Administrative Council Radisson Hotel, Bismarck, ND June 6, 2014
Present: Chief Justice Gerald W. VandeWalle, Chair Judge Laurie Fontaine Judge Donovan Foughty Judge Gail Hagerty Judge William Herauf Judge Doug Mattson Judge Steven McCullough Judge William McLees Judge David Nelson Tracy Peters Judge Frank Racek Judge Bruce Romanick Justice Dale Sandstrom for Justice Carol Ronning Kapsner Judge Jay Schmitz for Judge John Greenwood
Absent: Judge Lawrence Jahnke
Staff: Sally Holewa
Others Present: Merylee Castellanos Jim Fleming Jim Ganje Scott Johnson Carolyn Probst Donna Wunderlich Don Wolf Larry Zubke
Minutes: Renee Barnaby
Chief Justice Gerald VandeWalle called the meeting to order at 10:00 a.m.
Minutes It was moved by Judge Herauf, seconded by Judge Racek to approve the February 28, 2014
minutes. The motion carried.
District Court FTE Requests Chief Justice VandeWalle noted that McKenzie and Barnes Counties will become state funded
with their clerks of court, so the number will increase by 9 FTEs automatically.
Sally Holewa said no FTE requests were received from Units 1 and 2. Unit 3 has requested 6
FTEs (plus retaining the 3 temps/contract clerks) and Unit 4 has requested 8 FTEs (plus retaining
the 3 temps/contract clerks) for a total of 14 FTEs before the Council for consideration.
In response to a question asking what Dakota Staffing is, Ms. Wunderlich replied it is a private
company that provides temporary employees to businesses and they are paid out of our operating
line. They were authorized by the legislature a couple bienniums ago. At that time, the
legislature was not granting FTEs and we needed bodies in the office. Judge Hagerty said the
drawback to temporary employees is they come and go, they are paid significantly less,
sometimes their abilities are less, and they do not get state benefits. We are spending a lot of
time and money training these people who then are not there very long so a full-time employee
would be preferable.
In response to a question from Judge Mattson asking if the workload has increased with Odyssey,
Donna Wunderlich responded the workload for the clerks has changed. They are as busy or even
busier because of the increase in the case filings that appear to be oil impacted. They are not
shuffling paper across their desks anymore, but they are spending extra time ensuring the quality
of the e-filings and relating documents so they are easily accessible for a particular motion, etc.
Justice Sandstrom indicated last session we did not request anywhere near the number that the
clerk study showed was needed. The number was reduced dramatically. Ms. Holewa added the
study was done after Odyssey had been implemented for one year so it does not reflect the
electronic filing which was not in place at that time.
Judge Hagerty said Unit 3's priority need is for additional clerks and an additional court recorder.
They have one fewer court recorders than judicial officers. Judge Nelson stated Unit 4's top
priority is in the clerk offices. The law clerk, juvenile court officer and assistant court
administrator would be second priority.
Ms. Holewa said the juvenile staffing study does not justify adding another juvenile court officer.
If law enforcement starts to issue juvenile citations again, it might affect the study, but right now
there is no justification. Ms. Probst stated that she added the juvenile court officer to the request
because they lost three contracts and are down to only two left in Williams County.
After discussion, it was moved by Judge Hagerty, seconded by Judge Mattson, to move
forward with all of the positions requested except for the juvenile court officer and referee
in Unit 4. It was requested that the reports be amended so they are in the same format.
The motion carried.
District Request for Additional Judges or Referees It was noted that the weighted caseload study includes the total numbers for judges and referees.
Two judges are requested for the South Central District, one in the Southwest District, and two in
the Northwest District.
After brief discussion, it was moved by Judge Mattson, seconded by Judge Herauf, to
request five judges (two in South Central, one is the Southwest, and two in the Northwest
Judges Hagerty, Herauf and Nelson indicated they have room for the judges and staff requested.
The motion carried.
Proposed Changes to Policy 505 Jim Fleming, Director of Child Support Enforcement, said he received a request from the
Council to review the language in Policy 505 and to clarify when the State Disbursement Unit
(SDU) will disburse spousal support. Mr. Fleming said the SDU will disburse spousal support-only payments if ordered by the court. However, SDU will not be enforcing it and will not put
liens on according as traditionally happens with child support cases. SDU will issue an income
withholding if ordered by the court. He suggested the following changes to Section 8C:
If the permanent order provides that spousal support only is to be paid, it should be treated as any
other civil order unless there is specific language in the order of the court indicating the case is to
be paid through the State Disbursement Unit, enforced through income withholding, or otherwise
enforced like a child support order. In the case where spousal support only is ordered by the
court to be paid through the State Disbursement Unit or enforced like a child support order, the
obligation will be subject to immediate income withholding unless the court specifies otherwise
under N.D.C.C. § 14-09-09.24.
Mr. Fleming said he was also asked to review the language in Section 9A concerning the
termination of parental rights. He noted the existing language is outdated and N.D.C.C. § 14-17-24(6) has been repealed. There is a global termination provision in the Century Code regarding
child support that says unless the court terminates it after giving notice to the department, not
only are all rights to a child terminated but this includes child support. If the court order is not
clear, than the current support will continue until adoption. When the child is adopted that is
when the court would enter an administrative termination of current support. He has proposed
paragraph 9A be amended as follows:
The adoption of a minor child or theUnless otherwise specified by the court in its order to
terminate an obligor’s parental rights toward a child, a termination of parental rights in
accordance with N.D.C.C. § 14-17-24(6) terminatesdoes not terminate the obligor’s current
child support obligation until the child is adopted. N.D.C.C. § 14-09-08.21. The adoption of the
child following a termination of parental rights terminates the obligor’s current support
obligation. A certified copy of the adoption decree orand the order terminating parental rights in
accordance with § 14-07-24(6) must be placed in a sealed envelope in the case file.
Mr. Fleming noted there are a couple places in Policy 505 where certified copies are necessary
and with Odyssey in place, he is unsure if it is still necessary.
It was moved by Judge Racek, seconded by Judge McCullough, that Policy 505, Section 8C
be amended in accordance with Mr. Fleming’s proposed language. The motion carried.
Judge Hagerty also questioned the validity of the language “placed in a sealed envelope.” Larry
Zubke recalled the Joint Procedure Committee recently determined that the language referring to
a sealed envelope means that it is tagged as confidential. Justice Sandstrom added there are
different levels of locks that can be used in Odyssey. Mr. Zubke suggested changing the words
to sealed. Sealed in Odyssey means the only people that can see the document is the judge who
sealed it and the clerk of court in that county. The other option is treating is as confidential,
which means the parties and the attorneys can view the document.
Judge Fontaine questioned the need to have anything sealed. She said under the adoption statute,
the decree is the one document in an adoption file that can be released because it does not contain
any identifying information.
It was moved by Judge McCullough, seconded by Judge Romanick, to adopt the substance
of Section 9A as proposed by Mr. Fleming and with editorial discretion given to Jim Ganje
and Larry Zubke concerning whether or not it should be sealed or confidential. The
It was moved by Judge McCullough, seconded by Judge Herauf, to adopt the draft
amendments to Policy 505 with the changes that have already been approved pursuant to
the two prior motions with editorial discretion given to Jim Ganje. The motion carried.
Mr. Fleming also requested the Council consider adding a new paragraph to Section 9 as follows:
Unless otherwise specified by court order, the current monthly support obligation will terminate
when the obligor of the current support obligation has been awarded primary residential
responsibility of the child or children on whose behalf the obligation is owed. This paragraph
applies whether primary residential responsibility has been changed in the same civil file or
separate civil file, even if venue is in a different county, as long as each order has been issued by
a North Dakota court. If primary residential responsibility is changed in a separate civil file, a
certified copy of the order awarding primary residential responsibility to the obligor must be
filed with the prior established support order.
Mr. Fleming explained that parents assume that the later court order automatically stops with the
child support obligation and are shocked and frustrated when they learn that the obligation
continues until a motion is filed.
After discussion, the Council recommended that the proposed change be referred to an
appropriate committee for further study.
Before leaving the meeting, Mr. Fleming announced that the Economic Downturn Pilot Project is
being retired. He thanked the Council for their support on the project.
Problem-Solving Courts Judge Hagerty said that at the last meeting, she volunteered to draft a proposal concerning
problem-solving courts. She said the proposal presented has been shared with the Department of
Corrections and is before the Council for review.
Chief Justice VandeWalle noted that one of the biggest problems is that treatment is not
available. Judge Hagerty suggested adding the following language to Section 3: J. Demonstrate
availability of necessary treatment resources.
After brief discussion, it was moved by Judge Hagerty, seconded by Judge Romanick, to
approve the draft as amended. The motion carried.
Warrant Notification by the Clerk of Court Staff Sally Holewa said the draft Warrant Notification by Clerk of Court Staff policy was circulated to
employees for comment and two comments were received. One comment requests some
discretion be included in the policy. In particular, it was suggested removing the word “must”
and replacing it with “may” so the policy would read ...“the appropriate law enforcement agency
may be notified...”. The second comment asks for clarification on whether the clerk should
conduct a search inquiry on each visitor or only if the clerk is aware of a warrant status without
the search requirement.
Judge McCullough recalled from the last meeting that there was not going to be a requirement
that the clerk conduct any type of a check. It was only if they recognized a person or as they
were doing their work they realized the person was wanted, then they were supposed to contact
law enforcement at some point in time with the person being able to finish their business.
Judge McLees stated he is not in favor of the policy as it is not something the clerks should be
doing. Chief Justice VandeWalle stated the problem is some clerk are doing a search on each
person and some do not do anything so we need to have a consistent practice throughout the
state. Ms. Holewa agreed there needs to be some consistency and believes education is a key
piece. She said while the clerks are not an arm of the sheriff, they are an officer of the court.
Section B is important because it states the clerk may forego the action if office safety may be
Carolyn Probst said she agrees with the request to change the “must” to “may” otherwise it
makes the contact mandatory when the circumstances may not be beneficial for that clerk to stop
and contact law enforcement. Judge McCullough questioned if changing “must” to “may” would
accomplish anything because then it is back to the total discretion.
It was noted that with the implementation of Odyssey, it is easier to tell if someone has a warrant
as there is a red W on the screen. However, there are cases when the warrant shows up in
Odyssey, but it has not yet made it into the law enforcement system.
It was moved by Justice Sandstrom, seconded by Judge Herauf, to approve the policy as
drafted. The motion carried with one person voting no.
Indigent Defense Application Fee Sally Holewa said the indigent defense application fee has changed from $25 to $35. She said
rather than amending the policy every time the fee changes, she is proposing the dollar amount
be removed from the policy.
It was moved by Judge Hagerty, seconded by Judge Herauf, to approve the proposed
change. The motion carried.
Chief Justice VandeWalle recognized Judge McLees’ for his service and commitment not only to
the Council but to the Court System. Judge McLees is retiring and this is his last meeting.