MINUTES OF MEETING
Joint Procedure Committee
September 25-26, 2014
TABLE OF CONTENTS
Rule 8.10, N.D.R.Ct., Collaborative Law 2
Rule 11.2, N.D.R.Ct., Withdrawal of Attorneys 3
Juvenile Rule Amendments 4
Rule 2, N.D.R.Juv.P., Hearing Time 4
Rule 3, N.D.R.Juv.P., Contents of Petition 6
Rule 5, N.D.R.Juv.P., Summons 6
Rule 10, N.D.R.Juv.P., Presence, Default 6
Rule 17, N.D.R.Juv.P., Juvenile Court Lay Guardian ad Litem 12
Rule 18, N.D.R.Juv.P. 18, Disposition; Conditions 17
Rule 19, N.D.R.Juv.P., Juvenile Records 18
Rule 43, N.D.R.Civ.P., Evidence; Rule 28, N.D.R.Crim.P., Interpreters; Rule 50, N.D. Sup.Ct. Admin. R., Court Interpreter Qualifications and Procedures 20
Trial Court Administrative Policy 505 Section 9 Regarding Child Support 24
CALL TO ORDER
The meeting was called to order at 1:00 p.m., on September 25, 2014, by the Chair, Justice Dale Sandstrom.
Justice Dale Sandstrom, Chair
Honorable Laurie Fontaine (Friday only)
Honorable John Greenwood
Honorable Steven L. Marquart
Honorable Steven McCullough
Honorable Thomas E. Merrick
Honorable David E. Reich
Mr. Bradley Beehler (Friday only)
Mr. Larry Boschee
Mr. Daniel Dunn
Mr. Robert Hoy
Prof. Margaret Jackson
Ms. Carol Larson (Thursday only)
Mr. Lonnie Olson
Ms. Joanne Hager Ottmar
Mr. Bruce D. Quick (Thursday only)
Mr. Kent Reierson
Honorable Todd L. Cresap
Honorable William A. Herauf
Honorable Jon Jensen
APPROVAL OF MINUTES
Judge Reich MOVED to approve the minutes. Ms. Larson seconded. The motion to approve the minutes CARRIED.
RULE 8.10, N.D.R.Ct., COLLABORATIVE LAW (PAGES 29-53 OF THE AGENDA MATERIAL)
Staff reviewed the committee's recent work on the proposed collaborative law rule and provided the committee with comments from the Joint ADR Committee, the Attorney Standards Committee and several individual attorneys.
A member said that there are some lawyers already doing collaborative law in Fargo and that collaborative law is not meant to supplant or replace mediation but to be an alternative to it. The member said that the biggest issue surrounding the collaborative law proposals is that the collaborative law attorneys in a case would be required to disqualify themselves from further representation of the client in the case if the collaborative process failed.
A member said it made sense to send the proposals to the Family Law Section Annual Meeting in November. The member said the section is willing to set aside time to talk about collaborative law.
Ms. Ottmar MOVED to postpone consideration of the collaborative law proposals
until the January meeting so that the Family Law Section could review them. Judge Marquart seconded.
The Chair suggested the committee could discuss whether it wanted to make any changes to the form of the proposals before sending them onto the Family Law Section for review.
A member said that one of the lawyers submitting comments had suggested that there were mistakes in the organization of the proposed rules. Staff said it would review and proofread the rules before sending them on for review to assure that the organization was correct.
The motion to postpone CARRIED.
RULE 11.2, N.D.R.Ct., WITHDRAWAL OF ATTORNEYS (PAGES 54-58 OF THE AGENDA MATERIAL)
Staff explained that Judge David Nelson had proposed an additional amendment to Rule 11.2 that would require attorneys seeking to withdraw to provide client e-mail addresses and telephone numbers to the court.
Judge McCullough MOVED to approve the proposed amendments to Rule 11.2. Judge Marquart seconded.
A member asked whether the intent of the proposal was to require attorneys to turn over all known client phone numbers and e-mail addresses, even those that were not current and did not work. A member said requiring only the last known numbers and e-mail addresses would be more effective.
Mr. Boschee MOVED to amend page 55, line 10, to replace "any" with "last known" and to amend page 55, line 11, to delete the word "known." Ms. Larson seconded.
By unanimous consent, the motion was amended to also delete the words "to the attorney" on page 55, line 11.
A member said that, if the intent of the proposal is to give the court all the possible contact information for the client, the attorney should be required to turn over all know telephone numbers and e-mail addresses. The member said there was no downside to having the attorney provide as much information as possible to the court.
A member said that the language of the subdivision could be streamlined by better combining the existing language with the proposed new language.
Judge Reich MOVED a substitute amendment to amend language on lines page 55, lines 9-11, to read: "must state the last known address, e-mail addresses and telephone numbers of the party represented." Mr. Boschee seconded.
The motion to substitute CARRIED.
A member asked whether the attorney would be required to provide any associates or other addresses of the party represented beyond that required in the text. The consensus was no.
The motion, as amended, CARRIED.
The main motion to approve the proposed amendments to Rule 11.2 CARRIED.
Mr. Boschee MOVED to ask the Court to consider the proposed amendments with those in the committee's pending annual rules package. Ms. Larson seconded. Motion CARRIED.
JUVENILE RULE AMENDMENTS (PAGES 59-62 OF THE AGENDA MATERIAL)
Staff explained that the Supreme Court had referred proposed amendments to the Rules of Juvenile Procedure to the committee for review and comment. Staff said the Juvenile Policy Board spent several months reviewing the Unified Judicial System Policies relating to juvenile court and juvenile procedure and decided that policy language relating to court procedure should be transferred to the procedural rules so it would be more accessible to people using the court system.
RULE 2, N.D.R.Juv.P., HEARING TIME (PAGES 63-73 OF THE AGENDA MATERIAL)
Staff said that the Juvenile Policy Board proposed amending Rule 2 to require the court to make findings on alternatives to detention; to require an additional detention hearing if a case is not disposed of within 60 days and the child remains in detention; and to clarify that petition hearings are optional in continued foster care matters under N.D.C.C. § 27-20-30.1.
Judge McCullough MOVED to approve the proposed amendments to Rule 2. Mr. Qick seconded.
A member said the new language in paragraph (a)(1)(C) is useful because it clarifies time standards for continued detention hearings. A member said the juvenile rules have been in existence for less than five years and should be supplemented as the need for new provisions becomes clear. The Chair said that before the juvenile rules were enacted, it often was not clear whether the criminal or civil rules applied to a given case.
A member asked how much the juvenile referees and juvenile court staff were involved with formulating the proposed amendments. Staff explained that the juvenile directors seemed to be the driving force behind the amendments and were intimately involved with the process.
A member said that the proposed new language on continued detention hearings seemed to address a problem that did not exist; juvenile detention is costly and is generally kept to a minimum. The member said it is rare for a juvenile to be kept in detention for as long as 30 days. A member said there was a case of an out-of-state juvenile being detained for a long period and the issue arose about how often detention hearings needed to be held.
A member said that the continued detention language already existed as part of the juvenile policies and the proposal was intended to make it part of the juvenile rules, where it would be more accessible to lawyers and the public. The member said that the juvenile policies are hard for people not in the court system to access. A member said the shift of language from the policies to the rules was in part intended to clarify the procedure to be followed in juvenile cases for attorneys, parties and judges.
The Chair said the committee should feel free to recommend changes to the proposals if the members feel it is appropriate as part of the process of transferring the policy language to the rules.
A member said that the committee should be aware that sometimes there are "magic words" in juvenile proceedings that are essential to have to ensure that federal reimbursement is available in the treatment and disposition phase. A member said, as a practical matter the course of juvenile proceedings often followed a federally established framework so that federal funds would be available.
A member said that the word "finding" on page 64, line 6, should be plural because the court is required to make multiple findings under the language of the paragraph. By unanimous consent, the change was made.
The main motion to approve the proposed amendments to Rule 2 CARRIED.
RULE 3, N.D.R.Juv.P., CONTENTS OF PETITION (PAGES 74-77 OF THE AGENDA MATERIAL)
Staff said that the Juvenile Policy Board proposed amending Rule 3 to clarify that the names and residence addresses of the parents, guardian, or custodian of the child are not included in the petition for a continued foster care matter and to incorporate language from Policy 408 of the Unified Judicial System Policy Manual limiting juvenile court officers from acting as petitioners.
Mr. Olson MOVED to approve the proposed amendments to Rule 3. Judge McCullough seconded.
A member asked whether the intent of the proposed amendment on page 75, line 7-9, was to forbid information about parents and guardians from being included on continued foster care petitions. The member asked if "must not" would be better than "may not" if the intent was to express prohibition. A member replied that "may not" was a prohibitive phrase.
A member asked whether people more than 18 were considered to be "children" in the continued foster care context. Staff said that "children" was the term used in the continued foster care statute, even though the statute was directed to people over the age of 18.
The main motion to approve the proposed amendments to Rule 3 CARRIED.
RULE 5, N.D.R.Juv.P., SUMMONS (PAGES 78-81 OF THE AGENDA MATERIAL)
Staff said that the Juvenile Policy Board proposed amending Rule 5 to clarify that
issuance of a summons and the child's presence at a hearing is not required in a continued foster care matter.
Judge Marquart MOVED to approve the proposed amendments to Rule 5. Mr. Reierson seconded.
The main motion to approve the proposed amendments to Rule 5 CARRIED.
RULE 10, N.D.R.Juv.P., PRESENCE, DEFAULT (PAGES 82-85 OF THE AGENDA MATERIAL)
Staff said that the Juvenile Policy Board proposed amending Rule 10 to clarify that
the child has the right to be present at hearings in continued foster care matters, but the parents, guardian, or custodian of the child are not required to appear at these hearings. In addition, the board proposes that the rule be amended to add a new subdivision (d) allowing interactive television, telephone, or other reliable electronic means to be used in proceedings involving children who have legal representation.
Ms. Larson MOVED to approve the proposed amendments to Rule 10, with a change to the language at page 83, line 10, replacing "continued" with "continuing." Mr. Quick seconded.
A member said that "continued" had been used in the previous rule proposals considered by the committee and also was the terminology from the statute. A member replied that "continued" was confusing when applied to a hearing because it implied that the hearing had been postponed by court order. A member said in this context, "continued" was part of a phrase, "continued foster care."
By unanimous consent, "continued" was retained in line 10 of the proposal.
A member said that the proposed new language on page 84, lines 24-27, allowed electronic means hearings only when the child was represented. The member said that courts do telephone shelter care hearings all the time and the child is very rarely represented. The member asked if the representation requirement applied to all juvenile hearings or only to delinquency and unruly child hearings.
Staff explained that the representation requirement arose out of discussions with the juvenile directors, who wanted there to be some limitation on hearings by electronic means when the child had no representation.
A member said that detention hearings are often held by electronic means, particularly when the child is in detention in one place and the parents are in another. A member said juvenile hearings in the Southeast Judicial District are held remotely on a regular basis because of the large number of rural locations in the district.
A member asked whether a child could be represented by a parent or guardian to meet the proposed representation requirement. A member said a child can be represented by a parent in juvenile court. A member said the proposed language in the explanatory note referred to legal representation.
A member asked whether the committee should revisit N.D.R.Juv.P. 2 and include language about remote hearings in the shelter care hearing section on page 64, lines 12-14.
A member said that Rule 2 also dealt with detention hearings, which are sometimes held by remote means. A member said that perhaps something in the remote hearing section of Rule 10 should refer back to Rule 2 and verify that shelter care and detention hearings are covered by the section.
By unanimous consent, the subdivision designation of the electronic means hearing section on page 84, lines 24-27, was changed to (c) to be consistent with the rule's other subdivisions.
A member said if the language of the rule as proposed is adopted, courts will be in violation of the rule every day because they regularly conduct remote shelter care and detention hearings involving children without legal representation. A member said that if the reference to legal representation was removed from the rule, courts could continue conducting the sort of remote hearings that are customary.
A member said that staff had explained that the juvenile supervisors had been concerned about allowing remote hearings for children with no representation. A member said it sounds like the courts want to have remote hearings without restrictions. A member said that the courts face difficult situations in juvenile cases: the parents may be in one county, the child may be in another in detention, the court is somewhere else. The member said it is difficult to get all the necessary people on the telephone at one time, much less getting them together at a courthouse. A member said that soon, juveniles who had been detained in Cass County would be moved to Clay County, Minnesota, which would create another complication for bringing everyone together for hearings.
A member said that the committee should defer to the juvenile court staff's needs regarding whether legal representation should be required before a remote hearing is allowed in a juvenile case. The Chair said that the committee is entitled to take any action it wishes on the juvenile rule proposals before it because the committee is the reviewing body for procedural rules. A member said the Juvenile Policy Board understands the difficulties involved in bringing people together for hearings and presumably they considered these difficulties before proposing the legal representation requirement.
A member said there might be some way to amend the proposal to allow time constraints to be taken into account in allowing remote hearings. A member said that it would be preferable just to give the judge and referee discretion to conduct remote hearings whenever needed. The member said that Admin. R. 52 ensures that safeguards are applied to remote hearings. A member said the deadlines and contingencies involved in such events as detention hearings make in-person hearings (or obtaining legal representation for a child ahead of a remote hearing) impractical.
Judge McCullough MOVED to amend page 84, lines 24-25, to delete "In an action involving a represented child" and to amend page 84, lines 37-38, to delete "involving children who have legal representation." Mr. Olson seconded.
A member asked whether parents or guardians could participate in hearings by remote means. The member pointed out that the rule's language on page 83, lines 10-17, required parents or guardians to attend all hearings. A member responded that the court has discretion to allow the parents to attend a hearing by remote means. A member said it is common now to have hearings where the parents are in a rural courthouse, the child is in detention in Fargo, and the judge is in a larger city.
A member asked if the language of the rule should be amended to require the parents to be "present" at all hearings rather than requiring them to "appear." The member said that the part of the rule that refers to remote hearings refers to presence.
A member said that in discussing remote hearings, the committee was focusing on where judges are and where children may be detained rather than discussing whether there is a need for them to have legal representation during remote hearings. A member said that one of the purposes of a detention hearing was to determine whether the child needed a lawyer appointed. The member said that, because detention hearings need to be held within 96 hours of the child being detained, it is rare that a lawyer is appointed before the detention hearing. A member said that by the time of the next hearing, which is generally equivalent to an arraignment, the child would have legal representation or the court would be able to schedule an on-person hearing.
A member said that requiring representation at remote hearings after the initial detention hearing may be appropriate.
Mr. Quick MOVED to amend the motion language on page 84 beginning on line 24 to add: "In a detention hearing or in an action involving a represented child . . ." Prof. Jackson seconded.
A member said there are review hearings conducted later in the process in which the juvenile often has no representation. A member said that judges should have discretion to conduct any hearings by remote means if needed.
Judge Greenwood MOVED to amend the motion language on page 84 beginning on
line 24 to add: "Except in a hearing on a petition alleging delinquency or unruly behavior . . ." Motion FAILED for lack of a second.
Prof. Jackson MOVED to amend the motion language on page 84 beginning on line 24 to add: "A judge or referee may conduct a detention hearing, or in an action involving a represented child conduct any . . ." Motion FAILED for lack of a second.
A member suggested that the words "without objection" could be added to the motion language on page 84 beginning on line 24. A member said this would not be helpful because there would have to be some time deadline for the objection and detention hearings already are subject to a short statutory time deadline. The member said if the objection was made at the commencement of a detention hearing being conducted by remote means, all the participants would somehow have to be transported to the same spot in order to meet the time deadline for the hearing.
A member suggested that the language of the comment could be more specific about which of Admin. R. 52's standards would apply to a juvenile hearing; the comment could say that the Rule 52 standards for criminal cases apply to remote hearings in juvenile court. A member commented that both quasi-criminal and quasi-civil actions take place in juvenile court.
Prof. Jackson MOVED to amend the motion language on page 84 beginning on line 24 to add: "A judge or referee may conduct a detention hearing using contemporaneous transmission by reliable electronic means." Mr. Quick seconded.
A member said we should trust our judges to do the right thing in allowing remote headings, but children are not going to know they have a particular right so remote hearings should generally be allowed only when the child is represented. A member responded that there are other hearings, such as custody review hearings, in which it is sometimes not practical to ensure that the child is represented. The member said judges and referees should have discretion to hold remote hearings in juvenile cases.
The motion to amend the motion language FAILED.
The motion CARRIED.
Mr. Hoy MOVED to amend on page 83, line 12, to delete the word "appear" and replace with "be present." Judge McCullough seconded.
A member said it is common to have non-custodial parents participate in hearings
from remote locations, including other states. A member said the proposed amendment is intended to make it clear that parents and guardians can be "present" by electronic means at a hearing. A member asked whether the change would mean that all parents and guardians of the child, regardless of the role they play in the child's life, would need to be present at all hearings or be subject to contempt sanctions. A member said that under the way the rule has been interpreted, only one parent needs to be present. A member said the proposed amendment is not intended to change this. The member said it is not typical for all the people responsible for the child to be present at all hearings.
The motion CARRIED.
Ms. Larson MOVED to amend page 83, line 11, to delete "the" and replace with "a." Mr. Quick seconded.
A member said the use of "the" seemed to indicate that all the parents would need to be present at the hearing, while "a" indicated that just one needed to be present. A member said currently, if only one parent comes to the hearing, the court will inquire where the other parent is and get an explanation. A member said that changing "the" to "a" would be a substantive change to the rule. A member said the preference is to have both parents, but hearings are still allowed to go on if only one is present. A member said it is also possible under current practice to hold one parent in contempt for not showing up even if the other parent is present at the hearing. A member said the current language is preferable because it gives the court the power to get both parents into court if necessary.
Motion FAILED 6-8.
Prof. Jackson MOVED to amend on page 83 at line 11 to make "parent" plural. Mr. Hoy seconded.
A member said the proposed amendment would make it clear that both parents need to attend the hearing.
Ms. Ottmar MOVED to amend on page 84, line 20, to delete "appear" and replace with "be present." Judge McCullough seconded.
A member said that the committee's approved change to "be present" on page 83 line 12 was needed to make it clear that parents could participate in hearings by remote means. The member said it was not necessary to make a similar change on line 20.
The main motion to approve the proposed amendments to Rule 10 CARRIED.
RULE 17, N.D.R.Juv.P., JUVENILE COURT LAY GUARDIAN AD LITEM (PAGES 86-94 OF THE AGENDA MATERIAL)
Staff said that the Juvenile Policy Board proposed amending Rule 17 to specify that a person is not eligible for service as a lay guardian ad litem if the person has been convicted of a felony. Staff also said the board thought the rule language following the proposed amendment was not completely clear and it welcomed the committee's help in improving the language.
Judge McCullough MOVED to approve the proposed amendments to Rule 17. Mr. Olson seconded.
Prof. Jackson MOVED to amend at page 87, lines 16-17, to split paragraph (5) into two paragraphs and to add the words "regardless of whether a criminal conviction was obtained" at the end of new paragraph (6). Judge Merrick seconded.
A member said the proposed split into two paragraphs was a good idea and it made the rule clearer. The member said the language still needed to be improved.
A member said that use of the word "substantiated" was questionable. The member said the Child Protection Team uses language like "services recommended" or "services required" and does not use the term "substantiated." A member said that if services are found to be required in a child protection case, the responsible adult's name is added to a list, which can be checked if the person tries to obtain work caring for children.
A member said that the Child Protection Team does not look for probable cause or reasonable suspicion or into whether something is "substantiated," they look at whether services are needed.
The motion CARRIED.
Mr. Hoy MOVED to insert an additional paragraph between the new paragraphs created by the previous motion, which would read: "(6) Have no conviction under N.D.C.C. ch. 12.1-20 or equivalent statute or ordinance." Prof. Jackson seconded.
A member said ch. 12.1-20 included the state's sex offense statutes and a person with
a conviction under the chapter would be a registered sex offender who should not be serving as a juvenile guardian ad litem. A member said the language was also intended to address convictions under equivalent statutes in other jurisdictions. A member suggested that "or juvenile adjudication" be added after "conviction" to account for people adjudicated as sex offenders in juvenile court.
A member said with additional paragraphs being proposed for the rule, it was becoming clear that some language restructuring was needed. The member said the subdivision that this language is under deals with "qualifications" and the first five items under the subdivision are "positive" items relating to education and skills. The member said it would be preferable if the negative items the committee was dealing with could be put in a separate section, especially if the committee was going to add additional negative items.
Judge McCullough MOVED to amend the motion by adding "adjudication" after "conviction" in the proposed language. Mr. Hoy seconded. Motion CARRIED.
The motion, as amended, CARRIED.
By unanimous consent, staff was instructed to add language to the explanatory note at page 94, lines 151-153, and to create a separate part of the rule for the new disqualifying provisions developed by the committee.
A member said that with deferred imposition and suspended sentences offenders can have felony or sex offense convictions removed from their records and the committee should consider additional language to account for these actions.
September 26, 2014 - Friday
The meeting was called to order at approximately 9:00 a.m., by Justice Dale Sandstrom, Chair.
RULE 17, N.D.R.Juv.P., JUVENILE COURT LAY GUARDIAN AD LITEM (PAGES86-94 OF THE AGENDA MATERIAL)
The committee continued its discussion of proposed amendments to Rule 17. Staff presented draft amendments based on the committee's instructions.
Mr. Hoy MOVED to incorporate the amendments prepared by staff into the rule. Judge McCullough seconded. Motion CARRIED.
A member said that the language of the proposal is very nebulous about the definition of "substantiated instance of child abuse or neglect."
Ms. Ottmar MOVED to amend at lines 24-25 of the proposal to strike "substantiated instance of child abuse or neglect" and replace with "been listed on the Child Abuse and Neglect Information Index." Mr. Olson seconded.
A member said the amendment provides a more definite standard than the previous undefined language. A member said that social services, after investigating a child abuse or neglect claim, can make a "no services," "services recommended" or "services required" finding. The member said that when "services required" is found, there is considered to be a confirmation of the abuse or neglect claim. The member said that when "services required" is found, the person is listed on the index. A member said that the Department of Human Services maintains the index.
A member said that a variety of government agencies, including law enforcement, have access to the index. A member said the index is commonly accessed for background check for child care providers. A member said that if a person is added to the list, the person is notified. A member asked how a person's name could be taken off the list. A member said that an administrative process involving the county child protection team and the person's attorneys was used in determining a "services required" recommendation.
A member said that the index may only include North Dakota and may not be useful if an abuse or neglect claim was substantiated elsewhere. A member pointed out that the current motion language would include anyone who had ever been listed on the index, not just persons currently on the index. The member questioned whether people who had been removed from the index after an appeal process should be barred from service as a lay guardian under the rule.
A member said the "substantiated instance" language was very vague, but said it may be necessary to keep it to cover people who may have had an instance of child abuse or neglect outside of North Dakota. A member said this language originally came into the rules with N.D.R.Ct. 8.6 on parenting investigators in 2001 and has since been added N.D.R.Ct. 8.11 on parenting coordinators. The member said there is no case law in which the term has been defined or discussed.
Mr. Reierson MOVED a substitute amendment to retain the "substantiated instance of child abuse or neglect" paragraph and add the language relating to the "Child Abuse and Neglect Information Index" as a separate paragraph. Judge Fontaine seconded. Motion to substitute CARRIED.
By unanimous consent, the form and style of the proposed amendment was cleaned up to match verb tenses throughout.
A member suggested that language could be added to the Child Abuse and Neglect Information Index provision related to the exhaustion of administrative remedies and appeal processes. A member said that a person should not be appointed a lay guardian if an abuse and neglect related appeal is ongoing.
Prof. Jackson MOVED to add "North Dakota" before "Child Abuse and Neglect Information Index" and to add "or equivalent index in another jurisdiction." Ms. Ottmar seconded. Motion CARRIED.
A member said that the proposed language pending before the committee is far beyond what existed originally in the rule. The member said that adding reference to the Child Abuse and Neglect Information Index interjected an administrative investigation that was not an adjudicative process into rule. The member said the proposed amendments seem to go way beyond what was originally intended in the rule language.
A member said that the investigative finding leads to someone's name being put on the index can be appealed. A member said the appeal would go to an administrative law judge and the district court and Supreme Court if necessary. A member asked what standard the administrative law judge uses to review the decision by the child protection team. A member said that the typical standard in agency proceedings was "reasonable grounds to believe."
A member said that high standards for lay guardians were necessary because they would be working with children. The member said that the rule was not depriving anyone of a right to be a lay guardian and it was better to err on the side of caution as far as standards.
The motion CARRIED.
The initial motion to adopt the staff prepared amendments, as further amended by the committee, CARRIED.
A member said that in deferred impositions and misdemeanors by disposition cases, a person would not be considered to have been "convicted of" a felony after a designated period has passed. The member said the committee could consider changing the "convicted" language to "pled guilty or found guilty." The member said in the juvenile context, the language could refer to "admit or be adjudicated." A member said that there are plenty of
people in juvenile court who are adjudicated of sex offenses and they do not become less ill when they turn 18.
Judge McCullough MOVED to amend at line 21 to delete "been convicted" and replace with "pled guilty, been found guilty, admitted, or been adjudicated." Mr. Olson seconded.
A member asked whether "admitted" would apply to a coerced confession. A member said that "admitted" was intended to apply to a juvenile's admission of a delinquent act in juvenile court. A member suggested that the way to make this clear would be to restructure the amendment into two subparts, one applicable to adult felonies, one applicable to juvenile adjudications.
A member said that the concerns expressed in the proposed amendments were valid, but that the language of the rule indicates that the listed requirements are minimal qualifications. The member said that a court would not be required to appoint a lay guardian who met the minimal qualifications but who had a history that made the court uncomfortable. The member said that the inclusion of qualifications based on a lay guardian's juvenile record implied that someone would need to do a juvenile court background check on lay guardian applicants. A member replied that juvenile court records are only kept for a limited time, except for sex offense records.
By unanimous consent, "admitted or been adjudicated" was deleted from the motion.
The motion CARRIED.
Judge McCullough MOVED to amend at line 22 to delete "been convicted or adjudicated" and replace with "pled guilty or been found guilty of an offense." Mr. Olson seconded. Motion CARRIED.
Judge McCullough MOVED to insert a new section at line 24 as follows: "(C) has admitted or been adjudicated in juvenile court of an offense under N.D.C.C. ch. 12.1-20 or equivalent statute or ordinance." Mr. Olson seconded. Motion CARRIED.
A member directed the committee's attention back to the proposal's language relating to the North Dakota Child Abuse and Neglect Information Index. The member said it seemed the committee did not have a completely clear understanding of how a person was placed on the index and how such placement could be appealed. The member said when the committee forwarded the proposal to the Court, it should include comments indicating the committee's understanding of how the placement and appeal procedure works.
A member said the explanatory note also needs to be revised to reflect the changes the committee made.
Ms. Ottmar MOVED to postpone further consideration of the rule until the committee's January meeting. Judge McCullough seconded. Motion CARRIED.
Staff was instructed to revise the explanatory note and inquire about the process for being placed on the North Dakota Child Abuse and Neglect Information Index and for appealing placement.
RULE 18, N.D.R.Juv.P. 18, DISPOSITION; CONDITIONS (PAGES 95-103 OF THE AGENDA MATERIAL)
Staff explained that the Juvenile Policy Board proposed that a new Rule 18 be created to consolidate provisions previously contained in the Unified Judicial System Policy Manual. Staff said that proposed subdivisions (b) and (c) were derived from Policy 404 on Restitution and Community Service, proposed subdivision (d) was derived from Policy 401 on Screening and Testing Juveniles for Drug and Alcohol Use, and proposed subdivision (e) was derived from Policy 407 on Electronic Monitoring.
Judge Marquart MOVED to approve the proposed amendments to Rule 17. Mr. Boschee seconded.
A member expressed concern with the language on page 97 beginning at line 20. The member said allowing the court to write off a restitution order is unfair to crime victims. A member said that the court always has discretion when ordering restitution and that the proposed rule simply restates the power the court already has. A member said crime victims should at least have the opportunity to be made whole and that being required to pay restitution has a rehabilitative effect on the offender. A member said it would be better if the rule required some sort of victim notification before a court was allowed to write off a restitution order.
A member said that, even in adult court, the court takes account of ability of the offender to pay. A member said the juveniles generally have less ability to pay restitution than adults and juvenile courts do not have the power to force a juvenile to pay based on their ability to find gainful employment, as an adult court could. A member said that a restitution order in adult court could be converted into a civil judgment, but this was generally not the case in juvenile court.
A member said the proposed language on page 97 at lines 23-24, forbidding collection
of money by the juvenile court on behalf of private institutions, was problematic. The member said that private companies can be just as much of victims as an individual. A member said that, under the proposal, a judge or referee could order the collection of this money, but a juvenile court officer in a non-petition case could not.
Mr. Olson MOVED to delete the language on page 97, lines 23-24. Mr. Reierson seconded.
A member said that when a company like a bank is damaged by having to pay forged checks, it should be able to recover even in an informal juvenile action. A member said that the court could give permission for the money to be collected.
Motion FAILED 6-8.
A member asked whether language on page 99, line 68, requiring urine collection by same gender staff would preclude the juvenile court from obtaining assistance from same gender law enforcement personnel when there were not enough juvenile court staff members available. A member said that earlier language in the rule indicated that the child and parents had to be informed of the same gender requirement, but that the rule did not restrict how the requirement was accomplished.
The main motion to approve the proposed amendments to the rule CARRIED.
RULE 19, N.D.R.Juv.P., JUVENILE RECORDS (PAGES 104-109 OF THE AGENDA MATERIAL)
Staff explained that the Juvenile Policy Board proposed that a new Rule 19 be created to consolidate provisions previously contained in the Unified Judicial System Policy Manual. Staff said proposed subdivisions (a), (b) and (c) were derived from Policy 402 on Juvenile Court Records and proposed subdivision (d) was derived from Policy 403 on Expungement.
Judge Marquart MOVED to approve the proposed amendments to Rule 17. Mr. Dunn seconded.
A member said that the proposal allows a court to release records from juvenile proceedings under certain circumstances. The member said that some have taken the position that, if a person is not specifically listed in the rule, juvenile court records cannot be released to that person. The member said that the language at page 106, lines 29-30, is somewhat of a safety valve as it allows release of records to "those having a legitimate interest in the proceedings but whose access is not otherwise permitted." The member asked whether this
clause was adequate to be useful for people seeking the release of juvenile court records for use in adult court cases.
A member said that juvenile court records had been released under this clause when a prosecution witness in a criminal case had a juvenile record. Another member said that in a civil case where a juvenile was involved in a car accident, the injured party had not been able to obtain access to the juvenile's records. A member said the language seemed to make turning over the records discretionary with the judge. A member said it would be useful to have a note stating that, in an appropriate case, a judge could authorize access to the records for use in another legal proceeding.
A member said that N.D.C.C. § 27-20-51 sets out detailed rules for the release of information from juvenile court. The member asked why a rule was needed when a statute already covers the topic. A member suggested if the statute references everything, it would be best just to refer to the statute.
A member said the old policy cites the statute and then provides the process to obtain the records. A member said the statute could provide the standards for release and the rule could then detail the process for people to follow. A member said the structure of the rule at present seems confusing.
A member said there is a question of whether access to records is a procedural or substantive issue, although in the juvenile court context a law making records confidential seems to be a substantive law. A member said that the proposed amendments tried to differentiate between substance and process, but leaving out a reference to the statute was a major flaw. A member said that material covered by the statute should be left out of the rule. A member said it would be appropriate for the rule to explain the process for access and refer to the statute for the law on access.
Judge Fontaine MOVED to postpone so that staff can remove material from the draft that is covered by statute. Judge McCullough seconded. Motion CARRIED.
The Chair said that the committee would not be sending any of the juvenile rule proposals back to the Supreme Court until work was complete on all the proposals.
Mr. Reierson MOVED to express concern about proposed language in Policy 401(IV)(C)(3) on page 111 relating to the juvenile court not collecting money for insurance companies, banks or credit card companies. Mr. Olson seconded.
A member said that the institutions referenced in the language were still classified as
crime victims under North Dakota law and should be able to seek restitution for injury.
RULE 43, N.D.R.Civ.P., EVIDENCE; RULE 28, N.D.R.Crim.P., INTERPRETERS; RULE 50, N.D. Sup. Ct. Admin. R., COURT INTERPRETER QUALIFICATIONS ANDPROCEDURES (PAGES 130-142 OF THE AGENDA MATERIAL)
Staff explained that the state court administrator has been working under the direction of the Supreme Court to implement the March 31, 2014, amendments to Rule 43 and Rule 28. Staff said that part of this work was adding material providing more detail about when the courts will pay for interpreters is proposed into Admin. R. 50. Staff said additional amendments to Rule 43 and Rule 28 regarding reimbursement of interpreter fees were being proposed.
The Chair said the Court had a concern about the cost of providing free interpreters for everyone, particularly in civil cases, and whether a party had the ability to pay, providing for the cost of an interpreter should be the party's responsibility.
A member said that a witness who needs an interpreter should not be required to pay for an interpreter, particularly if the party was called to testify under a subpoena. The member said it was not clear from the language of the proposals that witnesses would not be required to pay for interpreters. The member said the rule language should be rewritten to make it clear that a subpoenaed witness should not be required to reimburse interpreter costs.
A member said North Dakota's courts are subject to Title VI of the Civil Rights Act because the state gets federal money from the Department of Justice and other federal agencies. The member said that Title VI and other federal acts would bar the courts from making any rule that would allow for recovery of interpreter fees from people with limited English skills. The member said that the threat of being required to reimburse has an impact on access to the courts for people with limited English skills. The member said while witnesses clearly should not be required to pay for interpreters, neither should parties who are guaranteed access to the justice system. The member said that a DOJ letter has been issued stating that requiring payment for the services of an interpreter in the courtroom violates the law. The member said the Department of Justice has gone after states that do not provide interpreters or that charge for interpreter services, such as North Carolina. The member said the issue is somewhat confusing because there is a balancing test for whether language assistance must be provided to assist with all the services a court system provides, but there is no doubt that interpreter services must be provided in the courtroom. The member said it would not be consistent with federal law to charge for interpreter services in
the courtroom, even if the charge is based on ability to pay.
A member said that the cost of providing interpreters under all circumstances would be high and would likely exceed the amount of any financial assistance the state courts are receiving from the federal government. A member said that Cass County probably uses more interpreters than any other county in the state and that in civil cases the parties have generally paid for interpreter services. The member said that Cass County does provide interpreters in criminal cases.
A member said that criminal defendants need access to interpreters for more than just the trial. The member said when an interpreter is brought in, they often arrive before the trial to consult with the defendant and it is necessary to allow this opportunity. A member said that for indigent defendants this is not a problem: the billing for interpreters is divided between the indigent defense commission for out-of-court time and the court system for courtroom time.
The Chair said there was a concern whether family member interpreters should be used at all and whether they should be paid.
A member said the Department of Justice has provided resources to make it more cost-effective to obtain interpreter services. The member said electronic resources are being developed so that interpreter services can be accessed remotely. The member said that family members should not be interpreters.
A member said the courts are attempting to develop a statewide roster of certified interpreters so that there is a resource for access to reputable interpreters. A member said that the telephone company also provides interpreter services, which works well for short hearings like the initial appearance. A member said the main advantage of the telephone and online interpreter services is that they have interpreters for all languages. A member said that a real time, in-court interpreter is the optimum solution for trials.
A member said the "certified" interpreter concept can be counterproductive in places like Devils Lake where there are numerous sign language interpreters available, but none certified by the court system.
A member said the Department of Justice letter on when interpreters were required was not necessarily an accurate statement of the law. The member said the federal government has a lot of leverage to force states to enter into consent decrees. The member said no one has challenged the DOJ yet on its interpretation of the law because states want to avoid extended litigation with the federal government.
A member said that it was understandable that the court system did not want to fund interpreters in civil cases for litigants with substantial resources. The member wondered whether it would be possible to adopt a rule that would assure that indigent litigants in civil cases were able to get help from interpreters. The member said there already were financial barriers to going to court, such as civil filing fees, that are waived if the person is indigent. The member said the key questions are who would determine inability to pay and against whom would reimbursement of fees be sought. The member said that it is not appropriate to assess interpreter fees against a witness --assessing fees against a party would be better. The member also said that it is not clear how the courts would seek reimbursement of fees, whether in the judgment in a case or through a separate proceeding.
A member said that it is surprising that there is any issue about who pays for interpreters in civil cases. The member said that it has been standard practice in civil court that the party who needs an interpreter will obtain and pay for that interpreter. The member said that if a party needs an interpreter to obtain testimony from a witness in a deposition, or to present testimony from a witness in court, the party is responsible to provide the interpreter. The member said the way the proposed rules are structured would allow a civil litigant with substantial resources to avoid the cost of paying for an interpreter. The member said it is appropriate, in a civil case, for the cost of an interpreter to be the responsibility of the party who needs the interpreter. The member said the rule should make clear that if reimbursement is requested for an interpreter provided for a witness, the responsibility for payment should be on the party.
A member said that sometimes it is the lawyers in a civil case who need help from an interpreter, particularly when an opposing party may be presenting a witness who does not speak English. The member said in a civil case, the responsibility to pay for an interpreter should be borne by the party who needs the interpreter because it is the party's responsibility to make sure that witnesses are understood and the burden of proof is carried. The member said that the court should generally not be providing interpreters in a civil case. The member said that paying fees, such as for expert witnesses, is part of the freight the parties must carry in a civil case.
A member said that applying fees to interpreter services is not fair even in a civil case because other fees apply to everyone while interpreter fees only apply when someone does not speak English. A member said that the Department of Justice's theory is that if the courts do not provide interpreters to non-English speaking court participants, they are discriminating on the basis of national origin. The member said if a person is denied access to the courts based on national origin, this is a constitutional violation and improper violation.
A member said that a non-English speaker should have the same access to the courts
in an employment discrimination case as in a criminal case. A member said that non-English speakers have access to the civil case, but they might need to pay for interpreters to present their evidence and witnesses. A member said when there is a non-English speaking party, there may be a need for more than one interpreter at trial: one to tell the party what is going on and one to help the party communicate privately with the party's lawyer.
The Chair said one purpose of the earlier interpreter rule changes was to make sure the court itself provided an objective interpreter rather than relying on party hired interpreters who could put a spin on the testimony or debate with the witness about what the witness meant to testify. Staff said the proposed rule changes were intended to give fair notice that the court system could seek reimbursement for court provided interpreters when the parties were able to pay. Staff said that the proposed language in the administrative rule, beginning at line 8 on page 137, set out a fairly extensive list of situations where the courts would provide interpreters at no cost.
Judge McCullough MOVED to adopt the proposed amendments to Administrative Rule 40. Mr. Hoy seconded.
A member said that the main issue the committee had been wrestling with is whether requiring reimbursement for a court provided interpreter would prevent access to the court for anyone. The member said that in civil cases, the parties for the most part have access to the court and have the funds to pay for interpreters.
Mr. Reierson MOVED to send the proposed amendments to Rule 50 back to staff to redraft so that, in a civil case, a non-English speaking party who may not have access to financial resources would be able to obtain an interpreter and have access to the court without having to reimburse payment for interpreter services. Prof. Jackson seconded.
A member said that staff should take out the specific instances listed in Rule 50 (on pages 137-138, lines 13-34) stating when the court will provide an interpreter at no cost. The member said it is fair for the courts to provide interpreters at no cost for non-English speakers without conditions.
The motion CARRIED.
The Chair said the courts were trying to develop a roster and make the system of court provided interpreters work and one of the big unknowns was how much providing interpreters was going to cost. The Chair said the courts had been absorbing the costs of interpreters in criminal cases and it was unknown how much greater the costs would be with extending interpreters to civil cases.
A member reemphasized the committee's concern that interpreter costs not be borne by witnesses and that if anyone is required to reimburse interpreter costs it should be the parties.
TRIAL COURT ADMINISTRATIVE POLICY 505 SECTION 9 REGARDING CHILD SUPPORT (PAGES 143-167 OF THE AGENDA MATERIAL)
Staff explained that the Supreme Court referred proposed amendments to Policy 505 to the committee for review and comment. Staff said the proposed amendments, which were developed by attorney James Fleming and approved by the Administrative Council, would automatically discontinue a child support obligation when the obligor is awarded primary residential responsibility. Staff said the amendments are designed to address the problem of conflicting child support orders that sometimes result when an interim order granting child support is made in one county and the matter is finally resolved in another county.
Ms. Ottmar MOVED that the committee should express its agreement with the proposed amendments to Policy 505. Judge McCullough seconded.
A member said the problem of conflicting orders often develops when Child Support Enforcement obtains a support order obligating one party but the order does not establish primary residential responsibility. Then, in a later proceeding and in a different case file, the party may seek and be awarded primary residential responsibility and child support. The member said it makes sense to have the earlier order end automatically when the new order is entered, rather than require the party to go back and move for the early order to be dissolved.
A member pointed out language of the proposed amendments reading: "This paragraph applies whether primary residential responsibility has been changed in the same civil file or a separate civil file, even if venue is a different county, as long as each order has been issued by a North Dakota court." The member said this language seemed to require that primary residential responsibility be established in the earlier case before automatic discontinuation of the child support obligation could be applied. A member suggested that the words "or established" be added after "changed" in the sentence. A member replied that this would still be ambiguous.
A member asked whether the party receiving child support is assumed to have primary residential responsibility under an interim order granting child support but not specifically establishing primary residential responsibility. A member said that the first party to request services from Child Support Enforcement becomes the party who receives the child support order unless the other party appears. The member said that courts are not able to establish
primary residential responsibility at the interim order stage.
A member said that it is not necessary to change the language of the proposal. The member said that the language is only applicable in a situation where there has been a change. A member said that a change in primary residential responsibility is implied in any case where a different child support obligor is named.
The motion to express the committee's agreement with the proposed amendments CARRIED.
The meeting adjourned at approximately 11:30 p.m. on September 26, 2014.
Michael J. Hagburg