|Members Present |
Judge Debbie Kleven, Chair
Rep. Ron Carlisle
Mary Norum Hoberg
|Members Absent |
Leslie Johnson Aldrich
Chair Kleven called the meeting to order at 9:00 a.m. and welcomed Rob Olson, a new member nominated by the State Bar Association and appointed by the Chief Justice. She then drew Commission members' attention to Attachment B (February 15, 2002) - minutes of the July 12, 2001, meeting.
It was moved by Rep. Carlisle, seconded by Chad Nodland, and carried unanimously that the minutes be approved.
Legislative Study of Indigent Defense Services - Update
At the request of Chair Kleven, staff provided a brief review of recent activities of the interim legislative committee assigned the study of indigent defense services. He drew attention to Attachment C (February 15, 2002) - excerpts from the minutes of the committee's last meeting. He said it appears the committee is still in the process of gathering information and has not reached any tentative conclusions concerning possible alternative methods of providing indigent defense services.
Chair Kleven noted that she had sent a letter to the committee chair indicating the Commission is available to assist with the study, but she has not yet received a response. She said conversations with a legislator who is a committee member indicated there may not be a great deal of interest in pursuing a major alternative to the present system.
In response to a question from Wade Enget, Rep. Carlisle said current information indicates state revenue constraints may make it difficult to secure funding for new initiatives in the next legislative session..
Chair Kleven said the Commission would continue to follow the legislative study and provide assistance if requested.
Adult Child Claimed as Dependent - Use of Parents' Income to Determine Eligibility for Appointed Counsel
Staff drew attention to the comments to the legislative study committee by Brenda Neubauer, a Bismarck contract counsel, concerning the possible use of parental income to determine an adult child's eligibility for appointed counsel when the child is claimed as a dependent on the parents' tax returns.
Dennis Johnson said determining eligibility for appointed counsel is already complex and should not be made more complicated by adding this factor. He suggested the court should not consider whether the adult child is listed as a dependent for tax purposes.
Chad Nodland said he would tend to agree. It is, he said, a difficult situation when counsel is appointed for a child when the parents obviously have the financial resources to hire private counsel.
Rob Olson said parents' income should not be considered if the child is involved in a proceeding in adult court. Nevertheless, he said, it is troubling that parents' income is not often being considered when counsel is appointed for a child in juvenile court. That often occurs, he said, when the parents are at odds with the child.
Mary Hoberg observed that even if an adult child is claimed as a dependent, there is no legal obligation for the parent to provide funds for the child's legal representation. She agreed that parental income should not be considered simply because the adult child is claimed by the parent as a dependent for tax purposes.
In response to a question from Chair Kleven, Commission members agreed there was no need address this issue at this time.
Procedures and Guidelines - Review
Chair Kleven next drew attention to Sections 6 though 11 of the Procedures and Guidelines, which were included separately in the February 15, 2002, mailing. She said with these sections, the Commission is nearing completion of its periodic review of the Procedures and Guidelines.
At the request of Chair Kleven, staff reviewed Section 6, which concerns procedures for the review of trial judge decisions regarding counsel fees. He said the section provides for review panels of varying composition to be used if there is a dispute about fees for counsel. He said he is unaware of such panels being called into use.
Following discussion, Commission members agreed changes to the section were not needed at this time.
With respect to the adequacy counsel fees, Judge Kleven noted that the Council of Presiding Judges had recently discussed the disparity in fees paid to attorneys appointed outside the contracts. Some judicial districts, she said, are paying $75 to $80 per hour for attorneys outside the contracts and apparently in the Northwest judicial districts attorneys have refused to accept appointments if the rate is at $65 per hour.
Wade Enget observed that some lawyers in the northwest have been informed, for example, that a lay guardian ad litem, rather than a lawyer, will be appointed for juvenile proceedings involving an unruly child. That apparently holds true, he said, for delinquency proceedings as well. The problem, he said, is that there are no lay guardians ad litem in his area of the Northwest judicial district. Judge Kleven observed that in the Northeast Central judicial district contract attorneys provided guardian ad litem services until trained lay guardians were available. Wade Enget said contract attorneys in his area have agreed to serve as guardians ad litem unless there is travel involved. He said some contract attorneys have said they may terminate the contract if they are expected to incur the additional time and expense associated with traveling to provide guardian ad litem services.
Commission members then reviewed Section 7, which establishes a procedure for Commission review of counsel fee disputes. Staff said the procedure has been used once in the last ten years and worked well. Commission members concluded there was no need for changes to the section.
With respect to Section 8, which provides a model agreement for collection services in obtaining reimbursement of defense costs, Judge Kleven suggested the section should be retained in the event it is needed. Dennis Johnson agreed such a model agreement would be useful if a collection agency were ever used to obtain repayment of defense costs from defendants. It was agreed no changes to the section were needed.
Commission members then turned to Section 9, which establishes guidelines for attorney withdrawal from criminal cases. Chad Nodland said his policy is that the defendant must pay in full at the outset of the case. The downside of that practice, he said, is that a fair number of defendants cannot afford to hire him.
Rob Olson said there are circumstances in which a defendant with privately retained counsel will cease paying the attorney, but the court will not permit the attorney to withdraw. That, he said may sometimes lead to the defendant thinking the lawyer is not now aggressively pursuing the defense, which may result in ethics complaints. He said there is also a problem with defendants not contacting contract counsel and counsel must then go forward with the defense without knowing anything about the defendant.
Following further discussion, Commission members agreed there was no need for revisions to Section 9. It was also agreed Section 10 regarding appointment of counsel in contempt proceedings did not require revision.
Commission members then reviewed Section 11, which provides various suggested forms for use by contract counsel. Chad Nodland wondered whether there should be a form available when the defendant intends to waive an appearance and enter a not guilty plea. Judge Kleven agreed such a form should be included.
Wade Enget drew attention to Form 17 of the Rules of Criminal Procedure, also included at pp. 11.9 -11.11 of the Procedures and Guidelines (Misdemeanor Petition to Enter a Plea of Guilty). He said there should be a line for the state's attorney's signature because judges in his area will return the petition if the state's attorney has not signed. Judge Kleven said a similar practice is followed in her judicial district. Commission members agreed a signature line for the state's attorney should be added to the form included in the Procedures and Guidelines.
Chad Nodland suggested a sample Rule 16 discovery request form should also be included in the forms section. Dennis Johnson agreed it would be useful for appointed counsel to have a standardized discovery request form that addresses common request items. He suggested that the mandates of Rule 16 of the Rules of Criminal Procedure should be kept in mind. Often, he said, defense attorneys exceed the limits established under the rule when making discovery requests.
Chair Kleven requested that Commission members forward to staff any forms they may be using with respect to Rule 16 discovery requests and the Rule 43 waiver of appearance and entry of a not guilty plea. She said the forms would then be reviewed at the next meeting.
Chair Kleven informed the Commission that the ND Association of Counties will be reviewing draft legislation that would relieve the counties of the responsibility to provide appointed counsel in mental health commitment cases.
Chad Nodland said the federal court is considering establishing a federal public defender office in North Dakota. It appears, he said, that there might be two defenders in Fargo and two in Bismarck, with contracting available if additional attorneys are needed. He suggested, and Commission members agreed, it would be useful to contact Judge Webb for information about the program. Judge Kleven said she would contact Judge Webb for additional information.
No further business appearing, the meeting was adjourned at 10:25 a.m.
Jim Ganje, Staff