Chair Strutz called the meeting to order at 10:00 a.m. and welcomed Bill Brudvik and Courtney Koebele, recently appointed new members, and welcomed Jim Hill as the State Bar Association's newly designated liaison to the Committee. Chair Strutz then drew Committee members' attention to Attachment B (July 10, 2003) - Minutes of the November 8, 2002, meeting.
It was moved by Craig Campbell, seconded by Chuck Peterson, and carried unanimously that the minutes be approved.
Access to Qualified Interpreters
At the request of Chair Strutz, staff presented additional background information on the issue of access to qualified interpreters. Staff noted the Committee's previous discussion at the November 8, 2002, meeting of a letter from Chief Justice VandeWalle referring this issue to the Committee. He noted that the letter from the Chief Justice included a letter from Justice Mary Maring, Chair of the Gender Fairness Implementation Committee, which drew attention to gender- and culture-related issues with respect to the availability of qualified interpreters.
Staff explained that state statutes require or provide for the appointment of interpreters in certain situations, but do not establish general qualifications for interpreters. For example, he said, NDCC 31-01-10 requires that a "qualified" interpreter be appointed for a witness that does not understand or speak the English language or who is deaf or unable to talk. However, he said, the statute is silent with respect to the meaning of "qualified." He said NDCC Chapter 28-33 requires the appointment of a "qualified interpreter" at all stages of a judicial or administrative proceeding in which a deaf person is a principal party. The statute, he said, does define a qualified interpreter as an interpreter certified by the national registry of interpreters for the deaf or the North Dakota association for the deaf, or an interpreter approved by the superintendent of the school for the deaf. However, he said, the statute also provides that if such an interpreter is not available, a "qualified interpreter" could be anyone whose "actual qualifications have otherwise been appropriately determined." Lastly, he noted, that Rule 28(b) of the Rules of Criminal Procedure provides that a court may appoint an interpreter "of its own selection." There are, he said, no interpreter qualifications identified in the rule.
With respect to approaches taken in other jurisdictions, staff said a recent survey conducted by the National Center for State Courts indicated that most court systems do not have standards governing competency or professional conduct of interpreters. However, he said, there are a few court systems - in California, Minnesota, New Jersey, and Oregon - that have established professional standards. Others, he said, have adopted rules in a peicemeal fashion that address particular interpreter-related issues such as confidentiality, qualifications, and oaths. He then distributed for review a copy of the manual for interpreters developed by the Minnesota court system which includes relevant rules, guidance on the appointment of interpreters, interpreter qualifications, and the best methods for determining if an interpreter is, in fact, qualified. The manual, he said, appears to be fairly comprehensive in addressing a host of interpreter-related matters. A copy of the manual is on file with staff.
Staff further explained that approximately twenty-eight states have joined a national consortium for state court interpreter certification, which was founded by Minnesota, Washington, New Jersey, and Oregon. He said a state desiring to become a consortium member must pay an entry fee ranging from $50,000 to $15,000 depending on the population of non-English speakers in the state. The purpose of the consortium, he said, is to provide a central repository of interpreter testing instruments and to provide test development and administration services to member states.
Staff noted that among those states that have established interpreter certification requirements, some have also adopted a "safety-valve" provision which permits a judge to appoint an interpreter that is considered qualified by the court if an interpreter that satisfies general certification requirements is not available. Additionally, he said there appear to be no certification provisions as such that address the narrower issue identified in Justice Maring's letter to the Chief Justice, i.e., gender and culture-related considerations that may impair accurate interpretation. He said such issues would likely fall under the umbrella of interpreter codes of conduct and would probably be addressed in training programs for interpreters. He noted that the Minnesota materials include a procedure by which a person is able to file a complaint if it is suspected that an interpreter has not provided accurate interpretations.
Chair Strutz then requested general Committee discussion on the issue.
Judge Jorgensen stressed the problems inherent in interpreting in a court environment and the sheer logistics of providing instantaneous interpretation of what is said in a court proceeding. He said the need for appropriate equipment in the courtroom to assist in providing interpreter services is critical. He suggested the possibility of North Dakota considering membership in the national consortium or otherwise pursuing some kind of cooperative endeavor with Minnesota.
Craig Campbell observed that the federal courtrooms in Fargo have the equipment necessary to provide instantaneous interpretation. Jim Hill suggested a possible collaboration with the federal courts so that federal court facilities could be used by state courts when there is a significant need for interpreter services. Craig Campbell said there has been such an arrangement in Fargo on several occasions.
Chuck Peterson said the important step is to consider a rule that would establish basic interpreter certification requirements.
Craig Campbell underscored that the central dilemma is ensuring protection of the fundamental rights of those in court proceedings who need interpreter services while also taking into account the ability of the judicial system to provide services. He said there is a need to strike some kind of balance that ensures availability of services but recognizes the fiscal realities of a small judicial system in a rural state. To that end, he suggested that a rule providing certification requirements should also allow some discretion for a judge, when a certified interpreter is not available, to use a "non-certified" interpreter if the judge is satisfied that the person can provide adequate and accurate interpretation. Committee members agreed.
Judge Jorgensen suggested the possibility of allowing a person to provide interpreter services if that person satisfies certification requirements, if any, in the state in which the person primarily provides such services.
It was moved by Craig Campbell, seconded by Jim Hill, and carried unanimously that a draft rule be prepared that establishes basic certification requirements for interpreter services but includes the alternatives described.
Confidentiality of Social Security Number Information - Update
At the request of Chair Strutz, staff reviewed Attachment C (July 10, 2003) - excerpts from the minutes of the April 24-25, 2003, meeting of the Joint Procedure Committee. He noted that this Committee, at its November 8, 2002, meeting, had reviewed draft rule amendments addressing the confidentiality of certain personal information, including social security numbers, maintained in court records. Since then, he said, the Joint Procedure Committee has taken up the issue and, as reflected in Attachment C, is moving forward with addressing the issue in amendments to other court rules. He said the question is whether this Committee should continue consideration of the matter.
Committee members agreed there was no need for the Committee to pursue the matter further.
Draft Amendments to Administrative Rule 41 - Access to Judicial Records
Chair Strutz next drew Committee members' attention to Attachment D (July 10, 2003) - draft amendments to Administrative Rule 41 governing access to judicial records which address the confidential status under federal regulation of drug and alcohol treatment records that may be maintained within court records.
Staff explained that the draft amendments merely reflect the federal confidentiality requirement and add the affected records to the list of confidential records contained in the rule.
It was moved by Jim Hill, seconded by Rep. Kretschmar, and carried unanimously that the draft amendments be approved.
Access to Administrative and Personnel Record Information and Information Concerning Dismissed Criminal Cases
Chair Strutz drew attention to Attachment E (July 10, 2003) - a November 20, 2002, letter from Ted Gladden, State Court Administrator, requesting that the Committee consider addressing access to administrative and personnel records while it is reviewing Administrative Rule 41 and an October 17, 2002, letter from Ted Gladden requesting that the Committee consider including in AR 41 procedures governing access to information pertaining to dismissed criminal cases.
Staff noted that the definition of "records" for purposes of AR 41 specifically excludes administrative records and AR 41 does not address access to personnel information at all. The reason for these two omissions, he said, is that AR 41, as presently structured, only addresses access to records maintained by the clerks of court. He said several court systems have adopted rules defining and governing access to both court administrative and personnel records. The task in considering including such records, he said, is determining exactly what falls within the particular record categories. He said some court systems, Minnesota, for example, simply provide that administrative records are generally accessible, with certain exceptions. He said state statutes also provide some guidance with respect to access to certain personnel records.
Jim Hill asked whether Ted Gladden's letter concerning access to personnel records is in response to several clerks of court and their staff becoming state employees. Staff responded that questions have surfaced concerning who has access to personnel-related records maintained at the district court level, and under what circumstances, but there were no rules or policies addressing the issue. He said the Council of Presiding Judges recently adopted a trial court administration policy regarding trial court personnel information maintained at the district level, but the policy does not address, for example, public access to that information other than requiring a written request.
Following further discussion, Committee members agreed staff should prepare draft amendments addressing access to administrative and personnel records for the Committee's initial review.
With respect to Ted Gladden's letter concerning a possible procedure for access to record information concerning dismissed criminal cases, staff said the letter is in response to a citizen complaint that information concerning a dismissed case was still publicly available through a public terminal at a clerk's office. Additionally, he said some clerks had inquired why records pertaining to criminal cases involving the deferred imposition of sentence are confidential under certain circumstances, but information concerning cases in which the charge has been dismissed is not. He noted that record confidentiality concerning deferred impositions of sentence is governed by state statute and further addressed through court rule.
Craig Campbell recounted a recent case in which a person had been terminated from employment because the person was found to have "lied" on the employment application. He said the person had been convicted of a crime, given a deferred imposition of sentence, and placed on probation. Having satisfied the conditions of probation, he said, the criminal conviction should have been expunged from the person's record, but it was not. In light of the fact that the conviction should have been expunged, he said, the person had reflected on the employment application that the person had not been convicted of a crime. He said a subsequent investigation of the application information disclosed that the conviction information was still maintained in the record. It was also discovered, he said, that the person had been charged with a crime, but the crime had subsequently dismissed without any adjudication.
Judge Jorgensen said the fact that there is no general expungement statute has been a source of concern for some time. He suggested that the problem likely will not be solved by a rule. He said the issue is more one of general public policy and as such is probably more appropriately considered by the Legislative Assembly.
After further discussion, Committee members agreed the issue would be better addressed legislatively and it was suggested the issue could possibly be reviewed by the interim Criminal Justice Committee chaired by Rep. Delmore.
There being no further business, the meeting was adjourned at 12:10 p.m.
Jim Ganje, Staff