Judicial Planning Committee February 11, 2011

Judicial Planning Committee

MINUTES
(unofficial until approved)
Judicial Planning Committee
Doublewood Inn, Bismarck
August 26, 2011

Members Present
Justice Carol Ronning Kapsner, Chair
Randal Albrecht, Administrator, Medcenter One Living Center
Judge Zane Anderson, Southwest Judicial District
Aaron Birst, Legal Counsel, ND Association of Counties
Sally Holewa, State Court Administrator
Rep. Kim Koppelman, West Fargo
Dave Maring, Attorney, Bismarck/Mandan
Dave McGeary
Kristi Pettit, Attorney, Grand Forks
Charles Placek, Dep. Director of Admin. Svcs, DOCR
Judge Frank Racek, East Central Judicial District
Sandi Tabor, Vice President of Government Affairs, Lignite Energy Council

Members Absent
Rep. Lois Delmore, Grand Forks
JoAnne Hoesel, Director, Div. of Mental Health & Substance Abuses Svcs, DHS
Cynthia Lindquist, President, Cankdeska Cikana Community College
Judge Daniel Narum, Southeast Judicial District

Chair Kapsner called the meeting to order at 10:00 a.m. and drew Committee members' attention to Attachment B (February 4, 2011) - minutes of the February 11, 2011, meeting.

It was moved by Dave Maring, seconded by Dave McGeary, and carried that the minutes be approved.

Facility Standards

Chair Kapsner explained that the subcommittee reviewing issues concerning facility standards, security issues, and methods of collaborating with counties had met earlier in the morning. She requested that Dave Maring, Subcommittee chair, provide an overview of the subcommittee's discussion and conclusions.

Mr. Maring said the subcommittee's basic charge was to review core court functions previously identified by the Committee and consider possible broad-based principals regarding facility standards that would serve those core functions. He said the subcommittee also discussed further funding options for changes to facilities and issues related to basic security requirements within courthouses. With respect to garnering support for any facilities-related initiatives, he said it is important to involve county representatives, perhaps through regional planning representatives, to identify the need for additional state funding and to review how appropriately directed funding could be obtained through the Court Facilities Improvement Advisory Committee. He stressed the importance of carefully chosen language in any facilities-related proposal to make clear that collaboration is the motivating principle.

Mr. Maring said the subcommittee's initial conclusion is to recommend further consideration of categories or levels of court facilities based on core functions and the desired or necessary level of court activity within a particular court facility. He said court facilities could be divided into three broad categories based on functionality and needs dictated by the level of court activity: minimum, which could accommodate hearings and very short trials; medium, which could accommodate criminal and civil trials of short duration and minimal complexity; and large, which could accommodate activities related to complex litigation. He said facility categories could then form the basis for county decisions regarding the kind of facility the county would be willing to maintain. Development of facility standards or categories, he said, may also identify areas for concrete recommendations that could be a platform for legislation, if necessary, during the 2013 legislative session.

In summary, Mr. Maring said the subcommittee's conclusions are that the Committee: 1) proceed with consideration of facility guidelines or standards, perhaps using the previously distributed New York Guidelines as instructive on standards components, 2) based on the standards, develop general categories or levels of court facilities in light of court activity requirements, 3) more accurately identify the scope of facility components for each level, 4) pursue collaborative discussions with county leaders regarding the feasibility and funding of facility categories, with the actual funding mechanism perhaps deferred to a later time, and 5) identify possible areas for legislative action that could be presented to the interim Judiciary Committee. With respect to the development of possible standards, he said the Subcommittee agreed that the assistance of the State Court Administrator and administrative staff should be requested in an effort to initially outline possible standards and facility functions.

Justice Kapsner underscored that the objective is to identify broad categories of court facilities based on functionality and not to develop a list of "shall haves" with respect to each courthouse.

Judge Racek observed that the Court Facilities Improvement Advisory Committee has now conducted seven rounds of grant awards and there seems to be an evolution towards larger projects as counties have taken care of many of the smaller facility needs over the past years. He said there may be some merit in providing guidance or suggestions regarding facility needs to assist the Advisory Committee in reviewing projects for which grant funds are requested.

With respect to security-related issues, Dave Maring said the subcommittee generally concluded that further consideration should be given to avenues of state-funding to address security needs in court locations that have greater trial activity.

Sandi Tabor asked whether minimum technology requirements for court facilities should be identified. There was general agreement that more information should be gathered from the court administrative staff and input solicited from counties.

Justice Kapsner suggested criteria set out in Supreme Court Administrative Rule 7.1 governing judgeship chambers should be included in developing facility standards as the rule addresses a variety of services considered relevant in an area with respect to chambering decisions.

Judge Racek suggested that jail and correctional facility locations and rankings should be considered since court business is usually affected by the kind of jail or facility in a particular location.

Following further discussion, it was moved by Aaron Birst, seconded by Sandi Tabor, and carried that the Committee proceed in the manner described by the Subcommittee.

Aaron Birst noted earlier Committee discussion about the utility of defining what constitutes "judicial services". He said that is an important consideration in addressing issues identified by the Subcommittee with counties. He said if smaller counties are assured that they will continue to receive adequate "judicial services" then the objectives outlined by the Subcommittee will likely be well-received. Additionally, he said, there are other issues, such as the travel burden placed on sheriffs when trials or proceedings are moved, that may require attention.

Judge Racek said the timeliness of judicial services in smaller counties should improve as implementation of the Odyssey system moves forward.

With respect to the location of trials or the ability to change the place of trials or hearings, Judge Anderson noted that it may be necessary to review current venue requirements imposed by statute.

In response to a question from Rep. Koppelman regarding rural sentiment regarding facility improvements, Aaron Birst said his personal appraisal is that smaller, rural counties are willing to commit local tax dollars for improvements if the services are maintained locally.

Justice Kapsner noted that the New York guidelines address the issue of adequate space for clerical and support staff. She suggested that facility component should be considered as well.

After further discussion, the following general facility components were identified as part of the standards project: security and safety, technology needs, other facilities and services in the area, jails or correctional facilities in the area, a definition of "judicial services", space for clerical and other support staff, and public space to accommodate members of the public who attend court proceedings.

In response to a question from Dave Maring, Sally Holewa said she and the administrative staff would prepare a draft facility standards framework for Committee review.

With respect to security and safety issues, Judge Racek noted that there are different security needs based on whether there is a judge chambered and present in the courthouse as opposed to situations in which a judge travels to the courthouse from another location.

Rep. Koppelman agreed security needs will likely vary from courthouse to courthouse based not only on judicial activity, but also on the kinds of security protection that are needed. He said a "one size fits all" standard would not be appropriate.

Sally Holewa noted that a security manual has been developed for the judicial system and the manual does address different levels of security needs.

Randal Albrecht said that regardless of the variations in the kinds of security that may be needed, a basic level of security should be maintained in every courthouse.

Chair Kapsner said the Subcommittee would continue with its work as appropriate and the Committee, at its next meeting, will review the draft facility standards prepared by Sally Holewa and the administrative staff.

Judicial Selection - Public Financing of Judicial Elections

At the request of Chair Kapsner, staff briefly summarized additional background information concerning methods of judicial selection and the impact of growing campaign spending in judicial elections. He noted the Executive Summary from The New Politics of Judicial Elections: 2000-2009 [Attachment C (May 27, 2011)], which outlines the increasing presence of special interest spending in judicial elections; an amicus brief filed in the U.S.Supreme Court case of Arizona Free Enterprise Club v. Bennett, which was included in material for the cancelled June 3 meeting and which provided considerable detail about judicial elections, the current election environment, and the ostensible value of public financing of judicial elections; and reactions to the U.S. Supreme Court decision in Bennett invalidating the public financing approach used in Arizona [Attachment B (August 18, 2011)]. He said the Committee has generally discussed issues related to methods of judicial selection, but has not yet reached a conclusion regarding whether to move forward with a more in-depth review.

Chair Kapsner said the basic question is whether concerns about the manner in which judges are selected in North Dakota are great enough to warrant further discussion about alternatives. She said problems that have surfaced in judicial elections in other states have not yet appeared in North Dakota. She said an attendant consideration is whether an alternative method of selecting judges in the state would be a viable political or policy option.

Dave Maring agreed that controversies associated with judicial elections in other states have not shown signs of occurring in North Dakota. However, he said, the impact of escalating campaign spending on the manner in which judicial elections are conducted and the potential impact on concepts of judicial independence and integrity of the process are important enough to support some level of continued attention. He said Appendix B of the February 11 meeting minutes arguably provides the best discussion at this point of potential methods of dealing with the issues.

Justice Kapsner noted that information related to the Arizona financing method indicates that public financing there has resulted in many more contested elections in all kinds of offices.

After further discussion, it was moved by Aaron Birst, seconded by Charles Placek, and carried that consideration of the issue be tabled.

Judicial System Operation - Similarities, Dissimilarities, and Commonality of Purpose

At the request of Chair Kapsner, Judge Racek reviewed charts and maps included as Attachment C (August 18, 2011), which he prepared as aids to discussing the general issue of redistricting. He said the material attempts to depict how things are done within the current system and, inferentially, how they might be done if system processes and practices were changed. He said the chart depicting staffing levels related to judicial officers and staff suggests a wide variance in the staff to judicial officer ratios. When problems are identified within the system, he said, the manner in which that information is received is often dictated by how those in the system are able to respond to the problem. He said inadequacies or misallocation of staffing or resources frustrate the ability to identify common problems and pursue solutions to achieve a common result. He cautioned that when differences and variances, such as travel time or geographical considerations, become institutionalized, there is less incentive to change because of benefits that are perceived to flow from recognition of the variances.

Judge Racek said the table depicting population served per judicial officer and per staff also suggests a wide variance in the population served, whether by judges for election purposes or by judicial officers generally and staff in terms of services delivered.

With respect to management of court business, Judge Racek observed that if the state were divided into four equal administrative units the result would be something on the order of 168,000 people in each unit, with eleven judges, two referees, and sixty-six staff per unit.

With respect to the maps included in Attachment C, he said the first map (Map 1) depicts population per county and reflects the obvious disparity in population per judicial district. The second map (Map 2), he said, indicates locations where judges normally sit and also indicates how the state could be divided to result in units with roughly equal populations served by roughly equal numbers of judges, judicial referees, and staff.

Sandi Tabor observed that the information seems based primarily on population and asked whether caseload should not also be taken into account. Judge Racek responded that the weighted caseload analysis has not been updated to reflect new kinds of judicial work within the system. Additionally, he said it is likely that population and caseload closely parallel each other in terms of analyzing how the system could be organized. He suggested that factoring caseload into the analysis may not result in significant changes in how resources could be allocated.

Sally Holewa said the weighted caseload analysis cannot be ignored as it is the principal method for currently determining judge needs in areas of the state and the analysis has been recently updated to take into account new kinds of work. Similarly, she said impact of geography, travel time, and how different areas are served must be recognized. She said while there is no disagreement that the system can operate more efficiently, workload analyses do indicate shortages in judge numbers and in staff numbers. She said to equalize what is currently in place would assume that problems in system operation are due to adequate resources that are inefficiently distributed. She said a lack of adequate resources are as much of an issue as inefficient use of current resources.

Judge Anderson asked whether the weighted caseload analysis is subject to manipulation based on how criminal cases, for example, are charged. Ms. Holewa responded that in cases involving multiple charges, the information system is programmed to look for defendant name, and dates of filing and disposition. If the same name is associated with dates that are close in time, she said, then the activity is counted as one case. She said that approach minimizes the risk of a case with multiple charges being counted as several cases.

In response to a question from Rep. Koppelman regarding a standardized method of counting cases, Ms. Holewa said the judicial system cannot dictate how state's attorneys file or prosecute their cases. However, she said, the system can determine how matters, once filed, are counted for purposes of determining workload assessments. She noted that a new weighted caseload analysis will be conducted in 2012.

With respect to the unit lines represented in Map 2, Judge Racek said he is not committed to the particular alignment represented in the map. While there are several ways to divide the judicial system arrangement, he said, if a more even distribution were achieved, then it is more likely that some level of commonality of purpose could also be achieved.

Justice Kapsner wondered whether realignment of units would necessarily result in more efficient services.

Randall Albrecht noted the significant energy activity in the western part of the state and observed that the state may be a quite different place in the near future. He cautioned against using historical data to analyze the current situation and project future changes when the future may be substantially different. Justice Kapsner agreed and noted the DHS demographic study reviewed earlier was based on 2007 data and many changes have occurred in the state since.

Judge Anderson observed that the current administrative unit structure seems to be working fairly well, but the general discussion seems to suggest changes to the unit structure and the judicial districts.

Charles Placek suggested that Map 2 based on population could be used as a starting point but then factor in weighted caseload data to see how the configuration might be affected. Sandi Tabor agreed factoring in weighted caseload data would be a helpful addition.

Dave Maring wondered whether there was any reason to have seven judicial districts and four administrative units other than maintaining basic election areas.

Sally Holewa noted that she is working with the trial court administrative staff to develop a product that includes consideration of weighted caseload factors but does not take into account election considerations.

Justice Kapsner agreed that administrative concerns should be separated from election concerns. Rep. Koppelman said the analysis should also take into account the basic issue of how the public is most effectively served.

After further discussion and in response to a question from Chair Kapsner, Sally Holewa said the trial court administrative staff would continue with development of a document that uses the information reflected in Map 2, includes weighted caseload information, and also includes criteria related to community services available in the respective areas.

Charles Placek suggested that the information reflecting population and caseload should be considered in tandem with the standards and classifications for court facilities.

Sandi Tabor suggested it may be useful to identify someone within the state who could talk with the Committee about how the state is expected evolve during the near future. With respect to general issues related to economic activity, Rep. Koppelman suggested someone from the Commerce Department may be able to provide some useful information. There was general agreement to also review recent census information.

Chair Kapsner said the Committee, at its next meeting, would review the draft relating to court facility standards and the draft assembled by the administrative staff regarding administrative alignments. She asked that information concerning the operation of the Court Facilities Improvement Advisory Committee and grants made by the Committee also be provided.

Other Matters

Rep. Koppelman drew attention to issues related to the operation of the small claims courts generally and, specifically, to concerns that small claims court decisions are not appealable. He said some dissatisfaction has been expressed with the work of judicial referees to whom small claims court work is delegated and that dissatisfaction is compounded by the finality of the court's decision. He wondered whether it would be feasible to consider whether small claims court decisions should be appealable or whether there could be a de novo review of the decision. He noted that legislation has been considered in the past on the issue but has been unsuccessful.

Rep. Koppelman noted also concerns about access court record information in cases that are dismissed or a defendant is found not guilty. He said the availability of online access to record information poses significant issues for job applicants and others who arguably have had a successful disposition in their case. Staff noted that a similar issue has been discussed by the Joint Procedure Committee and rule amendments are under consideration with respect to the issue.

There being no further business, the meeting was adjourned at 1:00 p.m.

Jim Ganje, Staff