Present: Chief Justice Gerald W. VandeWalle, Chair Judge Donovan Foughty (phone) Judge John Greenwood Judge William Herauf Justice Mary Muehlen Maring Judge Steven McCullough Judge William McLees Judge Bruce Romanick Judge Michael Sturdevant for Judge Laurie Fontaine
Absent: Judge Gail Hagerty Judge Lawrence Jahnke Judge Frank Racek
Staff: Sally Holewa
Others Present: Merylee Castellanos Chris Iverson Carolyn Probst Donna Wunderlich Don Wolf Larry Zubke
Minutes: Renee Barnaby
Chief Justice Gerald VandeWalle called the meeting to order and welcomed the new members.
He noted that Tracy Peters has been appointed to replace Maureen Holman as the Bar Member,
but she was unable to attend the meeting.
Minutes It was moved by Judge Herauf, seconded by Justice Maring, to approve the August 31, 2012
minutes.The motion carried.
Clerk’s Response to Warrants Sally Holewa said an issue has been raised regarding how clerks handle situations where a person
appears at the clerk’s office requesting assistance and the clerk becomes aware there is an
outstanding warrant for that person. In some offices, clerks are actively checking for outstanding
warrants and in other instances, they are not. Ms. Holewa said it is important to develop
statewide protocol so these situations are being handled consistently throughout the state.
Whatever policy is adopted needs to balance a citizen’s right to access the courts with the clerk’s
duty as an officer of the court.
Judge Herauf suggested the clerk could notify law enforcement that there is an active warrant.
Judge McLees noted there may be some security concerns with notifying the sheriff when the
clerk is the only person in the office. Justice Maring questioned whether the notification shows
up in the Odyssey system. Judge Romanick responded they are flagged but it is not always
It was the consensus of the Council to have Ms. Holewa and Jim Ganje to prepare a draft policy
for the Council’s review.
Proposed Changes to Policy 505 Sally Holewa explained that this past legislative session, the definition of child support was
amended to clarify that if a child is living in the household with someone who is receiving
spousal support, then spousal support should be treated the same as child support. Draft language
has been added to section 8 of Policy 505 to reflect the change.
Chief Justice VandeWalle questioned the language in section 8. He said it states that if the
permanent order provides that spousal support only is to be paid, it should be treated as any other
civil order unless there is specific language in the order of the court indicating the case is to be
enforced by the child support order. In those cases where only spousal support has been ordered,
he wondered if the state disbursement unit would collect it. If they do not, then the language
should be changed.
Justice Maring also noted that section 9 needs to be amended. She said the statutory cite listed in
the policy is outdated. The new statute says child support will continue until there is an adoption.
The new adoption act is N.D.C.C. § 14-15-19 and the statute that refers to continuation of child
support is N.D.C.C. § 14-09-08.21.
Ms. Holewa stated another concern with the policy is that the reference to how child support is
collected and enforced is not current.
It was the consensus of the Council to have Ms. Holewa and Jim Ganje redraft the policy for the
Reporting to the National Instant Criminal Background Check Sally Holewa referred the Council to Jim Ganje’s memo. In July of 2011, the legislature required
the court to make findings in certain proceedings if federal firearms prohibitions apply to the
subject of the proceeding. She said one of the questions is when do we start reporting them and
whether we report them retroactively. She noted we are still waiting for certification from BCI.
BCI indicated they want the data sent electronically. Larry Zubke added that although it has been
some time since he has received an update from BCI, they have been exchanging data with their
IT department as they are building their system.
Chief Justice VandeWalle stated that ordinarily those findings made after the effective date would
be reported and those made prior to that time would not be reported. However, if we do need to
go back, the question is how far.
Judge McCullough said it would be a tremendous effort and the cost of having to report
retroactively would be fairly large.
Judge Greenwood noted a couple other issues that are unresolved. He said the Trial Court
Operations Committee is working on forms for mental health, and it is unclear what has to be
reported. He said most judges agree it applies to mental health, but there are some differences of
opinion among the judges as to whether it applies to chemical dependency. The Committee is
working on developing forms for an order coming out of a preliminary hearing and the committee
is divided on whether it the statute applied to preliminary commitment too. Another issue is if it
has to be a separate order or if it can be in the order of commitment.
Chris Iverson said according to Jim Ganje’s memo, the FBI requires the party name, sex, date of
birth and social security number, however, we do not have a standard report that captures all of
that information. IT would need to create such a report and a process to flag the cases where that
finding is made. She said the User Group determined it may be easiest to trigger a report off of a
specific event, but then that may require two separate orders.
Larry Zubke said he envisioned that an event would be created specific to this and we would
trigger off the party record instead of a form so it would not have to be reentered. He suggested
also adding a prompt asking for the date of birth or social security number and if nothing is
entered, they will not be able to save the record.
Justice Maring inquired if the trial courts have been making the finding that this federal disability
provision applies. Judge McCullough responded it depends on the case and the court. In Fargo,
on mental health cases, they always do on treatment hearings. They have not been done on
guardianships and conservatorships because they rely on the parties to submit the findings. Judge
Greenwood and Judge Romanick also indicated they have been doing them on guardianships.
Ms. Holewa says the North Dakota statute states it would become effective when the attorney
general certifies to the secretary of state, the Office of Management and Budget, and the
Legislative Council that the state has received a grant and has implemented the software system
to carry out the requirements.
Judge Greenwood noted there seems to be a consensus it applies to chemical dependency but is
unsure a consensus will be reached on the question of application to preliminary hearings.
Judge McCullough recalled Judge Racek did a memo on this issue and will send it to the Council
It was the consensus of the Council to have Sally Holewa ask for an attorney general’s opinion as
to how the law should be implemented.
Drug Court Participation and the New DUI Law Requirements Judge Romanick said the new DUI law that was passed makes it sound like someone could be
sentenced into drug court instead of being accepted. In the past, the drug courts have used best
practices in adopting procedures. Those procedures call for people to apply for the program and
begin treatment in a relatively close proximity to the time of the offense. Under the previous law,
people could apply for drug court and serve 10 days of a 60 day or 180 day sentence and then
complete the drug court program. Because of last minute negotiations during the session, this
language was left off in the drafting process. He said Judge Hagerty indicated that she has been
working to the Alternatives to Incarceration Committee to resolve the issue.
Sally Holewa stated that the Interim Judiciary Committee has been assigned to look into this and
they are meeting on December 11. In addition, Judge Hagerty sent Ms. Holewa a letter
questioning whether the judges across the state are ordering people into the program. Judges
Romanick, McCullough and McLees indicated it is not happening in their districts. Judge
McCullough noted some states have a drug court docket and a drug court judge. We do not have
the resources to have anything like that.
Ms. Holewa said she understood from Jim Ganje that the law is still permissive because it
changed from shall to may.
Ms. Holewa questioned the need for an adult drug court rule similar to the one that was adopted
for juvenile drug court. She said the adult drug court has been operating as a separate entity
without any real grounding in court rule. It might be helpful so that when the Drug Court
Advisory Committee makes decisions or sets policy, there is some basis to go back and enforce it.
Chief Justice VandeWalle noted the adult drug court was driven by the Department of
Corrections while the juvenile drug was driven by the court.. He asked for input from the judges
who work with the adult drug court.
Judge McCullough noted that the two courts operate quite differently. The amount of resources
available on the adult side is more minimal than on the juvenile side so he is uncertain whether
we could just adjust the juvenile rule.
It was the consensus of the Council to form a workgroup consisting of the adult drug court judges
and Jim Ganje. Chief Justice VandeWalle indicated he would like to see something to Jim from
the judges that sit on the adult drug court.
Justice Maring stated on the juvenile side, there is a memorandum of understanding that the
juvenile court directors came to with the Attorney General’s Office on who the 24/7 program is
going to apply to and specifically the juveniles that are already in drug court. She questioned
whether legislation should be proposed so that this memorandum of understanding is incorporated
into the legislation.
In response to a question from Chief Justice VandeWalle asking if the memorandum of
understanding amends the legislation, Justice Maring responded it does. They are not following
the legislation, otherwise we would have kids standing in line with adult offenders and would
have them incarcerated if they fail a drug test which would violate our federal grant provisions.
It was suggested that Jim Ganje review the memorandum of understanding and the statute and
draft an amendment for the Juvenile Policy Board to review. It was also suggested that Marilyn
Moe be included to ensure the procedures are understood.
Funding for Public Administrators Sally Holewa stated legislation was passed which provides for assumption of the costs for public
administrators/guardians for indigent persons. The legislation also directs counties to provide
matching funds to support these services. If the county does not participate, they will be
responsible for funding their own public administrator. Ms. Holewa explained the colored map in
the meeting materials shows five of the counties in the Southeast District, two counties in the
Northeast District, and one county from the South Central District are indecisive. Aaron Birst
met with the county commissioners, auditor and state’s attorney in those counties and informed
them if they did not sign the agreement, they would be responsible for payment of their own
public administrators. The funds are being administered by the North Dakota Association of
Counties through a program they have named PASS.
Ms. Holewa said a workgroup chaired by Judge Feland has been formed and will be developing
new guardianship standards. She indicated one of her concerns is the number of cases the
guardians are carrying. She said for example there are four public administrators in the Southeast
District working on 168 public guardianships. Chief Justice VandeWalle also noted one of the
problems with the standards is that our state does not have speciality guardianship probate courts.
Report on PEW Conference on Sentencing and Corrections Reform Judge Romanick, Chief Justice VandeWalle, and Sally Holewa attended a conference sponsored
by the PEW Charitable Trusts on sentencing and corrections reform. The focus of the conference
was the reallocation of Corrections dollars from funding incarceration to funding community-based treatment programs.
Sally Holewa said the Department of Corrections would like to make state dollars available to
local jails to create an incentive for them to bring treatment programs into the jails. By doing
this, defendants would no longer be serving “dead time” when they are in a pre-trial detention or
have been sentenced to serve time. Ms. Holewa said the use of a pre-bail assessment tool was
also discussed. This would give the criminal history and a risk assessment could be part of the
pre-plea process. The Alternatives to Incarceration Committee will be asked to consider the ideas
discussed at the conference.
Judge Greenwood said with regard to the people who are sentenced to local jails, it would be
helpful if something would be included about work release. Most people value their job and
when jails have such restrictive policies, it makes it difficult for judges to sentence people.
Chief Justice VandeWalle stated that having reentry courts would solve some of the issues,
however, not only do they take a lot of material resources, but human resources as well.
Justice Maring noted another concern that needs to be addressed is the lack of addiction
counselors for treatment. Ms. Holewa stated that is one of the items that will be discussed at the
next Alternatives to Incarceration meeting. They are touring four different treatment facilities.
Judge Romanick noted one of the ideas through the PEW is to do what they call a quick dip. This
gives the authority to probation officers to place a probationer into custody for a certain period of
time, usually a few days.
Judge McLees noted methamphetamine is on the rise in his unit, not only the manufacturing side,
but also the use.
Driving Under Suspension Judge Romanick stated his unit has developed a form to handle the new provisions for Driving
Under Suspension. They advise the defendant at their initial appearance that if they can provide
proof that their license has been reinstated, the charges will be dismissed. Notice is also sent to
the state’s attorney.
Judge McLees noted the state’s attorney’s office in Ward County has been doing this for quite
Election of Council Representative on Personnel Policy Board Sally Holewa said Judge Lisa McEvers is currently serving as the judge representative on the
Personnel Policy Board and her term will expire in December 2013. She is eligible for
Judge McCullough nominated Judge McEvers. No other nominations were received. The
motion carried. Even though she is a finalist to fill the Supreme Court judgeship vacancy, it was
decided to go through with the reappointment.
Rural Law Clerk Program Sally Holewa explained that when Judge Hagerty was the chair of the Bar Association she
worked with the law school to come up with the Rural Law Clerk program. The program is
intended to expose law students to the benefits and challenges of practicing in rural areas of the
state. Under the program, we can hire three rural law clerks per year to work summer clerkships
in communities of less than 15,000. The clerks will be paid $16.67 per hour. To help determine
the locations where the clerks are positioned, judges in the eligible communities can submit a
letter of interest. For the first year, the chief has appointed a small committee consisting of Ms.
Holewa, Judge Hagerty, and Dean Rand or her designee to make the decision on where to place
the internships for the summer.
The Chief asked staff to schedule four Administrative Council meetings in 2014.