Chief Justice Gerald W. VandeWalle, Chair
Judge Karen K. Braaten
Judge Georgia Dawson
Judge M. Richard Geiger
Judge Gail Hagerty
Judge William McLees
Judge John T. Paulson
Judge Allan Schmalenberger
It was moved and seconded that the minutes of the November 24 and December 24, 2003, meetings be approved. Motion carried.
Update on Administrative Defense Activities
Ted Gladden provided a review of the indigent defense quarterly report. He stated that two judicial districts are over budget at this time. They are the East Central and Northwest Judicial Districts. He reviewed the recommendation to the Council of Presiding Judges regarding indigent defense services in Williston. The State Court Administrator’s Office will monitor the expenditure rate, but it appears we should be able to complete the biennium within budget. In response to a question concerning additional funds, he indicated that we already have expended money out of the anticipated revenues from the indigent defense administration fund to begin the judicial district but stated that there would be the possibility of additional funding for the second year of the biennium.
Indigent Defense/Court Facility Improvement Fees
Mr. Gladden indicated that through the first six months of the biennium, $276,785 has been collected in the indigent defense fund. Using the months of October, November, and December as the basis for projecting collections, it is anticipated that approximately $1,400,000 will be collected during the biennium. As provided in NDCC § 29-26-22, the first $750,000 must be deposited in the indigent defense administration fund. The next $460,000 must be deposited in the court facilities maintenance fund. Revenues collected above that amount are to be divided equally between the two funds.
In response to a question, Mr. Gladden indicated that the Council had set up a process for utilization of monies in the indigent defense fund. In fact, based on anticipated revenues, a commitment had been made at the beginning of the biennium to use some of the funds to increase our contracts. He stated he would provide a copy of the action taken by Council on the issue of fund distribution when the meeting minutes are circulated.
Administrative Process for Screening Indigent Defense Applications
Discussion then focused on the implementation of an administrative process for the screening of indigent defense applications. An administrative process is now in place in the Northeast Central, South Central, and the Southwest Judicial Districts. A pilot project is being conducted in Walsh County of the Northeast Judicial District whereby the clerk of district court is reviewing indigent defense applications. Judge McLees stated that there is support for the concept in the Northwest Judicial District, but at this time, because of staffing concerns, nothing has been implemented in Minot. Judge Paulson said this issue is on the agenda for the April district meeting. The East Central Judicial District has discussed the use of an administrative process but feels that it would slow their criminal caseload if cases had to be delayed while administrative staff were making a determination. They are looking at alternatives and are gathering information on whether there is an appreciable difference in the number of appointments made between districts using an administrative process and those that are doing it by review of the judges. There was discussion at their last judges meeting that they need to consider closer review of the applications and possibly a greater determination made of findings of partial indigency that would reduce the impact on their contract counsel substantially.
Discussion then focused on the recent Spangenburg report sent to the State Bar Association task force studying indigent defense services. Jim Ganje indicated that the task force is now looking at the creation of some oversight body removing indigent defense oversight from the judiciary as there is a gaining sense that there are too many conflicts to leave the process within the judiciary.
Procedure for Collecting Indigent Defense Application Fees When Cases Are Dismissed
Susan Sisk reviewed a memorandum that had been distributed by Keithe Nelson outlining that the indigent defense application fee should be collected in all cases, except those cases that are subsequently dismissed. She stated that there is a divergence of practice throughout the state. After considerable discussion, staff was directed to prepare a proposal for review in cases where there is an acquittal or dismissal and provide the proposed procedures to the Council for consideration at their March meeting.
Service of Process
Ted Gladden reviewed the outcome of a recent meeting he and Jim Ganje participated in with representatives of the Association of Counties, State’s Attorneys Association, and the Sheriff’s Association. He stated that it is the position of the Sheriff’s Association that all service of process initiated from the courts, should be paid for by the courts, a position supported by a 1998 AG’s Opinion. He stated that is not occurring presently. Mr. Gladden indicated that he had suggested a middle ground in an attempt to reduce personal service as much as possible. He stated that if there is going to be any payments made, it would require an additional appropriation to the judiciary. The State Court Administrator’s Office will send a questionnaire to all clerks of court to determine on a county-by-county basis how service is being made and the number of cases in which personal service is used so that an accurate projection can be made on the potential financial impact.
Judge Geiger indicated that they are using first class mail service in the Northeast District, and it seems to be working much better than personal service. He stated that there was a delay in getting people served when it was done through personal service so they use mail whenever possible. Possibly we should look at a legislative approach that would provide that as is the case with civil actions, the party who benefits would be the party paying for the service. Judge Dawson indicated that in the East Central Judicial District, they use first class mail for service and then go to a warrant of attachment. Judge Schmalenberger indicated that in the Southwest Judicial District everyone likes the process they use whereby the clerks are using a clerks notice to serve litigants. He stated that it is much faster as they do not have to wait for a judge to sign an order to show case. If defendants do not appear in court in response to the clerks notice, they go directly to a warrant of attachment.
Mr. Gladden indicated he would keep the Council informed of discussions with the Association of Counties and the Sheriff’s Association.
Custody Investigator Training
There was considerable discussion about the materials distributed to the Council of Presiding Judges having to do with the letter from Justice Maring to Chief Justice VandeWalle discussing the use of a standardized form for custody reports. There was a sentiment that there should be written findings and that any report should not be reduced to a “check the box” form as information would not be provided to the court to assist in making findings. After considerable discussion, it was moved and seconded to refer the matter to the State Bar Association Family Law Section requesting that they develop a standardized form. Motion carried. Staff was also directed to contact the State Bar Association to be sure that there is a component on bias built into the custody investigator training program.
Proposed Amendments to Policy 505
Discussion then focused on proposed amendments to Policy 505. There was some sentiment that there should be no statement in the procedures having to do with action taken by the court as it implies that all of the reports are being read and the court is actually taking action based on the reports. Another point presented was that some judges read all the reports and sign off on those that are submitted to the court. After further discussion, it was moved and seconded to distribute Policy 505 for comment. Motion carried.
Amendments to Rule 43 Waiver
Discussion then focused on correspondence received from the North Dakota Game and Fish Department regarding the Rule 43 Waiver form for Game and Fish violations previously approved by the Council. Jim Ganje outlined advisories not included in the Rule 43 Waiver form which were added in response to the request from Game and Fish. Council members identified a number of other advisories that should be included in the form. After further discussion, it was moved and seconded to include the noted advisories in the Rule 43 Waiver form and bring the form back to the March meeting for action.
Establishment of a Judicial Ride-Along Program
Ted Gladden reviewed the materials in the booklet and inquired of the Council if they would be receptive to the establishment of a judicial ride-along program in preparation for the 2005 Legislative Session. He stated that if it is to work, it will require the personal contact of judges with legislators and the invitation to have legislators sit in on judicial proceedings. There was general support for the concept. Mr. Gladden was directed to prepare a proposal for consideration at the March meeting.
Juvenile Caseload Status
Ted Gladden reviewed the report submitted by Carla Kolling regarding the status of the juvenile caseload. He stated that the caseload is in good shape. No cases are beyond the docket currency time standards. He informed the members that they will be receiving regular quarterly reports on the status of juveniles cases statewide.
Jury Management Report
Ted Gladden then reviewed the jury management report. Again, this is a quarterly report provided to all judges and administrative personnel on the status of the jury management practices. He stated that one area that needs to be monitored is the number of cases that are cancelled or continued on the day of trial after the jury has been summoned. During the last quarter, seven cases were cancelled on the day of trial. In districts that have very rigorous pretrial monitoring procedures, there are generally less cases that cancel on the day of trial. He again encouraged the Council to review the report findings with judges of their respective districts. In response to a question from Judge Geiger regarding the number of cases cancelled or continued in the Northeast District, he stated he would inquire into one case that was being treated as a cancelled case which may have actually gone to trial.
Possible Loss of Federal Funding
Mr. Gladden then discussed the possible loss of federal funding for the lay guardian ad litem program and juvenile reinvestment dollars. He stated that at this time, he is unsure as to whether or not we will lose federal funding, but that there is action pending in the State of Missouri that if the federal government follows the course that they are planning to take in Missouri, it could result in the loss of some federal funding. He stated that he would prepare a memorandum for the Council concerning this matter as soon as he has more information from the Department of Human Services which should occur within the next two to three weeks.
Judicial Improvement Program
Mr. Gladden then reviewed AR 48 regarding the Judicial Improvement Program. He indicated that the State Court Administrator’s Office is ready to enter into a contract with the Bureau of Governmental Affairs for the handling of survey responses. He requested that each presiding judge identify the administrative person from their respective judicial districts who would handle the survey process. He then reviewed a number of administrative activities that needed to be followed as part of the review process. Administrative personnel will need to meet with the judges who are part of the survey to determine if they want to have additional names added to the survey respondents list that will be generated through UCIS. The survey participants can also identify additional questions that they would like to have added to the questionnaires. The trial court administrative personnel will distribute the questionnaires to all respondents and provide a self-addressed, stamped envelope that will return the survey to the Bureau of Governmental Affairs. The Bureau of Governmental Affairs will provide a summary of the survey responses to an individual identified by the subject judge who will review the summary with the judge. The reviewer must return the summary information to the Bureau after the review with the judge is completed. The Bureau of Governmental Affairs will dispose of all survey forms and related information within 30 days after return of the information by the reviewer.
There being nothing further for the good of the order, the meeting was adjourned.