COURT SERVICES ADMINISTRATION COMMITTEE
Holiday Inn, Bismarck
May 7, 1999
William A. Strutz, Chair
Judge Bruce Bohlman
Rep. Lois Delmore
Judge Donovan Foughty
Justice Carol Kapsner
Justice Mary Muehlen Maring
Justice William Neumann
Judge Burt Riskedahl
Sen. Wayne Stenehjem
Judge Don Jorgensen
Rep. John Mahoney
Sen. Darlene Watne
Chair Strutz called the meeting to order at 10:00 a.m. and drew Committee members' attention to Attachment B (April 29, 1999) - Minutes of the August 28, 1998, meeting.
IT WAS MOVED BY SEN. STENEHJEM, SECONDED BY REP. DELMORE, AND CARRIED UNANIMOUSLY THAT THE MINUTES BE APPROVED AS MAILED.
Administrative Structure Subcommittee - Review of Draft Proposal
At the request of Chair Strutz, staff summarized the preliminary draft proposal of the Administrative Structure Subcommittee, Justice William Neumann, Chair, which was included as a separate enclosure with the April 29 mailing. Staff noted that some issues were left unresolved by the Subcommittee: lay membership on the proposed judicial council; whether there should be term limits for council members; whether the qualifications for the state trial court administrator (draft rule, section 5) should be established by the judicial council or by Supreme Court policy; whether the proposed administrative regions (draft rule, section 6) should be established by council policy or Supreme Court order or rule; and membership of council committees. These issues, he said, were reserved for further discussion by the full Committee. He drew attention to the associated amendments to Administrative Rule 2, governing the duties of presiding judges. Because of the responsibilities proposed for the state trial court administrator under Section 5 of the draft rule, he said Administrative Rule 2 would be amended to delete essentially administrative responsibilities from those duties identified for the presiding judge. The objective, he said, is to minimize the administrative burden of the presiding judge while retaining responsibilities for such things as case assignment and case management. Under the draft amendments, he said, the presiding judge would also be responsible for ensuring compliance with policies and procedures adopted by the judicial council.
Justice Neumann explained that the Subcommittee considered a number of approaches to the question of administrative structure, including possible constitutional amendments that would have removed the chief justice as administrative head of the judicial branch and placed that authority with something like a judicial council. He said the Subcommittee also discussed elevating the status of the Judicial Conference and vesting administrative authority in the Conference. The Subcommittee, he said, ultimately ended with the current draft proposal which contains familiar elements as well as new approaches.
Justice Maring inquired about the relationship of the state trial court administrator to the state court administrator's office under the draft proposal. Staff said under current Administrative Rule 22 the assistant state court administrators for trial courts are appointed by and serve at the pleasure of the chief justice. The rule, he said, generally provides that the assistants fulfill their responsibility as staff to the Council of Presiding Judges under the general direction and control of the chief justice and the state court administrator. The draft rule in Section 5, he said, partially reflects that arrangement, but more clearly delineates the position of "state trial court administrator" and makes that position clearly responsible to the chief justice and the proposed judicial council.
With respect to the exclusion of judges' secretaries, court reporters, and law clerks from the supervisory authority of the state trial court administrator [draft rule, Section 5(4)], Judge Foughty suggested juvenile court staff should also be excluded. He said juvenile court staff do not precisely equate to administrative support status and are more directly involved with and under the control of the presiding judge.
Justice Neumann said the extent of presiding judge supervision of juvenile court staff may vary among the several judicial districts.
Judge Foughty said one of the fears associated with administrative restructuring is that it would result in a centralized, command-focused system in which process and procedures are imposed from the top down. That, he said, would be an inappropriate structure for judges who are elected officials and must have a level of independence. He said he hoped the proposed structure would provide a method of implementing what the districts devise for themselves rather than the districts being dictated to by a centralized operation. He said judges in other states have indicated that administration has evolved to the point that administrators are directing what judges do and when they do it. He said an effective administrative system should assist in improving judicial services in the district rather than becoming a dictatorial model. Tom Trenbeath agreed with that concern.
Staff said the proposal is intended to establish a structure that provides administrative support services to judges, with a broader feature for participation of judges in establishing system policy and procedure. The proposal, he said, does not contemplate an administrative position that could unilaterally dictate what judges do. Rather, he said, the judicial council would establish general operational policies and procedures and it would be the responsibility of the state trial court administrator to ensure the policies and procedures are implemented. The policies and procedures, he said, would be developed in consultation with the judges of the various judicial districts.
Judge Bohlman said the proposed rule would strengthen the independence of judges because of the role of the judicial council, which consists primarily of trial court judges and which would be the entity responsible for establishing policy. He noted that judicial independence and administrative efficiency are different issues and the proposal contemplates more judge control in establishing administrative policy.
Justice Neumann observed that where administration has taken over control of scheduling is generally where there is a very large caseload and cases must be disposed of efficiently. A large measure of discomfort, he said, arises from the fact that some judges are used to doing things differently from procedures followed in larger jurisdictions.
With respect to the broader membership of the proposed judicial council, Judge Foughty observed that the presiding judges provide a parochial viewpoint which is often needed, but a broader group would also provide a more expanded perspective for the chief justice in determining administrative policy. Justice Neumann agreed that a certain level of parochialism is important because each district is different.
Judge Riskedahl said a critical issue would be how well-defined and clear council policies would be and, then, whether the state trial court administrator would be given clear direction. He wondered how adding members to the judicial council would facilitate coming to decisive conclusions to the benefit of the system.
Justice Neumann said the Subcommittee considered different ways of counteracting the parochialism that is sometimes seen as limiting the effectiveness of the Council of Presiding Judges, including using the entire Judicial Conference as the decisionmaking body.
Judge Bohlman observed that one of the real innovations of the proposed rule is the number of Committee's that would operate under the auspices of the judicial council itself, in an effort to propose policies to the council. As it is now, he said, the Council of Presiding Judges is simply one other committee in the judicial system and its proposals may not be final.
Pat Weir observed that trial judges in Minnesota live in terror of administrators because the perception is that once a case is filed, it is simply out of the judges control. Additionally, he said that to the extent the district judges favor the proposal and consider it helpful as long as they maintain control of their dockets, then the proposal is a step in the right direction.
Judge Riskedahl inquired of Committee members' reaction to the possibility of establishing two or three administrative regions.
Judge Foughty said he is not entirely convinced that separate administrative regions are necessary. His concern is that it would simply create another layer of problems. He suggested a statewide administrative region should be workable in a state with a judiciary as relatively small as North Dakota's. Justice Neumann said there are two considerations that likely play important parts in determining how many administrative regions there might be. One, he said, is very practical and concerns simply the number of people that one administrator could handle. The other, he said, is the "political considerations" involved in determining where region boundaries would be drawn.
Paul Kloster wondered why it is necessary to create another bureaucracy when the system currently has a state court administrator. He said the proposal would simply lead to too many administrative layers and bring extra personnel into the system.
Ted Gladden said one of the past dilemmas was the apparent concern that seven professionally trained administrators were not needed. The system was therefore modified to arrive at its current administrative makeup. The draft proposal, he said, does not contemplate new layers of administration. However, he said, a point may be arrived at in the future where administrative support is redesigned so that there may not be an "administrator" or "administrative assistant" in every district, but there would be scheduling personnel in each district. He said the person that has general responsibility for that administrative "unit" would then be responsible for working with the judges, ensuring policies and procedures are implemented, and ensuring the needs of the judges and others in the district are being met. With respect to his experience in the Minnesota court system, he said that system is very similar to North Dakota's. He said the Judicial Conference and Supreme Court set the time standards for case processing. Every district, he said, is responsible for creating a case management plan, which is ratified by judges in the district. The Judicial Conference, he said, must approve the plan to ensure it conforms to the overall policy.
Dorothy Howard wondered how the clerk of district court would fit in the proposed structure. For example, she said, the administrative assistant to the presiding judge in the East Central judicial district is the administrator for office staff in the district court. But, she said, that role with respect to the clerk and staff is uncertain. Justice Neumann said the Subcommittee did not attempt to answer that question. And, he said, it is obviously a large part of the study assigned to the Committee regarding implementation of HB 1275. Judge Foughty said he views the clerks of court as being more on the administrative side of the system than on the judicial side. There will, he said, be a need for local management personnel of some kind if clerks of district court come into the state system.
Chair Strutz inquired of Committee members' wishes with regard to the Subcommittee's draft proposal. Judge Riskedahl said the Subcommittee appears to have worked out a creative alternative and the full Committee should continue to consider it. Tom Trenbeath agreed and suggested discussion of the proposal continue in concert with consideration of the clerk of court bill. Judge Foughty suggested the Committee consider the proposal again at its June meeting and then, perhaps, distribute the proposal for comment. Committee members agreed.
Justice Neumann noted that the Supreme Court members of the Committee have a conflict on the tentatively scheduled June 18 meeting date, because that day is also case conference day.
Chair Strutz said the Subcommittee's preliminary draft proposal would be placed on the agenda for further discussion at the Committee's next meeting.
Griggs County Redistricting Request
Chair Strutz drew Committee members' attention to the revised 11:10 a.m. agenda item and requested that staff distribute a recently received May 5 letter from Chief Justice VandeWalle requesting the Committee consider Presiding Judge Lawrence Jahnke's request that Griggs County be transferred from the Northeast Central judicial district to the Southeast judicial district. Attached to Chief Justice VandeWalle's letter were letters from Presiding Judge Jahnke and Presiding Judge John T. Paulson, Southeast judicial district, expressing agreement with the transfer. Caseload data and a map depicting current judicial district boundaries were also distributed. Staff then distributed draft amendments to Administrative Rule 6 which would effect the requested realignment. Copies of these documents are attached as Appendix A.
Tom Trenbeath asked whether the proposed realignment has been generally discussed within the two judicial districts and with members of the bar. Judge Bohlman said the possible transfer has been a topic of conversation for several years and Judge Paulson has been of the opinion for some time that the realignment should occur. He said Griggs County would be better served as part of the Southeast judicial district because of its proximity to the New Rockford chambered judge.
In response to a question from Chair Strutz, Judge Bohlman said he is not aware of any opposition to the realignment among the judges in the two judicial districts.
IT WAS MOVED BY SEN. STENEHJEM, SECONDED BY JIM ODEGARD, AND CARRIED UNANIMOUSLY THAT THE COMMITTEE APPROVE THE DRAFT AMENDMENTS AND SUBMIT THEM TO THE SUPREME COURT FOR CONSIDERATION WITH A RECOMMENDED EFFECTIVE DATE CONSISTENT WITH THE FILLING OF THE JAMESTOWN JUDGESHIP.
Implementation of House Bill 1275
Chair Strutz drew Committee members' attention to Attachment C (April 29, 1999) - a letter from Chief Justice Gerald VandeWalle regarding assignment of the House Bill 1275 study. At the request of Chair Strutz, staff then presented a summary of the bill, see Attachments D and F (April 29, 1999). Staff also distributed a copy of the staffing standards analysis developed by the Office of State Court Administrator which establishes the FTE allocation upon which the county options in House Bill 1275 are based. A copy of the standards is attached as Appendix B. He said the standards differ slightly from those presented during the legislative session because of updated figures due to rounding off of numbers. The total number difference is approximately one-tenth of an FTE. Additionally, he explained the staffing standards were arrived at by dividing the number of filings in a given county by 600 (i.e., 600 filings per clerk employee being considered an appropriate analytical standard) and arriving at an estimated number of full-time equivalent employees considered necessary to provide clerk services as defined under the bill. He noted that conference committee amendments to the judicial branch appropriation bill delayed implementation of House Bill 1275 until April 1, 2001, and provided $1 million dollars for that implementation. He noted that House Bill 1275 is currently the object of a referral effort.
Chair Strutz then called on Jana Thielges, Director of Finance, Office of State Court Administrator, for an overview of the preliminary budget analysis regarding House Bill 1275.
Ms. Thielges said that at the beginning of the legislative session projected funding was included in the judicial branch appropriation bill to implement House Bill 1275, effective January 1, 2001 -- the effective date in the bill as introduced. For the counties that have the state employee option or funding agreement option, she said, funding for approximately 129 FTEs was included. Salaries and wages, she said, represented the major portion of that funding amount. Of the 129 potential employees, she said, approximately 125 would have been located in the various counties if all who had the state employee option elected that option. Included in the 125 employee figure, she said, were employees considered necessary for supervisor and "floater" personnel -- approximately 14, or 2 employees per district. "Floater" personnel, she said, were considered as being those personnel that could fill in, in the event of sickness or other unanticipated staff absences. The remaining four FTEs of the 129, she said, represented "centralized" positions: an accountant to assist in handling revenue received by clerks, an account technician to assist in processing payroll, a human services clerk, and a computer specialist to assist in meeting the technology needs of the 53 clerk offices. She said the salary amount for the 129 projected FTEs was based on survey data previously gathered by the Office of State Court Administrator in 1997, with a 3% adjustment for inflation to arrive at an approximate estimate for salaries in 2001. With respect to the operating expenses for the approximately 23 counties that have the state employee option, she said funding was included for office supplies, postage, printing, communication charges, and equipment such as personal computer replacement, printers, and Fax machines. For the remaining counties, she said, monies were included for funding agreements based on county compensation levels. Funds were also included to defray the cost of technology related equipment. She said the total budget request for the six-month period beginning January 1, 2001, and ending June 30, 2001, was approximately $3.1 million dollars. The conference committee amendments, she said, provided $1 million dollars for implementation over a three-month, rather than six-month, period -- April 1, 2001, through June 30, 2001. Currently, she said, information is being solicited from county auditors to update salary information and assist in determining how the $1 million dollars can be applied. She said about 45 of the surveys have been returned. Once that information has been assembled, she said, various funding scenarios can be considered based on the options that could be selected by counties and a general determination can be made about what can be accomplished with the level of funding provided. All of that, she said, is complicated somewhat by the pending referral effort.
Bill Kretschmar inquired whether the Supreme Court will devise a system, for example, first come first served, if the funding is insufficient to allow all counties to exercise the options provided under House Bill 1275. Staff said no decision has been made and it is likely an issue the Committee can consider for purposes of offering suggestions.
Mark Johnson observed that, under the state constitution, operation of the bill is suspended if referral petitions are successfully filed with the Secretary of State. He suggested that some decisions should be made about what impact that suspension may have on implementing the bill. Additionally, he said, the impact of the constitutional provision requiring a two-thirds vote for seven years if the measure is approved should be discussed.
Staff said Chief Justice VandeWalle has indicated that even if operation of House Bill 1275 is suspended the judiciary needs to continue its consideration of how the bill would be implemented. However, he said, the suspension poses difficult questions for the counties because the bill requires boards of county commissioners to make decisions or take actions by certain dates. If operation of the bill is suspended, he said, how and when counties would be able to satisfy those requirements, i.e., selecting options and executing funding agreements, is uncertain.
At the request of Chair Strutz, staff then reviewed Attachment E (April 29, 1999) - preliminary identification of House Bill 1275 implementation issues.
With respect to possible additional issues, Dorothy Howard noted concerns related to budgeting in the clerks' offices and the collection and disbursing of fee revenue. Currently, she said, in her office fees collected are taken daily to the treasurer's office and disbursements are made by that office. That will likely not occur, she said, if the clerk is a state employee. Jana Thielges said some generally standard procedures will have to be developed to address the handling of revenue received in the clerks' offices. Bob Indvik said House Bill 1275 requires a state employed clerk to transmit the fee revenue to the state treasurer. It does not, he said, allow for different procedures in different counties, such as allowing the county treasurer to receive those fees and make the deposit on behalf of the state employed clerk.
With respect to Issue 2 regarding the FTE staffing proposals, Bob Indvik said the 600 filings analysis was based on Kentucky and South Dakota studies. However, he said, in Kentucky clerks of district court do not handle child support or restitution and in South Dakota clerks of court do not have child support enforcement responsibilities. Consequently, he said, the FTE analysis is not an accurate reflection of clerk operations in North Dakota. Additionally, he said, there is a difference in how clerk offices operate in small counties as opposed to the larger counties. That also, he said, will affect the FTE analysis. That is particularly true, he said, in some smaller counties where the state's attorney is part-time. In those situations, he said, the clerk of district court often handles restitution. The question, he said, is whether more responsibilities, formerly performed by clerks, will be moved to another county official. He said that kind of change would likely be required in his situation because he could not do what his office currently does with the 1.3 FTEs the staffing standards identify for Bottineau County.
Staff noted that duties performed by clerks in some counties, but not others, such as handling restitution or preparing criminal judgments, will likely require review to determine appropriate placement of those duties. The degree to which such duties are accurately reflected in the 600 filings analysis, he said, will likely also require discussion.
Bob Indvik observed that if duties such as restitution and preparing criminal judgments, which are now performed by clerks in some small counties, are transferred to the state's attorneys, then there will be added expense for the counties. Additionally, he said, in smaller counties without a regional child support enforcement unit, the clerks many times perform the duties that would normally be the unit's responsibility, such as appearing in court or preparing a ledger.
Judge Bohlman wondered whether it is possible to devise differential clerk staffing standards, i.e., a standard for smaller counties to reflect the unique requirements of those counties and a different standard for large counties. He also suggested that Issues 2, 5, and 6, could be combined for purposes of general analysis and discussion.
In response to a question from Doug Johnson, staff said the "support" clerk positions identified on the staffing proposal sheet may be positions that have been lost due to the reduced funding provided in the appropriations bill. Jana Thielges said there is a total of 10 positions identified in the "support" column. In addition, she said, there were four supervisor/floater positions that had not been allocated to any particular location. These two categories, she said, represented 14 of the previously discussed 129 FTE positions. When the bill left the Senate, she said, that number had been reduced to 113 because the 14 supervisor/floater positions, and two others, had been deleted. The conference committee, she said, did not address the issue of how many FTEs were considered to be covered by the $1 million dollars ultimately provided. While it is difficult to draw precise conclusions, she said, it is generally assumed that there was no legislative support for maintaining the 14 supervisor/floater support positions.
In response to a question from Mike Sturdevant, Bob Indvik said there are currently 177 clerk staff positions in the 53 counties.
With respect to the separation of court-related and non-court-related duties, Bob Indvik said a problem for smaller counties will be that of access to certain records, e.g., marriage, birth, death, military discharge records, that are maintained by a county employee while the clerk and certain staff are state employees. He wondered whether the state employed clerk would have access to those records if the county employee was not available for some reason and, on the other hand, whether the county employee would have access to court records maintained by the state employed clerk.
With respect to Issue 3 regarding the funding agreement format, staff suggested he could simply assemble a working draft for general committee discussion. Mark Johnson suggested working with a small group to obtain different perspectives regarding agreement components. In addition to the funding agreement, Bob Indvik suggested there should be an agreement of some kind outlining what is expected of counties even if they do not opt for state funding, for example, what level of court services the counties are expected to provide.
With respect to Issue 4 regarding development of standards and procedures, Committee members agreed the Court Records Management Subcommittee should undertake another review of the procedures set out in the Clerk of Court Manual.
Mike Sturdevant recalled a past issue concerning the source of legal advice for clerks and wondered how such advice will be provided if the clerk is a judicial system employee. Staff said that is an issue that likely should be added to the list of implementation issues.
With respect to Issue 7 regarding the work relationship between state employed clerks and county staff, Jim Odegard said separating the duties and location of county and state employees poses a problem in many counties because facilities are limited. Consequently, he said, there will likely be problems associated with a requirement that employees be moved from current locations. With respect to Issue 7, Dorothy Howard said she would be hesitant to retain county employees and county maintained records in the same office occupied by state employed clerks. She said she is uncertain whether she would want the responsibility of supervising county employees or the responsibility for records that are not court related.
Mark Johnson observed that there are currently 27 combined registers of deed and clerk of district court offices and issues regarding space and location in those situations may be less pressing.
With respect to Issue 8 regarding personnel related matters, Committee members agreed this issue should be referred to the Personnel Policy Board by way of a letter to the Chief Justice. Staff noted there is a particular concern on behalf of elected clerks regarding the accumulation of annual leave and sick leave. As elected officials, he said, clerks have not accumulated such leave and, as a consequence, would have no leave balance upon becoming a state employee.
Committee members agreed more information should be assembled and possible working drafts developed for initial review at the Committee's next meeting.
Following further discussion, Committee members agreed the Committee's next meeting would be June 17 rather than June 18 as previously announced.
No further business appearing, the meeting was adjourned at 2:00 p.m.
Jim Ganje, Staff