COURT SERVICES ADMINISTRATION COMMITTEE
Holiday Inn, Bismarck
November 3, 2000
William A. Strutz, Chair
Rep. Lois Delmore
Cheryl Tryhus, State Bar Association of ND
Chair Strutz called the meeting to order at 10:30 a.m. and drew Committee members' attention to Attachment B (October 27, 2000) - Minutes of the August 25, 2000, meeting. It was noted that Alon Wieland's name was misspelled and that Judge Riskedahl was present at the August meeting, although the minutes do not so reflect.
It was moved by Jim Odegard, seconded by Alan Erickson, and carried unanimously that the minutes, as corrected, be approved.
Administrative Rule 41 - Reconsideration of Proposed Amendments
At the request of Chair Strutz, staff reviewed Attachment C (October 27, 2000) - a letter from Penny Miller regarding referral back to the Committee of proposed amendments to AR 41 concerning records searches. Staff explained that the Committee had previously submitted to the Supreme Court proposed amendments to AR 41 which would have described the manner in which records searches are conducted by clerks of court and how search results are provided. The letter, he said, outlines the Supreme Court's concern with the possible application of the amendments in light of current definitions regarding court records. He said the letter also notes concerns about whether an inquiry by a party to a proceeding concerning the filing of a document would be considered a "record search" for which a fee would be assessed. By way of addressing these issues, he suggested as possible solutions defining what constitutes a "record search", or precluding the assessment of a fee for providing record information to a party to a proceeding.
Judge Bohlman suggested that a record search could be defined as a search of criminal or civil records at the request of a person or entity other than a party to the proceeding.
Judge Jorgensen suggested that one method of addressing the issue may be to provide that confirmation of the filing of a document would not constitute a record search. He said that since the inquiring party is not seeking information concerning the content of the record nor requesting copies of the record, then the request would not seem to fall within the normal understanding of a record search.
Jim Odegard drew attention to Section 14 of AR 41, which governs application of the rule, and noted that it does not preclude access to records by parties to an action or their attorneys. He suggested possibly modifying the language in Section 14 to provide that access to records for the identified parties or entities would not be contingent on payment of a fee.
Justice Neumann noted that the amending language provides that verbal responses regarding search results would not be permitted. Consequently, he said it may be necessary, as Judge Bohlman suggested, to define what constitutes a record search, as the proposed limitation would not permit a clerk to verbally confirm the filing of a document if that is considered a "record search". Additionally, he noted that the requirement in the amending language that the search request "must" be submitted in writing seems inconsistent with existing language in Section 6 of the rule, which provides that a person may make an oral or written request to inspect records. Staff noted that Section 6 generally applies to requests for on-site access to and physical examination of judicial records, rather than requests that a clerk conduct a search of records and provide results to the requestor. Justice Neumann suggested that the amending language in new Section 13 could clarify that the a record search under that section is a search conducted by the clerk.
Jim Leahy agreed with Judge Jorgensen's earlier comment that a simple confirmation of the filing of a document should not be classified as a record search. He said in most instances a simple "yes" or "no" response from the clerk would likely be all that is required.
Paulette Reule noted that clerks often receive telephone inquiries concerning whether probate actions have been filed. In most cases, she said, the inquiries are from creditors of an estate who are attempting to ensure that their claims are filed appropriately.
Paul Kloster said public documents should be accessible to the public without payment of a fee. In the context of probate matters, he said it makes little sense to have no fee if a person determines through on-site inspection whether a probate has been filed, but impose a fee if the person requests the clerk to determine whether the matter has been filed. Justice Neumann agreed there should be no fee for access, but there could be a fee for services provided by the clerk in assembling record information.
Judge Bohlman agreed with Jim Odegard's earlier suggestion that Section 14 of AR 41 could be modified to clarify that access to records by those identified in the section would be without fee. That, he said, might address at least a portion of the problem as it relates to access to records by parties to an action.
It was moved Judge Bohlman and seconded by Jim Odegard that the second line of Section 14 be modified as follows: "This rule does not preclude access to records , without a fee, by the following persons in the following situations: ... ".
Justice Neumann noted that the only reference in AR 41 to a fee is that contained in the proposed amendments creating a new Section 13 pertaining to records searches. Additionally, he said Section 14 addresses "access" to records as opposed to searches of record information. Consequently, he said including a limitation in Section 14 concerning assessing a fee may not clearly address the search fee question. It may be, he said, that a provision governing record searches would be better situated apart from AR41, which generally governs access to judicial records and which records are considered open or closed for purposes of public inspection.
With the consent of the second, the motion was withdrawn.
Judge Bohlman suggested that if record searches are considered as a subject wholly different from access to records, then it is important to define what constitutes a record search. He suggested adding to Section 2, the definition section, the following: "Record search means a search of criminal or civil records at the request of a person or entity other than a party, or party's representative, to a proceeding."
Justice Neumann reiterated that confusion about how to address this issue may be due to the attempt to include in AR 41, a records "access" rule, a provision governing records searches conducted by clerks. He said that since searching records is a new topic and has a different focus, a better alternative may be to develop a new rule directed specifically at record searches. Judge Jorgensen agreed, but also suggested that confirmation of the existence of a record, apart from any inquiry concerning contents of the record, borders on access and should be addressed in AR 41.
After discussion, it was agreed that staff should develop alternative proposals for review at the Committee's next meeting.
Draft Collocation Policy
At the request of Chair Strutz, staff reviewed Attachment E (October 27, 2000) - a revised draft concerning possible collocation of state and county employees in a county that has selected the state-employed clerk option. Staff said the draft was modified slightly to reflect discussion at the August 25 meeting but otherwise is unchanged. He said the question for the Committee is whether circumstances suggest such a collocation policy would be desirable.
Wade Williams said he is unaware of any impending problems in those counties that have selected the state-employee option. Alan Erickson observed that collocation will not be an issue in the smaller funding agreement counties. Alon Wieland said possible space and location problems in Cass County have been resolved, although there may be some future concern if state clerk staff increase to fill up the currently allocated space. Paulette Reule, Stark County Clerk of District Court, said there does not appear to be any problem in Stark County as the clerk's office prepares for transition to state-employee status. Jeff Rotering said this matter is likely one better left to be resolved at the local level if issues arise.
It was moved by Jeff Rotering, seconded by Jim Leahy, and carried unanimously that consideration of the draft policy be tabled.
Action Plan to Assist Pro Se Litigants - Continued Discussion
At the request of Chair Strutz, staff reviewed Attachment F (October 27, 2000) - a letter and attachment from Penny Miller concerning the Action Plan to Assist Pro Se Litigants, which the Committee had preliminarily reviewed at its August 25 meeting. Staff said there are essentially three questions for the Committee with respect to the Action Plan. The first, he said, is whether the Committee should pursue efforts to implement the Action Plan in greater detail. If the decision is to move forward, he said, then the question is how to undertake that effort - within the full Committee itself, through a subcommittee, or through referrals to other entities. Related to these possibilities, he said, is the manner in which those with a significant interest in the project are involved. The last question, he said, concerns what might be done to effectively implement the Action Plan. This, he said, would entail a review of possible pro se assistance initiatives and a determination of resources available or possibly available both within and without the judicial system. He said preliminary discussion at the August 25 meeting indicated the Committee should undertake further review of the Action Plan.
Chair Strutz then welcomed Cheryl Tryhus, with the State Bar Association, for an update on the activities in this area by the Joint Committee on Civil Legal Services for the Poor.
Ms. Tryhus said that in June 1999, the State Bar Association's Board of Governors approved a request from the Joint Committee to support a statewide study of the delivery of civil legal services to the poor. She said several recommendations were made as a result of the study. The recommendations include expanding public education efforts to include the development and distribution of public service announcements that provide information on access to and eligibility for legal services; development of basic and concise pro se manuals targeting areas in which legal services agencies cannot provide assistance; development and publication on a centralized Web site of forms used by pro se litigants; and encouraging the development of pro se educational materials regarding tribal law matters and training programs for tribal advocates. Ms. Tryhus said the Joint Committee intends to meet after the first of the year to further consider these matters.
In response to a question from Jim Leahy, Ms. Tryhus said the Joint Committee will review the recommendations to establish priorities to be pursued and then present that information to the Board of Governors.
Chair Strutz next drew Committee members' attention to Attachment G (October 27, 2000) - a summary list of questions and tasks regarding implementation of the Action Plan - and requested discussion of the various issues.
Judge Bohlman cautioned against establishing a new committee to pursue the study. He said it is apparent there is already activity on this subject in other areas and increasing the number of groups involved might only add confusion and risk losing focus.
Jim Odegard said there may be some duplication of efforts if the Committee were to move ahead with implementing the Action Plan, while at the same time the Joint Committee on Civil Legal Services and the Board of Governors are reviewing similar issues. He said it may be worthwhile to focus on those elements in the Action Plan which are not under immediate consideration by the bar association.
Justice Maring underscored the need to address pro se related issues that relate primarily to and have an impact upon court operations. It is also important, she said, to ensure coordination of activities with the other entities that are involved in addressing pro se issues in other contexts.
Justice Neumann agreed with the need to consider methods of responding to pro se activity directly affecting the courts. But, he said, it is necessary at some point to be able to identify the extent to which pro se activity is a noticeable presence in the trail courts. In that light, he said it may be worthwhile to recommend a method of tracking or identifying the level of self-representation at the trial court level.
Judge Riskedahl observed that the number of self-represented litigants is increasing, but whether there are many or only a few has little meaning if the judicial system is not equipped to respond effectively to the unique demands placed upon it in these situations.
In response to a question from Doug Johnson regarding pro se activity in criminal cases, Jim Odegard observed that there appears to be an increasing number of criminal defendants that do not qualify for appointed counsel, but who nevertheless represent to the court that they are unable to hire private counsel. Those defendants, he said, are typically choosing to represent themselves.
Following further discussion, there was general agreement to pursue development of a method of assessing the level of self-represented activity at the trial court level, both in civil and criminal cases.
Judge Bohlman suggested that the study, if undertaken, should not focus too narrowly on a limited area of pro se activity. He said there are a significant number of people who are not strictly "indigent", but for whom access to the courts is problematic. He said efforts should be considered which assist in increasing access to the courts for those in that situation.
It was moved by Jim Leahy, seconded by Judge Riskedahl, and carried unanimously that the Committee undertake a study of methods to implement the Action Plan to Assist Pro Se Litigants.
Chair Strutz directed staff to assemble additional information concerning levels of pro se assistance established or considered in other jurisdictions.
There being no further business, the meeting was adjourned at 1:00 p.m.
Jim Ganje, Staff