Connie Triplett, Chair
Leslie Johnson Aldrich
Chair Triplett called the meeting to order at 10:00 a.m. and announced that Pamela Hermes had submitted her resignation from the Commission. She thanked Ms. Hermes for her contributions to the Commission's work.
Chair Triplett next drew Commission members' attention to Attachment 2 (June 25, 1998) - Minutes of the April 16, 1998, meeting. There being no corrections, the minutes stood approved as mailed.
State v. Lewis Issue - Update
Staff said the Vondal case, which had prompted the Supreme Court's request for amicus briefs on the continued viability of the State v. Lewis approach to counsel for frivolous appeals, is scheduled for hearing during the Supreme Court's fall term. He said the Chair's letter expressing the Commission's recommendation on the matter [Attachment 3 (June 25, 1998)], is in the case file and will be considered by the Supreme Court along with the amicus brief submitted by the North Dakota Trial Lawyers' Association. He then briefly summarized the brief submitted by the Association, which argues for retention of the Lewis approach. A copy of the brief will be distributed to Commission members.
Draft of Report to Presiding Judges - Review
At the request of Chair Triplett, staff reviewed the draft of the report to be submitted to the Council of Presiding Judges. The report, he said, provides introductory, background information; summarizes the responses to the Commission's survey of contract counsel; and reviews compliance with Policy 502 governing indigent defense contracts. A copy of the report reviewed at the meeting is attached as an Appendix.
With regard to Policy 502 compliance issues, Connie Triplett inquired whether failure to follow the policy was purposeful or attributable to some other reason. Staff said it is difficult to know why the presiding judges, with one exception, did not ensure compliance with the policy. Although, he said, achieving a uniform approach is often more difficult than it seems it should be. In some instances, he said, failure to follow the policy may have been the result of simply following the previous years' contracts. Pam Hermes wondered whether there is anything more that can be done by the Commission or others to ensure increased awareness of the policy and its requirements. Perhaps, she said, submitting the report and highlighting the problems will do that. Mary Hoberg suggested a concise, focused report that is directed not only to the presiding judges, but to trial court administrators and contract counsel as well. Staff noted that the report will be distributed to all those involved in the contract process. He said the report sent to contract counsel will be accompanied by a memorandum from the Chair stressing the importance of accurate caseload and hour information, and the memorandum could also emphasize the need for contract counsel to be aware of Policy 502 and its requirements.
Chair Triplett requested that staff pursue methods to ensure that drafts of new contracts are submitted sufficiently ahead of the new biennium so a meaningful review of Policy 502 components can occur.
In response to a question from staff, Commission members agreed the report should include a paragraph regarding the State v. Lewis issue and the Commission's recommendation that counsel be appointed from outside the contract if the Lewis approach is retained.
Pam Hermes said she would also like a more general comment, perhaps in the second paragraph on page 2, regarding possible ethical issues. She said the report in that paragraph may leave the impression that contract counsel generally do not have ethical concerns about their contract work. But, she said, comments from the number of counsel that do see ethical issues, although apparently a minority of respondents, are troubling and point to the possibility of more problems or potential problems than are being recognized or acknowledged. Commission members agreed the portion of the report concerning potential ethical issues should be expanded and revised.
Mary Hoberg suggested, and Commission members agreed, that short, bullet summaries should be included at the beginning of the report to highlight and reinforce issues discussed later in the report.
Judge Kleven reiterated the concern previously discussed by the Commission regarding disparity in contract counsel compensation among the various judicial districts. She suggested adding language to the report to draw attention to that particular problem. Staff said that while it is possible to illustrate in a very general way that the Northeast Central Judicial District, for example, has traditionally had lower contract counsel compensation than other districts, it is difficult to specifically set out the imbalance in compensation because of inadequate caseload and hour data and the different ways the judicial districts organize indigent defense services under the contracts. However, he said, the report could emphasize the Commission's awareness that there is a generalized problem with inequitable compensation levels among judicial districts. Judge Kleven suggested the report should emphasize that this is an issue that should be reviewed over the next few years. Commission members agreed the report should be modified to draw attention to the issue.
Staff said he would add a chart to the report illustrating the degree to which the various judicial district contracts comply with the expense reimbursement provision of Policy 502.
Carl Flagstad noted that he had recently joined the ranks of those contract counsel who have no secretary, due in large part to the impact of contract work. He said Minot recently has seen a 50% increase in its drug task force and a new prosecutor, and an additional judge will be in Minot for a time because of the case schedule. However, he said, there apparently is no additional money available for defense services. He said he is surprised and disturbed that so few contract counsel are concerned about ethical issues because those difficulties are inherent in the process as a result of time constraints, compensation, and overhead commitments. In many instances, he said, there simply is not enough time because of the number of cases and case scheduling to do things as effectively as possible.
Members generally discussed the importance of building an adequate foundation for requesting additional funding for indigent defense services during the legislative session.
There being no further business, the meeting was adjourned at 11:15 a.m.
Jim Ganje, Staff