Commission to Study Racial and Ethnic Bias in the Courts
July 23, 2010
Jack Barden Center
United Tribes Technical College
10:00 a.m. Call to Order
Hon Donovan Foughty, co-chair
Justice Carol Ronning Kapsner, co-chair
Hon. Sonna Anderson Griselt Coral Andrade Leann Bertsch Linda Catalano for Jim Fitzsimmons Tom Disselhorst
Robin Huseby Lisa Jahner
Ulysses Jones Dr. Erich Longie Hon. William McLees
Sinisa Milovanovic Troy Morley Mike Nason
William A. Neumann Rodney Olson Keith Richotte
El Marie Conklin Hon. Wickham Corwin Scott Davis Hon. Mary Marring Hon. Michael T. Swallow
Sandi Tabor Tom Trenbeath
Guest Donna Wunderlich
Co-chair Foughty called the meeting to order at 10:00 a.m..
May 21 Minutes Judge Foughty indicated that the 21 May minutes mentioned a State Tribal Court
Committee study on employment that had not actually been carried out. Staff said that
he had deleted these references after receiving previous comments from Judge Foughty.
Members suggested several other minor changes that Staff noted for correction. Rod
Olson moved to approve the corrected May 21, 2010 minutes. Troy Morley
seconded and the motion carried.
Research Committee Judge Foughty asked Staff for a report on the status of the Juror Survey developed in a
previous research committee phone conference and tested in Bismarck and Fargo.
Staff reported that the survey test went well overall, that there were a few minor format
issues and some questions that the research committee should consider dropping for lack
of relevance to the Commission's charge, and that the committee should consider a
phone conference in the near future to finalize the survey. The return rate of surveys was
around 50%, with one individual out of the 23 failing to fill out demographic
Staff also reported that questions regarding minorities in the initial jury pool, since they
relied on survey subjects' memories of events sometimes up to two or three days old,
failed to provide accurate, objective data on jury pool composition. Members discussed
this difficulty, pointing out that jurors were not aware that they should note pool
composition during the process itself, and, even if they were, this data collection
requirement relies on their assessment of a third party's race, which creates substantial
difficulties for data reliability. Staff indicated that some kind of 'front-end' data should
be collected for comparison with the sufficiently objective 'back-end' data regarding
racial self-identification of those jurors actually empanelled and surveyed. This kind of
front-end data would not only create a picture of the jury pool, but, if gathered over the
same time period as the juror survey, could also be used in comparison with objective
racial data and the perception data gathered in the survey to suggest patterns racial
disparity in the selection process, including the use of peremptory strikes.
Justice Kapsner expressed concern that the questionnaire composition avoid the
implication that race was a factor in deciding if an individual juror is qualified. Members
noted the short period of time of the survey should avoid the implication of race as a
factor in jury eligibility. Members also indicated that the survey should clearly state that
collected information was only for statistical purposes. Members questioned whether too
much information on the survey instrument would affect responses or whether the
instrument could fully inform the respondent on Commission activities, but Mike Nason
stated that explaining the Commission and its goals implies that the Commission has
already found a problem and want respondents' advice on how to fix it. This kind of
result does not fulfill the Commission's goal to study whether the respondent perceives a
problem in the first place.
Rod Olson stated that the current jury program would allow race data tracking once the
computer program is modified to print out the relevant reports.
Donna Wunderlich asked about the possibility of creating another survey for those
individuals struck, since these individuals represent another possible source for
perception of bias and are not covered in any of the Commission's currently discussed
data collection strategies. Judge Anderson pointed out the difficulty of catching struck
pool members before they left the court, but Rod Olson and Donna Wunderlich suggested
hiring extra bailiffs or utilizing clerks during the two month data collection period would
allow administration of a survey without significant budget impact.
Justice Kapsner asked about appropriate timing for the juror survey. Staff indicated that
this fall would be the best time to run the survey if the survey results are to be included in
the December interim report. Troy Morley suggested that September through October
would be appropriate, since there are few holidays and the period could be representative
of a typical season. Judge Anderson suggested that September 15 through November 15.
Rod Olson indicated that, since pools are developed four to six weeks before the trial
process, he would have to start modifying the computer program almost immediately for
a survey period beginning in September. Members stated that the Commission should
notify the Administrative Council before altering the jury qualification form to include
race data. Judge Foughty stated that he could propose the changes during the next
Administrative Council meeting, August 27. The Commission resolved to get any
preliminary work done before that approval date to be in a position to launch the study
during the September 15 to November 15 period.
Staff, following the work of other states, suggested developing a perception survey aimed
at the North Dakota Bar and court personnel. Sally Holewa indicated in previous
conversation that administering such a survey would be very easy for court employees,
since they are set up to respond to surveys through the "Zumerang" computer program.
Sally Holewa further stated that extending such a survey to the State Bar would not be
particularly difficult since the two instruments would be substantially similar and would
most likely only require the addition of questions designed to gather objective race data
throughout the Bar. Bill Neumann pointed to Sandi Tabor, who was unable to attend the
meeting, as a good source for developing the attorney survey, since she is the President
of the State Bar Association. He suggested developing questions and contacting her
before a 26 July meeting so she could include the questions on a Board of Governors
Survey to be approved that day. The Commission approved the action, deciding to
include two demographic questions with the Board of Governors Survey to help facilitate
later development of a single survey instrument for perceptions of the Bar and of court
personnel, rather than having to modify the instrument for the Bar.
Justice Kapsner agreed to contact Sandi Tabor to request inclusion of survey questions in
the bar survey.
In addition to discussions on jury issues, Mike Nason proposed an in person survey to be
carried out during the upcoming Pow wow. Such a survey would allow for gap-filling
regarding minority perceptions of the judicial system. Members generally approved of
the proposal. Justice Kapsner, concerned with timing and planning issues, suggested
running a small-scale test this year (2010) in anticipation of a full study next year (2011).
Tom Disselhorst concurred with this idea, stating that the survey could be tested this year
and that it would be possible to set up a booth specifically for the project, if necessary.
Meetings The Commission discussed the June 22nd and 23rd meetings in Fargo. Public attendance
was sparse, but the Commission acknowledged that the minority groups it sought to reach
in these meetings were the smallest, most disparate, and most difficult to reach. Despite
low attendance, however, the content gathered was comparable to that found in other
state reports, and content gathered from translators and other government employees
present provided a substantial amount of experiential evidence from individuals with
long term, day-to-day contact with the system. Written testimony emailed directly to
staff supplemented oral testimony during the Fargo meetings. The Commission
acknowledged Sinisa Milovanovic, Griselt Andrade and Rod Olson for their hard work in
putting the meetings together.
The Commission discussed planning for the next round of public meetings. Judge
Foughty suggested prioritizing meetings on the tribal college campuses with a view
toward gathering information from the largest minority groups for inclusion in the
interim report. He advised asking the tribal college presidents for advice on days in
September or October that would be appropriate and convenient for the public meetings.
The first priority meeting locations included Three Affiliated Tribes, Spirit Lake, Fort
Yates, United Tribes Technical College and Turtle Mountain. These meetings will be
similar in format to the Fargo meetings, but possibly at different times of day and days of
the week. The Commission hopes to have dates by early September
The Commission discussed ways to increase public participation and awareness in the
next round of meetings. Sinisa Milovanovic said that the most time intensive activity had
been translation and distribution of the multi-language posters, but that these would be
already available and could be modified to address future meetings by changing date and
location information. Linda Catalano said that a more individual intensive, in person
approach would increase effectiveness, and that greater distribution of information to
church and mosque elders might have increased public involvement. Judge Foughty
pointed to fear as a possible factor for non-participation. Ulysses Jones stated that he did
not perceive any sense of fear from those who attended the Fargo meetings, but he could
not know the number who chose not to attend at all out of fear.
Dr. Longie said that he has produced blogs on his website regarding the Commission and
intends to do so regarding the meetings, but that one of the best ways to advertise the
upcoming meetings would be to create and play radio announcements over tribal radio
stations, since they have a wide listener base. Dr. Longie also suggested producing
pamphlets for each tribal program, and producing a clear, concise explanation (bullet
points) of the Commission, its charge, and its activities for distribution or posting on the
Keith Richotte said that producing a Facebook page for advertising rather than
information gathering purposes would allow the Commission to reach a younger cross-section of the public. Contacting certain well-connected individuals and informing them
of Commission activities may generate a considerable distribution of meeting
information among young people who are most comfortable with this form of
communication. In addition, Commission members already active in Facebook could
link to the Commission page with contact information, relevant documents, and websites.
Staff would be responsible for setting up a page with the administration approval. Keith
Richotte made a motion to give the Co-Chairs the authority to initiate
development of a Facebook account. Tom Disselhorst seconded and the
Troy Morley suggested several university-specific bodies to contact for purposes of
disseminating information after finalization of the meeting dates, including American
Indian Student Services and Project Peacemaker. He said that Staff should contact him
when dates are finalized to get input on which organizations would be most useful.
Justice Kapsner said that the Commission should entertain the possibility of holding two
meetings simultaneously in different locations. Members agreed that, given the number
of individuals on the Commission, two simultaneous meetings are possible.
Criminal Justice Staff proposed development of instruments for 2 months studies in both the criminal and
civil areas. These instruments would be designed for investigation of court user
perceptions of the justice system as well as gathering of demographic data. Sally Holewa
talked with the Bureau of Government Affairs at University of North Dakota (BGA),
which stated such 2-month projects would be easily carried out and analyzed with the
Statistical Package for the Social Sciences (SPSS) software. The cost for such studies
would be about $30/hr. BGA would need to know the time frame for these studies as
well as required information.
Robin Huseby said that the Criminal Justice Committee has not yet begun data collection
and expressed a desire to meet with the Research Committee in a phone conference or
some other manner to ask questions regarding research. Leann Bertsch said that the
juvenile justice area has a lot of available information, the adult area has less, but
substantial information exists on incarceration and sentencing. Additionally, even
perception data exists for a time period including the last two to three years. Staff should
contact Tom Erhardt for a wide variety of statistical information regarding the criminal
area of the system.
Leann Bertsch also stated that data tracking issues would exist on the county level for
early-process data, such as pretrial incarceration, because of different (or nonexistent)
data collection methods throughout the counties. The first step to address this problem
would involve contacting counties to ascertain what they actually collect. A 2-month
data collection project could be subsequently developed to gather consistent numbers.
To this end, Robin Huseby said that this was one issue for which the Criminal and
Research Committees should meet to sort out what kinds of questions should be asked in
a jail survey.
Lisa Jahner said that since we seem to have complete data in certain key areas, the
Commission could probably go beyond what other states, such as Nebraska, have done in
these areas. Tom Disselhorst said that bias can affect the range of options a court identifies
for a given offender, especially juveniles, and that judges may not recognize varied treatment
plans for minorities outside of the normal system simply because of unfamiliarity with them.
He suggested that it would be a good idea for the Commission to look specifically into this
Justice Kapsner said that the Criminal Justice Committee should begin gathering data
from sources that are already available. Additional questions might develop after looking
at this data, but the first stage is collection. Justice Kapsner also inquired as to the time
frame on which data gathering should concentrate. General consensus suggested recent
data would be best if complete, probably focusing on the last two to three years, perhaps
to 2008. Civil Justice Staff proposed a similar two-month study of court user perceptions in the Civil Justice area.
The Commission consensus was that such a study would create extra burdens on clerks and
might create difficulty with regard to contact with actual users because of the filing system.
Court personnel have contact with attorneys but rarely with the litigants. In the case of
electronic filing, court personnel have even less contact with attorneys. The Commission
also noted the area of collections as a particular problem.
Tom Disselhorst suggested that attorneys filing paperwork might be able to provide the
necessary information and that even in the case of electronic filing a clerk could send an
email without much inconvenience. Bill Neumann replied that having attorneys judge their
clients' racial and ethnic identification introduces a perceptual element into what should be
objective data. Staff questioned whether tracking number of filings provides sufficient
baseline for determining response rate and statistical significance of responses. Members
agreed that difficulty gaining a baseline number could exist in the area of collections.
Justice Kapsner further advised Staff to talk with Sally Holewa regarding a similar study she
participated in while working in Minnesota.
The Commission then discussed the Legal Services data provided by Jim Fitzsimmons. Staff
indicated that a data tracking issue existed since population and census information on race is
categorized using a different method to the Legal Services data. Specifically, Legal Services
data places "Hispanic" under a racial categorization while the census and other population
information places it in a separate ethnicity category that overlaps with the racial
identification categories. Judge Foughty emphasized that the primary goal of the
Commission is not necessarily disaggregated data tracking, but perceived and actual disparate
treatment of minorities, and this could be analyzed for minorities as a whole.
Lisa Jahner stressed the need for the Commission to look at the rate of occurrence, and that
this rate required reliance on overall population data.
Troy Morley suggested using categories already defined within the corrections data for
convenience and Leann Bertsch and Lisa Jahner confirmed that corrections data does track
census data. William Neumann motioned that the Commission should use racial
categories based on the Census model. Mr. Neumann then amended his motion to
specifically indicate that the Commission should primarily use the Department of
Corrections/Census categories. Judge McLees seconded and the amended motion
Diversity in Judicial Workforce Staff presented a memo containing racial data and analysis of current court personnel and the
Commission agreed that, already having a good breakdown of data within this area, only a
small amount of work needs to be accomplished to include the data in the interim and final
reports. Discussion centered on possible recommendations. Tom Disselhorst drew attention
to the memo's notes regarding outreach programs, saying that North Dakota generally does
not engage in recruitment on reservations, expecting instead that interested parties apply via
the government website. He said that government cannot just wait for Native Americans to
apply over the website without any kind of awareness of opportunities or recruitment
The Commission previously discussed implementing a study of the racial composition of
Bar membership, as well as a Bar perception survey, so did not touch upon the topics a
Juries Judge Foughty said that North Dakota enjoys certain advantages compared to other
states, especially in the area of juror response, where non-response hovers around
roughly 7.5%, compared to other state rates around 20%. Juror non-response seems to be
relatively unproblematic, the Commission still needs to get at the relative rates of
minority and non-minority response and study whether minorities face particular
difficulties in that area.
Staff referenced information provided by Jim Ganje regarding previous discussions in the
Jury Standards Committee on expanding juror pools. Consensus at the time of those
discussions questioned the utility of expanding pools, whether expansion actually
improves cross-section or whether it stands a substantial chance of actually worsening
the disparity. Current scholarship, though still inconclusive, seems to favor expanding
lists, with the vast majority of other states undertaking expansion efforts.
Justice Kapsner pointed out that, under our standards, North Dakota can draw on one or
more 'regularly maintained lists' in addition to voters and drivers licenses, including
possibly utility lists. Dr. Longie suggested using tribal housing lists, which list the name
of the person to whom a particular house has been issued, and are accurate and current.
Troy Morley suggested that such an expansion would be limited since it would only
include one individual from a home that might house multiple people. Another member
suggested using the tribal polling books, but Dr. Longie thought such books would not
contain very many members.
Tom Disselhorst stated that the Commission should ask the tribes which lists they would
recommend or be willing to grant access to for the purpose of supplementing jury lists.
Mr. Disselhorst also said that outreach efforts regarding jury service, as previously
contemplated by the Jury Standards Committee but never implemented because of
expenses, should receive consideration since times have changed, certain efforts are
probably cheaper, and outreach is important to do because, if successful, minority
representation on panels will add another dimension to jury considerations.
Dr. Longie said that asking for tribal enrollment lists for supplementation is probably not
as serious a request as it might have been five or ten years ago, as time and attitudes have
changed. He agreed that asking the tribes for recommendations would be an appropriate
course of action.