Judicial Planning Committee February 11, 2011

Judicial Planning Committee

MINUTES
(unofficial until approved) Doublewood Inn, BismarckFebruary 11, 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 (joined meeting at 10:30 a.m.)
JoAnne Hoesel, Director, Div. Of Mental Health & Substance Abuse Svcs, DHS
Louie Hentzen, Ass’t State Court Administrator (for Sally Holewa, State Court Administrator)
Cynthia Lindquist, President, Cankdeska Cikana Community College
Judge Daniel Narum, Southeast Judicial District
Dave Maring, Attorney, Bismarck/Mandan
Dave McGeary
Kristi Pettit, Attorney, Grand Forks
Charles Placek, Dep. Director of Admin. Svcs, DOCR
Judge Frank Racek, East Central Judicial District

Members Absent

Rep. Lois Delmore, Grand Forks
Rep. Kim Koppelman, West Fargo
Sandi Tabor, Vice President of Government Affairs, Lignite Energy Council

Chair Kapsner called the meeting to order at 10:00 a.m. and drew Committee members’ attention to Attachment B (February 4, 2011) - minutes of the October 8, 2010, meeting. She noted a sentence fragment on page 5, fifth full paragraph, and asked staff to review the October discussion for purposes of correcting the reference.

It was moved by Dave Maring, seconded by Dave McGeary, and carried that the minutes, as corrected, be approved.

At the request of Chair Kapsner, JoAnne Hoesel summarized a report on the state’s aging population (“Aging Is Everyone’s Business”) recently completely by DHS. She said the report will assist in the department’s service delivery efforts with respect to the aging population. She said the report highlights the demographic distribution of the aging population and details movement within the state of the population. She said the report may contain information useful to the Committee’s planning discussions. The report can be viewed at http://www.nd.gov/dhs/info/pubs/docs/aging/2010-report-aging-is-everyones-business.pdf.

Judicial Redistricting - Cont’d Discussion

At the request of Chair Kapsner, staff briefly reviewed Attachment C (February 4, 2011) - maps regarding administrative units, judicial districts, and the location of state-employed clerks, and Attachment D (February 4, 2011) - information related to redistricting, including an excerpt from minutes of the Administrative Council meeting at which referral of the issue to the Committee was discussed, constitutional and statutory provisions, supreme court rules, and general population and case filing data.

As an aid to discussing redistricting issues, Justice Kapsner distributed a summary of the kinds of information the Supreme Court reviews when considering the location of particular judgeships. She said the distribution of judicial resources, to include judgeships and judicial referees,is reviewed based on a weighted caseload analysis, which generally analyzes judge numbers in relation to caseload and weights assigned to particular case types, and time commitments related to travel requirements. She said the numbers in parentheses, e.g., (4.07), reflect the judge “shortage” in a particular judicial district. She said the Supreme Court also reviews data related to population in judicial districts and case filing trends. A copy of the summary is attached as Attachment A.

Justice Kapsner noted that the Administrative Council discussion suggested the possibility of more limited redistricting efforts such as changes to certain district boundaries. She said changes that have been generally mentioned include placing Renville County within the Northwest Judicial District and placing Logan and McIntosh Counties in the Southeast Judicial District. She said the summary information, on the second page, generally analyzes the impact on case filings in the respective judicial districts if those realignments were made. She said a more thorough analysis of filing data and several other factors would be required before a general realignment recommendation could be made.

In response to a question from Judge Anderson regarding what prompted the Administrative Council’s referral of the redistricting issue, Justice Kapsner said there was apparently an interest in possible, more narrowly-focused, changes in district boundaries, particularly with respect to Logan and McIntosh counties. She observed that a review of these relatively minor district changes would likely require consideration of a number of other issues such as election areas for judges and administrative costs associated with realignment.

Judge Anderson said that current data suggest that, from a service perspective, there may be four judicial districts that could be considered “functional” in that judges generally travel throughout the district, while three districts could be considered “dysfunctional” in that particular judges generally serve only particular areas within the district.

In response to a question from Dave Maring regarding the meaning of the functional vs. dysfunctional description, Judge Anderson said a “functional” status would reflect that a judge has some direct service relationship with the area in which the judge is elected. Justice Kapsner asked whether there would be any election problems associated with that approach. Judge Anderson responded that further study would be required to determine how to ensure that a judge’s election district reflected the area actually served by the judge. He said the current administrative unit structure has worked well, consequently the inquiry could be limited to election district configurations.

Dave Maring suggested the statute that generally limits the area within which a judge can act (N.D.C.C. §27-05-22) should be reviewed as part of any redistricting inquiry.

With respect to whether a district is considered functional or dysfunctional, as described, Charles Placek suggested the possibility of establishing smaller, more numerous districts within the four large administrative units for the purposes of election and service delivery. He noted that historically some judicial districts within the state were divided into “sub-districts” for purposes of administration and judicial services. He said the statute limiting the area in which a judge can act could be amended to allow the judge to act anywhere within the larger unit.

With respect to possible district rearrangements, Judge Anderson said the Northwest judicial district, for example, might be divided into two districts, with one comprised of the general Williston area and the other comprised of the general Minot area. He said the Southeast district, for example, might also be divided into two districts, with one comprised of the general Wahpeton area and the other comprised of the general Jamestown/Valley City area. He said the Northeast district, for example, could be divided into two districts, with one comprised of the general Bottineau/Rugby area and the other comprised of the general Devils Lake/Cavalier/Grafton area. The net effect, he said, would be to increase the number of judicial districts from seven to ten.

In response to a question from Justice Kapsner regarding the impact of such a rearrangement on administrative practices, Louie Hentzen said if the current administrative unit structure were left unchanged there likely would be minimal impact on administrative efficiencies or practices.

Dave Maring suggested that for simplicity’s sake the judicial districts within the four administrative units could be referred to by number, rather than the various geographic designations, e.g., Northwest, Northeast, SouthCentral.

Justice Kapsner asked whether, from an elector’s perspective, there would be a preference for a larger or smaller judicial election district.

Charles Placek observed that if a judge is elected by and actually serves the citizens in the election area, then a smaller district is likely to be preferred to enhance the personal relationship between the judge and electors.

Judge Narum said a smaller district is preferable as a matter of simple electability.

Justice Kapsner asked whether smaller election districts would increase the number of cases in which recusal may be an issue because of conflicts and which then may result in more judge reassignments in and out of the district. Judge Narum said a more local election area may result in reassignments because of conflicts but he observed that reassignments already occur in his area.

Judge Racek said from the perspective of an entire organization, the objective should be to achieve a general commonality of purpose, that is, a structure that enables those in the system to work in response to general objectives. For example, he said there is one district with three judicial officers, while another has ten judicial officers. There are, he said, three administrative units with trial court administrators and trial court managers, while one unit has only an administrator. He said the wide variances in staff and differences in circumstance invite difficulties in operating as one system with relatively uniform rules and practices. He said a list of those things that could serve a commonality of purpose within the system might include having areas or districts that serve approximately the same population numbers, with roughly the same number of administrative staff and roughly the same number of support personnel and judicial officers. Such an approach, he said, might preclude, among other things, issues regarding differences in resource distribution.

Justice Kapsner observed that simple geography and population distribution represent serious obstacles to achieving the kind of common approach described. Judge Racek agreed but said technology enhancements through the Odyssey System likely will provide ways to address problems associated with geographic limitations, the most apparent of which is the reduced need to travel to address relatively routine activities such as signing papers.

Judge Anderson observed that starting at the beginning and envisioning how to create a more perfect system, with commonality across the system, would be a significant undertaking and political considerations would likely surface in one form or another.

Judge Racek said that, from a judicial planning perspective, the task should be to articulate the general goals of the judiciary and not necessarily the detail of how those goals would be accomplished. He said adjusting judicial district boundaries by moving the district location of one or two counties likely will not change how the judiciary as a whole operates.

Chair Kapsner said the planning discussion would benefit from a consideration of the similarities and dissimilarities within the judicial system that may facilitate or compromise the system’s ability to function with a common purpose. She asked whether Judge Racek would be willing to compile a list of similarities and dissimilarities, from his perspective, that affect system operation. Judge Racek agreed to work on such a list. He noted that the system has two general sides: the decision-making side, which is case- and problem-specific, and the “mass-production”, administrative side, which is concerned with the general movement of things through the system. Each side, he said, has its own perspective and issues to consider and it is important to consider the issues from both sides.

Randy Albrecht noted that the state is comprised of eight executive branch regions while the judicial system is comprised of a different number of judicial districts. He wondered whether there is utility in considering how services are provided by other governmental entities and whether similar arrangements could achieve some consistency in service delivery within the judicial system.

Committee members agreed the arrangement of executive branch regions should be reviewed when considering possible district boundary changes or recommendations.

In light of the general discussion, Chair Kapsner asked whether there were general conclusions about how the Committee should proceed with the redistricting inquiry.

Judge Narum asked whether the Committee should simply make a general recommendation regarding redistricting or develop a more detailed proposal for consideration.

Chair Kapsner said the Committee’s general objective is to envision what the judiciary needs or should look like in the future. She said that objective is broad in scope and likely would not entail making a recommendation regarding a specific county location in a judicial district. However, she said, the Committee could consider whether the judicial system is better served by larger judicial districts, smaller judicial districts, or some other arrangement.

Judge Anderson observed that if consideration is given to enlarging judicial election districts, then the method of electing judges likely should also be considered. He said a retention election process, for example, would be a fairer process if districts were to be made much larger.

Chair Kapsner asked whether there was general agreement that the current administrative unit structure is acceptable.

Judge Racek said there is likely no need for a change in the geographic arrangement of administrative units. But, he said, there may be considerations across units regarding the correlation between administrative staff and the population served in the unit or the number of employees supervised. He said there may be disparities in the scope of services provided and the level of responsibilities among the various units.

Chair Kapsner said further discussion would be deferred until Judge Racek provides an initial list of system similarities and dissimilarities. She said the Committee would further consider issues related to changes in the size of judicial districts after discussing methods of judicial selection.

Court Facilities - Standards and Collaboration with Counties - Cont’d Discussion

Chair Kapsner drew attention to Attachment E (February 4, 2011) - Chief Justice VandeWalle’s State of the Judiciary remarks to the 62^nd Legislative Assembly regarding court facility funding. She noted the Chief Justice’s emphasis on the importance of addressing facility needs in the various counties and considering alternative ways of providing state funding to counties to offset facility expenses. She noted also the continuing tension mentioned in the Chief Justice’s remarks between the statutory obligation of counties to provide court facilities and the transfer to the state from the county of revenues associated with court fees.

Chair Kapsner recalled the Committee’s previous general recommendation about developing standards for court facilities which would enable a county to determine the kind of facilities the county would be willing to support. She noted that the Committee has outlined the core functions to be available in each county. She asked whether the Committee should proceed further in the development of the core functions and whether the Committee should further develop principles to form the basis of the facility standards.

Dave Maring said he agreed with pursuing both efforts. However, he noted earlier mentions of the trial center concept and suggested there is some friction between that concept, i.e., a plan recommendation that there be certain areas with larger facilities able to handle significant trial activity, and the concept of letting each county decide the kind of facility the county should have. He said it is not clear whether the Committee has come to a firm conclusion about the relationship between the two concepts.

Judge Anderson said discussion of “standards” likely brings to mind “mandates”, and particularly “unfunded” mandates. He asked how counties would be expected to pay for the standards that may be put in place. He said security measure may be a good example of something a standard may dictate, but which the county would have to fund or for which additional personnel may be required.

Aaron Birst said counties would be amenable to standards because they would form a basis for informed county decision-making regarding facility costs. However, he said the development of standards would be better received as the result of a bottom-up collaboration, rather than being the result of a mandate from the judicial system.

In response to a question from Dave Maring, Aaron Birst affirmed that it would be preferable to devise various options for facilities and allow each county to select the kind of facility the county is willing to support.

Justice Kapsner asked what the response might be if, for example, there were some number, perhaps four to six, “trial centers” located throughout the state with facility enhancements made by the judiciary to handle major trials. Aaron Birst said something similar is already occurring since major trials tend to be conducted in the major cities. He said the obvious concern is that the practice not result in eliminating judicial services to rural areas.

Judge Anderson asked whether the Court Facilities Improvement Fund has been a sufficient source of funding to the counties for facilities improvement. Aaron Birst said the fund has been a substantial aid for general improvements but it is probably not adequate to address significant facility needs in the larger counties.

In response to a question from Cynthia Lindquist, it was noted that state funds are not generally available to counties to address court security issues. She said that seems to be a serious shortcoming and there should be greater public education about the importance of security issues within the courts.

Louie Hentzen observed that security is often narrowly considered to be only a “court” matter. He said security is a much broader issue within the courthouse and affects the safety of the general public as well as other county officials located in the courthouse.

Judge Anderson said there is also an important issue regarding the safety of jurors.

Chair Kapsner said the Committee should continue to consider issues related to court security for purposes of future recommendations.

Dave Maring said his subcommittee would include security issues in the further discussion of facility standards.

Judicial Selection

Committee members then turned to a continued discussion of issues related to judicial selection.

Dave Maring drew attention to a USA Today article (distributed by email) describing a recent Iowa judicial retention election in which members of the state Supreme Court were not retained. He said there was considerable public and special interest opposition in response to the justices’ participation in an opinion invalidating Iowa restrictions on gay marriage. He noted that as a result of recent U.S. Supreme Court opinions candidates for judicial office can be more politically active and more special interest money can flow into judicial races. He said one argument in favor of a retention election process was the expectation that the process might blunt the impact of political issues on judicial elections. He said the Iowa experience, and a trend in other states, indicates the impact of political issues can occur in retention elections just as it can occur in partisan or non-partisan election contests. However, he said the Committee should not ignore the issue of judicial selection as part of the planning process even if the experiences in other jurisdictions seem remote in North Dakota.

Justice Kapsner observed that at recent judicial investitures Chief Justice VandeWalle has thanked candidates for their civil and positive campaign activities. Nevertheless, she said there is concern that issue candidacies will arise and outside funding in judicial campaigns will increase.

With respect to the Iowa experience, Charles Placek asked if there are limits that could have been placed on the amount of funding that came into the election. Dave Maring said there likely are few limitations that could be implemented, particularly in light of the recent U.S. Supreme Court opinion in Citizens United v. Federal Election Commission. He reiterated that issues related to the potential for increased outside funding in judicial elections now appear similar regardless of whether a retention election process or a normal election process is involved.

Justice Kapsner drew attention to a very recent Court Review article that had been provided for Committee member information and review [ The Debate over the Selection and Retention of Judges: How Judges Can Ride the Wave by Judge Mary Celeste, President, American Judges Association]. She said the article surveys several issues associated with methods of electing judges and the potential impact of recent U.S. Supreme Court opinions on how judicial elections are conducted. The article, she said, suggests several possible interim remedies that might be considered in states that elect judges, including 1) campaign finance and public finance laws, 2) oversight commissions, 3) pledges by candidates to abide by Codes of Judicial Conduct, 4) mandatory qualifications, 5) enhanced voter awareness and education, and 6) extended term lengths. She wondered whether any of these remedies have potential in North Dakota. A copy of the article is attached as Appendix B.

With respect to public financing of judicial elections, Dave Maring noted that such an approach would not limit the potential for outside funding being expended in a judicial election.

With respect to judicial elections generally, Kristi Pettit observed that most voters do not know very much about specific judicial candidates.

Judge Narum noted the growing popularity of social media such as Facebook, MySpace, and twitter. He said some judicial candidates have created websites or used Facebook during campaigns. He said a lawyer posting on a judge’s or candidate’s Facebook page may be perceived as exhibiting some level of partiality towards the candidate or judge, or vice versa.

Charles Placek asked whether it would be possible to develop a series of questions to be answered by candidates which would provide a base of information about the candidate to the public.

Justice Kapsner observed that the important question would likely be exactly what the public may want to know about a candidate.

Randy Albrecht said the growing presence and impact of social media might suggest that questions and their answers could be easily manipulated unless the questions are so basic that the information is without much benefit.

Mr. Placek said it is clear that the electorate would like more information about candidates and the question is how to get ahead of the emerging problem associated with information generated by outside sources.

Judge Racek said local bar associations may be the best vehicles for educating the public about judicial candidates in particular judicial districts. He said one uncertainty may be how many times the pubic is willing to elect the same person to a judicial office before reaching a point of wanting to know more information about the judge’s performance. He said there may be some interest at some point, for example, in how the judge is maintaining credentials or how the judge is performing the duties of the office. Additionally, he noted that some lawyers may have limited contact with judges over a period of time. Consequently, he said, it is not surprising that there are not very high return rates for surveys distributed by the bar association about judicial candidates.

Judge Anderson said the bar association surveys serve a useful purpose and he would encourage their continued use. He said low survey return rates may be attributable to surveys being distributed state-wide. Since a candidate is running for office in a judicial district, he said, surveys likely would not be returned by lawyers in other areas of the state who may have limited experience with the candidate. Kristi Pettit agreed lack of contact with a candidate would limit responses.

With respect to a possible series of questions to ask candidates, Justice Kapsner suggested very basic questions might be asked about, for example, education, time as a lawyer, and areas of practice. Charles Placek said that information would likely be helpful to a voter and suggested the possibility of asking questions about such things as judicial workload and docket currency if the candidate is an incumbent judge.

Dave Maring said the questions and answers could possibly be placed on the SBAND website with advertisements or notices about the availability of the information.

With respect to the broader issue of public awareness, Justice Kapsner said the Committee should consider additional methods for enhancing voter education.

Louie Hentzen suggested the possibility asking high school teachers participating in the Justices Teaching Institute about their level of knowledge about judicial elections and what they might consider important to know.

In response to a question from Justice Kapsner, Kristi Pettit said the bar association would likely be interested in a joint project to address issues of voter education and awareness about judicial elections. Additionally, she said she may be able to provide statistics on the return rates for attorney surveys about candidates.

Cynthia Lindquist said the project could also be considered a part of general civic education and an effort to engage voters and increase voter turnout.

Dave Maring asked whether the Committee should discuss further the concept of public financing in tandem with providing more information to voters and the general public. He cautioned, however, that public education efforts may have limited effect if a single-issue interest group is determined to become involved in a particular election.

After further discussion, Committee members agreed to review additional information regarding public financing of judicial elections.

There being no further business, the meeting was adjourned at 1:15 p.m.
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Jim Ganje, Staff