Justice Mary Muehlen Maring, Chair
Judge Debbie Kleven
Judge Tom Schneider
Chair Maring called the meeting to order at 9:00 a.m. and drew Committee members' attention to Attachment 2 (May 29, 1998) - Minutes of the March 20, 1998, meeting. She noted the starting time for the March 20 meeting should be reflected as 9:05 a.m.
IT WAS MOVED BY PAT DURICK, SECONDED BY MARCIA O'KELLY, AND CARRIED UNANIMOUSLY THAT THE MINUTES, AS CORRECTED, BE APPROVED.
Update on Committee Referrals
At the request of Chair Maring, staff provided an update on activity regarding recent Committee referrals. He said Committee comments at the March 20 meeting regarding a proposed civil jury instruction under consideration by the Pattern Jury Instruction Commission were passed along to Commission staff. He said the Committee's comments would be included in the Commission's review of the proposed civil jury instruction at its June 19 meeting. He said also that Lynn Kerbeshian, Commission Staff, had said that approximately 750 gender references in pattern jury instructions have been deleted thus far. He said the Joint Committee on Attorney Standards is continuing to review the issue of possible amendments to the Code of Professional Conduct concerning biased conduct by attorneys. He said the Joint Committee would be reviewing additional information concerning ABA resolutions and other state rules at its June 14 meeting in Grand Forks. With respect to proposed amendments to the Code of Judicial Conduct, he said the Judiciary Standards Committee had reviewed proposed amendments to Canon 3B(5) and (6) which had been referred to it by the Gender Fairness Implementation Committee. In light of the narrow focus of the proposed amendments, he said Brian Neugebauer, Judiciary Standards Committee chair, did not call a meeting of the Committee, but rather the proposed amendments and related materials were distributed to Committee members for review. Committee members, he said, were asked to respond by mail ballot on the issue of approval or disapproval of the proposed amendments. He said the amendments were approved by a substantial majority and were recommended to the Supreme Court. However, he said, the Supreme Court returned the amendments to the Committee with the request that a meeting be held for purposes of full discussion and consideration of minority viewpoints. He said the Judiciary Standards Committee recently met by telephone conference call, further reviewed the proposed amendments, and again recommended the amendments to the Supreme Court. He drew attention to Recommendation F(4), Judicial System as Employer, and particularly that part relating to encouraging the Supreme Court to strive for gender balance in hiring and promotion decisions. He said that recommendation was referred by the Committee to the Supreme Court, which in turn referred the recommendation to the Personnel Advisory Boards for consideration. He said he recently met with the Supreme Court Personnel Advisory Board to discuss the recommendation and Advisory Board members were concerned about the potential impact of recent U.S. Supreme Court decisions regarding the use of race as a deciding factor in decisions regarding awarding contracts and employment. He said he reviewed Title VII and equal protection caselaw regarding the use of gender as a factor to be considered in employment situations. Following discussion, he said, the Personnel Advisory Board requested that its staff prepare a draft policy that would express support for achieving diversity in the judicial workplace.
With respect to the Commission's recommendations concerning the judicial system as employer, Marcia O'Kelly said the Eighth Circuit's Implementation Committee Report contains a discussion of a model employment dispute resolution plan and the use of equal employment opportunity plans. She said the dispute resolution plan may be of interest in considering the Commission's recommendation on developing an informal process for reviewing gender-related complaints in the employment context. A copy of the Implementation Committee Report is attached as an Appendix.
With respect to preparing a draft guide for gender fair court proceedings, Chair Maring suggested, and Committee members agreed, that the guide be developed over the summer and presented for review at a Committee meeting in early fall.
Development of Education Programs
Chair Maring requested discussion concerning the development of gender-bias education programs for judges and lawyers. Specifically, she said, attention should be directed to topics to be covered in the near term and whether programs could be directed to judges, attorneys, and judges and attorneys together.
Pat Durick suggested establishing a priority list of topics, with the aim of addressing those most important first, such as domestic violence issues.
Judith Howard suggested contacting Lynn Hecht Shafran to see of she would be available to participate in a program.
Justice Maring noted that Ms. Shafran had developed a curriculum on adjudicating allegations of child sexual abuse when custody is an issue. She noted this topic as one possible facet of a larger program on domestic violence and custody issues.
Marcia O'Kelly emphasized the importance of education in understanding the application of the new statute that outlines the impact of incidents of domestic violence on custody decisions. She said there is a real need for judges to understand how a pattern of domestic violence bears on custody decisions as compared to being a basis for obtaining a protection order. Beyond this specific topic, she said, there appears common agreement about general education areas among the various groups - the Jackson Hole Group, the Bar Association, and the Committee. She said the more challenging task is determining how to most effectively coordinate these education initiatives.
Pat Durick suggested the possible use of the Inns of Court. Justice Maring agreed and suggested contacting the program chairs of the different Inns of Court and requesting that in the next year's programs the Inns consider programs regarding gender fairness. Pat Durick said the skit approach used in Inns of Court programs could be transferred to videotape for viewing at local bar meetings. Judith Howard observed that free CLE credits on ethics may be an inducement to better attendance at local Bar Association meetings. Jim Fitzsimmons emphasized the importance of an initial, concerted effort by the State Bar Association and the Supreme Court to present aggressive education initiatives over a short period of time. To that end, he suggested that the Bar Association and Supreme Court support mandatory, but free, CLE programs for lawyers and judges over the next year or so to ensure that the greatest number of lawyers and judges are exposed to gender fairness related issues.
Justice Maring observed that a mandatory CLE requirement would likely require a rule change, which is the approach taken in Minnesota. Judge Kleven said she is hesitant about the manner in which a mandatory CLE requirement would be received. She suggested instead that gender issues be incorporated in particular subject matter areas covered in a CLE program.
Justice Maring suggested that education programs should first be directed at lawyers and could begin with a program that is fairly non-threatening, something similar to the approach taken in Minnesota. She said the education effort could begin with an information program regarding gender study findings and then move on to a more in-depth discussion of bias and its attributes in the legal environment. Such a program, she said, could be included as part of a bench and bar seminar or as part of a homecoming education program. With respect to judge education, she said she had participated in a Wisconsin program that included Judge Ben Aranda from California, who has been a presenter before numerous judicial organizations on cultural diversity and various bias issues. She suggested he could be a likely candidate for a presenter at a judicial conference or judicial institute program.
Jim Fitzsimmons emphasized the need to develop an education program for the judiciary, particularly because judges are a "captive" audience. Judith Howard agreed that if you start with education for judges and the dynamic in the courtroom changes, then change among lawyers will likely come over time.
Pat Durick wondered at the possibility of having a column in the Gavel in which certain occurrences and anecdotes can be set out and discussed. Committee members agreed it may be useful if discrete incidents could be discussed and analyzed seriously.
Chair Maring requested that staff contact SBAND to determine what fall programs may be in the development stage.
Marcia O'Kelly inquired whether it would be possible to obtain the Minnesota videos and perhaps incorporate them in an SBAND education program.
Justice Maring suggested, and Committee members agreed, that she would attempt to contact Judge Aranda and determine his availability for a half-day or day education program. She said the proposed amendments to Canon 3B(5) and (6), if adopted, could also be the focus of discussion at a judicial conference program. She noted that the National Association of Court Managers had developed a guide concerning the court's response to domestic violence. She said the guide has been distributed to all district court judges. Additionally, she said, the State Justice Institute has developed a curriculum entitled, "Domestic Violence and Children: Resolving Custody and Visitation Disputes - A National Curriculum." She said both of these resources could be included in an education program regarding family law and domestic violence.
Justice Maring noted that Attorney General Heitkamp has expressed a strong interest in these topics and in the possibility of coordinating dissemination of information regarding domestic violence and also drug abuse. She said there apparently is federal funding available to assist in these areas. She suggested, and Committee members agreed, that Attorney General Heitkamp and Bonnie Palacek be invited to the Committee's next meeting to discuss possible education efforts concerning domestic violence, the dissemination of information concerning domestic violence, and the possibility of federal funding to assist in education efforts.
As a future education issue, Justice Maring noted the topic of sexual harassment in the workplace and the judge's responsibility for controlling sexual harassment.
Draft Jury Questionnaire
Chair Maring drew Committee members' attention to Attachment 5 (May 29, 1998) - A draft jury exit questionnaire under review by the trial court administrators. She wondered why a question could not be included on the questionnaire that asks jurors whether they thought the jury panel had been influenced in its decision by any form of gender bias. Jim Fitzsimmons suggested a general question be included that simply inquires whether anything occurred in the courtroom that the juror thought was unfair. Committee members agreed that such a question should be added to the questionnaire and requested that staff convey the suggestions to the trial court administrators.
Following discussion, Committee members agreed the next meeting would be September 4 at 9:00 a.m. Chair Maring reminded Committee members that the Committee's next report to the Supreme Court is due October 1, 1998.
No further business appearing, the meeting was adjourned at 11:20 a.m.
Jim Ganje, Staff