Judge Joel Medd, Chair
Judge Laurie Fontaine
Judge Gary Lee
Judge Steven Marquart
Judge Gerald Rustad
Chair Medd called the meeting to order at 10:00 a.m. and drew attention to Attachment B (April 19, 2007) - minutes of the June 13, 2006, meeting. The minutes were approved as distributed.
New Automated Jury Management System - Update
At the request of Chair Medd, Kurt Schmidt, Director of Technology, provided an update concerning implementation of the new automated jury management system.
Mr. Schmidt said the previous system was developed in-house and had proven difficult to support. He said ongoing and persistent support problems indicated a need to consider a more user-friendly system. Consequently, he said, a vendor selection process was begun in the Summer of 2006 for purposes of selecting a vendor to develop a new jury management system. He said Courthouse Technology, a Vancouver-based firm, was selected based on vendor submissions. He said the new system's performance has been generally satisfactory although there are problems still to be addressed. He noted the following issues that will or may require additional attention: 1) developing a website through which a juror can answer questions and which will essentially function as a method for responding to the juror summons, and 2) whether the juror qualification form should be incorporated into the jury management system, which seems a sensible approach. He noted that complaints about the juror qualification form have suggested problems with the form are driven by the "system", which is incorrect. He distributed a copy of the "final proof" of the new summons/qualification form, which will be generated by the system in a tri-fold, mailer format. He said the plan was to have the form printed in final form, but he decided to bring it to the Committee in the event there were any final design suggestions. A reduced-size copy of the form is attached as Appendix A.
In response to a question from Judge Medd, Kurt Schmidt said questions requiring vendor attention are posted on a dedicated website and then are given priority depending on levels of seriousness. He said there is daily communication with the vendor and software modifications are undertaken approximately every 2 weeks to respond to questions. He said the vendor has been very good in terms of responding to questions and system modifications.
Deb Simenson agreed the new system is working quite well.
With respect to the qualification form generated by the new system, Judge Medd noted there have been complaints about needing to physically tear or cut off the bottom administrative portion of the form before providing a copy of the top portion to attorneys.
Deb Simenson explained that her staff do not provide a copy of the form to attorneys, but instead provides the attorneys with the qualification information generated by the new system. Kurt Schmidt said the system assembles the information provided on the qualification forms and provides the information in a separate format.
New Juror Qualification Form - Concerns
Chair Medd then drew attention to an email exchange concerning the information provided by the new system. He said the general tenor of the exchange is that insufficient information is being provided to attorneys. A copy of the emails is attached as Appendix B. He said he had heard a complaint from a juror in Grand Forks that the selection process took too long and could have been shortened had the more information been provided beforehand. Monte Rogneby said he has heard similar complaints. Judge Lee said he had heard complaints from the state's attorney and other attorneys in Minot. Deb Simenson said she also had received complaints but that she had responded that the revised form had been distributed for review and comment long ago and few comments had been received.
Robin Huseby said there is no surprise that complaints about the form would surface at some point but that she had thought that attorneys, civil litigators especially, would make more use of supplemental questionnaires if it became clear a case was going to a jury trial.
Judge Lee observed that the problem with using a supplemental questionnaire is that, absent an order, there is no way to compel a prospective juror to complete the questionnaire if it comes separately from the summons. Judge Fontaine agreed that is an issue but observed that she reviews and approves questionnaires submitted by attorneys and then the questionnaires are accompanied by an order when distributed to prospective jurors.
In response to a question from Chair Medd about whether to revisit the structure and contents of the juror qualification form, Judge Fontaine suggested leaving the issue alone for the present. She said the matter could be revisited in the future if it appears longer trials are occurring because of longer juror selection time or if the number of complaints increases noticeably.
Staff noted the form's advisory that the completed form will be provided to attorneys of the parties appears to indicate the entire form, including the administrative information that the Committee earlier concluded should not be shared, would be provided to attorneys. Deb Simenson suggested the advisory be placed at the bottom of the middle section of the form, which addresses qualification factors. Judge Lee suggested "form" in the advisory should be changed to "questionnaire", which would track the questionnaire portion of the form to which the advisory applies. He also suggested the bottom portion of the form, which includes phone numbers, should be preceded by an advisory that private information will not be shared.
Judge Fontaine noted that the questionnaire portion of the form requires the prospective juror to provide an address, which is personal information the Committee previously recommended should not be made available. Committee members agreed the questionnaire portion should not reflect the prospective juror's address.
Sally Holewa explained that the intention was that copies of qualification forms themselves would not be provided; rather, a list of qualified jurors would be provided. With respect to providing the list of qualified jurors versus providing copies of the qualification forms, she asked whether there was a sense that clerks were not properly qualifying jurors. She asked why attorneys would consider it necessary to review the actual qualification forms. Staff noted that state law provides that the contents of jury qualification forms are available to the public unless the court determines the information should be confidential.
With respect to the question of whether the revisions to the juror qualification form should be revisited, Sally Holewa agreed the revised form should be used for at least one year before considering changes.
Chair Medd said it is useful to have a discussion concerning accessibility to juror information and that the Committee would review the matter in the future as necessary. Committee members agreed the new form should be used for the foreseeable future.
Use of Jury "Boxes" and Ballots
Chair Medd next drew Committee members' attention to Attachment C (April 19, 2007) - a memorandum from Sally Holewa requesting that the Committee again consider recommending changes to current statutes requiring the use of jury boxes, jury wheels, and ballots as ways of selecting random panels of jurors. Attachment C also includes draft legislation previously recommended by the Committee to the Judicial Conference which would have made the requested changes.
Chair Medd explained that the Committee's earlier proposal was rejected by the Judicial Conference because there was no perceived groundswell for the changes and because of concern about the public's perception of a non-public method of selecting jurors. It was noted that the current system already provides a randomized list of prospective jurors.
Sally Holewa said there is an incongruity in using the automated jury system to randomly select names from the voter registration and drivers license lists, randomly select names for the jury pool, and randomly select the panel and then, when the jury is ultimately selected for the trial, reverting back to using a wheel or box to randomly select names from names that are already provided in a random fashion.
Judge Marquart asked whether jurors, once in the jury box, understand how they came to be there. He said the issue may be one of perception and a concern that jurors may suspect that selections are being made based on the clerk's personal preference.
Judge Medd suggested it may be helpful to include a basic explanation of the jury selection process as part of the juror orientation.
Monte Rogneby wondered whether visibly selecting juror names in the courtroom has an effect on the solemnity of the proceeding and the importance with which jurors perceive their duty. He said the public display of selecting jurors should be retained if there is value in it.
Jim Fitzsimmons stressed that jury service requires sacrifices, sometimes substantial, by citizens and it is important to keep prospective jurors involved and invested in the process. He said the process should not be changed simply because it may be an administrative inconvenience.
Judge Fontaine noted that the Judicial Conference's earlier decision not to pursue changes to the statutes was based in part on the conclusion that whether to use jury boxes or wheels should be left to the discretion of individual judges. Judge Medd said the jury selection process in Grand Forks is generally done through stipulation by counsel.
Jim Fitzsimmons said leaving the matter to the discretion of each judge or stipulations by counsel is the ideal way of addressing the issue.
Dixie Knoebel noted the general goal of establishing uniform procedures across the state and a uniform process for selecting jurors would serve that goal.
Sally Holewa said the applicable statutes seem to be relics of a time when courts did not adopt procedural rules and the statutes are directed at what are essentially procedural considerations.
Robin Huseby said, while the issue may seem minor from an administrative standpoint, there likely is a cultural connection to the public display of selecting jurors and legislators would want to be involved in the discussion about changing the process. Judge Lee agreed. Monte Rogneby said he would prefer to consult with colleagues before deciding whether changes should be pursued.
Chair Medd said the matter would be revisited at the Committee's next meeting.
Administrative Rule 9 and ABA Principles for Juries and Jury Trials
Chair Medd then drew attention to Attachment D (April 19, 2007) - a staff memorandum concerning the relationship between the Standards for Juror Use and Management incorporated in AR 9, the administrative rule and standards, and the newly formulated ABA Principles.
Staff noted that the relationship between the Standards, which were adopted by the ABA some time ago, and the Principles is difficult to discern. He said the adoption of the Principles appears to have had no effect on the Standards and the Principles refer in many places to specific standards. He said the basic questions seem to be whether the Principles should be adopted in place of the Standards, whether the Standards should be modified in some manner to reflect the Principles, or whether some other action, or no action, should be taken.
Chair Medd said the ABA Principles are aspirational in nature and the ABA effort with regard to the Principles is ongoing. He suggested the Committee defer consideration of the Principles until the ABA process comes to some conclusion. Committee members agreed.
What Constitutes "Jury Service" for Purposes of Subsequent Selection
Staff drew attention to Standard 6 (Exemption, Excuse, and Deferral) contained in the Standards incorporated in Administrative Rule 9 (included in Attachment D). Particularly, he noted paragraph (b)(ii), which provides, in part, that persons may be excused from jury service if "they have served on a jury or have been summoned and appeared twice within the two years preceding their latest summons and they are excused ... ." He said questions have arisen about what constitutes prior "service" for purposes of excusal. He said the "appeared twice" language has been interpreted to mean that if a person is summoned and "appears", i.e. shows up at the court, twice but is not selected for jury service, then that person is eligible to be excused. He said there is some uncertainty about whether the person must actually show up at the court or if something short of appearing at the courthouse satisfies the "appearance" standard.
Sally Holewa noted that the practice in Minot is that if a person receives three notices, whether there is actually a trial or not or whether the person appears at the courthouse or not, then the person is automatically excused. There is an additional question, she said, concerning whether the two year standard pertains to two calendar years or to the two year wheel. She noted that when a new jury master list was created under the previous jury management system all the previous information was deleted. She said the new system retains information from the previous two-year "wheel" so it is now known if a person has served within the past two years.
In response to a question from Chair Medd concerning whether guidance is needed concerning what constitutes an "appearance", Sally Holewa said if the Committee agrees on what language in Standard 6 should mean, then clerks could be notified.
Jim Fitzsimmons said it is important to regard jurors essentially as similar to consumers and the objective should be to make the system friendlier and more predictable. He suggested that the appearance provision in Standard 6 should be interpreted as meaning the person has appeared at the courthouse twice within the preceding two years and that the two year period should not be predicated on the master list or "wheel" timeframe.
Staff noted that the suggested interpretation would likely mean the Ward County practice, i.e., automatic excusal based on receiving three notices regardless of whether the person has appeared at the courthouse, would not continue.
Judge Lee said the Ward County practice is a sensible one because it imposes less of a burden on prospective jurors.
Deb Simenson said there is a different but related issue concerning the "term of service", i.e., how long a person can be kept on a panel before it can be said, for example, "you've been notified three times and you haven't served, so you are released from potential service".
Sally Holewa said some states have adopted the approach of regarding simply receiving a notice/summons as meaning jury "service", without any requirement that the person actually must have appeared at the courthouse. She said Standard 6 does not appear to support that approach.
Judge Fontaine said she has no particular objection to the three-letter approach, but adopting that approach would require changes to Standard 6.
Judge Medd suggested a possible amendment to Standard 6 which would provide, as an additional basis for excusal, receipt of three notices to appear within the period of availability for jury service. It was noted that Standard 5 provides that a person should not be required to maintain a "status" of availability for longer than 30 days except in areas with few jury trials when a six month period of availability may be appropriate.
Judge Fontaine suggested the Committee should determine what the practices are around the state before considering draft amendments.
Judge Medd said he would like to revisit the issue of juror compensation. He said juror surveys consistently reflect comments that the compensation, $25 per day, is inadequate. Committee members agreed.
Juror Questionnaire - Discussion Redux
Deb Simenson drew attention to the question on the juror questionnaire concerning whether the person had ever served on a jury in a civil or criminal case. She wondered whether it is necessary to include the question since the questionnaires themselves are not being provided to attorneys. Sally Holewa noted the question does not solicit any information concerning the specific kind of case involved or how long ago the case occurred. She wondered whether the question should more appropriately be whether the person has served on a jury within the past 2 years. But, she said, the reference to whether the jury was for a civil or jury trial seems to imply the question is directed at something more than just prior service. Judge Medd suggested the question should perhaps be whether the person has served on a jury twice within the previous two years, which would more closely follow the applicable Standard. He said the question would then seem to be more appropriately placed in the administrative portion of the form.
Staff noted that the qualification portion of the form contains a question concerning whether the person is 72 years of age or older and requests to be excused. He said that basis for excusal is identified in Standard 6 but is not identified as a qualification under state law. He asked whether the question should be placed in the administrative portion of the form.
Dixie Knoebel drew attention to the question concerning a physical or mental disability,
which requests a description and parenthetically informs the person that a physician's certificate
"may" be requested. She said often a prospective juror will indicate the kind of disability and request
to be excused but the clerk must then write back to the person and ask that a physician's certificate
be provided. Perhaps, she said, it should be a requirement that a person provide a doctor's note if
the presence of a disability is indicated and the person is requesting to be excused. Staff noted that
N.D.C.C. §27-09.1-08, which identifies grounds for initial disqualification and mirrors the statute
governing the qualification form, provides that a physician's certificate "may be" required.
Following further discussion, it was moved by Deb Simenson, seconded by Sally Holewa, and carried that the juror questionnaire be modified to move the prior service question and the 72 years of age question to the administrative portion of the form. (Judge Lee - no).
It was moved by Judge Fontaine and seconded by Sally Holewa that the prior service question be modified to ask whether the person has served on a jury within the past two years.
Dixie Knoebel asked whether clerk staff would have to verify prior jury service because the person may be mistaken in recalling when the prior service occurred.
Judge Medd suggested the person should be required to request to be excused because excusal is not automatic based on prior jury service. Judge Lee agreed.
Staff noted that Standard 6 is unclear concerning whether the prospective juror must request to be excused if the person has previously served on a jury.
After further discussion, the motion carried. (Judge Medd - no).
It was moved by Judge Lee, seconded by Robin Huseby, and carried that the prior service question be further modified to include asking whether the person wants to be excused if the person answers in the affirmative concerning prior jury service. (Dixie Knoebel - no).
It was moved by Deb Simenson and seconded by Judge Lee that the question concerning mental or physical disability be modified to provide that the person "must" provide a physician's certificate if the person indicates the presence of a disability.
Jim Fitzsimmons said such a requirement may impose a significant burden for someone living in a rural area some distance from a physician. He said it should be left to the discretion of the judge and court staff to determine, based on the information provided, whether a physician's certificate should be required.
After discussion, the motion failed. There being no further business, the meeting was
adjourned at 1:25 p.m.
Jim Ganje, Staff