Commission to Study Racial and Ethnic Bias in the Courts
September 30, 2011
Bismarck, North Dakota
10:00 a.m. Call to Order
Hon Donovan Foughty, co-chair
Justice Carol Ronning Kapsner, co-chair Lisa Bjergaard for Leann Bertsch Hon. Wickham Corwin Scott Davis Jim Fitzsimmons Professor Jim Grijalva Lisa Jahner Ulysses Jones Chris Iverson for Rod Olson Tom Trenbeath
Hon. Sonna Anderson Griselt Coral Andrade El Marie Conklin Tom Disselhorst Robin Huseby Dr. Erich Longie Hon. Mary Marring Hon. William McLees
Troy Morley Mike Nason William A. Neumann Hon. Michael T. Swallow
Sandi Tabor Guest Meredith Vukelic
Co-chair Foughty called the meeting to order at 10:05 a.m.
Approval of July 22 Minutes Judge Foughty asked whether members had any additions or deletions for the 22 July minutes.
Tom Trenbeath made a motion to approve the 22 July minutes without corrections.
Lisa Jahner seconded and the motion passed unanimously.
Survey Results, Comments and Testimony Staff presented final results from Commission surveys, walking through several characteristics
of the user survey, attorney survey, employee survey, as well as new data regarding applications
for state court job openings. The user survey showed relatively predictable opinions and little
difference by race.
The attorney survey and employee survey both showed positive views of the courts, but returned
many indications of ‘no basis for knowledge.’ One consistent theme in both surveys was that
individuals tended to rate the diversity in the areas they lived as ‘somewhat diverse’ while giving
a rating of ‘not diverse’ to their workplace. Members said that the fact few minorities work in
the court system and as attorneys might help explain this. Members expected other questions to
produce high levels of ‘no basis’ answers, since they were directed at areas of the court with
which only a portion attorneys and employees would have a degree of familiarity.
Staff said that the total number of responses was good, but that each question had to be judged
independently, since respondents could skip questions. He added that the survey program
automatically calculated confidence intervals and margins of error for each question, and that
interpretation of the data had to consider the fact that choices were grouped rather than
continuous. Staff said that the demographic data was probably the most reliable, and that the
majority of other questions were so skewed toward a single answer that the overall group would
more likely than not tend toward the same answer.
Data on recent applications showed over 800 job applications for less than twenty open positions
over the period measured. This application data became available with the implementation of
some new computerized systems that allow the state to ask applicants several voluntary
questions, including the race of the applicant. The new process cannot provide any data from
earlier years, so adds no information to explain current court employee racial representation in
light of past applications to court positions. Data showed that minorities, especially African
Americans, constituted a larger proportion of applicants than in the general state population, but
Native Americans were under-represented by 2/3 compared to the same.
Professor Grijalva discussed the role of UND Law School in contributing to diversity of the Bar
and the courts. He suggested several changes to the attorney/employee chapter draft and shared
law school efforts to encourage minority applications and practice within the state. Justice
Kapsner described a recent visit to a law school in Alabama. School officials attributed a
tremendous growth in diversity to the work of only a few individuals. Students recruited friends,
relations and others, and networked to attract many minority students. Professor Grijalva cited a
similar experience at UND involving a Hispanic law student whose efforts increased the number
of Hispanic students for several years. He said that school needs motivated individuals to find
and encourage interested students who are able to succeed. UND Law school recently employed
Joseph Morrissette to facilitate outreach to Native Americans.
Scott Davis emphasized the effectiveness of internships in other professions, such as
opportunities at Indian Health Services available for UND medical students. He said that the
courts could provide internships for potential lawyers and administrators. If the courts wish to
improve employment diversity in the state, the curriculum at Tribal Colleges needs to consider
ways of generating interest in legal careers. He thought that court internships could help this
end. He also suggested developing scholarships and recognized the work of Native American
alumni in encouraging minority recruitment.
Scott Davis suggested a partnership between the law school and tribal colleges. He added that
Native American leaders need more education about legal issues and governance. Judge
Foughty said that the law school has developed a lot of expertise in many areas that could be
shared more widely throughout the state. He added that perceptions will not change until the
overall picture changes, including the hiring of more minority attorneys, court personnel, and
judges. Scott Davis suggested the possibility of cross-commissioning law enforcement officers
as another means of cooperation.
Members discussed Commission efforts to gather information from minority UND alumni who
decided not to practice in the state. Staff said he had requested the methods suggested during the
last meeting, but was told they would not work. UND staff offered put a link to a questionnaire
on the law alumni website. Staff provided such a link. Professor Grijalva said that the
University has no data on minority graduates and would have to send any inquiries to all alumni.
Testimony and Comments Staff presented notes from the Bismarck focus group discussion, involving five Bismarck area
attorneys, both prosecutors and defense attorneys. Several more attorneys were invited but were
not able to attend, some at the last minute.
Professor Grijalva said that Native Americans have perceptions that affect relationship with the
courts, including historical experiences of the legal system as a tool of oppression. He suggested
that he might work with staff to produce some kind of preface in the report noting the particular
connection between the courts and Native Americans, and the different environment that
prevails. Justice Kapsner said that many perceptions point to helplessness because of
unfamiliarity with the system, especially for New Americans. Jim Fitzsimmons said that groups
such as the Bremer Foundation and Lutheran Social Services provide some education in this
area. The Commission could recommend additional education, involving the Supreme Court and
the State Bar in additional efforts.
Staff presented a summary of public meeting testimony compiled by Charlotte Skar. The
summary focused on North Dakota state courts and racial/cultural issues. Members thought that
the summary left out some information; specifically some gathered at the UND hearing. Justice
Kapsner said that the Commission must ensure that testimony relating to courts omits the names
of those that testified both in the final report and any copies of transcripts appearing in
Staff presented the comments from the user survey, indicating which of the responses came from
minorities. Members asked whether the proportion of those commenting looked like the
proportion in the overall prison population. Proportions were close to the numbers incarcerated,
with somewhat fewer whites and more minorities commenting. Native American comments
seemed to better address the subject of bias. Many suggested that the level of support available
after incarceration did not consider the difficulty of getting back into society. Other assessments
were positive and there did not appear to be much variation in comments that correlated with
race. Inmates perceived the requirement to serve 85% as unfair, and some alleged that it produces
disparate results. Some showed skepticism regarding treatment programs.
Members said that judges and prosecutors seem to try to be sensitive, but most of the bias
appears to be unintentional or innate. Getting past this kind of bias and understanding changing
populations and circumstances has to be a goal. Members also recognized that
misunderstandings occur between the New American population and courts, some rooted in
perceptions of fear based on experiences in other countries. Professor Grijalva said that an
understanding gap exists between lay people and courts, generally. Ulysses Jones pointed out
that white defendants are probably more likely to find an attorney even if they are ignorant of the
law. Professor Grijalva said that poverty also contributes to these problems.
Justice Kapsner said that judges should be the subject of the existing informal complaint
procedure, and attorneys should be encouraged to use this system when necessary. Judge
Foughty agreed, saying that the review process involves random investigators to avoid instances
of complaint investigations coming from attorneys who appear before the particular judge. He
said that this structure avoids vested interests in reviews. Jim Fitzsimmons said that new
attorneys are terrified of using this process, employees at firms do not want raise partner ire, and
older attorneys tend to have been around for so long that they do not care. He said that the few
who will actually use the process are those attorneys who see themselves as “problem solvers.”
Judge Foughty said that judges are often the last to find out about behavior leading to
complaints. He added that Dr. Longie instructed judges about culturally sensitive behavior in
the past. Jim Fitzsimmons said that courts should ensure understanding goes both ways between
courts and minorities, and that education includes clerks of court and other court personnel.
Definitions Staff presented a series of complied definitions from other states. Few states actually bothered
to set forth definitions. Most simply provided discussion and findings, apparently assuming
definitions were self-explanatory. Justice Kapsner presented the Definitions Sub-Committee’s
work. The sub-committee recognized a difference between bias and discrimination in
discussion, but wanted a working definition for bias that worked itself out through behavior. Racial and ethnic bias is discriminatory behavior toward individuals on the basis of race or ethnic
characteristics. Discriminatory behavior may be conscious or unconscious. Racial and ethnic bias
exists when 1) people are conferred or denied rights or are burdened or benefited with
responsibilities solely on the basis of their ethnicity or race; 2) people of certain ethnic groups or
races are treated differently solely because of their race or ethnicity where no reasonable
distinction can be found between those favored and those not favored; or 3) stereotypes about the
proper behavior of members of certain ethnic groups or races are applied to people regardless of
their individual situations.
Tom Trenbeath said that the second part of the definition appeared to encompass the first part.
Jim Fitzsimmons made a motion to change the definition by switching the first and
second parts. Judge Corwin seconded and the motion passed unanimously.
Members directed staff to put the definition into report subject to further editorial comment.
Drafts and Recommendations Discussion Juries Members discussed the data and methods for expanding jury master lists. Members noted that
the Supreme Court has statutory authority to expand pool sources. Scott Davis asked about
using tribal identification cards for jury lists to get more minorities into the courtroom as jurors.
Jim Fitzsimmons said at least some tribes refused to share this information when it was
requested in the past. Justice Kapsner said that jury master lists required information that tribal
IDs do not provide, so they could not be used for jury selection.
Staff said that the Commission should not expand the master lists because the data collected in
the jury pool study was not sufficient to justify it. He said the data failed to show disparities
throughout the state. Members said that jury master lists should be expanded based on collected
Commission experience of minority under-representation as well as testimony gathered
throughout the state. Staff said that potential problems still exists in expanding jury lists, such as
initial data collection leading to duplicates that could exacerbate representation problems, noting
discussion in earlier meetings. Members said that this consideration was a technical issue.
Judge Foughty said that members seemed to be articulating an “inclusiveness” standard for
expanding the pool. Staff said that other state reports recommended expansion of master lists
based on this justification rather than a strict statistical finding of under representation. Staff
also explained an option of including a race question on the juror questionnaire either on a long-term or a permanent basis, with a recommendation to expand lists if data from this method
showed under representation. Computerized processes would allow for the easy collection of
statistics from what would essentially be a longer-term version of the jury pool study.
Justice Kapsner said that, in the area of payment for jury services, North Dakota compares fairly
well against other states. Professor Grijalva said that Judge Metz has been pushing for jury pay
increases for some time. Jim Fitzsimmons said that offering $75 per day and day care expenses
might be realistic. Ulysses Jones and Justice Kapsner agreed that courts should offer a specific
dollar amount for care of children and elders. Jim Fitzsimmons said that notice of pay for jury
service and the availability of certain expenses should be part of public education efforts.
Interpreters Professor Grijalva asked whether there should there be a national center to call in for Somali
interpreters. Members said that the phone service language lines are available for translation.
Chris Iverson said that there are groups working in Fargo, telephonic translation works, but is
not the preferred method of translating.
Jim Fitzsimmons asked judges how often they had used interpreters during the last twenty years.
Judge Foughty said that he has used interpreters less than ten times. Judge Corwin said that he
used them many times. Justice Kapsner said that Cass County has been innovative in developing
interpreting and translation related materials such as videos designed for limited-English
speakers. Courts can make these materials available to the rest of the state, and should provide
adequate notification of their availability. Chris Iverson said that the state of Minnesota
maintains a list of all certified interpreters, many of whom are not necessarily state court
employees, and North Dakota courts could create a similar list of commonly-used interpreters
and make it widely available.
Justice Kapsner referenced an example recommendation calling for a court approved voir dire
for use by judges to determine skills for uncertified interpreters, stating that such a method could
be put in the bench book.
Juvenile Lisa Jahner presented a number of corrections and comments for the juvenile draft. She also
explained her recommendation for implementing a detention screening tool. This tool is based
on more than twenty years of research, but can be modified to meet specific needs, though such
modification takes resources. It focuses on assessing risk. Lisa Jahner said that effective
juvenile justice systems do not use detention much, and North Dakota detains a lot of youth who
should not be detained. Jim Fitzsimmons agreed, saying that Native American youth are always
over represented in detention, and the Commission needs to make a recommendation for
implementation of this tool.
Lisa Jahner said that the courts must have an adequate understanding of the juvenile court
process, and judges should have information about options available for youth. Judge Foughty
said that courts in some big cities could look at smaller counties for guidance, especially in drug
Attorneys and Employees Professor Grijalva, referencing the report draft, said that the jump in Native American
applications to law school in 2005 resulted from deliberate attempts of the law school to recruit
Native Americans in each class. He said there was some difficulty in finding interested and
qualified applicants with a high chance of succeeding. The Native American Student
Association attempts to help generate interested applicants, but faces significant limits on what it
can do. Justice Kapsner emphasized the fact that UND law school is a bargain compared to
many other schools.
Ulysses Jones reminded members that the Commission had discussed creating high school
programs to develop interest in legal careers early. He said that the Commission needs to be
sure to include a recommendation to that effect in the final report. Meredith Vukelic said that
she had recently completed a presentation to high school students and they did not have a very
good idea what UND had to offer with regard to legal careers. She said it would be beneficial to
get an energetic minority attorney to talk to students and generate interest. Doing so may help
students expand their consideration of possible careers.
Jim Fitzsimmons asked what percentage of North Dakota law students are state compared to out
of state students. Professor Grijalva said that only about half are from in-state. Members agreed
that the Commission should probably not expect all individuals to stay in the state since many of
the students come from elsewhere and plan to go back.
Professor Grijalva and Ulysses Jones volunteered to participate on the drafting committee.
Having no further business, the meeting adjourned at 2:28.