Justice William A. Neumann, Chair
Judge James Bekken, Southeast Judicial District
Jess Cooper, GNDA
Joel Gilberston, Independent Community Bankers
Rep. Kathy Hawken
Dennis Hill, ND Assoc. of Rural Electric Coop.
Cynthia Mala, Exec. Dir., Indian Affairs Commission
John Risch, Legislative Director, United Transportation Union (ND)
Connie Sprynczynatyk, ND League of Cities
Sandi Tabor, SBAND
Mike Unhjem, Blue Cross/Blue Shield
Sister Thomas Welder, University of Mary
Mike Jacobs, Grand Forks Herald
Max Laird, ND Education Assoc.
William Marcil, Forum Communications
Sen. Tim Mathern
Dick Weber, Past President, ND Mental Health Association
Chair Neumann called the meeting to order at 10:00 a.m. and drew Committee members' attention to Attachment B (December 7, 1998) - Minutes of the November 20, 1998, meeting.
IT WAS MOVED BY JESS COOPER, SECONDED BY MIKE UNHJEM, AND CARRIED UNANIMOUSLY THAT THE MINUTES BE APPROVED.
At the request of Chair Neumann, staff briefly reviewed the issue categories and subsidiary issues identified by the Committee at its November 20, 1998, meeting [Attachment D (December 7, 1998)]. Staff also distributed a copy of a letter submitted by Max Laird, who was unable to attend the meeting, and an article from Judicature magazine describing an effort in Wisconsin to gauge the level of public trust and confidence in that state's courts. Copies of the letter and article are attached as an Appendix.
Committee members then turned to a discussion of the issue categories and subsidiary issues identified at the November 20, 1998, meeting and the priority of importance to be given to each issue.
Barriers to Public Access
Chair Neumann drew attention to Issue Category I - Barriers to Public Access to the Courts - and requested comments concerning the priority of issues identified in this category.
Betty Mills noted the distinction between important issues that may be hard to solve and those that may have an easy, or relatively easy, answer. For example, she said Issue I concerning the use of voice mail telephone systems in the district courts should be fairly easy to address. On the other hand, she said, determining how best to address the fear factor - Issue B - could be a significant task. The ease or difficulty of solving a particular issue, she said, may play a role in determining the priority the issue is given.
Mike Unhjem suggested that Issues B (fear factor), C (complexity of court procedures), and D (access to representation) are the most compelling issues. Issue D, he said, also implicates Issue A (costs of litigation, etc.).
Stan Lyson observed that Issue Category I appears most closely directed at operation of the courts in the civil context, but some issues - particularly Issue B (fear factor) - also have application in the criminal context.
Sister Thomas Welder suggested that "costs to change the system", as contained within Issue A should be included in Issue E, which concerns system underfunding and the effect of shifting costs.
Mike Unhjem said Issues E, G, H, and I could be considered general system administration issues and categorized together.
Marlene Brisson said Issue D (access to representation) is, from a lay person's perspective, a crucial consideration. She said attorneys are needed for people to effectively participate in the legal process and the availability of legal representation assists in alleviating fear of the system.
In response to a question from Chair Neumann, Committee members agreed that Issue D should have a high priority. Judge Bekken observed that once Issues A, C, and D are addressed, then the fear factor (Issue B) will become less of an issue.
Mike Unhjem wondered whether access to representation as an issue is perception or reality in North Dakota. He inquired whether a survey has been conducted to determine if access to representation is, in fact, a problem. Justice Neumann responded that several states involved in public trust and confidence initiatives have conducted surveys to gauge the extent and nature of public concern about the judicial system. He said there may be an opportunity to conduct such a survey in North Dakota as the Committee moves through its consideration of issues.
Marlene Brisson emphasized that, in addition to cost as a factor in access to representation,
the task of simply finding the appropriate attorney is daunting for many people. It is important, she said, for the public to have an effective way of locating an attorney that is best suited to their case.
Cynthia Mala said the Indian Affairs Commission frequently receives calls seeking assistance in locating legal representation. The issue is one of money and the inability to pay for an attorney; and it is a reality for many in the native American community and for low income people.
For purposes of discussion, Connie Sprynczynatyk suggested the following barrier types: "Gateway" barriers, which would include Issues B, C, E, F, and G; "Representation" barriers, which would include Issues A, B, C, D, and G; and "Physical" barriers, which would include Issues H and I. She noted that some issues are shared among barrier types, but the division into types would set general areas for discussion. Committee members agreed.
Bias in the System
Justice Neumann observed that if there is to be trust and confidence in the judicial system, the public must have a secure feeling that there is no bias in the system. Otherwise, he said, any other changes the judicial system undertakes will likely achieve little.
Mike Unhjem wondered whether the perception of bias grows out of the access to representation issue.
Marlene Brisson said bias based on gender, which is included in Issue C, is a real issue. There is a perception, she said, that women do not enjoy equal protection under the law, particularly in the area of domestic violence. Additionally, she said, the majority of the poor are women and bias may then manifest itself not only with respect to gender, but also economic status.
Yvonne Kroll observed that the Judicial Conduct Commission, of which she is a member, receives complaints against judges which allege bias based on gender. Interestingly, she said, some complaints allege bias on the part of female judges against men. Also, she said, there is sometimes a perception that a judge was not fair if the judge had experienced a personal problem similar to that which is the subject of a judicial proceeding. She said she does not recall a complaint alleging bias based on race, ethnicity, or cultural difference.
Connie Spryncznatyk said there are two points upon which to focus with respect to bias. The first, she said, is that the system is built to be fair, without regard to a person's status or station in life; the second is the matter of bias on the part of people within the system. With respect to the latter, she said, education is the most important factor.
Cynthia Mala observed that Native Americans do not trust the dominant culture's judicial system. That distrust, she said, is integrally linked with the broad, historical experience of native Americans with the courts and government in general. Mike Unhjem inquired whether the distrust is of the system itself or the people who administer the system. Cynthia Mala responded that the very nature of the adversarial process is foreign to Native American culture, and as such the judicial system is perceived as threatening and unresponsive to cultural differences.
Justice Neumann suggested, and Committee members agreed, that systemic bias and personal bias be included as issues to be discussed.
Process - How the System Works
John Risch questioned whether, in an essentially mobile society, access to the courts in rural areas is a priority issue. Representative Hawken agreed there is access. She observed that, for the most part, people cannot walk to school, to college, or to the courthouse. But, she said, people still want to and not being able to is perceived as being denied access. The dilemma, she said, is that the level of public funding is not available to provide the kind of access that people had in the past. Stan Lyson observed that district courts are not perceived as being as accessible as county courts were.
In response to a question from Connie Spryncznatyk, Stan Lyson said there are delays in obtaining judicial services, particularly in criminal matters, because a judge is not located in a particular county.
With respect to Issue D concerning caseload, Mike Unhjem said it is not possible to establish a priority for this issue without adequate data. He said general information indicates there is not a backlog of cases. The important issues in this category, he said, are Issues A, regarding the lengthy and complex process, and E, regarding lawyer and client abuse of the process and judicial unwillingness to control the abuse. Committee members agreed that Issue D concerning caseload should be deleted as a priority issue.
With respect to the lack of uniform practices and procedures (Issue C), Stan Lyson said procedures and forms that differ from court to court are particularly troublesome in the area of domestic violence. Courts, he said, should have similar procedures so that law enforcement, lawyers, litigants, and others requiring judicial services know what to expect.
Integrity of the Judiciary and the Judicial Process
Jess Cooper suggested this category could be deleted as an area of concern in North Dakota, or at least moved to last in the list of priority of categories.
Yvonne Kroll observed that when the Judicial Conduct Commission receives a complaint, the first inquiry is whether the judge violated the Code of Judicial Conduct or a statute. Most complaints, she said, are based on innuendo or suspicion or exhibit dissatisfaction with the outcome of a case. Consequently, she said, most complaints are dismissed by the commission.
Representative Hawken said that to the extent there is concern about the quality of the judiciary, it may be due to the public simply not knowing who the judge is. Betty Mills agreed and said restrictions on what judges can do or say during elections, for example, only complicate the public's understanding of the judiciary.
Caring for Society
With respect to Issue A - criminals released on technicalities, Stan Lyson suggested the issue should be deleted since judges should not be blamed for applying the law. Jess Cooper noted, however, that this is an issue that tends to affect the level of public trust and confidence in the judiciary. Connie Sprynczynatyk noted that the judge is often the last step in the process and, therefore, is the focus of blame. Committee members agreed there is a perception in this area that affects trust and confidence, but the issue is not one of first priority.
With respect to Issue C, Committee members agreed inadequate or ineffective responses to certain kinds of cases is the most pressing issue in this category. Committee members also agreed that Issue A - criminals released on technicalities ( a perception) - should be moved to the bottom of this category of issues.
Failure of Education - Decline in Civic Literacy
Justice Neumann reiterated that it is not necessarily the educational system that is at fault; rather it is a question of the amount of acquired knowledge about government that is retained as adults. Representative Hawken said students receive general information about the structure of government, but there may not be sufficient specific understanding about how that information relates to the role and function of different court systems.
Mike Unhjem observed, and Committee members agreed, that issues identified in this category are in generally the right order of priority. It was agreed that "media misrepresentation", as included in Issue D should be moved to Issue Category IX - Impact of the Media.
Justice Neumann suggested, and Committee members agreed, that Issue E concerning information about the courts from the courts should be considered a possible solution.
Mike Unhjem said perception is the key factor in most of the issues identified in this category and perceptions about lawyer conduct are generally borne out of a lack of understanding of the lawyer's role and the ethical standards that govern lawyer conduct. Education, he said, is the only effective way of countering the negative perceptions.
Joel Gilbertson suggested, and Committee members agreed, the lead sentence should be modified to reflect that public opinion of the legal profession "is low", rather than that public opinion "has declined steadily." Sandi Tabor observed that in surveys people generally rank the legal profession quite low, but when asked to rate their personal attorney people will generally give a favorable or high rating.
Mike Unhjem said if the perceptions identified as Issues A - D were given priority based on the affect on public trust and confidence, then Issue B should be placed first, followed by A, C, and D. Committee members agreed. Connie Sprynczynatyk suggested that Issues C and D could be combined as they both concern lawyer discipline issues.
Justice Neumann observed that Issue D concerning the legal profession not policing itself is somewhat misleading. In North Dakota, he said, the Supreme Court, through the Disciplinary Board, is constitutionally responsible for regulation of lawyer conduct. Sandi Tabor agreed but said the public perception is that the legal profession is responsible for policing itself and is doing a poor job.
Perceptions of Jury Service
Mike Unhjem said his experience as a juror was very positive; the instruction booklet and bailiff assistance were very helpful. Yvonne Kroll said her jury service likewise was very pleasant.
Committee members agreed that Issues B and D concerning treatment of jurors and lack of concern about juror needs could be combined.
In response to a question from Chair Neumann concerning the priority of Issue C, Committee members agreed there may be some concern about inefficient use of juror time after summons, but the issue is likely not of high significance with regard to public trust and confidence.
Betty Mills said many perceptions about jury service are the result of a general lack of education and understanding about the role and responsibility of jury service.
In response to a question from Chair Neumann, Committee members agreed this category of issues is a fairly low priority.
Impact of the Media
Chair Neumann asked which issues in this category have the worst impact in terms of public trust and confidence in North Dakota's judicial system. Committee members agreed that Issues C (television court programs), D (negative portrayal of lawyers and the legal profession), and E ("creating" stories to fill court beat sections in newspapers) are the most troubling. There was also agreement that media misrepresentation or hype about court decisions, an issue moved from Issue Category II, is a first priority in its affect upon public trust and confidence. This issue and Issue E were also considered closely related.
Lack of Civility, Integrity, Professionalism
In response to a question from Chair Neumann concerning the priority of issues identified in this category, Sandi Tabor said judicial temperament (Issue B), which also involves civility at the appellate and trial court level, is a significant factor affecting pubic trust and confidence. Betty Mills said that simply as a reflection of the number of people involved, disrespectful treatment of crime victims seriously affects how people view the courts.
Connie Sprynczynatyk said it is difficult to conclude that one issue in this category should have a higher priority than another; they are all central to the question of public trust and confidence. Committee members agreed.
Committee members then turned to a discussion of possible methods and strategies for addressing the identified issues.
In response to a question from Chair Neumann concerning discussion approaches, Mike Unhjem suggested, and Committee members agreed, that the issue categories be arranged in the following priority for purposes of discussing strategies : I - barriers to public access; II - education; III - process; IV - lawyers; V - lack of civility, integrity, professionalism; VI - impact of the media; VII - bias in the system; VIII - caring for society; IX - perception of jury service; and X - integrity of the judiciary and judicial system.
I - Barriers to Access
In keeping with the earlier division of this category, Committee members discussed strategies and solutions for the following kinds of barriers: "gateway" barriers, "representation" barriers, and "physical" barriers.
Gateway barriers - Issues B, C, E, F, and G. In response to a question from Chair Neumann, Committee members agreed that education and more information about the courts is a key to overcoming the fear factor (Issue B). Staff observed that many court systems, in an effort to enhance public access, have simplified forms, used simpler, explanatory language in the forms, and developed different kinds of guides to provide assistance to court users in accessing services. Betty Mills suggested having a person available in the courthouse to provide directions, answer questions, and otherwise assist the public. Following further discussion, Committee members identified the following possible strategies to address gateway barriers :
1. Simplify forms and language
2. Provide information about court protocols and processes, either through informational guides or by having a person on-site to assist court users.
3. Explore technology resources (videos, kiosks, etc.)
4. Provide interpreters and an ombudsman to assist those who have difficulties
Representation barriers - Issues A, B, C, D, and G. Following discussion, Committee members identified the following possible strategies for addressing representation barriers :
1. Explore funding options
2. Provide more information about lawyers and how a lawyer can be obtained
3. Encourage more pro bono (without cost) legal services
4. Provide a simpler, more accessible system for non-lawyers
5. Explore legislative solutions
Physical barriers - Issues H and I. Following discussion, Committee members identified the following possible strategies for addressing physical barriers:
1. Eliminate automated, voice-mail telephone systems and provide personal contact.
2. Monitor the declining number of judges and the impact on availability of judicial services.
3. Conduct an analysis of judicial system resources and how the resources are allocated.
Issue II - "Failure" of education
In light of the previous discussion of this issue category, Committee members identified the
following possible strategies: educate users of the court system; provide an on-site resource person to distribute information and answer questions; and involve the judiciary in providing information to the public in a variety of ways.
Issue III - Process - How the system works
With respect to specific issues A and C regarding the length and complexity of the process and the lack of uniform practices and procedures, Committee members agreed the judicial system should strive to achieve general uniformity in practices and procedures. Sandi Tabor noted that uniformity is particularly important in domestic relations cases. Justice Neumann said length and complexity may be the result of a process that is inappropriate to certain kinds of cases. For example, he said, there seems to be general agreement that the adversarial process is unsuited to effective resolution of domestic relations disputes. Committee members agreed that if funding is available, alternatives to the adversary process for certain kinds of cases should be considered. Justice Neumann suggested the possibility of establishing a court-annexed mediation program for most kinds of domestic relations cases. He noted the establishment in some jurisdictions of community courts, which have provided a less complex, more accessible way of resolving disputes. The Navajo Peacemaker Court, he said, is another example of an alternative way of approaching the resolution of disputes.
Issue IV - Lawyers
Chair Neumann inquired how perceptions about lawyers and the legal profession which affect trust and confidence can most effectively be addressed.
Connie Sprynczynatyk said previous discussions suggested the need to ensure that judges more aggressively exert control in the courtroom and during the legal process. Sandi Tabor underscored the need to address conduct not only in the courtroom, but conduct occurring at other points in the process, such as depositions.
Committee members agreed more information and education should be provided about the lawyer discipline process to ensure public awareness of how the process works.
Issue V - Lack of civility, integrity, professionalism
Justice Neumann said this is an area in which judges, and court staff, should be encouraged to undertake some level of self-examination in an effort to understand the affect of their conduct and attitudes on civility. Committee members agreed. Sandi Tabor observed that there has been discussion of establishing an informal process to address minor issues of lawyer misconduct. Justice Neumann suggested that a similar initiative perhaps should be considered for judges. He noted that Chief Justice VandeWalle has been interested for some time in the establishment of a judicial performance evaluation program. Committee members agreed that such a program may assist in addressing issues related to public trust and confidence.
Issue VI - Impact of the media
Justice Neumann suggested that the courts, the judicial system generally, should become a better source of public information about the system. He said more information, effectively provided by the judiciary, would assist in establishing a context within which media stories can be more accurately evaluated. Judge Bekken suggested that individual judges as well should be enlisted to provide information, perhaps through community activities or newspaper columns.
Betty Mills said informational programs on television, through community access or public television, should be explored. She said it is important for the courts to use the media as a tool, rather than simply react to it.
Jess Cooper underscored the importance of educating media reporters about the judiciary and the judicial process.
Issue VII - Bias in the system
Connie Sprynczynatyk said it is difficult to conceive of how the judicial system itself could be redefined to address what might be consider "system" biases - that is, biases not based on personal conduct and behavior, but biases that are seen as inherent in the structure of the system itself. However, she said, adopting alternative methods of resolving disputes may assist in providing a different way of receiving court services for those who find the current process threatening or alienating.
Justice Neumann noted that the judicial system recently completed a study of gender bias in the courts. He suggested it may be useful to at some point conduct a similar study of other kinds of bias that may affect the operation of the courts. Committee members agreed.
Issue VIII - Caring for society
As a method of addressing perceptions of inconsistent or lenient sentencing practices, Committee members suggested that a process should be established to ensure that complete, shared case information is available to the judge so there is awareness of any related charges or other related information about a defendant when sentencing occurs.
Jess Cooper suggested that judges should provide a fuller explanation about sentencing and case dispositions. Representative Hawken agreed and said such an explanation would aid in demystifying the process of the court.
Judge Bekken suggested, and Committee members agreed, that judges, state's attorneys, lawyers, and others involved in the judicial process should routinely provide information about the process to community groups.
Issue IX - Perception of jury service
Committee members agreed it is important to explore ways of explaining the importance of jury service. Staff noted that the American Judicature Society has produced a videotape that recounts the origin and history of the jury and the importance of the jury to the effective operation of the court system. There was also agreement that information should be gathered, perhaps through questionnaires, to determine juror concerns regarding treatment, amenities, and the like. Staff said many jurisdictions have also explored ways of addressing burdens associated with jury duty, such as child care and absences from work.
Issue X - Integrity of the judiciary and the judicial process
General methods of addressing issues in this category include providing more information about judges and the affect of ethical restrictions on election activities, providing more information about the judicial discipline system, and considering the establishment of a judicial performance evaluation program.
Chair Neumann said the Committee's next meeting would likely be sometime in March; Committee members will be polled concerning possible dates. At the March meeting, issues, strategies, and priorities will be reviewed, expanded, and refined.
There being no further business, the meeting was adjourned at 3:40 p.m.
Jim Ganje, Staff