NORTH DAKOTA LEGAL COUNSEL FOR INDIGENTS COMMISSION
Supreme Court Conference Room, Bismarck
January 27, 2000
Judge Debbie Kleven, Chair
Rep. Ron Carlisle
Mary Norum Hoberg
Judge John Greenwood
Leslie Johnson Aldrich
Chair Kleven called the meeting to order at 10:00 a.m. and welcomed Rep. Ron Carlisle as a new member. She then drew Commission members' attention to Attachment B (January 20, 2000) - Minutes of the July 15, 1999, meeting.
It was moved by Mary Hoberg, seconded by Carl Flagstad, and carried unanimously that the minutes be approved as mailed.
Chair Kleven then drew attention to Attachment C (January 20, 2000) - the current application form for appointed defense services - and requested discussion of possible revisions. She recalled previous comments and suggestions concerning simplifying or shortening the form.
Staff noted that the Indigent Defense Procedures and Guidelines, in Section 1(a), page 1.4, describe the defendant's income as including cash receipts "before taxes". On the other hand, he said, the application form, on page 3, refers to monthly "take home pay". He said there has been at least one suggestion that the form be revised to request information on the defendant's gross monthly income, rather than net income ("take home pay"). Such a change, he said would then track the Procedures and Guidelines.
Judge Kleven said the Attachment C form is used in Grand Forks and it seems that nearly everyone fills in the same or similar income amount. She agreed the form should be revised to request information on income before taxes.
Carl Flagstad said a relatively short form is used in Minot and the form is often incomplete when submitted by the defendant. Most often, he said, the form is completed in the courtroom, rather than in the sheriff's office. Wade Enget said the Minot form is also used in the Mountrail County area. He agreed the forms are rarely filled out completely.
Mary Hoberg wondered whether the failure to complete the form is due to time constraints, the defendant being confused, or some other factor. Judge Kleven observed that defendants are sometimes simply uncooperative in supplying information or seem puzzled by what information exactly is being requested.
Wade Enget said in his area Judge Holte is careful when going through the form with defendants. But, he said, a defendant's normal response is to often fill in "0" when going through the form line by line.
Judge Kleven wondered whether the form is simply too long and requests too much detailed information. On the other hand, she said, there is a need for a complete picture of the defendant's financial situation.
In response to a question from Mary Hoberg, Judge Kleven said she often requires the defendant, if working, to supply a copy of the defendant's most recent pay stub in addition to completing the form. In that way, she said, she has a clearer idea of earning ability and hours worked. She said she has also sometimes required a defendant to supply copies of recent W-2s. She said she is uncertain whether all judges in the state would be comfortable with imposing such requirements. There is, she said, a difference of opinion among judges regarding the amount of information, beyond simply asserting indigency, that a defendant should be required to supply before counsel is appointed.
Staff noted that the Commission has, on several occasions, discussed the potential impact of routinely or too quickly appointing counsel for defendants who do not truly qualify for appointed counsel. He said some of the factors identified as contributing to this situation include the desire or need (for example, in juvenile cases) to meet time requirements or ensure that the criminal process advances expeditiously. He said there is also a concern about institutional resources. He said either the judge or court personnel must ensure the form is completed and evaluated and there is a question about whether there are enough resources to ensure adequate screening of defendants before appointment. He noted that other jurisdictions have established accounts receivable offices that, among other things, review financial affidavits submitted by defendants, screen for appointment, and then pursue collection efforts when reimbursement of indigent defense costs is required.
Judge Kleven observed that in the Crookston, MN, clerk's office there is an individual in the accounts receivable department that reviews defendant applications and follows through on obtaining proof of financial status. That person, she said, then makes a recommendation to the judge concerning whether counsel should be appointed.
Rep. Carlisle asked whether some defendants have learned how the system works and try to exploit the opportunity to receive appointed counsel without providing complete information. Judge Kleven said that may happen. She noted that first-time offenders often complete the form, but repeat offenders tend sometimes to be less forthcoming about financial information. Another complicating factor, she said, is that many defendants are in jail at the time the form is filled out and may not have ready access to information. For example, she said, in Grand Forks defendants in custody are completing the form at the correctional center and there may not be sufficient assistance for them to adequately fill out the form.
In response to a question from Rep. Carlisle, Judge Kleven said she is uncertain whether there is anything by way of possible legislation that might address the issue. Staff observed that it may simply be a question of sufficient system resources and adequate funding, perhaps to pursue something like the Crookston approach. Rep. Carlisle said it might be possible to seek funding through an appropriation to establish a project along those lines.
Judge Kleven said an active accounts receivable program can be a great benefit. She explained that the accounts receivable program instituted in Grand Forks increased collection of fine revenue from $300,000 to nearly $800,000, which has more than offset the expense associated with establishing the program. She said there may be merit in attempting to pursue such an approach on a broader basis. She noted that much like collection of fines imposed on defendants, recoupment of indigent defense costs from defendants continues to be a problem. An approach similar to accounts receivable for fines, she said, may assist in determining levels of reimbursement for defendants and pursuing collection efforts when reimbursement of defense costs is ordered. Carl Flagstad said such an approach may be more cost-effective than the current process involving sometimes multiple order to show cause hearings when defendants fail to pay the reimbursement amount. He noted that some judges assess a flat fee per case type (misdemeanor or felony) for purposes of reimbursement of indigent defense costs. Even in that situation, he said, collection procedures are often not in place to ensure the defendant pays the fee.
Staff noted previous Commission discussion concerning the fact that any indigent defense costs reimbursed by defendants are deposited in the state general fund. One alternative used in other jurisdictions, he said, is to appropriate back to the judiciary costs or fees collected from defendants. Typically, he said, those funds are used to support administration of the defense system, increase counsel compensation, or provide such things as technology or computer support services for indigent defense counsel. He said some jurisdictions have also established an application or administration fee to be collected from the defendant at the time an application for defense services is submitted. This approach, he said, has been directed at collecting at least a portion of the cost of services from the defendant at the outset, rather than relying exclusively on recoupment efforts after the fact. After discussion, Commission members agreed it may be worthwhile to review information and a draft proposal along these lines.
With respect to changes to the current application form, Judge Kleven suggested revising the form to request information on income before taxes. Carl Flagstad said if the form is to be substantively revised he would strongly suggest that it be shortened. He said the current form is not used in Minot because it is too lengthy and with a shorter, more concise form there may be a greater likelihood of obtaining reasonably accurate information or at least a better effort by defendants to complete the form. Mary Hoberg suggested review of the form used in Crookston.
With respect to review of the Indigent Defense Procedures and Guidelines, Chair Kleven said the Commission will review the procedures and guidelines over the next few meetings to determine whether any changes should be made. She said sections of the procedures and guidelines would be distributed before each meeting for review and noting of any suggested revisions. She said the Commission, at its next meeting, would also review information and a draft proposal concerning the application fee structure used in other jurisdictions.
There being no further business, the meeting was adjourned at 10:55 a.m.
Jim Ganje, Staff