COURT SERVICES ADMINISTRATION COMMITTEE
Holiday Inn, Bismarck
November 5, 1999
William. A. Strutz, Chair
Rep. Lois Delmore
Wade Williams, Association of Counties
Chair Strutz called the meeting to order at 10:00 a.m. and drew Committee members' attention to Attachment B (October 29, 1999) - Minutes of the August 6, 1999, meeting.
Justice Maring noted that she is reflected in the August 6 minutes as present, when in fact she was absent. Bill Kretschmar noted that he was present at the August 6 meeting, but is reflected as absent. Staff said the minutes would be corrected to reflect these changes.
IT WAS MOVED BY BILL KRETSCHMAR, SECONDED BY JIM ODEGARD, AND CARRIED UNANIMOUSLY THAT THE MINUTES, AS CORRECTED, BE APPROVED.
Implementation of House Bill 1275
At the request of Chair Strutz, staff summarized Attachment D (October 29, 1999) - A summary of clerk survey results regarding certain clerk duties and responsibilities. Staff said the oral summary presented at the meeting would include two additional surveys received after the summary was mailed. Generally, he said, the survey responses indicated most clerks are present in the courtroom for a variety of court proceedings, nearly all clerks are involved in monitoring, receiving, and disbursing restitution, and a significant number of clerks are involved in the preparation of criminal judgments.
Alon Wieland, Cass County Commissioner, said the Association of Counties had recently surveyed Association members about implementation of H.B. 1275. He distributed a list of compiled comments taken from the surveys. A copy of the list is attached as an Appendix. Among several concerns, he said, is that counties must make an election under H.B. 1275 by April, 2000, and this Committee meets only one more time before that date. There are, he said, several unresolved questions that require discussion before April 1 and those are reflected in the list of compiled comments. Additionally, he asked whether the Committee would follow H.B. 1275 as written or would recommend changes to the legislation. He noted a subcommittee of the Supreme Court's Personnel Policy Board met earlier in the morning to review job descriptions for state employed clerks. He asked that counties be kept informed of any decisions or discussions by that group which affect counties.
Judge Bohlman, a member of the Personnel Policy Board, said the subcommittee met to review job descriptions and several clerks of court are involved in that review. He said significant progress was made in assembling descriptions for the clerk, deputy clerk, and other positions. He said the descriptions will be formalized and submitted to the Personnel Policy Board for review.
With respect to passport responsibilities, one of the issues noted in the compiled county comments, staff observed that information obtained by one clerk from the federal official responsible for passport administration indicated it may be fairly easy for counties to transfer passport responsibility from one county official to another. Where that transfer does not occur, he said, clerks, at least as county employees, would still handle passports. He said the question of whether state employed clerks will handle passports has not yet been fully resolved. With respect to "FTEs and staffing concerns" (first item in the list of compiled comments), staff said there is a general awareness that the staffing standards must be reviewed periodically to ensure they accurately reflect clerk duty commitments.
Draft Rule Concerning Clerk Duties - Review
At the request of Chair Strutz, staff summarized Attachment C (October 29, 1999) - A revised draft rule regarding clerk duties and responsibilities. He said the changes reflected in the revised draft include modifications resulting from discussion at the August 6 meeting, as well as other revisions included for Committee discussion.
Staff then drew attention to Section 2B of the draft rule, which addresses clerk presence in the courtroom. He said the draft previously reviewed by the Committee contemplated the clerk would attend sessions of the district court "when requested to do so by the district court". Based upon survey results, he said, a second alternative was included for discussion purposes and to identify a benchmark for clerk presence. The second alternative, he said, contemplates clerk presence in the courtroom during criminal master calendar proceedings, sentencing proceedings, jury selection, and bench or jury trials if, after consultation with the judge, the complexity of the trial or number of exhibits requires attendance by the clerk.
Judge Jorgensen said clerk presence in the courtroom is closely linked to preparation of judgments. If, he said, clerks will not be preparing criminal judgments, then there may be little need for them to be present in the courtroom, particularly during master calendar proceedings. Judge Foughty agreed and said clerks, for the most part, are in the courtroom to prepare judgments. If preparing judgments is not to be a clerk duty, he said, then there is less reason for them to be in the courtroom. For example, he said, in Devils Lake during master calendar proceedings, the judgment is computer generated in the courtroom by the clerk and given to the defendant upon leaving the court.
Staff drew attention to the next italicized portion of the draft rule included for Committee discussion, which provides that the clerk would prepare judgments in misdemeanor cases unless those judgments are prepared by other court support personnel or the judge.
Justice Maring questioned the need for such specificity in the rule. She observed that the job descriptions reviewed earlier by the Personnel Policy Board subcommittee simply say the clerk will provide courtroom assistance as required.
Tom Trenbeath observed that the ostensible purpose of the rule is to achieve a level of uniformity with respect to clerk duties; and, he said, uniformity of clerk duties across the state is considered to be related to a fair degree of reimbursement for providing clerk services. However, he said, he is concerned about seeking complete uniformity because there are differences among the district courts and among local practices. The judge, he said, should retain control of the courtroom.
Dorothy Howard emphasized the importance of clerk involvement in determining whether there is adequate staff in the clerk's office to routinely provide assistance in the courtroom.
Judge Foughty observed that there is a significant difference between rural and urban counties in how personnel needs are handled. For example, he said, in the Northeast judicial district, a rural district, the judges have only a court reporter or recorder; none have secretarial staff dedicated to a particular judge. As a consequence, he said, clerks provide more support services, such as clerical work in preparing papers, for judges in rural areas than are typically provided in urban areas. In more urban areas, he said, a judge has a court reporter or recorder and also has clerical staff dedicated to the judge. The impact of the duty differentials, he said, is that in rural areas there may seem to be a higher number of clerk staff than is warranted by the caseload. But that, he said, is due to clerks providing support services that are provided elsewhere by state employees. In that light, he said, a more specific rule is beneficial in that it would clearly define the duties clerks are expected to fulfill.
Bob Indvik observed that the general goal is to implement H.B. 1275, which identifies the state as being responsible for providing clerk services. The surveys, he said, indicate clerks for the most part prepare criminal judgments. Consequently, he said, implementation of H.B. 1275 would require that preparing criminal judgments is a particular service that should be included in the definition of clerk of district court services.
Justice Neumann noted that H.B. 1275 must be implemented within the limits of legislative appropriation. He recalled that one concern about identifying clerk duties in a rule was that the FTE estimates may have been low in not taking into account certain activities. More problematic, he said, is the fact that funding provided for implementation of H.B. 1275 was lower than the amount considered necessary.
Doug Johnson said that as a matter of South Central judicial district policy the judge or court reporter prepares misdemeanor criminal judgments, and the state's attorney prepares felony judgments. Thus, he said, if clerks are required to prepare criminal judgments, more staff will likely be required in some areas. Ardean Ouellette likewise said the judges in the Southwest judicial district prepare misdemeanor judgments and the state's attorney prepares felony judgments. She said clerks are typically in the courtroom for initial appearances and ensure that the defendant receives a copy of the judgment.
Bob Indvik said if clerks do not prepare judgments in rural counties, as they generally do currently, then that responsibility falls to the part-time state's attorney who has a private law practice competing for time.
In response to a question from Rob Hovland concerning preparation of judgments if clerks did not have that duty, Judge Foughty said in his district a part-time employee would likely have to be hired to operate the computer and generate the judgments.
Judge Jorgensen noted that judges in the South Central judicial district prepare judgments using a preprinted form. In misdemeanor cases, he said, judgments are typically prepared by the court reporter or court recorder. He said clerk staff are not involved other than that a clerk will monitor, through an audio system, master calendar proceedings and the particulars of judgments. In that way, he said, clerk staff are knowledgeable about judgment provisions and implementation of the judgment. In felony cases, he said, judgments are prepared by the state's attorneys in Burleigh and Morton counties, who are full-time. However, he said, there has been no problem even in rural counties in the district with state's attorneys preparing felony judgments.
Jim Odegard said in the Northeast Central judicial district, the clerk prepares judgments in misdemeanor and felony cases. In light of the obvious disparities in practices around the state, he said, there should be enough guidance in the rule to provide for uniform application.
In response to a question from Sen. Watne regarding use of a preprinted judgment form, Judge Jorgensen said the form used in the South Central judicial district is used throughout the district, but is not in standard use around the state. Doug Johnson observed that the form was adapted from a form used in the Southwest judicial district and a similar form is used in the Northeast judicial district.
Bob Indvik noted that clerks, as county employees, have been involved in preparing judgments for many years and no one has questioned that practice. He wondered why the proper placement of that responsibility has now become an issue.
Judge Foughty observed that present practices have developed over the years as the result of compromises between county officials. An example of such a compromise, he said, is that while clerks in his district prepare all judgments, it has been the practice that the state's attorney prepares orders for revocation of probation.
In response to a question from Judge Jorgensen, Judge Bohlman said the job descriptions considered earlier by the Personnel Policy Board subcommittee do not specifically mention preparation of judgments, but would be broad enough to cover that specific duty.
Dorothy Howard, Cass County Clerk of District Court, said that after receiving the clerk survey she asked clerk staff in the criminal division whether it would be possible to do data entry in court for misdemeanor judgment preparation. The response, she said, was that performing that duty would be extremely difficult because of the high volume and fast pace of the proceedings.
Norine Knudson, Stutsman County Clerk of District Court, said if preparation of judgments is to be a recognized clerk function, then the FTE staffing analysis must be revisited. The same, she said, holds true for duties concerning restitution.
IT WAS MOVED BY JUDGE BOHLMAN AND SECONDED BY JIM ODEGARD THAT THE RULE SEGMENT ON PAGE 2, LINES 3-4, OF THE DRAFT RULE BE MODIFIED TO PROVIDE THAT CLERKS WILL PREPARE JUDGMENTS OF THE COURT IN CRIMINAL CASES UNLESS JUDGMENTS ARE PREPARED BY OTHER COURT SUPPORT PERSONNEL OR THE JUDGE, AND THAT THE SEGMENT AS MODIFIED BE APPROVED.
In response to a question from Sen. Watne, Judge Bohlman said the effect of the change in language would be to identify, as a clerk duty, preparation of both misdemeanor and felony criminal judgments. Therefore, he said, the state's attorney would not be involved in judgment preparation.
Justice Maring wondered whether there are other judgments or orders prepared by clerks of district court.
Judge Jorgensen said he is unsure whether clerks of district court should be required to prepare felony judgments because those judgments are often complex and quite detailed. Judge Bohlman observed that clerks in Grand Forks County have been preparing felony criminal judgments and there has been no problem in that area. Jim Odegard agreed.
THE MOTION CARRIED UNANIMOUSLY.
IT WAS MOVED BY JUDGE BOHLMAN AND SECONDED BY BOB INDVIK THAT LANGUAGE IN SECTION 2B REQUIRING CLERK ATTENDANCE IN COURT "WHEN REQUESTED TO DO SO BY THE DISTRICT COURT" BE ADOPTED.
Sen. Watne said that because of the various practices across the state and the need for greater uniformity, the rule should be more specific. Judge Foughty agreed and suggested adoption of the second alternative in Section 2B which would require clerk presence in the courtroom during certain proceedings and in certain trials if, after consultation with the judge, clerk attendance is considered necessary.
Judge Jorgensen observed that little has been accomplished thus far that provides clear guidance to counties and clerks of district court. He noted that the judgment language just adopted by the Committee essentially follows the status quo. A similar approach with respect to clerk presence in the courtroom, he said, would be to identify the general areas of clerk responsibility with a proviso that the clerk could be excused from being present by the judge.
Dorothy Howard said she too would prefer the second alternative identified in Section 2B. That language, she said, would encourage communication between the judge and clerk about the need for clerk attendance in the courtroom. If clerk presence is simply at the request of the judge, she said, there likely will not be that level of communication.
Paulette Reule, Stark County Clerk of District Court, noted that the Clerk of Court Manual sets out particular procedures for clerk presence in the courtroom.
Norine Knudson said judges often have different expectations for different clerk offices. For example, she said, a judge arriving in a particular court may not request that a clerk be in the courtroom because the judge is aware there is not enough staff in the clerk's office to perform that duty. However, in another county, she said, the judge will routinely expect a clerk to be in the courtroom because there is a perception that clerk staffing is sufficient to handle that request.
Rob Hovland said he agreed with encouraging judges to review the need for clerk presence in the courtroom, but there will also be a need to provide a catch-all that affords judge discretion in requesting clerk attendance.
Judge Riskedahl said he would oppose the motion because it will continue the patchwork approach to determining clerk presence in the courtroom.
THE MOTION FAILED.
IT WAS MOVED BY JUDGE BOHLMAN AND SECONDED BY SEN. WATNE THAT THE SECOND ALTERNATIVE IN SECTION 2B BE MODIFIED TO REQUIRE CLERK PRESENCE IN THE COURTROOM DURING CRIMINAL MASTER CALENDAR PROCEEDINGS, SENTENCING PROCEEDINGS, JURY SELECTION, OR BENCH OR JURY TRIALS, OR OTHER CIVIL OR CRIMINAL PROCEEDINGS IF, AFTER CONSULTATION WITH THE JUDGE, THE COMPLEXITY OF THE TRIAL OR NUMBER OF EXHIBITS REQUIRES ATTENDANCE BY THE CLERK.
Tom Trenbeath supported the motion, but wondered who would make the ultimate decision about when the clerk would be in the courtroom. He suggested that instead of "in consultation with the judge", language should be substituted that clearly defines the judge's authority to decide if the clerk will be present in the courtroom. He also suggested referring to the complexity of the trial or "proceeding". Judge Jorgensen suggested replacing "bench or jury trials" with a simple reference to "trials".
With the consent of the second, the motion was modified to refer to clerk attendance "DURING CRIMINAL MASTER CALENDAR PROCEEDINGS, SENTENCING PROCEEDINGS, JURY SELECTION, OR TRIALS OR OTHER CIVIL OR CRIMINAL PROCEEDINGS IF, AFTER CONSULTATION WITH THE JUDGE, THE JUDGE DETERMINES THE COMPLEXITY OF THE TRIAL OR PROCEEDING OR NUMBER OF EXHIBITS REQUIRES ATTENDANCE BY THE CLERK".
Judge Foughty said the proposed language is specific enough to provide general guidance for clerks, but also provides for judge discretion in particular cases. Mike Sturdevant said the language also provides guidance for judges in reviewing the need for clerks in the courtroom.
THE MOTION AS MODIFIED CARRIED UNANIMOUSLY.
Staff next drew attention to added language in Section 2C which would include, as a clerk duty, compliance with the manual governing the unified court information system (UCIS), if UCIS is in place in the particular county. Paul Kloster wondered if including the UCIS and Clerks Manual in the rule elevates the manuals to the status of being law. Justice Neumann noted that the proposed rule would be an administrative rule, rather than a procedural rule.
IT WAS MOVED BY MIKE STURDEVANT AND SECONDED BY JIM ODEGARD THAT THE PROPOSED LANGUAGE IN SECTION 2C BE ADOPTED.
IT WAS MOVED BY PAUL KLOSTER, SECONDED BY DOUG JOHNSON, AND CARRIED UNANIMOUSLY THAT THE MOTION BE AMENDED TO INSERT "CONSISTENT WITH THIS RULE" AFTER PROCEDURE IN THE PROPOSED LANGUAGE IN SECTION 2C.
THE MOTION AS AMENDED CARRIED UNANIMOUSLY.
Staff then drew attention to Section 2K of the draft rule. He said the italicized reference to "including restitution" is added to reflect the clerk role with respect to monitoring, receiving, and disbursing restitution.
IT WAS MOVED BY JUDGE FOUGHTY AND SECONDED BY JUDGE BOHLMAN THAT THE PROPOSED LANGUAGE IN SECTION 2K WITH REFERENCE TO RESTITUTION BE ADOPTED.
Dorothy Howard said requiring clerks to handle restitution will likely affect staffing requirements in those counties in which clerks are not currently involved in handling restitution.
Jim Odegard said in Grand Forks County, in which the state's attorney handles restitution, approximately one-half million dollars in restitution monies was collected, accounted for, and distributed during 1998. He agreed there is a potentially significant issue regarding clerk FTEs that would require attention. However, he said, the state's attorney's office will still be required to track bad checks, for example, and account for them before they become part of a criminal prosecution. The state's attorney's office, he said, will also have to track victims to ensure all restitution is included in the complaint before it moves forward to the court. Thus, he said, there would be some overlapping of duties between the state's attorney's office and the clerk's office.
Justice Neumann noted the proposed new language is permissive in that if clerks of district court receive restitution, then the clerk can handle and dispose of the restitution monies. If that is the intention, he said, then the reference to restitution is not necessary. The reference to "any monies" in Section 2K, he said, would be sufficient to include any restitution the clerk might receive. However, he said, if the intention is to clearly place responsibility for handling restitution with clerks of district court, then it should be done in a much more specific and direct way.
Mike Sturdevant noted the reference in Section 2K which addresses handling monies "received in accordance with any applicable statute or order of the court". Given the divergence in practice, he said, there must not be an applicable statute that governs how restitution should be handled. That, he said, leaves handling restitution monies in accordance with an order of a court, which invites the same lack of uniformity that currently exists.
Alan Erickson asked whether monies received as restitution are deposited with the auditor and checks then issued through the auditor's office. Jim Odegard said in Grand Forks County restitution monies are received and deposited daily with the county auditor.
A SUBSTITUTE MOTION WAS MOVED BY JUDGE BOHLMAN AND SECONDED BY MIKE STURDEVANT THAT THE REFERENCE TO "INCLUDING RESTITUTION" BE DELETED FROM SECTION 2K AND THAT A NEW SECTION BE ADDED TO INCLUDE "COLLECT, MAINTAIN, AND DISBURSE MONIES RECEIVED AS RESTITUTION, FINES, FEES, OR COSTS" AS A CLERK DUTY.
In response to a question from Judge Riskedahl, Judge Bohlman said the proposed change would make clear that clerks are responsible for handling restitution. Judge Riskedahl observed that since Cass, Burleigh, and Grand Forks counties are the counties in which the clerks do not handle restitution, such a change would result in a significant shift of work hours and staff commitment from the state's attorney's office to the clerk's office.
Paul Kloster asked how specifically restitution is handled through the Grand Forks state's attorney's office. Jim Odegard, Grand Forks state's attorney, said a significant responsibility for the state's attorney's office is the tracking of payments on court ordered restitution. If the defendant is not complying with the order to pay restitution, he said, then an order to show cause process is initiated. The individual, he said, is apprehended and brought to court for a hearing. That process, he said, in addition to simply receiving and disbursing the restitution, requires a considerable amount of time. In response to a further question from Paul Kloster, he said there would be some duplication of effort between the state's attorney's office and the clerk's office if the proposed change were adopted. That duplication, he said, would result because the process likely cannot be completely separated between the two offices and respective responsibilities. Judge Bohlman said one problem with having the process separated is illustrated by the handling of fines and fees. Currently, he said, the clerk's office will prepare an order to show cause if a person fails to pay fines and fees ordered payable to the clerk. However, he said, if a person fails to pay restitution, the state's attorney will prepare the order to show cause. As a consequence, he said, there are two different entities that may be issuing orders to show cause for failure to pay on what may be the same judgment. Under the proposed change, he said, the clerk would issue the order to show cause, whether it is for failure to pay fines or fees or failure to pay restitution, or both.
Deb Simenson, Burleigh County Clerk of District Court, said her office confers regularly with the state's attorney's office and sets one order to show cause for failure to pay fines, costs, or restitution so the defendant is summoned into court only once.
Judge Foughty said in the Northeast judicial district orders to show cause are issued by the clerk's office. Norine Knudson said a similar procedure is followed in Stutsman County and the clerk's office also monitors all other conditions set out in the judgment.
Dorothy Howard stressed the importance of reviewing the FTE analysis if restitution becomes a clerk responsibility.
Paul Kloster asked what the consequence would be if FTE estimates were increased. Staff said, assuming the amount of money appropriated for implementing H.B. 1275 remains unchanged, then increased FTEs would have an affect on whether all others options available under H.B. 1275 could be fully implemented.
THE SUBSTITUTE MOTION CARRIED (16-Yes, 6-No).
Chair Strutz next drew Committee members' attention to the Comment included after Section 2 of the draft rule. Staff said the Comment is intended to formalize the need to review the staffing analysis every 18 months beginning April 1, 2001. He suggested the beginning date should likely be changed to April 1, 2000. In response to a question from Doug Johnson, staff said the 18 month timeframe is intended to set a time by which the analysis review would be completed and available to counties for consideration in selecting options by April 1 of each even numbered year. Justice Neumann said the 18 month timeframe may work well for the first review, but after that the review would then occur six months earlier with each succeeding year and would soon be at odds with the two-year cycle for decisions by counties.
IT WAS MOVED BY DOUG JOHNSON, SECONDED BY JIM LEAHY, AND CARRIED UNANIMOUSLY THAT THE COMMENT BE MODIFIED TO REQUIRE REVIEW EVERY 24 MONTHS BEGINNING APRIL 1, 2000, AND AS MODIFIED BE ADOPTED.
With respect to Section 2J regarding clerk responsibility for monitoring attendance by witnesses, Bob Indvik said this particular duty is a state's attorney's duty and should not, therefore, be listed as a duty of the clerk of district court. Staff said the duty was included in the draft rule because it was identified as a clerk duty in the statute listing clerk duties and responsibilities, which served as a basis for the draft (N.D.C.C., Sec. 11-17-01, repealed effective January 1, 2001, by H.B. 1275).
IT WAS MOVED BY BOB INDVIK AND SECONDED BY JUDGE FOUGHTY THAT SECTION 2J BE DELETED FROM THE DRAFT RULE.
Sen. Watne wondered whether the procedure with respect to this particular duty, or lack of it, is the same across the state. Norine Knudson said clerks' offices in the Southeast judicial district do not perform this duty and Bob Indvik likewise said clerks' offices in the Northeast judicial district do not monitor witnesses. Deb Simenson said her office does track witness attendance with respect to prosecution witnesses.
THE MOTION CARRIED UNANIMOUSLY.
Chair Strutz then drew Committee members' attention to italicized language included in Section 3A of the draft rule concerning designation of clerk staff to become state employees.
Staff said under H.B. 1275, if a county selects the state employee option, the clerk of district court and clerk staff "designated by the supreme court" become state employees. He said the Consensus Council group discussed the transition from county employee to state employee and that discussion indicated that designation of clerk staff to become state employees would result in a certain number of county employees within the particular office becoming state employees nearly automatically. The question, he said, is how employees would be designated. The italicized language, he said, provides two alternatives: 1) the presiding judge, after consultation with the clerk of district court and the assistant state court administrator responsible for clerk operations would designate the clerk staff to become state employees, or 2) the assistant state court administrator and clerk of district court, with the approval of the presiding judge, would designate the clerk staff to become state employees. In the absence of either alternative, he said, the "designation" would likely be made by the presiding judge as the "hiring authority" at the district level. The alternatives are provided, he said, to reflect the general consensus group discussion that what was contemplated by the language in the statute was something other than the traditional employment application process. Staff noted that the designation is a one-time event that occurs when a county selects the state employee option. After the initial designation, he said, personnel decisions would be governed by standard judicial system personnel policies.
Paul Kloster said the first alternative appears to be the most direct and simple. However, Mike Sturdevant said the second alternative may be more realistic since the presiding judge may not have direct knowledge concerning clerk staff in area county offices. Judge Foughty observed that the presiding judge should be the primary individual involved in the decisionmaking process. Norine Knudson agreed that most clerks would tend to have more involvement with the presiding judge, rather than with the assistant state court administrator for trial courts.
IT WAS MOVED BY MIKE STURDEVANT, SECONDED BY DOUG JOHNSON, AND CARRIED UNANIMOUSLY THAT THE FIRST ITALICIZED ALTERNATIVE BE ADOPTED.
Paul Kloster drew attention to language in Section 3A, lines 16-18, of the draft rule concerning appointment of the clerk of district court by the presiding judge with the majority approval of other judges in the district. He wondered what the result would be if the presiding judge could not obtain majority approval for the appointment. He suggested adding language to allow for appointment by the supreme court if, after a certain time, the presiding judge has failed to appoint or has been unable to appoint because a majority of judges will not approve the appointment.
Justice Neumann said if such a circumstance should arise, the supreme court could likely amend its own rule to address this situation. Additionally, he said, if language is to be added he would suggest placing appointment authority with the chief justice since under the state constitution the chief justice is identified as the administrative head of the judiciary.
IT WAS MOVED BY PAUL KLOSTER, SECONDED BY BILL KRETSCHMAR, AND CARRIED UNANIMOUSLY THAT THE LANGUAGE IN SECTION 3A OF THE DRAFT RULE CONCERNING APPOINTMENT OF THE CLERK OF DISTRICT COURT BE MODIFIED TO INCLUDE THE FOLLOWING ADDITIONAL LANGUAGE: "IN THE ABSENCE OF APPOINTMENT OF THE CLERK OF DISTRICT COURT WITHIN A REASONABLE TIME AFTER A VACANCY, THE CHIEF JUSTICE MAY FILL THE OFFICE BY APPOINTMENT".
Chair Strutz then drew Committee members' attention to Section 3D regarding advice to clerks. Staff said Section 3D was revised to include a reference to advice provided by the clerk of the supreme court following discussion at the Committee's August 6 meeting. Thus, he said, under Section 3D advice concerning statutes, rules, and procedures governing clerk of district court services, could be provided to all clerks by the office of state court administrator or the clerk of the supreme court, depending the matter of concern.
In response to a question from Bob Indvik, staff said in a funding agreement county, the clerk would not obtain advice concerning clerk of district court services from the state's attorney, rather that advice would come from the office of state court administrator or the clerk of the supreme court.
Bob Indvik wondered who would provide legal counsel, in the event of a lawsuit, for a clerk in a funding agreement county if the clerk is relying on the office of state court administrator or the clerk of the supreme court to provide information.
IT WAS MOVED BY PAUL KLOSTER, SECONDED BY ARDEAN OUELLETTE, AND CARRIED UNANIMOUSLY THAT SECTION 3D BE ADOPTED.
Chair Strutz then called for action on the entire rule as modified. He said it may be necessary for Committee members to review the final version of the rule to ensure it reflects the various changes made at this meeting.
Justice Neumann suggested the need to move the rule quickly to the supreme court in light of the April 1, 2000, decision date for counties.
IT WAS MOVED BY JUDGE FOUGHTY, SECONDED BY JIM LEAHY, AND CARRIED UNANIMOUSLY THAT THE DRAFT RULE, AS MODIFIED, BE ADOPTED AND APPROVED FOR SUBMISSION TO THE SUPREME COURT PENDING FINAL REVIEW BY COMMITTEE MEMBERS FOR TECHNICAL COMPLETENESS.
Compiled County Comments - Further Discussions
Alon Wieland said the main objective of the compiled county comments (see Appendix) is to reflect county concerns that have arisen concerning implementation of H.B. 1275. Justice Neumann suggested a copy of the compiled comments should be submitted to the office of state court administrator so the questions can be considered further. Alon Wieland agreed a copy would be forwarded.
Jim Odegard noted that under current statutes, the county still has the responsibility to provide facilities for the district courts and clerks of district court. He said the county will likely still have the obligation to provide facilities for county employed clerks as well. Thus, he said, the question of "blending" state and county employees will require attention. Alon Wieland observed that since counties are bearing the cost of providing facilities, there is the hope that at some point rent could be paid to the county by the state.
With respect to the third question under "FTE and Staffing Concerns" relating to FTEs for child support duties, staff noted that child support filings were included in the FTE analysis, although previous discussions had seemed to indicate they were not. With respect to the second question under "Compensation Concerns" relating to the need for resolutions, staff said resolutions are required under H.B. 1275 in two circumstances: when the county elects the state employee option, and when the county elects to fund clerk of district court services entirely at its own expense. He said a formal resolution is not required if the county elects the funding agreement option, although as a formal expression of the election a resolution may be preferable. All the law requires, he said, is that the county "notify" the supreme court that it has elected the funding agreement option. He said one county has submitted a letter and a copy of the minutes of the meeting at which commissioners made that election.
With respect to the fourth question under "Compensation Concerns" regarding definition of state versus county duties, staff said H.B. 1275, by statutory amendment, identified all duties formerly associated with clerks of district court that would be defined as "non-court related duties". Those duties, he said, are transferred to the register of deeds or another official designated by the county commissioners. In essence, he said, clerks would continue to do all that they currently do, except for those duties identified for transfer under H.B. 1275. He said "clerk of district court services" would consist of duties identified under the rule just approved by the Committee and any other duties identified elsewhere by court rule or policy, all of which are currently known to and performed by clerks.
In response to a question from Alon Wieland, staff said handling marriage licenses and performing marriage ceremonies are duties transferred under H.B. 1275 to the register of deeds or another official designated by the county commissioners. He noted that in funding agreement counties or own expense counties nothing in H.B. 1275 prevents commissioners from designating the county employed clerk as the official to perform the various "non-court related duties". However, he said, funding under the funding agreement would be limited to reimbursement for "court-related clerk services".
With respect to the rule approved by the Committee, Justice Neumann noted it is submitted as a recommendation to the chief justice and the supreme court. The supreme court, he said, will consider it in light of many factors, among those being the tension between some duties identified in the rule (e.g., restitution) and the FTE staffing analysis.
Administrative Reorganization Proposal
At the request of Chair Strutz, staff summarized Attachments E and F (October 29, 1999) - The revised draft administrative reorganization proposal and further comments regarding the draft proposal.
With respect to meetings of the proposed Judicial Council in Section 4 of the draft rule, Paul Kloster suggested spelling out what constitutes a quorum.
Judge Bohlman suggested continuing to review the draft proposal rather than taking final action. He said there is a threat of overloading the system with considering this proposal along with the many issues concerning implementation of H.B. 1275. Consequently, he suggested delaying final action on the draft reorganization proposal. Justice Neumann agreed the reorganization proposal is overshadowed by the many clerk issues, but said it may be preferable to submit the reorganization proposal to the supreme court where it can be reviewed until some final action is taken. Tom Trenbeath disagreed and said if action on the proposal is to be delayed, the proposal should be retained within the Committee.
IT WAS MOVED BY TOM TRENBEATH, SECONDED BY PAUL KLOSTER, AND CARRIED UNANIMOUSLY THAT DISCUSSION OF THE DRAFT ADMINISTRATIVE REORGANIZATION PROPOSAL BE TABLED UNTIL THE NEXT MEETING.
Criminal Records Information
At the request of Chair Strutz, staff summarized Attachment G (October 29, 1999) - An Attorney General's letter concerning the status of criminal records information retained by the clerks of district court. Staff said the Attorney General's letter merely states the opinion provided to the Committee at the August 6 meeting, which is that statutes governing criminal records information maintained by the Bureau of Criminal Investigation do not apply to clerks of district court and clerks, therefore, are permitted to conduct criminal record searches and provide information regarding criminal records in the possession of the courts.
No further business appearing, the meeting was adjourned at 2:20 p.m.
Jim Ganje, Staff