|Members Present |
Justice Mary Muehlen Maring, Acting Chair
Judge Bruce Bohlman
Judge Donovan Foughty
Judge Donald Jorgensen
Rep. William Kretschmar
Justice William A. Neumann
Terry Traynor (for Mark Johnson)
Sen. Tom Trenbeath
|Members Absent |
William A. Strutz, Chair
W. Jeremy Davis
Rep. Lois Delmore
Justice Carol Ronning Kapsner
Due to an unanticipated scheduling conflict, Chair Strutz was unable to attend the meeting. Justice Maring, serving as Acting Chair, called the meeting to order at 10:00 a.m. and drew Committee members' attention to Attachment B (May 17, 2002) - Minutes of the November 16, 2001, meeting.
It was moved by Jim Odegard, seconded by Jeff Rotering, and carried unanimously that the minutes be approved.
Revised Draft Policy Assistance Provided by Clerks of Court and Staff
At the request of Chair Maring, staff reviewed Attachment C (May 17, 2002) - a revised draft policy concerning the scope of assistance provided to the public by clerks of court and staff, and comments received concerning the policy. Staff said comments were received from clerks of court, a court administrator, a director of juvenile court, and two judges. The comments, he said, generally highlighted the issues discussed at the Committee's last meeting, that is, concerns about crossing the line between offering assistance and providing legal advice, the fear that offering assistance will lead to inordinate demands on court staff, and the importance of providing adequate educational support and written material to assist staff in providing assistance.
Chair Maring asked if there were any suggested changes to the draft policy based on the comments received by the Committee.
Sen. Trenbeath wondered whether it would be worthwhile to consider the policy as essentially imposing no obligation upon clerks and staff to provide assistance, but identifying the manner in which assistance should be provided if clerks and staff decide to provide it.
Justice Neumann observed that the judicial branch likely is better served if clerks and court staff do provide assistance to the public, rather than making it optional for them to do so.
Craig Campbell drew attention to Section B1 of the draft, which provides that staff have an obligation to explain court "processes and procedures". He suggested the language be changed to refer to explaining court "administrative and procedural processes." In light of the concern about possibly providing assistance that borders on advice on substantive law, he said the language change may more precisely define the expected form of assistance.
Dorothy Howard reiterated her concern about providing assistance being described as an "obligation" on the part of clerks and staff. She noted that Section B1 provides that staff have an obligation to explain processes and procedures, while parts of Section C provide that staff "may" explain how the court works, and "may" provide information about rules, procedures, and practices.
Justice Neumann suggested Section B1 could be modified to provide that court staff "should be prepared" to explain processes and procedures. That, he said, would suggest there is an obligation to be prepared to offer assistance that falls both on staff and the judicial system.
It was moved by Justice Neumann and seconded by Jim Odegard that Section B1 be modified in the manner described, with the additional changes suggested by Craig Campbell.
Sen. Trenbeath wondered whether the phrase "must be prepared" would be more appropriate in making clear the responsibility of staff and the judicial system. Dorothy Howard observed that all court staff may not be prepared or have the knowledge to offer assistance to the public. Sen. Trenbeath wondered about the response if court staff chose not to be prepared to offer assistance. Justice Neumann observed that the judicial system would have the option of making clear elsewhere that compliance is expected. For example, he said, compliance could be a condition for renewal of contracts with the counties for clerk of court services. With respect to state-employed clerks, he said there is a more direct supervisory relationship.
It was moved by Judge Bohlman, seconded by Sen. Trenbeath, and carried that the motion be amended to provide that court staff "must" be prepared explain court administrative and procedural processes. (Dorothy Howard - no).
After further discussion, the motion as amended carried. (Dorothy Howard - no).
Justice Maring drew attention to Section D of the draft policy which would require that appropriate education programs and written support materials be developed to ensure adequate implementation of the policy. She wondered whether the section should be modified to explicitly identify the Judicial Education Commission as responsible for developing the programs and material. She said the comments on the draft emphasize the need for adequate education and written material, particularly with respect to clerks of court and staff.
Judge Jorgensen, Chair of the Judicial Education Commission, said substantive input from clerks of court about their routine requirements would be needed in developing an appropriate educational program. He said small claims, domestic relations, and probate are the areas in which clerks seem most likely to be involved in assisting the public or pro se litigants. He suggested the request for specific areas to be addressed through education programs should originate in part with the clerks themselves. He said to be effective written support materials should be distributed state-wide and regularly revised. He said he would not consider the development of such materials and their maintenance as part of the Commission's education process. He suggested the material should be developed first and then the materials can be used by the Commission in fashioning an appropriate education program. He said the Commission is not presently equipped to both develop support material for implementation of the policy and sponsor related education programs.
Doug Johnson suggested the Committee on Trial Court Operations, recently established under the Council fo Presiding Judges, may be an appropriate group to develop the written material.
Justice Neumann observed that responsibility for developing written support material could be delegated to an appropriate committee, or perhaps the decision should be left with the Chief Justice.
Staff suggested Section D of the draft policy could perhaps be amended to provide that the Chief Justice shall designate the entity responsible for developing the supporting written materials and that the Judicial Education Commission would be responsible for providing educational programs based on the materials.
It was moved by Justice Neumann, seconded by Jeff Rotering, and carried unanimously that Section D of the draft policy be amended in the manner described.
It was moved by Jim Odegard, seconded by Judge Bohlman, and carried unanimously that the draft policy, as amended, be approved for submission to the Supreme Court.
Pro Se Forms Subcommittee Report
A the request of Chair Maring, staff reviewed Attachment D (May 17, 2002) - the report of the Pro Se Forms Subcommittee and recommended forms regarding enforcement and modification of child visitation. He noted that the Subcommittee recommends that a nominal fee be assessed for the form sets if the forms are adopted and made available. He said the Subcommittee also developed preliminary draft forms in the area of simple divorce and child support review. With respect to the latter, he said, the Subcommittee concluded child support forms development could not realistically proceed without consulting individuals regularly involved in child support enforcement. In light of the Subcommittee's preliminary and unfinished work regarding forms for simple divorce and child support, the Subcommittee recommends that it be permitted to continue work on these draft forms.
With respect to the recommended child visitation forms, Dorothy Howard said one judge in her district (East Central) said the forms would not be used because they do not conform to local rules, which require all direct evidence to be prefiled by affidavit. Additionally, she said the judges in the district do not draft orders and there does not appear to be an order form in the recommended forms.
Justice Neumann drew attention to the last line in Step 8 of the instructions which informs the litigant that if a witness is to provide information to the court, that person must appear in court. With respect to the East Central judge's concern, he wondered whether the instructions make clear that witness testimony may have to be prepared in affidavit form and filed in advance of the hearing. He said several courts follow that practice. Judge Bohlman observed that the Northeast Central judicial district does not require witness testimony to be submitted by affidavit.
Justice Neumann suggested advisories be included in the Instructions notifying the litigant that it may be necessary to have witness testimony presented by affidavit and filed before the hearing.
Judge Foughty said witness affidavits often prove useful in narrowing the issues to be considered by the court.
With respect to judges not drafting orders, Justice Maring asked how courts respond to matters filed by self-represented litigants and an order is required. Dorothy Howard said there are not a significant number of self-represented litigants in civil matters in the East Central judicial district. And, she said, the ones that are active usually review court files and do a fairly good job of preparing court papers.
Justice Maring said drafting a sample order form may be difficult. Judge Foughty said there is the additional issue of how the modifications will be reflected in the underlying judgment. Justice Maring wondered whether it would be workable to simply reflect in the order that the judgment is "hereby modified." She said that is not necessarily the preferable way to accomplish the task because there would not then be an amended judgment in the file.
Judge Bohlman noted that most disputes regarding visitation concern enforcement, rather than modification, of the underlying judgment. He said the majority of those matters can be addressed by an order.
Judge Foughty suggested the possibility of developing a form order that could be used so redrafting of the judgment would not be required. Justice Neumann said if the order form simply provided that the judgment is hereby amended, then it should be clear that the order itself would serve as the judgment and no further judgment would be required.
Jeff Rotering asked whether those judges who do not draft orders would be willing to simply "fill in the blanks" - that is, a form could be provided which contains most or all of the elements and the appropriate parts could be checked or lines filled in.
Justice Neumann said the Subcommittee should be commended for its work. He suggested the Subcommittee should continue its work as recommended in its report and should review the child visitation forms to address the issues concerning witness testimony by affidavit and a possible form order. Committee members agreed.
Judge Bohlman said one issue that must be clearly addressed if the forms are ultimately adopted is how the forms are distributed and made available to those who need them. With respect to possible forms for child support issues, he said it may be necessary to determine from judges how involved they might be willing to become in responding to child support filings by self-represented litigants.
Justice Maring said the Subcommittee will be informed that its work may continue and the child visitation forms will be reviewed to address the issues raised by the Committee.
Access to Records
At the request of Chair Maring, staff reviewed Attachment E (May 17, 2002) - a model policy regarding privacy and public access to court records. He said the model policy had been distributed for comment but the time for comment has passed. He said the letter from Ted Gladden accompanying the model policy suggests it may be worthwhile to consider the model in relation to Administrative Rule 41, which governs access to records in North Dakota's courts [Attachment F (May 17, 2002)].
With respect to the model policy in comparison to AR 41, he said the first difference is that the model policy, in Section 2.00, provides that every member of the general public has the same access to court records. However, he said, the policy then draws distinctions regarding what constitutes the "public". He said the distinction, which is not present in AR 41, provides that certain members of the "public" have greater levels of access than others. With respect to definitions, he said AR 41 narrowly defines a record as essentially information filed or docketed in the office of clerk of district court. In contrast, he said, the model policy broadly defines a "court record" to include record information addressed in AR 41, but also to include, for example, information concerning the administration of the courts, which AR 41 explicitly does not address. The model policy, he said, also addresses issues concerning remote and electronic access to records, neither of which is included in AR 41. He said the model policy defines remote access as access to court records from a remote location, that is, from a location other than within the courthouse. He noted that several clerks' offices in the state have public terminals that allow public access to electronically stored record information. With respect to records excluded from public access, he said AR 41 lists several such categories of records and includes an appendix of record confidentiality provisions found in state statutes, and court rules and policies. The model policy, he said, exempts from disclosure several kinds of information that may appear in court records and which are not addressed in AR 41, such as credit card numbers, financial account numbers, social security numbers, notes and drafts of workproduct, and personnel information. He noted that the model policy also provides a procedure for bulk distribution of court records in an electronic form, which is directed at providing court record information to a third party in bulk form. Section 4.50 of the model policy, he said, governs access to collected information compiled from individual records. As a general rule, he said, the judicial system does not prepare specially requested compilations or reports of record information. He said Section 4.60 of the model policy addresses requests to exclude information in court records from public access and is similar in some respects to those parts of AR 41 that permit a party to request that the court seal a record or part of a record. He said the model provision is more detailed than AR 41 with respect to factors to be considered when excluding information from disclosure. In summary, he said the model policy is more detailed and addresses more categories of records and methods of access than does AR 41. He said the model policy does pose several issues that could be considered with respect to the adequacy of AR 41. One he said, concerns the definition of a court record and whether, compared to the model policy, AR 41 is sufficient in its definition.
Staff noted that there are several judicial system policies that, in addition to AR 41, govern access to particular kinds of court record information. For example, he said, there are separate policies that govern access to electronically stored record information and access to and expungement of juvenile court information. The model policy, he said, seems to encompass and gather in one place all provisions concerning confidentiality and access to court information. One issue for the Committee, he said, is whether AR 41 should be reviewed in light of the model policy to determine whether the rule should be modified in any way.
In response to a question from Justice Neumann, staff said there have been no particular problems that have arisen concerning the application of AR 41.
Judge Bohlman said our records rule and access provisions should be reviewed because there is a wide range of information in court records that likely should be confidential, such as tax returns, drug and alcohol evaluations, and guardian ad litem reports.
Justice Neumann noted that federal law governs confidentiality of certain drug and treatment records. The more troubling question, he said, is how to deal with discrete segments of confidential record information that are located in an otherwise open file. Judge Bohlman agreed and said the greatest burden falls on clerks of court in trying to determine how to provide access to record information without disclosing confidential information that may be contained in the record.
Staff observed that one of the more frequent issues has been access to social security number information. He said several state statutes require that social security numbers be included in certain court filings, but there is no provision governing access to or disclosure of that information.
Justice Neumann noted paragraphs c and d in Section 4.30 of the model policy, which identify financial information and proprietary business information as kinds of record information that is excluded from public access. He said while these kinds of records are not specifically addressed in AR 41, there is a procedure under the rule by which such record information could be made confidential if requested by counsel or the parties. The model policy, he said, seems to place more responsibility on clerks to identify and monitor confidential information, whereas under AR 41 the responsibility falls to the parties or attorneys to request that the information be made confidential.
Craig Campbell said there are two kinds of record information that may be involved in access issues. One, he said, is information that is learned during the course of litigation, which can be sealed by the court. He agreed that a rule that attempts to address a wide variety of record information likely will place an unreasonable burden on clerks and their staff. The burden, he said, is more appropriately placed on the litigants. The second kind of information, he said, would be concluding documents, such as orders or judgments, that incorporate into the document sensitive information necessary to make the document enforceable. He said it may be advisable to establish a procedure that governs what information in the document is accessible.
Dorothy Howard said sensitive information is fairly often included in court files and it would be unrealistic to expect clerks and staff to determine what in the files is accessible to the public. She agreed the burden should be on the parties to request that information in court files not be disclosed.
Jim Odegard said it may be worthwhile to consider amendments to AR 41, particularly in light of the recent escalation in instances of identity theft. For example, he said it may be time to consider restricting access to such information as social security numbers and dates of birth unless access is permitted by an order of the court.
It was moved by Justice Neumann, seconded by Jim Odegard, and carried unanimously that the Committee consider draft amendments to Administrative Rule 41 addressing the issues discussed.
There being no further business, the meeting was adjourned at 12:00 p.m.
Jim Ganje, Staff