COURT SERVICES ADMINISTRATION COMMITTEE
Holiday Inn, Bismarck
April 20, 2001
Justice Mary Muehlen Maring, Acting Chair
William A. Strutz, Chair
Linda Catalano, Legal Assistance of North Dakota
Cheryl Tryhus, State Bar Association of North Dakota
Chair Strutz was unable to attend the meeting due to continuing recovery from recent surgery. Justice Mary Muehlen Maring served as Acting Chair and called the meeting to order at 10:00 a.m. She said Justice Kapsner and Justice Neumann would be late in joining the meeting as they were attending a conference committee hearing on the judiciary's appropriation bill. She then drew Committee members' attention to Attachment B (April 12, 2001) - Minutes of the November 3, 2000, meeting.
It was moved by Judge Bohlman, seconded by Jeff Rotering, and carried unanimously that the minutes be approved.
Draft Rule Regarding Records Searches
At the request of Chair Maring, staff reviewed Attachment C (April 12, 2001) - a draft rule regarding how clerks of district court respond to requests for records searches. He said the draft includes most of what was contained in proposed amendments to Administrative Rule 41, which the Committee had submitted to the Supreme Court, and which had subsequently been referred back to the Committee for further review (See, November 3, 2000, minutes, pp. 1- 4). However, he said, the draft rule differs in providing a definition of what constitutes a record search (Section 2) and an exception concerning simple inquiries about the existence of a record (Section 5). The exception, he said, is based on discussion at the November 3 meeting concerning access to records as opposed to search requests that require the clerk to search for certain records and provide a summary of the search results.
In response to a question from Judge Bohlman concerning whether a search request should be submitted in writing (Section 3A), Dorothy Howard said requests should be in writing to ensure correct spelling of the name searched and clarity as to what information is being requested. However, noting that the definition excludes search requests by a party, she said her office often receives search requests from parties to an action. She said this occurs most often if the person has been the subject of a contract collection and is seeking a loan and must provide outstanding judgment information.
In response to a question from Ted Gladden, Dorothy Howard and Paulette Reule agreed a search includes a verification of record content by name, rather than simply providing a copy of a record.
In response to a question from Judge Jorgensen, Dorothy Howard said the typical record search begins with identification of a particular party or litigant. In light of that, Judge Jorgensen suggested the definition should focus on searching records pertaining to a particular entity or person.
Jeff Rotering suggested the draft rule be modified on page 1, line 2, to insert "regarding a specific person or entity" after "records".
Judge Foughty drew attention to the limitation in Section 5, which would except from what is considered a record search a request to confirm the existence or non-existence, or the filing, of a particular document. He suggested that the limitation should be included in the definition section.
It was moved by Jim Odegard, seconded by Jeff Rotering, and carried unanimously that Section 2, line 9, be modified to insert "regarding a specific person or entity" after "records".
It was moved by Judge Foughty, seconded by Jeff Rotering, and carried unanimously that Section 5 (Limitation) be combined with Section 2 (Definition).
It was moved by Jim Leahy, seconded by Judge Foughty, and carried unanimously that the draft rule, as modified, be submitted to the Supreme Court for consideration.
Status of Court Records Management Subcommittee
Chair Maring called on Dorothy Howard, Chair of the Court Records Management Subcommittee, for comments on the subcommittee's status. Dorothy explained that most subcommittees are assigned a particular task, report back to the parent committee, and then disband. However, she said, the Court Records Management Subcommittee has operated in a different fashion, having been in existence for 15 or more years and with a more or less ongoing role as a discussion vehicle for clerks' issues and revision of the Clerks of Court Manual. She noted that the Subcommittee has lost members due to retirements or resignations by clerks and there is a question regarding whether replacements should be appointed. More importantly, she said, it may be time to review the status of the subcommittee in light of the state having assumed responsibility for clerk of district court services.
Staff noted that the Subcommittee, in reviewing possible revisions to the Clerks of Court Manual and considering various issues regarding records management, often considers essentially operational kinds of issues pertaining to the clerks of district court. He said there has been some discussion that, given the responsibility of the Council of Presiding Judges in establishing polices governing trial court administration, it might be more appropriate for an entity like the Subcommittee to be established under the Council's auspices.
In response to a question from Chair Maring, Dorothy Howard said the Subcommittee has served an important role in providing a forum to which clerks of court could bring issues and questions for discussion.
In response to a question from Chair Maring, Ted Gladden explained that the Subcommittee was originally established to develop a simplified, uniform court fee schedule. He said the Subcommittee then developed a proposed administrative rule and retention schedule concerning the disposition and management of court records. He noted, however, that the management structure within the judiciary has changed with the new responsibilities outlined for the Council of Presiding Judges under Administrative Rule 22. The Council, he said, now develops policies and procedures regarding trial court administration and operation. As a result, he said, the Subcommittee, or a successor group, could be established by the Council. He noted that one area that receives little attention is that of forms development. The Subcommittee, he said, has generally reviewed smalls claim forms but nothing more, and there is no other entity that has general responsibility for developing court forms. Consequently, he said, if it is recommended that the Subcommittee, or a successor, be established under the Council of Presiding Judges, it may be useful to also suggest that the group be given responsibility for forms development.
Judge Bohlman, having served on the Council of Presiding Judges, noted that an entity like the Subcommittee would fulfill a very important role in considering operational issues. For that reason, he cautioned against dissolving the Subcommittee unless a similar entity were to be established elsewhere, preferably under the Council of Presiding Judges.
Judge Jorgensen suggested that during the present transition in the provision of clerk of district court services it is critical to maintain the Subcommittee, or an entity like it, as a vehicle for addressing issues affecting clerks of court.
It was moved by Judge Jorgensen and seconded by Jim Odegard that the question of establishing a successor to the Court Records Management Committee be referred to the Council of Presiding Judges for consideration.
It was moved by Ted Gladden, seconded by Judge Bohlman, and carried unanimously that the motion be amended to include forms development as a responsibility of any successor entity established under the Council of Presiding Judges.
The motion, as amended, carried unanimously.
Pro Se Litigants in North Dakota Courts
Chair Maring next welcomed Linda Catalano, Legal Assistance of North Dakota, for comments regarding civil legal services initiatives affecting self-represented litigants.
Linda Catalano said there are several issues under discussion by the Joint Committee on Civil Legal Services for the Poor and legal service providers generally. She emphasized that concerns in this area arise not only because there has been an increase in pro se filings in courts, but also because there are increasing numbers of people that do not use the legal system at all. She said legal service provides have a small number of forms available, including name change kits, which have not been used to any great extent. She said a packet of forms related to seeking child support increases or decrease was also developed, but they have not been used because of a lack of uniformity in process in the judicial districts. She noted that a full range of forms has been developed for use in the tribal courts. She said the Joint Committee has surveyed the kinds of forms available through various legal services programs and found there is little available. She said the programs have not expended a great deal of effort in developing pro se material for use in the court system because the material is of little use if it is not generated through a cooperative effort involving the bench and bar. She said there are a number of legal services initiatives underway that this Committee could keep in mind as pro se assistance issues are discussed. She said Legal Assistance of North Dakota has been involved in a long, sometimes frustrating, effort to create a wide-area network to link its various law offices. She said a gateway website for legal services is also being created which provides links to North Dakota Legal Services, Dakota Plains Legal Services, and Migrant Legal Services. She said LAND is striving to be a gateway for purposes of identifying people that may appropriately need pro se assistance or who could be referred to other entities such as the State Bar's lawyer referral service. However, she said, this effort would require coordination with the judiciary and the bar. She said a significant topic of discussion has been how to appropriately use the Internet to assist self-represented litigants. She noted that all of LAND's brochures are currently available on its website. She said LAND is also installing computers in two pilot locations to provide access to on-line brochures and other legal information. With respect to sources of financial assistance, she noted that there may be a good chance of obtaining outside funding for pro se assistance development and planning initiatives. She said the various legal services programs would be happy to assist the Committee in its review of possible pro se assistance efforts.
In response to a question from Judge Foughty, Linda Catalano said LAND receives a large number of inquiries about child support issues and activities of the child support enforcement units. In response to a further question from Judge Foughty, she said LAND currently contracts with approximately 25 attorneys in the state to provide family law services. She said LAND does not handle initiated divorce cases.
Cheryl Tryhus noted that family law cases comprise approximately 90% of the cases in the State Bar Association's reduced fee program.
In response to a question from Judge Foughty, Linda Catalano said she is not aware of a single, elementary brochure that offers general information about pro se assistance. However, she said, the Joint Committee on Civil Legal Services for the Poor has reviewed methods of assembling such information. She said the Joint Committee has also discussed the feasibility of a system by which a first line of legal services could be provided by a local attorney under contract with legal aid programs.
At the request of Chair Maring, staff then reviewed information concerning programs established in other jurisdictions to assist self-represented litigants. Staff said there are approximately 12 states that have established what might be termed a "statewide" pro se assistance program. However, he said, even within these states the scope of the programs varies substantially. He said some programs, such as in California, have offices staffed by paralegals or attorneys to provide onsite assistance. He said a different approach was taken in Minnesota, in which the Conference of Chief Judges directed the establishment of regional committees, which were then tasked with creating assistance programs in their respective regions. Several jurisdictions, he said, have established public information booths at which patrons can access electronic forms and case information. He said a variety of self-help centers have also been established. Virtually all jurisdictions, he said, have developed forms and pamphlets for use by self-represented litigants. Some jurisdictions, he said, have established local programs, which do not have a statewide application. The best example, he said, is the self-help center supported by the Maricopa County Superior Court, which provides a broad array of court information, approximately 430 court forms, and rosters of lawyers and mediators. The center, he said, also provides ½ hour of advice from on-site lawyers, a joint program supported by the county bar association and local legal services programs. In summary, he said pro se assistance programs range from the very sophisticated with significant staffing and funding commitments, to the very limited and narrowly focused. There are, he said, nevertheless two constants in virtually all the various programs. First, he said, the programs are predominantly concerned with domestic law matters such as divorce, child support or custody, and some juvenile matters. Second, he said, nearly all programs have included provision of forms, pamphlets, educational information about legal services, and explanations about court processes and procedures.
Staff then distributed a summary list of questions and tasks regarding pro se efforts which had been reviewed by the Committee at previous meetings. He noted that nearly all the possible projects identified on the summary list under Item 4 have been undertaken in other jurisdictions as part of a pro se assistance program. A copy of the summary list is attached as an Appendix. He also drew attention to Attachment D (April 12, 2001) - a pro se protocol for judges considered in Minnesota. He noted that the protocol had not apparently been formally adopted in Minnesota.
Chair Maring inquired whether the Committee should proceed with any of the identified projects on the summary list and, if so, which ones. For example, she noted the first possible project concerning a rule or policy on legal advice and scope of assistance provided by staff such as clerks of court. She observed that John Greacen, Director of the New Mexico Administrative Office of the Courts, had written two informative articles outlining issues to consider in this area.
Judge Bohlman said it may be difficult to address in a rule or policy what constitutes permissible advice or assistance. It may be more useful, he said, to pursue a thorough educational effort, perhaps providing training for clerks of court regarding legal advice versus simply providing information. He suggested the possibility of referring the matter to the Judicial Education Commission.
Justice Neumann suggested it may be worthwhile to invite John Greacen to conduct a workshop on the topic and, perhaps, out of that informal guidelines could be developed.
Judge Jorgensen agreed ongoing training and education is important in any effort to adequately address pro se related issues. However, he said guidelines on permissible advice and assistance should be developed apart from an education program and then provided to the Education Commission so the guidelines could serve as the basis of an education component or program.
Staff said he would provide the Greacen articles for the Committee's review at the next meeting.
Judge Jorgensen said it would also be important to develop a protocol for judges. He suggested this topic could be included in a future Judicial Conference education program.
Judge Foughty observed that in domestic violence protection order proceedings there are potentially significant consequences following issuance of an order and there is uncertainty about what parties should be told when they appear without legal representation. Similarly, he said, self-represented litigants in divorce proceedings may agree to stipulations that are not well thought out or relinquish important rights. He wondered if the judge has any responsibility in these situations.
In response to a question from Chair Maring concerning how the Committee should approach these issues, Jim Odegard suggested the Committee narrow its focus to the first four projects identified under Item 4 on the summary list and consider these further at the July meeting. Judge Jorgensen suggested inviting Linda Catalano and Cheryl Tryhus to the July meeting to provide additional information. There was general agreement with these suggestions.
Judge Foughty also suggested, and Committee members agreed, that Jim Fitzsimmons, North Dakota Legal Services, should be invited to the July meeting to offer his comments on pro se assistance efforts.
There being no further business, the meeting was adjourned at 1:25 p.m.
Jim Ganje, Staff