|Members Present |
Justice William A. Neumann, Chair
Judge Ralph Erickson
Judge Donovan Foughty
Justice Mary Muehlen Maring
|Members Absent |
Rep. William Devlin
Rep. Nancy Johnson
Chair Neumann called the meeting to order at 10:00 a.m. and drew Committee members' attention to the minutes of the April 26, 2002, meeting.
It was moved by Judge Erickson, seconded by Judge Foughty, and carried unanimously that the minutes be approved.
Judicial Conference/Group Decision Center Process - Review
Chair Neumann asked for any comments Committee members might have concerning the Judicial Conference sessions regarding planning and administrative reorganization.
With respect to the general computer-based discussion, which was facilitated by the Group Decision Center, Becky Thiem said that she, as a long-time practicing attorney, was unpleasantly surprised by the lack of civility in many of the comments, particularly some of the comments that took the form of personal attacks. She wondered whether there is a real, fundamental unhappiness lurking within the judiciary. Connie Sprynczynatyk said she, as a lay member, was also surprised at the level of animosity and how quickly criticisms became personalized.
Judge Erickson said there is, in fact, deep-seated unhappiness within a small segment of the judiciary, which can be attributed, at least in part, to the pain and process of court unification. He said the reduction in the number of judges, particularly towards the end of the process, and the cultural differences that existed between county and district judges are two factors that have contributed to the morale problem. He noted that some district judges did not take well to having to handle the more prosaic kinds of cases associated with county court. All of these factors, he said, lead to a difficult transition for some who were district judges at the time county and district courts were combined into a single level trial court.
Draft Planning Recommendations - Review
Committee members then began a review of Attachment B (July 11, 2002) - draft planning recommendations. Staff said the draft recommendations are based on matters previously discussed by the Committee and some of the points raised during the Judicial Conference. He noted that the recommendations do not follow the sequence of the previously approved Vision Statement and portions of the early recommendations are a working-out of specific components in the Vision Statement, supplemented by points made during Committee discussion.
At the request of Chair Neumann, staff then briefly reviewed the first recommendation segment concerning public trust and confidence. He noted paragraph 4, which discusses recommended actions with regard to the status of municipal courts within the judiciary.
Justice Maring suggested the phrasing in the individual paragraphs be modified to replace the references to "should continue", which seems too tentative, with language that more forcefully expresses the action to be pursued. Connie Sprynczynatyk agreed.
It was moved by Justice Maring, seconded by Connie Sprynczynatyk, and carried unanimously that the phrasing be modified as discussed.
With respect to paragraph 4 concerning municipal courts, Connie Sprynczynatyk noted a recent League of Cities conference at which several questions concerning the status and operation of municipal courts were raised. She said it would be helpful for the judiciary to focus more attention in this area as issues involving municipal courts will continue to arise.
At the request of Chair Neumann, staff reviewed the next segment of recommendations concerning the role of technology in the judiciary.
Justice Maring suggested, and Committee members agreed, that the phrasing in paragraphs 1,2, and 3 should likewise be modified to reflect a more assertive expression of recommended actions.
Justice Neumann noted that some references to "should continue" reflect the fact that activity in certain areas is already underway. Becky Thiem suggested, and Committee members agreed, that language should be included in the prefatory statement acknowledging that the Committee is aware that initiatives are underway with respect to some of the recommendations, but that the Committee intends to emphasize the importance of continuing those efforts.
At the request of Chair Neumann, staff reviewed recommendations concerning dispute resolution.
Justice Maring suggested, and Committee members agreed, the reference to "continue" in the first paragraph should be modified.
In response to a question from Becky Thiem concerning paragraph 3, which recommends investigating community-based resolution programs similar to those implemented in Minnesota, Justice Neumann explained that Minnesota law provides for the establishment of community alternative dispute resolution programs that are funded through monies appropriated to the state supreme court. He said the programs are intended to provide a community-based mechanism for resolving minor disputes.
Justice Maring wondered whether the reference to "alternative dispute programs" in paragraph 4 may lead to confusion. She recalled that the discussion of marshaling community resources, which is the focus of paragraph 4, concerned alternative programs such drug courts or other therapeutic justice programs. The reference to "alternative dispute programs", she said, may be regarded as including such things as mediation or arbitration. Becky Thiem suggested, and Committee members agreed, that "alternative" be deleted from paragraph 4, leaving a simple, general reference to "dispute resolution programs".
Becky Thiem questioned the reference in paragraph 6 to the judicial system supporting aggressive case management insofar as the judiciary develops case management practices in the first instance. She said the paragraph could perhaps more accurately recommend that the judicial system "should provide" aggressive case management. Committee members agreed. Judge Erickson suggested the recommendation should also address the need to adopt mandatory filing. He said effective case management cannot realistically occur without implementing mandatory filing and noted by way of example that he had recently received a case that was nearly five years old. That, he said, cannot be regarded as satisfactory by clients or the system. Justice Neumann observed that the first part of paragraph 6 addresses case management and screening to identify cases appropriate for mediation. He said the concerns expressed about timely disposition of cases and the role of mandatory filing apply more directly to the second part of the paragraph, which recommends management and screening to move "other cases to disposition without undue delay." Becky Thiem said the filing issue is related to both, in that cases cannot be moved to mediation and resolution if they are not within the system. Judge Foughty noted that mandatory filing is a controversial issue, particularly with respect to collection and medical malpractice cases. Judge Erickson said that while most states allow service before filing, they also require filing within a realistic, identified time after service.
Justice Maring suggested paragraph 6 should be further modified to refer to moving "all", rather than "other", cases to disposition without undue delay. Committee members agreed.
Committee members next considered that part of the draft recommendations regarding the judicial system's administrative and operational support structure. At the request of Chair Neumann, staff reviewed paragraphs 1 through 3 of the first segment of recommendations relating to measuring workload, ensuring availability of adequate court facilities, and investigating ways of ensuring municipal courts are sufficiently supported.
Justice Neumann noted the increasing interest, particularly among the legislative branches across the country, in performance-based budgeting. In light of that interest, which may become a point of discussion in North Dakota, he said it may be useful to include in this segment of the recommendations language encouraging the judicial system to measure system performance and outcomes.
At the request of Chair Neumann, staff distributed an article from the most recent Judges' Journalin which the author, John Greacen, recommends that judicial systems begin to implement performance-based budgeting processes. Staff noted the article indicates that in several states statutes have been enacted which establish a process for the judicial branch to identify performance measures and outcomes and develop budget requests based on that information. A copy of the article is attached as an Appendix.
At the request of Chair Neumann, staff then summarized selected state statutes concerning performance-based budgeting. Staff also briefly reviewed the Trial Court Performance Standards developed by the National Center for State Courts, which provide a methodology, although the Greacen article indicates it is an unsatisfactory one, for analyzing and measuring court performance in a number of areas.
Justice Neumann observed that the National Conference of State Legislatures has recently discussed the possibility of legislatures subjecting courts to performance-based budgeting. It may be wise, he said, for the judiciary to be prepared to forestall legislative attempts to mandate a specific method of measuring court performance. To do that, he said, it may be best for the judiciary to be proactive and implement a measurement process on its own accord. It is difficult, he said, for courts to know how they are doing if there is no process in place to analyze and measure performance and outcomes.
Judge Erickson suggested, and Committee members agreed, that paragraph 1 should be modified to provide, in part, that the judicial system should constantly measure judicial workload "and system performance".
In keeping with previous changes, Becky Thiem suggested paragraph 3 regarding support for municipal courts should be modified to provide that the judicial system "should ensure" municipal courts are sufficiently supported. Committee members agreed.
At the request of Chair Neumann, staff then reviewed the next segment of administrative organization recommendations, which pertains to establishment of an administrative council, establishment of administrative regions, and review of the committee structure.
Discussion then focused particularly on paragraph 1 regarding the composition of the recommended administrative council.
With respect to the Judicial Conference discussion of this topic, Becky Thiem said it was not clear why there was so much concern about including lawyer members on the council. Additionally, she said she did not understand the hesitancy and concern about including the state court administrator as a member of the council.
Judge Erickson observed that there likely are not as many judges as it might have seemed who are opposed to including a lawyer member on the council. He said the Committee should recommend that lawyers be represented on the council because lawyers will have to deal with at least some of the policies developed by the council. Becky Thiem agreed and noted that lawyers reflect the view of consumers of judicial services. After discussion, Committee members agreed the Committee should recommend that at least one lawyer should be included in the council membership.
With respect to the state court administrator serving as a member of the council, Judge Foughty observed that the state court administrator is essentially an employee, albeit appointed by the Chief Justice. Including the state court administrator as a member, he said, might be perceived as essentially giving the Chief Justice two votes. Justice Neumann observed that including the state court administrator as a member might also be perceived as giving the state court administrator two opportunities at influencing the Chief Justice. He said it may be preferable to retain the present language in paragraph 1, which essentially leaves it to the Chief Justice to determine how the state court administrator would participate in council activities. Committee members agreed.
Justice Maring suggested the council composition should be made explicit in the recommendation set out in paragraph 1. After further discussion, Committee members agreed the council membership should consist of the Chief Justice as chair, the presiding judge from each administrative unit, one Justice, one district judge elected at large from each administrative unit, and at least one lawyer.
With respect to paragraph 2 regarding the establishment of administrative units, staff noted that Judicial Conference discussion of the number of units was somewhat fractured and did not result in any particular preference. Judge Erickson observed that the division of opinion regarding administrative units likely reflected a basic difference between rural and urban judges. Becky Thiem asked what would be the best number of units if the determination was made based solely on workload, geography, and other relevant criteria and without regard to simple fears and suspicions.
Judge Erickson said one administrative unit likely would not be practical and two units would tend to perpetuate the rural and urban division among judges. He said three units results in caseload and number of judges being relatively equal, but the arrangement simple "looks" bad. Four units, he said, have the advantage of approximately following natural trade patterns, but the units would be unequal with respect to caseload distribution and judge numbers. Consequently, he said, three administrative units appears to be the most logical and fair distribution of resources.
Following discussion, Committee members agreed three administrative units should be identified as the recommended number of units. In response to a question from Becky Thiem regarding whether to identify the specific judicial districts within each unit, Committee members agreed the three units should be composed of the judicial districts as set out in material distributed to the Judicial Conference.
Discussion then turned to paragraphs 3 though 6, which generally describe the role of trial court administrators and the general line of authority between administrators and other court personnel. Staff noted that the reference to "trial court administrators" would refer to local district or unit administrators. The draft language, he said, does not address the status of the current assistant state court administrators for trial courts, nor does it address the role and responsibilities of the state court administrator with respect to trial court administration. Judge Foughty said it is likely unnecessary to specifically address those issues at this point. He said ultimately he would envision a state trial court administrator that would supervise or work with local administrators.
Becky Thiem noted the language in paragraphs 4 and 6 regarding the trial court administrators having "complete" responsibility in terms of administrative practice and procedure and supervision of trial court personnel. She wondered whether it should be made clear that that responsibility would be subject to council policies and procedures. Judge Erickson observed that the reference to "complete" responsibility attracted a significant amount of criticism during the Judicial Conference discussions. He said it is probably unnecessary at this point to attempt to identify the precise scope of authority and responsibility of the trial court administrators. Committee members agreed "complete" should be deleted from paragraphs 4 and 6.
Becky Thiem wondered what the role of the assistant state court administrators would be if the Council of Presiding Judges is abolished. She said there seems to be a gap in the line of authority or relationship among the state court administrator, the assistant state court administrators, and the local administrators. Similarly, Justice Maring asked to whom the unit or local administrators should report under the proposal. Judge Erickson said the Chief Justice and the state court administrator should have the flexibility to establish appropriate chains of command. He said the recommendation should simply make clear that the unit administrators should answer to the state court administrator. Committee members agreed.
Becky Thiem suggested the first part of paragraph 3 regarding a presiding judge for each administrative unit should be moved to paragraph 2, which identifies the administrative units. Committee members agreed. It was also agreed that paragraph 3 should be modified to reflect that the trial court/unit administrators should be hired and supervised by the state court administrator after consultation with the presiding judge of the affected administrative unit.
Committee discussion then turned to a review of paragraphs 1 through 6 of the next segment of recommendations concerning evaluation and reorganization of the committee structure. Staff noted the division of committees under paragraph 3, which would place all committees concerned with trial court administration under the new council, and paragraph 4, which would place all joint bench-bar committees and other specialized committees under the Supreme Court.
With respect to reporting responsibilities for committees, Beck Thiem wondered whether the responsibilities of the new council should be made clearer, that is, that the council's responsibility would be the development of trial court administrative policies and procedures. That, she said, would be consistent with the identification in paragraph 3 of committees related to trial court administration which would report to the council.
Bob Feidler wondered why the committees identified in paragraph 4 should not also report to the new council. Staff recalled earlier Committee discussion, which indicated that joint bench-bar committees and other specialized committees would not be responsible to the council because they do not, as a general matter, consider matters related to trial court administrative process and procedure.
Bob Feidler suggested the new council should perhaps be responsible for establishing policies and procedures beyond those related only to trial court administration. In that light, he said, committees identified in paragraph 4 could also be established under and report to the council.
Judge Erickson said it would be preferable to have as much committee activity as possible responsible to a single entity. That, he said, may assist in limiting the often too common practice of moving issues from committee to committee in hopes of finding a sympathetic committee to recommend a particular policy or procedure.
Justice Neumann noted that rulemaking authority is vested with the Supreme Court and, consequently, there is likely a need to have certain committees that report to the Supreme Court.
Becky Thiem said there should be a method to ensure that committee recommendations are reviewed by a central entity before they are submitted finally to the Supreme Court. For example, she said, it may be beneficial if the Joint Procedure Committee were to submit its proposed rule changes to the new council for a preliminary review.
Judge Foughty said the new council may have too much to handle if it is responsible for all committees within the system. Justice Maring wondered what specific purpose would be served by having the Joint Procedure Committee, for example, report to the council. She cautioned against creating another layer of process within the system. Additionally, she asked who would be responsible for selecting the various committee memberships and whether it would be possible to provide that the committees in paragraph 3 would report to the new council, but the method of appointing members would remain the same.
Judge Erickson said he tended to agree with Bob Feidler that the new council should be an overarching, broadly-focused decision-making body, with the possible exception of developing procedural rule changes. Judge Foughty said he also was inclined to view the new council as having a broader focus and responsibility than trial court administrative policy and procedure.
Chair Neumann said an additional meeting will likely be scheduled so the Committee can complete its recommendations. He said the Committee will need to more thoroughly discuss and clarify the possible role of the new council. Then, he said, related, subsidiary issues such as committee responsibilities will be more easily resolved.
Justice Maring suggested the draft recommendations be revised to include alternative roles for the new council - one that is more limited to developing trial court administrative policy and procedure, and one that is broadly directed at developing general judicial system policies, procedures, and rules. She suggested that alternative language also be included in paragraph 3 regarding committees concerned with trial court administration which would require those committees to report to the new council while retaining the current method of membership appointment.
Chair Neumann said a revised draft would be prepared for Committee review at the next meeting, the date of which is yet to be determined.
There being no further business, the meeting was adjourned at 2:45 p.m.
Jim Ganje, Staff