Connie Triplett, Chair
Rep. Rae Ann Kelsch
Greg Wallace, Assistant State Court Administrator for Trial Courts
Chair Triplett called the meeting to order at 10:00 a.m. and drew Commission members' attention to Attachment B (June 30, 1999) - Minutes of the January 14, 1999, meeting.
IT WAS MOVED BY CARL FLAGSTAD, SECONDED BY WADE ENGET, AND CARRIED UNANIMOUSLY THAT THE MINUTES BE APPROVED AS MAILED.
Indigent Defense Budget and Equity Issues
At the request of Chair Triplett, Greg Wallace explained recent efforts leading to the final budget determinations, which were an attempt to equalize indigent defense compensation across the state. He then drew attention to Attachment C (June 30, 1999) - the final indigent defense budget information approved by the Council of Presiding Judges for inclusion in the 1999-2001 budget. See also Attachment D (June 30, 1999) - provision in the Judicial Branch Appropriation bill concerning equitable allocation of indigent defense funds.
Greg Wallace then noted that efforts at equalizing indigent defense compensation had started during the last biennium with a review of the issue by the Council of Presiding Judges. He distributed information provided on April 26, 1999, to the Council which discusses the variety of methods for analyzing contract compensation in light of caseload, population, and other factors. This information is attached as an Appendix. He said the data collection effort covered felony, misdemeanor, and juvenile cases and reflected approximately 8,000 filings during the period reviewed. The review indicated, he said, that felony cases average about 5.2 hours per case, misdemeanors average about 2.7 hours per case, and juvenile cases average about 3.2 hours. Based on this information, he said, estimates were made about the expense associated with the assignments. He cautioned that counsel is sometimes appointed outside the contract, particularly in the event of conflicts. Those assignments, he said, may increase the cost because assignments outside the contract are not limited by the contract amounts. Additionally, he said, when the cost of these cases are included in an assignment based analysis, a higher expenditure is reflected than if only contract counsel were involved. For example, he said, the April 26 material indicates the Northwest district had a projected hourly rate of $60-$63 per hour, based on a simple analysis of assignments and the amount expended. However, he said that rate is inflated because a significant percentage of cases in the district were assigned to outside counsel at a higher rate. The amount paid only to contract counsel, he said, was in the $40 per hour range. In addition to reviewing assignments as a basis for distributing funds, he said, caseload and population were also reviewed as potential mechanisms for equitably allocating funds statewide. He said there were a number of variables that affected each of these methods of analysis including the impact of local practice in screening for appointment, prosecutorial decisionmaking, and differing crime rates in the state. The final conclusion, he said, was to use an average of the results gained from analyzing assignment, caseload, and population, with an adjustment for local practice. The result, he said, is a projected average hourly rate of about $60 per hour across the state - see Attachment C (June 30, 1999).
In response to questions from Carl Flagstad, Greg Wallace said contract counsel have been fairly good about reporting hours and assignments and, consequently, more accurate information about operation of the system is being collected. The advantage, he said, is that substantiated information can now be presented to the Legislative Assembly. He said the various effects of local practice were identified in discussions with local judges, administrators, and some local attorneys. He said these discussions highlighted the impact assignment practices might have on the hourly rate received by contract counsel. For example, he said, some judges will not appoint counsel if jail time will not be imposed, while others do appoint. Some judges, he said, will appoint for a first time DUI offender, even though there is no possible jail time, because of possible enhanced penalties if there are subsequent offenses. In any event, he said, the higher number of assignments, when contract counsel receive a fixed monthly payment, results in lower per hour or per case compensation. He noted that one issue mentioned a number of times during the local discussions was the need to review the present application form for appointment of counsel and perhaps revise and simplify the form.
In response to a question form Chair Triplett, Commission members agreed the Commission should review the application form for possible improvements. Leslie Aldrich said her experience often was that sections of the form were left blank and appointments were made when the defendant, in fact, had financial resources but did not bother to list them. Judge Kleven suggested the possibility of requiring that the defendant's most recent pay stub be attached to the form.
1999 Legislative Activities
At the request of Chair Triplett, staff provided a summary of legislative activities relating to indigent defense. Staff said a House amendment to the judicial branch appropriation bill included an $80,000 pass-through for partial funding of the operation of Central Legal Research at the UND School of Law. That amount, he said, is approximately ½ what is needed to operate CLR for two years. He said a resolution proposing a study of establishing a public defender system was adopted by the House and Senate, but was not selected for study by the Legislative Council. He said the general sentiment was that the Supreme Court is in a better position to study the matter and make any proposals to the Legislative Assembly as deemed appropriate.
In response to a question from Chair Triplett, Commission members agreed the issue of establishing a public defender system should be set aside for the short-term, but additional information should be gathered and the effort to equalize contract counsel compensation should be monitored.
Changes to Policy 502 Governing Indigent Defense Contract Administration
At the request of Chair Triplett, staff provided a summary concerning changes to Policy 502, adopted by the Council of Presiding Judges. He noted that what was ultimately adopted as Policy 502 had been submitted to the Council of Presiding Judges by the Commission and included the model contact set out in the Commission's Procedures and Guidelines. He said the Council of Presiding Judges recently adopted changes to the Policy 502 Contract. The question for the Commission, he said, is whether the model contract in the Procedures and Guidelines should now be similarly modified. The first change to the contract, he said, was to include a provision allowing monthly checks to be withheld from contract counsel if they have not timely submitted case and hour information. The second change, he said, was to lower the threshold for court approval of expense reimbursement requests to $250. The Procedures and Guidelines contract, he said, identifies $500 as the level at which court approval is required.
With respect to the change regarding recordkeeping, Connie Triplett said the modification may be a positive development, particularly in light of the fact that timely submission of recordkeeping information by contract counsel has been a problem in the past. Mary Hoberg agreed but cautioned that withholding a check is a viable option only if the difficulty in assembling record information is due to contract counsel and not local court administration. Leslie Aldrich agreed this modification could be helpful as long as it is seen as a "push" or incentive to report and not as a hammer to punish contract counsel. Carl Flagstad emphasized the importance of explaining to contract counsel the link between adequate reporting of information and the ability to support requests for adequate funding for indigent defense.
In response to a question from Chair Triplett regarding the contract change concerning expense reimbursement, Commission members agreed the reimbursement provision in the Procedures and Guidelines contract should not be similarly modified.
Following Commission discussion, the following future activities were identified:
- Review and revise, if necessary, the application for appointed counsel form
- Continue encouragement of adequate recordkeeping and reporting by contract counsel
- Monitor Policy 502 as adopted and implemented by the Council of Presiding Judges
- Review and revise, if necessary, the Indigent Defense Procedures and Guidelines.
Staff announced that Chair Triplett's final term on the Commission would end July 21. Commission members thanked Chair Triplett for her leadership and commitment of time and effort to Commission activities.
No further business appearing, the meeting was adjourned at 11:00 a.m.
Jim Ganje, Staff