Judge Debbie Kleven, Chair
Rep. Ron Carlisle
Mary Norum Hoberg
Chair Kleven called the meeting to order at 10:00 a.m. and drew Commission members' attention to the minutes of the October 26, 2000, meeting.
It was moved by Carl Flagstad, seconded by Mary Hoberg, and carried unanimously that the minutes be approved.
At the request of Chair Kleven, Jana Thielges, Director of Finance, provided an overview of the indigent defense budget for the 2001-2003 biennium. She distributed and explained a chart comparing the 1999-2001 budget to the 2001-2003 budget. A copy is attached as an Appendix. She noted that overall the indigent defense budget for the 2001-2003 biennium represents a 15.9% increase over the previous biennium. That increase, she said, includes $225,000 in federal funds received under the Adoption and Safe Families Act. She said the increased budget allows all judicial districts to move closer to the target of $65 per hour for contract counsel. She noted that the budget, in addition to covering contract counsel compensation and compensation for counsel appointed outside contracts, also provides funds for incidental expenses such as witness fees, transcript costs, and telephone expenses. However, she said nearly 94% of the budget is for counsel compensation.
Interim Legislative Study of Indigent Defense Services - Update
Chair Kleven next drew attention to Attachment B (July 5, 2001) - the study resolution regarding indigent defense services. She noted that the study would be conducted by the Judiciary "A" Committee, which will have its organizational meeting on July 25. Staff said general background information regarding the indigent defense system will be provided to the committee at that time. Whatever other information or assistance the Commission might provide, he said, will then depend on the direction the legislative committee takes in its study.
Rep. Carlisle stressed the importance of the interim study as a method of educating legislators about the operation of the indigent defense system.
Chair Kleven said she would send a letter to the chair of the interim committee advising him that the Commission is available to assist with the study in whatever way the committee would consider helpful.
Spangenberg Group Case Studies of Minnesota and Wyoming Systems
Chair Kleven drew attention to Attachment C (July 5, 2001) - "Case Studies of Two Indigent Defense Systems: Minnesota and Wyoming", which was prepared by The Spangenberg Group in response to questions asked when the Spangenberg representative met with the Commission at its October 2000 meeting.
Staff noted that the Wyoming system profile, dealing as it does with a state that has characteristics somewhat similar to North Dakota, offers useful information to consider about how a public defender system might be established in the state. Additionally, he observed that Wyoming uses 200 cases per year as the benchmark for acceptable caseload for its public defenders. Carl Flagstad said he averages between 230 and 250 cases per year under his contract.
With respect to the interim legislative study, Mary Hoberg said she did not recall the Commission ever having made a recommendation concerning what a public defender system in North Dakota should look like. She said she favors the idea of an independent public defender board similar to that in Minnesota, for example. She wondered whether the Commission should develop and offer to the legislative committee a suggestion concerning an alternative structure, or whether the legislative committee will develop a proposal itself, with the Commission offering comments.
Judge Kleven suggested as a possible approach, depending on how the legislative committee proceeds, that the Commission could, at subsequent meetings, discuss the outlines of possible alternatives to the contract system, perhaps in comparison to the Wyoming system. Mary Hoberg suggested comparative information about surrounding states may be useful. Staff noted that background information comparing indigent defense systems around the country had been provided to the legislative committee. Additionally, he said, there will likely be a fairly pragmatic first consideration about how the study proceeds, and that is whether a different method of providing indigent defense services can be provided without incurring significant additional cost. Factored into that discussion, he said, will be the more substantive concern of some judges that judicial participation in the indigent defense system represents a conflict of interest.
Mary Hoberg asked whether a meeting should be given over to considering whether an alternative system could be developed within a budget somewhat similar to that of the current system. She said the Commission could then also consider what are thought to be the most pressing concerns about the present contract system.
From his perspective as contract counsel, Carl Flagstad said compensation for contract counsel has always been an issue, but there appears to have been some improvement in that area. He agreed with the concern that judicial involvement in the operation of the system may be a conflict of interest. Additionally, he said, there is still an ongoing concern about whether the contract system can retain quality lawyers who provide quality representation. He said the cost of the present system seems to be approaching a level that might support consideration of an alternative.
Chair Kleven said the Commission would continue its review of these issues at future meetings and determine how best to respond to the direction taken by the legislative committee.
Procedures and Guidelines - Review
Discussion then turned to a review of Sections 2 - 5 of the Indigent Defense Procedures and Guidelines to determine whether any revisions were necessary.
Staff said there does not appear to be many areas in Sections 2-5 that require modification. He noted that Section 5a concerning model bid and award specifications may no longer be entirely relevant because judicial districts typically do not use a bid process for awarding contracts. Nevertheless, he said there may be some utility in leaving the section in the Procedures and Guidelines in the event a bidding process is used in the future.
With respect to paragraph 7D on page 5a.3, Wade Enget asked whether the percentage breakouts on different criteria are used in the various districts as a basis for awarding the indigent defense contract. Judge Kleven said the criteria are not used in the Northeast Central judicial district. Staff said the bid specifications, of which the percentage breakouts are a part, have not been used recently in the judicial districts. In response to a question from Mary Hoberg, staff said the typical process entails an announcement in the judicial district that a contract for indigent defense services is available at a certain level of compensation. Interested lawyers, he said, will then submit applications that are reviewed by the presiding judge, sometimes assisted by a reviewing committee..
Judge Kleven drew attention to page 2.3 and the kinds of expenses identified as reimbursable without prior approval - collect telephone charges, long distance telephone charges, and copying charges. She noted that contract counsel in the Northeast Central judicial district typically submitted requests for reimbursement of these kinds of expenses which were so small that they rarely exceeded $400 in a two year period. Consequently, she said, they deleted this particular part of the contract and simply added a flat amount to contract compensation to cover these expenses. She said that change relieves counsel from having to track these minor expenses and submit individual reimbursement requests. Staff said this is an approach being followed in some, but not all, judicial districts.
Judge Kleven noted that reimbursement of transcripts, which is addressed in paragraph f1 on page 2.4, was recently addressed by the Council of Presiding Judges. She suggested this provision should be modified if it is inconsistent.
Staff noted that under the "Services Covered" portion of the model contract on p.4.2, references to proceedings under the Uniform Parentage Act could be deleted since those are county expenses. Judge Kleven said these proceedings have been deleted from the contracts in the Northeast Central judicial district.
Staff informed the Commission that the Council of Presiding Judges had adopted a policy requiring withholding of checks if contract counsel has not submitted the case reporting information addressed in paragraph 17 of the model contract (page 4.7). Commission members agreed the provision should be added to the model contract in the Procedures and Guidelines.
Chair Kleven said the remaining sections of the Procedures and Guidelines would be reviewed at future meetings.
Staff announced that Carl Flagstad's last term on the Commission would end on July 21. Chair Kleven and Commission members thanked Carl for his participation and work as a Commission member.
There being no further business, the meeting was adjourned at 11:30 a.m.
Jim Ganje, Staff