Chair Strutz called the meeting to order at 10:00 a.m. and drew Committee members' attention to Attachment B (October 30, 2003) - Minutes of the July 18, 2002, meeting.
It was moved by Rep. Delmore, seconded by Jim Hill, and carried unanimously that the minutes be approved.
Court Interpreter Qualifications - Draft Rule
At the request of Chair Strutz, staff reviewed Attachment C (October 30, 2003) - a draft rule regarding court interpreter qualifications and related information.
By way of background, staff briefly reviewed the Committee's July 18 discussion regarding current statutes and rules relating to court interpreters and approaches taken in other jurisdictions. He said a few states have established professional standards and fairly extensive rule provisions governing court interpreters. Most states, he said, have adopted rules in a rather piecemeal fashion that address discrete interpreter-related issues, such as confidentiality, qualifications, and oaths. Regardless of the various rule structures, he said, many states have a "safety valve" provision that permits a court to appoint an interpreter that is determined to be qualified if an interpreter who satisfies certification requirements is not available. He said the Committee concluded that a good starting point would be a draft rule that establishes basic, broadly recognized qualification requirements, but that includes a "safety valve" so the court could appoint a person determined to be qualified if an officially qualified interpreter could not be obtained. He said the draft, in Section 2, establishes general qualification requirements for interpreters for the hearing-impaired and for foreign language speakers. Section 3, he said, is a general exception to the qualification requirement and would permit the court to obtain the services of any other interpreter whose qualifications have been adequately determined. The exception, he said, is based primarily on language already set out in NDCC Ch. 28-33 regarding interpreters for the hearing-impaired.
Chair Strutz then requested discussion of the draft rule and other matters related to court interpreters.
Judge Jorgensen observed that questions about the accuracy of interpretation sometimes arise and suggested the possibility of recording the proceeding in the event accuracy does become an issue. He also suggested the draft could specifically address obtaining court interpreter services telephonically. Staff noted that NDCC Section 28-33-07 regarding interpreters for the hearing- impaired provides that the court may order testimony of a hearing-impaired person or the interpretation be visually recorded for verification purposes. Additionally, staff said the draft would not bar obtaining interpreter services by telephone. The pertinent issue, he said, may be the ability of the court to determine whether the person providing interpreter services by telephone actually satisfies qualification requirements.
Judge Foughty noted that with respect to the hearing-impaired there are two kinds of interpreting - interpreting exact words and interpreting concepts. He said that some foreign language interpreters also convey general ideas or concepts rather than word-for-word interpretation. He wondered whether the rule should require "verbatim" interpretation.
Justice Kapsner observed that the method of interpretation may depend on the kind of interpretation understood by the hearing-impaired or foreign language speaking individual.
With respect to different approaches to interpretation and recording the proceedings, Jim Hill asked whether the court would require both audio and visual recording, which invites a question concerning what constitutes the official record.
Rep. Delmore said a verbatim requirement may create problems since there are words in some languages for which there is no English counterpart.
Staff noted that codes of conduct for interpreters generally require that the interpreter provide complete and accurate interpretation. For example, he said Minnesota's code provides that the "interpreter shall render a complete and accurate interpretation or sight translation without altering, omitting, or adding anything to the meaning of what is stated or written and without explanation."
In response to a question from Justice Kapsner regarding interpreter services by telephone, Judge Foughty said he typically inquires whether the person doing the interpreting has been certified. Judge Jorgensen said he has often used interpreters supplied by a group in Minnesota and they have always been accommodating with respect to providing credentials and explaining areas of expertise. He said he will often ask that attorneys lay a foundation regarding an interpreter's qualifications just as they would with respect to an expert witness. He emphasized that certification is a step in the right direction but it will not necessarily ensure accurate interpretation.
Chuck Peterson said it is obvious that there is a need for a rule of some kind that will address basic issues while recognizing the limited resources in the state. He said he would prefer the simpler approach represented in the draft, with the possible addition of a requirement to emphasize the need for accurate interpretation.
Rep. Kretschmar agreed with the idea of requiring a recording of the proceeding to facilitate checking the accuracy of the record.
Jim Hill said audio and visual recording of the proceeding pose a variety of concerns. For instance, he noted that cases are sometimes tried on the basis of inflection or tone of a spoken word. He wondered whether a recorded interpretation will capture the subtleties. Additionally, he said there is the question of what constitutes the record on appeal - the audio recording, the visual recording, or the transcript of what the interpreter said. He said the recording of the interpretation would almost seem to create a second level of official record. The better option, he said, may be to simply accept the first "official" transcript of the interpretation if the interpreter's qualifications have been tested and accepted.
Judge Jorgensen noted the circumstance in which an attorney questioned the competence of an interpreter. He said he suggested that the attorney could have a second interpreter in the courtroom at the attorney's prerogative and expense. Jim Hill wondered how, in that circumstance, a person would challenge the official record. Judge Foughty observed that the challenge would most likely be done by a motion to the court.
Justice Maring recalled a recent meeting of the National Association of Women Judges at which a judge from the Hague discussed interpreter issues. She said the judge indicated that it is not unusual to have several transcripts prepared in different languages for purposes of comparison and trying to arrive at the "accurate" interpretation.
After further discussion, it was moved by Jim Hill and seconded by Chuck Peterson that the draft rule's provisions with respect to qualifications be approved.
Jim Hill explained that issues other than qualifications should be addressed separately as part of a "procedures" rule or as a separate provision in the current draft.
With respect to procedural requirements, Judge Jorgensen emphasized that because of obvious cost factors careful attention should be paid to exactly when interpreter services are required, particularly in criminal cases.
The motion carried unanimously.
Committee members agreed the approved draft should be supplemented with additional provisions addressing the procedural issues identified during the discussion. Chair Strutz said the draft would be modified and provided for review at the next meeting.
Review of Administrative Rule 34 Regarding Domestic Violence advocates
At the request of Chair Strutz, staff reviewed Attachments E and F (October 30, 2003) - a letter from D. Luke Davis expressing concerns about the operation of Administrative Rule 34 with respect to involvement of the North Dakota Council on Abused Women's Services (NDCAWS), and Administrative Rule 34, which governs the role, training, and certification of domestic violence advocates. He said Mr. Davis' primary objection is that NDCAWS has the exclusive responsibility of training and certifying advocates, thereby raising issues of possible gender discrimination.
Chair Strutz then welcomed Bonnie Palecek, Executive Director, NDCAWS, for a presentation of information concerning the Council's responsibilities under AR 34 and the training provided to advocates. Ms. Palecek provided a folder of background information outlining the history of AR 34, domestic violence statistics, training requirements for advocates, and the evolution of domestic violence statutes in North Dakota. A copy of the information is on file with staff.
Ms. Palecek briefly explained the particular responsibilities conferred on advocates by Section 4 of the administrative rule: assisting the petitioner in completing forms, sitting with the petitioner during court proceedings, and making written or oral statements at the request of the court. She said these are the primary areas in which advocates receive training. She noted that state statistics indicate that approximately 93% of domestic violence victims are female and 7% are male, which is similar to national averages. She explained further that as a condition of receiving grants, the Council must affirm that funds are expended in a nondiscriminatory manner. She said two of the current 63 advocates are male.
With respect to certification, Ms. Palecek said NDCAWS offers training on legal issues twice each year. She said there are two categories of advocates: certified comprehensive advocates, who must receive 10 hours of legal issues training and 30 hours of training related to advocacy skills; and specialized advocates, who receive training in specialized areas along with 30 hours of training in advocacy skills.
Ms. Palecek agreed with Mr. Davis that a certified advocate must work under the auspices of a domestic violence organization that is a member of NDCAWS. That requirement is likely in place, she said, as a simple recognition of the fact that the organization was willing to take on the responsibility of training and oversight. She noted there is a grievance procedure, as required under AR 34, which has been used approximately 3-4 times during the past 15 years.
Chuck Peterson said it appears the organization is not engaging in gender bias in fulfilling its responsibilities under the rule and is taking steps to provide services without regard to gender. He said Mr. Davis' concern seems, in part, to be that a "women's" organization is in charge of training, a concern motivated by the name of the organization. He suggested a simple response that the matter has been reviewed and services appear to be provided in a satisfactory manner.
In response to a question from Judge Jorgensen, Ms. Palecek said there are circumstances in which an person has been refused services because of a conflict of interest, i.e., the local entity is already assisting the other party.
Jim Hill asked whether Mr. Davis had made direct contact with NDCAWS. Ms. Palecek said he had first contacted the organization with a request for financial information concerning the organization and all related advocacy programs. She said information related to the expenditure of public funds was provided as the information is an open record. She said she is aware that a local program did refuse to provide services to Mr. Davis, but that was attributable to a conflict of interest.
Justice Kapsner asked whether the grievance procedure has been used with respect to any complaints regarding gender bias. Ms. Palecek said a complaint of that specific kind has not been received although one complaint implied something similar in alleging "overzealous advocacy" on behalf of a woman client. She said a committee was convened, as AR 34 requires, and comments were received from both sides before a decision was reached.
Jim Hill asked whether anything in comments submitted by Mr. Davis would indicate changes to the rule are necessary or that changes in procedures should be considered. Ms. Palecek said the concerns expressed by Mr. Davis have lead to a consideration of changes to the composition of the committee that reviews training curricula under AR 34.
Judge Jorgensen wondered whether, to address the perception of exclusivity with respect to training and certification, it would be possible to identify NDCAWS "or a comparable entity" as being responsible for training and certification of advocates. He said NDCAWS would remain the primary certifying entity, but would not be the exclusive entity. Justice Maring observed that under that approach NDCAWS would likely retain the responsibility to review alternative training programs to determine if the training complies with certification requirements.
Jim Hill said the Supreme Court has given responsibility to NDCAWS for developing the programs and it would be nearly impossible for the organization to review alternative programs to determine qualifications. He said the Court has the authority to review whether the organization is fulfilling its responsibilities under the rule and to make changes if considered necessary.
Rep. Delmore observed that Mr. Davis has not substantiated any of his allegations with respect to involvement by NDCAWS in training and certifying advocates. She said to modify the rule without any substantiated basis for the change would likely undermine the current process. Judge Foughty agreed the statements are conclusory at best.
After further discussion, it was moved by Judge Foughty, seconded by Jim Hill, and carried unanimously that the Chair inform the Supreme Court that the Committee has reviewed the history of AR 34, the operation and involvement of NDCAWS in the training and certification process, and the allegations submitted by Mr. Davis and concluded no action with respect to the rule is necessary at this time.
Administrative Rule 41 - Access to Judicial Records - Draft Amendments
At the request of Chair Strutz, staff reviewed Attachment D (October 30, 2003) - draft amendments to AR 41 governing access to judicial records. Staff said the amendments include administrative records as a category of records that would be open to inspection and also identifies certain personnel records as being confidential. He said the provisions concerning personnel records are similar to state open records law exceptions. He also distributed a list of the kinds of records that are defined as "administrative" records in other jurisdictions and which are deemed confidential. A copy of the list is attached as an Appendix. He said that aside from the general inclusion of administrative records and the confidentiality of personnel records, the more significant issue is whether there are other kinds of "administrative" records that should be identified as confidential.
In response to a question from Justice Maring, staff said the definition of "administrative record" set out in the draft is similar to definitions used in other jurisdictions. He said the approach in most other jurisdictions has been to define administrative records generally, or sometimes by way of a detailed listing, and then identify those additional records within the category that are considered confidential.
Justice Kapsner observed that access to personnel records should be addressed in the rule, but the general category of "administrative records" is problematic.
After discussion, Committee members agreed the draft should be revised to include additional examples of administrative records and an additional category of records, if necessary, for those records that could be considered administrative in nature but which would be confidential.
It was moved by Courtney Koebele, seconded by Jim Hill, and carried unanimously that the draft be revised as described.
Changing of the Guard
Chair Strutz said several membership terms would expire in March 2004, including his own. He announced that he would not be continuing for another term. He thanked Committee members, past and present, for their diligence and commitment of time and effort to the many tasks that have been assigned to the Committee over the years. Committee members expressed their thanks and appreciation to Chair Strutz for his many years of service and leadership.
There being no further business, the meeting was adjourned at 12:20 p.m.