting party.
Judge Medd recognized Louie Hentzen for doing an admirable job as the temporary court administrator in Unit 1.
Chief Justice VandeWalle said the court has money in the budget for the expansion of the juvenile drug courts in Minot and Williston. He asked Carol Olson if there was money in the budget for treatment in Williston, and she responded no, so he is unsure where that leaves the judiciary with regard to the juvenile drug court in Williston.
Chief Justice VandeWalle also stated the Governor recently proposed adult drug courts for Grand Forks and Minot and a seconded drug court in Fargo. The Department of Corrections has budgeted money for a coordinator/probation officer, and the Department of Human Services has budgeted for the treatment component. Warren Emmer told the Chief the Minot and Grand Forks courts should be up and running in 18 months and Fargo court should even take lesser time. Even though we may not have the additional judicial resources, the Chief asked the Council to accommodate the new drug courts as much as possible.
Judge McLees said the Ward County State's Attorney's Office attorney was concerned about having enough resources for drug court. Judge Hagerty suggested the Ward County State's Attorney's Office speak with the Burleigh County State's Attorney's Office, as it is her experience that it does not take much time on the state's attorney's part.
Judge Foughty expressed concern with regard to the lack of county parole and probation officers in rural North Dakota. There are some good, seasoned officers, but some probation officers have hundreds of people on their caseload. There is no coordination between the federal probation officers and the state probation officers. He said there is essentially one probation officer and a secretary in Devils Lake office, and no service in Rolette County. Judge Sturdevant added the probation officer in Rolla is overwhelmed and very discouraged.
Chief Justice VandeWalle suggested Ms. Holewa speak with the Department of Correction regarding Judge Foughty's concerns.
Judge McLees announced January 11, 2007, is the target date for their juvenile drug court.
Sally Holewa said she and Judge Schmalenberger had a meeting at the North Dakota State Penitentiary (NDSP) regarding the interactive television (ITV) issue. It is the NDSP's position that this is a county expense. After the meeting, a tentative agreement was reached. All of the counties pay into a fund at the Association of Counties to extradite people. It was suggested that the contributions be increased to install an ITV system. Terry Traynor said the Sheriff's Association was in support of this, however, the NDSP is also requesting enough funding to hire a scheduler. Ms. Holewa indicated that in order for ITV to work on a statewide basis, the courts would need to develop established times for the hearings. For example, the NWJD probation hearings for the NDSP would be held on the second Monday of the month from 1:00 to 2:00 p.m. To do this, we would need to get a definite handle on how many hearings would be held.
Chief Justice VandeWalle discussed the proposed pilot project on mediation and family law. He said money was put in the budget for the project. He mentioned that Child Support is also pursuing a proposed mediation project for the next biennium. Mike Schwindt has indicated they are pursing their own pilot project which would handle some of the issues at the administrative level. In essence, child custody issues would be mediated at their level through human services and child support would follow. The judge would then be presented with a proposal to accept or reject custody, child support and related issues. At the time he spoke with Mr. Schwindt, he did not have a bill draft. Judge Hagerty said she too spoke with Mike Schwindt and with Jim Fleming, and they mentioned they were interested in testing the project in Dickinson.
The meeting adjourned at 11:40 a.m.