Judge Robert Wefald
Lee Ann Barnhardt
Chief Justice Gerald VandeWalle called the meeting to order at 3:30 p.m. It was moved by Judge Medd, seconded by Judge Dawson, to approve the April 2, 2007 minutes. Some typographical changes were noted, and the minutes were approved, as amended.
Training of Electronic Court Recorders
This item was carried over from the April meeting. Sally Holewa said recently there have been several instances where there were problems with the electronic record. Her proposal provides for in-depth training of new employees before entering the courtroom and ongoing training with the more experienced recorders in conjunction with the Court Support Seminar. She noted at the last meeting, it was suggested that the training also be provided to court reporters for transcript preparation.
Ms. Holewa indicated that in order for the training program to work, we need the support and commitment from the judges to give their staff time off to participate in the ongoing training as well as allowing them time off to pair up with the new reporters.
Judge Medd recalled that at the last meeting, Judge Bekken mentioned the need to include the clerks of court in the training. He said, on occasion, the clerks fill in when a court recorder is sick or on vacation.
Ms. Holewa said juvenile court and administrative secretaries also record on occasion. In order to keep staff up to speed, she suggested they regularly stand in for a court recorder so they can remember how to operate the equipment.
Judge Hagerty suggested two levels of training be provided, one for operating the recording equipment and keeping the register, and the other for court reporters and others who will be preparing transcripts.
Ms. Holewa stated we are transitioning out of the analog. The equipment is no longer manufactured, and there is no support or replacement parts for the equipment. We will need to move forward into a full digital system or a standalone digital system.
Judge Fontaine said the standalone digital system in her courtroom is not working well. She also mentioned the importance of having the same system across the state. The standalone system is too noisy, sometimes the cd will not burn, and there are a lot of recording problems.
Judge Schmalenberger said they could not justify buying a server for every courtroom so they are trying the standalone, which has everything all in one computer.
It was moved by Judge Paulson, seconded by Judge Dawson, to adopt the proposal. The motion carried. This will be referred to the Judicial Education Commission for incorporation into the education plan.
Fees, Costs, and Reimbursements
Chief Justice VandeWalle introduced the discussion by reminding the Council that at its April meeting, the Council discussed the issue of local fees. The Council requested staff to prepare a list of the acceptable fees, costs and reimbursements for this meeting.
Sally Holewa explained that some types of fees seem to come up on a recurrent basis, and if there is a particular fee that is not on the list which the Council feels strongly ought to be assessed, then we should seek legislative approval for it.
Through general discussion, it was determined that there were no additional fees the Council
wished to pursue.
Community Service Work Fee
Judge Hagerty provided the background for this new fee. She said funding for community service programs was cut so the programs became the responsibility of the counties. A bill was proposed to put money back into the Department of Corrections budget so that these programs could be funded again. In the last days of the session, it was voted down as it was decided the money had to come from somewhere other than the general fund. Thus, a $50 community service fee was added and the grant could be given to the community service programs.
Chief Justice VandeWalle noted that in reviewing the bill, it does not take precedence to the administrative fee in subsection 2 because a new subsection 3 was added. The new language states, "The community service supervision fee must be deposited in the community service supervision fund The fees deposited must be used to provide community service supervision grants subject to legislative appropriations." He said several years ago, a priority schedule was developed and asked for the Council's input as to where to classify the new fee.
After further discussion, it was moved by Judge Schmalenberger, seconded by Judge Dawson, to include the new community service work fee after item 7, check collection fee, and renumber accordingly. The motion carried.
Policies 301 & 302
Chief Justice VandeWalle said this item was also held over from the April meeting. At the last meeting, the Council discussed whether or not changes to the policies were necessary.
Judge Paulson said in his district, Judge Narum has a state car and is not paid for meals, unless he is traveling elsewhere. He said it seems to work just fine.
Sally Holewa said the question becomes this: if a judge chooses to reside in a non-chambered city because of personal preference, do we then pay them to go to work in their chambered city?
Judge Dawson commented that when a person is appointed to a position, they are aware of where that position is located.
Judge McLees suggested it is time for a change.
After further discussion, Chief Justice VandeWalle directed staff to prepare a draft with proposed changes and bring it back at the next meeting for review.
Professional Development & Education Policy
Chief Justice VandeWalle said the next item on the agenda is a draft policy regarding travel out of the country. Sally Holewa said she drafted the policy to include both out-of-state and out-of-country travel so it was all included under one policy. She deliberately did not include the budget guidelines because they can change each biennium.
Donna Fair asked under the definition of the budget guidelines, does the $600 refer to tuition
costs or overall costs? Ms. Holewa said the budget guidelines were never really clear before
whether they were individual components or the total amount. The consensus has been the total
amount and that is the budget guidelines that Susan Sisk puts out to the administrators. We are
currently at $2,200 for everything, which includes mileage, reimbursement, airlines, and
Chief Justice VandeWalle said subsection B of the proposed policy arose out of the Bar Association trip to Cabo San Lucas. The public perception of sending judges out of the country is that the trip is more about leisure than education. Fortunately, it did not become an issue this legislative session and the judges salary increases were not affected. He suggested changing the first sentence of subsection B, to read as follows: "Any request for travel outside the country must have prior approval by the Chief Justice."
It was moved by Judge Dawson, seconded by Judge Paulson, to adopt the draft policy as amended. The draft policy will be sent out for comment. The motion carried.
N.D. Sup. Ct. Admin. R. 20 - Magistrates
Sally Holewa said she was looking for clarification on two issues related to Rule 20. She said under the Council of Presiding Judges, there was an informal agreement whereby the presiding judge would file the order appointing magistrate with the State Court Administrator's Office. She said she is not sure her office is receiving all of the orders or if they are only being filed when the duties of a magistrate are changed. She asked the Council if the informal agreement should be made into an official policy. Chief Justice VandeWalle suggested it should be a part of the rule as it is too easy to forget.
Ms. Holewa also asked the Council what the practice is when a new presiding judge is elected.
Does a new presiding judge need to re-appoint the magistrates or affirm the prior appointment in
Judge Schmalenberger said it was his understanding that the old order would carry through.
Justice Crothers said that since Section 10 only allows for removal from office upon notice in writing that the presumption is that the order appointing continues even though the judge who made the original order is no longer the presiding judge.
It was moved by Judge Medd, seconded by Judge McLees, that Administrative Rule 20 be amended to include language stating the order appointing the magistrate be filed with the State Court Administrator's Office. The motion carried. Staff was directed to prepare a proposed amendment to be submitted to the Supreme Court for consideration.
The next item was put on the agenda at the request of Judge Medd. Sally Holewa said Judge Kleven asked Judge Medd to raise the question with regard to the criminal judgment forms and UCIS forms in general. She also asked about legal counsel or judges being on the UCIS user group. The UCIS user group has always consulted with Jim Ganje regarding issues of interpretation and statutory requirements, and Mr. Ganje will now staff that group along with Kurt Schmidt.
Since that initial request regarding criminal judgment forms, other issues related to that form have arisen. Judge Paulson suggested amending the criminal judgment forms to include language which would make it easier to charge a contempt of court. He has also suggested adding child support forms. The domestic violence group is suggesting we amend our restraining order and criminal justice forms to include language related to prohibition of firearms. Judge Greenwood suggested that the mental health forms need to be updated as well, although he added that these forms were developed by an inter-agency committee and perhaps would need to be referred back to that group.
Our current practice relating to forms is to appoint an ad hoc committee to work on a particular form and then to adopt it as a statewide form, without a comment period.
Judge McLees said the Criminal Judgment Forms Committee was really informal and consisted of himself, Judges Kleven and Grosz. He said the limitations with UCIS were endless.
Ms. Holewa said Judge Kleven's memo came on the appeal of our reconstituting that group and the criminal judgment form has been updated, which makes her uncomfortable to be amending a state form when no one has had a chance to comment on it. Ms. Holewa suggested that using the Trial Court Operations Committee or some other committee dedicated to the design and review of trial court judge forms would be appropriate.
Judge Medd agreed with Ms. Holewa's suggestion to include it under the Trial Court Operations Committee.
Jim Ganje said the Trial Court Operations Committee under policy is charged with the responsibility of developing forms for use in the courts statewide. He suggested that if the Council directs the Trial Court Operations Committee to take action, that Judge Nelson, chair of the committee, would want to supplement the membership depending on which form they were working on.
Ms. Holewa suggested the Trial Court Operations Committee concentrate on the forms the judges use from the courtroom and not take on all of the forms that are programmed into UCIS, as long as they are not legally deficient.
It was moved by Judge Medd, seconded by Judge McLees, that the task of developing forms be delegated to the Trial Court Operations Committee with the understanding that they will supplement the membership of the committee, as needed, for specific forms. The motion carried.
Jim Ganje said he had reviewed the letter from Mary Dasovick and the current restraining order forms. The forms have carried the Brady advisory for years and he is unclear as to why we would need to change the language.
Judge Fontaine said the protection order just includes the Brady advisory. She said she was part of a team that recently attended a conference on enforcing domestic violence firearms prohibition. Others attending the conference were Judge Kleven, Judge Nelson, Judge Fontaine and Referee Portscheller. She and Judge Kleven agreed to form a committee as a result of that conference to look at writing a draft advisement and presenting it to the judges at the November Judicial Conference. She added that in order to qualify for the grant, the new advisement must be used by January 2008.
Chief Justice VandeWalle said once the committee completes their work, the draft should be sent to the Trial Court Operations Committee and then to the Administrative Council for final approval.
Chief Justice VandeWalle said as he understands it, the language in the Brady advisory is not sufficient. Judge Fontaine confirmed and said the federal prosecutor that was speaking at the conference suggested removing the Brady advisory. However, the prosecutor was focusing on the Federal Firearms Prohibition Act, which is different federal act.
Mr. Ganje said he had the original form approved by the Council of Presiding Judges, and Judge Hagerty indicated it looked different than the form on UCIS.
Ms. Holewa assured the Council that the IT staff does not change the legal substance of the forms.
Judge Hagerty said it is important that all the forms look the same for the benefit of law enforcement officers. She suggested perhaps the forms on UCIS are so basic because of all the checklists.
Ms. Holewa said the domestic abuse forms are a group product coming out of the STOP grant. The group is currently working on the technical modifications so only those conditions that are checked on the draft order will print on the final order.
Chief Justice VandeWalle suggested because of the deadline, the matter be brought before the
Council in the very near future.
Model Contract for Transferring Municipal Court Cases
Jim Ganje proposed changes to the model contract for transferring municipal court cases to reflect current statute and practices. The contract is used to transfer cases when the city elects to transfer some of their ordinance violations to the district court. Mr. Ganje confirmed this contract is separate and apart from the contract transferring jury cases.
It was moved by Justice Crothers, seconded by Judge Schmalenberger, to adopt the amendments to the form. The motion carried.
Clerk of Court Issues
Sally Holewa said at the Clerk of Court Conference this year, performance measures were introduced, and the State Court Administrator's Office will be preforming audits in the near future. She commented that the trial court administrators try hard to keep on top of what is happening in all of the counties, but they are not always able to see problems, especially the smaller counties because they do not get to them very often.
Because the judges visit the counties on a regular basis and work with the actual files, they are in the best position to know if there are issues related to filing, receipting or other similar things. Ms. Holewa asked for the judges help in reporting any problems or inconsistencies so her office can provide the appropriate training.
Chief Justice VandeWalle said he is familiar with a couple of the situations and believes the problems developed because of an inability to understand UCIS. He said the purpose is not to come down on the clerks but to provide them with the help they might not otherwise ask for. He suggested the presiding judges share this request with the judges in their respective districts.
In response to an e-mail request from Judge Mattson, the Council was asked to provide input as to what information should be made available through the public search site.
Sally Holewa said as way of background when the State Court Administrator's Office was developing the public website, they referred to Administrative Rule 41 and the requirement that information be made available electronically. The inclusion of the date of birth and address was questioned. There is nothing that defines this information as private, restricted or confidential, therefore they included it on the website. However, the administrator's office did set this up so these two elements can be turned off quickly. In response to a question, she said some states just include the city and not the street address. She also suggested the option of using the year of birth, but not the actual date.
Judge Medd said this issue was discussed at the Court Technology Committee. At that meeting, Judge David Nelson said he favors continued use of the date of birth to narrow a search to the correct person.
Justice Crothers said it does not appear to be consistent with the court. He feels the birth date and address pose great security concerns to judges and need to be removed. He does not believe Administrative Rule 41 requires all information be made available that is in the files. Remote access does not call for all court records to be available.
Chief Justice VandeWalle said there is nothing that requires that it go on, but who makes the decision whether it goes on or not?
Jim Ganje said Administrative Rule 41 does require it. The rule says the information in the court record is accessible to the public by remote access unless it is prohibited by rule and there is no rule or statute to exempt this information.
Chief Justice VandeWalle suggested the issue be referred to the Court Technology Committee for a recommendation as to how the court should handle this type of data.
It was moved by Judge Schmalenberger, seconded by Justice Crothers, to ask the State Court Administrator's Office to immediately turn off the two components referring to birth date and street address and then refer the issue to the Court Technology Committee for further consideration. It was further moved to have the Court Technology Committee also take into consideration the question of what information on restricted cases should be available through the public search site. The motion carried.
Jim Ganje explained the legislature did not amend all statutes allowing for records to be expunged. For example, effective July 1, there is a statute that will allow a person who is convicted of a felony of failure to pay child support to be taken off of the black list if their conviction is expunged.
Because of these inconsistencies, there is a need to define the terms. The draft policy is needed to define the meaning of "expunged" and "sealed" so court personnel can understand the difference when handling court records. The legislative changes go into effect August 1, 2007.
It was moved by Judge Schmalenberger, seconded by Justice Crothers, to adopt the draft
policy as an emergency measure and send it out for comment. The motion carried with one
person voting no.For the Good of the Order
Jim Hill said the Court Facilities Committee recently voted to not call for a spring round of grants. One of the reasons for delaying the grant cycle is that the county commissions prefer to have a February award date since it fits their budget cycle better. It is expected that the fund will be over a million dollars by the end of the year.
Mr. Hill indicated that we have been through three cycles. There are some counties that have not participated in the program. He asked the judges to encourage the counties who have not been in a cycle to apply. The grants have been very successful in getting county commitment to improving facilities.
Chief Justice VandeWalle said Robin Huseby had asked to appear before the Administrative Council to discuss the issue of standby counsel. He sent her a letter acknowledging that it was a valid issue but suggested the Administrative Council is not the appropriate forum for resolving what might become a future legal issue before the court.
He suggested that we invite Ms. Huseby to a future Administrative Council meeting to discuss