Present: Chief Justice Gerald W. VandeWalle, Chair Judge Gail Hagerty Judge Donovan Foughty Judge Jay Schmitz for Judge John Paulson Judge William Herauf Maureen Holman Justice Carol Ronning Kapsner for Justice Daniel Crothers Judge Steven McCullough Judge William McLees Judge Joel Medd Judge Frank Racek
Absent: Judge Sonja Clapp Judge Bruce Romanick
Staff: 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 9:55 a.m.
Minutes It was moved by Judge Hagerty, seconded by Judge Herauf, to approve the May 23, 2011
minutes. Judge McLees noted he was unable to attend the May meeting and requested his name
be removed from the list of attendees. The correction was noted, and the motion carried.
Updated Security Manual Sally Holewa stated the security manual has been reviewed by Ralph Mowder and Louie Hentzen
and is before the Council for some early feedback. It was suggested that a workgroup for be
formed to review the manual. Judge Hagerty said at least one judge and one trial court
administrator be part of the workgroup. After some brief discussion, the Council requested the
workgroup consider the following:
1. Should the clerk of court be part of the local security advisory committees under Section
2. Should duress alarms also be installed in judicial chambers under Section E?
3. Under Section F, should the manual specify who is responsible for preparing the annual
security incident report? Should the manual reference the automated incident reporting forms?
4. Under the court classification section, in addition to the volume of cases filed, should the
classification of courts also take into consideration whether a judge is chambered, and regularly
working in the county?
It was moved by Judge Hagerty, seconded by Judge Herauf, to form a workgroup to review
the security manual and consider the comments made at today’s meeting. Ms. Holewa will
recruit the members of the workgroup, subject to appointment by the Chief Justice. The
District Court Turnback Don Wolf reported the total district court turnback for the 2009-11 biennium is slightly over $4.1
million. The three major items that are part of the turnback are the Odyssey project, salaries and
wages, and juvenile court operating costs.
The Odyssey project accounts for 52% of the total turnback. When the project was formed,
$1.375 million was budgeted for the 2007-09 biennium and $7.258 million for the 2009-11
biennium. Actual project expenditures incurred during the 2007-09 biennium were $1.125
million more than budgeted. This prepayment of project expenditures resulted in the 2009-11
biennium appropriation for the project being reduced by $1.125 million. During the 2009-11
biennium, only $5.7 million out of the $7.2 million appropriation was spent. The final cost of the
Odyssey project was $8.2 million or $436,492 less than the total appropriation of $8,633,129.
The 2009-11 biennium turnback total included the $4,36,492 plus the $1.1 million prepayment
from the previous biennium for a total of just over $1.5 million. In addition, there was a
contingency fund of $600,000 set up for the project reserved for any unexpected costs. This
funding will also be returned to the general fund, which results in a total turnback of $2.1 million
related to the Odyssey project. The other two major turnback items are salary and wages of
$827,000 and juvenile court operating costs of $714,000. If you subtract those three items out
from the $4.1 million turnback, it pushes it down to $716,000, which is less than 1% of the total
Mr. Wolf stated that the $4.1 million turnback accounts to 5.7% of the total appropriation.
However, if you take out the Odyssey project, it pushes it down to under $2 million or 2.7% of
the total appropriation. With the exception of the 05-07 biennium, the adjusted turnback amount
is less than the previous 10 bienniums.
PSI Workgroup Ms. Holewa recalled in November 2010, the Administrative Council appointed a workgroup to
work with the Department of Corrections and Rehabilitation (DOCR) to address concerns about
the length, content, and timeliness of pre-sentence investigations (PSIs). The workgroup
developed a PSI report, which is before the Administrative Council for its consideration. To
make the PSI more concise and to ensure that information included is pertinent, the DOCR will
summarize treatment information rather than attaching reports. If more specific information is
needed, specific directions can be given to DOCR at the time the PSI is ordered. The DOCR uses
the LSI-R risk assessment, which is an instrument used to check for the probability of
reoffending. In the past, the risk assessments have not been very clear or specific. The
workgroup requested the PSI recommendations be tired more specifically to the 10 domains
measured by the risk assessment tool, with emphasis being placed on the top three factors.
Finally, the last piece had to do with timeliness. The number one reason why PSIs are not timely
is because the evaluations are not being completed. To address this, the workgroup recommends
the DOCR notify the court in a timely fashion if an offender is not responding to the contacts.
The workgroup suggested a guideline of 10 days from the date the PSI is ordered. Secondly, at
the time the DOCR makes the initial contact with the offender, the agent should verify that an
appointment for the evaluation has been made and if not, the offender should schedule the
evaluation prior to leaving the agent’s office. If the DOCR has completed the assessment but the
evaluation is not completed by the sentencing, the DOCR should file the report without the
evaluation. This will enable the judge to make the decision to proceed with the information at
hand or wait for the evaluation.
Judge Racek stated the LSI-R (Level of Services Inventory Revised) rates the people in 10
categories and identifies the three greatest needs that have the greatest impact on recidivism. All
the probation offices have people that are trained in giving the LSI-R. They are assessing their
programs to make sure that they follow these evidence-based criteria. However, DOCR will not
commit to evaluating non-contract providers, and they do not feel that they can restrict someone
on where they receive the evaluation under a general order of the court.
Judge Racek said the workgroup also identified other practices that will assist DOCR in
completing PSIs more timely. Rather than waiting for the PSI to be filed, a sentencing date
should be scheduled when a PSI is ordered. If it is not possible to schedule a sentencing date, it
was suggested the district adopt a standard timeline of 30 days for a non-sex offender PSI and 60
days for a sex offender PSI. It was also recommended that the defendant be given a specific date
and time to meet with probation to begin the PSI process. It was suggested the reporting time be
on the same date the plea is entered or within 24 hours.
Judge Foughty stated in his area, it is difficult to know where to go for treatment and to know
whether the treatment is worthwhile. He has spoken with private providers who believe they
comply with the evidenced-based practices but no one will assess them. Judge Racek recognized
that weakness and said DOCR will not commit to certifying non-contract providers.
Judge Hagerty stated they have the same problem with misdemeanors where people are not on
supervised probation. They are getting a number of providers who want to come in and do
treatment but there is no way of verifying if they are valid. It is difficult to decide where to refer
Judge Foughty suggested it is not the evaluation level that is the problem, it is the treatment level.
He stated we have a very poor success rate with minorities in the context of the prison system so
unless you get these evidence-based practices out in other parts of the state where people are
going to have the possibility of success, we are getting back to the same problem we have always
had - - they keep going back to prison.
It was moved by Judge McLees, seconded by Judge Herauf, to approve the
recommendations. The motion carried.
Discuss Clerk of Court and Juvenile Court Personnel Duties Sally Holewa stated as everyone is aware, we have some clerk staff and juvenile staff shortages in
the units. Because it is so difficult to get new FTEs, it was suggested the Council review the
duties currently being performed in the clerk offices and juvenile offices.
With regard to the clerk offices, the first item of review was child support alerts - either
suppressing them or redirecting them. The court system receives approximately a quarter of a
million alerts statewide per year. Our clerks are only responsible for non IV-D alerts, but alerts
are not separated that way so the clerks have to access the FACSES system to find out if a case is
IV-D or non IV-D. Jim Fleming from SDU stated by separating the alerts, he can eliminate at
least half or maybe as high as 70% of them. After analyzing one set of the time sheets for federal
reimbursement, Judge Racek stated we are reimbursed for 66% of our time spent on child
support, which covers 2/3 of our losses. He said about 30% of the non IV-D cases will still be
processed by the clerk offices. Approximately 70% of the cases are IV-D cases. Of those 70%,
we are still going to retain the enforcement of the orders to show cause, the entering of the
employment information, and some other tasks. Currently, about 15 of our 118 clerks work on
child support. If we can reduce 4 to 5 FTEs out of 15, it equates to approximately 1/3 of the
money being lost for which we are not reimbursed. Sally Holewa explained that the legislature
may not look at it quite that way. For example, if we were spending a million dollars for these 4
FTEs and only getting reimbursed 1/4 of that, then we are actually saving 3/4 of a million dollars
by eliminating these positions altogether, using the logic that since those staff are currently not
doing other duties and we are getting by then there is not any need to retain the positions.
Judge Racek said secondly, the clerk spends a great deal of time trying to collect the parties’
information after the judgment has been entered. The information needs to be entered into
FACSES so that regional child support can initiate the child support enforcement orders. An
informational sheet is sent to the parties when the summons is filed, however it is not always
returned. It was suggested that the judge or referee require the information be filed before any
orders or judgments are signed. Maureen Holman offered her support from a practitioner’s
The third item of review is a policy matter in the court system and not a requirement of SDU.
The clerks receive several lists from SDU such as overpayments, files with no current address
information, and children reaching their eighteenth birthday. Judge Racek said after several
discussions with Jim Fleming, he said SDU never intended the clerk offices to work the lists.
They were only provided to the clerk offices in case someone knew of information. With regard
to the eighteenth birthday list, Judge Racek suggested the list be divided into IV-D and non IV-D.
Under the law, the clerks are not required to send those letters out unless the obligee has
Judge Racek stated that SDU is requesting we work together with them to develop better protocol
on how to handle telephone inquiries and the transfer of venue cases.
Judge Racek drew attention an email from Jim Fleming wherein he addresses the issues and sets
forth deadlines. Judge Racek also stated the importance of implementing the plan and reutilizing
the staff before the WAPC study. Ms. Holewa anticipates the WAPC study will be completed by
It was moved by Judge Hagerty, seconded by Judge McLees, to send a letter to Jim Fleming
outlining the changes to clerk alerts on FACSES. Judge Racek and Sally Holewa will draft
the letter for the Chief’s consideration. The motion carried.
Chief Justice VandeWalle said if duties are rearranged, the general fund will have to be increased
to cover the dollar amount. He said that once the funding is gone, the legislature will consider
retaining the positions as actually requesting new FTES. He stated it is important to present a
solid explanation to the legislature so we do not lose the FTEs, although we should not try to
retain them if we can’t justify it.
In response to a question asking who keeps track of the IV-D cases for reimbursement purposes,
Ms. Holewa responded the clerks and referees enter their time quarterly into the software
Judge Racek said with regard to non IV-D cases, when an obligor is delinquent, some of the clerk
offices automatically start the order to show cause process. Pursuant to statute, the court is not
obligated to take any action on a non IV-D case unless the obligee requests the proceeding. Ms.
Holewa stated FACSES is programmed to automatically schedule a hearing when an obligee is
delinquent. The statute changed in 2009 but our process remained the same. Judge Racek
suggested the first time there is a delinquency, the clerk’s office could send a letter to the obligee
informing them of their right to a hearing. If there is no response from the obligee or the obligee
does not want a hearing, the process would not be started. Chief Justice VandeWalle noted the
exception to the rule might be the domestic violence cases. Maureen Holman agreed it can be an
issue, and it is one that give her a little pause because child support is the child’s right and the
parent is entitled to have the money to support that child.
Ms. Holman stated she was in favor of Judge Racek’s suggestion to send out a letter. She said
usually the client is not aware the option is available especially if the case is a few years old. The
letter gives the obligee the power to decide what to do. She suggested it be stated in the letter that
this will be the only notification the obligee will receive regardless of whether there is a
delinquency now or a few years down road. Judge Racek agreed with Ms. Holman’s request and
also suggested information be included in the letter informing them that anyone can sign up for
IV-D services. Judges Herauf and Medd also indicated they were in favor of sending out a letter.
It was moved by Judge Medd, seconded by Judge McCullough, to adopt a policy and
request Judge Racek and Sally Holewa draft a letter for the Council’s review. The motion
Judge Racek said because we have a lot to accomplish right now with the child support issue, he
suggested it would be best to defer the rest of the material until a later meeting.
Filing of Applications for Post-conviction Relief Sally Holewa explained that the Clerk of Court Manual directs clerks to file an application for
post-conviction relief in the existing criminal file and it is not treated as a separate file. At least
one district would like to file these as a separate civil file. Ms. Holewa stated while she had no
preference on the decision the Council makes, it is important to have a unanimous decision on
how to handle the cases because it does affect the weighted caseload.
Judge Racek pointed out that a recent Supreme Court decision stated post-conviction relief
proceedings are civil and not filed as part of the criminal case. Judge McCullough said it is
important to follow the statute and the statute said it is civil. It would be necessary to appear
before the legislature to change the statute. Chief Justice VandeWalle noted the statute states it is
civil because it was a replacement for the writ of habeas corpus and the great writ was always
considered to be civil. Rod Olson said in Odyssey, when a new civil file is opened, the criminal
case is related back to the new civil file.
It was moved by Judge Hagerty, seconded by Judge Racek, that they be filed as a separate
civil action beginning January 1, 2012. The motion carried.
Emergency Policy for State Travel Expense The next item on the agenda was a request to amend the state travel policy to grant exceptions to
in-state lodging. Sally Holewa stated the matter is before the Administrative Council for review
and any requests to amend the policy will be sent to the Supreme Court for consideration. It was
noted that Dion Ulrich does not have an informal policy.
Don Wolf said he spoke with the Office of Management and Budget (OMB), and they have been
granting exceptions to state agencies for the oil country area. He said they are requesting us to
draft a policy and submit it to OMB, and based upon that policy, they will grant an exception to
go above the state rate for lodging. They are requesting the employee make at least three attempts
to locate a hotel that will accept the state rate, take the lowest of the room rates in the city, and
document the information on the travel voucher. Mr. Wolf said the State Water Commission has
a similar policy, and they have a list of about seven cities where they have exemptions. He noted
that Minot was not one of the cities included on the list, however OMB has been granting
exemptions on a case by case basis. A draft amendment to Policy 301 was distributed to the
Council for review.
In response to a question asking how an employee would document the three attempts, Ms.
Holewa responded they should be listed directly on the travel voucher.
Judge McCullough and Rod Olson questioned why it is limited to only a select number of cities
and stated the policy should be a statewide. Ms. Holewa responded it is a matter of showing an
attempt to follow legislation. The legislature knows that what they offer is not usually enough to
cover the actual cost to the employee. Judge Medd suggested the policy be amended to be a
statewide policy and the individual cities be removed. Judge Foughty commented that as soon as
the hotel industry finds out about the policy, they are not going to allow the state rate.
Carolyn Probst stated it would be helpful if employees had a list of places that accept state rate to
go by instead of just cold calling.
It was moved by Judge Foughty, seconded by Jay Schmitz, to adopt the proposed policy and
forward it to the Supreme Court for consideration. The motion carried with Judge
McCullough voting no.
Amendments to AR17 The Joint Procedure Committee received proposed amendments to Administrative Rule 17 to
create a priority for appointments on out-of-district cases. The chair of the Joint Procedure
Committee forwarded the proposed amendments to the Administrative Council for consideration.
Judge McCullough explained the proposal was initially sent to Joint Procedures because he sits
on the committee and they have dealt with administrative rules in the past. He said the proposed
amendments are simply an attempt to try to preserve judicial resources. The amendments will
help maximize the strained judicial resources by prioritizing appointments based on geographical
Chief Justice VandeWalle stated he was unaware of any dissatisfaction and explained the
appointment process. Some districts recuse district wide much more than others do. He said he
tries his best to preserve judicial resources and takes travel into consideration. A very finite
number of judges would constantly be assigned if geography was the only issue. Some districts
have more disqualifications/recusals than others so then it would be the judges closest to them
that would always be the ones assigned. He noted there are several other factors he needs to
consider besides those that are listed.
Judge Racek suggested it is easier if the judges can stay within their unit so the court
administrator can coordinate the court reporters. Chief Justice VandeWalle responded he tries to
stay within a unit but we have one unit who has only one district. He indicated he will discuss the
matter with the court.