Judge Robert Holte, Chair
Wally Kowitz, Administrative Assistant, Northwest Judicial District
Chair Holte called the meeting to order at 9:00 a.m. and drew Committee members' attention to Attachment B (June 8, 2000) - Minutes of the November 22, 1999, meeting.
It was moved by Judge Medd, seconded by Judge Ketterling, and carried unanimously that the minutes be approved.
Chair Holte distributed a research memorandum prepared by Cathy Bacon , Law Clerk for the Northwest Judicial District, which discusses available sanctions for the failure of prospective jurors to respond to the jury qualification form. He noted that this subject has surfaced during general discussion during previous meetings and elsewhere and the memorandum may be a good resource if the Committee takes up the issue in the future. A copy of the memorandum is attached as an Appendix.
Standards Relating to Juror Use and Management - Concluding Review
At the request of Chair Holte, staff summarized additional revisions to the Standards which resulted from Committee discussion at the November 22, 1999, meeting. Staff said all other revisions remain the same as those discussed at previous meetings.
Judge Medd inquired about the next step in finalizing and adopting the Standards. He noted that as a member of the ABA Committee on Jury Standards there is Committee interest in adoption of the ABA Standards, upon which these standards are based. He said that some states have adopted the Standards for use in managing their jury systems. Staff noted that aside from Administrative Rule 9, which broadly governs development of the jury selection plan, there is no formal jury management structure in North Dakota. For example, he said, Minnesota has adopted several court rules implementing a number of standards similar to those currently under review.
It was moved by Judge Medd and seconded by Judge Kerian that the revised Standards Relating to Juror Use and Management be approved and recommended for adoption.
Ted Gladden wondered why it should not be recommended that the Standards be adopted as court rules. Doing so, he said, would provide much needed formal and uniform guidance. For example, he said Standard 7 would provide valuable direction on the issue of disclosing juror information. Also, he said, a formal rule implementing Standard 11 governing the qualification form would be helpful in ensuring the use of a standard form.
Judge Holte agreed there is a need for the Standards to be adopted in some formal manner so there is visibility and awareness of the Standards and their application. Ted Gladden suggested the possibility of recommending that the Supreme Court adopt the Standards and, if adopted, refer them back to the Committee for development of appropriate rules. Staff said rules implementing the Standards would likely not look much different than the current Standards, so there may not be much gained by requesting referral back to the Committee for the development of rules. Judge Ketterling suggested the Committee could recommend that the Supreme Court adopt the Standards and incorporate them into Administrative Rule 9.
Judge Holte observed, and Committee members agreed, that since the Committee is now a committee of the Judicial Conference there should be a report and recommendation to the Conference first.
The motion carried unanimously.
Judge Medd inquired whether the Standards, if adopted simply as "standards", would have a different status than if adopted as formal rules. Staff noted that the Supreme Court has adopted the Standards for Imposing Lawyer Sanctions, albeit as "guidelines". The Standards, he said, are published in the rule books and are routinely used when determining lawyer discipline. One alternative, he said, would be for the Committee to recommend that the jury Standards be adopted and incorporated as an Appendix to Administrative Rule 9, much in the manner suggested by Judge Ketterling. The Committee, he said, could also propose amendments to AR9 to provide that the administration and management of the jury system must comply with the Standards incorporated as an Appendix. Taken together, he said, these steps could likely achieve a formal status for the Standards without adoption of each standard as a formal court rule.
It was moved by Judge Kerian, seconded by Ted Gladden, and carried unanimously that the Standards be recommended for incorporation in Administrative Rule 9 as an Appendix, that Administrative Rule 9 be amended in the manner described, and that the proposal be prepared for presentation to the Judicial Conference.
Staff noted that the Standards will require some non-substantive revisions to delete extraneous provisions and prepare the Standards in a finalized form.
Chair Holte said the proposed amendments to Administrative Rule 9 and the finalized Standards will be briefly reviewed at the Committee's August meeting before distribution to Judicial Conference members.
Juror Harassment - Draft Legislation
At the request of Chair Holte, staff provided background and a summary of Attachment D (June 8, 2000) - draft legislation regarding juror harassment. Staff said many states have statutes similar to North Dakota's which prohibit influencing, through harassment or other means, the official action of a juror. Fewer states, he said, have provisions addressing the harassment of jurors after the trial has ended and because of the verdict returned by the jury. He said the draft amendments to Section 12.1-09-04, North Dakota's juror harassment statute, are based on an Illinois statute. That statute, he noted, was recently amended to also prohibit the harassment of witnesses and guardians ad litem who participate in court proceedings. The draft legislation, he said, would establish a class A misdemeanor penalty for the direct or indirect communication with a juror with the intent to harass the juror because of the verdict returned by the jury and in a manner that causes mental anguish or emotional distress or threatens injury to the juror or juror's property.
Judge Medd suggested the reference to causing "mental anguish or emotional distress" might be too vague. He recommended that the language be changed to refer to "in a manner that intimidates" the juror.
It was moved by Judge Medd, seconded by Judge Ketterling, and carried that the draft, with the recommended change, be approved for recommendation to the Judicial Conference. Judge Kerian voted "no".
Chair Holte said the approved legislation will be included for informational purposes in material for the next meeting, along with the approved Standards. He said the Committee at its next meeting would determine how and when to distribute the proposals to the Judicial Conference for review by conference members before the Conference's November meeting.
Staff recalled that the Committee's discussion of juror harassment was part of a larger discussion of issues related to juror confidentiality and release of juror identifying information. He said the National Center for State Courts is currently completing work on a juror confidentiality project that is intended to provide guidelines and recommendations for state courts in addressing these issues. He said the National Center position paper, when completed, should be of assistance to the Committee in completing its own review of juror confidentiality issues.
Analysis of Juror Utilization
Chair Holte called on Waldemar Kowitz, Administrative Assistant for the Northwest Judicial District, for a presentation concerning his analysis of juror utilization in North Dakota - a project completed in fulfillment of the Court Executive Development Program. [See Attachment E (June 8, 2000) for the Project Report Executive Summary and Recommendations].
Mr. Kowitz explained that his analysis was undertaken in light of ABA Jury Management Standard 13(b) [similar to the North Dakota Standard], which recommends that courts should determine the minimally sufficient number of jurors needed to accommodate jury trial activity. The question, he said, is how to accomplish that objective in a rural state like North Dakota. He said while the current, quarterly jury utilization report is somewhat useful for comparative information on jurors used throughout the districts, it is limited in its predictive value. That is, he said, more useful information would be that which informs a judge or clerk about how many prospective jurors should be called in a given case. He said his project is intended to provide that kind of information. Ideally, he said, the most efficient juror summoning process in a larger urban court may be one that limits the number of prospective jurors called to 10% more than the number used. In a rural state, he said, the percentage may be higher based on local needs, but the objective is to arrive at a percentage that minimizes the number of excess jurors summoned. Additionally, he said, rather than compare juror utilization among judicial districts, it would be most useful to use a county-based comparison, which provides a more accurate method of predicting juror requirements.
Judge Holte noted that in Grand Forks - Northeast Central Judicial District - multiple juries are selected on one day, while in the Northwest Judicial District the jury is selected on the day the trial begins. He wondered whether the different practice in Grand Forks affects the juror utilization rate. Ted Gladden observed that the Grand Forks practice is limited to criminal trials and, additionally, the late settlement rate in criminal trials is low. These two factors, he said, tend to contribute to more efficient juror use.
Judge Holte said there is a concern that too strictly limiting the number of jurors summoned will result delays because after peremptory and for cause challenges the judge may be faced with having too few jurors to complete the panel. He said awareness of local circumstance and historical practice limit this possibility, but it is a concern nevertheless. Mr. Kowitz explained that through a frequency analysis the margin of error can be reduced significantly by tracking the number of jurors actually used in various trials over time. The analysis can, he said, indicate the percentage of trials that would likely be covered when calling a certain number of jurors.
In summary, Mr. Kowitz said it is possible by accurately analyzing juror use to develop a selection process that is efficient and cost-effective and ensures that most trials are covered by summoning a sufficient yet not extravagant number of prospective jurors, which also minimizes disruption in the lives of prospective jurors.
Chair Holte suggested Mr. Kowitz distribute his complete Project Report to individual Committee members. He said the Committee would consider the Report recommendations further at future meetings.
Chair Holte drew Committee members' attention to Attachment F (June 8, 2000) - a letter from Judge Lee A. Christofferson outlining his proposal for an increase in juror pay, which suggests an increase to $50 per day after the first day. He noted that Judge Christofferson also suggests that increasing the daily juror fee may also offset the need to consider such things as reimbursement for daycare expenses. He observed that nationally the recommendation has been to increase juror fees to the $40-$50 per day range. In some jurisdictions, he said, jurors are not paid unless selected for actual jury service and then, once selected, are paid at a higher rate.
Ted Gladden said Jana Thielges, Director of Finance, had preliminarily estimated the fiscal impact of increasing juror pay to $50 after the first day as being approximately $350,000 per biennium.
Judge Ketterling suggested that juror pay should at least be equivalent to the minimum wage.
Ted Gladden observed that a level of savings could be achieved by more efficiently managing juror use and those savings could offset the cost of increased pay. Additionally, he noted that some jurisdictions pay a higher daily rate starting with the third day of jury service.
Deb Simenson said the Burleigh County clerk's office does not receive many complaints from jurors that the pay is inadequate. Judge Holte said that in Ward County juror pay is an issue cited on nearly every juror questionnaire returned after a trial.
Judge Medd agreed some method of addressing juror pay should be considered. He said the current rate of $25 per day is clearly inadequate for nearly everyone that must lose a day's work to serve as a juror.
With respect to reimbursement of daycare expenses, Ted Gladden said Minnesota adopted such a practice and the political response was very favorable. However, he said, there is an administrative burden in that affidavits must be filed, income levels must be established, and eligibility for reimbursement must be determined. He suggested the Committee should review various alternatives regarding juror pay and daycare reimbursement at the next meeting.
Judge Medd noted that compensation for bailiffs was recently increased to the minimum wage or $25 per day, whichever is greater. Ted Gladden said the bailiff increase should be kept in mind when considering a possible increase in juror compensation.
Chair Holte said the Committee would continue discussion of the issue at the next meeting.
No further business appearing, the meeting was adjourned at 11:45 a.m.
Jim Ganje, Staff