Dave Maring, on behalf of Jim Hill
Chief Justice Gerald VandeWalle called the meeting to order at 10:05 a.m. and welcomed Justice Maring Muehlen Maring as a guest. He also noted Dave Maring was appearing on behalf of SBAND Representative, Jim Hill.
The February 24, 2006 meeting minutes were approved as submitted.
Proposed Administrative Order re Court Improvement Project
Chief Justice VandeWalle referred the Council to the next item on the agenda, the proposed administrative order to add the Court Improvement Project as a committee reporting to the Administrative Council. Louie Hentzen said the Court Improvement Project is an ad hoc committee originally formed by funds available through the federal government to enhance court operations with regard to child welfare issues. It started as a lay guardian ad litem project in Cass County, and it has spread throughout the state. Originally, it was an eight-person committee made up mostly of judicial employees and judges. Currently, the committee has more than 25 members, comprised mostly of social service and human service representatives. The committee is co-chaired by Judge Sonja Clapp and Paul Ronningen.
After some brief discussion, it was the consensus of the Council to have Justice Sandstrom and Mr. Hentzen work together to put the rule in proper form.
In response to a question from Judge Schmalenberger asking how this committee relates to the
Juvenile Policy Board, Chief Justice VandeWalle stated there is some overlap but the Juvenile
Policy Board does not have any of the representatives from the health and human services. Any
changes in the laws or recommendations would still go through Juvenile Policy Board.
Judge Hagerty commented that perhaps parentheses could be used in the title of the committee so it is not so misleading.
Budget Timelines and Education/Out-of-State Travel Guidelines
Susan Sisk reminded the Council we are in the process of preparing the budget for the 2007-09 biennium. The Council will review the budget at the September meeting. The final budget needs to be submitted to the Legislature on November 15, 2006.
Ms. Sisk then referred the Council to an attachment regarding the budget for out-of-state educational opportunities. She explained that in the past, we have budgeted for two trips per biennium per judge; one trip per biennium for referees, court administrators, trial court managers, directors of juvenile court, and clerks of court; and one trip every other biennium for juvenile court officers. She said $2,200 was budgeted per unit for out-of-state trips.
Judge Geiger stated there needs to be some clarification as it relates to the national associations.
Sally Holewa said two questions have come up: 1) if you are traveling to an annual convention or conference as a member of a national committee, does it count as your educational trip; and 2) if you are on a national committee, who pays for that and who decides if someone can stay on the committee.
Judge Foughty suggested all requests be forwarded to the chief justice for approval.
Chief Justice VandeWalle said if you get into the leadership of a committee, it is a four or five year process. Anyone who takes on a leadership position should be aware of that, and if you are unwilling to spend some of your own money, you ought to reconsider. The educational trips can be budgeted as Ms. Sisk has suggested, but the others are very difficult because they are ad hoc.
Judge Braaten suggested an application process be developed for all judicial employees wherein the applications would be submitted to the Chief for approval. She believes it would be beneficial for North Dakota to have people from the state involved in national organizations.
Judge Hagerty suggested the application request the following information: what it is being requested, how it would benefit the state, how long you would be involved, and what, if anything, you are paying out of pocket.
Susan Sisk agreed with Judge Foughty's suggestion of budgeting for one additional trip per biennium for each district so the funds are available. She added the ABA trip is the only one that has been paid out of District 8, which is a miscellaneous file. All other trips are paid out of the unit.
Sally Holewa inquired of the Council if the judiciary should start budgeting for committees.
Judge Braaten suggested that perhaps it should fall under continuing legal education.
Chief Justice VandeWalle commented is not a good idea to go to the legislature with a lot of travel.
It was the consensus of the Council to use an application process and the decision would be based on two parts: 1) whether it is a worthwhile program, and 2) if there are funds available.
Attorney General's Opinion on Open Meeting Laws
The next agenda item was the Attorney General's opinion on open meeting laws. The item was put on the agenda for discussion purposes.
Justice Maring said this topic would be on the agenda at the June Judicial Conference. Because Judicial Conference was created by the Legislature, four standing committees are affected by the AG's opinion.
Judge Hagerty recalled the Judicial Conference Executive Committee discussed repealing the legislation but decided against it.
Judge Paulson suggested designating an area for guests and visitors and inquired if there was a process for removing disruptive people. Chief Justice VandeWalle responded when there is a problem, the local law enforcement authorities are alerted, and either the sheriff or the committee chairs should be advising guests that they are not entitled to vote.
Judge Braaten questioned whether unit administrative meetings and judges meetings are exempt. Chief Justice VandeWalle is of the opinion that if it is a committee created by the court, the court can make it exempt.
It was the consensus of the Council that unless a confidential matter is being discussed, court committee meetings should be left open.
Term Limits on Committees and Boards
Chief Justice VandeWalle explained the amendments to Sec. 8.2 of the N.D.R.Proc.R. and rules governing other committees establishing term limits for all committees. The intent of the amendments is that no member should serve more than three consecutive terms and no member who has served three consecutive terms should be reappointed until after a six-year break in service. The court decided if there were going to be term limits for some committees and boards, it should be across the board.
Louie Hentzen inquired if the amendment includes representatives from agencies other than the
court who are members on our committees. Chief Justice VandeWalle responded we cannot
require other agencies to appoint and it is only at their pleasure that they do. He said we might
run into some issues in the future when we want an expert on a committee from another
department/agency, and that department/agency only has one person.
Proposed Policy on CLEs for Law Clerks
Chief Justice VandeWalle said the number of law clerks has grown in the district courts giving rise to the question on what policy should be used in the district courts with regard to CLEs. In an attempt to bring about some uniformity between the supreme and district courts, a policy has been proposed. The policy proposes the court will pay the CLE fee and associated travel costs for law clerks to attend two CLE programs (the SBAND Annual Meeting and the Bench & Bar Seminar or Fundamental Series) per 12-month employment contract. At the discretion of the law clerk's supervisor, a similar CLE may be substituted as long as it is not an out-of-state CLE. The supreme court has a law clerk manual containing the proposed policy as well as the dos and don'ts for all law clerks. He suggested the districts develop a law clerk manual so they are not dealing with issues on an ad hoc basis.
It was moved by Judge Dawson, seconded by Judge McLees, to adopt the policy as proposed. After some brief discussion, the motion carried.
Presentence Investigations in Felony Cases
Sally Holewa said the Department of Corrections and Rehabilitation (DOCR) has suggested they would like to see more presentence investigations (PSIs) in felony cases. They have also suggested that perhaps the Legislature should mandate PSIs in more, if not in all cases. Sally attempted an email survey of the district judges requesting information on the use of PSIs and only eight judges responded. Judge Racek also collected some statistical data. The number one issue is the time that it takes to get the PSIs, and the second issue is the PSIs we are getting do not give any new or additional information.
Judge Schmalenberger suggested that perhaps DOCR should speak with the state's attorneys because they prepare the plea agreements and present them to the court.
Judge Wefald suggested PSIs contain too much information that is already in the file.
Judge Braaten said she generally orders PSIs on all felony cases. She finds them very helpful, particularly the information on the criminal background, i.e. alcohol and chemical issues and psychiatric issues. She said the probation officers who supervise these people also find the information helpful.
Judge McLees stated that most of the criminal record history, particularly in out-of-state dispositions, is not very definite or very accurate.
Judge Foughty commented it would be nice if PSIs contained the complaint and judgment information because many times the record itself is not very informative.
Judge Dawson mentioned she met with Sheree Spears of the National Alliance on Mental Illness about finding appropriate placement for mentally ill offenders. Ms. Spears is heading the development of a trial program in Fargo and has applied for a grant. Chief Justice VandeWalle said the program is two-fold; one of them is a diversion by the law enforcement before the offenders ever get to court, and the other part would involve the judges diverting them into some other program other than incarceration.
Wrapping, Storing and Destroying Election Ballots
Louie Hentzen said the trial court administrative personnel (TCAP) raised the issue relating to the lack of storage space, etc. of the election ballots in the courthouses. Proposed changes to the statutes were included in the meeting materials.
Rod Olson said Cass County does not have enough room for on-site storage so we are paying a company to store files. One-half of the storage is used for ballots and we are paying for it.
Chief Justice VandeWalle suggested talking to Secretary of State Al Jaeger before making any changes. The Chief understands the cost issue but is uneasy about the proposal as written particularly if no one has contacted Mr. Jaeger.
Jim Ganje explained these are the statutes that were left behind as part of the clerk of court legislation enacted several years ago separating court-related duties from non-court related duties. The original legislation presumptively named the county recorder to take over non-court related duties unless the county commission designated someone else. To avoid dictating who the county would use to store these ballots, the draft legislation was left as general as possible.
Chief Justice VandeWalle commented that with the advent of new voting machines, there might not be as many ballots as we have had and, in the future, the paper may be very limited.
Mr. Olson said the ballots are kept for 22 months or every federal election.
Justice Sandstrom pointed out that in the past, the election recounts were conducted by district judges. While at the time the clerk's office was the logical place for the ballots, it no longer makes sense to continue the practice. The integrity of the ballots in contested cases may still be an issue.
Mr. Ganje commented our record retention schedule dictates the period the ballots are retained,
Dixie Knoebel stated it is also a problem in Minot because of space issues in the courthouse.
By consensus, it was agreed to have staff meet with Secretary of State Jaeger to discuss the issue and bring it back to the Council.
FTE Requests for 2007-09 Biennium
The next item on the agenda was FTE requests for the 2007-09 biennium. Sally Holewa said she is recommending the supreme court request 3.5 new positions (1 clerk of court and 1 deputy for Rolette County, .5 Director of Finance, and 1 law clerk for the Northwest Judicial District). She deliberately did not make a recommendation on the referees. Even though they are classified employees, they are doing judicial work and believes it is up to the Council to decide if they should go forward.
Judge Braaten said the statistics used on the chart for the judges were from the 2003-04 weighted caseload study, which is not the most current study. Ms. Holewa apologized for the error.
Judge Wefald suggested the supreme court make the decision with regard to the referees.
After further discussion, it was moved by Judge Schmalenberger, seconded by Judge Geiger, to adopt Ms. Holewa's recommendation requesting 3.5 FTEs and the referee requests be set aside for discussion. Motion carried.
It was moved by Judge Wefald to give one FTE for a juvenile court officer to Bismarck. Chief Justice VandeWalle explained Judge Schmalenberger's motion approved Ms. Holewa's recommendation, which included everything except referees, therefore the motion was declared dead.
It was moved by Judge Wefald, seconded by Judge Geiger, to add a .5 referee for Unit 3.
Judge Wefald said the unit currently has a .5 referee. An additional .5 referee would take care of some duties out in the SWJD.
After some brief discussion, the motion carried.
Policy 510, Committee on Caseflow Management
At the request of Chief Justice VandeWalle, Sally Holewa reviewed the draft amendment to Policy 510, which adds the trial court administrators to the committee makeup.
It was moved by Judge Wefald, seconded by Judge Dawson, to approve the proposed change and distribute the policy for comment.
Judge Schmalenberger suggested Ms. Holewa review the changes to make sure they are in compliance with the rule.
Chris Bleuenstein suggested striking the word "district" from the proposed language.
It was moved by Judge Wefald, seconded by Judge Dawson, to strike the word "district" on item 4. Motion carried. The policy will be distributed for comment.
Court Security Consultant
Sally Holewa informed the Council that the court hired a new court security consultant, Ralph Mowder. He is recently retired from the Bismarck Police Department and will be a great addition to the court.
Chief Justice VandeWalle added that he came highly recommended by Chief Ness from the Bismarck Police Department. Mr. Mowder will be at the June Judicial Conference.
Judge Wefald informed the Council he will be meeting with Terry Steinwand from Game & Fish. It is his hope to come up with proposed legislation wherein the court would send the notice of conviction to Game & Fish and they, in turn, could administratively suspend the licenses.
With regard to the expungement removal bill, Judge Wefald informed the Council that Representative Klemin has drafted the bill. He added Judge Nelson has also suggested a change to part of the legislation dealing with bankruptcy discharges. The draft changes will be brought back at the next meeting.
The next meeting will be on September 13, 2006, at 2:00 p.m., in Bismarck.