COURT SERVICES ADMINISTRATION COMMITTEE
Kelly Inn, Bismarck
August 25, 2000
William A. Strutz, Chair
Judge Bruce Bohlman
Chair Strutz called the meeting to order at 10:00 a.m. and drew Committee members' attention to Attachment B (August 18, 2000) - Minutes of the February 18, 2000, meeting.
It was moved by Rep. Delmore, seconded by Judge Jorgensen, and carried unanimously that the minutes be approved.
Administrative Rule 41 - Draft Amendments Regarding Records Searches
At the request of Chair Strutz, staff summarized draft amendments to Administrative Rule 41 set out in Attachment C (August 18, 2000). Staff said the amendments would create a new Section 13 that would govern the manner in which clerks of district court respond to requests for searches of criminal and civil records. The request, he said, must be submitted in writing and a verbal response to a request would not be permitted. The clerk, he said, would charge a fee established in the Court Fee Schedule for each name searched, with the fee, or proof of payment of the fee, received by the clerk before the response is provided. The draft amendments, he said, are intended to address the current lack of direction regarding clerk responses to record search requests. He said the Court Records Management Subcommittee, comprised of clerks of court, reviewed the draft amendments and recommended two changes. First, he said, it was suggested that a fee be assessed for each record category, civil or criminal, for which a search is requested. And second, he said, it was recommended that the alternative of receiving "proof" of payment be deleted. He said Subcommittee members generally concluded it would be preferable and more manageable to require that the fee actually be received before the search results were provided.
With respect to charging a fee for each record category searched, Dorothy Howard, chair of the Court Records Management Subcommittee, explained that civil records searches are usually conducted for purposes of obtaining information relating to credit history, judgments for example, while criminal records searches are usually related to background checks for employment applications, apartment rentals, or the like.
Justice Kapsner drew attention to Section 6 of Ar 41 which permits an oral request for records and wondered whether new Section 13 conflicts in requiring a written request. Staff responded that Section 6 governs requests by persons for on-site access to records, which most often occurs in-person; therefore, there is the option for an oral request for access. Draft Section 13, he said, would apply to requests for the clerk or staff to search records and provide information regarding record contents.
Judge Jorgensen inquired of the level of clerk responsibility for the accuracy of the record searched. For example, he said, there may uncertainty with respect to the name to be searched, with the attendant possibility that the clerk may provide incomplete or incorrect information. Dorothy Howard said in the typical criminal record search her office will inform the requestor whether there is a criminal action in the record and, if necessary, provide the file number and a copy of the docket page. If the requestor desires additional information, she said, a more detailed request is required. With respect to uncertainty about names, she said her office will attempt to notify the requestor if there is a question as to the name to be searched. Additionally, she said her office requires that the social security number and date of birth be provided if possible.
In response to a question from Wade Williams, staff said the county would retain record search fee revenue if received in a county providing clerk services under a funding agreement with the judiciary.
Staff noted that Paulette Reule, a Committee member and a member of the Court Records Management Subcommittee, was unable to attend the meeting, but indicated her support for new Section 13 and for the modifications recommended by the Subcommittee.
It was moved by Jim Odegard, seconded by Sen. Watne, and carried unanimously that draft Section 13 be modified to provide for a fee for each name and record category, civil or criminal, searched and to delete the reference to receipt of proof of payment.
Judge Jorgensen drew attention to a Dickinson newspaper editorial that voiced opposition to a recent clerk practice in Dickinson of charging a fee for record report information. He wondered whether this issue also should be addressed. Staff said the Dickinson issue is part of a more general discussion concerning what fee may be charged by the clerk for providing record reports generated during the normal course of business or for providing special reports compiled in response to a request. He said the issue is being reviewed and will likely be addressed by an addition to the Court Fee Schedule.
Dorothy Howard noted that her office regularly receives requests from the Fargo Forum for reports concerning divorces and marriage licenses. There has never been an objection, she said, to paying a fee for receiving the report. On the general issue of record searches, she said her office receives requests for record searches from companies and agencies all across the country. She said her office averages between 20 and 40 name searches per day and during the first 5 ½ months of this year has received approximately $32,000 in search fees.
It was moved by Judge Foughty, seconded by Jim Odegard, and carried unanimously that the proposed amendments to Administrative Rule 41, as modified, be submitted to the Supreme Court for consideration.
Collocation of State and County Employees - Draft Statement
At the request of Chair Strutz, staff distributed a draft statement regarding issues associated with the possible collocation of state and county employees in a county that has elected the state-employee option. A copy of the draft statement is attached as an Appendix. Staff said the draft statement is in response to an ongoing discussion about possible problems associated with the location of county employees in a clerk's office who do not become state employees on April 1, 2001. There has been some concern expressed, he said, that certain counties may not currently have the flexibility with respect to facility arrangements to relocate those employees in another office. The draft, he said, outlines a possible method for responding to these situations. He emphasized that the draft statement applies only to those eleven counties that have elected the state-employee option under HB 1275.
In response to a question from Justice Maring concerning how "fractional" employees will be handled, staff said he is unaware of any final decision on the issue.
Alon Weiland recalled his comment at an earlier meeting about difficulties in Cass County associated with transferring non-court related duties and perhaps personnel to the Register of Deeds' office. He said the county has since resolved that issue in that non-court related duties have been transferred to the County Treasurer. However, he said, the handling of restitution continues to be a troubling issue. Currently, he said, restitution responsibilities are handled by staff in the State's Attorney's office. If that responsibility is transferred to the clerk, he said, there will be additional personnel questions to be addressed. Most important, he said, is the fact that the preliminary county budget has been adopted and cannot now be increased. He said the county is very interested in how the restitution question will be resolved and encouraged the Supreme Court to make a decision soon.
Dorothy Howard said her office would need two additional staff if handling restitution were transferred to the clerk's office. She agreed there would be difficult personnel decisions to be made in the State's Attorney's office.
Sen. Watne noted that Chief Justice VandeWalle, in his August 18 update memorandum, indicated the Supreme Court is awaiting the results of the clerk workload assessment being conducted by the National Center for State Courts before making a decision with respect to restitution.
With respect to the draft statement, Justice Neumann suggested language be added to line 16 identifying reasons, such as maintaining the integrity of records, security, etc., that illustrate the importance of state-employed clerks and staff occupying exclusive office space.
Judge Jorgensen suggested focusing on the need to segregate responsibilities and tasks, with the exclusivity of office space being supportive of that goal, rather than placing the first emphasis on the need for exclusive office space. Dorothy Howard observed that there will likely be situations in which records associated with non-court related duties will be stored in a state-employed clerk office simply because there may not be other storage space available in the courthouse.
Chair Strutz said the draft statement would be held over for further review at the Committee's next meeting.
Pro Se Litigation in North Dakota
Chair Strutz drew committee members' attention to Attachment D (August 18, 2000) - an Action Plan to Assist Pro Se Litigants - and called on Penny Miller, Clerk of the Supreme Court and member of the team that developed the plan, for comments.
Ms. Miller explained that the Action Plan was developed by a team consisting of herself, Judge Riskedahl, Linda Catalano, Dann Greenwood, and Ted Gladden, which attended a national conference dedicated to issues concerning the rise of pro se (self-represented) litigation in courts around the country. She emphasized that the plan is not intended to be a final document, rather it is a preliminary suggestion of a method for addressing issues related to pro se litigation which was thought to be most palatable to the various interests involved. The team's general conclusion, she said, is that efforts in this area are needed because of the perceived rise in pro se activity in the courts. Such efforts in other jurisdictions, she said, have ranged from simply providing forms for use by pro se litigants or developing instructional videos to significant programs with substantial staff and fiscal commitments. With respect to disposition of the Plan, she said the team had concluded that it would likely be referred to a committee for review and discussion to determine whether the Plan's approach is acceptable or should be modified in some respect.
Judge Riskedahl encouraged active consideration of the plan because pro se activity is a growing concern in the court system. There are, he said, differing opinions about whether the courts should be proactively involved in addressing this issue, but many jurisdictions have taken the issue in hand and developed responses because of the impact of pro se litigation on court operations.
In response to a question from Chair Strutz, Penny Miller said that, as a general matter, the most noticeable increase in pro se activity has occurred in the family law area. More interesting, she said, is the fact that pro se litigants are comprised not only of those who have limited financial resources, but also of those who have the ability to pay for an attorney but who choose to represent themselves because of objections to the cost, because of a distrust of the system, or simply because they perceive themselves as able to adequately handle their legal concern.
Judge Riskedahl said pro se activity may also be due in part to the perceived lack of affordable legal representation for low-level kinds of cases, which results in people seeking a different way to have their case heard. The fundamental questions, he said, are whether those without legal representation can obtain justice in the courts and whether there are barriers within the system that prevent them from achieving that goal.
At the request of Chair Strutz, staff then reviewed Attachment F (August 18, 2000) - a summary of the results of a survey of North Dakota judges and referees regarding pro se activity in the state's courts. Staff noted that the survey responses are necessarily subjective because the survey was the first attempt to assess the level of pro se activity and because there is currently no method, other than anecdotal evidence, of tracking pro se activity at the trial court level.
With respect to specific survey responses, staff said about 40% of the respondents said they encounter pro se litigants approximately 1 - 9 times per week. The remaining responses, he said, were generally evenly divided with respect to greater or lesser frequency. Consistent with Penny Miller's earlier observation, he said, respondents indicated a higher level of pro se activity ("sometimes" or "frequently") in domestic law proceedings. The most frequent appearance of pro se litigants, he said, occurred in landlord/tenant and traffic cases. With respect to problems associated with pro se litigation, he said high percentages of respondents noted predictable areas of difficulty: lack of knowledge of evidentiary rules, court procedures, and substantive law. When asked to describe what mechanisms have been used in their courts in the past to address pro se litigation, he said respondents most often indicated referral to legal service providers or pro bono attorneys. A lesser percentage (30 to 34%), he said, indicated the use of example pleadings or "fill in the blank" forms. However, he said, when asked what mechanisms could be used in the future to address the issue, significant percentages indicated use of written instructions for completing forms (92%) and use of standardized forms (87%). He said there was also notable support for providing a clearer definition of "procedural vs legal advice" (74%), providing pro bono advice (71%), and simplifying court procedures (66%).
Staff then drew attention to the material included separately in the August 18 Committee mailing. The material, he said, is provided for illustration and background concerning the range of issues concerning pro se litigation and the kinds of initiatives undertaken in other jurisdictions to address this issue. Most notable, he said, may be the examples of resources available over the Internet, both by way of court systems providing online forms, for example, or through information provided by private entities such as the American Pro Se Association.
Rep. Mahoney agreed that computer technology has contributed to the rise in pro se activity, just as it has changed routine law practices by making it easier to generate "canned" interrogatories and burden the opposing side with endless discovery demands. He said standardized forms could be considered as a method of assisting pro se litigants, but he cautioned against promoting pro se activity at the expense of adequate legal representation.
For purposes of reviewing the Action Plan, staff drew attention to Attachment E (August 18, 2000) - a summary list of questions and possible tasks regarding the Plan. The first three elements, he said, concern the mechanics of analyzing the Plan - whether it should supplemented or expanded and whether some aspects of the Plan should be referred to other entities. The fourth element, he said, distills from the Plan those suggestions that might be undertaken as projects by the Committee or another committee or entity.
Judge Jorgensen inquired what a "pro se protocol" for judges ( the second identified project) might be. Penny Miller said the protocol could consist of a simple statement made by judges to pro se litigants about what expectations are and what the judge can and cannot do with respect to assisting the litigant. Justice Neumann said a protocol might also consist of guidelines for judges - a kind of list of do's and don'ts.
Justice Neumann agreed pro se activity is increasingly present in the courts without the courts having done anything to encourage it, and the judicial system should identify how it can most effectively respond. The Action Plan, he said, is a good starting point, although he cautioned that the Supreme Court has not endorsed any suggestion in the Plan. But, he said, there is a general sentiment on the part of the Court that the issue requires attention. With respect to Committee process, he said it may be most helpful for the list of possible tasks to be broken down further, with identification of those things that may be of higher priority. For example, he said, the first question concerning expanding or supplementing the Action Plan could entail a more careful analysis of the Plan to determine whether some parts or more acceptable than others. A discussion of why certain items were included, he said, may clarify possible priority activity.
Judge Jorgensen inquired whether the goal is, for example, to commit the court system to becoming more user-friendly or is it to pursue uniformity. He said the literature generally indicates one approach is to make the initial decision concerning the ultimate objective, a user-friendly court system for example, with efforts then undertaken to achieve that objective at each step in the process in which the pro se litigant is involved. An alternative to that systemic approach, he said, is to provide methods for preparing the pro se litigant to handle their case, but not provide the continuing support mechanisms throughout the process. He said he is uncertain about what might be expected with respect to addressing the issue in our court system.
Justice Neumann said there is likely no single answer about how to address this issue in our judicial system. There are different groups, he said, that may have differing ideas about what the possible answer might be or about whether the issue ought to be addressed in the first instance. He said one objective would be to attempt to achieve some consensus on the nature of the problem and what might be possible in the way of responses.
Justice Kapsner said the judicial system must not only recognize the need to be user-friendly because of the impact of pro se litigation, but must also must recognize the need to be institutionally friendly and deliver judicial services in a efficient and effective manner.
Justice Maring noted that the Supreme Court's general concern about this issue arose from the clear increase of pro se activity at the appellate level and from recommendations made by the Public Trust and Confidence Committee, which emphasized concerns with respect to available assistance for pro se litigants.
Rep. Mahoney said care should be taken in how extensive the system's role will be, for example, in the area of assisting pro se litigants in the preparation of forms. He said it can be very easy to reach a point at which the assistance borders on providing actual representation for the litigant. He suggested that if uniform forms and procedures are considered, such an approach should be limited to something similar to the small claims process, with some thought given perhaps to expanding the spectrum of cases that could be handled in such a process. Additionally, with respect to family law matters and pro se activity, he encouraged the judicial system to continue its efforts in the areas of mediation and alternative dispute resolution, which might provide acceptable alternatives for those who might otherwise consider self-representation.
Sen. Watne drew attention to Item 5 in the Action Plan, which identifies the kinds of services that might be provided as part of a pro se assistance program. She said the suggestions are straight-forward and do not appear to go too far. The identified services, she said, would provide advice to pro se litigants about the risks associated with self-representation and would provide basic information about court processes and available resources.
Judge Riskedahl said the Committee, with its diverse membership, may be well-situated to consider the competing interests that must be taken into account in developing a response to this issue. Consequently, he cautioned against a fragmented review of the Action Plan, which may result if substantial parts of the Plan are referred to other entities for consideration. Justice Neumann said cooperation of the organized bar will be essential in considering how to address these issues.
Chair Strutz said the Committee would continue review of the Action Plan at its next meeting.
There being no further business, the meeting was adjourned at 12:30 p.m.
Jim Ganje, Staff