Judicial Planning Committee December 2, 2011

Judicial Planning Committee MINUTES
Judicial Planning Committee
Doublewood Inn, BismarckDecember 2, 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
Louie Hentzen, Ass’t State Court Administrator (for Sally Holewa, State Court Administrator)
Rep. Kim Koppelman, West Fargo
Cynthia Lindquist, President, Cankdeska Cikana Community College
Dave Maring, Attorney, Bismarck/Mandan
Dave McGeary
Kristi Pettit, Attorney, Grand Forks
Charles Placek, Director of Admin. Svcs, DOCR
Judge Daniel Narum, Southeast Judicial District

Members Absent

Rep. Lois Delmore, Grand Forks
JoAnne Hoesel, Director, Div. of Mental Health & Substance Abuses Svcs, DHS
Sally Holewa, State Court Administrator
Judge Frank Racek, East Central Judicial District
Sandi Tabor, Vice President of Government Affairs, Lignite Council

Others Present

Amy Vorachek, Department of Corrections and Rehabilitation

Chair Kapsner called the meeting to order at 10:00 a.m. and drew Committee members’ attention to Attachment B (November 23, 2011) - minutes of the August 26, 2011, meeting.

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

Charles Placek informed the Committee that he would soon be retiring. He introduced Amy Vorachek, who will be his successor at the Department. He said he would discuss with Leann Bertsch, DOCR Director, whether he would continue as a Committee member.

Facility Standards - Draft Proposal

Chair Kapsner drew Committee members’ attention to Attachment C (November 23, 2011) - draft proposed facility standards prepared by Sally Holewa. The proposal suggests three classifications of court facilities, with a classification assigned to a facility based on a point system. The point system is, in turn, generally based on the criteria for reviewing chamber locations set out in Administrative Rule 7.1.

Dave Maring asked whether other facility standards, such as the New York standards previously reviewed by the Committee, were considered in developing the proposed standards. Louie Hentzen said the proposal is generally informed by the criteria in Administrative Rule 7.1 and considerations regarding allocation of resources and the general availability in the community of support services.

Aaron Birst noted that Griggs County voters had recently rejected a $4.7 million project for a new courthouse. He said voters approved a mill levy increase for new road construction. He said the voter response may be a general indication that taxpayers tend to support expenditures for things they frequently use, such as roads, but not for things they do not often use, such as courthouses. With respect to the proposed standards, he said each classification level recommends screening of all persons entering the courthouse. He said many counties simply do not have the resources to support a full-time screening effort.

Judge Anderson said a similar personnel issue exists with Stark County, a county with somewhat greater resources. Aaron Birst noted, as a related issue, that the Stark County sheriff’s office is handling an extra burden associated with court cases coming from other counties.

Louie Hentzen said Fargo, Minot, Bismarck, and Grand Forks are the only cities at present that have front-door security at the courthouse.

Rep. Koppelman suggested with respect to the future of the courts that broader consideration be given to security issues statewide. He said it may be helpful to obtain information from other governmental entities about security needs and resources.

Charles Placek said there are two general issues related to enhanced security efforts at courthouses: the economic impact on counties, particularly smaller counties, and access to the courthouse. With respect to the latter, he said impeded access projects suspicion and may be perceived as an implicit accusation that citizens are not trusted. He said the level of intrusiveness that often accompanies enhanced security will affect the public’s response to security measures. Rep. Koppelman agreed and said while security is an understandable concern for the courts, enhanced security measures may collide with North Dakota’s tradition of openness.

Justice Kapsner asked whether there are different considerations with respect to courthouses with a high volume of court activity, where regular security measures might be implemented, and smaller counties, where a more ad hoc approach may work. She agreed, however, that implementing certain security measures should not be a mandatory requirement imposed on counties.

Randal Albrecht noted that Medcenter One can be locked down in approximately five minutes, some areas are restricted access, and all guards carry Tasers. He said the culture is beginning to change and the public may be more understanding that safety concerns are now more pronounced than they were in the past.

Cynthia Lindquist observed that with the advent of video surveillance, students at her community college are accustomed to the idea that there will be some level of monitoring on the campus.

Judge Narum noted that in a recent discussion with county commissioners about whether to improve video surveillance or obtain a metal detector, he indicated his preference for a metal detector if there was only one possibility. He said his primary objective is to keep weapons out of the courtroom. In response to a question from Aaron Birst, he said in Sargent County a deputy sheriff will be present in the courtroom if he requests. He emphasized that rural judges deserve the same consideration for security needs as judges in high traffic courthouses as the potential risk is certainly present.

In response to a question from Dave McGeary, Aaron Birst said the majority of sheriff’s offices are located in the courthouse. Additionally, he noted that there is no clear statutory obligation for the sheriff to provide courtroom security, although there is a general duty to attend sessions of court.

Dave Maring said the draft proposal is a very good beginning and the issues discussed by the Committee should be noted. He asked whether his subcommittee reviewing facility standards, security issues, and collaborative efforts with counties should review the proposal more closely and return to the Committee with an assessment.

Chair Kapsner agreed the subcommittee should review the proposed standards and consider any possible revisions. She asked that the Committee generally discuss the proposed standards with the aim of identifying any areas that may need further development. She said the Committee should also be cognizant of the possible political reception for any recommended facility standards.

Charles Placek asked whether there is any authority in law that would require a county to comply with facility standards. Staff said there are general statutory requirements that counties provide court-related facilities (N.D.C.C. §§11-10-20 and 27-01-01.1). But, he said, other than a general reference to providing “adequate” facilities, there is no statutory direction regarding a specific kind of facility.

With respect to the general tone and presentation of the proposed standards, Justice Kapsner asked whether the proposal could be a basis for approaching the Association of Counties to discuss the concept. Aaron Birst responded that the proposal is likely a useful beginning. He said after the proposal is further revised he would like to distribute it for assessment and comment. He said counties would appreciate some level of guidance regarding particular court facility needs.

Chair Kapsner requested any further comments from Committee members about the specific contents of the proposal.

Dave Maring drew attention to Section IIIB in each of the classifications which pertains to “Public Space”. He said there is no mention of ensuring space in the courtroom for observers. Justice Kapsner responded that while it is implicit that there would be a level of accessibility, a general statement about ensuring adequate space in the courtroom for observers would be a good addition.

Dave Maring noted that throughout the proposal terms such as “may”, “should”, “must”, and “requires” are used. He wondered whether these were intended to be important distinctions and whether specific obligations are intended where mandatory kinds of terms are used. For example, he noted the reference to “should be screened”. He asked whether that reference means persons “will be” screened or only that persons entering the courthouse know that they “can be” screened. He suggested that the operative words should be reviewed for substance and consistent, uniform use. For that reason, he said it would of interest whether the proposal is based, in some part, on standards from other jurisdictions.

Charles Placek agreed the proposal is a good beginning overall. But, he said, the proposal reads more like an executive summary of standards. He asked whether at some point there would be a more detailed explanation since many of the recommended standards, such as whether something is “adequate”, may be in the eye of the beholder.

Dave Maring suggested greater detail in recommended standards may be more useful for a county considering building a new courthouse than for a county considering a variety of improvements to an existing facility.

Justice Kapsner said the National Center for State Courts may be a resource for general facility standards. Judge Narum agreed more detail would be useful and that a reference to the National Center as a resource should be included.

Randal Albrecht emphasized that the general purpose of the standards should be clear, that is, whether they are provided for guidance or whether they would require counties to take certain actions.

Justice Kapsner said the statutory obligation regarding facilities is general, but unclear. Consequently, she said, there should be flexibility in the proposed standards and a recognition that they are intended to provide guidance rather than to mandate that counties provide a certain kind of facility.

Cynthia Lindquist suggested a preliminary glossary would be helpful in generally defining the meaning and scope of certain terms, such as “adequate”.

After further discussion, Chair Kapsner said the proposed standards would be considered further at the next meeting.

Administrative Unit Realignment - Proposal

Chair Kapsner next drew Committee members’ attention to Attachment E (November 23, 2011) - a proposal for realignment of administrative units prepared by the trial court administrative staff. She said the proposal was developed, in part, in response to a Committee request following discussion at the August meeting. She noted that the proposal concludes with general considerations about changing judicial district boundaries to facilitate the unit realignment and the need for statutory changes to enable judges to act outside their judicial district. Staff distributed a map roughly detailing the relationship between the proposed administrative units and existing judicial districts.

Justice Kapsner observed that changing judicial district boundaries to the extent contemplated in the proposal would have several political implications. However, she said if the system were beginning from a blank slate, the proposal appears to be a sensible approach.

Charles Placek agreed the proposed realignment of administrative units seems to be a worthwhile beginning. As a general comment, he suggested that the judicial system should substantively review judicial district boundaries each decade, much like the legislative branch redraws legislative districts after each census. Additionally, he suggested it may be time to review the statutory requirement that no more than 70% of district judge chambers may be located in cities with a population more than 10,000 [N.D.C.C. §27-05-08(1)]. He said the concern for maintaining judicial services in rural areas is important, but the challenge is to find the balance between maintaining services while ensuring effective judicial system operation.

Dave McGeary observed that the statute that governs chambers distribution only requires that a judge live within the judicial district in which the judge’s chambers are located. Consequently, he said, some judges do not live in the city in which they are chambered. But, he said, judicial services in the area are still provided.

Aaron Birst said counties are no longer greatly concerned about where judges are chambered. He said the principal concern is whether judicial services are provided in the area.

Louie Hentzen wondered how county residents would respond if judicial services were provided by a judge elected in a different judicial district from the one in which the county is located.

Justice Kapsner noted that the administrative unit realignment would seem to require that judicial district boundaries be modified, otherwise some judicial districts would be split between units which would make little sense.

Louie Hentzen observed that redrawing district boundaries to accommodate the unit realignment would affect some judicial referees and the areas they currently serve.

Justice Kapsner explained further that conforming judicial districts to the proposed unit alignment would require moving some counties into or out of existing judicial districts. For purposes of discussion, she noted the following changes that would conform to the proposed unit alignment, and the chambered judges affected to some degree by the changes:

Kidder, Logan, and McIntosh counties would be moved from the South Central Judicial District to the Southeast Judicial District. No judges are chambered in those counties.

Steele and Traill counties would be moved from the East Central Judicial District to the Northeast Central Judicial District. Judge Webb would be affected as he is chambered in Traill County.

Wells, Foster, and Eddy counties would be moved from the Southeast Judicial District to the Northeast Judicial District. Judge Hovey would be affected as he is chambered in New Rockford.

Rolette, Pierce, Bottineau, McHenry, and Renville counties would be moved from the Northeast Judicial District to the Northwest Judicial District. Judge McClintock, chambered in Rugby, and Judge Sturdevant, chambered in Bottineau, would be affected.

Charles Placek said there appear to be two general alternatives: 1) modify judicial districts to align with the administrative units, or 2) return to having two judicial districts in each unit, which would result in eight smaller judicial districts for election purposes.

With respect to election areas, Rep. Koppelman asked how much of an impact geographic distance has on judicial elections. Additionally, he asked whether personal contact with judicial candidates is a significant factor given ethical restrictions governing conduct and statements in judicial elections. Judge Anderson said it is difficult to gauge the effect of personal contact during an election, but it is important that residents served by a judge see the judge in the community from time to time.

Dave Maring wondered whether the Committee could offer a broad recommendation, such as establishing four administrative units with two judicial districts in each unit, without greater detail regarding county location. Justice Kapsner said that since the redistricting study was referred to the Committee, the Committee could recommend specific judicial district configurations.

Aaron Birst observed that the proposed unit realignment may provide greater flexibility for court administrators and an ability to move personnel around within the system. But, he asked, where efficiencies would be achieved by the realignment. Justice Kapsner responded that the realignment is aimed principally at achieving general equity or parity in workload and population served by judges and court personnel. She said Judge Racek has suggested that greater equity within the system in these areas will contribute to greater efficiencies in how court business is conducted.

Chair Kapsner asked whether Committee members had suggestions for any revisions to the proposed unit realignment.

Charles Placek suggested the court administrative staff be asked to consider, using the same criteria used in developing the proposal, a system comprised of four units, with two judicial districts in each unit. Judge Narum agreed it would be of interest to consider how judicial districts could be configured using the same criteria used for the unit alignment. There was also general agreement that the Committee should consider an arrangement in which judicial district boundaries for the two districts in each unit would remain fairly similar to current boundaries.

Justice Kapsner noted Judge Racek’s earlier concern that a judge’s jurisdiction is defined by the judicial district in which the judge is elected. She said expanding the number of judicial districts to eight would create more, although smaller, areas of jurisdiction. She said statutory changes would be necessary to enable judges to act outside their election districts on a regular basis.

Rep. Koppelman agreed with the earlier suggestion that the judicial system should review judicial district boundaries at least every ten years.

Following further discussion, Committee members agreed court administrative staff should be requested to develop two variations comprised of four administrative units with two judicial districts in each unit. The first variation should consider boundaries for the two districts in each unit based only on the criteria used for the unit realignment proposal. The second variation should consider two districts in each unit but with district boundaries similar, to the extent possible, to present boundaries.

Judge Narum suggested the Committee should hear in more detail about the problems in the current administrative and district arrangement that are thought to be solved by the proposed changes.

Chair Kapsner said the Committee would continue discussion of the realignment proposals at the next meeting.

Court Facilities Improvement Advisory Committee - Activities

Staff briefly reviewed Attachment F (November 23, 2011) - rules and statutes governing the Advisory Committee’s activities and a summary of grants awarded in grant rounds 1 through 7.

There being no further business, the meeting was adjourned at 1:20 p.m.
___________________________
Jim Ganje, Staff