Judicial Planning Committee May 4, 2012

Judicial Planning Committee

MINUTES
(unofficial until approved)
Judicial Planning CommitteeDoublewood Inn, BismarckMay 4, 2012

Members Present

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
JoAnne Hoesel, Director, Div. of Mental Health & Substance Abuses Svcs, DHS
Sally Holewa, State Court Administrator
Rep. Kim Koppelman, West Fargo
Dave Maring, Attorney, Bismarck/Mandan
Dave McGeary, Bismarck
Judge Daniel Narum, Southeast Judicial District
Kristi Pettit, Attorney, Grand Forks
Charles Placek, Bismarck
Judge Frank Racek, East Central Judicial District

Members Absent

Cynthia Lindquist, President, Cankdeska Cikana Community College
Sandi Tabor, Vice President of Government Affairs, Lignite Council

Others Present
Judge John Greenwood, Southeast Judicial District
Judge Douglas Mattson, Northwest Judicial District
Louie Hentzen, Assistant State Court Administrator
Dennis Herbeck, Court Administrator, Administrative Unit 1
Rod Olson, Court Administrator, Administrative Unit 2
Donna Wunderlich, Court Administrator, Administrative Unit 3
Carolyn Probst, Court Administrator, Administrative Unit 4

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

Judicial District/Administrative Unit Realignment - Revised (2nd) Draft Proposal

Chair Kapsner drew Committee members’ attention to Attachment D (April 27, 2012) - maps and accompanying data concerning possible realignment of judicial district boundaries. The maps and data were revised following discussion at the Committee’s March 9 meeting. The maps and data reviewed by the Committee at the March meeting are included as an Appendix to the March meeting minutes. She also drew attention to a letter received from Judge Gail Hagerty, Presiding Judge of the SouthCentral Judicial District, and an email from Judge John McClintock, Northeast Judicial District. Both were received after the Committee’s meeting material was mailed and are attached as Appendix A. Chair Kaspner noted that both submissions offer comments, and in the case of Judge McClintock includes resolutions from county commissioners regarding the Committee’s realignment discussion. She noted as well Attachments E and F (April 27, 2012) - letters from Judge John T. Paulson, Presiding Judge of the Southeast Judicial District, and Judge Michael Sturdevant, Northeast Judicial District (with accompanying county commission resolutions), which also offer comments regarding the realignment discussion. She said the submitted comments will be reviewed as the Committee discusses the revised maps and data. Chair Kapsner also distributed charts indicating caseload history in the judicial districts and counties over a six-year period beginning in 2006. She cautioned that the more recent caseload data related to the western part of the state does not reflect the full impact of oil development activity in the region but does, particularly with respect to the last 3 years, indicate some of the impact. Additionally, she noted that the left-side vertical scale for caseload numbers is different for each judicial district and county as it is relative to the caseload volume in each particular area. The charts are attached as Appendix B.

With respect to the comments submitted regarding the realignment drafts, Justice Kapsner said it is obvious that residents feel a significant bond with judicial officers in their area and place great importance on maintaining judicial services in the area. Nevertheless, she said while weight should be given to these sentiments, they should not necessarily dictate how the judicial system is organized in the future.

At the request of Chair Kapsner, the court administrators briefly reviewed the revised maps and data (Attachment D).

In response to a question from Judge Mattson regarding the unit and judicial district configuration, Justice Kapsner explained that the Committee had initially requested that the court administrators develop drafts based on four administrative units with two judicial districts in each unit.

Charles Placek noted the initial objective was to achieve an approximate balance in population, caseload, and staffing across units and districts. He said two judicial districts in each unit seemed to be a workable approach but the complication was how to divide Unit 4 in light of the judge distribution in the unit. Rod Olson observed that the court administrators had reservations about dividing Unit 4 into two judicial districts as it would essentially create a two-judge judicial district. Justice Kapsner said discussion of these and other issues resulted in the revisions included in Attachment D.

Dave Maring asked how the revised map (Attachment D) differs from the current unit and district alignment. Donna Wunderlich said the Southwest, Northeast Central, and East Central judicial districts would retain current boundaries. She said Kidder, Logan, and McIntosh counties would be moved from the South Central judicial district to the Southeast judicial district; Renville, Bottineau, and McHenry counties would be moved from the Northeast judicial district to the Northwest judicial district; and Wells, Eddy, and Foster counties would be moved from the Southeast judicial district to the Northeast judicial district. Unit lines would be adjusted to reflect the new district configuration. She explained that two judges (chambers in New Rockford and Bottineau) and one judicial referee (Bottineau) would be affected by the realignment of judicial district boundaries.

Charles Placek asked whether it is possible to assemble information regarding FTEs and workload so that the movement of each in the context of the three maps (Appendix, March 9 meeting minutes, and Attachment D) could be analyzed. Additionally, he asked whether more caseload data is available to review in relation to the three maps. Justice Kapsner noted that the latest update to the weighted caseload study is underway and results should be available in July.

Sally Holewa explained that transition to the Odyssey case management system has affected caseload data. As a result, she said, the data chart following the map in Attachment D consists of data from the unofficial 2010 weighted caseload update.

Chair Kapsner then drew attention to the letter submitted by Judge John Paulson [Attachment E (April 27, 2012)] in which Judge Paulson requests that the Committee not take final action regarding any proposal until the new weighted caseload study is completed and available. She said that is a reasonable request and the Committee would await the study results and review the proposals further at the August meeting.

Chair Kapsner next drew attention to the comments submitted by Judge Sturdevant and the accompany county commission resolutions opposing the draft proposals. She summarized the comments and her assessments as follows:

- The proposal would result in an indisputable reduction of judicial services to citizens in several rural counties. She said that is clearly not the Committee’s intention and services would be expected to be provided as needed.

- The proposal presumably would draft the Bottineau judge and judicial referee into service to address oil patch-related workload. She said that might occur.

- The proposal seems in furtherance of the regional trial center concept. She said it is not at all clear the proposal is directed to that objective and the basic intention is to ensure that services are available wherever needed.

- The proposal will compromise the long-standing familiarity with local judges. She said familiarity and contact with judges is a clear value and should be recognized.

- The proposal would result in a diminution of regular appearances and contacts in the counties served. She said this is an important consideration, but all districts work to ensure there is regular contact with all counties in the districts.

- Courthouse staff are very unhappy with the changes suggested in the proposal. She said staff sentiment is an important consideration.

- The proposal will result in an adverse impact on other judges in the district who would be responsible for the unique issues associated with serving Rolette County. She said that is a valid concern but the data indicates there is more judicial officer time available in the district than in other areas.

Chair Kapsner then requested general discussion on the comments.

Rep. Koppelman said change within any system is difficult and he appreciates the sentiments expressed in Judge Sturdevant’s letter. He noted the comment regarding trial centers and the observation by Judge Sturdevant that many regard the redistricting proposal with “skeptical suspicion”. He said the Committee’s inquiry has been honest and forthright in the attempt to look to the future and how judicial services may be most effectively provided in the state. He wondered whether there is any way to overcome the “suspicion” mentioned in Judge Sturdevant’s letter.

Judge Mattson agreed with Rep. Koppelman’s general comments. He said the main uncertainty concerns what, exactly, are the goals to be achieved with the proposal. He said skepticism and suspicion may be minimized if there is a clear statement regarding goals, what is to be achieved, and how the current system is deficient. More particularly, he said the proposed addition of counties to the Northwest judicial district would obviously increase the workload of administrative staff and suggests the need for an administrative assistant. Additionally, he said the additional workload associated with the new counties would be problematic in light of the current number of judges in the district and the increasing impact on judicial services related to the oil industry activity.

With respect to the goals to be achieved, Justice Kapsner said the referral from the Administrative Council was initiated with a request from the South Central judicial district to move certain counties in the far southeastern part of the district to another district. The referral ultimately requested a review of judicial districts generally. The Committee’s intention in response to a referral from the Administrative Council, she said, was to consider changes to judicial districts in an effort to approximately equalize such system components as caseload, travel requirements, judicial services, and staff distribution.

Chair Kapsner then turned to a review of the comments submitted by Judge McClintock, which are also accompanied by county commission resolutions. She said Judge McClintock makes essentially two points. First, she said, is the suggestion that the realignment proposal seems intended to provide more judicial services to other areas of the state. She said the Committee’s objective is decidedly not to take services from one area to give to another area. Second, she said Judge McClintock strongly suggests that the judicial branch approach the Legislative Assembly to request more funding for new judgeships and FTEs to ensure that judicial services are adequately provided.

Charles Placek observed that anything that can be done within the judicial system to equalize and improve system operation will aid in any request for additional funding.

Judge Narum said spreading the misery equally throughout the system will only make legislative solutions more difficult. If more resources are needed in particular places, he said, then that issue should be addressed. Justice Kapsner observed that misery will not be spread “equally” under any of the proposals. For example, she said, in the revised proposal (Attachment D) Unit 2 is still short nearly six judges, noticeably more than any other unit. She said some of the more immediate goals may be to enable some judges to travel less and to enable more efficient use of time.

With respect to the Attachment D map, Judge Narum asked whether the analysis of travel time considerations were based on where a judge resides or where the judge is chambered. Donna Wunderlich said the analysis is based on where judges actually work.

Randall Albrecht observed that circumstances are changing dramatically in the western part of the state. Solutions that analyze “what has been”, he said, will likely be unsatisfactory. The challenge, he said, is to look forward and determine what is sensible in terms of geography, demographics, and the level of services needed. Justice Kapsner agreed and said the judicial system is always in the position of reacting to societal changes and other influences.

Charles Placek recalled earlier discussion in which possible rule or statutory changes were mentioned, most particularly statutes relating to district-based jurisdiction and the location of judge chambers. He asked whether a list of possible legislative and court rule changes that would assist in an equitable distribution of resources could be assembled. Those possible changes, he said, could be followed by a consideration of changes to judicial district boundaries and election areas.

Chair Kapsner asked that staff assemble a list of statutes and rules that could be evaluated for possible changes.

With respect to workload, Donna Wunderlich said that in the South Central judicial district Burleigh and Morton counties represent 80% of court filings, McLean and Mercer counties represent 12% of court filings, and the remaining eight counties in the district generate 8% of filings. Notwithstanding the majority of the work occurring in two counties, she said, services are still regularly provided throughout the district.

Justice Kapsner asked what the political reaction might be to eliminating the “70/30" requirement set out in N.D.C.C § 27-05-08 (no more than 70 percent of judge chambers may be located in cities with populations over 10,000). Rep. Koppelman said the response would be hard to predict, but the basic question would be how local services would be provided. Rep. Delmore said good services are being provided in rural areas, perhaps sometimes to the detriment of larger population centers. She said hard data and detailed analysis would be needed to support the change. Also, she said, there would have to be a demonstration that the judicial system is making the best use of current resources.

Judge Mattson observed that the judiciary has likely done more self-evaluation, reorganization, and analysis and experienced more changes in the system than other branches of government.

Chair Kapsner next drew attention to the letter submitted by Judge Gail Hagerty. She summarized Judge Hagerty’s comments as follows:

- Support for district line changes that would move Kidder, Logan, and McIntosh counties into the Southeast judicial district.

- The large geographic size of the district often requires that a judge and court reporter travel for four hours round-trip to one of these counties for a 15 minute hearing.

- The counties affected by the proposed change use the Stutsman County correctional facility because it is closer than the Bismarck-Mandan facility.

Chair Kapsner requested discussion of the submitted comments.

Judge Greenwood noted that the Southeast judicial district has been short of judges for several years, until one judgeship was recently added. He said under the proposal set out in Attachment D the district would lose three counties and gain three counties. But, he said, the district would also lose a judgeship, which would negate the recent addition of the judgeship in Jamestown.
He said Stutsman County, with two chambered judges, has a caseload greater than what two judges can handle, which requires other judges in the district to travel to Jamestown. Historically, he said, the goal in the district has been to minimize travel by the judges in the bigger cities although all judges travel to some degree. That goal, he said, would be less achievable under the proposal as more judges would have to travel to the western side of the district.

Donna Wunderlich said the initial draft proposals would have moved Griggs County out of the Southeast judicial district because it is located quite a distance from judge locations in that district but would be much closer for judges located in Grand Forks. She noted that the caseload in the 4 counties - Wells, Eddy, Foster, and Griggs (if included) - equaled about one judgeship, which is why the judgeship chambered in New Rockford would have moved from the Southeast judicial district to the Northeast judicial district.

Dave Maring asked whether consideration was given to aligning administrative unit lines with executive branch regions. Rod Olson said the subject was reviewed but it appeared that no matter how unit lines were rearranged, the lines would cross executive region lines.

With respect to the revised map (Attachment D), Judge Racek said there are essentially two distinct pieces of business within the judiciary, only one of which affects judges, travel time, and similar issues, and as a consequence may be affected by what the map proposes. He said clerks of court typically do not travel and with Odyssey and e-filing there are essentially no geographical lines. He said efforts have been undertaken to separate clerks from work done essentially for others, such as processing child support alerts. He said electronic signatures will soon be a possibility. That, he said, will alleviate the delay normally associated with holding documents for a judge’s signature until the judge arrives on the routine once per week or once per month schedule. He said the ability of the judiciary to make its own rules has great possibilities. For example, he said, an omnibus hearing process could be regularly used in criminal cases, thereby eliminating the need for preliminary hearings. Other changes could be made to ensure that judges travel only to handle contested matters.
He said that within clerks’ offices there is much greater opportunity for uniformity and working across county and district lines. He said e-filing and Odyssey provides enhanced potential for clerks working across lines.

Justice Kapsner observed that even in the process of determining whether and how to make future changes, it is necessary to deal with how the system currently operates. She said the improved processes Judge Racek identifies may be achievable in the future, but current court operations must be addressed as well. Judge Racek responded that many of the processes and matters being discussed, such as case filings, essentially have no lines and it may be counterproductive to place them within lines, geographic or otherwise.

Sally Holewa disagreed with the suggestion to focus only on contested matters since there is an entire process, and related work, that must occur to arrive at the point of being a contested matter. Judge Racek said more and more of those actions that occur early in the process are being handled electronically. For example, he said, it is very common in rural counties for the defendant not to appear at a first appearance. The defendant, he said, will plead not guilty in writing and then is given a scheduling order.

Chair Kapsner then asked if Committee members had questions for the court administrators regarding the revised map.

Dave Maring noted that each unit had two judicial districts except Unit 4 and asked why there is the difference. Donna Winderlich explained that, in part, Unit 4 was left with only one judicial district because it is generally easier to make a caseflow management plan with three judges than with only two and if Unit 4 were to have two districts, the western district would have only two judges. Additionally, she said, the two-district approach for Unit 4 did not appear to be very popular at the Committee’s last meeting.

Carolyn Probst observed that it seems sensible to have two districts in Unit 4, particularly if there is the possibility of a new judgeship being added in the unit.

With respect to the issue of “lines”, Rep. Koppelman said he understood why the various lines exist but wondered if there is any possibility for the lines being less rigid and confining.

Chair Kapsner said the question relates to the review of jurisdictional statutes related to judicial districts and touches on Judge Narum’s earlier expressed concern about judges serving outside the areas in which they have been elected. She said the Committee, at its August meeting, will further discuss jurisdiction versus election districts and whether it is feasible to divorce jurisdiction from the area in which the judge is elected.

Charles Placek suggested the Committee also review what courts can do administratively within Odyssey and with the advent of electronic filing and increased used of technology such as ITV. Related, he said, is the question of whether it is possible to ensure, administratively, that a “best practice” implemented in one area is implemented throughout the state. He noted that clerks of district court are both state employees and county employees and wondered whether any efficiencies could be gained if all clerks were under one administrative umbrella. He suggested that, after reviewing these various areas of possible efficiencies, including statutory or rule changes, an effort be made to identify any fiscal impact that might be associated with the changes.

With respect to clerks of district court, Sally Holewa said it is a misconception to consider it inefficient to have clerks that are state- and county-employed. She said the state reimburses counties with county-employed clerks only for the amount of work that is determined necessary to provide clerk services. Additionally, she said the counties essentially subsidize the operation of the state court system in that most counties with county-employed clerks have at least two people in the office while the state reimburses only that portion of the cost considered necessary to provide services. Nevertheless, she said, efforts have been undertaken to streamline services and achieve more uniformity. For example, she said, early consideration was given to the possibility of centralizing the payment process that occurs in each county. However, she said, discussions with the State Auditor’s Office indicated that centralization would not be possible since current law requires reporting revenue by each, individual county.

Rod Olson said there have been occasions in his unit when work has been shifted from one clerk’s office to another clerk’s office. Sally Holewa observed that county employed clerk staff have also been enlisted to help in state clerk offices, for which the county has been reimbursed for the clerk’s time.

Rep. Koppelman noted a suggestion by Judge Racek regarding how fees assessed by the courts could be handled. He said fees are currently imposed for a variety of purposes, with each fee tracked separately. He said the suggestion is that perhaps a single flat fee could be imposed, with disposition based on identified percentages. Judge Racek observed that there at least nine different fees that must be tracked. He said a flat fee could be imposed and the Legislative Assembly could direct by statute that, for example, X% is deposited in this fund, Y% is deposited in that fund, etc.

After further discussion, the Committee turned to a review of revised facility standards.

Facility Standards - Revised Draft Proposal - Cont’d Discussion

Chair Kapsner drew Committee members’ attention to Attachment C (April 27, 2012) - revised draft proposed facility standards and a draft Statement of Purpose prepared by Sally Holewa.

Sally Holewa explained that the draft standards were revised following the initial discussion at the March meeting. The revisions, she said, changed classification designations as discussed and added language in each Section III description of the courtroom to address adequate seating for public observation of court proceedings. She said the Statement of Purpose is entirely new and was generally discussed at the March meeting. She said the initial question is whether a Statement of Purpose should be included and, if so, whether the draft is sufficient.

In response to a question from Chair Kapsner, Committee consensus was that the Statement of Purpose should be included with the Standards.

Dave Maring noted the March discussion regarding placement of ADA-compliance in the classification sections rather than in the point factors. Sally Holewa said the additions would be made to the draft standards.

Justice Kapsner suggested language should be included in the Statement that emphasizes that a county considering improvements to a court facility should work closely with the court administrator’s office to ensure the project meets the relevant standard. That, she said, would identify the court administrator’s office as a resource for the county when considering an improvement project. Committee members agreed.

Judge Narum agreed the additional language would be helpful but suggested that “to ensure” be replaced with “to assist” or a similar phrase, which would indicate that assistance is being offered rather than a requirement being imposed. He also suggested that “were created” in the opening paragraph of the Statement be replaced with “are offered”. Committee members agreed with both suggestions.

Judge Racek suggested that “and the expectations of local community” could be inserted after “System” in the opening paragraph. He said county expectations should be matched to the kinds of activity that is expected in the court facility. For example, he said, a county should not expect that complex trials should be handled in a facility that is inadequate. Committee members agreed with the suggested change.

Chair Kapsner then requested comments on the revised Standards.

Charles Placek asked when and by whom the designations set out in the Standards would be made. Justice Kapsner said she would see the Standards coming into play most often in motions for change of venue.

Dave Maring wondered whether the designation should relate to a courthouse generally or whether it should relate more specifically to a courtroom. He suggested the designation should relate to courtroom so that it is generally clear that a county does not have to elevate every hearing room to satisfy a higher designation.

Judge Racek said a courtroom-based designation may assist the Court Facilities Improvement Advisory Committee in determining the merit of a particular project. He said it may be that improvements to an additional hearing room, for example, may not be necessary in light of existing courtrooms that are sufficient and improvement funds could then be available for another project.

Sally Holewa said the more specific approach was considered but it seemed that if a facility is classified, it will be classified based on the best courtroom in the facility.

Following further discussion, Committee members concluded that the general reference to “court facilities” in the Standards and Statement should be retained.

Chair Kapsner asked that Ms. Holewa make the noted revisions to the Statement and Standards. She said the revised proposals would be discussed further at the August meeting.

With respect to the August and December meetings, Chair Kapsner said the updated weighted caseload study should be available for a broad discussion at the August meeting in relation to redistricting. She said the Committee should be prepared to take final action on the Facility Standards and Statement of Purpose at the August meeting and should reach final conclusions on the redistricting issue at the December meeting.

There being no further business, the meeting was adjourned at 12:55 p.m.
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Jim Ganje, Staff