Supreme Court Front Conference Rm/ Conference Call, Bismarck
May 16, 2014
Members Present Judge Steven Marquart, Chair Judge Cynthia Feland Sally Holewa Judge James Hovey Robin Huseby Judge Gary Lee Rod Olson Monte Rogneby Lois Scharnhorst Michael Waller
Members Absent Birch Burdick
Others Present Ross Munns, Asst Court Administrator,
Unit3 Bev Stremick, Walsh County Clerk of District
Chair Marquart called the meeting to order at 12 Noon and welcomed Committee members
to the first Committee meeting in some time. He drew attention to the memorandum regarding juror
summons, qualifications, and length of service submitted by Scott Johnson, Assistant State Court
Administrator (Meeting Material, pp. 1-13) and requested Committee comments.
Sally Holewa explained that the memorandum had been prepared at her request to provide
a basis of reviewing issues related to the Jury Selection Plan (Meeting Material, pp. 18-20). She said
past practice has been for the selection plan to be reviewed about every two years, but the plan has
not been reviewed in four years. She suggested it may be appropriate to review the plan for any
possible changes. She said one component of the selection plan relates to juror length of service and
it may be time to address any issues regarding length of service. She requested that the Committee
review the issue in relation to Standard 5 set out in Administrative Rule 9 (Meeting Material, p.14)-
two days or completion of one trial; availability for service 30 days or less except in area of few jury
trials where availability should not exceed six months. She also noted ABA Standard 5 (Meeting
Material, pp. 15-17) - one day or completion of one trial; availability for service two weeks or less
with no outer limit identified.
Judge Marquart said the memorandum seems to indicate general compliance with AR 9's
Standard 5. Sally Holewa agreed and said clerks in those few counties that are not in compliance can
In response to a question from Judge Marquart about shortening the six-month outer limit
for service, Sally Holewa said six months seems to be a long period of time to expect prospective
jurors to maintain availability.
Judge Lee observed that the newly created North Central Judicial District has two small
counties (Burke and Mountrail) which have few jury trials in a given year. He said there is
substantial work for clerks in these situations to pull jury panels. He said a six month time period
may be preferable in small counties with few jury trials as it would lessen the need to build jury
panels more frequently.
Lois Scharnhorst said for smaller counties with few jury trials it may make sense to adopt the
one-step selection process (summonsing and qualifying jurors at the same time). That, she said, may
lessen the time of uncertainty for prospective jurors. (The memorandum indicates 60% of counties
use the one-step process.)
Michael Waller noted that the period of availability in Williams County is two years, which
Judge Marquart said there does not appear to be a pressing need to change the six-month time
period. Judge Feland agreed.
Ross Munns said the longer period of availability often results in clerks fielding numerous
calls from prospective jurors wondering about service. He agreed that a one-step process may help
address work- and cost-related issues.
Sally Holewa noted that the memorandum indicates that the one-step process is followed in
some counties but not all. Some follow a hybrid between the one-step process and the two-step
process (summonsing first and then qualifying later). She said one advantage of the one-step process
is that fewer people tend to be lost from the jury pool. With respect to smaller counties, she said jury
trials may not be held very often but trials are still being scheduled at the outset.
Lois Scharnhorst said the two-step process was used in the past in Morton County but the
one-step process is currently followed. She said there seems to be less work associated with one-step
and the public seems happier since there is only one day of possible service to worry about. Bev
Stremick agreed the public responds much better to a one-step process.
Judge Hovey said the one-step process works well in his area, particularly during farming
Judge Marquart noted the memorandum indicates the majority of counties follow one-day,
one trial approach for juror service. He said Standard 5(a) provides for two days or completion of
one trial. He asked whether the Standard should be modified.
Sally Holewa said a change to the Standard is likely not necessary. But, she said, there is
some uncertainty among clerks regarding what constitutes “service”, and more particularly what is
meant by “one day, one trial” for purposes of the service requirement.
Ross Munns explained that several counties, including Burleigh, use a call-in system for
those summoned to indicate whether the trial will be held. He said if the person calls in after 5 p.m.
the day before the scheduled trial and the case has settled, then the person’s service obligation has
been satisfied. In other areas, he said, a person can appear at the courthouse for jury selection and
not be chosen, but the person remains in the jury pool. He suggested the Committee could consider
whether there should be a common definition of when the service obligation is satisfied. He said
there may be local factors that may dictate that a differing approach could be used in particular
Judge Lee observed that in Ward County if the prospective juror appears at the courthouse
for selection - even if not ultimately selected, the service obligation is satisfied. Judge Marquart
agreed a similar approach is followed in Cass County but expressed concern about calling in the
night before counting as service if the case has settled. However, he agreed there may be local
considerations that work in favor of the approach.
Following further discussion, there was general agreement that what is considered “service”
is better left for county by county determination.
With respect to the service component in Standard 5(a), staff noted the standard indicates
“two days or the completion of one trial”, while Section IX of the Jury Selection Plan describes
availability as being “summoned three times, appearing at the courthouse two times, or serving one
After discussion, it was moved by Judge Feland, seconded by Judge Lee, and carried
that Section IX of the Jury Selection Plan should be modified to reflect the language in
Standard 5(a). > Chair Marquart asked whether there were other issues related to the Jury Selection Plan that
should be discussed. Sally Holewa suggested Committee members continue to review the Plan for
any possible changes or updates. She noted that Ross Munns had circulated an email before the
meeting that suggests a couple of items for consideration. She said the email would be provided for
the next meeting.
With respect to a possible legislative item, Sally Holewa said juror compensation continues
to be a topic of conversation. She noted that if any change in compensation is considered, which
would require legislation, the recommended change should be submitted soon to the Supreme Court. Judge Lee said concerns about juror compensation are regular comments when jurors are
asked about their service. He said there have been suggestions that compensation should be at least
at the federal minimum wage rate. He said his area has a very good response rate for juror summons,
and there should be a way to properly recognize that.
Sally Holewa observed that the current $50 per day rate is among the highest juror
compensation rates in the country. She noted the current differential of $25 for four hours or less on
the first day of service. One option, she said, may be to adopt a straight daily rate of $50.
In response to a question from Chair Marquart, there was general agreement to consider a
cost estimate of increasing juror compensation to a flat rate of $50 per day.
Judge Hovey suggested there should be some method of recognizing employers who facilitate
jury service on the part of their employees.
The Committee will review juror compensation information at the next meeting. Chair Marquart noted that Noon Committee meetings are scheduled for August 22 and
There being no further business, the meeting was adjourned at 1:00 p.m. ______________________________ Jim Ganje, Staff