Interim Committee Notes: Joint Select Committee on Judicial Reform and Redistricting

Date of Committee Meeting: Monday, January 22, 2018, 1:00 PM

The Joint Select Committee on Judicial Reform and Redistricting met this Monday for the second time. The committee heard Administrative Office of the Courts’ reports on work load in judicial districts, length of certain cases, and types of cases heard in different districts. New proposed maps were also presented to the committee. To see the full agenda, click here.

The presentations are linked in each section, followed by questions and discussion. While reading these notes, please keep in mind that this is not an all-inclusive, verbatim outline. My notes are meant to capture the overall essence of the meeting, so some of the comments and questions are summarized.

Format of these notes: Question/comment by a committee member (unless otherwise specified)–>the answer (typically given by the presenter) follows the arrow

Senator Daniel, Presiding

Full list of committee members – click here.

All handouts – click here.

Presentation of Workload Formula by AOC: Brad Fowler, Research, Policy, and Planning Officer

Discussion:

Sen. Bishop: Regarding DA’s workload formula – want to understand change with cases and revising time study to account for it –>Would require request of Conference of District Attorneys; There isn’t a mathematical way of doing it; it takes conversations to figure it out. Multiplier of time can change based on policy.

Rep. Jackson: Changes in 2017? –> Yes, for District Court Judges

Rep. Jackson: Would some counties have more offenses than would otherwise indicate? (i.e. along I-95), and is that taken into account in workload formula? –> Yes, but there are some differences, which are taken into account when differentiating case type, etc.

Rep. Jackson: Some judges seem to be taking more time with minutes than others (difference in local practice). Taken into account with work formula? –>  Don’t want to reward inefficiency, and don’t want to punish efficiency/a more thorough job. Math assumes and hopes that once you get into significant number of cases, will make average meaningful.

Sen. McKissick: Trying to determine…disposition, allocation, how do you take this into consideration/ how are these factored in? Could have substantial implications in number of cases, speed, they’re processed. –> There are local differences. Workload formula suggests it should be reallocated. Workload formula is based on filings, not dispositions. Balancing act, and will be a struggle with statewide average in comparison to each county.

Sen. McKissick: Asked if there’s a more inclusive way to measure the various factors –> In short, yes. For example, police work quality really matters. But how do you factor in/measure quality of investigation? Theoretically and mathematically, yes, but not sure how one would assess that.

Sen. McKissick: Would it be helpful to bring in National Center for State Courts to do an exhaustive study to identify all factors that should be taken into account, and how to do it, to have a more predictive model to assess workload (and how to differentiate workload in different areas of state)? –> We have always worked with them, but that’s up to NCGA. Basic methodology would likely not change.

Sen. Hise: One of biggest challenges with this formula is I don’t see linear nature of formula. Inherent differences in allocations that model doesn’t take into consideration. There are no minimums, but there is a minimum number of staffing needed to do certain things (baseline before start applying formula). Indicates large urban v. rural divide. –> DA’s presented what they found in large counties, urban, rural. Were there some slight differences? Perhaps. Were they meaningful? They decided not. Part of it depends how big the counties are (full-time staff or not). Also consider turnover. Transactional work and coverage work (clerks and magistrate).

Sen. Hise: If you’re designing a model to forecast workload, wouldn’t it be better to take variables in calculations and see what the associations are rather than have groups eliminate variables from forecast? –> At one level, it would seem mathematically pleasing if everyone took same amount. Unrealistic, especially to measure/score everything, including quality of all work done, etc. There is value to it because you learn relative size of workload.

Rep. John: When responding to Sen. Bishop, (Fowler) referred to recommendations every 3-5 years. Please clarify/explain. –> Full-time study.

Rep. John: Last time there was a full-time study? –> Fall 2011 to Superior Court Judges.

Rep. John: Adjust from time to time case filings, there have been no adjustments to time to deal with case filings since 2011. –> Except for the folks making adjustments

Sen. Blue: Has AOC thought about a study on incentivizing Superior Court Judges for their time? –> For Superior Court Judges, the participation rate was over 90%. The longer you try to do it, the quality goes down. Important to not mix on-bench time to overall time, because a lot of the work judges do is not just on the bench. Comes down to question of policy decision.

Sen. Chaudhuri: When was last study for Superior Court Judges? –> 2011. In 2011, AOC  in conjunction with National Center for State Courts made recommendations at the end of the report; one for there to be systemic review of workload vehicles.

Sen. Chaudhuri: Given the fact that the last time this was done was in 2011, do you think we are due for another workload review by National Center for State Courts? –> Don’t have firm opinion it…National Center believes we are overdue. However, it is a policy decision and must determine whether it’s worth the investment/money.

Sen. Chaudhuri: If NCGA allocated money for it, you think data from new study would be more reliable and up to date? –> More up to date, yes, more reliable, unsure.

Sen. Chaudhuri: Understand that a time study takes 18 months, so would information from census population that overlaps with time study information create efficiencies for your office to give data to this committee? –> Census data would not be relevant. Population would not be a factor. Recommend staggering studies for each group (wouldn’t have to be 18 months between)

Rep. Stevens: Want to make it clear to the body that NCSC keeps up with bench time, and they aren’t spending a lot of time on the bench. We have the ability to get more out of judges than we are now. Invite any one of you to take a look at the records. We are keeping up on time; is that something we can still use? Doesn’t tell us about case load. Is off-bench time expected to be as much as 50%? –> Cannot answer, but have provided info NCGA requested. Personally, believe that overall time spent is a better measurement than just bench time. Would be careful at only looking at time, but time on bench is only one factor. There are variations in local practices.

Rep. Stevens: Comment regarding flexibility in time available based on proof of hour variation –> More hours available in court rooms than we use, but not all hours are going to go toward that. They can dictate how their hours are used. Always encourage full utilization of resources.

Sen. Van Duyn: When you have a model like you do, dealing with limited resources, what happens when you have something that ‘we’ (Buncombe) believe is an outlier. Workload going up, more continuances (domestic violence cases). Feedback mechanism to make sure model doesn’t need adjustment in certain district? –> To the extent that filings have increased, that is included. To extent your district wants to spend more time on these cases (general cases across state have become more complex), should that be reflected in number of minutes? Juvenile cases take twice as long, and are longest. State-wide adjustments are better than local ones. Would be an NCGA decision on whether to have another judge or not.

Sen. Van Duyn: What happens if you get sentence that proportion of juvenile shifts out of typical range? Is there a feedback loop that you provide back to NCGA? Concerned that we (Buncombe) are running into issues with federal guidelines. Supported NCGA’s decision to Raise the Age; This could put more juviniles into system. –> Justice in area sets the tone.

Sen. Van Duyn: How do we know if we have enough judges? –> NCGA determines how many judges are sufficient

Rep. Blackwell: 8-9 years ago – time study. Assigns certain number of minutes in particular category to time to final disposition. Haven’t done full time study since then. However, we made adjustments annually based on number of filings, but use three years of data. Without going back and redoing the time study, if district is experiencing drop or increase of significance in cases that take more or less time, that’ll be addressed. –> There has to be credibility for each constituent group that requests adjustments.

Sen. Randleman: While some counties have shortage, other counties have excess of district court judges based on formula (or at least percentage) –> Would need to look to make sure, but there are very few that need a full judge, but perhaps that still do. Judge need is usefully calculated, and percent of need is more useful than raw need.

Presentation of Different Map Option: Representative Justin Burr (R-Stanly)

Click the links to view each map:

Option A, Superior Court – Click here

Option A, Superior Court, in more detail – Click here

Option A, District Court – Click here

Option A, District Court, in more detail – Click here

Option A, Prosecutorial Districts – Click here

Option A, Judicial Divisions – Click here

Option A, All Courts – Combined – Click here

Proposed Legislation for committee to discuss – Click here

Discussion:

Sen. Van Duyn: You’ve changed the way we (Buncombe Country) elect county commissioners, and tried to change way we elect city council. Please stop treating us with special treatment. It is unconstitutional…deliberately doing something courts have said is unconstitutional. I just don’t understand.

Sen. Blue: Trying to get my arms around this. What criteria did you use for these groupings? Guiding principles? (Superior Court Districts) –> Divisions, intentions were to take it back to changes made in 1999. Pool of superior court judges in those divisions is so small, so increasing it would make it less of chance for them to sit in seats so frequently, which falls in line with what constitution says they should be doing.

Sen. Blue: So, how does that hold true when you pick Union County and separate it from Mecklenburg County? Makes them travel unnecessarily and arbitrarily. What are guiding principles (geography, etc.)? –> When working through this process, first start out looking at specific judicial districts. When lines are drawn and rotations in certain areas, places are going to be split. Took into account what workload analysis said is necessary.

Sen. Blue: What is criteria used for division of Superior Court districts? (election districts) –> Population

Sen. Blue: If that’s the case, how do you break Mecklenburg into two districts (one with 5 judges)? –> By listening to Mecklenburg judges’ suggestions and their feedback. There was a general consensus and didn’t hear any significant complains.

Sen. Blue: Regardless of what they want individually, what was your rational in drawing these subdistricts? –> I believe the option presented here today is in line with addressing those concerns because now, we have districts that align with the population from 2010 census.

Sen. Blue: Montgomery/Stanly – smallest Superior Court districts, but still has more judges than Rowan, which has twice the population. Still trying to figure out method used –> Again, looking at workload analysis and rotation, it was important that each division had appropriate number of Superior Court judges to serve in the divisions. These maps do accomplish that.

Sen. Ford: Regarding district court for Mecklenburg (26A & 26B) – Election for district court judges is county-wide. What is the justification to do something different to break them up? –> We have been over that and it was in part of previous discussions. Needs to be brought to level playing field, to run in same districts. This addresses Mecklenburg County District Judges’ concerns. Aligns closer to what previous districts looked like but also aligns with recent population census.

Sen. Ford: Have met with Mecklenburg County folks, and they have concerns and reservations. Going to go back to speak for people living in Mecklenburg County. There is a strong level of comfort and security in knowing that African American females feel comfortable running for judgeship. To provide consistency, should have people run at-large in county, rather than carve it all out. What criteria did you use to carve out districts?

Rep. Lewis: My understanding was the Rep. Burr was going to present the map(s) to educate the committee and public on changes made from the last map(s). It seems we are rehashing things that have already been discussed. This may not be a final map, and many questions seem to be argumentative and not a great use of time. Could we continue with the presentation on the differences?

Sen. Daniel: Yes, that was purpose of this presentation. Map is just an option for the committee to look at. Feel free to make comments, but in terms of interrogating Rep. Burr, let’s reserve these questions.

Sen. Ford: If Rep. Burr wants to answer the question, it would be helpful. If he’s going to make a proposal presentation, he should be prepared to defend it.

Rep. Burr: Here’s the existing district (held up map to show committee). (Directed toward Sen. Ford in response to his question/comment) When speaking to your district’s judges – and I’m sorry you weren’t able to be with us that day we met in Mecklenburg county – we looked at options that allowed for them to not be double bunked. This eliminated concerns they had.

Sen. Ford: Original question was about district court, not superior courts. What’s your justification, other than continuity? Allow the residents of Mecklenburg County to elect judges they want to elect.

Sen. Bishop: To Lewis’ point, I hear that Sen. Ford doesn’t like idea of making district courts the way superior courts are made. I am from Mecklenburg County, and we have a different outlook on this. I personally would be delighted to engage in back and forth discussion with Sen. Ford. Some folks don’t want change, especially incumbants. I respectfully disagree with them. We ought to get to the point of having factual answers first, and then have the debate where questions are asked in the guise of debate.

Sen. McKissick: I know you said there was no written criteria, and I assume that’s still the case –> Intent was to balance out according to populations in districts

Sen. McKissick: Can we get a concise document that we can see that summarizes data so it’s easier to digest? –> Suggest going to Senate Select Committee on Judicial Redistricting website…And looking at maps on there, and use those maps to compare to what you have.

Sen. McKissick: In terms of population, did you come up with ideal population for each Superior Court judge? Ideal number for appropriate ratio? –> Superior Court judges, District Court judges, and district attorneys are not decided based on population of each district. Important when looking at subdistricts. Otherwise, based on what’s needed in the courthouse. Judges aren’t elected to represent anyone. Intent was to eliminate smaller districts and make them larger to combine resources and use them more efficiently.

Sen. McKissick: Deviation for sizes of districts? –> No appropriate ratios based on population. Appropriate ratios based on workload. Population comes into account with subdistricts.

Sen. McKissick: Why did you use 2010 data rather than the most recent data? –> Used official census of 2010

Rep. Stevens: Reiterated concern for continual criticism of map

Rep. Burr: (Answered McKissick’s question) Encouraged him to call judges out there, saying they need the resources.

Sen. McKissick: I did, and he…

Rep. Burr: It’s a she

Sen.  McKissick: I am referring to a DA. I did not check his anatomy, but am pretty sure it was a he.

Rep. Lewis: So, you think he or she would be able to answer the question about difference in maps? No, so let’s get back to the presentation.

Sen. McKissick: I think the ideal way to approach this is to look at the appropriate number of Superior Court judges based on population. Then, look at deviations based on urban v. rural areas. What are your thoughts?

Sen. Bishop: (to Sen. McKissick) Why don’t you have a map drafted that embodies your merit? If the merit speaks for itself, perhaps it will prevail.

Sen. McKissick: The thing I don’t know is if there’s a B, or C, or D, and if so, when we will see them. I have done research and at the appropriate time, you may see a better alternative. Will we see other options from you?

Sen. Daniel: At this point, there is no map beyond option A. Since first committee meeting in November, we have been welcoming additional proposals, and have not yet received any (except anecdotally).

Rep. Jackson: It is my belief that you can’t draw a map without criteria, and we can’t get a list of what majority wants criteria to be. We want to see where judges live and they are double bunked. We will split towns and counties to make sure Republicans aren’t double bunked, but we can’t seem to get map of where they all live or what the criteria is. Want to speak on case that brought this to forefront in 1980s. People sued Gov. because map submerged African Americans and Native Americans through many divided districts. If you compare this to the Option A map, it takes us back to the way it was before 1980s. After that happened, we fixed it. Now, we aren’t being given that opportunity. You didn’t send me the map before you passed it out at 2:30pm. Didn’t have the opportunity to ask questions beforehand. You aren’t letting us participate.

Sen. Daniel: For clarification, population stats are online on committee website (Superior Court: County – District and District Court: County – District)

Rep. Jordan: Folks in my district (37) don’t like to be in same judicial district as those in Mecklenburg. Page 12, lines 41 & 42…fourth judge is on page 16, line 13, so showing 3 superior court judges for 37 and only one for 36…guessing this is an error? –> Yes, it will be corrected.

Sen. Chaudhuri: Are we going to get stat packs for this map? –> (Sen. Daniel) Any member of this committee can ask staff for this and it will be generated

Sen. Chaudhuri: Are there accompanied workload formulas that give guidance on how these maps were drawn? –> AOC is preparing doc that will have all that on there (should be done in the next day or so)

Sen. Chaudhuri: Did you (Rep. Burr) draw these maps? –> Worked with central staff, and House and Senate, so yes, I worked on these maps.

Rep. Stevens: Judicial districting requirements? –> (staff-Churchill) Do have Blankenship case and 1987 order in federal court (was a consent order after NCGA modified court districts); There are factors to consider in legislative districting, but NCGA has ability to say ‘these are the factors’ in addition to population. Section 2 (of the Voting Rights Act) will come into play at some point, as well as equal representation, but there is no case law on knowing if you’ve crossed the line or haven’t crossed the line. We know it’s out there, but don’t have guidance to know exactly how it comes into play.

Sen. Blue: Suggestion to Rep. Stevens. Scott case – only other case that has talked about redistricting in NC.

Rep. Jackson: Rep. Stevens was referring to NC cases, but surely there have been other cases around country. –> Can research cases around the country

Staff can and will enact a live public comment section on website for Option A.

Related JLF Article: Judicial Redistricting and Reform talks continue. Still need to get it right. by Becki Gray

Continued Discussion of Merit Selection Models 

Rep. Lewis: Have been receiving good input on this. One of most important one has been feedback on one tenure terms. Has brought to attention of Chairs. No additional presentation, but welcome feedback and will continue to review input.

Rep. Stevens: Merit selection has been a topic for the past nine years. Hard place to do this, because we are about politics. Who is going to do this? Hope we can resolve all of this. As soon as we start to make progress, the media claims we are being political.

Rep. Jackson: Question about schedule –> Chairs haven’t discussed the meeting schedule, but will let committee know once they do.