Members Present Hon. Donovan Foughty Leann Bertsch Birch Burdick Scott Davis Sally Holewa Robin Huseby Ulysses Jones Dr. Leander McDonald Corey Pedersen Brad Peterson for Jim Fitzsimmons Bruce Quick Anthony Weiler
Members Absent Prof. James Grijalva Dean Kathryn Rand Hon. Steven McCullough
Guests Teri Evanson Bob Gordon Linda Isakson Randy MildenbergerRoss Munns Mike Sampson Larry Zubke
Staff Andrew Frank
Call to Order: 10:10 a.m.
Members introduced themselves for the benefit of those who were unable to attend the
The Committee discussed the September 25 minutes. Robin Huseby moved to approve
the minutes without revision. Birch Burdick seconded and the motion carried
Chairman Foughty noted that many guests were present to discuss the PASSPORT
issues. The Committee modified the agenda to address that recommendation first.
Civil Justice Recommendation 9: PASSPORT Protection Order Judge Foughty provided a brief overview of the National Center for State Courts (NCSC)
PASSPORT initiative. NCSC has been pushing this initiative in order to fully implement
the purpose of Federal Law that domestic violence protection orders receive Full Faith
and Credit across state boundaries and Indian nations. The PASSPORT document is a
standard form that can be placed on a protection order to indicate to officers that it should
be enforced. Over thirty states and a number of Indian Tribes, including Standing Rock
Tribe, have adopted the PASSPORT project.
Larry Zubke discussed technical issues surrounding implementation, which could occur
in one or two steps. Because the proposed cover sheet is a separate document from the
computerized protection order, the first step would be to adopt the sheet for use by law
enforcement. The current cover sheet can be sent to law enforcement as a fax, though
this usually does not happen. The first implementation step would replace this document
without integrating it into the computerized protection order. A potential second step
would integrate the cover sheet into the order. This would be a more long-term, costly
change, modifying several different computer systems, including CJIS. Mike Sampson
said that clerks fax the current cover sheet to local jurisdictions, not to other counties.
Information must go through BCI systems to get beyond the local jurisdiction. These
systems would require the same information in a different layout.
When converting from a temporary to a permanent order, clerks edit the document based
on the judge’s changes. The document then goes to CJIS, BCI, and FBI. Members asked
how documents from Tribal Court judges would enter into this process. Mike Sampson
said that the clerk could fill out the document fields required for a valid order in the state
system. Sally Holewa said the courts should look at adopting this practice. Members
suggested that Tribal Courts could send protection orders to the Attorney General’s
office to be distributed through CJIS and BCI systems. Randy Mildenberger and Teri
Evanson indicated that this is not current practice, but could be adopted.
PASSPORT implementation will require a lot of communication among different groups.
Chief Judge Delmore at Standing Rock is already working with PASSPORT, so he would
need a line of communication for orders to be enforced outside of the reservation.
Requests for this development should go to Judy Volk at BCI and copy Sheriff Thomas.
Linda Isakson said that members should also contact Turtle Mountain since PASSPORT
has already been adopted there.
Teri Evanson said that the Attorney General’s office is tasked to be the repository for all
protection orders. She said that indexing tribal orders at CJIS would allow anyone with
access to CJIS to access the orders. Indexing would involve the same processes used for
the state courts and would define a new avenue to get information to AG and BCI offices.
Members noted that if such a path were created for domestic violence protection orders,
it could eventually be expanded to include other orders. Sally Holewa said that other
orders lack a Federal requirement for Full Faith and Credit. In order for a state court to
enforce tribal court orders and vice versa, orders would have to be recognized, which is a
very different process on how those orders would be enforced.
Members discussed the issue of communicating protection order information back into
Indian Country from the state system. Members said that state radio and CJIS would be
the main lines of communication. Bob Gordon said CJIS access would be ‘hit or miss’
for tribal law enforcement and BIA. These groups are not necessarily connected to state
information systems, and this is a deficiency in ensuring Full Faith and Credit.
Members asked whether enforcement of protection orders would occur in the case of
state protection orders on reservation lands. Judge Foughty said that the situation would
be reversed if the tribal court has jurisdiction of the individual, but there are additional
jurisdictional limits on reservations. However, extradition is an independent process.
Courts can choose to extradite if there is an agreement between the jurisdictions.
Teri Evanson noted the substantial training component required for law enforcement
officers that would be required for successful implementation. The current protection
order has most of the cover sheet information at certain points in the document, but
PASSPORT would present standard elements up front, on the cover page, to provide a
clear indication of the order’s validity for law enforcement. Linda Isakson said that
warning language is included on the cover sheet informs the respondent that the order is
enforceable across tribal lands as well as in state jurisdictions.
Sally Holewa noted that PASSPORT is intended to work between different states as well
as state and tribal jurisdictions. She suggested members could request PASSPORT on
CJIS Agenda. Judge Foughty said that members should request the Administrative
Council include PASSPORT on their agenda. Bob Gordon said that there could be a
demonstration of the CJIS portal at this meeting. Members noted that the Committee can
advocate methods to include tribal protection orders in the system so law enforcement
can identify and enforce them.
The Committee agreed to move forward at the Administrative Council and meet with
Tribal Court judges and the Attorney General. Integration of systems should be the
major goal for future actions.
Access to Courts Recommendation 1: Jury study Ross Munns provided an update on the jury master list study. He provided answers to
questions that arose during the July 25 meeting. First, state ID card holders are included
in the lists of drivers’ licenses holders that are collected for the lists. Second, he
indicated that the the Committee can modify existing computer programs to perform the
jury study at no cost.
Ross Munns said that the Committee should determine the actual language of the survey
and its attached explanation. The study period should be limited to one year. Judge
Foughty noted that many North Dakota countries may not have any jury trials in one
year. Ross Munns said that the study period could be lengthened, but administrators
agreed that the collection should not be made permanent. Ideally, data would be
sufficient for analysis by county, unit, statewide, and date. Dr. McDonald said that if the
study did not find equal representation after data collection, tribes might be more open to
providing lists to allow for expansion of the state master lists.
Members discussed whether to provide the survey on a separate sheet or on the actual
jury form. According to state law, recipients must answer and return the questionnaire.
Brad Peterson said that language to that effect on the questionnaire could confuse people
into thinking that survey question is required. Members said that the survey question
should appear below the signature line. The survey should include a clear explanation of
the purpose and voluntary nature of the survey in addition to the single demographic
question. Ross Munns said this language could also be added online.
Ulysses Jones suggested that most minorities would choose not to answer the question
and that using a separate sheet would probably increase the likelihood of minorities
answering. Members suggested that using a separate sheet might lower return rates,
though Staff indicated that non-returns could be calculated. Ross Munns added that the
computer system could record non-response and non-returns. Clerks could record these
instances during routine data entry of other required data.
Anthony Weiler asked whether information would be available to attorneys. Staff said
that the Race and Bias Commission used a separate sheet because of similar concerns.
Sally Holewa said that risk is minimal because race will be clearly evident at the voir dire
stage and Batson Challenges are available to deal with race-based elimination of jurors at
that point. Attorneys have no influence on the selection process prior to voir dire.
Judge Foughty asked for a motion to allow court administrators to implement a survey
with the following characteristics: containing language from the Race and Bias survey,
modified as appropriate; appearing beneath the signature of the main jury questionnaire
form; and running for a duration of approximately one year, unless lack of data requires a
longer period of time. Anthony Weiler moved to adopt the motion. Robin Huseby
seconded and the motion carried unanimously.
Sally Holewa indicated that implementation should be complete prior to January, 2014,
with a target of November. Judge Foughty said that additional input on language or other
issues should be provided to Sally.
Criminal Justice Recommendation 6: Evidence-Based Sentencing Leann Bertsch provided an introduction on evidence-based sentencing. Evidence-based
tools can be used at the pretrial level and at sentencing. Risk assessments support
decision makers by providing them with objective information. Assessments only
provide information, and do not replace individual discretion. In North Dakota, pre-sentence investigations (PSIs) are developed after administering the LSI-R, but judges
use PSIs on an infrequent basis. Bruce Quick said that probation staff occasionally
complete PSIs at the outset of the case, but other states provide them more frequently.
Staff addressed several points from the 25 July meeting. The Committee received basic
data on jail populations from the Burleigh County and requested similar data from Cass
County, which is pending. In addition, several meeting handouts were provided in
answer to member questions. One concern was whether objective instruments correlate
risk factors with attributes more common to minorities, exacerbating existing disparities.
Research indicated that there are few relevant studies in this area, but existing studies
show that racial and ethnic disparities can increase with the use of objective tools. These
results occur when courts adopt tools without local validation. This problem can be
addressed by validating the tools by testing them with local populations.
Leann Bertsch described a model risk-assessment training curriculum from Iowa, a six-hour program designed to be presented by a corrections official and a court official.
Program format includes breakout groups and scenarios that provide hands-on use of the
assessment tool. The Iowa program, which relies the LSI-R, has been well-received by
the judiciary. Iowa administrators found that prosecutors required the most education of
all participating groups for effective implementation of assessment tools. North Dakota
also uses the LSI-R, which has certain limitations at some stages of assessment (i.e. risk-assessment questions on “known associates” are of limited use for individuals who have
been in long-term incarceration) in addition to a variety other instruments, including
clinical instruments. LSI-R has been effective in the areas of parole and probation.
Members agreed that early use of assessment tools could inform bail decisions. If an
individual cannot make bail, that person tends to be more willing to make deals without
consideration of factors such the strength of the state’s case. Robin Huseby said that this
is a common occurrence.
Leann Bertsch said that full pre-sentence investigations could allow a wider range of
options in between issuing bonds or imposing jail time. Members agreed that a
recommendation should be developed for a pretrial system that would allow courts to
keep individuals out of jail if they are not particularly dangerous. This system would
incorporate objective assessment tools.
Sally Holewa noted that Minnesota has an expectation that people will be summoned in
rather than arrested and held for minor offenses. Most actions in North Dakota appear to
begin with an arrest. Minnesota courts require a summons if there is no danger of harm
or if there is likelihood that the defendant will fail to respond to a summons. If a
defendant does fail to respond, the court issues a warrant.
Sally Holewa asked what actions the Committee should undertake. Judge Foughty said
that one recommendation might be for education programs on pretrial services for trial
judges. He suggested the Committee look into activities in other states and investigate
what could be adapted for North Dakota.
Juvenile Recommendation 2: Detention Screening Tool Corey Pedersen presented information on the Juvenile Detention screening tool. This
tool has been used since 2010 in Burleigh and Morton County. The Police Youth Bureau
(PYB) in Bismarck and Mandan fills out the screening tool for arrested juveniles, and
this helps determine decisions to detain. Mark Martin has provided several assessments
of the program since its inception. Corey Pedersen described some of the data from the
Martin 2012 study, and confirmed that the arrest rate has increased while detention rate
has fallen. He said that an upcoming meeting will evaluate the instrument and outcomes
to decide whether the tool should be used statewide.
Corey Pedersen answered questions about the screening tool. He said that time for
completion of the screening tool is about five minutes. For the purposes of the screening
tool, law enforcement makes the determination of a felony based on the citation. When
the citation differs from the ultimate charge, the determination is re-evaluated at the
hearing. Such re-evaluations would probably not use the screening tool. The only recent
change on the tool was a reduction of analysis of prior offenses from two years to twelve
months. There is some difficulty with PYB access to histories outside from individuals
outside of Burleigh and Morton Counties, but results are checked and modified based on
information law enforcement may not have had at the time of the decision.
The screening tool used in North Dakota was adapted largely from an Iowa program.
The instrument has not been validated, but was modified to comply with North Dakota
definitions and requirements. Validation is an eventual goal, but the general sense is that
there is a correlation between the use of the tool and reduction in detention. There
appears to be no dramatic increase in failures to appear.
Sally Holewa discussed including juvenile data into the CJIS database. Currently, the
way the law is written that such information probably cannot be made available to law
enforcement. The situation may have to involve a good faith attempt to perform the risk
Judge Foughty noted that there is a lot of data on juveniles with regard to race. Native
Americans are disproportionately placed in detention. Significant studies have been
completed analyzing to juvenile contact in Burleigh and Cass counties. Much of this
work has been completed by the North Dakota Association of Counties Juvenile Justice
State Advisory Group.
Leann Bertsch said that jail or prison time has been shown to negatively affect juveniles
and increases the risk for future offending, and this is another reason to lower juvenile
rates. Data indicates that holding juveniles and adults pretrial not only increases risk
level but also negatively affects the success of the case. Corey Pedersen said that
programs seek to avoid compounding damages, placing many children in house arrest
with parents. He noted that expansion of the detention tool to other units would depend
significantly on community philosophy. Use of the tool creates a mindset that the proper
response for minor juvenile offenses is diversion.
Judge Foughty said there is often difficulty finding custodians for juveniles. This
situation leads to detention of juveniles for minor delinquent acts, which ends up being
the easier option. Leann Bertsch added that Federal money is drying up in this area.
Scott Davis said that expanding Youthworks or similar programs would provide another
intermediary level between school administrators, parents, children, and the law,
especially on reservations. Many times there is no capacity to provide assessments for
youth and no resources available to keep them in their communities. Brad Pederson said
that Youthworks provides many programs, such as attendant care and shelter care, but
they are a nonprofit rather than a licensed foster facility. The group provides short-term
resources, and cannot take the kids directly after a court issues an order.
Reservations generally need longer-term placement with service availability. Many
times the main problem is the lack of ability to provide an assessment for juveniles.
These problems are even more difficult for Tribal Courts, and lack of services
compounds them further. If there were available space to house an individual for ninety
days, then assessments, treatment, and re-unification would be possible. In addition,
grants for non-profits have become unavailable from Federal sources.
Juvenile Recommendation 3: YCAP Update Corey Pedersen provided information on the Youth Cultural Achievement Project
(YCAP). The program is located in Burleigh and Morton counties, but serves youth all
over the state. The program traces back to the Martin studies on disproportionate
minority contact and operates with several goals in mind. Goals include: keeping at risk
Native American youth out of child welfare and the juvenile justice systems, ensuring
that those Native American youth who enter the system receive the least-restrictive
services, preventing out-of-home placement, and creating and enhance cultural
programming for at-risk Native American youth. The program is funded from legislation
to the Supreme Court and costs approximately $100,000 per year. Currently, YCAP is
trying to develop an after-school tutoring program for Native American high school
students, which would involve hiring a licensed teacher.
YCAP uses a ‘cultural identity scale’ to assess appropriate approaches for youth and
family. This scale identifies how much cultural or Tribal involvement families have.
One program, ‘Keeping Culture Alive,’ brings speakers in from different groups in the
state for monthly presentations. Corey Pedersen noted that there are several populations
in Cass with unique cultural needs. Lutheran Social Services has received grant money
for a program on disproportionate minority contact in Cass County. More information
will be available on this program as it develops.
Members asked about general planning in the area of juvenile justice and whether YCAP
could be expanded. Corey Pedersen said that the Committee needs to identify areas we
can expand to and explore program needs. This would involve approaching community
leaders in different areas to determine specific needs. Judge Foughty said that many
local social services in Benson County meet monthly. He suggested providing
information to the group to see if they can foster something. He and Dr. McDonald
agreed that members can speak with Tribal Councils who could direct and coordinate
from that level.
Self- and Limited-Scope Representation and Demographic Background Staff presented general materials on self-help and limited-scope representation that were
provided prior to the meeting. For the benefit of members who had not participated in
the Race and Bias Commission, staff described the intersection between poverty and race
in North Dakota, which was the primary reason for Race and Bias focus on the area.
Scott Davis related examples of individuals unable to find attorneys to provide services.
Robin Huseby said that the new Citizen Access Coordinator position was developed to
support self-help litigants, but added that the position will be overwhelmed. A large
number of people are not served by the State Bar Pro Bono, Indigent Defense, or Legal
Services of North Dakota (LSND), in part because of a mismatch between needs and
available resources. She said that LSND funding has been cut while need has increased.
Anthony Weiler said that the State Bar pro-bono program serves only about 10% of those
who seek services, with most potential clients coming through LSND. He asked Scott
Davis and members for a list of areas of need to aid the Bar Association’s work in this
area. Judge Foughty said that family law issues are most common for self-represented
litigants. Members said there is a need to follow-through to promote unbundling.
Linda Isakson said that immigration law is one area where need is particularly high
because of the small number of pro-bono attorneys with expertise. Members said that a
program should be established to address this area. They noted that the LSND
immigration program has been cut substantially.
Judge Foughty directed members to continue to look at recommendations, especially
those within each member’s area of expertise, to determine what directions to take and
what to request through the MJI Committee. The Committee is reviewing information in
a number of areas, but also needs to act in these areas or forward recommendations to
other groups that can take action.