Chief Justice Gerald W. VandeWalle, Chair
Judge Karen K. Braaten
Judge Georgia Dawson
Judge Donovan Foughty
Judge M. Richard Geiger
Judge John Greenwood
Judge Gail Hagerty
Judge William McLees
Justice William Neumann
Judge John T. Paulson
Judge Allan Schmalenberger
Judge Robert Wefald
Accounts Receivable Collections
Ted Gladden provided introductory comments regarding accounts receivable collections. He stated that this is an issue we have struggled with for some time. As was reported to the Council previously, a question was raised at an interim committee meeting of the court’s role in collecting outstanding fines and fees. The committee was informed we do not have a consistent constant practice or process for monitoring or pursuing outstanding accounts. [Chief Justice joined the conference at this point in the meeting]. Mr. Gladden stated we need to take specific action: 1) establish a way to get the old receivables out of the system; and 2) develop a process for moving forward in terms of monitoring monies owed the courts. Susan Sisk will be taking the lead on developing an accounts receivable initiative. Judge Wefald asked if this was in regard to the fees that are owed on orders or if this referred to matters that have been allowed to go to civil judgment. Mr. Gladden clarified this refers to the fees owed the court. It does not include costs that have been converted to civil judgments.
Susan Sisk stated that the issue has been discussed in the past but no policy is in place on the enforcement process, however, our ledger card procedures, approved by the Council of Presiding Judges in June 2001, do address part of the subject. She explained that when referring to ledger card, it means the part of UCIS that tracks the financial history of each defendant. The procedures currently in place tell the clerks how to enter data and track it on UCIS, but as far as the direction that is given to them on enforcement, a couple of things are unclear. The current procedures are set out as follows:
1.If a new fine is imposed, a new payment schedule is created for all the cases so it combines all cases and creates a payment schedule. The payment is made to the oldest account first.
2.If someone defaults, staff are to run an unsatisfied conditions report. For the counties where the clerks are handling the enforcement, UCIS generates an order to show cause or notice of failure to comply. For those counties where the state’s attorney is handling the enforcement, a copy of the ledger card is generated for action by the state’s attorneys office.
3.After the first order to show cause or notice of failure to comply, if the defendant becomes delinquent again, a second order to show cause should be issued. If the defendant fails to comply after the second order to show cause, a bench warrant should be issued for the defendant with no future notice of hearing.
Ms. Sisk explained these procedures are not clear on who should be doing the enforcement. She stated we can have the accounts receivable collections process contained within the judiciary where the clerks would actually do it; we could have the collection enforcement turned over to the state’s attorney which is provided for in the Century Code; or we could have a combination of these two approaches. She referred the Council to the flowchart on the three approaches. The flowchart was not meant to provide detail, just an example of how the approaches would work. At this point, we just need to have an overall agreement on which approach to follow.
Judge Hagerty stated that if what we are aiming for is uniformity, we need to keep it in the court system because the courts do not supervise the state’s attorneys. Since we have part-time state’s attorneys and full-time state’s attorneys and they all have their own procedures, it would work against a uniform procedure. Judge Wefald agreed with Judge Hagerty and also stated it raises a conflict of interest if we have the state’s attorneys essentially working as a collection agent for the courts. The state’s attorneys need to be independent, and the courts do not need to have a legal relationship with the state’s attorneys office collecting money for us. Judge Schmalenberger asked how it would be the court’s money if the money was collected on behalf of the State of North Dakota? Judge Wefald said he is uncomfortable giving the state’s attorneys work to do and feels it would be better to not use the state’s attorneys as collectors for the courts.
Judge Dawson asked if the state’s attorneys in the South Central District convert it to a civil judgment? Judge Wefald responded that clerk personnel convert it to a civil judgment. Judge Dawson stated in their district, the state’s attorney sends a one-page document to the judge to sign off on, however, the document is probably generated by computer, not necessary by a person.
Chief Justice VandeWalle stated this is the same issue we ran into with regard to restitution. There are a lot of similarities between fine collections and restitution and there is no uniformity, statewide.
Judge Geiger stated he appreciated the comments Judge Schmalenberger made about if it is money being collected on behalf of the State of North Dakota, but indicated perception becomes reality and the perception is that this is money owed the courts. The issue is dealing with money owed the courts, and he believes the pubic and legislators see it that way. He further stated we need to be assertive in seeing that what the courts order is recovered as a means of imposing the courts sentence.
Ted Gladden stated that at this point, we have not had any contact with the state’s attorneys on this issue. Judge Paulson commented that since the state’s attorneys have a statutory responsibility, they should be contacted by letter either individually or through their state association to see if they wish to be involved. He further suggested that a working committee be formed to include a state’s attorney from a small, medium and large county so that they are involved in the process. It was his feeling that the state’s attorneys would not want the responsibility even though it is statutorily imposed on them.
Chief Justice VandeWalle stated he agreed with Judge Paulson and suggested Susan Sisk set up working group with representatives from both the full-time and part-time state’s attorneys. He then asked if there was urgency to set up this committee?
Judge Wefald said he did not think we needed a committee of state’s attorneys if we decided not to turn it over to them. Chief Justice VandeWalle responded that we need to follow the statute. If the state’s attorneys are willing to do it, we should let them, however, it was his feeling that the state’s attorneys would not be interested.
Judge Hagerty felt it would bring back the discussions we have had about county and state responsibilities because the state’s attorneys see themselves as working for the counties more than working for the state. She thought they would see the funds as going to the state and would have a low incentive to spend a lot of time or effort trying to collect money that would be going to the state.
Sally Holewa commented that most of the collection effort has to come from the courts. Research will show that early and consistent contact with defendants will be the best way to collect the money. The drawback is that clerks do not have prosecutorial authority so we need to get someone who is authorized by statute to prosecute a contempt or we need to get the statute amended so that clerks could have that authority for that particular purpose. Chief Justice VandeWalle agreed with Ms. Holewa’s comment and stressed that is another reason we should look at a committee to come up with a decision. On one hand, we cannot ignore the statute, and on the other hand, we are probably going to have to collect the money ourselves.
Judge Braaten stated that in Grand Forks, everything is generated through the clerk’s office and the judge issues an order to show cause. As far as the statute is concerned, it says that the state’s attorney shall prosecute these cases. They require the state’s attorney to have someone present when they do a group of orders to show cause for failure to pay fees and fines so they are, in a sense, the prosecuting attorney although the paperwork is generated by the clerk. If it goes to civil judgment, the clerk drafts that paperwork.
Chief Justice VandeWalle stated we do need to look at what is the most likely way we are going to collect the money. He feels that is significant and agrees with Judge Hagerty and those that have said it is going to be the judiciary that does it. He hopes we can reach an agreement with the state’s attorneys that they will go ahead and do it, or we should amend the statute to make it clear that we are going to be doing it and that we have the authority to go ahead and do it.
Judge Schmalenberger moved that a working committee be established involving state’s attorneys to address a procedure for dealing with the accounts receivable collections program, using Grand Forks as an example. Judge Paulson seconded. Chief Justice VandeWalle asked for further discussion. Judge Wefald again reiterated that he thinks this is really the responsibility of the courts and he feels it should be left there. Chief Justice VandeWalle stated we should not ignore the statute. Judge Wefald suggested we bring the defendant in on an order to show cause and ask them why they are not paying, give them a certain period of time to pay, if they do not pay, we convert to a civil judgment and take them off the books. Chief Justice VandeWalle asked then what happens to the civil judgment? Judge Wefald said it would show up on their credit record. Jim Hill asked who the defendant would talk to when they wanted to purchase something and they have the civil judgment against them? Judge Wefald said they would need to go to the clerk and pay it.
Mr. Hill felt there would not be a downside to at least finding out if the state’s attorneys have a thought or an opinion on this because when you bring someone in and cite them for contempt, you have already issued the warrant, and Judge Braaten’s idea of bringing the state’s attorney in at the last moment seems to be a prudent course. If something happens in the courtroom, you have someone to point out the issue. Judge Wefald said in Burleigh County, we are fortunate if a state’s attorney will show up for an initial appearance.
Judge Geiger stated that the defendant is advised they have a right to have an attorney and a right to a judicial hearing. The defendant usually waives all that and they generally acknowledge they have not done what was ordered. He has the defendant explain why they have not, and an appropriate disposition is given. A lot of times a need for a prosecutor does not even come into play because they admit what they have done. If they deny, then we reschedule for another day. The prosecutor is not present at this stage.
Chief Justice VandeWalle asked Mr. Gladden to poll the members. All members were in favor of the motion with the exception of Judge Wefald.
Election of Personnel Policy Board Representative
Chief Justice VandeWalle asked Judge Geiger if he would be interested in serving another term on the Personnel Policy Board. Judge Geiger indicated he was interested. Judge Paulson moved that Judge Geiger be reappointed to the Personnel Policy Board. Jim Hill seconded. There being no further discussion, the motion carried.
There being no further business, the meeting adjourned at 10:30 a.m.