September 5, 2014
Chief Justice Gerald W. VandeWalle, Chair
Judge Cynthia Feland for Judge Bruce Romanick
Judge Laurie Fontaine
Judge Donovan Foughty
Judge Gail Hagerty
Judge William Herauf
Justice Carol Ronning Kapsner
Judge Gary Lee
Judge Doug Mattson
Judge Steven McCullough
Judge Thomas Merrick for Judge John Greenwood
Judge David Nelson
Judge Frank Racek
Judge Lawrence Jahnke
Chief Justice Gerald VandeWalle called the meeting to order at 10:00 a.m. and welcomed Judge Lee as the new presiding judge of the North Central District.
It was moved by Judge Foughty, seconded by Judge McCullough, to approve the June 6, 2014 minutes. The motion carried.
District Court Budget
Don Wolf said the total proposed 2015-17 budget is $99,675,237, which is an increase of 15.7% or $13.5 million compared to the 2013-15 budget of $86.2 million. The amount does not include the cost to continue the salary increases received during the second year of the current biennium. In addition, OMB will be making adjustments in health insurance and retirement prior to submitting the budget to the legislature.
The base budget is $85,005,313, which is the current appropriation less items that the legislative assembly identifies as one-time funding items.
Under the operating expenses, there is an increase in technology costs of $353,587 (maintenance agreements and IT equipment); payments to contract counties for clerk of court services of $381,748 (this amount would be significantly higher if Barnes and McKenzie Counties had not elected to become state funded); operating budget for guardian ad litem program of $163,443; juvenile services contracts of $332,340; and three IT projects of $1,318,922 (JCMS, disaster recovery and criminal eFile).
The budget also includes a 5% increase per year for judges as well as the recommendation from the Administrative Council for 32 FTE positions and 5 judges. The total salary and wages for these new positions and the judgeships is $6.6 million, which includes the cost of replacing the temporary positions.
Chief Justice VandeWalle noted the budget could increase as much as 20% once the numbers are updated. He also noted the bill for the judges will be included as part of the appropriation. The budget needs to be submitted to OMB by November 1.
Proposed Changes to Policy 505
Sally Holewa said the criminal case processing section of Policy 505 was circulated to employees for comment. One comment was received referring to a typographical error. It was moved by Judge Herauf, seconded by Judge Fontaine, to adopt the changes and forward them to the Supreme Court for consideration.
Under Section 6.2, Judge Hagerty suggested removing the language referring to writing on the file folder. With the consent of the second, the motion was amended to include the following changes to section 6.2: “The clerk shall close the case with the Rule 20 transfer. Write Indicate “Rule 20, Transfer to ______ County” on the file folder and close the case with the transfer to another county.” The motion carried.
Ms. Holewa stated she received a proposal from Judge Anderson to amend section 2 of Policy 505 to have the clerk prompt the attorney to close informal probates. Under the policy as it is currently written, the clerk will prompt on a formal but not an informal probate.
Judge Herauf said when a file is at least three years old and there has been no activity for one year, the Southwest District sends a form letter requesting that the party respond within 30 days or the file will be closed.
Judge Nelson questioned why the court would close the file. He said any party at any time can request an order to show cause if something is not moving along.
Judge Racek suggested the Letters should be issued for a specific period of time so no one can act in the name of the court in violation of their duties. In a conservatorship of a minor, they are supposed to file an annual report. Once the report is received, the court could then issue Letters for the next year. If not, the Letters expire. The same thing could apply to a probate after it is more than three years old. If the Letters have an expiration date, it will force the personal representative to handle the estate in a timely fashion.
Justice Kapsner said Judge Racek’s proposal would require a change in the law for probate cases. However, with regard to conservatorships and guardianships, you have a protected person for whom you continue to act. With an estate, the property has usually been disbursed early on in most informal probates so that is a bit of a distinction between the case types.
Judge Nelson said with regard to the Letters he issues, he added the restricted language from the statute that says after three years from the date of opening, the Letters can only be used to confirm title to property and cannot be used for the other powers.
Judge Fontaine recommended this issue be deferred. She said that the lawyers that handle probate cases always used to file closing documents but something seems to have changed. She would like more research before the Council makes any changes to this section of Policy 505.
Judge McCullough suggested seeking input from the real property, probate and trust section of the State Bar Association. Judge Hagerty suggested also asking them to consider Judge Racek’ s proposal to restrict the length of time Letters are valid.
It was moved by Judge Fontaine, seconded by Judge Nelson, to defer action on this issue pending input from the State Bar Association. The motion carried.
Policy 602 - Professional Development and Education
Chief Justice VandeWalle stated Policy 602 requires the chief justice to approve out-of-state travel if it is over budget or if it is out of the country. He said he is uncomfortable approving the request without the approval of the presiding judge.
It was moved by Judge Hagerty, seconded by Judge Herauf, to add the requirement to the policy and application process. The motion carried.
Request for Guardianship Audit Pilot Project
Judge Feland said Chief Justice VandeWalle set up a guardianship workgroup consisting of a multitude of individuals involved in the guardianship process to determine whether the national probate court standards were being met under our current guardianship and conservatorship statutes. She said one issue of concern was the monitoring of guardians. Annual reports are filed by guardians, but there is no meaningful review of the report to ensure the appropriate management of the ward’s care and assets. The workgroup is recommending the court initiate a pilot project to strengthen the court’s oversight of the financial and personal well-being of wards. Under the pilot project, 20 audits would be conducted in the Southeast and South Central Judicial Districts. The majority of the audits would be triggered by referrals from judges or complaints by interested parties. The additional cases would be chosen at random and would include professional guardianship providers. In addition, 40 well-being checks would be conducted to ensure the ward is properly cared for. The reports would be filed with the court. This would create a mechanism for meaningful guardianship monitoring to ensure our legal obligation to protect and preserve the interest of the ward.
Judge Mattson questioned if that degree of monitoring is more the responsibility of the executive branch rather than the judiciary and said brings up the issue of separation of powers. He stated it has been the practice in the North Central District to review the reports and if something is alarming, ask for more information.
Judge Feland said part of the concern that came up at the workgroup is the court can look at the reports but unless there is somebody actually checking and providing feedback, there may not be enough meaningful information to make an assessment. She said some of the people who are on the workgroup who were visitors or attorneys spoke of instances where nursing staff contacted an attorney to report a family member taking advantage of a person.
Judge Nelson stated before he became a judge, he was guardian and conservator for a number of people. He filed annual accountings because the statute relieved him of liability once reports were filed and notice was sent out. He said if falsified reports are filed, the court is discharging these people from any liability. He supports the idea of making people accountable and would like to see something in place.
In response to a question asking how the court remains impartial, Judge Feland responded the court would not actually do the investigation. The workgroup suggested something be set up similar to that of parenting investigators.
In response to a question asking what other states are doing, Chief Justice VandeWalle said Nebraska uses their clerks of court to review annual reports. Ms. Holewa added in some other states, annual reports are reviewed by a specialized guardianship division established within the office of the state court administrator.
Judge Racek said the fiscal exploitation can be mitigated. The county can bond public administrators through the state bonding fund. However, the physical abuse cases are more difficult because it cannot be detected by reviewing papers. He noted that the Rape and Abuse Center in Fargo has obtained a grant to develop a justice system response to elder abuse and they would probably like to be engaged in creating safeguards. He said that if they, or the court, implement a program, then the reports should be sent to the Department of Human Services so they give a recommendation to the court, similar to what they do for adoptions, stating whether or not they approve the annual report. That way the judge would have some feedback before they sign off on a report.
It was moved by Judge Hagerty, seconded by Judge Nelson, to move forward with the pilot project. The motion carried.
Clerk of Court Manual
At the request of the state court administrator, Rod Olson and Chris Iverson updated the clerk of court manual to reflect the changes from paper-based to electronic-based records and remove references to UCIS.
Donna Wunderlich said she reviewed the proposed manual with the current manual line for line and found some places that still reference printing, filing the originals, and mailing copies that may need to be updated. She also suggested the most recent changes to Policy 505 be incorporated into the manual. Rod Olson noted the statutory language was left in so if the statute referred to filing the original, they did not change it.
Judge Nelson suggested the manual be reviewed by the clerks of court before the Administrative Council takes any action on it. Ms. Holewa responded that it was her hope that this group would move this project forward today by authorizing her office to put it out for comment to the clerks so those comments can be brought back to the next meeting.
It was moved by Judge McCullough, seconded by Judge Herauf, to approve the changes to the manual subject to comment.
Mr. Olson noted they are trying to change the clerk manual from a how-to manual into a reference manual. The Odyssey manual is basically the how-to manual and the clerk manual is a reference to show the basic steps, statute numbers and rules.
Judge Kapsner inquired about the process for amending because the manual will soon be inaccurate when the filing of an appeal is moved to the supreme court. Ms. Holewa responded that it is a cumbersome process to make what are essentially clerical changes when a rule is passed or a policy is adopted. She said it would be helpful if the manual could be continually updated in a timely fashion without having to wait for the next Administrative Council meeting. Mr. Olson agreed that is this is part of the reason the manual gets so outdated and then the clerks cannot rely on it The manual is online and is something that should be constantly updated.
Judge McCullough withdrew the motion.
It was moved by Judge Hagerty, seconded by Judge Racek, that starting now and in the future the state court administrator is authorized to make changes to the clerks manual without prior approval by the Council, and that the state court administrator advise the Administrative Council when changes have been made. The motion carried.
Review NICS Findings Document
Sally Holewa said Greg Runge has requested that the NICS (National Instant Criminal Search) findings form be modified. He is suggesting a reference to N.D.C.C § 62.1-02-01(1)(c) be added to the form. Mr. Ganje recalled the Council’s last discussion concerning the firearms notification and the requirement that the court make findings where a federal firearms limitation applies and that the forms be entered into Odyssey. Mr. Ganje said those forms do have the reference that Mr. Runge is suggesting. He suggested he may be referring to an old form.
Donna Wunderlich said she believes the South Central District is using the state form, and it is her understanding that Mr. Runge’s issue is that the way the form is currently worded, it does not cover people who are chemically dependent.
After brief discussion, Chief Justice VandeWalle requested Ms. Wunderlich ask Mr. Runge to put his request/recommendation in writing to the Council.
Discussion of Party Addresses
Donna Wunderlich stated the clerk’s office recently received requests for addresses/contact information in cases and have the following questions: (1) is the information on the parties tab in Odyssey subject to AR 41; (2) if there is no contact information on the parties tab, are clerks required to search for and release information that may be contained in a document; (3) what if the information is part of a document not subject to public access; and (4) what if any limits are placed on electronic record searches conducted by the clerk?
Ms. Wunderlich said under the parties tab, it shows detailed information such as the party’s name, driver’s license number, date of birth, social security number, work phone, home phone, cell phone, and email.
Jim Ganje said under the rule, aside from any information that is confidential, a court record is defined as any information collected or received by court personnel in relation to a case. That information is accessible to the public unless access is limited by the court or by rule or statute.
In response to a question asking how information was released before Odyssey was implemented, Ms. Holewa said it is considered a record search if the clerk has to go find records and tell them that records exist. If someone calls with a file number and is asking a particular question, there is no fee. The address by our rules and by statute is not confidential. As far as how much searching a clerk has to do, the court itself does not have a limit or rule or definition. However, under the open records rules for the executive branch, an agency cannot charge for responding to a records request unless it takes longer than an hour.
Ms. Wunderlich said with the paper files, there was the left side of the file and right side of file. The clerks would remove everything off the left and let the person look through the right side of the file. What the clerks are unclear of is if it is something that would have been found in a document that had been on the left hand side of the file in the old paper days, are they supposed to search for it and provide the addresses, phone numbers and email addresses? She said for example if there is no information on the parties tab because it was filed by attorneys, you can typically find an address of someone in an affidavit of service.
Rod Olson said if it is on the parties tab, you can run a report and give them that information. If it is not on the parties tab, you have to search. The files in Odyssey are basically the same as the paper files. There is still a left side and right side. The left side is documents that the public cannot see. So, for example, in the past an affidavit of service would have always been on the right side of the file and easy to locate, but the trouble is that now the clerk would have to search for the information by going through different tabs, which could take some time.
Chief Justice VandeWalle noted that AR 41 was written before Odyssey. Judge McCullough suggested the rule should be reviewed with the new system in place to address it more globally.
In response to a question from Judge Fontaine asking if the public has access to the parties tab, Judge Racek responded they do not. However, they can go the courthouse and open up each one of those icons and look at the information.
In response to a question asking whether the clerk’s concern is whether they are giving information out they should not be or the time it takes to get the information, Ms. Wunderlich responded it is both. They do not feel comfortable handing out phone numbers and email addresses and are also concerned it could develop into something bigger. They are requesting direction on how much information they should be releasing.
Ms. Holewa said some of the data may be a little different because times have changed and we now include a cell phone number or email address but they have always had the contact information in the file. The question is should the clerk release it and how much time should they spend looking for it?
Judge Fontaine stated she agrees with Mr. Ganje’s interpretation that if it is in the record we have to give it out. However, we now have additional information on the parties tab that was not in the record before such as the driver’s license number and part of the social security number.
Judge McCullough indicated he is also concerned about the time. Before it was clear that someone could review a specific side of the file, but now that the record is electronic, it may be unclear what information clerks can give out.
It was moved by Judge McCullough, seconded by Judge Foughty, to refer the matter to the Joint Procedure Committee for review. The motion carried.
Juvenile Policy Board
Judge Narum’s term on the Juvenile Policy Board will expire December 31, 2014. He is eligible for another three-year term and is willing to accept reappointment. It was moved Judge Foughty, seconded by Judge Mattson, to reappoint Judge Narum to the Juvenile Policy Board. The motion carried.
The next meeting is scheduled for December 12, 2014. The meeting adjourned.