Judicial Planning Committee August 24, 2012

Judicial Planning Committee

MINUTES
(unofficial until approved)
Judicial Planning Committee

Radisson Hotel, BismarckAugust 24, 2012

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
Cynthia Lindquist, President, Cankdeska Cikana Community College
JoAnne Hoesel, Director, Div. of Mental Health & Substance Abuses Svcs, DHS
Sally Holewa, State Court Administrator
Rep. Kim Koppelman, West Fargo
Dave McGeary, Bismarck
Kristi Pettit, Attorney, Grand Forks
Charles Placek, Bismarck
Judge Frank Racek, East Central Judicial District

Members Absent

Rep. Lois Delmore, Grand Forks
Dave Maring, Attorney, Bismarck/Mandan
Judge Daniel Narum, Southeast Judicial District

Others Present
Judge John Greenwood, Southeast Judicial District
Louie Hentzen, Assistant State Court Administrator
Kim Nelsen, Assistant Trial Court Administrator, Administrative Unit 1
Rod Olson, Trial Court Administrator, Administrative Unit 2
Donna Wunderlich, Trial Court Administrator, Administrative Unit 3
Ross Munns, Assistant Trial Court Administrator, Administrative Unit 3
Carolyn Probst, Trial Court Administrator, Administrative Unit 4

Chair Kapsner called the meeting to order at 10:00 a.m. and announced that, due to the press of other commitments, Sandi Tabor had resigned from the Committee. She said Bismarck attorney Jack McDonald has been appointed to fill the vacancy. She noted that Mr. McDonald had recently chaired the State Bar Association’s Justice System Energy Impact Task Force, which conducted several hearings in the western part of the state to solicit information regarding the impact of energy development on the justice system. She said Mr. McDonald was unable to attend this meeting, but will be participating in future meetings.

Chair Kapsner then drew Committee members’ attention to Attachment B (August 17, 2012)- minutes of the May 4, 2012, meeting.

It was moved by Kristi Pettit, seconded by Aaron Birst, and carried that the minutes be approved.

2012 Weighted Caseload Study

Chair Kapsner drew attention to Attachment C (August 17, 2012) - the recently completed 2012 Weighted Caseload Study, which assessed judicial officer workload and identified areas in which additional judicial resources are needed.

At the request of Chair Kapsner, Sally Holewa briefly reviewed the study methodology and results. She said the project was essentially a time and motion study in which judicial officers reported the time spent on case-related and non-case-related work. She said cases were weighted by type, felony and misdemeanor, for example, to account for the relative work-time associated with a case type. She said the study was based on a 2-year average of reported case data. She said the study concluded there is currently a 3.50 judge shortage in the state based on case filings and associated work.

Justice Kapsner said the Administrative Council, the policy advisory group regarding trial court administration, has reviewed the study. She said the Council has recommended to the Chief Justice that the Supreme Court request three additional judgeships - two in the Northwest judicial district and one in the East Central judicial district. She said it appears the State Bar Association’s position is to support a minimum of two new judgeships to be located in the Northwest judicial district.

Kristi Pettit noted that the Association’s position was based on the impact of oil development activity in the western part of the state. She said the Task Force’s study did not extend to other areas of the state.

In response to a question from Rep. Koppelman regarding the Committee’s possible response to the weighted caseload study, Chair Kapsner said the Committee could consider the possible impact of additional judges on the redistricting issue. She said the Committee could, for example, make alternative redistricting recommendations based on whether additional judgeships are or are not established.

In response to a question from Charles Placek, Chair Kapsner said the weighted caseload study did not make specific recommendations regarding judicial referees. With respect to judge support staff, she said it is standard practice for a new court recorder or court reporter to be assigned to a new judge.

In response to a question from Rep. Koppelman regarding whether the weighted caseload study accounted for differences in counting cases, Sally Holewa said the computer model used in the study did balance out any differences in how cases are counted. Additionally, she said, the study used a 2-year rolling average of case filings, which lessens the impact of differences in how cases might be counted.

Justice Kapsner said analyzing trends in case filings and population also assists in evaluating where judicial activity will be affected. For example, she said, increased population in an area usually translates to increased court activity.

In response to a question from Charles Placek, Sally Holewa said the study calculated travel commitments separately by assigning a number of travel minutes per day to each judicial district based on the average travel reported in the district. She said the travel allowance was then factored into determining the judge-time needed in the districts.

In response to a question from Judge Anderson, Ms. Holewa said the study did not reveal unexpected results. She said the study’s conclusions regarding judge need were fairly close to the previous weighted caseload study.

Statutes and Rules Affected By the Redistricting/Realignment Study

At the request of Chair Kapsner, staff reviewed Attachment D (August 17, 2012) - a memorandum summarizing statutes and rules which may require amendment in light of the redistricting/unit realignment discussion. He said most of the rules simply reflect the unit and district arrangement and would require only basic amendments to conform to a recommendation, if adopted. Likewise, he said, there are very few statutes that would require amendment in response to a particular recommendation. He noted that if the Committee were to recommend that administrative units overlap judicial districts and that judges be permitted to hear cases outside their district of election, then N.D.C.C. § 27-05-22 would require attention. That statute, he said, provides that, with certain exceptions, a district judge can act only within the district in which the judge was elected. A possible approach reflected in the memorandum, he said, may be to change the statute to an administrative unit-based restriction, rather than a district-based restriction. He observed that the Committee had discussed N.D.C.C. §27-05-08, which, in part, requires that no more than 70% of chambers may be located in cities with a population greater than 10,000. He said possible changes discussed thus far by the Committee would not require changes to the statute, but the statute could be a candidate for amendment if it is considered to have outlived its usefulness.

Fiscal and Personnel Considerations

At the request Chair Kapsner, Sally Holewa reviewed Attachment E (August 17, 2012) - a memorandum discussing the administrative operation and control of clerk of court offices.

In response to a question from Rep. Koppelman, Sally Holewa said she considers the current location of clerks of district court and their functioning as efficient and cost-effective for the judiciary. She said counties that have elected to maintained their clerk offices employ approximately ninety people to cover forty-one clerk offices. She said the judiciary reimburses counties providing clerk services the cost associated with about thirty-five employees. She said the judiciary receives services needed for the kinds of cases filed. She noted that a recent workload assessment of clerk offices concluded there is a need for twenty-five more staff in clerk offices across the state. She said the major staff shortages are in Cass County and Burleigh County and in the northwestern counties as well.

Judge Racek said he supports having a court presence in each county, but expectations regarding each county may be unreasonable. He noted that about fifty percent of court business occurs in the four largest counties and seventy percent occurs in the ten largest counties. He said there are thirty counties in which less than one FTE is identified as necessary to provide clerk services. He said it may be unrealistic to expect clerk personnel in low or very low volume counties to be as proficient as clerk personnel in high volume counties. He said complex cases that arise only infrequently in a low volume county could probably be handled more efficiently by a high volume clerk office. He emphasized that presence in the county is important, but holding low volume clerk offices to the same standard as high volume offices may compromise consistency in how cases are handled and may build frustration. Additionally, he said, the new case management system likely provides better opportunities to match workload with available personnel.

Justice Kapsner asked whether a clerk who is uncertain how to handle an unusual kind of case should look to the clerk’s supervisor or an administrator for assistance. Judge Racek said that what happens most often is that the clerk will ask the judge who has traveled to the county that day. The next time, he said, a question may be posed to a different judge. The consequence, he said, will most likely be inconsistency in the direction given to the clerk.

Kristi Pettit said the suggestion seems to be that the number of staff would not be reduced but that the kind of work done would, or could, be reassigned to be handled by more experienced staff. Judge Racek agreed.

Aaron Birst asked whether the suggestion contemplates, for example, permitting the electronic filing of certain matters in a county other than the county in which filing would normally occur. Rod Olson noted that due to over-burdened staff in Williams County, some filings from that county have been processed through the Cass County clerk’s office.

Rep. Koppelman said the larger issue is what the provision of court services should look like in light of emerging short- and long-term trends in population and other activities that affect the operation of the court system. He said concerns about efficiencies while not neglecting certain areas are generally shared. The challenge, he said, is how to modify the system structure and realign services to ensure the system adequately responds to the changes.

Donna Wunderlich said there is concern about maintaining timely service in smaller, rural counties. For example, she said, the need for a domestic violence protection order may be infrequent in some places but court personnel need to know how to efficiently handle the process when necessary. She said there is concern on the part of law enforcement and clerk staff if it becomes necessary to contact a larger near-by county for services.

Judge Racek said it is not a matter of removing services or making services harder to obtain. The system, he said, essentially has the opportunity to identify the kinds of services that can be provided more expeditiously and more consistently in a different manner.

Carolyn Probst noted that two clerks’ office in her district are shared offices - clerk of district court and county recorder. She said that is simply too much information, too many responsibilities for one person to handle. She said the advent of electronic filing has enabled more frequent monitoring of how filings are handled, which contributes to more efficient operation. She said clerk staff are generally aware of who to contact for assistance and training and general assistance has grown considerably. She noted, however, that child support enforcement matters are a continuing area of difficulty, particularly for smaller offices, and ongoing training is a basic necessity.

Judge Racek observed that the new case management system has fundamentally changed the kind of required critical thinking skills needed for clerk staff. In the past, he said, clerks more or less reported the history of the case and judges worked from a paper file. With Odyssey, he said, the electronic file not only reports the history of the case, but is also used so the court can prepare for and process the case. Consequently, he said, there are first-, second-, and third-tier uses of case information that clerk staff must be prepared to handle and it is information that is more connected and inter-related than in the older paper system. He said progress is being made, but there is a need for more effective and consistent training.

Carolyn Probst said clerk staff are becoming much more adept at identifying errors in case processing. Consequently, she said, staff are identifying areas where weaknesses had previously gone undetected.

Committee members then turned to the discussion of redistricting options.

Redistricting Options - Cont’d Discussion

Chair Kapsner asked whether, in light of the weighted caseload study results and the initial redistricting request (placing three counties now in the South Central judicial district in the Southeast judicial district), the Committee should entertain any alternative redistricting scenarios.

Charles Placek drew attention to the “Version 2" map discussed at the May meeting and asked for a summary of changes. A copy of the map and related data charts is attached as an Appendix.

Donna Wunderlich explained that the top chart reflects application of the weighted caseload study results to the current judicial district /administrative unit arrangement. She said the bottom chart illustrates application of the study results to the redistricting changes reflected in the map.

With respect to alternatives, Judge Anderson suggested the least contentious option would likely be the request first referred to the Committee: move Kidder, Logan, and McIntosh counties from the South Central judicial district to the Southeast judicial district and make no other changes. Donna Wunderlich observed that the change would reduce the judge overage in the Southeast judicial district from 1.16 to .79. She explained that the judge-need of the three counties as part of the South Central judicial district is .35, while the judge-need for the three counties would be .37 if moved to the Southeast judicial district. The slightly greater judge-need in the latter situation, she said, is due to a slightly greater travel adjustment.

In response to a request for comment from Chair Kapsner, Judge Greenwood noted that the Southeast judges will meet soon to review district boundaries and caseflow issues. He said a formula will be reviewed which allocates travel miles within the judicial district. He said the judges may also review plans regarding the impact of receiving McIntosh and Logan counties or, alternatively, McIntosh, Logan, and Kidder counties. He said a plan would also be reviewed regarding the impact of receiving the three counties but losing the four counties indicated in the Version 2 map (Wells, Foster, Eddy, and Griggs) along with the judge associated with those counties.

With respect to previous discussions about realigning administrative units, Judge Greenwood cautioned that realigning units to overlap district lines may be problematic. He said the current unit structure, which is based on judicial districts, has worked very well. He said aligning units in a way that may require judges to rotate into very different court environments may pose difficulties. For example, he said judge practices in the mostly rural Southeast judicial district likely differ from those in the mostly urban East Central judicial district.

In response to a question from Justice Kapsner, Donna Wunderlich said the judge shortage in the South Central judicial district would decrease from 1.36 to 1.02 if the three counties were moved into the Southeast judicial district.

With respect to the Unit 4 configuration in the Version 2 map, Charles Placek asked whether it would be worthwhile to consider dividing the unit into two judicial districts, particularly if there is a possibility that the area may obtain additional judgeships. Historically, he said, activity related to the northwestern counties has tended to gravitate towards Williston.

Carolyn Probst noted that a few judges in the Northwest judicial district have agreed with the two district concept, depending on whether additional judgeships are added. She said if two additional judges are located in the Williston area, then a western district could be comprised, for example, of Divide, Williams, McKenzie, Mountrail, and Burke counties. Without two additional judges, she said, the district likely would have to be limited to Divide, Williams, and McKenzie counties.

In response to a question from Justice Kapsner regarding the district location of Burke County, Carolyn Probst said if two additional judgeships were placed in the Williston area, with perhaps one judgeship chambered in Mountrail County, then the travel commitment would be manageable and Burke County could be served as part of a western judicial district. She said if additional judgeships were not placed in the Williston area, then it may be more sensible to have Burke County covered by judges from Ward County or Bottineau County.

In response to a question from Justice Kapsner, Charles Placek said his two-district suggestion would include the unit arrangement set out in the Version 2 map, which would move Bottineau, Renville, and McHenry counties into Unit 4.

Justice Kapsner noted the concern regarding the unit relocation of Bottineau County in that Judge Sturdevant has established a very good working relationship with the nearby Rolette County area, something that may be affected if his county of location were reoriented to the Unit 4 area.

With respect to alternatives, Judge Anderson suggested a second option might be the first option (Kidder, Logan, and McIntosh to the Southeast judicial district) combined with relocating to the Northeast judicial district the four noted counties (Wells, Eddy, Foster, and Griggs) along with the judge associated with that area.

In response to a question from Justice Kapsner, Donna Wunderlich said the effect of the second option would be a judge shortage of .29 for the Northeast judicial district. The judge overage in the Southeast judicial district, she said, would decrease to .64.

Justice Kapsner asked whether the third option, then, might be the Version 2 map and associated chart. And, she said, the fourth option might be the Version 2 map with Unit 4 divided into two judicial districts. Committee members agreed.

Following further discussion, Committee members agreed the following options should be reviewed at the next meeting:

Option 1 - relocating Kidder, Logan, and McIntosh counties to the Southeast judicial district.

Option 2 - Option 1 plus relocating Eddy, Foster, Wells, and Griggs counties, and the associated judge, to the Northeast judicial district.

Option 3 - the Version 2 map, which incorporates Options 1 and 2 (see Appendix).

Option 4 - Option 3 plus dividing Unit 4 into two judicial districts, for example, the “northwest” and the “northwest central”.

Option 4 should reflect a district configuration in which Burke County is located in the “northwest” judicial district and, alternatively, in the “northwest central” judicial district.

The Option 4 data should address the district configurations with the current two judges in Williston and, alternatively, with the addition of two new judgeships.

With respect to energy development in the Williston area, Charles Placek observed that estimates suggest perhaps another twenty years of active drilling followed by a sustained period of production. He said it may be advisable to capture pre-Bakken boom statistics regarding court activity and, if possible, extrapolate forward to identify what the needs are likely to be over the next twenty or so years. He said if the data could be assembled, the judiciary could then suggest a multi-biennial approach to maintaining adequate judicial services while requesting incremental adjustments over the time period. For example, he said, the judiciary could request two additional judges now based on relevant data, but might be able to also marshal data illustrating a trend line showing the likely need over time of, perhaps, two or three more judgeships.

Justice Kapsner said it is important to monitor long-term population trends. For example, she said, population has generally increased on the eastern side of the state and, relatedly, the East Central judicial district has experienced a judge shortage for several years.

Randall Albrecht suggested using more recent demographic numbers as they may have better predictive possibilities. He said historical data will not adequately reflect the dynamics related to energy development activity, which extend across the state.

With respect to monitoring trends, Rod Olson suggested court filings should be evaluated over longer periods of time to lessen the impact of isolated fluctuations.

Chair Kapsner asked that Donna Wunderlich assemble case filing data, using the weighted caseload case types, from 2010 to 2011. She said the timeframe will be limited but it may indicate a discernible trend in activity. She said the various redistricting options will be assembled for review at the next meeting. She said a decision will also likely have been made regarding the number of judgeships that will be requested.

Court Facility Standards and Statement of Purpose

Chair Kapsner next drew attention to Attachment F (August 17, 2012) - a revised Statement of Purpose and Court Facility Standards. She said the statement of purpose and facility standards have been previously reviewed and the statement was revised in response to discussion at the May meeting. She noted that there are a few grammatical corrections needed, but the statement and standards reflect the Committee’s earlier discussions.

Charles Placek described the statement of purpose and standards as essentially an offering of assistance to counties that are considering modifications to their court facilities.

Judge Anderson said there should be a process in place by which counties know of the availability of the standards and are aware that they are a resource available to them in determining how to approach facility improvements. Justice Kapsner agreed.

Aaron Birst said the standards, as a resource for counties to consider, are an agreeable approach and the Association of Counties would assist in promoting awareness of the standards. He said the Association has several publications by which information about the standards and their purpose could be distributed.

Following further discussion, it was moved by Aaron Birst, seconded by Charles Placek, and carried that the Statement of Purpose and Standards for Court Facilities be recommended to the Supreme Court for its consideration.

Justice Kapsner said she would report that the Association of Counties is willing to assist in promoting awareness of the standards among the counties.

There being no further business, the meeting was adjourned at 1:10 p.m.
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Jim Ganje, Staff