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
Rep. Lois Delmore, Grand Forks (joined the meeting at 10:30 a.m.)
Sally Holewa, State Court Administrator
Cynthia Lindquist, President, Cankdeska Cikana Community College
Dave Maring, Attorney, Bismarck/Mandan
Dave McGeary, Director of Juvenile Court, South Central Judicial District
Judge Daniel Narum, Southeast Judicial District
Judge Frank Racek, East Central Judicial District
JoAnne Hoesel, Director, Div. of Mental Health & Substance Abuse Svcs, DHS
Rep. Kim Koppelman
Kristi Pettit, Attorney, Grand Forks
Charles Placek, Dep. Director of Admin. Svcs, DOCR
Sandi Tabor, Vice President of Government Affairs, Lignite Energy Council
Andrew Frank, Staff, Commission to Study Racial and Ethnic Bias in the Courts
Chair Kapsner called the meeting to order at 10:00 a.m. and drew Committee members' attention to Attachment B (June 4, 2010) - minutes of the February 12, 2010, meeting. It was noted that Aaron Birst should have been included in the list of those present at the February 12 meeting.
It was moved by Aaron Birst, seconded by Judge Anderson, and carried that the minutes, as corrected, be approved.
Chair Kapsner briefly reviewed information distributed to subcommittee members in the March 31 mailing which included attorney numbers by age and location, a summary of court facility improvement and maintenance grants, state laws regarding joint powers agreements and regional planning councils, guidelines for New York court facilities, and a recently completed survey of states regarding facility and court security funding and the status of public administrators, guardians, and conservators. She said the information served as general background for subcommittee discussion of access and technology questions reviewed at the February 12 meeting [See February 12 meeting minutes, Appendix B]. She then requested summaries of the subcommittees' discussions and tentative conclusions
Subcommittee Regarding Questions 1 and 2
Judge Anderson served as Chair of the subcommittee reviewing Questions 1 and 2 [ What core services must continue to be offered in every county on a regular basis? How will those services be impacted by technology in the future?]. He said the subcommittee had arrived at the following general conclusions with respect to Question 1:
1. At a minimum, court should be scheduled in every county at least once per month. Residents should have access to a judge at least on a monthly basis. Judge Anderson noted that the subcommittee had reviewed source material developed by the National Center for State Courts. He said the subcommittee concluded that a less frequent scheduling approach would result in unnecessary delay. Additionally, he said, the subcommittee reviewed those kinds of cases or proceedings that would require a judge be available more frequently than once per month, such as bond hearings, juvenile proceedings, and protection order proceedings. He said conducting proceedings by telephone, interactive video, or other technological aids would assist in the expedited handling of these kinds of proceedings.
2. Clerk of court services may not be a necessary core service that must be provided in each county on a routine basis, particularly with respect to filing and record-keeping. Judge Anderson said subcommittee members discussed the perception that those requiring court services must have a face to face interaction with court staff. He said there was a tentative conclusion that ensuring that level of access may be problematic in terms of sustaining adequate staffing. The subcommittee, he said, discussed alternative methods of providing access to clerk services such as implementing kiosks through which services could be obtained. He said subcommittee members noted that regionalization of jury management functions had already occurred in the eastern part of the state and similar alternatives to some kinds of clerk services may be a logical progression.
3. Facilities required for jury trials would not be a core service that must be available in every county on a regular basis.
4. Appropriate security measures should be a core service maintained in every county on a regular basis.
With respect to Question 2, Judge Anderson said the subcommittee reached the following general conclusions:
1. E-filing and document access through implementation of the Odyssey system are significant developments that will affect court services. Judge Anderson said a possible future issue identified by Judge Racek, a subcommittee member, concerned moving old files and papers to an electronic format.
2. Availability of adequate technological resources is important. Judge Anderson said the subcommittee discussed the use of interactive television, the use of and access to digital recording, and the use of appearances by telephone. He said subcommittee members concluded that in counties without ITV capability, telephone systems integrated with digital recording systems would be beneficial. He said availability of such an arrangement would facilitate appearances by telephone and would be superior to recording the proceeding from a speaker phone.
3. Ability of each county to provide and support appropriate technology is critical. Judge Anderson said there was general agreement that Internet access and the ability to implement Odyssey effectively are important contributions to providing adequate services.
Dave Maring noted that his subcommittee reached a similar conclusion regarding the issue of maintaining jury-ready facilities. He asked whether there was any discussion of particular counties or locations where jury-ready facilities should be considered a core service.
With respect to the tentative conclusion that filing and record-keeping would not be considered a core service, Justice Kapsner asked whether that conclusion was with respect to clerk services as a basic point of entry to the court process. Judge Anderson said the subcommittee focused on whether there was a core need for a personal presence and concluded there likely is not. However, he said, there was general recognition that access to services would be a core component. He said the discussion touched on possible ways other than through a personal presence clerk-related services could be provided.
In response to a question from Sally Holewa, Judge Anderson said the general conclusion was that the public expects to be able to view and use court record information and there was an assumption that implementation of the Odyssey system would enable that access. However, he said, there is the related issue of access to older case files and records that are not part of the Odyssey system.
Sally Holewa wondered whether, in the discussion of possible core services and what could be done, it would be worthwhile to discuss whether a particular approach is simply a good idea. For example, she noted with respect to possible changes in clerk presence that there are related discussion points regarding political ramifications, the feasibility of changing county organization, and whether duties could be effectively transferred to current state employees without expanding the number of employees.
Justice Kapsner suggested the Committee should not, at this point, develop that level of specificity, but, rather, should develop an idea of what the Committee concludes should be the evolution of the system. If it is ultimately decided, she said, that that idea is a good one, then the discussion could turn to the details of how to achieve the idea. Additionally, she stressed the importance of recognizing that planning must take into account what available resources might actually permit.
Judge Anderson observed with respect to possible system changes that a basic premise should be that citizens should not have to travel an inordinate distance to obtain access to routine kinds of judicial services.
With respect to a routine, once per month, judge presence, Judge Racek said the basic issue is not how often a judge travels to a county, but how often a judge does not travel to a county. He observed that the system's operation is driven by artificial lines that designate counties, which often results in inefficient and counter-productive processes. He said efficient handling of judicial business is too often delayed because artificial boundaries dictate that activities must occur at a certain time and place. He suggested that within the current administrative structure of four units everything should be considered as part of the unit rather than limited by artificial lines. He said it would be worthwhile to consider adjusting clerk workload to focus only on that work that is necessary to conducting the court's business. For example, he said clerks often perform tasks with respect to traffic and child support enforcement that are not integral to the court's business. Limiting or eliminating clerk involvement in those areas, he said, would enable establishing a more meaningful presence in other counties where more work is or could be done.
Sally Holewa observed that statutes governing county venue will have a bearing on the extent to which services can be reallocated.
Justice Kapsner suggested the Committee should consider the issues Judge Racek identified, e.g., the feasibility of moving work responsibilities, which may be made easier with the advent of the new management system, and the issues related to venue. She said venue will continue to be an important consideration as there is a difference between where a court has the authority to act and where the case-related files and papers are maintained.
Judge Racek said it is less important to have cases heard in a static location dictated by artificial requirements than it is to enable a case to be heard where it is convenient for all involved - judge, attorneys, and parties. For example, he said there should be no reason why a case filed in Traill County could not be heard in Fargo if the parties agree.
In response to a question from Dave Maring, Sally Holewa said the four court administrators conduct a range of administrative duties throughout their respective units and without regard to county lines within the units. And, she said, some administrative practices extend across unit lines. There are, however, she said, some differences in practices among the several judicial districts.
Dave Maring wondered why there could not be four judicial districts to coincide with the four administrative units. Judge Anderson observed that significantly changing judicial election districts would likely not be popular with judges. Additionally, he said, changing to fewer judicial districts may result in a tendency to centralize operations within the larger judicial districts with fewer potential contacts by judges with electors in the district.
Aaron Birst said counties may be amenable to the idea of judicial services being available when case numbers reach a certain level, rather than a judge being expected to travel to a county once per month without regard to how many cases may actually be heard. Conversely, he said there is some level of dissatisfaction in rural counties when matters are held through the month to be handled when the judge arrives on the routine schedule. Judge Racek observed that the irony is that those matters awaiting a judge's signature could likely be signed the next day if the matter could be handled in an adjoining or nearby county.
Rep. Delmore observed that judicial services in larger counties are sometimes perceived to be more impersonal. She said centralized services are not necessarily an advantage to the people who receive those services.
Dave McGeary explained that when juvenile court time standards were recently reviewed it was found that larger metropolitan areas were struggling to meet the standards, while in smaller areas there was an appreciation for completing the work so the matter could be handled when the judge arrived.
Following further discussion, Chair Kapsner inquired whether Questions 1 and 2 should be further considered by the subcommittee or if the issues should be taken up by the full Committee.
Judge Anderson suggested further discussion of the issues could be addressed by the full Committee. Committee members agreed.
Subcommittee Regarding Question 3
Aaron Birst served as Chair of the subcommittee reviewing Question 3 [How can the interaction between the judiciary and the county governments that house judicial facilities be structured in a manner that is most beneficial to both?]. He said the subcommittee reviewed a good amount of information and reviewed in particular the facilities situation in the western part of the state. He noted that Stark County has become a function trial center because there are few trial-ready facilities in the area. He said it appears that attempting to build a system to accommodate jury trials is ill-advised since the number of jury trials would not justify the effort or expense. He said there are issues with respect to adequate communication between the counties and the judicial system. Counties, he said, are willing to work with the courts but it is often not clear what the courts want or need. He said it may be worthwhile to consider the development of basic facility standards, which would be a benefit to the courts and would assist counties in considering potential changes to existing facilities.
Justice Kapsner noted that county regional planning is an ongoing and active process and wondered whether the judiciary should seek to be a part of that process. She suggested the court administrators may be in a position to participate if court-related issues arise during the planning process.
Subcommittee Regarding Questions 4 and 5
Dave Maring served as Chair of the subcommittee reviewing Questions 4 and 5 [ Should differing courtroom facility standards be developed depending upon frequency and nature of courtroom use? Should different funding mechanisms be sought for judicial use of space in county facilities?]. There were the following general observations and conclusions with respect to the Questions.
1. Court facilities improvement and maintenance grants. Dave Maring drew attention to Attachment B (March 31, 2010), which summarizes grants made by the Court Facilities Improvement Advisory Committee. He said the subcommittee concluded that the grants tend to be cosmetic in nature and rather than for significant remodeling projects that might create courtroom space or additional facilities. He said there appears to be no other source of state funding available to the counties for facilities.
2. Changes in county offices. The subcommittee reviewed the toolchest legislation which provides mechanisms for counties to combine offices or change the elected or appointed status of county officials. He said it appears smaller counties are combining offices, with the result of approximately eighty fewer elected county officials in the state. He said the subcommittee reviewed the process by which certain counties may elect to transfer the clerk of court office to the state.
3. Efforts to secure state funding for county facilities. The subcommittee reviewed recent attempts, all unsuccessful, to obtain state funding by way of rent or other funding sources to offset the cost to the counties of maintaining court facilities. He said it may be worthwhile to consider funding based on a some type of formula, perhaps one based on the level of actual court activity in the facility.
4. Different facilities in different counties. The subcommittee discussed the potential need for different types of facilities in different counties based on the kind of court activity within the county.
5. General conclusions. Dave Maring said the subcommittee identified four general concepts that could form the basis for further discussion of facilities issues: 1) There is likely no need for large, jury-ready courtrooms in every county, 2) There is likely no need to provide the same level of services in every courthouse, 3) It may be worthwhile to consider some level of state funding for court facilities, including partial funding based on the amount of court activity, and 4) Courtroom and court facility specifications that are linked to the level of court activity in the facility should be considered.
In response to a question from Rep. Delmore, Aaron Birst said there have been no specific discussions at the county level concerning consolidation of court facilities. He said counties have, however, consolidated employee and county official positions. He cautioned that consolidation tends not to reduce costs.
Sally Holewa observed that the current process by which clerk services can be provided by county employees, with reimbursement from the state, actually serves to contain costs. She said the state pays only for the work that is needed to provide clerk services and the payment is based on county, not state, compensation levels. She said if all clerk of court work were transferred to the state an additional twenty-seven state FTEs would be required.
With respect to facilities, Judge Racek agreed one significant recommendation the Committee could make would be with respect to the establishment of facility standards. Judge Anderson agreed that minimum standards, at least, would be useful. Aaron Birst agreed also that most counties would find standards beneficial in determining whether and what kinds of changes should be considered.
Judge Racek noted that Cass County had recently hired a consultant to conduct a space needs assessment of the county courthouse, and a report was issued. He said the assessment is specific to Cass County but may serve as a general guide in the Committee's discussion of possible standards. He stressed that the judicial system can provide useful guidance to counties and to legislators in identifying general standards, explaining what would be considered adequate facilities for the kind of work done in particular courthouses, and explaining what is needed and why it is needed. A copy of the Cass County space needs assessment report will be distributed to Committee members.
Chair Kapsner inquired whether the Committee consensus is that general facility standards should be developed, with an acknowledgment that standards will differ based on the level of activity within a particular category of facilities.
Judge Racek observed that the Committee need not develop the standards itself, but rather could include in its final report a recommendation that standards be developed.
Cynthia Lindquist said that standards would essentially serve as guidelines for counties. The more important issue over time, she said, is whether there is a long-term commitment for maintenance of the facility.
Justice Kapsner said the Committee could perhaps identify the key elements of any possible standards or guidelines, i.e., those facility characteristics that must be generally present or available. Cynthia Lindquist emphasized the need to take into account the differences between rural and urban facility locations.
In response to a question from Chair Kapsner regarding the subcommittee's work, Dave Maring said the subcommittee would try to meet again to further discuss the initial responses to the questions.
Chair Kapsner asked whether the Committee should consider making any recommendations regarding possible mechanisms for facility funding. She said funding mechanisms would likely have some relationship to the level of court use or activity in the facility.
In response to a question from Judge Narum, Sally Holewa said the judicial system does not now pay rent to any county for facility space. She said there is also an issue regarding whether rent should be paid by the judicial system without there being any control of or significant involvement in facility standards.
Judge Anderson noted that in the survey of states regarding facility funding [Attachment F (March 31, 2010)] there were comments reflecting a resistance to state funding because of the fear that at some point the facility would be closed.
Chair Kapsner said the Committee would continue discussion of possible facility standards at future meetings.
Committee members then turned to a review of planning issues in other areas previously identified by the Committee: privacy, judicial selection and general respect for the rule of law and the judicial system, aging community, and the adequacy of information and education about the courts and the judicial process.
Chair Kapsner asked whether subcommittees should be formed to discuss each issue or whether particular issues should be reserved for initial discussion by the full Committee.
Sally Holewa observed that the Supreme Court's recent amendments to Rule 3.4 of the Rules of Court and Administrative Rule 41 regarding personal information in court files have addressed some of the concerns about disclosure of personal information. She said there are residual issues about the kinds of record information that should be disclosed on the system's website and about whether documents should be accessible through the website.
In response to a question from Chair Kapsner, Committee members tentatively agreed to defer further discussion of privacy issues until the practical effect of the recent rule amendments can be assessed.
Judicial selection and respect for the rule of law and judicial system
Dave Maring said there has been considerable discussion around the country regarding methods of judicial selection. However, he said his sense is that the issue is not a compelling one in North Dakota at this point. He said many judicial elections are uncontested and in those elections where there are competing candidates the conduct is generally reasonable. He suggested that the issue of judicial selection may be a topic for future discussion in light of changes in judicial campaign conduct in other states, but the issue likely does not warrant extended review at this time.
Sally Holewa wondered whether the general public has been asked what might be a preferable method for selecting judges or what the general public considers important to know about judicial candidates.
Judge Racek noted that issues regarding judicial selection are less serious in North Dakota because of the ease with which litigants can demand a change of judge in a case.
Chair Kapsner agreed a full review of the issues associated with judicial selection may not be needed, but suggested it may be helpful to identify a few general observations about the topic. Dave Maring agreed to consider a general framework of issues for a future meeting.
Justice Kapsner observed that issues associated with the state's aging population and access to the judicial process will become more important as time passes. She said if there is any move towards centralizing services there will likely be an impact on how the aging community gains access to judicial services.
Rep. Delmore said technology may be a useful tool to aid access for older citizens but there is a related question regarding whether there is sufficient knowledge about how to use the technology if it is available.
Justice Kapsner noted that there are persistent issues regarding the availability and funding for public administrators, who often provide support services for older citizens. She said there has been little interest in addressing the issues legislatively but the status of public administrators should be discussed and additional information obtained.
In response to a question from Justice Kapsner, Randy Albrecht said the Long-Term Care Association has developed a new updated demographic report regarding the state's aging population. The report, he said, seems to have reaffirmed earlier findings regarding the status of the state's aging population and the migration of the population to other areas in the state. He said the report might be a resource for the Committee's discussion of aging community issues.
Following further discussion, Chair Kapsner asked that a subcommittee consisting of Aaron Birst, Randy Albrecht, Cynthia Lindquist, Judge Racek, and JoAnne Hoesel review the topic and offer observations at a future meeting.
Information and education about the courts and the judicial process
Judge Anderson said the adequacy of information about the court system and how the public obtains that information are persistent concerns.
Cynthia Lindquist stressed the importance of ensuring the information to which the public has access, particularly information provided through websites, is accurate and properly filtered.
Justice Kapsner wondered whether it would be worthwhile to have the Supreme Court's website evaluated from the perspective of members of the general public to determine whether the website offers useful, easily accessible information.
Sally Holewa noted that there are several pamphlets available to the general public which describe various parts of the judicial system and court processes. She said some pamphlets are more useful than others.
Following further discussion, Committee members agreed it would be useful to obtain an overview of the educational and informational resources developed by the judicial system and made available to the general public.
Chair Kapsner said the issue of redistricting had been referred to the Committee for review. She said the review would likely consider issues related to administration as well as possible political issues associated with any change to district boundaries. She said a subcommittee would be designated to conduct the initial redistricting review.
There being no further business, the meeting was adjourned at 1:30 p.m.
Jim Ganje, Staff