Justice Carol Ronning Kapsner, Chair Randal Albrecht, Administrator, Medcenter
One Living Center Judge Zane Anderson, Southwest Judicial
District Rep. Lois Delmore, Grand Forks Sally Holewa, State Court Administrator Cynthia Lindquist, President, Candeska
Cikana Community College 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 Judge Frank Racek, East Central Judicial
District Sandi Tabor, Attorney, Lignite Energy
Members Absent Rep. Kim Koppelman, Fargo
Guest Chief Justice Gerald W. VandeWalle
Chair Kapsner called the meeting to order at 9:00 a.m. and welcomed Chief Justice Gerald
W. VandeWalle for comments concerning the work of the Committee.
Chief Justice VandeWalle welcomed Committee members and urged the Committee to push
the envelope and look beyond how court business is normally done. He cautioned, however, that the
Committee conduct its inquiries, and make its recommendations, with an awareness of changes the
system can reasonably handle. He stressed that members should not be discouraged if Committee
recommendations are not implemented immediately as it will take time for the Supreme Court and
others to digest what the Committee has considered and discussed for some time. He noted that the
Supreme Court or the Administrative Council may refer topics to the Committee for review, but he
emphasized that the principle purpose of the Committee is to generate ideas about the future of the
court system rather than respond to issues referred to it. He thanked Committee members for their
willingness to take time from their busy schedules to serve on the Committee and wished them well
in their work.
Introductions - Perspectives - Issues
Chair Kapsner expressed her appreciation to Committee members for agreeing to participate
in the planning process. She noted there is particular value in service by those who do not "live in"
the judicial system as they bring unique perspectives and observations about how courts affect
various constituencies. She explained that before becoming a member of the Supreme Court she had
a very general law practice and that experience demonstrated how many people need what lawyers
do in many different areas. She said there have been profound changes in the way law is practiced
and how courts conduct their business. Technology, she said, has had an significant impact, positive
in many respects but disruptive as well. It has, she said, resulted in greatly increased demands on
lawyers and the courts, which sometimes results in a less reflective approach to solving problems.
She noted that over time the public, and the courts themselves, have developed a different view of
what courts do and how they do it. There has been, she said, an awareness that the adversarial
process is not the only, or most beneficial, method of resolving disputes, which has resulted in the
increased presence within court systems of alternative methods for dispute resolution. She said
litigation levels are falling, pro se litigation is rising, and there are more laws and rules. All of which,
she said, has placed greater demands on trial judges and has hastened the move away from
specialized courts and toward judges handling many different kinds of cases. She said new
management techniques have been introduced in the judicial system and there is continuing interest
in professionalizing management capabilities within the courts. By way of summary, she said
particular areas of interest for her are the trend away from specialization and what should be the
proper response; trends in population, particularly with respect to the general aging of the state's
population and the aging of the lawyer population; and the growing desire on the part of the public
to "do for themselves" when pursuing legal actions. She stressed that the relatively small size of
North Dakota's judicial system is a great advantage in that it can adapt faster than larger systems.
Chair Kapsner then asked Committee members to offer their general comments on areas of
interest and particular issues regarding the judicial system.
Dave Maring, Bismarck attorney and president of the State Bar Association, said a critical
factor regarding the standing of any judicial system is the respect of the citizens for the system and
the rule of law. He expressed concern that trust and confidence in and respect for the courts are
eroding. He said if respect degrades too far, eventually court orders become meaningless because
they will not be obeyed, legislators will not listen to the courts about issues affecting the courts, and
citizens will turn away from the courts as effective mechanisms for resolving disputes. He said the
advent of the Internet, particularly, has enabled persons who are disgruntled with the system to easily
generate attacks on the judicial system and judges. He said it is critical that the courts identify and
implement methods for reinvigorating respect for the rule of law and the judicial system.
Kristi Pettit, a Grand Forks attorney, said she currently serves as a city prosecutor and also
is engaged in the general practice of law. She said she is particularly interested in the success of the
mediation project, which has worked well in Grand Forks with respect to family law cases. She said
participants in the project view the process favorably and there is potential that similar efforts could
have application beyond the family law context. She said she is concerned that the judicial selection
process is becoming more contentious and expensive with the advent of greater campaign costs,
which risks loss of trust and confidence in the system.
Judge Anderson said he began in private law practice in 1978, then served as a state's
attorney, and has since served 17 years as a judge, including 4 years as a county judge. He agreed
there are significant issues associated with population trends in the state, particularly in rural areas.
He agreed also that the aging of the lawyer population is a concern and there is the related issue of
the quality and availability of young attorneys in rural areas. He emphasized that the perception of
fairness in the court, procedural fairness, has an important impact on trust and confidence in the
courts. He said how people perceive that they are treated in court may often be more important than
the actual outcome of the case. The perception that the court process is fair, he said, is inextricably
linked to respect for the rule of law and for the system as a whole.
Sally Holewa said that as a manager and administrator her first concern is whether the courts
are professionally and efficiently managed. A second concern, she said, is the place of courts in the
society and how courts are viewed by the public and other branches of government. She said the
overriding question for members of the public relates to how the courts are addressing their needs.
While process is of vital importance, she said, an inordinate focus on process may obscure how the
court operation is perceived. The courts, she said, do a good job of protecting rights and ensuring
everyone gets a fair shake, but often do not do a sufficient job of explaining to the public why the
system does what it does.
Rep. Delmore said that as a legislator and teacher she is aware of the societal changes that
affect the courts. She said as a member of the Judiciary Committee she regularly encounters issues
that affect the courts and also hears from constituents about their interactions with the courts. She
emphasized that courts hold out hope to people and it is important that that hope not be lost.
Sandi Tabor, who had served on the earlier planning committee, noted the comment in the
Court Futures Dialogue included in the meeting material [Attachment B (May 14, 2009)] that courts
are not as effective as the other branches of government with respect to futures work. However, she
said, there have been significant changes in the judicial system which resulted in part from the work
of the earlier planning committee. She said the present challenge for the Committee is to look
forward 20 years, as the Dialogue suggests, and envision what issues courts will face and how courts
will respond. She said it is important to consider short-term issues, goals, and solutions, but a focus
on possible future, long-term, developments is necessary as well.
Judge Narum said he was engaged for seven years in private practice and has now served
about three years on the bench. He said efficient access to court services in rural areas remains an
important issue. He agreed that professionalism and trust and confidence in the courts are compelling
concerns. He said it is important to provide judicial services in a manner that adequately serves the
needs of the public. He noted changes in juvenile court processes he had initiated to ensure that the
status of children placed out of the home is reviewed in a more timely fashion and to ensure that the
needs of the family are served.
Cynthia Lindquist explained that her background is in health administration and political
science and that she has served in education and government in different capacities, including
serving as the North Dakota Indian Affairs Commissioner. She said her present position as president
of a tribal community college as proven to be an inspiration as well as a challenge. She said as a
member of the Spirit Lake Nation and as a result of her experience in tribal communities and with
Indian issues she could offer a general understanding and perspective regarding tribal culture and
issues that affect the judicial system. She cautioned, however, that she could not speak for her tribe
or for other tribes in North Dakota as each is very separate and distinct. With respect to population
trends she said there is great vitality in Indian country, where the average age is between eighteen
and twenty and about half the reservation population is under twenty-one. Additionally, she said
there are large pockets of enrolled tribal members who are located off reservations but who maintain
strong bonds with their home areas. With respect to experiences with the judicial system, she noted
that the Indian inmate population continues to escalate and the number of Native American juveniles
in the juvenile justice system is a source of great concern. She said training to ensure cultural
competency in the judicial system is critically important as forms of behavior that are expected and
common-place in tribal cultures are often viewed negatively by the dominant culture. She said she
looks forward to working with the Committee and perhaps bringing a different perspective, and also
to acquiring information and insights that she can take back to her community.
Dave McGeary said he has been working in the juvenile court system for about thirty-four
years and during that time there have been enormous changes in the system. Over time, he said, the
juvenile court has evolved into a specialized court system and the operation of the court is many
times misunderstood by the public. As an area of concern, he noted the importance of ensuring that
correct information is provided to parents about what happens as a child moves through the process
after being cited into juvenile court. He said time frames imposed by law dictate that matters move
quickly in juvenile court and parents often do not understand what is happening. He noted a recent
law change that provides that a parent is not entitled to appointed counsel until the dispositional
phase of the case. That is problematic, he said, in light of all that occurs before disposition is
reached. The result, he said, is that a parent may have no one to discuss the case with until relatively
late in the process. He said a promising development occurred recently with the establishment of a
Native American liaison position, the intended purpose of which is to work with an Indian child
early in the process before the child is removed from the home. The ultimate goal, he said, is to keep
the child out of the system or, if already in the system, to keep the child from going deeper into the
system. He said recent data indicates that of fourteen families referred to the project, thirteen
children have been able to stay at home and in school. He said a review committee comprised of
tribal members was established to screen referrals to the project and a working task force of about
fifteen Native American professionals is responsible for general oversight of the project. He said
the project shows great promise and he hopes it is able to continue.
Randal Albrecht said he has worked for twenty-six years in nursing home administration and
currently is the administrator for the Medcenter One long-term care division, which has about six
hundred employees serving about 340 residents. He said his particular concern is laws that affect
the elderly. More generally, he said he is concerned about a new generation of young attorneys
practicing generalized law in specialized areas, with the potential of giving bad advice. He said there
are many challenges associated with an aging population and the court system must be attuned to
how the challenges that affect the system are met. He said as systems and society change the goal
should be to use the advantages provided by the new, but retain and protect the value of earlier
Judge Racek explained he began as a county judge in 1988 and became a district judge in
1995. He said there are three basic areas that require attention. First, he said, are issues related to
court facilities. He said facilities are, by law, a county responsibility but county officials often view
state workers as using their facilities for free. He said there has been a reduction in available space
in the larger, busier counties. Second, he said, as the transition to the unified court system occurred
there was a focus on administration, clerk offices, and how court business is done, but there has been
little review of judges, the work they do, and the staffing provided to support judge work. Third, he
said, new rules, procedures, and ways of doing business have been implemented, but there is no
mechanism by which these changes can be reviewed to determine whether they have achieved the
intended objective and whether further refinements should be made.
Chair Kapsner thanked Committee members for their initial assessments and observations
about issues to be considered.
Overview of Planning Components
Staff then distributed and briefly reviewed information concerning the basic components of
strategic planning. He explained that "strategic planning" is generally regarded as a combination of
short-term planning and long-term "visioning" for the future. He said the typical planning process
usually consists of identifying a mission and goals; developing a vision for the court system;
conducting stakeholder analyses; conducting an assessment of organizational strengths and
weaknesses; conducting an analysis of trends that affect the system; and then developing strategies
to address the identified issues. He suggested an early question for the Committee is how much of
the traditional strategic planning process the Committee will do and how it will be done.
Chair Kapsner next requested general discussion of how the Committee should proceed in
the planning effort.
Sandi Tabor suggested that information be gathered regarding the activities of other judicial
system committees so there is a general awareness of what other, potentially related projects may be
underway. She agreed there would be great benefit in revisiting previously adopted rules to review
their operation and effect and determine whether changes may be necessary.
In response to a question from Sandi Tabor, Chair Kapsner said the Committee has the
flexibility to undertake public meetings around the state to solicit information from the public about
how the system is perceived as working. She said such meetings may also be a useful way to gather
additional information regarding issues identified by the Committee.
Rep. Delmore agreed an overview of what other committees are doing would be helpful. She
said the planning effort must also be aware of the issues that concern rural and urban communities
and the desire that each be served equally.
Sally Holewa noted the recent completion of a "man on the street" video, which was the
result of asking a series of questions of members of the general public. She said a similar effort may
provide more useful information than a public meeting, which tends to draw those who are
dissatisfied with the result in a particular case.
Rep. Delmore suggested asking for input from those who are actually in the courthouses.
Sally Holewa observed that in Minneapolis the court distributed a two-question survey to lawyers
and litigants as they left the courtroom. The questions asked were "did you understand what just
happened?" and "do you know what you are supposed to do next?"
Judge Racek noted that much of what courts do requires the cooperation of various service
providers and executive branch agencies such as the state hospital, parole and probation, and the
state penitentiary. He said counties are also obviously affected by the operation of the courts. He
suggested representatives of the executive branch agencies and the counties should be invited to meet
with the Committee and discuss various issues. With respect to executive branch participation, he
encouraged inviting representatives with a broad overview of system interaction rather than someone
wedded to a particular interest or agency.
Sandi Tabor agreed and suggested that representatives of the Association of Counties, the
department of human services, and the department of corrections and rehabilitation could be added
as members of the Committee. She said representatives of other groups or interests could be invited
to attend particular meetings as specific issues are encountered.
In response to a question from Chair Kapsner, Committee members agreed representatives
from the Association of Counties, DHS, and DOCR should be added as members and that others
should be invited to participate as needed.
In response to a question from Sandi Tabor, Cynthia Lindquist said there would be great
value in dedicating one meeting to the discussion of issues concerning relationships between the
state and tribes.
Judge Anderson said the Committee must also remain mindful of the traditional stakeholders
in the judicial system - attorneys, judges, and court staff.
Randal Albrecht suggested it may be important to obtain the perspective of individuals who
have gone through the court process, particularly in light of the expanded access to information about
court proceedings, the impact of criminal background checks involving court information, and the
impact of other information maintained by the courts and to which the public has access. Justice
Kapsner agreed and said there is a general overarching issue concerning privacy and how personal
privacy is affected by a person's interaction with the courts. There was general agreement that this
was an issue that should be discussed.
With respect to the general facilities issue, Justice Kapsner noted that several comments
included in Attachment E (May 14, 2009) draw attention to concerns regarding the adequacy of court
space. Judge Narum said some comments suggested the continuing need for a space needs
assessment. He noted as well that in smaller counties there often are basic issues concerning safety
and comfort. Judge Racek stressed the importance of understanding clearly how courts operate, for
example, in scheduling cases and how that is affected by available facility space.
Sandi Tabor said a plan could assist legislators in understanding that the availability and
adequacy of court facilities is essentially a state obligation rather than a county obligation. Rep.
Delmore said there is a general understanding of concerns related to facilities but it is important to
recognize that there are fiscal constraints that must be considered.
Sandi Tabor said a long-standing issue has been the concern about movement toward a
district system with regional trial centers. She asked whether the Committee is situated to consider
that issue. Rep. Delmore said there are different problems to be addressed depending on whether
a rural or urban county is affected. The challenge, she said, is to provide the appropriate level of
service in a cost-effective, fiscally sound manner.
Sandi Tabor said another consideration is that improved technology may allow litigants to
have services available, albeit in a different way, within their own county rather than requiring them
to travel to a central location.
Justice Kapsner agreed the issue merits discussion but she cautioned that the perception may
be that rural access may suffer. She said that, however, is not a necessary result in that it would seem
that access to adequate services could be provided in different ways depending on particular needs.
She said it is an important balance that must be kept in mind.
Judge Racek said it is important to also keep in mind that if there is an understanding that
the same kind of service can often be provided sooner by other means than waiting for a judge to
arrive, then concern about access to services often dissolves.
Judge Narum stressed that it is important to clearly address exactly what "access" really
means. For example, he said, telephonic hearings and conferences, scanning and receiving
documents to be signed, and other like activities are often employed; that is, technology is effectively
used to keep court business moving in a timely and effective manner. He said technology can be
employed to ensure effective services are provided and can perhaps actually expand timely access
Judge Anderson agreed and said it is centrally important to consider how to move forward
in providing services without marginalizing rural areas of the state. For example, he said, in the
Southwest judicial district ITV and other technology are used to ensure services are available. The
judicial system, he said, must clearly communicate that access is provided and will be maintained.
In response to a question from Chair Kapsner regarding information for the next meeting,
Committee members agreed the following information should be assembled: demographic
information concerning the state's population, issues identified by the Committee in light of the 2002
Planning Recommendations and comments submitted in response to the Chair's request for
comment, summaries of judicial system committee activities, and the locations of jury trials. Staff
noted that the survey conducted some time ago by the Committee on Public Trust and Confidence
may provide interesting information regarding the public's perception, at that time, of the courts.
Kristi Pettit said the status and role of municipal courts should be considered as part of the
Sandi Tabor said input and observations from the bar would be helpful. She suggested the
Board of Governors consider a survey of bar members to solicit comments. Dave Maring agreed that
would be a worthwhile effort.
Cynthia Lindquist said additional important issues are the adequacy of information about
what the courts do and a consideration of what kinds of information particular audiences need to
fully understand the judicial system and process.
Rep. Delmore noted that how courts are organized and what courts do have changed
dramatically over the years, particularly with the advent of problem-solving courts like drug courts
and different kinds of alternative dispute resolution mechanisms. She said it may be useful to
consider broadly explanatory information about the duties of the courts and how they are structured.
By way of a summary of Committee discussion, Chair Kapsner identified the following
general areas of Committee review and inquiry:
facilities and access technology and privacy tribal and state relations judicial selection and general respect for the rule of law and the judicial
system aging community adequacy of information and education about the courts and the judicial
process duties and structure of the court
Chair Kapsner said additional information will be assembled for review and discussion at the
There being no further business, the meeting was adjourned at 11:45 a.m.