COURT SERVICES ADMINISTRATION COMMITTEE
Holiday Inn, Bismarck
February 18, 2000
William. A. Strutz, Chair
Judge Bruce Bohlman
Chair Strutz called the meeting to order at 10:00 a.m. and drew Committee members' attention to Attachment B (February 11, 2000) - minutes of the November 5, 1999, meeting.
It was moved by Jim Odegard, seconded by Rep. Delmore, and carried unanimously that the minutes be approved.
Preparation of Orders in Child Support Cases
Chair Strutz drew attention to Attachment C (February 11, 2000) regarding clerk presence in the courtroom and preparation of court orders and called on Ted Gladden for comments concerning the issue.
Ted Gladden said his letter and attachments (Attachment C) outline issues with respect to clerk involvement in child support proceedings and in the preparation of orders for child support. He said these issues are similar to those discussed previously by the Committee, but are more specifically related to child support proceedings. Not surprisingly, he said, there is a mix of practices around the state. For example, he said, in the South Central Judicial District, IVD personnel prepare the child support orders. However, in Grand Forks County, he said, a different practice has evolved to address problems with regional child support enforcement personnel being behind in preparation of orders. To expedite the process and ensure timely preparation of orders, he said, the clerk's office has assumed the responsibility of preparing orders. He said situations like these pose issues with respect to staffing of clerks' offices to handle the workload. Additionally, he said, if order preparation were transferred to regional child support offices, then the county might encounter staffing issues. He said his fear is that different procedures will be followed in different areas and staffing, rather than being based on objectively defined duties, will be based on local custom. He said it is an issue most pressing with respect to those counties that elect to have a state-employed clerk's office, and particularly the larger counties with substantial caseloads.
Jim Odegard noted that in Grand Forks County there is a data entry terminal in the courtroom and the clerk enters the child support data in the courtroom, an order is printed, and the order is then given to the obligor or the obligor's attorney. The clerk's involvement, he said, ends at that point.
Justice Neumann recalled earlier discussions concerning the distribution of duties in smaller counties. He said it was not uncommon to have a fairly fluid relationship with respect to duties between, for example, the clerk's office and the state's attorney's office. This situation, he said, did not pose any particular problems because both offices have been county funded. However, he said, the enactment of House Bill 1275 requires that the state (judiciary) pay for clerk services and that raises questions concerning the division of duties and responsibilities. He said a concern is that in an effort to accommodate local practices clerk positions will be created where there currently are none, and the state will be obligated to fund those positions. He wondered whether it would be possible to consider a district or county-based definition of clerk of court services.
Deb Simenson noted that the Burleigh County Clerk's office does not now prepare child support orders and she would have inadequate staff to handle the duty if it were given to the clerk's office.
In response to a question from Judge Foughty, Ted Gladden said a complete inventory of clerk duties, county by county, has not been assembled.
Paulette Reule observed that many clerks do not have computers available in the courtroom. If computers are not available, she said, order preparation becomes a very time-consuming task.
Judge Riskedahl recalled the Committee's earlier discussion of preparation of criminal judgments and handling of restitution and the conclusion that uniformity in practice with respect to clerk duties should be the goal. The same, he said, would seem to apply in this situation.
Staff noted that House Bill 1275 and the funding that it provides for clerk services hinge on the definition of clerk services. If it were determined, he said, that clerk preparation of child support orders would not be a clerk service, then that duty would not be performed by a clerk in a state- employed clerk county. He said if a funding agreement county, that is, a county receiving reimbursement from the state to provide clerk services, were to decide that the clerk would continue to prepare orders, then the consequence of that decision would be that there would be no reimbursement associated with that particular duty. The county commissioners, he said, could then decide if that circumstance is agreeable and, if not, consider whether to move that duty to another office, such as regional child support or the state's attorney's office.
Justice Neumann said if the issue is of concern only with respect to staffing commitments in state-employed counties and if, among those counties, Grand Forks is the only county in which clerks prepare child support orders, then it would appear that uniformity and concern for staffing would dictate that the Grand Forks practice change to conform to practices in the other counties. Tom Trenbeath agreed. To do otherwise and expand the range of duties, he said, would not only increase staffing needs for state-employed clerk counties, but would also increase the funding requirements for county agreements. Judge Foughty said it would be useful to know if Grand Forks is, in fact, the only potential state-employed clerk county in which clerks prepare child support orders.
Alon Wieland said he is unsure what practice is in place in Cass County. But, he urged that any decisions regarding duties should adhere closely to applicable statutes so there are no unfunded mandates imposed on the counties.
Collocation of County and State Employees - State-employed Clerk Counties
Staff noted a recurring issue concerning the location of county and state employees in those counties that elect to have a state-employed clerk's office. He said the issue continues to arise at meetings with clerks and county commissioners because of concerns about facility space. Additionally, he said, concerns have been expressed about the supervisory relationship between state and county employees occupying the same office space and about issues such as how to provide access to records in the custody of one or the other employee. One option, he said, is to leave the issue to be resolved informally on a county by county basis.
Wade Williams suggested a policy could be developed to provide that county and state employees would occupy different office areas where feasible and to perhaps identify a transition period for those counties, particularly smaller counties, in which such an approach would be difficult in the short term because of facility limitations.
Alon Wieland said the issue is a difficult one for larger counties as well. For example, he said, in Cass County there is no room in the Register of Deeds office for any county employees that might be moved from the current clerk's office. He agreed that supervision issues concerning county and state employees in the same area would have to be addressed. Additionally, he noted there is a considerable amount of space in the Cass County clerk's office. Perhaps, he said, it would be possible through the use of interior office designs to provide an area for the remaining county employees that do not become state employees. He said he would have no disagreement if the state desires to limit state employees to a certain area. However, he said, the county would resist the state directing the county that it cannot locate county employees in the area, particularly since the state does not pay rent for the space it will be using.
Ted Gladden said there is an associated issue concerning recordkeeping. If, he said, the register of deeds, for example, has no room for records associated with non-court related duties, then a decision will be required regarding where the records will be maintained. He agreed there should be a transition period so everyone has adequate time and opportunity to make necessary adjustments.
Judge Foughty observed that there may be courthouses in which physical separation of county and state employees simply is not possible. In that event, he said there will be a need for clearly defined policies, job descriptions, and supervisory relationships. Justice Neumann agreed and suggested that wherever physical separation is not possible other approaches should be considered such as modular furniture - so that the separation of offices is clear to the public.
Alon Wieland reiterated that there is a considerable amount of space, approximately 30,000 sq.ft., dedicated to the clerk's office in Cass County. He said it is difficult to understand why the state would need or demand the same amount of space for fewer employees. He agreed it might be possible to partition the area with modular office equipment. He emphasized that each county has its own unique facility needs and problems.
Judge Riskedahl said there appears to be a certain level of agreement that there should be a separation between county and state employees in a state-employed clerk county. He wondered whether a position could be devised that pursues that goal but leaves flexibility to the counties to address facility limitations.
Wade Williams suggested that a period of time should be identified, for example, 12 months, during which counties could undertake relocation efforts. Problems will arise, he said, if an immediate move is demanded. Consequently, he recommended that, in state-employed clerk counties, remaining county employees would be relocated over a 12-month period and where feasible and prudent. Perhaps, he said, the effort could be undertaken on a staggered, county by county basis.
It was moved by Judge Riskedahl, seconded by Judge Foughty, that a draft policy statement based on the discussion be prepared for review by the Committee.
In terms of long-range implementation issues, Alan Erickson said he is concerned that as the transition under House Bill 1275 occurs, the Legislative Assembly may focus on reducing the number of clerk FTEs and the associated funding, which may result in the smaller counties being left out altogether. He said it is important for the counties to work to ensure adequate funding is available.
Rep. Mahoney noted that Oliver County has struggled with how to approach House Bill 1275. He said there are concerns that if the county agrees to a funding agreement there will be a loss of control over the clerk's office or that the clerk may be moved to another area. Is it, he wondered, just a simple matter of the state providing funding to the county for clerk services or is it part of a long-term design to alter services in rural areas.
At the request of Chair Strutz staff summarized Attachment D (February 11, 2000) - an Attorney General's letter regarding the obligation of clerks to respond to requests for criminal records information. Staff said the letter is the latest in a series of Attorney General's communications about clerk responsibilities in the area of criminal records and essentially concludes that clerks have no obligation to provide criminal records information over the telephone. He recalled the Committee's earlier discussion regarding the authority of clerks, in the first instance, to provide record information. That question, he said, was resolved by an earlier Attorney General's letter that identified clerks, who are custodians of judicial records, as the source for criminal record information maintained by the courts. The remaining, unresolved issue, he said, is whether clerks should be required to conduct records searches and provide search results to those who request them. He noted that there currently is no statute or Supreme Court rule that addresses whether clerks should conduct records searches and, if so, what the appropriate procedure would be for responding to search requests.
Paulette Reule noted that historically record searches have been a source of revenue for the county. But, she said, it also has an element of economic development in that companies quite often hire someone locally to periodically conduct on-site records searches.
Justice Neumann said the record search issue eventually will resolve itself because of advancements in data storage and access methods. In the meantime, he said, records access is a public service issue and a resolution should be considered.
It was moved by Judge Foughty, seconded by Jim Odegard, and carried unanimously that draft amendments to Administrative Rule 41 governing judicial records be prepared which identify clerk responsibility to conduct record searches and the procedure to be followed.
At the request of Chair Strutz staff summarized Attachments E1-8 (February 11, 2000) - various components of the draft administrative reorganization proposal. Staff noted that the Committee has previously reviewed Attachments E1-3, but Attachments E4-8 are new. He said the latter attachments, while new on paper, have been included in the "Draft Elements for Reorganization" from the beginning of the Committee's review. The attachments, he explained, are drafts addressing the status of the Committee, the establishment of a legislative liaison committee and a judicial ethics advisory committee as committees of the Supreme Court, and the disestablishment of the Judicial Conference. They are included, he said, to fully complete the reorganization proposal and to be reviewed and disposed of as the Committee sees fit.
Justice Neumann expressed curiosity at the scope of the reorganization proposal as provided and wondered whether the Committee is prepared to move forward in further considering the proposal. He explained that the work of the Administrative Reorganization Subcommittee was something of a visioning experiment and its work provided an excellent starting point for considering whether to make changes in judicial system organization. But he said he is unsure whether the proposal, with its current scope, has been adequately considered. He suggested that if the Committee wishes to move forward in its review of the proposal, then additional comments should be solicited.
It was moved by Tom Trenbeath and seconded by Rep. Mahoney that further consideration of the proposal be tabled indefinitely and that an informational copy of the proposal be submitted to the Chief Justice for such consideration or further Committee action as the Chief Justice considers appropriate.
Judge Riskedahl observed that the reorganization study started with the notion that some change in how the judicial system is administratively organized should be reviewed. He wondered at the purpose of tabling the proposal indefinitely. Tom Trenbeath responded that, while the study produced some interesting ideas, it is apparent the proposal will not be acceptable to the judiciary in its present form.
Judge Foughty observed that the critical issue for the judiciary is that the system lacks a well-defined management structure. The Judicial Conference, he said, seems to lack noticeable influence and it appears the Council of Presiding Judges is the group the Supreme Court is relying on for consideration of administrative issues.
Justice Neumann said he agreed that the current system structure is less than ideal and there are issues that require attention. He said the proposal, if submitted informally to the Supreme Court, could perhaps serve as the basis for further brainstorming about reorganization issues.
Judge Riskedahl observed that in earlier meetings the Committee had identified certain issues in the system's administrative structure and he regarded the proposal as a reasonable attempt to address those issues. He wondered whether the issues are no longer considered important.
Judge Foughty said one advantage to informally submitting the proposal to the Supreme Court is that the Committee may receive some feedback on whether the Supreme Court is actually looking for substantive suggestions for how the system can be modified.
Justice Neumann noted there is a judicial leadership retreat in April, 2000, which may serve as the basis for discussing some of the questions addressed by the proposal. He suggested that a system reorganization effort will likely be most successful if it is one that originates with the judges of the judiciary, that is, one that percolates from the bottom of the organization to the top.
Judge Foughty said the motion is reasonable in that it states that the Committee will not work any further on the proposal unless there is direction from the Supreme Court. That, he said, will provide a firmer basis for any Committee activity in this area.
The motion carried unanimously.
No further business appearing, the meeting was adjourned at 12:20 p.m.
Jim Ganje, Staff