Commission to Study Racial and Ethnic Bias in the Courts
Radisson Inn, Bismarck
May 21, 2010
Hon Donovan Foughty, co-chair
Justice Carol Ronning Kapsner, co-chair
Leann Bertsch Hon. William McLees
Scott Davis Rodney Olson Sinisa Milovanovic Ulysses Jones Hon. Sonna Anderson Troy Morley Hon. Wickham Corwin Dr. Erich Longie Griselt Coral Andrade Edward Erickson for Tom Trenbeath
William A. Neumann
Lisa Jahner El Marie Conklin Keith Richotte
Hon. Michael T. Swallow
Guests Tom Disselhorst
Co-chair Foughty called the meeting to order.
Introductory Remarks by Commission Members
Commission members present introduced themselves to new staff.
Approval of Minutes
The minutes from the March 26, 2009 meeting were approved with no additions or corrections.
Subcommittee Reports and Discussion
Research Mike Nason indicated that the Research Committee had worked on a draft of the Juror Survey,
which he indicated would be disseminated to Commission members for review on or before the
next Commission meeting 23 July.
Meetings Sinisa Milovanovic indicated that the Fargo group planning the June meetings had met twice
since the previous Commission meeting. This group confirmed the dates for the Fargo meetings
for June 22nd and 23rd at the Fargo Downtown Library from 5p.m. to 9p.m., running 2
simultaneous two-hour meetings in 2 rooms each night. Each meeting was planned to target a
specific minority group excluding the largest, Native Americans, which will be targeted in a later
meeting. The Commission discussed changing dates and time frames for the meetings to ensure
larger attendance, but its ultimate decision confirmed the 22nd and 23rd meetings as most feasible
given Commission limitations.
Co-chair Foughty confirmed that the Fargo group should procure an additional room for after the
library closing time at 9p.m. if any members of the public need a later meeting time. Co-Chair
Foughty also stated that attendees could testify on behalf of family members or others. The
Commission determined that staff email and contact information will be given out at meetings to
ensure written testimony could be given after the meetings.
The Commission discussed recording the meetings and concluded that all meetings should be
recorded either with video or audio and that staff should bring a backup audio recording system.
Members discussed advertisements, suggesting Public Service Announcements, newspaper ads,
a newspaper story, church bulletins, radio ads and the possibility of a local TV news story a few
days before the meeting. Suggestions for a Facebook account or blog were discussed, but
rejected given the minimal level of control over input from non-target groups. A member
mentioned the Fargo Human Relations Commission as a good group to disseminate information
on Commission activities. Sinisa Milovanovic proposed creating a flyer, internally produced and translated into a dozen
languages, and stated that his agency could pick up cost of flyers. Robin Huseby requested
copies of flyers, when completed, for distribution to clients and those involved in the
Commission on Legal Counsel for Indigent Defense.
The Commission concluded that a commitment to $1000 for the June meetings in Fargo, was
feasible. Sinisa Milovanovic also stated the necessity for Commission help in covering
The Commission discussed issues surrounding transcripts and payment of court reporters and
Judge Sonna Anderson made a motion to give the Fargo group authority to hire a private
firm for reporting and transcripts. Judge William McLees seconded and the motion
Final discussion of the 22nd and 23rd Fargo meetings included: security issues, specifically the
possibility of providing plainclothes security to avoid intimidation, the decision that a panel
introduction given at the outset of the meetings would warn against specific case discussion, and
placing the Fargo group in charge of providing refreshments.
Co-chair Foughty sought permission to include name and contact information of all Commission
Members in informational letters to Tribal Chairs or Secretaries, which Members granted.
Ulysses Jones suggested personal appearances by the Co-Chairs would be appropriate and the
Commission discussed possible events or meetings in which this could occur.
During the discussion of locations for other proposed public meetings to occur in the fall, Jim
Fitzsimmons moved to include Minot State University and the Williston/ Trenton Service
Area in the list of meeting locations along with UND, NDSU, United Tribe Technical
College, Three Affiliated Tribes, Standing Rock, Turtle Mountain and Spirit Lake. Judge
Sonna Anderson seconded the motion, which was carried. Co-Chair Foughty suggested that
the next Commission meeting should decide proposed dates for meetings at all sites.
Criminal Justice The Commission discussed usefulness of jail statistics in the overall study, pointing to the
Nebraska study and its collection of race data to attempt to ascertain and track racial bias
through all levels of the court system partially through statistical disparities that could indicate
implicit bias. Co-Chair Kapsner indicated that the Criminal Justice Committee should work with
Research Committees to establish appropriate surveys for the collection of race data at the jail
and other levels. Robin Huseby suggested setting up a conference call to discuss a course of
The Commission then discussed the issue of jury pools in both the criminal and civil contexts,
defining the next task as considering new areas for jury pools, looking at what the Jury Standards
Committee has done to this point. The Commission acknowledged that a smaller percentage of
Native Americans vote in state elections or have driver's licenses and so would almost certainly
be underrepresented in jury pools derived from those sources.
Members suggested tribal elections occurring at the same time as state elections might offer
some possibility of expanding the jury pool, but Tom Disselhorst indicated correlations between
state and tribal election dates are almost nonexistent, so would most likely not offer a solution.
The Civil Justice Committee reported concern over the lack of race data over nearly its entire
study area. Sally Holewa proposed that clerks record the relevant information for a period of 2
months, using census data groupings. She suggested shredding the paper after entering
anonymous data into the study. A member proposed the same for criminal cases. Members
acknowledged that such a study would need the Chief Justice's permission. A member
referenced Minnesota's similar course of action, indicating it was not a significant burden on the
clerks in that case.
Diversity in Judicial Workforce The Commission agreed that it would likely find very few minority employees in the judicial
workforce and suggested surveying both Judiciary employees and the legal profession, generally.
Sally Holewa stated that surveying the workforce for self-identification, documenting
recruitment process and documenting recommendations from the personnel director are
relatively easy and could be done by 1 August.
Draft Limited English Proficiency Plan The Commission acknowledged that Sally Holewa had already been completed a draft for the
Limited English Proficiency Plan to be implemented in the courts if approved.
Commission members discussed general reactions to the Commission, the nature of implicit bias
and possible impact that the Commission will have.