Members Present Justice Carol Ronning Kapsner, Chair Aaron Birst Judge Donovan Foughty Barb Hill Jim Hill (SBAND Liaison) Joyce Harnden DeWayne Johnston Judge Donald Jorgensen Courtney Koebele Sen. Karen Krebsbach Rep. William Kretschmar Chuck Peterson Deb Simenson
Bill Brudvik Judge Sonja Clapp Referee John Grinsteiner
Sally Holewa, State Court Administrator
Chair Kapsner called the meeting to order at 10:00 a.m. and welcomed as new Committee
members Senator Karen Krebsbach, Barb Hill, Stutsman County Clerk of District Court, and Aaron
Birst, Legal Counsel, North Dakota Association of Counties. She then drew Committee members'
attention to Attachment B (October 12, 2007) - Minutes of the April 13, 2007, meeting.
It was moved by Jim Hill, seconded by Judge Jorgensen, and carried that the minutes
Information and Forms for Respondents in Protection Order Cases
At the request of Chair Kapsner, staff reviewed the Committee's discussion and action at the
April 13 meeting concerning a petition to amend or repeal the administrative rule governing
domestic violence advocates. He said the petition had been referred to the Committee by the
Supreme Court and after discussion the Committee concluded that no action should be taken in
response to the particulars of the petition. However, he said, there was general agreement that it may
be beneficial to provide more information to respondents concerning the protection order process
and consequences. The possible need for such information, he said, is a reflection of the fact that
petitioners in protection order proceedings are generally assisted by advocates, while respondents
typically participate in proceedings without representation by counsel or any other assistance. He
then drew attention to Attachment C (October 12, 2007) - example information sheets, instructions,
and forms for respondents in protection order proceedings which are available in other jurisdictions.
He explained that nearly every jurisdiction has a variety of forms for self-represented litigants, but
only a few have developed and made available forms or information pamphlets for participants in
protection order proceedings. He said the information and forms included in Attachment C are from
California, Arizona, Minnesota, and Colorado and appear to be the most user-friendly. California,
he said, provides both a question and answer feature on the judicial system website and a somewhat
more detailed information pamphlet both of which describe general hearing requirements and
possible consequences for the subject of a protection order. He said California also provides a court
form the respondent can use to file an answer to a temporary order. Arizona, he said, provides a very
simple 2-page information pamphlet, but also makes available a much longer, 21 page booklet
entitled "Things You Should Know About Protective Orders". He said Minnesota has developed an
informational pamphlet and a court form the respondent can use to petition for a hearing. Colorado,
he said, provides somewhat more detailed information and instructions to the respondent
accompanied by a form for filing a motion to modify or dismiss a temporary or permanent protection
order. He said the general focus of the informational pamphlets is to explain general hearing
requirements and procedures, how the respondent can participate in the hearing, and what may
happen after the hearing has concluded.
Chair Kapsner then requested Committee discussion about whether information resources
should be developed and, if so, how they should be structured.
Courtney Koebele said it would be helpful for respondents to have general information about
how protection order proceedings work and what the consequences of an order are. Judge Foughty
agreed but emphasized that the information should be short and simple, 2 or 3 pages at the most. He
suggested the information document could be included with the temporary order so the respondent
receives the information when the order is served. He said more detailed information could be
provided in a separate free-standing pamphlet similar to the booklet developed in Arizona, which
could also be posted on the Supreme Court's website. Jim Hill agreed a pamphlet should be
available in the courthouse, but he questioned whether particular forms are necessary. Judge Foughty
said a form is not necessary for the respondent to respond at the hearing. He said the colloquy with
the respondent concerning allegations in the petition is usually fairly simple.
Judge Jorgensen agreed with the idea of a simple document to accompany the order, which
could then refer the respondent to a more detailed source of information. In that manner, he said,
the respondent will be advised of the consequences of the hearing even if the respondent does not
appear at the hearing. He said emotions tend to run high during protection order proceedings and
the proceeding is generally fairly quick, so the simpler the information can be the more helpful it is
likely to be.
Judge Foughty emphasized that there are severe consequences for respondents associated
with protection orders and most respondents are unaware of those consequences.
With respect to the method by which the information sheet could accompany the order, Barb
Hill said the court information system generates the order and the information sheet could be
separately kept by clerk staff and added to the order when it is printed. Deb Simenson wondered
whether it may be possible to program the information sheet into the information system so that it
prints when the order is printed.
In response to a question from Jim Hill about how the information would be provided if the
respondent did not appear at the hearing, Judge Foughty said the information sheet could be included
with the temporary order so it could be provided to the respondent when the order is served by the
Following further discussion, Chair Kapsner said there appeared to be general agreement to
proceed with the development of a general informational pamphlet for respondents. In preparation
for the next meeting, Chair Kapsner, Aaron Birst, Courtney Koebele, DeWayne Johnston, and Barb
Hill will work on development of a draft pamphlet.
Report on Pro Se Litigation in North Dakota - Action Items
Staff drew attention to the Committee's earlier discussion of the Pro Se Report and its
recommendations. He said discussion at the last meeting focused on preliminary items concerning
how a civil case is handled, information and forms concerning name changes, and more information
about small claims cases. He noted that the Report also recommended development of information
about public access to court records.
Access to Court Records. Staff explained that Sally Holewa, State Court Administrator, had
earlier requested that a rough draft of a guide for accessing court records be prepared.
Coincidentally, he said, a guide was developed for an education program concerning access to public
records conducted recently for lawyers and other professionals. The draft guide is included as
Attachment D (October 12, 2007) of the Committee material. Staff said the draft guide provides
general background about the status of court records and explains that access can be obtained by
visiting the office of the clerk of court or by visiting the Supreme Court's website. He said a series
of questions and answers then provides information about how to gain access, which court records
are accessible and which are confidential, how to request record information from the clerk's office,
and how to inspect records in person at a clerk's office. He said the guide was generally well-received at the education seminar but there were few members of the general public at the seminar.
In response to a question from Chair Kapsner about the utility of the guide, Sally Holewa said
she envisioned the guide as being implemented as about a 2 page brochure with a somewhat simpler
structure and simpler phrasing. She suggested the guide should more clearly explain the difference
between simply inspecting a record and obtaining a more formal, certified response from the clerk
about a record's existence or contents.
In response to a question from Chair Kapsner about the volume of requests for access to court
records, Deb Simenson said the Burleigh County Clerk's Office receives a few requests from time
to time for access to paper files. She said there is a fair amount of traffic at the public computer
terminals by which the public can locate most record information. Additionally, she said the
Supreme Court website and the availability of online record information has been very helpful.
After further discussion, Committee members agreed the draft guide should be revised in the
manner described by Sally Holewa and reviewed further at the next meeting.
Name Changes - Sample Instructions and Forms. Committee members next reviewed
Attachment E (October 12, 2007) - North Dakota law governing name change petitions and sample
instructions and forms from California, Minnesota, Iowa, Montana, Idaho, and Colorado. Staff
explained that nearly all judicial system websites have name change forms as part of the forms
available for self-represented litigants. He said the samples were selected because they appeared
somewhat more user-friendly and reflected requirements somewhat similar to North Dakota law.
He explained that North Dakota law was changed recently to require that a criminal history record
check be conducted for anyone seeking a name change. He said the Minnesota and Colorado forms
reflect a similar requirement. He then briefly reviewed the sample instructions and forms included
in Attachment E.
Chair Kapsner then requested Committee discussion concerning whether to proceed with
development of name change forms.
In response to a question from Sen. Krebsbach regarding why name change forms have not
been provided, Justice Kapsner said as a general matter development of forms for self-represented
litigants is a relatively recent phenomenon in North Dakota and more particularly lawyers often
regard name changes as a somewhat regular source of income.
Chuck Peterson said name changes would particularly benefit from the availability of forms.
He said a petition for a name change is rarely contested and so the procedure should be relatively
simple. Justice Kapsner observed that the recent change to require a criminal history record check
has complicated the process to some degree.
Judge Jorgensen said in his experience there have been essentially two groups of people that
have often sought name changes: step-children and litigants in divorce cases.
Jim Hill wondered whether there are that many name changes to be a cause for concern about
the lack of forms. Judge Foughty said name changes are an infrequent event in his court.
DeWayne Johnston said name changes may be a relatively simple matter but if they are
handled by a lawyer, the lawyer must charge a fee, sometimes $100-200, as a simple business matter.
He said people who seek such services often do not have much income and become frustrated
generally with lawyers because of the cost.
Sally Holewa observed that most jurisdictions have made name change forms available likely
because it is relatively simple, most of the people seeking name changes are doing so more for
aesthetic reasons than deeply held personal reasons, and the legal ramifications are less pronounced
than when people try to handle more complicated legal matters on their own.
Following further discussion, it was moved by Judge Foughty, seconded by Chuck
Peterson, and carried that the Committee proceed with the development of instructions and
forms for name changes. Staff will prepare the drafts. Judge Foughty, Deb Simenson, and Chuck
Peterson agreed to preliminarily review the drafts in preparation for the next meeting.
Pro Se Participation in Court Proceedings. Committee members next reviewed Attachment F
(October 12, 2007) - sample information pamphlets (Colorado, Oregon, and Massachusetts)
regarding participation by self-represented litigants in court proceedings. Staff said a review of
websites around the country suggested that only a few judicial systems have developed brochures
or pamphlets explaining how a litigant should or can self-represent in a court proceeding. Of those
that have, he said, several are simple explanations, such as the Colorado pamphlet, of what court
staff can and cannot do in assisting a self-represented litigant. Oregon, he said, has developed a
somewhat more detailed brochure entitled "How to Prepare for Your Civil Trial", which addresses
preparation for trial, obtaining and handling witnesses, presentation of evidence, and what to do and
expect during trial. He said Massachusetts has developed fairly elaborate booklets with similar kinds
of information that provides much more detail and specifics concerning how to handle a civil case.
Justice Kapsner said information concerning basic and practical matters, such as courtroom
decorum and general court process may be helpful. It is another question, she said, whether to
provide very broad descriptions and instructions about how to proceed in a case.
Jim Hill agreed matters of court decorum and basic conduct in court may be good subjects
for information and guidance. But, he cautioned that it may quickly become difficult to separate
basic information from the drift towards providing more guidance to the point of enabling the
practice of law. Judge Jorgensen agreed and drew attention to page 6 of the Oregon guide which
provides useful points on decorum and courtroom etiquette that are of a kind that could be
Chuck Peterson observed that the information provided in the Colorado pamphlet is general
enough that it addresses most basic issues in a useful way. He said it would be beneficial to include
a discussion about when and why a litigant should consider obtaining legal representation.
Judge Jorgensen said a guide should include clear direction that the self-represented litigant
will be held to the same standards as a litigant represented by counsel. He observed that some
litigants have an unreasonable expectation that somehow the judge will "make up the difference"
when a lawyer is on the other side.
DeWayne Johnston suggested basic information concerning timelines, scheduling
conferences, and other general process information would be helpful.
Jim Hill cautioned that whatever information is developed and provided will not be able to
address unexpected contingencies that may arise in a proceeding. The urge, he said, may then be to
continue providing information to fill the gaps.
Judge Jorgensen said an additional concern is the risk of crossing the line between providing
general information and providing procedural guidance. He said once a court begins moving in that
direction, it is very hard to stop because of the increased expectations on the part of the litigant. He
said he supports providing basic information to litigants by which they can inform themselves of
essential requirements. But, he said, the judicial system has no obligation to in essence provide a
legal education to those who choose to represent themselves.
Justice Kapsner emphasized that there is also uncertainty for the lawyer representing a party
about how to respond if it appears the "rules" have been changed to accommodate a self-represented
Sen. Krebsbach said there may be a natural, human inclination on the part of judges to help
a person unfamiliar with court procedures or the intricacies of presenting a case. She asked whether
the percentage of cases with self-represented cases is known and whether there is any level of
consistency within the judicial system concerning how the cases and litigants are handled.
Justice Kapsner said that at the Supreme Court level approximately 17% of cases involve one
or more self-represented parties. Sally Holewa said the judicial system does not currently collect data
concerning self-represented litigants but the incidence of self-represented litigation appears to be
increasing. She noted that a Nevada judge recently estimated that about 40% of the cases in that
state involve self-represented litigants. She said common reasons for the rise in self-representation
include better education levels and more exposure to legal terminology through a variety of sources.
Judge Foughty said his experience has been that self-representation most often occurs in
proceedings involving domestic violence protection orders, child visitation, and child support. He
said the trend nationally is that people with financial resources are choosing to represent themselves
in court proceedings. He said he suspects that most litigants in North Dakota courts are at the lower
end of the economic spectrum.
With respect to the treatment of self-represented litigants, Justice Kapsner said judges strive
to treat the litigants fairly but there will inevitably be some level of difference in treatment. She
reiterated that there is a substantial burden on the other party when a self-represented litigant is
involved because the party must contend with the self-represented litigant's lack of knowledge and
uncertainty about how the proceeding will go forward.
In answer to a question from Judge Jorgensen, Jim Hill said the Bar Association has generally
discussed issues concerning self-represented litigation but the discussion has not reached the point
of developing information or forms.
After further discussion and in response to a question from Chair Kapsner about a general
approach, Committee members agreed that something like the Massachusetts information, which is
very broadly focused and detailed, is more than is necessary as a basic informational guide. There
was general agreement that information could be distilled from the various samples to address basic
items such as decorum, courtroom etiquette, and very basic court processes. It was agreed that staff
will review the samples included in Attachment F (October 12, 2007) and prepare a draft based on
the discussion. Judge Jorgensen, Jim Hill, Sen. Krebsbach, and Deb Simenson agreed to review the
draft in preparation for the next meeting.
Small Claims Process - Information. Rep. Kretschmar noted the previously discussed issues
concerning small claims actions and asked what changes might be considered.
Staff said current small claims forms provide instructions for the use of the forms and very
general information about what litigants must do.
Judge Jorgensen suggested a brief outline could be provided describing what a court can do
in a small claims proceeding and explaining what will be expected of the parties. He said parties
should be clearly instructed to bring any evidence or witnesses to the proceeding and to bring
original documents when necessary.
Chair Kapsner said discussion of possible additional guidance for small claims actions will
be added to the agenda for the next meeting.
Protection Order Proceedings. Judge Jorgensen drew attention to the Colorado form for
filing a motion to modify or dismiss a protection order. See Attachment C (October 12, 2007). He
suggested it may be useful to consider having a similar kind of form available when the petitioner
in a protection order proceeding has a change of mind. He said the court will often receive a written
request from the petitioner to terminate an order because there has been a change of mind. The
request, he said, will generally not have the necessary substantive content for the court to make a
determination. He said it may be beneficial to have a simple form that will provide substantive
information when there is a desire to change or dismiss a permanent protection order.
Barb Hill asked whether there would be a hearing when the form is filed. Judge Jorgensen
responded that it would be filed as a Rule 3.2 motion to amend the permanent order and there would
be no hearing unless one is requested. The result, he said, is that the modification or dismissal would
not occur unless notice is given, as required by the rule, or a hearing is held if requested.
Chair Kapsner asked that the group reviewing the draft information for respondents in
protection order proceedings consider the utility of the suggested form.
Flowchart Descriptions of Cases. Chair Kapsner drew attention to Attachment G (October
12, 2007) - flowcharts describing how typical cases move through the court system. She recalled that
the flowcharts were reviewed briefly at the last meeting and the Committee's tentative conclusion
was that the flowcharts would need to be simplified considerably to be of use to the general public.
Development of case flowcharts was one item recommended for consideration in the Pro Se Report.
Sally Holewa explained that the flowcharts were developed by clerk personnel in
Administrative Unit 1 and were intended as a resource for clerk personnel. She said the flowcharts
were also envisioned as a source of information for the general public which could be provided in
paper form or posted on the Supreme Court's website. She said the flowcharts have been simplified
somewhat since the Committee last reviewed them.
In response to a question from Chair Kapsner regarding whether the flowcharts should be
adopted in some form, Committee members generally agreed that simple flowcharts for particular
kinds of cases, rather than for broad categories such as civil or criminal, would be more useful.
Deb Simenson said the risk in providing brochures about specific cases is that litigants may
come to clerks for advice or more detailed information if the brochure leaves some particular item
unexplained. She said clerks often cannot provide the kind of detailed information about a case that
Following further discussion, there was general consensus that the Committee would take
no further action concerning the flowcharts.
Future Meeting Schedule
Committee members agreed three meetings were sufficient for 2008.
There being no further business, the meeting was adjourned at 12:30 p.m.