Judicial Planning Committee October 8, 2010

Judicial Planning Committee

MINUTES
(unofficial until approved) Judicial Planning Committee Doublewood Inn, BismarckOctober 8, 2010

Members Present

Justice Carol Ronning Kapsner, Chair
Judge Zane Anderson, Southwest Judicial District
Aaron Birst, Legal Counsel, ND Association of Counties
JoAnne Hoesel, Director, Div. Of Mental Health & Substance Abuse Svcs, DHS
Sally Holewa, State Court Administrator
Rep. Kim Koppelman, West Fargo
Dave Maring, Attorney, Bismarck/Mandan
Dave McGeary
Kristi Pettit, Attorney, Grand Forks
Charles Placek, Dep. Director of Admin. Svcs, DOCR
Sandi Tabor, Vice President of Government Affairs, Lignite Energy Council

Members Absent

Randal Albrecht, Administrator, Medcenter One Living Center
Rep. Lois Delmore, Grand Forks
Cynthia Lindquist, President, Cankdeska Cikana Community College
Judge Daniel Narum, Southeast Judicial District
Judge Frank Racek, East Central Judicial District

Chair Kapsner called the meeting to order at 10:00 a.m. and drew Committee members’ attention to Attachment B (October 1, 2010) - minutes of the June 11, 2010, meeting. Typographical errors were noted on pages 5 and 7.

It was moved by Dave Maring, seconded by Judge Anderson, and carried that the minutes, as corrected, be approved.

Chair Kapsner drew Committee members’ attention to the tentative conclusions reached by subcommittees reviewing the access and technology questions previously identified. The conclusions are set out in the June 11 meeting minutes. She asked that the Committee review the conclusions to determine whether modifications should be made.

Questions 1 and 2 - Conclusions - Review

Committee members then turned to a review of tentative conclusions with respect to Questions 1 and 2 [ What core services must continue to be offered in every county on a regular basis? How will those services be impacted by technology in the future?].

Regarding Question 1, Conclusion 1 [At a minimum, court should be scheduled in every county at least once per month. Residents should have access to a judge at least on a monthly basis], Dave Maring recalled Judge Racek’s earlier observation that adopting a uniform approach to minimum scheduling, for example, requiring court to be scheduled at least once per month, may result in slowing down the process rather than hastening the disposition of court business. He said the challenge is finding a proper balance in ensuring timely access to court services while not compromising efficient court operations.

Judge Anderson noted that in the Southwest Judicial District matters are not held or delayed awaiting the arrival of a judge. Necessary court documents are signed, he said, expeditiously and as needed through the use of FAX and other technology aids.

Justice Kapsner asked whether the preference for in-person involvement by the court in proceedings such as those dealing with protection orders could be accomplished through use of technology. Judge Anderson said technology could be a useful tool, but he emphasized the importance of public awareness that there actually will be a court available to handle the proceeding.

Dave McGeary observed that timeliness and access are also important issues in juvenile court, which must abide by time constraints imposed by law. He said that in the SouthCentral Judicial District ITV has been used for juvenile court hearings in some counties. However, he said most counties do not have ITV arrangements and hearings involving residents of those counties are most often held in Bismarck. JoAnne Hoesel said technology is a valuable resource when short timelines are involved.

Justice Kapsner asked whether there is access to ITV somewhere in most courthouses. Judge Anderson observed that there are few points of access for ITV in the Southwest Judicial District. JoAnne Hoesel said each human service center has rooms with ITV services but they are heavily used.

Rep. Koppelman counseled against developing a one-size-fits-all solution that tends toward a “come to us” mentality with respect to judicial services.

Judge Anderson observed that ITV is a valuable tool for addressing certain situations, but it is a generally poor substitute for in-person judicial presence and assessment of the case before the court.

In response to a question from Dave Maring regarding the usual amount of work to be done once a judge arrives at a given courthouse, Judge Anderson said judicial work time varies depending on the kinds of matters before the court.

Rep. Koppelman said the personal presence and interaction of the judge is an important dynamic as it likely is less stressful and less intimidating for litigants to have matters handled locally rather than having to travel some distance to another, unfamiliar location.

In response to a question from Chair Kapsner, Sandi Tabor described information assembled by the Pro Bono Taskforce regarding a Montana effort using technology to enhance provision of pro bono legal services. She said IVN and ITV are being used in a project to facilitate lawyers meeting with pro bono clients. She said initial client screenings are conducted and follow-up consultations occur as necessary. The primary objective of the project, she said, is to facilitate access to lawyers. The project, she said, is funded in part by a grant from the Legal Services Corporation and is proving to be fairly useful in addressing the need for pro bono legal services.

Justice Kapsner said the project illustrates the availability of expanded uses for technology once it is in place and not used exclusively by the courts.

Charles Placek agreed and observed that DOCR found that once technology tools were in place and became more familiar use increased and subsequent demand also increased. He said cost savings were also realized.

Sandi Tabor cautioned that there may be a somewhat different dynamic at work with respect to technology and the courts depending on how access is handled.

Sally Holewa observed that T1 lines typically cost about $630 per month and some counties have two lines. She said increasing the number of lines may become cost-prohibitive. She said the potential cost must be weighed in light of the level of anticipated use and staffing requirements for operation and scheduling. She said consideration would also be necessary in determining the deciding factor or factors in where the additional technology would be located.

In response to a question from Rep. Koppelman, Sally Holewa said deploying wireless options such as SKYPE are complicated by the fact that counties are not on the state’s technology backbone. Wireless options, she said, generally have the same issues as other forms of technology enhancements.

Dave Maring emphasized that broader use of technology is aimed at a future implementation rather than rapid, short-term change. He said a planning effort should not necessarily be limited by what are perceived to be barriers at the present time.

With respect to Question 1, Conclusion 2 [Clerk of court services may not be a necessary core service that must be provided in each county on a routine basis, particularly with respect to filing and record-keeping], Charles Placek wondered whether kiosks could be used to provide access to certain clerk services, much like bank teller remotes are used to provide certain banking services. For example, he said, a clerk of court might be located in Bottineau but be able to provide certain services to other parts of the region through public-access kiosks.

Sally Holewa said members of the public seek a wide variety of services and information from clerks and their staff, ranging from simple information requests to questions about how a particular matter should be filed or how a person should respond to some court issue. Oftentimes, she said, there is a basic element of public service involved in assisting the public about generally how to navigate the judicial process.

In response to a question from Justice Kapsner, Ms. Holewa said she would question the conclusion that clerk of court services may not be a necessary core service. In response to a further question, she said members of the public would likely regard access to clerk services as important in much the same way that they prefer the local presence of a judge.

Rep. Koppelman said public concern regarding the loss of local interaction should be considered and there may be drawbacks to considering alternative methods of delivering services. Nevertheless, he agreed that what may be perceived as barriers now may not be barriers in the future and the challenge is to arrive at a middle ground regarding service delivery while still recognizing personal judicial presence as a factor to be considered.

JoAnne Hoesel observed that during any transitional phase in service delivery the current skill sets regarding clerk services may change and education and support efforts would be necessary.

Charles Placek noted that ongoing shifts in society and technology should not be regarded as necessarily anti-rural. With respect to the judicial system’s current evolution toward complete e-filing, he suggested the naturally arising issues about filing documents in a county other than the county in which the matter would be venued and the related issue of identifying a repository for filed documents.

Sally Holewa observed that there is a common fallacy related to e-filing that work levels for clerks are necessarily reduced. She emphasized that clerks and their staff would still have many remaining responsibilities after e-filing is implemented.

With respect to e-filing, Ms. Holewa noted that the judicial system has determined that self-represented litigants would not be able to e-file documents and that only attorneys and system employees would have access to e-filed documents. Kristi Pettit said that approach will likely change in the future as the system evolves.

Ms. Holewa said the decision regarding access to e-filed documents was attributable to a concern about the possible misuse of court documents if everyone had access to all documents.

Sandi Tabor suggested the judicial system at some point will have to address issues regarding privacy and abuse of court information. In the meantime, she said, the system is being prudent with the current approach to document access.

In response to a question from Rep. Koppelman regarding public access, Ms. Holewa said most record information is accessible on the Supreme Court’s website. She said methods for limiting access to confidential record information to only those that are entitled to access.

Rep. Koppelman observed that he is receiving increasing numbers of constituent complaints about record information being available to the public through the Supreme Court’s website. He suggested the possible need to explore possible legislative ways of limiting access to certain information.

After further discussion, Chair Kapsner asked whether there were any suggested changes to the Conclusions 1 and 2 regarding Question 1 (June 11 meeting minutes, p. 2).

With respect to Conclusion 2 regarding clerk services as a core service, Aaron Birst said the conclusion may be a cause for concern to clerks and staff who are county employees. He said it may be less of an issue if it is clear that the conclusion is essentially “forward looking” in light of possible technology enhancements that may facilitate clerk services.

Judge Anderson agreed and said the intention is to regard Conclusion 2 as a long-term consideration.

JoAnne Hoesel suggested possible inclusion of a statement that recognizes the continuing importance of personal presence in some situations.

Chair Kapsner agreed with the general sentiments and said the Conclusion would require revision to incorporate the noted concerns, practical issues, and the state of current law with respect to clerk services.

Chair Kapsner then requested discussion regarding Conclusion 3 [ Facilities required for jury trials would not be a core service that must be available in every county on a regular basis].

In response to a question from Justice Kapsner, Judge Anderson agreed the conclusion may be more appropriate with respect to major jury trials rather than more run-of-the-mill jury trials.

Rep. Koppelman observed that there are many differences among counties with respect to jury-ready facilities or court- related facilities generally. He wondered whether the judicial system could declare that courtrooms with complete jury capabilities would be located in “X” counties.

Dave Maring noted that a significant issue is what the county is willing or able to provide in the way of court facilities. If the judicial system were to provide minimum standards for jury- and non-jury trial facilities, he said, then the county could decide whether it wanted to incur the necessary expense. However, he noted that venue requirements may require a jury trial in a certain location without regard to whether the county has provided adequate facilities.

Aaron Birst said counties generally welcome information and guidance from the courts regarding what is necessary to adequately conduct court business.

Charles Placek recalled Judge Racek’s earlier suggestions about expanding to a unit-based approach to court services. He said employing a unit concept, together with minimum facility standards, and perhaps reconfiguring judicial districts might allow for more effective and efficient judicial services.

Dave Maring observed that even though there are four trial centers in the federal court system in North Dakota, most trials are conducted in Fargo and Bismarck because that is where the judges are located. With respect to the state configuration, he noted that there are seven judicial districts and four administrative units, which could potentially evolve towards four election districts and four administrative units. He said it may be possible to then identify two trial centers, for example, within each district/unit.

Judge Anderson suggested there should be some significant relationship between the area in which a judge is elected and the area the judge ultimately serves. He said if the relationship is severed, there will likely be a disconnect between those who elect the judge and those the judge serves.

Sally Holewa observed that counties already self-select in some measure with regard to whether their facility is considered “jury ready”. She asked whether facility standards should simply be adopted if Conclusion 3 is to be retained. She said if standards are developed more counties may push to upgrade their facility without regard to whether it is actually necessary.

Aaron Birst said standards would be useful information for counties to consider, but as a practical matter it is unlikely that many counties would rush to expand into super courthouses. He said a continuing, important consideration, however, is the need to provide court services in rural areas.

Following further discussion, Committee members agreed Conclusion 3 should be modified to read: “Facilities required for major jury trials would not be a core service that must be available in every county on a regular basis”.

With respect to Question 1, Conclusion 4 [ Appropriate security measures should be a core service maintained in every county on a regular basis ], Justice Kapsner noted that the judicial system and the counties interact on a regular basis regarding security issues. She wondered whether the item is a planning issue at all.

Sally Holewa said the judicial system’s security consultant regularly reviews security situations in the several county courthouses and consults with county officials regarding recommendations for security enhancements. As a possible planning issue, she said a question might be whether the state should assume more of the costs related to security.

Sandi Tabor wondered whether there is a way to handle security costs like clerk of court services provided by the county are handled, i.e., on a reimbursement basis.

Following further discussion, Committee members next turned to a review of information and education about the courts and the judicial process.

Information and Education about the Courts and the Judicial Process

Chair Kapsner welcomed LeeAnn Barnhardt, Director of Education and Communication, for an overview of the kinds of information about the courts available to the public and general education efforts.

Ms. Barnardt said the predominant source of information about the judicial system is provided through the Supreme Court’s website, although there have been some concerns raised concerning whether the site is user-friendly for the general public. She said the judicial system’s Annual Report is provided in electronic form on the Supreme Court’s website and contains numerous hyperlinks to various information sources. She said a Newsletter containing news and articles about activities within the judicial system is also distributed on a quarterly basis. She said several brochures have been developed, some of which are being revised, and noted others that are in the planning stages. She said that a family law resource guide has been distributed to law offices that are normally involved in family law cases. She said a juror handbook is being revised and additional information is being developed to distribute to prospective jurors with the juror summons. She said a Justices Teaching Institute is held periodically which assembles high school teachers and provides a rigorous curriculum in the operation of the judicial system.

In response to a question from Judge Anderson, Ms. Barnhardt said informational brochures are currently updated as needed, but the goal is to establish a regular schedule for review and updates.

Dave McGeary noted the development of a new pamphlet regarding juvenile court that will provide information particularly helpful to parents who are not involved in the proceeding or who are not entitled to counsel until the dispositional phase of the proceeding.

In response to a question from Dave Maring, Ms. Barnhardt said all of the pamphlets are not yet on the Supreme Court’s website. Dave Maring suggested a goal should be to ensure all informational guides and pamphlets are accessible on the website.

Rep. Koppelman agreed that more information in a user-friendly format is a worthwhile objective. He noted that there are at least three audiences for court information: the legal community, those who are looking for and need specific information, and the general public. He said the important questions concern whether the judicial system wants to communicate effectively with these audiences and, if so, how and through what methods.

Sally Holewa said there is a good deal of education and provision of information for the public that occurs, but it is unclear whether it is education and information about what the public actually wants to know.

Sandi Tabor wondered whether there would be value in establishing a more formal joint bench-bar group to consider issues relating to public education.

Chair Kapsner thanked Ms. Barnhardt for providing information for the Committee’s consideration.

Judicial Selection

Committee members next turned to a discussion of issues related to methods for judicial selection as a possible planning item.

Dave Maring explained that the genesis for much of the current concern with judicial selection was the U.S. Supreme Court’s decision in Republican Party of Minnesota v. White, which held unconstitutional certain parts of the Minnesota Code of Judicial Conduct limiting political activities by candidates for judicial office. The feared consequence, he said, was increased political activity by judicial candidates and by those that supported candidates for judicial office. With the increase in campaign expenditures in support of judicial candidates, he said, there was a perception of “buying” justice. He said one method of judicial selection that is regarded as a possible counter-point to aggressive electioneering in judicial campaigns is the “Missouri Plan”, by which the governor appoints judges from a list of candidates submitted by a nominating body. The judge then participates in a retention election. He noted that Minnesota is currently considering something like the Missouri Plan. With respect to whether there are issues to consider in North Dakota, he said problems experienced in other states have not yet arisen here. As a planning issue, he said a possible approach may be to consider the scope of possible problems, how those problems might come to North Dakota, and then what might be done to counteract the problems.

Rep. Koppelman observed that the general public sometimes considers the judiciary as having become politicized by making law itself, i.e. “legislating” from the bench. However, he said, the issue at the present time likely does not warrant devising a response to something that “might” happen.

Judge Anderson asked whether the Committee could generally agree that judicial selection is not a compelling problem in North Dakota at this point.

Chair Kapsner suggested tabling consideration of the issue until after the November elections. Committee members agreed.

Judicial Redistricting - Initial Considerations

Chair Kapsner explained that judicial redistricting had been referred to the Committee by the Administrative Council for consideration. She said the immediate questions concern how to undertake a review of the issues and the scope of any recommendations the Committee might make.

Staff then briefly reviewed Attachment C (October 1, 2010) - constitutional and statutory provisions regarding judicial districts; Administrative Rule 6 concerning judicial districts; approximate population and case filing data; and a map depicting administrative units, judicial districts, and chamber cities.

Charles Placek wondered whether consideration of four judicial districts is a feasible option.

Sandi Tabor said an associated issue regarding fewer districts would be the need to consider a different way to elect judges.

Dave Maring said there is merit in considering different district arrangements.

JoAnne Hoesel encouraged reviewing, as part of a redistricting inquiry, the location and movement of the state’s aging population, as well as the location of the lawyer population.

In response to a question from Chair Kapsner, Committee members agreed the Committee should assemble additional information and move forward with further review of the issue.

Future Meeting Schedule

Chair Kapsner said a schedule of possible 2011 meeting dates would be circulated to Committee members, taking into account the activity associated with the legislative session.

There being no further business, the meeting was adjourned at 2:10 p.m.

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Jim Ganje, Staff