Members Present Judge Joel Medd, Chair Judge Laurie Fontaine Sally Holewa Robin Huseby Judge Steven Marquart Deb Simenson Michael Waller
Members Absent Judge Gary Lee Ron McLean Monte Rogneby
Others Present Fritz Fremgen, Stutsman County State's
Attorney Jonathan Byers, Attorney General's Office Jeff Weikum, ND Association for Justice Al Austad, ND Association for Justice Michael Liffrig, Oliver County State's
Chair Medd called the meeting to order at 10:00 a.m. and drew attention to Attachment B
(April 18, 2008) - minutes of the April 27, 2007, meeting. The minutes were approved as distributed.
Juror Questionnaires - Concerns and Suggestions
Chair Medd drew Committee members' attention to the submission by Fritz Fremgen,
Stutsman County State's Attorney, which was distributed April 8, 2008 and which requests a
reconsideration of recent changes to the juror qualification form and the manner in which the
qualification information is provided. The submission also recommends development of a more
detailed questionnaire to be submitted to prospective jurors without a specific motion by counsel.
Chair Medd also noted Attachment C (April 18, 2008) - an email from SBAND Board of Governors
member Kristi Pettit expressing concern about information solicited on the current qualification
form, and a letter from Daniel Phillips, President, ND Association for Justice, also expressing
concern about the lesser amount of information now provided on the qualification form. Staff
distributed additional comments received from attorneys Kent Reierson, Phyllis Ratcliffe, and Robert
Bolinske, Jr., all of whom had submitted comments in response to a general SBAND request for
comments. He noted an email submitted by Bill Neumann, SBAND Executive Director, which
generally summarizes comments received regarding the qualification form. The general sentiment
was that the current qualification form solicits insufficient information and, as a consequence,
contributes to an inefficient juror selection process. Copies of the comments are attached as
Chair Medd then welcomed Fritz Fremgen for comments concerning his submission and
recommended changes regarding juror qualification.
Mr. Fremgen initially explained that he was asked by the ND State's Attorneys Association
to discuss with the Committee possible ways of expanding the amount of juror information that is
provided to trial lawyers. He said the recent changes to the juror qualification form have resulted
in less information about prospective jurors being provided to counsel than had previously been
available. He noted as well that the information currently provided is essentially a list of the initially
qualified jurors, without the specific answers to the qualification questions. He said his personal
experience in the past was that he rarely asked each prospective juror questions about personal
background because if he had the person's name and address he could obtain basic information from
other sources, such as the sheriff's office. He said more information about prospective jurors, if
provided to counsel, would speed up the juror selection process. He acknowledged the tension
between the desire of litigators for more information and juror concerns regarding privacy, but
suggested the need for an effective balance between the two interests. With respect to the
background information provided in his submission, he explained that he had reviewed policies and
statutes in other jurisdictions regarding juror privacy and the use of juror questionnaires and had
reviewed basic caselaw on the extent to which juror information can be shielded from the media, for
example. He drew attention to a 2007 court decision from Pennsylvania (Commonwealth of
Pennsylvania vs. Long, 922 A.2d 892), which provided a useful discussion of the governing
principles regarding limiting access to juror information. He said there is an acknowledged 1st
Amendment right of the media to gain access to voir dire juror information. However, he said, the
court decision also explains that while juror names are accessible, juror addresses can be shielded
from disclosure. Additionally, he said, disclosure of other juror information can be limited if the
court determines there is a compelling interest based on the potential for harassment of jurors or
other serious issues.
Judge Medd observed that there is an issue concerning automatically providing juror
information to counsel without any involvement or review by the judge. The result, he said, is that
personal information may be disclosed on a regular basis without any knowledge of the court. He
asked how that issue could be addressed.
Fritz Fremgen suggested, as explained in his submission, that an additional juror
questionnaire should be developed and should be provided automatically as part of the juror selection
process. He said such a questionnaire would be beneficial because it would assist litigators and
because it would be directed by court rule, rather than left to different practices around the state. He
noted that the Massachusetts questionnaire provided in his submission is a good example of a short,
one-page questionnaire that could be used.
Jon Byers emphasized the timesaving aspect if a uniform juror questionnaire was available
in proceedings. He said information would be provided in advance to counsel, which would hasten
the juror selection process.
In response to a question from Robin Huseby, Jon Byers said juror questionnaires used in the
two Gibbs trials were provided to the defense. He agreed with Fritz Fremgen that it is important to
have a court rule that would govern the general contents of a uniform juror questionnaire.
Judge Medd drew attention to juror survey results from Grand Forks, a copy of which was
distributed at the meeting, and noted that those who served as jurors expressed a general concern
about the extent to which personal identifying information was provided and disclosed as part of the
process. He said juror reservations about disclosure of personal information continues to be a
significant concern for those summoned for service. A copy of the juror survey results is attached
as Appendix B.
In response to a question from staff regarding the disposition of juror questionnaires, Fritz
Fremgen said caselaw suggests a court must make specific findings that justify barring disclosure
of or destroying the questionnaires. He said redaction of juror names and addresses appears to be
an alternative under certain circumstances.
Michael Waller noted that provisions from New York,, Pennsylvania, and Oklahoma, which
were included in Mr. Fremgen's submission, provide that the questionnaires would be collected and
disposed of, which seems to illustrate a general intention that the information not be available after
a certain time. Fritz Fremgen said he is unaware of any court challenges to the noted provisions.
Sally Holewa said she is not opposed to the use of a uniform supplemental juror
questionnaire, but there are matters that would likely require some attention. First, she said, if the
use of a general questionnaire is provided for by rule, there is the risk that use of such a questionnaire
would become standard practice rather than being used for more extraordinary kinds of cases and
it appears that the extraordinary circumstance appears to be the impetus for interest in a uniform
questionnaire. Additionally, she said pro se litigants would arguably be entitled to the same level
of access to the questionnaires as would attorneys. With respect to the necessary findings by a court
regarding when to limit disclosure of juror information, she said incidents of juror harassment or an
unwarranted invasion of privacy are difficult to predict and, as a result, a court may find it difficult
to justify limiting access to juror information. She said it is additionally important to draw a
distinction, for purposes of access to information, between prospective jurors and those who actually
serve as jurors in a case.
Michael Liffrig observed that as a relatively new state's attorney he has found it very useful
to have access to the sheriff's office, clerks of court, and others for purposes of obtaining information
about prospective jurors. He said defense counsel does not always have ready access to those
sources of information. He said providing more background information to counsel will assist in
somewhat leveling the playing field between prosecution and defense. He noted that the vast
majority of juror summonses in Oliver County are with respect to misdemeanor cases that ultimately
do not go to trial. He cautioned against imposing the burden of completing a lengthy questionnaire
upon prospective jurors, many of whom will not serve on a jury.
With respect to distinguishing between prospective jurors and those who actually serve on
a jury, Fritz Fremgen said that when the "old" qualification form was used he would review the
responses of each prospective juror and would have formed a conclusion about which ones would
be selected to serve. He said he would already have the answered questions and, as a result, would
not have to ask personal questions during the voir dire process. That, he said, resulted in a shorter
voir dire process and minimized the need for intrusive questions in a public forum about personal
information. With respect to whether use of a uniform juror questionnaire would become a standard
practice, as opposed to being used only in extraordinary cases, he said use of the questionnaire
should be a regular feature of jury selection, which would ensure a proactive, rather than reactive,
approach to gathering juror information.
Deb Simenson noted that the majority of jury trials in Burleigh County are misdemeanor
trials and requiring juror questionnaires in all those trials would impose a significant burden on clerk
staff. She agreed there may be a need for more information in more complicated cases.
Judge Marquart said it has been his general experience that having questionnaire information
has made little difference in the juror selection process. He noted that attorneys will sometimes ask
the same questions that were asked on the questionnaire because they want to establish a rapport with
the prospective jurors. He said jury selection has not seemed require any more time with use of the
new qualification form. He noted that judges already must review and approve additional
questionnaires requested by counsel.
Fritz Fremgen reiterated the desire for development of a standard supplemental juror
questionnaire. He said the judge could determine whether the supplemental questionnaire should
be used in a given case.
Judge Fontaine said the discussion is in many ways a reprise of the Committee's earlier
discussion about changing the juror qualification form. She said the issue is whether that earlier
decision was correct or whether the question should be revisited and changes to the standard
qualification form considered. She said whether a supplemental questionnaire should be available
in extraordinary cases is a separate question. She recalled the Committee's earlier conclusion that
a prospective juror's address should not be disclosed and expressed disappointment that the list of
qualified jurors currently includes addresses.
Jeff Weikum said the membership and board of the Association for Justice are of the opinion,
as reflected in Dan Phillips' letter, that the changed qualification form may not have resulted in
significantly extra time being expended in jury selection, but it has contributed to a less effective
process. He said some basic fundamental information about prospective jurors is needed so that an
initial determination can be made regarding whether a person will make a good juror. He emphasized
that the information should be made available to counsel at least a couple of weeks before jury
selection begins. Additionally, he noted that often times there may be a potentially embarrassing
question that must be asked of a prospective juror. In the past, he said, the necessity for asking the
question could be gleaned from information provided by the prospective juror and local attorneys
or others in the community could be contacted for information. Now, he said, with more limited
information available, that embarrassing question will most likely be asked in open court.
Sally Holewa stressed the need to separate issues regarding the qualification form from those
involving voir dire. She said the current jury management system has been programmed based on
the new qualification form and reprogramming to reflect changes in the form would be a substantial
task. She suggested that if an additional questionnaire is considered worthwhile, it should be
addressed as a separate, free-standing questionnaire and not as an addition to the current qualification
form. Additionally, she noted that discussion of additional privacy issues regarding juror information
may be premature since the Supreme Court will soon address issues raised in the Fargo Forum's
application for a supervisory writ in Judge Paulson's case and the Joint Procedure Committee is also
working on rule amendments on privacy matters.
Chair Medd then asked for Committee discussion regarding changes to the new qualification
form and development and use of a standard supplemental juror questionnaire. He noted that the
current practice in most cases is that the names and addresses of prospective jurors, but none of the
other qualifying information, are provided to counsel unless the court decides to limit disclosure.
He reiterated his concern that information is provided automatically without any review by the court.
Judge Fontaine asked whether a standard supplemental questionnaire could be added in the
current system. Sally Holewa said it may be possible to add the questionnaire as some kind of notice
but it would be a programming issue nevertheless.
Michael Waller said that using a supplemental questionnaire would require distributing the
questionnaire much earlier than is now necessary for the basic qualification form.
Judge Medd said there is an additional question regarding whether the use of the
supplemental questionnaire would be "automatic" or whether counsel would request during pretrial
conferences that the supplemental questionnaire be used in a particular case.
Sally Holewa observed that the Committee's reasons for earlier suggesting changes to the
qualification form are still valid and it would be a mistake to return to the old approach simply
because of some level of opposition to the changes.
Judge Fontaine said since the Committee's earlier suggestion to limit access to address
information has not been achieved, there may be some merit in revisiting the issue.
Judge Marquart said concerns about the new qualification form are essentially the same as
those heard when the revisions were first considered. He said whether the voir dire process takes
a little longer is not necessarily the most significant consideration and attorneys still have the ability
to request that the court consider use of an additional juror questionnaire.
After further discussion, it was moved by Robin Huseby, seconded by Sally Holewa, and
carried that the Committee not recommend any changes to the juror qualification form at this
Robin Huseby said she is not convinced the Committee can, at this time, answer the question
about whether it is necessary to develop a rule providing for the use of a standard supplemental juror
questionnaire. She said it may be a worthwhile subject for a subcommittee to consider.
In response to a question from Judge Marquart regarding any difficulties in obtaining court
approval for a supplemental questionnaire, Fritz Fremgen said there have been no significant
problems. But, he said, there is no rule governing the process for obtaining and using an additional
questionnaire and the result is that questions about when a questionnaire is necessary, how it can be
justified and obtained, and how privacy issues concerning information solicited in the questionnaire
are handled must be addressed on a case by case basis. That, he said, unnecessarily complicates the
process and results in wasted time. He said it would be much more beneficial to have a rule outlining
the process for obtaining a supplemental questionnaire and more useful to have a basic questionnaire
that was developed by an outside objective group.
Staff noted that under Administrative Rule 41 governing access to judicial records, records
of the voir dire of jurors are confidential unless a court permits access. He said it is uncertain how
the rule is being interpreted or applied.
Judge Fontaine said she is not necessarily opposed to the development of a standard,
narrowly focused, supplemental questionnaire as long as the previous changes to the qualification
form are preserved, use of the questionnaire can be implemented without becoming a significant
burden, and juror privacy issues can be addressed.
Fritz Fremgen said the draft questionnaire included in his submission was a first, rough
attempt to devise a possible approach. He noted the shorter questionnaires included in the
submission which may address concerns about the burden associated with mailing and handling of
In response to a question from Chair Medd, there was a general consensus that development
of a supplemental questionnaire and a rule governing its use may be considered at a future time. It
was agreed a subcommittee would be the vehicle for considering the issue.
Judge Medd drew attention to the previously distributed juror surveys from Grand Forks
which solicited juror comments on, among other things, the level of compensation they received.
He said the survey responses indicated that, by about a 2 to 1 margin, those who served as jurors
thought compensation should be increased. He noted Attachment D (April 18, 2008) - a fiscal
estimate that indicates that increasing juror compensation from the current $25 first day/$50 each
subsequent day to simply $50 per day would require approximately $85,000 in additional funding
for the biennium. He said he had discussed the feasibility of increasing juror compensation to $50
per day with a Grand Forks legislator and the legislator responded that compensation should be
increased to $75 per day.
Judge Marquart observed that serving on a jury is a positive experience for most of those who
serve and most people want to serve on a jury. Additionally, he said jury service should be regarded
as a basic civic duty. He said our compensation levels seem to be in line with other jurisdictions and,
as a result, there likely is not a need to increase the compensation level.
Judge Medd said jurors have commented on the impact of lost work time, having to obtain
day care services, and other burdens associated with jury duty. He said increased compensation
should be given serious consideration.
Robin Huseby agreed there should be some adjustment of compensation levels but it should
be addressed as legislation introduced by the Supreme Court rather than from an individual
As a matter of comparisons, Sally Holewa said North Dakota's rate of $25 for the first day
ranks 6th in the nation and the $50 rate for subsequent days is matched only by one state - Utah. She
said other states pay the $50 rate but the higher rate is not triggered until the 5th or 6th day of service.
She suggested considering other, alternative ways of addressing the compensation issue or providing
enhanced services to jurors, such as providing reimbursement for day care or care giver services;
providing meals for the entire time of service rather than just during deliberation; and, perhaps,
contracting with a provider for counseling services when jurors serve on an especially troubling case.
She noted also that Arizona had established a hardship fund that involved an application process.
She said another approach has been to provide a tax write-off for businesses that continue to pay an
employee while the employee serves on a jury.
Robin Huseby observed that the various alternatives may involve an administrative burden
and cost that may exceed the cost associated with simply increasing the compensation level.
Michael Waller suggested possibly basing the level of compensation on the amount of time
served. Sally Holewa said Michigan follows such an approach, paying jurors $7.50 for the first 4
hours of service and $14 for an entire day of service.
Judge Fontaine said if North Dakota's compensation rate is in line with, or exceeds, other
jurisdictions she is not inclined to support an increase.
Judge Medd suggested the Committee should take a position recognizing that jurors are not
compensated adequately either in dollars or in-kind and recommending that the Supreme Court
consider increased compensation or some other initiative that will assist in defraying the costs
incurred by jury service.
Following further discussion, it was moved by Michael Waller and seconded by Robin
Huseby that the Committee consider a proposal to compensate jurors $25 if dismissed before
noon and $50 for a full day of service and to provide a stipend to offset the cost of lunch or
other meals not currently provided.
Deb Simenson noted that most jury trials are 1 or 2 day trials and jurors typically go home
for lunch and dinner. Meals are otherwise provided during deliberation.
With the consent of the second, the motion was amended to address only the $25/$50
Judge Marquart noted that some jurors seem offended that they receive $25 for serving an
entire day while someone receives the same rate for only serving part of the day.
After discussion, the motion carried (Judge Marquart, Sally Holewa - no).
Use of Jury 'Boxes" and Ballots
Chair Medd recalled the Committee's discussion at the last meeting of statutory provisions
relating to the use of jury boxes and ballots for purposes of juror selection and the conclusion to
revisit the issue at the next meeting.
Sally Holewa said her assessment, reflected in the memorandum reviewed at the last meeting,
is that the statutes are obsolete and serve no useful purpose. She said it seems pointless to follow
the procedure outlined in the statutes, which some courts apparently do, when the jury management
system already generates a random list of juror names. She said the practice of cutting the list into
strips and then mixing them simply re-randomizes an already random selection of names.
Judge Medd agreed the statutes are antiquated and serious consideration should be given to
Judge Fontaine observed that if judges wish to use the old method, there does not seem to
be any compelling reason to direct otherwise. She said the selection of jurors in the courtroom using
ballots and boxes contributes to the impression that there is a random selection.
After further discussion, it was moved by Judge Marquart, seconded by Deb Simenson,
and carried that the Committee consider a draft proposal for the repeal of the applicable
statutes governing the use of jury boxes and ballots and to provide that jury selection will be
done in accordance with Supreme Court rule and N.D.C.C. ch. 27-09.1. (Judge Fontaine - no).
Staff noted that there are currently two membership vacancies: an administrator/clerk
position and a district judge vacancy.
Sally Holewa suggested Rod Olson, Unit 2 Court Administrator, may be a candidate to
recommend to the Chief Justice as Rod serves as chair of a jury user group. It was also suggested
Sheila Hartl, Stark County Clerk of Court, could be recommended.
Committee members agreed to recommend Rod Olson and Sheila Hartl for consideration by
the Chief Justice in appointing a member for the administrator/clerk vacancy.
Chair Medd said draft proposals concerning juror compensation and jury boxes and ballots
will be distributed for review and comment before the next meeting.
There being no further business, the meeting was adjourned at 1:40 p.m. ______________________________ Jim Ganje, Staff