|Members Present |
Justice William A. Neumann, Chair
Rep. William Devlin
Judge Ralph Erickson
Judge Donovan Foughty
Rep. Nancy Johnson
Justice Mary Muehlen Maring Ryn Pitts
|Members Absent |
Chief Justice Gerald W. VandeWalle
Chair Neumann called the meeting to order at 10:00 a.m. and welcomed members to the new Committee's inaugural meeting. Following introductions, Chair Neumann welcomed Chief Justice Gerald W. VandeWalle for comments concerning the work of the Committee.
Chief Justice VandeWalle thanked Committee members for their willingness to take time from their busy schedules to serve on the Committee. He explained that the Committee's predecessor had worked for several years in developing a master plan for the judiciary, but recently, for a variety of reasons, had been inactive. He said the impact of changes in the judiciary and in the state has underscored the importance of future planning for the judiciary. He cautioned, however, that the Committee should consider realistically what is happening in the state and within the judiciary in its effort to create a plan for the future. He said a vision for the future of the judicial branch is important, but it must be a vision anchored in a sober assessment of the changes occurring in North Dakota and how the judiciary can effectively respond to those changes. The Committee, he said, has a difficult and important task before it and he wished members well in their work.
Chair Neumann then outlined his expectations regarding how the Committee might achieve the objective set for it by Chief Justice VandeWalle. There is, he said, a need to rebuild the judiciary's planning effort in light of the recent inactivity of the earlier planning group. He explained that the Committee's method of operation likely will entail a combination of simple planning and visioning, what it is often referred to as "strategic planning." It will be important, he said, for the Committee to obtain comments not only from stakeholders outside the system invested in its operation, a commonplace aspect of planning, but also to regularly obtain comments from those within the system - judges, clerks of court, and other judicial system personnel. He observed that the history, context, and culture of court systems contribute to the fact that planning in this environment is different in important ways from planning in other settings. For example, he said, the judiciary most obviously is not a business organization and responds to different institutional prerogatives. Judges, he said, are constitutional, independently elected officials. Judicial system employees, he said, have traditionally been regarded as working for a single judge or a number of judges, rather than for the system, although that orientation has changed and continues to change. He noted that the judiciary has been a unified system, with the chief justice as the administrative head, for only twenty-five years -- a very short time in the life of court systems. District courts, he said, previously relied on county commissioners for funding but now are state-funded; various kinds of county courts existed for many years but now do not; clerks of district court were traditionally elected county officials but now some are state employees. All of these institutional changes and others, he said, underscore the importance of planning to ensurE the judiciary operates in a way that secures the public's trust and confidence. He said it will be important for the Committee, during its work, to regularly contact judges and others within the system to obtain comments and opinions about possible changes. The short-term objective, he said, is to make a presentation to judges, perhaps at the June Judicial Conference, about the Committee's preliminary planning product. That means, he said, the Committee will have to proceed rather quickly in the early stages of its work.
In response to a question from Rep. Johnson regarding the impetus for change in the trial court structure, Justice Neumann said the move from a multi-level court system to essentially a single-level trial court system was in response to a number of factors: a sense that a single level trial court system was necessary to achieve the unified system described in the state constitution; the interest of county judges in salary equity; and the perceived value in combining the kinds of judicial work performed by county and district court judges.
At the request of Chair Neumann, staff reviewed Attachment B (December 6, 2001) - an overview of the North Dakota judicial system.
Bob Feidler observed that the state constitution and statutes indicate the state supreme court, and chief justice, have far more authority to administer the judicial system than does, for example, the U.S. Supreme Court to administer the federal court system.
At the request of Chair Neumann, staff then reviewed Attachment C (December 6, 2001) - a summary of the basic components of strategic and futures planning.
Discussion then turned to consideration of a mission statement for the judicial system - the first step in the planning process.
In response to a question from Becky Thiem, staff said the Committee's predecessor had developed the following as the mission statement for the judiciary: "To Resolve Disputes With Justice And Efficiency".
Staff then distributed a description of what a mission statement should do, a checklist to consider when devising the mission statement, and examples of mission statements from other court systems (See attached Appendices 1, 2 and 3).
Justice Neumann suggested a mission statement should address at least two concepts: broad access, and resolving disputes not only fairly but in a way that fosters the public's trust and confidence in the judicial system and process.
Judge Erickson said the mission of the judiciary should be to resolve disputes in an equal, fair, and prompt fashion. He said public trust and confidence flows naturally from these and is eroded by the perception that all people are not equal before the law, that disputes are not resolved fairly or promptly.
Rep. Devlin observed that members of the general public do not often speak in terms of "justice". Rather, he agreed, the public's concern is more with fair treatment.
In keeping with the goal of a mission statement, Connie Sprynczynatyk said the statement should identify the purpose of the judicial system, for example, "resolve disputes" and then words signifying important values could be added, such as "efficiency" or "fairness".
Committee members identified the following concepts to be embraced within the mission statement: fairness, accessibility, equality, and promptness. It was also suggested that the mission statement should reflect the concept of an independent judiciary.
Terry Brosseau emphasized the need for brevity and succinctness in the mission statement if the statement is to be remembered and understood by the general public.
Ryn Pitts suggested the mission statement should identify who the system is to benefit, something not contained in the earlier statement.
Following discussion, the following mission statement emerged:
"To Provide The People Equal Access To Independent, Fair, and Timely Resolution of Disputes under Law"
It was moved by Judge Erickson, seconded by Terry Brosseau, and carried unanimously that the mission statement be approved.
Chair Neumann suggested the mission statement should be distributed to judges and judicial system personnel for review and comment. Committee members agreed.
Committee members next considered development of a vision statement for the judicial system. Staff distributed a copy of the vision statement developed by the Committee's predecessor, criteria for evaluating vision statements, and a checklist for reviewing vision statements (See attached Appendices 4, 5, and 6).
By way of explaining one context for a vision statement about the judiciary, Justice Neumann said the last session of the Judicial Conference involved a computer-facilitated discussion managed by the Group Decision Center from NDSU in which members of the conference exchanged ideas about the current and future structure and operation of the judicial system. Clearly evident in that discussion, he said, was the tension between judges located in rural and urban areas and the sense that the concept of "trial centers" means the withdrawal of judicial services from rural North Dakota. Consequently, he said, the concept has become problematic in any discussion of the future organization of the judiciary.
Judge Erickson observed that "trial centers" means different things to different people. Some, he said, consider it as meaning only four locations where all judicial work is conducted, while to others it may mean sixteen cities in which judges are chambered, with jury trials, for example, being conducted in those cities. However, he said, some in rural areas regard the latter as simply a mechanism for eventually achieving the former.
Staff then distributed a document describing a method for generally analyzing current court structures and operations and considering alternatives, with the aim of arriving at a vision of future court organization and services (See attached Appendix 7). He said the document may provide a useful starting point for Committee discussion of a vision statement.
On the subject of dispute resolution, Justice Neumann wondered whether the judiciary should consider facilitating different methods of resolving disputes, aside from the more common methods such as mediation or arbitration. He noted as examples juvenile and adult drug courts recently implemented in the state, which are a form of what has been termed "therapeutic justice", and various kinds of "community courts" which have been established in other jurisdictions. He said there may be a need for some alternative mechanism, something similar to small claims courts, for resolving minor disputes without engaging the complete apparatus of the judicial process.
Judge Erickson observed that New York, the site of one of the more recognized community courts, had historically provided informal courts in which non-law trained judges handled landlord/tenant disputes. The process, he said, proved successful and was expanded into community courts that address certain infraction offenses and simple nuisance issues. These courts, he said, are similar to municipal courts except the community courts have jurisdiction to permit parties to submit their dispute to the court, while municipal courts are typically limited to hearing cases in which a person has been charged with a particular offense. The advantage of the process, he said, is that disputes are quickly resolved and the parties are given greater opportunity to be heard and involved in the process.
In response to a question from Ryn Pitts concerning the acceptability of such a process, Justice Maring said there likely are certain kinds of disputes for which such an alternative would be appropriate. She noted that local law enforcement has expressed interest in some mechanism for attending to such commonplace occurrences as disputes among tenants in apartment complexes.
Bob Feidler said another example of an alternative to the traditional legal process is the recent change to the open meetings-open records law. In the past, he said, if there was a suspected violation of the law, the only recourse was to pursue legal action in the courts. Now, he said, an opinion can be requested from the Attorney General and the matter can be resolved in a more informal manner.
With respect to community courts, Becky Thiem said the more immediate question is whether such "courts" should be part of the formal judicial system, annexed to the system, or in some way entirely separate.
Rep. Johnson cautioned that a community based alternative may be unused and therefore ineffective if those involved in resolving a dispute are not protected from liability. Additionally, she said there probably should be some method for those seeking resolution of a dispute to agree beforehand to participation in the process and that they will abide by the result.
Connie Sprynczynatyk wondered whether municipal courts could serve as a mechanism for providing some types of alternative dispute resolution - they are a practical resource that is available in many cities in the state. Additionally, she noted that with slowing population growth in the state, and an aging population, there will likely be an increased need for a more informal, local mechanism for addressing disputes, rather than requiring everything to move through the more complex district court system.
Justice Neumann wondered whether in eliminating the older justice of the peace courts and creating a more "professionalized" court system, the system has removed itself from a broad array of low-grade disputes that are nevertheless important to those involved and require attention.
Following discussion, Committee members tentatively agreed the concept of informal community-based dispute resolution should be included in a vision statement, with the judiciary fostering and encouraging the use of municipal courts as a mechanism to implement such a process.
With respect to domestic relations cases, Becky Thiem asked whether family courts are a viable option. Justice Neumann explained that family courts were envisioned as providing a mechanism for coordinating resolution of what may be several different cases involving members of the same family. The greatest complication for implementing a family court in North Dakota, he said, has been the change-of-judge statute, which allows a party to demand that a judge other than the one initially assigned hear a particular case. Sandi Tabor observed that when the Family Law Task Force considered the concept of a family court, it was concluded that while the change-of-judge statute may be an impediment, the real difficulty was the administrative burden associated with such a court and the likely legislative opposition to establishing a separate, new court structure. Judge Erickson explained that the Kansas family court model, although relatively new, is regarded as perhaps the most successful. That model, he said, is expensive and incorporates a multi-disciplinary approach in which all services necessary for addressing family issues are available within the court setting. Justice Maring wondered whether it is necessary to incorporate all the service disciplines, such as counseling, within the family court, or whether it is possible to marshal community resources to provide support and services for the family court process.
With respect to the focus of a vision statement, that is, what the court system would like to become, Becky Thiem noted that most people who lack confidence in the courts are concerned about the system's inability to provide timely, fair, inexpensive resolution of family law issues. Consequently, she said, a vision statement should address how those particular services can be improved. Justice Neumann observed that an adversarial process, which may be appropriate for contract or property disputes, is wholly inadequate for resolving family issues. Mediation, he said, is likely a much more preferable method for resolving such disputes; the question is the degree of involvement of the courts in providing mediation services.
At the request of Chair Neumann, Justice Maring and Judge Erickson reviewed the operation of juvenile drug courts that have been established in Fargo and Grand Forks. They said the drug court process, which involves judges, court personnel, and counselors in aggressively monitoring juveniles with substance abuse problems, has shown remarkable signs of success. As a form of therapeutic justice, drug courts involve courts not only in adjudication, but in managing treatment programs for juveniles who participate in the program. Justice Maring noted that the drug court programs utilize community resources in providing treatment, mentors, and to some extent financial support. Judge Erickson explained that a central concept of therapeutic justice programs is the court as a "community convenor", which marshals community resources and supervises performance in support of, in this instance, holding juvenile offenders accountable for their behavior and enabling development of positive habits, such as sobriety.
Committee members agreed a vision statement should include support for enhanced mediation services in family law cases, as well as more aggressive case management and screening by judges to determine cases appropriate for mediation. It was also agreed that increased use of therapeutic justice programs, such as drug courts, should be addressed and an emphasis placed on focusing community resources and partnerships in support of such programs.
With respect to technology related issues as the focus of a vision statement, Sandi Tabor noted an emerging statewide approach to technology enhancements through the integrated justice and technology system. She said a committee is currently developing standards that will be followed by law enforcement, counties, and the courts. Additionally, she said video conferencing is becoming more common and a pilot project for conducting certain court proceedings by interactive television has been implemented in the South Central judicial district.
Judge Erickson suggested as part of a vision that the judiciary should move towards a paperless filing system with remote access by court users. Such a system, he said, would greatly benefit judges who hear cases in different locations because files would be accessible without their having to be moved from location to location. Steve Andrist agreed and observed that technology can be a critical link in maintaining access to judicial services in rural areas.
Rep. Devlin noted that what constitutes "local access"may take on a different meaning in light of what technology could make available. He said in the past there has been discussion of information kiosks located within each county, but now with the advent of the Internet people can access information from their homes. Maintaining the local link to information and services, he said, can be facilitated by properly implemented technology.
Connie Sprynczynatyk noted the discussion about geographic constraints that may be overcome by technology and inquired whether there are jurisdictional constraints that might require attention. Justice Neumann responded that there are state statutes and rules, albeit with exceptions, that dictate where certain proceedings must be conducted. For example, he said, current provisions allow a judge, with notice to the parties and if no objection is made, to move a proceeding from one county to another.
Becky Thiem noted that use of technology for certain hearings or proceedings may be workable, but with respect to mediation it is very important to have face-to-face, personal involvement of the parties and mediator. Consequently, she said if the judicial system is to be involved in alternative dispute resolution, it will be important to maintain the in-person presence of the judge or mediator who is involved.
With respect to general judicial system organization and funding, Terry Brosseau asked whether the judiciary is generally considered as being adequately funded. Justice Neumann responded that legislators have generally been responsive to the funding needs of the judiciary. Justice Maring observed, however, that there often is a reluctance to provide funding for additional personnel. Judges, she said, are involved in administration of the system to a far greater degree because there are insufficient administrative support personnel. She said the judiciary's organization, particularly the committee structure, should be reviewed to reduce the administrative and committee commitments of judges. Justice Neumann agreed the judicial system is often stretched to its limits and judges increasingly cannot be found to participate in committees that address administrative issues for the system.
Committee members agreed that as a present, and future, vision adequate funding and staffing is essential to fulfilling the mission of the judicial system. It was additionally agreed that the administrative organization of the system should be one that supports dedicating judges to doing judge work.
Becky Thiem underscored the importance of freeing judges to do the primary job of deciding cases, to providing judicial services to the public, such as involvement in drug courts; rather than requiring judges to commit time to administrative tasks. Justice Neumann observed that some judges are reluctant to relinquish involvement in administration because of a perception that administrators, rather than judges, would then run the system and because the idea of judicial independence in deciding cases becomes synonymous with independence in administrative matters. Terry Brosseau noted that a similar phenomenon occurs in the medical field.
Judge Erickson observed that at some point the current district organization as reflected in Attachment B (December 6, 2001) should be reviewed. He said some of the current election districts for judges are too large and citizens within those districts are often entirely unfamiliar with those who run for judgeships. Justice Neumann said a related issue concerns whether a judge should routinely hear cases in a district other than the one in which the judge was elected.
Following further discussion, Chair Neumann said a very preliminary draft vision statement would be prepared based on the Committee's discussion and reviewed at the next meeting.
Chair Neumann then drew attention to the next agenda item - an initial discussion of present and possible future trends in the state that may affect the judicial system's ability to fulfill its mission.
Committee members agreed that population changes and shifts in demographics are trends that will affect how judicial services are, or should be, provided. Becky Thiem noted specifically the aging population within the state, which may have a bearing on the kinds of cases the courts will have to handle. She noted the possibility of alternative dispute resolution methods for handling estate cases, which are often complicated and laden with emotion.
Chair Neumann requested that in preparation for the next meeting, Committee members give further thought to possible trends that may affect the judiciary
Sandi Tabor suggested the Committee should review a summary of the survey conducted by the Committee on Public Trust and Confidence as a way of assessing the public's perception of how the judicial system operates. She said it may also be useful to prepare a short survey for lawyers in the state, which could be published in the Gavel, the bar association's major membership publication. She, Becky Thiem, and Justice Maring agreed, in a manner of speaking, to prepare such a survey.
Ryn Pitts said it would be helpful to know who the various stakeholders are with respect to the judicial system and process.
Chair Neumann suggested, and Committee members agreed, it would be useful to obtain comments from judges and judicial system personnel about trends they perceive as affecting the judiciary, how the system might respond to those trends, and changes the judiciary should try to initiate in the near future.
In response to a question from Chair Neumann, Committee members agreed the next meeting on February 8 should begin at 9:00 a.m.
There being no further business, the meeting was adjourned at 3:05 p.m.
Jim Ganje, Staff