Judge Karen K. Braaten
Judge Debbie Kleven, Chair, Juvenile Policy Board (via telephone)
Judge Joel Medd, on behalf of Judge Braaten
Chief Justice Gerald VandeWalle called the meeting to order at 10:00 a.m. and welcomed Judge Debbie Kleven, Chair of the Juvenile Policy Board.
Judge Kleven said the Juvenile Policy Board met on February 3, 2006, and discussed the appointment of attorney guardians ad litem (GAL) in juvenile cases. In deprivation cases, the usual practice has been to appoint a lay GAL and once the case proceeds to termination of parental rights (TPR), the lay GAL has been terminated and an attorney GAL has been appointed. The Commission on Legal Counsel takes the position that they have no obligation under state statute to provide a legal GAL. To resolve the situation, the Juvenile Policy Board is recommending the court continue to appoint lay GALs to represent children in deprivation cases, with the understanding that there are certain instances when an attorney is needed. Once the petition for termination of parental rights if filed, the lay GAL's appointment should continue and an additional "attorney", rather than a "legal" GAL, should also be appointed. She said if we simply refer to them as an “attorney” rather than a “legal” GAL, the Commission would honor the appointment.
Judge Kleven said there is some concern from the Department of Human Services that when attorneys get involved in the middle of a case, once it gets to the termination stage, the contact with family is not maintained. Human Services is asking us to adopt a policy wherein we appoint a lay GAL in a deprivation case with the appointment continuing through termination; and when a petition is filed, an attorney be appointed to represent the child. The attorney expenses would be covered by the Indigent Commission and the GAL expenses would continue to be an expense of the court.
Sally Holewa commented that once the bill is paid, there is no way to determine if it was for the deprivation or the termination.
Judge Kleven said according to Tara Muhlhauser, there might be some additional funding available for the court to access through the Department of Human Services.
Louie Hentzen is of the opinion that the lay GAL would like to stay on a case as long as possible. He said the practice of them being discharged at the finding of deprivation and prior to the petition of termination was based on monetary issues. Last legislative session we received some additional funds but he is unsure whether that will be sufficient.
Judge Paulson was concerned that the appointment of an attorney at the termination proceedings could possibly be a little too late. There is a lot that takes place before we get to termination and that background may be difficult for the attorney to pick up.
Judge Schmalenberger said there are times when an attorney is not needed and it should be left to the discretion of the judge who is presiding in that case; however, he does believe a guardian is necessary.
Judge Kleven suggested a letter be sent out to the judges clarifying the issue and if an attorney is needed, refer to them as an attorney rather than a legal GAL.
It was moved by Judge Hagerty, seconded by Jim Hill, to have Sally Holewa send a letter to the judges clarifying the issue. Motion carried.
Chief Justice VandeWalle asked Susan Sisk and Sally Holewa to keep track of the costs for budgetary purposes.
[Judge Kleven left the conference. ]
The next item on the agenda was the approval of the minutes of the December 19, 2005 meeting. It was moved by Judge Wefald, seconded by Judge Geiger, to approve the minutes of the December 19, 2005 meeting. Motion carried.
Expungement of Records
Judge Wefald drew attention to a memo he wrote to the Administrative Council addressing the statutes that refer to the terms expunge, expunged or expungement. The memo also included draft amendments to the statutes. He believes many of the area legislators would support such legislation.
It was moved by Judge Wefald, seconded by Judge Medd, to accept the bill draft and send it to the Legislative Council for drafting. Motion carried.
Chief Justice VandeWalle reminded the Council that all draft legislation should be sent to the Legislative Committee for review well in advance of the upcoming legislative session.
Weighted Caseload and Clerk Staffing Study
Chief Justice VandeWalle said the total case filings for 2005 are down but because of the type of cases filed, the judge need actually increased. The weighted caseload study is a tool, but we need to develop a process or formula for determining when to request additional judges. He suggested contacting the National Center to find out what kind of process they use and to find out what other states are doing.
[Judge McLees joined the conference.]
Judge Wefald said given the numbers, we should at least look an enhancing the referees. He said, in the South Central District, for instance, they could use two full-time referees.
Judge McLees reiterated the same thing in the Northwest. He said at the very least, the district could use another referee. A judge would obviously be more useful but, on the other hand, a referee would certainly be helpful.
It was Judge Schmalenberger’s opinion that we should be looking at judges rather than referees.
Judge Medd suggested we continue to monitor this because we are seeing more DUI and meth cases coming into the system.
Judge McLees said the Northwest District is setting up a juvenile drug court but it is going to be hard to commit additional judge time when they are strapped thin already. However, they are committed to the process and want to get involved because they think the drug court is definitely needed.
Susan Sisk confirmed she would be sending out the guidelines for the budget process on March 1.
Judicial Improvement Program
Sally Holewa informed the Council that judicial improvement surveys would be sent out in May. The district staff sends a survey to the attorneys and the court staff that have been identified as working with the subject judges. After the survey is completed, it is sent to the Bureau of Governmental Affairs at the University of North Dakota to compile the information. The information is then sent to the reviewing judge. Summaries will be reviewed with the subject judge sometime in July.
Caseflow Management Committee
Judge Schmalenberger said the Caseflow Management Committee was created to develop a system for the effective, accurate, and timely monitoring of cases and processing times. In the past, they reviewed juvenile case management procedures, differential case management, continuances and compliance with docket currency standards. More recently, they requested caseflow management committees be established in the four units and each unit was to come up with caseflow plans. Judge Schmalenberger requested input from the Council on the direction the committee should go, if anywhere, and what the role of the committee should be.
Chief Justice VandeWalle said caseflow management will always be an ongoing issue. The issues are going to rise and fall but there will always be issues. He suggested the committee should not be disbanded. The demographics of this state are changing and how we handle caseflow management is also going to have to change.
Judge McLees commented the Northwest District has been working to improve their efficiency and hired a consultant last summer to review their caseflow management practices. He is uncertain how helpful the consultant’s recommendations will be.
Sally Holewa said she would be meeting with the consultant, Rod Olson and Dixie Knoebel to review the reports. She added it was the consultant’s understanding that he was to have consultation and discussion with the judges and the administrators but he was not to make specific recommendations on what they could do to improve. He has come up with a list of things that the judges need to work on but is reluctant to put it in writing as he thought it might offend one of the judges. Sally said she would share the consultant’s concerns with the judges.
It was moved by Judge Paulson that the committee continue for two more years. The motion died for a lack of a second.
Judge Hagerty suggested the committee look at the consultant’s reports and pull out some of the things that would be helpful to all of the districts and then share that with the caseflow committees in each of those districts.
Judge Schmalenberger said the committee is also waiting to review the consultant’s reports so they can start making things more uniform through the state.
Chief Justice VandeWalle said the caseflow management committee was established before we had the four district administrators and he believes the four district administrators should be added to the committee. They can provide some direction to the committee on where it should be going. Unless there is an objection, he will expand the committee membership to include the administrators.
Ms. Holewa stated there are five people's terms that who are ending and asked if all of the members have been actively participating. Louie Hentzen said since April 2004, the committee has had two meetings. The members who have not attended either of the meetings in the last two years are Judge Racek and Nicole Foster. Birch Burdick and Judge Kleven have each attended one meeting.
It was moved by Judge Schmalenberger, seconded by Judge Wefald, to have the state court administrator draft the amendments to the Policy 510 and bring it back at the next meeting. Motion carried.
Political Activity by Court Staff
Chief Justice VandeWalle said in the past, it was the practice of the county courthouses to leave petitions at the clerk’s office for people to sign. Now, some of the county employees are judicial employees and a question was recently asked as to the extent a court employee may engage in political activity.
Sally Holewa responded there is an attorney general's opinion that says a candidate can leave an unattended petition at the clerk’s office as long as the same opportunity is afforded to a candidate who is not an incumbent of the office. Sally said she sent a letter to trial court administrators and the State Court Administrative Office staff addressing this.
Judge Schmalenberger asked Ms. Holewa to share her letter with the judges.
Chief Justice VandeWalle said he spoke with Mike Sandal and Mike suggested we consider following the executive branch policy. Louie Hentzen said he also gave Mr. Sandal a copy of the political activity policy from the Kansas court personnel policies.
Judge Wefald clarified that people can circulate petitions in the courthouse and people can sign them even though they are working and do not have to take a break to sign the petition.
It was also clarified that employees can put a sign in their yard, but cannot put one up on in their cubical.
Judge Hagerty suggested the issue be sent to the Personnel Policy Board.
Chief Justice VandeWalle asked Sally Holewa to send the judges a copy of her letter and said he will talk to Mr. Sandal and Judge Geiger, Chair of the Personnel Policy Board, concerning a policy.
Sally Holewa explained the Judges/Journalist Workshop is a chance for judges and journalists within the state to get together to strengthen their working relationships to benefit each other. She encouraged the judges to attend. It is sponsored by the National Center for Courts and Media in the National Judicial College. The costs are covered by a grant from the Donald Reynolds Foundation. The suggested participants include 20 journalists and 20 judges.
It was the consensus of the Council that October would be the best month to hold the workshop and to avoid UND Homecoming.
In response to a question from the Chief Justice on how the people will be chosen on the journalists side, Ms. Holewa responded the Broadcasters Association and Newspapers Association will be involved and will make sure that weekly county papers also have that same opportunity as the larger newspapers and television.
Sally Holewa recently sent a letter to the judges regarding the mandatory penalty for convictions for Game & Fish violations. Judge Dawson said rather than waiting for an order of suspension or waiting for the judge to collect the licenses, she suggested Game & Fish take the administrative action if a conviction comes through. The statute is clear on the sentence.
Judge Wefald suggested the Legislative Committee could look at legislation.
Judge Medd stated the judge orders the period of suspension so the judge would still have an involvement.
Judge Hagerty suggested sending the Game & Fish concerns to the state's attorney’s office because the cases are often handed by Rule 43 plea agreement.
In response to a question from Judge Schmalenberger on whether there is a statewide custody investigator list or if the districts maintain their own lists, Sally Holewa responded the state has a roster of the investigators who have gone through the 18-hour training and who have verified that they are up to date on their continuing education. She said we have a person who has requested their name be put back on the list. This person did the 18-hour video a couple of years ago and had a letter that Ted Gladden sent to another custody investigator. The letter states the requirements of the continuing education and the 18-hour class are not mandatory and that the presiding judge can designate someone to be on the list. The problem is the rule says to qualify as a custody investigator, a person “should” and then it lists six qualifications. The sixth qualification states the presiding judge can designate a custody investigator.
Judge Dawson suggested and several judges agreed to delete the phrase pertaining to the presiding judge and suggested the state should determine what the minimum qualifications should be.
Judge Schamalenberger agreed the rule be changed and thinks we need to have a process to get the custody investigators on the list and then have a process to get them off, if there is a complaint. Ms. Holewa said Justice Kapsner has a committee reviewing what action should be taken if a complaint is filed. She said perhaps we should also pursue a standard rate of pay.
Judge Schmalenberger inquired whether there were standards or rules referring to the rates a custody investigator can charge.
Judge Dawson said the East Central District received some of the bills that had been approved for payment and they were way out line. She said they developed a policy that if the bill is going to exceed a certain amount, the investigator has to show the judge that additional time is warranted.
Judge Greenwood suggested the Council reconsider the definition of business of the court in regard to indigent transcripts. He said we do not reimburse court reporters/recorders for preparing indigent transcripts. They should be paid extra for that in the sense that they do receive compensation from parties in civil cases, and if the person has hired an attorney, they are paid for those transcripts in a criminal matters as well. It is only when they are criminal and indigent that they are not compensated. He said all units have experienced problems recruiting for court reports and assumes it has a lot to do with compensation.
Chief Justice VandeWalle said this brings into effect the issue of who owns the transcripts and whether the court ought to have court reporters prepare the transcripts. The parties pay the court for the transcripts and the court sets the salaries of the people that prepare them.
Judge Hagerty is concerned it would create more problems than it would solve.
Louie Hentzen said payment for transcripts is a national court reporters issue. In some states, the court reporters are allowed to do indigent transcripts as part of their job and their salary structure is set at a lower salary; but they have the potential of producing transcripts to supplement their salary. It is different from state to state.
Judge Hagerty announced there would be a coffee party for Judge Riskedahl on March 31, 2006,
from 2 p.m. to 4 p.m. for his retirement.