Judicial Planning Committee October 9, 2009

Judicial Planning Committee

MINUTES
(unofficial until approved)
Judicial Planning Committee
Bismarck

Doublewood Inn, BismarckMarch 9, 2012

Members Present

Justice Carol Ronning Kapsner, Chair
Randal Albrecht, Administrator, Medcenter One Living Center
Aaron Birst, Legal Counsel, ND Association of Counties
Rep. Lois Delmore, Grand Forks
Sally Holewa, State Court Administrator
Dave Maring, Attorney, Bismarck/Mandan
Dave McGeary
Judge Daniel Narum, Southeast Judicial District
Charles Placek, Bismarck
Judge Frank Racek, East Central Judicial District
Sandi Tabor, Vice President of Government Affairs, Lignite Council

Members Absent

Judge Zane Anderson, Southwest Judicial District
JoAnne Hoesel, Director, Div. of Mental Health & Substance Abuses Svcs, DHS
Rep. Kim Koppelman, West Fargo
Cynthia Lindquist, President, Cankdeska Cikana Community College
Kristi Pettit, Attorney, Grand Forks

Others Present

Rod Olson, Court Administrator, Administrative Unit 2
Donna Wunderlich, Court Administrator, Administrative Unit 3

Chair Kapsner called the meeting to order at 10:00 a.m. and drew Committee members’ attention to Attachment B (March 2, 2012) - minutes of the December 2, 2011, meeting.

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

Facility Standards - Draft Proposal - Cont’d Discussion

Chair Kapsner drew Committee members’ attention to Attachment C (March 2, 2012) - draft proposed facility standards prepared by Sally Holewa, which were initially reviewed at the December 2 meeting. The proposal suggests three classifications of court facilities, with a classification assigned to a facility based on a point system. The point system is, in turn, generally based on the criteria for reviewing chamber locations set out in Administrative Rule 7.1.

Chair Kapsner explained that the subcommittee reviewing issues concerning facility standards, security issues, and methods of collaborating with counties had met earlier in the morning to review the draft standards. She requested that Dave Maring, Subcommittee chair, provide an overview of the subcommittee’s discussion and conclusions.

Dave Maring explained that the draft standards consist of three classifications that describe whether a particular facility is considered suitable for complex litigation (Class A), jury trials (Class B), or non-jury proceedings (Class C ). He said each classification is comprised of three general categories that serve as the basis for evaluating a particular facility: security, technology, and general facility characteristics and capabilities. He said the subcommittee discussed the structure of the draft standards and initially recommends that the classification designations be changed to “CL” for complex litigation, “JL” for jury litigation, and “L” for simple litigation. These designations, he said, seemed more descriptive. He said the subcommittee then considered whether the category components within each classification should be revised. He summarized the following subcommittee observations and suggestions:

- Section IA(d) provides that all persons entering the courthouse “should be subject to screening”. There is uncertainty whether this provision is intended to require mandatory screening. The subcommittee concluded the extent of screening efforts should be determined on a county-by-county basis.

- Section IA(e) provides that a deputy should be available for courtroom security during criminal proceedings and whenever additional security is requested by the court. The subcommittee suggested adding domestic violence protection order proceedings as a type of proceeding for which a deputy should be present.

- Section III discusses general facility characteristics and capabilities and Section III(A)(d) directs that a courtroom must be of sufficient size and design to accommodate a 12-person jury and have suitable area to accommodate counsel tables. The subcommittee suggested that the criteria include a reference that the courtroom have public space sufficient for a suitable number of observers and that jurors must have a clear, unobstructed view of the judge and proceedings.

Dave Maring said the subcommittee generally discussed the major, core differences among the three facility classifications, which relate to the size of the courtroom, availability of adequate audio/visual technology, the availability of counsel rooms and jury facilities. There are, he said, general similarities among the classifications which illustrate a basic idea of what constitutes an adequate facility.

Charles Placek noted his earlier comment that the draft standards appear to be more like an executive summary than a fuller description of facility requirements or expectations. He asked if the subcommittee discussed whether more detailed standards, such as square footage for courtrooms, would be developed and made available for reference. Dave Maring responded, to take the example, that if specific square footage requirements were developed, it is likely that many current courthouses would not satisfy such a requirement. He said square footage or similar standards may be more helpful when considering major remodeling projects or construction of a new facility.

With respect to how a facility designation might be made, Sally Holewa said court administrators would likely be responsible for making the initial designation based on the standards and criteria. Regarding the point system for classifying facilities that is included with the draft standards, she said points were based on implementing the criteria set out in Administrative Rule 7.1, which is used for determining chambers locations. She said the point assessments were based on what seemed reasonable. She noted that greater point values were given criteria such as adequate courtroom space, the quality of the court facility, and whether the facility is handicapped accessible.

With respect to Section A of the Point System document, which relates to caseload, Dave Maring asked how many counties have a caseload of 1000 or more filings per year. Sally Holewa responded that most counties would fit in that category. Justice Kapsner suggested that if most counties have 1000 or more filings per year, perhaps there should be more distinctions than the three (3 points, 2 points, and 1 point) that are set out in the document. Sally Holewa said the number of filings per year in a county may not relate directly to what is needed for court space. For example, she said, complex litigation may occur in a county that generally has fewer filings in a year, while a county with more filings may not have a complex case.

Judge Racek suggested that in addition to classifying or ranking courthouses, individual courtrooms within courthouses should be ranked. He said the standards should not necessarily be considered mandates, but should be treated as goals, factors, or guides to assist in distributing funds for courthouse improvements. He said county commissioners cannot greatly control the size of their communities or the kinds of amenities that are available in the communities - all of which are addressed in the AR 7.1 criteria and included in the Point System document. However, he said, county commissioners can control whether the courthouse is, for example, ADA-compliant. He suggested that ADA-compliance should be a goal for courtrooms used for complex litigation.

Sally Holewa noted that the judicial system does not have funds to distribute for facility improvements. She said the only available state funds are provided through the court facilities improvement fund.

Justice Kapsner asked whether ADA-compliance should be added to the classification standards, rather than be a point factor. Sally Holewa observed that the judicial system has no influence over whether a court facility is ADA-compliant. She noted that court facility improvement funds are not awarded to counties for ADA compliance projects as the counties have a separate obligation under federal law to ensure compliance.

Judge Racek said the facility classifications should be related to those facility characteristics that county commissioners can control.

After further discussion, Committee members agreed ADA-compliance should be included in the classification standards.

In response to a question from Judge Narum, Sally Holewa said traffic filings would not be included in determining point assessments based on filings.

With respect to the standards and point classifications generally, Sally Holewa said she was fairly conservative in developing the point structure and the classification standards. She said it would be unfortunate and unintended if the facility classifications were perceived as an indirect method of withdrawing judicial services from smaller counties or as a basis for withholding facility improvement funds from smaller counties. Judge Narum agreed and stressed that the intention should be that services will continue and that the standards would be provided to counties for purposes of identifying what is needed to effectively provide those services.

Randal Albrecht said the goal is to determine how to provide effective services when needed regardless of county size. He stressed that relying on historical data to determine the level of necessary services may be of little benefit in light of the enormous increase in activity in the western part of the state.

Sally Holewa noted that the draft standards incorporate as point factors services that are available in the community. She said while these service-oriented factors are identified in Administrative Rule 7.1, they are generally not the kinds of considerations that are included in or related to facility standards developed in other jurisdictions.

Judge Racek asked whether it is necessary to include AR 7.1 criteria in the standards. Perhaps, he said, it would be better to focus directly on standards for facilities. Dave Maring said the question may depend on what is perceived to be the end goal: whether the objective is to simply provide guidelines for counties to use in determining facility improvements or whether the objective is to provide guidance generally on both facility needs and standards and the adequacy of community resources.

Judge Racek emphasized that there is very little guidance provided by the judiciary regarding facility needs that can assist the court facilities improvement advisory committee in deciding how to award grant funds for projects. He encouraged a focus on basic facility guidelines. Sally Holewa agreed and said the AR 7.1 community criteria may be more useful to lawyers and litigants on decisions about , for example, moving the location of a trial, but the criteria may not be generally helpful on the issue of facility adequacy.

Sandi Tabor asked whether the point system related to community services could be perceived as a backdoor way of diluting judicial services in rural areas. If it can, she said, then a focus on basic facility guidelines to provide information for county decision-making about facility improvements may lessen the opportunity for that suspicion.

Sally Holewa said it is something of a mixed issue: a courthouse may be adequate for complex litigation but available community services may not be adequate for the increased activity associated with the proceeding, which points to the need for some level of awareness about the nature of community services. She agreed that counties would likely appreciate and benefit from guidance about what are considered basic, necessary facility features.

Justice Kapsner asked whether there are any items identified in the Point System document that should be incorporated in the classification standards. She wondered also whether the complex litigation classification should in include a statement that there should be convenience of travel and adequate community services to accommodate jurors, litigants, and others involved in a proceeding.

Aaron Birst generally agreed that the AR 7.1 criteria addressed in the Point System document are useful for chambering decisions but are likely not of great use with respect to assessments of facility adequacy. The greater value for counties, he said, is in the guidance standards would provide in making decisions regarding facility improvements.

In response to a question from Chair Kapsner, Committee members agreed the revisions summarized earlier by Dave Maring should be incorporated in the classification standards document. There was also agreement to eliminate the Point System document at this point.

In response to a question from Sally Holewa, it was agreed that ADA-compliance should be added to the facility standards for each classification.

With respect to the standards, Judge Racek suggested the Committee should decide whether security at the door is a goal and whether standards regarding square footage for the courtroom, jury room, and other court-related areas should be included. Charles Placek agreed and said there generally should be more detailed guidance provided in the standards so that county commissioners have a good source of information to review.

Sally Holewa agreed there should be greater detail regarding the standards but disagreed that it should be part of a Committee recommendation. She said including substantial detail in a standards recommendation moves from a making broad policy statement to developing a plan for executing the policy. She said if the standards recommendations are adopted, she would envision the greater facility detail, perhaps in the form of a manual, as being available upon county request from the state court administrator’s office.

Randal Albrecht asked where there would be an expectation, if standards were in place, that facility improvement funds would be available if counties followed the guidelines.

Sally Holewa said the court facilities improvement fund was established to assist counties in improving and maintaining facilities for which the counties are responsible. She said the advisory committee is governed by very general criteria set out in statute and does not have authority to direct how a county improves or maintains a facility.

Sandi Tabor agreed the improvement fund is available to assist counties, but said the improvements were intended to be those that are useful to the court. For that reason, she said, there should be detailed guidance to assist the advisory committee in focusing on how funds are awarded.

Aaron Birst observed that as long as there is agreement that the detail regarding facility standards is not regarded as establishing a minimum mandatory requirement, then whether the detail is set out with the standards or maintained separately in the administrator’s office is less important.

Dave Maring suggested a distinction between “minimum” and “mandatory” with respect to standards. He said guidelines are, in a sense, “minimum” standards to be satisfied to acquire, for example, a “CL” (Complex Litigation) classification for a facility. The guidelines are not mandatory, he said, since a county may choose not to make the improvements to obtain the CL classification.

Sally Holewa said detailed standards regarding courthouse and courtroom configurations are available in other jurisdictions. She noted that Kentucky has extensive standards for remodeling and new construction of court facilities and standards related to rural and urban facilities.

Justice Kapsner suggested the standards could include a reference that counties interested in remodeling or new construction should contact the state court administrator’s office for more detailed information.

In response to a question from Judge Narum, Aaron Birst said county commissioners are generally more amenable to state standards rather than national standards.

Chair Kapsner said the Committee will continue review of the standards document at the next meeting.

Administrative Unit Realignment - Proposal

Chair Kapsner next drew Committee members’ attention to two maps and supporting data prepared by the trial court administrative staff. She said the maps were requested following the Committee’s December 2 meeting discussion and represent two variations comprised of four administrative units with two judicial districts in each unit. The first variation represents boundaries for two districts in each unit based only on the criteria used for the unit realignment proposal discussed at the December 2 meeting. The second variation represents two districts in each unit but with district boundaries similar, to the extent possible, to present boundaries. Copies of the maps and data are attached as an Appendix. Chair Kapsner then welcomed Rod Olson, Court Administrator for Unit 2, and Donna Wunderlich, Court Administrator for Unit 3, for comments regarding the two maps.

Rod Olson said the realignment draft initially reviewed at the Committee’s December 2 meeting [Attachment D (March 2, 2012)] and the following two maps were prepared based only on available data and in response to the Committee’s request. He explained population and case filings are generally useful for considering district realignments, but “court culture” also necessarily plays a part. For example, he said Cass County is larger than Burleigh County but the latter has three times the number of jury trials as the former. That is a dynamic, he said, that is directed by litigants and attorneys and is something over which the court has little control. Another factor, he said, may be the availability of local resources, such as jails, related to the judicial process. He noted, for example, that in the map proposals Eddy, Foster, and Wells counties are placed in a Unit 1 judicial district, rather than remaining in a Unit 2 judicial district. The reason for the relocation, he said, is that all three counties use the correctional facility in Devils Lake. As a consequence, he said, if someone is picked up in one of the three counties, a Devils Lake judge can conduct a first appearance without the need to transport the defendant back to one of the counties.

Rod Olson further explained that election issues are important considerations. For example, he said, if Cass County and Richland County were placed in the same judicial district it would likely be very difficult for a Wahpeton attorney to succeed against a Fargo attorney in an election for a Wahpeton judgeship. As a result, he said both maps set out Cass County as a single judicial district within Unit 2. He said consideration of Unit 4 was particularly difficult in light of the district configuration and the location of judges. He said the maps represent two judicial districts in Unit 4, with one consisting of three counties on the western side of the unit. The odd result, he said, would be a judicial district comprised, at present, of two judges, one of whom would become the presiding judge of the district. Additionally, he said analyzing possible reconfigurations for the northwest is particularly difficult as there are no reliable population numbers in light of the rapid increase in oil activity in the area.

Donna Wunderlich explained that the administrators’ draft proposals were based on consideration of judge needs, case filings, population, travel distances, administrative resources, juvenile staff needs, DOCR service regions, DHS service regions, and historical district boundaries. She said the basic consideration was what seemed to make sense based on available data. For example, she said inclusion in the first map of Pierce and Rolette counties in a judicial district within Unit 4 was based on considerations such as how long it takes a judge to travel to the county seats. However, she said, the two counties are placed back in a judicial district within Unit 1 in the second map because it seemed to make more sense from an election standpoint. She said it seemed sensible to leave Bottineau, McHenry, and Renville counties in a judicial district within Unit 4.Additionally, she noted that Kidder, Logan, and McIntosh counties would be placed in a judicial district within Unit 2. That, she said, seemed more workable since all three counties use the Stutsman County correctional facility and it is a shorter travel distance for Jamestown and LaMoure judges to the county seats than it is for judges in Bismarck-Mandan. Additionally, she said the three counties are low volume counties - requiring less than 4 tenths of a judge in terms of filings and time - but are high travel-time counties. She agreed with Rod Olson’s comment regarding the difficulty of a two-judge/three-county judicial district in the northwest, but noted that the three counties have functioned for some time as a kind of sub-district.

Donna Wunderlich said there was considerable discussion about retaining Traill County within a judicial district with Cass County in Unit2 since Judge Webb is chambered in Hillsboro. Alternatively, she said, there was discussion about including Traill County within a judicial district in Unit 1, as the maps indicate, but relocating Judge Webb’s chambers to Fargo. The conclusion, she said, was that Traill County seemed more closely related to Grand Forks County.

With respect to the data spreadsheet accompanying the two maps, Donna Wunderlich explained that one objective outlined earlier by the Committee was approximate equalization of judge need. She said the first administrator draft reviewed at the December 2 meeting is reflected in the first graph and the Version 1 and 2 maps are reflected in the second and third graphs. She noted that the “judge need” columns at the far right differentiate between judge need based on chambers locations (1^st column) and judge need based on where the judge actually works (2^nd column). She said the Version 1 and 2 judge need columns based on actual work sites illustrates the attempt to roughly equalize judge need.

Dave Maring asked what purpose judicial districts serve other than as areas of election. Justice Kapsner responded that under current statutes judicial districts also represent a judge’s jurisdiction.

Justice Kapsner observed that the Version 2 map with boundaries closer to current districts seems more sensible, particularly in light of population distribution in the state.

In response to a question from Dave McGeary, Donna Wunderlich said neither of the map versions contemplate removal of the current 70/30 requirement regarding chambers locations.

With respect to the 70/30 requirement, that is, no more than 70% of judge chambers may be located in counties with populations more than 10,000, Charles Placek said if there is a chambers location, there should be a judge located there. Of the two map versions, he said he prefers the second version, which represents judicial districts with boundaries closer to the current districts. He wondered whether efficiency and flexibility would be enhanced if judges were able to exercise jurisdiction throughout a unit, while still maintaining judicial districts within the unit for election purposes.

Judge Racek observed that judges deal with about 1-2% of the cases that move through the court system. He said the function of the court is roughly based on capacity and is affected more by how things are managed than how judges handle the 1-2%. Consequently, he said, adding or subtracting the number of people does not really change management practices. He reiterated his earlier comments that a more equitable distribution of personnel and judge time in tandem with similar objectives and practices would aid the process in working more effectively. Relatedly, he noted with respect to the weighted caseload study that there is something of a penalty associated with doing things more efficiently as greater efficiency and the resulting reduced judge time leads to a lower judge need.

Justice Kapsner observed that no one in the system has a disincentive to manage cases efficiently. She said everyone in the system is trying to manage cases in a way that best accommodates their needs. Judge Racek said cases and work are managed based on available resources. He said if an area has more than a pro rata share of resources, then work is managed differently than if the area has less than a pro rata share; three steps are taken to accomplish a task when two steps may have been sufficient.

With respect to units serving as an election area, Dave Maring asked whether that larger area would be pose difficulties for judges who would run for election in the unit. Judge Narum observed that a large geographic area always is difficult from the standpoint of elections.

Judge Racek noted that the ability of parties to demand a change of judge would be an obvious problem if one judge is elected in a small area.

Sandi Tabor suggested the possibility of considering jurisdiction based on administrative units but establishing different areas for purposes of election. Judge Narum observed that a judge should not generally preside over proceedings involving litigants that did not have the opportunity to vote for the judge.

With respect to the two maps, Dave Maring said he would not favor creating a judicial district with only one county.

Judge Narum said an important goal for the judicial system should be to provide access to services. He said election areas are, for that reason, important. If a judge is not elected in the area the judge serves, he said, then services will not be provided in the manner they should be.

Rod Olson said if a one-county judicial district is considered problematic, the maps could be revised to retain Traill County with Cass County in a district.

In response to a question from Chair Kapsner, there was a general consensus that of the two maps, the map representing district boundaries closer to current boundaries is preferable.

Chair Kapsner noted that Judge Mattson had expressed interest in offering comments on the various drafts and she had invited him to attend the Committee’s May 4 meeting. Sally Holewa suggested, and Committee members agreed, that the trial court administrators should solicit comments from the judges in their units about the drafts and provide a summary of responses at the May 4 meeting.

Chair Kapsner said the Committee would continue discussion of the realignment proposals at the next meeting.

There being no further business, the meeting was adjourned at 12:50 p.m.
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Jim Ganje, Staff