Court Services Administration Committee July 22, 2005 Minutes

Court Services Administration Committee

MINUTES

Supreme Court Conference Rm/Conference CallJuly 22, 2005

Members Present

Justice Carol Ronning Kapsner, Chair
Bill Brudvik
Judge Donovan Foughty
Jim Hill
Dorothy Howard
Courtney McDonald Koebele
Justice Mary Muehlen Maring
Chuck Peterson
Deb Simenson

Members Absent

Judge Sonja Clapp
Rep. Lois Delmore
Joyce Harnden
Mark Johnson
Judge Donald Jorgensen
Rep. William Kretschmar
Pat Weir

Others Present

Rebecca Absey, Clerk of District Court, Grand Forks County

Chair Kapsner called the meeting to order at 10:00 a.m. and drew Committee members' attention to Attachment B (July 13, 2005) - Minutes of the October 29, 2004, meeting. It was noted that the adjournment time on page 4 should be 11:00 a.m., rather than 11:00 p.m.

It was moved by Jim Hill, seconded by Courtney Koebele, and carried unanimously that the minutes, as corrected, be approved.

Proposed Court Interpreter Handbook

The Committee then turned to a review of Attachment D (July 13, 2005) - the proposed handbook developed by the Court Interpreter Guide Subcommittee. Chair Kapsner said the Subcommittee consisted of Courtney Koebele, who served as Chair; Jim Hill; Judge Jorgensen; Mike Daley; and herself. She noted that Mike Daley had agreed to serve on the Subcommittee as a replacement for Craig Campbell. She thanked the Subcommittee members for their work on the project.

At the request of Chair Kapsner, staff then briefly reviewed the proposed handbook.

Justice Maring drew attention to Section C, which addresses when an interpreter should be appointed. She said the section appears exclusively directed towards criminal cases and asked whether the issue of interpreter services in other kinds of cases, such as domestic violence, should be considered. She noted that N.D.C.C. § 31-01-10, which is cited in Section D, seems quite broad in directing that an interpreter be provided for any "witness", without regard to the kind of proceeding involved.

Judge Foughty agreed there is a particular issue with respect to domestic violence proceedings, which are frequently held ex parte when an initial order is sought and which are conducted within a relatively short time frame. He expressed concern, however, with the potential impact if interpreter services are made mandatory in non-criminal kinds of cases.

Justice Kapsner noted that the kinds of proceedings in which an interpreter should be provided were discussed by the Subcommittee. The issue, she said, is with regard to when a person has an absolute right to an interpreter, a right which is recognized in criminal proceedings. She said the obligation to provide interpreters, at least foreign language interpreters, is unclear with respect to civil cases and the handbook left the issue somewhat vague.

Justice Maring reiterated that Section 31-01-10 appears clear in directing that any witness be provided an interpreter if the witness is deaf or cannot speak the English language. She said there is a risk that a judge may interpret Section C as suggesting that an interpreter needs to appointed only in criminal cases. She said there is an escalating number of issues involving, for example, family law cases in which parties speak only a foreign language.

Jim Hill said the Subcommittee considered the statutes and rules concerning interpreter services but the scope of any requirement was unclear and, more particularly, the provisions were unclear concerning the fiscal responsibility for providing an interpreter. Courtney Koebele agreed Section 31-01-10 appears quite broad and said the Subcommittee discussed to what extent the handbook could describe any obligation to appoint an interpreter in civil cases.

Dorothy Howard said interpreters are used in Cass County on a regular basis. She said if a party requests an interpreter, the clerk's office has been instructed to locate one, even, for example, for small claims proceedings. In response to a question from Justice Kapsner, she said she was uncertain about who ultimately paid for the interpreter services.

Following further discussion, Committee members agreed a new paragraph should be added to Section C as follows: "There may be circumstances in which a court may consider it appropriate to appoint a foreign language interpreter in a civil case."

With respect to the ADA reference on page 4, line 1, Committee members agreed a statutory reference should be included.

Justice Maring noted the simple reference to "the rule" on page 9, line 3, which describes the alternative method of obtaining interpreter services set out in the administrative rule if a qualified interpreter cannot be located. She suggested a formal reference to Administrative Rule 50 should be included. Committee members agreed.

With respect to the sample questions and answers set out on page 18, Committee members agreed a reference to "attorney" should be inserted above line 7 to clarify that the question below is asked by an attorney.

In response to a question from Chair Kapsner, there were no further suggested revisions to the proposed handbook. She said the handbook, with the additional revisions, would be on the October meeting agenda for final review and approval.

Dorothy Howard suggested a list of qualified interpreters or others used to provide interpreter services would be a useful resource in addition to the handbook. Committee members agreed.

Pro Se Forms - Suggested Changes - Additional Forms

Chair Kapsner drew attention to Attachment D (July 13, 2005) - an email suggesting changes to the pro se simple divorce forms previously developed by the Committee through a subcommittee and which are now available on the Supreme Court's website. She said her intention was to refer this to a working subcommittee to consider the suggested changes and to also consider development of additional pro se court forms.

Justice Maring noted that the previous subcommittee she chaired and which developed the forms did very good work and had several hard-working members.

Rebecca Absey observed that the Northeast Central judicial district uses a set of divorce forms developed for the domestic relations summary proceeding process established under Rule 8.5 of the Rules of Court. She said similar forms are now being used in the Northeast judicial district. She said there is also now the separate set of simple divorce forms available on the website. She suggested the need to develop one set of forms which can be used consistently throughout the state. Staff noted that the Rule 8.5 forms and the simple divorce forms previously developed by the Committee are directed at different kinds of divorce situations.

Justice Maring recalled that a significant issue the earlier subcommittee did not pursue was the development of pro se forms for changes to child support obligations. She said that would be a significant undertaking but there is a sense that it is an area that requires some attention.

Chair Kapsner said she would review possible membership for a new subcommittee and asked Committee members to forward any suggestions they may have. She said establishment of the subcommittee and defining its scope of work will be discussed at the October meeting.

Administrative Rule 19 Record Retention Schedule - Proposed Revisions

At the request of Chair Kapsner, staff then reviewed Attachment E (July 13, 2005) - proposed revisions to the records retention schedule included in Administrative Rule 19. He noted that the rule requires that revisions to the retention schedule be submitted to the Committee for comment. He said the general goal of the revisions, which were developed by a small working group of court personnel, is to reduce the time certain records are retained and, therefore, to address issues associated with record storage.

Rebecca Absey, who served on the working group, observed that records retention issues have been discussed by personnel in Administrative Unit 1 and there is a general preference for shredding records to be disposed of rather than disposing of them by landfill as the revisions generally provide. Shredding, she said, was considered to be the most effective way of terminating the chain of custody for the record.

Dorothy Howard, Cass County Clerk of District Court, noted that destruction of records in Cass County is not keeping pace with the creation of new record files each year, which amount to approximately 10,000 per year. She said the state is currently paying about $1,100 per month for off-site records storage in Cass County. Deb Simenson, Burleigh County Clerk of District Court, agreed that destruction of old records is outpaced by the creation of new ones. With respect to shredding versus landfill, she said she would prefer disposing of records by landfill because shredding can become costly in itself.

Chair Kapsner drew attention to an email received from Penny Miller, Clerk of the Supreme Court, which raises a question concerning the destruction of index books as set out in the revisions (p. 15). The revisions provide that index books would be destroyed in the same manner as registers of actions for the respective case types. The question, she said, is whether, in destroying the index books after the registers have also been destroyed, there would be any information at all retained which would indicate that a particular case had been filed.

Dorothy Howard said she sees no problem in permanent retention of criminal and civil indexes. She said registers of actions have been the greatest cause for concern in Cass County. Rebecca Absey agreed it is likely unnecessary to retain the registers, but the indexes probably should be retained. She noted that the revisions are keyed to record information kept in the court information system so that when the time for destruction is reached for a particular record, the system will trigger the destruction process. Currently, she said, if a record is deleted from the information system, all information pertaining to the record is deleted, e.g., case number, register of actions, and file. She said a programming change would be necessary to ensure that the index information is retained.

Dorothy Howard observed that the index will indicate a range of years in which cases were filed but will not indicate the specific year a case was filed. Additionally, she said the index may list the plaintiff and defendant and perhaps include a note concerning the case type.

In response to a question from Justice Maring concerning the possibility of scanning indexes and registers, Deb Simenson said scanning has been considered but it is very expensive and, additionally, many of the registers and indexes are kept in large bound volumes, which are not easily scanned.

Committee members agreed index information should be retained and that programming changes should be made to ensure related information is retained in the automated record information system.

Justice Maring drew attention to the revision concerning civil court reporter notes (p. 7) which would reduce the retention period from 15 years to 5 years from the date of recording. She wondered whether the new period would be too short. Rebecca Absey said the time frame was generally based on the time needed to ensure appeal possibilities and time for any subsequent orders had passed. Dorothy Howard said the shorter time frame is likely reasonable for certain kinds of cases, such as contract collections, but may be too short for other kinds of cases, such as a personal injury or malpractice case.

Justice Maring suggested 7 years may be a preferable retention period. Committee members generally agreed.

Dorothy Howard suggested, and Committee members agreed, that the retention period should relate to the date of judgment, rather than the date of recording.

With respect to records concerning condemnations (p.2), Justice Kapsner said the proposed 1 year retention seems very short. She said there may be some historical value to the record. Dorothy Howard observed that in most cases money related to the condemnation is deposited and no action is generally taken. As a result, she said, the 1 year time frame may be workable.

Judge Foughty suggested that if the condemnation is contested there should be a longer retention value for the record.

Following further discussion, Committee members agreed the retention period for records relating to an uncontested condemnation should be 1 year but the retention period for a contested condemnation should be 20 years, as is provided for records pertaining to quiet title and eminent domain actions (p. 3-4)

Chair Kapsner said the Committee's suggested changes would be forwarded to the State Court Administrator as the rule provides.

Custody Investigators

Chair Kapsner informed Committee members that she had received a letter from Penny Miller referring to the Committee issues concerning Rule 8.6 of the Rules of Court which governs custody investigators. She said the letter was received too late to include in the meeting material but would be an agenda item for the October meeting. She said a subcommittee would be formed to consider the referral and asked that Committee members forward any suggestions concerning subcommittee membership to staff.

Judge Foughty noted that Judge Christofferson had, at some point, been working on some issues related to custody investigators.

Future Meetings

In response to a question from Chair Kapsner concerning conference call meetings or meetings using interactive television, Committee members expressed a general preference for in-person meetings.

Chair Kapsner said the October meeting would be an in-person meeting in Bismarck.

There being no further business, the meeting was adjourned at 11:30 a.m.
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Jim Ganje, Staff