|Members Present||Members Absent|
|Judge Debbie Kleven, Chair||Rep. Ron Carlisle|
|Wade Enget||Judge John Greenwood|
|Carl Flagstad||Mary Norum Hoberg|
|Leslie Johnson Aldrich||Dennis Johnson|
Chair Kleven called the meeting to order at 10:00 a.m. and drew Commission members' attention to Attachment B (July 12, 2000) - Minutes of the January 27, 2000, meeting.
It was moved by Wade Enget, seconded by Carl Flagstad, and carried unanimously that the minutes be approved as mailed.
Application Forms for Appointed Defense Services - Review
At Chair Kleven's request, staff reviewed the current application form and the Minot and Crookston, MN, forms included in Attachment C (July 12, 2000). Staff noted that the current form included in the Procedures and Guidelines is the more extensive of the three forms. For example, he said, the Crookston form simply asks for total annual gross income, while the current form asks that the defendant list various sources of income in addition to salary. Additionally, he said, the current form includes a section for listing various debts, while the Crookston and Minot forms do not. The current form and the Crookston form, he said, contain sections asking for a list of various expenses, while the Minot form does not. All the forms, he said, are similar in requesting a listing of assets and kinds of property owned. He then noted previous discussion concerning whether the form should request gross income or take home pay. The Crookston form, he said, asks for both kinds of income information.
In response to a question from Chair Kleven, Commission members agreed the form should request gross income information.
Judge Kleven said she found the Minot form to be clearer and more direct in requesting information. She said judges in her district have indicated that when reviewing requests for appointed counsel they typically consider the number of dependents and current income. Rarely, she said, do judges consider the debts or a breakdown of assets, although ownership of a vehicle or house is taken into account. Similarly, she said, monthly expenses are not often relied upon.
Leslie Aldrich suggested asking for information regarding any extraordinary financial circumstances, rather than placing emphasis on monthly expenses. Judge Kleven agreed. Carl Flagstad observed that income guidelines generally take into account routine household expenses, and in that case extraordinary or unusual expenses would be more relevant.
Judge Kleven drew attention to that part of the Crookston form which asks whether two attorneys have refused to handle the defendant's case. She noted that it is not unusual for defendants to request appointed counsel without having even attempted to find private counsel. It may be useful, she said, to include such a provision so there is some burden on the defendant to make an effort to find an attorney. Carl Flagstad noted that in his district a judge will continue the case and require that the defendant attempt to locate counsel if there is a question about the defendant's financial status. Staff noted that the Guidelines, on page 1.2, section 8, recommends that a judge ask whether the defendant has made efforts to obtain the service of a private attorney. And, he said, New Jersey has enacted a statute that includes, as a factor to be considered in determining eligibility for appointed counsel, whether the defendant can demonstrate "convincingly" that the defendant has contacted at least three attorneys who have refused the case because of the defendant's inability to pay.
In response to a question from Judge Kleven, Commission members agreed the form should ask whether the defendant has contacted at least two attorneys for purposes of obtaining representation and has been refused. She suggested each district could then compile and distribute a roster of area attorneys who may be willing to take cases.
In response to a question from staff, it was agreed the Minot form should be used as the basis for a draft form. Leslie Aldrich suggested, and Commission members agreed, the form should request information concerning monthly and annual gross income. It was also agreed the form should not request specific information regarding expenses and debts, but should have a question concerning extraordinary financial circumstances. Judge Kleven suggested the form should contain a warning similar to that in the current form about providing false information. Commission members agreed.
Application Fee for Indigent Defense Services - Draft Legislation
At the request of Chair Kleven, staff reviewed Attachment D (July 12, 2000) - Draft legislation regarding the establishment of an application fee for indigent defense services. By way of background, staff said approximately 14 states have enacted statutes requiring that indigent criminal defendants pay an application fee at the time the defendant submits an application for appointed counsel services. He said the fees vary, but the most common fees were $10, $25, $40, and $50. One jurisdiction, he said, established a $200 maximum fee, with no minimum fee identified. The typical rationale for application fees, he said, is that collection of a minimal fee at the beginning of the process is often more successful than later recoupment efforts, and the application fee revenue assists in offsetting the expense of providing defense services. He said some jurisdictions dedicate the fee revenue to a specific purpose, such as technology assistance for appointed counsel or defraying the cost of administering the provision of defense services. Others, he said, simply require that the fee revenue be deposited in the state's general fund. He noted that all jurisdictions that have adopted an application fee still maintain statutory requirements for recoupment of indigent defense costs after representation is concluded. He said a preliminary review of the impact of application fees in some states indicated that criminal defendants were generally able to pay some amount as an application fee, and one result appeared to be that defendants often considered themselves as having a stake in the appointment process.
Staff said the draft legislation would amend two statutes affecting indigent defense services. Section 1 of the draft, he said, amends part of Section 12.1-32-08(3), which addresses reimbursement of indigent defense costs as a condition of probation. The amendment, he said, provides that the reimbursement amount would include the application fee if the fee had not been paid before disposition of the case and the fee had not been waived. Section 2 of the draft, he said, is the central part of the legislation and would amend Section 29-07-01.1, which generally governs payment for and reimbursement of indigent defense services. First, he said, the amendment would require that a defendant requesting appointed counsel services submit an application for appointed defense services. He said the amendment then provides for a non-refundable application fee; alternative, bracketed fee amounts are provided for consideration - $10, $25, $40, and $50. Payment of the fee, he said, would be required when the application is submitted or within 7 days thereafter, or, as an alternative, within a reasonable time thereafter. The court, he said, could waive or reduce the fee if it is determined that the defendant could not pay the all or part of the fee. The last, significant part of the amendment, he said, provides alternatives regarding disposition of the collected fee revenue. The first alternative, he said, provides for deposit of the fee revenue in the state general fund. The second alternative, he said, provides for deposit of the fee revenue in a special fund - the "indigent defense administration fund". The special fund, he said, is established in a new subsection 4 of Section 29-07-01.1 and all fee revenue deposited in the fund would be appropriated on a continuing basis to the judicial branch. The revenue, so appropriated, he said, would be dedicated to administration of the indigent defense system and collection costs and expenses required to be reimbursed.
With respect to potential fee revenue, staff recalled that the Commission had recently reviewed contract counsel assignments for the period ending 1998. He said using that number of assignments (11,446 for the 18 month period ending December 1998) and assuming a 100% payment rate would result in the following fee revenue for each alternative fee amount: $10 = $114,460; $25= $286,150; $40 = $457,840; and $50 = $572,300. For purposes of example, he said, the respective revenue amounts could be reduced by 50% if it is expected that only 50% of the assessed fee is actually collected. He noted that recoupment of indigent defense costs amounted to $205,764 for the 18 month period ending May 2000, or approximately $11,500 per month.
With respect to the imposition of new fees, Judge Kleven observed that many judges expressed concern about the supervision fee imposed by statute on probationers to offset expenses incurred by the Department of Corrections. She noted, however, that the fee apparently has generated a substantial amount of revenue of the department.
In response to a question from Judge Kleven regarding deposit of indigent defense recoupment amounts in the special fund, staff said the draft could be modified to address that issue. He noted that the Commission has in the past discussed the possibility of seeking establishment of a special fund for the deposit of recoupment revenue, with that revenue then appropriated back to the judiciary for use in providing indigent defense services. He suggested that Jana Thielges, the judiciary's Director of Finance, should be invited to offer comments if there is a desire to pursue such an approach.
In response to a question from Chair Kleven with respect to the application fee amount. Commission members agreed the fee should be tentatively set at $25.
With respect to the time within the defendant should be required to pay the fee, Judge Kleven suggested paying at the time the application is submitted or within 7 days should be sufficient. Wade Enget wondered whether there would be increased workload for clerks of court if they are required to monitor whether the defendant pays the fee within 7 days. As an alternative, he suggested simply requiring payment at the time the application is submitted. Leslie Aldrich said it may be advisable to allow the court to extend the time for payment in the event of unusual circumstances. After discussion, it was agreed the draft should be modified to require payment when the application is submitted and provide authority for the court to extend the time for making payment if necessary.
It was moved by Carl Flagstad, seconded by Leslie Aldrich, and carried unanimously that the draft legislation be modified as described and that the draft be distributed to the Council of Presiding Judges for review and comment.
Chair Kleven said the revised draft legislation would be reviewed at the Commission's October meeting, along with any comments received from the Council of Presiding Judges.
Conference on Delivery of Indigent Defense Services - Update
At the request of Chair Kleven, Wade Enget and Carl Flagstad provided an update concerning their attendance at a recent national conference in Washington, D.C. regarding the delivery of indigent defense services.
Wade Enget said the conference was instructive on a number of issues but was more focused on indigent defense issues in large urban areas. As a result, he said, there was not much information concerning unique problems encountered in rural areas in providing defense services. However, he said there was a general discussion of methods used in other states for providing defense services. It was suggested, he said, that state task forces be used for purposes of reviewing the operation of a state's indigent defense system and making recommendations for improvement. Carl Flagstad said there was an informative session on juveniles and coerced confessions and a judge panel discussing the role of judges in ensuring competent counsel. He said there was also a discussion of different contract arrangements that have been used in other states.
Wade said they also had the opportunity for a brief discussion with Bob Spangenberg, President of The Spangenberg Group, which specializes in studying indigent defense services. Carl said there was general interest in the Group conducting a review of North Dakota's contract systems. Staff noted that David Carroll, a senior research associate with the Group, recently indicated the Group had received grant funds that would allow them to send a representative to North Dakota to meet with the Commission and discuss the contract system. He said the visit could possibly be coordinated with the Commission's October 26 meeting if Commission members conclude such a visit would be worthwhile. Following discussion, it was agreed the visit should be arranged if possible.
Review of Procedures and Guidelines
Chair Kleven drew Commission members' attention to sections 1-4 of the Procedures and Guidelines and requested discussion of possible revisions.
Staff noted the adoption by the Council of Presiding Judges of Policy 502, which governs indigent defense contract administration. He suggested a reference to the policy be included in the Introduction and that a copy of the policy be included in the Procedures and Guidelines.
Judge Kleven suggested the reference on page iii of the Introduction to the Commission's involvement with municipal courts be deleted. She also suggested paragraph 8 on page 1.2 be modified to clearly reflect the two lawyer contact requirement to be included in the application form. Carl Flagstad suggested Section A on page 1.3 be modified to delete the reference to expenses and liabilities and include a reference to extraordinary financial circumstances - also to reflect the provisions to be included in the application form.
Judge Kleven drew attention to paragraph 1(a), page 1.4, and the reference to seasonal income being considered on an annualized basis. She wondered whether the application form is strong enough in requesting gross monthly and annual income, particularly when there may be interruptions in employment. The risk, she said, is that if the defendant has been unemployed for the past two months, income will be reflected as zero, whereas there will have been income received for the rest of the year. Leslie Aldrich agreed there is a problem, because in the case of seasonal employment the defendant will indicate no income or receipt of unemployment, when it is most likely the case that the defendant will be fully employed again in the near future. It was agreed that further thought should be given to some method of ensuring, in the application form or otherwise, that all sources of income, regardless of periodic interruptions, are considered in determining eligibility for appointed counsel.
With respect to paragraph 2 on page 1.6, staff suggested including for reference ease the actual dollar amounts of the property exemption allowances referred to in 2 (b) and (c).
With respect to paragraph 3 (Expenses and Liabilities) on page 1.7, Carl Flagstad suggested the section should be revised to reflect the approach taken in the application form, that is, that normal expenses are considered as included in the income guideline formulations and, therefore, consideration should only be given to extraordinary household expenses. He suggested the possibility of combining paragraph 3 and paragraph 4 (Exceptional Factors).
With respect to Section C (Partial Eligibility), Judge Kleven wondered if there is a useful definition of "partially eligible". She noted that judges in Grand Forks do not consider whether a defendant is partially eligible. Carl Flagstad said judges in Minot do make determinations concerning partial eligibility. In those instances, he said, defendants have sometimes been required to make payments to contract counsel, and in other cases have been required to make payments to the court. He said he prefers that defendants not be required to make payments to counsel because more often than not payments are never received, and the requirement is not enforced by the court. There is also, he said, the inevitable prospect of conflicts and competing interests between the defendant and counsel. He said payments should be made to the court as Section C recommends. Judge Kleven suggested the issue be raised for discussion during the Spangenberg Group visit.
Chair Kleven said review of the Procedures and Guidelines would continue at future meetings. She encouraged Commission members to set aside the October 26 meeting for personal attendance in the event the Spangenberg Group visit can be finalized.
No further business appearing, the meeting was adjourned at 11:50 a.m.
Jim Ganje, Staff