MINUTES (Unofficial until approved)
Judiciary Standards Committee
Ramada Hotel, Bismarck
December 13, 2013
Municipal Judge William Severin, Chair Linda Bata Justice Daniel Crothers Stacey Dahl Anna Frissell Judge Richard Hagar Judge Steven McCullough Sen. David Oehlke Sheila Peterson
Judge Sonja Clapp Daniel Dunn Paul Ebeltoft Joel Fremstad Rep. Kathy Hawken Joe Larson II Judicial Referee Connie Portscheller Judge Jay Schmitz
Chair Severin called the meeting to order at 1:00 p.m. and welcomed Committee members
to the Committee’s first meeting after a relatively long hiatus.
Administrative Rule 30 - Minimum Standards for Municipal Courts - Supreme Court Referral
Chair Severin drew Committee members’ attention to Attachment B (December 4, 2013) -
referral of Administrative Rule 30 to the Committee for review. He said the referral letter notes that
the rule has not been reviewed for a number of years. He observed that one issue that has been raised
concerns the failure of a few municipal judges to respond in a timely manner when requested to
certify that the municipal court is in compliance with various standards set out in the rule. He
explained that there are about 80 municipal judges in the state, the majority of which are not law-trained. He said non-law-trained municipal judges typically serve in small communities and have
different interests and needs than do law-trained judges. Following the referral, he said, he surveyed
the municipal judges by email to solicit comments and any concerns regarding the rule or some of
its standards. Some comments, he said, indicated that the rules were too complicated, that the report
of compliance could be done every other year rather than yearly, and that cities should be allowed
to share resources for municipal judges. He noted that it is difficult for some small cities with limited
budgets to afford the various legal resources the rule requires.
Linda Bata, who serves as a Grand Forks alternate municipal judge, said the rule was also
discussed at the October annual education seminar for municipal judges. She agreed there were
several comments that the compliance report is done more frequently than necessary. She said
concerns were also expressed about the rule’s facility standards [Section 4(e)] and the levels of
recommended compensation set out in the rule [Section 4(a)]. She noted also that technology has
changed significantly since the rule was last amended in 1991 and related rule changes may be worth
Judge Severin distributed the certificate of compliance that he received. He said it is a short,
simple form to complete. A copy of the form is attached as an Appendix.
Justice Crothers observed that when the Supreme Court last discussed the rule, there was a
general concern that the rule had not been reviewed in at least twenty years and may need some
updating. Additionally, he said, yearly the state court administrator will advise that a number of
municipal judges have failed to submit the required certificate of compliance. There was general
interest, he said, in whether there are better methods for satisfying the compliance requirement. He
noted that the Supreme Court has limited authority to respond to non-compliance. He suggested the
rule could serve as a vehicle by which staff could contact municipal courts to determine if some level
of assistance is needed.
In response to a question from Sheila Peterson, Judge Severin said there appears to be
relatively small turnover among municipal judges.
In response to a question from Linda Bata, Justice Crothers said it appears to be in smaller
cities where the non-compliance issue most often arises.
In response to a question from Judge Hagar, Judge Severin said there is very good attendance
at the annual education seminar, which is the principal method by which municipal judge’s satisfy
their continuing education requirement.
Anna Frissell suggested one way of achieving better response to the compliance report may
be to have the compliance certificate completed during the education seminar.
Justice Crothers observed that the education seminar is typically held in October, while
Section 5 of the rule relates the compliance requirement to a judge holding court “in any calendar
year”. He said there may be something of a disconnect between completing the form in October and
the rule’s reference to certification before holding court in any calendar year.
Judge Hagar drew attention to the various legal resources required under Section 3 of the rule
and asked how many were available online. There was general agreement that all of the referenced
court rules, the Code of Judicial Conduct, the Municipal Court Benchbook, and the Century Code
were available online. Some municipal ordinances are online, but most are not.
Judge Hagar noted the recommended compensation levels set out in Section 4(a) and asked
whether they should be updated, perhaps to at least reflect the rate of inflation.
Justice Crothers wondered whether Section 3 could be amended to reflect online access to
the various required resources.
Judge McCullough agreed a modification to Section 3 should be considered. But, he
suggested a change could simply be that the municipality must ensure the municipal judge “has
access to” the various resources. It could be left to the city, he said, to determine how access is
provided. There was general agreement with the suggestion.
Linda Bata noted there were comments during the education seminar that the recommended
minimum standards in Section 4 do not include any reference to the municipal court having
Justice Crothers said recent discussions of the Court Technology Committee indicate some
cities are considering access to the Odyssey case management system used in the district courts. He
said if a municipal court were to be included in the Odyssey system, it may be worthwhile to
consider computer-related requirements in the rule. Alternatively, he said, computer capability to
ensure Odyssey access could be left to a memorandum of understanding with the state court
administrator or some other mechanism.
In response to a question from Chair Severin regarding the yearly education seminar as a
means of ensuring response to the compliance requirement, Committee members agreed it should
be recommended to the state court administrator that the certificates of compliance should be
distributed at the seminar for completion.
Chair Severin asked whether there were any suggested revisions to Section 3 regarding
availability of required legal resources.
It was moved by Judge Hagar, seconded by Sen. Oehlke, and carried that Section 3 be
modified to provide that the city must ensure the municipal court has access to the identified
With respect to Section 4(a) and the recommended compensation levels, Linda Bata said
municipal judges at the recent education seminar were hopeful that there would be changes to the
amounts. She noted that the judges approved contact with legislators by their Association executive
officers to discuss compensation issues. Observing that state law governing the position of municipal
judge does not address compensation, she suggested the compensation levels in AR 30 seem only
rule-based and, therefore, arguably could be revised in some fashion.
Justice Crothers said a relatively blunt method of changing the recommended salary amounts
may be to, as earlier suggested, simply change the amounts to reflect the rate of inflation since 1991.
Judge McCullough noted that some municipal judges are paid on an hourly basis and
wondered if there would be any way of taking that into account.
Linda Bata said Mandan Municipal Judge DeNae Kautzmann had conducted a survey and
compiled salary information for certain cities. She said it may be helpful to review that information
Anna Frissell, after contacting Judge Kautzmann, said Judge Kautzmann is willing to share
the survey information with the Committee.
Sen. Oehlke wondered whether it would be feasible to consider a sliding scale for salary
amounts based on court caseload. Justice Crothers observed that the salary amounts in the rule are
based on city population - larger amount for larger cities, smaller amount for smaller cities. He said
that may have been the result of an early effort to relate recommended salary to likely workload
based on city size.
In response to a question from Chair Severin about information for the next meeting,
Committee members agreed the salary survey information should be reviewed, inflation adjusted
salary amounts should be considered, and revisions to the rule as discussed should be reviewed.
Committee members then discussed the recommended minimum standards related to
facilities as set out in Section 4( c).
Judge McCullough noted that all standards in Section 4 are aspirational, i.e., the municipality
“should” do or provide a particular thing. As such, he said he would be reluctant to remove any of
the items or activities identified in the section.
Justice Crothers suggested, and Committee members agreed, Section 4(h)(8) should be
modified to refer to “telephone and technology expenses” as an item the municipal budget “should”
include. Additionally, he asked whether Section 4(e) should be modified to include a reference to
computer resources that are appropriate to support participation in the Odyssey system.
Judge McCullough suggested that, rather than a specific reference to “Odyssey”, the rule
could simply include a general reference to adequate computers and technology.
Linda Bata suggested linking technology-related equipment and resources to Section 3 as part
of mandatory minimum standards. Justice Crothers cautioned against including a requirement that
cities purchase technology-related equipment.
It was moved by Linda Bata that Section 4(e) be relocated to Section 3. After discussion,
the motion died for lack of a second.
With respect to the certificate of compliance required by Section 5 of the rule, staff noted that
Section 5 requires the municipal judge to certify that the municipal court has made “its best efforts,
in cooperation with city government” to meet the Section 4 recommended standards. However, he
said, the certificate of compliance asks the municipal judge to certify that the court is or is not “in
compliance with” the recommended standards.
Linda Bata suggested the certificate form would be more accurate if it actually reflected the
rule language. Committee members agreed.
It was moved by Judge Hagar, seconded by Sheila Peterson, and carried that the
Committee continue review of the rule and related information at the next meeting, including
rule revisions based on Committee discussion.
Staff said he would prepare draft rule amendments based on matters raised in the
Committee’s general discussion and any related items.
Justice Crothers suggested as a different but related topic of discussion whether there should
be some mechanism by which municipal court case numbers and types could be reported to the state
court administrator. Judge McCullough noted that municipal court caseloads for selected cities were
last reflected in the judicial system’s 2005 Annual Report. He said the change to the Odyssey system
may have complicated how that information can be obtained.
Chair Severin said the Committee would continue review of the rule and related issues at the
Chair Severin then drew Committee members’ attention to Attachment C (December 4,
2013) - referral of the National Center for State Court’s technical assistance review of the Judicial
Improvement Program. The review, as described in State Court Administrator Holewa’s
memorandum to Chief Justice VandeWalle, discusses whether the program’s current process is
sufficient to minimize implied bias in individual evaluations of judges and judicial referees.
Staff reviewed Administrative Rule 48, which established and governs the improvement
program, the background of the rule’s development, and the surveys included in Attachment C.
Chair Severin noted that Sally Holewa’s memorandum suggests the general consideration
is whether the National Center team should be invited to come to North Dakota to more fully discuss
the technical assistance review and related research and suggestions for areas of improvement. The
alternative discussed in the review, he said, is a more thorough empirical study of the program and
Committee members then generally discussed the National Center’s technical assistance
Sheila noted the review’s suggestion that survey questions, as written, may be leading, i.e.,
directing the person completing the survey to certain conclusions about the survey subject. She
agreed that survey questions should be reviewed to determine whether they can be made less leading.
She wondered whether it may be necessary to involve someone versed in constructing surveys to
determine proper question structure.
Justice Crothers said a deeper, empirical study may be more ambitious then necessary. He
said a possible alternative to inviting the team to North Dakota to discuss the review may be to have
a preliminary discussion by ITV, if possible, of the review and any observations the Committee
In response to a question from Linda Bata about judge participation in the program, Judge
McCullough said he has participated as both survey subject and reviewer and has found the program
generally helpful. Justice Crothers agreed his experience with the program has been beneficial and
it provides a useful tool for judges to consider their courtroom conduct.
Following discussion, it was moved by Judge Hagar, seconded by Anna Frissell, and
carried that the National Center team be contacted for purposes of arranging an ITV
discussion of the technical assistance review at the Committee’s next meeting.
Judge Hagar suggested the Committee initially review the Concerns and Improvements
identified in the review. There may be some areas, he said, that the Committee may decide not to
pursue. Committee members agreed.
- Concern #1: Court personnel survey procedures may lead to respondents evaluating
a judge based on reputation rather than personal experience with the judge.
Improvement: distribute survey to only those respondents who have direct experience
working with the judge.
Judge Hagar said this concern may be difficult to address given the small size of the
system, the close proximity of staff to judges, and the risk of losing confidentiality
for the respondent. Committee members agreed the concern should be discussed.
- Concern #2: Survey questions are too general and may allow reliance on
assumptions. Improvement: Develop new questions that focus on actual, observed
behaviors of the judge rather than an interpretation of a judge’s behavior.
Sheila Peterson said this concern is related to proper, more effectively worded survey
questions. Committee members agreed the concern should be discussed.
- Concern #3: Obtaining meaningful feedback from self-represented litigants.
Improvement: Consider reporting responses from self-represented litigants separately
from attorney responses. Committee members agreed the concern should be
- Concern #4: Low survey response rates. Improvement: Consider a reminder
notification process; improve user-friendliness of survey (online system); cutoffs
based on number of survey responses. Committee members agreed the concern
should be discussed.
- Concern #5: Confidentiality related to survey responses being summarized and
aggregated, but survey responses are currently provided verbatim to the subject
Staff noted that Administrative Rule 48 requires that survey responses must be
summarized and a summary provided to the reviewer. Committee members agreed
it is unnecessary to discuss this concern as it is a matter of complying with the rule.
- Concern #6: Subject judges are permitted to develop their own questions to be used
in the survey. Improvement: Judges should not be asked to create their own
questions. Specialized questions, devised by survey experts, could be developed to
supplement the survey.
Judge McCullough noted that he had never considered adding a question to the
survey. But, he said, there may be areas not included in the survey regarding which
a judge would like specific feedback. Linda Bata agreed that if the purpose of the
surveying process is to review the judge’s own conduct and identify areas of
improvement, then it is important that the judge be able to supplement the survey.
Justice Crothers said discussion of this concern may be premature as it would involve
a change to the rule. He said the review identifies possible concerns but further
discussion may be unnecessary. Committee members agreed it is unnecessary to
discuss the concern.
- Concern #7: Reviewers are not provided with training or guidance about how to best
assist the subject judge or guidance regarding interpreting survey results.
Improvement: Consider training a set of dedicated reviewers.
Justice Crothers said the suggested improvement is likely unrealistic for North
Dakota’s small judicial system. Committee members agreed it is unnecessary to
discuss the concern.
- Concern #8: Current survey questions framed in a way that assumes the judge is
doing a good job. Improvement: Frame questions in a uniform way to ask for
identification of strengths and areas of improvements.
As this concern is related to the wording and structure of survey questions,
Committee members agreed the it should be discussed.
Chair Severin said the National Center representatives would be contacted and an ITV
discussion arranged for the next meeting if possible.
There being no further business, the meeting was adjourned at 3:20 p.m.