Commission to Study Racial and Ethnic Bias in the Courts
Radisson Inn, Bismarck
November 17, 2011
10:00 a.m. Call to Order.
Hon Donovan Foughty, co-chair Justice Carol Ronning Kapsner, co-chair Leann Bertsch Hon. Wickham Corwin Jim Fitzsimmons Prof. Jim Grijalva Robin Huseby Ulysses Jones Justice Mary Muehlen Maring Sinisa Milovanovic Troy Morley William A. Neumann Rod Olson Tom Trenbeath
Hon. Sonna Anderson
Griselt Coral Andrade El Marie Conklin Scott Davis Tom Disselhorst Lisa Jahner Dr. Erich Longie Hon. William McLees Hon. Michael T. Swallow
Mike Nason Sandi Tabor
Co-chair Foughty called the meeting to order at 10:00 a.m..
September 30, 2011 Minutes Judge Foughty asked whether members had additions or revisions to the September
minutes draft sent to members via email. Justice Kapsner stated that she had mentioned
that the report should state that UND Law school is a good bargain, but the minutes
indicated she had suggested a recommendation to that effect. Robin Huseby moved to
approve the September 30 minutes as corrected. Bill Neumann seconded and
the motion passed unanimously.
Focus Group Summary and Discussion Staff highlighted information from the Fargo focus group notes. Attorney focus group
discussions dealt in large part with interpreters. Attorney comments suggested difficulties
with in-person interpreters that had not been previously recorded in the public meetings or
through written testimony. Attorneys said that many preferred telephonic instead of in-person interpreters because clan or family rivalries between some New American groups
cause difficulties during the interpreting process or finding interpreters. Rod Olson said
courts have been aware of these factors for a long time, and that they present a difficult
situation all around, but judges often have a better idea of interpreter quality than
attorneys. In-person interpreters are more effective because they can better understand
context and read body language. Robin Huseby agreed. Sinisa Milovanovic noted that
the Fargo police discontinued use of in-person interpreters and that they now use only
phone interpreters. Rod Olson said that a consistent, statewide training for interpreters
should be a recommendation.
Focus groups highlighted the need for attorneys or judges to have some kind of
conversation with interpreters to verify understanding and effective interpretation. Justice
Kapsner said that the Commission could recommend a standard script or something for
judges to use to inquire into interpreter understanding.
Members discussed focus group comments regarding payment for interpreters outside of
court. Rod Olson said that the LEP Plan splits costs between courts and other court-related groups. Individual agencies cover interpreter costs on when performing work
related to courts. The only area not covered is individuals bringing lawsuits in civil court.
Sinisa Milovanovic said that the Commission should recommend some means of better
informing attorneys that costs are transferable.
Staff added that many issues raised by the New American focus group were similar to
issues mentioned in previous testimony. Broad themes involved communication issues
and a general lack of understanding of courts, processes, and rights. Some New American
community leaders suggested that greater employment of New Americans in some levels
of the system would help groups to see the courts as more adequately representing them.
One participant suggested the creation of a liaison position to help elders understand court
processes. Another theme suggested that many problems that end up in courts can be
dealt with more effectively through other means.
Drafts A number of members offered corrections for the chapter drafts distributed for the
meeting. Members also discussed editing groups for the purpose of reviewing and
refining chapter rough drafts and decided on December 9, 12, and 16 as appropriate dates.
Findings – Juries and Interpreters Members discussed a list presenting potential findings and recommendations. The
document included points discussed in earlier Commission meetings as well as examples
from other state reports that could apply to North Dakota. Members commented generally
that all such findings should be written to ensure that they are sufficiently narrow.
The first section of potential findings covered juries and interpreters. Members discussed
finding that reported an apparent correlation between reservation counties and levels of
non-responses to juror summonses. Charts in the report chapter presented counties with
non-response levels greater than 10% for all three of the years examined, and for two of
the three years. These counties appeared two charts in the jury chapter. Counties with
greater than 10% non-returns for all three years were located within reservations.
A number of members voiced reservations about including such a broad correlation in the
chapter. Rod Olson said that the total number of jurors summoned plays a part in
interpreting the response rates, and the baseline of 10% used to separate counties
categorized as ‘high non-return’ counties from others could be misleading, since rates
over 10% would include counties that summoned 10 jurors and those that summoned
1000. However, he noted that charts within the chapter did provide total numbers along
with proportions. He added that follow up actions for non-response might also help
address issues, while more frequent refreshment of jury lists would help alleviate issues
such as undeliverable summonses, which appeared in similar charts.
Troy Morley said that the charts appeared to imply that non-responses come from Native
Americans. Jim Fitzsimmons said that such an implication could be true; high non-response appears to correlate with reservation counties, so the courts may not be effective
in reaching Native Americans. Judge Foughty added that jurisdiction plays into the
situation, and part of the issue is handling non-appearance. Members discussed
jurisdictional issues, generally. Judge Foughty said that one important element in
consideration from a practical standpoint is the lack of an enforcement mechanism
available for state courts. Troy Morley suggested editorial changes to the two charts in
the chapter to provide greater consistency.
Members also suggested editorial changes to findings on interpreters. Rod Olson said that
testimony and other information identified a need for interpreters that arises at early stages
of contact with limited-English speakers. He added the Commission could recommend a
training program for interpreters that could occur periodically. Such a program could be
based on efforts completed in Cass County and could be implemented statewide. Content
would include information on court processes and the role of interpreters in court.
Judge Foughty said that if members consider additional findings or recommendations that
the Commission could make regarding juries, members should submit them to staff by
Recommendations Members discussed whether to include a recommendation for uniform treatment of non-responses to summonses or call for further, more detailed study. Jim Fitzsimmons said
the recommendation, as worded, would not be possible in North Dakota, because of the
jurisdictional factors. Members revised the example recommendation to broaden its scope
and allow for further study.
Members discussed a recommendation to increase payment for jury service. Judge
Foughty said that summonses should indicate existing jury compensation to encourage
appearances. Rod Olson said that current summonses indicate this information. Justice
Kapsner noted that while North Dakota jury compensation is somewhat above average
compared to other states, it is still below minimum wage. Leann Bertch said that there is
an interest in examining jury compensation relative to North Dakota pay in order to
minimize salary loss for potential jurors, especially low-income individuals for whom jury
service would be the greatest burden. Robin Huseby said that even a small increase in
juror pay would result in a huge fiscal increase. Members drafted a recommendation
broadly indicating that courts should increase compensation for jury service.
Rod Olson suggested that implementing some kind of debit card for juror compensation
would be beneficial, since the card could be handed out upon completion of jury service
and used for expenses immediately. Other states have implemented such programs.
Professor Grijalva agreed, noting that jurors currently would have to hold over the cost of
coming to town and back while waiting for compensation to arrive. This wait would
create a disincentive to serve for low-income individuals. Ulysses Jones and Justice
Kapsner said that the Commission could recommend a pilot project for such cards. Judge
Foughty said that the Northeast Judicial District could run such a pilot program.
Rod Olson said that a long term study on demographic composition of pools, similar to
the jury study, would be necessary to gain accurate information about the jury lists.
Questions asking for race information could appear on the qualification form with a
statement indicating that they will be used only for statistical purposes. Staff added that
there are two main motivations for finding actual jury composition: to find out whether
the jury source list should be supplemented with additional lists and to provide data
related to jury composition challenges. Ulysses Jones suggested that results would be
skewed since minorities would be less likely to answer. Sinisa Milovanovic and Troy
Morley agreed. Leann Bertsch added that Census race questions also encounter
skepticism from members of minority groups. Judge Foughty noted that Nebraska added
this kind of question and he would find out how they implemented it and what the results
were. Rod Olson said he could provide similar information from Minnesota.
Professor Grijalva asked whether there was a way to ensure that respondents understand
this is a real attempt to improve the system. Leann Bertsch said that progress toward
beneficial goals could not be measured without tracking data. Justice Kapsner suggested
developing a periodic or end report based on this data. Ulysses Jones added that
defendants would also need reliable data to make a composition challenge, but
emphasized that data, if collected, would probably be skewed.
The Commission deferred action on recommendations relating to the collection of race
data until it received more information on similar efforts in Minnesota and Nebraska.
Rod Olson said that a recommendation for refreshing jury lists annually would help
alleviate problems with bad addresses, and should be adopted. Bill Neumann said that he
could make a recommendation regarding uniform follow-up of undeliverable addresses to
the Jury Standards Committee. Both members offered corrections to the drafted
The Commission discussed a recommendation for reimbursements for child care expenses
for jurors. Rod Olson said that Minnesota has a program allowing reimbursement of day
care costs. He added that it has been a popular program that nearly all jurors claim. Jim
Fitzsimmons suggested elder care should be included in the recommendation. Professor
Grijalva suggested ‘dependent care’ as the appropriate term and this was incorporated into
Troy Morley proposed an additional recommendation to communicate with tribes
regarding supplemental sources for juror lists. Bill Neumann said that similar past efforts
in this area met with resistance to handing over lists.
Rod Olson said that the Commission should be wary of actually expanding lists without
additional study to produce demographic data. Lists based on drivers’ licenses and voters
in general elections should cover most potential jurors in the state. Expansion can cause
additional problems and potentially increase disparities in the selection process. Jim
Fitzsimmons disagreed, stating that, based on the Commission’s collected experience and
testimony received, it is clear that the state courts do not do a good job of reaching Native
Americans. He said reservations have lower voting and licensing rates, and existing lists
probably miss a significant portion of the eligible population.
Judge Foughty suggested using tribal voter or tribal membership lists. Rod Olson added
that, of these, tribal voter lists would be the better of the two since it would include only
adults. Jim Fitzsimmons said that there is a high voter turnout for tribal elections. Troy
Morley suggested that the Commission could still recommend a dialogue with tribes
regarding potential sources for source lists whether or not it recommends actual
expansion. The Commission drafted a recommendation along the lines suggested.
Justice Maring pointed to several recommendation examples from other states
emphasizing education to attorneys and courts regarding peremptory strikes and Batson
Challenges, as well as education for the public on the jury process. She said that similar
recommendations should be included in the Commission’s report. Members said that
programs should include a CLE, which should be recommended rather than mandatory.
Rod Olson said the courts have some resources available for public education, such as
website materials and a jury section video. Members said some programs should be
directed toward minorities, emphasizing the importance of jury service for fairness, and
providing information about the process.
Members said a recommendation from Nebraska regarding racial identification for
registered voters (to allow records of jury pool representation) could not be modified to
work in North Dakota, which requires no registration.
The meeting adjourned at 1:50 p.m. The meeting adjourned at 1:50 p.m.