MINUTES Chair Maring called the meeting to order at 9:00 a.m. Staff said telephone connections for Judge Kleven went awry and she would not be able to participate by conference call as planned. Chair Maring then drew Committee members' attention to Attachment B (November 18, 1999) - Minutes of the June 8, 1999, meeting. IT WAS MOVED BY PAT DURICK, SECONDED BY MARCIA O'KELLY, AND CARRIED UNANIMOUSLY THAT THE MINUTES BE APPROVED. Draft Informal Complaint Procedure - Review At the request of Chair Maring, staff summarized Attachment C (November 18, 1999) - a draft informal procedure for responding to complaints of gender or other forms of bias and inappropriate behavior. He noted italicized options in the first paragraph and in Section 1 of the procedure regarding its application to judicial officers, judicial system employees, or lawyers, or some combination of those. He also noted options in Section 3 concerning complainant and offender confidentiality. He said the draft procedure is largely based on an informal procedure adopted by the Los Angeles County Bar which addresses lawyer complaints about judicial officers. He said the procedure also has some elements extracted from informal procedures adopted by some university systems to address allegations of bias or discrimination. He said the draft procedure departs from the LA County Bar procedure in one significant way. Under the LA County Bar procedure, he said, after a complain has been filed, it is reviewed by a "Judicial Complaint Resolution Subcommittee". Following that review, he said, the complaint, if it satisfies certain requirements, is forwarded to the Presiding Judge of the Superior Court, who then pursues resolution of the matter. The draft procedure, he said, does not include an equivalent involvement of the presiding judge. A copy of the LA County Bar procedure is attached as Appendix A. Chair Maring then requested discussion regarding the draft procedure. With regard to the options concerning to whom the procedure would apply, Jim Fitzsimmons suggested it should apply to lawyers as well as judicial officers and judicial system employees. However, he said, the SBAND Board of Governors likely would not agree, which could engender controversy about the procedure. Marcia O'Kelly inquired about the risk of including something in the procedures that might be controversial. Justice Maring observed that if the Supreme Court is asked to adopt the procedure as an administrative rule and the proposal is distributed for comment, it could garner a response similar to that received regarding the proposed amendments to Rule 8.4 of the Rules of Professional Conduct. Those comments, she said, were very critical and resulted in the amendments being referred back to the Joint Committee on Attorney Standards. A similar response to application of a proposed informal complaint procedure to lawyers, she said, could jeopardize the entire procedure. With respect to the application of the procedure to judicial system employees, Justice Maring wondered how the procedure would relate to current personnel policies regarding the filing of grievances, particularly in the area of sexual harassment. Additionally, she said a question may arise concerning legal obligations of judge members of the committee if an informal complaint points to instances of harassment. She cautioned that, in light of these competing obligations, certain complaints under the informal procedure perhaps could not be kept confidential. Marcia O'Kelly suggested the possibility of a disclaimer regarding which things could not be kept confidential. In response to a question from Chair Maring, Committee members agreed for purposes of further discussion the draft procedure should apply to judicial officers, judicial system employees, and lawyers. There were no suggestions regarding preliminary changes to Section 2 of the draft procedure, which describes the types of complaints eligible for consideration under the procedure. Staff then summarized the options set out in Section 3 regarding confidentiality. Under the first option, he said, the complainant would not be required to reveal the complainant's name or the name of the alleged offender. However, he said, if the alleged offender is identified, then the complainant's identity must also be revealed. This option, he said, is taken from a university informal procedure concerning discrimination complaints. Under the second option, he said, complaints would be accepted only if the complainant's identity is known to the Committee. This option, he said, is taken from the LA County Bar procedure. Marcia O'Kelly wondered whether there would be any circumstances under which the identity of the alleged offender would not be known. Justice Maring questioned the ability to respond to a complaint and correct a situation if the alleged offender is not identified. Jim Fitzsimmons said providing for blanket anonymity would be a sure way of inviting harsh criticism of the proposed procedure. He said he preferred the second option, which requires the complainant's identity to be known to the Committee. Justice Maring suggested adding a requirement that the identity of the alleged offender should also be disclosed to the Committee. Pat Durick agreed that knowing the alleged offender's identity would be crucial to effectively addressing the complained of conduct. After further discussion, Committee members agreed the second option in Section 3 should be retained, with the added requirement that the alleged offender's identity also be known to the Committee. There were no suggestions regarding preliminary changes to Section 4 of the draft procedure, which describes methods for submitting complaints to the Committee and determining how resolution of complaints may be pursued. Discussion then turned to Section 5 of the draft procedure, which concerns informing the complainant of available formal procedures for addressing the conduct at issue. Justice Maring said the role of the Committee under this section should simply be to inform the complainant of what is necessary to initiate a formal process and who should be contacted. Committee members, she said, should not become involved in advising a complainant on substantive procedural matters. Jim Fitzsimmons suggested an advisory could be set out in written form and provided as a matter of course when a complaint is submitted, or otherwise made generally available. Staff noted that if the informal procedure is adopted, a pamphlet could be devised that provides this and other general information. He recalled as an example the brochure regarding New York's anti-discrimination panels, which the Committee reviewed at its June 8, 1999, meeting [See Attachment D (June 2, 1999)]. There were no suggested changes to Section 5. Staff then described Section 6, which permits the Committee, or a Committee member, to contact appropriate persons to assist in talking with the person against whom a complaint is made and resolving the matter. Additionally, he said, the Section requires that the complainant's name be kept confidential as to those assisting in the matter unless the complainant agrees to disclosure of the complainant's identity. Section 6, he said, is adapted from the LA County Bar procedure. Pat Durick suggested the reference to the complainant's "name" be changed to "identity" so there is consistent use of terminology within the Section. Committee members agreed. There were no further suggestions for changes to Section 6. Chair Maring drew attention to Section 7 of the draft procedure. Staff said the section provides generally for the confidentiality of the complainant's and alleged offender's identities. The Section, he said, would also require that no records be maintained concerning complaints filed with the Committee. Justice Maring wondered whether there should be a provision addressing disclosure of the complainant's identity to the alleged offender. It should be clear, she said, whether the complainant's identity will be disclosed and that the complainant will be made aware of that disclosure, or whether the complainant's identity will be disclosed only with the complainant's consent. Staff suggested the possible addition to Section 3 of a provision permitting disclosure of the complainant's identity to the alleged offender if the complainant agrees to disclosure. Committee members agreed. With respect to the record retention prohibition in Section 7, Justice Maring drew attention to complaints that may identify seriously troublesome conduct, such as stalking or harassment. She said a significant question then arises concerning documentation relating to that conduct and what the legal obligation and liability of Committee members might be. She said the Code of Judicial Conduct or the Rules of Professional Conduct may come into play at that point with respect to how judge and lawyer members may be required to respond. Following further discussion, Committee members agreed Section 7 would remain unchanged at this time. Pat Durick suggested that, since there are federal judges and federal court employees in North Dakota, the procedure should make clear that it pertains to "state" judicial officers and judicial system employees. Committee members agreed. It was also agreed that "person complained against" should be substituted for or used instead of "alleged offender." Chair Maring said the draft procedure would be revised to reflect the suggested changes and distributed for review at the Committee's next meeting. Rule 8.4, Rules of Professional Conduct - Update Regarding Proposed Amendments Chair Maring said the Supreme Court had received numerous comments concerning the proposed Rule 8.4 amendments, which would identify manifestations of bias as a form of lawyer misconduct. She said the Court was concerned that there was some ambiguity in the proposed language and additionally wanted a fuller, more substantiated report from the Joint Committee on Attorney Standards that addresses the First Amendment issues raised in some of the comments. Staff said the Joint Committee on Attorney Standards met on November 19 and reviewed the Supreme Court's referral of the amendments back to the Committee and also reviewed the comments submitted concerning the amendments. He noted that the Joint Committee had, over a series of meetings, reviewed ABA reports and activity with respect to similar amendments to Rule 8.4, reviewed rules from several other jurisdictions, and reviewed literature discussing the First Amendment issues. However, he said, in its initial submission of the proposed amendments to the Supreme Court the Joint Committee did not review at great length all of this information. At the November 19 meeting, he said, the Joint Committee requested a more extensive letter be prepared by staff for review at its March, 2000, meeting. The Joint Committee, he said, also suggested a minor modification to the language in the proposed amendments. Jim Fitzsimmons noted that the Joint Committee on Civil Legal Services reviewed the proposed amendments to Rule 8.4 and could not come to a consensus agreement on support for the amendments. Education Programs - Update Chair Maring said important progress was achieved during 1999 with respect to bias related education programs. Most recently, she said, there was a program on bias during the SBAND Annual Meeting in June and a segment on bias during the Bench and Bar Seminar in October. She said the objective is to conduct one seminar per year on the topic of bias. She noted a recent Minnesota program in which one component considered whether "biased conduct is unethical" and another discussed whether "gamesmanship" at trial is unethical. She said she has contacted the State Bar Association about a program at the Annual Meeting in June, 2000, or as part of the July, 2000, ethics CLE. Committee members agreed the Chair should pursue these initiatives and perhaps contact the Minnesota program presenters about their possible availability. Chair Maring noted that Chief Justice VandeWalle had forwarded to her a copy of the Massachusetts Implementation Committee Report. She said a judicial education program of particular interest described in the report concerned stranger and non-stranger sexual assault issues and the balancing of culture and law. She said a program like this may fit well with the previously discussed goal of providing a program on sex offenders, sexual offenses, and bias. Committee members agreed the Chair should pursue these program initiatives. Review of October, 1999, Progress Report and Future Activities Chair Maring drew attention to the previously distributed October 1999 Implementation Committee Progress Report. A copy of the Report is also attached as Appendix B. She noted Recommendation A8 and its referral to the Jury Standards Committee for development of juror orientation procedures and materials regarding the impact of bias. Staff said the Jury Standards Committee had previously discussed the possibility of developing a video orientation program but has not returned to the issue recently. He said the Committee, at its November 22 meeting, agreed to establish a more frequent meeting schedule in an effort to move forward more quickly on a number of projects, including the implementation recommendation. With respect to Recommendation C3, Marcia O'Kelly noted that written computations showing the determination of child support amounts is required as a matter of caselaw. Additionally, she said the Department of Human Services has developed a series of forms to be used in computing child support amounts, and perhaps those forms will be used on a regular basis. Chair Maring requested a staff update on the status of the forms and any local procedures or practices that may be in place regarding this issue. She said the Committee can then decide if something further should be pursued. She noted the possibility of referring the recommendation to the Joint Task Force on Family Law. With respect to Recommendation D5 concerning the availability of information in courthouses about domestic violence programs and resources, staff said information is provided through regional and local domestic violence advocacy groups and, according to the Council on Abused Women's Services, the information is generally available throughout the state. Committee members agreed action on this recommendation should be reflected as completed. Justice Maring said a program similar to the curriculum described in the Massachusetts Implementation Report should address Recommendation E2 regarding the impact of bias on the criminal process. With respect to Recommendation F4 (gender balance in hiring and promotion), Justice Maring said an equal employment opportunity policy has been reviewed by the Personnel Policy Board and has been distributed for comment. She said the recommendation status should be modified to reflect that the Board has approved the policy for comment and will review the comments at a future meeting. With respect to future Committee activities, Chair Maring inquired whether the Implementation Committee should move beyond the recommendations made by the Commission on Gender Fairness in the Courts and pursue new initiatives. She noted that implementation groups in other jurisdictions have made that transition. She said that, other than ongoing education programs and competing review of the informal complaint procedure, the Committee is nearing completion of action on Commission recommendations. She requested that Committee members give thought to whether the Committee should move to a new level of activity. Chair Maring observed that the American Bar Association recently developed a "what you can do" list in the area of bias issues. Included in that list, she said, is establishment of a workplace evaluation process that eliminates bias and develops objective criteria for successful performance. Minnesota, she said, has been very aggressive in enlisting law firms in the self-evaluation effort with respect to remedying bias based on gender and ethnic and racial differences. She said Massachusetts is pursuing a similar initiative and will also conduct a workshop on the question of whether there is more that can be done to eliminate bias in the courts. These are examples, she said, of activities the Committee might consider for future projects. Future Meeting Schedule Chair Maring suggested, and Committee members agreed, that unless the Committee's role changes, there likely is no need to meet more than perhaps twice per year. It was agreed the next meeting should be held in March, 2000, before the Committee's April 2000 Progress Report is due. There being no further business, the meeting was adjourned at 11:00 a.m. ____________________________________
November 29, 1999Members Present
Justice Mary Muehlen Maring, Chair
Pat Durick
Jim Fitzsimmons
Judith Howard
Marcia O'KellyMembers Absent
Judge Debbie Kleven
Judge Tom Schneider
Jim Ganje, Staff