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
Judge John T. Paulson
Justice Dale V. Sandstrom
Judge Allan Schmalenberger
Judge Robert Wefald
Chief Justice Gerald VandeWalle welcomed everyone to the meeting and introduced Rod Olson, the new Court Administrator for Unit 2. The first item on the agenda was the approval of the minutes of the May 23, 2005 meeting. It was moved by Judge Wefald, seconded by Jim Hill, to approve the minutes of the May 23, 2005 meeting, as corrected.
License Suspension Forms
Discussion then focused on the issue of license suspension notices as part of the child support process. Legislation was passed to allow the suspension of various licenses of obligors for nonpayment of support.
Ted Gladden said he spoke with Mike Schwindt and the State IV-D Office will make it a priority to make the computer changes soon. Kurt Schmidt will work with Child Support on amending their system to allow the clerk, rather than the obligor, to notice the IV-D offices when obligors have requested a hearing regarding a license suspension. The clerk would enter the information into FACSES so it would automatically notice the appropriate IV-D office of the time and date for the scheduled hearing. In the meantime, the clerk will send notice to the IV-D office of the date and time for the license revocation proceeding.
Account Receivable Committee Report
Judge Braaten explained the accounts receivable subcommittee was appointed to address a process of enforcing the collection of fines, fees and costs owed to the state and the role of the court and state's attorneys in that process. The subcommittee consisted of state’s attorneys, clerks of court, state court administrative office staff, trial court administrators, clerks of court, and Judges Schmalenberger and Braaten. It was the consensus of the subcommittee that collection efforts for accounts receivable be court driven. Because the state’s attorneys have a statutory duty to prosecute all actions for the recovery of debts, fines, and penalties, the subcommittee revised and expanded the current ledger card procedures specifying when the state's attorney would be involved. For order to show cause hearings, the state’s attorney will be notified of the hearing for collecting fees and fines. Through UCIS, the clerk is able to track and manage accounts receivable and other conditions imposed in the sentence. Amendments to UCIS will need to be made to accommodate the new procedures. Judge Braaten then reviewed the changes with the Council.
Judge Geiger stated under the section entitled, When a Debt is Uncollectible, on page 7, the wording is confusing. He suggested option 2 should be followed by “a, b, and c” because all three conditions need to be met in order to deem a debt uncollectible under option 2.
Chief Justice VandeWalle thanked Judge Braaten and the other subcommittee members for their efforts.
It was moved by Judge Braaten, seconded by Judge Geiger, to approve the ledger card procedures with the correction on page 7 on the renumbering under the subtitle "When a Debt is Uncollectible.”
Chief Justice VandeWalle suggested that the proposed procedures should be sent to the state’s attorneys for comment as well as within the judiciary.
There being no further discussion, the motion carried.
Policy on Draft Computers for Judges, Staff and in the Courtroom
Ted Gladden provided an overview of the draft policy. He explained the State Court Administrator’s Office has become more involved in the acquisition and replacement of computers to be sure of the numbers and to monitor licensing responsibilities. The proposal attempts to meet the needs of the individual judges and court personnel and provide an overall framework for the judiciary. The policy states that each judge and employee will get either a citrix box, PC or laptop based on their individual needs and replacement will be according to the approved replacement cycle. Either a citrix box or a PC will be put in the courtroom based again on the organizational needs. Laptops will not be provided on the bench.
Judge Hagerty indicated that the PC in the courtroom would not meet that needs of realtime because when using realtime, you save to your laptop. She said a judge could be in a different courtroom on the same case with the same court reporter and you would want to be able to access it. She questioned why judges should not have that latitude.
Judge Braaten said in Grand Forks most, if not all, of the judges have laptops. They have a docking station in their office and a docking station in the courtroom. A laptop can be undocked from the office and attached in the courtroom and they are saving realtime on it. This policy does not allow for that. If you are in a courtroom doing realtime, you have to actually sign out and close down realtime to undock to go into your office to work. There is not enough time to do that during short breaks.
Ted Gladden commented the intent of the policy is to develop a structured way on how to proceed so we do not make decisions 42 different ways. We need to provide some sort of order on how we acquire and replace PCs so we can establish a budget while still supporting the needs of the judges and other personnel.
In response to a question from Judge Paulson on how close the judiciary is to a wireless system, Kurt Schmidt responded he has experimented with wireless and it is problematic. Someone accessing our wireless connection is not only stealing a network connection, but also a secure network connection behind the state's firewall so the security risk is high. Another problem is because the courthouses are typically older, solid brick and cement-type buildings, the penetration of the signal is minimal at best. To cover the clerk’s office and the courtroom in Williston alone, we would have needed four wireless devices, which would cost approximately $1,500 per device compared to a docking station, which runs about $100. The direction is to wireless, but it has a ways to go until the signal gets strong enough where you can get more coverage from a single access point and security will have to tie into that as well.
Judge Wefald commented that there are judges who need them both, are very efficient using both, and believes it should be determined on a case-by-case basis. Under section 2, on page 1, he suggests adding the word "fulltime" after the word “each” in the first sentence. At the end of the paragraph, he suggests adding a sentence that a district judge with a demonstrated need may have both a desktop computer and a laptop.
Judge Braaten said her major concern with the policy is who makes the ultimate determination. Should the unit administrator initially be making a determination of what the judge should have? Ted Gladden responded there are a least two places in the policy mentioning collaboration between the judges and the administrator. The policy never envisioned that the decision be done unilaterally by an administrator.
Sally Holewa said she does not interpret the reference to unit administrators as making a decision for the judge. She reads it to mean the unit administrator will fill out the paperwork. However, she believes there should be a framework for discussion. When you sit down with a judge to decide what he or she needs, there should be a common framework to work from and that is what Mr. Gladden is asking the Council to do.
Justice Sandstrom commented that docking stations can work well in some ways but not all computers and laptops use the same docking stations. If you have computers that are not the same and if you have judges that use the same courtroom, a docking station may be meaningless because docking stations have to line up with a specific laptop.
Judge Paulson moved the adoption of the policy. The motion died for a lack of a second.
Chief Justice VandeWalle stated he understood the concerns with regard to this specific policy. In the alternative, with no policy in place, it puts the court administrator, as well as the chief justice in a tough situation.
It was moved by Judge Foughty, seconded by Judge Wefald, to refer the matter to the Court Technology Committee to come up with a recommendation on a policy. There being no further discussion, the motion carried.
Realtime Reporting Committee Report
Judge Braaten referred the Council to the report from the realtime committee. The committee consisted of judges, state court administrative office staff, a unit administrator, and two court reporters. The committee's responsibility was to address issues relating to our trial courts providing realtime reporting. The consensus of the committee was there is a need for realtime reporting and subsequently developed a plan. The recommendation of the committee is a court reporter that attains and maintains their realtime certification and who regularly provides realtime reporting services would receive the equivalent of a one-step pay increase. Starting out, the judiciary is going to be very limited in providing realtime services until we attract more reporters within the system to get their certification. One reporter is currently certified by the National Court Reporters Association (NCRA) and at least three others are actively pursing certification. Realtime reporting services will be available for judges whose reporter is certified through the NCRA, and it would be used for trial and evidentiary hearings as determined appropriate by that judge. If a judge's reporter does not have the certification and finds a necessity exists for realtime on a particular case, then that judge can put in a request to the presiding judge(s) in his or her respective unit for a realtime reporter. If there is no certified realtime reporter within the respective unit, then the request will be forwarded to the presiding judge of another unit within the state who has a certified realtime reporter. Eventually, if the presiding judge has determined that there is no certified realtime reporter available, then a freelance reporter could be hired. If a freelance reporter is hired, the costs are to be borne by the litigant or the court if the defendant is indigent. Judge Braaten further explained the committee is recommending that if attorneys want to hook into realtime, they would pay a technical fee to the state in an amount to be determined by the state court administrator.
In response to a question from Chief Justice VandeWalle on whether the certification was good for life, Mike Sandal responded that in looking through the materials of the subcommittee, he did not see anything specifically addressing recertification requirements. He said the committee felt strongly that certification be an initial requirement. Because of the complexity, you need to maintain a certain amount of practice to be proficient. If a reporter is certified and does not maintain the practice, the judge will be able to see immediately that the performance is not there.
Mr. Gladden encouraged the Council to look at something more measurable in terms of maintaining the skill level. There should be some way to determine an ongoing level of proficiency to maintain whatever extra compensation you are going to provide them.
Judge Braaten said if the reporter works that hard to get the skill, they would want to maintain it. They will be offering their realtime services not just to their judge, but also to all judges in the unit or the entire state. If the reporter does not maintain their skills, the judges are going to know it.
Chief Justice VandeWalle said the word “regularly” is ambiguous. Judge Geiger suggested it be described as the equivalent to doing it frequently enough to maintain their skill level.
Chief Justice VandeWalle stated that due to the nature of the policy, the committee’s recommendation be sent to the Personnel Policy Board to review the pay issue.
It was moved by Judge Braaten, seconded by Judge Dawson, that the recommendations of the realtime committee be approved, subject to approval of the step increase by the Personnel Policy Board, and with the following sentence added to the Recommendation under Compensation and Certification of Realtime Reporter, on page 2 of the report, “Regularly provides realtime means realtime is used frequently enough by the reporter so that the reporter maintains his or her proficiency.”
Jim Ganje drew the Council’s attention to page 3. He said under the Recommendation, there is reference to realtime reporting in an ADA situation. In the closing paragraph, reference is made to the cost of the realtime reporter being paid by the litigant. If realtime reporting is considered a reasonable accommodation under ADA, you cannot make a litigant pay for it.
Judge Braaten and Judge Dawson agreed to amended the motion to include an ADA exception at the end of the Recommendation under the Availability of Realtime Reporter Services section, on page 3 of the report. There being no further discussion, the motion carried with Judge Paulson dissenting.
Proposed Policy on Expungement of Records
Jim Ganje referred the Council to the memorandum from the chair of the Committee on Trial Court Operations regarding the proposed policy on expungement. Section 2 of the proposal defines expungement as the removal and destruction of all court recording information except the non-identifying statistical information be retained so the existence of a case would be known for statistical purposes.
Section 3 identifies the three circumstances for expungement. The exception is with respect to bankruptcy. NDCC § 28-20-30 requires the clerk to expunge judgment record information upon the filing of a certified copy of the discharge in bankruptcy pertaining to the judgment. The problem is if you apply the definition in Section 2 and erase every evidence of the judgment from the system, then there is no information that reflects the existence of preexisting liens resulting from the judgment. He said the committee discussed how to balance the statute’s apparent blanket requirement of expungement with the recognition that information from certain preexisting liens needs to be available. The committee decided judgment record information must be marked “expunged and satisfied” upon the filing of a certified copy of a discharge. There may be a need to pursue a legislative solution to change the statute to suggest that upon the filing of a certified copy of the discharge in bankruptcy, the court will send a certified copy of the judgment to the county recorder and then expunge all information obtained by the clerk’s office. Section 4 provides that a court order directing expungement is confidential and must be destroyed immediately following expungement of the record information.
Sally Holewa mentioned a concern with regard to Section 4. She said in order to protect the clerks, there should be some type of proof that a file was ordered expunged. Mr. Ganje responded that all electronically stored information concerning the court order must be removed except for general, non-identifying information, which would state, for example, Civil No XXX was expunged on date XXX pursuant to court order.
Judge Dawson suggested the order be sealed rather than expunged. Jim responded that under the proposal policy, the court would need to dispose of the file, and if you seal the court record, then we would have to maintain that file somewhere. Chris Bleuenstein suggested that instead of maintaining the order in the file, perhaps it could be maintained in the miscellaneous file so it would be easier to find.
Kurt Schmidt said right now the only way to expunge a record from UCIS is to delete the entire case. Pending the outcome of this policy draft, Kurt suggested removing all identifying information and interested parties and leaving the date, the offense, the disposition, and the case number.
It was moved by Judge Hagerty, seconded by Judge Paulson, to refer the proposed policy back to the Trial Court Operations Committee to consider the suggested comments and redraft Section 4. There being no further discussion, the motion carried.
Update on Indigent Defense Commission
Jim Ganje informed the Council that the new indigent defense commission met for the first time in August and again in September. They had a late start because the legislative and gubernatorial appointments were not made on time. The governor still has one appointment to make. Statute requires that one of the gubernatorial appointments be from a county of less than 10,000 people. The members of the commission are as follows: Rep. Duane DeKrey, Jonal Holt Uglem, Joseph Maichel, Bruce D. Quick, Thomas R. Ribb, and Sen. Thomas L. Trenbeath. They are currently in the process of interviewing applicants for the executive director position.
Louie Hentzen reported the Children and Family Services Reviews have been completed in every region and received very good scores. Another audit will be done in 2007. He said Lee Ann Barnhardt has been hired as the Education & Special Projects Coordinator. As well as being the education coordinator for judicial branch education, she is also the special projects coordinator, which includes the Court Improvement Project and risk management. Ms. Barnhardt and Louie are in the process of meeting with each individual classification of employees and their associations to develop a long-range professional development plan. They are currently working with the court administrators to develop the necessary steps for them to complete their Institute for Court Management Fellowships as well as identifying other staff members to participate in the Court Management Program. Trial court personnel will also be finishing their work plans to identify the consistencies and inconsistencies in each of their units. Status reports for each unit are included in the meeting materials. He asked the administrators to highlight some of the information in their reports.
Chris Bleuenstein reported things have developed well in Unit 1 over the past year. They have developed an indigent defense work plan, record retention work plan, and caseflow management. Upon completion, the plans will be taken to the unit wide clerk and juvenile meetings and then to the unit’s administrative committee meetings for review.
He reported the unit does have some problems with communication. To help minimize some of the issues, they are developing an electronic newsletter. In addition, for the past four or five months, Chris has been meeting with Presiding Judges Geiger and Braaten to discuss weekly issues and to relay the information to the others judges. They are having a judges retreat on October 13 and 14 in Devils Lake. Dick Gross, from Bismarck, will be the facilitator.
Rod Olson reported that strides are being taken in Unit 2 to increase efficiencies in the area of consolidation of two distinctly different districts. One identified area of change is the implementation of a unit wide request for leave form. They are also currently in the process of forming a caseflow management committee. Judges will be included on the committee as well as clerk of court staff. They will begin holding meetings in November.
Sally Holewa said Unit 3 is working on an initiative with the State Disbursement Unit to develop a child support audit for use in the clerk’s office. They have developed a Likert scale that will score the clerk’s offices on how well they are meeting the standards for processing child support cases. The first audit will be in October, and it is hoped they will have all 20 done by spring.
They are also working on a unit wide bailiff training. The training will cover basic issues such as proper courtroom attire, courtroom duties, materials that are allowed/not allowed in the jury room, etc.
Dixie Knoebel reported the Unit 4 judges are meeting once a month. They have been doing a lot of work with the county commissions, both in Williams County and Ward County, on a facilities project and more recently on a courthouse security project in Minot. The Ward County Commission requested an ad hoc committee be formed to study what can be done to protect the public and employees of the courthouse. Of particular concern is the need to secure the front entrance as well as other security measures.
A consultant has provided Unit 4 with a draft report on caseflow management procedures, which will assist the district in developing a plan for the future. They also started a caseflow management committee and it will be meeting on a monthly basis. The Ward County Clerk’s Office is undergoing reorganization, which is expected to be in place by the end of November 2005.
Mr. Hentzen stated he has been in contact with the National Center for State Courts and the National Judicial College concerning a course entitled, Strengthening the Executive Component of the Courts. It is designed to offer an educational opportunity for presiding judges and court administrators to better understand each other’s roles and responsibilities and how those roles relate to organizational effectiveness. Because North Dakota has a number of new court administrators, he feels this program would be helpful to them as well as the presiding judges. They are developing curriculum for the program and it will be held in the spring of 2006.
Report on Collections
Susan Sisk referred the Council to a worksheet showing revenues collected by the district court for the 2003-05 biennium. The total amount collected was $18,990,813, which is an increase over the previous biennium by $4,441,938. This is primarily due to the new criminal court administrative fee and the indigent defense/facility fee. Without these two fees, collections would have increased 3% over the prior biennium. She reviewed the figures with the Council.
Ms. Sisk next referred the Council to the worksheet estimating the collection rate of the indigent defense/facility fee since inception. It is estimated that 79% of the fee is being collected. She is in the process of calculating estimates of collection rates for all revenue collected and will be providing that to the Council at a future meeting.
Ted Gladden circulated a report of the Court Facilities Improvement and Maintenance Fund. The report summarizes the second round of activities that occurred in July and identifies the total amount of monies disbursed in the counties. The requests for funds were in excess of the funds available. Many requests were for magnetometers and sound systems. Because we are obligated to maintain the sound systems and to lessen some of the pressure on the funds, Mr. Gladden suggested the counties apply to the Supreme Court on an individual basis and request reimbursement. It is discretionary on the part of the Supreme Court, but up to this point, the Court has approved those at 50% sharing rate. According to legislation, the first $750,000 collected in a biennium flows to indigent defense, and the next $460,000 goes into the courthouse improvement funding. Anything above that is distributed equally between the funds so there will not be another cycle for a while.
Mr. Gladden reported we are collaborating with South Dakota to conduct another Court Management Program. Judge Hagerty suggested county funded clerks be allowed to apply. Ted responded that up until this point, we have only provided it for our personnel. County funded clerks could attend but it would be a county expense. Judge Paulson suggested the program be set up as a train-the-trainer type program. Chief Justice VandeWalle added that part of the value of this program is the cross-pollination with South Dakota.
Louie Hentzen stated there is an education and training opportunity for the core competencies sponsored by the National Association for Court Management. The long-range professional development curriculum takes approximately two to three years. It would be given to state funded as well as county funded clerks at their yearly conference. It will provide them with exposure to the principals and management needs necessary to understand their roles.
Chief Justice VandeWalle announced it was Ted Gladden’s last meeting in his official capacity as state court administrator. There will be a formal recognition for him at the fall Judicial Conference. He thanked Ted for everything he has done for the judiciary. A around of applause from the members of the Council followed.
The next meeting is scheduled for October 28, 2005.