Committee on Public Trust and Confidence
Radisson Inn, Bismarck
August 26, 1999
Justice William A. Neumann, Chair
Paul Richard, Pres., State Bar Association
Chair Neumann called the meeting to order at 10:00 a.m. and drew Committee members' attention to Attachment B (August 20, 1999) - Minutes of the March 25, 1999, meeting.
IT WAS MOVED BY DICK WEBER, SECONDED BY SISTER THOMAS WELDER, AND CARRIED UNANIMOUSLY THAT THE MINUTES BE APPROVED.
At the request of Chair Neumann, staff reviewed Attachment C (August 20, 1999) - The revised list of issues and strategies. Staff summarized the priorities identified at the Committee's last meeting with respect to Issue Categories I, and II. He said "Physical Barriers" under Issue Category I, concerning barriers to public access, is the next segment requiring discussion of strategy priorities.
In response to a question from Dick Weber, concerning implementation of court unification, Justice Neumann said the Supreme Court is required to reduce the number of judges to 42 by 2001. He said all reductions thus far had been accomplished through attrition, but the Supreme Court is now reviewing the prospect of abolishing a sitting judgeship. He said a process has been put in place by which hearings will be held in September to review those judgeships whose terms end in 2000 and which are subject to possible abolition. Dick Weber then asked whether any analysis has been conducted of the impact of judge reductions on case management and provision of services. Justice Neumann responded that the Supreme Court does have a weighted caseload study that assesses the approximate number of judges needed based upon particular caseloads. However, he said, the study is not the final answer with respect to the number of judges needed, although it does serve as a tool to be used in reviewing judge numbers. He said the weighted caseload study suggests that 42 judges are sufficient to provide judicial services if all goes well. However, he said, there may be a strain on the system resulting from changed circumstances, such as increased caseload or the extended illness of a judge.
In light of concerns associated with unification, Dick Weber said strategies 2 and 3 under "Physical Barriers" regarding monitoring the declining number of judges and conducting an analysis of judicial system resources are particularly important. He suggested combining them and giving them first priority. However, he wondered who would conduct the monitoring and analysis contemplated by the strategies. Justice Neumann responded that initially under the state constitution administrative responsibility lies with the chief justice and the chief justice would likely ask that appropriate activities be undertaken by the court administrative office.
Sen. Lyson said as a legislator he is concerned that information is not getting to the public to answer questions about perceived delay or the declining presence of judges. Also, he said, there are persistent rumors about trial centers and the centralization of judicial services. He said that during the 2001 Legislative Session it will be important for legislators to learn from the work of this Committee as there may be legislation introduced to increase the number of judges. He said law enforcement, particularly, are concerned about the perceived lack of timely access to judges. Justice Neumann observed that 2001 legislative action will not halt the required reduction to 42 judges, although it may result in creating new judgeships after the fact.
Judge Bekken observed that in reality a judge can be located, although perhaps in particular situations there may have been a problem. He said the difference in a judge being present in person as opposed to being available by telephone sometimes results in the perception that judicial services are not, in fact, available. Justice Neumann observed that judicial services may still be available, although in a different way.
Dick Weber suggested that Strategies 2 and 3 be combined and modified to read "Conduct analysis of judicial system resources and monitor how the resources are allocated in light of the declining number of judges and its impact on the quality and quantity of judicial services available". Committee members agreed. In response to a question from Chair Neumann, Committee members agreed this revised strategy should be placed at first priority.
Chair Neumann then drew Committee members' attention to Issue Category III - Process - how the system works, and requested discussion of the priority of strategies listed under this category.
Sister Thomas Welder wondered whether it is realistic to seek uniform practices as suggested in Strategy 1. Justice Neumann responded that uniform practices, although not ultimately strictly achievable, are goals to be worked toward.
Sen. Lyson wondered about the specific meaning and scope of the reference to domestic relations cases in Strategy 1 concerning establishing uniform practices. Joel Gilbertson responded that local district court rules may often establish differing procedures with respect to the management of divorce cases. Justice Neumann observed that there is also a situation in which some courts require an appearance in default divorce cases, thereby requiring additional time, while other courts allow stipulations in such cases to be filed by mail.
Dick Weber said there also appears to be an inconsistency in the handling of domestic violence cases. He said advocates know which judges may have sympathies for one side or the other and, therefore, seek out particular judges.
Justice Neumann noted that there are other groups and committees working in both of these areas, but this Committee can still identify these issues as being of concern to the judicial system.
Jess Cooper questioned the meaning of "certain kinds of cases" in Strategy 2 concerning establishing alternatives to the adversary process. Justice Neumann responded that in 1997 the Legislative Assembly provided funding for the review of alternative dispute resolution in medical malpractice cases. However, he said, there are also concerns about such alternatives in domestic relations cases as well as other kinds of cases. There are also, he said, alternatives available in private alternative dispute resolution programs. Consequently, he said, the reference to "certain cases" is intended to be general with respect to considering alternatives to the adversary process.
Dick Weber questioned whether anything of importance is gained by noting that "funding is a potential limitation" in Strategy 2. Committee members agreed the reference should be deleted. Judge Bekken wondered whether Strategies 1 and 2 apply to all four issues identified under Issue Category III. Sister Thomas Welder observed there is an overlap among issues and strategies throughout the issue categories. For example, she said, what is now the new Strategy 1 for Physical Barriers may also have application in this issue category. Judge Bekken wondered if Issue C (Finding a Judge) should be moved to the Physical Barrier section, as there is already a reference to access based on geographical location. Staff noted that Physical Barriers in earlier discussions, contemplated a concern about the need to travel to obtain judicial services, hence, the reference to access and geographic area. But, he said, access based on location does relate more specifically to process kinds of issues.
Chair Neumann requested that staff review the location of issues and strategies under Physical Barriers and Process for possible modification.
Chair Neumann then drew Committee members' attention to Issue Category IV - Lawyers, and requested discussion of priorities of Strategies 1 and 2. Committee members agreed the strategies should be listed in the order reflected for purposes of priority. Sen. Lyson suggested, and Committee members agreed, that "timeliness" should be added to Strategy 1 concerning judge control during the legal process.
Chair Neumann drew Committee members' attention to Issue Category V - Civility. He noted that the various Strategies are being discussed in one forum or another. Particularly, he said, Strategy 3 concerning establishing a judicial performance evaluation program has surfaced on more than one occasion. Dick Weber suggested, and Committee members agreed, that Strategy 3 should be revised to be more direct and proactive.
Staff noted that most jurisdictions have some kind of judicial performance evaluation program. There are, he said, basically two kinds of evaluation programs: those used to develop evaluative information for use in the retention election process, and those used to develop information about judge conduct and activity for purposes of judge improvement. He said the Supreme Court's Judiciary Standards Committee had recommended the establishment of a pilot evaluation program, which was adopted by the Supreme Court. However, he said, the pilot program did not get underway due to lack of funding and adequate support. He said the Judiciary Standards Committee recently again reviewed the possibility of establishing a judicial performance evaluation program and concluded that it was, at this time, unnecessary.
Yvonne Kroll said, and Committee members agreed, that it is important for judges to receive feedback about their performance.
In response to a question from Chair Neumann, Committee members agreed the Strategies were in the proper order for purposes of priority.
Committee members then reviewed Issue Category VI - Impact of the media. Justice Neumann said he is inclined to reverse the order of the last two strategies for purposes of priority because Strategy 3 (Educate reporters about the judiciary) appears more achievable in the short-term. Dick Weber suggested, and Committee members agreed, that Strategy 3 should be changed to refer to educating the "media", because there are many others besides reporters in the media that require information about the operation of the judiciary.
With respect to Issue Category VII - Bias in the system, Committee members agreed the strategies are in the proper order for purposes of priority.
With respect to Issue Category VIII - Caring for society, Jess Cooper wondered what Strategy 1 is attempting to accomplish that is not being done presently. Justice Neumann observed that the strategy is directed to judge behavior. Some judges, he said, take the time to understand what is happening for people who are involved in a proceeding and help those people understand why certain things are occurring. Strategy 1, he said, contemplates a more constant interaction between judges and those in the courtroom.
Judge Bekken observed there are often very few people in the courtroom at the time sentencing occurs or a case is concluded. Consequently, he said, the only information the public generally receives is the short summary provided by the media.
Dick Weber questioned the inclusion of state's attorneys in Strategy 2, which concerns judges providing information to community groups. Following discussion, Committee members agreed state's attorney should be deleted and court officers and staff included in Strategy 2.
In response to a question from Sen. Lyson concerning Strategy 3, Justice Neumann said the strategy reflects the current effort by the Attorney General, state's attorneys, and the judiciary to coordinate information available between the various systems. It is particularly beneficial, he said, for judges to have the full range of information about a particular criminal defendant when that defendant appears in court for sentencing.
In response to a question from Chair Neumann, Committee members agreed the strategies were listed in the proper order for the purposes of priority.
With respect to Issue Category IX - Perception of jury service, Committee members agreed the strategies were listed in the proper order for purposes of priority. Judge Bekken suggested, and Committee members agreed, that Strategy 1 should be revised to refer simply to concerns regarding jury service.
With respect to Issue Category X - Integrity of the judiciary and the judicial process, Justice Neumann noted that none of these strategies are aimed at "improving" integrity because the Committee had earlier concluded that the integrity of the North Dakota judiciary did not pose problems of pressing concern.
Returning to the issue of performance evaluation programs, Sen. Lyson said such programs are problematic, unless done positively and with the aim of improving performance. Justice Neumann observed that judicial performance evaluation programs in other jurisdictions usually assemble information about judges from a variety of sources to determine whether performance related issues are present. Judge Bekken said he is uncertain whether there is complete agreement on the value of performance evaluation, but would agree to its inclusion as a strategy. He agreed with the concerns expressed by Sen. Lyson and cautioned that effective performance evaluation efforts should not be confused with popularity contests.
In response to a question from Chair Neumann, Committee members agreed the strategies were listed in the proper order for purposes of priority.
Implementing Strategies - Discussion
Chair Neumann next requested discussion concerning possible methods of implementing the various strategies identified by the Committee. He said Chief Justice VandeWalle has suggested the possibility of the Committee taking on the form of a working group that could meet more often to pursue implementation. The thought, he said, is that the working group, a smaller committee of the full Committee, could then report to the full Committee and receive comments about various implementation initiatives. Dick Weber agreed that a smaller, more flexible group will be needed to be affective.
Max Laird asked how a smaller group could manage implementation of the various strategies. Justice Neumann noted that the full Committee serves in two capacities, one is to give advice to the Supreme Court or the Chief Justice in the form of a report, and the other is to implement, through a working group, elements of the report referred back to the Committee for specific action. The working group, he said, could review how other jurisdictions have addressed some of the strategies and analyze how some of those activities could be applied in North Dakota. Then, he said, the group could recommend certain programs or elements of programs to the Supreme Court.
Sister Thomas Welder suggested a draft report of the Committee's activities be prepared for review at the next meeting. Committee members agreed.
Justice Neumann advised Committee members that the Supreme Court, based in part on Committee discussion he has reported to the Supreme Court, has decided to initiate an effort to hold hearings around the state with the opportunity for questions and discussion after the hearings.
Review of Survey Instrument
Chair Neumann drew Committee members' attention to Attachment D (August 20, 1999) - The example national survey on public trust and confidence made available for use by the states. He suggested one possible change might be with respect to Question 20, which asks a question concerning voter registration. Since North Dakota does not require voter registration, he said, perhaps the question could be changed to "Have you voted recently?".
Judge Bekken suggested the survey should be clear with respect to what courts are being talked about, i.e., generally state district courts.
Max Laird suggested that, because tribal courts will be perceived differently by respondents, there should be a screening question for tribal courts. Similarly, he said, there likely should be a screening question for federal courts.
Staff noted the survey will likely be modified to draw attention more particularly to people's experiences with state district courts.
Following discussion, Committee members agreed to proceed with the survey. Staff said the survey would likely be completed by late October.
National Conference on Public Trust and Confidence - Comments
Chair Neumann welcomed Paul Richard, President of the State Bar Association, for comments concerning the recent National Conference on Public Trust and Confidence.
Paul Richard said there were widely differing viewpoints expressed at the conference, ranging from completely replacing the current system to the notion that there was nothing wrong. However, he said, a common thread was that judges must become more real and accessible to the people and bar associations have a role in supporting that effort. He noted there is a hunger for knowledge about the legal process which the Cass County Bar Association is seeking to address by funding a Legal Explorers Post. So far, he said, 248 high school students are interested in participating. In a similar vein, he said, national conference participants emphasized the need for basic civics education in grade school and high school. With respect to lawyers and their affect on public trust and confidence, he said a common observation at the national conference was that much of the problem with the legal profession is the approach of individual lawyers to their own practice. Lawyers, he said, must assure the legal profession meets the needs of the public. Currently, he said, there is a disconnect between the cost of legal services and what people can afford. One suggestion at the national conference, he said, was for some kind of limited engagement by lawyers for those in the middle class who cannot afford the full cost of legal services. He observed that people will simply go around lawyers if they cannot afford them. But, he said, self-representation is not the most effective answer. Part of the answer, he said, is to make the legal profession more accessible through other means. Many businesses, he said, have already faced this issue. For example, he said, the health care system must find a way to provide the same level of care at a lower cost or die. The legal profession, he said, faces a similar dilemma as it still follows a very traditional service delivery model. The profession must, he said, respond in effective, creative ways that ensure quality legal services are affordable and available while also ensuring the core values of the professional are protected. He welcomed the Committee's work in attempting to address issues concerning public trust and confidence and said the State Bar Association would assist in any way it can.
Chair Neumann said the next meeting would likely be in early or mid-November, depending on when the survey is completed.
No further business appearing, the meeting was adjourned at 1:40 p.m.
Jim Ganje, Staff