COURT SERVICES ADMINISTRATION COMMITTEE
Holiday Inn, Bismarck
August 6, 1999
William A. Strutz, Chair
Carla Kolling, Director of Human Resources & Development
Chair Strutz called the meeting to order at 10:00 a.m. and drew Committee members' attention to Attachment B (July 30, 1999) - Minutes of the June 17, 1999, meeting.
IT WAS MOVED BY JIM ODEGARD, SECONDED BY REP. DELMORE, AND CARRIED UNANIMOUSLY THAT THE MINUTES BE APPROVED AS MAILED.
Implementation of House Bill 1275 - Draft Clerk of District Court Administrative Rule
At the request of Chair Strutz, staff reviewed Attachment C (July 30, 1999) - A revised draft administrative rule regarding clerk duties and appointment. Staff said the rule components in Section 2 (Clerk Duties and Responsibilities) and Section 3 (Clerk Appointment) were modified based on Committee discussion at the last meeting. He said new language was inserted in Section 3C to describe the process by which a chief clerk of district court could be designated in judicial districts in which there is more than one state-employed clerk. The chief clerk, he said, would be responsible for general oversight of clerk of court operations in the judicial district. Section 3C, he said, also establishes a role for the assistant state court administrator for trial courts responsible for clerk of court operations and the presiding judge in overseeing clerk of court operations. He said new language is included as Section 3D, which would establish the responsibility of the office of state court administrator to provide advice and information to state-employed clerks of district court concerning delivery of clerk of district court services. Staff then distributed a comment received from Paulette Reule, Stark County Clerk of District Court, regarding clerk presence in the courtroom and responsibilities for maintaining witness information. A copy of the comment is attached as Appendix A.
With respect to clerk presence in the courtroom, Tom Trenbeath said district judges should have latitude when determining whether a clerk of district court should be present or not. Courtroom situations, he said, require flexibility in these matters.
Judge Riskedahl noted Paulette Reule's concern that the absence of a standard regarding clerk presence leads to a lack of uniformity among the districts and uncertainty regarding what is required of clerks. He said efficient use of time should be imperative and, as a consequence, he is wary of a subjective standard about when and why a clerk or clerk staff should be required to be in the courtroom.
Staff noted that clerk presence in the courtroom, as well as certain other duties, has become an issue in light of its relationship to the FTE staffing analysis that forms the basis of options available to counties under House Bill 1275.
Tom Trenbeath asked whether issues such as clerk presence in the courtroom were included in development of the FTE analysis.
Ted Gladden noted that the staffing analysis for Burleigh County, for example, was very close to the number of employees currently in the clerk's office, and clerk staff in Burleigh County are not required to be in the courtroom very often. He cautioned that if there is not a fairly high degree of consistency with respect to clerk and clerk staff work commitments, then there will be a problem with respect to adequate staffing. In response to a question from Judge Jorgensen, Dorothy Howard, Cass County Clerk of District Court, said it would be difficult to decide exactly when a clerk is needed in the courtroom. In Cass County, she said, it is very important that clerks are present during criminal hearings.
Justice Neumann drew attention to the article distributed August 2, which discusses judge-court manager relationships. The article, he said, describes the differing approaches between judges and court managers with respect to judicial administration and emphasizes the need for team work and mutual respect. He said the issue of clerks in the courtroom is an example of how judge demands may conflict with efficient use of staff. He said thorough work is needed to bring judges into the system as "team players". He cautioned that nothing much may be gained if the Committee recommends mandating standards to a minority of "non-team" judges. He said a middle ground might be, perhaps, to allow each district to adopt a local rule governing clerk presence in the courtroom which would be uniformly applied throughout that particular district.
Mike Sturdevant expressed concern about establishing arbitrary standards, such as a particular number of exhibits. He said he would prefer using both the criteria set out in Section 2B, that is, at the request of the judge if the complexity of the case and other matters warrant clerk presence.
Ted Gladden suggested it may be beneficial for the Committee to assemble information about clerk presence in the courtroom across the state.
Following discussion, Committee members agreed the clerks of district court should be surveyed to determine whether and under what circumstances they may be required to be present in the courtroom.
With respect to the new language in Section 3C, concerning the chief clerk of district court, Tom Trenbeath wondered why there are two levels of responsibility: that of the chief clerk of district court and the assistant state court administrator for trial courts. Perhaps, he said, responsibility for overseeing clerk of court operations generally should be vested only with the assistant state court administrator.
Mike Sturdevant said he is concerned that the approach in Section 3C simply creates another level of bureaucracy.
With respect to the involvement of the assistant state court administrator in counties where there is no state-employed clerk, Justice Neumann suggested the possibility of using the chief clerk of district court for an adjacent district to oversee clerk operations.
With respect to Section 3D regarding advice to clerks, Rep. Mahoney wondered why advice from the office of state court administrator would be limited to state-employed clerks. Staff said the initial draft language reflects the general understanding that advice to clerks of district court who are county employees should come from the state's attorney.
Justice Neumann said there likely would be little problem with the office of state court administrator providing advice to a state-employed clerk or a clerk in a funding agreement county. But, he said, it may be another matter if the county is providing clerk of district court services at its own expense. Judge Jorgensen said advice from the office of state court administrator to all clerks would be appropriate since under the new law all clerk of district court services are required to be provided in a manner consistent with standards and procedures developed by the supreme court.
Justice Neumann said if advice is to be offered, then there should be provision for advice and information to be provided by the clerk of the supreme court also. He said clerks many times have questions regarding appellate procedure or other procedural requirements that involve the clerk of the supreme court.
IT WAS MOVED BY JUSTICE NEUMANN, SECONDED BY JIM ODEGARD, AND CARRIED UNANIMOUSLY THAT SECTION 3D BE MODIFIED TO INCLUDE THE CLERK OF THE SUPREME COURT AS A SOURCE OF INFORMATION AND ADVICE.
IT WAS MOVED BE REP. MAHONEY, SECONDED BY JIM ODEGARD, AND CARRIED UNANIMOUSLY THAT SECTION 3D BE FURTHER MODIFIED TO PERMIT ADVICE AND INFORMATION TO BE PROVIDED TO ALL CLERKS OF DISTRICT COURT.
With respect to Section 2C, regarding clerk compliance with and implementation of Clerk of Court Manual procedures, Ted Gladden suggested adding compliance with procedures set out in the Manual for the judicial system's automated information system, i.e., UCIS (unified court information system).
IT WAS MOVED BY TED GLADDEN, SECONDED BY DOUG JOHNSON, AND CARRIED UNANIMOUSLY THAT SECTION 2C BE MODIFIED AS DESCRIBED.
Chair Strutz said a revised draft rule would be reviewed at the Committee's next meeting.
Draft Administrative Reorganization Proposal
At the request of Chair Strutz, staff reviewed Attachment D (July 30, 1999) - the revised draft administrative reorganization proposal. Staff also briefly reviewed Attachment E (July 30, 1999) - comments received concerning the reorganization proposal. Staff also noted the article distributed August 2 to Committee members regarding judge-court manager relationships. Staff then distributed a recently received letter from Judge Allan Schmalenberger, which also had attached the judge-court manager relationships article. A copy of the letter is attached as Appendix B.
Tom Trenbeath noted a common thread throughout the comments was a question concerning what exactly the problem was that is to be resolved with the reorganization proposal. Justice Neumann said the reorganization proposal began with viewing the matter as a structural issue. However, he said, it may be that the issue is not structural, but one of attitude. He observed that many frustrations with the present system were frustrations with the attitude of some district judges.
Judge Jorgensen said an additional reason for the reorganization proposal was to seek a better utilization of judges' non-court time, for example, involvement in various committees. Judge Riskedahl noted Judge Schmalenberger's letter/comment, which suggests that unless the judicial system takes seriously the principles enunciated in the judge-court manager relationships article, then any reorganization effort would be pointless. He agreed with these general sentiments and wondered if there is any way to effectively address the substantive concerns.
Staff drew attention to an issue noted in some of the comments and an issue left unresolved in the draft administrative reorganization proposal. That issue, he said, concerns the status of the Juvenile Policy Board whether it should be an advisory body to the Supreme Court, as it is now, or an advisory committee of the proposed judicial council.
Ted Gladden noted that he has always considered the juvenile court to be part of the district court, with judges providing superintending authority. However, he said, Administrative Rule 35, which establishes the Juvenile Policy Board, discusses staffing standards and budgetary recommendations, which are generally the responsibility of the Council of Presiding Judges.
Judge Jorgensen said the perception by juvenile court personnel is that they have some sense of independence through the operation of the board.
In response to a question from Sen. Watne concerning the uniformity of juvenile procedures, Judge Jorgensen said there had been greater lack of uniformity in the past among the juvenile courts, but juvenile court personnel have worked hard to achieve more uniformity. The Juvenile Policy Board has been, he said, a good vehicle for identifying generally uniform practices.
Judge Jorgensen observed, and Justice Kapsner agreed, that it may be possible to provide in the rule that the status of the Board could be reviewed from time to time, perhaps by the chief justice, with a decision regarding whether it should continue as an advisory body to the supreme court or be changed to a committee of the proposed judicial council.
IT WAS MOVED BY JUDGE JORGENSEN, SECONDED BY JUSTICE KAPSNER, AND CARRIED UNANIMOUSLY THAT SECTION 7 OF THE DRAFT ADMINISTRATIVE REORGANIZATION RULE BE MODIFIED TO PROVIDE FOR THE PERIODIC REVIEW OF THE STATUS OF THE JUVENILE POLICY BOARD.
With respect to responding to the various comments regarding the proposal, Tom Trenbeath suggested sending minutes of the Administrative Structure Subcommittee and the full Committee's discussion of the proposal to those who submitted comments. He said the commentors could then submit additional concerns or comments after reviewing the various discussions concerning the objectives of the proposal. After further discussion, Committee members agreed the minutes of the various meetings should be distributed to those who submitted comments regarding the proposal.
Justice Kapsner suggested Section 2B of the draft administrative reorganization rule should be modified to clarify that the five members of the judicial council to be appointed from nominations submitted by the State Bar Association would, in fact, be lawyers.
IT WAS MOVED BY JUSTICE KAPSNER, SECONDED BY TOM TRENBEATH, AND CARRIED UNANIMOUSLY, THAT SECTION 2B BE MODIFIED AS DESCRIBED.
Sen. Watne noted that several comments concerned the issue of districts and whether there should be one, two, or three. She recalled that a possible benefit of having a small number of administrative districts is that it may be less costly and more efficient in terms of organizing the judicial system budget at the district level. Additionally, she said, some of the comments appear to have interpreted "administrative districts" as being the same as judicial election districts, which is not the case under the draft proposal.
Following further discussion, Chair Strutz said the revised proposal would be considered further at the Committee's next meeting.
At the request of Chair Strutz, staff summarized issues regarding clerk duties and responsibilities in the areas of restitution and preparation of criminal judgments. In some counties, he said, the clerk's office is entirely responsible for restitution, while in others restitution is the state's attorney's responsibility, and in still other counties the clerk is responsible for some, but not all, activities regarding the receipting, monitoring, and disbursing restitution. The same variety of responsibilities, he said, is present with respect to the preparation of criminal judgments. He said clerk involvement in restitution and preparation of judgments is another issue that relates to the FTE staffing analysis that underlies the options available to counties under House Bill 1275. Unfortunately, he said, there is not a clear picture at present regarding the various practices across the state.
After discussion, Committee members agreed the previously discussed survey regarding clerk presence in the courtroom should be expanded to solicit information on clerk involvement in restitution and the preparation of criminal judgments.
At the request of Chair Strutz, staff summarized Attachment F (July 30, 1999) - a November, 1987, Attorney General's letter regarding criminal records information. Staff summarized earlier Committee discussion regarding NDCC Ch. 12-60, which establishes the record keeping operation of the Bureau of Criminal Investigation. The issue during that discussion, he said, was whether, in light of that law, clerks were precluded from conducting criminal records searches. He said the November, 1987, letter, which was recently discovered, makes clear that Ch. 12-60 was never intended to apply to record information maintained by the courts. He said Sen. Stenehjem has requested an Attorney General letter clarifying the application of these statutes and the understanding is the letter will basically restate the information contained in the November, 1987, letter.
With respect to the Committee's next meeting scheduled for September 3, it was agreed the meeting was not necessary and could be cancelled. The Committee's next scheduled meeting would be Friday, November 5, 1999.
No further business appearing, the meeting was adjourned at 1:05 p.m.
Jim Ganje, Staff