Proposed Reorganization of the Judicial System

The purpose of this report is to address operational considerations, statutory, rule, and policy amendments necessary to implement the administrative reorganization plan under consideration.

In responding to the question of what the court administrative structure might look like based on the plan submitted by the Judicial Planning Committee, the following analysis is provided.

The objective was to review the document prepared by the Judicial Planning Committee and, from a more detailed level, discuss how the administrative process might function. To achieve this task, the following guidelines were identified.

Framework

1. The Chief Justice is the administrative head of the ND Judicial System as provided in Article VI, Section 3, of the ND Constitution.

2. The Council is an advisory body to the Chief Justice on trial court operations.

3. Policy direction would flow from the Council to the state court administrator and then to the three trial court administrators for implementation;

4. While a high level of fungibility of judges between judicial districts within each administrative unit is a worthy objective, at this point in the discussion there is no reason to make major changes to the work units or present election districts for any judges. Thus, any proposed rule or statutory amendments should facilitate judges continuing to function in the judicial district in which they are elected. Judges would be moved between judicial districts only in case of emergency or to meet unusual caseload needs within that administrative unit.

5. Any reassignment should be at the direction of the presiding judge of the administrative district.

6. The planning proposal contemplates development of consistency and uniformity in operating procedures within and between administrative units. The emphasis should be on consistency, absent a persuasive argument for different operating procedures or processes for any one administrative unit or subordinate district;

7. Policies affecting the program direction of the juvenile courts would be at the direction of the Council as the Juvenile Policy Board will be under their direction;

8. The judges and appropriate staff within any one administrative unit should meet together to address policy direction for the judicial districts. Regular meetings will facilitate common operating procedures and reduce operational differences.

Our discussions focused on the need for consistency in serving the public and responding to the internal needs of the judiciary. The model presented stresses inclusion of judges and court personnel in decisionmaking and recognizes the need for clear lines of authority and accountability.

Personnel Administration

Attachment 1 provides the organizational chart developed in support of the planning proposal. It contemplates clear lines of authority from the Council to the state court administrator and then to the three trial court administrators. From the trial court administrators, there would be a direct line of authority and supervision over the directors of juvenile court, state clerks of district court, and a third group of personnel that would include administrative personnel such as calendar clerks, secretaries, and court reporters. The trial court administrators would monitor leave reporting and provide policy interpretation for these personnel. The presiding judge of each administrative unit would have the responsibility of hiring and supervising the work of judicial referees and law clerks. Supervision of personnel under the presiding judge could be delegated to the trial court administrators.

In terms of the actual authority of the trial court administrators, all present policies and rules that provide the presiding judge of the judicial district with hiring authority for all personnel within the judicial district would be changed to reflect that the trial court administrators would have the hiring and supervisory authority over personnel except those hired and supervised by the presiding judge.

The actual hiring and supervision of subordinate clerk personnel and juvenile court personnel could be delegated to appropriate supervisory personnel.

Personnel Management

The trial court administrators would be expected to develop work plans assuring the efficient use of all administrative personnel. This would include strategies to share personnel between offices to address workload changes, as appropriate. The objective would be to support a focus on the total operations of the district court, including the juvenile court.

Elimination of administrative personnel currently in the system is not contemplated. The trial court administrators would review staffing and utilize subordinate administrative personnel based on areas of work need and expertise.

Subordinate administrative personnel could be assigned, at the discretion of the trial court administrators, within the administrative unit according to staffing standards that would need to be developed. Minimum staffing standards should be advanced for all support personnel within each administrative unit.

Case Management

The vision statement submitted by the Judicial Planning Committee provides the framework for the caseflow management discussion. The vision statement provides, "The judicial system will develop a case management and scheduling process that ensures an effective and equitable allocation of cases among judges, ensures the timely disposition of cases, and recognizes the importance of quality judicial decision-making in the disposition of cases."

This vision statement supports the development of management objectives by the Council that would provide the operational direction for the trial court administrators in this area of responsibility. The objectives would be in concert with our current case management practices and would support Administrative Rule 12, the docket currency rule. While it is desirable to have the flexibility of assigning judges between judicial districts within an administrative unit to address specific emergencies or temporary changes in caseloads, it is not envisioned this would occur on any regular basis. The focus would be on designing assignment systems so judges would function within the present judicial districts whenever possible. This strategy would of necessity be revisited with any major shifts in workload. The presiding judge should have the authority to assign judges within the administrative unit as necessary, which would require staffing changes.

The trial court administrators would play a key role in advising judges on techniques and strategies in support of workload equity and timely case processing standards.

Any discussions regarding changes in assignment systems would be matters addressed by the judges of the administrative unit and approved by the presiding judge of the unit.

Budget and Fiscal Administration

Changes in present budgeting procedures are contemplated. The presiding judge would recommend capital expenditures to the state court administrator, as is the present procedure. Present procedures for processing bills would continue. Day-to-day expenditures would continue to be processed by the trial court administrative offices.

The current out-of-state travel policies would apply. The presiding judge would approve out-of-state travel for judges, referees, and law clerks based on existing policies and budget guidelines. The trial court administrators would approve out-of-state travel for all other court personnel, as provided by policy.

Jury Management

The trial court administrators would provide direction to the clerks and work with judges on any specific problems that might arise regarding jury administration. They would routinely review juror utilization levels, as well as jury yield data, as part of assuring effective, efficient jury management procedures are followed. Overall oversight of the jury management plan would be the responsibility of the trial court administrators. The clerks will still have the responsibility of summoning and qualifying jurors.

Records Management

It would be the trial court administrators responsibility to ensure consistent operating procedures and file maintenance practices by clerks of district court and juvenile court offices. They would conduct regular records management audits of all clerk offices, including contract clerk offices.

The trial court administrators would be responsible for monitoring clerk operating procedures to assure data entry on UCIS (Unified Court Information System) and FACSES (Fully Automated Child Support Enforcement System) and the attendant record keeping is in compliance with statewide judicial policy.

The trial court administrators would be responsible for assuring compliance with Administrative Rule 19 and developing internal operating procedures to facilitate consistency in records retention and disposition for all clerk offices.

Summary

The lines of authority and organizational changes suggested in this report will reduce ambiguity and improve clarity of the mission of the judiciary. The recommendations will assure necessary personnel to support judicial functions in an efficient and effective manner.

Implementing Planning Recommendations: Affected Statutes, Rules, and Other Provisions

The Judicial Planning Committee submitted to the Supreme Court for consideration a series of recommendations concerning the administrative organization of the judicial system. Principle among these was the suggestion that the state be divided into three administrative units, each consisting of one or more existing judicial districts. A presiding judge would be elected within each administrative unit, which would replace the current system of a presiding judge for each of the seven judicial districts.

Implementation of this recommendation would require the modification, or at least close review, of several statutes and rules, as well as an administrative order. This memorandum summarizes these various provisions and their subject matter, and in some instances notes possible points of further review.

The principle effect of transforming the present administrative structure into one of administrative units with a presiding judge in each unit would be with respect to the variously identified responsibilities for the current presiding judges. In many provisions, there is a simple reference to "presiding judge", which could likely be retained as long as there is a predicate reference to the presiding judge being aligned with an administrative unit. In other provisions, the reference is to the "presiding judge of the judicial district", which would be modified to reflect the relationship with an administrative unit unless the shorter reference would suffice.

As a starting point, NDCC Section 27-05-01 should be reviewed. This statute provides for the establishment of the current judicial districts. To provide a basic reference point, it likely should be amended to provide that the Supreme Court, in order to support effective and efficient administration of the judicial system, may establish administrative units consisting of one or more judicial districts within each unit.

Should it be considered useful to allow the presiding judge of an administrative unit to assign judges to hear cases outside their election districts, but still within the unit, amendments to NDCC Section 27-05-22 would be required. That statute currently provides exceptions to the general prohibition against a judge hearing a case outside the judge's judicial district. The exceptions, however, do not seem applicable when, as a matter of simple administrative or case management, assignment of a judge outside the judicial district is considered necessary. Additionally, Administrative Rule 15 currently places authority with the Chief Justice to assign judges for temporary duty in another district. The rule would require amendment if that authority is transferred to, or shared with, the presiding judges of the administrative units.

Summary of Affected Statutes

Section 5-04-07(2) - the "presiding judge of the district in which a wholesaler's main office is located" selects a neutral arbitrator concerning a compensation dispute between a brewer and a beer wholesaler.

Section 11-09-29 - the "presiding judge of the judicial district in which the county is located" appoints a person to serve as a public administrator in a county that adopts the count manager form of government.

Section 11-21-01 - the "presiding judge of the judicial district in which the county is located" appoints a public administrator.

Section 12-54.1-01(2) - the "presiding judge of the judicial district in which a correctional facility is located" may authorize the facility administrator to provide for performance-based sentence reductions.

Section 12.1-06.1-05(8) - refers only to the "presiding judge of the district court" in which a civil racketeering action is filed, but requires that judge to "designate a judge to hear and determine the action". Designation authority would presume the presiding judge of the judicial district.

Section 25-03.1-02(8) - for purposes of mental health commitment proceedings, defines a magistrate in part as a judge assigned by the "presiding judge of the judicial district."

Section 27-05-03 - compensation for the presiding judge.

Section 27-05-05 - election of the presiding judge.

Section 27-05-30 - judges of the judicial district may appoint a judicial referee. By rule, this appointment authority is vested in the presiding judge, on behalf of the judges in the district. This statute may not require amendment, but should be noted.

Section 27-05-31 - magistrates appointed by the "presiding judge of the judicial district."

Section 27-08.1-08 - small claims referee appointed by the "presiding judge of the judicial district."

Section 27-24-02(5) - a temporary judge serving in a district is subject to the direction of "the regular presiding judge of the district court" with respect to the assignment of cases and administration of business. Although the reference is not to the presiding judge of the judicial district, the responsibility for supervision of assignment of cases and administration of business may imply such. The statute should be reviewed.

Section 29-01-14(3) - includes among those identified as "magistrates", small claims referees authorized by, and magistrates appointed by, the "presiding judge of the [a] judicial district."

Section 29-07-06 - transfer of municipal court case to another district judge designated by the "presiding judge of the judicial district" when requested by a state's attorney (when initial transfer of the case to a district judge is requested by a defendant due to alleged bias or prejudice of the municipal judge).

Section 29-15-21 - responsibilities of the "presiding judge" or "presiding judge of the judicial district" with respect to demands for change of judge.

Section 32-03.2-12 - motions for payments, reduction of awards for contributory fault, etc. made to the judge "designated by the presiding judge of the district" if the judge presiding at trial is unable to act.

Section 39-06.1-03(7) - for purposes of non-criminal traffic hearings, defines "official" in part as a qualified person appointed by the "presiding judge of the judicial district" to serve as an official for "all or a specified part of the judicial district."

Section 40-18-06.2 - approval by the "presiding judge of the judicial district" of transfer of municipal court cases to district court.

Section 58-02-23 - the "presiding judge of the judicial district" in which a new township is located designates a judge to participate on a board of arbitrators to determine the distribution of property and apportionment of debts following division of a township.

Affected Procedural Rules

Rule 40 (c), Rules of Civil Procedure - contested cases assigned trial dates by a trial judge under the direction of the "presiding judge of the district."

Rule 8.5(h), Rules of Court - the "presiding judge of each judicial district" may designate a judge or referee to use summary domestic relations proceeding.

Rule 8.6(a)(6), Rules of Court - the "presiding judge of the district" designates custody investigators.

Rule 8.8(h), Rules of Court - the "presiding judge" assigns a different judicial officer to conduct an ADR proceeding if the original officer is disqualified.

Rule on Procedural Rules ...

Section 7.1 - notice sent to the "Presiding Judge of each judicial district" regarding proposed adoption of or change to an administrative or procedural rule.

Section 7.2 - notice of order of adoption sent to the "Presiding Judge of each judicial district."

Rule on Local Court ... Rules - numerous responsibilities for the "Presiding Judge" with respect to the adoption of local rules. See, Sections 3.3, 3.5, 4.3, 6.1, 7.1, 8.1, 8.2, 8.3, 8.4, 9.1, 9.2, 10.1, and 11.1. The establishment of administrative units would likely require the review of procedures for establishing local rules.

Local Court Procedural and Administrative Rules

There are numerous references to the "presiding judge" in local rules adopted by the various judicial districts. See, ECJD Local Rule 4; NEJD Local Rules 1 and 2; NECJD Local Rule 2(3); NWJD Local Rule 1998-1; SEJD Local Rule 91-1. The establishment of administrative units with unit presiding judges would likely require a review of the status of local rules previously adopted.

Affected Administrative Rules and Orders

Administrative Rule 2 - election and duties of the "presiding judge." This is the primary rule that would require modification to reflect presiding judges being elected within in administrative units, rather than judicial districts.

Administrative Rule 6B - district judges travel to chamber cities pursuant to the schedule and direction of the "presiding judge of the district."

Administrative Rule 7.1 - designation or redesignation of chambers. Several references to the "presiding judge of the judicial district." See, Sections 2(2), 2(6), 3(3), and 4(1)(l).

Administrative Rule 7.2 - disposition of judgeship vacancies. References to the "presiding judge of the judicial district." See, Sections 2(1)(c) and 3(3).

Administrative Rule 8 - responsibilities of the presiding judge with respect to the appointment of temporary judges. With one exception, references in this rule are to the "presiding judge", which could still apply in the administrative unit arrangement. Section 2 of the rule, however, refers to the "presiding judge of a judicial district" with respect to recommendations to the Chief Justice regarding temporary judge appointments. Additionally, Section 1(a) requires the presiding judge to act in conjunction with the "local advisory committee of each judicial district" with respect to nominating persons eligible for appointment as temporary judges. The establishment of administrative units would not necessarily affect whether local advisory committees continue.

Administrative Rule 12 - presiding judge responsibilities with respect to docket currency standards. References are to the "presiding judge" or "presiding judges", which would not require change with the establishment of administrative units. Note: the rule provides that the "formal unit of accountability for docket currency is the judicial district " and the objective is to ensure a current docket within "the judicial district " [Section 1(f)(h)]. Whether this district-based approach is retained could be reviewed.

Administrative Rule 13 - the presiding judge, "on behalf of all of the district court judges of the judicial district may appoint a judicial referee." There are references in the rule to both "presiding judge", which would not require change, and to "presiding judge of the judicial district", which would. Additionally, a judicial referee has jurisdiction only within the judicial district of appointment. Question: Should the judicial referee remain district-based? The establishment of administrative would not necessarily affect this approach.

Administrative Rule 15 - the chief justice may assign judges for temporary duty to perform duties assigned by the chief justice or by the "Presiding Judge of the Judicial District" (Section 1).

Administrative Rule 17 - procedure for when a district or municipal judge is disqualified. References are to "presiding judge" and "presiding judge of the judicial district."

Administrative Rule 18 - Legal Counsel for Indigents Commission. Membership includes a member selected from nominations submitted by the Council of Presiding Judges. The Commission may recommend plans for indigent defense services to the "presiding judge for each judicial district" [Rule 3(7)] and may review fee decisions by the "presiding judge of the judicial district" [Rule 3(8)]. Other references are to the "presiding judge."

Administrative Rule 20 - presiding judge responsibilities regarding the appointment of magistrates. Several references to "presiding judge of the judicial district." Note also that the geographic jurisdiction of the magistrate is within the judicial district of appointment.

Administrative Rule 22 - Council of Presiding Judges.

Administrative Rule 29 - the presiding judge, "on behalf of the judges in the judicial district" employs jury bailiffs. There is reference in Section 6 regarding training to the "presiding judge of the judicial district."

Administrative Rule 35 - Juvenile Policy Board membership includes one judge and one referee appointed by the Council of Presiding Judges.

Administrative Rule 39 - The "presiding judge" approves requests for preparation of transcripts (Section 5A).

Administrative Rule 41 - for purposes of determining access to judicial records, a custodial judge is the "presiding judge of the judicial district" or another judge designated by the "presiding judge of the judicial district" [Section 2(2)].

Administrative Rule 44 - The Informal Complaint Panel or a Panel member may seek the assistance of the appropriate "presiding judge" in attempting to resolve a complaint (Section 3G).

Administrative Rule 46 - presiding judge responsibilities regarding state-employed clerks of district court. A state-employed clerk of district court is appointed by the "presiding judge of the judicial district in which the county is located" and the "presiding judge" designates staff who become state employees if the state-employee option is selected by a county (Section 3A and C). The "presiding judge" is involved in general oversight of clerk of court operations in "the judicial district" (Section 3C).

Administrative Rule 48 - with respect to surveying district judges as part of the Judicial Improvement Program, the program is managed by trial court administrative personnel designated by the "presiding judge in each judicial district" (Section 3A).

Administrative Order 2 - identification of "presiding judges" in the "judicial districts" and the "chief presiding judge."

Affected Rules for Lawyer Discipline

Rule 6.2 - with respect to a lawyer who has been disbarred, suspended, or transferred to disability inactive or incapacitated status, the Supreme Court must request that the "presiding judge of the judicial district in which the lawyer maintained a practice" take action under Rule 6.4 (Trusteeships) to protect the lawyer and the lawyer's clients (Section C).

Rule 6.4 - the "presiding judge of the judicial district in which the lawyer's primary place of business is located" may appoint a trustee (Section A). There are related references to the "presiding judge of the judicial district" in Sections C and F.