It was moved by Ryn Pitts, seconded by Judge Foughty, and carried unanimously that the minutes, as corrected, be approved.
Chair Neumann explained that the mission statement tentatively approved at the Committee's December 14, 2001, meeting [Attachment C (February 1, 2002)] was distributed to judges and employees of the judicial system for review and comment. A summary of the comments received regarding the mission statement is included as Attachment D (February 1, 2002). Following a review of the comments by staff, Chair Neumann asked whether the mission statement should be modified in light of any of the comments.
Judge Foughty observed that "independent", as included in the mission statement, seems misplaced and without particular reference. He suggested the term should either be deleted or that the statement be modified to refer to "equal access to an independent judiciary with fair and timely resolution of disputes ... ."
Bob Feidler agreed with Judge Foughty and noted that the concept of independence refers to independence from encroachment by the executive or legislative branches of government, rather than independence from the rule of law.
Justice Neumann asked whether it is necessary to explicitly mention an independent judiciary since that quality seems implied in the concepts of fair and timely resolution of disputes.
Steven Andrist said that, as a lay person, he regards "independent" as meaning free from the influence of outside interests, and he agreed that quality seems to be included within the meaning of "fair and timely" resolution of disputes.
Becky Thiem said it is important to include the reference to independent in the mission statement. The statement, she said, serves an educational purpose as well as being descriptive of the judiciary. Additionally, she agreed with one of the comments that the mission statement seems more directed at civil disputes, rather than including criminal law issues. Perhaps, she said, adding a reference to "due process" would address the concern.
Steve Andrist suggested the possibility of including in the mission statement a reference to "criminal and civil" disputes. Judge Foughty said it is likely not necessary to include a reference to both criminal and civil matters in the mission statement, since both parties in a criminal case, as in a civil case, are entitled to a fair trial and a fair and timely process. Judge Erickson observed referring only to civil and criminal matters might be perceived as neglecting the juvenile court process.
Justice Neumann wondered whether "resolution of disputes" encompasses new kinds of court involvement, such as drug courts or other specialized courts. Committee members generally agreed that a dispute is present at the outset and specialized courts serve as a alternative method of responding to, "resolving", these disputes.
With respect to a reference to an "independent judiciary" in the mission statement, Judge Foughty inquired of the lay members of the Committee whether it is important to include what might be viewed as essentially an educational statement. Ryn Pitts said the reference should be included because it provides an important description of the manner in which fair and timely resolution of disputes is achieved. Steve Andrist disagreed, saying the mission statement is meant for the courts and it should not be necessary to describe that it is for an independent judiciary. Ryn Pitts responded that mission statements are generally for a broader audience than just the affected organization. To that end, she said, an explanatory, educational reference to an "independent judiciary" is of value.
Judge Erickson emphasized that courts are involved in the people's business. He said if the mission statement was intended only for judges, then the reference to an independent judiciary would be unnecessary. However, he said, if the statement is meant to also inform the public, then a useful purpose is served by including the reference.
Becky Thiem drew attention to Attachment F (February 1, 2002) - summary and survey regarding public trust and confidence in the courts. She noted that responses to Question 5 indicate the public is of the opinion that judges are not independent, that they are influenced by political considerations and the need to raise campaign funds. From that standpoint, she said, it is important to emphasize in the judiciary's own mission statement that the judiciary is independent.
It was moved by Bob Feidler and seconded by Judge Foughty that the mission statement be modified to read as follows: "To provide the people, through an independent judiciary, equal access to fair and timely resolution of disputes under law."
Staff noted that one of the comments concerning the mission statement was that the reference to "equal access"is unclear in meaning and nearly impossible to achieve. Judge Foughty agreed equal access may not be completely achievable, but it is a goal the judiciary should seek to achieve.
The motion carried. (Steve Andrist - no)
Staff then distributed and reviewed a draft vision statement. A copy is attached as Appendix A. He said the draft attempts to encompass most of the discussion at the previous Committee meeting. Committee members then discussed each segment of the draft: "Organization and Support Structure", "Dispute Resolution", and "Technology".
Organization and Support Structure
With respect to lines 4-6 regarding development of an administrative support structure, Bob Feidler wondered whether something should be said about the internal administration of the judicial branch and whether participants at all levels have input into development of the administrative process.
Judge Foughty observed that, as a judge, he is satisfied that he has adequate opportunity for comment and participation in the administrative process.
Judge Erickson said that for one hundred years judges were absolutely independent, with no administration or administrative accountability. Essentially, he said, the Supreme Court provided minimal administrative direction and each district was left to manage its own affairs with respect to budget, calendaring, and judge time. He said the Supreme Court has, over recent years, begun asserting more administrative authority, but the judicial districts remain largely in control of how judicial business is transacted in the districts. The result, he said, is varying practices and procedures across the state. If there is a problem, he said, it is not with the lack of opportunity for input; rather it is that there is no uniform application of rules and procedures once they are adopted. He said the judicial system needs to function more as "system" and less as a group of independent actors. That, he said, could be achieved by moving toward a true trial court administrative system with uniform methods of case scheduling, counting cases, and application of rules and procedures. He said those who use the courts should not be burdened with uncertainty about whether a procedure or practice is followed in some places but not others.
Ryn Pitts said the vision statement, as a whole, is good from the standpoint of content but seems not to provide a broad picture of what will be accomplished in the future, how the future will be different from what it is now. She said it is not clear what the vision will be for external stakeholders.
Justice Maring noted that the public trust and confidence survey summary indicates cost and delay in the operation of the judicial system were important concerns for those responding to the survey. She said another survey response indicated a perception that judges do not give adequate time and attention to cases. These are matters, she said, that should be given attention in developing a plan for the future operation of the system.
Becky Thiem wondered whether the vision statement is the place to begin making difficult decisions about how the system should operate and be organized. For example, she noted the third paragraph, which addresses the development of case management and scheduling and provides "[in the district]" as an alternative to possibly a statewide system of management and scheduling. She said the bracketed language could be deleted and leave the vision somewhat ambiguous, or an explicit reference to developing a statewide system of scheduling and case management could be included if that is considered a desirable objective.
Justice Neumann observed that an important question in reviewing the administrative structure and operation of the judicial system is to what extent the system is willing to permit court managers to act on behalf of judges. He noted that the Committee's initial outline of a plan will be presented to the Judicial Conference at its June meeting and the task for the Committee will be to convince a somewhat skeptical audience. In that light, he said, suggesting development of a statewide scheduling and case management system may be sound in principle, but may also serve as a lightning rod for opposition to the plan generally. Consequently, he said a district-wide scheduling system may be more obtainable over the short term and may serve as a useful starting point for discussion.
Becky Thiem agreed there is no "system" as such in terms of process and procedure within the judiciary. Quite often, she said, she is unable to tell her clients what to expect at any given instant. The "rules of the game", she said, are often not clear in terms of procedures followed in different areas of the state.
With respect to the third paragraph concerning case management and scheduling, Judge Foughty suggested the brackets be deleted from "in each district".
With respect to a comment concerning some viewing the judiciary as existing for the benefit of judges rather than the public, Ryn Pitts observed that there was a time when the health care system was organized essentially to serve the doctors and the structure and operation were unsatisfactory. That approach changed, she said, when the health care system began to run short of funding and, as a consequence, began the difficult task of reshaping itself around service to the patient. Perhaps, she said, the judiciary has too much money, which allows each district to go its own way.
With respect to determining how the judiciary is structured, Justice Neumann cautioned that restructuring of the system cannot effectively be obtained by directive from the Chief Justice, notwithstanding that the Chief Justice is the administrative head of the system under the constitution. Achieving effective restructuring, he said, will require finding a way to satisfactorily convince most judges that changes are necessary.
Judge Erickson said empowering administrators would likely help solve many of the issues that have been discussed. He said there are currently too many obstacles that prevent court administrators from effectively doing their jobs. He wondered if one way of addressing some of the problems might be to simply take local budgets away from the respective districts.
With respect to the vision statement, Steve Andrist noted the reference in the second paragraph (lines 4-5) to "rational" distribution of judicial resources and wondered whether what is essentially a value judgment should be included. Additionally, he said the reference to "adequate" judicial services in the same paragraph (line 6) seems to imply services that are just good enough.
Judge Foughty said that in light of the discussion it may be better to leave the question of case management and scheduling open-ended, rather than specifically suggest in the draft statement that the process occur in each district.
Becky Thiem requested that information be provided at the next meeting concerning the present internal structure of the judicial system. Staff noted that a brief overview of the system's structure was included in material for the first meeting, but a more thorough discussion would be part of the Committee's next step in the planning process, which is a review of the organizational structure of the system.
Judge Erickson suggested, and Committee members agreed, there should be a central, overarching principle for each segment of the vision statement.
Committee members then turned to a discussion of the second segment of the draft vision statement concerning dispute resolution.
Justice Maring suggested the first paragraph could be elevated to a central principle for the segment.
Judge Foughty drew attention to the third paragraph concerning establishment of a forum for informal, community-based dispute resolution, with possible use of the municipal courts. He suggested the reference to municipal courts should be deleted since involving municipal courts in such activity would extend considerably beyond what the courts do now. He said it may be a worthwhile discussion in the future, but municipal courts should not be specifically identified in the vision statement at this point. Rep. Devlin agreed the reference to "encouraging consideration" of using municipal courts in this way may be represent too great a commitment given the current structure of the municipal court system.
With respect to the last paragraph concerning enhanced mediation for domestic relations disputes, Becky Thiem said she is uncertain whether mediation should be regarded as the model for use in domestic relations cases, particularly if the aim is to eliminate the adversarial approach in such cases. She said the Joint Committee on Alternative Dispute Resolution, which she chairs, has discussed mediation at length and there are acknowledged shortcomings, or at least problem areas, in the process. She said there may be other approaches, such as family courts, that may be more appropriate. In sum, she said the last paragraph is more specific than would seem necessary. Additionally, she said she would not necessarily agree that the stated goal should be the elimination of the adversarial approach in domestic cases. Rather, she said, the goal should be to provide a fair resolution that works best for the families involved.
Judge Erickson agreed the paragraph is too detailed, too "nuts and bolts". He suggested the paragraph should be redrafted to address the goal of attempting to eliminate the harmful and destructive impact of family law cases on families and children. The important objective, he said, is to provide a system or process that is less damaging to people involved in domestic disputes. Becky Thiem drew attention to a comment in Attachment E (February 1, 2002), which suggests as a response to particular trends that the judiciary provide a more humane method of resolving family law cases.
Committee members agreed the last paragraph of the segment should be redrafted for review at the next meeting.
Discussion then turned to the third segment of the draft vision statement concerning technology. Becky Thiem wondered whether the reference in the first paragraph to technology as a means of maintaining "access to judicial services in rural areas" might be interpreted as substituting access to technology for access to a judicial presence. Steve Andrist said it is important to emphasize maintaining access to services and technology will help achieve that goal. Judge Foughty agreed technology will be an important tool in preserving judicial services in rural areas.
There were no suggested changes at this time to the segment, other than inclusion of an overarching principle.
In response to a question from staff concerning possible additional topics to be included in the vision statement, Becky Thiem said it may be useful to include statements that address public education and outreach, community involvement, and access for self-represented litigants. Justice Neumann observed that these concepts are closely linked to issues affecting the public's trust and confidence in the system. Committee members agreed a segment should be added addressing these topics.
Becky Thiem wondered whether the vision statement should contain a proactive element; that is, a statement that the judiciary is committed to planning and anticipating what may be coming in the future.
Chair Neumann said a revised draft vision statement would be prepared for review at the next meeting.
Committee members next discussed possible trends that may affect the judiciary and the provision of judicial services in the future. Chair Neumann explained that judges and employees of the judicial system were asked to identify the three most significant trends they perceived as affecting the judiciary, possible responses to those trends, and changes the judiciary should initiate over the next five years. He then drew Committee members' attention to Attachment E (February 1, 2002) - a summary of the comments received. Staff distributed a document describing the ten most important and likely trends affecting the courts which is a distillation of trends from planning initiatives across the country (attached as Appendix B), and an April 2001 Population Bulletin from the ND State Data Center showing population changes in North Dakota (attached as Appendix C).
In response to a general question from Chair Neumann about possible trends, Judge Erickson drew attention to the emerging dynamism in higher education which taps into multiple uses of technology. He noted that growing numbers of universities are developing technology parks and expanding services. All of which, he said, can serve as an engine for economic growth and development and mitigate the effects formerly associated with being considered a remote part of the country. He said the impact on the courts may take the form of involvement in kinds of work unlike those in the past, intellectual property issues being a particular example. He noted that in years past there were no intellectual property lawyers in Fargo, while there are now two firms that deal exclusively with intellectual property issues.
With respect to trends identified in Attachment E, Committee members agreed declining population and the shift of population to urban areas is a trend that will affect how the courts provide services, both in terms of judge location and the frequency with which judges travel to rural areas.
Judge Foughty said the reduced number of judges and a declining rural population aggravate a continuing problem concerning how often judges can conduct hearings in outlying areas. Justice Neumann wondered whether future use of technology could facilitate judges handling cases without the need to spend time driving from one location to another. Judge Foughty noted that many hearings in Minnesota are conducted by interactive television, although there may be a high cost for the benefit. He observed that motions hearings in North Dakota are often held over the telephone.
Judge Erickson said at some point declining population reaches a level that will no longer sustain court functions, the most common of which is jury selection. He said with an aging and declining population it will become increasingly more difficult to find people available for longer jury trials. That problem, he said, is moderated somewhat by the ability to select jurors from other counties in the district, but it will continue to be a cause for concern. Ryn Pitts agreed the erosion of basic infrastructure support at the local level will have an impact on how courts can provide services in the area. Judge Erickson noted that a declining population generally also means fewer social services, which courts must access fairly often, as well as fewer lawyers and an aging lawyer population among those who remain. Becky Thiem said declining population obviously translates to a dwindling tax base, which compromises the ability of the local community to provide services and facilities.
Justice Neumann observed that drug courts require a variety of local services and a lack of such services will severely limit the opportunity to use such courts in certain areas.
With respect to the trends identified by judges and court personnel, Committee members agreed declining caseload in rural areas, and the shift to urban areas, will have an effect upon the courts in much the same way as declining population. Judge Foughty said declining population and shifting caseload will require consideration of different methods of service delivery. Judge Erickson said caseload shifting to urban areas also means a concentration of lawyers in the urban areas.
Committee members agreed an aging population generally translates to less crime and fewer criminal and complex civil cases, but more estate and probate cases. It was also agreed that an aging population underscores the need for public administrator and guardianship services. There are also emerging issues concerning adult abuse in the aging population and a lack of dispositional alternatives.
With respect to the identified trend concerning loss of local control and input, Judge Erickson said the issue is a point of contention within the judiciary. Justice Neumann said the concern may be more directly related to a trend toward more administrative accountability. Judge Foughty noted that the central question is control of "what". Judges, he said, have not come to full agreement about what they would like to, or should, control.
With respect to pressure towards more specialty courts, such as drug courts, as a trend, Justice Maring observed that the initial time commitment for judges involved in drug courts appears not to be as great as anticipated. She said a recent review indicated an estimated judge time of about 1.5 hours per week in drug court and about 1 hour in staffing. She emphasized that the time estimates do not include training and advisory group activity. She noted that the expense associated with the drug court is primarily related to the intensive drug testing process.
In response to a question from Ryn Pitts concerning whether all judges are qualified for specialized courts, Justice Maring said drug courts require judges of a certain temperament and there is also specialized training that is required.
Committee members agreed a trend toward increased use of specialty courts would have an obvious impact on staffing and budgets.
With respect to self-represented litigation as a possible trend, Justice Neumann said there is a clear trend in other parts of the country toward more self-representation and court systems have implemented programs of varying kinds and cost in response. In response to a question from Ryn Pitts, he said there are no firm statistics concerning self-represented activity at the trial court level, but modifications have been made recently to the judiciary's information system that will permit tracking cases involving self-represented litigants. Staff noted that the Court Services Administration Committee is currently reviewing a number of issues concerning the impact of self-represented litigants. Judge Erickson observed that when self-represented parties are involved civil cases take more time to resolve, while criminal cases take less time.
Committee members agreed that to the degree self-represented litigation is a discernable trend in North Dakota, it would likely involve more staff time to respond to demands for court services and perhaps the development of forms.
With respect to increasing racial and ethnic population as a trend, Judge Erickson observed that nearly one-half of the recent population growth in Cass County is attributable toan increased number of immigrants. Following discussion, Committee members agreed trend-related effects in this area include the need for culturally appropriate interpreters, and the associated expense; the need for increased cultural awareness and related education programs; an increased need for social services; complications for the jury selection process; and increased training for judges and court staff. It was also agreed these issues are equally compelling with respect to the increasing American Indian population, particularly among the young.
Becky Thiem wondered whether an informal, community-based dispute resolution process might be particularly helpful for disputes involving immigrants.
With respect to the need for improved court facilities, or the lack of appropriate facilities, as a trend, Committee members identified the following possible trend-related effects: increased cost of technological improvements, security requirements, fewer jury-ready courtrooms, and accessibility issues related to the Americans with Disabilities Act.
Rep. Devlin suggested the identified trend concerning increasing drug-related criminal caseloads in rural areas is likely more of an issue for law enforcement than for the courts. He said there are fewer dispositional resources, such as probation services, in rural areas and as a result criminal defendants are more likely to be sent to the state penitentiary.
Judge Erickson noted the suggested trend regarding increased difficulty, with 42 judges, of implementing effective settlement conference processes. He said settlement conferences rarely save judge time, but they do aid in settling cases and saving clients' money, which are positive results.
In response to a question from Becky Thiem regarding problems associated with the reduced number of judges, Justice Neumann said the Supreme Court is concerned about whether there are adequate judicial resources in the state, but that at this point there is no data indicating the state is under-judged. Justice Maring observed that the judiciary may encounter problems with the current number of judges if there is greater demand for specialty courts, such as drug courts.
Judge Erickson said the reduced number of judges has lent impetus in the larger districts to more accelerated case processing. For example, he said, in Fargo the time from filing to date of trial for criminal misdemeanor cases has been shortened from 16-20 weeks to 12 weeks. He observed that if cases are scheduled for trial 6 weeks from the defendant's first appearance, and the court refuses to grant continuances, there is greater likelihood that the cases will settle. Becky Thiem wondered whether that was necessarily a good result. Judge Erickson said it may not be a positive development, but the reduced number of judges means judges must dispose of a certain percentage of cases each week or a case backlog begins to build. Judge Foughty observed that the question may not be whether more judges are needed to ensure justice is done, but whether there are sufficient numbers of defense attorneys and prosecutors to ensure cases are adequately prepared.
Justice Neumann observed that while data may not clearly indicate there is an insufficient number of judges, it does seem apparent that judicial resources may not be allocated in a way that ensures an equitable distribution of judicial work.
With respect to the identified trend concerning downturns in the economy, Ryn Pitts said while North Dakota experiences economic troubles from time to time, it does not seem to experience the aggravated economic fluctuations that affect other parts of the county. Judge Erickson said a crisis in agriculture, as has occurred in the past, seems to nearly grind the courts to a halt. He said there is generally an increase in divorces, cases in which confiscatory price defenses are asserted, foreclosure actions, as well as increased cases involving criminal conduct. Justice Neumann observed that a downturn in the regional economy, such as that associated, for example, with closure of an Air Force base, may have similar effects. Becky Thiem said an economic downturn would have an obvious impact on the state budget, which may place possible constraints on the judicial system budget. Justice Neumann said budgetary considerations underscore the need for the judiciary to constantly measure workload and increase efficiency so that it can be demonstrated that there is no waste in the judicial budget should fiscal concerns arise.
With respect to information for the next meeting, Becky Thiem said it would be helpful to receive information on the judicial budget process; for example, how funds are allocated among districts and who exercises control over the budgets. Additionally, she said it would be helpful to understand more about the status and role of various personnel, such as trial court administrative staff.
Chair Neumann said that after the Committee reviews the current organization of the judicial branch, it may be useful to consider the results of the discussion on administrative organization which occurred at the most recent meeting of the Judicial Conference. He said the short term objective for the Committee is to present the outlines of a plan to the Judicial Conference at its meeting on June 13 and 14. To that end, he said, the Committee's March 28 meeting would entail a brief review of the revised vision statement, an informational presentation regarding the budgeting process and the general organization of the judiciary, and then a more detailed discussion of how the judiciary is organized, or might be organized, to enable it to fulfill the mission and vision. He said the Committee may also begin work on the initial outlines of a plan for the judiciary. The April 26 meeting, he said, would then be focused on further refining the basic outlines of the plan.
In response to a question from Chair Neumann, Committee members agreed the June meeting of the Judicial Conference should also be considered a meeting date for the Committee. Chair Neumann encouraged members to attend at least on June 13 so they can participate in the Conference's discussion of the initial plan.
There being no further business, the meeting was adjourned at 2:45 p.m.
Jim Ganje, Staff