COURT SERVICES ADMINISTRATION COMMITTEE
|Members Present |
William A. Strutz, Chair
Judge Bruce Bohlman
Rep. Lois Delmore
Linda Weaver (for Dorothy Howard)
Judge Donald Jorgensen
Justice Carol Ronning Kapsner
Rep. John Mahoney
Justice Mary Muehlen Maring
Justice William A. Neumann
Judge Burt Riskedahl
Sen. Tom Trenbeath
|Members Absent |
Dean Jeremy Davis
Judge Donovan Foughty
Rep. Bill Kretschmar
Chair Strutz called the meeting to order at 10:00 a.m. and drew Committee members' attention to Attachment B (November 9, 2001) - Minutes of the July 6, 2001, meeting.
It was moved by Jeff Rotering, seconded by Rep. Delmore, and carried unanimously that the minutes be approved.
Status of Court Records Management Subcommittee
At the request of Chair Strutz, staff reviewed the Committee's previous discussion about the future of the Court Records Management Subcommittee in light of possible establishment by the Council of Presiding Judges of a committee that would essentially assume many of the study responsibilities currently assigned to the subcommittee. He said the Council has now adopted a policy establishing a Committee on Trial Court Operations and membership will soon be selected. The committee's responsibilities, he said, would include those assigned to the Court Records Management Subcommittee.
It was moved by Judge Bohlman, seconded by Jim Odegard, and carried unanimously that, in light of the action taken by the Council of Presiding Judges, the Subcommittee be discontinued.
Draft Policy - Assistance Provided by Clerks of Court and Staff
At the request of Chair Strutz, staff reviewed the Committee's discussion at the last meeting concerning the scope of assistance and advice provided by clerks of court and staff to the public, particularly to self-represented litigants. He then reviewed Attachment C (November 9, 2001) - a draft policy regarding the scope of advice and assistance provided by court staff. The draft, he said, is generally based on guidelines, particularly those in Utah, and articles reviewed at the last meeting. He noted Attachment D (November 9, 2001) - Iowa Guidelines and Instructions for Clerks Who Assist Pro Se Litigants - as an example of support information supplied to clerks in other states.
Jeff Rotering said the draft policy is a good start in addressing how clerks respond to requests for assistance from self-represented litigants, and the public generally. Paulette Reule, Stark County Clerk of District Court, agreed it is time to develop a policy with guidelines.
Jim Odegard agreed with the general concept, but wondered whether there were any issues concerning the liability of the clerk in providing information. Staff drew attention to the Greacen articles reviewed by the Committee at its July 6, 2001, meeting, which argue that there is a difference between legal advice and assistance. The articles, he said, suggest that if clerks are authorized by supreme court rule or policy to provide "assistance", then there is no liability with respect to whether the clerk is "practicing law". However, he said, the articles make clear that there are limits concerning proper assistance, thus the need for guidelines and education to ensure clerks and staff do not become involved in the interpretation and application of laws and rules as they may apply to a given legal case.
With respect to potential liability, Jeff Rotering said a policy would be helpful to clerks in defining the limits of their activity and clarifying what they can and cannot do by way of assistance. Now, he said, clerks have no guidance with respect to appropriate assistance or advice. Rep Mahoney said as a state's attorney in a rural county he would welcome the guidance provided for clerks by a policy. He said a properly implemented policy, with supporting education, could aid the clerks in providing more efficient and accurate information and may also alleviate some of the potential liability.
Staff noted that Dorothy Howard, who was unable to attend the meeting, had submitted comments concerning the draft policy. Her comments, he said, were that the guidelines were too vague, that a pamphlet outlining procedures and processes and defining legal terms should be provided, and that it may be unwise to place the responsibility of responding to legal questions on clerk staff.
Jeff Rotering said there likely will never be a clear line between permissible assistance and legal advice. But, he said, a policy and education can improve the current situation for clerks.
Judge Bohlman noted that different kinds of forms are available through the clerks' offices, such as small claims and probate. As long as those forms are provided, he said, the public will likely expect clerk staff to respond to questions about the forms. The goal, he said, should be to ensure that clerk staff respond appropriately and within well-defined limits.
Linda Weaver observed that Dorothy Howard's comments about legal advice focused on the wording in Section B(1) and (2) of the draft, which describes the "obligation" of clerk staff to explain court processes and procedures and to inform litigants how their problems can be brought before the courts. The concern, she said, is that self-represented litigants, knowing of that responsibility, would become overly demanding of clerk staff. There is also, she said, the suggestion that perhaps there should be a centralized location, such as a 1-800 number, from which litigants could obtain information from staff with legal training.
Ted Gladden said such a policy is long overdue. He said there are significant differences across the state with respect to how clerks provide assistance to the public. He agreed adequate training should be provided to clerks and staff to ensure the public is appropriately served.
Rep. Delmore observed that a policy and guidelines may also provide support for clerks declining to provide certain information requested by a litigant or member of the public when providing such information would be inappropriate.
Justice Maring drew attention to Section B(1) and (2) of the draft policy. She wondered why Section B(1) was not sufficient to describe the clerks' responsibilities to explain court processes and procedures. She said Section B(2), which concerns informing litigants "how" to bring their problems before the court, also seems to contemplate procedural information and therefore may be duplicative.
With respect to Section B(2), Pat Weir said the language does appear to border on involving clerks in the practice of law.
Justice Neumann suggested the possibility of deleting Section B(2) and then in Section C explaining more clearly what clerks cannot say. He agreed the obligation to inform litigants "how" their problems may be brought before the courts may seem too much like practicing law.
Ted Gladden suggested, and Committee members agreed, that the title of the draft be changed to "Assisting Self-Represented Litigants".
Justice Kapsner drew attention to Section C(6) of the draft, which prohibits court staff from communicating to a judge on behalf of a litigant or a potential litigant. She said there may be circumstances, without legal import, in which staff should convey information to the judge. She suggested C(6) should be modified to provide that staff cannot communicate to a judge "regarding the substance or merits of a case" on behalf of a litigant or potential litigant.
Judge Jorgensen suggested the draft policy should be distributed to clerks for comment. Ted Gladden agreed and suggested that the distribution for comment include juvenile court staff and trial court administrative personnel.
It was moved by Jeff Rotering, seconded by Pat Weir, and carried unanimously that Section B(2) be deleted from the draft and that Section C(6) be modified as suggested by Justice Kapsner.
It was moved by Jeff Rotering, seconded by Jim Odegard, and carried unanimously that the draft policy, as modified, be distributed for comment to clerks of court, directors of juvenile court, and trial court administrative personnel.
Draft Forms Regarding Child Visitation
At the request of Chair Strutz, staff distributed and reviewed draft forms related to modifying and enforcing child visitation. He explained that the Committee had previously concluded that child visitation was an area in which assistance for self-represented litigants may be useful.
Judge Bohlman said the motion for order to show cause to enforce the underlying visitation order may be the more useful of the draft forms. He said pursuing forms regarding modification may be ambitious at this point. Rep. Mahoney agreed simplifying the order to show cause process for enforcing visitation orders would be beneficial.
Justice Maring said she is uncomfortable pursuing family law related forms much further without obtaining input from family law practitioners or the family law section of the bar association. She suggested a subcommittee might be useful in determining which family law areas are most troublesome from the standpoint of self-representation and for which assistance forms could be considered. She said modification of child support may be another area that requires attention.
Jeff Rotering suggested, and Committee members agreed, that all of the draft forms distributed at the meeting should be reviewed by the subcommittee if one is formed.
It was moved by Rep. Mahoney, seconded by Jeff Rotering, and carried that a subcommittee chaired by Justice Maring and including family law practitioners be formed to consider forms for possible use by self-represented litigants in domestic relations proceedings.
It was moved by Rep. Delmore, seconded by Judge Jorgensen, and carried unanimously that Rep. Mahoney be added to the subcommittee membership.
Defibrillators in County Courthouses
At the request of Chair Strutz, Judge Jorgensen reviewed Attachment F (November 9, 2001) - his letter regarding the need to make defibrillators and training in their use available in courthouses.
Justice Kapsner said the issue appears to be a county concern and would likely be best served by referral to the Association of Counties.
Mark Johnson said he could submit the issue to the Association and report back with any response.
Linda Weaver observed that Cass County has defibrillators in place and four-hour training sessions have been provided to approximately forty-five employees.
It was moved by Jim Odegard, seconded by Jeff Rotering, and carried unanimously that the matter be referred to Mark Johnson for presentation to the Association of Counties.
There being no further business, the meeting was adjourned at 12:15 p.m.
Jim Ganje, Staff