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| Kathleen Murray at March 18, 2014, Foster County Commission Meeting |
The case of the People vs James Carr and Roger Schlotman has yet to be set for trial. The question that begs answering is.. WHY? ...since this case was filed against them in October of 2013... almost 16 months ago. What is the reason for the delay?
Since the time it was filed, there was a preliminary hearing that resulted in two of the misdemeanor charges against Jim Carr being dropped by the Court. Shortly after that, the November primary election occurred in which Jim Carr was handily re-elected as Foster County commissioner in a 2-1 margin.
Since that time, the special prosecutor, Ms. Kathleen Murray has filed two motions. One motion was to consolidate the two cases into one, and the other one was to change the trial venue to another county. Both of these motions, after the hearing by Presiding Judge Narum, were denied.
Why has this case taken so long to bring to trial? One only needs to look at the special prosecutor, Kathleen Murray, for the answer. The record of the procedings so far reflect a prosecuting attorney who obviously does not know what she's doing. The record shows that all the motions for continuances, to delay the trial of these charges, have all been from Special State's Attorney Murray.
We're not sure if it's either incompetence on Ms. Murray's part... or that she just wants to delay and charge off as much money as possible against the taxpayers of Foster County.
Please understand that when a special prosecutor is appointed in a case like this, the appointed attorney is allowed to charge for her fees at her regular billable hours. In other words, the more Ms. Murray delays, the more we're having to pay for the prosecution of these cases.
Obviously, we don't know what a jury will decide as to guilt or innocence of either defendant.
We do know that if State's Attorney Murray didn't possess the evidence for a conviction against these parties when she filed the complaint against them and had them arrested, then she should NOT have done it.
Recently, we were curious as to how much of a bill Ms. Murray has racked up against Foster County. Thus, we did a public records request to her for that information... that information being her total number of billable hours in this case so far and the hourly rate she intends to charge us for her efforts.
See copies of our correspondence below... requesting her total billable hours in these cases.
Judge for yourself, but it appears to us that the last thing she wants to do is disclose to the taxpayers of Foster County the money which she has wasted in her efforts that still have not gone anywhere.
Notice that in her reply to us, she sent copies to BCI Agent Lang and a local highway patrolman in Wells County. Is this a not-so-veiled threat to us that she can use law enforcement against us for requesting public records? What does law enforcement have to do with making a public records request of Ms. Murray?
The question that still remains is ... How much money have these cases cost Foster County so far?
The following is the:
E-Mail Correspondence between Ted Keller and State's Attorney Kathleen Murray
From: ted@centralcityremodelers.com
Sent: Monday, February 02, 2015 6:42 AM
To: Murray, Kathleen K.
Cc: Paul Murphy
Subject: Public Records Request
Greetings:
This records request is regarding the billing to either Foster County or the State of North Dakota for the legal services by your firm in the criminal actions short titled, State of North Dakota verses James Carr and Roger Scholtman.
These records should include but not be limited to logs of all billable hours, copies of legal billing previously paid or not by any party, to the law office of Kathleen Murray regarding the aforementioned cases.
The records can be scanned as a pdf file and returned to my email or sent to the address below.
Awaiting your immediate response.
Ted Keller
511 1st Street N
Carrington, ND 58421
701 6507469
------------------------------------
Original Message --------
Subject: RE: Public Records Request
From: "Murray, Kathleen K."
Date: Mon, February 02, 2015 3:15 pm
To: "ted@centralcityremodelers.com"
Cc: Paul Murphy
Mr. Keller:
The State v. James Carr and State v. Roger Schlotman cases are still pending, and are still active and ongoing criminal investigations.
Pursuant to NDCC §44-04-18.7 Active Criminal Investigative information is not subject to an open records request.
There is not a bill to the State of North Dakota for the services and there will not be a bill sent to the State of North Dakota, and Foster County will not be billed for the BCI work on these matters.
I have not sent any bills to Foster County for the work on the cases. There has not been any payment for work on these cases.
Any notes that I have are contained on notes as part of my attorney work product and part of the criminal investigation, and I do not have a log of all billable hours as a separate log and record. Pursuant to NDCC§ 44-04-18(4) I am not required to create or compile a record that does not exist.
I am attaching a register of actions that is public record. All of the legal documents filed by the State (by Assistant Foster County State’s Attorney on behalf of the State) are billable hours at $100 per hour, and while I do not generally charge for review of documents filed by the Defense, those are billable hours at $100 per hour to review the documents. Also, all court appearances and travel for court appearances are billable hours at $100 per hour. When I submit a billing statement to Foster County, after the matters are completed, then, you will be able to obtain a copy of the billing statement. As criminal cases that are pending are active and ongoing and not public record, it has been the prior practice to submit a billing statement after the matter has been completed so that there is not a disclosure of information from a pending case.
Thank you.
Kathleen K. Murray
Wells County State’s Attorney
700 Railway Street N # 325
Fessenden, ND 58438
kmurray@nd.gov
phone (701) 547-3885
fax (701) 547-2536
Please note NO PO BOX and new email
-----------------------------
From: ted@centralcityremodelers.com [mailto:ted@centralcityremodelers.com]
Sent: Tuesday, February 03, 2015 11:56 AM
To: Murray, Kathleen K.
Cc: Paul Murphy
Subject: RE: Public Records Request
Ms. Murray:
Am I to understand that you do not keep a separate log for billable hours in the case at issue? If that is so, then I will rephrase my request and state that I want all notes contemporaneous or otherwise regarding the instant case that involve your billable hours to these cases.
What you have stated is that you have encapulated your billable hours into your attorney work product and therefore the records are not subject to public disclosure.
As you should be aware, if a privileged record contains non-privileged information, the non-privileged part of the information is a public record, thus available for inspection.
If I'm to understand correctly, what you did to avoid disclosure of your billing is disperse it through confidential documents and attorney work product. You still must provide the document requested after a redaction of the privileged and confidential material.
What other taxpayers and I have a right to know is how much time you have spent on these cases that you intend to bill us for. Therefore, if you do not contact me regarding the records I've requested, I will be filing an action against YOU for them.
You, of all people -- a licensed, practicing attorney who alleges to represent the State of North Dakota -- should know what is or isn't a public record. Perhaps you need instructions from the Court about that subject.
Lastly, if my memory serves me correct, in the Foster County Commission meeting of March 18, 2014, you were the learned counsel who provided the misinformation that citizens do not have the right to know what they are paying their public employees. Remember that?
Ted Keller
---------------------------
Subject:
RE: Public Records Request
From:
"Murray, Kathleen K."
Date: Tue, Feb 03, 2015 2:03 pm
To: "ted@centralcityremodelers.com"
Cc: Paul Murphy
Mr. Keller:
In regards to your last statement, I did not indicate that the public is not entitled to the amount that is paid to public employees. I specifically stated that the public is not able to make an open records request for confidential information such amounts being withheld including flex spending, and net pay, and medical portions. However, that is not really part of this formal request, and I do not believe it is necessary to go into those details.
If you insist that I immediately bill for all of my billable hours, then, I will create and an invoice and for bill all of my billable hours.
Generally, in the past, I have not billed for all of my billable hours, and I usually give a break and a credit for most of my time, and only bill for in-court time, and documents prepared. I sent you the Register of Actions to show the general items that I usually charge for billable time and would give you an estimate of the approximate amount of time of my current billable hours, and any overall total will be less if there is not a trial in this matter. I filed a motion for joinder in an effort to have a joint trial of both defendants in order to keep the costs down for Foster County, but unfortunately, Mr. Carr objected to the joinder, and the Court denied the joinder. As you are also demanding this request, it will require time from my assistant to help prepare the documents, and therefore, Foster County will also be billed for that time, that normally, I do not bill unless my assistant travels with me to the court proceedings, such as the trial.
I did not in any way put my billable time in confidential documents in an effort to prevent disclosure. Rather, generally, a defendant is not entitled to the time that the State or prosecutor spends on a trial, and/or attorney work product, preliminary drafts and working papers. See NDCC § 44-04-18(6) & N.D.A.G. 2002-O-05 (An adversary to a pending action or proceeding is governed by the rules of discovery and attorney work product and papers are not subject to general discovery, and an adversary and/or an agent of the adversary is not entitled to those documents in an open records request). My billable time is preliminary drafts and working papers, as I do not normally bill for ALL of my billable time, nor all of the time for my assistant and these are papers for a government entity, and my invoice is prepared for presentation to a governing body and generally that may be withheld until it is provided to the governing body. See NDCC §44-04-18(9) & (10); N.D. A.G. 98-O-04; N.D.A.G. 2001-O-04. Further, Mr. Carr is a Foster County Commissioner and therefore, any invoice would be sent to my adversary and thus, another reason that I would not generally send my preliminary drafts and/or working papers. See NDCC §44-04-18(9) & (10); N.D. A.G. 98-O-04; N.D.A.G. 2001-O-04.
While I still believe in good faith that there are specific statutes that govern my response that this is not a proper open records request at this time as stated in my prior email and also stated in this email as those statutes are there to promote justice and integrity to the criminal proceedings, and protect the rights of “charged defendants” prior to any conviction or acquittal, I will take the time to compile an invoice and bill Foster County for my current billable time from my preliminary drafts and working papers so as to prevent any further lawsuit or other matter sent to the attorney general’s office.
Please be aware that I will have to compile the invoice with general terms such as “meeting with witness” and “review of discovery documents” rather than specific names of witnesses and/or other specifics as those would relate to specific confidential information related to the pending criminal investigations, and this will require time to make sure to “excise” that information. A public entity is entitled charge the requester $25 per hour, excluding the initial hour, for locating the records, NDCC § 44-04-18(2) and a public entity is entitled to charge the requester $25 per hour for excising confidential or closed material from the records, including electronic records, NDCC §44-04-18.10. Please also note that there is a large volume of records of my notes and preliminary drafts and excising the information and locating all of the individual records from both Mr. Carr’s files and separately from Mr. Schlotman’s files will take some time to compile. You will be billed at $25 per hour minus the initial hour for that time in locating all of the records and all of the time to excise the information. If you want me to actually provide you with my chicken scratch preliminary notes rather than an overall invoice, this will take a lot longer, and I will have to charge you for copying all of my excised handwritten notes. Even if I only compile the invoice and take the time to excise my notes into the invoice, this will take a lot less time than copying all of my redacted and excised handwritten notes, but it will still take sometime to compile my invoice. The reason for this explanation is to provide notice of the fees, and also, to inform you that I will not be able to Immediately respond to your request do to the extremely large volume of notes, and files and documents, and letters from attorneys, and documents filed by the defense attorneys. I am giving you this information to inform you that a reasonable time to respond to your request will be at least 3 or more days with the compiled invoice. It will take longer than 3 days if you want all of the excised information.
Thus, please let me know if you are requesting just a compiled billing statement with generally excised information to protect the confidential and nondiscoverable information, or if you want the invoice and all of my excised handwritten notes. If you want all of my handwritten notes, I will have to go and look at my car log and excise my personal trips from my vehicle log to provide you with all of the vehicle trips. I will have to go through all of my discovery letters and excise the actual documents, but leave the remaining page numbers so that you are able to see the expense amounts. While I am not required to create a document at this time as I have not yet sent an invoice to Foster County, I would rather create the invoice, and provide you with a copy of the excised invoice than to have to make thousands of pages of excised copies and excised personal car logs, and excised discovery letters, etc.
Thank you.
Kathleen K. Murray
Wells County State’s Attorney
700 Railway Street N # 325
Fessenden, ND 58438
kmurray@nd.gov
phone (701) 547-3885
fax (701) 547-2536
Please note NO PO BOX and new email
-------------------------------------------
Subject:
FW: Public Records Request
From:
"Murray, Kathleen K."
Date: Wed, Feb 04, 2015 5:17 pm
To: "ted@centralcityremodelers.com"
Cc: "murfslaw@daktel.com"
Mr Keller:
You did not respond to my last email that was meant to be clarification from your open records request. As previously stated, I believe that there is statutory authority to deny your request, as open records responses are not supposed to interfere with or impair proceedings, and the criminal proceedings are for enforcement of criminal laws. Please note that Jaci Williams is my legal assistant, and Bryan Lang is the investigator working on this case, and will also be able to support the information regarding my billable hours.
However, my assistant and I began working on trying to locate the records and reviewing them in order to excise the information so that we will be able to timely respond to your request. Just going through the files to take out all of my note books, and handwritten notes, as well as, my travel logs has already taken in excess of 5 hours of billable time to locate the records. Thus, at $25 per hour to locate the information, the fees for the open records will be at least $100 billable directly to you, Mr. Keller, for responding to your open records request.
Please provide clarification if you want me to provide you with only a summary of my billable hours so that I do not have to spend the time and expense of excising information from the various sources that have those notes. As I previously stated, I do not normally bill for all of my actual billable time because criminal cases are not about billable hours, but justice and enforcing criminal laws. So, if you want me to provide you with only a summary of my billable hours, then, I will continue to compile and review and locate those documents so that you may have my current running log of billable hours. At this point, your initial request was for billable logs and invoices, and thus, I will create a billable log and bill you for the time to locate those records (minus the initial hour), and bill you for the time to excise information (minus the first hour) and provide you with a copy of any invoice. If I am incorrect in my understanding of your open records request, please provide further clarification.
Thank you.
Kathleen K. Murray
Wells County State’s Attorney
700 Railway Street N # 325
Fessenden, ND 58438
kmurray@nd.gov
phone (701) 547-3885
fax (701) 547-2536
Please note NO PO BOX and new email
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