Court Services Administration Committee April 13, 2007 Minutes

Court Services Administration Committee

MINUTES

Doublewood Inn, Bismarck April 13, 2007

Members Present
Justice Carol Ronning Kapsner, Chair
Bill Brudvik
Judge Sonja Clapp
Rep. Lois Delmore
Judge Donovan Foughty
Dorothy Howard
Jim Hill (SBAND Liaison)
Joyce Harnden
DeWayne Johnston
Judge Donald Jorgensen
Chuck Peterson
Deb Simenson

Members Absent
Courtney Koebele
Mark Johnson
Referee John Grinsteiner
Rep. William Kretschmar

Others Present
Sally Holewa, State Court Administrator

Chair Kapsner called the meeting to order at 10:00 a.m. and drew Committee members' attention to Attachment B (April 2, 2007) - Minutes of the July 14, 2006, meeting.

It was moved by Jim Hill, seconded by Rep. Delmore, and carried that the minutes be approved.

Administrative Rule 34 (Domestic Violence Advocates) - Petition for Amendment or Repeal

Chair Kapsner drew attention to Attachment C (April 2, 2007) - a letter petition submitted by Mitchell Holbach alleging numerous infirmities with Administrative Rule 34 and requesting that the rule be amended or repealed. She said the petition had been referred to the Committee by the Supreme Court for review.

Staff noted that a somewhat similar complaint, outlining several broad-ranging objections to the rule, was reviewed several years earlier by the Committee. He said the earlier complaint, like the present petition, alleged general, unspecific, constitutional objections to the rule and charged that the rule, in its application, manifested bias against males involved in the protection order process. He said the Committee received information from Bonnie Palecek, Executive Director, ND Council on Abused Women's Services, concerning the Council's role in training and certifying advocates, the complaint process in place to respond to questions raised about advocates, and the manner in which advocates provided assistance to those seeking protection orders. The earlier complaint, he said, also asserted that the Council's role in certifying advocates, which was described in the rule, was inappropriate and ensured the system was biased against male respondents. The Committee, he said, concluded that changes to the rule were not necessary in light of the general, unspecific, nature of the allegations and the lack of detail. He noted that the rule was subsequently amended by the Supreme Court to remove specific reference to the Council on Abused Women's Service as the entity that trains and certifies advocates to provide assistance in protection order cases. He explained that the Joint Committee on Attorney Standards had also received a referral of Mr. Holbach's complaint and had focused on that part of the complaint that seemed to allege that the Council was engaged in the unauthorized practice of law in assisting petitioners. He said that Committee concluded, in light of the rule's specific provision concerning unauthorized practice of law, that no action in response to the complaint would be recommended.

Chair Kapsner then requested general Committee discussion of the letter petition and Administrative Rule 34.

Jim Hill noted that the Board of Governors has struggled with a similar issue in the context of individuals within Workforce Safety Insurance being used as advocates. He said the question has been whether that activity constitutes the unauthorized practice of law and there has been some comparison to the role fulfilled by domestic violence advocates under AR 34. He said the WSI issue has not yet been resolved.

Judge Foughty said there may be particular problems with advocates in isolated proceedings, but there is no substance or detail to the complaint from which to conclude that any of the allegations have merit.

It was moved by Judge Foughty and seconded by Jim Hill that the Committee take no action in response to the complaint.

Rep. Delmore noted that a resolution proposing a study of the protection order process has been adopted by the Legislative Assembly and will be considered by the Legislative Council as it selects studies to be conducted during the upcoming interim.

Judge Foughty explained that in his court advocates say very little. He said he addresses the parties directly and requires that the parties address their questions and statements to him.

Judge Jorgensen agreed with Judge Foughty and said advocates conduct themselves similarly in his court. He said the advocate is in court not to promote the petition but to assist the petitioner. He noted, however, that comments have been generated by the very title, "advocate", that is given to those assisting the petitioner under the rule.

DeWayne Johnston said the CVIC in Grand Forks provides services to petitioners and there appears to be a perception on the part of petitioners and respondents that advocacy is a central part of the assistance provided. He said there is a perception also that the process is gender-driven. Judge Clapp said that she also has heard complaints that the services provided are gender-driven.

Judge Foughty noted that services provided by advocates in his area are limited to filling out forms and being seated at the table with the petitioner. He said other support services are provided outside the courtroom environment, such as locating temporary and permanent housing, transportation, access to education resources, and employment.

After further discussion, the motion on the petition carried.

Bill Brudvik said that, notwithstanding action concerning the petition, there does appear to be a basic unfairness in how the system operates with respect to protection orders. He said the petitioner, most often a woman, receives the assistance of an advocate and the respondent, most often the man, must either find an attorney or participate without assistance in the proceeding. He said it often seems the man is seeking a mutual protection order and there ought to be some way to obtain such an order.

Judge Foughty emphasized that there are significant consequences when a protection order is issued and respondents are not often advised of those consequences.

Sally Holewa said the sense of unfairness arises because it seems the entire system - forms, training for and assistance by advocates - is set up for the petitioner while there is no assistance provided to the other side. Dorothy Howard agreed and said she has offer heard comments from respondents that they consider themselves at an extreme disadvantage.

In response to a question from Justice Kapsner, judge members of the Committee said their experience is that respondents appear most of the time in court without representation.

Justice Kapsner wondered whether development of forms, instructions, or advisements for respondents should be considered. Committee members generally agreed the matter should be considered further.

Report on Pro Se Litigation in North Dakota - Review

Chair Kapsner then drew Committee members' attention to Attachment D (April 2, 2007) - the Supreme Court's referral of the Report on Pro Se Litigation in North Dakota, which was prepared and submitted to the Court by a team appointed by Chief Justice VandeWalle to attend a national conference on pro se litigation issues.

At the request of Chair Kapsner, Sally Holewa, State Court Administrator and team member, provided an overview of the report and suggestions concerning implementation. She explained that North Dakota had made progress on addressing pro se issues since the last conference but the team concluded further actions could be taken. She then drew attention to the Report Recommendations set out on pages 8-10 of the Report.

With respect to Recommendation #1 (Develop informational sheets and forms), Ms. Holewa distributed and summarized case type flow charts developed by staff in Administrative Unit 1. She said an option is to adapt the flowcharts to a more or less standard format and place them on the Website with hyperlinks to specific terms used in the flowcharts. She suggested some of the items identified under "information on court processes" could be assigned to various groups or staff for consideration and drafts. She noted that state administrative staff could develop explanations concerning the roles of court workers. She said other jurisdictions have developed informational material relating to how cases are presented, how the rules of evidence apply, and how to handle witnesses. She said the item related to docketing, collection, and renewing a judgment could perhaps be referred to the Trial Court Operations Committee for consideration. She said information concerning access to court records could be developed by state administrative staff and the Clerk of the Supreme Court could perhaps develop a short, one or two page explanation of the appeals process. She said basic information concerning juvenile court proceedings could be developed using unexpended funds related to juvenile court activities. Alternatives, she said, could be to refer the matter to the Juvenile Policy Board or to ask juvenile court directors and staff to develop the basic information. With respect to the forms identified in Recommendation #1, she said this Committee or the Trial Court Operations Committee could review the development of some of the generic forms listed.

With respect to Recommendation #2 (Establish a "help desk" for litigants), Ms. Holewa said this likely is an initiative reserved for future consideration, perhaps 2-4 years after information and basic forms have been made available. This recommendation, she said, contemplates a position within the state court system which would serve as a source of assistance to pro se litigants without providing legal advice.

In response to a question from Chair Kapsner concerning in what manner the Committee could be most directly of assistance, Ms. Holewa said the Committee could consider forms to be developed, as it has in the past with respect to simple divorce, child support, and visitation.

Dorothy Howard said her staff would benefit if a basic explanatory pamphlet was available to unrepresented litigants trying to initiate a case. In response to a question from Justice Kapsner, she said information concerning general civil cases, name changes, and how to respond to a summons or order to show cause would be helpful. Deb Simenson agreed and noted that people coming to the courthouse assume there are forms available for every kind of case.

Justice Kapsner asked whether the near term focus should be on the narrower forms development issue rather than venturing into areas such as developing broad descriptions about how cases are handled.

Judge Jorgensen said there is a need for more specific information and cited juvenile court proceedings as an area that should be a priority. He said a pamphlet generally describing the juvenile court process would be helpful those involved in the cases.
In response to a question from Judge Jorgensen to clerk members of the Committee about the utility of the simple divorce forms, Deb Simenson said the forms have been generally helpful and fewer questions directed at clerk staff seems to indicate the general instructions have been of assistance.
Dorothy Howard reiterated that those seeking name changes would benefit from some level of assistance and information.
Judge Jorgensen suggested information concerning procedures in small claims cases should be improved and expanded, particularly on issues such as requests for continuances.

After further discussion, Chair Kapsner said it appears the basic areas for attention are development of a general explanation of how a civil case is handled, information and forms concerning name changes, more information concerning small claims cases, and perhaps information concerning how to file motions.

In response to a question from Chair Kapsner concerning action on the flow chart issue, Sally Holewa said the intent is to place the flowcharts on the Website where a person could click on a particular flow chart and review how the case proceeds through the system. She said it is not necessary for the Committee to further develop the flowcharts, but the Committee's agreement to place them on the Website would be helpful.

Chuck Peterson observed that the flowcharts are not very user-friendly and contain numerous obscure references, which may tend to detract from their usefulness to the general public. Committee members generally agreed the flowcharts should be reviewed with an aim towards simplifying them and making them more understandable to the general public.

With respect to forms development, Chuck Peterson said forms for cases that are not economically feasible for attorneys or clients would probably be viewed positively. However, he said, there may be some resistance to developing forms for cases that would or should normally be handled by attorneys.

Sally Holewa explained that the survey responses summarized in the Report indicate that most respondents thought providing more information so that litigants could make informed decisions would be more helpful than an emphasis on more forms. Consequently, she said as a preliminary matter it may be more useful to develop and provide general information about court processes and procedures and then develop additional forms in those areas of basic need that are later identified.

Jim Hill noted that the Report has apparently never reached the SBAND Board of Governors. He suggested that it would be helpful to make that contact so the association and the court system can develop some kind of consensus on the issues.

Chuck Peterson said basic explanatory information, for example, what is a petition in a juvenile case, would be helpful to everyone. He said a better informed person about court procedures and processes will likely be a better client for an attorney.

Judge Jorgensen agreed basic information would be helpful but cautioned against extending information initiatives and forms development too far. He said he does not contemplate a user-friendly court system as being educational to the point that a person becomes a wholesale practitioner.

Dorothy Howard noted that people have printed forms off the Internet for use in particular cases and the court has often rejected the forms. She said people will obtain forms, often incorrect ones, from wherever they can if they are not available through our court system, which is costly for the parties and a frustration for clerk staff.
Jim Hill agreed some level of assistance may be prudent but cautioned that assistance should have a limit.

With respect the Report and its Recommendations, Judge Foughty said he is uncertain how specifically the Committee can act on some of the recommendations. Jim Hill agreed and said determining who should do what may be difficult. As a general matter, he said, it may be useful to assign segments of the Recommendations to a group for review and suggestions about how best to proceed.

After further discussion, it was moved by Jim Hill, seconded by Judge Jorgensen, and carried that the Committee accept the Report and that the Chair consider establishment of a working group, with members from outside the Committee if necessary, to review the Report Recommendations a develop a possible method for action and implementation.

Committee Memberships - Term Limits

Chair Kapsner noted that recent amendments to rules governing the Supreme Court's advisory committees imposed term limits for committee memberships. Members, she said, are now limited to no more than three consecutive terms. The consequence, she said, is that the Committee will lose Rep. Delmore, Dorothy Howard, and Mark Johnson as members. She extended her appreciation for their commitment of time and effort to the Committee's work. She welcomed any suggestions for possible new members.

There being no further business, the meeting was adjourned at 11:35 a.m.
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Jim Ganje, Staff