Justice William A. Neumann
Judge John T. Paulson
Judge Allan Schmalenberger
Chief Justice Gerald VandeWalle welcomed everyone to the meeting. The first item on the agenda was the approval of the minutes of the December 17, 2004 meeting. It was moved and seconded that the December 17, 2004 minutes be approved. Motion carried.
Policy on Transcript Preparation from Audio Record
Ted Gladden explained the proposed policy on Transcript Preparation from an Audio Record attempts to address two things: (1) the application process for contractors; and (2) the length of transcripts our employees are expected to do in-house before looking to an outside vendor. With the help of Louie Hentzen, Mike Sandal, and administrative personnel, a flowchart was developed and attached to the policy. The policy provides a contracting process for non-court personnel and a better way of managing the current system for consistency statewide. Two districts have had a policy that anything above 50 pages is sent out. According to a report prepared by Susan Sisk, we spent more than $20,000 on transcripts in 2004, and approximately the same amount in 2003. In her report, the size of the transcripts sent out ranged from 13 to 700 pages. In the draft policy, Mr. Gladden recommended 150 pages per day, after speaking to a group of secretaries who have been doing a lot of transcript preparation.
In response to a question from Judge Wefald regarding how many districts currently send out transcripts, Mr. Gladden said the only district that is not sending them out is the Southwest and very few from the South Central. He said he has the data, which consists of all the transcript requests sent to a service bureau.
Currently, transcripts are going directly from the service bureau to the supreme court. No one in the system is reviewing or monitoring them. In the draft policy, whoever sends it out will be responsible for making sure it is accurate when it comes back. We are also trying to develop a better way of using our personnel who have time available to do this work.
Judge Greenwood said he spoke to Judge Webb who indicated judges are doing a de novo review of the record. He wondered if there was a difference between those transcripts and the ability for in-house people to do those as opposed to court recorders doing a trial or hearing transcript. Mr. Gladden indicated it was a problem. He said for example, in Fargo, one secretary was doing a 1,000-page transcript and another secretary was doing a 500-page transcript of proceedings where there was a request for review by the district court. This is not only going to be a problem to manage, but it is also going to be an expensive issue to address if all these transcripts are sent out.
Under the proposal, whoever takes the record will be responsible for preparing the transcript or getting approval from their supervisor to send it out. We not only need to look at the districts that have a one-on-one relationship, but also the districts where personnel are pooled. A 150-page transcript divided among three people from a digital system is a lot different from 150 pages being prepared by one individual. Mr. Gladden said it is the opinion of administrative personnel that the standard ought to be higher than 50 pages but yet not onerous. That is how one day’s worth of transcript work was chosen.
It was moved by Judge Geiger, seconded by Judge Braaten, to adopt the draft policy. Discussion followed.
Judge Braaten said if the transcripts are to come back to the supervisor for review, under our current administrative rule, the supervisor is the judge so that is something we need to take into consideration in each of our units on how this would be managed.
Louie Hentzen said after discussing the issue with trial court administrative personnel (TCAP), he and Mike Sandal drafted the flowchart as to what happens based on a transcript being requested. With the review process being the transcript would be sent back to the administrative office or the unit manager for accuracy, completeness, etc., it would also be reviewed by the person assigned to that judicial officer for such things as spelling of names, etc. They tried to build in some quality review steps so we would make sure to have as clean and accurate transcript as possible.
Mike Sandal commented the major concerns of the TCAP group when putting together the flowchart were the processes of quality control, review, and who that would fall to. It was the consensus of the TCAP group that the initial review for quality would be back upon the person who was responsible for taking the record.
Dixie Knoebel said the court administrators’ involvement is largely budgetary since they sign off on invoices.
It was moved by Judge Geiger, seconded by Jim Hill, that under Section 4, No. 5, the words “and for final review for accuracy and correctness” be added to the end of the sentence. Discussion followed.
Judge Braaten was not in favor of Judge Geiger’s motion, and said she was under the impression that this was just to assure the accuracy of the service bureau. She said we cannot expect a court reporter/recorder to certify someone else’s work. Whoever does the transcript certifies that it is a true and accurate record of the proceedings.
Judge Geiger feels it has to do with editorial pride. If the service bureau prepares the transcript and certifies it for accuracy, the reporters/recorders should have the opportunity to correct it.
Judge Braaten said the reason they are sending them out is because they are lengthy and the reporters/recorders do not have the time to get them done so then how much time is it going to take to review them? Ted responded that the intent was not to have them go completely through the transcript.
In responding to a question from the Chief Justice regarding if this policy was partly intended to discourage the sending out of transcripts, Ted Gladden responded that it is to establish a standard that everyone is comfortable with and set a process in place to manage transcripts sent out.
Chief Justice VandeWalle was concerned that the tapes will get lost if we are sending them from one unit to another. Louie Hentzen responded that it will not be from unit to unit but will be from districts within the same unit. While we do not have digital everywhere yet, once it is installed, they will be able to access the digital record over the internet.
Judge Wefald moved the previous question to cut off debate. The motion died for a lack of a second.
The motion to add the words “and for final review and accuracy and correctness” under Section 4, No. 5, failed.
It was moved by Judge Foughty that under Section 4, No. 3, the words “on a random basis” be stricken so that every transcript would be monitored. Motion died for lack of a second.
The motion carried to send the policy out for comment.
Policy on Paid Transcript Work Being Done on Personal Time
Louie Hentzen reviewed the amended language to Policy 206 proposing the following language be added to paragraph No. 1, under Fees, “Time spent in preparation of transcripts in which a per page compensation is allowed is not eligible for overtime compensation and should be outside of regular business hours.” The language comes from a 1995 federal law in which the National Court Reporters Association was concerned about Dept of Labor rulings on preparation of transcripts and overtime compensation for such. Legislation was passed and signed by President Clinton that time spent in preparation of a fee paid transcript is classified as exempt under Fair Labor Standards; therefore, they can work on the weekends or after hours and be paid a fee and not be able to declare overtime for preparing the transcript. However, the language in the legislation specifically addresses court reporters and does not mention secretary recorders. He said Mr. Sandal would argue that a secretary recorder, who would be preparing the transcript for which they are being paid a fee, would still be able to receive compensation for overtime. Mr. Hentzen does not think that was the intent of the law and it should pertain to whoever prepared the transcript whether it is a recorder or reporter.
It was moved by Judge Wefald, seconded by Jim Hill, to add the proposed language to the policy.
It was Judge Dawson’s opinion that transcripts are something our employees do because the court orders and they are part of the court’s business. Judge Foughty responded it is the court’s business but the court also has a contract with that individual to pay them overtime.
In response to a question from Judge Geiger asking if a court report could prepare a transcript faster using CAT, Judge Hagerty said it depends on the skill level of the reporter. Realtime reporters can produce a transcript quite rapidly if they have everything in their dictionary. Judge Geiger then asked if building a dictionary was a progressive thing, and Judge Hagerty replied it requires preparation before every case depending on the type of case, and it requires more skill to do reporting.
Judge Foughty said this is where he feels the issue of pay equity is outrageous. He asked where the incentive was to gain the skill if you are doing the transcript on office time and are paid extra while the skilled reporter is not getting paid extra because she can do a transcript relatively fast.
Mr. Hentzen said in other areas across the country, court reporters are required to purchase their own equipment. Some courts take away the transcript fees if they prepare them on state owned equipment, and they have to do it during regular business hours. Therefore, if you take away the incentive to pay them a fee because they are no longer having the expense of buying their own equipment, then it brings up the question of whether or not a fee-paid transcript should be paid on state operated systems.
Judge Wefald moved the previous question to end the debate. It was seconded by Jim Hill. Motion carried. The only questions that can be asked are questions of inquiry of information.
Judge Braaten asked Mr. Hentzen for clarification on the federal law requiring the addition of the language that says it “should be outside of regular business hours.” Mr. Hentzen responded the reason he said “should” and not “shall” is because there could be special circumstances considered when a court reporter has the time to work on a transcript in which an appeal has been filed. Another federal issue concerns wage and hour. He said if we are paying a salary and also paying piecework, it may violate some wage and hour standards.
It was the consensus of the Council to send the policy out for comment.
Clerk of Court Manual
At the request of Chief Justice VandeWalle, Jim Ganje reviewed the next agenda item, revisions to the clerk of court manual. Jim noted Administrative Rule 46 governs the duties of the clerk of court and requires the clerk to comply with the procedures in the clerk of court manual. The Committee on Trial Court Operations has the responsibility to develop and maintain a current clerk of court procedures manual. The committee has worked on the manual for almost two years, and the larger portions of the manual have been sent out for comment. The manual was ready to be presented to the Administrative Council at their February meeting, which was canceled, so with the Chief’s approval, the manual was sent out for comment.
Judge Wefald suggested the Council send the manual back to the Trial Court Operations Committee to review the comments and make any changes. The Committee can then send the manual back to the Council with a letter stating how they arrived at the final draft. It will then be up to the Council as to whether or not to adopt the revised manual.
Mr. Ganje said there are two things that are substantive in nature that are in the manual but not in the comments. In Section 3, Section 3.13, Post-Conviction Relief, there has been discussion about where the application for post-conviction should be filed. There has been sentiment that since post-conviction relief is civil in nature, it should be opened as a civil file. There is other sentiment that in terms of simple file management, the post-conviction relief application should be filed in the existing criminal file. The Trial Court Operations Committee concluded and the manual indicates that the application and any attached papers are to be filed in the existing case. Judge Wefald suggested this was the proper approach. Jim said the other change is on the Motion Procedure for Child Support Collection in the Child Support section, which the Council discussed in the past. What this procedure contemplates is that when an obligor is delinquent in child support, rather than an order to show cause process for personal service by the sheriff, the person will be sent a notice of hearing and motion and it will be done by mail.
There were three new procedures at the end of the manual that Jim wanted to bring to the Council’s attention: (1) a procedure on overweight trucks; (2) dogs as a public nuisance; and (3) a section on commitment procedures for a sexually dangerous individual.
Ted Gladden observed that if adopted, the manual would take on a completely different status because there will be a consistent practice in terms of record-keeping procedures and the clerks will be required to follow the stated procedures. They will not be optional.
It was the consensus of the Council that the manual go back to the Trial Court Operations Committee. Council members agreed the revised manual will not be sent out for comment again, after resubmission by the Committee.
Policy on Remands to Municipal Court
The issue of remands to municipal court relates to differences between districts on when a case should be remanded. Defendants remove cases from municipal court to district court and when they find out the fee assessment structure in district court, they request the case be remanded to municipal court.
Chief Justice VandeWalle suggested it is a jurisdictional question of whether the trial court has the authority to send it back to the municipal court or the municipal court has the authority to do it even it is transferred.
It was the consensus of the Council that this was a jurisdictional matter and there was nothing the Council could do.
Technical Amendments to Administrative Policies
Ted Gladden explained as part of the ongoing process of trying to conform our policies to our new structure, he has proposed technical amendments to Policies 501, 502, 503, 504, 508, 510, 511, 512, 513, and 517.
Chief Justice VandeWalle suggested the date be left on the bottom of the policy to reflect when it was enacted; otherwise, it looks like the policy was just adopted.
It was moved by Judge Wefald, seconded by Judge Dawson, to adopt all technical amendments with the exception that the history be retained as to when the policy was originally adopted and/or amended. Further discussion.
It was moved by Judge Geiger, seconded by Judge Hagerty, to add an additional sentence to Policy 510, after item No. 6, under Purpose as follows, “Any proposal for rule change or modification offered by the caseflow management committee that is within the review authority of the Joint Procedures Committee shall be directly submitted to that committee for consideration.”
Judge Geiger said when the Caseflow Management Committee offers a rule change or a new rule to the Council, the Council approves it and sends it to the supreme court. The supreme court then sends it to the Joint Procedures Committee. He said if it involves the review of the Joint Procedures Committee, that committee should review it and take their proposal to the supreme court for final consideration.
Jim Ganje asked and Judge Geiger confirmed that we would then have a subordinate committee of this group sending proposals directly to the Joint Procedures Committee without ever having been approved or commented on by the Council.
Chief Justice VandeWalle said that is different from what Judge Geiger proposed because there is a difference between it coming to this Council and then going directly to the supreme court and going to Joint Procedures Committee because if we created a policy, then we never see it again.
Judge Geiger said it might not be necessary to have this body debate an issue that will go before the Joint Procedures Committee as they deal with a more global aspect of how proposed rule changes will affect all other rules.
Ted Gladden said he would be concerned that the Council would not have the benefit of discussing the issue if it were sent directly to the Joint Procedures Committee.
The motion failed.
The motion carried to adopt the policies as amended.
District Court Report
Louie Hentzen explained the reports from each of the units regarding the areas of indigent defense, records retention and destruction and jury management were included in the meeting materials. In the future, the trial court managers will be working statewide to see if there are practices that can be recommended to statewide policy. The next work plan topic for discussion and review is caseflow management, which is tentatively scheduled for the end of June.
Concerning the juvenile court, Mr. Hentzen informed the Council that although the group did not meet formally before, the juvenile directors from each unit will be meeting on a regular basis. Their next meeting will be held in conjunction with the TCAPs to discuss issues that are going to be coming up in the staffing study that will be done by the National Center. He said the directors are doing a good job, and he was pleasantly surprised with their statewide vision.
Ted Gladden explained that we would be entering into a contract with the National Center for State Courts to perform a time study of our juvenile court that will include clerical staff. The objective is to have the study completed before the end of the biennium.
Chief Justice VandeWalle said he believes the studies provide a degree of credibility for the judicial system in dealing with the legislature.
Mike Sandal said the actions of the court relating to how we review our business practices and vacant positions and how we look at our present planning needs have gone a long way with legislators. In fact, they have used the judiciary as a model for executive branch agencies. In his opinion, it has helped us in our appropriation process because we have gained credibility. They trust that we are prudent with state dollar and look carefully at our practices and management techniques. We are always looking for new efficiencies and, as a result, he believes it has positively affected and influenced our appropriations bill.
For the Good of the Order
Ted Gladden said last week he and staff met with the Government Operations Subcommittee of the House Appropriations Committee. The purpose of the meeting was the funding of the indigent defense commission. They wanted to know if we could come up with a way to fund the commission that would allow the Senate cuts of 2.3 million to be kept in place. Because there was no fiscal note, Jim Ganje, Susan Sisk and Ted came up with a proposal to get the system in place without having to find any new money. The cost of the commission was reduced by more than $300,000 by staggering the starting dates of personnel and eliminating one investigator position. Mr. Gladden said this was possible in part due to the good efforts and support received from the trial bench. Part of the commission funding is with the $200,000 in additional projected revenues from the criminal case administrative fee being assessed. There are also additional turnback dollars that were not previously identified that will also go to fund the commission. It was his thought that we are gaining momentum getting SB 2027 passed.
In response to a question from Chief Justice VandeWalle concerning the status of the bill on the juvenile coordinator position, Mike Sandal said it has been passed out of both committees and signed by the governor.
The next meeting will be April 2, 2005. Meeting adjourned.