Judicial Planning Committee September 11, 2009

Judicial Planning Committee

MINUTES
(unoffocial until approved)
Ramkota Hotel, Bismarck
Doublewood Inn, Bismarck
September 11, 2009

Members Present

Justice Carol Ronning Kapsner, Chair
Randal Albrecht, Administrator, Medcenter One Living Center
JoAnne Hoesel, Director, Div. of Mental Health &Substance Abuse Svcs, DHS
Rep. Kim Koppelman, West Fargo
Cynthia Lindquist, President, Candeska Cikana Community College
Dave Maring, Attorney, Bismarck/Mandan
Dave McGeary, Director of Juvenile Court, South Central Judicial District
Judge Daniel Narum, Southeast Judicial District
Kristi Pettit, Attorney, Grand Forks
Charles Placek, Dep. Director of Admin. Svcs, DOCR

Members Absent

Judge Zane Anderson, Southwest Judicial District
Rep. Lois Delmore, Grand Forks
Sally Holewa, State Court Administrator
Judge Frank Racek, East Central Judicial District

Chair Kapsner called the meeting to order at 10:00 a.m. and welcomed as new Committee members JoAnne Hoesel, Director of the DHS Division of Mental Health & Substance Abuse Services, and Charles Placek, Deputy Director of Administrative Services for the Department of Corrections and Rehabilitation. She noted that the new members were added following discussion at the June 9 meeting of the benefit of including executive branch representatives on the Committee. She said a representative of the Association of Counties has also been invited to join the Committee.

With respect to the June 9, 2009, meeting minutes it was noted that Rep. Koppelman represents West Fargo rather than Fargo.

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

Chair Kapsner then requested any comments the new members and Rep. Koppelman, who was unable to attend the June 9 meeting, might have regarding areas of particular interest or planning-related issues affecting the judicial system.

JoAnne Hoesel explained that in addition to her position of division director, she is also a department cabinet member with responsibility for general program and policy, which includes aging services, children and family services, vocational rehabilitation, and developmentally disabled services. She said she is interested in how technology can be used in different ways to improve system services. She said the department is developing a data warehouse that will support analysis of the impact of services and identification of areas of improvement. She noted the Committee's discussion at the June meeting of issues related to the state's aging population and said the department is also heavily invested in review of issues related to the aging population and how services are affected. She said there are numerous points at which the courts and human services interact and she is hopeful that the Committee's planning efforts will enhance the interaction between the two systems.

Charles Placek noted that he has been with the Department of Corrections and Rehabilitation for thirty-seven years, starting as a parole officer in the northeastern part of the state and now serving in the Division of Adult Services as deputy director of administrative services. He said during his time with the department he has witnessed substantial changes in the relationship and interactions between the department and the court system. He said the department continues to develop programs to handle offenders that could not have been effectively handled a decade or more ago. He stressed the importance of communication between the two systems as a means of identifying problem areas and possible solutions.

Rep. Koppelman explained that he had recently completely a tenure as Chair of the Council on State Governments and during that time his primary emphasis was encouraging development of intergovernmental relations among the branches of state government. He said a first-of-its-kind summit on intergovernmental relations was held in Bismarck in 2008 and brought together legislative, judicial, and executive branch leaders to discuss methods of improving the relationships between the branches of government. In that vein, he said, he was pleased with addition of executive branch representatives to the Committee. He noted that his professional activities are in marketing and advertising and in that realm he encounters many kinds of business operations. He said he hoped to offer some insight into how those in the community and in business use and are affected by the courts and the legal process.

Mission Statement - Review

Committee members next turned to a review of the judicial system Mission Statement included in the 2002 Planning recommendations - Attachment C (September 4, 2009).

Dave Maring noted the reference in the statement to an "independent judiciary" and explained that public relations consultants and others suggest that the phrase may often send the wrong message - a message that there is no accountability and that courts pursue an agenda of their own. He suggested that "fair and impartial judiciary" may be a better phrase. He said the reference to "equal access to fair and timely resolution of disputes" combines concepts that may not necessarily work well together. He said the reference to "the people" seems to be an unwieldy phrase.

Rep. Koppelman agreed with the concern about referring to an "independent" judiciary. He noted that, from a legislative perspective, many of his counterparts around the country bristle when they hear courts refer to themselves as "independent". It is, he said, sometimes associated with suspicions of "judicial activism" or "legislating from the bench". He agreed "fair and impartial" would be a better description. He emphasized also that what is heard in the news and from other sources about what some courts, including the U.S. Supreme Court, are perceived as doing does not necessarily apply to North Dakota courts.

After further discussion, it was moved by Rep. Koppelman, seconded by Judge Narum, and carried that the Mission Statement be modified to replace "independent" with "fair and impartial".

Cynthia Lindquist observed that the changes results in two "fairs" in close proximity within the statement. Judge Narum agreed that courts must be impartial as to both sides in a case, but cautioned that results are often not perceived as "fair".

Cynthia Lindquist suggested that since the Mission Statement is a statement for and about the judiciary, it may be unnecessary to refer to the judiciary itself within the statement. She suggested as an alternative statement "To provide the citizens of North Dakota equal access to fair, impartial, and timely resolution of disputes under law". Dave Maring noted that the reference to "citizens" may be too narrow as those who are not citizens of the state are often involved in court actions.

Following further discussion, it was moved by Cynthia Lindquist, seconded by Kristi Pettit, and carried that the Mission Statement, as modified, be further modified to read: "To provide equal access to just, impartial, and timely resolution of disputes under law."

Vision Statement - Review
Committee members next reviewed the Vision Statement included in the 2002 Planning Recommendations - Attachment C (September 4, 2009).

Chair Kapsner drew attention to the four "core principles" set out in bold language and asked whether changes should be considered. She noted also the implementing sections following each core principle.

Committee members discussed the utility of devising a vision statement at the outset as opposed to continuing a review of issues affecting the judiciary and then developing a statement based on identified issues. It was noted that the Mission Statement, Vision Statement, and 2002 Planning Recommendations were not formally "adopted" by the Supreme Court. The Mission Statement, however, has been included in each of the judiciary's recent Annual Reports.

Rep. Koppelman said there may be more benefit in considering development, or revision, of the vision statement as an ongoing process, informed by the Committee's discussion of issues affecting the judiciary. He said developing a "vision" for the judicial system may be difficult to do in isolation from what may be discussed as the planning process moves forward.

Charles Placek agreed the current vision statement, in identifying certain core ideas, could be used as an evolving, working document. He said there may be issues later identified that are not now considered "core"principles but in light of further discussion may rise to that level.

With respect to whether planning recommendations or mission and vision statements are actually adopted by the Supreme Court, Rep. Koppelman suggested a kind of two-step process. He said mission and vision statements are broad, forward-looking pronouncements and in that way are different from more detailed planning recommendations. He said it may be appropriate for the Committee to recommend that Supreme Court to actually adopt mission and vision statements, but to also recommend that the Court simply be advised by the planning recommendations.

Cynthia Lindquist asked whether other groups or court staff are working on planning initiatives. Additionally, she asked how judicial system personnel are engaged in the planning effort. She said for system planning to be effective, there must be participation throughout the system in the planning effort and in implementing planning initiatives.

In response to a question from Rep. Koppelman, staff said Attachment G (September 4, 2009) - the annotated 2002 Planning Recommendations attempts to identify actions taken within the judicial system that are related to, but may not have necessarily been a direct response to, the recommendations.

Charles Placek agreed it is very important, as an ultimate goal, that everyone in the system know about and support the mission of a system. Additionally, he emphasized the importance of including external stakeholders throughout the planning and implementation process and in any education efforts undertaken to explain particular planning components.

Randal Albrecht suggested recognition of the importance of involvement of judicial system personnel, as well as external stakeholders, in the planning and implementation effort could be incorporated in the one of the vision statement's core principles. Additionally, he suggested that a planning entity should be established on a permanent basis so that issues and activities affecting the judicial system can be reviewed on an ongoing basis.

With respect to reviewing the Vision Statement, Dave Maring noted that the America Bar Association compiles a wide variety of information and asked whether vision and mission statement from other jurisdictions could be gathered for Committee review.

Judge Narum said the discussion seemed to suggest that rather than having a "vision statement", we have instead a set of certain "core values", with some suggested additions such as ensuring there is system-wide buy-in, both internal and external, and establishing an mechanism for on-going planning activity. He emphasized that equal access should be prominent among the core values.

Chair Kapsner said vision statements from other jurisdictions would be gathered for Committee review at the next meeting.

Demographic Information

Staff briefly reviewed Attachment D (September 4, 2009) - demographic information from the North Dakota State Data Center concerning the aging population; population by race and Hispanic origin, and poverty estimates.

In response to a question from Rep. Koppelman regarding the assumptions underlying the various population projections, staff said the population estimates do not include a specific description of the assumptions used in reaching the projections.

Rep. Koppelman cautioned that population projections and trends are only as good as the assumptions upon which they are based. For example, he said, there is anecdotal evidence that advances in technology are contributing to a growing number of younger people moving back to rural areas of the state. He said technology allows people to do things from distant locations that would have been very difficult in the past. Additionally, he said, there is increasing mobility among certain segments of the population and a willingness to travel to obtain various services.

Charles Placek agreed there are some dynamics at work that may lessen a negative trend in rural areas, but support organizations in rural areas continue to dwindle. He said it is unrealistic to expect that complicated services will continue to be available in rural areas. Additionally, he emphasized that even though population in the state continues to shift to urban areas, there are some left in the rural areas who simply are unable to leave.

In response to a question from Rep. Koppelman regarding how courts respond if someone is unable to travel to a court proceeding, Justice Kapsner said courts have held hearings in non-court settings. Judge Narum noted occasions on which he has held hearings in nursing homes.

Dave McGeary said juvenile courts often encounter problems with parents being unable to bring children to hearings during an 8 to 5 time frame. Additionally, he said it cannot be assumed that everyone in a rural areas will have a reliable means of transportation to get to a court hearing.

JoAnne Hoesel said another factor to be considered is that many in rural areas have disabilities or special needs and service delivery often becomes an issue. In response to a question from Justice Kapsner, she said the department does not have funds to support transportation from rural areas to obtain services. She noted that Medicaid provides some level of funding for transportation to obtain medical services.

Kristi Pettit said she has encountered situations in which a person she has been appointed to represent was unable to get to her office to meet with her.

Justice Kapsner said the judicial system has recognized general issues concerning accessibility, but there is another aspect of the issue, as discussed, regarding simply "getting to" the court. She said it is an issue the Committee should be willing to consider and think about whether, for example, there are partnerships that can be formed to enhance access to transportation. Kristi Pettit said technology can be an important mechanism for addressing access issues in ways that do not require a person to physically travel some distance to obtain services.

Justice Kapsner said it is important to consider the kinds of judicial services that are constant and needed essentially everywhere and the kinds of services that are required on a more limited basis. She said the critical consideration is effectively matching particular needs for services with the particular services.

Dave Maring noted that the number of people representing themselves in court proceedings is increasing. Some, he said, represent themselves because they simply have no or limited financial resources, while others may have resources but make a calculated decision that the cost of legal representation is too great and self-representation is worth the risk.

With respect to access to the system and the costs of litigation, Randal Albrecht asked whether there are effective alternatives available for those who do not wish to hire an attorney.

Justice Kapsner said there are several kinds of alternative dispute resolution available, including mediation and arbitration. A drawback, she said, is that development of a much broader appeals process would be necessary to accommodate use of pure ADR. She said the typical review standard for a matter that has been handled through a pure arbitration or mediation process is whether the result was "totally irrational". That standard, she said, is largely the result of the judicial system having virtually no control over the process.

Charles Placek asked whether the Supreme Court or the State Bar Association has studied how or whether financial resources affect access to the system and whether cost factors have affected decisions to proceed with a legal action.

Dave Maring observed that there has been discussion in some quarters of the feasibility of providing some level of public funding for litigants in civil cases who cannot afford to hire an attorney.

Chair Kapsner said the Committee will continue to discuss issues related to access as part of the planning process.

Additional Background Information

Chair Kapsner drew attention to Attachments E - H (September 4, 2009) - a summary of judicial system committee activities, jury trial statistics, annotated 2002 Planning Recommendations, and the results of a public trust and confidence survey conducted in October 1999. Staff briefly reviewed parts of the various attachments.

With respect to jury trial statistics, Dave Maring noted that the number of jury trials generally is dwindling in large part due to various means of alternatively resolving disputes. He said there is some concern that such a trend will contribute to a gradual weakening of the judicial branch of government because citizen involvement is important and jury service is the prime conduit for citizen involvement in the judicial process.

Justice Kapsner said the lack of citizen involvement affects the development of the law and the law loses the opportunity to evolve when dispute resolution efforts continue to move outside the courts.

With respect to the jury trial statistics, Judge Narum wondered whether they were entirely accurate as there likely was more that one jury trial, for example, in Dickey County. With respect to data collection generally, he said a data collection effort by the Juvenile Policy Board highlighted disparities in how case data is reported by state - and county-employed clerks of court. He said the compilation of accurate data, consistently reported, is an important issue within the judicial system.

Review of Issue Topics

Chair Kapsner drew attention to the general areas of Committee review and inquiry identified at the last meeting:

facilities and access
technology and privacy
tribal and state relations
judicial selection and general respect for the rule of law and the judicial system
aging community
adequacy of information and education about the courts and the judicial process
duties and structure of the court

Chair Kapsner asked whether, in light of the discussion, the areas previously identified by the Committee should be modified.

Judge Narum suggested that "access" should be listed separately in light of the distinct and broad importance of issues related to access. Committee members agreed.

With respect to the discussion area related to tribal and state relations, Chair Kapsner explained that the Supreme Court is in the process of establishing a commission to study issues related to racial and ethnic fairness in the courts. She said that study will consider tribal and state issues and, as a consequence, the Committee can defer short-term consideration of the topic.

With respect to "duties and structure of the court", Charles Placek said this topic may be one within which to address the importance of collaboration and timely communication among the three branches of government. He said there is great benefit in maintaining open lines of communication so that changes implemented by one branch do not catch others unaware. This is particularly important, he said, with respect to the relationship between the judicial system and the department of corrections because of the many levels of interaction between the two systems.

With respect to access issues, Dave Maring asked how the concept of "trial centers" fits within the discussion. Justice Kapsner said the concept, however it is perceived, should be discussed in some manner because it is directly related to how and where services are provided. An additional issue, she said, is the extent to which current court facilities are adequate for purposes of providing judicial services and whether it would be cost-effective for counties to incur the expense of improving the facilities. Rep. Koppelman observed that the costs of supporting court facilities and who should have the responsibility for the costs are continuing issues of debate among legislators.

Charles Placek wondered whether it is possible to identify and categorize kinds of hearings or judicial interventions, with the aim of determining which actions or services must occur locally and which can be handled from a more central location. He suggested perhaps flowcharting several kinds of cases as an aid in considering at what point in the process certain actions have to handled in the county versus on a more central level.

Staff noted that flowcharts for various kinds of cases were developed by court personnel in Administrative Unit 1. Some of the flowcharts are somewhat complex, he said, but they may be useful for the Committee's discussion. Dave McGeary said he could provide a basic flowchart for the juvenile court process.

Justice Kapsner agreed there are some services that are so basic that they should be available in every county and it would be helpful to identify what those services are.

Judge Narum emphasized the importance of adequately and clearly defining what is meant by the "trial center" concept.

JoAnne Hoesel explained that DHS had made an early decision to identify five centers in the state for purposes of providing sex offender treatment services. She said it was simply too difficult and costly to provide the services in every county.

Next Meeting and Other Items

Chair Kapsner said additional information identified by the Committee will be assembled for the next meeting: vision statements from other jurisdictions, case filing statistics, and flow charts for various case types. She said the Committee will review the revised Mission Statement and will continue the discussion of core values in light of the comparison of other vision statements.

Kristi Pettit informed the Committee that the SBAND Board of Governors had approved a survey of attorneys on issues being discussed by the Committee.

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

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Jim Ganje, Staff