Judicial Planning Committee December 2, 2011

Judicial Planning Committee MINUTES
Judicial Planning Committee

(Unofficial until approved)

Doublewood Inn, BismarckDecember 7, 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
Sally Holewa, State Court Administrator
Dave Maring, Attorney, Bismarck/Mandan
Dave McGeary, Bismarck
Judge Daniel Narum, Southeast Judicial District
Kristi Pettit Venhuizen, Attorney, Grand Forks
Charles Placek, Bismarck

Members Absent

Rep. Lois Delmore, Grand Forks
JoAnne Hoesel, Director, Div. of Mental Health & Substance Abuses Svcs, DHS
Rep. Kim Koppelman, West Fargo
Judge Frank Racek, East Central Judicial District

Others Present
Judge John Greenwood, Southeast Judicial District
Louie Hentzen, Assistant State Court Administrator
Rod Olson, Trial Court Administrator, Administrative Unit 2
Donna Wunderlich, Trial Court Administrator, Administrative Unit 3

Chair Kapsner called the meeting to order at 10:00 a.m. and welcomed Bismarck attorney Jack McDonald, who was recently appointed to the Committee.

Chair Kapsner then drew Committee members’ attention to Attachment B (November 30, 2012)- minutes of the August 24, 2012, meeting.

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

Redistricting Options - Con’td

Chair Kapsner said the objective of the meeting is to arrive at a recommendation, or recommendations, to the Supreme Court regarding proposed changes, if any, to the current judicial district and administrative unit arrangement. She said the Committee should also consider alternative recommendations based on whether the Supreme Court’s requested additional judgeships are approved in whole or in part.

In response to a question from Jack McDonald regarding the Committee’s timeframe for recommendations, Chair Kapsner said recommendations would be submitted to the Supreme Court and then followed, perhaps, by a hearing and then disposition. She said any final action would almost certainly occur after the Legislative Assembly adjourns. Jack McDonald observed that legislators may inquire during the session about actions being taken by the judiciary, besides requesting additional judges, to address system issues. He said it likely would be helpful to explain that there is a serious review of current judicial district alignments and related issues under consideration.

Chair Kapsner then drew attention to Attachment D (December 7, 2012) - a table comparing 2010 and 2011 case filings by county and weighted-caseload categories in the various judicial districts. It was noted that the filings reflect the current district configuration. For additional information, she distributed a table depicting the average, per judicial district and administrative unit, of case filings for 2007-2010. A copy of the table is attached as Appendix A.

With respect to more recent population changes, Justice Kapsner said there is little in the way of more current population data from the state Census Data Center, which is limiting given the noticeable population shifts in the western part of the state. She said recent news accounts indicate that a new population assessment is being conducted, but the results are apparently not yet available.

With respect to population changes in the western areas, Charles Placek said it is likely that the current, temporary population influx will stabilize and convert in some fashion to a more permanent population. He said the challenge is to estimate the ratio of temporary to permanent conversion, but it may be prudent to assume that the current increase in population may increase even more as, for example, more families related to temporary workers move to the area.

Justice Kapsner said observations in a recent Bismarck Tribune article reach a similar conclusion, noting that the current permanent population in Williston is about 20,500 with an additional 15,000 in temporary population. She said a developer quoted in the article suggested that the area population may increase by another 38,000 by 2016.

Committee members then turned to a review of the various redistricting options included in Attachment C (December 7, 2012). Chair Kapsner asked that Committee members consider the possible benefits and drawbacks with respect to each option.

Option 1 - the narrowest proposal and which resulted from a request submitted to the Administrative Council by the South Central judicial district judges. The option would move Kidder, Logan, and McIntosh counties from the South Central judicial district to the Southeast judicial district.

Justice Kapsner said possible benefits in favor of Option 1 may include:

- reduction in travel commitments for South Central district judges
- reduction of the judge shortage for the South Central judicial district from -1.36 to -1.02
- the Southeast judicial district would retain a judge overage, although reduced from +1.16 to +.80
- minimal institutional disruption

Sally Holewa agreed Option 1 is the least controversial. However, she said the concern is that the judgeship shortage in East Central and Northeast Central judicial districts is not then addressed.

Justice Kapsner said a drawback for Option 1 is that it ignores future needs in the system based on case filings and population. Sally Holewa said Option 1particularly does not address the population and case filing trends in Unit 3, which includes the South Central Southwest judicial districts. She noted that case filings in Burleigh and Morton counties have continued to increase in recent years and growth in the Southwest is sure to continue.

Judge Greenwood said another likely drawback for Option 1 is that it would increase travel time for Judge Narum, who is chambered in Ellendale and would likely cover the cases for the three new counties. Additionally, he said there is a significant increase in economic activity slated to occur in the Southeast area. He said expansion of current businesses and new business, with the attendant increase in employees, is planned for Valley City, Spiritwood, and the Jamestown area. He cautioned that this anticipated increase in economic activity and its effects should be kept in mind when considering adding areas for judges to cover. He observed that if Option 1 were implemented, it may require consideration of temporary judge assignments under Administrative Rule 15 to assist in serving the two additional counties.

Charles Placek wondered whether Option 1 actually addresses any concern in a meaningful way. He suggested the judicial system would be better served by focusing on one of the Option 4 configurations in Attachment C and then consider a possible alternative addressing the eastern part of the state.

Aaron Birst noted that travel commitments for judges in the South Central judicial district are related to all the judges being located in Bismarck-Mandan. He said if a judge were located in Linton, which is designated as a judge chamber location, then travel to eastern counties in the district would be less of an issue. Donna Wunderlich observed that even if a judge were located in Linton, that judge would likely spend more time traveling to Bismarck-Mandan to hear cases than traveling to the eastern counties.

Option 2 - combines Option 1 with moving Wells, Eddy, Foster, and Griggs counties from the Southeast judicial district to the Northeast judicial districts. Option 2 would include relocating the judgeship in New Rockford (Judge Hovey) to the Northeast judicial district. Judge Narum noted that Judge Hovey is not opposed to the relocation but would prefer, if it is to occur, that it occur sooner rather than later for election purposes.

Justice Kapsner said considerations in favor of Option 2 may include:

- Judge Hovey, who is chambered in New Rockford and would be affected by the change, is not opposed so long as there is adequate advance planning
- the judge shortage for the South Central judicial district would be reduced from -1.36 to -1.02
- there would be a reduction in travel commitments
- the Southeast judicial district has available judge time as the judge overage in the district would be +.63 with the change
- there would be limited institutional disruption
- the change absorbs some of the judge overage in the Northeast judicial district

Charles Placek wondered if there would be any advantages if Sheridan County were included in the relocation of counties to the Northeast judicial district. Donna Wunderlich noted that the current judge need in Sheridan County is .07. She said the administrators discussed the change but concluded that it would increase travel time as Bismarck is closer to McCluskey, the county seat, than any other judge chambers in the area.

With respect to potential negatives regarding Option 2, Justice Kapsner noted the following:

- Option 2 would create a much larger Northeast judicial district
- the option ignores case filing and population trends in other areas of the state

Louie Hentzen observed that Option 2 would also add four additional counties to be covered by the judicial referee in Bottineau.

Option 2 Variation - a variation of Option 2 submitted by Judge Greenwood. The variation is similar to Option 2 except that Foster County would remain in the Southeast judicial district and Kidder County would remain in the Southcentral judicial district. It was generally agreed that, for purposes of clarity, the variation should be referred to as Option 2A.

Justice Kapsner noted that the tables accompanying the option reflect the current judge numbers as well as the impact of three additional judgeships - one in the East Central judicial district and two in the Northwest judicial district.

In response to a question from Justice Kapsner regarding the purpose in retaining Foster County in the Southeast judicial district, Judge Greenwood said the county is more closely associated with the Jamestown trade area. He said Foster County has contracts with both Ramsey and Stutsman counties for housing prisoners. Additionally, he said the county configuration reflected in the option is more conducive to better judge travel commitments.

Rod Olson observed that it may be sensible for Kidder County to be relocated to the Southeast judicial district.

In response to a question from Justice Kapsner, Judge Narum said Judge Hovey currently covers Eddy, Foster, Griggs, and Wells counties.

Committee members discussed the feasibility of further modifying Option 2A by placing Kidder County in the Southeast judicial district and placing Griggs and Steele counties in the Northeast Central judicial district. Chair Kapsner asked that Donna Wunderlich make the adjustments for discussion purposes.

With respect to considerations in favor of Option 2A, Justice Kapsner suggested the following:

- the South Central judicial district would experience some relief in terms of travel commitments
- sufficient judge time would still be available in the Southeast judicial district

With respect to potential negatives regarding Option 2A, Charles Placek said the option creates a very irregular district and would disrupt the alliances among counties in the current district arrangement. Additionally, he said, the option would not address the judge overage in the Northeast judicial district.

Rod Olson noted that for Eddy and Wells counties, most prisoners are housed in Devils Lake. Placing those counties in the Northeast judicial district, he said, may save on travel costs for the sheriff. Additionally, he said Foster County prisoners are often housed in the Stutsman County correctional facility, which may be better served by Foster County remaining in the Southeast judicial district. He emphasized the importance of taking into account travel time for sheriff’s offices when relocating counties from one judicial district to another.

New Option 2B - modifies Option 2A by locating Kidder County to the Southeast judicial district. The modification would reduce the judge overage in the district to +.44 and reduce the judge shortage in the South Central judicial district to -1.02. Justice Kapsner noted that if Option 2A is further modified to relocate Griggs and Steele counties to the Northeast Central judicial district, the judge overage in the Northeast Central would be +.55 and the judge overage in the Northeast judicial district would be +.08, for an overall reduced overage of +.63. She noted that a negative consideration with respect to the combined modifications is that the population and case filing trends for the western part of the state remain unaddressed.

Option 3 - combines Option 1 and Option2 and additionally relocate Bottineau, Renville, and McHenry counties from the Northeast judicial district to the Northwest judicial district.

With respect to considerations in favor of Option 3, Justice Kapsner noted the following:

- the same benefits accrue to the South Central judicial district as in Options1 and 2
- there appears to be a better allocation of resources between the Northeast and Northwest judicial districts
- the Southeast judicial district retains its slight judge overage
- if the option were implemented and two judgeships were added to the Northwest judicial district, then a modest judge overage may result, which could accommodate the likely continued growth in the region

With respect to potential negatives related to Option 3, the following were noted:

- there is county and judge opposition to relocating the three counties to the Northwest judicial district
- the addition of three counties to the Northwest judicial district would likely require additional administrative personnel for the administrative unit
- shifts in judicial election areas
- complications regarding where prisoners are housed as McHenry County uses the correctional facility in Rugby and Bottineau and Renville counties use the same facility for overflow prisoners

In response to a question from Louie Hentzen, Justice Kapsner said the judicial referee located in Bottineau would then be allocated to the Northwest judicial district. Louie Hentzen wondered how the counties in the Northeast judicial district which currently depend on the referee would receive referee services. Donna Wunderlich noted that with the agreement of both presiding judges, the referees in the Northeast Central judicial district could conceivably provide services in both districts.

Options 4A, B, and C - the same as Option 3 except that Unit 4/Northwest judicial district as reflected in Option 3 would be divided into two judicial districts (Northwest and Northwest Central), with three possible district configurations.

On the general question of whether the current Unit 4/Northwest judicial district should be divided, Sally Holewa noted that two districts would more realistically reflect how the district currently works. Justice Kapsner noted that there is a small lawyer population in the area from which to elect judges. Donna Wunderlich noted Option 4C, which places Divide, Williams, and McKenzie counties in the “Northwest” and the remaining counties in the “Northwest Central”. She said that configuration seems to more closely represent how judges in the area cover counties.

Randall Albrecht wondered whether it is possible to isolate the percentage of filings associated with Ward and Williams counties respectively.

Sally Holewa noted that the case filing data set out in Attachment D (December 7, 2012) indicates that Ward County filings are trending downward and filings in Williams, Mountrail, and McKenzie counties are trending upward. Justice Kapsner said that if the trend holds, then it is sensible for Mountrail County to be placed in the “Northwest”.

With respect to whether current Unit 4/Northwest judicial district should be divided into two judicial districts, Charles Placek said he favors the division because each administrative unit would then be comprised of two judicial districts. Additionally, he said if two judicial districts are not created and judgeships are added to the district, then it is possible, for example, that lawyers from Minot could be elected to the new judgeships. That, he said, would compound the current anomaly in which judges are located not in the judge chamber locations, but somewhere else in the district. He said two judicial districts could also assist in addressing the rapid growth that is occurring in the area.

Judge Anderson agreed there should be a second judicial district in Unit 4. The challenge, he said, is determining where judicial district lines would be drawn.

In response to a question from Dave Maring, Justice Kapsner said the Supreme Court, by statute and rule, is authorized to designate chamber locations for judgeships. Dave Maring said the Supreme Court’s authority to review chamber locations may be useful in demonstrating that the judiciary is actively trying to address how system resources are allocated.

Donna Wunderlich asked whether there has been any discussion about changing the requirement that no more than 70 percent of judge chambers can be located in cities of populations more than ten thousand (70/30 requirement). Justice Kapsner responded that there have been discussions but that it is likely too late to pursue the matter legislatively. Nevertheless, she said the Committee could consider a recommendation on the issue.

Aaron Birst said if adequate services are provided, then chamber location is less of an issue from a county perspective.

Charles Placek wondered if a commitment that a judge would visit a county at least once per month, if there was court work to be done, would be sufficient to enable repeal of the 70/30 requirement. Sally Holewa observed that repealing the requirement would likely have very little impact on how judicial work is done.

After further discussion, it was moved by Sally Holewa and seconded by Aaron Birst that the Committee support the amendment of N.D.C.C. §27-05-08 to remove the 70/30 requirement.

Aaron Birst explained that he could not bind the Association of Counties to a position, but that he had seconded the motion for discussion purposes since, as a practical matter, the requirement is not followed now with respect to the physical location of a judge. Judge Anderson agreed removing the requirement would reflect how the system operates. Justice Kapsner noted that the requirement is followed in the sense that chambers are designated in compliance with the requirement.

Judge Narum asked whether having the requirement in place is hurting anything. Justice Kapsner said one complication is that each time the Supreme Court must consider moving a judgeship to recognize where the work is, the Court must calculate whether the requirement is satisfied with respect to designating the chambers.

After discussion, the motion carried.

Committee members then turned to consideration of an additional option, which was identified as Option 5. A copy is attached as Appendix B. The option is essentially similar to Option 3 except 1) Unit 4/Northwest judicial district is divided into two districts, 2) Kidder County is retained in the South Central judicial district, 3) Foster County is retained in the Southeast judicial district, 4) and Griggs and Steele counties are moved from the Southeast judicial district to the Northeast Central judicial district. Donna Wunderlich explained that the judge need for Unit 2 on the upper chart should be -1.62, rather than -.49, as the latter figure reflects the addition of a judge in the East Central judicial district and the chart is intended to reflect current judge numbers.

Justice Kaspner noted that the charts accompanying the option map reflect the impact of the changes with and without the addition of new judgeships in the East Central and Northwest judicial districts. She said possible considerations in favor of Option 5 may include:

- assistance in reducing travel commitments for the South Central judicial district in that Logan and McIntosh counties are relocated to the Southeast judicial district

- a lessening of the judge shortage in Unit 2

- the option retains creating a second judicial district in Unit 4, which likely is an electoral advantage for citizens in the area

Aaron Birst noted that the option would reduce judge overages to under one in all areas, which may be an advantage in explaining to legislators how the judiciary is responding to changes affecting the system.

Justice Kapsner observed that a negative consideration for the option would be the opposition of the judges and country commissioners to relocating Bottineau, Renville, and McHenry counties to the Northwest judicial, the same opposition noted with respect to Option 3.

In response to a question from Justice Kapsner about leaving Kidder County in the South Central judicial district, Donna Wunderlich said the judges in the area were less concerned about that possibility. The greater concern, she said, is the travel commitment related to Logan and McIntosh counties.

With respect to the creation of two judicial districts in the Northwest, Dave McGeary asked whether residents in Mountrail County travel to Minot or Williston for shopping and business needs. There was general agreement that most residents travel to Minot.

Dave Maring asked what the impact would be of retaining Foster County in the Southeast judicial district. Donna Wunderlich said the shift would change the judge shortage for the Northeast judicial district as reflected in Option 3 (-.29) to a slight overage of +.08.

Dave Maring observed that in terms of configuration, Option 3 has a much simpler arrangement of counties with straighter boundary lines than does Option 5. Option 3 would situate Kidder County in the Southeast judicial district and Foster County in the Northeast judicial district.

Justice Kapsner asked what the effect would be if Kidder and Foster counties were located as Option 3 suggests. Donna Wunderlich said the Northeast judicial district, with Foster County added, would change from a judge overage of +.08 to a judge shortage of -.12, and the Southeast judicial district, with Kidder County added, would change from a judge overage of +.56 to an overage of +.63. Committee members agreed this option would be identified as Option 5A.

Judge Greenwood noted Foster County sends a portion of its prisoners to the Ramsey County facility and a portion to the Statesman County facility. Rod Olson noted that a regional child support enforcement office is located in Jamestown.

Charles Place suggested the Committee should consider, as an alternative, another option which reflects a modification to new Option 5A — the addition of Traill County to the Northeast Central judicial district. He said the judgeship chambered in Trail County could then be relocated to Fargo. The result, he said, is that the judge overage in the Northeast Central judicial district would essentially be cancelled. Committee members agreed to consider the additional alternative. The alternative was identified as Option5B.

With respect to Option 5B, Donna Wunderlich said the judge overage for the Northeast Central judicial district would be reduced to +.07. She said retention of the judgeship in the new, smaller, East Central judicial district, but transferring the judge need associated with Trail County (+.48) to the Northeast Central judicial district would reduce the judge shortage for the East Central to -1.58. She said Option 5B would result in a judge shortage of -.12 for the reconfigured Northeast judicial district and a judge overage of +.63 for the reconfigured Southeast judicial district.

It was noted that Option 5B would result in a one-county (Cass County) judicial district. Charles Place suggested that if a one-county judicial district is problematic, an option might be to add Richland County to the reconfigured East Central judicial district. Donna Wunderlich noted that Richland County has a judge need of 1.00 and has one judge chambered there. Committee members agreed combining Cass County and Richland County in one judicial district would not be beneficial.

Chair Kapsner then requested Committee discussion of possible recommendations to the Supreme Court regarding redistricting options. She suggested the Committee could consider alternatives based on whether additional judgeships are approved and where they might be located or based on no additional judgeships.

Charles Place suggested considering three options: the best option if three judgeships are approved, the best option if two judgeships are approved, and the best option if no new judgeships are approved. He said there is a benefit in being bold in making recommendations as it demonstrates to legislators and the public that the judicial branch is actively considering measures to address the challenges before it. In that regard, he said, Options 1 and 2 achieve very little in addressing the needs of the system.

After discussion, it was moved by Aaron Birst and seconded by Judge Anderson that Option 5 be recommended.

Justice Kapsner asked whether the option is to be considered in the context of additional judgeships being approved. Aaron Birst said the option achieves fairly even numbers with respect to judge need even without consideration of additional judgeships. Kristi Venhuizen agreed.

Dave Maring noted that if there are no additional judgeships for the Northwest there will be a significant imbalance between the two proposed judicial districts.

With respect to balance among districts, Charles Place said Option 5B reduces the judge overage in Unit 1 and relieves judge need in the East Central judicial district. He said the most significant concern is that the option would create a one-county judicial district. He said if additional judgeships are approved, the changes in the Northwest would be addressed and the additional judge in the East Central judicial district would further alleviate the judge need in that district.

Dave Maring said of the Option 5 alternatives he would prefer Option 5A.

With respect to Option 5B, which would entail moving the judge chambers from Traill County to Cass County, Judge Anderson said implementing the option would likely be contingent on the repeal of the 70/30 requirement.

Randall Albrecht noted that the average case filings for Unit 2 (East Central and Southeast judicial districts) have declined and then remained relatively stable from 2010 to 2011. He said there has been major growth in Unit 3 (Southwest and South Central judicial districts) that remains unaddressed in any of the options. He said the unit has a judge shortage of -1.38, which may increase if the growth trends continue. With respect to Options 5A and 5B, he wondered whether a third new judge should be located in Unit 3 rather than in the east.

Rod Olson noted that there is a substantive difference between case filings and the weighted caseload analysis in assessing judicial workload.

Following further discussion, the motion failed for lack of a majority. (6 - yes; 6 - no).

It was moved by Charles Placek and seconded by Jack McDonald that the Committee recommend Options 5, 5A, and 5B as redistricting alternatives to be considered by the Supreme Court.

Charles Place said that Option 5B would be his preference.

Justice Kapsner observed that, even without additional judgeships, any of the options appear to result in a better balancing among the judicial districts than the present district arrangement.

Judge Anderson suggested the motion should reflect that dividing the reconfigured Northwest judicial district into two judicial districts is contingent upon the approval of two additional judgeships for the district. Charles Place agreed.

It was moved by Judge Anderson, seconded by Aaron Birst, and carried that the motion be amended in the manner described.

Following further discussion, the motion, as amended, carried. (Judge Narum - no).

Dave Maring suggested it may be beneficial for the Committee to express its support for additional judgeships. Committee members agreed.

It was moved by Dave Maring, seconded by Kristi Venhuizen, and carried that the Committee support approval of the Supreme Court’s request for three additional judgeships.

Chair Kapsner noted that Committee memberships would expire on January 1. She asked that Committee members contact her if any are unwilling to continue to serve.

Chair Kapsner thanked Committee members for their participation and willingness to commit time and effort to review the operation of the judicial system and recommend improvements. She said the 2013 meeting schedule has been distributed and Committee members will be advised regarding whether meetings will be held on the particular dates.

There being no further business, the meeting was adjourned at 1:25 p.m.
___________________________
Jim Ganje, Staff