Court Services Administration Committee October 29, 2004 Minutes

Court Services Administration Committee

MINUTES

Supreme Court Conference Room/Conference CallOctober 29, 2004

Members Present
Justice Carol Ronning Kapsner, Chair
Judge Bruce Bohlman
Bill Brudvik
Craig Campbell
Judge Donovan Foughty
Joyce Harnden
Jim Hill
Dorothy Howard
Judge Donald Jorgensen
Courtney McDonald Koebele
Chuck Peterson

Members Absent
Rep. Lois Delmore
Mark Johnson
Rep. William Kretschmar
Justice Mary Muehlen Maring
Paulette Reule
Deb Simenson
Pat Weir

Chair Kapsner called the meeting to order at 10:00 a.m. and drew Committee members' attention to Attachment B (October 25, 2004) - Minutes of the November 7, 2003, meeting.

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

2005 Meeting Schedule

Chair Kapsner then drew attention to the 2005 meeting schedule as reflected on the agenda: April 1, July 22, and October 21. Committee members agreed the proposed meeting schedule was acceptable.

Court Interpreter Qualifications - Revised Draft Rule

At the request of Chair Kapsner, staff reviewed Attachment C (October 25, 2004) - the revised draft rule regarding court interpreter qualifications. Staff explained that the Committee had previously approved Sections 1 through 3 of the draft and had requested additional provisions be added to address procedural kinds of issues. Two particular issues to be addressed, he said, were the need for an instruction that interpreters interpret proceedings completely and accurately and a provision governing the recording of proceedings. He said new Section 4 addresses these issues and also includes additional procedural items gleaned from rules and guides in other jurisdictions. He noted particularly Section 4E, which describes the method by which the recording of the proceeding can be obtained and the status of the recording with respect to the official record; Section 4F, which addresses the potential need for additional interpreters depending on the time period for which interpreter services are to be provided; and Section 4G, which describes grounds for removal of an interpreter.

Judge Jorgensen observed that Section 4E regarding recording of the proceedings is crucial to ensuring the integrity of the interpretive services. He expressed concern, however, about whether there is adequate technological resources to record interpretations in all proceedings. There may be situations, he said, in which, for example, contemporaneous foreign language interpretation may be involved in assertions of ineffective assistance of counsel or allegations that the interpretation was inaccurate. He suggested that if the system has the technological capacity to record the interpretation and retain the recording during the time an appeal could be taken, then that approach should be encouraged. He said if the interpretation is not recorded there is no basis upon which those issues can be adequately addressed.

Chair Kapsner inquired of the judge and lawyer members whether there have been occasions in which interpreter services have been recorded or whether interpretations have been subject to challenge. Judge Foughty said he has never had a proceeding in which the interpretation was recorded and has never had an interpretation challenged. Judge Bohlman said his experience has been the same. Craig Campbell noted that he had a case in federal court in which interpreter services during trial were recorded. He said a situation arose during the taking of a deposition which could have created a problem but ultimately did not. He said it would have been helpful if the interpreter's work during the deposition had been recorded in the event a problem had occurred.

Jim Hill drew attention to the last sentence in Section 4E which addresses the request for a correction to the record if an interpretation error is believed to have occurred. He suggested the reference to review of the recording, which begins the sentence, should more appropriately follow language pertaining to the belief that an error has occurred. That, he said, would more accurately reflect the sequence of events and would place clearer emphasis on the determination that an error may have occurred.

In response to a question from Justice Kapsner, Joyce Harnden said her experience is that a recording of interpreter services would be maintained with the case file and would be treated as an exhibit.

Following further discussion, it was moved by Jim Hill, seconded by Courtney Koebele, and carried unanimously that the last sentence of Section 4E be revised to read: "If an interpretation error is believed to have occurred based on review of the recording, a party may file a motion requesting that the court direct that the official transcript be amended."

Judge Jorgensen emphasized the difficulties associated with the need, on fairly short notice, for instantaneous interpretation in a court proceeding. Additionally, he said issues may arise if an interpreter is perceived as inappropriately interacting with the person for whom interpreter services are being provided. Staff noted that some of the more practical, day-to-day issues associated with obtaining and supervising interpreter services are discussed in the Indiana and Wisconsin "nuts and bolts" handbooks on court interpreter services.

It was moved by Judge Jorgensen, seconded by Courtney Koebele, and carried unanimously that the revised draft rule, as further modified, be approved for submission to the Supreme Court.

Court Interpreter Handbook

At the request of Chair Kapsner, staff reviewed the Wisconsin and Indiana handbooks included as Attachment D (October 25, 2005). He said the handbooks share some general approaches to informing judges, lawyers, and interpreters about practical, "nuts and bolts", kinds of issues that may arise when interpreter services are needed, obtained, and provided. He said the handbooks are generally provided in support of a general rule or discrete provisions governing interpreter services. He said they are made available to judges, lawyers, interpreters, and court personnel for use as a reference guide on interpreter issues.

Jim Hill said that if the proposed rule is adopted by the Supreme Court, it would be helpful to have a reference handbook for use by those involved in proceedings in which interpreter services are provided. Chuck Peterson agreed. Bill Brudvik observed that the Wisconsin handbook seems well-structured and very readable.

In response to question from Chair Kapsner, there was general agreement among Committee members that a court interpreter handbook should be developed, with the Wisconsin handbook as a starting point of reference. The following Committee members agreed to participate in a subcommittee to work on the project: Craig Campbell, Jim Hill, Courtney Koebele, Judge Jorgensen, Justice Kapsner.

Administrative Rule 41 - Access to Judicial Records - Update on Activities

At the request of Chair Kapsner, staff reviewed recent activity concerning proposed amendments to Administrative Rule 41. He explained that the Committee, at its November 2003 meeting, reviewed draft amendments to the rule to address the status of administrative records and certain kinds of personnel records. At that time, he said, the Committee requested additional changes to further describe the kinds of administrative records that would be governed by the rule. In the meantime, he said, the Court Technology Committee and the Joint Procedure Committee embarked on a thorough revision of the rule, which was submitted to the Supreme Court for consideration. He said the question for the Committee is whether to continue its review of the rule in light of the work being done by the other Committees.

In response to a question from Chair Kapsner, Committee members agreed further review of Administrative Rule 41 should be tabled.

Administrative Rule 34 - Domestic Violence Advocates - Update

Chair Kapsner drew attention to the Committee's discussion at the November 2003 meeting concerning Administrative Rule 34 and concerns presented to the Committee by D. Luke Davis regarding the rule's designation of the ND Council on Abused Women's Services as the principal entity for certifying advocates. She noted that the Supreme Court had recently adopted amendments to the rule to refer generically to "an approved certifying entity".

There being no further business, the meeting was adjourned at 11:00 p.m.

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Jim Ganje, Staff