Judge Robert Holte, Chair
Judge Joel Medd
Judge John Paulson
Judge Bruce Haskell
Surrogate Judge Jon Kerian
Judge Lester Ketterling
Chair Holte drew Committee members' attention to Attachment B (June 2, 1999) - Minutes of the November 23, 1998, meeting.
IT WAS MOVED BY JUDGE PAULSON, SECONDED BY JUDGE MEDD, AND CARRIED UNANIMOUSLY THAT THE MINUTES BE APPROVED.
Standards Relating to Juror Use and Management - Review of Revisions
At the request of Chair Holte, staff distributed and reviewed revisions to the Standards Relating to Juror Use and Management and the Jury Selection Plan. Staff said some changes simply reflect that certain recommendations have been implemented and therefore can be deleted, while other changes or annotations reflect things still to be accomplished. Other draft amendments, he said, are in response to previous Committee discussion regarding modifying the standards to reflect recent changes to the ABA Standards. The ABA related amendments, he said, are set out in the black letter portion of Standards 1, 3, 5, 6, and 10. Additionally, he said the amendments to page 4 of the Jury Selection Plan are included to reflect changes to the questions asked on qualification forms about a prospective juror's prior felony convictions. The changes, he said, reflect the current state of the law in that the simple record of a felony conviction is no longer a ground for initial disqualification from being selected for jury service.
Chair Holte requested discussion regarding the draft changes to Standard 1 (opportunity for jury service). Judge Medd wondered whether there is a specific meaning or understanding of "cognizable group", which is adopted from the ABA Standards. Tom Dickson suggested citing the corresponding ABA Standard for purposes of cross-reference. Committee members agreed. Judge Medd said "cognizable group" could possibly apply to college students. Staff said the Comment to the ABA Standard indicates the concept would apply to a broad array of groups for which there is a commonality of interest for members of the group.
Jim Fitzsimmons said even though the revision would now include "income" as a prohibited basis for discrimination, he would request retaining "economic status", which has a broader meaning or focus than simple income.
IT WAS MOVED BY JIM FITZSIMMONS, SECONDED BY JUDGE PAULSON, AND CARRIED UNANIMOUSLY THAT ECONOMIC STATUS BE INCLUDED IN THE BLACK LETTER PORTION OF STANDARD 1.
With respect to the new section (c) in Standard 3 (random selection procedures), Tom Dickson wondered who makes the decision regarding excusal. There should be, he said, a procedure that sets out the excusal process. Lawyers in a case, he said, should be aware of who is being excused and the reason for excusal.
Ted Gladden observed that the authority to excuse jurors is often delegated, so there is a need to spell out the specific procedures.
Deb Simenson noted that in Burleigh County a letter from the presiding judge is attached to the Jury Selection Plan indicated she, as clerk, can excuse temporarily. But, she said, permanent excuses are handled by the presiding judge. A letter requesting excusal, she said, is required. Judge Medd said a similar practice is followed in Grand Forks.
Tom Dickson said if there is a list in Burleigh County that indicates those who have requested, and are granted, temporary excuses, then defense attorneys need to know because the selection process has become less random. It is not, he said, the fact that some are excused that is of concern, rather it is not knowing who has been excused and why they were excused that is a problem.
Jim Fitzsimmons said there is a need to find a balance between requiring clerks to inform lawyers of everything that happens with respect to excusals and the lawyer's desire to have all of the information.
Judge Holte observed that attempting to completely standardize the excusal process will likely be difficult. Judge Medd suggested researching the practice or policy of other jurisdictions and then considering the possibility of developing a draft rule or policy.
In response to a question from Chair Holte, Committee members agreed the draft changes to Standard 3 should be retained.
Chair Holte then drew Committee members' attention to draft amendments to Standard 5 (term and availability for jury service), which contemplate the "one day, one trail" concept.
In response to a question from Judge Paulson, Deb Simenson said the master jury lists are retained for two years, but in Burleigh County the actual panels within the list are retained for only 30 days. She said they try not to call people in for service more than twice. If jurors were called only once, she said, more possible jurors would be required. Judge Holte noted that section (b) of Standard 5 would reduce availability for jury service from 30 days to two weeks.
Judge Medd said the clerk in Grand Forks would prefer the two-day term of service and 30 day availability timeframe set out in the current Standard. Deb Simenson agreed.
Judge Paulson said a one-day term of service limit may cause problems if, for example, voir dire in a trial were to last two days. Judge Holte observed, and others agreed, that being called in for voir dire on one day is generally treated as one day of service, even if the person is not ultimately selected to serve on the panel. Judge Paulson said he excuses people from jury service if they are called twice, but not chosen.
Committee members agreed the two-day service, 30 day availability provisions of current Standard 5 should be retained. Committee members also agreed to retain the current six month limit on availability for service in areas where there are few jury trials.
With respect to section (d) of Standard 6 concerning adoption by the "court" of specific uniform guidelines governing excuses and deferrals, Ted Gladden wondered whether "court" is intended to refer to the Supreme Court. Judge Paulson said it is not entirely clear. If, he said, the aim is to tie this provision to the previous sentence's reference to excuse disposition being "made of record", then "court" more likely refers to the trial court. If, he said, the aim is establishment of broad uniform guidelines, then it is likely the Supreme Court that is contemplated. Ted Gladden suggested the guidelines should perhaps be adopted by the several judicial districts and approved by the Supreme Court. He also suggested that, in light of the earlier concern about excusal procedures, section (d) could be changed to provide that excuse dispositions "must", rather than "should", be written.
In response to a question from Jim Fitzsimmons regarding local practice, Judge Medd said local variations within the district could be accommodated if circumstances warranted.
Judge Paulson wondered if it was necessary to have Supreme Court approval authority. Ted Gladden said at some point an evaluation would be required to determine if guidelines had been adopted and if they were generally followed. So, he said, there likely is a role for some approval authority beyond the judicial districts. Judge Paulson suggested approval by the state court administrator. Committee members agreed.
With respect to Standard 7 (voir dire), Tom Dickson said there are problems in the South Central district with judges intervening too soon and limiting voir dire, even by experienced lawyers who are not wasting time. He suggested changing the first sentence to read, in part, "Voir dire examination shall be allowed or permitted in all matters relevant" to determining grounds for removal. He said the current language (voir dire examination shall be limited...) misplaces the emphasis and invites unduly restricting voir dire practices. Jim Fitzsimmons observed that voir dire practices vary greatly across the state. Judge Medd said judges will often intervene if the lawyer begins an extended discussion with jurors that is not clearly related to the case. Tom Dickson cautioned that "warming up" jurors is often necessary because many times jurors will not be forthcoming for a variety of reasons about matters relevant to the case. Judge Paulson agreed prospective jurors are often very quiet and withdrawn. He tries to remedy that by having jurors give brief introductions about themselves.
With respect to the change in Standard 7, section (a), regarding making background information about panel members available to counsel on, rather than before, the day of selection, Ted Gladden said this change reflects an emerging national trend and is driven by privacy concerns. Deb Simenson said she prefers the draft changes. Tom Dickson disagreed, and Jim Fitzsimmons said some common sense alternative should be arrived at that allows release of information before the day of jury selection, but not so far in advance that it is an undue burden on the clerk's office. Judge Medd emphasized that privacy concerns for jurors is a significant issue and should be addressed.
Tom Dickson suggested, and Committee members agreed, that review of section 7(a) be held over until the next meeting. He said he would also like to consider possible addition to Standard 7 of a provision governing juror questionnaires. Juror privacy, he said, should not be the overriding concern if there is information about a juror that is relevant to the case.
Ted Gladden suggested reviewing any recent jury reforms that relate to the voir dire process.
Judge Medd noted that the ABA Committee on Jury Management has identified a trend to limit voir dire and challenges.
With respect to the draft amendments to Standard 9 (peremptory challenges), Judge Medd suggested retaining the over-struck language in section (b) regarding conflicts of interest because it retains judicial discretion. Staff noted that current Rule 47, N.D.R.Civ.P., governing peremptory challenges when there are conflicts of interest simply provides the judge may allow "additional" peremptories, rather than specifying three peremptories as provided in current Standard 9, section (b).
Chair Holte drew attention to draft amendments to section (b) of Standard 10 (administration of jury system), which requires identifying who would generally supervise administration of the jury system. Staff said the ABA Standard refers to supervision by "a presiding judge of the court". In terms of general supervision of the jury system, he said, the application of the phrase is unclear given the structure of North Dakota's judicial system.
Ted Gladden said he interpreted Standard 10 as establishing a statewide standard. And, in that sense, he said, overall supervision of the statewide jury system could, for example, be under the state court administrator. Then, he said, if intermediate supervision at the district level is desired, a provision could be added to provide that in the judicial district a person would be designated for operational responsibilities as set out in the local jury management plan. In response to a question from Jim Fitzsimmons, Ted Gladden said he contemplates every district having a jury management plan that identifies how the plan will be implemented and whether by delegation, for example, to the clerk in each county, a clerk for the district, or the local administrator. Following discussion, Committee members agreed to identify the assistant state court administrator for trial courts as having general supervision responsibility under draft section (b). It was also agreed to include, for discussion purposes, a draft section (c) outlining local implementation as described by Ted Gladden.
With respect to the Committee recommendation section in Standard 11 regarding contents of the juror qualification form, Ted Gladden drew attention to Attachment E (June 2, 1999), which discusses a request from the Southwest judicial district to delete certain questions from the form used in that district. He said some general direction is needed with respect to the contents of the qualification form. Staff noted that Section 27-09.1-07, N.D.C.C., identifies the basic contents of the qualification form. However, he said, it is not clear that the statute establishes the maximum information that can be requested. And, over time, he said, qualification forms have been modified to satisfy particular local situations and to request more information than is identified by the statute.
Jim Fitzsimmons said he would oppose the deletion of questions about marital status and the number of children, as outlined in Ardean Ouellette's letter included in Attachment E. That information, he said, could be valuable in determining, for example, whether jury service would be a hardship in a particular situation. Committee members agreed qualification forms should be reviewed with the objective of determining a general format.
With respect to general Committee work, Judge Medd suggested more frequent Committee meetings so that matters of interest can be handled more expeditiously.
No further business appearing, the meeting was adjourned at 5:20 p.m.
Jim Ganje, Staff