Chief Justice Gerald W. VandeWalle, Chair
Justice Daniel Crothers
Judge Donovan Foughty
Judge John Greenwood
Judge Gail Hagerty
Judge William McLees
Judge Sonja Clapp for Judge Joel Medd
Judge John Paulson
Judge David Reich for Judge Gail Hagerty
Judge Allan Schmalenberger
Judge Georgia Dawson
Judge Laurie Fontaine
Judge Gail Hagerty
Judge Joel Medd
Judge Robert Wefald
Chief Justice Gerald VandeWalle called the meeting to order at 10:00 a.m. It was moved by
Judge Foughty, seconded by Jim Hill, to approve the May 23, 2007 minutes. After
typographical changes were noted, the minutes were approved as amended.
Professional Development and Education Policy
Sally Holewa said that at the last meeting, the Council directed the draft policy on Professional Development and Education for District Court Judges be circulated for comment. The draft policy establishes guidelines for out-of-state and out-of-country travel for educational purposes. One comment was received.
It was moved by Judge Paulson, seconded by Jim Hill, to adopt the policy as drafted. The
Children and Family Services Review
Louie Hentzen announced the federal Child and Family Service Review (CFSR) for North Dakota is scheduled for April 2008. The Department of Human Services (DHS) will do a pre-CFSR review with all the state reviewers before the federal review in April. The Chief Justice will be appointing three judicial referees from the review sites to participate in the reviews. The largest populated county in the state is required to be involved, that being Cass County.
As part of the protocol, Judge Bill Jones, a retired judge from North Carolina, was assigned to North Dakota. He was required to visit with the Chief Justice and the presiding judge of the largest district which will be drawn from. Chief Justice VandeWalle extended the invitation to Judges Hagerty, McLees, and Medd, the presiding judges of the sites likely to be involved. Judge Jones spoke about his role in the process and also explained the importance of the collaboration efforts and role of the courts in the child welfare cases.
After the meeting, Mr. Hentzen spoke with Judge Jones and, based on the data he received from North Dakota, he will most likely be recommending or commenting on the following: (1) asking DHS to look into the number of re-entry of foster care cases as there seems to be multiple placements; (2) implementing a review hearing process every six months after disposition before permanency is granted with an administrative review hearing somewhere in between that period; and (3) commenting on the number of continuances on cases. He also mentioned that because the cases are heard by referees, he may comment that the North Dakota judges do not appear to be as involved in child welfare cases as some of the other states which have dedicated juvenile court judges.
Chief Justice VandeWalle reminded the Council that the reports receive a lot of national attention so it would be in our best interest to make improvements where we can. With regard to the comment about judge involvement, sometimes people forget we are multi-tasked judges so it is hard for them to understand that we do not have assigned judges to just hear juvenile court cases. He suspects that Judge Jones and the federal folks are concerned because of the double step wherein we have a referee making a decision that can be reviewed by a district judge, which delays the placement or termination.
Mr. Hentzen said in the 2008 audit, they are going to pull 65 cases from the state. In 2001, they pulled 50 cases. Forty to 50% of those cases will be pulled from Cass County, and the remaining will be split between the other two sites. He said the criteria in 2001 was 90% compliance, and we were at 83.7%. A program improvement plan was developed for the eight DHS regions. For the 2008 audit, the percentage of compliance has been raised to 95%. If we fail the audit, we will again be put on a program improvement plan.
Policies 301 & 302
At the last meeting, staff was directed to draft proposed changes to Policies 301 and 302. The proposed changes are before the Council for consideration. It was moved by Judge Paulson, seconded by Judge McLees, to adopt the changes to Policies 301 and 302. The motion carried.
Policy 521, Sealed and Expunged Court Record Information
Sally Holewa noted that at the last meeting, the Council adopted Policy 521 as an emergency measure, subject to comment, so it could go into effect on August 1. The policy was sent out for comment, and the comments are before the Council for consideration.
A comment was received from Kay Braget stating the policy allows us to keep the case type and date of filing and disposition for statistical purposes. She suggested the case number should also be retained so that if a question arises, at least there is a reference point.
Ms. Holewa added essentially what the clerks would like to do is retain a file jacket that has a case number and the order expunging the record in it so if any questions would arise, there is something in the file.
Justice Crothers stated that identifying the record by case number would be in violation of the language under Section 2.
Ms. Holewa said Kurt Schmidt also sent in comments. The first comment was actually raised by Susan Sisk. From a fiscal standpoint, she is requesting the receipt data not be expunged. A solution might be to set up an electronic file listing the receipt numbers without identifying the case or who the money came from.
Judge Greenwood asked if there was a way to separate the name from the case number whereby the name could be expunged but the case number would not.
Ms. Holewa said essentially what would happen is the computer program would remove the case title and the word "expunged" would be inserted in its place. An example would be "Expunged vs. Expunged" or "In re Expunged."
Donna Fair added under the current system, if you delete a receipt and need to go back and prove to the auditors how much money was collected on a given day, the reports would no longer coincide with the money deposited in the bank. If you substitute the word "expunged" in the case title, perhaps the receipt could still refer to the case number but no identifying information would remain in the case.
Ms. Holewa stated Mr. Schmidt's comment had to do with using the word "sealed." Right now on our electronic records, we do not have any way to designate a file as sealed or to actually seal them. The files are treated like restricted files. Ms. Holewa said perhaps we can build a code for sealed and build an access level that would make sealed records accessible to one person, possibly the IT Director. If, at some point, the sealed record had to be accessed or updated, the IT Director would be the only person with enough security clearance to go in and actually reinstate the record so someone could open it and look at it.
Ms. Holewa said Mr. Schmidt's last comment was in regard to what we keep for an electronic record. He questioned if there should be some indication in the electronic record that there was an order sealing the file. He suggested if all case activity is removed, perhaps the final disposition could be left with an order sealing the case.
Judge Clapp suggested when a case is expunged, a new case number be assigned and state "expunged 2007." That way it can still be tracked, but it would not contain the original case number.
Chief Justice VandeWalle asked Ms. Holewa to relay the information to Jim Ganje for his input and to contact the State Auditor's Office for their input as well.
Motor Vehicle Title
Sally Holewa said she received a request from one of the districts on how to handle motor vehicle transfer requests.
Judge Schmalenberger suggested the proper procedure would be file a civil action by serving a Summons and Complaint.
Judge McLees had his law clerk research the issue, and she came to the conclusion that we do not have any statutory authority to issue these orders.
Justice Crothers suggested this is a declaratory judge issue.
Judge Paulson said the problem is the vehicles usually are not worth the cost to file the action.
It was suggested that the Department of Motor Vehicle has the statutory authority to determine their own criteria for resolving title issues but they have refused to develop them. Furthermore, without authority to hear their cases, judicial immunity does not protect a judge from suit if a disgruntled party files an action.
It was moved by Judge McLees, seconded by Judge Schmalenberger, that the court has no statutory authority to issue orders transferring motor vehicle titles outside of a civil proceeding. The motion carried with one opposition.
Sally Holewa will be in contact with the Department of Motor Vehicle.
Judge Schmalenberger said a procedure is now in place to access a defendant at certain sites through the Department of Corrections using interactive video so the defendant does not have to be transported. He drafted a notice and consent form for the defendant and suggested it be sent to the Trial Court Operations Committee for review.
Donna Fair said she had taken Judge Schmalenberger's draft notice and consent form to the South Central District judges meeting, and the judges suggested that instead of "In witness whereof, I sign my name this __ day of _____, 20__" it be changed to read, "Dated this __ day of _________, 20__."
Judge Clapp stated she served on a committee with Judge Medd wherein the committee followed Rule 52 to develop different forms and protocols for handling the types of situations. She will forward a copy of the policies, procedures and forms to all judges for their information.
Judge Foughty said this past May, he attended a National Consortium on Racial and Ethnic Fairness in the Court. At the next meeting, he intends to present an outline on what other states have done with regard to reports on commissions and racial and ethnic fairness within the judicial system.
Chief Justice VandeWalle introduced guest Robin Huseby from the Indigent Defense Commission. Ms. Huseby said she and her deputy, Jean Delaney, are making an effort to visit all district judges in the next two months to talk one-on-one about issues or concerns they may have. She said overall, things seem to running well.
In October, the Commission will be approving eligibility standards, which have been disbursed to the judges through the court administrators. Ms. Huseby believes the new standards are more clear on some of the issues. The Commission is also adopting a fast-track provision to automatically qualify those people that are on TANF, SSI, or assistance for the elderly.
Ms. Huseby stated one thing that is not addressed in the new guidelines is recoupment. They are looking at the possibility of presenting legislation at the next legislative session that would clean up the recoupment statutes to not only simplify, but also allow some uniformity for recoupment around the state.
With regard to accepted caseload, the National Advisory Commission recommends that a full-time defender take no more than 150 felonies or 400 misdemeanors or 25 appeals per year. Some of the contractors have triple what a full-time person is supposed to have. The number one problem in North Dakota with indigent defense is finding attorneys to do the job. Because the defense bar is getting more gray, the Commission is looking into the possibility of having interns in the public defender offices to encourage younger people to get involved in indigent defense.
The Commission recently updated its website. Attorneys are now able to report their hours online, which is very helpful in collecting statistics.
Judge Schmalenberger thanked Ms. Huseby for taking on indigent defense and also for taking on the project of reviewing the recoupment statute. He is hopeful that a solution will be reached.
Ms. Huseby said one of the things the Commission is considering is developing a presumed amount based on case type and then the defendant can ask for a hearing if he or she does not believe it to be the correct amount.
Chief Justice VandeWalle announced he made another appointment to the Indigent Defense Commission. Joe Maichel, who chaired the Commission, is stepping down and will be replaced by Jeremy Davis.
Chief Justice VandeWalle said one of the concerns on the appellate level is the delay. Often times when a case is appealed, a new attorney is assigned to the case and the new attorney submits a request for continuance. He feels obligated to grant the extension of time to allow the new attorney to become familiar with the record. He asked Ms. Huseby if the Commission is moving to an appellate division whereby it will be automatic that a different attorney will be assigned on appeal.
Ms. Huseby responded she recognizes it is a problem, and the Commission is looking into it. She said ideally the Commission would like to have an appellate division, but it would required more FTEs.
Chief Justice VandeWalle said he has received very few complaints from the trial courts. The only complaint he received came out of Williston and involved the juvenile court. Ms. Huseby said she is aware of the issue.
There being no further business, the meeting adjourned.