Present: Chief Justice Gerald W. VandeWalle, Chair Judge Sonna Anderson for Judge Gail Hagerty Justice Daniel Crothers Judge Donovan Foughty Judge William Herauf Judge Steven McCullough Judge Joel Medd Judge David Nelson for Judge William McLees Judge John Paulson Judge Frank Racek Judge Bruce Romanick
Absent: Judge Sonja Clapp Maureen Holman
Staff: Louie Hentzen Sally Holewa
Others Present: Dennis Herbeck Rod Olson Carolyn Probst Donna Wunderlich Don Wolf Larry Zubke
Minutes: Renee Barnaby
Chief Justice Gerald VandeWalle called the meeting to order at 3:30 p.m.
Minutes It was moved by Judge Paulson, seconded by Judge Herauf, to approve the November 4,
2011 minutes. After a typographical correction, the motion carried.
Appointment to Juvenile Policy Board Judge Daniel Narum’s term on the Juvenile Policy Board expired December 31, 2011. He is
eligible for another term and has indicated he would like to serve a second three-year term. It
was moved by Judge Paulson, seconded by Judge McCullough, to reappoint Judge Narum
to the Juvenile Policy Board. The motion carried.
Caseload Summary Statistics Sally Holewa drew attention to the statewide and individual district case filings for 2006 through
2011. The statistics showed statewide case filings were up last year by 2,660 cases. She recalled
at the start of the Odyssey project, the Council suspended the weighted caseload study because it
would be difficult to measure the data from the Odyssey counties accurately against the UCIS
Referees Hearing Administrative License Suspensions for Unpaid Child Support Judge Racek said there is a section of the Code under Title 14 where regional child support can
commence an action for contempt and request the obligator’s license be suspended. Under
Administrative Rule 13, those cases are referred to referees. Recently, the requests for hearings
on administrative license suspensions for non-payment of support have been under Title 50.
However, there is no provision under Administrative Rule 13 to refer a Title 50 matter to a
referee. Judge Racek noted the problem is not that judges might have to hear these cases because
there are not many of them. The problem arises in the clerk’s office. If these types of actions
cannot be heard by a referee, then, the clerks have to physically go through a stack of child
support enforcement proceedings that routinely are assigned to the referee to find them and then
redirect them to the district judge.
Chief Justice VandeWalle suggested Title 50 be reviewed by in its entirety by the staff attorney.
Justice Crothers noted any amendment to Administrative Rule 13 would most likely be included
under Section 5.
It was moved by Judge Medd, seconded by Judge Paulson, that the Administrative Council
recommend to the Supreme Court that the referees duties be expanded to hear proceedings
under the appropriate section involving drivers license suspensions.
Sally Holewa stated she spoke with Jim Fleming, and he had concerns about referees hearing
these types of cases. His concern is that the referees have been looking at them under the wrong
standard of review. They are treating them like a de novo case but they are closer to an
administrative appeal. He questions whether it is appropriate for referees to hear them given that
standard of review. He said there were only 34 cases statewide last year so the number going
before judges is very low. He also suggested that if the rule is amended, it include all child
support provisions under chapter 50-09 rather than just this one.
Judge McCullough stated because there are minimal cases in a year, it creates more of a problem
in the clerk’s office than if it were a more substantial number because the clerks have to
physically go through and review each child support proceeding.
The motion carried.
Judge Racek noted with regard to the child support alerts discussed at the last meeting, everything
is on schedule and thanked Chief Justice VandeWalle and Sally Holewa for their work on this.
Chief Justice VandeWalle recalled we still need to work with district court administrators
regarding the policies for phone call and rerouting information.
Review of Jury Statistics for 2011 Sally Holewa said in 2003, the court adopted a juror non-utilization standard. To assist in
reaching the standard, the court implemented a formula for the number of jurors that should be
called in each case. The formula is the number of sworn jurors needed + the number of
peremptories needed + the number of alternate jurors allowed +2. This is the general guideline to
be used in all cases unless the assigned judge determines that a larger number of potential jurors
is required. It appears the formula is being disregarded in nearly every case resulting in an ever
increasing number of potential jurors never reaching voir dire. She said if the judges are not
comfortable with the standard, we should consider revising it to possibly + 4.
Judge Medd said because compliance is never 100%, he is in favor of increasing the number by
two or four.
Judge Racek suggested the jury groups should be broken down into smaller, more fungible units
so some can be excused if needed. Right now, if we are bringing in a felony panel, they are all
going to come in or they are going to get excused.
Rod Olson said it is possible with our jury program, to limit the number of jurors up until the time
the answering machine is turned on. If we have 40 people coming in for a felony and only 25 are
needed, we could tell the system to randomly choose 15 people not to come in. We could put it
on the answering machine that those people do not have to report.
Sally Holewa stated if the jury response is low, the clerk could look at their stats to review the
average nonappearance rate. That is a number that the clerk should know and can account for.
Judge Racek said to cut down on some of the costs, instead of putting stamps on the return
envelopes, perhaps we could use business reply mail so we only pay for the ones that actually get
Ms. Holewa noted we spend about $17,000 on average per quarter on jurors reporting for service
that never get reached. It is costly in terms of dollars, but the bigger thing is we have a
commitment through our jury standard that says we are going to use jurors responsibly and be
respectful of their time.
In response to a question asking what happens when a juror does not show, Judge Romanick said
he has the clerk put them on the next panel and if they do not show, they are brought in on an
order to show cause. Judge Medd responded that Judge Clapp also brings them in on an order to
show cause. Judge Foughty noted juror turnout is relatively good in his unit.
It was the consensus of the Council to refer the formula issue to the Jury Standards Committee.
Review Indigent Defense Recoupment Sally Holewa said the Indigent Defense Commission has asked the Council to review the indigent
defense recoupment, which is the presumed reimbursement rate for actual indigent defense
attorney time. Because the formula for recoupment changed last legislative session thinking that
it would be easier for judges to remember to put it on the sentencing or to figure out what it
should be, they were trying to determine whether it has helped or not. The report included in the
meeting materials was provided to the Commission. Ms. Holewa said the Commission has
increased their hourly fee from $65 to $75 per hour.
Donna Wunderlich said Judge Hagerty pointed out that if the state does not recommend
recoupment, the judge will not know if it is appropriate in a particular case. They are not getting
those recommendations in the South Central District. Ms. Holewa stated it was her understanding
that it is presumed that the courts are going to impose this based on the case type and you would
not do it unless you found that there was no way they could pay. Otherwise the presumption is
that it is always going to be assessed in this amount based on the case type.
Chief Justice VandeWalle noted there is an interim committee studying the fee structure.
Judge Anderson stated some of the defense attorneys are in an ethical bind. In some cases, their
clients are indigent when they apply but now they have a job in the oil field and they are making
more money than the attorney, however, indigent defense counsel cannot bring that up at the
Judge Racek stated as a practical matter, a lot of the cases we see are partially indigent people.
They could pay a little something at the moment when the problem arises but they are unable to
hire a lawyer. He said it would be helpful if we had a source to refer them to but currently this is
not possible because of the way the statute is written.
Chief Justice VandeWalle suggested Ms. Holewa set up a meeting with Robin to discuss the
issues. He also suggested recoupment be included in the fee study so it is not looked at in
isolation as the only thing that the defendant has to pay. There are other costs such as damages,