JUDICIARY A COMMITTEE

The Judiciary A Committee was assigned three studies. House Concurrent Resolution No. 3017 directed a study of the method of providing legal representation for indigent criminal defendants and the feasibility and desirability of establishing a public defender system. Section7 of Senate Bill No. 2002 directed a study of the implementation of clerk of court unification, including a review of the delivery of services by clerks of court and the responsibility for restitution collection and enforcement activities. By Legislative Council directive, the study was limited to a study of the responsibility of clerks of court for restitution collection and enforcement activities. Senate Concurrent Resolution No. 4033 directed a study of the commitment procedures for individuals with mental illness. The Legislative Council delegated to the committee the responsibility to review uniform laws recommended to the Legislative Council by the Commission on Uniform State Laws under North Dakota Century Code (NDCC) Section 54-35-02. The Legislative Council also assigned to the committee the responsibility for statutory and constitutional revision.

Committee members were Representatives Merle Boucher (Chairman), Duane DeKrey, Bruce Eckre, April Fairfield, G. Jane Gunter, Joyce Kingsbury, Lawrence R. Klemin, William E. Kretschmar, John Mahoney, and John M. Warner and Senators Deb Mathern, Carolyn Nelson, John T. Traynor, and Darlene Watne.

The committee submitted this report to the Legislative Council at the biennial meeting of the Council in November 2002. The Council accepted the report for submission to the 58th Legislative Assembly.

INDIGENT DEFENSE STUDY

The testimony received during the hearings on House Concurrent Resolution No. 3017 indicated it has been over 25 years since the Legislative Assembly considered the establishment of a different method of providing indigent defense services and that the dynamics and requirements of providing these services have changed considerably since that time.

Background

The Sixth Amendment to the United States Constitution guarantees to all persons accused of a crime the right to counsel in their defense. The United States Supreme Court has interpreted the Sixth Amendment to require each state to provide counsel to any person accused of a crime before that person can be sentenced to jail or prison if that person cannot afford to hire an attorney. These decisions include Gideon v. Wainwright, 372 U.S. 335 (1963) in which the Supreme Court interpreted the Sixth and 14th Amendments as requiring states to provide counsel to all indigents accused of a crime in their jurisdictions; Argersinger v. Hamlin, 407U.S. 25 (1972) in which the Supreme Court extended Gideon to include petty offenses that carried a possible sentence of incarceration; and In re Gault, 387 U.S. 1 (1967) in which the Supreme Court extended the right to counsel to include all juveniles involved in delinquency proceedings and facing possible incarceration. The states have responded to the Court's mandate in these landmark decisions by developing a variety of systems in which indigent defense services are provided.

Some states and localities have created public defender programs, while others rely on the private bar to accept court appointments. In most states the right to counsel has been expanded by legislation, case law, and state constitutional provisions. This expansion at the state level has contributed to the diversity of systems around the country.

Cost is usually the primary factor determining the type of indigent defense system a state or county adopts. Responding to increased costs, increased caseloads, and litigation challenging the programs in place, many states have refined their indigent defense programs in recent years.

Methods for Providing Counsel to Indigent Defendants

There are three primary models for providing representation to those accused of crimes and unable to afford counsel--assigned counsel, contract, and public defender programs. The assigned counsel model involves the assignment of indigent criminal cases to private attorneys on either a systematic or an ad hoc basis. The contract model involves a private contract with an attorney, a group of attorneys, a bar association, or a private nonprofit organization to provide representation in some or all of the indigent cases in the jurisdiction. The public defender model involves a public or private nonprofit organization with full-time or part-time staff attorneys and support personnel. While there are many variations among public defender programs, the defining characteristic is the employment of staff attorneys to provide representation.

From these three models for the appointment of counsel, states have developed indigent defense delivery systems, many of which employ some combination of these types. For example, even in states with a statewide public defender system, private attorneys will be appointed to cases that present a conflict of interest and in some instances to alleviate burdensome caseloads. In other states in which there is less uniformity, there may be contract counsel in one county, assigned counsel in a second county, and a public defender office in yet a third county.

Systems Used by States to Provide Indigent Defense Services

The states have developed a wide range of systems to respond to the United States Supreme Court's mandate on the right to counsel. Some states organize their systems on a statewide basis, others by county, and still others by region or judicial district. Some states have passed on to the counties their responsibility to select a system from the various options.

More than one-half of the states have organized some form of a statewide indigent defense program. These statewide systems have varying degrees of responsibility and oversight, but they share the common element of providing some degree of uniformity to the delivery of indigent defense services statewide. Sixteen states operate indigent defense programs utilizing a state public defender with full authority for the provision of defense services statewide--Alaska, Colorado, Connecticut, Delaware, Hawaii, Maryland, Massachusetts, Minnesota, Missouri, New Hampshire, New Jersey, New Mexico, Rhode Island, Vermont, Wisconsin, and Wyoming.

Nine of the 16 states with a statewide public defender have a commission that oversees the program, although the commissions have varying degrees of involvement and responsibility.

State commissions are found both in states with statewide public defender systems and in states that organize their indigent defense systems in a way that combines aspects of state oversight with substantial local control. In these systems a state commission or board often provides overall direction and may develop standards and guidelines for the operation of local programs. The principal feature of these systems is the provision of central, uniform policy across the state to ensure accountability and quality. Twelve states have indigent defense commissions setting guidelines for the provision of indigent defense services statewide--Arkansas, Georgia, Indiana, Kansas, Kentucky, Louisiana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, and Tennessee.

In contrast to statewide systems, other states delegate the responsibility to organize and operate an indigent defense system to the individual county or group of counties comprising a judicial district. The decision regarding what type of system to use may be made by the county governing body, the local bar association, the local judges, or a combination of these groups. Under this system there is little or no programmatic oversight at the state level; there is no state board, commission, or administrator. Fourteen states follow this pattern--Alabama, Arizona, California, Idaho, Maine, Michigan, Mississippi, Montana, New York, North Carolina, South Dakota, Texas, Utah, and Washington.

Eight states, plus the District of Columbia, have indigent defense systems that do not fit neatly into the above three categories. For example, in the District of Columbia a private nonprofit public defender organization, which is overseen by a board of trustees, provides representation in a portion of the cases, while private, court-appointed attorneys provide counsel in all other cases. In Nevada there are two large county public defender programs in Reno and Las Vegas. The rest of the state is served by the Nevada State Public Defender at the option of each county. If the county opts out of the state public defender system, it must establish its own program and pay for it totally out of county funds.

North Dakota Indigent Defense

The right to counsel in North Dakota is established by North Dakota Supreme Court rules. Rule 44 of the North Dakota Rules of Criminal Procedure, Right to and Assignment of Counsel, provides, in part:

Absent a knowing and intelligent waiver, every indigent defendant is entitled to have counsel appointed at public expense to represent the defendant at every stage of the proceedings from initial appearance before a magistrate through appeal in the courts of this state in all felony cases. Absent a knowing and intelligent waiver, every indigent defendant is entitled to have counsel appointed at public expense to represent the defendant at every stage of the proceedings from initial appearance before a magistrate through appeal in the courts of this state in all nonfelony cases unless the magistrate has determined that sentence upon conviction will not include imprisonment.

In North Dakota indigent defense services are provided primarily by attorneys working under contract with judges. Court-appointed attorneys handle those cases in which the contract attorneys have a conflict of interest. North Dakota is the only state to use a pure contract system for providing indigent defense services. North Dakota's indigent defense system is administered through the judiciary and is almost 100 percent state-funded. The one exception is that each of the 53 counties is responsible for funding assigned counsel representation of indigent defendants facing mental health commitment proceedings or proceedings for the commitment of sexually dangerous individuals.

The North Dakota Legal Counsel for Indigents Commission is the statewide indigent defense oversight commission responsible for reviewing indigent defense caseload data, preparing recommended indigent defense budgets, and adopting assigned counsel eligibility qualifications. The commission is made up of eight members who are appointed by the Chief Justice of the North Dakota Supreme Court from nominations by judges, the State Bar Association, the Attorney General, and the Legislative Assembly.

Testimony and Committee Considerations

The committee received extensive testimony and information from the Supreme Court, district court judges, attorneys currently and formerly involved in the indigent defense contract process, state's attorneys, and the North Dakota Association of Counties regarding issues facing the state's indigent defense system. The committee's consideration centered on four issues--concerns about the current indigent defense system; indigent defense and prosecution costs; state-funded indigent defense; and the establishment of a public defender system.

Concerns About the Current Indigent Defense System

The committee received testimony from the Supreme Court and several district judges that the current system of appointing and contracting with attorneys by the judiciary raises conflict of interest concerns. The current system of providing indigent defense is administered at the local level by the seven presiding district judges who contract with attorneys for legal services. According to the testimony the current system requires the judge, who is supposed to be the arbiter, to be in a position to award contracts and select counsel for the defendant. The testimony indicated that the conflict of interest problem would be difficult to resolve unless an independent agency were in charge of the indigent defense program.

Members of the judiciary also expressed concern over the number of attorneys in the state who are willing to contract with the state to provide the indigent defense services. The committee received testimony that judicial districts in rural areas of the state, particularly the northwest, are experiencing a shortage of attorneys who are willing to provide indigent defense services. It was reported that the lack of attorneys willing to do indigent defense work in these counties will result in the need to hire outside counsel for some cases.

Further, members of the judiciary expressed concerns over the qualifications of some of the attorneys who are providing the indigent defense services. It was reported that overall, the contract attorneys in the state are doing good work, but there are instances in which the quality of counsel is a concern. According to the testimony, some attorneys will do contract indigent defense work for the first few years out of law school, but once an attorney establishes a law practice, the attorney no longer wants to do criminal defense work. There are no minimum qualifications established for contract attorneys, but according to the testimony, when a judge receives offers from area attorneys, the judge will assess each attorney's qualifications and may not contract with a particular attorney because of the attorney's poor qualifications or lack of qualifications. Contracts are awarded on the basis of who will best provide the services, but in many cases the pool of attorneys willing to do the contract work is small.

The committee also received testimony from a number of attorneys currently and formerly involved in the indigent defense contract process. According to the testimony, the number of indigent defense cases is on the rise and more and more of the contract attorneys' time is required for contract cases. The attorneys cited heavy caseload and inadequate compensation as issues that need to be addressed in the current system. One attorney estimated she spent approximately 50 hours per month on the 25 cases she had been assigned. According to the testimony, the hourly rate for providing those 50 hours of service was less than $35 per hour. Another attorney testified that if an attorney spends more than two hours per day on contract clients, the attorney is losing money. According to the testimony, a law office may have overhead costs in excess of $35 per hour. It was also noted the heavy caseload of a contract attorney limits the attorney's availability to take on other cases and earn supplemental income, especially in a sole practitioner's office. Another attorney reported being assigned certain cases, such as murder cases, can be especially costly to an attorney because the attorney does not have the time to work on cases for clients who are not indigent.

To address the issue of the judiciary's conflict of interest in contracting with and assigning attorneys, the committee considered a bill draft that transferred from the judicial branch to the Office of Administrative Hearings the responsibility of contracting with and assigning attorneys to provide indigent defense services. The bill draft required the Office of Administrative Hearings to establish and implement a process of contracting with licensed attorneys who are willing to provide legal services to indigent persons. The bill draft also provided that of the money deposited in the indigent defense administration fund, 50 percent would be appropriated to the Office of Administrative Hearings for the administration of the indigent defense system and 50 percent would be appropriated to the judicial branch to be used for the collection of those indigent defense costs required to be reimbursed. Testimony received from the Office of Administrative Hearings indicated the proposed legislation would take a function arguably belonging to the judicial branch of government and place it in an executive branch agency. According to the testimony, the Office of Administrative Hearings would have the same or a similar conflict of interest problem because at least some of the attorneys with whom the Office of Administrative Hearings would be contracting to provide services will also be appearing before administrative law judges as counsel representing clients in administrative agency hearings. It was argued that although the Office of Administrative Hearings has experience in contracting with temporary administrative law judges to provide hearing officers, the office has no experience in administering lawyers under this type of program. Several committee members indicated the bill draft would work to solve the conflict of interest problems that currently exist. Another committee member expressed concern that the bill draft does not resolve the problem of inadequate compensation for the contract attorneys.

Indigent Defense and Prosecution Costs

The Supreme Court provided information to the committee regarding the cost of providing indigent defense in the state and the number of indigent defense assignments. The judicial branch's 2001-03 budget for indigent defense services in the state is $4,055,670. According to the testimony, the target wage for contract attorneys is $65 per hour. It was reported that during the 1999-2001 biennium, 13,957 indigent defense assignments were made in the state.

In other testimony regarding the costs of funding indigent defense, it was reported that during the 1999-2001 biennium, approximately 3,835 indigent defense appointments were made in the South Central Judicial District. With a budget of $875,000 for that district, the average amount per case was $220.

The committee also received information on the costs attributable to prosecuting defendants. It was reported that counties do not keep specific numbers on the costs of prosecution, but approximately 60 to 80percent of a county state's attorney's budget is spent on criminal cases, and 20 to 40 percent is spent on civil actions and other duties. The committee was also provided with information on the estimated costs of prosecuting an actual murder case that occurred in the state. According to the testimony, state's attorneys do not keep track of the hours spent on each criminal case, but to arrive at an estimate in this case, files were reviewed, major tasks identified, and an estimate of how much time was spent on each task was done. For this particular case, the estimated prosecution cost was $13,379.08. According to the testimony, this figure did not include office space, equipment, or supply costs. Testimony received from the attorney who provided the indigent defense services for the murder case estimated that if this client had been a paying client and he had billed his client by the hour, the case would have cost an estimated $20,000 to $25,000. According to the attorney's testimony, the state's attorneys have technology, law enforcement resources, and other sources of information at their disposal which are not available to the contract attorneys.

The committee also received testimony from an attorney who represented an indigent client in a double murder case. According to the testimony, the prosecution had the resources to fly in witnesses and Federal Bureau of Investigation experts and had the state crime laboratory at its disposal. The attorney testified that two full-time state's attorneys tried the case with a third state's attorney rotating with the other two. According to the testimony, as an indigent defense attorney he was compensated $2,500 to represent the defendant. It was argued that defendants have a constitutional right to an adequate and competent defense and that the attorneys providing that service need to be adequately compensated. According to the testimony, the federal system pays indigent defense attorneys $90 per hour, and under the state's current system, defendants are being represented by the lowest bidder.

Another indigent defense attorney pointed out there is no comparison between the resources of state's attorneys when prosecuting indigent defendants and the resources of indigent defense attorneys when defending the indigent defendant.

State-Funded Indigent Defense

North Dakota's indigent defense system is administered through the judiciary. As part of the court unification process, although the payment of indigent defense for criminal cases became a state obligation, each of the 53 counties is responsible for funding assigned counsel representation of indigents who are facing mental health commitment proceedings or proceedings for the commitment of sexually dangerous individuals. The county is also responsible for costs associated with the appointment of guardians ad litem for indigents. The committee received information that the counties spend an estimated $200,000 to $300,000 per biennium on indigent defense services. In 2001 Cass County spent $16,000 on indigent defense and $13,500 on guardian ad litem services; Burleigh County spent $35,000 on indigent defense and $10,000 on guardian ad litem services; Grand Forks County spent $3,942 on indigent defense and $12,273 on guardian ad litem services; and Stutsman County spent $15,254 on indigent defense and $5,000 on guardian ad litem services.

The committee considered a bill draft that provided that the state rather than the counties is responsible for paying the cost of indigent defense for mental illness commitment proceedings, sexual predator commitment proceedings, and for guardian ad litem costs. Testimony in support of the bill draft indicated that not making these indigent defense costs a state responsibility may have been an oversight at the time court unification was implemented. Other testimony indicated that currently these three types of indigent defense services are being provided by the attorneys with whom the state has contracted, but the costs of services are paid by the county. There was no testimony in opposition to the bill draft.

Establishment of a Public Defender System

The committee received testimony regarding the implementation of a public defender office in the state. According to the testimony, a public defender program is a public or private nonprofit organization staffed by full-time or part-time attorneys and is designated by a given jurisdiction to provide representation to indigent defendants in criminal cases. While there are many variations among public defender programs, the defining characteristic is the employment of staff attorneys to provide representation.

The committee received testimony in support of and in opposition to the establishment of a public defender system in the state. Testimony in support of a public defender system indicated the system would be a separate, freestanding office, thus eliminating conflict of interest concerns. It was argued that the state needs a system that does not include the involvement of district judges in the process. Other testimony in support of a public defender system indicated a public defense system is operated like a law office and a business, with the more experienced attorneys assigned the more difficult cases and the less-experienced attorneys assigned the less-complicated cases. It was argued that under the current system the better attorneys are not rewarded. According to the testimony, a public defender office would require the hiring of an executive director, regional directors, and staff attorneys. Several attorneys who are currently or formerly involved in the indigent defense contract process also testified in support of the establishment of a public defender program. According to the testimony, a public defender would have a greater commitment to public defense and would not have other nonindigent cases to handle. In addition, it was argued that a public defender would be provided with a support staff. This would eliminate the duplication of expenses for rent, support services, and other overhead costs.

Testimony in opposition to a public defender program indicated the current system of awarding contracts and providing indigent defense is working well. According to the testimony, a public defender program would be considerably more expensive to the state than the current system and would create another agency of government. Other testimony in opposition to a public defender program indicated there are a number of ways the current system can be improved without replacing it with a more costly process. It was noted there are ways the application and eligibility process could be improved. Testimony in opposition also indicated that even if the state implemented a public defender program, there will still be conflict of interest instances in which there will be a need to hire outside counsel. It also was noted that the problem of a shortage of attorneys willing to do indigent defense work would not be resolved by establishing a public defender program. According to the testimony, being an indigent defense attorney is a "burn-out" job, and therefore, it may be difficult to recruit attorneys who are willing to work as full-time public defenders. As a part of its study of a public defender program, the committee also reviewed the Uniform Model Public Defender Act.

Several committee members indicated that at some point the state should consider moving to a public defender system, but that remaining court consolidation and clerk of court consolidation issues should be settled first. One committee member suggested the committee may want a continuation of the indigent defense study in the next interim.

The committee considered a resolution that directed the Legislative Council to study the state's method of providing legal representation for indigent persons and the feasibility and desirability of establishing a public defender system. Committee discussion on the resolution indicated the issues raised during this study should be further studied and monitored.

Recommendations

The committee recommends House Bill No. 1044 to transfer from the judicial branch to the Office of Administrative Hearings the responsibility of contracting with and assigning attorneys to provide indigent defense services. The bill requires the Office of Administrative Hearings to establish and implement a process of contracting with and assigning licensed attorneys who are willing to provide legal services to indigent persons. The bill also provides that of the money deposited in the indigent defense administration fund, 50 percent would be appropriated to the Office of Administrative Hearings for the administration of the indigent defense system and 50percent would be appropriated to the judicial branch to be used for the collection of those indigent defense costs required to be reimbursed.

The committee recommends House Bill No. 1045 to provide that the state rather than the counties is responsible for paying for the costs of providing indigent defense for mental illness commitment proceedings, sexual predator commitment proceedings, and for guardian ad litem costs.

The committee recommends House Concurrent Resolution No. 3004 to direct a Legislative Council study of the state's method of providing legal representation for indigent persons and the feasibility and desirability of establishing a public defender system.

CLERK OF COURT AND COLLECTION OF RESTITUTION STUDY
Background
Court Unification

In 1991 the Legislative Assembly unified the court system through elimination of county courts and the creation of district court judgeships from county court judgeships. In 1991 there were 53 district and county judges. Under unification the law provided that the total number of district court judgeships must be reduced to 42 before January 1, 2001. The Supreme Court began eliminating judgeships and by January 2, 1995, the primary implementation date for consolidation of trial courts, the number of judgeships was reduced to 47. At the end of 2000 the final judgeship was eliminated and the number of district judgeships was reduced to 42.

Office of Clerk of District Court

Historically, the clerks of court have been elected county officials whose salaries have been set by state law but were paid by the counties. The duties of the clerk are prescribed by state law, and the duties of the clerk are essentially performed for the district court. In 1989 the Legislative Assembly enacted legislation that provided counties the option of seeking state funding for the clerks of district court. The legislation, codified as NDCC Section 11-17-11, provides that "[t]he board of county commissioners of any county may initiate the option to transfer responsibility for funding of the clerk of district court to the state by the filing of written notice to the state court administrator . . . ."

In 1997 the Legislative Assembly expressed its intent to provide for the state funding of clerks of court by stating in Section 6 of 1997 Senate Bill No. 2002 that "the judicial branch budget for the 1999-2001 biennium and future bienniums include funding necessary to efficiently fund administration of the district courts."

In 1999 the Legislative Assembly enacted legislation to provide for the state funding of clerk of district court services. The legislation, codified as NDCC Chapter 27-05.2, provides for the transfer of the funding for clerk of district court services to the state effective April 1, 2001. The legislation defined clerk of district court services as "those duties and services, as provided by statute or rule of the supreme court, that directly serve the judicial system and the provision of effective and efficient judicial services to the public." The legislation provided that the options available to a county regarding state funding of clerk of district court services depended upon the number of full-time equivalent (FTE) positions the Supreme Court determined to be necessary to provide adequate clerk of district court services. Under the legislation a county in which the Supreme Court determined that at least five FTE employees are necessary would have the option of state-funded clerk of court services or to provide clerk of district court services at the county's own expense; a county in which the Supreme Court determined that one or more, but fewer than five, employees are necessary may opt for state-funded clerk of district court services, contract with the Supreme Court for clerk of district court services, or provide the services at the county's own expense; and a county in which the Supreme Court determined that less than one FTE is necessary may either contract with the Supreme Court for clerk of district court services or provide the services at its own expense. The legislation further required each board of county commissioners to notify the Supreme Court of its election to provide clerk of district court services, of its consent to the elected clerk of court and designated state to become state employees, or of its election to enter an agreement with the Supreme Court to provide funding for clerk of district court services by April 1, 2000.

Restitution Collection Activities

North Dakota Century Code Section 12.1-32-08 establishes the procedure by which a court may order that a defendant make restitution to the victim or other recipient as determined by the court. Restitution may be ordered by the court in a wide variety of cases in which the victim of a criminal offense suffers monetary loss or damage to property. The most common restitution collection is to recover financial loss associated with bad checks. The statute is silent regarding who is responsible for restitution enforcement and collection activities but does provide that an order for restitution may be filed, transcribed, and enforced by the person entitled to the restitution in the same manner as civil judgments. Historically, restitution has most often been monitored and collected by clerks of court. In some counties, however, restitution collection activities are managed exclusively by the state's attorney's office. In other counties there has been a shared responsibility between the two county offices. These different divisions of labor regarding collection of restitution have evolved over time in response to local practices, budget considerations, and personnel factors.

In 1999 the Supreme Court's Court Services Administration Committee surveyed clerks of district court to determine the clerks' level of activity in several areas. With respect to restitution, the vast majority of clerks indicated some or all court-ordered restitution was monitored, collected, and disbursed within their offices. However within these counties there was a difference with respect to handling restitution in particular kinds of cases. In some counties clerks of district court handle restitution only in misdemeanor cases, while the state's attorney's offices handle restitution in felony cases. In some counties it is the opposite. And in some counties, typically smaller counties with part-time state's attorneys, the clerks of district court handle all restitution. In the three counties with the most activity (Cass, Burleigh, and Grand Forks), restitution collection and enforcement are the exclusive responsibility of the state's attorney's offices.

A more recent assessment of the 11 state-funded clerk of court offices indicated that, as previously noted, the state's attorney's offices monitor, collect, and disburse restitution in the three counties with the proportionately highest criminal caseload (Cass, Burleigh, and Grand Forks). Of the remaining eight counties, restitution in felony and misdemeanor cases is handled by the clerks' office in seven counties (Morton, Ramsey, Richland, Stark, Stutsman, Walsh, and Williams). The clerk's office in Ward County handles restitution only in felony cases.

Testimony and Committee Considerations

The committee received testimony and reviewed information submitted by the Supreme Court regarding court unification, the state funding of clerk of district court services, and the responsibility for restitution collection and enforcement activities. Although the committee received information and updates on court unification and the state funding of clerk of district court services, the primary focus of the committee was on the issue of whether restitution collection is the responsibility of the clerk of district court or the state's attorney. The committee's considerations centered on three issues--court unification and state funding of clerk of district court services, responsibility for restitution collection, and restitution collection efforts.

Court Unification and State Funding of Clerk of District Court Services

The committee received testimony from the Supreme Court regarding the implementation of the 1999 legislation that provided for state funding of clerk of district court services. Of the 53 counties, Oliver, Billings, and Sioux opted to fund their own clerk of court services; 11 counties opted to have the state provide clerk of court services; 38 counties opted to contract with the state; and one county, Sheridan, did not make an election by the April 1, 2000, deadline and, therefore, is providing clerk of court services at its own expense. The Supreme Court reported the new system is working reasonably well due in large part to the personnel in the counties and in the State Court Administrator's Office and to the strong work ethic of the people of the state. The Supreme Court also reported there were not any county employees who lost all their benefits in the transition from county to state employment.

According to the testimony the recommendations as to how to handle the conversion of benefits from county employees to state employees were made by a clerks of district court committee. The Supreme Court reported it made the decision to assume all sick leave that employees had on the county books as of April 1, 2001, and all annual leave, up to 240 hours, on employee records with the counties was assumed by the state and credited to the account of each employee. All new state employees were given credit for time worked in county clerk of court offices for purposes of annual and sick leave accrual. Because clerks of district court were elected officials and unable to accrue annual leave or sick leave, the Supreme Court gave a one-time credit in order to give these employees a fair start. Clerks of district court with up to nine years of service were given 80 hours of sick leave and 80 hours of annual leave and clerks with more than nine years of service were given 160 hours of sick leave and 160 hours of annual leave. Regarding salary, all clerks of district court and deputies were brought into the state payroll at the salary they had when they left county employment. The salaries of employees who were paid more than their new state position authorized were frozen until their positions catch up with their current pay. According to the testimony the majority of clerk of court employees received an increase in pay when they became state employees, particularly when taking into consideration the increases in benefits. One county auditor reported that the county gave clerk of district court office employees the option to "cash-out" benefits. The committee received extensive information regarding the salaries of the county employees who became state employees.

Regarding the number of district judgeships in the state, the Supreme Court reported a weighted caseload study indicated that 42 judgeships are adequate, but problems arise in the statewide distribution of those positions. According to the testimony the issue of the number of judges in the state is similar to problems faced by the schools. All children need an education, but there are not enough children in some parts of the state to justify operating a school. The same applies to the courts. Some areas of the state are not populated enough for a judgeship position, but judicial services are still needed. According to the testimony if there were growth in the state's economy and population, there would be a need for more judges.

The committee makes no recommendation regarding the number of judgeships or the state-funded clerk of district court offices.

Responsibility for Restitution Collection

The committee received testimony from the Supreme Court that there is considerable disparity among the counties regarding who is responsible for collecting restitution. According to the testimony, the Supreme Court does not have a strong recommendation regarding the responsibility for restitution collection, but if the Legislative Assembly decides the duty is to be performed by the clerks of district court, additional FTEs will be needed in the state-run offices, and additional compensation to counties would be needed in the contract counties. According to the testimony the question of whether restitution collection should be done by the clerk of district court or the state's attorney is a political issue. In Burleigh, Cass, and Grand Forks Counties the collection of restitution has traditionally been the responsibility of the state's attorney. In Ward County the state's attorney is responsible for restitution collection for felony cases, and the clerk of district court is responsible for collection of restitution in all other cases. In all other counties, restitution is being collected by the clerk of district court offices. The North Dakota Century Code is silent regarding who is responsible for the collection of restitution.

According to testimony from the North Dakota Association of Counties, if the Legislative Assembly decides that restitution is a county responsibility, the cost to each county, depending on size and caseload, would range from $10,000 to $45,000 per year. Regarding the current costs of providing restitution services in the four counties in which the state's attorney's office provides this service, it was reported that Cass County employs two FTEs at a cost of $57,369; Grand Forks County has two FTEs at a cost of approximately $60,000; Ward County has a .9 FTE at a cost of $30,911; and Burleigh County has a .75 FTE at a cost of $20,673. According to the testimony state's attorneys would like to continue to provide the restitution collection service, but if the state pays for the clerk of district court to provide the services in some counties, the counties will want money for the counties to provide the service.

The committee also received extensive testimony regarding the responsibility for restitution collection from clerks of district court and state's attorneys. According to a clerk from a county in which restitution is collected by the clerk of district court, the state's attorney in that county has limited office space. According to the testimony if restitution collection became the duty of the state's attorney, there would not be any physical space for another person to work in that office. It was argued that two offices would be too cumbersome and too confusing to the person paying restitution. Further, it was argued that employees in the clerk's office are well-trained in restitution collection, and it would be more costly for the counties if state's attorneys were required to collect restitution.

According to testimony from a state's attorney, county state's attorneys' offices are not set up for the collection of money, and those counties are not staffed nor physically able to have a system to collect money without major changes that would necessitate expenditures. It was argued that if the task of collecting restitution became the responsibility of state's attorneys, it is likely that smaller jurisdictions with limited resources and staff would not make the effort to collect restitution. Because it is discretionary for a state's attorney to ask for restitution, it could become a more standard practice to tell a victim to seek a civil judgment if a prosecutor knows he or she does not have the resources available to handle a restitution case. Finally, it was argued that adding the duty of restitution collection to state's attorneys would be unfair to the counties and their budgets.

Several committee members expressed a concern that the North Dakota Century Code is silent on the issue regarding who has the responsibility for the collection of restitution and that a bill draft to codify the status quo may be helpful. The committee considered a bill draft that would have authorized county commissioners to designate either the state's attorney or the county-employed clerk of district court as the office responsible for the collection of restitution. Testimony in opposition to the bill draft indicated the bill draft would not cover those counties in which the clerks of district court are state employees and in which the clerks are responsible for the collection of restitution. In addition the testimony indicated the bill draft could result in the shifting of the cost of restitution collection from the state to the county. It was argued that the language in the bill draft may give the impression that restitution collection is a county responsibility. It was suggested that a better solution would be to codify the intent statement contained in Section 6 of 2001 Senate Bill No. 2002. Section 6 provided that "[i]t is the intent of the legislative assembly that the county and state offices performing restitution collection and enforcement activities as of April 1, 2001, continue to perform those activities until June 30, 2003."

The committee considered a bill draft that provided that those county and state offices performing restitution collection and enforcement activities as of April 1, 2001, are to continue to perform those activities. Testimony in support of the bill draft indicated the bill draft would ensure that the structure regarding the collection of restitution which is currently in place would be retained.

Restitution Collection Efforts

During the course of its study regarding who has the responsibility for the collection of restitution, concerns were raised about the success of the restitution collection efforts being made by the state's attorneys and clerks of district court and whether the amount owed is being collected, especially in the case of insufficient funds checks. Testimony received from collection agencies indicated a professional collection service could be used to assist state government in collecting accounts that remain delinquent. According to the testimony collection agencies have a vast knowledge of collection techniques, technology, and compliance issues. It was reported that several state agencies use collection agencies for the collection of delinquent accounts. A member of the committee expressed an interest in legislation that would allow the state's attorneys or clerks of district court to keep a percentage of the amount collected to be used for the operating costs of the respective office. Other members expressed concerns that the retention of a percentage of the amount collected would take money away from victims.

The committee considered a bill draft that would have authorized the state's attorney or the clerk of district court to retain 25 percent of the amount of restitution collected from insufficient funds checks. According to testimony in explanation of the bill draft, the percentage retained by the state's attorney or clerk of district court would reduce the amount paid to the person to whom the check was written.

Testimony in support of the bill draft indicated the bill draft would give an incentive to state's attorneys or clerks to collect from what would otherwise be an uncollectible judgment. It was also argued the bill draft also would provide a source of funding for the expenses of collection. A committee member expressed concern that a government employee should not need an incentive to do that person's job.

Testimony in opposition to the bill draft indicated that clerks who collect restitution have been successful in collecting restitution for bad checks. In other testimony in opposition to the bill draft, it was noted the bill draft would reduce the amount collected by the state in the cases of bad checks that are written for child support obligations. It was suggested that a two-tiered system could be established which would exclude government agencies from having a percentage of the amount collected retained, but noted the committee may want to consider if it wants the government to be treated differently. According to the testimony the custodial parent could be asked to give the money back in the case of a bad check; however, this would be a difficult process, and it would take money away from the child. In other testimony in opposition to the bill draft, it was suggested a preferred option may be the imposition of an additional fee rather than the retention of a percentage of the amount collected.

The committee considered a bill draft that required the court, when ordering restitution in insufficient funds check cases, to impose as costs the greater of the sum of $10 or 25 percent of the amount of restitution ordered and to provide that those costs are to be used by the state's attorney or clerk of district court to offset operating expenses.

According to the one committee member, the intent of the bill draft is to provide money to the court to cover the costs of collection.

Testimony in opposition to the bill draft expressed concern about the additional costs being imposed by this bill draft. The costs imposed would be in addition to the fine imposed by the court. If the court is required to impose 25 percent in costs, the court may not assess as large a fine as it would without the additional costs. Thus, less fine money would be deposited in the common schools fund.

Recommendations

The committee recommends Senate Bill No. 2043 to provide that county and state offices performing restitution collection and enforcement activities as of April 1, 2001, are to continue to perform those activities.

The committee recommends Senate Bill No. 2044 to require the court, when ordering restitution in insufficient funds check cases, to impose as costs the greater of the sum of $10 or 25 percent of the amount of restitution ordered and to provide that those costs are to be used by the state's attorney or clerk of district court to offset operating expenses.

The committee urges the Legislative Assembly to provide the funds necessary for the additional positions needed in the clerk of court offices for restitution collection if Burleigh, Cass, Grand Forks, or Ward Counties should decide to turn over the county's restitution collection responsibilities from the county state's attorneys to the clerks of district court office.

MENTAL ILLNESS COMMITMENT PROCEDURES STUDY
Background

The majority of North Dakota's initial laws concerning the voluntary, involuntary, and emergency commitment of individuals with mental illness were enacted in 1957 and were not substantially changed until 1977. In 1977 the Legislative Assembly enacted Senate Bill No. 2164, which created NDCC Chapter 25-03.1. The bill established many of the commitment procedures for individuals with mental illness and chemical dependency which are currently in effect. The bill was precipitated by a number of state and federal court decisions that had invalidated state commitment laws similar to North Dakota's.

A number of the commitment procedures contained in NDCC Chapter 25-03.1 have been amended in the years since the chapter was enacted in 1977. For example, in 1989 Senate Bill No. 2389 replaced the terms "alcoholic individual" and "drug addict" with "chemically dependent person"; the bill set forth more specific procedures for the application for involuntary treatment; and the bill permitted the parties to waive the preliminary hearing. In 1989 the timeframe between detention and the preliminary hearing was changed from 72 hours plus weekends and holidays to seven days. The change was made because of the time constraints for the judicial system and for sheriffs when transporting patients. In 1993 Senate Bill No. 2370 authorized the state's attorney to seek reimbursement of funds expended by the county for a respondent who was determined to be indigent but is later found to have funds or property; clarified that a respondent has a right to a preliminary hearing; and set forth a procedure for a respondent to seek the discharge of a petition.

Testimony and Committee Considerations

The committee received extensive testimony and information from individuals involved in the mental illness commitment process, including representatives of the Department of Human Services, the State Hospital, the Protection and Advocacy Project, the North Dakota Psychiatric Society, the judiciary, and the State's Attorneys Association. The committee's considerations centered on three issues--commitment procedures, time period between commitment and hearings, and the Interstate Mental Health Compact.

Commitment Procedures

The committee received testimony from the State Hospital regarding concerns about the state's mental illness commitment procedures. According to the testimony admissions to the State Hospital have decreased over the past several years because of more community-based treatment services. The majority of patients admitted are emergency admissions. The committee also received testimony on how the changes in clinical practice and the delivery of services have changed mental illness commitment procedures. According to the testimony the state's system of providing mental illness treatment to the citizens of the state, which includes the regional human service centers, the State Hospital, and private providers, is working well. It was noted that while the process works well, there is a need for streamlining in some areas, such as court-ordered medication and paperwork.

The committee also received testimony that more interaction between mental health providers and law enforcement is needed. It was noted there is a need for more training of law enforcement of the needs of the mentally ill.

The committee also received testimony from representatives of the North Dakota Psychiatric Society. According to the testimony involuntary commitment involves the medical and the legal systems. The testimony indicated that although there is considerable variation between the two jurisdictions in the specifics, there is little disagreement about the principles.  It was noted that the concern of psychiatrists is the appropriate medical evaluation and care of the patient, and it is at those times that the mental illness commitment procedures become significant. According to the testimony some of the problems with the current commitment process include:

• Medical and psychiatric resources are limited, and many of the current procedures involve these resources in legal procedures;
• Difficulties occur across state lines regarding the treatment of nonresidents and the lack of interstate compact provisions for transfer and coordination of care;
• Conflicts exist between legal requirements and court schedules, which put additional and sometimes impossible demands on medical providers;
• The current multistep system involves extended time delays before court-ordered treatment; and
• The current process involves multiple forms that are redundant and vague.

It was suggested that some of the ways to resolve these problems include:

• Involve medical personnel as expert examiners only.  All other procedural requirements are legal rather than medical;
• Transfer responsibility for procedural matters to the legal system;
• Streamline the process by permitting hearings to be held in the hospital, allowing medical examiners to appear in court proceedings by telephone, and by combining the preliminary and treatment hearings;
• Improve interstate compacts;
• Revise state law to eliminate irreconcilable conflicts in timelines; and
• Revise documentation to simplify and more closely reflect the central question of whether the individual requires involuntary treatment.

The committee received testimony regarding the court's role in the mental illness commitment process. According to the testimony the delivery of mental health services has changed over the years in that much more treatment is being done within the community than in the past. The testimony indicated the total number of cases has not decreased, but the courts' involvement in the cases has decreased. It was noted that many of the needs of persons previously referred to the courts are now being addressed in the community without court involvement. According to the testimony more treatment is being done at local hospitals than at the State Hospital. According to the testimony the commitment law is not based on the idea that everyone with mental illness needs to be a part of a court proceeding, but rather that it applies to those who pose a danger to themselves or others. It was noted that the number of cases in which a person is actually detained for seven days is low, and in the majority of cases, a treatment plan is in place within the first two to three days.

As a result of the information and testimony received by the committee, it was the consensus of the committee that the laws and procedures in place regarding mental illness commitment are generally working well and do not need major change, but rather more education is needed in implementing the statutes that are in place.

With the exception of the change to the time period between commitment and hearings discussed in the next section, the committee makes no recommendation regarding the state's mental illness commitment procedures.

Time Period Between Commitment and Hearings

In 2001 the Legislative Assembly considered Senate Bill No. 2219. The bill would have changed from seven to four the number of days within which a preliminary hearing is to be held once a person has been detained. Testimony received on the bill indicated reducing the number of days within which a hearing must be held is important because the person is being deprived of liberty without a hearing and that the hearing should be held as soon as possible. The bill failed to pass the Senate. The legislative history for Senate Bill No. 2219 indicates there were concerns about the timelines the change would create. The legislative history also indicates the medical profession did not have a major concern with the four-day period, but the courts and the sheriffs did have scheduling and transportation concerns. It was decided the issue required more study.

According to state law the preliminary hearing must be held within seven days of the date a respondent is taken into custody. An evaluation is done within 24hours after the person is taken into custody. If the court finds probable cause to believe the respondent is in need of treatment, the court may order the respondent detailed for up to 14 days for treatment in a treatment facility. The venue for the preliminary hearing is in the county of residence. The law provides that the respondent is entitled to legal counsel.

The committee received testimony from the State Hospital regarding the allowable time periods of detention in other states. North Dakota and 13 other states were compared. Thirteen of the states have time periods that are less than North Dakota's. Eight of the 14 states have a 72-hour timeframe for a court proceeding. Those states with a 72-hour timeframe exclude weekends and holidays from the calculation.

The committee also received testimony from a person who had the experience of being involuntarily held for the seven-day period without a hearing. According to the testimony people should not be held against their will by mental health professionals who use their discretion in deciding whether a petition should be filed. It was argued there is no reason why a preliminary hearing cannot be held within three days. According to the testimony the state needs to do a better job of safeguarding individual rights. It was argued that the maximum period of time for holding a person before a preliminary hearing should be changed from seven days to three days.

Other testimony indicated Minnesota uses a three-day time period within which the preliminary hearing must be held. It was argued that the distances to transport patients are not any greater in North Dakota than they are in Minnesota. It was also argued that with the use of telephone conferences, telemedicine, fax machines, and e-mail, the preliminary hearing can be held within three days.

The committee considered a bill draft that changed from seven to four the number of days within which a preliminary hearing or a treatment hearing is to be held. Testimony in explanation of the bill draft indicated the number of days would include weekends and holidays. Several committee members expressed concerns that when the process involves an imposition on a person's civil rights, the process should be done as expeditiously as possible.

Testimony from a member of the judiciary indicated the four-day timeframe would not be a scheduling problem for the courts, but it may be difficult for health care professionals to conduct the necessary evaluation and diagnosis within that timeframe. Other testimony indicated the Department of Human Services was not opposed to the change from seven to four days but requested exclusion of weekends and holidays from the four-day period. According to the testimony courts are not open on weekends and holidays to conduct the hearing. In addition it was noted that county sheriffs are required to provide transportation for those hearings, and there is a concern about the availability of transportation on weekends and holidays. The testimony indicated there are practical problems with reducing the seven-day period to a four-day period, but when a patient's liberty is at stake, it is important to err on the side of the patient.

Testimony in opposition to the bill draft indicated that four days would not be an adequate amount of time to receive a report of examination and set a hearing. It was argued that if the time period is changed to four days, judges likely will grant continuances.

Testimony in support of the bill draft indicated that because of the intrusive nature of the involuntary mental illness commitment process, the timeframe for the preliminary hearing should be changed from seven to four days. Other testimony in support of the bill draft indicated the scheduling of a hearing should not be determined based upon the convenience of medical personnel, court personnel, attorneys, and sheriffs. It was argued that if the bill draft were changed to exclude weekends and holidays, there would basically be no change from the current seven-day period. Other testimony in support of the bill draft indicated a seven-day period can be extremely damaging to patients. It was argued that the longer time period can also cause collateral damage to the person by affecting the person's job and career.

Interstate Mental Health Compact

Testimony received from the State Hospital indicated there are no legal procedures in place to transfer a nonresident who is committed in North Dakota back to the nonresident's home state for treatment. It was noted that because of jurisdictional issues, a court cannot order a person to be treated at an out-of-state treatment facility. For example, a sheriff from Clay County in Minnesota may cross the state line to take a person in need of emergency treatment to a Fargo hospital but is often reluctant to return and transport the patient to the Minnesota State Hospital in Fergus Falls from the Fargo hospital. Upon the completion of the short-term emergency treatment of the patient, the Fargo hospital may determine that the patient needs longer treatment in a state hospital. The Minnesota resident is then transferred to the State Hospital in Jamestown by the Cass County sheriff because the sheriff is unable to cross state lines for a transfer to Fergus Falls. According to the State Hospital, North Dakota needs an arrangement similar to the Minnesota and Wisconsin interstate agreement to resolve the dilemma. The testimony indicated the Minnesota and Wisconsin agreement allows a patient to remain in the treatment facility in which the patient is being treated until the home state has a bed opening. According to the testimony each state is responsible to provide payment for that state's respective citizens. It was noted that of the out-of-state patients who are treated at the State Hospital, about 75 percent are Minnesota residents.

The State Hospital notified the committee that Minnesota recently passed legislation that makes it possible for border communities to have treatment options that would be equivalent to what is available for nonborder communities. According to the testimony for this legislation to work, North Dakota needs to pass complementary legislation. The testimony indicated the Department of Human Services is planning to draft the necessary legislation and introduce the bill as an agency bill during the 2003 legislative session. According to the testimony the problems raised to the committee would be corrected by this legislation. The committee reviewed the Minnesota legislation and agreed that it is important that North Dakota pass legislation to resolve interstate transfer of patients issues.

Recommendation

The committee recommends Senate Bill No. 2045 to change from seven to four the number of days within which a mental health preliminary hearing or a treatment hearing is to be held.

UNIFORM LAWS REVIEW

The North Dakota Commission on Uniform State Laws consists of 10 members. The primary function of the commission is to represent North Dakota in the National Conference of Commissioners on Uniform State Laws. The national conference consists of representatives of all states and its purpose is to promote uniformity in state law on all subjects on which uniformity is desirable and practicable and to serve state government by improving state laws for better interstate relationships. Under NDCC Sections 54-35-02 and 54-55-04, the state commission may submit its recommendations for enactment of uniform laws or proposed amendments to existing uniform laws to the Legislative Council for its review and recommendation during the interim between legislative sessions.

The state commission recommended 10 uniform Acts to the Legislative Council for its review and recommendation. These Acts range from revisions to uniform Acts adopted in North Dakota to comprehensive legislation on subjects not covered by existing state law. The 10 Acts were the Revised Uniform Arbitration Act; the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act; the Uniform Foreign Money-Judgments Recognition Act; the Revised Uniform Limited Partnership Act; the Uniform Commercial Code Article 1 - General Provisions; the Uniform Commercial Code, Article 2 - Sales; the Uniform Commercial Code, Article 2A - Leases; the Uniform Commercial Code Articles 3 and 4 - Negotiable Instruments and Bank Deposits and Collections; amendments to Uniform Commercial Code Sections 9-102(a)(5), 9-102(a)(46), 9-304(b), and 9-309; and the Uniform Disclaimer of Property Interests Act.

Revised Uniform Arbitration Act

The Revised Uniform Arbitration Act was recommended by the national conference in 2000. The revised Act replaces the Uniform Arbitration Act, which North Dakota adopted in 1987. The revised Act has been adopted in four states and has been introduced in 14 jurisdictions, including Minnesota. The primary purpose of the Act is to advance arbitration as a desirable alternative to litigation. According to the testimony a revision is necessary at this time in light of the ever-increasing use of arbitration and the developments of the law in this area. The committee makes no recommendation regarding the Revised Uniform Arbitration Act.

Uniform Interstate Enforcement of Domestic Violence Protection Orders Act

The Uniform Interstate Enforcement of Domestic Violence Protection Orders Act was recommended by the national conference in 2000 and has been adopted in six states, including Montana, and has been introduced in eight jurisdictions, including Minnesota and South Dakota. The Act was introduced in the North Dakota House of Representatives in 2001; however, the bill failed to pass the Senate.

Testimony in explanation of the Act indicated the Act establishes uniform procedures that will enable courts to recognize and enforce valid domestic protection orders issued in other jurisdictions. According to the testimony uniformity will enable courts around the country to treat such cases consistently, thereby better serving the needs of victims of domestic violence.

According to testimony in opposition to the Act, a number of the issues of concern with the bill introduced in 2001 have been resolved; however, three major concerns still remain. The first concern was that the Act does not reflect the broader definition of protection orders contained in the federal Violence Against Women Act and that a broader definition would encompass both disorderly conduct orders and peace bonds, both of which are also used as protective orders in North Dakota. The second concern deals with custody provisions in protection orders. According to the testimony adequate custody provisions are key to the protection of battered women. It was suggested that the concern could be remedied by adding language referring to the Parental Kidnapping Protection Act or by adding language to the existing statute relating to custody. The third concern dealt with immunity contained in Section 6 of the Act. It was maintained that the existing North Dakota statute is more appropriate because immunity is only extended to acts done in good faith for enforcement and does not cover the failure to act. The testimony indicated the preference would be to keep the existing statute and to adopt the provisions of the uniform Act which would strengthen this state's statute rather than weaken it.

The committee makes no recommendation regarding the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act; however, the committee endorsed the efforts of the North Dakota Council on Abused Women's Services regarding the interstate enforcement of domestic violence protection orders.

Uniform Foreign Money-Judgments Recognition Act

The Uniform Foreign Money-Judgments Recognition Act, which was completed by the national conference in 1962, has been adopted in 32 jurisdictions, including Maine, New York, Michigan, Minnesota, Montana, Idaho, and Washington. The Act was introduced in the North Dakota House of Representatives in 2001; however, the bill failed to pass the Senate. North Dakota adopted the Enforcement of Foreign Judgments Act in 1969 and the Foreign Money Claims Act in 1991.

Testimony in explanation of the Act indicated the purpose of the Act is to simplify international business by recognizing money judgments obtained in other countries. According to the testimony the primary objection to the bill in the 2001 legislative session was whether the law was needed in North Dakota. The committee makes no recommendation regarding the Uniform Foreign Money-Judgments Recognition Act.

Revised Uniform Limited Partnership Act

The revision of the Uniform Limited Partnership Act (1976), with 1985 amendments, was adopted by the national conference in 2001. North Dakota adopted the Uniform Limited Partnership Act in 1985 and the 1985 amendments in 1987. According to testimony in explanation of the Act, the 2001 revision is intended to provide a more flexible and stable basis for the organization of limited partnerships and to help states stimulate new limited partnership business ventures. The 2001 revision recognizes modern-day uses of limited partnerships, including family limited partnerships for estate planning purposes.

The Secretary of State requested the Revised Uniform Limited Partnership Act not be introduced for consideration by the 2003 Legislative Assembly. According to the Secretary of State the 1999 and 2001 Legislative Assemblies passed bills that revised North Dakota's limited partnership laws and allowed for the creation of limited liability partnerships and limited liability limited partnerships. North Dakota law consists of separate chapters for these three entities. The new uniform Act consolidates all three entities into one chapter. The Secretary of State's testimony indicated that delaying the introduction of the new revision until 2005 or 2007 would allow the interested parties time to review the Act and to monitor whether it has been adopted by other states. The testimony further indicated the introduction and adoption of the Revised Uniform Limited Partnership Act, in its present form, would affect the efforts during the past five legislative sessions which clarified and made consistent the relationships that now exist among the various business entities.

The committee makes no recommendation regarding the revised Uniform Limited Partnership Act.

Uniform Commercial Code Article 1 - General Provisions

The Uniform Commercial Code (UCC), Article 1 - General Provisions, was adopted by the national conference in 2001. North Dakota adopted UCC Article 1 in 1965. Revised Article 1 has been adopted in one jurisdiction and has been introduced in four states. According to testimony in explanation of the uniform law, this revision of Article 1 updates the general provisions section of the UCC in order to harmonize it with ongoing UCC projects and recent revisions. The committee makes no recommendation regarding the Uniform Commercial Code Article 1 - General Provisions.

Uniform Commercial Code Article 2 - Sales

The revision of the Uniform Commercial Code, Article2 - Sales, was recommended by the national conference in 2002. North Dakota adopted UCCArticle2 in 1965. The committee makes no recommendation regarding the Uniform Commercial Code, Article 2- Sales.

Uniform Commercial Code Article 2A - Leases

The revision of the Uniform Commercial Code, Article2A - Leases, was recommended by the national conference in 2002. Article 2A was originally recommended by the national conference in 1987, and amendments were recommended in 1990. North Dakota adopted UCC Article 2A, with 1990 amendments, in 1991. Only one state, South Dakota, adopted the original 1987 Act. Forty-seven jurisdictions, including Minnesota and Montana, adopted the 1987 Act with 1990 amendments. The revised Act provides a legal framework for any transaction that creates a lease, regardless of form. The committee makes no recommendation regarding the Uniform Commercial Code, Article 2A - Leases.

Uniform Commercial Code Articles 3 and 4 - Negotiable Instruments and Bank Deposits and Collections

The revisions of the Uniform Commercial Code, Articles 3 and 4 - Negotiable Instruments and Bank Deposits and Collections, were recommended by the national conference in 2002. The articles are considered companion articles. Article 3 concerns all negotiable instruments, including checks and certificates of deposit. Article 4 concerns bank deposits and collection, which involve checks, certificates of deposit, and other types of business instruments. North Dakota adopted UCC Articles 3 and 4 in 1965 and Revised Articles 3 and 4 in 1991. Revised Articles 3 and 4 have been adopted in 50 jurisdictions. According to testimony in explanation of the Act, Revised Article 3 updates provisions of the UCC dealing with payment by checks and other paper instruments to provide essential rules of the new technologies and practices in payment systems. Revised Article 4 takes care of the immediate problems that have developed over the time that Article 4 has been in effect and updates the law pertaining to certain banking practices. According to the testimony the amendments to Article 4 give banks the opportunity to utilize the best technology in processing checks. The committee makes no recommendation regarding the Uniform Commercial Code, Articles 3 and 4 - Negotiable Instruments and Bank Deposits and Collections.

Amendments to Uniform Commercial Code Sections 9-102(a)(5), 9-102(a)(46), 9-304(b), and 9-309

The amendments to UCC Article 9, which are considered to be technical amendments, were approved by the executive committee of the national conference in November 2001. The committee makes no recommendation regarding the amendments to UCC Article 9.

Amendments to the Uniform Disclaimer of Property Interests Act

The amendments to the Uniform Disclaimer of Property Interests Act were recommended by the national conference in 2002. North Dakota adopted the Uniform Disclaimer of Property Interests Act in 1993 and the 1999 version of the Act in 2001. The committee makes no recommendation regarding amendments to the Uniform Disclaimer of Property Interests Act.

CONSTITUTIONAL AND STATUTORY REVISION
Civil Commitment of Sexual Predators

The committee received testimony regarding a United States Supreme Court decision, Kansas v. Crane, 534 U.S. 407 (2002), and its impact on this state's civil commitment of sexual predators law and information regarding the state's civil commitment law. North Dakota Century Code Chapter 25-03.3 established a judicial procedure for the commitment of sexually dangerous predators. When the law was originally enacted in 1997, it was anticipated there might be as many as seven commitments during the first biennium. The committee received testimony that in the five years since enactment, eight individuals have been committed under the law. According to the testimony North Dakota's civil commitment law has been challenged twice since its enactment. In 1999, in In the Interest of M.D., 598 N.W.2d 799 (N.D. 1999), the law was challenged on double jeopardy grounds. In that challenge, the North Dakota Supreme Court relied on a United States Supreme Court decision in which a similar Kansas statute was found constitutional on those grounds. In 2002, in In the Interest of M.B.K., 639 N.W.2d 473 (N.D. 2002), the state's civil commitment statutes were before the North Dakota Supreme Court again. In that case the issue was whether the standard for commitment, identified in the state as "likely to engage in further acts of sexually predatory conduct," should be interpreted by the court as requiring proof the respondent was "much more likely than not" to engage in sexually predatory conduct if not confined. The court reviewed other state courts' interpretation of similar language in sexual predator commitment statutes and, finding those cases persuasive, identified the standard to be applied as requiring proof that the respondent has a "propensity towards sexual violence of such a degree as to pose a threat to others."

In Kansas v. Crane the United States Supreme Court revisited an earlier decision in reviewing a determination by the Kansas Supreme Court that due process required a finding by a court that a respondent in a civil commitment proceeding "cannot control his dangerous behavior." The Court rejected both of the Kansas Supreme Court's requirements for a finding of a total or complete lack of control and Kansas' position that the Constitution permits civil commitment without any lack of control determination. Rather the Court found there must be a "'mental abnormality' or 'personality disorder' that makes it difficult, if not impossible, for the dangerous person to control his dangerous behavior," and there must be some showing of lack of control before commitment.

According to the testimony the North Dakota Supreme Court has not yet addressed Crane. When it does it will likely apply the Crane requirement of a showing of "lack of control" to the definition of "sexually dangerous individual" which means "an individual who is shown to have engaged in sexually predatory conduct and who has a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction that makes that individual likely to engage in further acts of sexually predatory conduct which constitute a danger to the physical or mental health or safety of others." The testimony indicated that in light of Crane, no changes are needed to be made to the North Dakota law. It was suggested that any changes to the law should wait until the North Dakota Supreme Court addresses Crane.

Technical Corrections - Recommendation

The committee continued the practice of reviewing the Century Code to determine if there are inaccurate or obsolete name and statutory references or superfluous language.

The committee recommends Senate Bill No. 2046 to make technical corrections throughout the Century Code. The following table lists the sections affected and describes the reasons for the change:

4-30-48	Section 4-30-19, which is cross-referenced in Section 4-30-48, was repealed by 2001 S.L., ch. 72, § 23.
10-06.1-17(3)(b)	The change corrects an error contained in 1997 S.L., ch.103, § 1.
10-19.1-146(2)	The change corrects a reference that was not changed when the subdivisions of subsection 1 were redesignated by 1999 S.L., ch. 95, §42.
11-28.2-01	The change is intended to be consistent with references to voter approval requirements under 1997 S.L., ch. 108.
12.1-12-02	The change corrects a reference that was the result of the renumbering of Article V of the Constitution of North Dakota as approved by the voters June 11, 1996 (1997 S.L., ch.568).
14-09-08.4(5)	The change corrects a reference that was not changed when the subsections of Section 50-06-05.1 were redesignated under 1991 S.L., ch. 328.
14-09-08.13	Section 50-06-01.8, which is cross-referenced in Section 14-09-08.13, was repealed by 2001 S.L., ch. 418.
14-09-08.14	Section 50-06-01.8, which is cross-referenced in Section 14-09-08.13, was repealed by 2001 S.L., ch. 418.
19-03.1-36(5)(e)	The change corrects a reference that was not changed when the subsections of Section19-03.1-23 were redesignated under 1993 S.L., ch. 128.
21-03-07(7)	The change corrects a reference that was not changed when Chapter 15-60 was repealed and replaced by other sections under 2001 S.L., ch. 181.
23-02.1-16	The change corrects a reference to Section 23-02.1-19, which relates to death certificate filing requirements rather than Section 23-02.1-15, which provides for delayed registration of birth.
26.1-05-19(6)	This change corrects a reference to Chapter 6-09.2, which was repealed by 1995 S.L., ch.107.
26.1-06.1-02(9)	This change corrects a reference to Chapter 26.1-18, which was repealed and replaced by Chapter 26.1-18.1 under 1993 S.L., ch. 292.
26.1-17-01(4)	This change corrects a reference to Chapter 26.1-18, which was repealed and replaced by Chapter 26.1-18.1 under 1993 S.L., ch. 292.
26.1-26-31.8	This change corrects a reference to Section 26.1-26-15.1, which was repealed by 2001S.L., ch. 262, § 136.
26.1-38.1-01(4)(e)	This change corrects an oversight when subparagraphs were redesignated under 1999 S.L., ch. 271.
29-06-15(1)	Section 12.1-31-06, relating to inhalation of volatile chemicals, was repealed and replaced by Section 19-03.1-22.1 under 2001 S.L., ch. 214.
32-03.2-11(9)	Section 12.1-31-06, relating to inhalation of volatile chemicals, was repealed and replaced by Section 19-03.1-22.1 under 2001 S.L., ch. 214.
41-09-02(1)(e)	This change corrects an error contained in 2001 S.L., ch. 361.
44-04-18(2)	This change corrects an error contained in 1997 S.L., ch. 381, § 3.
49-01-02	This change corrects a reference that was not changed after the voters approved the revised Article V of the Constitution in the 1996 primary election (1997 S.L., ch.568).
54-52.1-01(5)	This change corrects a reference to Chapter 26.1-18, which was repealed and replaced by Chapter 26.1-18.1 under 1993 S.L., ch. 292.

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