Connie Triplett, Chair
Chair Triplett called the meeting to order at 10:00 a.m. and drew Commission members' attention to the previously distributed minutes of the January 22,1998, meeting. There being no corrections, the minutes were approved as mailed.
Appointed Counsel for Frivolous Appeals
Chair Triplett drew Commission members' attention to Attachment 2 (April 8, 1998) - A letter from Penny Miller regarding an amicus brief on the continued viability of State v. Lewis. The issue at hand, she said, is the requirement established under Lewis that counsel must be appointed for a defendant on an appeal notwithstanding counsel's opinion that the appeal is without merit. She said a brief or any other communication from the Commission on this issue should likely be limited to those areas within the Commission's purview, i.e., issues concerning cost and the burden on contract counsel. Any additional work required of contract counsel in this area, she said, would obviously reduce per hour compensation. Thus, she said, requiring contract counsel to take appeals considered frivolous should be viewed as an unfair burden on contract counsel, who are already burdened. She said if the Supreme Court concludes that the Lewis requirement should continue, then counsel should be appointed from outside the contract and separately compensated to handle appeals determined to be frivolous. Judge Kleven agreed. She said contract counsel have little incentive to work on a frivolous appeal, other than being required by appointment to do it. Leslie Johnson Aldrich also agreed. She said it is difficult enough meeting regular contract demands without having to make a trip to Bismarck or work on briefs for an appeal in which there are no real issues. Pam Hermes observed that responses to the survey would support these conclusions. If, she said, contract counsel sometimes do not file what might be legitimate appeals because of the lack of time or resources, then requiring them to take frivolous appeals only aggravates the situation.
IT WAS MOVED BY MARY HOBERG, SECONDED BY JUDGE KLEVEN, AND CARRIED UNANIMOUSLY THAT THE COMMISSION SUBMIT A POSITION LETTER OUTLINING THE CONCERNS DISCUSSED.
In response to a question from Pam Hermes, staff said he would check with Penny Miller concerning whether a letter, presumably to the Chief Justice, would be a viable alternative to submitting a brief.
Mary Hoberg offered her assistance if something more than the letter is needed. Pam Hermes said she would assist in preparation of the brief if a brief is determined necessary.
Review of Survey Responses
At the request of Chair Triplett, staff briefly summarized the survey responses included as Attachment 4 (April 8, 1998). He noted that survey responses from at least three Grand Forks attorneys stressed the low compensation level for contract counsel in the Grand Forks area as compared to contract counsel in other parts of the state. He said the survey responses also indicate a continuing problem from counsel's perspective with respect to expense reimbursement in areas such as postage, copying charges, and mileage.
Connie Triplett suggested, and Commission members agreed, that some of the information disclosed in the survey responses should be included in the Lewis letter submitted to the Supreme Court. With respect to compensation for Grand Forks attorneys, she said when she joined the Commission she visited with then Presiding Judge Joel Medd concerning contract compensation for area lawyers. She said Judge Medd at that time felt constrained by the judicial budgeting process to only pursue a certain percentage increase in compensation over the previous biennium. She noted that Grand Forks started low as a result of the bidding process in the area and had since been limited to a fixed percentage increase like other districts. The consequence, she said, is that Grand Forks attorneys, having started at a lower compensation rate, remain at a rate lower than contract counsel in other districts. She suggested the Commission should try to facilitate a way of addressing this problem and bringing it to the attention of the presiding judges.
Mary Hoberg noted the significant support shown in the survey responses for free or reduced CLE or paid professional association members. She asked how these particular issues could be pursued further. Staff responded that paying for contract counsel's continuing legal education in some areas or paying for professional memberships could be recommended to the presiding judges for inclusion in the budget for contracts in the next biennium. He said the State Bar Association could also be contacted concerning the possibility of waiving CLE registration fees.
In response to a question from Chair Triplett, Commission members agreed these issues should be pursued further.
Mary Hoberg said one contract counsel in the area had contacted her and indicated that hourly compensation fell well below overhead costs. She said there is a fundamental unfairness concerning compensation that should be emphasized. She said issues concerning adequate compensation or expense reimbursement are not issues for state's attorneys and should not be issues for contract counsel.
With respect to distribution of the survey results, staff said once the survey results are finalized, they will be distributed to contract counsel.
In response to a question from Chair Triplett, Commission members agreed the survey results and other pertinent information should be provided to the Council of Presiding Judges. In response to a question from staff, Commission members agreed information should also be provided to the presiding judges concerning compliance with Policy 502 governing contract administration.
Chair Triplett said that when the survey responses are distributed to contract counsel, the cover memorandum should also reiterate the importance of reporting case hours accurately.
Mary Hoberg requested that whatever preliminary case reporting data available thus far be provided at the Commission's next meeting.
No further business appearing, the meeting was adjourned at 11:00 a.m.
Jim Ganje, Staff