Chief Justice Gerald W. VandeWalle, Chair
Judge Georgia Dawson for Judge Norman Backes
Judge Donovan Foughty for M. Richard Geiger
Judge Benny Graff
Judge Debbie Kleven
Judge William McLees for Judge Robert Holte
Judge John Greenwood for Judge John Paulson
Judge Allan Schmalenberger
It was moved and seconded that the minutes of the July 21, 2003, meeting were approved as distributed. Motion carried.
In response to the question of follow up on the Audio Sync issue raised by Judge Backes at the July 21 meeting, Greg Wallace indicated he would visit with Judge Backes concerning his wishes.
Discussion focused on the draft of Policy 505. Ted Gladden indicated that the only comment received was from Paulette Reule and was very supportive of the policy amendments. There was discussion of the questions that Paulette Reule raised in her letter having to do with modification proceedings. Ted Gladden indicated that Mike Schwindt had prepared a letter in response to Ms. Reule’s questions. He indicated he would provide a copy of that letter to the presiding judges.
After further discussion, it was moved that Section F would be added relating to the death of the obligor. The language will read, “Unless otherwise specified by court order, the current child support obligation will terminate upon the obligor’s death. When available, documentation of the obligor’s death must be filed with the support order.”
It was moved and seconded to distribute the policy amendments for comment. Motion carried.
Procedures for Handling G & F Violations from Non-Compact States
Ted Gladden reviewed the letter from District Supervisor Robert Timian regarding issues related to enforcement of the Game & Fish violations from non-compact states. He indicated that they have removed the Rule 43 waiver from the back of the form and that defendants are told that they must contact the state attorney regarding Rule 43's. Mr. Timian, in correspondence to Ted Gladden, raised the question of whether Game & Fish enforcement personnel should issue a citation with just a promise to appear signed, as they would with a resident, or should they bring the violator in and have them post a bond, as they do not accept bonds in the field. Discussion then focused on the proper procedure to follow. It was brought up that they should be issuing promises to appear, regardless. Judge Schmalenberger suggested that we use the same procedure as that with over-the-road truckers. He further added that Game & Fish personnel should use a uniform citation with a promise to appear or they can do a warrantless arrest but then should use the long form complaint. Ted Gladden was instructed to contact all clerks of court and provide the procedure that would be followed which would include the providing of a Rule 43 waiver form in advance of their appearance in court so that if the Game & Fish violator does not want to appear, they could execute a Rule 43 and pay the fine.
Amendments to Child Support Judgments
Discussion focused on the need for a statewide policy on the preparation of child support judgments as outlined in Judge Backes’ letter of August 26, 2003. The practice in the East Central District is to require child support personnel to provide a complete updated judgment whenever the judgment is amended. This is not the practice in other parts of the state. In Grand Forks, since the Child Support Enforcement Unit has a scanner, they do provide a revised judgment. In the rest of the state, judges work with just the amended judgment. There was some concern that if the judgment has to be prepared each time, it significantly increases the margin of error as well as the workload on the personnel having to submit an amended judgment. Jim Fleming of the State Child Support Enforcement Office had queried all district child support enforcement officers regarding their practices. They felt that it would increase their workload substantially if they were required to submit a completely new judgment whenever a civil judgment is amended. The question was raised as to whether this standard would be applied to all attorneys or just the Child Support Enforcement Unit. After further discussion, it was concluded that no action would be taken at this time, however, staff was encouraged to visit with regional child support administrators to see about a greater use of scanners, as is the case in the Grand Forks office.
ADR Use and Monitoring of Scheduling Questionnaires
Ted Gladden reviewed the materials in the book as well as supplemental materials that were mailed in response to questionnaires distributed to each district regarding the use of ADR and the monitoring of the submission statement with the court within 60 days of filing the answer detailing ADR participation that has occurred or is planned to occur.
Mr. Gladden indicated that the South Central Judicial District monitors all cases for filing of the questionnaire and that judges make a determination on all cases. Judge Schmalenberger indicated that a scheduling conference is held in every case in the Southwest District, and as a result, they are exploring ADR as an option in all appropriate civil cases. There was a general sense that ADR is still not part of our North Dakota culture and while it is going on in the private sector, there was concern that under the present rule, the only court annexed ADR would be for those individuals who cannot afford to hire independent services.
Mr. Gladden indicated that in reviewing all of the material, it still appears that very little is being done in most districts to comply with the minimum requirements of the ADR rule. He stated districts should be monitoring the filing of the informational statement, at a minimum.
Jury Bailiff Compensation
Judge Graff reviewed his request to have jury bailiff pay raised $.50 per hour. Presently, a jury bailiff’s salary is set at $1.50 over minimum wage. The request is that it be increased to $2.00 per hour over minimum wage. Ted Gladden indicated that the anticipated cost in raising the bailiff’s salary from $6.65 to $7.15 per hour would be $7,065.84 for the biennium. After further discussion, it was moved and seconded to increase the jury bailiff salary to $2.00 per hour over minimum wage which would set the rate at $7.15 per hour effective July 1, 2004. Motion carried.
Custody Investigator Training
Ted Gladden discussed the need for custody investigator training based on Rule 8.6, North Dakota Rules of Court, requiring 18 hours of direct contact for investigators to become certified and the recommendation that all custody investigators have eight hours of annual training per year.
He stated that state court administrative staff had met with Chris Hogan of the Bar Association to see if the Association would be interested in providing the custody investigator training as most of the training also has direct application for guardians ad litem. After discussion, it was agreed that a contract draft would be prepared. Once it is finalized, it would be circulated to the presiding judges for review and comment.
The objective is to assure an orientation program every other year for new custody investigators and three programs annually to meet the suggested six hour approval training need. Mr. Gladden indicated that there were limited funds in the budget and that we could explore the possibility of federal grant funds through the STOP program.
Mr. Wallace indicated that there was some interest on the part of The Village Family Service Center in a relationship with the judiciary wherein they would recruit and monitor custody investigators.
Juvenile Court Time Standards
Greg Wallace reviewed the juvenile court time standards and their impact on case processing within the time standards. He indicated that much of the delay observed is not related to courts but based on the pace of case-related activity by social service agencies. When cases are beyond the time standard as a direct result of court action, the matter is brought to the attention of the presiding judge by Mr. Wallace for resolution. He reviewed the generation of the report that is prepared by administrative staff and provided to all judges. There was a sense that the report generation is an item that should be placed on the administrative agenda of the various judicial districts to discuss who generates reports, how often the report is generated, and what the expectations are with the report data.
Spring 2003 Docket Currency Report
Ted Gladden and Chief Justice Gerald VandeWalle discussed the spring docket currency report. Mr. Gladden indicated that all cases are being monitored and that the caseload is in very good condition, statewide. The judges are reviewing all cases and future monitoring dates are being set routinely to assure that cases are processed within the time standards provided in Administrative Rule 12.
Guidelines for Clerks of Court to Assess Self-Represented Litigants
Chief Justice VandeWalle reviewed a referral that has been made to the Trial Court Operations Committee requesting that they look at the preparation of materials for clerks of court on what types of advice and information they can provide to the public. He had provided a copy of the Iowa booklet to Judge Nelson, Chair of the Trial Court Operations Committee, for consideration as a possible guide.
Administration of Administrative Fees
Mr. Gladden reviewed the collection of administrative fees. He indicated that by the next meeting he would have a comprehensive report available for the judges. They will receive the report on a regular quarterly basis. It will detail the amount of monies that have been assessed and what has been collected for the indigent defense services fund and the court improvement fund.
Chief Justice VandeWalle requested that staff provide data on the amount of monies that are assessed for all types of fees and costs and the actual distribution of the monies submitted to the State Treasurer. Mr. Gladden indicated that he would provide this information to the Council.
[At this point, Chief Justice VandeWalle had to leave. Judge Graff assumed the chairmanship of the Council meeting.]
Discussion of Service of Process
Mr. Gladden provided background having to do with service of process and the payment of fees for this service. He indicated that we are presently holding bills from a number of counties submitted by the county sheriffs for the cost of service of process in criminal actions wherein the court has issued an order to show cause for nonpayment of fines or costs. We have paid for out-of-state service in juvenile cases, but not in-state service on juvenile cases. The Council reviewed Attorney General’s Opinion 98-07 on this subject. There was discussion over the issue of the constitutionality of a county unit of government ordering payment by the state, especially in areas where no funds have been budgeted. After considerable discussion, it was moved and seconded that Mr. Gladden should return the bills to the counties indicating that they would not be paid. Motion carried.
Service by Publication and Preparation of Juvenile Petitions
Greg Wallace then reviewed the standards having to do with service by publication and preparation of petitions. There was some question as to whether it is the court’s responsibility to pay these publication costs. After considerable discussion, it was agreed that we would continue to pay the publication costs based on our present policy and the fact that funding has been provided. Discussion then focused on the role of juvenile court personnel preparing formal petitions. The Council of Presiding Judges indicated that they would request that the Juvenile Policy Board create a study group to review these issues and provide guidance for the ‘05 Session. The study group should be broadly based involving judges, states attorneys, and other affected parties in working through the best strategy concerning payment of publication costs and preparation of juvenile court petitions.