The Gender Fairness Implementation Committee was established by Supreme Court Administrative Order 7 to oversee implementation of recommendations made by the Commission on Gender Fairness in the Courts. It is further charged with monitoring the progress of the judicial branch in eliminating gender bias in the courts.
In its report, the Commission on Gender Fairness in the Courts made 33 recommendations in six categories: professional conduct, jury service, domestic law, domestic violence, criminal law, and judicial system as employer. After completing its initial review and analysis of these recommendations, the Implementation Committee referred certain recommendations to other judicial system committees, or other entities, for consideration. Those referrals are indicated in the following listing of recommendations and the status of actions taken. The Committee has also identified recommendations for which additional information, or at least monitoring, is required. The Committee is also continuing its review of the most appropriate methods for pursuing educational initiatives identified in this report.
A. PROFESSIONAL CONDUCT
1. The North Dakota Rules of Professional Responsibility [sic] should be amended to include an explicit prohibition against gender-biased conduct in the courtroom. The Joint Attorney Standards Committee [sic] has previously considered this issue and did not recommend a change in the rules. However, the new findings of the gender fairness survey justify reconsideration of this issue.
Rule 8.4 of the Rules of Professional Conduct was amended to identify manifestations of bias as a form of lawyer misconduct. the amendments were adopted effective October 1, 2000. Completed.
2. A system-wide statement reemphasizing Canon 3(B)(5) and (6) of the North Dakota Code of Judicial Conduct should be issued.
The Implementation Committee has met with the SBAND Executive Director and CLE Coordinator and Director of Judicial Education to discuss possible education approaches. Ongoing.
3. The Commentary to Canon 3(B)(5) and (6) of the North Dakota Code of Judicial Conduct should be expanded (a) to mention examples of prohibited gender-biased conduct that may not be considered "sexual harassment" per se (e.g., terms of endearment, forms of address, or gender stereotypes) and (b) to reference Vitko v. Vitko, 524 N.W.2d 102, 105-06 (N.D. 1994) (Levine, J., concurring) and Johnson v. Johnson, 544 N.W.2d 519 (N.D. 1996) and the duty to intervene.
4. Special efforts should be made to present innovative and appropriate judicial and attorney training and education programs to enhance sensitivity to gender fairness issues. Programs should include specific reference to the complex issues of professionalism and judicial intervention, including when intervention is appropriate and how it should be accomplished.
The Implementation Committee has met with the SBAND Executive Director and CLE Coordinator and Director of Judicial Education to discuss possible approaches. A program on gender fairness in the courts was presented at the November, 1998, Judicial Conference by Judge Marilyn Loftus, who is on the faculty of the National Judicial College. A program on gender fairness in the courts was included as part of the education program for the June, 1999, SBAND Annual Meeting and the October, 1999, Bench and Bar Seminar. A program on issues concerning sexual assault was presented at the 2000 Bench & Bar Seminar. A program on bias is a scheduled education component for the 2001 Judicial Institute. Ongoing.
5. The bench and bar should explore and develop mechanisms that will facilitate dialogue on gender fairness issues in the practice of law.
Referred to the Jackson Hole Group, which has agreed to compile a list of resources available from the National Center for State Courts, the Inns of Courts, and other states. These resources would be used to assist in presenting education programs to the bench and bar. The Committee has contacted the Inns of Court regarding development of a program on gender fairness in the courts. Additionally, a periodic column in the Gavel will attempt to provide a forum for discussion of gender biased conduct experienced in North Dakota courts. The Committee is assembling preliminary law firm profile information as background for discussion of a possible law firm self-audit initiative. Discussions with bar leadership indicates support for the initiative. The Committee will designate a liaison to meet with select members of the bar to consider how to proceed.
6. A guide on how to conduct gender fair proceedings should be drafted and distributed to all judges. It could discuss forms of address, terms of endearment, and other topics as well as provide guidance about judicial intervention and welcoming behaviors for both formal and informal exchanges with the court.
7. The North Dakota Pattern Jury Instruction Committee [sic] should consider strengthening jury instructions which require jurors to act in a bias-free manner. Instructions which might be considered include the opening or preliminary instructions, the closing or "province of the court and jury" instructions, the witness credibility instruction, and the "duty to deliberate" instruction.
Completed. The Pattern Jury Instruction Commission continues its review of all instructions.
8. As part of existing jury orientation procedures and materials, jurors should receive an explanation of the meaning and effect of gender bias in judicial proceedings and of the right of every litigant to bias-free consideration of his or her claims and defenses.
Referred to the Jury Standards Committee of the ND Judicial Conference. This recommendation may also be addressed through public information services provided under contract to the judiciary as one aspect of these services will be development of a juror orientation video. Completed.
9. Research should be done to assist the court in determining the nature and extent of any gender bias in the jury deliberations process.
A juror exit questionnaire is being distributed at the request of the Jury Standards Committee, with the goal of assembling data to evaluate juror perceptions. One question addresses the perception of bias in any part of the court proceedings. The subject matter of this recommendation has also been addressed by a recommendation from the Public Trust and Confidence Implementation Committee, which has been submitted to the Jury Standards Committee. Completed.
10. In addition to the formal disciplinary systems that exist for both judges and lawyers, there should be created a more informal system -- to be used at the option of the person offended -- by which those accused of gender bias infractions will first receive a notice and an opportunity to discuss the situation before any official disciplinary measures are considered.
The Implementation Committee submitted to the Supreme Court an informal complaint process to address bias related conduct. Administrative Rule 44 establishing the informal complaint procedure was adopted effective March 1, 2001. Completed.
B. JURY SERVICE
1. There should be research on the effect of bias on jury functions.
The Implementation Committee will continue to monitor the use of a jury exit questionnaire, which is being distributed and used at the request of the Jury Standards Committee. Completed.
2. Revision of pattern jury instructions should be continued for gender inclusive language and ability to be particularized for gender of the party affected.
Completed. The Pattern Jury Instruction Commission continues its ongoing review of instructions for improvements in these areas.
3. All pattern jury instructions should be reviewed to determine whether they are clear enough or strong enough in prohibiting gender bias.
Completed. See, Recommendations A.7 and B.2, Status
4. As part of existing jury orientation procedures and materials, jurors should be instructed about the meaning and effect of gender bias in judicial proceedings and of the right of every litigant to bias-free consideration of his or her claims and defenses.
Referred to the Jury Standards Committee. See, Recommendation A.8, Status. Completed.
C. DOMESTIC LAW
1. This report should be used to identify perceptions of gender bias and risks of gender bias by the bench and bar. There should be judicial and attorney education addressing those perceptions and risks.
The Implementation Committee coordinated a one day program on domestic violence and custody determinations included in the May, 1999, Judicial Institute education program. Ongoing.
2. Adoption of standards for custody evaluators and guardians ad litem, including training to ensure sensitivity to risks of gender bias in custody investigations and recommendations, should be encouraged.
3. A written computation, attached to the judgment or as an exhibit, showing determination of child support amounts should be required. Written findings showing justification for any deviation from the child support guideline should be required.
The Implementation Committee has reviewed information regarding local practices and procedures governing the submission of child support computation information by parties. Completed.
4. There should be judicial education addressing the need for temporary attorney fee awards and other problems of court access.
The Implementation Committee has recommended that this issue be included in the Family Law Seminar sponsored by SBAND. Completed.
D. DOMESTIC VIOLENCE
1. The topic of domestic violence and protection orders -- including information about the abuse dynamic, the dangers of misplaced emphasis on victim actions, failure to respect victim concerns, and the prevention of domestic violence -- should be addressed in education programs for judges, prosecutors and other attorneys, court personnel, and law enforcement officers.
The Committee has met with the SBAND Executive Director and CLE Coordinator and the Director of Judicial Education to discuss possible approaches. A one day program on domestic violence and custody determinations, and procedures in domestic violence cases generally was included in the May, 1999, Judicial Institute education program. Ongoing.
2. The judiciary should reemphasize to the bar and explain to pro se parties that mutual protection orders in cases without cross petitions will not be issued. The temporary protection order issued to the respondent should make clear that mutual orders cannot be issued unless a petition is filed by the respondent requesting a protection order.
After review, the Implementation Committee has concluded this Recommendation would be addressed more appropriately through education to ensure awareness of current statutory requirements concerning issuance of mutual orders. See also, Recommendation D.1, Status. Completed.
3. The topic of domestic violence should become part of the curriculum in family law courses in the state law school.
4. Means for developing or obtaining appropriate informational material on domestic violence for the general public should be explored.
5. Information regarding available resources and assistance for victims of domestic violence should be made available at the local courthouse.
The Implementation Committee has reviewed information that is currently available in local courthouses. Completed.
6. Appropriate funds should be provided to enable service providers (law enforcement, social services, prosecutors, lawyers, and others) to educate their own personnel about the complex nature of domestic violence.
Implementation Committee review indicates training is provided on a continuing basis for law enforcement and through the Attorney General's office and the State's Attorneys Association. Completed.
E. CRIMINAL LAW
1. Statistics should be maintained concerning the handling of assault cases, including sexual assault cases (statistics to include charging decisions, prosecution rates, conviction rates, sentencing decisions, and probation and parole decisions) with annual collection and compilation of the data. There should be a public policy that law enforcement officers and prosecutors pursue sexual offenses committed by a spouse, intimate partner, or acquaintance with the same seriousness given to violent crimes committed by a stranger.
The Implementation Committee has reviewed current data gathering initiatives; Public policy expression referred to Attorney General, State's Attorneys' Association, and Council on Abused Women's Services. Completed.
2. Judicial education programs to increase sensitivity to gender bias in the various stages of the criminal process should be developed.
The Implementation Committee has met with the SBAND Executive Director and CLE Coordinator and the Director of Judicial Education to discuss possible approaches. An education program regarding sex crimes and associated issues, such as the consent defense, is being considered as a possible program for future Judicial Conference education programs. A program concerning issues in sexual assault cases was conducted during the 2000 Bench & Bar Seminar. A bias component is scheduled for the 2001 Judicial Institute. Ongoing.
3. Education programs should be provided for judges and lawyers concerning sexual assault, spousal assault and rape, acquaintance rape, rape trauma syndrome, gender stereotypes and rape myths that may be employed in the trials of sexual offenses, consent defenses, and the rape shield statute.
A one-day program on gender-related issues in the areas of domestic violence and custody decisions was included in the 1999 Judicial Institute program. Additionally, a program regarding sexual assault cases was conducted during the 2000 Bench & Bar Seminar. See also, Recommendation E.2, Status. Ongoing.
F. JUDICIAL SYSTEM AS EMPLOYER
1. Sexual harassment training should be an ongoing periodic feature of judicial education.
A program on sexual harassment law and procedures, presented by Sarah Andrews Herman, was provided for judges at the November, 1998, Judicial Conference. An orientation program is now provided for new judges and judicial system employees to ensure familiarity with relevant personnel policies. Completed.
2. The role of the presiding judge in the prevention of sexual harassment should be established. An alternative procedure should be provided for situations where it is inappropriate to make complaints to the presiding judge.
The Implementation Committee is reviewing current policies and procedures. Administrative Rule 44, adopted effective March 1, 2001, establishes an informal complaint procedure addressing biased conduct which may be used by judicial system employees. Completed.
3. A gender issues contact person should be designated in each judicial district to enhance understanding of existing sexual harassment policies and to respond appropriately to inquiries or concerns expressed by employees.
The Implementation Committee has retained this recommendation for consideration as part of its discussion of the development of appropriate educational programs. Administrative Rule 44, adopted effective March 1, 2001, establishes an informal complaint procedure concerning allegations of biased conduct. Completed.
4. The Supreme Court should establish goals for personnel administration of courts at both levels, including the following: offer opportunities for employees to enhance personal skills, ensure timely and thorough reviews of job descriptions and accompanying pay grades; encourage striving for gender balance in hiring and promotion decisions whenever possible, as long as candidates present equal qualifications.
The Personnel Policy Board submitted a proposed Equal Employment Opportunity policy to the Supreme Court. The policy was adopted as Administrative Policy 124. Completed.
5. All qualified persons should be encouraged to seek judicial office.
Referred to the Supreme Court. The Supreme Court has expressed support for the seeking of judicial office by all qualified persons. Completed.
6. Participation by women on commissions and committees should be encouraged.
Referred to the Chief Justice and SBAND President. The Supreme Court directed the Clerk of the Supreme Court to include this encouragement when the Court seeks nominations for Commission and Committee memberships. The Bar Association will continue to seek out and appoint qualified members to committees and will also encourage qualified women to apply for court-appointed positions. Completed.