Judicial Planning Committee February 12, 2010

Judicial Planning Committee

MINUTES Judicial Planning Committee Doublewood Inn, Bismarck February 12, 2010

Members Present
Justice Carol Ronning Kapsner, Chair
Randal Albrecht, Administrator, Medcenter One Living Center
Judge Zane Anderson, Southwest Judicial District
Rep. Lois Delmore, Grand Forks
JoAnne Hoesel, Director, Div. of Mental Health &Substance Abuse Svcs, DHS
Sally Holewa, State Court Administrator
Rep. Kim Koppelman, West Fargo
Dave Maring, Attorney, Bismarck/Mandan
Dave McGeary, Director of Juvenile Court, South Central Judicial District
Judge Daniel Narum, Southeast Judicial District
Kristi Pettit, Attorney, Grand Forks
Charles Placek, Dep. Director of Admin. Svcs, DOCR
Sandi Tabor, Attorney, Lignite Energy Council

Members Absent

Cynthia Lindquist, President, Cankdeska Cikana Community College
Judge Frank Racek, East Central Judicial District

Chair Kapsner called the meeting to order at 9:00 a.m. It was noted that material to be reviewed during the meeting consisted of material distributed for the cancelled January 8 meeting [Attachments B - E and the separately included DHS publication (December 31, 2009)] and additional material distributed for the February meeting [Attachments A and B (February 4, 2010)]. Chair Kapsner then drew Committee members' attention to Attachment B (December 31, 2009) - minutes of the October 9, 2009, meeting.

It was moved by Rep. Delmore, seconded by Sandi Tabor, and carried that the minutes be approved.

Draft Vision Statement

Chair Kapsner next drew attention to Attachment D (December 31, 2009) - the draft Vision Statement resulting from the October 9, 2009, meeting discussion.

Dave Maring noted the reference on line 1 to "a system that excels at attaining justice" and suggested that "delivering justice" may be a more apt expression. Additionally, he suggested the reference on lines 1-2 to attaining justice "for the individual and society" could be more simply stated as attaining, or delivering, justice "for all".

It was moved by Dave Maring, seconded by Aaron Birst, and carried that the draft statement be revised as described.

It was moved by Rep. Delmore, seconded by Sandi Tabor, and carried that the draft Vision Statement, as revised, be approved.

Overview and Discussion of Background Information

At the request of Chair Kapsner, staff briefly reviewed a map depicting judicial districts, administrative units, chamber cities, and judge numbers [included in Attachment E (December 31, 2009)]. Staff also reviewed a summary of practices regarding judge scheduling and service areas outside chamber cities - Attachment B (February 4, 2010).

With respect to chambers locations, Justice Kapsner noted that state law [N.D.C.C.§27-05-08(1)] requires that no more than 70% of chambers can be located in cities with a population more than 10,000. However, she said, the same law provides that a judge may live anywhere in the judicial district in which the judge is chambered.

In response to a question from Rep. Koppelman, Judge Anderson said court schedules are developed to provide a routine judicial presence, as needed, in those locations in which a judge is not chambered.

Judge Narum explained that he is scheduled to be in the counties he serves at least once per month.

Sandi Tabor asked how technology could be used in the future to provide access to judicial services, whether through interactive television, telephone conferences, or some other medium.

Judge Narum said he would be reluctant to use IVN or telephone conferencing for certain cases, such as contested divorces, disorderly conduct restraining orders, or protection orders. He said parties generally deserve a judge's personal presence in most situations. He said IVN is not necessarily conducive to an appropriate consideration of a case. He noted that with the change to the new Odyssey information system he will be able to review files online from another location and in advance of a proceeding. That, he said, should enable a judge to be more prepared.

Sandi Tabor noted that SBAND's Pro Bono Taskforce has discussed the future use of technology as a method of enhancing access to legal services for those who cannot afford to travel. She said the judicial system likely has the tools in place to expand the use of technology as a way of providing access to services; what is needed next is to develop protocols and procedures to govern the process.

Sally Holewa agreed and said different technology platforms, such as Skype, have been reviewed. The current impediment, she said, is a lack of adequate bandwidth to support such an approach.

JoAnne Hoesel said DHS uses an internal Polycom system to provide certain services and the department has found that certain clients and young adults like the process since they are somewhat versed in or accustomed to newer technology.

In response to a question from Rep. Koppelman, Ms. Hoesel said some matters are better handled in a personal, face-to-face, environment, but for other, less complicated or weighty issues different methods of providing a service are useful.

Staff next briefly reviewed a map indicating the location of state-employed clerks of court and a chart depicting the location of juvenile court offices and staff, which were included in Attachment E (December 31, 2009).

Dave McGeary noted that juvenile court staff are not bound by judicial district boundaries and can travel to a county outside of the district in which staff may be located if doing so is a more efficient use to time. He said staff travel to each county to consider juvenile matters; parents generally are not required to travel to staff.

In response to a question from Judge Anderson, Dave McGeary said the objective is for the same juvenile court officer to travel to a general area on a consistent basis so that the court officer becomes familiar with and to local law enforcement, school officials, and others who work with juveniles. With respect to providing services, he said the emphasis is on making the process as convenient for families as possible. He said informal adjustment hearings are generally held in the courthouse. He said in the South Central judicial district emergency shelter care hearings and detention hearings are held primarily in Bismarck to take advantage of block scheduling and meet applicable time requirements. He said hearings are also held in Bismarck because the Youth Correctional Center, a regional detention facility, is located in Mandan.

Staff next briefly reviewed data included in Attachment E (December 31, 2009) regarding 2006-2008 criminal and civil case filings by judicial district and county.

Justice Kapsner explained that for purposes of a weighted caseload analysis a certain amount of time is identified for certain cases to determine how much time is generally required for a judge to dispose of a case.

Judge Narum cautioned that the case number data may be suspect because cases are counted differently in different counties. Sally Holewa noted that data is corrected to account for differences in how cases are counted when the weighted caseload analysis is conducted.

Staff next reviewed information included in Attachment E (December 31, 2009) regarding the location and grades (one, two, or three) of correctional and juvenile facilities in the state.
BR> Charles Placek distributed a chart depicting the location of parole and probation services staff and a map reflecting parole and probation service areas. The chart and map are attached as Appendix A. He noted that there are some locations in which there is only one staff, such as a parole officer.

In response to a question from Rep. Koppelman, Mr. Placek said the two Fargo locations will be combined in the near future. In response to a question from Dave Maring, he said a "correctional agent" is a job classification that allows the person to manage a diversion caseload and a lower risk caseload.

JoAnne Hoesel then reviewed the DHS publication included in the December 31, 2009, material which identifies addiction treatment programs and providers in the state. The publication includes a map of state service regions and the locations of regional human service centers. Ms. Hoesel said the publication describes licensing requirements for treatment providers and the kinds of entities, public and private, that provide treatment services in the state. She said the publication is updated periodically and can be accessed on the DHS website. She explained that there are eight service regions and some outreach programs are in place.

Justice Kapsner observed, and Ms. Hoesel agreed, that the date assembled in the publication tends to show the scope of services provided in larger counties.

With respect to the provision of services in more populated areas, Rep. Koppelman said the tension is between that reality and the concern that some level of acceptable services are available in all areas. He said the same dynamic is present with regard to judicial services - the desire to ensure that services are available at least within a reasonable distance, which is tempered by the awareness that it may be difficult to provide the same level of services in all areas.

In response to a question from Dave Maring about referral sources for clients receiving treatment services, Ms. Hoesel said about 40% of clients have some level of court involvement, while the remainder is a mix of self-referrals, family referrals, and social service referrals. With respect to individuals on probation, she said a court will order an evaluation and the evaluation will then determine the level of care that is required.

With respect to DUI evaluations, Judge Narum said the court will generally receive a letter from the provider outlining recommended actions. He said a hearing is held if the recommendations are contested. If a defendant is on unsupervised probation, he said, the provider will notify the court if the person has not complied with the treatment program.

In response to a question from Sandi Tabor regarding services in tribal areas, Ms. Hoesel said some human service centers have satellite offices on reservations. She said three of the four tribes have licensed treatment programs. She said the department and regional centers work most often with tribal social services programs but typically do not have much interaction with tribal courts.

Committee members next reviewed the summary of county offices that have been combined or shared provided by Aaron Birst. Mr. Birst said that since 1993 approximately 11% of elected county offices have been changed to appointed offices. For example, he said, in 1993 there were 570 elected offices and 97 appointed offices, while in 2007 there were 462 elected offices and 131 appointed offices. Once the offices become appointed positions, he said, offices have generally been combined with other appointed offices. He said county employee numbers have remained fairly stable over the years except in larger counties. He said the irony of combining or consolidating offices is that the practice has tended to result in increased rather than reduced costs. He said there has been some regionalization, primarily with respect to jail facilities, but that too has not resulted in appreciable cost savings. He said regional child support offices, which had been county offices, are now part of the state child support program as a result of recent legislation. There has also been some discussion, he said, of turning veterans service offices into state offices.

In response to a question from Rep. Koppelman regarding whether it is possible to achieve actual efficiencies in combining offices, Mr. Birst said it seems that when services are provided more locally there is less cost, while regionalization seems to increase costs.

In response to a question from Justice Kapsner, Mr. Birst said the Association of Counties often facilitates the development of joint powers agreements.

Sandi Tabor observed that some jails were experiencing difficulties in complying with standards for correctional facilities and counties would have had to incur significant costs to upgrade facilities. She wondered whether counties experienced any savings in regionalizing correctional facilities rather than having to upgrade individual county facilities. Mr. Birst said it is difficult to analyze whether savings have or would have occurred, but there may have been improvement in services irrespective of whether savings actually were achieved.

In response to a question from Rep. Koppelman, Mr. Birst said there have been some efforts to combine state's attorney's offices or share state's attorney services. He said the statutory residency requirement for state's attorneys has been an obstacle in those efforts. He noted that an interim legislative committee discussed the issue but no solution was identified. He said he is uncertain whether he would favor removing the current residency requirement.

Access and Technology Issues - Questions - Discussion

Chair Kapsner then requested general discussion of issues related to judicial services, access, and technology. She encouraged Committee members to discuss freely without assuming that anyone is necessarily advocating for a particular course of action. She said it is important to discuss the various issues as broadly and openly as possible so that potential solutions to problems can be identified. To that end, she distributed a list of initial questions to be considered in the discussion of access and technology issues. She encouraged Committee members to add other questions as necessary. She said she would also be requesting that Committee members serve on subcommittees to review the questions and any other questions the Committee may ident6ify. A copy of the list of questions is attached as Appendix B.

In response to a question from Kristi Pettit concerning the purpose of moving to the new Odyssey case information system, Sally Holewa said the goal is to move the clerks to a better, more modern system to enable them to perform court work more efficiently and to provide better and more timely access to case information for judges and attorneys. She said the new system will also facilitate the judicial system's transition to electronic filing and document access. She said judges will have electronic access to case files anywhere in the state and at any time. She said the Court Technology Committee has concluded that all North Dakota licensed attorneys will have access to all documents on the system except those that are confidential. She said she is concerned that lawyers will have a greater level of access to court information than will the general public.

In response to a question from Judge Anderson, Ms. Holewa said judges and lawyers will have access to system information by way of the Internet.

Committee members then turned to a preliminary discussion of Question 1 on the list: "What core services must continue to be offered in every county on a regular basis?
Justice Kapsner said it would seem that a basic requirement would be the filing and recording of information, i.e., record-keeping, at the local, county level.

Rep. Koppelman wondered whether access could be provided by way of the Internet, through a local kiosk or personal computer, rather than requiring physical, localized record-keeping.

Charles Placek said electronic filing may occur through filing to a central server in some location. He wondered whether it would be possible to file papers electronically in a central location and identify the county of venue or jurisdiction, rather than having to file the papers in the particular county. He asked whether the question's focus on "every county" is too limited and, perhaps, the emphasis could be simply on "court access" without regard to geographical considerations.
Sally Holewa said the forty-one counties that have county clerk staff represent approximately 27 FTEs. She said any discussion of the possibility of centralizing services must keep in mind that it may be very difficult to convince legislators to increase the number of judicial system FTEs in any number approaching the current number of county clerk staff who are providing clerk services.
Sandi Tabor cautioned that enhanced use of technology sometimes means that while a system may no longer need a local personal presence, a "local" FTE, there is nevertheless the need for another FTE, an IT person, to help support the system.

Judge Narum agreed that technology can greatly improve a system with respect to access and storage of information and telephone conferences and other kinds of technology can be effective and helpful in certain kinds of proceedings. But, he said, it is still important to have a local, personal judicial presence given the very personal nature of some proceedings and due to the fact that many do not have access to computers. For example, he said someone having a bench trial on a Class B misdemeanor offense has the right to expect that he will take the time, in recognition of the presumption of innocence, to be there in person to hear firsthand what is said and observe the demeanor of the participants.

Sandi Tabor observed that the availability and location of attorneys are also important considerations. She said a local judicial presence may be an empty accomplishment if there are no attorneys available in the area.

Randal Albrecht emphasized the importance of clearly identifying the "customers", both inside and outside, of the judicial system.

Dave McGeary said consideration is being given to using IVN to conduct annual review hearings for juveniles in placement to avoid requiring the sheriff to drive long distances to bring the child back for what may be a very brief hearing. But, he said, he would be very reluctant to use IVN in a proceeding where a parent is facing the possibility of losing custody of a child.

Rep. Koppelman said the question ultimately requires some consideration of costs and benefits. For example, he said, if it is agreed that some level of service must be available within a county, then does that conclusion require that a traditional courthouse be maintained or is there a more cost-effective method of providing the services. And, he said, if there is a cost associated with providing the services by an alternative method, then consideration must be given to who is responsible for paying those costs.

Sandi Tabor recalled the discussion during court unification of trial court centers and wondered whether it would be possible to establish "mini-regions", for example 2 or 3 counties combining to provide centralized services in a small region. She emphasized that people who must drive long distances to obtain services are not reimbursed for travel costs and many times must take time off work. A very elementary question, she said, is how or whether it is possible to maintain the ability to have all of the people involved in a court proceeding present at the same time in the same room.

Randal Albrecht said it seems to make little sense to place great emphasis on access to the court if other participants, such as service providers, are not available. Sandi Tabor agreed and said attorney presence and the availability of services from corrections, human services, and other entities must be taken into account.

Justice Kapsner suggested it may be beneficial to review how courtrooms are actually used. She said a large space is not needed for some activities but if jury trials are routinely held in a facility then different considerations are involved.

In response to a question from Judge Narum, Aaron Birst said in counties in which there is an infrequent judge presence there is generally no need for additional courtroom space. However, he said, demand for space in larger counties is increasing.

Justice Kapsner noted that it may be worthwhile to consider, as part of a long-range planning effort, basic standards for courthouse facilities based, in part, on the kinds of court activity that usually occurs in the facility.

Judge Narum agreed consideration should be given to establishing some kind of minimum facility standard. He suggested the presiding judge in each judicial district could designate a judge and the unit administrator to visit facilities in the judicial districts and begin a dialogue with county officials about what is necessary in a particular location. He said that if a minimum standard were established, then perhaps the Court Facilities Improvement Advisory Committee could take the standard into account and recognize certain improvements as priorities.

Justice Kapsner drew attention to Question 5 regarding different funding mechanisms for judicial use of space in county facilities and asked whether it is feasible to consider alternatives.

Aaron Birst observed that it is often the case that smaller counties will commit the resources to improve the facility while larger counties, with greater demands for judicial services, are more reluctant to commit resources to facility improvement.

Sally Holewa noted that a recent survey of how court facilities are funded across the country revealed that a surprising number of judicial systems had their own buildings. In other places, she said, the judiciary or state paid rent to the county although there was a variety of ways in which the rent amount was determined.

With respect to the economics of court services, Sally Holewa said court services are delivered in the state more efficiently than in most other places. She said court facilities already exist, clerk services are provided through state-employees or county personnel, and the only extra cost associated with a judge and related personnel traveling to another county are the costs for travel and meals. She said it is difficult to argue that the present method of delivering services should be stopped or changed significantly because of cost.

Questions - Further Consideration - Subcommittees

Chair Kapsner asked that Committee members give some thought to any other questions that could be added to the list of questions on access and technology issues. She said additional information will be gathered regarding the number of attorneys in the state by age and location.

In response to a request from Chair Kapsner for volunteers for subcommittee work and after additional discussion, the following subcommittees were formed:

- Questions 1 and 2: Rep. Koppelman, Charles Placek, JoAnne Hoesel, Dave McGeary, Judge Racek, and Cynthia Lindquist.

- Question 3: Aaron Birst, Judge Narum, Sally Holewa, Randal Albrecht, Sandi Tabor, and Judge Anderson.

- Questions 4 and 5: Dave Maring, Kristi Pettit, Judge Narum, Sally Holewa, Sandi Tabor, Rep. Delmore, Aaron Birst, and Rep. Koppelman.

Chair Kapsner said the subcommittees would review the various questions and provide preliminary reports and suggestions at the next meeting.

Other Topics - Family Court

Chair Kapsner drew attention to Attachment C (December 31, 2009) - a letter from Surrogate Judge Bruce Bohlman requesting that the Committee consider recommending the establishment of a unified family court.

Sand Tabor noted that the SBAND Family Law Taskforce some time ago had studied the possibility of establishing a specialized family court in North Dakota. She said the study consumed a significant amount of time and concluded that the resource commitment would probably be more than what the state could afford.

Rep. Koppelman agreed consideration of the issue would require a significant amount of time and work. But, he said, it may be useful to consider the topic as part of a general discussion of the role of specialized courts in the future.

Following further discussion, it was moved by Sandi Tabor, seconded by Rep. Koppelman, and carried that the Committee review establishment of a family court in the context of the role of specialized courts in the future of the judiciary.

Chair Kapsner will inform Judge Bohlman of the Committee's conclusion.

There being no further business, the meeting was adjourned at 1:00 p.m.

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Jim Ganje, Staff