Members Present Surrogate Judge, Allan Schmalenberger, Chair Rod Olson, Unit 2 Trial Court Administrator Kathy Ouren, ECJD Clerk of Court Judge Jay Schmitz Donna Wunderlich, Unit 3 Trial Court Administrator Jean Delaney, Attorney Judge Gary Lee Sarah Cannon, Attorney, via phone Merylee Castellanos, Unit 1 Trial Court Administrator, via phone Darcie Einarson, Attorney, via phone John Grinsteiner, Judicial Referee Judge John McClintock, via phone Carolyn Probst, Unit 4 Trial Court Administrator Peter Welte, Attorney, via phone
Not Present Judge Karen Braaten Gabrielle Goter, Attorney Judge William Herauf Judge Steven Marquart Judge Thomas Schneider Jay Greenwood, Attorney
Guest Larry Zubke, I.T. Director
Staff Present Sally Holewa, State Court Administrator Lana Zimmerman, scribe
Judge Schmalenberger called the meeting to order.
Presentation of ECJD Caseflow Management Plan Please refer to the East Central Judicial District Caseflow Plan Highlights handout. Mr. Olson
reported the judges in are on a weekly rotation in Cass County. The weekly schedule rotates 1
judge on week #1, one judge on week #2, and one judge on week #3. All judges rotate and carry
a caseload of both civil and criminal cases. Criminal trials are held every Tuesday and
During the opinion week, that specific judge is responsible to travel to Traill County. Judge
Marquart travels to Steele county once a month.
Due to the size of Fargo and Cass County as the largest county, there is more block scheduling
than most counties are able to do. The calendar control clerks set the schedule and the judges
follow it. During hearing weeks, there is never a cancellation. If a judge needs time off, they
must find their own replacement to cover their hearings. Judges work in three-person teams, so
they share a staff of three and a law clerk. There isn’t a court reporter working for one specific
judge. The team is made up of 1 reporter, and 2 recorders and a law clerk.
Cass County has had an emergency plan in place since 2010, which outlines a priority for holding
hearings. Every Spring when there is a flood outlook, the emergency plan is reviewed and if the
courthouse is in danger of being flooded, court will be held out of Fargo municipal court, which
is not in the flood zone. If prisoners are moved throughout the state, hearings are conducted
The clerks office relates documents in each file in Odyssey, which makes it easier for the judge
to locate specific documents. The clerks generate the docket currency reports every month and
review all the cases by the 10th of each month to ensure accuracy. Issues are caught faster and
easier before the “official” docket currency is run.
Criminal cases are assigned at the first appearance to the judge who heard the first appearance on
all criminal cases including misdemeanors and felonies. Preliminary hearings are set 4 weeks
out. One advantage is the Indigent Defense Commission allows an attorney to follow a judge,
which avoids a lot of conflict with scheduling. The public defenders are in the courtroom with
that specific judge for the preliminary hearings, the disposition conference, the change of plea
hearings, and pre-trial hearings. The scheduling order is made after the initial appearance and is
served with the order before they leave the courtroom.
Motions deadline is set 9 weeks out from the initial appearance date. Motion hearings are 12
weeks out from the initial appearance date. Dispositional Conference is set for the day after
motions are heard. Change of Plea hearings are scheduled the day before a trial. Pre-Trial
hearings are held the morning of the trial. Misdemeanors and Felony Trials are set for 16 weeks
from the initial appearance date. Trials are set for Tuesdays and Thursdays of each trial week
with a maximum of 12-15 trials are set for each trial session.
Ms. Holewa asked how the process works from being a civil/criminal judge to taking all cases.
Mr. Olson shared the judges were getting burnt out at the end of their terms. They would rather
do all cases, all the time. Since they have been doing this rotation for a year, they like it much
Caseflow plans are dependent upon court culture. There is a history of how the state’s attorney
operates and how the indigent defense attorney operates. Some counties work well together and
the other counties don’t. No matter what the caseflow plan is in place, some problems can’t be solved. Trial rate is very
low for the size of Cass County.
Civil cases are assigned upon filing. Deadlines are outlined in the scheduling order. Divorce
cases are notice of assignment in the 8.3 language in family cases. There is a scheduling order
issued in conjunction with Rule 16, immediately. When an asbestos case is filed, there are 9
standard bookmarks produced right away. There will be 9 standard motions on every case, so
there is no waiting period on motions. The attorneys on those cases have a special scheduling
order, and when a motion is filed, they need to file it with a specific bookmark. When there is a
reply, they need to file the reply to a specific motion, so the clerks office can relay the documents
to match up.
Referees duties in Cass and Traill County hear all juvenile, child support, post-divorce, small
claims and traffic cases. In Steele county the judge hears it once a month. On the juvenile cases,
the referees are assigned by the 50/50 alphabet split. The concept is one judge, one family. The
family will come before the same judicial officer. Cases are assigned upon filing.
The referee scheduling order is relatively new and is more of a block scheduling. Travel time for
judicial referees is limited. Referees go to Traill county once a month. The scheduling order for
juveniles is completed immediately.
The ECJD Docket Currency Report Summary is produced often under the belief to study it to see
how things are working. ECJD has approximately 30,000 filings with 87 cases, most of which
are asbestos cases.
An issue that need to be addressed is the flow of asbestos cases. On the trial week schedule, the
judges are setting trials during opinion week because they aren’t utilizing the entire week for
The Caseflow Plan also includes a lot of policies that are technically not caseflow. For example,
the media policy includes television stations to bring only one camera into the courtroom.
Mr. Olson will send Ms. Probst a copy of the media policy.
Williston Calendar Project Please refer to the Request for Technical Assitance or Training handout. Ms. Probst shared a
consultant with the National Center for State Courts was brought in under grant funds to review
caseflow management and the calendaring process in the Northwest Judicial District.
In Williston, the two new district court judges started work in August and September. The actual
calendar has been in place for quite sometime and wasn’t implemented until November 1, 2013.
The consultant spent 1 day in Williston, and 1 day in Watford City. Focus was on the western
part of the district, due to the main influx of caseload and a huge transition that was about to
occur. A calendar has been established based on four judges with Watford City to assist with
master calendar one week a month. Helpful discussions with the public defender’s office, state’s
attorneys, judges and staff were to get an overall feel of circumstances, situations, and current
procedures. It was extremely beneficial to focus on the areas that will be critical including the
transitions, which can take time. The calendar won’t begin until next May due to the backlog.
The report will reflect the tracking to make sure changes are under control. Block scheduling has
been established with a good sense of direction. Changes may take place due to caseflow and
actual availability of the judge in Watford City. The caseload in Watford City is higher than any
of the other judges in the district. If the rotation begins not to work for Judge Schmidt, she will
continue to rotate and the judges in Williston will begin to rotate to Watford City, as her opposed
to staying in one place. A follow up in 2014 will show the progress and answer any
complications. The major benefit of the project is to have a neutral person to gather the
information and lead the discussions, which is beneficial.
Judge Lee asked if this committee could expand to add a judge from the Northwest judicial
district to the committee. He feels it is important to have some input into this committee, as
Discussion on Criminal Case Processing Please see Court Process-Criminal Case handout. Ms. Holewa referred back to items the
caseflow committee worked on years ago. One item was civil process to try and find ways to
streamline and gain control early on in the process. She felt it to be helpful to discuss whether to
look at the criminal processing, and gain recommendations on a way to eliminate or combine
Judge Schmitz relayed that Rule 43 is a topic in the Joint Procedures committee. Rule 43
requires a personal appearance. Judge Schmitz shared this is unique to small counties, where
there is at most, 1 master calendar a month.
Judge Schmalenberger shared there are a lot of similarities as to what is going on at this time
within the units. Some of the Rules of Criminal Procedure create some impediments, which may
require some recommendation back to the Rules committee.
Mr. Olson shared in the East Central judicial district and the Southeast judicial district with the
new caseflow plan in place, to post the caseflow plan for public viewing. He suggested possibly
on the SBAND site and/or the ND Supreme Court site.
After discussion on the criminal case processes, it was determined to survey the Presiding Judges
and ask if they routinely start with a complaint and information, if they require an appearance on
a preliminary hearing and/or an arraignment, if there is an attorney retained or representing, and
to ask their thoughts on criminal case processing.
Case Reset Continuance Statistics Please refer to memo from Ms. Holewa to the members of the Caseflow Management Committee
on Statistics for Continuances. This project began last year. All of the work and data in this
project, at the macro level by district or statewide is less useful than anticipated. The focus was
on the percentage of cases and continuances. Court culture and scheduling practices may differ, but the conclusion is integrity of dates.
Judge Schmalenberger asked what this committee should be focusing on in this area. Ms.
Holewa asked what should be improving, what are the hangups, what is getting continued the
most, and why is it being continued. Fargo has a low continuance rate compared to the rest of
the state, due to assigned prosecutors and defense attorneys. They aren’t continuing because of
Judge Lee shared that continuances aren’t a problem, unless they are creating docket currency
problems. They can be a problem if you set the time aside, move it, and then that time is
available. The bigger problem systemically, is how is it controlling the docket currency.
Ms. Holewa suggested that part of continuances is the credibility of the court, if something is
going to happen, it should happen unless there is good reason as to why.
Judge Schmalenberger suggested since the committee is looking at the Criminal Case Processing,
the Case Reset/Continuance related to criminal needs to be focused on first and then proceed
with the Case Processing after.