Commission to Study Racial and Ethnic Bias in the Courts
Radisson Inn, Bismarck
September 17, 2010
10:00 a.m. Call to Order.
Hon Donovan Foughty, co-chair Justice Carol Ronning Kapsner, co-chair Griselt Coral Andrade Leann Bertsch Hon. Wickham Corwin
Scott Davis Jim Fitzsimmons Robin Huseby Ulysses Jones Dr. Erich Longie Justice Mary M. Maring Hon. William McLees Sinisa Milovanovic Mike Nason William A. Neumann Keith Richotte Tom Trenbeath Donna Wunderlich for Rod Olson
Hon. Sonna Anderson
El Marie Conklin Tom Disselhorst Lisa Jahner Troy Morley Hon. Michael T. Swallow
Samantha Miller Brad Peterson
Co-chair Foughty called the meeting to order at 10:00 a.m..
July 23 Minutes Judge Foughty asked whether members had additions or revisions to the July 23 Minutes draft sent to
members via email. No comments or revisions were presented. Tom Trenbeath moved to
approve the 23 July minutes as submitted. Judge McLees seconded and the motion passed.
Meetings Committee Because several members needed to leave early, the Co-Chairs altered the agenda, moving
discussion regarding the Meetings Committee to the first item.
Staff provided a short description of the September 10th hearing at the Tribal Leaders Summit, stating
that attendance was sparse but steady, with testimony focusing largely on the need to address youth
issues and early intervention on reservations. Those who testified said that the lack of consequences
for early delinquent behavior on reservations leads to later contact with the State Courts when kids
used to getting away with certain behavior turn 18 or leave the reservation. Staff said he will provide
transcripts to the Commission when available.
Justice Kapsner said the testimony, though powerful, often involved areas or subjects beyond the
focus of the Commission. Judge Foughty agreed and the Co-chairs asked how the Commission
could focus people on subjects it will be able to address. Dr. Longie suggested screening testimony,
but then said that had testimony been screened in some manner on September 10th, fewer people
would have come to speak at the meeting. Justice Kapsner agreed that the Commission should not
try to limit testimony, but should find some way to direct it.
Staff asked Dr. Longie about a notice for Sprit Lake that Dr. Longie had mentioned during the July
23rd meeting and staff subsequently produced. This finished notice described the Commission
meetings and listed examples of relevant experiences of bias in bullet points. Dr. Longie said that he
had received the document and that he thought it could provide some guidance. The Commission
agreed that the notice staff developed for Spirit Lake should be shortened and members provided
several suggestions for the draft. Dr. Longie indicated that he would make appropriate changes for
Spirit Lake and distribute the notice as best he could.
Judge McLees asked whether a Bias Commission should be created that would include both State
and Federal levels. Scott Davis said that he could provide a New Mexico State report that could be a
model for such a future body.
Professor Richotte said that the broad testimony the Commission receives could provide evidence of
larger patterns and that the Commission could at least recognize problems through its
recommendations. William Neumann and Ulysses Jones voiced agreement, saying that the
Commission should identify issues and pass the information to other bodies in a manner that would
be well-received. Mike Nason said that from a research point of view, such information is part of the nature of
qualitative research, and should not be limited, though providing guidelines is acceptable. The
Commission agreed that it should not place limits on data collected, but should instead provide what
guidelines can be given on subject matter without interfering with data gathering, and sort though the
accumulated data afterward.
Staff confirmed that the meeting dates for the first three of the Commission’s series of public
meetings were set for September 27, 28, and October 8. Staff asked for ideas to get word out
regarding the upcoming meetings in addition to the press releases and other means already
implemented, saying that he and Dr. Leander McDonald had discussed the issue of advertising at the
September 10th meeting, and Dr McDonald believed the most effective advertising would have to
involve person to person contacts.
Dr. Longie said that one of the problems that exists on a reservation is that so much competition
exists from groups offering help that new efforts tend to get drowned out. Justice Kapsner suggested
that the Commission change the focus and indicate that it is the court system that needs help.
Members asked whether notices made clear that individuals testifying could remain anonymous if
they chose to, and staff confirmed that this was the case.
Scott Davis suggested he write a letter to the editor regarding the Commission’s activities. Dr.
Longie and Judge Foughty suggested they could contact the Devil’s Lake Journal with information
regarding the same. Robin Huseby suggested looking through complaint files for additional
comments to supplement experiential data. The Commission confirmed that each of these
suggestions should be pursued.
The Commission also provided staff with a list of various contacts throughout the colleges where
future public meetings will be held, including Michelle Revard for Grand Forks and Spirit Lake,
Mike Swallow for Standing Rock, Damon Williams for Fort Berthold, Jackie Davis Wallett for
Fargo, and Nell Reen Yellow Bird for Minot. Professor Richotte said that contacting American
Indian Student Services would be a good starting point for the UND meeting.
The Commission directed staff to set dates for the UTTC and Sitting Bull meetings. Judge Corwin
suggested trying to set them up during late October. Jim Fitzsimmons said that an evening meeting
might be appropriate for UTTC.
Following a suggestion from Jim Fitzimmons, staff took time to finalize the lists of attendees for the
September 27, September 28, and October 8 meetings.
Prior to moving on to Research Committee business, the Co-Chairs formally welcomed Justice
Mary Maring to the Commission. The Co-Chairs also informed the Commission that Professor
Keith Richotte had been awarded a fellowship at University of North Carolina and will be
leaving North Dakota and the Commission at the end of the year to join his wife there. The
Commission thanked and congratulated Professor Richotte.
Research Committee Staff updated the Commission on the survey proposed during the July 23 meeting for distribution at
United Tribes Technical College during the Pow wow. Unfortunately, members developing the
survey learned certain information regarding the approval process at too late a date to gain approval.
Because of this difficulty, the survey was not carried out.
Justice Kapsner suggested using the survey developed for the Pow wow as a supplement to
testimony at all of the future public meetings. This survey would be made available and would
ensure that at least some data from those testifying would be related to the Commission’s task of
examining the State courts, regardless of the dialogue during testimony. Staff said he had already
expanded the survey to include questions from previous court system perception surveys.
The Commission next examined the SBAND survey results that included information on the
racial makeup of the North Dakota Bar. William Neumann stated that the total number of Bar
members was around 2,100 with about ¾ practicing within the state. The SBAND survey had a
response of over 500. Staff indicated that he had asked the researchers for additional
information, including comparison between the different questions as a function of race and that
he and Mr. Neumann had received the additional data on request, but had not disseminated the
information to the Commission because of its length and the short amount of time available.
Staff acknowledged that perception data would be necessary from both the Bar and court
employees, and directed the Commission to several sample surveys sent to members prior to the
meeting. Staff explained that these surveys were derived from those given by other state reports,
and the goal for discussion would be to fill in gaps in the generic reports addressing issues unique
to North Dakota. Comments focused primarily on length and language of these surveys.
Staff provided an update on the survey implemented at the jury qualification stage. He said this
survey was underway and that data was already coming in from several areas. Donna
Wunderlich confirmed that at least Burleigh County has been getting a high proportion of
surveys returned. Staff said that the back-end survey, to be distributed to jury panels after the
trial, will begin October 1.
Staff further indicated that he had attempted analysis of the juror response rate by county with the
idea that if there were any glaring correlations, such as a high non-response rate for counties with
high minority populations, it might at least provide some starting point for further research. Staff
found no correlation at all between race and non-response rate, instead finding substantial
variability between years for all counties.
Staff reported on court user surveys, the 2 month studies suggested in a previous meeting.
Consensus from the July 23 meeting was to find out what Minnesota did on the civil and criminal
side to gather information from court users. Staff reported that Minnesota did not do a civil side
court user survey because of comparable problems to those discussed by the Commission in the
July 23 meeting.
Staff asked for comments or suggestions regarding gaps in the sample surveys provided for the
meeting and issues unique to North Dakota that should be addressed in completing our own
survey. Judge Corwin referenced some of the examples’ use of technical terms, saying, for
example, that many defendants would not actually be able to say whether they pled guilty or not
and advised avoiding the use of technical terms. Mike Nason commented on the necessity of
sticking to a five point Likert scale for measuring responses rather than more elaborate scales
used by some of the examples.
Criminal Justice Committee Continuing on the topic of user surveys, staff provided a potential timeline for the Commission’s
criminal justice user survey, indicating that the Research and Criminal Justice Committees should
develop a survey draft this fall/winter, to be refined by the University of North Dakota Bureau of
Government Affairs in the spring, and actually implemented in cooperation with UND BGA in
February or March next year.
Staff indicated he would prepare a draft as a starting point for the Research Committee/ Criminal
Justice Committee joint meeting. Justice Kapsner suggested that meeting should take place some
time in early November.
The Commission discussed disparity of Native Americans in the prison population and its
potential causes. Leann Bertsch stated that representation of Native Americans in prison was
somewhere around 23%, and closer to 33% for Native American women, many times the percent
of those groups within the general population. Judges Corwin and McLees stated a perception
that Native Americans faced with charges tend to plead guilty more often than similarly situated
whites. The Commission discussed whether this perceived tendency was caused by cultural
factors or by considerations of how much time would be involved in each plea. Ulysses Jones
said that often even guilt or innocence do not constitute the motivating elements in a defendant’s
decision, but rather the question of how much time will be spent in custody.
Staff said that this issue constitutes a ‘gap’ not reached in the example attorney, employee, and
court user surveys the Commission discussed earlier, and that perceptions in this area might be
analyzed with development of proper questions on the survey instruments. Leann Bertsch said
that data regarding perception of these and other issues is probably already available in existing
sentencing reports that ask defendants whether they think they were treated fairly by the court
The Commission discussed the issue of whether bonds increase for individuals with connections to
reservations. Judge Foughty explained that reservations are like other states, lacking a mechanism
for the court to get a particular defendant back. Members pointed out variations in jurisdiction
throughout several North Dakota reservations.
Staff asked whether the Commission could assess the relationship of bonds and reservations as well
as disparate guilty pleas. Leann Bertsch suggested a several month study would most likely have to
be undertaken to gather this data. Staff was further directed to meet with the Criminal Committee to
assess available data and begin gathering such information.
Civil Justice Committee The Co-Chairs asked for confirmation of the Civil Justice Committee Chairperson. William
Neumann had initially been elected to act as chair, but Judge Corwin had taken over later. Judge
Corwin said he could continue to act as chair and the Commission accepted this offer.
William Neumann presented information regarding the Pro Bono Task Force’s work with unbundled
legal services. He defined unbundled services as the idea that it is acceptable for a lawyer to do only
one or two tasks for a client rather than acting as an attorney for the entire case, and he provided the
example of ‘ghostwriting’ documents for certain cases. The North Dakota rules of conduct have
permitted unbundled services for several years, but at one time these services were considered
inappropriate. Difficulties still lie, however, with certain procedural rules, especially regarding
ghostwriting, but the Pro Bono Task Force will be sending letters to the Joint Committees to ask for
changes to those rules. Judge Corwin asked whether there had been resistance to this process, but
Mr. Neumann indicated no, though anonymity issues and client alterations to completed attorney
documents are potential issues.
Mr. Neumann also explained the Volunteer Lawyers Program as a way of opening legal services for
some who could use help and for lawyers who don’t want to take on entire cases, but still want to
contribute. Cash contributions instead of actual pro bono work are allowed by Rule of Professional
Conduct 6.1 and Mr. Neumann and Mr. Fitzsimmons described how this allows money for a Legal
Services program to provide attorneys (Private Lawyer Retention) at about half the rate so they can
keep their offices running while providing pro bono services.
As far as the availability of forms to facilitate self-representation, members indicated that North
Dakota had some forms available on ND Supreme Court website as well as other websites. Donna
Wunderlich described a divorce program implemented in some counties for parties having less than
$20,000 net assets. As part of this program individuals can file without strict court rules. The
program has developed forms to allow filing of several documents, including petitions, answers,
proofs of service, etc..
Staff asked if there a difference between access to forms and these Legal Services programs between
members of minority groups and the majority and Mr. Fitzsimmons replied that the vast majority of
applications come 5 counties: Cass Burleigh, Ward, Montrail, Rolette. No common denominator
exists for these counties except a Legal Services Office located physically within them. Potential
Commission recommendations could involve getting word out or some kind of outreach to these
The Commission moved to a discussion of poverty and children issues, asking how they relate to the
Commission’s work. Justice Kapsner asked whether a correlation exists that we can actually study.
Dr. Longie suggested that a large part of the remedy for bias regarding poverty or racial issues would
be training for those individuals dealing with people from diverse races and classes, especially
judges. Judge Corwin said that Continuing Legal Education has mandatory training requirements,
but that North Dakota has training that is not mandatory. Staff said that a number of sociological
studies have concluded that most people tend to have different responses to different races, but, even
if implicit bias exists, so long as a person is aware of existing bias, he or she can mitigate it
consciously, implying that training does work. Jim Fitzsimmons emphasized that the Commission needs to look at the subject of juvenile justice in
depth, since it is a point of first contact with the system for many individuals. The Commission needs
to ensure that sufficient education occurs at that level regarding the system, rights, etc. Leann
Bertsch said the good data exists for measuring this area, especially in Burleigh County, and that the
Juvenile System does want this Commission to provide recommendations.
Members of the Commission introduced Brad Peterson, who has worked for the South Central
Juvenile Drug Court for the last 9 years. Mr. Peterson said that not a single Native American female
has graduated the program during his time there, where only a few Native American males failed to
complete the program during that time. He also said that white females are generally more
successful than their white male counterparts at completing the program. Unfortunately, no one has
been able to explain the reasons for such disparity. Mr. Peterson said previous study has ruled out
income as a factor, since the white female population, with a high graduation rate, also tends to be
the one of the poorest populations.
Leann Bertsch said that the Commission needs to consider factors such as a defendant’s criminal
history, job, social networks and whether or not a defendant is sober, among other factors, in
addition to race, to ascertain reasons for success or lack of success with these programs. Ulysses
Jones pointed out the difficulty of isolating these factors, saying that race would likely affect other
factors, or, for instance in the case of jobs, at least affect a defendant’s perception of his or her ability
to get a good job.
Sinisa Milovanovic asked whether the Commission could compare rates of guilty pleas between
tribal and state courts, since one would expect, if reasons for disparity were cultural, a comparable
guilty plea rate for both. Judge McLees, Tom Trenbeath and Brad Peterson all agreed that guilty
pleas occur less frequently in tribal courts and jury requests occur more frequently than in state
courts. They suggested, based on their experiences, that lack of Native American representation in
state court juries is the primary reason for the disparity.