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
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
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
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,
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.
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.