Commission to Study Racial and Ethnic Bias in the Courts
Renoir/Russell Room Radisson Inn, Bismarck March 4, 2010 10:00 a.m.
Hon Donovan Foughty, co-chair
Justice Carol Ronning Kapsner, co-chair
Stacy Fetzer for Jim Fitzsimmons, who arrived later in the morning
William A. Neumann
Chad Kramer for Scott Davis
Hon. Sonna Anderson
El Marie Conklin
Hon. Wickham Corwin
Hon. Michael T. Swallow
Hon. William McLees
The meeting was called to order by Co-chair Foughty. The minutes from the December
11, 2009, meeting were approved.
Introductory Remarks by Commission Members
Commission members introduced themselves, including the following who did not attend
the December 11, 2009, meeting:
Keith Richotte is an assistant professor at the University of North Dakota School of
Law, where he teaches Federal Indian law, Jurisprudence and Constitutional law. He is
an enrolled member of the Turtle Mountain Reservation, where he is an associate justice
on the court of appeals. El Marie Conklin is an attorney in New Town, where she is an enrolled member of the
Three Affiliated Tribes. She is currently a judge at Sisseton, Spirit Lake and Turtle
Mountain, and previously was a judge at Standing Rock and Three Affiliated Tribes. Chadwick Kramer works at the North Dakota Indian Affairs Commission. He is a
lifelong Bismarck resident and a member of the Standing Rock Sioux. Troy Morley is in private practice in Grand Forks and is a member of the Turtle
Mountain Chippewa. Wickham Corwin is a lifelong Fargo resident who practiced law there for 32 years. He
became a district judge one year ago. In the years he has lived in Fargo, he has seen
significant diversity come to the area. He represented the NCAA in its litigation of the
Fighting Sioux nickname. He believes eliminating bias is a daunting task, and even when
it is identified, he has learned that all will work to eliminate it without a fight.
Dr. Elizabeth Neeley Presentation
Dr. Elizabeth Neeley, the Director of the Nebraska Minority Justice Committee, made a
presentation to the Commission on what has been accomplished in Nebraska and what
can be accomplished in North Dakota. She said the job of this Commission over the next
few years is to see where the system is failing. There have been a lot of research and
findings already done, which should aid what other research the Commission does.
She said the work of the Commission should be subcommittee driven, with a lot of
coordination needed between each one. She recommended mapping out a complete
research design prior to going very far, and to be clear on what is confidential and what is
appropriate to share with others. Justice Kapsner asked her about the need to hire a
professional to do statistical analysis and she recommended that the Commission use
either the services of one of its members or to hire someone.
She said the area of Criminal and Juvenile Justice was important to Nebraska and
suggested that it should be for this Commission as well. She said it would be good for a
Relative Rate Index to be put together for both the juveniles and adults in North Dakota.
Most states have used surveys, as well, she said, and they could be in the form of
telephone, mail or electronic. Telephone surveys are most expensive, with mail surveys
being more reasonable, and the popularity of electronic surveys is growing. Many states
survey certain groups in their population, such as jurors, judges, interpreters, attorneys,
the public and court employees. For some it works well to have court management do a
random sample because they reach people who are more likely to have something to say.
She recommends the book by Don Dillman's "The Total Design Method."
Dr. Neeley said public hearings are valuable because many issues would not have come
to light without them. It makes the Commission's work more powerful. However, she
stressed that public hearings need to be done right because it is the most public part of the
Commission's work. The credibility of the hearings depends on whether minority voices
are heard. Timing is important, as is location and hearing promotion. The location should
be neutral, and promotion should use both traditional and non-traditional tactics. She
suggested having the full public hearing schedule set ahead of time, and that they not be
scheduled too far apart. A protocol should be set for each meeting, as well. Often at the
hearings, material will be presented that is not appropriate for the Commission, but the
general public doesn't differentiate between law enforcement and the court system. Some
of the testimony may be difficult to hear, but it is part of public hearings.
Barriers to the Commission's work include race and ethnicity data not being collected or
there being different definitions of race and ethnicity. In Nebraska, different counties
used different data management systems, and it was difficult to access some protected
data, which was ultimately changed though legislation. She said among the assets to the
work of the Commission are the partnerships that can be forged with state bars, court
administrators and universities.
In preparing the Final Report, Dr. Neeley said all final drafts should be considered by the
full commission, and should use uniform format and technical style reviewed by an
editorial team. Findings should be substantiated by the data, recommendations should be
specific and address concrete changes, and there should be an executive summary and a
summary of findings and recommendations. The Final Report should be peer reviewed
and endorsed by former judges and others. Dissemination should include the judiciary
and legal communities, legislators and law schools, among others.
Dr. Neeley said the Nebraska Final Report included 79 findings that addressed, among
other areas, language barriers, disparities in arrests, sentences and incarceration, and lack
of diversity in jury pools, court workforce and the legal profession. A Commission was
then set up to implement these recommendations. "Do not open a wound unless you are
prepared to heal it," she said, and try to make the transition from investigation to
implementation as seamless as possible.
For the past few decades, Dr. Neeley said "our society has been color blind, saying that
everyone is equal. But the reality is that there are race and ethnic differences and it's
important to address these needs - by not identifying and addressing these disparities, we
are doing a disservice to society."
Commission Members reviewed the subcommittee assignments, which are as follows:
Research: Mike Nason, Keith Richotte, Rod Olson, Sonna Anderson, Sandi Tabor; Meetings: Mike Swallow, El Marie Conklin, Scott Davis, Sinisa Milovanovic; Criminal Justice: William McLees, Leann Bertsch, Robin Huseby, Tom Trenbeath,
Troy Morley, Lisa Jahner; Civil Justice: Jim Fitzsimmons, Wickham Corwin, Ulysses Jones, William Neumann
Discussion was held about issues to consider related to the work of the subcommittees.
Request for Research Materials
Co-chair Foughty asked Commission members to bring all the research materials they
have to share with each other at the March 26 meeting.