December 14, 2007
Chief Justice Gerald W. VandeWalle, Chair
Justice Daniel Crothers
Judge Georgia Dawson (telephonically)
Judge Laurie Fontaine
Judge Donovan Foughty
Judge John Greenwood
Judge Richard Grosz for Judge John Paulson
Judge William McLees
Judge Joel Medd
Judge David Reich for Judge Gail Hagerty
Judge Allan Schmalenberger
Judge Robert Wefald
Judge Gail Hagerty
Judge John Paulson
Chief Justice Gerald VandeWalle called the meeting to order at 10:00 a.m. He welcomed Judge Grosz, who was sitting in for Judge Paulson. He also introduced Don Wolf, the new Director of Finance. Chief Justice VandeWalle announced he would be leaving the meeting early to attend a funeral and said Judge Schmalenberger would be taking over as chair.
It was moved by Judge Wefald, seconded by Jim Hill, to approve the minutes of the September 14, 2007 meeting. It was noted the minutes should reflect that Judge Hagerty was not present at the September meeting. The minutes were approved as amended.
Policies 301 and 302
Policies 301 and 302 were distributed to the employees for comment. No comments were received on Policy 301 and two comments were received on Policy 302. It was moved by Judge Wefald, seconded by Jim Hill, to adopt Policies 301 and 302. The motion carried.
Policy 521, Sealed and Expunged Court Record Information
At the last meeting, the Council asked Jim Ganje to contact the State Auditor's Office to discuss concerns they might have regarding expunging and sealing court records. Mr. Ganje spoke with Allison Bader, and she said the Auditor's Office would prefer to see the financial information but the identity of the person is not needed.
Mr. Ganje referred the Council to a memo from Sally Holewa wherein she suggests we retain the case number, case type, docket entry indicating the existence of an order expunging the case, name of the judge who ordered the expungement, as well as all financial information associated with the case. She also suggests a case status code of "expunged" be created to electronically replace any party names with the notation "record expunged per court order". Mr. Ganje incorporated Ms. Holewa's suggestions into section 2 of Policy 521 and distributed the draft amendments to the Council for their review.
Chief Justice VandeWalle questioned the meaning of the words "record subject" in the last line of the first paragraph in section 2. Mr. Ganje said "record subject" likely refers to the individual or party who is the subject of the record file. He said "subject of the record" may be an alternative.
Judge Schmalenberger said it is unclear who the record subject is.
Judge Wefald expressed his frustration with the process.
It was moved by Judge Medd, seconded by Judge McLees, to adopt Policy 521 with the amendments.
It was suggested the words "record subject" be changed to "person who is the subject of the record".
Justice Crothers said the language is too narrow and does not take into consideration the fact that names may appear in the record who are not a party to the case, for example in an adoption or divorce case.
With the consent of the second, Judge Medd agreed to the amendment.
The motion carried, with one abstaining.
Administrative Council Representative on Personnel Policy Board
Chief Justice VandeWalle said Judge Geiger's term is up on the Personnel Policy Board, and he is eligible for reappointment by the Council.
It was moved by Judge Wefald, seconded by Jim Hill, to nominate Judge Geiger for another term on the Personnel Policy Board. The motion carried.
Additional Provision for UCIS Criminal Judgment Form
Sally Holewa said Judge Medd contacted her and requested an amendment be made to the criminal judgement form to include the provisions of NDCC § 31-13-03, which deals with DNA. Even though § 31-13-03 already appears in Appendix A, Judge Medd is requesting it be made available on the judgment form because Appendix A is not always used.
Judge Medd further explained Appendix A includes the terms of probation. If defendants are sentenced without probation, Appendix A is not used. The statute provides that every defendant convicted of a felony must be ordered to give a DNA sample.
Ms. Holewa suggested the matter be referred to the Trial Court Operations Committee so the appropriate language may be developed.
It was moved by Judge Schmalenberger, seconded by Justice Crothers, to refer this to the Trial Court Operations Committee to review the mandatory requirements and bring it back to the Council with a proposal. The motion carried.
Minority & Justice Task Force Report
Before leaving the meeting, Chief Justice VandeWalle asked the Council to consider forming a group similar to that of the gender bias task force, if they recommend moving forward with a study on racial and ethnic fairness. He indicated a study would need to be added to the budget and sent to the legislature with an appropriation request. He asked Judge Foughty to lead the discussion.
Judge Foughty said last May, he attended the National Consortium on Racial and Ethnic Fairness in the Court. One of the areas of discussion was the study of minorities within the context of the judicial system. Judge Foughty referred the Council to his report, which was included in the meeting materials. He explained the general context is as follows: exploring the extent to which racial bias exists within the court system; documenting the existence of discriminatory treatment of minority litigants, witnesses, and jurors; and recommending methods to eliminate racial bias in the courts. Judge Foughty said he is in agreement with the Chief's suggestion, and if the Council is interested in forming a task force to review these issues, he suggests the committee makeup be similar to that of the Nebraska committee. The Nebraska Committee was diverse, which provided input from several different areas. He said DHS is interested in becoming involved and has some people researching different aspects.
He further explained there are some unique areas within the context of North Dakota which should be addressed, particularly with the Indian Child Welfare Act. He said he also received another report with regard to assaults against Native American women. It showed they are two and one-half times more likely to be assaulted than any other group. Another recommendation would be to start identifying race within the context of the record so we know who is in the judicial system.
It was moved by Judge Foughty, seconded by Judge Wefald, to request the Supreme Court to establish a task force to preform a study with regard to racial and ethnic fairness issues in the court. The motion carried.
Before leaving the meeting, Chief Justice VandeWalle asked the Council to consider forming a working group with the Association of Counties and Social Services to discuss legislation with regard to public administrators and the aging population. One of the disadvantages of putting public administrators under the courts is the conflict of interest that arises, much like with indigent defense. He asked Judge McLees to lead the discussion.
Judge McLees said Ward County recently had some issues with the public administrator position. Under the statute, the public administrator position is appointed by the presiding judge. The public administrator is to be paid in the same fashion as any other guardian. Because a lot of people do not have the funds to pay for those services, some counties agree to pay over and above a certain amount per month. There is nothing in the statute that requires the county to pay any additional funds to the public administrator. Because of the gap in the statute, he suggested this calls for a legislative solution.
Judge McLees said Ward County currently has a public administrator, appointed by the presiding judge, who receives approximately $1,000 per month from the county.
Judge Wefald said Burleigh County has a non-profit entity called Guardian and Protective Services. This person has an office with three to five staff. His office applies for grants, reviews bank and financial records and sends and receives money on behalf of clients. Sally Holewa added that Burleigh County pays the administrator a substantial amount, and the county spends a large sum of money on guardian and protective services.
Judge Foughty said there is one public administrator for Ramsey and Benson Counties. On top of the 5% the administrator receives from the wards' estates, he earns $50 per month from Benson County and $565 per month from Ramsey County. Besides being a public administrator, he serves as a representative payee for Social Security. Towner County has a public administrator but he does not receive any pay.
Judge Greenwood said Stutsman County has an entity called DKK Guardianship and Conservatorship Inc. They were appointed public administrator by Judge Paulson, but they also serve as guardians in private actions. Their caseload is right around 100 clients. Stutsman County budgets approximately $1,000 annually.*
Rod Olson said Griggs County has a budget of $500. In Cass County, the Department of Social Services serves a guardian for indigents.
Judge Medd said Grand Forks County has a public administrator appointed by the presiding judge. The county pays him $1,079 per month on top of the 5% he receives from the wards' estates. He has a budget of $14,000 for office expenses and travel and has an office in the county office building. Currently, the public administrator does not have any office help but will be receiving some in the near future. Nelson County pays their administrator $400 a year and he also receives funds on a percentage basis.
Judge Fontaine said Cavalier County has a public administrator who was appointed by Judge Fontaine's predecessor, as a county judge. The public administrator has three or four cases per year with minimal salary. Pembina and Walsh Counties do not have a public administrator. She suggested there is going to be a greater need for this position due to the aging population within the state.
Judge Foughty commented that public administrators are all bonded which is a significant issue.
Judge Schmalenberger noted that most of the comments are regarding guardians and conservators, and apparently there is not much need in the area of administrators. He suggested that Social Services should be involved.
Jim Ganje noted that in 1996, there was subcommittee of the Court Services Administration Committee that reviewed the same issue. At that time, there were eight public administrators for 15 counties and the same problems existed then as they do now. The subcommittee drafted legislation that would have made it explicit that funding be provided by the county. The legislation was not pursued because of general opposition among county representatives on the subcommittee to imposing a new cost on counties. Additionally, the proposal came shortly after the 1995 legislative session during which legislation was introduced at the request of OMB which transferred fee revenue from the counties to the state. As a result, he said, there wasn't any interest in putting a new obligation on the counties. He said the subcommittee, as well as the full committee recognized that the issue would probably need to be dealt with at some time in the future.
It was moved by Judge Medd, seconded by Jim Hill, to refer this matter to the Supreme Court to determine whether the issue should be taken up again by the Court Services Administration Committee or a separate group. The motion carried.
The meeting adjourned.
*Contacted after the meeting with the correct amount.