TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: September 13, 2017
RE: Rule 34, N.D. Sup. Ct. Admin. R., Rule Regarding Domestic Violence Advocates
The legislature has created a new statute providing for sexual assault restraining orders, N.D.C.C. § 12.1-31-01.2. A copy of the new statute is attached. In a letter, attached, CAWS North Dakota has requested the Supreme Court to amend Rule 34 to allow advocates to assist in sexual assault restraining order proceedings. The Court referred this proposal for consideration by the committee. It also requested that the committee seek comments on the proposal.
A request for comment was posted on the Court's website beginning on July 28 and seven comments have been received. The comments are attached.
Attorney Arnold Fleck commented that he was involved with promulgating the rule and that he had supported it for years. He commented that he no longer supports the rule and is opposed to its expansion because CAWS and the Adult Abuse Resource Center have become special interest groups that do not support the general good.
Mr. Paul Sorum opposes the proposal, commenting that Rule 34 is unconstitutional and permits the unlicensed practice of law.
Mr. Mitchell Sanderson submitted two comments, both opposing the proposal. In his comments he criticizes CAWS and argues that only gender neutral groups should be allowed to be advocates.
Wells County State's Attorney Kathleen Murray submitted a comment supporting the proposal. She commented that advocates do a lot to assist victims, especially in small counties that have limited support systems.
Attorney Mark Friese submitted a comment expressing concern with Section 5 of the rule, which allows advocates to make oral or written statements to the court. He was concerned that this provision can lead to "blurring the line of witness and advocate" and can lead to problems. He cited the case of Francis v. Francis, copy attached, as an example of a situation where an advocate exceeded the scope of the rule.
Mr. Leon Francis, a party in Francis v. Francis, submitted a comment criticizing CAWS for encouraging advocates to engage in the unauthorized practice of law and he cited his case as an example of this.
Proposed amendments to Rule 34 consistent with the CAWS proposal are attached.