Justice Mary Muehlen Maring, Chair
Judge Debbie Kleven
Judge Burt Riskedahl
Chair Maring called the meeting to order and welcomed Judge Riskedahl as a newly appointed member to the Committee. She then drew Committee members' attention to Attachment B (January 18, 2002) - minutes of the October 19, 2001, meeting.
It was moved by Pat Durick, seconded by Judge Kleven, and carried unanimously that the minutes be approved.
Law Firm Self-Audit Project - Update
At the request of Chair Maring, Pat Durick reviewed recent discussions with the SBAND Board of Governors concerning implementation of a law firm self-audit project. He said Board members were most interested in whether there was any data, hard statistical evidence, to support the need for an audit. He said there was also some concern that the audit would be viewed as coercive. He said he assured Board members that an audit, similar to the one implemented in Minnesota, is not intended to coerce law firm behavior or activity, but apparently board members were unconvinced. He said the Board did agree to add 3 or 4 questions to a pending bar membership survey which would elicit information on some points covered in audit surveys.
In response to a question from Barbara Voglewede, Pat Durick said he is uncertain whether the Board would be receptive to including more than just a few questions.
Justice Maring said the bar leadership had seemed receptive to the law firm audit concept and Christine Hogan, the association's executive director, had reviewed the Minnesota material and prepared an audit instrument that appeared workable. She said the Board's collective reaction to the project had not been anticipated.
Justice Maring asked whether the Committee should seek to provide input on the questions to be added to the bar membership survey or if the Board of Governors should be asked to reconsider its general decision. She drew attention to a recent publication by the Commission on Women in the Profession entitled "Unfinished Agenda: A Report of the Status of Women in the Legal Profession." The report, she said, contains a wealth of information compiled on a national basis with respect to women in the profession.
Pat Durick said it may be worthwhile to speak with individual Board members in an attempt to determine the specific nature of their objections to law firm self-audits.
Judith Howard observed that Board members are generally well-intentioned in their actions, but in this area they likely do not see issues from the perspective of women in the profession. She suggested the Committee approach the Board again on the issue of law firm self-audits and discuss the matter with individual Board members if necessary.
Barbara Voglewede suggested it may be helpful to obtain information or reports from Minnesota law firms who participated in self-audits.
Pat Durick said he is uncertain how to respond to the suspicion that law firm self-audits would be "coercive" and would attempt to force change within law firms.
Jim Fitzsimmons observed that the issue may not be compelling enough for some Board members to resist the vocal minority within the bar. He suggested that when the bar leadership changes it may be an opportune time to have the new president promote the idea of self-audits as a part of his agenda.
Justice Maring suggested that Pat Durick contact members of the Board regarding their specific concerns and that a meeting be held with the current and incoming president of the bar association as well as with the executive director. She said the Committee could perhaps request time for a formal presentation to the Board of Governors urging reconsideration of the previous decision.
It was moved by Barbara Voglewede, seconded by Judith Howard, and carried unanimously that the actions described be undertaken and that Christine Hogan be contacted about questions to be included in the membership survey.
STOP Grant Application - Update
Chair Maring informed the Committee that the Chief Justice had approved the request to apply for STOP grant funds to develop a domestic violence benchbook for judges and court personnel. She said the application kit had been received and the application is being completed for submission.
Barbara Voglewede said there is law school interest in participating in the development of a benchbook. She said Tara Mulhauser, the assistant dean, has expressed interest and Ruth Jenny may also be of assistance. She said summer months would obviously be an optimum time for work involving law school faculty or law students. She noted the Committee's previous discussion concerning community law programs concerning domestic violence and said there are significant resources already in place and another program might simply duplicate efforts. She said she had contacted Linda Bata, also on the law school faculty, about retaining the domestic violence component in the family law course and was assured it would be. She noted that Tara Mulhauser is trying to obtain approval for a course dedicated exclusively to domestic violence law and issues.
Judge Kleven said the local community violence center in Grand Forks is working with the court to consider applying for grant funds to obtain modifications to the Unified Court Information System which would provide linked information concerning domestic violence cases.
Justice Maring said she had recently attended a meeting with representatives of the Department of Health and the ND Council on Abused Women's Services and it was clear that there is an obvious need for enhanced data collection in the state with respect to domestic violence. She noted a recent project in New York which provided every trial judge with access to information about the status of domestic violence protection orders.
In response to a question from Justice Maring regarding training, Judge Kleven said the local community violence center has assembled an excellent training program regarding domestic violence. She said such a training program should obviously target judges, but lawyers would benefit as well. She said training could be made available in the eastern part of the state, and perhaps in the western part also through different groups. Barbara Voglewede cautioned against duplicating any training efforts that might already be in place.
Chair Maring asked that Committee members give some thought to how appropriate training on domestic violence matters could most effectively be provided to judges and court personnel.
With respect to the development of a benchbook, Judge Riskedahl encouraged involving Bonnie Palacek in the effort to assist in including concrete, specific information that would be helpful to judges.
Action Plan Review
Chair Maring next drew attention to the previously distributed publication - Gender Fairness in the Courts: Action in the New Millennium. She said that as a general matter the Committee has completed work on the recommendations contained in the Final Report of the Commission on Gender Fairness in the Courts. Although, she said, the Committee will have a continuing role in considering and monitoring development of education programs. She said the next order of business for the Committee is to begin development of an action plan for the Committee's future activities, and the Gender Fairness in the Courts publication has been provided to aid in doing that. She noted two specific sections as starting points for Committee review and discussion: "Key Components to Achieve and Secure Gender Fairness in the Courts", which reviews what has been accomplished and what more could be done, and "Specific New Court Initiatives with which Implementation Committees Should be Working", which calls for a review of ongoing initiatives and any new initiatives that might be considered.
The Committee then considered the first item identified in the "Key Components", which concerns the establishment of a standing committee on gender fairness. Justice Maring observed that this subject was discussed at length at a recent New York conference. The objective of a standing committee, she said, is to institutionalize an entity dedicated to gender fairness issues once implementation activities have been completed. She said the New York conference encouraged the transition from an implementation committee to a standing committee.
Pat Durick said this Committee likely can do whatever a standing committee could do with respect to studying issues and making recommendations. Jim Fitzsimmons agreed. Judge Riskedahl observed that there may be a substantive difference in other jurisdictions regarding the distinction between implementation and standing committees, but that would not seem applicable here. After discussion, Committee members agreed it was unnecessary to establish a standing committee as this Committee is adequately situated to do all that a standing committee could.
Discussion turned next to the second item in the Key Components concerning staff and funding to carry out the work of the Committee (or a standing committee). There was general, cordial agreement that there is presently sufficient staff attention for the Committee. There was agreement, however, that if the Committee develops its own education programs, there may be a need to earmark funds for that purpose. Justice Maring noted that the Committee, to this point, has relied upon the bar association and the Judicial Education Commission to develop gender-fairness related education programs. She said she has been somewhat disappointed at the response of the association in considering programs directed at gender issues in the context of trial practice and other law-related areas. She noted that the Judicial Education Commission has incorporated gender issues in its long-term strategic plan for judicial education programs. She said there is an ongoing need for training of custody investigators and guardians ad litem, both of which are involved in areas in which gender issues can arise.
Jim Fitzsimmons suggested inviting Christine Hogan to the Committee's next meeting to discuss possible association involvement in developing programs in the areas discussed. Committee members agreed.
With respect to possible funding issues, Justice Maring noted that in some jurisdictions a sophisticated survey has been used for purposes of evaluating progress on gender fairness issues. She said her sense from the New York conference was that each state will have to decide how to most effectively determine the impact of implementation efforts. She wondered whether the Committee should pursue some method of evaluating progress, perhaps a survey or some kind of conference.
Pat Durick suggested the Committee should expend its efforts in more meaningful areas that are of more immediate concern. Barbara Voglewede said the Committee could perhaps consider an evaluation process as part of a long term plan of activity. After discussion, the consensus among Committee members was that an evaluation project would not be pursued in the short term.
Barbara Voglewede noted as an additional area of possible education the issue of bias with respect to interpreters for non-English speaking individuals involved in domestic violence situations. Justice Maring said the topic has been discussed at the national level, with examples noted of interpreters withholding or "editing" a victim's statement because what was said was considered culturally inappropriate by the interpreter.
Chair Maring noted that the Committee's discussion has likely addressed most issues in the third item of the Key Components, which discusses educations programs for judges and court personnel.
Committee members next reviewed the fourth item of the Key Components concerning initiatives addressing court-related issues confronting women of diverse racial and ethnic backgrounds and lifestyles. Justice Maring wondered whether the availability of certified interpreters is an issue that ought to be considered. Judge Riskedahl noted that ATT provides a service through which an interpreter can be obtained . He agreed there is a potential for problems when judges have to use an interpreter that is not adequately trained or certified. Justice Maring agreed the judicial system ought to encourage the use of qualified interpreters. She suggested a letter could be sent to the Chief Justice identifying the issue as it relates to gender and highlighting the impact of an increased immigrant population in the state. She said the issue is essentially one of access to qualified interpreters. Judge Riskedahl said culture, as well as language, is a matter that should be noted. Committee members agreed a letter should be forwarded to the Chief Justice on the matters discussed.
With respect to the fifth item of the Key Components regarding codes of conduct for judges and lawyers addressing gender bias, Justice Maring noted that recent amendments to the Code of Professional Conduct and the Rules of Professional Conduct have addressed this item.
Turning next to the sixth item of the Key Components, Justice Maring said there is some concern regarding judges requiring parties in a domestic proceeding to participate in mediation even though domestic violence has occurred. Specifically, she noted NDCC Ch. 14-09.1, which provides for mediation in contested child custody proceedings. She suggested there may be a need for amendments to the statute to preclude mediation in situations in which domestic violence is involved.
Jim Fitzsimmons said there are limitations under federal law with respect to the use of grant money under the Violence Against Women Act which prohibit use of funds for mediation programs if those involved in domestic violence could be required to participate in the programs.
Justice Maring suggested the issue of domestic violence in the mediation context may be something the Joint Committee on Alternative Dispute Resolution should review. She suggested that if domestic violence is involved, it should at a minimum be the decision of the parties whether to participate in mediation. Judge Riskedahl agreed the statute should include language that mediation is inappropriate if domestic violence is involved. Committee members agreed a letter as described should be sent to Becky Thiem, current chair of the Joint Committee.
Judge Kleven noted that the current statutory definition of domestic violence focuses on physical violence, but caselaw has included emotional abuse as well. She said there may be a need to clarify the statute to ensure it is consistent. Judge Riskedahl noted there is also a difference in the basis for issuing a permanent domestic violence protection order as opposed to a temporary order. Jim Fitzsimmons observed that the statutes governing issuance of permanent and temporary orders permit the court to award custody of minor children, but do not indicate to whom custody could be awarded. He said that in a recent case he had requested the court to award custody to the grandmother with which the child had been living, but the court was uncertain whether, under the statute, custody could be awarded to anyone other than the natural parent.
With respect to the definition of domestic violence, Justice Maring said recent court decisions have dealt with situations in which telephone calls were made and in response to what was said the woman locked the doors and sought protection. She said while the current definition does include infliction of fear of imminent physical harm, there is considerable ambiguity about how that and other requirements under the statute apply in reality. Barbara Voglewede said the example sited seems to call into question what is exactly meant by "imminent" physical harm. She said perhaps that requirement as well could be reviewed.
Justice Maring observed that at the recent planning meeting with the Department of Health and the Council on Abused Women's Services there was considerable discussion about the ambiguity of definitions under the statutes and the fact that different people are operating under different understandings of the definitions.
Following discussion, Committee members agreed a letter should be sent to Bonnie Palacek highlighting the general concern about the definitional ambiguity under the current law, particularly with respect to the requirement of "imminent" harm and the lack of an explicit reference to emotional harm or abuse as a form of domestic violence. It was agreed the Council, of which Ms. Palacek is the executive director, may be willing to seek legislative clarification in these areas.
In response to a question from Barbara Voglewede with respect to the issue concerning awarding custody, Judge Riskedahl said one option might be to request an evaluation regarding where the child should be placed or perhaps involve child protective services. He said the current statute could possibly be read to allow awarding custody to a third party, but that would be a problematic
course to follow. Judge Kleven said domestic violence advocates would likely resist any statutory change in the area because custody could then become a mutual point of contention in an already complicated situation. Committee members agreed there was no need to further pursue the issue.
With respect to the seventh item of the Key Components regarding gender-neutral and gender-appropriate language, Justice Maring noted that a guide to gender-fair proceedings had been distributed to judges and the Pattern Jury Instruction Commission regularly reviews jury instructions for gender-specific language. She asked whether there are codes of conduct for staff which address appropriate language. Staff will research the availability of such codes and obtain samples if available.
Chair Maring said the Committee would continue review of the Key Components at its next meeting. The next, eighth, item to be considered concerns mechanisms for handling formal and informal complaints of gender bias. Committee members will be contacted regarding a next meeting date.
There being no further business, the meeting was adjourned at 12:20 p.m.