Council of Presiding Judges
Heritage Center (Lecture Room A), Bismarck
September 21, 2000
Chief Justice Gerald W. VandeWalle
Chief Justice Gerald W. VandeWalle welcomed everyone to the meeting. By consensus, the minutes of the June 14, 2000, meeting of the Council of Presiding Judges was approved with the exception of one correction under the section entitled "Clerk of Court Financial Operations Committee" the words "district judges" should be deleted and replaced with "district court administrative personnel". The minutes of the July 25 telephone conference call of the Council of Presiding Judges were also approved by consensus.
Clerk of Court Budget
The clerk of court budget will be reported separately from the court's budget. The amount requested is $10,405,082. This is not final, but very close to being the final approved amount.
District Court Budget
Jana briefed that there are three major areas of increase: 1) a 2% increase in information technology plan; 2) a 2% increase in indigent defense; and 3) 2% in other miscellaneous areas. The requested increase for judicial pay is 4%. The discussion next turned to the indigent defense increase. The indigent defense line is almost 40% of the total operations line item, $4,101,670. Judge Jahnke next discussed the public defender concept. He estimated the cost to be $250,000 more than his current budget and his conclusion is that the only way it could effectively work is to do it on a statewide basis.
JUDGE PAULSON MOVED TO INCLUDE THE PROJECT IN THE BUDGET. JUDGE HOLTE SECONDED. THE MOTION FAILED.
The consensus of the group is that the legislature should be asked to conduct a study. By consensus it was agreed that the indigent defense item be listed as a separate line item. By consensus it was also agreed to add $80,000 as a pass-through for UND CLR. By consensus it was also agreed that $215,900 would be added for juvenile tracking and juvenile accountability conferences.
JUDGE CHRISTOFFERSON MOVED TO APPROVE THE BUDGET. JUDGE PAULSON SECONDED THE MOTION. THE MOTION PASSED.
Jana briefed on the policy she has developed with the financial operations committee for the clerks of court on bank accounts.
After discussion, JUDGE BACKES MOVED TO APPROVE THE DOCUMENT SUBJECT TO COMMENT AND THEN FORWARD IT TO THE SUPREME COURT FOR THEIR CONSIDERATION. JUDGE GRAFF SECONDED THE MOTION. THE MOTION WAS CARRIED.
Greg briefed on the criteria used that was developed by the administrative personnel for budget purposes. This is included for information only. The budget includes one out-of-state trip per year for judges; one out-of-state trip per biennium for referees, trial court administrators, administrative assistants, juvenile court department heads, and clerks of court; one trip every four years for juvenile court officers; no out-of-state training was budgeted for court reporters, secretaries, law clerks, or others as their educational needs can be met in-state.
Clerk of Court Financial Operations
Jana Thielges distributed recommendations concerning the financial operations of state operated clerk offices, which were developed by the Clerk of Court Financial Operations Working Committee. The Council directed Jana and Greg to prepare a policy for the Council's consideration which would allow the director of finance to establish appropriate procedures for clerk of court financial operations.
Jury Management Statistics
Ted stated that this is provided for information only.
JUDGE CHRISTOFFERSON MOVED TO ADD AN INCREASE IN JURY EXPENSES TO THE BUDGET. A proposal will soon be offered to the Supreme Court to increase juror pay from $25 to $50 per day on the second day and thereafter. It is estimated that this will add $250,000 to the budget. JUDGE HOLTE SECONDED THE MOTION. THE MOTION WAS CARRIED.
Jim Ganje reviewed draft legislation regarding the duration of temporary domestic violence protection orders. The draft also addresses a related issue with respect to disorderly conduct restraining orders. These changes leave the temporary order in effect until the permanent order is served unless earlier terminated.
JUDGE SCHMALENBERGER MOVED TO APPROVE THE CHANGES AND FORWARD TO THE COURT FOR CONSIDERATION. JUDGE CHRISTOFFERSON SECONDED THE MOTION. THE MOTION CARRIED.
Disorderly Conduct Restraining Orders Forms
Jim Ganje and Ted Gladden discussed the forms attached in the agenda book. These are submitted in response to a request for standard forms.
JUDGE SCHMALENBERGER MOVED TO CIRCULATE THE FORMS FOR COMMENT. JUDGE PAULSON SECONDED. THE MOTION WAS CARRIED.
Draft Legislation - Application Fee for Appointed Defense Services
Jim Ganje briefed on a request from the Indigent Defense Commission that a $25 fee for indigent defense services would be charged in each case, however the fee could be waived. The fee would go to the state general fund or, as an alternative, a special fund for the judiciary to run the indigent defense program. The Commission requested Council comment.
JUDGE SCHMALENBERGER SAID HE AGREED WITH THE CONCEPT, BUT THE COLLECTED FUNDS SHOULD GO TO THE GENERAL FUND. HE MADE A MOTION TO THIS EFFECT. JUDGE BACKES SECONDED THE MOTION. THE MOTION CARRIED.
Keithe Nelson briefed on the concept of creating a separate category of leave for individuals who want to attend a course or conference that will improve their knowledge, but for which funds are not available.
JUDGE GRAFF MOVED TO APPROVE THE CONCEPT, BUT TO COORDINATE IT WITH THE PERSONNEL COMMITTEE AND THEN SEND IT TO THE COURT FOR FINAL APPROVE. JUDGE BACKES SECONDED THE MOTION. THE MOTION WAS CARRIED.
Uniform Ledger Card Procedures and Collection Flowchart
Ted Gladden and Jim Ganje briefed on issues regarding clerk involvement in satisfying and renewing criminal judgments for fines, fees, costs, and restitution when, or if, those judgments are reduced to civil judgements. Jim said research suggests clerks should not be involved in satisfying and renewing civil judgments as part of a collection program. It appears the state's attorney is more appropriately responsible for these activities. On the issue of wage assignments or income withholding as part of a collection program, Jim said there is little caselaw or other authority that supports court-initiated action in this area. He said state law requires employers to withhold those deductions required by state or federal law, and there is no statutory provision governing income withholding for purposes of paying a judgment for fines or costs. However, he said, the same statute permits the employer to make deductions for items authorized in writing by the employee (N.D.C.C. §34-14-04.1). Given the voluntary nature of this authorization, he said, secondary enforcement, e.g., contempt, for stopping income withholding to pay fines may be problematic.
JUDGE SCHMALENBERGER MOVED TO SEND IT TO STAFF TO COMPLETE THE WORK AS PRESENTED IN THE MEMORANDUM AND THAT THE LEDGER CARD PROCEDURE NOT INVOLVE CLERKS IN COLLECTION ACTIVITIES ONLY MONITORING. THE PROCEDURES WERE APPROVED FOR IMPLEMENTATION STATEWIDE. JUDGE GRAFF SECONDED. THE MOTION WAS CARRIED WITH JUDGE PAULSON AND JUDGE CHRISTOFFERSON DISSENTING.
Trial Court Administrative Positions
At the last meeting of the Council, Greg Wallace and Ted Gladden were asked to provide recommendations on the utilization of administrative assistants. There was no further discussion on this issue.
Appointing Custody Investigators and GALs
Sandi Tabor, who arrived to present this section, briefed on courses conducted via interactive television. SBAND is not in a position to take on this additional training, but she is willing to work with a committee to run the program. Greg suggested that Tara and the UND family training center be asked to provide the training and to inquire as to the price for training non-attorneys.
JUDGE CHRISTOFFERSON MOVED THAT CUSTODY INVESTIGATORS BE TRAINED AND OVERSEEN BY THE JUDICIARY BY OUT-SOURCING, IF NECESSARY. SBAND CAN OVERSEE ATTORNEY GUARDIAN AD LITEM TRAINING. JUDGE PAULSON SECONDED THE MOTION. THE VOTE WAS 3 TO 3. THE MOTION FAILED.
Staff was directed to work with Sandi Tabor to bring back a proposal for the Council's consideration.
Juvenile Court Expert Witness Payment
Greg pointed out that the easy way around this problem is for our juvenile court personnel not to sign petitions or to summon witnesses and then that leaves the issue moot as far as the judiciary is concerned.
JUDGE CHRISTOFFERSON MOVED THAT JUVENILE COURT OFFICERS SHOULD BE PROHIBITED FROM SIGNING ORIGINAL PETITIONS. JUDGE SCHMALENBERGER SECONDED THE MOTION.
After discussion, it was voted to table the motion. Greg Wallace was directed to draft a policy and get input.
Court Recording Procedures
Greg next presented Policy 510, which was drafted to lay the requirement for following procedures on the recorder.
JUDGE CHRISTOFFERSON MOVED TO CIRCULATE THE POLICY FOR COMMENT AND TO REVISE IT TO INCLUDE DIGITAL RECORDING OPERATORS ALSO. JUDGE SCHMALENBERGER SECONDED THE MOTION. THE MOTION CARRIED.
Clerk of Court Management Reviews
Ted Gladden asked the Council to approve a proposal to conduct management reviews in each of the state funded offices. Management reviews have been conducted in Grand Forks, Burleigh, Barnes and Richland Counties. Minimal updating will be necessary in these counties. On-site visits will be conducted in the seven remaining counties over the next year and a half.
JUDGE HOLTE MOVED TO APPROVE THE PROPOSAL. JUDGE SCHMALENBERGER SECONDED. THE MOTION WAS CARRIED.
Domestic Violence Response
Ted Gladden outlined the course he attended on family violence and provided family violence recommendations. Ted offered to get together with Bonnie Palecek to come up with a plan based on his memorandum. A report will be provided at the next meeting.
Statewide Caseflow Management Committee
Ted Gladden outlined the proposal for a statewide caseflow management committee. The committee would consist of one district judge from each judicial district; one judicial referee; one assistant state court administrator for trial courts; one district administrative person; two state's attorneys appointed by the state's attorneys association; two public defenders chosen from a list of contract defenders; and two members of SBAND appointed by the president of the State Bar Association.
JUDGE BACKES MOVED THAT WE CREATE SUCH A COMMITTEE. JUDGE SCHMALENBERGER SECONDED. THE MOTION WAS CARRIED.
Criminal Case Reporting
Ted Gladden discussed an internal study done in the state court administrator's office concerning charging practices. This study was conducted last January and looked at four months of data. There were no clear conclusions as a result of this study. Experts say the first step in caseflow management is to decide how cases are to be counted. It was agreed by consensus that this issue will be referred to the Caseflow Management Committee for their first official act.
Termination of Parental Rights
Greg next briefed on a form that will be used by attorneys working termination of parental rights cases. This form will be used for reimbursement from the Department of Human Services. This work is in addition to the work of indigent defense contracts and, as a result, not reimbursed as a part of the indigent defense process.
Secretary II Reclassifications
Keithe Nelson presented a package of requests for reclassification by secretary IIs, who are assigned to the judges and regularly performing court recording duties. These requests and recommendations of the presiding judges and a stack of letters submitted by district judges in support of this request were provided for information only. One district has not forwarded their recommendations along with the requests. When this is received the entire package will be forwarded to the Personnel Policy Board for appropriate action.
Non-Renewal of Indigent Defense Contracts
Chief Justice VandeWalle asked that he be given a heads-up when contracts are not renewed. Sometimes he gets telephone calls and without any knowledge it puts him into a difficult situation. He also advised that it would be advisable to document in some manner the reason for the non-renewal.
Policy 505 - Guardianship/Conservatorship
JUDGE SCHMALENBERGER MOVED TO SEND POLICY 505, WITH THE ATTACHMENTS, OUT FOR COMMENT. JUDGE GRAFF SECONDED THE MOTION. THE MOTION CARRIED.
ITV - The Next Step
Ted Gladden referred to his memorandum in the agenda book which suggests the next ITV effort be to tie in the State Hospital to Stutsman County district court this biennium and, if successful, in the next biennium link the Cass County jail to Cass County district court. Early returns on the test project in the South Central part of the state indicate the non-chambered centers may not generate enough volume to support the cost of the program.
Leadership Conference Notes
These notes evolve from the leadership conference facilitated by Dale LeFever this spring. They are attached for informational purposes only. By consensus it was agreed that the meetings be scheduled more frequently until the clerk of court issues are resolved. The Chief Justice asked that IVN be used for the winter meetings when possible.
Trial Court Administrators Report
Greg did not provide anything additional. Ted passed out some sample district policies he had collected and also outlined the proposal to conduct an assigned study on the FTEs required for clerks of court to do restitution.
The meeting adjourned at 3:40 p.m.