MINUTES (unofficial until
approved) Judicial Planning Committee Bismarck
Doublewood Inn, Bismarck
March 9, 2012
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
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
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
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
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
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
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
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
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
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 (1st column) and judge need based on where the judge actually works (2nd
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
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
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. ___________________________ Jim Ganje, Staff