Present: Chief Justice Gerald W. VandeWalle
Presiding Judges: Norman J. Backes, Lee A. Christofferson, Benny A. Graff, Robert W. Holte, Allan L. Schmalenberger, Bruce E. Bohlman for Presiding Judge Lawrence E. Jahnke, and Mikal Simonson for Presiding Judge John T. Paulson
Absent: Presiding Judge Lawrence E. Jahnke but represented by Judge Bruce E. Bohlman, and Presiding Judge John T. Paulson but represented Judge Mikal Simonson.
Staff: Keithe E. Nelson, Jana Thielges, Ted Gladden, Greg Wallace and Carl Wigglesworth.
Others: Presiding Judge Kevin Burke, who is on the program for tomorrow and scheduled to speak on the subject of drug courts.
Chief Justice Gerald W. VandeWalle welcomed everyone at 6:00 p.m. with a special recognition of Presiding Judge Kevin Burke, who is the presiding judge in Hennepin County, Minnesota. By consensus, the March 16, 2000 Minutes were approved with one change. On page three, regarding the topic "Update on Court Services Administrative Reorganization Plan", the Minutes should be changed as follows:
Ted Gladden reported that the Court Services Committee was unable to take action on the reorganization plan. It was moved and carried to table the issue. The plan was then sent to the Supreme Court for information purposes.
Ted Gladden discussed the comments received from the public as published in the agenda book. He then discussed the corrections that were made to Policy 509 as noted in the comments. Judge Allan L. Schmalenberger concurred in the comments and said that the reaction that he has received from state's attorneys was very positive. Judge Schmalenberger moved adoption of the policy. Judge Benny A. Graff seconded the motion. Motion carried.
Ted Gladden opened the discussion by pointing out that there is a great diversity on how financial conditions are assessed by the court, how these conditions are entered and how they are monitored. In an attempt to provide some sort of uniformity, Ted formed a committee of clerks and court administrators to evaluate methods of proceeding. There was a consensus among the committee but only up to the point of the issuance of a withholding order. Withholding orders are a matter of great controversy. Ted asked the Council of Presiding Judges for guidance as to how to best standardize the clerk of court procedure including ledger card entries. Chief Justice VandeWalle noted there are two issues at this time. The first issue is a standardization of procedures, and the second issue is how to collect and enforce. He pointed out that the second issue is being considered by the Supreme Court so only the procedure issue is on the table for discussion at this meeting. After further discussion, Judge Lee A. Christofferson moved that all procedures up to the wage assignment be approved but not as to wage assignments. Judge Graff seconded the motion. Motion carried. Judge Christofferson suggested that a legal memorandum would be helpful on issues and ramifications of wage assignments. Chief Justice VandeWalle asked Keithe Nelson to request Jim Ganje to draft a memorandum and to present it at the next meeting of the Council of Presiding Judges.
Ted Gladden explained that currently there is no uniformity on monitoring cases as required by the Century Code. The matters that he is discussing are contained in an attachment to the agenda book. Ted asked the Council for guidance. Chief Justice VandeWalle noted that uniformity is required without question. Judge Norman J. Backes moved that the trial court administrators (Greg Wallace and Ted Gladden) draft procedures for monitoring cases under court supervision. Judge Schmalenberger seconded the motion. Motion carried.
Greg Wallace briefed on the problems of determining who should pay expert witnesses in juvenile cases. The state's attorney and the attorney general will not pay because they say juvenile cases are civil cases and they have no authority to pay. Judge Schmalenberger pointed out that the problem is that the prosecutor often times will hire and call witnesses, and we have no control or determination over the proper fees to be paid. This leaves judges in an awkward position. Chief Justice VandeWalle suggested that the expert should be paid by the county. The same problem exists in guardianship cases and mental health hearings. Judge Christofferson suggested that the issue should be sent to the Legislative Interim Judiciary Committee for their consideration. Judge Graff said that the attorney general is, without question, responsible for these witness fees because they are witnesses.
Judge Christofferson pointed out that many of these problems are exacerbated because juvenile court officers are signing petitions. He is of the opinion that juvenile court officers should not be signing petitions and arguing cases. These matters should be referred to law enforcement or the state's attorney for action. Judge Christofferson asked that this issue be sent to the Juvenile Policy Board for a firm procedure. Judge Christofferson moved the question. Judge Mikal Simonson seconded. Motion carried.
Judge Christofferson next suggested a letter be sent to Doug Mattson who additionally raised this issue. The letter should cite law that the Judiciary cannot pay and that the attorney general is obligated. Chief Justice VandeWalle asked staff to talk to the AG's office and report back at the next meeting.
Judge Schmalenberger reported on the course he attended on management practices. It was taught that all courts, not just urban courts, need good caseflow management. Early intervention is necessary as is constant oversight of cases. Differential case management works well. A fast track for fast-track cases should be developed. An early trial date should be established for all cases. It was also taught and made clear in the course that continuances are not a judicial question, they are a management decision. Continuances cause extra work for staff and disproportionately delay cases. Cases should never be scheduled more than 90 days out.
Judge Schmalenberger suggested UCIS can give management information that is necessary for good case management but suggested that reports should be given to judges in a simplified form for ease of use.
He suggested that in North Dakota we need to analyze our system and to audit procedures that are being followed. Policies should be analyzed and determined if they aid or hinder good case management. Procedures should be created to develop a commitment to judicial management of cases. Judge Schmalenberger stated that he believes there were four things that we must do now that are essential to good case management: (1) a commitment from the top down to caseflow management; (2) the creation of a statewide caseflow management committee to implement caseflow management; (3) each district should adopt written standard operating procedures regarding caseflow management; and (4) educate all judges, staff and attorneys on caseflow management concepts. Judge Christofferson stated that we must not underestimate the need for a commitment from the Bar. Chief Justice VandeWalle said he will speak to the Bar at the annual meeting on this issue tomorrow. Chief Justice VandeWalle asked staff to develop recommendations on composition of a caseflow management committee to include lawyers. Ted Gladden suggested that this issue should be on the next agenda of the Council of Presiding Judges. Keithe Nelson was instructed to send out draft comments put together by Judge Schmalenberger on the elements of caseflow management to all judges.
Greg Wallace pointed out that everything that has previously been said also applies to juveniles. Greg next outlined draft Policy 406. This proposed draft has been distributed to and discussed with juvenile court leadership. It is next scheduled to be referred to the Juvenile Policy Board for their consideration.
Greg Wallace pointed out that there is still no way to determine where the major impact of termination cases will occur. Greg reported staff has discussed this issue and has proposed a method to compensate indigent defense counsel who perform these duties. This work is in addition to that which they contracted for on their indigent defense contracts, and they should be compensated. The proposal is that they be compensated at a set fee of $600 per case with an allowance in excess of that at $60 per hour only if approved by the presiding judge. Because we do not know where the impact of these cases will be felt the heaviest, it was proposed that the funds should be held centrally and paid where needed on a case-by-case basis. Judge Christofferson moved that a cap of $600 on termination cases be approved with an additional $600 cap on appeals. When approved by the presiding judge, if approved, the amount would be at $60 per hour. Judge Backes seconded the motion. Motion carried.
Jana Thielges discussed the need for a committee to work with her on fiscal operations for clerk of court. Judge Backes moved that a nine-member committee be identified by court staff to consist of five clerks, two district judges, Dion Ulrich and Jana to work these issues. Judge Graff seconded the motion. Motion Carried.
Jana Thielges presented the district court budget FTE requests for the next biennium. Keithe Nelson noted that some of these requests were not consistent with staffing standards, and they should be applied before decisions are made. Judge Graff moved that staff check staffing standards and develop a proposed priority for filling these positions. After preparation of the schedule, it should be sent out to the presiding judges for their consideration. Thereafter, a telephone conference call should be set to discuss priorities. The motion was seconded and carried.
The problem of temporary protection orders expiring when the permanent order is signed was discussed. The problem is that the permanent order is not effective until served and sometimes there is great delay in serving orders. In the meantime, the temporary order has expired so there is no protection. Judge Backes moved that 90 days be inserted for an effective date or in the event the defendant cannot be served. After discussion, the motion was withdrawn. Judge Christofferson moved that if a permanent order is signed, that the temporary order will remain in effect until the permanent order is served. This was agreed by consensus.
Ted Gladden outlined the proposed legislation that would create administrative traffic disposition for many motor carrier cases and remove the problem that the Council of Presiding of Judges has addressed in the past. This was attached for information only, there was no discussion.
Ted Gladden pointed out that the statistics are for the information of the presiding judges. He mentioned we are doing better than we have in the past, but there is still room for improvement.
Ted Gladden briefly mentioned that the court security seminar was a success and pointed out that the evaluations that were presented by the group are attached as a separate attachment, not part of the book.
Keithe Nelson outlined the problem of a few people being sent out of state and that this causes problems for those in other districts who are unable to go for budgetary or other reasons. The feeling of the group was there should be some sort of policy designed to create uniformity among the districts. Judge Backes moved that a policy be established and that the issue be referred to the Judicial Education Committee for development of a policy. Judge Robert W. Holte seconded the motion. Motion carried. Judge Christofferson voted in opposition to this motion.
Greg Wallace reported that recording standards were established some years ago by the Council, but that they were not being followed. He pointed out that the major problem is that the standards are in the form of guidance and that following these procedures is not mandatory on all audio recording operators. A second problem is that training is not consistent and ongoing. Judge Backes moved that the guidelines be redrafted as a policy and that they be brought to the next meeting of the Council. The motion was seconded and carried.
Keithe Nelson stated that the notes from the Judicial Leadership Conference are attached and asked if any of these items should be addressed by the Council of Presiding Judges. Chief Justice VandeWalle said that something needs to be done on ADR and that the court is working on it. By consensus, Keithe Nelson was asked to include these items in future agendas.
Neither Ted Gladden nor Greg Wallace had anything to present at this time.
Judge Christofferson asked that the next meeting be scheduled on IVN. He made a motion to do so. After discussion, which included the fact that this would be a budget meeting, the motion failed for the lack of a second.
Keithe Nelson brought to the Council's attention a letter written by Judge Christofferson requesting that administrative assistants with college degrees and completion of mandatory ICM courses be promoted to trial court administrator I. Chief Justice VandeWalle stated that the clerk of court offices coming under state control could affect a decision in this area. The question is whether we want and can afford seven trial court administrators. Judge Christofferson pointed out that there has been additional requirements mandated on administrative assistants and that their pay should be increased proportionately. By consensus it was agreed that this should be sent to the Personnel Board for outsourcing a pay and paygrade evaluation. Ted Gladden and Greg Wallace were asked to present their comments and recommendations to the Council at the next meeting.
Judge Backes said that he believes bailiff's pay should be increased. He moved that Jana budget for a five percent pay increase for bailiffs. This was seconded and carried.
The meeting was adjourned at 10:20 p.m.