Justice Mary Muehlen Maring, Chair
Judge Burt Riskedahl
Chair Maring called the meeting to order at 1:15 p.m. and drew Committee members' attention to Attachment B (February 18, 2004) - Minutes of the October 17, 2003, meeting.
It was moved by Barbara Voglewede, seconded by Pat Durick, and carried unanimously that the minutes be approved.
Referral of Custody Investigator Issues
At the request of Chair Maring, staff reviewed actions concerning the referral of custody investigator issues previously discussed by the Committee. He noted the Committee had discussed generally the issue of custody investigators, investigator reports, and the impact of bias upon those reports. He said two letters had been sent. One letter, he said, was submitted to the Chief Justice as Chair of the Council of Presiding Judges requesting that the Council consider whether there should be a general, standard report format for use by custody investigators. He said the Council of Presiding Judges had met on the previous Friday and generally concluded such a report format would be a positive development. He said the Council, however, was somewhat conflicted regarding who should develop such a standard format report. The final conclusion, he said, was to forward the issue to SBAND Family Law Section to determine if there was interest in developing a report form. The report form, if developed, he said, would then be incorporated in the training program for custody investigators to be offered by SBAND. He said a second letter was sent to the President of the State Bar Association recommending that the SBAND training program include a component on bias and the potential impact of bias on recommendations made by custody investigators.
Draft Handbook for Court Employees
At the request of Chair Maring, staff reviewed Attachment C (February 18, 2004), a draft handbook/guide for court employees regarding appropriate conduct. As to format, staff said the handbook was based on the guide developed by the Committee for judges. He said the substance of the draft, for the most part, incorporates language from similar handbooks in other jurisdictions. In most jurisdictions, he said, such handbooks tend to be provided in pamphlet form and are fairly short in length.
Barbara Voglewede inquired whether any of the sources reviewed addressed the employee's responsibility not to tolerate offensive conduct by other employees. Staff responded that the handbooks in other jurisdictions generally did not discuss that particular issue. Barbara Voglewede suggested perhaps adding language to the draft handbook regarding court employees not having to tolerate inappropriate kinds of behavior from co-workers. Pat Durick and Judge Kleven agreed language similar to that suggested should be placed in the handbook.
Jim Fitzsimmons said that for a new employee coming into the system, the draft handbook would be an excellent beginning. There is the risk, he said, of providing too much information, which a new employee may find intimidating, particularly with respect to stating that an employee has an affirmative responsibility to ensure proper conduct by other employees. Nevertheless, he said, language similar to that previously suggested may be worthwhile and, if added, should be done so subtly.
Justice Maring wondered if language could be added to the effect that if an employee observes improper conduct by a co-employee there are remedies under current personnel policies and rules, such as the informal complaint procedure. She said it would be helpful if the handbook were to generally underscore that if an employee observes inappropriate conduct, there are avenues available to assist in addressing the issue.
Committee members agreed staff should add the language generally described.
It was moved by Judge Kleven, seconded by Pat Durick, and carried unanimously that the draft handbook, modified as described, be prepared for submission to the Supreme Court for its consideration.
Law Firm Self-Audit Project - Update
Chair Maring welcomed Christine Hogan, Executive Director of the State Bar Association, for an update regarding the law firm self-audit project.
Christine Hogan explained that the survey of bar membership has now been completed and the survey results are being tabulated and analyzed. She noted that several questions were added to the survey in response to a request by the Committee. Those questions, she said, were designed to gather baseline data regarding gender equity issues in North Dakota law firms. She said some preliminary data analysis has been completed and there is more to be done. She said some preliminary information, however, has been assembled in response to gender equity questions directed at law firms. For example, she said, in response to a question concerning whether firms make special efforts to recruit female lawyers, 21% of respondents answered "Yes", while 51% of respondents answered "No". She said in response to a question concerning whether firms provide training that addresses gender discrimination, 31% of respondents answered "Yes" and 53% answered "No". In response to a question regarding whether firms have sexual harassment policies, she said 51% of respondents answered "Yes" while 33% answered "No". She said the responses in these particular areas indicate there is some room for improvement.
With respect to the next step in the law firm self-audit project, Christine Hogan said an effort is underway to develop a form to be used and instituted on a voluntary basis by law firms to conduct self-audits. She said the law firm self-audit form used in Minnesota will be reviewed to determine whether it can be adapted for use in North Dakota. The objective, she said, is to distribute the form to selected firms, perhaps those listed in Martindale-Hubbel, who are willing to undertake the self-audit. She said the firms would likely be asked if they would be willing to share the audit results and perhaps monitor progress over time within the law firm. She noted that the Board of Governors is convinced that the self-audit project will work only if it is implemented on a volunteer basis.
In response to a question from Jim Fitzsimmons, Christine Hogan said firms listed in Martindale-Hubbel would likely be the larger firms and, therefore, more appropriate for involvement in the self-audit project. Committee members observed, and Christine Hogan agreed, that participation in the self-audit program by law firms with five or more attorneys would likely garner the most useful information.
In response to a question from Chair Maring regarding training for custody investigators, Christine Hogan said the Association will conduct six three-hour sessions during the summer for custody investigators, as well as guardians ad litem. She said Ruth Jenny, with the UND School of Law, will be primarily responsible for curriculum development. Justice Maring summarized the Committee's earlier discussion regarding a standard report format for use by custody investigators and observed if the report format is developed, it would be helpful if it were incorporated into the training programs. Additionally, she stressed the importance of addressing bias issues in the training programs for custody investigators. Christine Hogan said she would advise Ruth Jenny of the importance of including a substantial component in the training programs regarding bias.
Ten Year Progress Report - Method of Acquiring Information
Chair Maring recounted the Committee's previous discussion concerning the 10th anniversary of the report of the Commission on Gender Fairness in the Courts and the need to begin assembling information regarding whether progress has been made within the system on issues identified in the report. She noted the Committee's previous agreement that a survey process would likely not be a useful method for gaining information, but that the possible use of focus groups could assist in determining whether any progress had been made.
In response to a question from Chair Maring, staff said the cost associated with the focus group process used in the initial Commission study was relatively low. Committee members recalled the earlier focus group process consisted generally of public announcements, invitations to participate, interviews with particular individuals, and an opportunity for general public comment.
Chair Maring asked whether there should again be meetings generally open to the public for soliciting comments from anyone regarding progress on the issue of bias in the system. Barbara Voglewede said such meetings may be useful, but strongly recommended that some kind of questionnaire be used for those attending the meetings to try to narrow the concerns and minimize the possibility of simply receiving general comments and criticisms concerning the merits of particular cases. Judge Kleven agreed the opportunity for public comment would be helpful, but she noted the public component of the Commission's initial process resulted in many people simply complaining about the decision in their particular case or about how their attorney handled the case. She said the focus clearly shifted away from the issue of gender bias in the system.
Jim Fitzsimmons suggested one alternative may be to simply invite lawyers, judges, and other interested parties to attend discussion or focus group meetings in different areas of the state. These, he said, are the participants in the judicial process who could offer the most useful comments about whether the system has changed at all.
Justice Maring emphasized the importance of finding a way to address public dissatisfaction in areas such as child support and child visitation.
Barbara Voglewede suggested the importance of offering the opportunity for a personal interview during the focus group process for those who wish to provide comments in a confidential setting. Staff noted that such a process was used during the original Commission study.
Chair Maring explained that the 10 year anniversary for the Commission's report would occur in 2006. Consequently, she said, any budget requirements necessary for a focus group process would have to be addressed in the budget for the 2005-2007 biennium. She suggested the possibility, in 2005, of several focus group meetings over approximately 6-9 months for purposes of soliciting information concerning any perceived changes in the system with respect to bias issues. She said a report could then perhaps be prepared for presentation in 2006 to the Annual Bar Association Meeting or perhaps used for a half-day or one-day conference on the subject of bias in the court system. Committee members agreed the suggested approach should be pursued. Chair Maring requested that staff develop a tentative budget for the focus group process discussed.
Domestic Violence Benchbook - Training Opportunities
Chair Maring explained that Bonnie Palecek, Executive Director of the Council on Abused Women's Services, had recently asked if the Supreme Court would be interested in coordinating several training sessions on the recently completed Domestic Violence Benchbook. She said the training programs would be provided for all judges, as well as domestic violence advocates. She said the Council has included $8,000 in a recent STOP Grant request to support these training programs. The Council, she said, has approached Jeannie McLean at the School of Law to develop the training module based on the benchbook. She said she had discussed with Bonnie Palecek the possibility of using local resources to present the programs based on the training module in different areas of the state, rather than relying upon only one person to conduct every training program. She suggested waiting to see if the grant funds are awarded before doing anything further with respect to training initiatives. Committee members agreed.
With respect to periodically updating the Domestic Violence Benchbook, staff noted Jeannie McLean had agreed to do the occasional updates. He said the associated costs would likely be minimal and updating would contemplate reviewing the benchbook after each legislative session for any statutory changes and to perhaps include caselaw developments or other interesting information that may arise.
Informal Complaint Procedure
Chair Maring next drew attention to Attachment D (February 18, 2004) - Administrative Rule 44, establishing the informal complaint procedure. She explained that the last report concerning the informal complaint process indicated there have only been a couple of contacts at most. It appears, she said, that the process is not being used in the manner contemplated. She wondered whether there is anything more that could be done to ensure the process is more visible and more effectively used.
Staff noted that the language to be included in the employee handbook will likely highlight the informal complaint procedure and the fact that the procedure is an avenue for employees to use to address conduct on the part of other employees and judges.
Barbara Voglewede explained that a graduate student at UND had been conducting research concerning gender fairness in the courts and had no idea the procedure was in place or how to locate it. She suggested perhaps more visibility on the Supreme Court's web page.
ABA Resolution Concerning Ethics CLE
Chair Maring drew attention to Attachment E (February 18, 2004) - the recent ABA adoption of Resolution 110 recommending a comment to the Model Rule for CLE, Section 2, to include education on diversity and bias. She said it may be beneficial to have some encouragement in North Dakota's CLE rule that lawyers complete a similar kind of education program as part of their regular ethics requirement.
In response to a question from Chair Maring regarding possible approaches, staff said one approach would be to amend existing Rule 3(a) of the CLE rules to include a reference to bias education programs. The other approach, he said, might be to forward a request to the CLE Commission that such training be included in general ethics programs.
After discussion, Committee members agreed to review for submission to the CLE Commission proposed language in Rule 3(a) that would encourage attorneys to complete, as part of the general ethics CLE requirement, programs related to racial and ethnic diversity, gender equity, disabilities access, and the elimination of bias in the profession.
Code of Judicial Conduct - Sexual Harassment
Justice Maring explained that it appears the current Code of Judicial Conduct does not contain specific language prohibiting, as a matter of ethics, sexual harassment by judges of judicial system employees. She said Canon 3 provides that a judge shall not exhibit bias and the commentary addresses sexual harassment, but not in the context of sexual harassment of employees. That absence, she said, means other provisions of the Code must be relied upon to address, in a very indirect manner, sexual harassment of employees. She said the Committee may be well-situated to consider the issue since previous bias-related amendments to the Rules of Professional Conduct and the Code of Judicial Conduct originated with the Committee.
After discussion, Committee members requested that staff review the codes of judicial conduct in other jurisdictions to determine whether any jurisdiction has adopted a provision in a canon or in commentary to address the issue. Staff noted that the ABA recently started a complete review of the Model Code of Judicial Conduct and there may be information related to that effort that may be helpful.
Chair Maring drew attention to the need to find a replacement for Judith Howard who left the Committee after many years of service. Jim Fitzsimmons noted that the Committee has had a good cross-section of membership over the years, but has never had a member representing a state's attorney's office. He said such a representative may be a positive addition in light of gender bias issues that arise with respect to victims of crime. As possible representatives to be considered, he suggested Marlyce Wilder, Assistant State's Attorney for Williams County; Rozanna Larson, Assistant State's Attorney for Ward County; or John VanGrinsven, State's Attorney for Ward County. Judge Kleven also suggested the possibility of considering someone who serves as a victim/witness advocate.
There being no further business, the meeting was adjourned at 3:10 p.m.
Jim Ganje, Staff