TABLE OF CONTENTS
Introduction and Purpose 1
Committee Process 1
Study Results 2
Issues Concerning Public Trust and Confidence and Recommended Strategies 3
Public Access to the Courts 4
Gateway Barriers 4
Recommendations 5
Representation Barriers and 6
Recommendations 7
Physical Barriers 7
Recommendations 7
Education and Civic Literacy 7
Recommendations 8
Process - How the System Works 9
Recommendations 10
Lawyers 11
Recommendations 12
Civility, Integrity, and Professionalism 12
Recommendations 12
Impact of the Media 13
Recommendations 14
Bias in the System 14
Recommendations 15
Caring for Society 16
Recommendations 17
Jury Service 17
Recommendations 17
Integrity of the Judiciary, and the Judicial Process 18
Recommendations 19
Implementation 19
Conclusion 19
Appendices
A. North Dakota Survey Regarding Public Trust and Confidence - Summary of Results
B. North Dakota Survey Regarding Pubic Trust and Confidence - Results
C. Responses to Open-ended Survey Questions
D. Committee Readings and Other Sources
The Committee on Public Trust and Confidence was established in November 1998 as part of a national project sponsored by the Conference of Chief Justices and the American Bar Association to gauge the public's perception of court systems, and to identify issues affecting the public's trust and confidence in the courts. The members of the Committee, appointed by the Chief Justice to represent a broad spectrum of interests and experience, studied and discussed numerous factors that have been cited as contributing to the decline in the public's trust and confidence in the courts. Most important, the Committee will form the basis for a long-term effort by North Dakota's judiciary to learn more about the needs of our citizens and users of the courts in the area of court services, and to determine how to most effectively meet those needs.
The Committee first met in November 1998 to review information assembled by organizers of the national project. The National Center for State Courts served as a clearing house for gathering information developed in various states through entities similar to the Committee. This information established a number of general categories of issues that were consistently present in studies conducted in other states. Numerous sub-issues were then identified within each general category.
In a series of subsequent meetings, the Committee assessed the issues and sub-issues in light of North Dakota's experience and the diverse perspectives of Committee members and established the priority of concern for various categories of issues and sub-issues. The Committee rejected some of the issues identified nationally as not being relevant to or of pressing concern in North Dakota. The Committee then identified possible methods and strategies for addressing the identified issues and considered how the strategies could be implemented and which strategies were of highest priority or could be most readily achieved over the short term.
As part of its discussion of issues affecting public trust and confidence, the Committee considered information from many sources. The Committee reviewed results of pioneering national surveys in the area of assessing public knowledge and sentiment concerning courts and court process. The Committee reviewed state survey results concerning public perception of the courts and surveys that asked litigants, the "court users", about their view of exactly "how fair, fast, and cheap" the courts should be. The Committee also considered information describing the impact of pro se litigation on the courts and outlining some of the pro se assistance programs undertaken by various court systems. Some jurisdictions have initiated ambitious projects to address public trust and confidence and the Committee reviewed such diverse programs as the court-community collaboration effort in Los Angeles County, the Manhattan Mid-Town Community Court, and numerous kinds of education efforts supported by a number of court systems. In a similar vein, the Committee reviewed information concerning the emerging theory of "therapeutic jurisprudence", an effort to engage courts more completely and proactively in a problem-solving orientation that is far different from the traditional "dispassionate, disinterested magistrate" and one that enhances court and community collaboration. The Committee also considered information on the critical link between judicial independence and the public's trust and confidence in the judicial system. See Appendix D.
Over several meetings, the Committee discussed the feasibility of conducting a survey of North Dakota residents to determine the local perspective on public trust and confidence in North Dakota courts. Two national surveys on public trust and confidence were recently conducted by the American Bar Association and the National Center for State Courts to gauge public sentiment across the nation with regard to trust and confidence in court systems. The survey results disclosed persistent themes illustrating the importance of education and information about the courts and the divergent opinion of segments of the national population about the reliability and integrity of the courts.
Following review of the national survey information and summaries of surveys conducted in other states, the Committee concluded a North Dakota survey would be appropriate and useful in determining how North Dakota citizens perceive their courts. The survey would also assist in determining the accuracy of the Committee's identification of issues and strategies. A statewide survey was conducted in October 1999 by the University of North Dakota's Bureau of Governmental Affairs. Complete survey results were delivered during the week of November 8, 1999. The Committee reviewed a summary of the survey results at its November 16 meeting. Some survey results provided support for the issues identified by the Committee. Others illustrated different facets of issues. The application of survey results is indicated throughout this Report.
The result of the Committee's consideration of accumulated information is, as outlined above, the identification of issues in North Dakota that may affect the public's trust and confidence in North Dakota courts. The issues, ranked in order of priority importance, fall into ten broad categories: public access to the courts; education and civic literacy; system process; lawyers; civility, integrity and professionalism; impact of the media; bias in the system; caring for society; jury service; and the integrity of the judiciary and the judicial process. Strategies for addressing these issues are then recommended. A method for implementing the strategies is also recommended.
The Committee identified ten categories of issues concerning public trust and confidence in the courts. The categories are set out in order of priority importance. Within each category, sub-issues are identified which are also set out in order of priority importance. Recommended strategies are then described and listed in order of importance. It is important to note that the priority listing of strategies reflects both the substantive importance of the strategy as well as a consideration concerning whether a strategy is more readily achievable over the short-term.
Public Access to the Courts
The Committee identified a number of issues that present obstacles to the public's ready access to the courts. Some of these issues are matters of atmosphere and attitude, some revolve around the availability of services and information, and some reflect the dynamics inherent in a diverse society and in a state that is experiencing significant demographic changes. For purposes of discussion, the Committee divided these issues into three conceptual categories : gateway barriers, representation barriers, and physical barriers. Gateway barriers not only hinder a clear understanding of the judicial system, but also fundamentally compromise the public's ability to use the court system effectively.
Gateway barriers include the following issues :
fear of the system and the process
complexity of court procedures and arcane, specialized language
system underfunding and costs associated with attempting to change the system
difficulties experienced by pro se litigants, non-English speakers, and those from other cultures
Survey results did not explicitly demonstrate fear of the system and the process as an issue. However, public uncertainty and fear of the judicial process have been noted in other surveys and public trust and confidence literature. The survey results did illustrate the role complexity of the court process, or procedures and language, might play in the public's trust and confidence in the judiciary. Nearly 77% of those surveyed thought the "complexity of the law" contributed a lot or some to the cost of going to court. While complexity of procedure and language is not synonymous with complexity of the law, the public may perceive congruity between the two. The survey also illustrated a basis for perceived difficulties experienced by non-English speakers and those from other cultures. When respondents were asked how they perceived particular groups as being treated by the courts, a disconcerting number indicated African-Americans, Hispanics, Native Americans, and non-English speaking people are treated somewhat worse or far worse than others. Particularly noteworthy is that nearly one-third of survey respondents consider Native-Americans as being treated in this manner by the courts.
Numerous conferences and recent literature have detailed the rise in pro se litigation. The North Dakota Survey did not directly address this issue. Inferentially, however, the survey results illustrate common observations about pro se concerns. As previously noted, the complexity of the law is a concern to a significant percentage of respondents. Similarly, a large percentage, over 90%, thought the cost of having a lawyer contributes a lot or some to the cost of going to court. In a similar vein, almost 60% of respondents disagreed that it is affordable for ordinary people to bring cases to court. These factors are often cited as reasons for the rise in pro se litigation. At the same time, more people also consider themselves positively situated to consider representing themselves in legal matters - nearly 50% agreed it would be possible for them to represent themselves in court if they wanted to. And nearly 60% of survey respondents had a positive opinion of how district courts handle small claims cases - the one court setting in which people are more likely to represent themselves. Consequently, the survey results bear out those circumstances that contribute to pro se litigation, but also indicate a generally favorable disposition towards self-representation. Taken together, these results pose important questions for the judicial system
The Committee recommends the following priority strategies to address gateway barriers :
simplify the forms and language used in court proceedings and court processes
provide information about court protocols and processes, either through informational guides or by having a person on-site to assist court users
implement and exploit technology resources, such as the use of videos and information kiosks
provide interpreters or an ombudsperson to assist those who encounter difficulties in negotiating the judicial process
Representation barriers are comprised of the following issues:
access to representation
the costs of litigation, which is of particular concern in family law cases and providing adequate representation for obligors in child support cases
fear of the system and the process
complexity of court procedures and arcane, specialized language
removal of cases from the more accessible small claims court setting to the more complex district court setting
difficulties experienced by non-English speakers, pro se litigants, and people from other cultures
Representation barriers include some of the issues identified as gateway barriers, but take on added significance as issues that impair effective participation in the judicial process once a person has become involved.
Previous observations concerning survey results and gateway barrier issues also apply with regard to several representation barrier issues. For example, with respect to access to representation, there was a significant percentage of respondents who considered the cost of having a lawyer as significantly contributing to the cost of going to court. However, a larger percentage, about 85%, agreed that courts make reasonable efforts to see that individuals have a lawyer. These apparently conflicting responses may illustrate the difference between having to find and pay for a lawyer and being in a circumstance in which a lawyer is provided at little or no cost. As also noted, the costs of litigation and perceived difficulties experienced by those of different cultures and non-English speaking people contribute to concerns about the courts.
The Committee recommends the following priority strategies to address representation barriers:
provide a simpler, more accessible system for non-lawyers
review the impact of removing cases from small claims court to district court on accessibility and effective participation in the judicial process
encourage more pro bono legal services
increase funding options and support legislative solutions
develop more information about lawyers and lawyer services
Physical barriers are barriers of the most basic kind and are comprised of the following issues:
inconvenient court hours, location, parking, and facility access
reliance on automated, voice-mail telephone systems in the district courts
The Committee is aware that counties have responsibility for courthouse facilities and management of facility grounds. Facility access issues are addressed in part by the Americans with Disabilities Act with respect to those with disabilities. Nevertheless, the Committee supports efforts to make courthouses more accessible and less difficult to navigate. Additionally, reliance on automated answering systems places greater distance between the courts and the public.
The Committee recommends the following strategy:
eliminate automated, voice-mail telephone systems or, at a minimum, provide an earlier prompt to a personal contact
Education and Civic Literacy
Nearly all the information reviewed by the Committee underscored the key significance of effective education and information as counterpoints to criticisms of the courts or to the simple suspicions that result from lack of knowledge. However, the Committee concluded early on that it was not the education system itself that has failed, but rather information provided in civics and government classes, for example, that was being lost as people made the transition from student and adolescent to adulthood.
Issues under this category are comprised of the following:
a lack of general knowledge and information about government on the part of adults and a lack of specific knowledge about the importance of the judiciary as a separate branch of government
inadequate general knowledge about state and federal courts, court procedures, the function of courts, and the structure and organization of courts
a lack of public understanding about the criminal case decision-making process and distrust by some groups of the criminal justice system
effectively dealing with the unpopularity of and dissatisfaction with court decisions
Some of these issues are of a general nature that extend much farther than the ability of North Dakota's judiciary to affect. However, the Committee recognizes the crucial link between knowledge of the court system and general awareness of the role played by courts in a free society and the willingness of the public to place trust and confidence in an institution that often renders unpopular decisions.
The survey results illustrate the concerns identified by the Committee. Sources of information about the courts and the educational support for adequate understanding of the role of the courts are critically important. Survey results regarding sources of information are also discussed in the following section on Impact of the Media. Knowledge is a tool, and sufficient knowledge about the courts permits the public to more effectively understand and use the courts. When survey respondents were asked how much they knew about district courts in their area, 37% said some, 36% said a little, and 21% said practically nothing. Most respondents, about 59%, had not been personally involved in the courts. And of those that have been involved, the most common experience was as a jury member or observer of a court proceeding. Only 15% of survey respondents said they obtain information about the courts from schools or libraries and even fewer, 11%, obtain information about the courts from the courts. These results illustrate the lack of substantive, useful information about the courts and underscore the importance of educational initiatives, with meaningful assistance and involvement by the courts, to a knowledgeable citizenry.
The Committee recommends the following priority strategies to address education issues:
involve the judiciary in providing information about the courts to the public in a variety of ways
educate users of the court system
provide a resource person in courthouses to provide information and respond to questions
Process - How the System Works
Many who encounter the judicial process are intimidated by its remoteness, intricacies, and procedures which often seem susceptible to abuse and manipulation. In North Dakota, with its continuing and unsettling demographic changes, many view changes in the judicial system as another step in the demise of the state's rural culture. The Committee is aware of the ongoing implementation of court unification and the perception that judicial services are no longer readily accessible. This perception may compromise the public's trust and confidence in North Dakota's judiciary and affect support for the institution of the courts. The judiciary must also ensure that its processes and procedures are not exploited to the disadvantage of those who are involved in the judicial process.
Process issues are comprised of the following:
lawyers and clients who abuse and manipulate the process to delay proceedings and cause additional expense for opponents, and lack of judge control of the abuse
the length and complexity of the judicial process
problems associated with access to judicial services based on geographic location, the ability to readily locate a judge, and the allocation of system resources
the lack of system certainty and the lack of uniform practices and procedures
Literature reviewed by the Committee illustrated several of these issues. The survey results also underscored some of the concerns. As noted in a previous section, a majority of respondents thought the slow pace of justice and the complexity of the law were significant contributing factors to the cost of going to court. Nearly 80% of respondents also agreed with the statement that courts are slow in handling cases. The perceived remoteness of the courts is also a common factor revealed in most surveys about public trust and confidence. North Dakota's survey indicated over a third of respondents thought the courts were out of touch with the local community. While a larger percentage, about 45%, disagreed, these results support the need for a clearer community identity for the courts. The survey results also touched on issues regarding access to judicial services - a persistent public policy concern in light of the reduction in the number of judges. A majority of survey respondents (59%) rated availability of judicial services in their area as good or excellent. Yet, as noted, survey results indicated concern with the slow pace of justice and the slow handling of cases. When respondents were asked in open-ended questions to identify what courts in their area are doing poorly, a common theme was slow processing of cases. Several responses also indicated concern about there being too few judges and the courts being overworked. These responses and general survey results support examination of how judicial services are provided with declining resources.
The Committee recommends the following priority strategies to address these issues:
conduct an analysis of judicial system resources and monitor how those resources are allocated in light of the declining number of judges and its impact on the quality and quantity of available judicial services
establish uniform practices and procedures generally, and specifically with respect to domestic relations cases
establish alternatives to the adversary process for certain kinds of cases
Lawyers
Lawyers and lawyer conduct are intricately related to the public's perception of the judicial process. There is often a perception that the judicial system does little to control exploitive, manipulative, or oppressive behavior by lawyers. As a result, courts suffer a loss of public trust and confidence because lawyers for the most part represent access to the courthouse.
The Committee identified the following issues in this area:
the perception that lawyers are unethical or dishonest and break or bend rules
the perception that too many lawyers put winning before truth or justice
the concern that judges do not appropriately sanction lawyers who break the rules, which is coupled with the perception that the legal profession does not effectively police itself.
It is important to note that while the reality in North Dakota may be different from these perceptions, the perceptions, often based on media coverage and dramatic characterizations, affect how people perceive the willingness of the courts to address these issues.
The Committee recommends the following priority strategies to address these issues:
ensure more judge control during the legal process, including such matters as lawyer conduct and timeliness in all proceedings including depositions
provide more education and information about the lawyer discipline process to ensure public awareness
Civility, Integrity, and Professionalism
A disturbing aspect of information reviewed by the Committee is the occurrence of aberrant judicial behavior and its consequent effect on public perception of the courts. The Committee concluded this was not a pressing issue in North Dakota, but in isolated instances can contribute to public distrust.
The Committee identified the following issues in this area:
disrespectful treatment of crime victims, particularly in domestic violence protection order cases
judicial temperament
insufficient sensitivity or empathy for those who are involved in the judicial process
The Committee recommends the following priority strategies to address these issues:
encourage self-awareness on the part of judges (including members of the Supreme Court) and court staff about their impact on civility
establish an informal process to address minor issues of judge conduct or temperament
establish a judicial performance evaluation program
With respect to the last recommended strategy, the Committee is aware that North Dakota's judiciary has considered the establishment of a judicial performance evaluation program on previous occasions. However, the Committee concluded that such a program could serve as a useful tool for providing information and support aimed at judicial improvement.
Impact of the Media
The impact of the media, in all its guises, contributes to an understanding of the courts and judicial process that is often based on misperception and mischaracterization. The sources of media impact are diverse.
The Committee identified the following issues in this area:
media misrepresentation or "hype" regarding court decisions
"creating" stories about the courts to fill court beat sections of newspapers
television court programs such as Court TV and Judge Judy
negative portrayal of lawyers and the legal profession
the distorting effect of televised court proceedings and the sensationalizing of trials
lawyer leaks and comments to news media on pending litigation
The Committee is not convinced these issues are critical in North Dakota and as a consequence the category is ranked lower in priority. However, the media presence in contemporary society is encompassing enough to form the basis for possible misperceptions about North Dakota's court system.
For example, survey results indicate a substantial majority of respondents, about 85%, regularly or sometimes obtain information about the courts from some common media source - television, radio, newspapers, magazines. Forty-four percent of respondents said they obtain information about the courts from television drama, comedies, or movies. And nearly one-fourth of respondents obtain information from television shows like The People's Court and Judge Judy. Of particular concern is that more people agreed (46%) than disagreed (42%) that the media's portrayal of the courts is mostly accurate.
Media influence can only be offset by competing, well-developed information. A consistent theme in information reviewed by the Committee is that the public expects and desires more information about the courts to be provided by the courts.
The Committee recommends the following priority strategies to address these issues:
establish the judicial system generally, and judges particularly, as an important source of information about the courts for the media and the public
educate the media about the judiciary and the judicial process
explore providing informational programs on television through community access programs and public television
Bias in the System
Bias, whether real or perceived, greatly compromises the standing and integrity of a judicial system. Nationally, surveys consistently indicate that courts are perceived differently and more negatively by minorities. Information assembled by the Supreme Court's Commission on Gender Fairness in the Courts documented the occurrence of gender bias in the court system. Public trust and confidence in the courts cannot survive if bias is perceived as a part of the judicial process. The Committee recognizes that bias is a problem in North Dakota just as it is in other jurisdictions.
The Committee identified the following issues for consideration:
perceived bias against the poor and people with disabilities
a bias in favor of the rich and powerful, but also a bias against those with "deep pockets"
bias based on race, ethnicity, gender, and age
lack of awareness of cultural differences
Survey results indicated discouraging perceptions about bias in the courts. A substantial majority of respondents, for example, thought wealthy people were treated better or somewhat better than others by the courts. Nearly half of the respondents agreed that courts favor corporations over ordinary people. As described in the section discussing gateway barriers, a disturbing percentage of survey respondents thought minorities were treated worse than others by the courts. Nearly one-third of respondents considered Native Americans as being treated worst of all - an unsettling assessment in light of North Dakota's Native American population and the disproportionate number of Native Americans in the state's penitentiary and jails.
The Committee recommends the following priority strategies to address these issues:
conduct bias studies similar to the recent study of gender bias in the courts
encourage self-awareness of biases through education and system policy
encourage initiatives to enhance cultural sensitivity
The Committee is aware of the impact of cultural differences on how a dominant culture's judicial system is perceived. Particularly with respect to Native American experiences with the judicial system, cultural differences may affect how Native Americans participate in the judicial process and how judicial system personnel and others, jurors, for example, may perceive that participation. Cultural differences may also affect how Native Americans respond to authority figures such as judges, law enforcement officials, and lawyers. The Committee had neither the time nor sufficient resources to fully consider these and other related issues. The Committee, therefore, recommends that these issues be given thorough review and study as part of any effort to implement strategies outlined in this Report.
Caring for Society
Trust and confidence in the courts often suffers when the public suspects the courts are concerned more with process and technical rule requirements than they are with the well-being of society. This suspicion manifests itself in concerns that the courts are not creatively engaged in finding solutions to minimize negative interactions with the courts. Several jurisdictions have initiated court-community collaborative efforts to address these concerns.
The Committee identified the following issues in this area:
a perception of inadequate or ineffective responses to certain kinds of cases, such as domestic, juvenile, and low-level offenses; the lack of constructive sentencing options, referrals to other agencies, and more holistic approaches to resolving cases
lack of dispositional resources
a perception of lenient and inconsistent sentencing with respect to juveniles and adults, and inconsistent sentencing of minority offenders
the perception that criminals are sometimes released on "technicalities"
Survey results offered interesting assessments of some of the issues identified by the Committee. While not demonstrating significant percentages of responses, the handling of domestic relations cases and juvenile delinquency cases markedly exceeded other case types in being perceived as poorly handled by the courts. Typically, these cases are the most emotionally and personally complex and demanding, and are those that most often illustrate the need for more creative methods of resolution. In response to an open-ended question concerning what courts in their area are doing poorly, respondents fairly often identified criminal sentencing (too lenient or inconsistent), juvenile cases (too lenient), and domestic relations case, particularly child support enforcement. Perhaps not surprisingly, these cases were also identified in responses to an open-ended question concerning what courts in the area are doing well.
The Committee recommends the following priority strategies to address these issues:
provide an explanation from judges about sentencing or case disposition
involve judges, court officers, and staff in providing information to community groups, such as service clubs
establish a method to provide complete, shared information to the judge to ensure awareness of related charges when a criminal defendant appears for sentencing
Jury Service
Jury service remains one of the more frequent opportunities for public encounters with the judicial system. Consequently, public experience as a juror or prospective juror may form the only basis for perceptions about the judicial process.
The Committee identified the following issues in this area:
lack of advance warning about possible jury service
treatment by lawyers, judges, and court staff and discourtesy and lack of concern for juror needs
inefficient use of juror time after summons, inflexibility in the choice of when to serve, and the lack of amenities
concern about manipulation of the jury selection process
The Committee recommends the following priority strategies to address these issues:
continue to gather information through juror exit questionnaires to determine concerns about jury service
develop methods of explaining the importance of jury service
develop ways of easing the burdens associated with jury service, such as time away from work and child care
The North Dakota survey results did not specifically address jury service issues or strategies identified by the Committee. However, the survey disclosed interesting related information. Over one-third of survey respondents said they obtained information about the courts from having served as a juror or knowing someone who had served as a juror. Jury service is perhaps the single most prevalent method by which most members of the public have substantive contact with the courts. This circumstance presents an important opportunity for educating the public about the courts and for ensuring their experience with the courts is positive.
Integrity of the Judiciary and the Judicial Process
The Committee concluded this last category of issues is least pressing with regard to concerns about public trust and confidence in North Dakota's judiciary. Nevertheless, there are issues related to the integrity of the judiciary and the judicial process that affect, however minimally, public trust and confidence.
The Committee identified the following potential issues in this area:
concern about the quality of the judiciary, methods of judicial selection, and difficulty in replacing inefficient judges
the effect on judicial decisionmaking of being involved in the election process
North Dakota's courts ranked comparatively well in the public's level of trust and confidence in state institutions. Eighty-two percent of survey respondents agreed that judges are generally honest and fair in deciding cases. Nearly 60% agreed that court rulings and decisions are understood by the people involved and a majority of respondents thought district courts handled a variety of cases in a fair to excellent manner. Nevertheless, there were two troubling perceptions identified in the survey results. Nearly 70% of the survey respondents agreed with the statement that judges' decisions are influenced by political considerations. And nearly 60% agreed with the statement that elected judges are influenced by having to raise campaign funds. These perceptions pose compelling questions for the judiciary.
The Committee recommends the following priority strategies for addressing these issues:
provide more information about judges and the impact of the Code of Judicial Conduct on judge election activities
provide more information about the judicial discipline process to ensure public awareness
establish a judicial performance evaluation program
Effective implementation of the strategies recommended in this Report is critically important. To that end, the Committee recommends an Implementation Group be created and charged with reviewing the strategies adopted by the Supreme Court, analyzing various trust and confidence initiatives undertaken in other jurisdictions, assessing the applicability of such initiatives in North Dakota, and developing proposals for implementation of the strategies.
The common threads throughout the many issues and strategies considered by the Committee are information and education. Many people are intimidated by the judicial process and the institutional trappings that accompany it. As a result, many have become alienated from the courts and have lost an understanding of, or have misperceived, the role that courts must fulfill in a free society. At the same time, courts are being held accountable in new ways for the "services" they provide. Policymakers and the public are critically evaluating the effectiveness of the judicial process and are expecting continual improvement. The judicial system, therefore, should pursue every opportunity to improve system performance. Additionally, and most important, the judicial system bears a significant burden in ensuring that the role of the courts and the judicial process is adequately and accurately understood by the public. The judicial system must ensure every opportunity is taken to develop and provide clear, understandable information about the courts to the public. The judicial system must, as well, ensure that it is considered a reliable and comprehensive source of information about the courts in North Dakota. These efforts will support and illustrate the paramount importance of the critical link between the public's understanding and awareness and the ability of the courts to preserve a free society.