Commission to Study Racial and Ethnic Bias in the Courts
1400 East Interchange Avenue
Bismarck, North Dakota
March 18, 2011
Hon Donovan Foughty, co-chair
Justice Carol Ronning Kapsner, co-chair
Griselt Coral Andrade Leann Bertsch Scott Davis Tom Disselhorst Meredith Vukelic for Jim Fitzsimmons
Lisa Jahner Ulysses Jones Robin Huseby Justice Mary M. Maring
Sinisa Milovanovic Mike Nason William A. Neumann Rodney Olson Thomas Trenbeath
Members Absent Hon. Sonna Anderson El Marie Conklin Hon. Wickham Corwin James Grijalva Dr. Erich Longie Hon. William McLees Troy Morley Hon. Michael T. Swallow Sandi Tabor Guests
Andrew Frank Co-chair Foughty called the meeting to order at 10:05 a.m.
January 21, 2011 Minutes Judge Fougty asked if there were any comments or revisions to the January 21 minutes.
William Neumann motioned to approve minutes and Tom Trenbeath seconded. The
motion passed unanimously.
NDCAWS Data and Discussion Staff presented data from the North Dakota Center on Abused Women’s Services court watch
project that ran from 2005 to 2006 and aggregated independent court watch projects during that
period of time. Unfortunately, NDCAWS could not provide a county-level breakdown, though
cases were broken down by charges, child support, race, and other factors. Judge Foughty
commented that the ad hoc nature of the data collection and the small sample sizes in this study
pose difficulties for use by the Commission, despite the project’s long-term nature. Justice
Kapsner said that some information might still find a use if the Commission qualified the
limitations of the study. The only noticeable disparate area was the number of jury trials: there
were much fewer for minorities than whites.
Final Report Discussion on Juries Staff presented updated data on juries and a jury chapter outline with format and subjects for
possible inclusion within the section. After a general background detailing issues from other
states, North Dakota rules, and administrative guidelines, the outline included a section
discussion jury pools and issues surrounding a possible expansion. Staff clarified that the
current lists are from voters in the last election and driver’s licenses. He indicated that the
Department of Transportation does not collect any race data at all.
Staff said that composition challenges in North Dakota, actions alleging a non-representative
jury pool, take place according to the legal standard requiring that members excluded be a
distinctive group in the relevant community, that the representation is not fair or reasonable in
relation to its numbers in the community, and that the misrepresentation is a result of systematic
exclusion of the group in the jury selection process. The North Dakota Supreme Court
previously recommended investigation of jury pools, at least partially in consideration of the
great difficulty inherent in an individual attempting to meet the legal standard. Rod Olson noted
the difficulty of such composition challenges, saying that there had not been a single challenge
for inclusiveness during his time in Fargo. Justice Kapsner said that some relatively recent cases
have raised the issue, but at improper times.
Staff presented the jury pool calculations from the Commission’s survey, comparing those over
18 years of age categorized by county and race to the jury pool sample pulled during the study
period. Many responding counties appeared to pull members of minority groups to jury pools at
a rate exceeding the group’s representation in each county population, but the numbers for
almost all counties were insufficient samples for determining statistically meaningful numbers.
Data included the counties that responded during the study period, and only Burleigh County
provided sufficient responses to justify any statistical conclusions. Staff said though the study
format was appropriate, a longer period of time would be required to gain sufficient responses to
draw reliable statistical inferences. Nebraska’s Task Force, charged with a similar mandate,
recommended an extensive jury pool survey by a subsequent body, which gathered over 115,000
responses before generating statistics. Rod Olson agreed that the data showed a much better representation than expected, especially
considering the random computerized nature of the pool selection process and the lack of any
specific state efforts to address under representation. Mike Nason said that, ideally, the samples
should be about 10% of the actual county populations to support generalizations. Staff added
that another option might be simply to take a view emphasizing inclusiveness of jury pools
rather than actual under representation. He said other states have done this, some of which have
apparently relied only on statewide data without county breakdowns.
Justice Kapsner asked whether calculations should be re-done according to the newly-released
2010 Census data instead of relying on 2009 estimates and data from the KidsCount project.
Members agreed that calculations should be updated. Members directed Staff to procure county-level data available on the Census website.
The Commission discussed a motion regarding possible use of all the collected jury data. Staff
said demographic panel data was even less reliable than the pool data, and was only about 220
samples strong, though perception questions could provide useful information. Responding
counties were substantially different from those in the pool survey because of the timing of the
study period. Tom Trenbeath pointed out that the pool missed some counties with substantial
minority populations. Staff added that responses were only from those who returned the
questionnaires. Rod Olson said that there was no idea of how many questionnaires were sent out
in the period but not returned for these counties, but that he could find out. Justice Kapsner
suggested Ward County should be contacted to confirm whether any pools were pulled during
the study period.
Members agreed that the data could not be relied upon to support a recommendation for
expansion of jury pool lists or other substantial recommendations. William Neumann suggested
data could support a recommendation for a longer subsequent study period. Members agreed.
Staff noted that another option would be to concentrate on the few counties within the pool that
returned sufficient numbers to allow some kind of data-supported statement, since this was a
common technique throughout other state reports. Staff suggested Burleigh and Cass counties as
potential areas of focus.
Staff asked whether the Commission had some kind of scope in mind for a recommendation for
further study – whether or not such tracking would be permanent or only take place long enough
to provide sufficient numbers for conclusions. Rod Olson said it would be possible to turn on
part of the computerized jury program that would allow gathering such statistics automatically,
noting that this would provide information with no additional cost, and could be permanent. He
added that race data would be collected with the return of questionnaires, whether or not small
counties actually held trials.
William Neumann voiced surprise at the lack of data on racial and ethnic bias in North Dakota,
asking whether this might suggest that the dominant culture is so comfortable that they do not
wish to be bothered by such information. Staff noted the few objections the Commission
received from the public unanimously took the stance that investigating racial and ethnic issues
was somehow offensive in itself. Leann Bertsch said that parts of the system already collect
racial and ethnic data, most without consideration of how previous steps drive the numbers and
that people have to understand the courts are not collecting information for harmful purposes,
but to address problems in the system. Justice Kapsner questioned whether asking for race
information adds to the perception of deliberate exclusion for minorities not selected for jury
service. Robin Huseby responded that many minorities settle on a racial explanation for
rejection, even without such a question. Rod Olson added that other states provide explanations
for race questions, and North Dakota could also.
Mr. Olson continued, saying that any collected information would be in the computer program,
but not automatically shared with attorneys. He said some states share general information with
attorneys, such as the minority pool percent compared with community percent, so attorneys
could use it if there were substantial problems in the pool. Members questioned whether an
obligation exists to share information with attorneys, either automatically or upon attorney
request. Justice Maring said attorneys have a Constitutional right to the information if they
request it, and the courts would have to carefully think through adding this kind of a process.
Judge Foughty agreed, saying that states could keep data without revealing it, but would have to
provide copies if asked. Members agreed to consider recommendation for permanent data
collection, noting inherent problems.
Judge Foughty asked whether the data should appear in an appendix to the final report. Tom
Trenbeath proposed that it should not, based on the incompleteness and unreliability of the
numbers. The Commission agreed with this position. William Neumann made a motion
that the Commission should not use data from the jury pool or panel surveys in the
final report except to describe activities completed by the Commission and to
recommend further study, since the surveys did not capture sufficient samples to
support generalizeable statements. Tom Trenbeath seconded and the motion passed
Staff explained juror non-response in North Dakota, saying that, based on county-level data
received from the Court Administrator’s Office during the summer 2010, there do not appear to
be patterns regarding racial population and non-response rate over the period provided. The
Commission noted that North Dakota has a particularly high overall response rate when
compared to other states.
Staff moved on to discuss further issues in the juries outline, saying perceptions of jury service
in the panel surveys were generally positive for all groups, though questions on levels of trust in
institutions did show some variation. Demographically, the jury panel sample showed a
minority representation consisting of mostly Native Americans tending to be older and more
highly educated than the general North Dakota population, 80% having at least a Bachelor’s
Degree in progress, with at least half holding a Bachelor’s or higher (compared to 30% for
overall N.D. population with Bachelor’s or higher). Ulysses Jones commented on this
phenomenon, saying that it fits a particular perception of how a more educated juror would tend
to be more pro-establishment. Mr. Jones acknowledged, however, that the small sample size
prevents generalizing this occurrence, though it is compelling in itself.
Rod Olson said that some aspects of representation in returns could be attributed to differing
approaches to the questionnaire, since judges either require returns, accounting for all
questionnaires, or not. In the latter case, those that do not return essentially get out of jury
service, and returns may be more likely for those with higher education. Mr. Olson suggested
adopting a rule requiring judges to account for questionnaires might go some way to alleviating
this problem, and that he could check to see how different areas of the state are treating the issue.
The focus of such an inquiry would be the clerks’ offices. Non-returns may occur for legitimate
reasons, incorrect addresses and deceased individuals, or without any reason at all. Judge
Foughty noted that, in the latter case, selection ceases to be random. Justice Maring asked
whether the Administrative Council could take up this question or if there should be a
Commission recommendation to that effect and Judge Foughty said he could present discussion
at the next meeting.
Rod Olson added that many problems with returns occur in the second year of the 2 year period
between refreshing the jury lists. He described the refreshing process as sending voters lists
from the Secretary of State and drivers’ license lists to a program vendor who breaks them down
by counties and removes duplicates. Staff asked whether the Commission should recommend
refreshing the lists more frequently, since other state studies recommend as often as every 6
months, and Mr. Olson agreed that yearly rather than biannual refreshing would allow sending
fewer questionnaires to compensate for bad addresses.
Judge Foughty directed Staff to include recommendations in the report draft for the jury section
as discussed, including enforcement of collection of questionnaires/surveys, non-appearances for
jury duty, and applicable recommendations from previous state reports. Members directed Staff
to draft a recommendation for a demographic question on the jury questionnaire that also
recognizes the need for providing data to attorneys upon request.
Staff explained differences in perceptions between the jury panel survey and the general
perception survey, even in duplicated questions, with those answering the jury survey tending
toward more positive opinions. He said more extensive data might show some kind of
relationship between sitting on a jury and having a high opinion of court processes. The
Commission discussed Batson Challenges, challenges to peremptory strikes alleging that race is
the only factor, noting that there was no information in this difficult study area, but focus groups
and the final public meeting in Grand Forks could provide some experiential input.
The Commission discussed a list of sources for jury pool expansion used by other states. Scott Davis asked whether there is a way to prove that the tribal elections occurring
simultaneously to state elections, differing voting patterns, and lack of voter turnout affects
Native American jurors since voters and drivers’ licenses are the initial sources for selection.
Staff said some relevant research exists regarding voting patterns for Native Americans, but it is
fairly old. He added that voting pattern interaction with tribal elections is a complication that
differs from other states, where lack of vote for minority youth and lack of widely distributed
drivers’ licenses are the main issues. Scott Davis said that South Dakota passed legislation for
wider recognition of tribal IDs. He asked whether the Commission could recommend a similar
course and use the IDs to supplement the pools.
Justice Kapsner said that the applicable standard is ‘any regularly maintained lists,’ so the
Commission could make recommendations for using tribal ID lists. She said that such a
recommendation could act as a starting point, and the courts could add additional lists for the
same purpose. Members acknowledged that the responses to requests might differ for tribes.
William Neumann moved that court should explore tribes’ willingness to provide
regularly maintained lists of adults within jurisdictions that can be added to the
jury pool. Justice Maring seconded and the motion passed unanimously.
Justice Kapsner asked whether a newly naturalized citizens list could be obtained as an
additional source. Sinisa Milovanovich said that such a list exists, and is used by the U.S.
Citizenship and Immigration Services. A list is presented before an immigration officer during
the swearing-in before a judge, and then goes to the federal courts or immigration services.
Justice Kapsner volunteered to call Judge Erickson to find out more about the process before the
next Commission meeting on May 20th.
Members noted that duplication may exist for any expansion if information is not gathered to a
sufficient level of detail or accuracy, and this might present a technical obstacle to expansion of
the lists that could cause some individuals to appear in pools multiple times.
Fargo Presentation Griselt Andrade and Judge Foughty summarized a meeting of the Fargo Inns of Court which
they and Judge Corwin attended in early March to present information on the Commission’s
work. They stated that small numbers of attorneys were in attendance but the meeting was
worthwhile, and Judge Corwin prepared an effective set of questions. Among interesting
feedback was that trial attorneys freely admitted to using race and bias to their advantage in the
interest of their clients. Attorneys did not perceive bias by North Dakota judges, but said that
judges often seem to go out of their way to ensure a fair trial for minorities. Attorneys shared a
perception that the North Dakota Bar is not representative of the overall population and some
commented that required CLE training on bias in Minnesota is useful and does not present a
significant burden, suggesting that North Dakota should require the same.
Focus Groups Staff said that focus groups have been discussed but not set up. Previous discussion highlighted
the fact that taking advantage of Members’ local contacts in various areas would remove the
need for travel across the state. Another advantage of focus groups over the public meetings is
the ability to send invitations to specific attorneys and members of the public, which could allow
greater insight into particular issues, such as peremptory strikes or problems with interpreters for
foreign language speakers.
Justice Kapsner asked whether consensus existed to do focus groups at all. Members discussed
keeping the final deadline for the report in mind, but consensus was to complete some focus
groups and, if valuable information develops, expand the effort before data collection ends,
probably in September. Discussion indicated that the project would consist of two similar
efforts, the first gathering information from attorneys within the state, the second speaking to
community leaders on reservations and other individuals that would be positioned to comment
on long term trends or provide insights on hard to reach areas of study. Invitations for
individuals would rely on member knowledge and efforts in contacting participants and Judge
Foughty invited members to provide Staff with ideas on appropriate groups and individuals.
Final Matters Judge Foughty informed the Commission that he would be attending the National Consortium on
Race and Bias in New Orleans in April on behalf of North Dakota. The Consortium attracts
minority members of the legal profession and judges from across the country, but Judge Foughty
noted the lack of presence for Native Americans and Native American issues throughout.
Having no further business, the meeting adjourned at 1:42.