Board of Judicial Policy and Administration

Board of Ju= dicial Policy and Administration

Minutes

December 1,= 2004

The Board of Judicial Pol= icy and Administration met in Cheyenne= on December 1, 2004. Chief Ju= stice William Hill, Justice Michael Golden, Judge Jeff Donnell, Judge Jim Burke, Judge Mike Huber, and Judge Bob Skar attended. Justice Marilyn Kite, Judge John P= erry, Judge John Brooks, and Judge Terry Tharp participated by telephone. Holly Hansen and Ronda Munger also attended. Throughout the cour= se of the meeting the following individuals attended at some point by phone: Tina Wood, Joyce Boyer, Dona Playton and John Burman. Judge Roberta Coates and Donna She= en attended in person for part of the meeting.

Old Business

Judicial Positions=

District Judge John Perry provided an update on the Sixth Judicial District's request for a third district judge. The prime spo= nsors of the bill creating the additional judicial position are Senator Schiffer, Representative Simpson, Representative Wasserberger, Representative Osborn, Representative Lubnau, Representative Lotta, and possibly Senator Nicholas = and Senator Hanes. In light of the impact of Coal Bed Methane in the area, Judge P= erry represented that if they receive the third judge then they will attempt to = also pick up some of the overflow of the Fourth Judicial District.

Chief Justice Hill updated the Board on the situation in the Ninth Judi= cial District Circuit Court in Fremont County, Riverton. Chief = Justice Hill reported that he would be leaving the Board meeting early to join the rest of the Judicial Nominating Commission in Riverton to interview candidates for the position left vacant by Judge Hall. The interviews will occur on Decem= ber 2nd and 3rd, and the Governor will have the three names by the afternoon of= the 3rd. The Board voted to refil= l this position based on the revised weighted workload study and the testimony provided at the September Board meeting.&n= bsp; Justice Hill reported t= he Board's intention to fill the position to Senator Schiffer, Senator Hanes, Representative Nicholas, and Representative Simpson in a letter dated Septe= mber 27, 2004. Despite the fact th= at the weighted workload supported refilling the position, in subsequent conversations, it became apparent that a few legislators felt that the Board had gone back on a promise not to fill the position. Chief = Justice Hill further explained that the position is funded through 2006.

Chief Justice Hill updated the Board on the facility issues in the Seve= nth Judicial District. The Natrona County Commissioners are back to the drawing board as far as funding. They are not sure how they will ra= ise the money for either a renovation of an existing building or construction o= f a new building. The Commissione= rs have had discussions with the Farm Loan Board. Another newspaper article appeared quoting Representative Nicholas as stating that Campbell County needs the judge and has space. In a subsequent article, Representative Nicholas acknowledged the need for the j= udge in Natrona County. It is well documented the positive impact that Judge Skavdahl has had in moving cases along the busy Seventh Judicial District docket. A f= inal article was discussed wherein Representative Nicholas stated that the Supre= me Court may have to order the Natrona County Commissioners to provide the spa= ce, but Chief Justice Hill commented t= hat it is not likely to happen. Judge Huber was present years ago when Justice Rooney had a very stern conversati= on with the Natrona County Commissioners in getting the county court built, an= d so Judge Huber believes that it may take an order from the Court to accomplish= it.

Judicial Retirement

Holly Hansen provided an = update on the funding shortfall in the Judicial Retirement plan. This issue was initially discussed= at the September Board meeting. Subsequent to that meeting, Holly arranged for a meeting with the director of the State Retirement system, the new actuary, and as many judge= s as could attend. The meeting took place October 20, 2004, in Cas= per. Holly reported the meeting went we= ll and was very productive. Currentl= y, there is a proposed bill before the Joint Judiciary Committee, which would remedy the judicial retirement shortfall by increasing the employer contribution by 3%. The Joint Appropriations Committee will sponsor a separate bill which will carry the appropriation necessary for the multiple budgets that are involved. In the coming year, there will als= o be work done on legislation which will change the language in the retirement statutes from the "actuarially adjusted" phraseology to the same language that is in the state employees' retirement statutes. Other retirement issues that were discussed were: 1) creating one Judicial retirement system that encompasses= all judges; 2) investigating the possibility of an early retirement plan that accomplishes a prorated reduction for those who do not want to work until t= hey are age 70; and 3) a plan to explore the possibility of using retired judge= s to help out the overloaded dockets, much like the system that is currently in place in Idaho. Judge Burke m= oved to have a committee set up to work on retirement issues, and Justice Golden seconded the motion. The motion carried unanimously. Justic= e Kite agreed to Chair the committee and Judge Skar agreed to be a member. Other = judges who were mentioned as possible members were Judge Castor, Judge Day and Jud= ge Spangler. Holly and the Chief Justice will formally appoint the committee.

Judge Burke raised one ad= ditional issue with regards to judicial retirement.= Title 5 of the Wyoming Statutes refers to a judicial retirement plan that does not apply to any new judges, as it only applies to the old judici= al retirement plan. The new reti= rement plan is found in Title 9. A p= roblem arises when applicants for judicial positions look up judicial retirement information in the statutes, and it is not clearly defined that Title 5 does not apply to anyone who is hired as a judge after 1998. Justic= e Golden moved and Judge Donnell second= ed the motion that a bill be drafted to amend Title 5 to reflect the fact that Tit= le 5 only potentially applies to judges hired prior to 1998. The motion carried unanimously. Holly Hansen agreed to draft the b= ill.

Legislative and Rules Committee update

Holly Hansen provided an = update on the Legislative and Rules Committee issues. There are three items to be discus= sed under this topic; 1) the mental competency statute change; 2) the internal audit revisions; and 3) changes to procedure rules regarding faxed document= s in district court. With regard t= o the mental competency statute change (W.S. 7-11-303), Holly sent a letter to Senator Hanes and Representative Simpson on September 21, 2004, and has not heard back. She will contact Representative Simpson to follow up. With regard to the internal audit proposal for the Circuit Courts, a= bill has been drafted to reflect the changes necessary to bring the audits of the courts in-house. The bill is sponsored by Simpson and Hanes. The Joint Appropriations Committee will hear the bill on December 9th, and Mike Geesey, director of the Department of Audit, will speak to the bill at that time. Finally, with regard to= faxed documents in district courts, that issue has been referred to George Santini and the Permanent Rules Committee. The committee met on the issue, but they have not communicated their recommendations to the Board at this time.

New Business

Order= Appointing Supervising Judges in Circuit Courts

Holly Han= sen presented an Order Appointing Supervising Judges to the Board and explained that it is the Board's policy to appoint supervising judges for each calend= ar year in those circuit courts without resident circuit judges and in counties with multi-judge circuit courts. Judge Tharp moved and Judge Skar seconded a motion to approve the Or= der. Motion carried unanimously.

Tapes vs. Transcripts in Circuit Courts

Judy Pacheco made a prese= ntation to the Board regarding the difficulties experienced by public defenders, th= e Attorney General's Office and district court clerks in processing appeals from circu= it courts to district courts because of problems with faulty recording equipme= nt in the circuit courts. The ru= les regarding proceedings in circuit courts are a little loose, allowing that t= apes can be used on appeal in district court.&n= bsp; There are times when it is necessary to have a transcript of the proceedings and it is not clear who is responsible to provide it. Unfortunately, the procedures for checking tapes out of the district courts are not uniform. In the end, the problem becomes ho= w to get audible tapes and a good record when a case is being appealed to the district court, when the district courts are not handling the appeals in the same fashion and very few of the rules of appellate procedure are being followed. Much discussion ens= ued about this topic. Some of the topics discussed were: 1) how important is a complete record in misdemeanor cases and what constitutes a complete record; 2) do the circuit courts all = need new recording equipment; 3) the effect of requiring all criminal cases to h= ave a court reporter record them; 4) the availability of court reporters in the state; and 5) how important is a transcript of a preliminary hearing when a litigant is being bound over to district court. Justic= e Golden moved and Judge Donnell second= ed a motion to establish a committee to look into all the issues involved in this topic. Motion carried unanimously. The Chief Justic= e will appoint a Circuit Court Record Committee made up of clerks (Clerk of the Supreme Court, one circuit clerk and one district clerk), judges (at least = one justice, one district judge and one circuit judge), a public defender and an attorney general.

District Court Issues

Judge Donnell reported to the Board that since Judge Burke has been appointed as a Supreme Court Justice, the District Judges held an email conference and voted to ha= ve Judge John Brooks replace Judge Burke on the Board. Chief = Justice Hill welcomed Judge Brooks to the Board.

District Court Clerks Tin= a Wood and Joyce Boyer appeared by phone and made a presentation to the Board regarding fees in District Courts. Joyce Boyer explained that there already exist Supreme Court orders = for Rules for Costs and Fees for both municipal courts and circuit courts, which are published in the Wyoming Court Rules. The clerks suggested that there needs to be one place for litigants = to look to find all the fees for district courts. The proposed order titled "Ru= les for Fees and Cost in District Courts" does not make substantive change= s to the rules or fees, but it does include a new fee for facsimile transmission= s and for exemplification of court records. Justice Golden moved an= d Judge Perry seconded a motion to recommend the Supreme Court adopt the Rules for Fees and Costs in District Courts. Motion carried unanimously.

Judge Perry made a presentation to the Board regarding name cha= nges for minor children. Judge Perry explained that he is having custod= ial parents appear in his court, asking for a name change for a minor child with only an advertisement procedure, and often times the non-custodial parent l= ives out of state. Judge Perry has been requiring service upon the non-custodial parent, even though there is some question as to whether on n= ot he can do that. The name chan= ge statutes do not address this situation.&nb= sp; Judge Burke suggested a legislative change would be necessary and th= at this issue should be referred to the Board's legislative committee. Judge = Perry requested that the statute contain language that there must be service on t= he non-custodial parent and that it contain language stating that there be no other judicial determination. Judge Perry moved and Judge Donnell seconded a motion to refer this issue to the legislative committee. Motion carried unanimously.

Since Chief Justice Hill needed to leave to attend Judicial Nominating Commission meetings, he turned the meeting over to Justice Golden.

Justice Golden made a presentation to the Board regarding W.S. 5-3-102, which has to do with the administrative and fiscal duties in the district courts. Justice Golden reviewed the history of the rel= ationship between the supreme court and the district courts. He then explained that in 2000, the Legislature created section (b) of W.S. 5-3-102, which stated that the "district courts shall be free of administrative and fiscal control by= the supreme court." This lan= guage was the driving force behind the creation of the Board of Judicial Policy and Administration, and Justice Golden questioned the need to have section (b) of W.S. 5-3-102, since the Board has now fulfilled this function. = Justice Golden requested input from the distri= ct judges on the Board as to whether they thought that statute should be repea= led. Judge = Donnell and Perry both gave testimony that some good things with regard to the organization of the district judges have happened since the enactment of th= at statute. Judge Donnell suggested that he email the district judges and g= et a sense of what the rest of the district judges think about this statute. Judge = Donnell agreed to report back to the Board once he surveys the other district judge= s.

Citizens Access to Courts Committee

Holly Hansen reported to = the Board the results of the survey she did in polling the district court clerk= s, district judges and other citizens regarding the continued use of the pro se divorce packets developed by the Citizens Access to Courts Committee (CACC). The consensus of the = group is the packets are too complicated and hard to understand. The district judges as a whole are= not in favor of the use of the packets. The district court clerks believe that there is a need for the packe= ts, but they believe the packets should not be used unless they are changed to = be more user-friendly. The bigge= st problem with the packets is that they are not updated. The original packets were develope= d by an attorney from Casper, who provided those services on a voluntary basis. Holly reported to the Board that i= f the packets are going to be a workable solution to the pro se problem, the pack= ets need to be revised by an attorney on contract, who will then be responsible= for updating them on a regular basis. At this time, there is $20,000 in the reserve account from selling t= he packets that could be used to contract with an attorney to revise the forms. Justice Kite suggested the Board put out an RFP to see how much an attorney would charge to manage these forms. Judge = Donnell reported that the Albany<= /st1:PlaceName> County bar has set = up a list of attorneys who are willing to sit down with litigants and fill out t= he forms, and that the unbundling of legal services has helped with this proce= ss. The Board discussed the possibilit= y of utilizing the help of the law school legal services program. The Board decided to approach John Burman and the Legal Services Clinic. Judge Donnell moved and= Judge Huber seconded a motion to negotiate a contract, subject to the approval of= the Board, to include specifics and payment in updating the forms. Motion carried unanimously.

Guardian Ad Litem Issues

Donna Sheen appeared in p= erson and Professor John Burman and Dona Playton appeared by phone to discuss a proposal that will be submitted to the Legislature during the 2005 session, allowing a 2.1 million dollar appropriation to the Supreme Court to be used= in reimbursing attorneys acting as Guardian Ad Litems in child protection cases. John Burman provided t= he background information on how the project was developed. As the bill is drafted now, the Su= preme Court would be responsible for overseeing the payment of these monies, the district judges conference would be responsible to establish the rules and = regulations to administer the program, and the counties would be required to provide 25% matching funds for the program. During a meeting in Lander, the Joint Judiciary Committee unanimously supported the legislation and made the recommendation that the budget footnote be conside= red by the Joint Appropriations Committee.&nbs= p; The Joint Appropriations Committee will be meeting during the week of December 8th in Cheyenne. Judge = Donnell recommended that the district judges conference suggest changes to the docu= ment to the Board, and then the Board would recommend to the Supreme Court the a= doption of the program. Judge Huber m= oved and Judge Burke seconded a motion to have Judge Donnell make adjustments to the budget footnote and submit them to the Joint Appropriations Committee with the Board's endorsement. Motion carried unanimously.

Board Adjourned

Schedule of Future Mee= tings

March 17, 2005        &= nbsp; Casper

June 1, 2005        &= nbsp;       Cheyenne

September 26, 2005     Casper

December 1, 2005       Douglas