|Members Present |
Brian Neugebauer, Chair
Referee Bob Freed
Judge Richard Grosz
Justice Dale Sandstrom
|Members Absent |
Judge Zane Anderson
Judge John Greenwood
Municipal Judge Scott Griffeth
U.S. Magistrate Judge Karen Klein
Sen. Tim Mathern
Lisa Fair McEvers
Sen. Steve Tomac
Chair Neugebauer called the meeting to order at 10:00 a.m. He noted the lack of a quorum and suggested Committee members generally review the judges' comments concerning the Minnesota judicial improvement program and the possible changes discussed by the Committee, and then preliminarily discuss the mechanics of implementing an improvement program.
Chair Neugebauer said the judges' comments [Attachment C (May 3, 2002)] seemed generally positive, but clearly underscored the need to ensure confidentiality. He noted that if confidentiality is assured, then it appears there is support for an improvement program. The comments, he said, also seem to support a judge selecting anyone of the judge's choosing to review the survey data with the judge, a possible change to the Minnesota approach discussed by the Committee. He noted that the comments are divided with respect to who should receive the surveys when they are returned; although there was some support for the concept of using an independent entity to handle the survey results, also a change discussed earlier by the Committee. He observed previous Committee discussion seemed generally supportive of pursuing such an improvement program. He then requested further comments from Committee members concerning possible implementation of such a program.
Tom Kuchera reiterated his view that an improvement program is probably unnecessary, particularly since district judges are evaluated by the electorate when judges stand for election. However, he said, if a program is instituted, it should be limited to surveying lawyers and court staff as the Committee had earlier concluded and as indicated in the comments.
Evan Lips said he is unaware of any particular problems with district judges that would require an improvement program. He noted that if a program is established, it may be difficult to shelter the survey information from the press.
With respect to handling surveys, Brian Neugebauer said one possibility might be to have local staff designated by the presiding judge distribute the surveys. He said the survey responses might then be returned to someone within the Supreme Court for purposes of compiling and summarizing the responses and sending the summaries to the judge and reviewer. Involvement at the Supreme Court level, he said, would have to be narrowly defined to minimize the number of people involved and ensure confidentiality. After review of the summary results, he said, the summary retained at the Supreme Court level would be destroyed.
Judge Grosz wondered whether it is necessary to require the judge to select a reviewer. Perhaps, he said, the selection of someone to review the survey results with the judge should be left to the discretion of the judge. The judge, he said, may want to review the summary information without the involvement of another person.
Brian Neugebauer said there is value in having the summary information reviewed with the judge by another party, although he agreed the judge should likely have the option of determining who that reviewing party is. He said if the judge were allowed to review the summary information without the involvement of another person, then a mechanism would have to be in place to ensure the judge returned the information so that it could be destroyed.
Justice Sandstrom said the Minnesota judges had indicated at the Committee's March 15 meeting that the summary is sent to the reviewer to be reviewed orally with the judge. The judge, he said, may take notes of the discussion but does not receive a copy of the summary. He said the concern about a judge receiving a copy of the summary seemed to be that it might be more likely that the judge could then be pressured to disclose the summary contents, perhaps in an election campaign for example. The purpose of the Minnesota program, he said, was to ensure that judges receive objective comments based on respondents' knowing the process is entirely confidential. He said if there is a possibility that the survey summary could become public, it may compromise the willingness of people to respond candidly to the survey.
Judge Grosz observed that if there is complete confidentiality with respect to process and documentation, then a judge could not use the survey information in, for example, an election campaign. He said the judges' comments on the Minnesota program seem to support a broadly focused confidentiality requirement.
Wayne Sanstead noted there is a corollary to judicial improvement programs in the education field. He said mentors are available to talk with teachers and review their teaching practices and approaches in the classroom. With respect to the need for a judicial improvement program, he said he tended to agree with Tom Kuchera and the comment submitted by Judge Wefald. Judge Wefald, he noted, questioned the viability of an improvement program because elections serve as the most important evaluator of judicial performance.
Referee Freed observed that a properly implemented improvement program could be a real benefit to judges who may have a bad courtroom style. He explained that judges have been defeated in recent elections and their defeat seemed attributable, in part, to dissatisfaction with the judges' demeanor and judging style. An improvement program, he said, could serve as a valuable tool to inform judges of the need to modify their practices before they become an election issue. However, he disagreed with the proposal to distribute surveys only to those attorneys who regularly appear before a judge. He noted that a negative perception of a particular judge may be shared by more lawyers, perhaps by word-of-mouth, than just those that appear regularly before the judge.
Brian Neugebauer suggested the survey could be sent to every attorney that appeared at least once before the judge within a certain time period.
In response to a question from Referee Freed concerning whether referees would be included in the improvement program, staff said the Committee had previously concluded that referees would not be included because the number of attorneys appearing before a referee is very limited. The concern, he said, was that the identity of attorneys responding to the survey could therefore be too easily determined. Justice Sandstrom suggested referees could be afforded the option of requesting to participate in the improvement program.
With respect to a method for handling survey results and containing associated costs, Brian Neugebauer wondered whether there was a person or position at the Supreme Court level that could be made available to receive and summarize survey results. Judge Grosz cautioned that the degree to which state or local administrative staff are involved in handling survey information will pose a significant issue for judges with respect to ensuring confidentiality and anonymity. Justice Sandstrom observed that if the right kind of outside entity is identified to manage the survey information, costs could probably be kept within reason. Additionally, he said, there is likely an advantage to involving someone not connected with the judicial system and who does not know the judges and personnel involved in the surveying process. He said involvement of someone within the court system may be perceived as posing a risk of personal sentiment coloring the summarizing of survey information. It would be worthwhile, he said, to attempt to locate an outside entity to handle the survey information; and if the costs became excessive, the approach could be reevaluated. Wayne Sanstead agreed the idea of using a third party neutral is worth pursuing.
Judge Grosz noted with respect to the initial stages of the survey process that the presiding judge of the judicial district could designate someone to gather names of those to be surveyed and the surveys could then be distributed at the district level. Brian Neugebauer suggested the survey results could then be returned by the respondents to the neutral compiler, who would then summarize the information and send the summary to the reviewer designated by the judge. After the process is completed, he said, the information would be shredded.
Brian Neugebauer recalled earlier Committee discussion concerning limiting the survey process to court staff and attorneys appearing before the judge. He noted a few judge comments questioned involvement of court staff and wondered whether the court staff community might be too small to survey. Judge Grosz observed that the Southeast judicial district, in which he is chambered, has urban areas as well as rural and the judges work with a variety of clerks of court offices. As a consequence, he said, judges would not likely know who is responding to particular surveys.
Tom Kuchera wondered why court staff should be surveyed. Judge Grosz responded that because judges regularly work with and rely upon clerk of court staff, there is a need to know if changes are needed in terms of personnel relationships and staff improvements.
Referee Freed reiterated his suggestion that more attorneys than just those appearing regularly before the judge should be surveyed. He noted that attorneys, including those that appear infrequently before a judge, may make a decision on whether to demand a change of judge based on how that judge is perceived generally in the legal community. It is important, he said, that a judge be informed of any perceptions that may be shared by lawyers generally, as opposed to only those that appear regularly before the judge. Justice Sandstrom noted there may be a greater likelihood of receiving a response if the lawyer is selected based on frequency of appearance.
In response to a question from Brian Neugebauer concerning which court staff or personnel would be included in the surveying process, Judge Grosz suggested court personnel, including county clerks of court, who have regular or ongoing contact with the judge should be surveyed.
Review of Draft
At the request of Chair Neugebauer, staff distributed for Committee review a draft administrative rule establishing a judicial improvement program (See Appendix). Staff explained that the draft was based nearly entirely on the Minnesota policy [See Attachment D (May 3, 2002)], with minor changes in wording and with variations previously discussed by the Committee. He said [bracketed] language relates to specific alternatives to the Minnesota language which the Committee should review, italicized language is language from the Minnesota policy that may be problematic for implementation in North Dakota, and the sections identified with an asterisk (survey management, selection of a reviewer, and use of an outside entity) are those based for the most part on previous Committee discussion.
With respect to Section 2, Application, staff noted that surrogate judges, judges of the Court of Appeals, judicial referees, and municipal judges would be excepted from participation in the program. Brian Neugebauer suggested the section be modified to allow referees to request participation in the program. Justice Sandstrom noted the reference to judges of the Court of Appeals is probably unnecessary since there are no permanent judges of the Court of Appeals.
Staff said the bracketed language in Section 3A, Implementation, indicates compilation and summary of survey results would not be handled by trial court administrative personnel. Judge Grosz suggested the language be modified to indicate the presiding judge would designate the personnel in each district responsible for managing the improvement program. Committee members agreed.
Staff noted the italicized language in Section 3B, which is from the Minnesota policy and refers to a judicial improvement committee maintaining a list of additional questions that could be used to supplement the minimum survey document. He said the language poses a question concerning whether there would be a separate entity responsible for maintaining such a list. Justice Sandstrom suggested, and Committee members agreed, the Judiciary Standards Committee should be identified as responsible for maintaining the supplemental list. Brian Neugebauer suggested the Committee should also be responsible for devising the initial survey forms and for modifying the forms thereafter.
Staff said the last sentence in Section 3B emphasizes that the surveys must elicit qualitative, non-numerical, rather than quantitative, numerical, responses. He said the language concerning quantitative, numerical responses is italicized for review because it seems to be an unnecessary description of the kind of responses that will not be elicited. It was agreed the language could be deleted.
Staff said Section 3C is Minnesota language describing how the lists of attorneys and court personnel to be surveyed will be assembled. He said language regarding random selection of names from the lists (lines 10-11) is bracketed for Committee review in light of whether there should be random selection. Committee members agreed all those on the lists should be surveyed and the bracketed language could, therefore, be deleted.
Staff said lines 11-16 in Section 3C is Minnesota language and concerns weighting the selection of persons to be surveyed based on the number of appearances, and identifying a minimum number of people to be surveyed. He said the language is italicized for review because of uncertainty about how it could be implemented. Following discussion, it was agreed the italicized language should be deleted.
With respect to lines 3-4 in Section 3C, Brian Neugebauer suggested that the lists of attorneys and court personnel to be surveyed should be generated only by trial court administrative personnel. He said allowing the subject judge to generate the list, as the language provides, may result in a list that is so short that confidentiality cannot be ensured. Committee members agreed the reference to subject judge should be deleted.
Staff said asterisked Section 3D applies to the mailing of surveys and the selection by the judge of the person or persons to review the survey information with the judge. He said the bracketed language on line 17 reflects the Committee's earlier conclusion that the surveys would be mailed at the local level to survey respondents. Justice Sandstrom said the reference to the judge not receiving or seeing the "original" survey document (line 19) is ambiguous in that it is the "completed" document to which the judge should not have access. It was agreed line 19 should be modified to refer to the "completed survey document."
Staff said asterisked Section 3E addresses the manner in which an independent entity would be used to compile and summarize survey information. The bracketed language, he said, identifies alternatives with respect to who would be responsible for contracting with the entity. He said the section would require that survey respondents return survey responses to the entity and would require the entity to then provide a summary to the reviewer selected by the judge. The last line of the section, he said, also requires that the summary separately reflect information provided by attorneys and court personnel.
Brian Neugebauer said requiring the summary to separately reflect information from attorneys and court staff may be a problem in areas where the respective survey numbers are small. He said separating the responses may make it easier to determine respondent identities. Justice Sandstrom suggested that, rather than require the separation, it may be more useful to provide that the summary "should" separately reflect information. The entity, he said, could then determine how best to summarize the information and ensure that respondent anonymity is preserved. Following discussion, it was agreed the last sentence should be revised to clarify that information should not be separated if the respondent anonymity is compromised.
Justice Sandstrom suggested, and Committee members agreed, that lines 24-25 of Section 3E should be modified to refer to the entity "transmitting survey summaries to reviewers", rather than to simply "distributing survey results".
Committee members agreed the Supreme Court should be identified as the entity responsible for contracting with the independent entity. It was also agreed that "may contract" on line 23 of Section 3E should be changed to "shall contract."
Staff said Section 4 is patterned after the Minnesota language and describes how often the survey process will occur. Brian Neugebauer wondered whether a limit should be placed on the number of additional surveys a judge could request. Committee members agreed the issue could be addressed if a problem arises in the future.
Staff then reviewed asterisked Section 5, which addresses confidentiality and is not based on the Minnesota language. Committee members agreed the third sentence in Section 5 should be modified to clarify that, after return of the survey summary, the entity will immediately destroy the summary and any related survey information.
Referee Freed asked whether the confidentiality requirement should also ensure that the judge maintains confidentiality of survey information provided to the judge. Committee members agreed a judge generally should not be able to divulge survey information. Brian Neugebauer said it may be necessary to address the situation in which a subject judge may wish to discuss something learned from the survey information with another judge. Committee members agreed Section 5 should be modified to clarify that the subject judge shall not publicly disclose information resulting from the survey review process. It was also agreed the section should be modified to clarify that the reviewer shall not disclose survey information to anyone other than the subject judge.
Chair Neugebauer said the draft would be revised for further Committee review. Justice Sandstrom suggested a conference call meeting would be sufficient to take action on the draft. Staff asked whether there would be any value in submitting the draft to the Judicial Conference for a short discussion at the June meeting, perhaps during the Conference's business meeting. Committee members agreed a review by the Judicial Conference would be helpful before taking final action on the draft.
Chair Neugebauer said the revised draft would be distributed by staff to Committee members for review. He asked that Committee members review the draft to ensure that it accurately reflects the Committee's previous discussions and the changes discussed at this meeting. He said he would review any suggested additional changes to determine how to proceed. The revised draft, he said, will then be submitted to the Judicial Conference for comment. He said a conference call meeting of the Committee will be scheduled to take final action on the draft in light of any comments received during the Judicial Conference.
There being no further business, the meeting was adjourned at 12:15 p.m.
Jim Ganje, Staff