Justice Mary Muehlen Maring, Chair
Judge Debbie Kleven
Judge Tom Schneider
Chair Maring called the meeting to order at 12:15 p.m. and drew Committee members' attention to Attachment B (June 2, 1999) - Minutes of the January 29, 1999, meeting.
IT WAS MOVED BY PAT DURICK, SECONDED BY JUDGE KLEVEN, AND CARRIED UNANIMOUSLY THAT THE MINUTES BE APPROVED.
Education and Information Initiatives - Update
Chair Maring described the day long program on domestic violence included as part of the Judicial Institute in May. She said the presenters were very knowledgeable and were well received. Marcia O'Kelly agreed the program was informative and well presented. Particularly, she said, the distinction between domestic violence and episodic anger was discussed, but could have been covered somewhat more thoroughly in light of the application of current statutes.
Justice Maring said a presenter also discussed gender, cultural, and ethnic differences and their affect upon effective communication. The presenter, she said, noted the difficulty for judges when there is a failure to understand what a witness, for example, is "saying" because of a marked difference in perspective based on cultural or gender differences.
Justice Maring noted that a program on gender fairness in the courts is included in the education program of the State Bar Association's Annual Meeting. With respect to future vehicles for educational initiatives, she suggested the upcoming Bench and Bar program, the November Judicial Conference, or some other independent substantive program. Of special interest, she said, are the dynamics and the role of bias in sex offense prosecutions and that, perhaps, could be addressed through the State's Attorneys Association. Judge Kleven said good speakers are also available through the National District Attorneys Association.
Chair Maring said she would talk with Sandi Tabor about including a bias segment in the Bench and Bar program and would follow-up with the Judicial Education Commission about future programs.
Rule 8.4, Rules of Professional Conduct - Draft Amendments
At the request of Chair Maring, staff reviewed proposed amendments to Rule 8.4 of the Rules of Professional Conduct, which would identify manifestations of bias or prejudice as lawyer misconduct. Staff said the proposed amendments were adopted by the Joint Committee on Attorney Standards and will be submitted to the Supreme Court. The proposed amendments, he said, very closely follow like language contained in Canon 3B of the Code of Judicial Conduct. However, he said, the proposed amendments do not include socioeconomic status as a basis for possible bias or prejudice. The Joint Committee, he said, removed socioeconomic status because of uncertainty regarding the meaning, scope, or potential application of the concept. The proposed amendments, he said, also include a legitimate advocacy exception to address potential First Amendment concerns.
Jim Fitzsimmons said the legitimate advocacy provision seems almost like an affirmative defense. That is, he said, after a person has filed a complaint alleging biased conduct, it is the lawyer's obligation to show the comments were a part of legitimate advocacy. With regard to the deletion of socioeconomic status, he recalled that in earlier years his clients were often referred to in court as "welfare recipients" or "welfare mothers". That has not occurred lately, he said, but there are still circumstances in which biased assertions based on socioeconomic status could arise. He said while he supports the proposed amendments generally, he cannot unequivocally endorse them because socioeconomic status was not included as a possible basis upon which bias or prejudice could be expressed. Committee members agreed.
IT WAS MOVED BY PAT DURICK, SECONDED BY JUDGE KLEVEN, AND CARRIED UNANIMOUSLY THAT THE COMMITTEE, THROUGH THE CHAIR, ADVISE THE SUPREME COURT OF THE COMMITTEE'S GENERAL SUPPORT FOR THE PROPOSED AMENDMENTS, BUT ALSO INDICATE ITS CONCERN ABOUT DELETION OF SOCIOECONOMIC STATUS AS A POTENTIAL FORM OF BIAS OR PREJUDICE.
Informal Complaint Mechanisms
Staff said he had contacted counsel of the New Jersey Committee on Women in the Courts and counsel for the similar committee in New York. He said the brochure included in the Committee materials, Attachment D (June 2, 1999), describes the anti-discrimination panels established in New York as a somewhat informal process for addressing discrimination complaints within the judiciary. In New Jersey, he said, the informal process largely consisted of individuals contacting Judge Marilyn Loftus, who was then chair of the New Jersey Commission on Women in the Courts. Judge Loftus, he said, would then contact the judge or other person who was the subject of the complaint and attempt to resolve the matter. Since Judge Loftus is now retired, he said, the New Jersey committee is discussing how to establish an informal process for handling bias complaints.
Marcia O'Kelly said one value of an entity to handle issues informally is that it can determine if there are, in fact, problems in certain areas.
Judge Kleven noted that over the past year or two in Grand Forks, there have been at least three instances in which suspected bias or discrimination required some attention. There were, she said, complaints about judge behavior from women attorneys and she discussed with them at length how the problem might be handled. She wondered how many informal panels would be needed to address the potential number of complaints that may surface throughout the state.
Jim Fitzsimmons recalled earlier discussion about the possible establishment of a judicial performance evaluation program and the Implementation Committee's involvement, in the short-term, as an informal mechanism to address bias complaints or concerns. He said he still agrees with that possible approach. Such an approach, he said, would lessen the need to establish separate panels and would serve as the informal alternative over the short-term to the formal grievance or discipline process. He noted that the State Bar Association's Unauthorized Practice of Law Committee had established a somewhat informal process through which complaints were received by the Association and then referred to the Committee. The Committee's response, he said, could range from direct contact with the person involved to explain the appropriate law and procedure to recommending criminal prosecution. That process, he said, seemed to have been a fairly effective approach because it afforded a way of addressing different levels of conduct.
Staff said the Committee's possible role in an informal complaint process invites two initial questions: (1) the approval of the Supreme Court for the Committee to take on that responsibility and, if approved, (2) whether Committee members would collectively or individually respond to specific complaints.
Marcia O'Kelly said there may be some matters that are appropriate for individual contact, and others that would more appropriately be addressed by the full group. She also wondered whether it would be necessary in all circumstances to identify the person making the complaint.
With regard to the New York panels, Pat Durick noted the caution in the brochure that information would be kept as confidential as possible, but complete confidentiality may restrict options or make solving the problem difficult.
Marcia O'Kelly observed there is a distinct difference between saying a possible resolution cannot be pursued unless identity is revealed, and saying nothing can be done about anything unless identity is revealed.
Jim Fitzsimmons said there is the potential for some, the media, for example, to want access to information that may relate to bias complaints against a judge. Staff noted that the state's open records law does not apply to records in the possession of a court.
Marcia O'Kelly wondered whether it would be possible procedurally, before the matter became a "record", to make an initial determination about whether the matter is something that can be addressed without using the complainant's name.
Jim Fitzsimmons suggested confidentiality should apply to the entire process to ensure that victims of bias or discrimination have a viable source of assistance.
Justice Maring suggested the need to develop a procedure or plan to submit to the Supreme Court. The procedure, she said, should describe how complaints would be received and how they would be handled, and should also identify whose conduct would be subject to complaint: lawyers, judges, or employees. Additionally, she posed the issue of the obligation of Committee members who are judges or lawyers if they receive information in confidence that obviously constitutes an ethical violation.
Marcia O'Kelly observed that in the college system, a person lodging a complaint is told that if the conduct is serious enough, then the information cannot be kept confidential.
With respect to responses by the Committee as a whole or by individual members, Justice Maring said there is the potential for a person wanting to contact only an individual member. But, she said, there may be some situations in which a person may want to present information to the entire Committee. Both options, she said, should probably be available.
Jim Fitzsimmons said there may be informal complaint procedures dealing with matters other than gender bias which can be reviewed.
Chair Maring requested that staff develop a draft procedure for Committee review at its next meeting.
No further business appearing, the meeting was adjourned at 2:10 p.m._______________________________________