|Members Present |
Justice William A. Neumann, Chair
Rep. William Devlin
Judge Ralph Erickson
Judge Donovan Foughty
Rep. Nancy Johnson
Justice Mary Muehlen Maring
|Members Absent |
Chair Neumann called the meeting to order at 9:10 a.m. and drew Committee members' attention to Attachment B (September 6, 2002) - minutes of the July 26, 2002, meeting.
It was moved by Becky Thiem, seconded by Judge Foughty, and carried unanimously that the minutes be approved.
Revised Draft Planning Recommendations - Review
Chair Neumann briefly reviewed Committee discussion at the last meeting, which had revealed a difference of opinion among some Committee members concerning the role and responsibilities of the new Council contemplated under the draft recommendations. He noted that the new Council's responsibilities had been preliminarily identified as limited to matters affecting the administration of the trial courts. He said some Committee members appeared to favor a more expansive role for the Council, one directed at developing policies and procedures for the administration and operation of the entire judicial system.
At the request of Chair Neumann, staff then reviewed Attachment C (September 6, 2002) - revised draft planning recommendations. Staff explained that a new paragraph had been added to the introductory sections which acknowledges the Committee's awareness that some matters addressed in the recommendations are currently under consideration or the subject of some activity. He said minor language changes were made in various sections to provide a more proactive, assertive statement about actions to be taken. The more substantive changes, he said, are contained in Section IVB, which provides alternatives concerning the role of the Council, and changes in Section IVC, which provide alternatives concerning reporting responsibilities for committees and methods of determining committee membership, depending on the ultimate role and responsibilities of the Council.
Rep. Johnson drew attention to Section III (Dispute Resolution), paragraph 2, which recommends investigating the possible use of community-based disputed resolution programs "similar to those implemented in Minnesota." She suggested it is unnecessary to refer specifically to programs implemented in Minnesota and recommended that the reference be deleted. Committee members agreed.
After further discussion, it was moved by Sandi Tabor, seconded by Bob Feidler, and carried unanimously that the language revisions in Sections I through IVA, as further modified, be approved.
Committee discussion then turned to consideration of the more substantive changes and alternatives set out in Section IVB and C.
With respect to his conception of the scope of authority and responsibility to be afforded to the new Council, Bob Feidler recalled the surprise at the complicated flowchart depicting the administrative operation of the judicial system which was reviewed at one of the Committee's early meetings. Additionally, he said a common denominator in his discussions with lawyers and judges has been a sense of confusion about which committees are responsible for what activities and, more basically, about how the committee process itself works. There was a general sense, he said, that there was a need to streamline and rationalize that process. He said the Committee has heard as well that some members of the Supreme Court consider themselves oftentimes inundated with administrative-related work. There was also, he said, general agreement that the Chief Justice should remain the administrative head of the judicial system, as the state constitution currently provides. The divergence of opinion, he said, came when considering the reporting responsibilities of committees in relation to a new, broadly representative Council, the issue being whether all committees should report to the Council and whether some should be retained under the Supreme Court. And the latter issue, he said, is closely related to the scope of authority and responsibility exercised by the new Council.
By way of comparison, Bob Feidler then briefly explained the administrative operation and line of authority in the federal judicial system. Similar to the new Council, he said, the Judicial Conference of the federal system is composed of elected chief district judges from the various circuits and is chaired by the Chief Justice of the U.S. Supreme Court. The Conference, he said, is served by approximately twenty committees, all members of which are appointed by the Chief Justice, and all of which, including a rules committee, report to the Conference. He noted that while rule proposals may be adopted by the Conference, federal law requires that procedural rules be approved by the Supreme Court and, after having been submitted to Congress, the rules become the law of the land if there is no Congressional action to the contrary. He recalled there had been some question concerning whether the Joint Procedure Committee should be required to submit its rule proposals to the new Council for approval. He said it may be workable to have rule proposals submitted to the Council, but with final approval authority still vested in the Supreme Court, a process similar to that under the federal system. Additionally, he said he would favor all committees reporting to the new Council, conceived as a broadly-based policymaking body, with matters being submitted to the Supreme Court for consideration as appropriate. He said a system so constructed would retain the Chief Justice's administrative authority without diminution, the power of the bar and the trial bench would be enhanced, and the administrative workload of Supreme Court would be lessened.
Justice Maring observed that many times the Supreme Court will provide for a comment period after proposals have been submitted by committees. She wondered where the comment period would fit in the process. Bob Feidler responded that comments could be solicited both by the Council and the Supreme Court, if a proposal is submitted through the Council to the Court.
Sandi Tabor asked whether the new Council would then serve as the hearing body for rule proposals and could amend the proposals before submission to the Supreme Court. If that were the case, she said, there may be a problem in that the Council, as presently contemplated, would have one lawyer member, while lawyers comprise half the membership of the Joint Procedure Committee. She said she would not favor the bench and bar losing the opportunity to have equal voices in the development of procedural rules. She also cautioned that requiring all matters to go through the Council and then on to the Supreme Court may result in unnecessary delay. There are times, she said, when it is appropriate and useful for a committee or task force to be able to submit proposals directly to the Supreme Court for consideration.
In response to a question from Becky Thiem, Bob Feidler said the federal Judicial Conference does have the authority to quash a proposal. Becky Thiem observed that with the current level of pessimism and fear of change exhibited during the recent Judicial Conference, a new Council with similar authority may simply work to impede change in the system. Judge Foughty agreed that a broadly focused Council could serve as an impediment to having procedural rule proposals heard expeditiously by the Supreme Court. He said one alternative might be to require, by rule, that the Council must forward procedural rule proposals through to the Supreme Court. The Council, he said, would have the opportunity to review the rule proposals and comment on them, but would then be required to send them on to the Supreme Court.
Staff noted that under the present system there are several different kinds of matters that can be submitted to the Supreme Court for consideration, including proposals regarding procedural rules, administrative rules, administrative orders, and judicial system policies. Additionally, he said, the Council of Presiding Judges has authority to adopt policies governing trial court administration.
Justice Neumann observed that the administrative organization and process described by Bob Feidler contemplates a clean and logical process for how administrative matters would be handled by a Council with broadly defined responsibilities and authority. However, he said, there is a question about how well such a process could work within the current system as defined by the state constitution. He said if such a Council approach were implemented, it would require at a minimum that the constitution be amended. He said the Chief Justice, who is vested with administrative responsibility for the judicial system by the constitution, cannot be placed at the mercy of the new Council. With respect to the involvement of other justices of the Supreme Court in administrative matters, he noted that at least weekly the Chief Justice discusses administrative issues with the other members of the Court. The constitution, he said, does not require such an approach but it has proved useful to the Chief Justice and his predecessors. One reason for that, he said, is that the other members of the Court are readily available to discuss administrative matters. The new Council, he said, may not be able to assemble regularly in as timely a fashion. Additionally, he said justices of the Supreme Court are accustomed to working together and he wondered whether the dynamics would be different in a Council composed of trial judges, who are not as accustomed to collegial decision-making.
Becky Thiem said it appears that neither alternative in Section IVB(2) concerning the role of the new Council is workable because the Council, under the present structure, would have very little real authority. Sandi Tabor agreed and recalled that early Committee discussions seemed to indicate that some members of the Supreme Court were concerned that they were excessively involved in administrative matters, particularly those involving the trial courts. That concern, she said, resulted in the suggestion to essentially reinvent the Council of Presiding Judges and replace it with a body that would be more useful and beneficial to the Supreme Court. It appears, she said, that such an entity is no longer workable. Justice Neumann said a broadly empowered Council may be problematic, but the distinction between administrative policies and issues affecting the trial courts and those affecting the judicial system generally still remains. And, he said, a new Council may prove useful in addressing those matters unique to the trial courts. Additionally, he said, a new, more broadly representative Council may be more successful in eliciting the positive involvement and cooperation of the trial bench. He said fewer administrative units and the ability of trial judges to elect more representatives on the Council may aid in reducing the parochialism that often frustrates resolving administrative issues.
Judge Erickson observed that, even with a new Council possessing wide-ranging responsibility, the Chief Justice would still have final authority because of the constitutional authority vested in the Chief Justice.
Becky Thiem said the discussion seems to indicate that, while the Committee could recommend establishment of a new Council with broad authority for judicial system administration and policy, political reality would likely dictate that such a proposal would not be successful. She said that rather than see the Committee's proposal rejected out-of-hand, she would suggest consideration of something like the first alternative in Section IVB(1), which focuses the new Council's authority on trial court administrative issues. She said if such a new Council is implemented, its progress and activities could be monitored to see if it is successful. She emphasized, however, that simply maintaining the status quo is not a viable alternative.
Judge Foughty observed that simply achieving a change in the number of administrative districts or units and a change in how judges are selected for the Council would represent a significant departure from current practice. Judge Erickson agreed and said changing the structure of the administrative units will make it more difficult to sustain the parochial approach that currently hampers any positive change in how the system operates.
Sandi Tabor said the discussions about the need for a broadly focused administrative decision-making entity have raised several valid points for future consideration. She suggested any report submitted by the Committee should highlight those discussions and indicate further that Committee members were largely in favor of a new Council with broader authority and responsibilities but chose a more limited proposal in recognition of the difficulties associated with such a significant change. She said the Committee's submission should reflect that the Committee thoroughly discussed the extent of change that might be possible and that the Committee supports review and analysis of any changes made as a result of the Committee's recommendations.
It was moved by Becky Thiem and seconded by Sandi Tabor that the Committee adopt Alternative 1 in Section IVB(1) of the recommendations, which identifies the new Council's responsibilities as being those related to trail court administrative policies and procedures.
Justice Maring noted the listing of various detailed responsibilities contained in Alternative 1 and wondered whether the listing is exclusive or whether such a listing is even necessary. She said she preferred Alternative 2, which, although directed at administration and operation of the entire system, is more succinct in defining the general scope of the Council's responsibilities. She suggested that Alternative 2 could be modified to retain its general expression but apply to the operation and administration of the district and juvenile court system. In light of the discussion about monitoring the work of the Council and determining whether it should, at some point, have greater authority, she suggested language could be added indicating consideration of broader responsibilities for the Council should take place on a periodic basis.
With the consent of the second, the motion was withdrawn.
It was moved by Justice Maring and seconded by Sandi Tabor that Alternative 2, with the described modifications, be adopted. Alternative 2 would then read: " Council responsibilities would include developing policies and procedures governing the administration and operation of the district and juvenile court system. Consideration of broader responsibilities for the Council should take place on a periodic basis." The motion carried unanimously.
Becky Thiem noted that referring to the new entity as an "Administrative Council" might be perceived as unduly limiting the role of the new body.
It was moved by Becky Thiem, seconded by Judge Foughty, and carried unanimously that Section IV be modified where appropriate to refer simply to a new "Council."
Staff then reviewed remaining changes to Sections IVB and C resulting from previous Committee discussion: language was added to paragraph 2 regarding the selection of a presiding judge for each administrative unit and identifying the composition of the three units; language was added to paragraph 3 clarifying that the administrator for each unit would be hired by the state court administrator after consultation with the presiding judge and would be supervised by the state court administrator. Staff said Section IVC was modified to address reporting responsibilities for various committees and contains alternatives regarding whether certain committees would report to the new Council or the Supreme Court and regarding how membership would be determined.
Sandi Tabor drew attention to the committees included in Section IVC(3), which are those committees most closely allied to consideration of administrative matters and would be committees that would report to the new Council. She asked whether the Chief Justice would have concerns about appointing members to these committees only after consultation with the new Council - the first membership selection alternative. Justice Neumann observed that if the new Council functions as it is hoped it will, then there likely would be no problem with that method of appointment. He said the obvious alternative is to leave the membership selection process as it is in the currently governing rules and policies. Becky Thiem said the first alternative seems essentially similar to the way most committee memberships are currently determined.
It was moved by Becky Thiem, seconded by Sandi Tabor, and carried unanimously that the first alternative in Section IVC(3) be adopted.
Staff noted that Section IVC(4) identifies those committees most typically concerned with issues broader than trial court administration. He said the alternative language in the section concerns whether the committees would continue under the Supreme Court or the new Council, the latter alternative being a reflection of the previous discussion concerning the role of the Council. He said alternative language is also included regarding membership selection.
Justice Maring wondered whether some of the committees identified in Section IVC(4) might also be involved in reviewing administrative issues, such as Cameras in the Courtroom and Court Technology. Justice Neumann observed that these committees generally address issues beyond those related only to trial court administration.
Judge Erickson suggested the Pattern Jury Instruction Commission should not be listed as a committee established under the Supreme Court. Justice Neumann noted that the Supreme Court has traditionally not been involved in the Commission's activity since appeals before the Court may involve jury instructions.
It was moved by Becky Thiem, seconded by Judge Erickson, and carried unanimously that Section IVC(4) should be modified as follows and adopted: committees identified in Section IVC(4), with the exception of the Pattern Jury Instruction Commission, would be identified as continuing under the Supreme Court; membership of the committees would continue as currently provided under applicable rules, orders, and policies; the Joint Committee on Attorney Standards and the Judiciary Standards Committee would be added to the committees listed in Section IVC(4); and the Pattern Jury Instruction Commission would be deleted from committees listed in Section IVC(4).
Staff noted language in Section IVC(5), which denotes the Judicial Conference as the vehicle for selection of members of the new Administrative Council. He said the language is no longer necessary in light of the Committee's previous action in determining how Council membership would be selected. Committee members agreed the language should be deleted.
Staff then drew attention to Section IVC(6), which suggests the judicial system should consider adopting a rule governing the role and responsibilities of the Judicial Conference which would supersede the present statute.
Sandi Tabor suggested the language concerning a superseding rule could be retained, but perhaps language should be added recommending that the question of whether the statute is necessary should be a topic of discussion at a future Judicial Conference meeting. She said many of the changes suggested in the recommendations likely may not be accomplished before the upcoming legislative session, and once the changes are accomplished the need for the statute can be discussed and repeal sought if necessary.
Judge Erickson suggested it may just as simple to delete the language concerning the rule superseding the statute. He said the Supreme Court has historically deferred to statutes enacted by the Legislative Assembly and, in this instance, the Court would likely prefer seeking repeal or amendment of the statute if a change were considered appropriate. Rep. Devlin agreed deleting the language would be the preferred course of action.
It was moved by Judge Foughty, seconded by Becky Thiem, and carried unanimously that the language concerning superseding the statute governing the Judicial Conference should be deleted from Section IVC(6).
It was moved by Becky Thiem, seconded by Sandi Tabor, and carried unanimously that the amended language in Section IVB(1) concerning the Council membership be adopted and that the draft recommendations as further modified be adopted and approved for submission to the Supreme Court.
Chair Neumann recalled Sandi Tabor's earlier suggestion that the Committee's overall plan, when submitted, should include a cover report highlighting key points of the Committee's discussion. He asked whether there were specific suggestions regarding the report's contents.
Sandi Tabor said the report, or a transmittal letter, need not be extensive, but it should summarize the issues discussed by the Committee, including the Committee's consideration of an alternative administrative structure and the Committee's recognition of the need to preserve the constitutional authority of the Chief Justice with respect to administrative matters.
Becky Thiem suggested the letter should mention the number of times the Committee met and the diversity of Committee membership. Judge Foughty said the letter should note the Committee's discussion of the scope of the new Council's authority. Becky Thiem said it may be useful to also mention the perceived importance of lawyers participating as members in the Council and the Committee's agreement that the Committee should continue to review issues and monitor the work of the Council.
It was moved by Bob Feidler, seconded by Sandi Tabor, and carried unanimously that the Chair prepare a transmittal letter as discussed.
Chair Neumann then requested Committee member comments concerning the Committee's future activities. He said planning issues will likely require attention before each budget cycle. He said the Committee would likely reassemble at some point before the next budget discussion begins and at additional points thereafter to review progress on various recommendations.
Justice Maring emphasized that, in her view, the Committee's work has been directed at attempting to resolve the most pressing, immediate issues affecting the operation of the judicial system. She said she hoped the Committee will continue its work over the long term and begin a consideration of how the system can be more proactive in planning for the future. Justice Neumann said he viewed the Committee's role as both planning for the short term as well as planning for the long term future of the judiciary.
Judge Erickson said there may be future issues regarding greater use of therapeutic justice programs, such as drug courts, reentry courts, and mental health courts if the economy and funding improves. Consequently, he said, it may be useful to consider laying the groundwork for how such courts would function.
Judge Foughty noted that the Department of Corrections is reviewing a host of issues affecting corrections and the judiciary should be prepared to participate in that discussion to the extent any changes would affect the work of the courts.
Committee members generally stressed the importance of the planning recommendations receiving adequate review and attention after their submission to the Supreme Court, rather than being cursorily examined and set aside by committees to which some of the recommendations may be assigned for consideration.
Justice Maring said the Committee's recommendations will likely be distributed to all judges for comment and wondered whether the recommendations should be distributed to members of the bar for comment as well. Sandi Tabor said if the recommendations were distributed generally to the bar, the recommendations may become confused with other issues of concern to the general bar membership. She said if the Supreme Court seems prepared to move forward on the recommendations, then there may be an opportunity to present the issues to the SBAND Board of Governors.
Chair Neumann expressed his thanks and appreciation to Committee members for their interest and commitment of time and effort to the Committee's work and for contributing their visions of how the judiciary can better serve the people of the state. On behalf of judge and lawyer members of the Committee, Becky Thiem thanked the lay members for their thoughtfulness and contributions to the Committee's discussion.
It was agreed that the Committee's next meeting would be at the call of the Chair.
There being no further business, the meeting was adjourned at 1:55 a.m.
Jim Ganje, Staff