Commission to Study Racial and Ethnic Bias in the Courts
Radisson Inn, Bismarck
December 11, 2009
Members Present Hon Donovan Foughty, co-chair Justice Carol Ronning Kapsner, co-chair Brad Peterson Robin Huseby Leann Bertsch Lisa Jahner William A. Neumann Mike Nason Tom Trenbeath Scott Davis Hon. William McLees Rodney Olson Sinisa Milovanovic Hon. Michael T. Swallow Ulysses Jones Hon. Sonna Anderson
Members Absent Cynthia Lindquist Troy Morley Hon. Wickham Corwin Keith Richotte Sandi Tabor El Marie Conklin
Guest Chief Justice Gerald VandeWalle
Staff Andrea Collin
Minutes Andrea Collin
The meeting was called to order by Co-chair Foughty.
Welcome by Chief Justice VandeWalle Co-chair Foughty introduced Chief Justice VandeWalle to give a welcome.
Chief Justice VandeWalle said forming this Commission is a significant milestone for the state
of North Dakota and he thanked the Commission members for stepping forward to serve. He
said there is a tremendous opportunity in North Dakota to address racial and ethnic bias in the
court system, and that each Commission member is needed to bring this about. North Dakota is
increasing in diversity and the Court System needs to be aware of what is happening in
courtrooms. Since the news came out about this Commission being formed, VandeWalle said
many people have wanted to share their thoughts about this subject. He reminded the
Commission that this is not a general study of bias in the state, just in the North Dakota Court
System. In most cases, if legal action is brought, those cases come to the courts. He said he
"wants our house to be clean before we can work with other agencies and other branches of
government to addresses issues of racial or ethnic bias." VandeWalle asked for patience with
people who might come before the commission to express their concerns if it does not involve
the judicial system. He said there is outright bias that is easier to recognize than individual bias
which is more insidious and is more what he sees the Commission addressing. He acknowledged
that some may discover bias where they didn't think they would. He said he didn't expect a
report to recommend a perfect system, but one that brings some improvements, one that
improves the system in North Dakota. This Commission is not to be a witch hunt, either. The
state's Constitution is like the federal Constitution, which guarantees inalienable rights to our
citizens, and it guarantees access to the courts for all. North Dakota has made good strides over
the years with gender bias and VandeWalle said great improvements have been made. He said he
hopes for the same outcome with this Commission.
Introductory Remarks by Commission Members Co-chair Foughty asked all members to introduce themselves and to include their professional
Judge Donovan Foughty has been practicing law since 1983 and has been a judge since 1987.
He was a County Judge for Towner and Ramsey for eight years and is now a District Judge with
the Northeast District. He has been involved with the tribal courts of the Three Affiliated Tribes,
Turtle Mountains and Spirit Lake and has been an appellate court judge in North Dakota, South
Dakota and Nebraska, and through this work he has some acquaintance with Indian law issues.
Where he serves in Ramsey County and Benson County and Devils Lake, Indian jurisdiction
issues are something he deals with from time to time. He is a Devils Lake native and worked on
the planning committee for state courts, and court services, which addressed unification issues of
county and district counts. He believes there is a fascinating relationship between tribes and the
state that unfortunately is sometimes not always friendly.
Justice Carol Ronning Kapsner has been a justice of the North Dakota Supreme Court since
1998, and prior to that was in the general practice of law for 22 years in Bismarck. She said
Chief VandeWalle has been very concerned about this topic for a long time and she has attended
two national conferences covering race and ethnicity in the courts. For the past seven or eight
years there has been a road map on what other states have done with this issue, and North Dakota
is arriving pretty late to this process. She said she knows the Commission will benefit from the
talents of its members and their different perspectives. She has served on the Supreme Court's
State and Tribal Affairs Committee for eight years, where she has learned a lot from the
perspective of tribal courts and the state courts. Because the Supreme Court is somewhat
removed from the interpersonal interaction of the Tribal Courts, she believes there is a need for
input from people who are in the system constantly to help them understand what the deficiencies
Andrea Collin lives in Bismarck and is providing staff support for this Commission. She owns
a communications business and for many years has done work for the State Bar Association of
North Dakota. She has also worked with the North Dakota Supreme Court on other previous
Rod Olson is a trial court administrator from Fargo, who has been working in the field for 20
years. He previously lived in Minnesota, which addressed this issue in the 1990s. Fargo has
many new Americans there is a concern for their public access to the court system. To address
this, his office has produced an informational video and has translated it into five different
languages, Arabic, Bosnian, French, Spanish and Somalian. His office also has done training for
interpreters to give them a basic understanding of the court system and it is always looking for
other outreach efforts to make the court experience more understandable.
Sinisa Milovanovic is the director of New American Services for Lutheran Social Services of
North Dakota in Fargo. He said his agency is the only agency that resettles refugees in the state.
These people have experienced persecution in their own countries, and the government granted
them residency in the United States. His agency works on the receiving end, and not overseas as
far as processing and approving the refugees, but once approved LSSND provides services to
them for five years after their arrival, at which time they become eligible for citizenship. Some
of the countries from where refugees have come include Bosnia, Somalia, Sudan and Iraq.
Although his agency does not provide legal services, legal issues do come up through the case
management services and employment services it offers. He came to America from Yugoslavia
11 years ago, and was a refugee in Germany for six years before coming to Fargo. He has served
in his present position since 2005.
Scott Davis is the executive director of the North Dakota Indian Affairs Commission in
Bismarck. He is an enrolled member of the Standing Rock Sioux and Turtle Mountain
Chippewa tribes. Although he grew up in Bismarck he has been involved in his family's tribes
his entire life. He is familiar with both native ways and mainstream American ways, and in his
current position he is a link between non-native and native communities, whether it be
government, schools, or the court system. He enjoys the challenges of his work. Often legal
issues arise in his agency's work which he can't provide answers to. He is glad to be part of this
team and is interested in working with jurisdiction issues especially pertaining to child welf are,
and which tribe has jurisdiction in parenting issues. He also serves on the State Tribal Relations
Committee which held its first meeting two months ago. Court issues have already come up and
he is sure they will continue to arise with that committee. Whatever he can do to help to bridge
these gaps he is looking forward to doing
Bill Neumann is the executive director of the State Bar Association of North Dakota. He said
that while there are many places in the country where diversity is part of everyday life,
northwestern North Dakota where he grew up was at that time not one of these areas. There are
both good and bad aspects to that, he said. With this Commission there is an opportunity to
avoid some rocky patches here. He was in the private practice of law prior to being a district
judge for 13 years and a Supreme Court justice for 12 years.
Tom Trenbeath is the Chief Deputy North Dakota Attorney General in Bismarck. He was
raised in northeastern North Dakota, and because everyone is raised by a prior generation, in his
case he was raised by members of what is called the Greatest Generation. This has left his
generation with a legacy in a social climate where what they are predisposed to think is not
acceptable and it needs to deal with that. He grew up on a farm that raised sugar beets and had
migrant workers every year who would come from South Texas and Mexico. He says he is often
ashamed of the facilities and services that were allowed migrant workers during the years when
he was growing up. Following law school he worked for a major title insurance company in
Colorado for seven years. He then spent 12 years as a small town lawyer and was a municipal
administrator and lawyer for several more years. He served in the North Dakota State Senate
from 2000 to 2006 and has been in his present position since 2006.
Leann Bertsch is the Director of the North Dakota Department of Corrections and
Rehabilitation in Bismarck. She began practicing law in 1991, was a staff attorney for Legal
Assistance in North Dakota for four years, and then went to the Burleigh County States Attorney
for eight years. She was North Dakota's Commissioner of Labor for a short time before being
appointed to her present position. She grew up in the Red River Valley with a German
background in a Norwegian community. She had never met a Native American until she
attended college and law school. She sees the offenders in the Department of Corrections as a
reflection of sentencing decisions and legislative decisions that have been made. Many
Departments of Corrections across the nation have formed a committee to look at ethnic and
racial bias and if there have been disproportion or disparate sentencing issues, she believes there
is an obligation to look at them and make sure that these issues don't enhance or emphasize
decisions on locations, treatment and other issues that affect them. She said her department has
data to provide for some of the work of the Commission.
Judge Bill McLees is the presiding judge for the Northwest Judicial District in Minot. He grew
up in Watford City practiced law there from the time he was admitted to the bar in September of
1976, through 1982. It was during this period of time that he was the McKenzie county Justice,
which was a part-time position, and he practiced quite a bit of oil and gas law. He closed his
practice in 1983 when he became a county judge and then became a district judge in 1994.
While in Watford City, he served on the board of North Dakota Legal Services for more than 20
years. Over the years he also has had the opportunity to be an associate tribal judge on the Fort
Berthold Tribal Court in New Town. This allowed him the chance to broaden his horizons and
learn a new system, which he enjoyed. He has lived in Minot for the past seven years.
Judge Sonna Anderson is a Southwest District Judge from Bismarck. She grew up in
Bismarck, and attended law school in Denver in the early 1980s. This was a time when many
Spanish speaking people were being integrated into that area, and bilingual issues were very
prevalent. She practiced law with her father for 15 years and served on the Bismarck School
Board for 10 years, which dealt with many ethnic issues. She has been a judge since 2004. In
her court, she sees ethnicity issues spring up unexpectedly and is concerned that people who
come before her understand legal issues. She believes there is a long way to go to treat
everybody fairly because people from other countries come with many different experiences from
their legal process. She lived in Norway for one year to attend college, which gave her the
opportunity to experience a new culture and learn about issues from other countries.
Lisa Jahner is the Juvenile Justice Program Analyst for the North Dakota Association of
Counties in Bismarck. She works through contract with the North Dakota Division of Juvenile
Services in which she serves as the State's "Juvenile Justice Specialist" pursuant to the federal
Juvenile Justice and Delinquency Prevention (JJDP) Act. One of the mandates of the JJDP Act
is to address the disproportionate contact of minority youth with the juvenile justice system. In
doing so, she calculates and analyzes rates of minority contact with the juvenile justice system,
and works to implement innovative programming that will address the over-representation of
Robin Huseby is the director of the Commission on Legal Counsel Indigent Defense in Valley
City. She has been in her current position for the past four years, and prior to that was a Barnes
County States Attorney for 20 years. Her office provides services to about 9500 cases a year. She
was a member of the state's first Gender Bias Commission and says she knows what impact a
Commission such as this can have.
Judge Michael Swallow is an enrolled member of the Standing Rock Sioux and has been with
the Standing Rock Court for the past 17 years, where he is currently its Associate Chief Judge in
Fort Yates. He is also the Chief Justice of the Oglala Sioux Nation Supreme Court, an Associate Judge at Sisseton Wahpeton and an appellate justice at Turtle Mountain. His father is
from the Pine Ridge Reservation, and he went with his parents on relocation, a government
program that moved Indians off reservations and into cities. At a young age he lived in Denver,
California and Virginia. In those areas he experienced prejudice where he was spit on, shot at
and beaten up at a young age. He was often the only person of color in his schools. He
graduated from law school at the University of Denver in 1981. During his service in the Marine
Corps he was a JAG officer. In his 24 years with tribal courts he has represented border towns
and Native Americans. He has been involved in every tribal court in North Dakota and South
Dakota, as chief judge, prosecutor and tribal attorney. He has been a director for Dakota Plains
Legal Services for six years. He believes a prime example of bias in North Dakota today,
although it is not necessarily prejudice, is the UND logo issue. He hopes the state can get past
Mike Nason is with North Dakota Parole and Probation in Minot and is serving on the
Commission as a representative of the North Dakota Peace Officers Association. He has worked in law enforcement, for Ward County Corrections for three and a half years, five
and a half years for Bismarck Police. Prior to that, he spent 14 years working at the North
Dakota Crime Bureau as a drug agent in Bismarck. While in graduate school he studied
sentencing patterns and has taught at Minot State University and United Tribes Technical
College. Among the research he did for his doctorate was surveying Standing Rock students on
suicide. Qualitative studies have always remained an area of interest and he has done a lot of
research on powerless groups, such as women, Native Americans and blacks.
Brad Peterson is with Legal Services of North Dakota, sitting in for executive director Jim
Fitzsimmons, who was unable to attend this meeting. LSND is a fairly new statewide legal
services program that is six years old and has offices in Minot, Bismarck, Fargo, at the Turtle
Mountains reservation, the Three Affiliated Tribes in New Town and the Spirit Lake reservation.
Last year his office processed just under 8,000 applications for services and served just over
6,000 people. Of these, 40 percent have been low-income Native Americans. Three years ago
LSND started an Immigration Law project in Fargo which continues. He has been with LSND for
seven years and prior to that was at Standing Rock legal services for eight years, where he still
teaches business law. He hopes this Commission addresses the criminal aspects of the court
system and would like to see children included in its work, too.
Ulysses Jones practices law in Devils Lake. He is a Houston native and attended college in
Minnesota before graduating from law school in Houston in 1976. Following law school he did
a one-year clerkship at the Texas State Appellate Court and was an in-house attorney for an oil
company in Houston, where he practiced labor law and defended the company in discrimination
charges in court. In 194 he moved to Seattle, Washington, and worked in a law firm specializing
in construction management. He then took a break from law and farmed in the Devils Lake area
for a few years. Now back practicing law in Devils Lake, he handles a lot of criminal defense and
child custody cases.
Chief Justice VandeWalle again thanked the members for their service on this Commission. He
said while growing up his family was Belgian and an ethnic minority in his community. He said
it is human instinct to divide and to create a bias and that is something that concerns him.
Co-chair Foughty encouraged Commission members to send someone to future meetings on their
behalf if they are unable to attend.
"Race: The Power of an Illusion: The Difference Between Us" The Commission viewed segment of a video documentary on "Race: the Power of an Illusion:
The Difference Between Us." Justice Kapsner said she has viewed this documentary and
believed the Commission would benefit from also viewing it. She said this shows how many
discrimination issues are truly societal.
Following the documentary, the Commission was served lunch, and then reconvened at 12:35
Discussion on work of the Commission Co-chair Foughty said he has prepared an outline for the Commission based on what had been
prepared by the Nebraska Task Force. It will be sent to Commission members for their input
prior to the next meeting. He said there are many reports from previous commissions in other
states that will be useful for the work of this group.
He said Dr. Elizabeth Neeley, who is the project director at the University of Nebraska Public
Policy Center for its Minority and Justice Implementation Committee, has been invited to the
Commission's January 22 meeting to speak on the work of the task force in her state.
Co-chair Foughty led a discussion on what members would like to have part of the work of the
Judge Swallow asked for a definition of what the term "judicial system" entails. Co-chair
Foughty said he believed for the purpose of this study the judicial system begins when a person
enters the courtroom and ends when a judgment is filed.
Huseby said her office is willing to support the work of the Commission through surveys.
Davis and Judge Swallow both expressed the view that there is a perception of unfairness with
people of color and who believe that the system is against them.
Justice Kapsner said the Commission needs to define what kind of information it wants to gather
and who should be asked. Peterson suggested that the state's outstanding tribal colleges could be
helpful in this process, as well as the criminal justice programs at Minot State University and the
University of North Dakota.
Co-chair Foughty said one subcommittee might work to set up a focus group in each of the five
Indian nations in the state, and in Fargo for other ethnic groups. Justice Kapsner said the state
penitentiary is also an option that should be considered. Bertsch said a bias should be expected
from anyone interviewed at the State Pen.
Davis said some of the groundwork for this type of information gathering has already been laid at
the Tribal Relations Commission through his office.
Nason suggested using a mixed method approach of surveying people where recurring theme will
emerge and then further research can be done into those themes.
Olson said Minnesota courts asked people what race they were when they entered the court
systems and put in the case management system. Although this was controversial, it is good
information to have when studying sentencing data. He said Minnesota courts also had a survey
at office reception desks where people in the court system could share their thoughts on how they
thought they were being treated in court that day. The survey also offered a multiracial option for
people fill out for their ethnicity.
Judge Swallow said it would be good to gather data on the ethnicity of the employees presently
working in North Dakota's judicial system.
Co-chair Foughty said he also would like to see a review of the state's bail bond schedules and
how Native Americans living on reservations fit into that. Peterson and Jahner suggested a
review of the use of handcuffs and shackles in the court systems, especially as it relates to
juveniles, and who in the courtroom makes the decision on their use - sheriffs or judges. Jones
said the use of shackles can be an actual or perceived bias in the courtroom.
Justice Kapsner said that most Commissions have surveyed the lawyers in their states and this is
something to consider doing. She and Davis commented that some states like Arizona and South
Dakota both include questions on Native American jurisdictions. She said because North
Dakota's bar exam is a national uniform exam, it does not have those questions, but efforts are
being made to get Native American questions on the national exam.
Co-chair Foughty asked for input on the design of the preliminary and final reports on the
Commission. Some comments were about the comfort level people have about entering
courtrooms outside of their communities, especially with Native Americans coming to a
courtroom outside of the reservation and white people entering a Tribal courtroom. Also, there
needs to be a decision about to whom the report will go to - which could include Supreme Court,
legislators and others setting public policy. And, when it is an appropriate time to hold public
meetings also needs to be determined.
Huseby said because her agency is so new with its case management system it could be gathering
the data the Commission could use in its work. Co-chair Foughty suggested gathering race
information would be helpful. Others questioned if by asking a question about race would imply
perceived inequity right away, or if by keeping this data anonymous it would be acceptable.
Tracking dispositions as they relate to race and ethnicity was also discussed, along with the need
to consider the criminal history of each person. Bertsch said her agency can get fairly good data
on case types and criminal data. Peterson said his agency also can take a lot of this information
as part of its screening during its intake process. Co-chair Foughty asked Peterson if he could
provide a list of what data could be collected. Bertsch suggested that state universities be
considered to analyze this data once it is collected.
Relating to the court system hiring staff that shows a racial mix, Bertsch said Federal regulations
require that her agency collect that data, while others said they have difficulty in hiring non-Caucasians because so few apply for the jobs. Milovanovic said it would be important to gather
data from people going through the system as to how they were treated by court employees.
Judge Swallow suggested states attorney offices should also be included.
Co-chair Foughty said forming subcommittees will be further discussed at the January 22