M E M O
TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Administrative Order 15, Interactive Television Project--Southeast Judicial District
The Southeast Judicial District Court has developed an interactive television rule. Effective March 1, 2003, the North Dakota Supreme Court put the rule into effect as Admin. Order 13. The Court desires the Committee to review Admin. Order 13 and report back to the Court.
Admin. Order 13 is designed to allow the use of ITV for mental health proceedings. A basic tenet of the rule is that an ITV proceeding will not be held unless the respondent to the proceeding consents. In the Committee's discussion of the East Central ITV rule, there was considerable debate whether a mental health respondent is capable (by definition) of giving knowing consent to having an ITV hearing as opposed to an in-person hearing.
Requiring consent before an ITV hearing can take place may safeguard the respondent's rights. Yet, a respondent's decision whether to consent to an ITV hearing seems a complex one because of the possible consequences of a mental health hearing. In order for the consent requirement to have meaning, the mental health respondent should be represented at the point in time he or she is required to make the decision on whether or not to consent to an ITV hearing. Section 25-03.1-13, N.D.C.C., requires that counsel be appointed within 24 hours of the filing of a mental health petition--as long as this requirement is followed, it appears the proposed rule provides an adequate opportunity for the mental health respondent to knowingly and intelligently consent (or refuse to consent) to an ITV proceeding.
Admin. Order 13 Sections C (2) and D (3) suggest that a mental health proceeding may be delayed if the subject does not consent to an ITV hearing. The Committee may wish to discuss whether such delay is appropriate in the mental health hearing context.
The proposed rule contains a lengthy protocol setting out the nuts and bolts procedure for the conduct of mental health hearings by ITV. When the Committee considered the East Central ITV rule, it deleted most of the technical nuts and bolts elements, leaving them to be figured out as the district gained experience with actual ITV hearings.
A significant difference between the Southeast ITV proposal and the ITV programs currently in place is that, under the Southeast proposal, the court (working with the clerk of court) seems to be the entity that would set an ITV hearing into motion (see, e.g., C (1) and D (11-13)). In the East Central in particular, the core of the ITV plan as modified by the Committee was that the parties may request an ITV hearing and the court has discretion to grant such a request. The East Central rule places the burden of arranging for a hearing by ITV on the parties--under the Southeast proposal, that burden seems to be on the court.
One significant problem with the technical portion of the proposal is that D (2) requires that the court during an ITV hearing be allowed to view the respondent and any witnesses testifying simultaneously, possibly by split screen. On page 3 of the its report, however, the Southeast ITV Committee states that split screen technology is not cost effective. Therefore, Section D (2) of the proposal seems to put in place a technical requirement that cannot be fulfilled.