Chair Carol Ronning Kapsner called the business meeting of the Judicial Conference to order at 1:45 p.m. on June 13, 2013. Sally Holewa, State Court Administrator, called the roll:
Gerald W. VandeWalle
Dale V. Sandstrom
Mary Muehlen Maring
Carol Ronning Kapsner
Daniel J. Crothers
John C. McClintock, Jr.
Michael G. Sturdevant
Lawrence E. Jahnke
Joel D. Medd
John E. Greenwood
Bradley A. Cruff
Thomas E. Merrick
John T. Paulson
John C. Irby
Sonna M. Anderson
Cynthia M. Feland
Bruce B. Haskell
Dann E. Greenwood
William W. McLees
Gary H. Lee
Douglas L. Mattson
David W. Nelson
Joshua B. Rustad
DeNae C.H. Kautmann
Allan L. Schmalenberger
Wayne K. Stenehjem
Clerk of the Supreme Court
Members of the Bar
Michael F. Daley
Steven J. Lies
Sherry Mills Moore
A quorum was declared and the business meeting proceeded.
Roll call was taken. A quorum was declared and the business meeting proceeded.
Judge Paulson made a motion to approve the minutes of the November 19, 2012 meeting. The motion carried and the minutes were approved.
Chair Kapsner advised the members that the annual report of the Pattern Jury Instruction Committee was included in their conference folder. The report was included for informational purposes and no action is required.
Chair Kapsner next called on Justice Sandstrom to deliver the report of the Committee on Legislation. Justice Sandstrom began his report by acknowledging the contributions of his fellow committee members, Judge Irby and Judge Mattson, and the efforts of Jim Ganje who served as staff to the committee. He acknowledged Judge Hagerty for the weekly legislative updates she compiled and published throughout the session. The committee met weekly during the session to review legislation. The committee drafted two bills, SB 2198 and SB 2227, and worked for their passage. He acknowledged Senator Carlisle as the primary sponsor of SB 2227, the post-conviction relief bill, and Senator Miller as the primary sponsor of SB 2198, the bill on fitness to proceed evaluations, and Judge Reich for providing testimony in support of the bills. Both bills passed and he explained the changes that were made. Following the presentation on the bills, he encouraged the members of the Judicial Conference to consider future legislative changes and to contact members of the Committee on Legislation with their suggestions. The goal is to receive suggestions far enough in advance that the Committee can do the necessary research and bill drafting to bring proposed changes to the Judicial Conference for consideration at its June meetings in even-numbered years.
He then called upon staff attorney Jim Ganje to provide a summary of other legislation affecting the judiciary.
Following Mr. Ganje's presentation, Chair Kapsner opened discussion on the judicial re-districting plans that are currently out for comment. She explained that she served as Chair of the Judicial Planning Committee, and said the Judicial Planning Committee used several criteria in crafting its recommendation for re-districting. Those criteria included (1) general parity of caseloads; (2) population projections; (3) impact on travel; (4) location of community services; and (5) impact on county offices and services. She stated that she was gratified by the high degree of satisfaction for the services received and the judicial officers performing them that were included in the comments being submitted to the court. However, the Judicial Planning Committee's responsibility is to focus on what will be good for the court in the next 5 10 years. A responder system was put in place and participants were asked to vote on five questions regarding the plans.
The questions and percentage of responses received were:
Q.1: Which re-districting plan do you favor?
Q.1 Response Table:
A. Option 5 4%
B. Option 5A 17%
C. Option 5B 13%
D. All of the Above 29%
E. None of the Above 35%
Following the tally of the vote, Judge Hovey stated that he favors Option 5 because it leaves Foster County in the Southeast Judicial District.
Q. 2 Which re-districting plan do you oppose?
Q.2. Response Table
A. Option 5 14%
B. Option 5A 0
C. Option 5B 3%
D. All of the Above 31%
E. None of the Above 52%
Following the tally of the vote, Judge McCullough noted that while the vote total is significant, it does not measure the intensity of feeling behind the vote. Judge Haskell indicated that he voted against Option 5 because it would leave Kidder County in the South Central Judicial District.
Q.3 What benefits are provided in the plans? (Note: respondents were limited to one choice)
Q.3. Response Table
A. Better Election Districts 17%
B. Parity of Woork 41%
C. Better Travel 10%
D. Recognition of Population Shifts 10%/
E. Other 7%
F. No Benefits 14%
Following the tally of the vote, Judge Nelson said that he likes the idea of splitting the Northwest Judicial District because it recognizes the shift in population and work. Judge Foughty said that parity of work is an important factor, but the weighted caseload numbers should not be the deciding factor on re-districting. He said with the growing caseload in the west, any shift of resources that direction will be consumed by the western-most counties. Instead, the court should be thinking about shifting work from the west toward the east where it is unlikely there will be a major increase in caseload in the foreseeable future. Chair Kapsner noted that the Judicial Planning Commission reviewed population data from North Dakota State University Data Center and took the trends into consideration when developing their recommendation to the court. Judge Foughty also said the court should be looking at location of other services and how access to them would be affected by re-districting. He cited examples of counties using different treatment centers and jails and the potential impact if counties are moved to another district.
Q.4 What problems are created by the plans? (Note: respondents were limited to one choice; the "Other" option was treated as a vote for "none")
Q.4. Response Table
A. Unnecessary Change 20%
B. Service Interruptions 4%
C. Availability of Other Services 36%
D. Other 32%
Following the tally of the vote, Judge Sturdevant said that shifting his counties to the Northwest Judicial District would not really be a benefit to Minot because he would be bringing all of his work with him. The only benefit would be one more judge to handle conflict cases. He said all of his work is to the east and by moving him to the Northwest Judicial District he would now be pulled between servicing counties to the east and to the west. Judge Foughty acknowledged that re-districting plans should not be based on personal qualities of individuals, but he stressed that Referee Dale Thompson is an expert on the Indian Child Welfare Act. Taking him from a district that includes a reservation would be a significant loss to the Northeast Judicial District. Judge McClintock said that he has spoken to Rep. Nelson and Rep. Nelson was unaware that the court was considering re-districting. He said that Rep. Nelson was upset because the legislature addressed our needs by giving us the three judges we asked for so re-districting should be unnecessary. Chief Justice VandeWalle replied that he had told the legislature that we were reviewing re-districting plans. He said the legislature's response to our request for more judges was to ask what the court was doing to resolve its issues. In response to a question, Chair Kapsner said the Judicial Planning Commission took into consideration that the court could get zero to three new judges and developed its recommendation with those variables in mind. Judge Lee said that he voted for Other because creating a new district will result in a substantial increase in administrative costs. He said that an assistant trial court administrator would be hired and the cost would be more than the cost of hiring three deputy clerks. In response to a question, Chair Kapsner said that in making its recommendations, the Judicial Planning Committee did not anticipate increasing administration staff. Judge Hovey requested that the court consider the election cycle in the timing of any new re-districting plan.
Prior to posing question number 5, Chair Kapsner called upon Judge Jahnke to present a re-districting option developed and recommended by the Unit One judges. Judge Jahnke said that he and Judge Foughty had reviewed the report of the Judicial Planning Commission and the re-districting plans presented to the court and they worked together to develop an alternative plan. The alternative plan has been designated Option 6 and copies of the plan were distributed to the members. Judge Foughty pointed out that the copies of the plan were incorrect. Their plan was to leave Wells County in the Southeast Judicial District but the plan that was distributed reflects Wells County being moved to the Northeast Judicial District. He said that the caseload in the western half of the state is increasing rapidly and shifting counties to the west would exacerbate the issue. He suggested that the court consider shifting counties to the east where there is less of a caseload. Option 6 therefore was drafted with that shift in mind. Chair Kapsner noted that the weighted caseload numbers on the handout reflected Wells County moving into the Northeast Judicial District so they would not accurately reflect the situation if Wells County was left in the Southeast Judicial District. In response to a question, Judge Foughty said that in crafting Option 6, the judges were primarily interested in the Northeast part of the state, and they do not have an opinion on whether the Northwest Judicial District should be divided into two districts. Judge Foughty said that he would like to see the court issue a standing order so judges can work anywhere in their administrative units. He said this would address caseload issues without the disruption of re-districting. He said he believes the law requiring a 70/30 chamber designation should go. Chair Kapsner responded that the Judicial Planning Committee briefly considered the option of a standing order allowing judges to regularly work outside their district. The committee rejected this option because of a concern about separating election districts from service areas. North Dakota has chosen to have a system where people are entitled to choose the judge that will serve them and separating elections and work areas would defeat that intent. Judge Greenwood said that Option 6 adds three counties to the Southeast Judicial District and would add to the difficulty of serving the district. He said the service area is already geographically difficult to cover and this option would have Judge Narum travelling both east and west in order to cover the distance from Ashley to Wahpeton. He said judges chambered in Stutsman County currently have to cover counties to the south and to the east. With the proposed addition of these three counties, the judges would now have to travel west as well. Judge Nelson said he could support Option 6 if the option included splitting the Northwest Judicial District into two districts.
Following the discussion on Option 6, Chair Kapsner posed the remaining question.
Q. 5. If the Supreme Court decides to adopt a re-districting plan, which plan do you recommend? (Note: the "Other" option was treated as a vote for "Option 6" with the understanding that under this option Wells County would remain in the Southeast Judicial District and the Northwest Judicial District would be divided into two districts)
Q.5. Response Table
A. Option 5 0
B. Option 5A 25%0
C. Option 5B 7%
D. Other 68%
Following the tally of the vote, Judge Hovey said he favored Option 5A because it would leave Foster County in the Southeast Judicial District. He said this is important because the county is close to New Rockford and they use Tri-County Social Services. Judge McLees said he voted for Other but wants to be on record in favor of splitting the Northwest Judicial District. Judge McCullough said he voted for Other because the East Central Judicial District does not have a strong feeling on any of the re-districting plans, except that Judge Marquardt would like to see Steele County remain in the East Central Judicial District. He said he feels more strongly about the 70/30 chambering requirement than he does about re-districting. He said the court should work to get the chambering requirement changed. In response, Judge McClintock said he feels strongly about rural North Dakota, and he believes the 70/30 chambering requirement is important to safeguard the rights of rural counties. Justice Sandstrom provided the history of the 70/30 chambering requirement. He said it was enacted at the same time the legislature took out the requirement that judges have to live in the county where they are chambered. Attorney General Wayne Stenehjem said he was one of the sponsors of the 70/30 chambering requirement when he was in the legislature. He said the requirement was needed to gain the support of rural legislators for the court unification plan. He said it was intended to guarantee that rural counties would not lose judicial services because of the unification. He said since then, history has shown that the unified system has worked well and good judicial services are available everywhere.
In response to a question, Chair Kapsner said the supreme court has access to the records of the Judicial Planning Committee, but she will ensure that the court gets copies of the resolutions that were submitted to the Judicial Planning Committee.
Chair Kapsner then continued with the other items on the agenda. She advised the members that the presentation on the newly created position of Citizen Access Coordinator would be postponed until the next Judicial Conference meeting in November, but a brochure describing the new position was included in their conference folder.
Chair Kapsner opened the floor for nominations for the Chair-Elect of the Judicial Conference. Judge McCullough nominated Judge Bruce Romanick. The nomination was seconded by Justice Crothers who then moved that the nominations be closed and a unanimous ballot be cast for Judge Romanick. The motion carried and Judge Romanick was elected as the new Chair-Elect.
Chair Kapsner then passed the gavel to Judge McCullough as the new Chair of the Judicial Conference. Judge McCullough's first order of business as Chair was to present Justice Kapsner with a gift to recognize her service as Chair of the Judicial Conference.
There being no further business, the meeting was ended at 3:00 p.m.
State Court Administrator
Executive Secretary to the Judicial Conference