Commission to Study Racial and Ethnic Bias in the Courts
Wellness Center Healing Room
United Tribes Technical College, Bismarck
March 23, 2012
10:00 a.m. Call to Order.
Hon Donovan Foughty, co-chair Justice Carol Ronning Kapsner, co-chair Hon. Sonna Anderson Leann Bertsch Scott Davis Meredith Vukelic for Jim Fitzsimmons Prof. James Grijalva Ulysses Jones Dr. Erich Longie Hon. William McLees Sinisa Milovanovic Mike Nason Ross Munns for Rod Olson Tom Trenbeath
Griselt Coral Andrade Hon. Wickham Corwin El Marie Conklin Tom Disselhorst Robin Huseby Lisa Jahner Justice Mary Muehlen Maring Troy Morley William A. Neumann
Hon. Michael T. Swallow
Co-chair Foughty called the meeting to order at 10:10 a.m.
Members introduced themselves to Ross Munns, attending in place of member Rod Olson.
Co-chair Foughty asked for approval or corrections to the January 20 minutes. Sinisa
Milovanovic moved to approve the January 20th minutes. Judge Anderson seconded and the
motion carried unanimously.
Staff explained the agenda, saying that the goal for the first few items was to get through the
sections of proposed findings and recommendations, as well as examples from other states that
were not covered in the previous meeting. Discussion should concentrate on development of an
initial working list and deciding what kinds of recommendations would be included, based on
content. Staff said that later agenda items called for review of proposed recommendations and
findings in deeper detail, looking issues such as editing and composition. Some
recommendations were suggested by editors during a review meeting, and have not been
discussed previously by the Commission as a whole. These appeared in the relevant documents
in bold font.
Members discussed findings and recommendations for the “Civil Justice” and “Attorneys and
Court Employees” chapters, which were not reached in the previous meeting.
Members suggested changes to a civil finding that minorities disproportionately rely on LSND,
to make the notion of disproportion relative to the general population clearer. Judge Anderson
also suggested that the findings and recommendations should state that levels of self-representation will most likely grow, despite being extremely small.
Dr. Longie said that recommendations to educate Native Americans are good, but the problem
goes both ways. Recommendations should also cover the judicial system and service providers
and shed light on why Native Americans lack trust in the courts. He added that overcoming
prejudice and bias requires significant a specific focus on the part of courts to reconsider their
understanding of Native Americans. Dr. Longie referenced a website called lastrealindians.com,
which included information about how Native Americans feel when leaving reservations, as a
good approach to increasing understanding. Justice Kapsner said that maybe this kind of a
recommendation should be general rather than appearing in different sections, as it does.
Staff pointed to two general recommendations that appear on the Commission’s list that could be
relevant and asked whether more specific information should be added. Staff said that the
general recommendations included diversity and cultural training for all judges and court
employees at the time of their hiring and at interval periods. Additional general
recommendations called for community outreach initiatives to broaden public access and
improve public understanding of the legal system. Members made several suggestions, which
were incorporated into the recommendations.
Scott Davis suggested putting a timeframe on the recommendation relating to cultural training
for employees and members agreed. Members suggested annual or biennial training could be
appropriate. Sinisa Milovanovic said that each chapter section could contain a reference to
general recommendations, noting that they apply throughout.
Dr. Longie questioned how recommendations would be interpreted. He said that the
Commission’s report and recommendations are a broad self-examination of the system, and that
this should be clear throughout the report. Judge Anderson added that training recommendations
should be sure to include all individuals in court.
Dr. Longie referred to past presentation for judges on intergenerational trauma as an example of
sorting through difficult problems involved in training. Staff inquired whether Dr. Longie knew
some appropriate organizations that might be able to provide adequate training to the courts. Dr.
Longie replied that he could provide several groups.
Mike Nason said that law enforcement is one group with large impacts on minority groups, and
the Commission could include a recommendation that new officers should have exposure to
cultural issues, perhaps as a general recommendation. Justice Kapsner noted that the
Commission received a great deal of testimony regarding law enforcement. Staff added that
many other state reports and secondary studies direct recommendations toward law enforcement.
Scott Davis said that there are particular issues with law enforcement, including jurisdictional
issues and cross-commissioning officers, which could benefit from recommendations. He added
that recommendations should include organizations that have a lot of contact with minority
groups, such as Game and Fish, the State Highway Patrol, and others. He said that there are also
many issues related to sovereignty and perceptions of sovereignty.
Professor Grijalva said that it is not possible to understand an indigenous person’s perspective
only by getting background information from a few people while ignoring the larger history.
Most of the time, schools do not provide a sense of minority experiences and history. Real
historical information and context needs to be conveyed in order to facilitate an understanding of
race and bias issues. Scott Davis agreed that part of the problem is historical and contextual
misunderstanding. Members said the forth general recommendation, on diversity and cultural
training for all judges and court employees, to state that the Commission on Judicial Branch
Education should cooperate with groups to provide such education. Members also agreed to
include language about historical issues.
Members discussed the appropriate level of specificity for the Commission’s recommendations.
Professor Grijalva said that most of the Commission members have probably not gone back to
organizations yet to specifically discuss the cooperation called for in some of the proposed
recommendations. He said that, given this, the Commission should keep recommendations
general enough to preserve flexibility. Members discussed changes to the existing
recommendations to facilitate this.
Judge Anderson said that two of the proposed general recommendations, describing
collaborations for community outreach initiatives and programs to increase court accessibility,
were similar enough to be combined into a single recommendation. Justice Kapsner said that the
recommendation should add ‘state and county governments’ to collaborating groups. She
suggested that the two recommendations, as modified, appeared sufficiently distinct to remain
separate. Ulysses Jones said that terminology in these recommendations should refer to
understandings of ‘legal issues’ rather than the ‘legal system,’ since the term is broader and
covers the public need for more general information. Members agreed that the recommendations
could include both terms.
Returning from the general to the civil recommendation section, Judge Anderson asked members
how the courts would go about publicizing LSND material as indicated in one of the proposed
recommendations. Justice Kapsner said that court publicizing probably could only occur on the
court website. Samantha Miller and staff said that often, recommendations from other task
forces have been broad, relying on implementation committees to further define the issue and
generate possible solutions.
Dr. Longie said that one potential problem with broad recommendations is that if they are too
open, nothing gets done. He added that recommendations should create a means for judges to
provide outreach to the public, such as the idea discussed in previous meetings regarding having
judges on tribal radio to present information and take calls. Justice Kapsner said that, in addition,
recommendations have to be directed beyond only judges.
Tom Trenbeath said that SBAND should be included as civil recommendation calling for
collaborations between the courts and the UND School of Law to provide awareness of LSND
materials on legal subjects. Samantha Miller and Justice Kapsner suggested a change in the
recommendation’s language to read “materials on various legal subjects compiled and
maintained by LSND.”
Dr. Longie said it would be important to get judges’ offices to promote brochures, but handing
out brochures is not all the Commission should recommend. Justice Kapsner said another
recommendation could call for exploring having education programs or meetings for judges at
tribal locations. Dr. Longie said that having such programs, especially a radio call-in program,
would have a good effect. Judge Foughty said even discussing traffic stops and searches could
be useful. Many people do not know that they can refuse a search of their vehicle, and if a police
officer has legal authority, he will search it regardless.
Judge McLees asked whether the Commission should recommend the development of an
ombudsman whose job would be to provide assistance and notice to minorities and other
members of the public. He said that clerks should not have to do the kind of distribution and
general legal question answering the recommendations suggest. In response to questions from
several members, Justice Kapsner explained the proposed ombudsman position as a link between
Native Americans and other minorities and legal system. Justice Kapsner and Judge Anderson
agreed, stating that some legal questions do not really require legal advice or attorney to answer
them, but are only general direction or information. Dr. Longie emphasized the need for
providing clear information and said that an ombudsman position would have the advantage of
not taking up significant amounts of judges’ time. Judge Anderson said that any
recommendation adopted should be to explore recruiting someone for such a position.
Dr. Longie commented that understanding Native American perceptions upon crossing the
reservation line can be difficult. Mike Nason pointed out that part of the perception goes right
back to the role and effects of law enforcement. Justice Kapsner said that judges should provide
educational opportunities on Indian reservations on a regular basis.
Judge McLees said that a recommendation on expanding the geographic reach of LSND services
could be removed, but a second recommending the bar promote the expansion of legal services
resources to facilitate minority access to courts and a third recommending an increase in state
funding for legal services should remain. Justice Kapsner and Tom Trenbeath said that the
recommendation for increased funding of LSND could be a main recommendation noting the
need for greater geographic reach. Members agreed and redrafted the recommendation.
Justice Kapsner said that another discussion should occur to better sort out how funding would
work. In addition, the combined recommendation should be re-worded to indicate that the courts
should encourage LSND to find ways to expand geographically. Judge Foughty and Judge
McLees said members should wait to settle the language of the LSND recommendation until Jim
Fitzsimmons can attend.
Judge Foughty said that a recommendation that courts should facilitate more unbundling legal
services to the public, worded as proposed, meant that the courts need to be on board with
unbundling and sufficient education needs to be provided to the public. Judge Anderson said
that she was uncomfortable with the language indicating ‘services facilitated’ as far as the court
role in unbundling. Professor Grijalva said that the recommendation appears to assume a self-represented person with only limited help from attorneys. Members said that certain necessary
elements, such as a good form contract have to happen to make sure that the scope of attorney
representation is clear. Attorneys need to see that courts will understand and accept limited
representation. Tom Trenbeath asked about the state of the rules related to unbundling. Judge
Foughty said that the relevant rules have been reviewed and are already in place. Members
agreed on several language changes to the recommendation.
Justice Kapsner said that the Commission should keep a recommendation calling for education
for attorneys and the public through SBAND, since levels of self-representation, though small,
are growing and will probably be an issue of future concern. This would include unbundling
issues. Staff said that he received data from the State Court Administrator that included
individuals who self-represent, but not by race.
Justice Kapsner said that the discussion was moving toward the question of whether the courts
should collect general race information in the area of civil justice. Judge Anderson suggested
combining a suggested recommendation to gather data on all of civil justice, another on methods
of data collection, and a third recommending a specific of fee waivers. Members agreed to
combine these recommendations for civil data collection.
Judge Anderson said that data collection could proceed with a disclaimer and a description of the
study purpose. Ulysses Jones added that the recommendation for such data collection would be
acceptable, as long as responses are not mandatory. Mike Nason said that for such self-reported
data, the study should make sure allow the individual to mark as many categories as apply, and
then let analysts sort out the responses afterward, categorizing individuals who select more than
one group as “mutli-racial.” This would better allow for the same standard to apply to all
individuals. Members also accepted a recommendation based on a report from the Mediation
Pilot Project, calling for recruitment of a Native American mediator to help provide insight into
issues specific to Native Americans.
Judge Foughty explained a proposed recommendation stating that “Courts should develop
National Center for State Courts domestic violence protection order (PASSPORT).” He said that
PASSPORT is a universal protection order developed by the National Center for State Courts in
order to provide a consistent protection order. Ulysses Jones said that there should be a better
explanation as to why this is applicable than what appears within the recommendation, perhaps
within the actual text of the report. Judge Foughty said that PASSPORT would provide an
opportunity for more uniformity with tribes. Judge McLees agreed that PASSPORT provides a
superior form and would allow greater consistency than the current system.
Judge Anderson, returning to the discussion of an ombudsman position, moved to include an
appropriate recommendation in the Commission’s list. Ulysses Jones seconded. Samantha
Miller mentioned that Montana used to have a similar position, but it recently lost funding.
Sinisa Milovanovic and Judge Anderson said that members heard testimony at the United Tribes
public meeting from a Native American from Canada about an ombudsman present in all
Canadian courts on days of first appearances to explain court processes and issues to minorities.
The motion for development of an ombudsman position carried unanimously.
Judge Anderson suggested that one of the examples from other states, encouraging local courts
to develop outreach programs for access to the courts by tribes and non-English-speaking
people, should also be included in the Commission’s list. Judge Anderson moved to include a
version of this example recommendation in the Commission’s list. Justice Kapsner seconded
and the motion carried unanimously.
Members discussed findings and recommendations in the Attorneys and Employees section.
Judge Anderson suggested that the recommendation for outreach just approved would also be
appropriate to appear in the Attorneys and Employees section. Professor Grijalva proposed
changes to findings on UND School of Law graduates and of attorneys practicing within the
state. Members re-drafted the recommendation with these changes. Members re-drafted a
finding on minority applications tracked with a recently-implemented computer program for
clarity, and combined it with a similar recommendation pointing to the low proportion of Native
Sinisa Milovanovic suggested general language changes to ensure that recommendations
addressed all minority groups rather than only Native Americans. Judge Foughty added that
recommendations should encourage “court careers” or “careers in the legal system” broadly
since they are not directed only toward attorney careers. Dr. Longie suggested changes in a
recommendation for partnerships between courts and other groups for the development of career
tracks for minority employees and education to minorities. He said that the recommendation
should be directed toward tribal colleges. Members agreed that language referencing “non-English speakers” should remain in the recommendations.
Judge Foughty said that language relating to the Color of Justice program appears in a
recommendation, but not in the report. Omitting this specific reference in the recommendation
or finding a way to put in the body of the report would remedy this.
Professor Grijalva said that the term “UND School of Law” should replace instances where the
proposed and example recommendations use “UND Law” or “the law school.”
Scott Davis suggested that more internships for minorities could be developed with the Supreme
Court and district courts. Professor Grijalva said that many such programs exist. Faculty
members have to make sure a new internship program provides a real educational experience
rather than just free labor or inactivity. Scott Davis said that, ideally, internships that would
provide training in areas such as ICWA. Professor Grijalva said that the Commission’s list
seems to cover this area with sufficiently broad language.
Leann Bertsch said that a recommendation indicating that SBAND should provide CLE
instruction regarding racial and ethnic bias for attorneys on an annual basis should be included
on the list. Members discussed whether the recommendation should indicate that the CLE
should be free. Mike Nason proposed re-phrasing the language to read “on an annual basis,
SBAND should provide CLE regarding racial and ethnic bias for attorneys.” Members agreed to
the suggested changes.
Judge McLees said that a recommendation indicating that “courts should provide instruction on
racial and ethnic bias and cultural competency training to all court employees” was sufficiently
expansive to cover training for all groups that were not included in recommendations from other
chapters. Tom Trenbeath pointed out that the recommendation used the term “cultural
competency,” which was not used throughout the report. Judge McLees said that “cultural
diversity” might be clearer than “cultural competency.” Members agreed to this change.
Members examined the list of example recommendations compiled from other states. Justice
Kapsner suggested including an example recommendation calling for cooperation with
community groups to encourage more minority attorneys to seek employment with the courts.
Members agreed to include this recommendation in the list. Judge Foughty recommended
removal of language about pursuing careers as judges from all of the listed recommendations.
He said that North Dakota has a very small total number of judges compared to the number of
bar members. Because of this, selection as a judge is mostly a matter of luck and being in the
right place when an opening occurs, and is not something that can really “pursued.”
Judge McLees proposed including an example recommendation indicating that tribal court
judges should be included as faculty in diversity training programs. Professor Grijalva added
that the Commission should include a version of an example from Nebraska recommending that
the courts and state bar should cooperate with the UND School of Law to promote clerking
opportunities for minority law students. Members agreed that the Commission’s list of
recommendations should contain modified versions of all of these example recommendations. Members returned to the general recommendations and agreed that those covering publication of
the report and implementation of recommendations, were adequate and self-explanatory. Judge
McLees said that, though the Commission has concentrated on recommendation content, the
document has to read well and need the recommendations and the support in the report text to be
clear to anyone wishing to read it. Members discussed future meeting dates. Staff said that since work on the report is substantially
complete and the remaining tasks involve editing recommendations and findings, there is no
compelling reason to do a bi-monthly meeting in May rather than simply scheduling a meeting
for April. Members directed staff to attempt to schedule a meeting in April, if possible. Members directed staff to look at the committee calendar, figure out potential dates for an April
meeting, and email members with the proposed dates. Members said that the next meeting
should cover all recommendations, now that the Commission has established a working list of