e-Filing: More Questions About Public Access

Interview with Karl Thoennes, Court Administrator South Dakota Second Judicial Circuit

Extract: You are the court administrator for South Dakota’s Second Judicial Circuit in Sioux Falls. Tell us about a typical day on the job.

Thoennes: As so many of us say in this line of work, there really is no typical day. We often joke with each other that our families have no idea what we do for a living because it takes half an hour to explain. Today I spoke to a Judge in Washington State about prisoner transport protocols, then did a media interview on jury duty, then a staff meeting on logistics for an upcoming murder trial, then had an email discussion about finding Swahili interpreters. I go from a meeting on our $11 million courthouse expansion to a phone call with our robe vendor in California because the zippers keep breaking on the judges’ robes we’ve ordered lately.

I’m badly past due on negotiating next year’s contract on law library services, we’ve got to find office space somewhere for a new probation officer’s position, and we need to find a videoconferencing site in Maui by tomorrow. It’s never boring and never slows down. I love everything about this work – just don’t try to concentrate on anything for more than five minutes.

Extract: You have spoken on the topic of court ethics internationally, from Guam to England. Clearly ethics represent a universal standard. Does the daily execution of court ethics vary depending on the location of the court? [e-Filing Begs More Questions About Public Access]

Thoennes: That’s such an interesting area because we not only discuss different conduct standards at different court locations, we even debate ethics and public duty depending on where an individual court employee happens to be at a given time of day. For example, court employees are prohibited almost everywhere from recommending specific attorneys to the public at the courthouse, but if your sister wakes you up with a call from jail at 3:00 a.m. after she’s arrested for DUI, is it okay to recommend an attorney to her? Should courts be able to approve outside jobs for court employees – which is really a question whether court employment is “just a job” or our identity, and whether courts still have some level of expectation or authority over court staff 24/7, no matter where they are. And then technology can even have a bearing on conduct rules – for example most courts adopted rules on appropriate computer use years ago, but do those rules still apply when we all surf the ‘net on our own smart phones now?

I think in general courts operate in this incredibly complex environment where we have a duty to be as helpful as we can and deliver good public service, but at the same time remain impartial and neutral. To use a sports analogy, imagine if a basketball referee had to stay neutral and fair and impartial, but also had a duty to “help” both teams at the same time. No matter where we are in the org chart, every single court employee carries a huge public responsibility. I have a courthouse parking lot sticker on my car. If a citizen sees me blow a red light in that car, does that make them cynical about the integrity of court employees? I think it’s a good sign though that we struggle with questions like that – if we worry about damaging public confidence in the justice system by running a red light, to me that’s a good indicator of the care and caution and idealism we hold for our work in the courts.

Extract: You began your court career in Alaska as a division supervisor in Anchorage. What was it like to live and work in Anchorage?

Thoennes: Oh, I deeply love Alaska and always will. I still choke up when I hear the Alaska Flag Song (and sadly in contrast South Dakota has the most painful state song in the nation, sorry Mr. Hammitt). It’s such a fascinating place, spectacular and thrilling and exhilarating on one hand and yet at the same time it can be so hard on people psychologically and otherwise – and the court’s activity certainly reflected that contrast. I remember a case against an Iditarod dog musher, a long case on the rules of the annual crab season, a case on beluga whale populations in Cook Inlet, and of course the Exxon Valdez oil spill, although that quickly went federal. The state really does send out Permanent Fund Dividend checks to every resident which was very helpful in clearing lots of past-due financial obligations at court (I know, only a court geek would think of that angle). The climate and the distance and the darkness do stress the population in so many ways, but it was also an environment that somehow builds deep, lifelong friendships and it certainly did for me. I’ll always miss crunchy snow or watching the beluga whales chase salmon up Cook Inlet from my office windows, or climbing in Hatcher Pass. There is no place on earth like Alaska. This sounds goofy I know but you feel closer to God when spectacular natural beauty roars in your face every minute. I know states like Texas for example have a powerful, distinct identity too, but listen to a pod of Beluga whales breathe as they swim past the shore just once in your life and you’ll never be the same.

Extract: South Dakota is making the move to e-filing. What are the unique challenges of implementing this electronic process in your state. Does e-filing increase the risk of inadvertent release of sensitive information within court documents?

Thoennes: South Dakota is moving to e-filing as we speak, going through a phased implementation geographically and by case type with a completion date set for March, 2015. Protecting sensitive information is certainly a challenge in any project like this, but I think there are some big-picture implications to online court records in general that policy makers and ultimately the public really haven’t considered. E-filing is certainly a technical challenge in lots of ways but I think it’s really a matter of hammering out the mechanics of document transmission and screening and processing, working out the “front-end” process.

The public debate is long past due in my opinion, but perhaps these projects have been so relatively slow and complex and geographically gradual that the implications just haven’t fully occurred to the public yet, even though some jurisdictions have been offering online access for years now. I understand the fundamental need for government transparency in general and open records – but if your next door neighbor in the comfort of his home can read every affidavit in your messy divorce file, is there a public interest being served by that kind of access? Is there is a public interest served by instant global access to your domestic violence petition for example, or your family’s bitter dispute over Grandmother’s will, or your small claims collection case for that unpaid hospital bill? There’s great public debate for example about Edward Snowden’s release of NSA call monitoring but it seems to me the public policy implications of making all the details of a hotly contested child custody dispute easily and instantly available to anybody on earth raises far bigger and more urgent questions about privacy and public access. It’s a fascinating issue that goes to generational expectations of privacy, the boundaries of public interest, our duty and responsibility to the public, and what discretion the courts should exercise in handling – and publishing – the most intimate details of our personal lives. Fascinating topic, and it will be fascinating to watch the evolution of online access in the years to come.

Extract: You’re a Director at Large for NACM – tell us about your experience with that organization and why it’s important to court professionals.

Thoennes: This is going to sound like a recruiting pitch for the National Association for Court Management I know, but in our field NACM itself really is the best and most worthwhile way to stay connected in my opinion. My NACM involvement gives me interaction with colleagues across the country every day but I think it’s even broader than that. I think government employees have to pay constant attention to staying fresh, maintaining a sense of energy and ambition for better public service, and not letting our perspectives get too narrow or too local. It’s so easy to get comfortable in government but it’s not enough just to “make the trains run on time.” It’s not good for our careers, or our local courts, but most importantly, it’s not good for public service.

Conference calls, committee projects, conferences, vendor shows, all help me take that temperature of the profession and maintain that broad perspective. If the court in Queens, New York offers an online video request form, we can too. A conference presentation on legal assistance for example fires an idea to bring back home. I remember a quick box lunch break where I spoke to court colleagues from Maine on the financing structure for their new case management system; that was a big help. I think every one of those interactions from formal conference presentations to the most casual accidental lobby discussion during a break helps me stay connected. t’s a fantastic opportunity that every court manager ought to grab, and every minute of my time on the board has been a great honor.

Extract: You are a champion for video conferencing and for courts sharing video resources on an exchange. How did you become interested in this area of court technology. How is this technology transforming courts?

Thoennes: I think public and private sectors have been talking about technology transforming their operations for decades now – paperless offices, that kind of thing; but after decades of talking about it, I think it’s finally happening. A move to electronic records is certainly a huge shift, but I personally think long term, videoconferencing promises to be a more profound transformation. Originally videoconferencing in the courts was used to reduce prisoner transports since at least the 1990s, and it’s certainly still used for that in some places, but we’re light years beyond that single purpose now. Think of the incredible power and potential of really good, easy, clear video links. Highly credentialed interpreters can easily appear at the most remote rural courts. Expert witnesses can easily appear at trials at far less cost than before – imagine the implications for the average public defender who can now access world-class experts at a fraction of the previous cost.

For states like mine with huge rural areas, imagine the time video appearances save. Certainly there’s been a concern from the beginning in rural states that video could threaten local court services and de-personalize justice, but as video gets clearer and better and with a generational shift to more comfort with technology, I think those concerns will gradually disappear. The court in Sioux Falls uses videoconferencing every day now, for everything from custody hearings with out of state parents to testimony in murder trials. I believe long term the use of video is going to change courthouse operations and design even more than going paperless – from reducing the size of parking lots to reducing public traffic levels through security screening stations, to letting Grandma participate in happy adoption hearings from her condo in Boca Raton to a courtroom in Seattle. I do think the technology still needs to get simpler and faster and less complicated to the point where a video link takes no more thought than making a phone call but I think we’re very close to that evolution. I think it’s already happening so quickly you can watch it shift from month to month, and I think we’ll be amazed at the state of videoconferencing in five or even two years.

Extract: You led a session at the National Association for Court Management 2014 Midyear Conference titled “Immigration and Limited English Proficiency.” What were the highlights and takeaways you hoped to leave your audience with?

Thoennes: You know if there’s one issue that continues to be a great struggle in the courts with no end in sight, I think it’s language access in the courts. No matter how genuinely committed we might be to access and language services, on a broad level I think we see a developing divergence between recent Department of Justice (DOJ) mandates and the practical and financial struggles the courts have in meeting those expectations on a local level. The dissent in a recent state Supreme Court decision in Michigan is a good example. It’s really an extraordinary expectation from DOJ when you think of it – that the courts must provide interpreters literally in any language on earth, skilled to navigate in complex legal environments, with little or no delay, at no cost to the parties, in every case. The United Nations in New York can’t even meet that standard – we know, we’ve tried calling the UN to borrow their interpreters – and in fact the feds and agencies even within DOJ itself for example had great difficulty finding Kunama interpreters for three defendants charged in a bomb-smuggling case at the Phoenix Airport in 2011.

The relatively small court in Sioux Falls used interpreters in forty-three languages last year. After some exhausting searches we found them all, but that level of service places incredible financial and practical pressure on local courts and governments. On a broad level I think the courts desperately need to work out some system for sharing locally-credentialed interpreters across state boundaries. Even on a more mundane or mechanical level we still struggle with the time and complexity and expense of forms and website translations. Even if we’re deeply committed to language access in the courts – and I believe the courts genuinely are – interpreter availability and cost can be a terrible practical challenge, particularly in small jurisdictions in high level cases. Interpretation by remote video might be part of the solution here, but I think this is going to continue to be a difficult and evolving area for the courts for a long time to come.

Extract: What do you enjoy about living in Sioux Falls?

Thoennes: This sounds goofy I know, but Sioux Falls just feels like America to me (even though Mt. Rushmore is on the opposite side of the state). This circuit’s population is pushing a quarter million now and we’re handling nearly 80,000 cases a year, but little kids still show up on our doorstep at home asking to shovel snow for a few dollars. Kids still play in the parks, somebody will still pull over to help you change a tire, if you lose your wallet you will probably get it back, and there’s still a traffic jam at pancake and brunch restaurants on Sunday mornings when churches get out around noon. The Chief Justice still drives himself around the state and startles the daylights out of me when he just appears in my office doorway unannounced to say hello, and we don’t lock our cars at night in the driveway (I’m hoping car thieves don’t read this publication). I may be a transplant from Connecticut and Alaska and Minnesota but I never expected to love South Dakota as much as I do.

Extract: What court technology developments, if any, are delighting you or your co-workers these days?

Thoennes: It’s funny, technology is evolving so quickly we haven’t had time to be delighted yet. In just over the last couple years we’ve been doing a lot of really cool things like video connections to Tokyo in a custody case, or offering an online videoconferencing request form where we’ll find you a video site for your next court appearance anywhere on earth, offering parenting education classes online, building a text message broadcast for snow closures and emergencies, offering daily court calendar lobby displays online to the public, building a dedicated video/telephonic courtroom in the round – but we have about five seconds to be impressed with any of those projects before we have to go on to the next really cool task.

In the past three years we’ve replaced a 1980s green screen case management system with a new statewide package. We’re in the midst of our efiling pilot now and soon going paperless, our website both locally and statewide has been expanded and completely redesigned to be actually useful, every judge is connected 24/7 with iPads, faxing has suddenly become a quaint (but persistent) relic. In about a year I imagine we’ll be able to accept online payments. We’re working on giving the public online access to court records; we offer live and archived audio-streamed oral arguments from the state Supreme Court. These are South Dakota examples I know but my sense is that courts are racing ahead all across the country. We’ve been talking about so many of these developments and this potential for years but the pace of technological advancement is really incredible now, measured in months or weeks instead of years. It’s an exciting time to be in the courts.

Extract: What is the most surprising thing that has ever happened to you as an employee of the courts?

Thoennes: Let’s see – a transformer box under the courthouse sidewalk in Anchorage exploded one afternoon, that was surprising. Again in Anchorage a juvenile hid in a courthouse bathroom until after closing then opened the fire hose boxes in the lobby and flooded the stairwells, that was surprising on Monday morning. On a more serious note though, I’m not sure I’ve been surprised as much as I’ve been deeply impressed in a lot of ways. I’m continually impressed with how hard judges try to always do the right thing in cases, regardless of their personalities or work styles or personal politics, and how hard their jobs must be. I watched Judge Tim Baland in Long Prairie, Minnesota jump off the bench in his robes and follow a hostile juvenile from the courtroom into the lobby one day, to give the boy an earnest talk about not going down the wrong path in life. Things like that stay with me.

I’m also so pleased and proud of my staff here – they do amazing things every day, like finding a Kunama interpreter somewhere on earth on one day’s notice. Finally I’m always impressed by the humbling power and profound responsibility of the courts, entrusted with the public’s lives in profound ways like dividing families to capital punishment cases to even something relatively routine but so difficult and deeply personal like eviction cases. The public entrusts the courts literally with their lives in some cases and it’s a humbling responsibility. I hope I never lose my sense of honor at having been given this job for a little while, and I hope the judges and my staff and I always serve the public well.

About the Author: Greg Gies

For 20 years in the software industry, Greg Gies has been helping businesses, government agencies and healthcare organizations achieve their goals and carry out their missions by making better use of information and automating business processes. Greg has held positions in sales, product management and marketing and holds an MBA from Babson College.