Justice Carol Ronning Kapsner, Chair Aaron Birst Bill Brudvik Judge Sonja Clapp Judge Donovan Foughty Referee John Grinsteiner Jim Hill (SBAND Liaison)(by telephone until 11:00 a.m.) Joyce Harnden Judge Donald Jorgensen Courtney Koebele Sen. Karen Krebsbach Chuck Peterson Deb Simenson
Barb Hill DeWayne Johnston Rep. William Kretschmar
Brad Swenson, Director, ND Guardian ad
Chair Kapsner called the meeting to order at 10:00 a.m. and drew Committee members'
attention to Attachment B (March 20, 2008) - Minutes of the October 19, 2007, meeting.
It was moved by Courtney Koebele, seconded by Jim Hill, and carried that the minutes
North Dakota Guardian Ad Litem Project Evaluation - Supreme Court Referral
Chair drew Committee members' attention to the Supreme Court's referral to the Committee
of the Evaluation of the ND Guardian ad Litem (GAL) Project, which was distributed February 27
for preliminary review. At the request of Chair Kapsner, staff briefly reviewed the major
recommendations contained in the Evaluation. He said the recommendations are succinctly described
in the memorandum prepared by Sally Holewa, State Court Administrator, which was submitted to
the Supreme Court and included in the Court's referral to the Committee. He said the core
recommendations appear to be development of a mission statement for the project, development of
a rule governing guardians ad litem, and development of a complaint process. The remaining
recommendations, he said, appear to be largely derivative of these central recommendations. He
noted that the Administrative Council's Court Improvement Project Committee, through a
subcommittee, has proceeded with development of a project mission statement and a rule governing
qualifications and responsibilities of guardians ad litem, which also includes a complaint procedure.
Chair Kapsner then welcomed Brad Swenson, GAL Project Director, for his comments about
the evaluation and the general operation of the project.
As a preliminary matter, Brad Swenson said a project mission statement has been drafted but
not yet formalized. He distributed copies of a draft rule governing guardians ad litem, which is
patterned after the custody investigator rule (Rule 8.6, Rules of Court). A copy of the draft rule is
attached as an Appendix.
In response to a question from Justice Kapsner concerning educational qualifications for
current GALs, Brad Swenson said the general policy has been to emphasize a four-year degree with
some human services experience as a preferred qualification. He noted that background checks are
conducted on those seeking to serve as a GAL. He said the draft rule would somewhat expand
qualification alternatives beyond what is currently in place by, most importantly, including an
associate's degree in child care related fields. The alternative qualification was added, he said,
because of difficulties in recruiting persons with four-year degrees and because the four-year degree
requirement often precluded consideration of applicants with valuable life experiences. He said there
are currently forty-five lay GALs, but the project is seeking to recruit about five more. With respect
to current training requirements, he said the initial expectation was that a GAL would complete two
education programs per year, but that has been modified to require training on an as needed basis
depending on the area of the state in which the GAL provides services and the level of interest.
In response to a question concerning how a GAL becomes involved in a case, Brad Swenson
explained that if a child is removed from the home, the juvenile court, in Bismarck, for example, will
notify his office of the need for a GAL. He said he will then review the roster of available GALs and
the particulars of the case and then decide which GAL would be appropriate. The juvenile court, he
said, is then notified of the assignment. He noted that GALs provide services primarily in deprivation
cases but there have been a small number cases that began as deprivations but evolved into cases
concerning delinquency. He said the GAL will typically continue involvement in such a case, but
if the case begins as a delinquency case, a GAL will not be involved. He said there have been a small
number of appointments in unusual cases such as criminal or child support.
Referee Grinsteiner explained that with respect to shelter care hearings the court is usually
seeking a recommendation concerning whether the child should remain in shelter care, be returned
to the home, placed with a relative, or whether some other disposition should be considered. He said
the state's attorney will then decide whether a formal petition should be filed, and if the petition is
filed adjudication by the court follows. He said the GAL will sometimes continue in the case through
the adjudication stage, but usually GAL involvement is through the term of the court's order. With
respect to the draft rule, he said the GAL would be treated as a party to the proceeding (Section IV
of draft rule) to enable the GAL to come back into court to, for example, seek another hearing if
necessary and to generally enhance the status of the GAL. He noted that there are differences around
the state with respect to how GALs are treated by judges. For example, he said, some judges allow
the GAL to ask questions during a proceeding, while other judges do not.
In response to a question from Justice Kapsner, Referee Grinsteiner said about ½ of the
GALs appointed in cases continue in the case beyond the adjudication stage.
In response to a question from Justice Kapsner concerning interactions between GALs and
other professionals that may be involved in the case, such as social service caseworkers, Referee
Grinsteiner said a GAL is supposed to be neutral and independent and as a result GAL
recommendations will sometimes differ from those made by a caseworker. Brad Swenson said the
Project Evaluation suggests child welfare workers perceive the role of the GAL differently in
different parts of the state, which may be attributable to local culture. He said that difference,
coupled with individual personalities, can sometimes lead to tension between a GAL and a
In response to a question from Judge Jorgensen concerning funding sources for the project,
Brad Swenson said he develops a project budget, including administrative costs and his and an
assistant's salary, that is then submitted as part of a grant request. He said a GAL submits timesheets
for work performed and the district court then pays the GAL. He said GALs are compensated on a
per hour basis, with the current rate being $5/hour when the GAL initially begins with the project.
He said compensation increases based on length of service. He said a GAL generally provides
services in a defined area of the state, but if a GAL is interested in traveling outside a particular area
a request can be submitted to him.
Judge Foughty said that in the northeastern part of the state GALs do an extraordinary job
and compensation is abysmally low.
In response to a question from staff concerning how compensation levels are determined,
Brad Swenson said he was unaware of how compensation by the district court is set. He noted that
GAL compensation in the state is generally in line with compensation in Minnesota. He explained
that Minnesota does not reimburse for mileage and meals except in exceptional cases, while GALs
in North Dakota are routinely reimbursed for mileage and meals. He said there has been some
general informal discussions about possible increases in compensation or, as an alternative,
adjustments to hours of service.
In response to a question from Justice Kapsner concerning the volunteer status of GALs, Brad
Swenson explained that many states follow the CASA (court appointed special advocate) model,
with the advocates also being volunteers but with responsibilities that extend to mentoring. He said
GALs in the project are expected to maintain strict professional boundaries with respect to
independence and neutrality.
In response to a question from Justice Kapsner concerning GAL recruitment in rural areas,
Brad Swenson said the Bottineau area has proved particularly difficult but the Project has had good
success in recruiting GALs in the Dickinson area.
In response to a question from Sen. Krebsbach, Brad Swenson said GALs are involved only
in cases involving children.
Justice Kapsner noted the Project Evaluation recommendations concerning the status of the
project director and asked Brad Swenson for his comments. He said that when he was hired as
director he was supplied with a job description, which detailed administration of the office,
collection of data, monitoring of the budget, and monitoring day-to-day operations including GAL
activities. He said the description is generally acceptable but there should be a mechanism for regular
evaluation of the director and some of the day-to-day responsibilities should be transferred from the
In response to a question from staff concerning the basic structure of the project, i.e.,
contracted status versus in-house, Brad Swenson said there has been limited discussion about
whether the project should be operated internally by the judicial system as opposed to project
services being provided on a contract basis. He said he preferred the current contract arrangement,
which provides a degree of autonomy. But, he said, there is a degree of frustration because the lines
of supervision are unclear.
Referee Grinsteiner said the Project Evaluation indicates the current project has been a very
good delivery mechanism for GAL services.
Chuck Peterson noted that other entities are apparently working on implementing
recommendations in the Project Evaluation and asked how the Committee should respond to the
Chair Kapsner said the Supreme Court had referred the Evaluation to the Committee for
review and charged the Committee with making recommendations. As a consequence, she said, it
is expected that whatever is developed elsewhere would be submitted to the Committee for
consideration. Committee members agreed to await completion of the draft proposals and review
them when they are forwarded by the Court Improvement Project Committee. It was also agreed
issues concerning project structure, i.e., internal versus contract status, could be reviewed when the
proposals are submitted. Public Administrators - Appointment, Compensation, Qualifications
Chair Kapsner next drew Committee members' attention to Attachment C (March 20, 2008)-
a Supreme Court referral, in response to a recommendation from the Administrative Council, of
issues concerning public administrators. Attachment C includes an excerpt from the minutes of the
December 14, 2007, Administrative Council meeting, at which difficulties concerning public
administrator services in Ward County were discussed, and a staff background memorandum
concerning applicable statutes and a previous review of public administrator issues conducted during
1995-1996 by the Committee. Staff briefly reviewed the background information.
Sen. Krebsbach noted that she had discussed the situation in Ward County with Judge
McClees, Presiding Judge of the Northwest judicial district. She said the issues have since been
resolved with an increase in compensation provided to the public administrator by Ward County.
She said the aging population in the state is increasing and it is imperative that the judiciary and
human services agencies find some way to resolve difficulties in providing public administrator
services. She said the issue will almost certainly require action by the Legislative Assembly.
Judge Foughty noted his recent experience with the advent of a troubling problem: children
stealing from the estate of parents who are entrusted to their care.
In response to a question from Justice Kapsner, Aaron Birst said he is aware of the problem
that developed in Ward County but the general issue has not been discussed at any length within the
Association of Counties. He noted that the question of cost is always a significant issue for counties.
Judge Jorgensen said there is not only the imperative of ensuring that the estates of wards are
preserved, but there is also an issue concerning the proper qualification for public services. He said
county social service agencies have a significant stake in ensuring proper services are provided for
wards, but many of the agencies do not have trained employees available when a court orders, or
asks, them to provide guardianship services. He noted that Guardian and Protective Services in
Bismarck has effectively provided public administrator services in Burleigh County and other
Judge Clapp agreed the significant issue for counties is who pays the public administrator.
She noted that some wards will have resources in their estates to pay for public administrator
Judge Foughty suggested the Committee invite a representative from the Department of
Human Services to come to the next meeting to discuss guardianship issues.
Aaron Birst said he will contact county social service directors for information. He agreed
counties are sensitive to the cost issue, particularly because it is easier for the court to simply direct
a county to pay for services.
Sen. Krebsbach said she will check to see if any legislative studies of similar issues have
been conducted in the past.
Chair Kapsner said the topic will be on the next meeting's agenda for further discussion.
Pro Se Litigation in North Dakota - Implementation Issues
Chair Kapsner then drew Committee members' attention to Attachments D-F (March 20,
2008) - drafts requested at the last meeting in response to the Committee's review of the Report on
Pro Se Litigation in North Dakota. The drafts include: a draft information guide for respondents in
protection order cases, with an alternative draft submitted by Aaron Birst (Attachment D), a draft
guide for pro se participation in civil proceedings (Attachment E), and a revised draft guide
concerning access to court records (Attachment F).
Chair Kapsner requested that the Committee dissolve into two working groups to review the
respondent information draft and the draft guide to civil proceedings. Respondent information draft
review: Judge Clapp, Justice Kapsner, Joyce Harnden, Courtney Koebele, Chuck Peterson, Aaron
Birst, and Deb Simenson. Draft guide to civil proceedings: Judge Jorgensen, Judge Foughty, Referee
Grinsteiner, Bill Brudvik, and Sen. Krebsbach.
Following review of the drafts, the Committee reassembled for working group reports.
Respondent information draft. The working group reviewing the respondent information draft
concluded the information sheet should be modified as follows: limit to no more than two pages,
more clearly emphasize consequences for failure to comply with the order, remove descriptions of
what the order does as the description may be incomplete and the order itself is sufficient, and
expand on the importance of contacting an attorney. Aaron Birst will prepare a revised draft for the
next meeting. > Pro se guide to civil proceedings. Judge Jorgensen said the general conclusion of the
working group was that providing the guide would have the potential for creating significant
problems and risks for self-represented litigants. He suggested SBAND should be more active in
publicizing that law firms often provide initial consultations at low or no cost. He said providing
a guide to civil proceedings risks encouraging people to compete in a process they do not
Justice Kapsner said the concern is a valid one but asked whether the guide would be a
helpful resource for those litigants who are determined to proceed without an attorney. Judge
Foughty said the guide would not be helpful because it is incomplete in not addressing various rule
requirements and critical elements of pleading practice. He said there is clearly a need to provide
better information with respect to family law cases, for example, which is an area in which fewer
lawyers are practicing, but providing very general guidance concerning civil cases is unwise.
Judge Jorgensen emphasized that he is not opposed to providing general information about
the courts and the general process. But, he said, that objective can likely be accomplished without
the information essentially becoming a manual for how to handle particular cases. He said
information provided to the public should not have the appearance of a sanction from the courts or
the bar about how to prosecute a case.
Bill Brudvik suggested development of something like a one page summary about how the
judicial process works, with appropriate advisories about complications that may arise. He said the
information could include references to law firms providing low cost/free initial consultations.
In response to a question from Judge Clapp about why it is considered necessary to develop
the information, Judge Foughty said self-represented litigation is increasing nationally and judicial
systems have responded by providing information to assist self-represented litigants. But, he
reiterated that a general guide concerning litigation practices is an unwise course to follow. He said
such a guide risks promoting the notion that it is a simple matter for a person to sue someone and
get something out of it for little cost or risk.
Justice Kapsner wondered whether there would be value in providing a guide of some sort
for those who use the simple divorce forms posted on the Supreme Court's website. Judge Jorgensen
said it may be useful to provide some kind of basic guidance for those who use forms already
Chair Kapsner asked for a general Committee consideration of three issues: 1) whether to
proceed with the draft guide to civil proceedings, 2) whether to consider a more limited guide
restricted to domestic cases, 3) and whether to consider development of a "decorum" guide based
on part of the information in the draft guide to civil proceedings.
With respect to the draft guide to civil proceedings generally, Bill Brudvik suggested the
Committee should not further pursue consideration of the draft. Committee members generally
With respect to a guide of some kind limited to domestic cases. Judge Foughty said it may
be useful to develop a basic handout to be given to self-represented litigants in divorce cases. Judge
Jorgensen agreed and suggested information could be provided concerning post-judgment matters.
Following further discussion, it was moved by Sen. Krebsbach, seconded by Courtney
Koebele, and carried to table consideration of the issues until the July meeting.
With respect to development of a decorum guide, it was moved by Judge Jorgensen,
seconded by Judge Clapp, and carried to table consideration of the issue until the July
Committee members then turned to a review of the revised access to court records guide -
Attachment F (March 20, 2008). Staff said the first draft, which was reviewed at the last meeting,
was revised based on Committee discussion to simplify language and make some provisions clearer.
It was moved by Judge Jorgensen, seconded by Bill Brudvik, and carried that the
revised guide be approved and submitted to the Supreme Court for consideration.
Magistrates - Qualifications, Utilization, and Training Chair Kapsner drew Committee members' attention to Attachment G (March 20, 2008) - a
Supreme Court referral of a report on the utilization and training of magistrates appointed under
Administrative Rule 20. Staff said the report was prepared by Lee Ann Barnhardt, Director of
Education and Communication, in connection with an effort to determine how best to structure
education programs for magistrates. He said the report was an effort to answer questions about duties
delegated to magistrates and how often magistrates are used. He said a related issue concerning
delegable duties and specific education needs is that some magistrates are law-trained, but most are
Justice Kapsner said there is a need for magistrates in certain circumstances. The basic
question, she said, is whether, with the availability of FAXes and email, there should be non-law-trained magistrates. Judge Jorgensen said magistrates should be law-trained given the scope of
Aaron Birst emphasized that if additional qualifications are required, there should be an effort
to ensure there is back-up so that law enforcement is not left without access to a judicial officer.
Chair Kapsner said the subject will be on the July agenda for further discussion.
There being no further business, the meeting was adjourned at 1:35 p.m.