CRIMINAL JUSTICE COMMITTEE

The Criminal Justice Committee was assigned five studies. House Concurrent Resolution No. 3004 directed a study of the state's method of providing legal representation for indigent criminal defendants and the feasibility and desirability of establishing a public defender system. Senate Concurrent Resolution No. 4008 directed a study of the need for guardianship services, standards and practices for guardians, and funding for programs for individuals with mental illness, vulnerable elderly adults, and individuals with traumatic brain injuries. House Concurrent Resolution No. 3062 directed a study of vulnerable adult abuse and neglect with an emphasis on whether certain individuals should be required to report suspected incidents of vulnerable adult abuse and neglect. Senate Concurrent Resolution No. 4014, although not prioritized by the Legislative Council, was assigned to the committee by the chairman of the Legislative Council. The resolution directed a study of the methods for funding and providing law enforcement training in this state. Also by directive of the chairman of the Legislative Council, in response to an April 14, 2004, opinion of the Attorney General, the committee was directed to study the employment conditions issues contained in North Dakota Century Code (NDCC) Section 34-06-05, including those surroundings or conditions that may be detrimental to an employee's health or morals. The Legislative Council also assigned to the committee the responsibility to receive a report, pursuant to Section 19-03.1-44, from the Attorney General on the current status and trends of unlawful drug use and abuse and drug control and enforcement efforts in this state.

Committee members were Representatives Lois Delmore (Chairman), Bill Amerman, Randy Boehning, Ron Carlisle, Duane DeKrey, Dennis Johnson, Lawrence R. Klemin, William E. Kretschmar, Carol A. Niemeier, and Mike Norland and Senators Stanley W. Lyson, John T. Traynor, Thomas L. Trenbeath, and Constance Triplett.

The committee submitted this report to the Legislative Council at the biennial meeting of the Council in November 2004. The Council accepted the report for submission to the 59th Legislative Assembly.

INDIGENT DEFENSE STUDY

Background

The Sixth Amendment to the United States Constitution guarantees to all individuals 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 individual accused of a crime before the individual can be sentenced to jail or prison if that individual cannot afford to hire an attorney. These decisions include Gideon v. Wainwright, 372 U.S. 335 (1963), in which the Supreme Court interpreted the 6th and 14th Amendments as requiring states to provide counsel to all indigents accused of a crime in their jurisdictions; Argersinger v. Hamlin, 407 U.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.

The demand for indigent defense services grew steadily in the two decades following Gideon; however, the last 10 to 15 years have seen significant increases in the need for state-funded counsel. Prime factors contributing to the recent explosion in indigent defense caseloads are the "war on crime" and a major increase in drug offenses. It is not uncommon for indigent defense programs to represent up to 90 percent of all criminal defendants in a given felony jurisdiction. The cost of providing indigent defense services has escalated sharply, leaving states to search for ways to contain the costs of indigent defense.

Cost is usually the primary factor determining what 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

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 that will provide representation in some or all 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.

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 where 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 for Providing Services

The states have developed a wide range of systems to respond to the United States Supreme Court 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 half of the states have organized some form of 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. A statewide agency may operate under the executive or judicial branch of government or as an independent public or private agency. Often, a governing body or commission is created to enact policy and select the state public defender or chief counsel of the agency. In some states a state public defender is appointed by the Governor.

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.

Most of these statewide programs provide public defender representation in every county in the state. However, in some states, such as New Hampshire and Vermont, it is not practical to operate staffed public defender offices in rural areas, so assigned counsel or contract programs have been developed for these regions.

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. Massachusetts, for example, has a state public defender and a commission. The commission provides counsel in every indigent defendant case, but the statute mandates representation in particular types of cases between public defenders and the private bar.

State commissions are found 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. Frequently in the state commission system, local jurisdictions within the state are authorized by statute to determine the type of program (public defender, assigned counsel, or contract) that best suits their needs within the adopted guidelines. The local jurisdictions then operate the program independently at the local level. Arkansas, Georgia, Indiana, Kansas, Kentucky, Louisiana, North Dakota, Ohio, and South Carolina all have such commissions or boards, although their duties and responsibilities vary substantially.

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 of what type of system to use may be made by the county board, 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. 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 Florida the legislature has created 20 independent publicly elected public defender offices. There is one office for each judicial district. While this structure is mandated by the state, there is no state oversight at the trial level.

In Illinois, by statute, every county with a population of 35,000 or more must have a local public defender program. In less populous counties, public defender programs are optional. There is, however, no state oversight at the trial level.

In Iowa a state public defender is responsible for the tasks common to those of an executive director of a statewide indigent defense commission, although Iowa has no such commission. The state public defender oversees the local public defender, contract, and assigned counsel programs adopted and operated by the 99 counties.

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 a county opts out of the state public defender system, it must establish its own program and pay for it totally out of county funds.

In Oregon all county programs are established through a contract negotiation process with the Office of the State Court Administrator.

In Pennsylvania, by statute, every county must have a local public defender program. The local programs are not subject to any state oversight at the trial level.

In Virginia the legislature can create by statute a public defender program in any area of the state. Areas not designated for public defender programs are served by local assigned counsel programs.

In West Virginia a state public defender services office administers all funds for indigent defense throughout the state to 13 nonprofit public defender corporations that serve 20 of 55 counties and processes assigned counsel vouchers for the remaining 35 counties. The state provides 100 percent of the funds for indigent defense.

Funding Systems

State indigent defense systems are funded by various sources, including state funds, county funds, user fees, court costs, or by a combination of those. Twenty-three states fund their trial system exclusively through state funds, 10 states exclusively through county funds, and 17 states, including North Dakota, through a combination of state and county funds. In addition, a growing number of states rely on filing fees, cost recovery, and court costs assessments from civil litigants and criminal defendants to help fund indigent defense.

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 provides, in part:

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 divided into seven judicial districts. In each judicial district a presiding judge supervises the court services of all courts in the district. The position of district judge is an elected position filled every six years by a nonpartisan election held in the district in which the judge will serve. 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 of North Dakota, the Attorney General, and the Legislative Assembly.

Testimony and Committee Considerations

The committee received testimony and information from the Supreme Court, the State Bar Association of North Dakota, district court judges, and attorneys currently and formerly involved in the indigent defense contract process regarding issues facing the state's indigent defense system. The committee's consideration centered on seven issues--concerns about the current indigent defense system, the indigent defense administration fund, the federal indigent defense system, the Indigent Defense Task Force, the Indigent Defense Task Force proposals and recommendations, proposed legislation, and other indigent defense issues.

Concerns About the Current Indigent Defense System

The committee received testimony from the Supreme Court that the current system of appointing and contracting with attorneys by the judiciary raises conflict of interest concerns. 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 also expressed concern over the lack 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 contract to do indigent defense work in these counties has resulted in the need to hire outside counsel for indigent defense cases.

The testimony from the Supreme Court indicated that the state has relied on young attorneys who are willing to take the indigent defense contracts. The testimony indicated that when reviewing criminal trial transcripts in which indigent defense counsel has been appointed, there is a general concern about the effectiveness of counsel. It was suggested that this may not solely be because of poor or inexperienced attorneys but may be the result of the lack of time to spend on the cases.

The testimony also noted that the increasing indigent defense caseload in the state is due in large part to the increasing methamphetamine problem in the state, especially in the rural areas where there are fewer attorneys willing to do indigent defense work. According to the testimony, the large increases in caseload are very difficult to handle in a contract system that operates on a fixed budget. Thirty-eight new attorneys were admitted to the bar last year. It was noted that there were more attorneys in the state last year who died than were admitted and the newly admitted attorneys are not locating in the rural areas.

The committee also received testimony from an attorney formerly involved in the indigent defense contract process. According to the testimony, heavy caseload and inadequate compensation were the reasons the attorney terminated his contract with the state. It was also noted that the increase in drug offenses in the northwestern part of the state has greatly impacted the number of cases being assigned to the attorneys. The testimony indicated that when under contract, many attorneys are not earning more than $50 per hour. Because there are no attorneys currently under contract with the court in the Northwest Judicial District, the court is hiring attorneys to do the indigent defense work at a rate of $65 per hour. It was recommended that to attract attorneys to take the contracts, the hourly rate should be in the $75 to $85 per hour range. The testimony indicated that there were not any other attorneys or law firms in the Williston area who are interested in the criminal defense contract and that the court was struggling to find attorneys to take the work on an assignment basis. The attorney estimated that he spent approximately 50 hours per month, or one-third of his time, on the contract cases he had been assigned.

Indigent Defense Administration Fund

The committee received testimony regarding House Bill No. 1088 (2003), which established the indigent defense administration fund and the court facilities improvement and maintenance fund. Under that legislation, the first $750,000 collected from the court administration fee is to be deposited in the indigent defense administration fund, the next $460,000 is to be deposited in the court facilities maintenance fund, and any amounts collected beyond those amounts are to be in divided equally between the two funds. As of October 2004 the collections from the administration fee totaled $1,000,832. Based upon an estimate of $90,506 per month, the estimate of total receipts through June 30, 2005, is $1,905,891. It was estimated that in addition to the $750,000 that will be deposited in the indigent defense administration fund and the $460,000 that will be deposited in the court facilities maintenance fund, an additional $347,945 will be deposited in each fund this biennium. Approximately 70 percent of the court administration fees that have been assessed have been collected. The majority of the administration fees that has been collected are from misdemeanor offenses.

The judicial branch 2003-05 budget for indigent defense services in the state is $4,312,397. According to the testimony, about $400,000 of the funds in the indigent defense administration fund has been used to enhance the indigent defense contracts for the upcoming year.

The committee also received testimony from a district judge regarding the court administration fee imposed by House Bill No. 1088. The judge's concerns centered on the employment of the courts as a revenue source, especially when the funds are dedicated funds in which the courts have a direct interest. The testimony indicated that there are three groups of defendants that appear before the court in criminal cases--the group that is not indigent and may or may not have privately retained counsel, the group that fall below the indigent defense guidelines and are represented by court-appointed legal counsel, and the group that appear before the court, do not seek legal representation, and enter pleas of guilty. All three groups, it was noted, are routinely advised by the court that if they enter a plea of guilty to the alleged offense they will be subject to mandatory court administration fees as mandated for the level of the alleged offense. The groups however are not routinely advised that the court may waive the fees if they are indigent. The result according to the testimony is that frequently defendants are subjected to mandatory court administration fees that may be inappropriate if the court were fully informed as to the financial status of the defendants. The testimony also noted that a court-appointed legal counsel, who has a direct interest in the revenue generated from court administration fees, may well argue to the court that the court should reduce the fine imposed since the defendant will be subject to the existing court administration fees. It was also noted that criminal defendants are subjected to court administration fees dedicated to court facilities improvement and maintenance but no such fee is imposed upon others who use court facilities, such as civil litigants.

Federal Indigent Defense System

During the course of its study of indigent defense issues, the committee received testimony from a representative of the United States District Court regarding the federal indigent defense program. The federal Criminal Justice Act of 1964 provides for the hourly payment of indigent defense counsel in the federal courts. In the federal court system in North Dakota, attorneys are appointed on a case-by-case basis. Attorneys are paid a flat rate of $90 per hour with caps of $5,200 for felony cases, $1,500 for misdemeanors, and $3,700 for appeals. Additional compensation can be approved by the court. Attorneys can request additional money for interpreters, investigators, and experts.

The Criminal Justice Act provides authority for the creation of community defender organizations and federal public defender organizations. The attorneys in the public defender organizations are federal employees, while community defender organizations are nonprofit groups and the attorneys are employed by the nonprofit group. Eighty-three of the 94 judicial districts in the United States have implemented either the federal public defender organization or the community defender organization systems. Of those 83 districts, 58 districts have the federal public defender office system.

North Dakota does not have either type of organization but rather uses a panel attorney system. Each federal district adopts its own plan. All members of the federal bar are eligible to be on the panel. There are 302 attorneys on the North Dakota panel and about one-fourth of those attorneys are actively taking appointments. The district court has two attorneys on contract who serve as advisors to the panel attorneys. When making appointments, the magistrate judge looks at the needs of the defendant and the experience of the attorneys. It was noted that most attorneys are cutting their regular fees by $40 to $50 per hour when they take a case. Approximately 200 appointments are made per year in the state at a cost of about $400,000. It was noted that some incentives for attorneys to take cases are the $90 per hour rate and the promptness of getting paid, usually within 10 to 14 days after submitting a voucher. It was also noted that the federal indigent defense program is a good program for young attorneys to get experience in federal court. Defendant indigency status is based upon financial information submitted by a defendant. Once indigency is determined, the magistrate appoints counsel.

Indigent Defense Task Force

The committee received extensive testimony from the State Bar Association of North Dakota Indigent Defense Task Force. The task force was composed of a panel of lawyers, judges, and legislators who were selected because of their understanding of the problems with the current indigent defense system. Throughout the course of the interim, the task force reported its findings and recommendations to the committee.

The task force, with funding from the State Bar Association of North Dakota, the Legislative Council, and the Supreme Court, contracted with the Spangenberg Group, a national consulting firm that conducts studies of indigent defense programs. The Spangenberg Group has reviewed 32 statewide systems and has been under contract with the American Bar Association for the last 12 years to provide support and technical assistance to groups working on indigent defense. The Spangenberg Group outlined the following issues for consideration in the task force's study:

• The scope of the right to counsel in North Dakota.
• The type of indigent defense system that would work best for North Dakota, whether it be a public defender system, a contract system, or a combination of the two.
• The type of oversight structure, whether it be an independent body, the judicial branch, or the executive branch.
• The source of funding.

The committee received testimony and a report from the Spangenberg Group regarding the findings of its study. The Spangenberg Group conducted interviews with current and former contract attorneys, judges, state's attorneys, and court administrators in Dickinson, Bismarck, Jamestown, and Fargo. In conducting the site work and reviewing data on the state's indigent defense system, the Spangenberg Group concluded that the North Dakota system is wrought with many serious problems. It was pointed out that the current system is in danger of failing to fulfill its constitutional mandate of providing indigent defendants with effective assistance of counsel.

North Dakota is the only state in the country that uses an indigent defense model relying primarily on private attorneys working under contract with judges. Under North Dakota's system, attorneys agree to accept flat fee contracts requiring them to handle an unlimited number of cases in a given county or judicial district. This type of contracting method presents two primary potential problems--a lack of independence from the judiciary and the inability for contract attorneys to receive relief from excessive case assignments not anticipated when the contract period began. These two potential problems are impacting the quality of legal representation provided to indigent defendants in North Dakota. It was noted that the chief problem with North Dakota's indigent defense system is the pervasive absence of independence for the defense function from the judiciary.

In conducting the study, the Spangenberg Group met with three presiding judges. All three judges were uncomfortable with the current system. North Dakota has some of the lowest rankings among all states in the nation for indigent defense expenditures and cost per capita. The average cost per capita for indigent defense in nine states similar to North Dakota in population and geography was $8.54 while in North Dakota it was $3.23. In terms of overall indigent defense expenditures, North Dakota spent 43 percent less than the state with the second-lowest expenditure--Wyoming. In terms of cost per capita, North Dakota spent 49 percent less than the state with the second-lowest rank--Idaho. The 2003-05 appropriation of $4.3 million for indigent defense was a 5 percent increase over the previous biennium; however, the overall caseload has increased by 8 percent and the felony caseload has increased by 15 percent.

According to the Spangenberg Group, the goal in the state is to pay contract attorneys $65 per hour, which is $10 an hour less than the amount recommended by the North Dakota Legal Counsel for Indigents Commission. It was noted however that none of the attorneys interviewed reported earning a full $65 an hour for their contract work. It was also noted that when a contract attorney is appointed to a very serious case, such as a homicide case, there is often no additional pay for the time required to properly handle the case. In addition to concerns about high caseloads and inadequate pay, there are also concerns that there are no minimum qualifications for attorneys to get contracts. According to the testimony, all judges interviewed noted that they receive complaints about contract attorneys from indigent defendants, most concerning a lack of communication with their lawyers. The testimony indicated that the current system does little in the way of monitoring the work of contract attorneys and there is not a formal process for addressing client complaints. It was noted that some attorneys reported pressure from judges to not request motions, preliminary hearings, or trials.

The Spangenberg Group also reported that there is a disparity between the level of resources provided to contract attorneys and state's attorneys. It was noted that this disparity can impact the quality of representation provided by defense counsel by diminishing the level of adversarialness called for in a healthy criminal justice system. Full-time state's attorneys receive salaries and benefits, are provided with support staff, and are sent to training at no cost. It was noted that in the Burleigh County State's Attorney's office, additional resources include Westlaw; victim witness coordinators; access to law enforcement personnel for help with investigations; and assistance from the crime lab, medical examiner, toxicologist, and out-of-state experts when needed. By comparison it was noted that contract attorneys receive no benefits, have to pay for their own training and online legal research, and must seek approval for investigators and experts. Finally, it was noted that contract attorneys have no effective voice in the system.

The Spangenberg Group report recommended that North Dakota create a primary public defender system to fulfill its duty of providing its indigent citizens with meaningful and effective representation. In addition to a central administrative office for the public defender system, the creation of a contract administrator position was recommended. The position should be staffed with someone who is familiar with indigent defense practice and issues. It was further recommended that North Dakota create an indigent defense commission that is involved in policy oversight of both the public defender and contract systems, serves as a voice for indigent defense needs, and is responsible for selecting and overseeing the state's public defender. It was noted that regardless of the type of indigent defense system North Dakota chooses, there will be an increase in funding needs. The indigent defense systems in Connecticut and Georgia have been sued; the Georgia case resulted in the state being required to double and in some cases triple its level of funding. Montana's indigent defense system has recently been sued, but the litigation is on hold pending action by the Montana legislature, which has proposed a statewide public defender system.

Indigent Defense Task Force Proposals and Recommendations

Based upon its own findings and upon the recommendations of the Spangenberg Group, the Indigent Defense Task Force presented to the committee a legislative proposal for a structure to provide indigent defense services in the state. The proposal was based on two central principles--the delivery and management of indigent defense services should be removed from the judicial branch and the delivery of indigent defense services should be accomplished through an independent entity with general responsibility for funding, management, and oversight. The task force proposal differed from the recommendation of the Spangenberg Group in that the proposal did not contemplate the establishment of a public defender system as the primary vehicle for providing indigent defense services.

The bill draft proposed by the task force established a seven-member commission on legal counsel for indigents. The members would have staggered terms and should have experience in criminal defense or other appointed counsel cases or have demonstrated a commitment to quality indigent defense representation. Under the bill draft, the commission had a variety of responsibilities regarding the delivery, management, and oversight of indigent defense services. The two central responsibilities of the commission were to establish and implement a process for contracting for legal counsel services for indigents and, if deemed necessary and appropriate, to establish public defender offices within the state. The commission's other derivative responsibilities included tracking and monitoring appointed counsel caseloads, developing standards regarding delivery of indigent defense services, and approving a biennial budget for submission to the Legislative Assembly. The bill draft authorized the commission to enter an agreement with a city or county to provide indigent defense services that the city or county would otherwise be required to provide. The commission would appoint a director who would have to be a licensed attorney and be eligible to practice law at the time of appointment. The director's responsibilities included preparation of a proposed budget for consideration by the commission; preparation of an annual report on operation of the system; hiring staff, including attorneys as public defenders; and otherwise administering and implementing standards, rules, and policies adopted by the commission. The bill draft also amended NDCC Section 27-20-49 to transfer responsibility for appointed counsel services in juvenile court cases from the Supreme Court to the new commission; amended Section 29-07-01(1) to identify the commission, rather than the court, as being responsible for determining the rate of compensation for appointed counsel; amended Section 29-07-01.1 to appropriate money in the indigent defense administration fund to the commission rather than to the judicial branch; and provided for a transition from the Supreme Court to the commission and for effective dates.

The task force also presented information to the committee regarding the estimated costs of implementing the indigent defense system proposed in the bill draft. The estimated biennial cost to fully and adequately implement the proposed system would be $11,737,301. This amount includes approximately $750,000 in special funds, leaving a general fund impact of $10,954,901. The current indigent defense budget for the 2003-05 biennium is $4,312,397 from the general fund plus approximately $750,000 in special funds, for a total biennial budget of $5,062,397. North Dakota will spend about $2.5 million per year on indigent defense during the 2003-05 biennium. By way of comparison South Dakota spends about $6.3 million per year, Montana spends about $8 million per year, and Wyoming spends about $6.5 million per year.

The proposed estimate is based on compensating contract counsel at $75 per hour, which is the presumptive amount per hour currently identified under NDCC Section 29-07-01.1 and is the amount per hour recommended by the North Dakota Legal Counsel for Indigents Commission. The testimony indicated that the estimate is based on 21,810 projected case assignments for the biennium. This compares with 16,747 assignments during the 1999-2001 biennium and 18,039 during the 2001-03 biennium. Costs associated with the establishment and operation of the Commission on Legal Counsel for Indigents is estimated to be approximately $1,235,285 for the 2005-07 biennium. This includes the annual salary and benefits for a director, who would be appointed by the commission; a deputy; an administrative assistant; and four investigators. It was noted that because of the additional work that would be required in the first year, the commission may need more than the $8,654 estimated for expenses in the proposal.

One committee member suggested that the Legislative Assembly may want to consider whether the state's indigent defense system could be placed within an existing agency rather than to create a new agency.

Proposed Legislation

Based upon the legislation proposed by the Indigent Defense Task Force, the committee considered a bill draft that established the Commission on Legal Counsel for Indigents. The bill draft provided for the powers and duties of the commission and for a transition of indigent defense services from the Supreme Court to the commission. Under the bill draft, the Supreme Court maintained the current contract system for six months. However, on January 1, 2006, all indigent defense funds would be transferred to the commission. The bill draft did not contain an appropriation but relied on the Supreme Court to include the funding in its budget request so the amount would be included in the executive budget submitted to the Legislative Assembly rather than requiring the Legislative Assembly to add the amount to the executive budget.

Testimony concerning the bill draft indicated that the intent of the task force in drafting the bill draft was to separate the money needed to establish the commission from the money needed to fund indigent defense services. It was emphasized that the $1,135,000 needed to establish the commission should be included in the bill draft and that the appropriation for the attorney services would be included in the Supreme Court budget request. Testimony in support of the bill draft indicated that the state needs to act on the issue of indigent defense. According to the testimony, the current system is in crisis and is not meeting the constitutional requirements because of inadequate funding. Because of the low funding and compensation, indigent defense attorneys have the incentive to plead out cases. Montana's indigent defense system has been challenged by the American Civil Liberties Union (ACLU). Montana requested that it be given an attempt to address the problem legislatively. According to the testimony, the Montana legislature's proposal to the ACLU is to increase indigent defense funding from $8.5 million to $20 million. According to the testimony, North Dakota's indigent defense system has many of the same problems as Montana's system, including inadequate funding and overworked attorneys. State and federal constitutions require that a defendant is entitled to an adequate defense. It was emphasized that this is where the ACLU may step in and prove that defendants are not getting an adequate defense. The testimony noted that the system proposed in the bill draft does not totally replace the contract system with a public defender system but rather provides for a combination of the two systems. It was noted that there may be some merit to a full-time public defender system; however, this bill draft was the compromise reached by the task force. Finally, it was noted that as long as the appropriate safeguards and funding are in place, this proposal solved the problems with the current system.

Other Indigent Defense Issues

The committee received testimony that costs of indigent defense for mental health commitments, the civil commitment of sexual offenders, and guardians ad litem are still the responsibility of the county. These indigent defense costs are costing the counties about $300,000 per biennium. The committee was urged to consider whether these costs should be the responsibility of the state.

In response to committee concerns about the lack of attorneys willing to handle indigent defense cases, it was suggested that the Legislative Assembly may want to consider offering a law student loan repayment and forgiveness program for new attorneys who provide indigent defense services and other public interest legal work. The committee received testimony that over the past four years, 84 to 93 percent of law students at the University of North Dakota School of Law borrowed money to finance their law school education. The average student loan amount for graduates of the law school in 2003 was $48,800. The committee also received information on loan repayment and forgiveness programs in other states and on salaries and employment of recent law school graduates. A number of states, including Arizona, Florida, Maine, Maryland, Minnesota, New Hampshire, North Carolina, and Texas, have established loan repayment assistance and forgiveness programs for public service lawyers.

Recommendation

The committee recommends Senate Bill No. 2027 to establish the Commission on Legal Counsel for Indigents. The bill provides for the powers and duties of the commission and for a transition of indigent defense services from the Supreme Court to the commission. Under the bill, the Supreme Court would maintain the current contract system for six months; however, on January 1, 2006, all indigent defense funds will be transferred to the commission. The bill includes the funding for the establishment of the Commission on Legal Counsel for Indigents.

GUARDIANSHIP SERVICES STUDY

Background

When a court determines that an individual lacks the capacity to make or communicate the decisions necessary to manage personal affairs, a guardian may be appointed. Guardianship is the process by which a court, after determining that an individual is incompetent to make specific decisions, delegates the right to make those decisions to a guardian. Depending on the state statutes, a guardian may also be referred to as a conservator, committee, or curator. The procedures to initiate a guardianship and the practices following the appointment of a guardian also differ from state to state. While all states require some sort of petition, notice, and judicial consideration before appointing a guardian, the extent of due process rights afforded the alleged incapacitated person varies from state to state.

As a general rule, there are two types of guardianships--a guardianship affecting personal interests, known as guardianship of the person and a guardianship of the estate. The spheres of authority of a guardian of the person and of a guardian of the estate are distinct and mutually exclusive. Some jurisdictions recognize a third type of guardianship, known as a limited guardianship. In a limited guardianship, the guardian is entrusted with only those duties and powers that the ward is incapable of exercising.

The purpose of statutes relating to guardianship is to safeguard the rights and interests of minors and incompetent individuals, and it is the responsibility of the courts to be vigilant in seeing that the rights of those individuals are properly protected. The court with jurisdiction over a guardianship is the superior guardian, while the guardian is deemed to be an officer of the court. The conduct of the guardian is subject to regulation by a court.

Development of North Dakota's Guardianship Law

Pre-1973 Guardianship Law

Under North Dakota's pre-1973 guardianship law, the county court was authorized to appoint a guardian for an individual or for the estate of any incompetent state resident. The guardianship proceeding was initiated by the filing of a petition with the county court. The alleged incompetent individual was served a citation, giving notice of the filing and the date of the hearing on the petition. After an informal hearing at which the attendance of the alleged incompetent individual was not required, the court was authorized to appoint a guardian if the court determined that an appointment was either necessary or convenient. The pre-1973 statutes did not require a medical evaluation or other evidence that the individual was actually incompetent. The court was also authorized to appoint a guardian ad litem. As distinguished from current law, the pre-1973 law established no standard of proof for determining whether an individual was incompetent.

1973 Adoption of Uniform Probate Code Article V

In 1973 the North Dakota Legislative Assembly adopted the Uniform Probate Code. Article V of the Uniform Probate Code divided guardianship law into two parts. The first part, guardianship, provided for the protection of the person and the second part, conservatorship, provided for the protection of the estate. Article V differed from pre-1973 law in that the article separated the guardianship of the person and conservatorship of estates and property, improved due process provisions, and improved powers of the supervising courts. Article V also provided for a durable power of attorney that did not terminate on the disability or incompetence of the principal. In addition, Article V contained separate provisions for guardianships of minors and individuals who were mentally incompetent. Article V also required the appointment of a physician to examine the proposed ward and a visitor to interview both the proposed ward and the person seeking appointment as the guardian. Article V defined visitor as an individual who is trained in law, nursing, or social work and is an officer, employee, or special appointee of the court with no personal interest in the proceedings. The notice provisions defects of the pre-1973 statutes were partially remedied by Article V. Under Article V, a waiver of notice by a proposed ward was not effective unless the ward attended the hearing or the ward's waiver of notice was confirmed in an interview with the court-appointed visitor.

The adoption of Article V of the Uniform Probate Code resulted in other changes in the state's guardianship law. In proceedings for the removal of a court-appointed guardian, Article V changed the focus from the behavior of the guardian to the best interest of the ward. Another change was in venue for proceedings subsequent to appointment. The pre-1973 statute limited the jurisdiction to the county court that appointed the guardian. Article V gave the court in the county in which the ward resided concurrent jurisdiction with the appointing court in any subsequent proceedings relating to the guardianship.

1983 Amendments to Guardianship Statutes

In 1983 the Legislative Assembly passed House Bill No. 1057. The bill primarily dealt with three issues--the statutory guardianship of the superintendent of the Grafton State School, the services for developmentally disabled persons, and limited guardianships. The bill deleted provisions making the superintendent of Grafton State School the automatic guardian of the residents at Grafton. The bill also amended the statutory requirements for individualized habilitation plans by requiring that the plan state whether the developmentally disabled individual needs a guardian and determine the degree of protection the individual needs.

Regarding limited guardianship, House Bill No. 1057 expanded the definitions of "conservator" and "guardian" to include limited conservators and limited guardians. The bill directed the court to exercise its authority consistent with the "maximum self-reliance and independence of the incapacitated person and make appointive and other orders only to the extent necessitated by the incapacitated person's actual mental and adaptive limitations or other conditions warranting the procedure." The provision required the court to make item-specific determinations and that the powers of the guardian be tailored to the actual limitations of the ward. The bill permitted the court to limit the powers of the guardianship at the time of appointment or at a later date. The bill also specifically required the court to determine whether the proposed ward is mentally incompetent and thus not qualified to vote. The bill recognized the degrees of incapacity or incompetence and required the court to match the guardian's responsibilities with the ward's actual mental and adaptive limitations.

1989 Amendments to Guardianship Statutes

In 1989 the Legislative Assembly enacted House Bill No. 1480, which made additional amendments to the guardianship provisions of the Uniform Probate Code. The bill provided for a definition of "alternative resource plan" and "least restrictive form of intervention." The bill also amended NDCC Section 30.1-28-02 to provide that the proposed ward may demand change of venue to either the county of residence or the county where the proposed ward is present. The bill expanded the duties of the attorney to include a personal interview of the proposed ward, explaining the guardianship proceeding to the proposed ward, and representing the proposed ward as guardian ad litem. The bill also expanded the duties of the physician and the visitor and provided for guardian reporting requirements.

Current Guardianship Law

The guardianship provisions of Article V of the Uniform Probate Code enacted in 1973 and the subsequent amendments in 1983 and 1989 are codified as NDCC Chapters 30.1-26, 30.1-27, 30.1-28, and 30.1-29. Chapter 30.1-26 contains the general provisions that pertain to guardianship, including definitions and jurisdiction; Chapter 30.1-27 provides for the guardianship of minors; Chapter 30.1-28 provides for guardianships of incapacitated individuals; and Chapter 30.1-29 provides a system of protective proceedings designed to allow the management of estates by a court-appointed conservator.

North Dakota Century Code Chapter 30.1-28 contains provisions regarding the procedural rights of the ward or proposed ward. Section 30.1-28-09 requires that notice be served personally on the ward or proposed ward, that person's spouse, and parents if they can be located within the state. Notice to the spouse or parent, if they cannot be found within the state, may be given by mail or publication. Section 30.1-28-03(7) provides that the proposed ward must be present at the hearing in person unless good cause is shown for the absence. The section also provides that a proposed ward has the right to be represented by counsel and to be personally interviewed by the attorney. Section 30.1-28-04 provides that at a hearing under this chapter, the court is required to hear evidence that the proposed ward is an incapacitated person. The section provides that age, eccentricity, poverty, or medical diagnosis alone is not sufficient to justify a finding of incompetency. The section also provides the standard of proof under which a finding of incapacity may be made.

North Dakota Century Code Section 30.1-28-06 provides that the authority and responsibility of a guardian terminates upon the death of the guardian or ward. Section 30.1-28-07 provides for the conditions under which a guardian may be removed, resign, or under which the guardianship may be terminated. Section 30.1-28-12 provides that a guardian of an incapacitated individual has only the powers and duties specified by the court.

Testimony and Committee Considerations

The committee received testimony and information from a number of individuals and agencies involved in the area of guardianships and the need for guardianship services in the state. The committee also received extensive information from the North Dakota Guardianship Task Force, a group made up of representation from the Department of Human Services, the North Dakota Long Term Care Association, the State Bar Association of North Dakota, the Protection and Advocacy Project, the State Hospital, and numerous guardianship service provider organizations. The task force provided to the committee information regarding community education, petitioning and hearing, resources, guardians, court visitors, indigent individuals in need of guardians, and legislation. The committee's considerations focused on two issues--the guardianship services needs in the state and procedural guardianship issues.

Guardianship Services Needs in the State

The committee received extensive information and testimony from the North Dakota Guardianship Task Force regarding the guardianship services needs in the state. According to the testimony, the Legislative Assembly has enacted a number of significant changes to the state's guardianship laws over the past 16 years, including separating guardianship law from conservatorship law, allowing for limited guardianships, changing the burden of proof from a preponderance of the evidence to clear and convincing evidence, changing the law relating to capacity versus incompetence, and requiring that alternative resource plans be considered. It was noted that the Legislative Assembly rejected the new changes to the Uniform Probate Code that dealt with guardianship in part because it was believed current North Dakota law was better than the proposed revisions to the Uniform Probate Code.

Guardianship, which is a court-appointed relationship between a competent adult and an individual who is not able to handle the individual's affairs, is not an automatic process. The testimony stressed that each individual's situation must be considered carefully and completely. A guardian is required to act in and represent the best interests of the ward, protect the ward and the ward's rights, and ensure that services are provided in the most normal and least restrictive means possible. According to the testimony, much of a guardian's time is spent talking with physicians, case managers, social workers, pastors, family members, or police officers on behalf of wards. It was noted that guardianship should be pursued only when alternative resources such as homemaker services, a representative payee for Social Security benefits, social services support, residential placements, and in-home services have been tried but are unsuccessful or not appropriate given the circumstances. According to the testimony, a guardian often must make very difficult decisions on behalf of a ward. It was noted that most wards do not have assets. Some wards have Social Security benefits or veterans' benefits that can be used but most are indigent.

The committee also received testimony that there are no statutory standards regarding the qualifications of guardians other than a guardian must be 18 years of age and competent. It was noted that Catholic Charities North Dakota, which is the only organization in the state providing corporate guardianship services, does have policies regarding the qualifications of guardians it hires. It was stressed that there is a need to develop statewide standards for guardians.

The committee received the results of a survey conducted by the North Dakota Guardianship Task Force. The purpose of the survey, which was conducted in early January 2004, was to help determine the need, standards and practices, and funding issues regarding guardianship services in the state. The task force received 141 responses to the survey and categories of respondents included family members, the legal profession, and social services. With respect to the issue of need, 57 percent of the respondents indicated guardianship needs for the populations served are not adequate and 50 percent of the respondents indicated it is difficult to find individuals who are willing to serve as guardians. The results indicated that family members are typically the first choice for guardians, but when a family member is not available, a public administrator assigned by a judge becomes the guardian. It was noted that a number of courts do not have a public administrator. The survey results also indicated that approximately 22 percent of the respondents indicated family members are generally not willing or able to serve as guardians. It was noted that as anticipated, over half of the survey respondents indicated they are seeing changes in the population needing guardianship services. Those changes are most identifiable in the elderly population, followed by individuals with mental illness, physical disabilities, and head and brain injuries. With regard to standards and practices for guardianship, approximately 25 percent of the respondents indicated they do not have an adequate knowledge of guardianship and the guardianship process and when asked if they have experienced any barriers or problems accessing or working with the legal system for guardianship, 35 percent indicated "yes" with the majority citing lack of funds and length of time for the process as barriers. Eighty-three percent of the respondents indicated that there should be minimum standards for individuals serving as guardians. The survey results also indicated the need for guardians to be serving in the best interests of the wards, citing accountability, knowledge of expectations, and to ensure and protect consumer rights and assets as important. Regarding the funding of guardianship services in the state, the survey results indicated that the ward or the ward's family pays for the legal costs of establishing the guardianship; however, when resources are not available, the guardianship establishment costs are being paid by pro bono services, state agencies, counties, the State Hospital, legal aid, nursing homes, charitable organizations, and the petitioner. It was noted that many respondents indicated that if resources are not available, the court is not petitioned and a guardian is not appointed.

To address the issues raised in the testimony regarding the need for guardianship services in the state, the committee considered a bill draft that required the Department of Human Services to contract with an entity to create and coordinate a unified system for the provision of guardianship services to vulnerable adults who are ineligible for developmental disabilities case management services. The system would be required to include a base unit funding level, provider standards, staff competency requirements, an emergency funding procedure to cover the costs of establishing needed guardianships, and guardians and training for guardians. The bill draft also provided for an appropriation of $772,550. Testimony in explanation of the bill draft indicated that the appropriation amount included $247,000 for administrative costs, $40,000 for training and standards, $135,000 for court costs, and $350,000 for guardianship services.

According to the testimony in support of the bill draft, $772,550 is the minimum amount needed to provide training to guardians and guardianship services to 210 needy persons. The testimony indicated that the bill draft would provide guardianship services for those persons who are vulnerable but who are not developmentally disabled. The testimony further indicated that the rules that would be developed would include financial eligibility criteria. The appropriation would pay for guardianship services for an individual at a rate of $5 per day. The services a guardian provides for $5 per day include making legal decisions, securing housing, making health care decisions, and completing applications for services. The estimate that 210 individuals are in need of guardianship services is based upon the guardianship task force survey. Although Catholic Charities North Dakota is the only organization in the state providing corporate guardianship services, the bill draft would allow for organizations other than Catholic Charities North Dakota to contract with the Department of Human Services for the guardianship services.

Procedural Guardianship Issues

During the course of the committee's study of guardianship services needs issues, several issues were raised regarding the guardianship process, including the procedure for the appointment of a successor guardian and the filing of annual reports by guardians and conservators.

Regarding the appointment of a successor guardian, the committee received testimony that state law does not provide for a procedure for the appointment of a successor guardian. There are frequently instances in which the appointment of a successor guardian is necessary, such as the death or resignation of a guardian. It was noted that the procedure for the appointment of a successor guardian is not the same as the procedure for the creation of the guardianship. When naming a successor guardian, there is not a need to repeat the entire guardianship proceeding because the determination that a guardian is necessary has already been made and therefore that part of the process does not need to be repeated for the appointment of a successor. The testimony indicated that a parent or guardian may name a successor guardian in a will or a coguardian may have been appointed at the time the guardianship was initially created. Testimony received from an attorney who practices in the area of guardianship law indicated that the procedures used by attorneys for the appointment of a successor guardian meet the requirements of guardianship statutes; however, it would be helpful if the statutes specifically provided for the appointment of successor guardians.

The committee considered a bill draft that established a procedure for the current guardian or any interested person to file a motion with the court for the appointment of a successor guardian. The bill draft provided that the notice of motion must include a statement that provides an opportunity for hearing, if requested. If a hearing is not requested, the court may appoint a successor guardian. It was noted that the procedure in the bill draft follows the procedure set forth in the North Dakota Rules of Court Rule 3.2. This rule provides for a motion accompanied by a brief and an affidavit signed by the existing guardian or someone with knowledge of the reasons a successor guardian is needed. The bill draft also contained a provision that provided if the guardian is a public administrator or a corporate guardian that serves more than 10 wards, the guardian is permitted to provide notice by publishing the motion and the notice of motion in a newspaper of general circulation within the judicial district in which the court is located. Because of concerns that publication of a motion regarding the appointment of a successor guardian is a shortcut and a departure from statutory notice requirements, the bill draft was amended to provide that the motion and the notice of motion for a public administrator or a corporate guardian with more than 10 wards may be served by first-class mail.

Testimony in support of the bill draft indicated that the bill draft would be helpful in providing a statutory procedure for the appointment of successor guardians. The testimony indicated that the procedure in the bill draft is the procedure being used by attorneys in the state for the appointment of successor guardians. It was noted that although the procedure in subsection 4 of the bill draft is a departure from current statute, it is economical and at the same time protects the rights of individual wards. It was also noted that less than 10 percent of all successor guardianship appointments are contested. Other testimony indicated that because it is now possible to serve notice by fax and e-mail, allowing service by first-class mail is a satisfactory option.

Testimony in opposition to the bill draft expressed concern about the method of service provided for in subsection 4 of the bill draft. According to the testimony, the method of service--first-class mail--affects the due process of a ward if the ward's guardian has 10 or more wards. It was argued that this change would treat a ward with a corporate guardian differently than a ward with a private-party guardian. It was also argued that because wards of corporate guardians are often members of groups with specific disabilities, to treat such individuals differently than those with private guardians could create a perception of discrimination.

The committee also received testimony regarding the reporting requirements of guardians and conservators. According to the testimony, in about 99 percent of guardianship and conservatorship cases, the court requires an annual report; however, the requirement is not statutory. In addition, the testimony indicated that each judge has different practices for the filing and approval of reports causing a lack of predictability in the current system.

The committee considered a bill draft that provided for an annual report requirement for guardians and conservators. The bill draft also required the State Court Administrator's office to develop and provide a form that may be used to fulfill reporting requirements.

Testimony in support of the bill draft indicated that the bill draft would make it clear that the filing of an annual report is not the same as court approval of the report. It was noted that the bill draft makes it clear that court approval requires notice.

Testimony from the State Court Administrator's office indicated that the Council of Presiding Judges has not been satisfied with the handling of annual reports. It was noted that this bill draft is an attempt to clarify the procedure and provide direction to judges. According to the testimony, the judiciary is in agreement with moving forward with this idea. It was also noted that a standardized form would give information to the judges in a uniform format and make it easier to spot irregularities.

One committee member expressed concern that there has not been any harm identified which creates a need for this legislation. It was noted that requiring annual reports would take judicial discretion out of the process.

Recommendations

The committee recommends Senate Bill No. 2028 to require the Department of Human Services to contract with an entity to create and coordinate a unified system for the provision of guardianship services to vulnerable adults who are ineligible for developmental disabilities case management services. The system is required to include a base unit funding level, provider standards, staff competency requirements, the use of an emergency funding procedure to cover the costs of establishing needed guardianships, and guardians and training for guardians. The bill also provides for an appropriation of $772,550.

The committee recommends Senate Bill No. 2029 to establish a procedure for the current guardian or any interested person to file a motion with the court for the appointment of a successor guardian.

The committee recommends Senate Bill No. 2030 to provide for an annual report requirement for guardians and conservators. The bill draft also requires the State Court Administrator's office to develop and provide a form that may be used to fulfill reporting requirements.

VULNERABLE ADULT ABUSE AND NEGLECT STUDY

Background

Federal Law on Vulnerable Adult Abuse and Neglect

Federal laws on child abuse and domestic violence provide services and shelters for victims, but there is no comparable federal law on vulnerable adult abuse. The federal Older Americans Act (42 U.S.C. 3001 et seq., as amended) provides definitions of elder abuse and authorizes the use of federal funds for the National Center on Elder Abuse and for certain elder abuse awareness, training, and coordination activities in states and local communities but does not fund adult protective services or shelters for abused older individuals.

Vulnerable Adult Protective Services

All 50 states and the District of Columbia have enacted legislation authorizing the provision of vulnerable adult protective services. Generally, these vulnerable adult protective services laws establish a system for the reporting and investigation of abuse and for the provision of social services to help victims and ameliorate the abuse. In most jurisdictions these laws pertain to abused adults who have a disability, vulnerability, or impairment as defined by state law, not just to older individuals.

These statutes vary widely in the age at or circumstances under which a victim is eligible to receive protective services; the definition of abuse; types of abuse, neglect, and exploitation that are covered; classification of the abuse as criminal or civil; reporting (mandatory or voluntary); investigation responsibility and procedures; and remedies for abuse.

Some state vulnerable adult protective services laws only relate to "domestic abuse," which is the abuse of individuals who reside in the community, while other vulnerable adult protective services laws also include individuals who reside in long-term care facilities, known as "institutional abuse." Each state defines long-term care facility differently; moreover, some states include other types of institutions, such as mental health facilities, in their statutes as well.

In some states in which the vulnerable adult protective services law covers only individuals who reside in the community, a separate law addresses institutional abuse. As with the vulnerable adult protective services laws, institutional abuse statutes create a mechanism for reporting, investigating, and addressing incidents of elder abuse which occur in long-term care facilities or other facilities covered under the law.

Long-Term Care Ombudsman Program

Additionally, all states and the District of Columbia have laws authorizing a long-term care ombudsman program that is responsible for advocating on behalf of long-term care facility residents who experience abuse, violations of their rights, or other problems. The program is mandated in each state as a condition of receiving federal funds under the Older Americans Act. The ombudsman program is an integral part of the systemic response to institutional elder abuse. The program's purpose is to investigate abusive situations when responding to complaints within a facility and then, if appropriate, make a referral to a vulnerable adult protective services program, a law enforcement agency, or the agency responsible for licensing and certifying such facilities. Moreover, in some states, the ombudsman program fulfills the role of adult protective services and has the legal authority to investigate and respond to abuse occurring within long-term care facilities.

Criminal Laws

An increasing number of states are passing laws that provide explicit criminal penalties for various forms of vulnerable adult abuse and neglect. Legislatures are also signaling their intent that elder abuse be treated as a crime in other ways. For example, some vulnerable adult protective services laws include a provision stating that elder abuse may be prosecuted criminally, while others define certain acts, such as sexual abuse, in the same words or by reference to definitions that are used in the criminal laws. In those states in which there is not a specific statute or provision authorizing criminal prosecution for elder abuse, a jurisdiction's basic criminal laws, such as battery, assault, theft, fraud, rape, manslaughter, or murder, can be used to prosecute someone who has committed an act of abuse against an older individual. Some legislatures have enacted enhanced penalties for certain crimes against older individuals.

North Dakota Law

North Dakota Century Code Chapter 50-25.2 provides for an adult protective services program. Section 50-25.2-02 requires the Department of Human Services, with the advice and cooperation of county social services boards, to develop, administer, and implement a program of protective services for vulnerable adults. Section 50-25.2-01 defines a "vulnerable adult" as an adult who has a substantial mental or functional impairment. This section defines "abuse" as the willful act or omission of a caregiver or any other person which results in physical injury, mental anguish, unreasonable confinement, sexual abuse or exploitation, or financial exploitation to or of a vulnerable adult. "Neglect" is defined as the failure to provide essential services necessary to maintain the physical or mental health of a vulnerable adult. The section defines "financial exploitation" as the taking or misuse of the vulnerable adult's resources or property by means of undue influence, breach of fiduciary responsibility, deception, harassment, criminal coercion, theft, or other unlawful or improper means.

North Dakota Century Code Section 50-25.2-03 establishes a procedure for the voluntary reporting of abuse and neglect. The section provides that a person who has reasonable cause to believe that a vulnerable adult has been subjected to abuse or neglect or who observes a vulnerable adult being subjected to conditions or circumstances that reasonably would result in abuse or neglect may report the information to the Department of Human Services or to an appropriate law enforcement agency.

North Dakota Century Code Section 50-25.2-14 provides that the department and county social services boards are not required to implement or enforce the chapter with respect to any region, area, or county of the state if the Legislative Assembly does not provide an appropriation to support the implementation and enforcement of the chapter within that region, area, or county. Except for some subsequent funding of two of the three initial demonstration sites, state general funds have not been appropriated to fund this program. Federal funding made available through the Older Americans Act is used to fund vulnerable adult protective services in each of the state's human service regions.

In 1998 each regional human service center began developing elder services units, which are responsible for vulnerable adult protective services as well as other services.

North Dakota law also provides for criminal penalties for certain acts against vulnerable adults. North Dakota Century Code Section 12.1-31-07.1 provides that the exploitation of a disabled adult or vulnerable elderly adult is a Class A felony if the value of the exploited funds, assets, or property exceeds $100,000; a Class B felony if the value of the exploited funds, assets, or property exceeds $20,000 but does not exceed $100,000; and a Class C felony if the value of the exploited funds, assets, or property is in excess of $1,000 but does not exceed $20,000. Section 12.1-31-07.2 provides that in a criminal proceeding in which a disabled adult or vulnerable elderly adult is a victim, the court and the state's attorney are required to take appropriate action to ensure a speedy trial to minimize the length of time the disabled adult or vulnerable elderly adult must endure the stress of involvement in the proceedings.

Testimony and Committee Considerations

The committee received testimony and reviewed information submitted by the Department of Human Services, a representative of the North Dakota Medical Association, and community organizations that provide services to vulnerable adults and the elderly. The committee focused its discussions on whether there is a need for the mandatory reporting of vulnerable adult abuse and neglect.

The committee received testimony from the Aging Services Division of the Department of Human Services regarding the vulnerable adult abuse and neglect issues in the state. The department reported that from October 2002 to September 2003 the state's eight regional human service centers received 555 information and referral calls regarding vulnerable adult services and spent 7,922 hours providing case services. Of these referrals, 29 percent were made by medical or home health sources, 21 percent from agency sources, 19 percent from family sources, 19 percent from community sources, 7 percent from legal or judicial sources, and 5 percent were self-reported. Self-neglect, which accounted for 63 percent of the referrals, was the most common reason for a referral; neglect accounted for 17 percent; abuse accounted for 11 percent; and suspected financial exploitation accounted for 9 percent of the referrals. Seventy-two percent of the incidents reported were made in regard to individuals who were 60 years old or older, 60 percent of the individuals were female, 78 percent of those individuals were single, 54 percent lived alone, and 29 percent had some type of dementia. The testimony indicated that self-neglect often occurs with vulnerable adults who live alone. It was noted that vulnerable adults who live alone may make choices different from those other people may make. According to the testimony, the elderly are often forced to choose between buying medicine or buying food. The testimony indicated that mandatory reporting of vulnerable abuse and neglect would only be effective if adequate resources were made available. It was noted the sole source of funding for vulnerable adult protection services and the ombudsman program in the state is from the federal Older Americans Act. It was reported that about $170,000 is received annually under the federal Act. It was noted that the limited funds only allow for crisis intervention services. According to the department, the current system of voluntary reporting is working well but there is a need for more public education.

Testimony from representatives of the medical community indicated that physicians are generally aware of the voluntary reporting law and the reporting process. According to the testimony, clinics in the state are treating vulnerable adults who are being referred to them by protective agency personnel. It was noted that some physicians in the state would prefer that the voluntary reporting mechanism remain in place, but that there is a need for more clarity and education to ensure the proper functioning of the referral process. The testimony also indicated that the enactment of any mandatory reporting requirement may have a negative effect on the willingness of patients or their caregivers to seek timely medical care. It was noted that any law mandating certain persons to report vulnerable adult abuse and neglect must include appropriate safeguards, such as reporter immunity, and that the system must be adequately structured and funded to function as necessary.

Testimony from AARP North Dakota and a senior adults program indicated that whatever the state's reporting situation is, it must be supported by sufficient public information and education. The testimony emphasized that persons must be educated on how to report, to whom a report should be made, and what information should be reported. It was noted that if the Legislative Assembly determines that certain persons should be mandated to report vulnerable adult abuse and neglect, the legislation must provide adequate funding for investigation, enforcement, and services. It was also noted that because mandatory reporting could potentially be abused, any legislation that mandates reporting must include penalties for making false reports. The testimony indicated that a significant element in preventing and treating the problem is sufficient access to in-home services such as home-delivered meals and home health care. The testimony stressed that education is the key component to reporting vulnerable adult abuse and neglect. The testimony also indicated that many professionals, such as physicians, are reporting suspected abuse and neglect, due in part to the ethical standards of certain professions. The testimony also stressed that in providing adult protective services, any attempt to remedy the situation must be done by using the least-restrictive methods.

The committee considered a bill draft that appropriated $50,000 to the Department of Human Services for the purpose of implementing an education and awareness campaign to inform the public about vulnerable adult abuse and neglect, including the manner in which incidents of adult abuse, neglect, and exploitation may be reported. Testimony in support of the bill draft indicated the $50,000 would be a proactive and preventative way of dealing with the issue. The testimony indicated that the funding would be used for an education campaign and to set up a toll-free number for callers to report incidents and to receive information. According to the testimony, the funds currently distributed to the regional human service centers are used for client services only, not for education or media campaigns.

Recommendation

The committee recommends House Bill No. 1029 to appropriate $50,000 to the Department of Human Services for the purpose of implementing an education and awareness campaign to inform the public about vulnerable adult abuse and neglect, including the manner in which incidents of adult abuse, neglect, and exploitation may be reported.

LAW ENFORCEMENT TRAINING NEEDS STUDY

Background

The chief components of the state law enforcement system in North Dakota include the Highway Patrol, various divisions within the Attorney General's office, game wardens, and park rangers.

Highway Patrol

Founded in 1935, the North Dakota Highway Patrol enforces state law relating to the protection and use of the highways in the state and the operation of motor and other vehicles on North Dakota highways. In addition, the Highway Patrol is required to exercise general police powers over all violations of law committed on state property; to provide security and protection for the Governor, the Governor's immediate family, and other officers next in order of succession to the office of Governor, as deemed adequate and appropriate; and to provide security and protection for both houses of the Legislative Assembly while in session, as deemed adequate and appropriate. The Governor appoints the Highway Patrol superintendent. In addition to serving as administrative head of the Highway Patrol, the superintendent has been responsible, since 1981, for the operation, maintenance, and administration of the Law Enforcement Training Center.

Law Enforcement Training Center

The Law Enforcement Training Center in Bismarck was established following a 1969 appropriation of $169,000, funded by a one-time 50-cent charge on driver's licenses. The Highway Patrol superintendent appoints the director of the training center. The peace officer training conducted at the center is required to meet the criterion and curriculum standards of the state Peace Officer Standards and Training Board.

The Law Enforcement Training Center, which was built in 1971, conducts training for all law enforcement agencies in the state. The center provides basic and advanced training for all law enforcement officers at no charge to them or their agencies for tuition, room, or board. The original center consisted of two classrooms, dormitory rooms (40 beds), and a dining hall. In August 1997 the Ralph Wood addition opened. This project added a multipurpose room, four dormitory rooms, two classrooms, and an administrative office to the center.

In 2002 three basic training classes graduated as well as a Highway Patrol recruit class. Sixty-eight peace officers earned their Peace Officer Standards and Training Board licensure certification through attendance at the center. A total of 1,011 law enforcement personnel received training in 57 sessions at the center in 2002. The center also is frequently used by other groups and state agencies for training, meetings, and events.

Bureau of Criminal Investigation

The Bureau of Criminal Investigation was established in 1965 "as a bureau of the state government, under the Attorney General." Among the statutory duties of the Bureau of Criminal Investigation are the assisting of federal, state, and local law enforcement entities in the establishment and maintenance of a complete system of criminal investigation, serving as the state central repository for the collection, maintenance, and dissemination of criminal history record information; aiding in establishing a system for apprehension of criminals and detection of crime; and on request, assisting and cooperating in investigation, apprehension, arrest, detention, and conviction of alleged felons as well as other duties. The Attorney General acts as superintendent of the bureau and has "absolute control and management of the bureau." The Attorney General appoints the chief of the bureau.

Criminal Justice Training and Statistics 

North Dakota Century Code Section 12-62-01 provides that criminal justice training and the collection of statistics must be conducted by the Attorney General. Attorney General is to conduct the training of peace officers and sheriffs and gather, analyze, and disseminate information regarding the state's criminal justice system.

Drug Enforcement Unit

The Drug Enforcement Unit, under the Attorney General, has as its duty the enforcement of the Uniform Controlled Substances Act and other laws dealing with controlled substances. The Attorney General designates the director of the Drug Enforcement Unit.

Game and Fish Department

North Dakota Century Code Title 20.1 provides the general structure of North Dakota game and fish law. The state Game and Fish Department director has primary responsibility for enforcing these laws, with this responsibility also being delegated to game wardens. As the chief law enforcement officer, the Attorney General is also assigned responsibility in this area. That duty also is assigned to state's attorneys, sheriffs, and other peace officers.

Park Rangers

North Dakota Century Code Chapter 55-08 establishes the Parks and Recreation Department to plan and coordinate government programs encouraging the full development and preservation of existing and future parks, outdoor recreation areas, and nature preserves. The Governor appoints the director of the department. The director is authorized to appoint departmental employees to have peace officer status on property administered by the department. In addition, the Attorney General, state's attorneys, sheriffs, and other peace officers are also responsible for enforcement of Chapter 55-08.

Testimony and Committee Considerations

The committee received extensive testimony from the Attorney General's office, the Peace Officer Standards and Training Board, the Highway Patrol, and numerous law enforcement officers regarding the law enforcement training needs in the state. The committee's considerations focused on the state's basic law enforcement training needs, advanced law enforcement training needs, and proposed legislation.

Basic Law Enforcement Training Needs

According to testimony received from the Peace Officer Standards and Training Board, state law requires all new law enforcement officers to complete basic training. There are two providers of basic training in the state. The Highway Patrol operates the Law Enforcement Training Center in Bismarck at which officers who have been hired can receive the 11-week basic training at no cost to the employing agency. In addition, Lake Region State College in Devils Lake offers a program that provides basic training to persons who wish to become law enforcement officers but who have not yet been hired by a law enforcement agency. The tuition for the Devils Lake program is approximately $3,000. According to the testimony, these two programs combined graduate between 75 and 100 officers per year.

The state's approximately 1,800 licensed law enforcement officers are required to earn a minimum of 60 hours of continuing education every three years. The Highway Patrol and the Bureau of Criminal Investigation provide training to officers across the state. It was noted that all instructors are required to be certified to teach classes to law enforcement officers. To be certified, the officers must meet minimum requirements of experience and knowledge as well as complete an instructor development course. According to the testimony, the Highway Patrol and the Bureau of Criminal Investigation provide training within the restrictions of their respective budgets. It was noted that the Peace Officer Standards and Training Board, which sets the training standards, has no funding source other than the licensing fees of officers. These fees generate approximately $9,000 per year. It was also noted that with this training being provided, a local agency must send the officers to the training and cover any associated costs, such as mileage and expenses, as well as providing for necessary shift coverage. It was emphasized that the primary training issue is the inability of officers to access the training. According to the testimony, for many agencies the training is not easily accessible and the agencies do not have the money or additional personnel to send their officers to training. While the Interactive Video Network can be used for some of the training, much of law enforcement training is hands-on, demonstration-type training that needs to be done in the presence of a trained law enforcement instructor.

According to the testimony, the law enforcement training issues of the state involve both finances and personnel management. Thirty-six counties employ one-third of all county law enforcement officers while the remaining 17 counties employ two-thirds of county law enforcement officers. Thirty-six counties that have a sheriff's department staff of five or fewer employees often find it very difficult to send officers away for training and find it difficult to send their trained officers to other areas to conduct training.

The superintendent of the Highway Patrol reported that in 2003, 55 training courses were held at the training center for 1,156 students. A total of 55 new officers from various agencies satisfactorily met the minimum training requirements to serve as law enforcement officers in the state. The training academy has one field training officer. In 2003 this officer conducted training at 43 locations other than Bismarck. For the 2003-05 biennium $1,016,000 was appropriated for the operation, maintenance, and staffing of the training academy. Within this amount $50,000 was appropriated for funding specialized training. According to the testimony, although not every officer needs the same level of training, there are basic training needs that all officers must have.

The testimony also indicated that homeland security concerns have created more law enforcement duties and responsibilities.

Advanced Training Needs

The committee received testimony that although the state's basic law enforcement training needs are being met by the Law Enforcement Training Center in Bismarck and Lake Region State College in Devils Lake, there is a great concern about the inability to fund adequate inservice and advanced training. The testimony indicated that the majority of the trainers who teach the highly specialized courses are brought in from out of state. According to the testimony, it is important that law enforcement officers receive advanced training in various areas of expertise. Examples of areas of expertise include homicide investigations, computer crimes, tactical operations, supervision and management, criminal investigations, and firearms maintenance. These training sessions are offered throughout the state, but they occur infrequently. The majority of local law enforcement agencies in the state do not have any money budgeted for continued or advanced training. Many of the smaller agencies in the state rely on the generosity and assistance of larger departments to provide quality instruction for them. Any type of advanced training, it was noted, is almost nonexistent for the smaller agencies.

The committee also received testimony regarding the use of the Interactive Video Network for law enforcement training. Statewide there are about 250 Interactive Video Network sites and this number is growing. Eleven of these sites are at the colleges and universities. However, the majority of the remaining sites are controlled by the various kindergarten through grade 12 telecommunications consortiums around the state. The most significant limitation of the system is scheduling. The university and public school sites are generally booked for one-hour slots at least 30 but no more than 90 days in advance. In these locations it is difficult to get a large time block, such as four hours, in multiple locations unless it is in the summer. The local government sites are more flexible and some longer training sessions have been scheduled by using only county sites. There is a practical limitation of 10 sites for a single training, after which the degradation in the signal reduces transmission quality. While significant time and travel costs can be saved, training at 10 or fewer locations still requires some people to leave their counties, resulting in the need for backup staffing. It was noted, however, as more local sites are installed, this medium will become more flexible and hopefully more available to law enforcement agencies.

The committee also received information from the Peace Officer Standards and Training Board regarding a proposed training plan. To develop the plan the board surveyed all law enforcement agencies in the state requesting information on their unfunded training needs. Fifty-three percent of the agencies responded to the survey and indicated a need for training in approximately 60 specific topics that fall within five general areas, including general police subjects; accident investigation; criminal investigation; specialized courses; and supervision, management, and administration. It was noted that refresher training in high-liability areas such as search and seizure and use of force appear necessary as well. The plan is a work in progress and will need to be modified as time goes by. It was also noted that the plan is very ambitious and all the training proposed in the plan may not be able to be completed in one biennium. The training in the training plan would be in addition to the training that is done now and would only be offered to those officers who need that particular type of training. It was emphasized that every law enforcement officer does not need to attend every advanced class. According to the testimony, $912,225 per biennium would be needed to fund the training proposed in the training plan.

Proposed Legislation

The committee considered a bill draft that would have provided for the creation of a law enforcement training fund to be funded by a motor vehicle insurance premium tax. The law enforcement training fund would have been administered by the Peace Officer Standards and Training Board. Testimony in support of the bill draft indicated that 16 states use motor vehicle license fees to fund law enforcement training.

The Insurance Commissioner provided testimony regarding the bill draft. North Dakota currently collects 1.75 percent on motor vehicle premiums. It was noted that because of the retaliatory effect of the tax structure in relation to other states with higher percentages, the state would not necessarily capture all of the money provided by the increase in the premium tax. Of the $386 million in premiums currently being collected, a .12 percent increase would result in $451,000 in increased tax; however, when considering the retaliatory provisions of state tax law, about $245,000 would be collected from the increase. It was noted that these types of increases can put domestic companies at a disadvantage.

Committee members expressed concerns that there are too many taxes already imposed on motor vehicles and that if advanced law enforcement training is a legitimate cause, it should be funded using general fund money.

The committee considered a bill draft that provided for a $400,000 general fund appropriation to the Highway Patrol for the purpose of providing training for law enforcement officers and other emergency services providers.

Testimony in support of the bill draft indicated that the funds would be used to provide additional advanced training for the state's law enforcement officers. It was noted that although there may be some joint training with emergency services providers, the funds would predominantly be used by law enforcement officers. The committee received no testimony in opposition to the bill draft.

Recommendation

The committee recommends Senate Bill No. 2031 to appropriate $400,000 from the general fund to the Highway Patrol for the purpose of providing training for law enforcement officers and other emergency services providers.

EMPLOYMENT CONDITIONS STUDY

Background

As result of an April 14, 2004, opinion of the Attorney General, the chairman of the Legislative Council directed the interim Criminal Justice Committee to study the employment conditions issues contained in NDCC Section 34-06-05, including those surroundings or conditions which may be detrimental to an employee's health or morals. In addition to the issue raised in the opinion regarding the applicability of this section to smoking in the workplace, the Legislative Council chairman directed the committee to review the entire statute and any other issues that the language of the statute may raise. Section 34-06-05 provides:

Employment of employees under certain conditions illegal. It is unlawful to employ in any occupation within this state:

1. Employees for unreasonably long hours.
2. Employees under surroundings or conditions, sanitary or otherwise, which may be detrimental to their health or morals.
3. Employees for wages which are less than the state minimum wage.
4. Minors for unreasonably low wages.

North Dakota Century Code Section 34-06-05

North Dakota Century Code Chapter 34-06 contains the statutory provisions governing the wages, hours, and conditions of labor for employees in the different occupations in which they are employed within this state. This chapter was originally enacted in 1919 as House Bill No. 184. This 1919 bill provided that the purpose of the Act was "to protect the lives and health and morals of women and minor workers." Section 3 of the bill provided:

It shall be unlawful to employ women or minors in any occupation within the State for unreasonably long hours and it shall be unlawful to employ women or minors in any occupation within the State under such surroundings or conditions sanitary or otherwise, as may be detrimental to their health, or morals; and it shall be unlawful to employ women in any occupation within the State for wages which are inadequate to supply the necessary cost of living and to maintain them in health; and it shall be unlawful to employ minors in any occupation within the State for unreasonably low wages.

This section, which was most recently amended in 1965, is codified as North Dakota Century Code Section 34-06-05.

Attorney General's Opinion

In an April 14, 2004, letter opinion, the Attorney General addressed the issue of whether NDCC Section 34-06-05 applies to smoking in workplaces. The Attorney General stated that the prohibition in subsection 2 of Section 34-06-05 against subjecting an employee to surroundings or conditions that may be detrimental to the employee's health is one way the section could apply to tobacco smoke in the workplace. The opinion cited several studies that have analyzed whether environmental tobacco smoke is harmful, including one that specifically looked at smoke in the workplace. According to the opinion, the Labor Commissioner has the authority to investigate and ascertain employee labor conditions in the state and, in light of that authority, the Labor Commissioner has the authority to ascertain whether tobacco smoke in workplaces is detrimental to the employees' health and to address the matter through the rulemaking process. The opinion added that the prohibition in subsection 2 of Section 34-06-05 may create a private cause of action against an employer who subjects employees to tobacco smoke in the workplace.

North Dakota Legislation Regulating Smoking

Historical Legislation

North Dakota has a long history of tobacco-related legislation dating back to 1890. The first tobacco-related legislation was passed on February 13, 1890, during the state's first legislative session. The legislation prohibited the sale of tobacco products to a minor under the age of 16 years. That first bill in 1890 was followed by the introduction of tobacco control legislation in nine legislative sessions between 1895 and 1913. During the 1895 legislative session, House Bill No. 39 was passed making it illegal for any person in the state to sell or expose for sale any cigarettes of any kind or form. In addition, Senate Bill No. 141 prohibited the manufacture, sale, or use of adulterated cigarettes and the sale of any tobacco products to minors. The bill defined a minor as a person under the age of 17 years. In 1913 the Legislative Assembly attempted to completely eliminate cigarette use in the state by passing House Bill No. 67, which prohibited the "sale, manufacture, bartering, or giving away of any cigarettes, or cigarette papers . . . ." At the urging of Governor A. G. Sorlie, the 19th Legislative Assembly (1925), by Senate Bill No. 61, repealed the 1913 law. The bill, however, did declare it unlawful to provide tobacco products to any person under the age of 21 years.

Workplace Smoking Legislation

The Legislative Assembly has also considered a number of bills dealing with smoking in the workplace. In 1995, House Bill No. 1367, which proposed to prohibit smoking in all facilities providing children's services, including educational institutions and private workplaces, was introduced. Following a recommendation of a conference committee that the House accede to the Senate amendments, the bill failed to pass the House. In 1997, House Bill No. 1198 would have prohibited smoking, with certain exceptions, in any indoor place of public access and any publicly owned building or office. The bill also would have placed restrictions on smoking in nonpublic workplaces. The bill failed to pass the House.

In 2003, House Bill No. 1408 would have eliminated smoking in most public places and private workplaces with the exception of bars and private clubs. The bill failed to pass the House. Also in 2003, House Bill No. 1174 would have prohibited tobacco use and sales in the state. The bill failed to pass the House.

Current North Dakota Laws Regarding Smoking

North Dakota law contains a number of provisions regulating smoking and the use of tobacco in public and other places. North Dakota Century Code Section 12-47-21 prohibits the use, possession, and delivery of tobacco products by an inmate in the state's correctional facilities. This section provides that any person who possesses or delivers tobacco products to an inmate in a state correctional facility is guilty of a Class B misdemeanor. North Dakota Century Code Section 12.1-31-03 prohibits the sale of tobacco to minors and the use of tobacco by minors.

The laws with respect to smoking in places of public assembly are contained in NDCC Chapter 23-12. Section 23-12-10 provides:

Smoking is not permitted outside of designated smoking areas in places of public assembly as provided in this section. Smoking areas may be designated only by proprietors of privately owned buildings or by public officials having general supervisory responsibility for government buildings. No smoking area may be designated in a place in which smoking is prohibited by the state fire marshal. A sign must be posted in any designated smoking area which states "Designated Smoking Area" or words to that effect.

Except as otherwise provided, designated smoking areas in a place of public assembly may not occupy more than fifty percent of the total area available to the public and must be situated to minimize smoke drift. The proprietor of a food establishment with the seating capacity for fifty or more persons may temporarily, during the course of daily business, expand the designated smoking area beyond fifty percent of the total available area if the smoking area becomes fully occupied and the additional space needed for the expansion is vacant or available.

Section 23-12-09 defines "place of public assembly" as:

1. Enclosed theaters; auditoriums; gymnasiums; elevators; libraries; vehicles used in public transportation; rooms in which persons are confined as a matter of health care, including the waiting room, restroom, lobby, or hallway of a hospital, nursing home, rest home, or other health care institution or facility, and waiting areas in all public transportation terminals.
2. Any building or other enclosed structure owned or leased by the state, its agencies, or political subdivisions, and all public education buildings.
3. Each portion of a building or enclosed structure that is not included in this subsection if it has the seating capacity for fifty or more persons and is available to the public, including restaurants, food service establishments, dining rooms, cafes, cafeterias, or other rooms used primarily for the service of food, regardless of whether the establishments serve alc oholic beverages.

The term does not include private, enclosed rooms of residence, establishments licensed primarily or exclusively to sell alcoholic beverages for consumption on the premises, including private and fraternal organizations, or areas used for the service of alcoholic beverages and which are physically separate rooms within food service establishments.

Section 23-12-10.2 designates the State Department of Health as the agency responsible for receiving reports or complaints regarding violations of Section 23-12-09. The section also provides that state agencies, including the Fire Marshal, State Department of Health, Department of Human Services, and Office of Management and Budget, with jurisdiction over places of public assembly may enforce the smoking regulations. Section 23-12-11 provides that any person with supervisory responsibility over a place of public assembly who willfully fails to comply with the smoking regulations is subject to a maximum fine of $100 per violation.

Another statute that prohibits smoking is contained in NDCC Section 50-11.1-02.2. This section provides that "[s]moking is not permitted in an early childhood facility at any time during which a child who receives early childhood services from that facility is present and receiving services at that facility."

Local Smoking Control Efforts

The first local tobacco control ordinance was passed by the Grand Forks City Council in 1990. The ordinance restricted the placement of vending machines to locations that were not accessible to minors. In 1992 a vending machine restriction ordinance that limited the placement of cigarette vending machines to establishments licensed to sell alcoholic beverages was passed in Bismarck. Similar ordinances were passed in Devils Lake, Fargo, Jamestown, Minot, Valley City, and Williston.

On July 15, 1997, Jamestown became the first community in North Dakota to introduce a smoke-free ordinance. The ordinance would have prohibited smoking in public places, including elevators, restrooms, lobbies, public transportation, all public areas in private businesses and nonprofit organizations, libraries, museums, theaters, sports arenas, convention halls, and restaurants. Restaurants would have been allowed to have a separately enclosed and ventilated smoking area that did not exceed 50 percent of the seating capacity of the establishment. Bars, clubs, and bowling alleys were not included as public places. Violation of the ordinance would have been punishable by a fine of up to $500. The fine would have been applicable to the owner of the establishment and the smoker. The ordinance was defeated on August 4, 1997, with a 4-to-1 vote by the Jamestown City Council.

On February 26, 2001, a smoke-free restaurant ordinance was introduced at a meeting of the Minot City Council. The ordinance was passed by the city council with a 10-to-4 vote on April 2, 2001, with the ordinance scheduled to go into effect on January 1, 2002. The final ordinance mandated smoke-free restaurants but allowed restaurant owners to build fully enclosed, separately ventilated smoking rooms. Bars, fraternal organizations, banquet and convention center space for special occasions, bingo parlors, and bowling alleys were exempt from the ordinance. A referral attempt in July 2001 resulted in the ordinance being upheld by a vote of 55 to 45 percent.

In May 2004 restaurant owners in Carrington made the decision to ban smoking in their restaurants. The smoke-free initiative was not the result of any city ordinance but rather the operators of Carrington's six restaurants decided on their own to ban smoking.

In June 2004 Dickinson voters defeated a proposed city smoking ban by a vote of 2,200 votes against the initiated ordinance and 1,393 votes in favor. Under the proposed ordinance, smoking would have been prohibited in all Dickinson businesses except those with a liquor license at the time of the vote. The proposed ordinance also would have banned smoking within 25 feet of any nonsmoking establishment.

In July 2004 Fargo city commissioners approved an indoor public workplaces smoking ban. The ban will take effect either July 1, 2005, or at the same time as bans in surrounding communities, whichever comes first. A July 14, 2004, article in the Grand Forks Herald, reported that the Grand Forks Tobacco Free Coalition is supporting an ordinance for Grand Forks which is similar to the one passed in Fargo.

Three initiated measures regarding smoking appeared on the general election ballot in Fargo in November 2004. Ordinance No. 1, which called for a smoking ban that excluded truck stops and businesses with Class A or AB liquor licenses, received 19,582 "yes" votes and 23,897 "no" votes; Ordinance No. 2, which called for a smoking ban that excluded truck stops and enclosed bar areas that restrict people under age 21, received 24,986 "yes" votes and 18,966 "no" votes; and Ordinance No. 3, which called for a complete indoor, workplace smoking ban with an exemption for cigar bars, received 24,489 "yes" votes and 20,296 "no" votes. According to an October 4, 2004, letter opinion of the Attorney General, if conflicting municipal initiated measures are approved by the electors, the one receiving the highest number of "yes" votes prevails.

Two measures regarding smoking in public places appeared on the general election ballot in West Fargo in November 2004. Ordinance No. 1, which called for a smoking ban that exempted bars, received 5,639 "yes" votes and 3,291 "no" votes. Ordinance No. 2, which called for a complete smoking ban with an exemption for tobacco retail stores, received 5,160 "yes" votes and 3,667 "no" votes.

Testimony and Committee Considerations

The committee received extensive testimony from the Attorney General, Labor Commissioner, State Department of Health, the American Lung Association, North Dakota Medical Association, a physician, American Cancer Society, American Heart Association, North Dakota League of Cities, North Dakota Hospitality Association, local business owners, and local officials regarding the study. The committee studied the employment conditions issues contained in NDCC Section 34-06-05 and the statute's applicability to smoking in the workplace. In its study of Section 34-06-05, the committee focused on the following areas--legal concerns, health concerns, business and financial concerns, and proposed legislation.

Legal Concerns

According to the Attorney General, the clear and obvious interpretation of NDCC Section 34-06-05(2) is that the Labor Commissioner has the authority to investigate and ascertain employee labor conditions in the state and, in light of that authority, the Labor Commissioner has the authority to ascertain whether tobacco smoke in workplaces is detrimental to the employees' health and to address the matter through the rulemaking process. Section 34-06-05(2) may create a private cause of action against an employer who subjects employees to tobacco smoke in the workplace. The testimony indicated that there have been a number of lawsuits seeking damages because of workplace smoking, but even without NDCC Section 34-06-05, it is likely that a person could sue for damages caused by workplace smoking.

North Dakota Century Code Chapter 34-06 is the chapter of state labor law that provides authority for the Labor Commissioner to investigate conditions of employment and to adopt rules prescribing standards for wages and working conditions in the state. Under this authority, labor commissioners have adopted the rules that are contained in the department's Minimum Wage and Working Conditions Order. The rules establish the state minimum wage and employment standards for the payment of overtime, breaks, paystubs, and vacation pay. However, no rules have been adopted under the chapter establishing standards for workplace health and safety. The Labor Commissioner historically has relied on standards for workplace health and safety established and enforced by the federal Occupational Safety and Health Administration as well as health and safety programs at the State Department of Health and Workforce Safety and Insurance. The Attorney General's opinion places the issue of exposure to secondhand tobacco smoke in the context of the Labor Commissioner's authority to establish and enforce standards for wages and working conditions, but the Labor Commissioner testified that this issue is most appropriately addressed by the Legislative Assembly as the policymaking body of the state and that the legislative process would provide the most appropriate forum for public discussion of the matter. It was noted that there have been no regulations adopted regarding morality. According to the testimony, morality issues may also be open to a private cause of action. If complaints are received, the Labor Commissioner has the authority to investigate employment conditions regarding the morality portion of the statute. A committee member noted the statute is vague and either needs to be changed or administrative rules must be developed before anyone could be charged with a violation of the statute.

The committee also received testimony from the North Dakota League of Cities regarding local ordinances and efforts in the state regarding smoking in the workplace. According to the testimony, a survey of the league's members indicated that of the 36 cities that responded to the survey, 19 have policies in place regarding smoking in city-owned buildings, 14 responded that they have no policies in place regarding smoking, 2 cities responded that they have passed smoking ordinances, and 1 reported a pending initiated measure regarding smoking in businesses. According to the testimony, the league supports local control of the issue.

Testimony from Workforce Safety and Insurance indicated that workers' compensation rates charged are commensurate with the risk. However, the agency was not aware of any other states that use workplace smoking as a specific risk factor. The testimony indicated that Workforce Safety and Insurance does not track claims based on smoking injury grounds. The agency was aware of one occasion in which a secondhand smoke claim was accepted. It was noted that there are substantial proof problems with secondhand smoke claims. When rates are set, the agency looks at the loss history for that group and for that employer. Allowing or not allowing smoking in the workplace is not specifically considered in setting rates. The agency offers rate discounts for employers that conduct health and safety programs and, therefore, it is possible that an employer that voluntarily adopted a smoke-free workplace policy could receive a discount, but it must be shown that the policy would actually result in a reduction in claims.

The committee received testimony regarding secondhand smoking litigation. The first secondhand smoke lawsuit was filed in 1976. Since the early 1980s, more than 420 cases involving exposure to secondhand smoke have been identified. According to the testimony, the only North Dakota lawsuit on secondhand smoke involved a pregnant woman who alleged that secondhand smoke caused her illnesses. In that case, the jury decided the county was negligent under the state law that requires public places to have designated smoking areas if smoking is allowed and the pregnant woman was entitled to 5 percent, or $650, of the $13,000 in awarded damages.

Health Concerns

The committee received testimony from the State Department of Health regarding the health risks and financial costs associated with smoking. The health hazards of secondhand smoke, also known as environmental tobacco smoke, are well-documented. The Centers for Disease Control and Prevention has reported that secondhand smoke is a leading cause of preventable death in this country, killing 35,000 nonsmokers in the United States each year. In North Dakota, from 80 to 140 adults and children die from secondhand smoke each year. The Environmental Protection Agency reports that smoke from the burning end of a cigarette contains over 4,000 chemicals and 42 carcinogens. The Environmental Protection Agency reports that there is no safe level of exposure to environmental tobacco smoke and that an estimated 3,000 lung cancer deaths in nonsmokers each year are the result of secondhand smoke. Numerous studies have documented the health effects associated with exposure to secondhand smoke, including lung cancer and nasal sinus cancer, health disease mortality, and eye and nasal irritation in adults. Health effects in children include acute lower respiratory tract infections; asthma induction and exacerbation; chronic respiratory symptoms; middle ear infections; and developmental effects, including low birth weight and sudden infant death syndrome. In North Dakota, 56 low birth weight babies each year can be attributed to secondhand smoke costing $378,247, 667 cases of asthma are attributable to secondhand smoke exposure costing $540,903, and 218 cases of ear infection attributable to secondhand smoke costing $107,778. Two of the 10 sudden infant death syndrome deaths in the state are attributable to smoking exposure. Restaurant and bar workers, who typically have greater exposure to secondhand smoke, are at 50 to 100 percent increased risk of lung cancer.

According to the testimony, there is growing support for smoke-free environments in North Dakota. A survey commissioned by the North Dakota Public Education Task Force on Tobacco in spring 2003 found the majority of North Dakotans think smoking should not be allowed in schools, public facilities, entertainment arenas, private businesses, and restaurants. As of July 2004, 12 states had adopted state smoke-free workplace laws, 11 states include restaurants in their smoke-free workplace laws, and 7 states include bars. California and Utah were the first states to implement smoking bans in 1994. Since 2002, 10 additional states have implemented various combinations of 100 percent smoke-free provisions. Legislation is being considered in five additional states.

A representative of the North Dakota Tobacco Policy Coalition testified that the organization supports enforceable public policies that broaden the scope and strengthen the standards of current state law while preserving the right of local governments to adopt measures more restrictive than state law. According to the testimony, in North Dakota in 2002, nearly 60,000 workers were exposed to smoke in the workplace. It was noted that it is often argued that a person who works in a smoking environment can choose to work elsewhere. However, it would be difficult for thousands of workers in rural North Dakota to find other work. According to the testimony, while 75 percent of white collar workers are covered by smoke-free policies in the United States, only 43 percent of the country's food preparation and service occupation workers benefit from this level of protection. It was also noted that bar and restaurant workers have three to six times more exposure to secondhand smoke than other workers and a 50 percent increase in lung cancer. It was pointed out that if an employee works in a business that allows smoking, such as a manufacturing plant, it is estimated the nonsmoking employee will be exposed to secondhand smoke that is equivalent to smoking six cigarettes in an eight-hour shift.

A physician testified that the physicians of the state have long supported initiatives to reduce the death and disease associated with the use of tobacco products by youth and adults. According to the testimony, NDCC Section 34-06-05 indicates a long-standing concern by state lawmakers for the health of employees in the workplace. It was noted that secondhand smoke in the workplace is detrimental to the health of employees. The Journal of the American Medical Association in 2001 reported that exposure to secondhand smoke for as few as 30 minutes can impair coronary circulation in a nonsmoker. Because of the detrimental impacts of secondhand smoke in the state's patient population, North Dakota physicians have played an active part in efforts of local communities to adopt clean indoor air ordinances, including efforts in Minot, Dickinson, West Fargo, and Fargo. The United States Surgeon General's 2000 report on reducing tobacco use found that clean indoor air laws that prohibit smoking have been shown to decrease daily tobacco consumption and to increase smoking cessation among smokers. The testimony indicated that while the North Dakota Medical Association supports stronger state laws pertaining to the restriction of smoking in public places, physicians recognize that local communities should not be preempted from adopting clean indoor air ordinances that are more restrictive than state law.

A representative of the American Heart Association testified that smoke-free air laws have a strong, documented, positive impact on helping smokers quit and on preventing children and adolescents from ever starting. It was noted that more than 32 percent of the country's population is now protected by a local or state 100 percent smoke-free indoor air law. According to the testimony, smoke-free air is becoming a public health benchmark and expectation with economic development and tourism implications. Other testimony indicated that broad support exists for smoke-free policies. It was argued that no one should have to choose between a job and good health.

Committee members expressed concerns about the availability of smoking cessation programs in the state. According to the testimony, more than 60 smoking cessation programs have been established in this state and smoking cessation programs are available to state and county employees. It was noted that it usually takes an individual five to seven attempts before the individual has long-term success with smoking cessation. It was also noted that the state does not have a residential treatment facility for smoking cessation but there is such a program at the Mayo Clinic in Minnesota. The testimony also indicated that there are local tobacco prevention coordinators on all the state's reservations.

Business and Financial Concerns

The committee received testimony from a representative of the North Dakota Hospitality Association who testified that businesses will be affected by state law and local ordinances on this issue. It was argued that in a free market and free enterprise system, the business owner should be able to decide whether or not to allow smoking in the establishment. It was noted that just like employees, no one is forced to patronize a business. The testimony emphasized that business would be adversely affected by eliminating smoking, especially in bars. According to the testimony, the association supports reasonable smoking restrictions in restaurants, but bars should be exempt from any smoking prohibition. It was emphasized that it is important to be careful about statewide bans because not all businesses in the state are the same. It was noted that in some restaurants, 40 to 50 percent of revenue comes from smokers. The testimony noted that about 75 percent of the state's hotel rooms are nonsmoking.

Testimony from a Bismarck business owner stated that the lounge in the hotel he owns recently went smoke-free and, as a result, the lounge had experienced a 25 percent increase in sales. It was noted that while it is important for the free enterprise system to work, when employees' health is at issue, some government involvement may be necessary. It was suggested that the issue may need to be put to a vote of the people. It was noted that there is a market for smoke-free restaurants and bars and people are looking for those environments. It was also noted that if all bars were smoke-free, those bars currently smoke-free would lose their advantage. It was speculated that while no one wants to take that first step, if all bars and restaurants went smoke-free, business would maintain a status quo.

A Minot city alderman provided testimony regarding smoke-free family dining ordinance passed in Minot in 2001. It was noted that the ordinance was referred to a vote of the people and the ordinance was upheld by a vote of 55 to 45 percent. According to the testimony, following the effective date of the ordinance, business was basically status quo. However, many businesses are now reporting that business has increased from the time before the smoking restrictions became effective. It was noted that only two businesses in the city have opted to maintain a separately ventilated eating area. According to the testimony, the smoking ordinance has been a positive move for Minot and after being in effect for two years, 17 percent of the people still oppose the ordinance and 80 percent support it. Seventy-eight percent of those surveyed said the rights of employees take precedence over the rights of smokers. It was stated that it is time for the Legislative Assembly to take a look at smoke-free workplaces.

Other testimony regarding the Minot ordinance indicated that it is the only ordinance in place in the state that provides for worker protection from secondhand smoke. A study conducted by Minot State University indicated that there is a 96 percent rate of compliance with the ordinance in Minot. A second Minot State University study evaluated the economic impact of the smoke-free ordinance on restaurant business in Minot. In this study, sales tax data from the five years before the implementation of the ordinance was compared to the sales tax data from the year following implementation. The study found no negative economic impact as a result of the ordinance.

During the course of the study, the committee reviewed the Minot smoking ordinance as well as smoking regulation laws of New York, California, and Delaware. The committee also reviewed the tobacco tax revenue collected in North Dakota for the years 1998 through 2003. In 2003 the total amount of cigarette and tobacco tax revenue collected totaled $20,687,895.73; the collections in 1998 were $23,978,505.89. It was noted that in North Dakota the tobacco tax is collected from the wholesalers, not the retailers. Because of this method of tax collection, although tobacco tax revenues have decreased, the decreases in tobacco tax revenues could not necessarily be attributed to local smoking ordinances that restrict smoking in public places.

The committee also received information regarding the tobacco tax revenue collected in California since the implementation of that state's smoke-free legislation in 1994. The information indicated that California has seen a steady decrease in tobacco sales and consumption over the past 40 years and that the implementation of the smoke-free legislation in 1994 did not appear to accelerate that steady decrease. It was noted that a 50-cent per pack tax increase in California in 1998 raised the per pack tax to 87 cents. The North Dakota tobacco tax is 44 cents per pack.

Proposed Legislation

The committee considered a bill draft regarding smoking restrictions in places of public access, publicly owned buildings or offices, and nonpublic workplaces. The bill draft prohibited smoking in places of public access and in workplaces, with some exceptions. The bill draft also provided that the smoking prohibition does not apply to places of public access operated by a social, fraternal, or religious organization when the place is being used solely by the organization's members or their guests or families; guest rooms in lodging facilities; establishments licensed primarily or exclusively to sell alcoholic beverages for consumption on the premises; private clubs; and certain separately enclosed smoking areas. The bill draft provided for a $100 penalty for violations with a maximum of $500 for second and subsequent offenses. The language in the bill draft is substantially the same as the language contained in House Bill No. 1408 (2003), which failed to pass the House.

The committee also considered several amendments to the bill draft. The amendments would have removed the exemption in the bill draft for establishments licensed primarily or exclusively to sell alcoholic beverages for consumption on the premises. It was argued that bar employees are 1.5 times more at risk to secondhand smoke-related illnesses than are other workers. It was pointed out that in an eight-hour shift, a bar employee is exposed to the amount of secondhand smoke that is equivalent to smoking 1.5 to 2 packs of cigarettes. It also was noted that bar employees are the employees who are the most exposed to secondhand smoke but who have the least potential for being able to find alternative employment and are also less likely to have health insurance. Other testimony in support of the amendments to the bill draft arguedto be fair, the smoking ban should apply to all employees. It was emphasized that if the goal is to protect workers, all workers should be protected. The committee did not adopt the proposed amendments.

Testimony from the Labor Commissioner regarding the bill draft indicated the bill draft placed the authority and obligation to enforce the proposed restrictions with the State Department of Health which is logical considering that the State Department of Health has authority to enforce smoking restrictions in places of public assembly. According to the testimony, regardless of which state agency is given the authority and obligation to enforce any workplace smoking restrictions, it is extremely important that this significant public policy issue be addressed by the Legislative Assembly. It was noted that the authority for any state agency to make rules must be clear with well-defined parameters.

Other testimony on the bill draft indicated that smoking regulations would be difficult to enforce and would not protect all workers. It was recommended that the portion of the bill draft that provides for exceptions for certain business establishments be deleted. It was noted that while the bill draft being considered by the committee was a step in the right direction, it would not protect all workers from secondhand smoke.

Recommendation

The committee recommends House Bill No. 1030 to prohibit smoking in places of public access, publicly owned buildings or offices, and nonpublic workplaces. The prohibition does not apply to places of public access operated by a social, fraternal, or religious organization when the place is being used solely by the organization's members or their guests or families; guest rooms in lodging facilities; establishments licensed primarily or exclusively to sell alcoholic beverages for consumption on the premises; private clubs; and certain separately enclosed smoking areas. The bill provides for a $100 penalty for violations with a maximum of $500 for second and subsequent offenses.

REPORT OF ATTORNEY GENERAL

The committee received a report from the Attorney General on the current status and trends of unlawful drug use and abuse and drug control and enforcement efforts in the state. According to the report, 135 methamphetamine labs have been busted so far this year. This is about half of the number at the same time last year. The focus of drug control and enforcement efforts in the state has been on prevention. In the legislation proposed for the next session, it is likely that there will be requests for more treatment options. It was reported that the state is not going to be able to afford enough prison beds for all the drug offenders, thus creating a need to fund more treatment for first-time offenders. According to the report, some of the ideas enacted in 2003, such as limiting the number of packages of cold medication that can be sold to a customer, seem to be making a difference. It was noted that most of the methamphetamine used in the state comes from out-of-state sources. According to the Attorney General, the three additional drug agents that have been added over the last two legislative sessions have greatly helped drug enforcement efforts.