Chief Justice Gerald W. VandeWalle, Chair
Judge Karen K. Braaten
Judge Lee Christofferson for Judge M. Richard Geiger
Judge Donovan Foughty
Judge John Greenwood
Judge Gail Hagerty
Judge John Irby for Judge Georgia Dawson
Judge David Nelson for Judge William McLees
Justice Carol Ronning Kapsner for Justice Daniel Crothers
Judge Allan Schmalenberger
Judge Robert Wefald
Justice Daniel Crothers
Judge M. Richard Geiger
Judge William McLees
Judge John T. Paulson
Lee Ann Barnhardt
Chief Justice Gerald VandeWalle called the meeting to order at 2:00 p.m. and drew the Council's attention to the minutes of the May 23, 2006 meeting. It was noted on page four, paragraph one, the word "vote" should be changed to "speak without permission." It was moved by Judge Wefald, seconded by Jim Hill, to approve the minutes, as corrected. The motion carried.
Proposed Budget for 2007-09
Susan Sisk stated the proposed district court budget for the 2007-09 biennium is $55.7 million, which is a 12% increase over the current biennium or a $6.1 million increase. She further explained the increases in the budget by line item.
Under the salaries and wages line item, there is a $2.7 million increase. The increase is made up of the proposed judges salary increase of 6% and 7% and other salary increases of $1.1 million, which includes the cost of dropping Steps B and A from our current compensation plan, if it is approved by the court. If it is not approved, Ms. Sisk will drop it out of the budget. The other increase in this line item is for the five new positions approved by the Council earlier this year, which includes 2 clerk positions in Rolette County, .5 for the director of finance position, .5 for the referee position and 1 juvenile court officer in the South Central, and 1 law clerk in the Northwest.
Under operating line items, juvenile services are increased by $248,000, which includes the $100,000 for potential loss of federal JABG funds. Some new programs included are for Robocuff, a pilot program in Burleigh County for drug screening, and Native American programs in the Northeast and Northeast Central. The increase to our current juvenile programs such as tracking and restorative justice is $80,000 or a 12% increase. Some other operating line items include $549,000 for court improvement and $258,000 for drug courts in Minot and Williston.
The largest operating increase is in technology at $1.6 million. The bulk of the increase is for UCIS enhancement. During the current biennium, a consultant was hired to review the UCIS system. The consultant recommended we use a product called LANSA, which will take the code for UCIS, rewrite it, and make it web-based or pc-based to address some of the limitations of our system. Other increases under IT include monthly operating costs for the enhanced records management system, an increase in maintenance contracts, and also a wireless project.
Within the capital assets line item, which are routine replacements of copiers, workstations, courtroom sound systems, digital audio recording systems and servers, the total increase is $273,000.
Kurt Schmidt stated with regard to the UCIS enhancement, the National Center has been hired to look at the current system. Meetings were held across the state with clerks, court administrators, and judges to determine what was needed for a case management system. A request for information was sent out and eight vendors responded. Prices ranged between $4 million and $12 million for system replacement or approximately $1.5 million for a rewrite of the current system.
Judge Irby asked if there will be some type of synopsis report available from the consultant. Mr. Schmidt responded the final report from the National Center is due December 15.
In response to a question concerning the enhanced records management project, Ms. Sisk said we do have money in the budget to expand the project. Mr. Schmidt added we will run out of time before we run out of money. It is estimated one county will be set up per month in the 07-09 biennium.
It was moved by Judge Wefald, seconded by Judge Braaten, to approve the budget. The motion carried.
Steps B and A
The Personnel Policy Board recommended the court eliminate Steps B and A from the court's salary structure. The funds are available, which is not the concern. The issue is the compression that will result when the steps are eliminated. New hires will be paid the same as employees that have been with the court for two years at a minimum.
Mike Sandal made a suggestion to the Chief, which had not been reviewed by the Personnel Policy Board. He suggested eliminating Step B and keeping Step A as the probationary period step for at least two years. It would not eliminate the compression problem, but it would help it. Mr. Sandal further explained if we allowed Step A to remain and used it as a probationary level, new employees would be hired at that lower level. After six months of employment, they would then be eligible under the policy for a probationary increase to the next step, which is Step 1. If we did not maintain Step A as a probationary step, the situation would be such that new employees would start at Step 1. Mr. Sandal also added that by maintaining a probationary level for two years, it will allow all of the employees on Step 1 to move to Step 2 and then we will not have the situation, at least for new hires, where new employees will jump over long-term employees by virtue of the probationary increases.
Chief Justice VandeWalle said our personnel system is based on longevity, so when new employees are paid more than long-term employees, it is contradictory to the theory of the system.
Judge Nelson inquired why long-term employees are not at a higher step. Ms. Holewa responded when we moved into the new compensation system, we were unable to fully fund the plan so the employees went to the next salary step that was closest to what they were making before.
Justice Kapsner said even though the Personnel Policy Board has not considered the recent recommendation made by Mr. Sandal, they did recognize that compression was a concern and recognized this as a function of trying to bring our pay scales in line with market. A lot of this happened because people were underpaid by so much and large groups of people made big jumps all at once regardless of longevity. There is really no way of eliminating that without changing our system entirely.
Rod Olson agreed with Justice Kapsner and said everybody realizes there is a compression issue, but unless we get rid of the sub-steps, we are just delaying what is going to happen four years from now.
Mike Sandal said under the proposal, every employee who is currently employed by the court would go to Step 1 and new employees would be hired at Step A, which would be the probationary level, and then after six months would go to Step 1.
Judge Christofferson suggested any employee who is currently on probation should not advance to Step 1 and should remain on Step A.
It was moved by Judge Wefald, seconded by Judge Hagerty, to eliminate Step B for all current employees effective November 1, payable December 1, and eliminate Step A for all but current probationary employees, effective November 1, payable December 1, and to retain Step A for a period of two years as a probationary step for new hires. After further discussion, the motion carried.
Proposed Policy - Court Improvement Project Committee
The policy was drafted by Louie Hentzen and brought back to the Council for review.
Judge Christofferson stated he has no objection to Sections 2, 3 and 4, but Section 1 does not address the purpose of the Court Improvement Project pursuant to federal statute. There are four basic criteria for court improvement federal funds. Lee Ann Barnhardt has proposed language from the federal law that will address it correctly. It was moved by Judge Christofferson, seconded by Jim Hill, to send the policy back to staff for a Section 1 rewrite. The motion carried.
Policy 510, Committee on Caseflow Management
At the May 2006 meeting, the Council directed the proposed amendments to Policy 510 be circulated for comment. Most of the comments suggested adding a representative from the clerk of court's office to the committee.
Judge Schmalenberger agreed that having one clerk on the committee would be a good resource.
With regard to the number of public defender members, Sally Holewa suggested the two members be appointed by the Director of the Indigent Defense Commission.
It was moved by Judge Schmalenberger, seconded by Justice Kapsner, to amend item 6 under Committee Membership to read, "two public defenders appointed by the Executive Director of the Indigent Defense Commission." The motion carried.
It was moved by Judge Braaten, seconded by Judge Schmalenberger, to add one district court clerk to the committee makeup. The motion carried.
It was moved by Justice Kapsner, seconded by Judge Schmalenberger, to amend the Terms of Service paragraph to read: "All members except the assistant state court administrator for trial courts and the court administrators from each unit shall serve for a period of three years... "
Judge Greenwood suggested the exception be included in the second sentence rather than the first sentence.
With the consent of the second, the motion was modified to add the suggested language to the second sentence, rather than the first, to read as follows: "Except for the assistant state court administrator for trial court and the court administrator for each unit, a member may not serve more than three consecutive terms." The motion carried.
It was moved by Judge Schmalenberger, seconded by Judge Braaten, to approve Policy 510, as amended. The motion carried.
Policy 519, CLE and Association Membership for District Court Law Clerks
At the May 2006 meeting, the Council directed the proposed policy for Continuing Legal Education (CLE) and Association Membership for a District Court Law Clerk be circulated for comment. One comment was received suggesting the last sentence of the first paragraph be eliminated.
It was moved by Judge Wefald, seconded by Jim Hill, to approve the policy as drafted. The motion carried.
Repeal of Judicial Branch Policy 502
Sally Holewa suggested with the creation of the Indigent Defense Commission, Policy 502, Indigent Defense Contract Administration, be repealed.
It was moved by Judge Schmalenberger, seconded by Judge Wefald, to repeal Policy 502. The motion carried.
Chief Justice VandeWalle asked the Council for comments on the working relationship with the Indigent Defense Commission.
Judge Schmalenberger said before the Commission opened an office in Dickinson, they contracted with attorneys out of Bismarck, which created a lot of scheduling problems. Since they have opened the office in Dickinson, those problems have gone away and it seems to be working quite smoothly.
Rod Olson commented that when conflicts that have arisen, they have been handled quickly.
Judge Nelson said they have had two problems. With regard to municipal court appeals, problems arise when cases are transferred to the district court and the parties demand a lawyer. The questions arise over which court has jurisdiction and who is responsible for providing counsel.
Judge Schmalenberger suggested that according to the statute, it be sent back to the city attorney for determination of indigency and appointment of counsel.
Chief Justice VandeWalle commented that the problem is not with the Commission, it is with the city.
Judge Nelson said the second issue is with regard to the 96-hour hearings. The indigent defense attorneys working on juvenile cases will not appear until they have been appointed. Applications are not completed until right before the hearing. He suggested the paperwork needs to be completed beforehand.
Judge Christofferson stated the juvenile court's best practices manual advises an attorney not be assigned for shelter care hearings.
Judge Nelson said when lawyers were present at the hearing, the hearing was short because the parties had reached an agreement as to how to proceed. When you do not have lawyers, the hearing takes an hour to an hour and a half because we have probable cause and testimony.
Judge Christofferson suggested juvenile court call the public defenders office when they are scheduling a hearing and tell them to have an attorney present at the hearing.
Chief Justice VandeWalle asked Ms. Holewa to take the issues back to the Juvenile Policy Board for discussion.
Judge Schmalenberger said interactive television has been installed in various courthouses throughout the state and has been used for initial appearances with the detention center. They recently had a defendant at the State Pen who wanted to plead guilty but a video system was not available at the Pen. He spoke with Warren Emmer and he said if the judges are interested in using ITV at the Pen, they would try to set it up. It was the consensus of the Council that there is an interest and Judge Wefald will contact Mr. Schuetzle.
Sally Holewa said on September 11, a fiscal note was submitted regarding the family initiative put forth by Mitch Sanderson. Three areas of the initiated measure would have a significant impact on the judiciary. The first concern is if parents cannot reach an agreement, the court would be required to facilitate production of a parenting agreement. The second concern is if the parents cannot agree to joint physical custody and visitation, the court would be required to make a finding of fitness. The third concern is the court would be required to make a finding of the actual costs for the basic needs of the child if the parents cannot agree on child support. As far as the court-facilitated production of a parenting plan, the plan she put together would establish court-annexed mediation with 11 full-time mediators throughout the state with five support staff. There were no questions from the legislature when the fiscal note was presented.
Susan Sisk stated if Measure 3 passes in November, the budget will be amended by $2 million with 16 additional FTEs.
With regard to credit cards, Ms. Sisk said they will be piloted in Burleigh County on September 14 and should be operational in all state-employed counties by the end of the year.
The next meeting is October 24, 2006.