Justice Mary Muehlen Maring, Chair
Judge Debbie Kleven
Judge Burt Riskedahl
Chair Maring called the meeting to order at 9:05 p.m. and drew Committee members'attention to Attachment B (June 11, 2004) - Minutes of the February 24, 2004, meeting.
It was moved by Barbara Voglewede, seconded by Judge Kleven, and carried unanimously that the minutes be approved.
Revised Draft Handbook for Court Employees
At the request of Chair Maring, staff reviewed Attachment C (June 11, 2004) - the revised draft handbook for court employees. He said the handbook was modified to add at the end of Section III a paragraph outlining methods and resources available to court employees for assistance in addressing instances of inappropriate conduct or treatment. The question, he said, is whether the added language is properly placed and meets the objectives discussed by the Committee at the last meeting.
Barbara Voglewede asked whether language should be included to address conduct and treatment between or among court employees. She suggested, and Committee members agreed, the 3rd paragraph of Section I should be modified to include a specific reference to "court employees" among those already listed with respect to expectations of non-biased, fair, respectful, and courteous treatment. She said the placement of the new language in Section III seems appropriate.
Justice Maring drew attention to the first paragraph on page 5 regarding the use of biased language, and particularly the penultimate sentence, which discusses the manner in which language may influence how a listener absorbs information. She said the language appears intended to mean that particular language may influence a listener by contributing to or supporting the listener's biased assumptions, but the phrasing is not quite clear. Committee members agreed the sentence should be modified to read:" Language may also contribute to the listener's absorbing the material in a way that supports biased assumptions."
Judge Riskedahl observed that Sections III and IV address different kinds of interaction, conduct and language, but the new language regarding resources for employees is limited to Section III. He said issues of biased language, which are addressed in Section IV, may be the more troublesome and suggested that language similar to that added in Section III should be added in Section IV.
Barbara Voglewede said she initially viewed Section IV as more of a "what to do" section concerning appropriate language, whereas Section III addresses more substantive issues concerning unacceptable conduct. She said it may be helpful to clarify the subject of Section IV, perhaps by modifying the title or including parts of Section IV in Section III. Justice Maring agreed and said those parts of Section IV discussing substantive issues regarding inappropriate language could be combined with the conduct section.
Following discussion, Committee members agreed Sections III and IV should be modified as follows: 1) the first two paragraphs of Section IV, except for the last sentence ("numerous ways to ensure bias-free communication ..."), would be included in the opening paragraphs of Section III, 2) Section III would be retitled "Language and Conduct", and 3) Section IV would be retitled "Language Usage - Examples".
Chair Maring said the draft would be revised as described. She then requested discussion of whether and how the handbook should be referred to the Supreme Court.
Judge Kleven said simply distributing the handbook, if it is adopted, will accomplish little. She suggested the handbook should be included in regular education programs for court employees. Justice Maring said the Committee could recommend that the handbook be distributed to every employee and that it be made a part of the next cycle of education programs. Barbara Voglewede recommended that a somewhat uniform statement or introductory presentation regarding the handbook be developed to ensure that a consistent message is given during education programs.
Following further discussion, it was moved by Judge Riskedahl, seconded by Barbara Voglewede, and carried unanimously that the employee handbook, as modified, be submitted to the Supreme Court for consideration and that the submission include the recommendations that the handbook, if adopted, be distributed to all employees, that information in the handbook be included in regular education programs, and that a simple, uniform presentation be developed to ensure consistent information is presented.
Rule 3(a), Rules of Continuing Education - Draft Amendments
At the request of Chair Maring, staff reviewed Attachment D (June 11, 2004) - draft amendments to Rule 3(a) of the Rules for Continuing Legal Education which would include bias-, diversity-, and gender- related programs in the kinds of programs that would satisfy the current mandatory ethics requirement. The language, he said, would encourage attorneys to complete course-work in these areas as a method of meeting the ethics course-work requirement. He noted that the language is adapted from ABA Resolution 110, which was recently adopted by the ABA House of Delegates and which was reviewed at the Committee's last meeting.
Barbara Voglewede wondered whether the "encouraged to complete" formulation is clear or forceful enough to emphasize the importance of lawyers receiving education with respect to bias issues. She suggested the possibility of simply providing that some of the courses that will be considered as satisfying the ethics component will include the noted bias-related course-work. That approach, she said, would not constitute a requirement, but would present a more emphatic expression of the kinds of courses that would be considered appropriate for satisfying the ethics requirement. Judge Riskedahl suggested adding the noted course-work subjects to the end of the second sentence.
Following discussion, it was moved by Judge Riskedahl, seconded by Pat Durick, and carried unanimously that the draft amendments be modified to insert after "responsibility" in the last sentence of Rule 3(a) the following: ", including course-work related to racial and ethnic diversity, gender equity, disability access, and the elimination of bias in the profession."
It was moved by Judge Kleven, seconded by Judge Riskedahl, and carried unanimously that the draft amendments, as modified, be submitted to the Supreme Court for its consideration.
Focus Group Process - Budget Estimate
Chair Maring recalled the Committee's earlier conclusion that a focus group process would be the more effective method for determining whether progress has been made within the judicial system on issues identified in the Report of the Commission on Gender Fairness in the Courts. At her request, staff then reviewed a budget estimate for conducting the focus group process. He said it is estimated that approximately $10,000 would be sufficient to implement the focus group approach. The estimate, he said, is based on 6 - 7 regional focus group meetings managed and facilitated by 3 - 4 members of the Committee or other participants. He said travel and lodging costs for Committee members represent the larger portion of the budget estimate. He said the estimate also includes funds for a 1 day seminar following completion of the focus group process, at which focus group results, as well as other programs on gender- and other bias-related topics, would be presented.
It was moved by Barbara Voglewede, seconded by Judge Riskedahl, and carried unanimously that the Committee submit to the Chief Justice a request that $10,000 for the focus group process be included in the judiciary's 2005-2007 budget.
Codes of Judicial Conduct - Approaches to Sexual Harassment Issues
Chair Maring noted that U.S. Law Week recently reviewed the work of the ABA Joint Commission to Evaluate the ABA Model Code of Judicial Conduct and described a New York City hearing of the Commission at which the Commission was urged to adopt a proposal regarding harassment submitted by the American Judicature Society. That proposal, she said, recommended including a definition of harassment in the Model Code and also recommended moving the prohibition against sexual harassment currently in the commentary to Canon 3B(5) to the black-letter canon.
Staff said the Memorandum submitted to the ABA Joint Commission by Cynthia Gray, Director of the American Judicature Society's Center for Judicial Ethics, also described provisions in other state codes of judicial conduct regarding bias and sexual harassment. For example, he said canon language in Kansas addresses in detail harassment and harassing conduct by judges. He said Idaho has also adopted canon language requiring that judges not manifest any belief or attitude that has no substantial purpose other than to harass or discriminate against another person. He said the California Supreme Court adopted amendments in December 2003 that include a prohibition against sexual harassment in the black-letter canon. Additionally, he noted that Ms. Gray also recommended to the Joint Commission that either Model Canon 3B or 3C be modified to include court staff among the list of people judges are required to treat with patience, dignity, and courtesy.
Committee members then discussed whether North Dakota's judicial canons should be modified to address issues of harassment. It was agreed the issue is timely and important in light of the national discussion and that Canon 3B(5) and 3C should be modified to include, as a black-letter ethical obligation, a requirement that a judge not engage in conduct that could reasonably be perceived as sexual harassment. It was also agreed that Canon 3B(4) should be modified to include, as recommended by the American Judicature Society, "court staff" among those listed who must be treated with patience, dignity, and courtesy.
Chair Maring asked how the Committee's recommendations could best be implemented. Staff said since the Judiciary Standards Committee is charged with the responsibility of reviewing changes to the Code of Judicial Conduct, this Committee's recommendations could be referred to that Committee for consideration, which is an approach taken in the past.
Chair Maring asked whether the Committee should simply refer the issue, with background information, to the Judiciary Standards Committee or if the Committee should develop amending language for referral and consideration. Committee members agreed draft amendments to the relevant canons should be prepared and submitted to the Judiciary Standards Committee.
It was moved by Judge Riskedahl, seconded by Judge Kleven, and carried unanimously that draft amendments to Canons 3B(5), 3C, and 3B(4), as previously described, be prepared for review and comment by Committee members and, after agreement to the amendments, that the draft amendments be referred to the Judiciary Standards Committee for consideration.
In response to a question from Chair Maring, Committee members agreed the draft amendments will be distributed by email to Committee members for review and comment.
Domestic Violence Protection Order Process - Possible Statutory Changes
Chair Maring drew attention to Attachments E and F (June 11, 2004) - N.D.C.C. Section 14-07.1-01 regarding definitions relating to domestic violence, and selected court decisions regarding the definition of domestic violence. She noted previous discussions and ongoing questions concerning whether changes to domestic violence statutes should be considered. She said recent conversations with Bonnie Palecek, ND Council on Abused Women's Services, indicated the Council may consider legislation to be introduced during this next legislative session. She said Ms. Palecek had asked whether Committee members would have any particular suggestions or observations concerning the operation of the domestic violence statutes. She noted particularly the ND Supreme Court's opinions regarding whether verbal or emotional abuse is a form of domestic violence.
Judge Riskedahl said that as a trial judge the statutory definition concerning "infliction of fear of imminent physical harm" is the most difficult to apply. Judge Kleven agreed.
Committee members agreed additional information regarding domestic violence statutes in other states would be helpful in considering the issues.
Chair Maring said Bonnie Palecek and Jeanne McLean, who authored the domestic violence benchbook, will be invited to attend the next meeting to review the issues. She requested that staff assemble information concerning domestic violence statutes in other jurisdictions.
Chair Maring noted that the Council on Abused Women's Services had applied for grant funds to assess the effectiveness of the benchbook and to provide some form of training. She suggested Bonnie Palecek be invited also to discuss the status of the grant application.
Committee members agreed the next meeting should be sometime in September. Members will be contacted regarding available meeting dates.
There being no further business, the meeting was adjourned at 10:50 a.m.
Jim Ganje, Staff