|Members Present |
Justice William A. Neumann, Acting Chair
Judge Bruce Bohlman
Judge Donovan Foughty
Toni Stremick (for Dorothy Howard)
Judge Donald Jorgensen
Justice Carol Ronning Kapsner
|Members Absent |
William A. Strutz, Chair
W. Jeremy Davis
Rep. Lois Delmore
Rep. William Kretschmar
Justice Mary Muehlen Maring
Sen. Tom Trenbeath
Due to an emergency dental procedure, Chair Strutz was unable to attend the meeting. Justice Neumann, serving as Acting Chair, called the meeting to order at 10:00 a.m. and welcomed Chuck Peterson, a newly appointed member, to the Committee. He also welcomed Joanne Ottmar, a Jamestown attorney, and Deann Pladson, a Fargo attorney, both of whom served on the Pro Se Forms Subcommittee and who were attending the meeting to assist in the Committee's review of the pro se forms. Chair Neumann then drew Committee members' attention to Attachment B (November 1, 2002) - Minutes of the May 24, 2002, meeting.
It was moved by Craig Campbell, seconded by Jim Leahy, and carried unanimously that the minutes be approved.
Access to Qualified Interpreters
Chair Neumann drew attention to Attachment C (November 1, 2002) - a letter from Chief Justice VandeWalle referring to the Committee the issue of access to qualified interpreters. He noted that the letter from the Chief Justice includes a letter from Justice Mary Maring, Chair of the Gender Fairness Implementation Committee, which draws attention to gender- and culture-related issues with respect to the availability of qualified interpreters.
Staff noted that availability of interpreters, both for the hearing-impaired and for those who speak foreign languages, has been a source of periodic concern in the state. He said a recent pilot project involving the New Mexico state courts and the federal courts sought to establish a consortium for purposes of providing interpreter services in New Mexico courts. He said the matter is likely before the Committee to determine the extent of the problem in North Dakota and to consider how the problem, if there is one, can best be addressed.
Justice Neumann observed that the increasing immigrant population on the eastern side of the state underscores the need for qualified interpreters and while the need in the Bismarck area may not be as great, it is increasing.
Judge Foughty said he was recently informed that within the interpreter community for the hearing impaired there are noticeably different methods of sign language interpretation - an exact language signing method and a concept signing method. He said it may be helpful for judges to become aware of these different interpreter concepts so they are more informed when making decisions concerning interpreter services.
Craig Campbell recalled a recent experience during an extended trial in federal court involving residents of the Dominican Republic and in which interpreters were used. He said that during an evening deposition of one of the parties he was trying to establish that the person was fairly sophisticated and well-educated. During the course of the questioning, he said, the person, after having provided information about education qualifications, became aware of the point of the questions and suddenly informed the interpreter that the person, in fact, had no education thereby placing the interpreter in a difficult situation. He emphasized the importance of standards for interpreters to ensure that full and accurate interpretation is given.
Judge Jorgensen noted that the SouthCentral judicial district contracts with a Minnesota firm to provide interpreter services. He suggested the possibility of considering translation equipment that would facilitate real-time translation in the courtroom.
Chuck Peterson suggested the Committee should take advantage of the procedures and standards developed in other states in an effort to determine what might be workable here.
Doug Johnson further explained that International Translation Services, located in Moorehead, is used in the SouthCentral judicial district for interpreter services. He said the ATT Language Line is also used. In response to a question from Justice Neumann, he said ATT is generally used for those hearings that are relatively short in duration, while certified interpreters are used for trials.
In response to a question from staff regarding standards, Craig Campbell said such standards should at a minimum provide a method for resolving disputes about the interpretation provided and guidelines for interpreter conduct generally.
Judge Jorgensen said the district court has sometimes used volunteers, friends of litigants, to provide interpreter services, which poses obvious problems. He noted that at a recent National Judicial College seminar it was suggested that interpretations be taped in the event there is a challenge concerning the accuracy of the interpretation.
It was moved by Jim Leahy, seconded by Justice Kapsner, and carried unanimously that staff assemble additional background information for Committee review.
Amendments to Administrative Rule 41 - Confidentiality of Certain Record Information
At the request of Chair Neumann, staff reviewed Attachment D (November 1, 2002) - draft amendments to Administrative Rule 41 which would identify certain information within court records (social security number, birth dates, and addresses of parties) as confidential. Staff recalled the Committee's previous review of a model policy governing access to judicial records and a comparison of that model with current AR 41. The model policy, he said, suggested that personal identifying information in court records, such as social security numbers, should be confidential and current AR 41 does not contain such a provision. The suggestion, he said, is driven by an increasing concern with identity theft and with the increasing attempts to acquire personal identifying information for illegal or fraudulent purposes. The draft amendments, he said, are in response to the Committee's request at the last meeting for possible changes to address these issues.
Justice Kapsner wondered whether, if such information is made confidential, it would be necessary for clerks of court to black out, or redact, the information from court records before making the record available. She noted that nearly every file potentially contains information that would be subject to the proposed language. Craig Campbell said an added complication is that such information may be buried within a lengthy deposition.
Judge Jorgensen said there may be an additional problem if the clerk is asked to certify that a record, so modified, is a true and correct copy of the original.
Paulette Reule said that, as a clerk of court, personal information is helpful in identifying a person who may have the same name as several other people.
Staff noted that the information noted in the draft language would still be collected; it would not, however, be available for general public access.
Judge Foughty wondered how a criminal judgment, for example, becomes a useful public document if it does not contain personal information concerning the defendant.
Chuck Peterson agreed that the lack of personal information in civil judgments would make it difficult, particularly in researching matters affecting title, to confirm the actual identity of persons involved.
Judge Jorgensen suggested the possibility of developing a litigant affidavit, similar to the present affidavit of identification, on which identifying information could be provided but the dissemination of which would be limited.
Deann Pladson noted that Minnesota has developed a form upon which personal information is provided separately and which is generally not disclosed to the public.
Justice Kapsner said the main concern is the administrative burden to review the file that would be placed on the clerks of court, the primary custodians of court records.
Chuck Peterson said it may be worthwhile to review the Minnesota approach, although that would only affect future filings. Craig Campbell agreed such a procedure would help, but cautioned that personal information is often in many different places in a record.
After further discussion, Committee members agreed staff should assemble additional information concerning the Minnesota rule and practice for Committee review.
Pro Se Forms
Chair Neumann next drew Committee members' attention to Attachment F (November 1, 2002) - the report of the Pro Se Forms Subcommittee and the attached forms concerning visitation assistance and simple divorce. Staff also distributed a letter from Fargo attorney Michael Gjesdahl concerning the forms and which was provided by Craig Campbell. The letter is included as an Appendix.
Justice Neumann noted that at a recent discussion between members of the Supreme Court and the bar leadership, members of the bar expressed some concern about pro se forms being made widely available by the Court. He said there is a countervailing consideration in the constitutional right of access to the courts.
Judge Foughty said as a general matter availability of the forms would be a positive development, particularly with respect to visitation, which is a common point of contention in the courts.
With respect to the Gjesdahl letter, Craig Campbell said Mike Gjesdahl's additional concern is that the proposed forms may be a good approach for those who would go to court anyway without a lawyer, but the general availability of the forms may create the opportunity for abuse that does not presently exist. He emphasized that there is a need for legal representation in certain instances and those cases in which there is a power imbalance between the parties are a notable example. He said the opportunity for one party to take unfair advantage of the other is magnified if counsel is not involved. He said child custody issues are particularly problematic.
Deann Pladson explained that the Subcommittee considered those and other issues. She said Subcommittee members concluded that it will not always be those with low incomes who will use the forms, which has been the experience in other states where courts have made forms available. She said the use of the forms will likely mean that judges will have the additional burden of ensuring that what occurs is fair and equitable between the parties. She agreed that issues involving children are particularly difficult, and that is one reason the Subcommittee limited the simple divorce forms to use in those cases in which the parties are in agreement and there are no children.
Judge Bohlman, also a Subcommittee member, said that he often reviews stipulated divorces in cases in which the parties do not appear, which may pose some of the same issues concerning unfair advantage.
Joanne Ottmar said she was of conflicting opinions about making forms available, but she agreed to serve on the Subcommittee because there is a need to provide an avenue for people to address issues when they do not have financial resources to obtain counsel or, for one reason or another, they simply will not seek legal representation. She said it is important to provide a way for these people to get into court. Additionally, she said that visitation issues are common enough that there is concern that they may be addressed legislatively if the judiciary does not take the initiative.
Justice Neumann agreed that if the forms are made available, more will be required of judges and there will likely be a consequent need for more education and support services.
Judge Jorgensen asked whether the forms could be made available to lawyers to provide to those who may come to their offices seeking advice, but who do not want to hire a lawyer for a case. Paulette Reule wondered whether the forms could be made available through the bar association's lawyer referral service.
DeAnn Pladson said that if she, as an attorney, provided the forms she would be concerned about whether an attorney-client relationship had been established and there would also be concerns about allegations of malpractice.
Chuck Peterson said it may be helpful for lawyers to be involved in making the forms available, but there will still be those who will not go to lawyers in the first place. He said the forms are well-done and should be made available.
Judge Bohlman emphasized that with or without forms people will still try to get their case into court without an attorney and the question, then, is how they do that. He noted that in Justice Maring's letter submitting the Subcommittee report two related issues were emphasized: the method and medium of distributing the forms and the need for education and support for clerks and judges. He said it is important that the forms and these issues be presented to the Supreme Court so that they are at least available for consideration.
It was moved by Judge Bohlman and seconded by Judge Foughty that the proposed forms be submitted to the Supreme Court for consideration.
Judge Foughty said there may be objections to the proposed divorce forms, but the visitation forms will be very helpful. He agreed the subject of whether pro se forms should be provided should be discussed by the Supreme Court.
In response to a question from Chuck Peterson, Justice Neumann said the Supreme Court would likely seek comments in some manner regarding the proposed forms. Chuck Peterson noted that if the forms are distributed for comment, then they will be available to someone for possible use.
Judge Foughty observed that the issue is not necessarily the forms but whether justice will be done when the forms are provided and litigants proceed without legal representation. He wondered whether, by providing the forms, the courts will be complicit in the failure to achieve a just result.
Judge Bohlman wondered whether the Supreme Court would adopt the forms as "approved" state court forms. Justice Neumann said there may be some reluctance to actually identify the forms as approved court forms since there may be an issue of future litigation. The Supreme Court, he said, has similarly maintained a distance from the jury instructions developed by the Pattern Jury Instruction Commission.
Judge Foughty suggested that perhaps the Supreme Court should neither approve nor disapprove the forms, but rather simply distribute them with the aim of obtaining comments concerning whether they should be modified, whether they should be made available and, if so, in what manner.
Craig Campbell noted that Mike Gjesdahl was concerned whether information and requirements concerning application of the Ruff-Fischer guidelines are adequately addressed in the forms. DeAnn Pladson said these factors are considered in the simple divorce forms instructions.
With respect to more fully addressing the Ruff-Fischer guidelines, Joanne Ottmar suggested that the first full unnumbered paragraph on page 7 of the simple divorce forms instructions could be modified to provide that in deciding spousal support and dividing property and debts the court would consider the noted factors. Additionally, she suggested the paragraph on page 8 regarding the division of property once approved by the court being final could be moved to the end of the paragraph in which the language just noted on page 7 is located. Deann Pladson agreed
With the consent of the second, the motion was modified to include the suggested revisions. The motion, as modified, carried unanimously.
It was moved by Judge Bohlman and seconded by Craig Campbell that the letter transmitting the forms to the Supreme Court include mention of the issues noted by the Subcommittee: the method and medium for distribution of the forms, the need for education and support for clerks of court and judges regarding use of the forms, and whether a nominal fee should be charged for the forms if distributed.
Craig Campbell wondered whether the cost of providing the suggested educational support could be addressed in part in the amount of the fee for the forms.
Justice Kapsner recalled the Committee's earlier discussion of whether personal identifying information in court records should be confidential. She noted that some of that very information is requested in the proposed forms. She suggested that as the forms are further considered, the tension between requesting personal identifying information and the possible confidentiality of that information should be kept in mind.
The motion carried unanimously.
There being no further business, the meeting was adjourned at 12:10 p.m.
Jim Ganje, Staff