Administrative Council Radisson Hotel, Bismarck, ND February 28, 2014
Present: Chief Justice Gerald W. VandeWalle, Chair Judge Laurie Fontaine Judge Donovan Foughty Judge John Greenwood Judge Gail Hagerty Judge William Herauf Justice Carol Ronning Kapsner Judge Doug Mattson Judge Steven McCullough Judge William McLees Judge David Nelson Tracy Peters Judge Frank Racek
Absent: Judge Lawrence Jahnke Judge Bruce Romanick
Staff: Sally Holewa
Others Present: Merylee Castellanos Jim Ganje Rod Olson Carolyn Probst Donna Wunderlich Don Wolf Larry Zubke
Minutes: Renee Barnaby
Chief Justice Gerald VandeWalle called the meeting to order. Chief Justice VandeWalle
welcomed the new members Justice Carol Kapsner, Judge David Nelson, Judge Doug Mattson,
and Tracy Peters.
Minutes The November 15, 2013 minutes were approved as printed.
WAPC With regard to the WAPC statistics, Sally Holewa noted an error in her summary memo. She
said the footnote should refer to McKenzie County rather than Mountrail County. She also noted
the WAPC and weighted caseload statistics will be used for the upcoming budgeting process. Don Wolf reported the total filings in 2013 were 185,879 as compared to 186,229 in 2012, a
decrease of 350 cases. However, despite the decrease in total filings, the overall FTE need still
increased from 157.83 FTEs to 165.08 in 2013. He explained the primary reason for the decrease
is in administrative and game and fish cases, which were decreased by 2,600 cases. This was
offset by an increase in felonies and infractions, which have a higher case weight than the traffic
cases. The 2012/13 average FTE clerk need is 161.46, which is 9.72 FTEs more than the 2011/12
average of 151.74. State funded clerks show a need of 119.45 FTEs as compared to 96 clerks in
2011/12, for a shortage of 23.45. The 96 FTEs however, do not include the 2 temporary clerk
positions in Ward and Stark Counties or the 5 contract clerk positions in Cass (1), Burleigh (1),
Morton (1), and Williams (2) Counties. Richland County shows that they are overstaffed by 1.26
positions, however, Richland County assists the East Central with jury duty, which equates to 1
Mr. Wolf said the total FTE need for contract counties is 42.01. Twelve counties have the option
to go state funded because they have an FTE need greater than 1. Those counties are Barnes,
Bottineau, Divide, Dunn, McHenry, McKenzie, McLean, Mercer, Mountrail, Pembina, Ransom
and Traill. McKenzie County shows a FTE need of 6 positions, and pursuant to the Century
Code, any county with an FTE need of more than 5 positions loses the option to become a
contract county. They either have to be self-funded or become state funded. The deadline to
respond is April 1.
Weighted Caseload Statistics Sally Holewa explained the 2013/12 weighted caseload statistics will be used to determine judge
need across the state. Because we have this change in judicial districts and because as we go
forward with the legislation, we are going to want to show the effect of the new districts and new
judgeships, the data was retroactively applied as if those districts and judgeships had been in
effect from January 1, 2012.
Don Wolf said the weighted caseload study shows a judicial officer need of 63.98 as compared
to a 60.69 need in 2012.The two year judicial officer need is 62.33. Chief Justice VandeWalle
added that the referees are also factored into the need.
Judge Mattson noted that Referee Portscheller has been doing some work in Williams County a
couple times a month and it is not reflected in the study. Mr. Wolf responded he was not aware
that was happening but will make the adjustment.
Mr. Wolf said that based on the two-year average, districts with a judicial officer shortage are as
follows:the Northwest has the largest shortage of 2.79, the South Central has a shortage of 2.28,
Southwest has a shortage of 1.26, North Central has a shortage of 1, and the East Central and the
Northeast Central both have a shortage of less than 1. Districts with an excess judicial officer
need include the Northeast and Southeast, which both have an excess of less than 1. The total
shortage is 7.33 judicial officers.
The transfer of Kidder, Logan and McIntosh Counties increased the judge need in the Southeast
by .43 and decreased the judge need in the South Central by .4. The reduction in caseload has a
smaller impact on the judicial officer need in the South Central due to the fact that the travel time
adjustment is less than if it is in the Southeast.
Judge McCullough noted that the Williston juvenile drug court is reflected in the budget. Judge
Nelson said it is inactive and should be removed from the budget. He said Judge Schmidt is
looking into an adult drug court in Watford City, but it is still in the planning stages.
Judge Greenwood said while he realizes the report looks backwards, what was reflected in the
Southeast is just a small percentage of the juvenile drug court case weight because the weight
was prorated to the date the drug court went live . He noted in the future the Southeast Judicial
District judge need number will change significantly.
In response to a question from Judge Fontaine asking what the difference is between the total
filings and the weighted filings, Chief Justice VandeWalle responded that some time ago, with
the assistance of the National Center for State Courts, a time study was performed, and certain
activities the judges do are weighted. For example, a criminal case takes longer than an
infraction so there is a weight added. He said basically the study serves as a guideline as to
where we are and the numbers are used when making a proposal to the Legislature.
Ms. Holewa said her office will update the WCL reports to reflect the referee work being done in
Williston and the weight for the Williston juvenile drug court will be removed. The updated
WCL reports will be distributed by email as soon as they are updated.
Criminal Background Check System Sally Holewa recalled the 2011 Legislative Assembly enacted new legislation stating the court
needs to report when the federal standard restrictions apply to certain cases. The reporting was
to start when the Bureau of Criminal Investigation (BCI) certifies they are ready to take these
reports electronically. BCI has now certified that they are ready to take the cases. At the last
meeting, questions arose concerning the implementation, and the Administrative Council
requested Ms. Holewa contact the Attorney General’s Office concerning the proper way to
implement the law. The Attorney General’s Office issued a letter opinion indicating we do not
have to report when a confinement order is entered in the preliminary stage of a mental health
case. The opinion also indicated that a finding has to be made even when the court is making a
finding that the firearms restrictions do not apply. Ms. Holewa said after discussing this with our
IT Department, it would be best to have an event code in the computer system so when these
particular case types come up, the clerk will get a flag with a couple of options to choose from.
From there, the data will go to BCI, which has an electronic connection to the federal NICS
criminal search database. The following information will be transmitted from the court to the
BCI:case number, full name, date of birth and gender, social number or driver’s license number
if we have them.
In response to a question asking if there is a penalty if the judges are not following this, Ms.
Holewa responded that according to Mr. Sorensen’s letter opinion, it is not an option to remain
silent on whether or not the firearms restrictions apply.
Judge Racek stated the biggest area is mental health cases, the second biggest area is
guardianship and conservatorship cases, and then there are some miscellaneous areas. He said
with regard to mental health, the rules are always the same because of the way the statute is
written. If it is a preliminary hearing, it does not apply. If it is dismissed, it does not apply. If
the person is committed for treatment whether it is mental health or chemical dependency,
whether its inpatient treatment, outpatient treatment, continuing treatment, alternative treatment,
it always applies. He suggested changing the mental health forms in Odyssey to say it applies
and entering event codes so it is reported automatically.
Jim Ganje said with respect to mental health commitment cases, because it is a federal directive
and the language is so cut and dried, the Odyssey User Group has taken the liberty of inserting
that boiler plate language in the final orders in mental health cases. In response to a question
asking if the forms have to come back to the Council for review, Mr. Ganje said because Trial
Court Operations is a subcommittee of the Council and this is such a formalistic inclusion in the
forms, the direction can come directly from the Council to insert the language into the form.
It was moved by Judge McCullough, seconded by Judge Herauf, to approve the language
which is being used in Unit 2's mental health forms and instruct the IT Department to add
the language into the Odyssey forms as soon as possible. The motion carried.
In response to a question from Judge Fontaine asking how long it will take IT to prepare the
forms, Judge Greenwood responded the User Group will be done with the court forms next week,
but the other forms will take longer.
Judge Racek stated the conservatorship and guardianship cases are more complicated and depend
on whether we go with the Eighth Circuit ruling or the statute. When you have physically
incapacitated and some of those other reasons for guardianship, it would not apply under either
the Eighth Circuit opinion or the North Dakota statute. If a person has a mental health defect
that was not present from birth, under the Eighth Circuit, it does not meet their definition of
mentally defective so it is not a firearm restriction. In those cases, the judge will have to decide.
The other type of case seen less frequently is the not guilty for lack of criminal responsibility. In
those cases, if you follow the Eighth Circuit rule, it would almost never apply. The judge would
still have to make a decision. He said the easiest solution might be to have an order with two
choices, firearm restriction applies or not applies, so the clerks can just event it and it
automatically gets reported. Judge Racek added this would be done when the judge initially
appoints a guardian or conservator or when you would adjudicate not guilty for lack of criminal
responsibility and possibly some other miscellaneous things.
In response to a question asking if there is a process by which the individual can have the
firearms limitation removed, Judge Racek respond that there is a statutory provision for that.
Judge Greenwood said the common practice now with guardianships is to use the federal statute
definition, but it is not quite accurate under the Eighth Circuit. He suggested when a physician
or psychologist is appointed, that person should make a recommendation to the judge. That
would give the basis for the judge to make the finding and the court appointing a guardian.
In response to a question asking if the state statute complied with the federal law, Mr. Ganje
recalled when that bill was passed, it required the supreme court to do a de novo review of the
finding, and they ultimately concluded that what now is in the statute is sufficient. The federal
limitations are mental defective or commitment to a mental institution under 18 USC 922.
In response to a question asking who would design the forms, Judge Racek suggested Mr. Ganje
could draft it and send it to the Odyssey User Group to set up the events. Mr. Ganje said the
significant issue is going to be the legal standard applied in the order to make the finding and
was unsure a checkbox is sufficient. Judge Racek responded the checkbox is only significant so
that the clerks knows to take action. The judge can always add more to the order if necessary.
Mr. Ganje noted there is one other case category that is similar to mental health that would be an
automatic restriction on firearms and that is the commitment of sexually dangerous individuals.
Judge Racek suggested those would be reported the same as mental health. We would not report
dismissals and we always report commitments. He suggested basing it off an existing event.
Mr. Zubke, Mr. Ganje, and Judge Racek will work together to create the event.
Proposed Changes to Policy 505 Sally Holewa stated at the last meeting, proposed changes to policy 505, section 8 were
presented. Upon review, it was determined that the reference to how child support is collected
and enforced is not current. The Council then asked Jim Ganje to review the policy and
determine if any additional changes were necessary. Ms. Holewa said because the Supreme
Court has a case pending involving child support, it may be most prudent to postpone discussion
until the next meeting after that decision is made.
It was moved by Judge Mattson, seconded by Judge Herauf, to table the agenda item. The
Election of Representative on Personnel Policy Board Chief Justice VandeWalle noted at the last Administrative Council meeting that Judge McEvers
was reelected to serve on the Personnel Policy Board. Because she is no longer a district judge,
she is not eligible to serve.
Sally Holewa noted Judge Mattson expressed an interest in serving the last time there was a
vacancy. Judge Nelson indicated that Paul Jacobson is not serving on any committees. Judge
Hagerty also noted Judge Hovey may be interested in serving. Judge Herauf suggested sending
out a memo to all judges asking if anyone was interested in serving on the Board. Judge Hagerty
noted it is an important position because it handles issues that are important to the employees.
Ms. Holewa will contact those persons mentioned to see if they are interested. The election will
be conducted by email.
Clerk’s Response to Warrants Sally Holewa recalled at the last meeting, the Council directed Jim Ganje and Ms. Holewa to
prepare a draft policy regarding how a clerk should respond when a person visiting the clerk’s
office has an outstanding warrant. Ms. Holewa said it is important to develop statewide protocol
so these situations are handled consistently throughout the state. Jim Ganje stated the draft sets
out two alternatives. One alternative relates to the clerk having informally or accidentally
gaining knowledge that the individual is the subject of a warrant. The second alternative requires
clerk staff to proactively inquire through Odyssey whether there is an outstanding warrant. He
said each alternative has alternate language within it regarding the individual’s purpose for
visiting the clerk’s office and the clerk’s response upon learning there is an outstanding warrant.
There is the exception on both that says clerk staff may forego action if office safety is a
Justice Kapsner stated she rejects option two because clerk staff should not be required to check
Odyssey to see if somebody has a warrant every time the public walks up to the desk.
Judge Hagerty noted whatever decision is made, it should be clear that you never interrupt
someone who is filing papers or anything else with the court. Judge Foughty added even if the
person is arrested, they should be able to complete their business. He said whatever function the
visitor is there to perform should be completed and then the court can take whatever action they
deem appropriate. He also noted the importance of not creating a rule that puts the clerk in
Judge McCullough noted even if it is flagged in Odyssey that a person has a warrant, unless the
Sheriff’s Office has the warrant, no arrest will be made. He said if the clerk informs the
individual they have a warrant, it is putting the clerk in danger.
Judge Fontaine said in rural counties where the clerk most likely know everyone, the clerk
informs the person there is a warrant. She agrees with the first rule that they exercise either
option at their discretion and neither option if they feel threatened. They can always call the
sheriff after the person leaves.
Judge Hagerty noted if the person is dangerous, the clerk should be using the panic button, if it is
It was moved by Judge Racek, seconded by Judge McCullough, to modify paragraph A of
the policy to read as follows:Upon the appearance of an individual in the office of the clerk
of court for any purpose requiring clerk staff assistance, the appropriate law enforcement
agency must be notified if clerk staff becomes or is aware that the individual is the subject
of an outstanding warrant. The individual should be allowed to complete any court-related
business. Paragraph B shall be kept as stated. The motion carried and the draft policy will
be sent out to employees for comment.
Adult Drug Court Advisory Rule Sally Holewa recalled at the last meeting, the Administrative Council directed Jim Ganje to draft
a rule for the establishment and operation of adult drug courts. Jim Ganje stated he drafted two
alternatives for the Council’s consideration. The first alternative mirrors the administrative rule
currently in place for the juvenile drug court. It establishes a statewide advisory committee that
would oversee the operation of the adult drug courts in the state who would develop a common
program manual for the drug courts. The proposed rule was circulated for comment. One
comment was received suggesting the court establish a formal process by which the supreme
court could be petitioned for the establishment of an adult drug court. After reviewing petitions
that were filed for the establishment of drug court and information from other drug courts in
other states, Mr. Ganje drafted alternative two. Alternative two would be the process by which a
judicial district presiding judge could request the supreme court establish an adult drug court.
He said the two alternatives are not necessarily mutually exclusive. You can have the advisory
committee and you can have the establishment process. The difference is that with the advisory
committee option, it is a statewide advisory committee that develops the program manual that
would then govern the operation of all drug courts whereas under the establishment option, each
drug court would be able to have their own program manual.
Judge Hagerty said the first alternative does not work with the adult drug court because the adult
drug court’s coordination is done by the Department of Corrections, which currently has an
advisory committee. Because of the funding and many differences between adult drug court and
juvenile drug court, the same model does not work. She suggested the better alternative is the
second alternative, however, it should be expanded to include other types of courts.
Chief Justice VandeWalle said there needs to be some kind of state platform that not only
approves these on an initiative, but could also encourage them. He said there also should be a
state committee that could suggest to a district that they might want to consider a court. He
agrees that it should be expanded to include other courts. Chief Justice VandeWalle noted the
second alternative would not provide a coordinating committee, and there needs to be planning
and coordination between the court, Department of Corrections, and Department of Human
Services to provide all of the necessary services. There needs to be a statewide vision instead of
district by district, and the second alternative does not provide this.
Judge Hagerty said under the old DUI legislation, there was a requirement that a DUI court be
approved by the supreme court but that was lost in the legislative action. However, in order to
encourage a drug court, you have to have the funding in place which is coming from the
Department of Corrections.
Judge McCullough said Judge Irby is in favor of the second alternative, but he strongly
encourages the involvement of the Department of Corrections before making the decision. He
recalled the juvenile court started with Justice Maring and the adult court started with the
Department of Corrections.
Mr. Ganje said under section 2 on initiating a petition, there is a requirement that the presiding
judge assemble a planning team. He said that language is broad enough that the presiding judge
has fairly wide latitude involving the Department of Corrections.
Judge Racek stated he agreed with Judge Hagerty on the drug courts, but also agrees with the
Chief on the vision. He agreed it be expanded beyond drug court as drug courts are just a piece
of the court system.
Mr. Ganje said the advisory committee rule is generic enough that the advisory committee can
encompass all of those people to develop a statewide vision with respect to adult drug courts. He
suggested leaving the language more broader and elastic so it will serve a more diverse purpose.
Judge Hagerty suggested working with Alternatives to Incarceration Committee put together a
bill draft for the next legislative session.
It was moved by Judge Hagerty, seconded by Judge McLees, to adopt the second
alternative and change the name to treatment court - establishment.
Mr. Ganje stated it might be too broad in establishing treatment courts. The language in
alternative two refers specifically to adult drug court. The language would have to be written to
be more generic so it could apply to any kind of treatment court setting.
Judge Hagerty offered to draft a new proposal that would be more broad and cover treatment
Judge Hagerty with the consent of the second, withdrew her motion.
Court Security Manual Sally Holewa said the Court Security Manual is before the Council for review and/or adoption.
Judge Hagerty stated there was a proposal brought forward on this a couple years ago and then
this group appointed a subcommittee to work on it. The subcommittee’s work is what is in black
and Ms. Holewa’s revisions are in red. She stated because the funding would have to come from
the counties, the manual is basically a set of best practices that are there to be helpful and
encouraged. Ms. Holewa said she encourages trial court administrators to work with their local
judges to develop a more specific security manual that would include more detailed information
such as evacuation routes or shelter in place procedures in an active shooter or hostage situation.
Chief Justice VandeWalle suggested some funds may be available to courthouses through the
court facilities improvement fund.
Judge Fontaine stated while she likes the security recommendations, she does not like the
suggestion that each judicial district appoint a court security advisory committee because no one
is properly trained to do security.
Judge Nelson said he would like to see something like this as a rule. He said this would have
been useful when he set up security in Williston.
In response to a question asking if there is anything in the manual for jurors, Ms. Holewa
responded the circulation patterns are on page 9 of the manual.
In response to a question asking if the security provisions in the courthouse need to be disclosed,
Ms. Holewa responded court personnel will be trained on the provisions, but it would not be
available to the public.
It was the consensus of the Council to remove the reference to county court on page 3 of the
It was moved by Judge Nelson, seconded by Judge Mattson, to adopt the court security
manual.The motion carried.
Project Passport Judge Foughty stated the National Center for State Courts developed Project Passport to improve
recognition of domestic violence protection orders between states and tribes by encouraging the
development of a recognizable coversheet for all domestic violence protection orders. He said it
is his goal to get the state and trial tribal courts to adopt the coversheet so it is distributed on a
national level. Judge Foughty said the theory is if everybody in the country has essentially the
same form, a police officer out in the field would quickly recognize it. He said 30 plus states
have already adopted the form.
Jim Ganje explained the form in the meeting materials is from the National Center, and the form
he distributed at the meeting is one he drafted in our current format. He said everything that is
on the Passport template is in his draft. The field for the petitioner date of birth and checkbox
for the respondent “has access to weapons” are not on the current order. The checkbox for
respondent “has access to weapons” is not on the Passport coversheet either. The coversheet will
go in front of the order that would accompany it. It is a red flag to law enforcement and captures
everything on one sheet so law enforcement knows that they can enforce the order without
having to page through it. There are also warnings on the bottom about full faith and credit
across jurisdictions and firearms limitations.
Judge Fontaine said there is already some type of coversheet in Odyssey and recalled the main
motivator behind it was for law enforcement’s use.
In response to a question asking why there is not an effective date on the template drafted by Jim
Ganje, Mr. Ganje responded when drafting his proposal, he used a temporary order and our
temporary order is in effect until the permanent order is served. The effective date field would
be added to the permanent order. Ms. Holewa said one reason that you may want to have it on
the temporary order is because North Dakota does not have an end date on the temporary order,
which is beneficial if the order does not get served and remains as a temporary order.
In response to a question from Judge Foughty asking how many judges have heard a criminal
case for violation of a protection that was outside their jurisdiction, Judge McCullough noted the
East Central frequently receive cases from Minnesota and Judge Nelson indicated the Northwest
gets cases from Montana but have not had a prosecution.
Justice Kapsner stated she is concerned with the language that states the court hereby finds that
the respondent has been provided reasonable notice and an opportunity to be heard. Mr. Ganje
said Justice Kapsner is correct. To trigger full faith and credit, you have to have a notice of
opportunity to be heard and for that reason we should not have a coversheet for the temporary
order. He suggested inserting a field for the expiration date directly above the double warning to
the respondent so that it covers the permanent order.
It was moved by Judge Foughty, seconded by Judge Mattson, to direct Jim to draft a cover
sheet for a permanent domestic violence protection order.
In response to a question from Judge McCullough asking who would prepare the form, Ms.
Holewa said the form would be generated automatically in Odyssey using the data from the
After discussion, it was determined that the petitioner’s year of birth would be used rather than
the full date of birth.
Mr. Ganje then asked the Council if they wanted to include the language on the form referring to
the respondent having access to weapons in addition to the field for weapon involved. Judge
Greenwood noted on the order a judge can make a finding that a weapon is involved, but
currently cannot make a finding that there are weapons in the home. The order would need to be
modified in order for it to generated to the coversheet.
Judge Nelson suggested it would be better if our coversheet looked similar or the same as the
National Center’s form so the officers would identify with it more quickly. Mr. Ganje responded
he reviewed the templates used in Montana and a few other states, and the templates are similar
but are not exactly the same. However, the others did use the boxes like the National Center
uses. Mr. Zubke indicated it is possible to program the boxes into Odyssey.
It was noted that protection orders are viewable at the courthouse through the public access
terminal. The protection orders have always had social security numbers on them as a
respondent identifier, but only the last four digits are viewable on a terminal.
The motion carried.
Pre-Plea Investigation Pilot Project Judge Racek stated four people were sent to Omaha for training on the pre-plea investigation
pilot project through the National Judicial College. The risk assessment is performed prior to the
person pleading. He said the basis for evidence based sentencing is to conduct disposition based
on risk and need. Risk has no correlation to danger and risk only means risk of recidivism.
People are rated as high risk/low risk, and high need/low need. Need is contagious and risk is
contagious. He noted the importance of not mixing high need with low need or high risk with
He said once the people are identified as chemically dependent or abuses chemicals, the
expectations about their performance has to differ. When you mix abusers and addicts together,
the abusers learn they have several chances before anything happens. With addicts, if the
sanction is jail or incarceration or any kind of negative response, the path to overcoming the
addiction is deterred. Addicts need to be treated with enhanced treatment programs. When
dealing with people with substance dependence or addiction, the sanctions have to be low and
the reward has to be high. Abstinence is the distal goal. When dealing with abusers, the
sanctions are higher and the rewards are lower. Abstinence is a proximal goal.
Judge Racek said a lot of cases in drug court come through the rating system as high need/low
risk and they should not be mixed with the people that are high risk/high need, which is the
targeted group the that Department of Corrections wants in drug court. Judge Racek referred to a
chart used by Department of Corrections field services on in North Dakota. It has been
validated, and the State of North Dakota is confident that this has been validated to 10%
recidivism. They only ask three questions: how old are you, at what age were you first arrested,
and how many prior arrests do you have. If a person scores four or less, they are on supervised
probation. If a person scores higher than four, a full LSI-R is performed.
In response to a question from Judge Foughty asking who decides if someone is an addict or
abuser, Judge Racek responded the Department of Corrections performs the screening. The
people that are high risk/high need are reviewed as candidates for the drug court program.
In response to a question from Justice Kapsner asking with all the new tools at Judge Racek’s
disposal, if he was able to do anything in a practical way in sentencing these people, Judge
Racek said the positive aspect is the person is sent into treatment right away. For example, the
person is already enrolled in a particular program and we can incorporate it into the sentence
knowing it is possible to do. However, we only have three choices (prison, county jail, or
probation) and until we can get all three entities to work together as long as they are separate, we
are going to have trouble. He noted the negative aspect is that resources are thin. He said the
first month he participated, he had 10 cases, and the second month about 15 cases. However, if
you multiply that by nine, that would be 100 cases a month and he is unsure there are enough
resources to do that.