Minority Justice Implementation Committee
May 21, 2015
(Unofficial Until Approved)
Bismarck, North Dakota
Grand Forks, North Dakota (ITV Location)
Hon. Donovan Foughty
Erin Shanley for Scott Davis
Professor James Grijalva
Hon. Steven McCullough
Dr. Leander McDonald
Dean Kathryn Rand
Call to Order: 10:08 a.m.
Committee members and guests introduced themselves. Guests included Erin Shanley from the Indian Affairs Commission, sitting in for Member Scott Davis, and Catherine Palsgraaf, the new Citizen Access Coordinator.
Anthony Weiler moved to approve the minutes from the 19 February Committee meeting. Leann Bertsch seconded and the motion carried unanimously.
Terms, Membership, and Access to Justice
Chair Foughty indicated that the initial two-year terms for several committee members would expire prior to the next meeting on August 13. These terms were decided by lot during the July, 2013 committee meeting. The three members who drew initial two-year terms were: Chair Foughty, Dr. McDonald, and Ulysses Jones. All indicated a willingness to continue serving for an additional term of three years. Anthony Weiler moved to approve renewal of terms. Corey Pedersen seconded and the motion carried unanimously. Chair Foughty directed staff to draft a letter to the Chief Justice notifying of the committee’s vote and asking for approval for re-appointments.
Staff said that a letter was delivered to Chief Justice VandeWalle outlining the Minority Justice Committee’s vote to approve a name change and expand to include additional access to justice subjects. The Chief also received a document comparing the Committee’s current work to work commonly performed by access to justice groups. This document covered the ABA key issues for accesses to justice commissions and highlighted the overlap between these and current Committee and state activities.
Mental Health and Pretrial Tool Pilots
Staff said both legislative bills discussed during the February 19 meeting failed. The bills would have established an interdisciplinary committee on problem-solving courts and a pretrial services pilot in three counties. He asked if the Committee could play a role in continuing these efforts because both relate to access or minority justice issues. Leann Bertsch said the committee on problem-solving courts does not require statutory authority and that the judiciary should establish one. Plans for problem-solving courts have to be well-thought out because of the many players required to support them. Some drug courts have been total failures because of lack of support. An interdisciplinary committee could help determine whether a program serves an adequate number of offenders to make committing resources worthwhile. Judge McCullough said he thought the court would look at adopting a rule to create this group.
Staff presented mental health data collected subsequent to the February 19 meeting. Data included criminal cases with a mental health filing between 2000 and 2014. There were only 56 cases during this period from several counties. Additional data included all mental health filings for 2012 through 2014, which was collected with the hope of providing at least some sense of the volume of mental health filings by county. Judge Foughty said the data might not be very useful. Mental health proceedings occur only with imminent or immediate danger to self or others. Even if a person is very delusional, judges cannot commit him under the mental health statute, and the data does not capture this reality. Members agreed that the mental health data has significant limitations, and probably does not tell the complete story.
Ulysses Jones asked if the data includes guardianship proceedings in which someone with mental health issues is placed in temporary custody for treatment. Sally Holewa said this was probably not captured. Judge McCullough said mental health information would be difficult to track without a specific event code in Odyssey. Dr. McDonald asked about the high volume of mental health filings from Logan County, and Chair Foughty said multiple filings may exist for the same person, which can skew the numbers.
Leann Bertsch said DOCR is considering providing two of the sixteen new probation officers with extra training and specialized caseloads of mental health offenders in Bismarck and Fargo. Their duties would include ensuring cooperation with service providers and that those with mental health needs receive adequate help.
Sally Holewa said it is difficult to get a sense of location to place a mental health pilot. Fargo has some measures of frequency of enforcement contact and charges, but data in other locations consists mostly of anecdotes and opinions. Staff said Scott Johnson suggested the possibility of securing a grant to hire a group to analyze individual counties or parts of the system. Members said federal grants may be available for mental health and criminal justice projects. Corey Pedersen asked if jails perform mental health screenings on everyone entering into the system. Leann Bertsch said that everyone is screened when coming into the jail, but only Cass performs a mental health assessment. Leann Bertsch said it is unlikely that screening data is collected centrally.
Chair Foughty commented that services available in the human services center are often unavailable to people in the criminal system. Leann Bertsch said the seriously mentally ill are considered ‘safe’ when medicated regularly in jail or prison, so human services criteria are not met. However, regular medication and support services cease on release, and these individuals may hurt someone before meeting criteria required for human services to step in and provide needed services.
Staff asked if there are any steps the Committee can take to help facilitate or support a mental health pilot. Sally Holewa suggested that focusing on the transition from corrections might provide information. Chair Foughty described community-based re-entry teams, which develop plans for people exiting the Department of Corrections. He said those serving time at a local jail can be released to treatment, but this is where most escapes occur. Sally Holewa said the re-entry team develops a plan, but the probation agent would actually follow the person. Chair Foughty said probation officers’ caseloads are large and geography is often a problem in rural North Dakota.
Leann Bertsch explained that the pretrial bill failed because of resource issues. However, it led to several mandatory studies that will look at the criminal system and corrections. She said the recommendations will probably indicate that hiring additional officers to create manageable caseloads will lead to better results while saving money. The first step to a pretrial pilot would be choosing and validating a tool before the state begins developing pretrial services. Sally Holewa said many companies offer pretrial tools, but there would have to be a decision as to who would select the tool. Leann Bertsch said any selection group should include someone from parole/probation, but the effort must be court-driven because the courts must be comfortable with the process. She suggested developing a relationship with UND or NDSU to allow a validation study. Judge McCullough said the Alternatives to Incarceration Committee should be kept informed of any activities in this direction that the courts and committee undertake. Sally Holewa said that she was recently informed that Burleigh County is looking for a grant to do some pretrial work.
Limited-Scope Update and Self-Help Materials
Chair Foughty described the most recent meeting of Joint Procedure Committee, which discussed the proposed limited-scope rules modifications. He said a rule should be completed within about six months. Chair Fought indicated that meeting materials included several example forms developed in Nebraska. He said North Dakota will soon be in a position to cooperate with the Self-help Center to run education programs with local bars, providing rules, the model agreement, and forms. The majority of cases in this area will probably be divorce or child custody. This effort will be a long road because of perceptions from attorneys that they could lose control of limited-scope cases. However, he added that data indicates that attorneys are actually less likely to be sued in limited-scope arrangements.
Anthony Weiler said that SBAND can continue to provide information on limited-scope services and run relevant CLEs. He said limited-scope is intended to be an access to justice tool, and the steps under discussion are positive, even if some are reluctant. Judge McCullough said there is no more concern over the amended limited-scope rules than any other rule that comes before the Joint Procedure Committee. However, it takes a long time for the group to talk to constituencies and complete submittal procedures. In addition, the sense of broad attorney concern may not be accurate. Committee members hold many positions outside of the areas where limited-scope services would be offered, and do not necessarily represent the views of all attorneys.
Ulysses Jones emphasized the importance of requiring a client signature on the limited-scope agreement to provide evidence that the client was made aware of the scope of the representation. The same should apply to the certificate of completion, to provide evidence that the client understands that the attorney is no longer involved in the case.
Catherine Palsgraaf said rules from at least one other state indicate that an attorney does not have to file a notice of appearance if their only role is to create documents. The self-represented litigant’s signature is the only one to appear in the documents. This decision arose from concerns that an attorney would create documents, sign them, and then become responsible for later additions. Staff noted that the Committee had provided the Self-Help Center with a model limited-scope agreement developed by Stephanie Kimbro.
Staff noted that limited-scope became a focus for the Committee because minorities at or near poverty level and might benefit from such services, and because best practices conceptualize limited-scope as a complement to self-help centers and legal services. Catherine Palsgraaf said it would be excellent to eventually develop a list of attorneys willing to offer these services. Chair Foughty stressed the importance of providing education to district judges, and getting them on board. Limited-scope services are a way to support better engagement for minority groups likely to be disenfranchised from the system. He said that discussions with Eilzabeth Neeley revealed use of limited-scope services is still relatively rare in Nebraska, but he did not know the extent of education and support available there.
Anthony Weiler said both the idea of giving up control over an entire and the suspicion that judges might force representation beyond the scope of the agreement can be frightening for attorneys. These concerns could be addressed with good forms, sample form agreements, and judicial education. Chair Foughty said that the Committee will have to develop forms with the assistance of the Self-Help Center and SBAND. This could involve particular members or the Committee as a whole. Judge McCullough said that one duty is to monitor the progress of race and bias programs. Once the rules and forms are completed this could be achieved by creating an event code in Odyssey to allow reports on use. This idea would probably require approval from the Policy Users Group or Court Technology Committee. Judge McCullough added that, as Chair of Judicial Branch Education Committee, he could guarantee inclusion of limited-scope information in education.
Staff explained a document presenting screenshots from the Native American Rights Fund and the National Indian Law Library (NILL). In past meetings, Jeanne McLean mentioned that some Self-Help Center callers posed questions on Indian Law or Tribal Law, and that the Center had limited resources in these areas. Staff said that the NILL site contains links to tribal codes published on all North Dakota tribal websites. The links worked, but he was not certain how current the codes on the tribal websites were. However, the site also allows the public to directly contact an NILL employee for assistance, and contains contact information for each tribe. Dr. McDonald said that some of the links for Spirit Lake that appear on the NILL website, such as the Tribal Constitution, are also available at North Dakota.gov, and they were in the updating process when he left office. The close ties with Northern Plains Tribal Court of Appeals have produced some rulings that few people are aware exist, and that would have solved problems had they been known. It is important to create resources to allow tribes to access this information in addition to other education efforts.
Erin Shanley said the Indian Affairs Commission has been consolidating codes and information on their website. This may be another direction to point self-help litigants. Chair Foughty said keeping the tribal codes current has been a significant problem. There are significant legal needs in Indian Country. Private attorneys are coming in and finding no clear legal rules, particularly with regard to family law. Anthony Weiler said that, in his experience, family law judges would often follow state law if there was no case on point.
Professor Grijalva said North Dakota is really no different from tribes in that it looks to federal law and the laws of larger states if there is no law on point. No one suggests that tribes should simply adopt state law, but there are good reasons tribes might want to look at state laws. States often borrow from other states to maintain consistency, and avoid ‘re-inventing the wheel.’ Dr. McDonald said that when Spirit Lake needed to update their drug code, they used codes from Turtle Mountain, Fort Berthold, and the state code to create the foundation. The Turtle Mountain and Fort Berthold codes were also based on the state code, so all are currently in line with what is happening at the state.
Judge McCullough said the North Dakota court website makes variety of information accessible, information not limited to the state of North Dakota. The “research” tab is very helpful, and it would be beneficial to include tribal information as soon as possible. Sally Holewa said that this tab could be linked with the Indian Affairs website. She added that the issue of keeping updated codes is also a problem with municipal courts. When contacted for copies of ordinance violations, many cities do not have them compiled or lack the manpower to determine whether they have them. Judge McCullough said he represented many counties prior to becoming a judge and, during that time, he compiled a code and sold copies to a number of small cities. Chair Foughty asked if he could provide a copy of this code. Judge McCullough said he could contact his old law firm to try to find it.
PASSPORT: Spirit Lake Update
Chair Foughty said that the Tribal and State Court Affairs Committee discussed PASSPORT. He said there is a mechanism for getting tribal protection orders into the state system. Currently, anyone named on a protection order can file with clerk of court in county and it would go into the system. The goal is for clerks from tribal courts to be able to send orders directly to the state clerks. Sally Holewa said that there has to be an underlying filing for this to work; the process cannot just be an informal email to the clerk. The filing must come in as a new case or the clerk has to have a destination for it.
Judge McCullough said there will have to be significant training. He said if there is a way to tie the tribal and the state systems more closely together through a filing server, Odyssey Users Group and the Court Technology Committee would support it, as it would solve a number of problems. On the district court level, Judge Racek has been pushing for closer electronic ties between the state and various tribes.
Chair Foughty said that the end goal is to include tribal domestic violence protection orders in the state system so police officers have electronic access to them. Sally Holewa said, based on discussions from prior meetings, clerks do not set up a file and pass it into the state system when a party brings in certified copy of domestic violence protection order. Instead, orders are filed as foreign judgments. In this case, there is no way to get them into the system. Chair Foughty said that the Attorney General’s Office is willing to take domestic violence protection orders.
Ulysses Jones asked whether there is a need for a rule to address filing issues. Chair Foughty said there is no need for a filing in order to enforce the order because of Full Faith and Credit. If someone from a foreign jurisdiction has a domestic violence protection order and the officer believes one exists, then the violator is arrested and prosecuted in the jurisdiction where they are located. The filing system would allow local police to confirm orders using their computers. Judge McCullough asked whether this would be an issue for tribes and law enforcement. Chair Foughty said a few tribes appear to have mechanisms allowing them to place orders into the national system through the BIA, but others do not. The fastest and easiest way to get a tribal court order into this system without additional infrastructure is for a certified order to be delivered to the clerk of court to be entered into the state system.
Chair Foughty said he understood that clerks of court could put the orders into the Attorney General’s system. Sally Holewa said the information would not automatically pass from clerks into the system. Clerks would have to open orders as new files to activate an automatic pull that puts the data into the file. Currently, the clerks are opening the domestic violence protection orders as foreign judgments. Chair Foughty said that a rule will probably be required to allow the clerk of a tribal court or agency to email orders. Judge McCullough said the Court Technology group would probably object because they have been trying to reduce emailing. He said making this work would be beneficial to both the tribes and the state, but there must be consideration of the burden on the system.
Chair Foughty requested Judge McCullough speak to Judge Racek about ways to include tribal domestic violence protection orders in the state system. Corey Pedersen asked if this was similar to the juvenile system, which does not allow case filing through the server, but creates an exception that allows hand-delivery. Judge McCullough said cases can be initiated through the server, and that this is a training issue, similar to when attorneys began using the system.
Corey Pedersen said some tribes currently e-file their notices to intervene instead of emailing them. There were some issues between Standing Rock and Cass County, which Scott Davis resolved through discussions with the tribes on the technology. The resolution was mostly a matter of training. Judge McCullough said part of the problem was that there was some effort to push the system on the tribes.
Ulysses Jones asked whether the proper processes for contesting the validity of the order would belong in tribal court. Judge McCullough said that the issue of order validity can still be brought up district court because of Full Faith and Credit.
Staff said he contacted Spirit Lake to get a sense of the college’s interest in cooperating with a future education effort. The response was positive. Sally Holewa said some funds are available for the biennium once the Committee develops a course of action, but the program needs some structure before funding can be determined. She said if a program were done through a contract with UND Law School, the state could provide a stipend but could not pay students directly. Professional services funds are budgeted.
Professor Grijalva said the key issues with the NALSA effort should focus on trust and diversity in the system as well as Indian Law issues. He reiterated that the NALSA students would not receive credit and do not pay tuition for projects such as the proposed presentation at Spirit Lake. The question is how to provide an incentive to develop a useful program and then try it out.
Dr. McDonald said that there is a need for resources to build capacity on reservation justice systems, including court systems, law enforcement, and prison systems. There has been recent federal funding for community and tribal colleges to support students interested in health careers. It may be possible to find federal funding to support pre-law or legal education. United Tribes is interested in exploring this possibility, and some of the work has already been completed. Dr. McDonald said, with proper funding, colleges could also provide education to the court system, though this would require partnering with organizations such as the UND Law School.
Staff said there are many distinct recommendations from the Race and Bias report that call for education of various groups: court staff, students, judges, attorneys, law enforcement, and the public. Sally Holewa said ideas surrounding education recommendations have been vague. Originally, the idea was for students to go and advocate for legal careers, but members have also proposed more substantive programs on legal issues. She said there must be a method of sorting through different possibilities and deciding on when, where, and to whom programs will be provided.
Professor Grijalva suggested forming a subcommittee on this topic. Judge Foughty suggested Anthony Weiler, Dr. McDonald, Professor Grijalva could form a sub-committee with help from Erin Shanley.
Erin Shanley noted that most tribal colleges have criminal justice programs with an enforcement focus rather than pre-law. She said colleges would like to see a more expansive curriculum, which would depend on faculty and other factors. Dr. McDonald noted that he now has significant influence on curriculum in his new position.
Education Program for Professionals
Chair Foughty explained a document entitled: “Education Programs for Professionals: Connecting Courts to Minority & Economically Disadvantaged Communities.” This is a grant that will allow research funding to study minority communities and disenfranchisement from the system in particular states. Prior discussion within the funding organization, the National Consortium for Racial and Ethnic Fairness in the Courts, focused on the ways to get in touch with people who do not think of themselves as part of the bigger system. North Dakota has a good chance of participating in this study because there are few states with significant Native American populations. Chair Foughty said the committee may want to get involved with this project
Sally Holewa said she contacted the National Center for State Courts about this grant. She directed them to mark down North Dakota as ‘interested’ in being one of the six pilot states for this project. She said that this group has spent years telling minority communities positive things about courts, and this does not appear to have significantly improved trust in the courts among these groups. Chair Foughty said this project will try to get feedback from people who do not necessarily feel that they are part of the overall system, and make necessary substantive changes based on what they find. Sally Holewa said this effort will attempt to get into the communities, understand their perspectives, and re-formulate the message or its delivery to encourage trust and participation.
Chair Foughty said the National Consortium meets in June. This effort will be one of its topics, and there will probably have more information within the next six months.
Recommendations on New Americans and Follow-up Meetings/Focus Groups
Staff explained Race and Bias Commission recommendations on outreach and education for New Americans, which focused on the Fargo area. He said the Committee has not yet discussed these recommendations. The Race and Bias Commission included the director of Lutheran Social Services (LSS) as a member, which created a connection to these minority communities. There is an LSS restorative justice program, which would indicate the group has familiarity with issues in the area of criminal justice.
Sally Holewa said she thought that LSS runs a monthly program for New Americans which provides education about cultural differences to newly-settled immigrants. Corey Pedersen said that LSS employs a juvenile liaison who runs restorative justice programs and other programs for New American students. He said many of the referrals to juvenile court in Fargo involve the school system.
Staff suggested that the expanded Access to Justice Commission might include a member from LSS, to create better connections with these communities. Chair Foughty suggested including either someone from LSS or from a New American community. Corey Pedersen said he could forward the name of the juvenile liaison.
Members discussed the possibility of holding follow-up meetings similar to those undertaken by the Race and Bias Commission. Staff suggested that focus groups would be preferable over public meetings, because they were much more productive for the Commission. For the Commission focus groups with New Americans, LSS was able to put the Commission in touch with leaders who were comfortable speaking for their communities. There was a greater willingness to speak freely than in the public hearing setting. Ulysses Jones said New Americans appeared to have grave concerns with access to justice, minority justice, and other areas. He said it might be useful to focus other efforts in the oil patch to find out whether there are similar concerns there.
The Committee agreed to seek an Access to Justice member from LSS or a New American community. Members suggested staff look for groups or individuals in the oil patch who are expressing concern about minority justice or access to justice.
Retrieval Mechanism for County Jail Data
Staff described attempts to collect pretrial data from county jails, saying that many those contacted were unable to provide any information. He noted that the Race and Bias report called for the development of a retrieval mechanism for county-level data, with the intention of assessing demographic information at early stages of contact with the justice system. Leann Bertsch said lack of data at this level creates a large knowledge gap.
Staff said there appeared to be different methods of collection among counties. Some indicated that compiling information would require examination of thousands of individual records, which they could not complete. A few appeared to have concerns about providing data, and asked if the request would become routine. Other counties provided relatively good information: the Southwest Correctional Center and Burleigh County were able to provide most of the data requested.
Judge McCullough said that raw data probably exists, but non-responding counties may have never compiled it. Staff asked whether it would be useful to try to develop a retrieval mechanism from a few of the large counties and expand from there. Leann Bertsch said that DOCR pushed for implementation of basic electronic jail databases several years ago, during the implementation of the SAVIN victim notification system in all jails. There was a lot of resistance to this effort. SAVIN can provide limited data, such as names and crimes. Leann Bertsch said that, at some point, the jails will have to start providing data for a wide variety of reasons.
Chair Foughty said asked which systems the responding counties used. Staff said the Southwest Correctional Center uses LERMS. Sally Holewa suggested contacting CJIS employees to see what data might be available. She said a number of jails use LERMS, but that, in her experience, many jails collected only required data, with a focus on dates of entry into jail and release. She said that many jails may be using LERMS to the minimum. Leann Bertsch agreed that jails will not keep data unless it has some value for them. Corey Pedersen said the Southwest Correctional Center is a multi-county facility which must keep more detailed data to track who is detained as well as costs for counties.
Members said counties using LERMS should be able to compile comparable data to the Southwest Correctional Center. Dr. McDonald noted that more isolated counties might lack this capability; reservations would be similar. Judge McCullough asked if counties or regional jails receive any state funding. Leann Bertsch indicated that they do not.
Chair Foughty recognized Jim Fitzsimmons, who passed away a short time after the last meeting. He said he knew Jim since about 1978, prior to attending law school. He was good friend who cared about people that had less. He will be greatly missed. Sally Holewa said that while most people tend give up their idealism rather quickly, Jim never lost his. He always remained very much concerned with justice and fairness.
Having no further business, the meeting adjourned at 1:00 p.m.