(Unofficial Until Approved)
Hon. Donovan Foughty
Jessica Johnson for Scott Davis
Prof. James Grijalva
Hon. Steven McCullough
Dr. Leander McDonald
Britta Demello Rice
Call to Order: 10:00 a.m.
Attendees introduced themselves for the benefit of guests and members.
Sally Holewa moved to approve the February 13 minutes without revision. Corey Pedersen seconded and the motion was carried.
Professor Grijalva said that the new Black Law Students Association (BLSA) at UND has shown interest in the Committee’s work. Members expressed interest in working with BLSA in addition to the Native American Law Student Association.
Driving Under Suspension Penalties
Chairman Foughty introduced Glenn Jackson, from the Department of Transportation, to speak about restricted licenses for DUIs. Chairman Foughty provided a short description of Race and Bias Commission surveys that suggested driving restrictions could create problems for maintaining employment among poor minorities and recently released inmates.
Glenn Jackson explained that the 24/7 program now gives the Department of Transportation (DOT) the ability to provide temporary restricted licenses (TRLs) to participating individuals with multiple DUIs. This is a significant recent change. If a court orders a TRL, DOT receives notifications and processes it accordingly. If a TRL is not court-directed, the DOT provides a letter for the individual to present to law enforcement. This letter indicates the person is eligible and includes a form for return. If law enforcement completes and returns the form, then the individual has been accepted into 24/7 program and DOT issues a license. Glenn Jackson said, to the best of his knowledge, 24/7 is available statewide.
Glenn Jackson explained how 24/7 violations and program terminations are handled. When someone blows ‘hot,’ law enforcement notifies DOT, which subsequently terminates the privilege. Violators are ineligible for an additional TRL. Driving privileges are separate but fundamentally integrated with the licenses. When someone violates a TRL, the DOT cancels the TRL and puts a hold on the individual’s driving privileges. This is an administrative decision based on the data received from law enforcement or courts. There is no right to appeal for the withdrawal because the individual has already been through the suspension process, the hearing process for action taken against his or her record. Violations simply withdraw the privileges.
Judge McCullough said the Cass County Sheriff’s Office runs the 24/7 program in such a way that the first violation does not lead to automatic termination. Glenn Jackson said law enforcement manages their end of the program separately from DOT. Once DOT receives notification, it takes over the cancellation process.
Travis Fink said he has observed problems with administrative inequities in different areas of the state. Burleigh County requires two weeks of costs paid in advance. Lack of payment is considered a program fail. In comparison, Stark County allows testing in the case of non-payment. Glenn Jackson emphasized that DOT only receives notification for moving traffic violations, while law enforcement handles other violations. When the sheriff’s departments provides notification that an individual is no longer participating, DOT removes that person from the program.
Lisa Wicks said a violation, including a hot test or non-payment, requires a judge decide whether to retain an individual in the program. The decision could include suspensions, delays, and other sections that would not involve DOT notification. In response to a question from Corey Pedersen, Glenn Jackson confirmed that no juveniles are eligible for the TRL program.
Members asked if a TRL is a one-time privilege. Glenn Jackson said an individual can re-enter the program after a certain period of time. The driving under suspension ‘circle,’ in which an individual would continually lose privileges for driving under suspension, has been addressed. Driving under suspension no longer disqualifies individuals for TRLs. Driving without insurance has been decriminalized, and will not prevent someone from getting a TRL. There has been an increase from 2400 to 3000 TRLs last year, and this is helping to keep people on the road with insurance.
Travis Fink said that in his work as a public defender, he often encounters minorities who are paid less than others working in the same position. People working as day laborers face particular difficulties with program fees, because they receive same-day get payment. Professor Grijalva recalled Commission discussions on the affordability of jury service for low-income individuals. The Commission received information from people who could not afford to take the day off of work for the $25 juror pay. Professor Grijalva said that these issues are complicated because the rural nature of the state makes travel critical to most activities. Many times, the effect is that policies can compound individual problems and offer people little chance to recover from mistakes.
The Committee discussed fees, non-payment, and tests. Travis Fink said that costs may include one dollar per test and two weeks payment in advance. Many times people get arrested and subsequently loses their jobs. They have little money to afford up front and periodic costs required for programs like drug testing. Travis Fink reiterated that the 24/7 program is being handled differently between counties. In Stark County, for instance, bond is not forfeit if the offender lacks the ability to pay, because of the need to keep people on the test. Burleigh County requires payment up front. If the individual lacks money to pay, a report is sent to a judge, who issues a warrant. Stark County found an equal protection problem for this same procedure. Resources issues also come into play. Grant County, for example, often lacks an available deputy to manage testing.
Jim Fitzsimmons said that this discussion should put on a subsequent meeting agenda because there appears to be an issue, if not with due process, then with equal protection. When the statue governing 24/ program was created, it allowed each sheriff’s department and county to develop implementation and guidelines for the rule. Judge McCullough said that the Committee should include Attorney General Stenjem in any future extended discussion on the 24/7 program. Travis Fink said that in a prior case he argued the 24/7 statute is unconstitutionally vague because it does not lay down any guidelines for running the program. The Attorney General has authority to promulgate the rules, but actual rule-making is delegated to the counties. Travis Fink said a district court in Montana found that requiring payment for the 24/7 program is a constitutional violation because of its unequal effect.
In response to Member questions, Glenn Jackson said that the TRL can be used at either post-conviction 24/7 or pretrial. Individuals can volunteer to participate in 24/7. Judge McCullough said that 24/7 started out as pretrial program in North Dakota. Judges have inquired as to situations where a person cannot pay and is ultimately acquitted or found not-guilty. The question is whether those individuals, clothed with the presumption of innocence, can be reimbursed for the cost of the program. Judge McCullough said this issue has not been adequately addressed. There is a difference between the pretrial condition of bail 24/7, where there is a presumption of innocence, and post-trial conditions lacking the presumption.
Judge Foughty said that if the Committee invites the Attorney General, he should be fully informed of the current discussion. Travis Fink offered a copy of his brief on the topic and Judge Foughty requested he send this material to staff. Corey Pedersen said that his organization compiled differences between county administrations on a spreadsheet when 24/7 became mandatory for juveniles. Chairman Foughty requested Pedersen send this information to staff. Travis Fink said that he would provide staff with the Montana opinion, which focused on the state’s pretrial program.
Chairman Foughty requested any updates on the Cass County evidence-based pilot. Judge McCullough said that the project just recently passed a milestone in terms of the evidence it has generated, though he was not aware of any findings or conclusions. The pilot program has been working in Judge Racek’s court since January with the goal of collecting data to understand how the tool is impacting sentences. Judge McCullough said that one goal is to complete assessments early in the legal process and make information available to inform negotiations. This will help the parties come to a plea agreement and judges decide sentences.
Leann Bertsch said that DOCR, the Department of Human Services, the jails, and the courts need to meet and discuss coordination. The Human Services Director can provide an understanding of barriers for access to treatment or even delays that significantly impact the offender outcomes.
Staff said that there was some suggestion during the previous meeting about putting together a pretrial pilot in Burleigh County similar to the sentencing pilot underway in Cass. Based on prior discussions, the first step would be the selection of a tool and several examples were provided in meeting materials. Leann Bertsch said such a program would be similar to those at the federal level.
Typical assessments would take about 10 minutes to complete. Assessments provide information on whether an individual is likely to show up in court. More advanced tools rely on accurate basic predictors to provide information on whether the offenders are dangerous. An assessment tool requires validation to norm it to the local population and ensure accurate predictors. Staff said initial steps would be choosing an appropriate tool, attempting a pilot, probably in Burleigh County, collecting necessary data, and working out any issues.
Leann Bertsch said that the Department of Corrections has an interest in administering the tool, but either a probation officer or a trained vendor could complete it. The tool would require a 10 to 15 minute interview to generate information to present to the judge before the first appearance. There would have to be a decision on which populations to examine. Chairman Foughty suggested felonies and perhaps DUIs. Judge McCullough said that participating officials are identifying populations in the Cass pilot. The group would have to be formed to approve the project, including the State’s Attorney office, judge, and public defender, would probably decide which populations to examine.
Chairman Foughty said that that Judge Hagerty is interested in becoming involved. Leann Bertsch said that she would also be willing to work on this project. The project must coordinate with the Burleigh County Jail, and it would be easy to take a one-day snapshot of the jail population. The purpose of this instrument would be to identify people who do not need to be in jail pretrial. The next step would be to decide whether to change some of the bond practices. For example, the federal courts seldom require money up front for release, while this tends to be a state practice.
Travis Fink said Burleigh County has been trying to move toward facilitating defenders during initial appearances to allow consideration of plea agreements right away. Burleigh has also done away with pretrial conferences. Now there is an initial appearance for misdemeanors, followed by a separate trial. For felonies, there is a preliminary hearing and an arraignment, followed by a separate trial. Travis Fink said, considering recent changes, it might be a good time to include a pilot.
Leann Bertsch said that the main purpose of the project would be to validate a tool for feedback. This would be useful in deciding whether to establish a pretrial services capability. On the federal level, where pretrial services are in place, about 20% of offenders are detained, while roughly 80% are released. These proportions are approximately reversed in state courts. Pretrial services are allocated based on risk. An officer may check-in with individuals at halfway houses, utilize SCRAM, or provide up front conditions rather than jail. Pretrial detention does not appear worsen situations of high-risk offenders. However, if the offender is not high risk, then jail time increases the likelihood of negative outcomes, including harm to the case and increased likelihood of future contact with the criminal system. These results are similar for juveniles. Overall, minorities tend to end up in jail at higher rates and for longer periods of time.
Leann Bertsch said that a pilot could be done in any jurisdiction, but Burleigh is convenient, with a large jail population that is heavily pretrial detainees. Focus on one-day count of jail populations can help to determine which class of cases to examine. Collection should not be limited to felonies, because A-misdemeanors can clog up the system and can be out on bond. Chairman Foughty asked whether there was interest in going forward on this kind of project. Leann Bertsch said that DOCR is interested; the key is whether a presiding judge is interested in validating the tool. Chairman Foughty said he will contact Judge Hagerty on this topic.
Chairman Foughty provided a short explanation of unbundled legal services and discussions in North Dakota. In response to Member questions, Jeanne McLean said several examples of model limited-scope contracts are available. In some states, the entire self-help effort consists only of an unbundling program. These programs usually consist of a director and a list of attorneys offering services. Many times, programs cannot generate enough attorney interest in pro-bono work. The current goal in North Dakota is to establish an unbundling program, but SBAND must to be on board. Many attorneys are worried that judges will not allow lawyers to cease involvement in cases, per their agreements. Many Self-Help Center clients have some money, but not enough to retain an attorney. Some have already produced documents and seek attorney review.
Jim Fitzsimmons said moving forward may require a specific form or rules that do a better job of protecting and reassuring attorneys. He added that the term ‘limited-scope services’ is clearer than ‘unbundling’ and should be used instead. Jeanne McLean said that North Dakota needs CLEs for lawyers who are interested in limited-scope services, but lack a complete understanding of how to provide them. Chairman Foughty suggested that Lean Barnhardt could help to develop education programs for judges.
Staff said that the MJI Committee previously distributed materials from a book by Stephanie Kimbro. Materials included checklists, model forms, and other documents on the limited-scope process. Staff said materials will be shared with the Self-Help Center. Chairman Foughty invited Jeanne McLean to the Lake Region Bar association as soon as there is an education program ready for presentation.
Sally Holewa said North Dakota might consider implementing a more specific rule of court on limited representation. Jeanne McLean said that, generally, there are very few limitations on services that can be provided in this capacity, so long as lawyers and clients are both comfortable. Jim Fitzsimmons suggested that a broad, open-ended approach would not reassure attorney concerns. Sally Holewa suggested that a comment to the rule might be an effective approach. Chairman Foughty directed staff to research other state rules on unbundled services to help inform any modified rules or comments.
Jeanne McLean said that some Self-Help Program referrals, especially from Cass County, highlight significant problems finding language interpreters. Staff said the Commission researched interpreting, and found that most state studies found these issues to be among the most difficult to address. Jeanne McLean also indicated that a significant number of callers to the program have requested help in tribal court. There are no tribal codes available to the Self-Help Program and it is difficult to direct callers to adequate resources. Chairman Foughty noted that some tribal codes are uncertain in certain areas because of difficulties updating them.
Jim Fitzsimmons said Legal Services of North Dakota used to provide education for New Americans in the Fargo area, through high schools and other programs. This effort has been cut because of funding difficulties. The main problem with tribal courts is scheduling. There are fewer attorneys are practicing in the tribal courts compared to prior years. Jeanne McLean said people can contact the Self-Help Program by phone and email. Brochures have been distributed to clerks of court, and law enforcement has apparently been referring people and making materials available. Pamphlet will be made available to Legal Services when more arrive from the printers.
Professor Grijalva commented on the limited scope services survey draft from the meeting materials. Staff explained that during the last meeting, members discussed developing a survey on limited-scope representation and sending it to the bar. The survey would attempt to measure subject knowledge and whether any attorneys offer such services. Staff included a draft for the Committee’s consideration. Professor Grijalva recalled that guideline materials distributed during the last meeting strongly emphasized the need for education. Sally Holewa said that such a survey would be a basic precursor to developing an approach for limited-scope services. Chairman Foughty requested comments and asked whether there was a consensus for implementation.
Chairman Foughty asked members to send staff any suggestions on survey format, editing, and content. Sally Holewa mentioned that a ‘court approved’ model agreement would be unlikely, but it might be possible to develop a ‘bar approved’ model. Jim Fitzsimmons suggested changing the introductory language to refer to ‘limited-scope legal services.’ Judge McCullough said the definitions in the survey introduction should include references to state rules on limited-scope representation. Jim Fitzsimmons and Sally Holewa said the rule is short and it could be included in full. Professor Grijalva suggested a similar judge’s survey also be developed.
Jim Fitzsimmons made a motion to ask the executive director of the bar to distribute an edited version of the bar survey designed to measure knowledge and use of limited-scope services among North Dakota attorneys. Jessica Johnson seconded and the motion carried unanimously.
Staff explained an example of a California website that provides a potential model for connecting clients with limited-scope attorneys. Attorney profiles on the site provide available services offered along with fees.
Public Education Programs
Staff said that the Committee previously requested research on public education programs in other states. Some of the meeting materials come from a program called ‘Street Law,’ which provides public education at all levels from high school to professional. Meeting materials include an excerpt of a program on the importance of diversity on juries. There is a broad selection of free education programs on the Street Law website. Some are designed specifically to be presented at community colleges. These could be used as materials or models for North Dakota programs.
Meeting materials also included a summary of pipeline program from New York State. This program consists of programs run by different organizations that have been compiled into a semi-coordinated pipeline, including programs directed to minority students. Many other state programs appear to be intended as mentorships rather than education programs, so focused on connecting professionals with students. These programs did not offer sources for example materials.
Professor Grijalva said meeting materials appear similar to the In-Med program in Dakota. Eugene DeLorme was successful in getting funding for In-Med, but an attempt to develop a similar legal effort found less significant funding. One problem is that in order to encourage minority student applicants to med school or law school, they need to get interested in high school. Success requires sufficient direction and motivation to maintain competitiveness. For example, to help inspire interest in medical careers, Eugene DeLorme brings high school students to campus over the summer and gives them a mock-med school experience to generate interest.
The law school would require support from SBAND and the courts for similar effort. For many years UND maintained an Indian Law Center, which allowed individuals with areas of specific expertise to affiliate with the law school. Currently, there is no general program, but a number of individuals run specific programs. One advantage of an effort undertaken in cooperation with NALSA would be that law student participants could better relate to interested Native students. This would also be an opportunity to collaborate between the law school, bar, and courts to reach the community college level, and possibly even high schools. There is a need to convince legislators that encouraging more rural, especially Native American, attorneys would be useful to solve some of the oil patch problems. The Committee should work to get support from the Supreme Court, SBAND, and the legislature to think up a number of important goals and put them together in a way that will benefit everyone.
Jim Fitzsimmons said he has had the opportunity to work with In-Med and it is an effective program. He added that Thomasine Heitkamp has developed network of Native American social workers throughout reservations, and her graduates have recruited even more students. The number of Native American social workers in the state appears to be very high, and many trace their careers back to her or her graduates. Jim Fitzsimmons suggested inviting Thomasine Heitkamp to a future meeting and speak about her work, which, though not as formal as In-Med, appears to be effective. Chairman Foughty and Professor Grijalva said they would attempt to follow-up with her.
Professor Grijalva said that, to some extent, the issue is investing sufficient personal time with students. The long distances traveling from Grand Forks to locations throughout the state make this difficult. In addition, there are few people consistently available at UND to perform this kind of work. Professor Grijalva noted that the last Native American faculty member at the law school recently left. An ideal situation would allow Native American faculty to speak to students. This would allow a greater legitimacy than possible with a non-Native.
Jessica Johnson said that the Indian Affairs Commission holds an Indian Youth Leadership Academy every June for grades 9-12. Speakers could be invited to talk about the need for Native American attorneys and the advantages of the career. The Leadership Academy tends to consist of driven, high-performing students. It might be possible to coordinate with this program annually. Professor Grijalva said that, in the past, he provided a model case for students, going through materials in a similar manner to a law school classroom. A future program could include the NALSA President as a participant.
Chairman Foughty said the Administrative Council approved an updated PASSPORT form. Sally Holewa said that the cover sheet changes are being programmed into the system and do not need additional approvals.
Chairman Foughty said the technical staff acknowledged that the sheet should have the model’s consistent visual format, including text boxes to ensure familiarity to enforcing officers. He said that the next step would be to get the tribal courts and the Attorney General at the next Tribal and State Court Committee meeting. Sally Holewa said that the PASSPORT draft included in the materials is an early version and there are most likely boxes in IT system. Mike Sampson, the IT programmer who has been putting this project together, is including text boxes in the format.
Jessica Johnson said she spoke with all four clerks of civil court, who said they are willing to consider this project. A meeting with the attorney general is planned, which will include discussion of methods to include tribal orders in the state system. There is also a Tribal and State Court Committee meeting on May 29. Jim Fitzsimmons suggested inviting Janelle Moos and Linda Isakson to attend this meeting.
Rural Attorney Programs
Staff said that he researched rural attorney programs, as requested during the last meeting, but found no examples of rural attorney programs designed specifically to encourage minorities. However, staff included information on the South Dakota program discussed during the last meeting.
Judge Foughty summarized topics that will be covered in the upcoming meeting of the National Consortium on Racial and Ethnic Fairness in the courts, which will take place in Cody, Wyoming at the end of June. He said the discussions are usually very interesting, and organizers always create good agendas for these programs. This year’s program was developed by the Wyoming Heart Mountain Foundation.
Having no further business, the meeting closed at 12:30 p.m.