William A. Strutz, Chair
Judge Bruce Bohlman
Jim Fitzsimmons, North Dakota Legal Services
Chair Strutz called the meeting to order at 10:00 a.m. and welcomed Craig Campbell as a recently appointed member of the Committee. He next directed Committee members' attention to Attachment B (June 29, 2001) - Minutes of the April 20, 2001, meeting.
It was moved by Justice Kapsner, seconded by Jeff Rotering, and carried unanimously that the minutes be approved.
Status of Court Records Management Subcommittee
At the request of Chair Strutz, staff summarized recent activities of the Council of Presiding Judges regarding the possible creation of a committee to assume study responsibilities now assigned to the Court Records Management Subcommittee. He recalled that this Committee, at its April 20, 2001, meeting, had voted to refer the question of establishing a successor to the subcommittee to the Council. He explained that the Council had requested development of a proposed policy establishing a trial court operations committee under the Council. He said the Council would likely take formal action on the proposal at its next meeting in September. Committee members agreed to delay a final decision on the subcommittee's status until the Council of Presiding Judges has acted on the proposal.
Pro Se Activity and Assistance Efforts
Chair Strutz welcomed Jim Fitzsimmons, North Dakota Legal Services, for comments on the incidence of self-represented litigation in rural areas and efforts to provide assistance to self-represented litigants.
Mr. Fitzsimmons introduced Patti Shelkey, a paralegal intern with North Dakota Legal Services, who had assembled a collection of forms used in some tribal courts. The forms were distributed for review by Committee members. Mr. Fitzsimmons noted that self-representation is extensive in tribal courts because of such factors as the location of tribal courts and the difficulty of retaining a lawyer to practice in tribal court. He said his experience in state and tribal court indicates that self-representation is generally on the rise. That increase, he said, may be attributed to a lack of financial resources or to a party simply not wanting the involvement of lawyers. He noted that other states have undertaken a variety of pro se assistance efforts, but that has not occurred as a general matter in North Dakota. He said pro se assistance is obviously needed in some areas of law, but he cautioned that those proceedings in which self-represented parties are offered assistance should be carefully identified to guard against the possibility of compromising significant legal rights. He said child support proceedings are perhaps a more obvious area in which assistance for self-represented litigants would be useful. He underscored the need for thorough and helpful information in those areas in which assistance is provided for self-represented litigants.
In response to questions from Justice Kapsner, Mr. Fitzsimmons said most of the judges in his area show patience with pro se litigants, but do not accommodate them to the extent that they achieve an advantage over other parties. He said he is aware that some lawyers have complained that other judges have assisted pro se litigants too much. Additionally, he said some judges provide a brief introduction and explanation to pro se litigants regarding court procedure and expectations about handling the case.
Judge Foughty noted that with increasing rule requirements in the area of domestic law, it would be counter-productive for someone to attempt to represent themselves in that kind of proceeding. Additionally, he cautioned against opening up divorce and family law proceedings to pro se litigants because too often there will be a dominant party who will exploit the imbalance to the disadvantage of the other party. Mr. Fitzsimmons observed that pro se involvement may be better suited for post-judgment kinds of actions, such as modification of child support.
In response to a question from Rep. Kretschmar, Justice Maring said pro se activity at the Supreme Court level has increased by approximately 20 percent, but activity at the trial court level is more difficult to assess.
Advice and Assistance Provided by Clerks of Court and Staff
At the request of Chair Strutz, staff summarized Attachment C (June 29, 2001) - two articles concerning the kinds of advice and assistance clerks of court and court staff can, or should, provide to the public. Staff said the first article generally discusses the limitation on clerks of court concerning providing what may be considered "legal advice." The article, he said, also provides some initial sample guidelines for providing information. The second article, he said, provides a lengthier discussion of the kinds of advice and information to be provided and summarizes polices or guidelines adopted in several state court systems which outline the scope of assistance and advice that can be provided.
Dorothy Howard said it is very time consuming for clerk staff to respond to public requests for assistance, and particularly so in such areas as small claims actions. She emphasized that any effort to provide increased assistance or advice to the public must be supported by the complete cooperation of judges, clerk staff, and other court staff. Additionally, she said it would be necessary for roles and responsibilities of various court staff to be very clearly defined. She said pro se forms and instructions would have to be very simple and concise.
Justice Maring observed that assistance efforts appear to require educating the public about the court process, as well as providing educational support for clerks and court staff.
Justice Kapsner, a Judicial Education Commission member, explained that the Commission recently conducted an education planning session in which suggestions were solicited from different groups in the judiciary concerning their particular education needs. Every group, she said, identified dealing with pro se litigants as an area in which education, based on established protocols, would be helpful. She said once protocols or guidelines for addressing pro se issues are in place, the Commission can then proceed to develop appropriate educational programs.
Craig Campbell noted that the threshold question is whether there is an issue to be resolved and, if so, how the matter can best be addressed. He observed that in the two articles reviewed the criticism most often expressed concerning what other jurisdictions have done was that the efforts had not gone far enough in providing assistance. He wondered whether there are those who have studied this issue and oppose these assistance efforts as unnecessary or posing more problems than they solve. Staff said there are those that caution against expanding too greatly programs to assist self-represented litigants for fear that doing so will create essentially a two-tier system - one with assistance and accommodations for self-represented litigants and another for those who retain counsel. However, he said he is unaware of any literature that opposes any effort to provide some level of assistance for self-represented litigants; generally the discussion has centered around what constitutes an acceptable level of assistance.
Judge Foughty said that regardless of a policy or guidelines, it is the clerks of court and staff who will bear the brunt of responding to the public and providing assistance.
With respect to the New Mexico and Utah guidelines contained in the articles, Justice Maring said clerks of court would benefit from having such guidance and she encouraged development of something similar in North Dakota.
It was moved by Judge Foughty, seconded by Jim Leahy, and carried unanimously that a draft policy implementing guidelines similar to those used in Utah be prepared for Committee review.
Pro Se Protocol for Judges
At the request of Chair Strutz, staff reviewed Attachment D (June 29, 2001) - a draft protocol for judges considered in Minnesota. Staff noted that the issue of developing protocols for judges was among the pro se assistance projects the Committee concluded at its April 20 meeting should be reviewed further.
In response to a question from Jeff Rotering, Judge Foughty said protocols should match specific proceedings, such as child support hearings. He suggested that the protocol should be included with forms and instructions provided for a proceeding.
In response to a question from Craig Campbell, Judge Foughty said that absent a specific directive, judges would not be required to use protocols; they would serve as a suggested approach. Craig Campbell wondered if problems might arise if some judges used protocols while others did not.
In response to a question from Dean Davis, Judge Foughty said a trial court benchbook is provided to judges, but it does not contain protocols similar to that included as Attachment D.
Dorothy Howard observed that, rather than enforcement of child support, enforcement of child visitation provisions is the area about which her office receives the most inquiries.
Jeff Rotering suggested the Committee review draft forms and instructions for a specific kind of proceeding, and then consider development of a protocol for judges with respect to that proceeding. He said such a limited approach may provide the Committee with a general assessment of how much further to proceed with the development of forms generally.
Judge Foughty noted that petitions for reconsideration or enforcement of visitation might be an easier area to address, rather than issues concerning child support, which would include calculations and application of guidelines.
It was moved by Jeff Rotering, seconded by Dean Davis, and carried unanimously that draft pro se assistance forms concerning enforcement of child visitation be prepared for Committee review.
Information Sources Regarding Court Access, Services, and Proceedings
At the request of Chair Strutz, staff reviewed various sources for information concerning court services and proceedings. He said the judiciary distributes basic brochures generally describing the court system and the clerks of court offices. He said a pamphlet concerning informal probate is also available. He noted that the state bar association and the Attorney General's office also provide numerous pamphlets on various kinds of legal issues, such as small claims, landlord/tenant, and consumer protection. He said the bar association also distributes information concerning its lawyer referral and volunteer lawyer programs.
Dean Davis noted that agriculture extension service offices often have pamphlets providing information on a variety of legal issues.
Craig Campbell observed that providing information about the legal system and court procedures is important, as are efforts to make access to the system simpler. However, he cautioned that providing too much assistance may result in some people proceeding without legal representation when they should have such representation to ensure their legal rights are protected. Judge Foughty agreed that if access to the system is made too simple, it may result in more problems for litigants or unjust results in some cases.
Forms and Legislative Activity
At the request of Chair Strutz, staff briefly reviewed Attachment E (June 29, 2001)- pro se assistance forms and instructions from various states. Staff also summarized early activities of interim legislative committees that are studying issues related to the courts.
Chair Strutz said the draft forms and guidelines for advice provided by clerks of court would be reviewed at the Committee's next meeting.
There being no further business, the meeting was adjourned at 12 noon.
Jim Ganje, Staff