Present: Chief Justice Gerald W. VandeWalle, Chair Judge Sonja Clapp Justice Daniel Crothers Judge Donovan Foughty Judge Gail Hagerty Judge William Herauf Jim Hill Judge Gary Lee Judge John Paulson Judge Frank Racek
Absent: Judge Georgia Dawson Judge Laurie Fontaine Judge William McLees Judge Steven McCullough Judge Robert Wefald
Staff: Sally Holewa Louis Hentzen
Others Present: Dennis Herbeck Rod Olson Don Wolf Carolyn Woolf Donna Wunderlich Larry Zubke Aaron Birst Roza Larson Nathan Madden Paul Murphy
Minutes: Renee Barnaby
Chief Justice Gerald VandeWalle called the meeting to order at 10:00 a.m. and welcomed the
following gu guests: Aaron Birst, Legal Council for the North Dakota Association of Counties and
Executive Director of State's Attorney's Association; Paul Murphy, Foster County State's
Attorney; Roza Larson, Ward County State's Attorney and Vice President of the State's
Attorney's Association; and Nathan Madden, Williams County Assistant State's Attorney.
Minutes It was moved by Judge Herauf, seconded by Justice Crothers, to approve the March 12,
2010 minutes. The motion carried.
Clerks Monitoring of Judgment Conditions Sally Holewa recalled at the September 2009 Administrative Council meeting, she was asked to
survey the clerks of court to determine what each are doing statewide in regard to monitoring
conditions of sentence. After the survey, she submitted her report and recommendations, and the
Council asked her to send it to the clerks and state's attorneys for comment. All of the comments
received are included in the meeting materials.
Ms. Holewa said the survey showed a wide variance between each clerk and what they do or do
not do to monitor and enforce conditions of sentence. Some of this is based on what resources are
available in the county, the relationship between the court and the local state's attorney, as well as
local judge philosophy. She said she attempted to take all of these things into consideration in
making her recommendations. She also tried to look at the process and what should happen. She
thought it should be a prosecutorial discretion whether or not to go forward with a contempt and
formed her recommendations on that basis. The clerk should still monitor but rather than taking
the information directly to the judge and asking for a contempt or a warrant, the clerk would take
it to the prosecutor to ask if they want to pursue it. Ms. Holewa is also recommending a warning
letter be sent out first if the person is not in compliance. She said her goal is to get the person to
comply rather than bringing them back into court.
Judge Hagerty stated in the South Central Judicial District, the clerk sends out the orders to show
cause and those are scheduled for every Thursday, at 9:30 a.m. It is not uncommon to issue 40 or
50 notices. The state's attorney is present at the hearings, but they do not have much information
unless it is something they have generated such as a failure to get an evaluation, treatment, or
community service or something similar. If it is fines and fees, the clerk has the records.
Nathan Madden commented that in Williams County, when it comes to payment of fines, fees,
and restitution, the clerk's office does the order to show cause (OSC). As far as the hearing is
concerned, the state's attorney has almost no input. The judge sets a new payment plan and that is
the extent of it. He said one of the concerns that his office and the clerk's office have is that
regardless of who brings it forward, we need to look at enforcing and backing up these orders. As
Ms. Holewa's report indicated, without enforcement, there is no compliance. Mr. Madden said
there are rarely any contempt proceedings for failure to pay fines, fees, and restitution. The same
goes for chemical evaluations and things of that nature. As far as collecting on payment of fines
and fees, everything goes to the clerk so the clerk has all the information. The chemical
evaluations are also filed with the clerk. The state's attorney's office has no knowledge of it until
the clerk informs them someone hasn't complied. He said if we go through a process where the
clerk's office receives the information and then passes it on to the state's attorney's office to
determine whether an OSC is needed, the amount of work that has to get done is duplicated.
Also, from the smaller county perspective, the issue of funding is a concern and would need to be
addressed. He also noted some of the part-time or nonexclusive state's attorneys are finding
themselves in a position where it could be a problem to get everything done. He said his office
too is at maximum capacity already.
Roza Larson said in Ward County, everything is monitored in the clerk's office with regard to
unsupervised probation matters, anger management compliance, and chemical additions as well
as follow though, community service, and fines and fees. She said her office collects the
restitution on misdemeanor matters. In those instances where the clerk has an OSC for failure to
follow through with things other than the restitution, the clerk contacts the state's attorney's office
to see if the defendant has been paying restitution. If they have not, the state's attorney asks the
clerk to add that to their OSC. Ms. Larson said they have OSC hearings every Friday and
approximately 20 people, at the most, are present. Someone from the state's attorney's office is
present, and they do all of the questioning. The clerk's office gives the state's attorney a ledger
card that shows when the payments have been made and what else may be lacking. It also gives a
history of how many OSCs they have had because the state's attorney's office does not have any
of that information. Ms. Larson said when her office receives notification from the judge that
someone hasn't followed through with an evaluation, it may sit on her desk for a while because
it's not a priority when there are other cases to handle.
Ms. Larson stated she is also the Vice President of the State's Attorney's Association. At their
last board meeting, their concern was that the nonexclusive state's attorneys simply do not have
the manpower and ability to follow through and are stretched to the limits. She said the same can
be true with things in her office. If one person was inundated with monitoring the files and
basically becoming a probation officer, then the goal of getting these people into court and getting
them to pay is going to even be worse than it is right now as far as compliance because it's not
going to be a priority in a state's attorney's office.
Judge Paulson questioned if there was an automatic warrant provision if the defendant does not
show up on the OSC. Ms. Larson responded it is not automatic. In court, the judge asks the
state's attorney what they want to do, and usually they suggest a bench warrant. If it's only
money that is owed, then the state's attorney asks for cash or credit card bond. If it's an
evaluation or something that they need to do, then the state's attorney doesn't necessarily ask that
they stay in jail, but they have to come in and make the appointment and sign a promise to
Paul Murphy stated in Foster County, in terms of simplicity, it is a lot easier when you already
have the judge who is reviewing the motion for show cause deciding whether or not there is going
to be a hearing. Ultimately, it is the judge who is going to decide whether or not to bring the
person in. The clerk handles everything from restitution to compliance with anger management
or an evaluation and completion. He said it is a simple system, and it works very well. If the
duties are changed, there are monetary concerns. We have shifted a lot of duties already over
from the stated-funded clerk of court to the recorder and now we are going to be shifting more
duties from state funded down to the county funded with no money attached to it.
Chief Justice VandeWalle noted with regard to the clerks, the shifting of duties went from the
county to the state. The clerks were county funded, not state funded, however the money was
included with it.
Judge Foughty said he is in agreement with the state's attorneys. There are 11 counties in the
Northeast Judicial District, and there are three full-time state's attorneys. From a practical
standpoint, switching over the duties will not work and then the public perception of the court is
they are not doing their job.
Chief Justice VandeWalle said two important issues are: (1) are we going to enforce the orders
that are made; and (2) can we put the judge in a position of being both a prosecutor and a judge.
Judge Hagerty said when we find someone in contempt for failure to pay, there has to be evidence
that they had an ability to pay and they failed to pay, and it isn't reasonable to think that the judge
is going to be the person presenting that evidence. If someone needs more time to pay absent a
showing that they had an ability to pay, and they failed to do it, the judge's hands are pretty much
tied. Ms. Larson responded that is why her office does the questioning on OSCs, and if the
defendant has a previous history, they ask for further contempt. Mr. Madden stated his office is
not asked for input.
At the request of Chief Justice VandeWalle, Ms. Holewa explained a project that was started in
2006 wherein the court contracted with one of the contract county clerks to review the files from
1991 to 2000. The clerk used a program to find new addresses for people and contacted them. A
lot of money has come forward and it has been very successful.
Ms. Larson stated the Ward County clerk does a good job collecting. She said the clerk has
assisted the state's attorney's office in cleaning up some of the restitution and locating people so
they can pay restitution to the victims.
Judge Racek said when it comes down to unsupervised probation, neither the clerk's office nor the
state's attorney has the time to investigate whether it has been accomplished. One of the problems
in Fargo is they go beyond what the statute requires. Every good program that comes along, the
state's attorney wants to recommend, which puts the court in a tough position if the defendant
doesn't follow through. If they need a chemical dependency evaluation, then they want follow
through and the victim impact panel, etc. The court has to say yes or no and then live up to their
responsibility too because the only big consequence is jail. He said so if we post conditions we
are not willing to put people in jail for, how are we going to bring it to an end? No matter how
you do it, you end up with a system where they are recycled, which puts a large burden on the
clerk's office. Judge Racek suggested if you are going to impose conditions, perhaps the most
effective way is to send out a delinquent notice for nonpayment of money or a notice of
noncompliance if a certain condition is not met. The notice would state that the person has a
certain number of days to file proof that the condition was complied with or appear in
arraignments. If they do not appear, a bench warrant is issued.
Chief Justice VandeWalle said there are a lot of issues involved in this, not the least of which is
local culture, and that is one of the hurdles we are trying to overcome. There ought to be some
uniformity in the unified judicial system.
Ms. Holewa commented that there seems to be an assumption that the court has both the
resources and the legal obligation to build these cases and to bring them forward. She does not
believe the assumption is true. She said our studies show that every state funded clerk office,
except for Wahpeton, is understaffed. We have one budget and one staffing system, and local
culture cannot play a role in deciding who gets staff and where the money goes.
Chief Justice VandeWalle said Ms. Holewa suggested that maybe the best approach would be to
set up a committee with representatives from this Council, the State's Attorney's Association, and
the Association of Counties to come up with some recommendations. In some instances, there
may be some legislative changes necessary, particularly in the restitution area.
Ms. Larson stated she would serve on the committee but with all the different functions of every
county, every judge, and everybody handling it a little different, the end result may only be
suggestions to try and make it more uniform in each county and district.
It was moved by Justice Crothers, seconded by Jim Hill, that the Chief Justice appoint a
committee to study this issue and report back to the Council.
Chief Justice VandeWalle said he would be in contact with Aaron Birst and the State's
Attorney's Association to discuss the membership of the committee. Judge Hagerty suggested a
representative from the clerk's office also be considered when forming the committee.
Aaron Birst thanked the Council for allowing him and the state's attorneys to address the issue.
The motion carried.
Chief Justice VandeWalle thanked the guests for participating.
Law Clerk Staffing Study At the request of the Administrative Council, Sally Holewa prepared a staffing recommendation
for district court law clerks. She is recommending a ratio of 1 law clerk for every 3 judges,
conceding that is not necessarily a scientific analysis.
Judge Paulson said he is of the opinion that this should be done on a unit basis.
Judge Racek suggested that because we have so many different factors, some mechanism be
developed to make determinations based on the case and not on the judge. The weighted
caseload study and the WAPC study are outdated because of the new computer system. He said
the weighted caseload study uses variables per judge (i.e. driving time, administrative time, and
drug court) and those things do not generate any cases. If we measure the judges' staff by the
weighted caseload study, it is not accurate because there is probably more potential for
transcripts per day generated in Fargo than there is in a rural area.
Judge Racek is also concerned about turning the decision on how many law clerks are needed
over to administration. He said while he is one of the biggest proponents for administration, their
expertise is in handling the quantity of things. He believes the judges are supposed to manage
quality, which is more of a subjective thing. When determining the number of laws clerk, we
should add an element of quality to any presentation we make and not just quantity. He added
other things need to be addressed rather than just making it a counting task.
Judge Racek said another problem when it comes to law clerks is no one has ever been trained
how to use them. Judges use them differently. Some use them as an extra set of eyes to read
everything and tell them what's in the case while others work hand and hand with them doing
legal research and talking through legal theories.
Chief Justice VandeWalle said once Odyssey is rolled out across the state, it will be easier for
rural judges to access the use of the law clerks because everyone will have access to a record no
matter what part of the state they are in.
It was moved by Judge Hagerty, seconded by Jim Hill, to accept the recommendation that
has been presented by Ms. Holewa.
Rod Olson said Ms. Holewa's recommendation is 1 to 3 judges, but we also have referees who
use the law clerks so they may not be available on the same basis. Ms. Holewa stated the
referees are given a different weight because they do not handle every case type. Judge Hagerty
commented the referees in Unit 3 do not use the law clerks because the type of work they are
doing does not require the assistance of a law clerk. Judge Clapp said referees in her unit
occasionally use the law clerks to do research on the small claims cases.
Judge Racek suggested the recommendations should be more general and not per the number of
judges because it should be matched to cases, not the judges, regardless of who is doing them
and where they are at. It is the cases that generate the business for the law clerks not the travel or
Ms. Holewa responded she did try to look at cases, but as you can see from the report, there was
no way to isolate the cases because everybody claimed to use law clerks for so many different
types of cases that it became impossible to try to tie it to that.
The motion carried to adopt the recommendations as presented.
Recommendation on District Court FTE Requests for 2011-13 Biennium Sally Holewa explained she prepared her recommendations on the district court FTE requests
prior to the governor issuing the budget guidelines. The governor's guidelines for executive
branch agencies came out as a hold even based budget with no FTE requests. Executive branch
agencies also need to prepare an optional 97% budget.
Ms. Holewa said given the governor's guidelines, she is requesting the temporary employees be
retained along with two additional staff: a law clerk and a deputy clerk for the South Central
Judicial District. She said the Burleigh County Clerk's office has been consistently the most
understaffed. Even though the office has been able to operate efficiently, it became obvious that
their office is not doing things the other clerk offices are doing (i.e. documenting the results of
the motion hearings and juvenile cases in UCIS). In preparing to move into the Odyssey system,
more consistency and clarity is needed or the shortage will be evident if it is not addressed.
In response to a question from Judge Paulson asking if the new Odyssey system would make the
clerk's office more efficient, Ms. Holewa responded no. The efficiencies gained from Odyssey
are not enough to make up for the fact that we are starting out with a five deputy clerk shortage
across the state.
Judge Racek suggested it would be a good opportunity to reorganize the clerk offices. First, he
suggested taking FASCES out of the offices so they wouldn't have to monitor the flags. He said
it would save a significant number of FTEs across the state. There are central payments now,
regional child support has been taken over by the state, their computer system isn't compatible
with ours, and it is just a lot of recycling that does not serve any legitimate purpose of the court.
We are bringing these people in and telling them to come back month after month. Child
support, on the other hand, has indicated they would not issue as many orders to show cause
because they are more familiar with the cases. Second, he suggested consolidating the traffic in
each unit. There will still be the same physical number of tickets, but it is such a uniform task it
could be gathered in one centralized location in each unit. Third, he suggested consolidating jury
management, which they have already done in Unit 2. All of the juries are processed out of
Wahpeton. If we consolidate traffic and the summoning of jurors in each unit, instead of training
53 clerks, you would only have to train four. It results in less supervision by administration, less
maintenance of hardware and software, and there is one contact person to address any issues.
Ms. Holewa said if we take FASCES or monitoring the flags out of the clerk offices, it would
Dennis Herbeck stated Unit 1 is processing jury management through Pierce County, but they are
doing that to support Pierce County so they can have two clerks in their office. He said the
moves we make to try to consolidate or pull positions someplace else sometimes has a negative
impact on the smaller counties, and it is important that we maintain those counties.
It was moved by Judge Paulson to table until the next meeting. The motion died for a lack
of a second.
It was moved by Judge Hagerty, seconded by Jim Hill, that the budget include the
temporary employees and one FTE for a law clerk in the South Central and one deputy
clerk position in Burleigh County.
Ms. Holewa said the primary purpose of consolidating the jury management in the East Central
Judicial District is to take the pressure off of the staff in the larger counties by outsourcing what
we can to the smaller counties.
Donna Wunderlich stated that Unit 3 considered outsourcing the jury management, but the
volume of the jury trials was so great that there were no contract counties that could assume the
workload so Unit 3 opted not to go that route.
Judge Racek said under the Odyssey system, everything is almost completely automated except
of the law enforcement jurisdictions that are still writing paper tickets. The information is
automatically entered into the computer. The defendant pays by phone, credit card or check so
there are not as many lines to maintain making it easier to consolidate and transfer to a smaller
court. He said we would only have to maintain it in four counties, rather than 53 counties.
Judge Clapp stated that regional child support will not go in and try to enforce a case unless one
of the parties has applied for their services. Judge Hagerty added there are also some guidelines
for applying. Ms. Holewa said the clerk would still have to monitor the non IV-D cases because
there is no other entity that shares that responsibility.
The motion carried that the budget include the temporary employees and one FTE for a
law clerk in the South Central and one FTE for a deputy clerk in Burleigh County. Limited English Proficiency (LEP) Plan Sally Holewa said under Title VI of the Civil Rights Act of 1964, all entities receiving federal
funds are required to have an LEP in place, which outlines the steps the entity has taken to
provide meaningful access to limited English proficient individuals. She said it is her
recommendation that the court adopt a rule or policy to provide for court-appointed interpreters,
at court expense, in all court proceedings where the ability to speak and understand English
hampers a litigant's or witness' ability to fully participate in the case. She is requesting the
Council adopt the plan and send it to the Supreme Court. The Supreme Court will then request
input from the district judges.
Chief Justice VandeWalle added that the plan will give us some protection. He said he learned at
the Conference of Chief Justice's that some of the states have had lawsuits brought against them.
It was moved by Judge Foughty, seconded by Judge Paulson, to adopt this plan as outlined.
The motion carried.
Data Collection and Analysis CIP Grant Louie Hentzen explained the Data Collection and Analysis CIP grant is one of the federal grants
on court improvement of child welfare cases. He said the strategic plan for this grant is now in
the quality assurance program phase that includes the ongoing data collection and analysis. He
said the Court Improvement Project Committee is requesting permission from the Council to use
the grant money to hire a temporary research analyst. The position would be completely funded
by grant money and would not create an FTE position in our staffing table. He said if we
contracted with an outside vendor that person would have limited access to our data. By hiring a
temporary person, that person would have access to our data bases and therefore would be able to
gather the data to analyze our child welfare cases.
It was moved by Judge Foughty, seconded by Judge Herauf, to hire the temporary research
analyst. The motion carried.
Chief Justice VandeWalle thanked Jim Hill for his dedication and years of service on the
Council. Mr. Hill's term on the Council expires in August.