|N.D. Supreme Court|

Gender Fairness Implementation Committee

Gender Fairness Implementation Committee
Supreme Court Conference Room, Bismarck
May 18, 2006

Members Present

Justice Mary Muehlen Maring, Chair
Pat Durick
Jim Fitzsimmons
Judge Burt Riskedahl

Members Absent

Judge Debbie Kleven
Barbara Voglewede

 Chair Maring called the meeting to order at 8:00 a.m. and drew Committee members' attention to AttachmentB (May 15, 2006)- the draft questionnaire for judges and judicial referees.

 Staff explained that the judge questionnaire format essentially follows the format and question structure used for the questionnaires previously distributed to lawyers. He said the questionnaire differs in providing "lead-in" information about Commission findings as a reference point for comparative answers. Additionally, he said questions were added concerning general judicial system environment, awareness of the informal complaint process established under Administrative Rule 44, judicial intervention, and the domestic violence protection order process. The latter two question areas, he said, were added to solicit opinions on subjects identified in discussion groups.

 Chair Maring then requested comments concerning the draft questionnaire.

 Pat Durick suggested adding an encouragement to provide examples, where appropriate, when a judge is responding to questions.

 Justice Maring suggested the questionnaire should also be distributed to surrogate judges as many of them have had recent experience on the trial bench. Other Committee members agreed.

 With respect to the questions concerning the domestic violence process, Jim Fitzsimmons observed that in his 20+ years of experience as a lawyer he has rarely seen a process that was so well intended at the outset devolve so obviously into a counterproductive and disconnected system. He said the obvious original intent of the domestic violence statutes and process was to provide protection for victims but it has instead become a system and process marked by hurried judges, scared victims, and 20-minute hearings. He said protection order cases are appealed to the Supreme Court and sometimes reversed because there were no findings concerning domestic violence, and there were no findings because it is likely that there was too little time available for the judge to adequately consider the case. He said the protection order process seems to have become a somewhat dysfunctional system with little management, which has often resulted in protection orders being sought for trivial reasons, such as a raised voice. He said the domestic violence advocacy community bears some responsibility in allowing the process to become trivialized to some degree and counterproductive. He cautioned that until the dysfunctions in the process are addressed, the process will continue to be a source of aggravation for those who think the system is biased. The difficulties in the process, he said, also risk aggravating relationships between programs that should be working together. He suggested, and other Committee members agreed, that the domestic violence related questions should be clarified to ensure the questions are about the protection order process itself. Additionally, with respect to Question 3 on page 4, which asks for opinions about whether the process is used for purposes other than what is intended, he asked whether it would be possible to elaborate on what the original intentions of the process were.

 Noting that the third set of questions combine questions on the topics of domestic law and domestic violence, Justice Maring suggested the topics should be separated as the dynamics in each area are quite different. Additionally, she observed that a recurrent issue in the discussion groups was that the protection order process was inequitable - a lawyer or advocate is often involved on one side, typically the petitioner, and similar assistance is generally not available for the other side.

 Staff noted that Question 2 on page 4, in asking whether the process equally serves both parties, may solicit opinions about whether the system is viewed as unbalanced.

 Jim Fitzsimmons explained that filing of an affidavit to present testimony in response to a petition is often required in courts in certain areas of the state but not others. In situations where an affidavit is required, he said, the ability of an unrepresented respondent to address the court may be foreclosed if the affidavit is not filed, which seems inconsistent with general notions of due process.
 Justice Maring observed that some questions have lead-in information from the Commission's Final Report and suggested that similar lead-in information be included with the domestic violence-related questions. Other Committee members agreed.

 Justice Maring described a question at a recent speaking engagement the general tenor of which was "isn't it true that in North Dakota women are favored in custody cases and men are not, even it men try hard to obtain custody". That question, she said, illustrates the persistence of a perception that the system does not operate equitably. She suggested adding a question in the domestic law section regarding whether judges think education programs have had an impact on how judges award child custody, visitation, spousal support, or property divisions.

 Jim Fitzsimmons observed that perceptions have changed somewhat in that some think that if all things are equal there is an equal opportunity for the father to obtain custody. That is not a viewpoint, he said, generally held in rural areas of the state or among lower income persons. He noted that he had recently spoken at a meeting in which all of the participants were women and the operation of the court system was being discussed. He said a comment was made that generally a woman will obtain custody of children unless the man has the financial resources and desire to seek custody, in which case the man will always be granted custody. He said there was general agreement with the comment. He said it appears that one of the enduring perceptions among minority women and those in the lower middle class is that the person with the greater financial resources will inevitably win in court.

 Justice Maring said the system may be changing but it appears generally to be the case that men will have greater financial resources, higher incomes, and will hold the majority of the assets, which may translate into a gender issue in how cases are ultimately resolved.

 With respect to the general structure of the questionnaire, Judge Riskedahl said the questionnaire seems well-developed and permits respondents to expand on answers if they wish. He noted that all of the questions deal with specific issues and suggested that a general question could perhaps be added near the end that would solicit opinion on any other related topic that a respondent might think appropriate to mention. Committee members agreed a general question should be included at the end of the questionnaire.

 In response to a question from Justice Maring, Judge Riskedahl agreed questions concerning domestic law and domestic violence should be set out in separate sections since there is a different calculus at work in considering the cases. Other Committee members agreed there should be two categories of questions.

 Judge Riskedahl suggested the first page of the questionnaire could be revised slightly to more energetically engage the interest of those responding and perhaps increase interest in responding. Staff noted that a cover memorandum has been prepared that more directly expresses the importance of the project and the need for thoughtful responses.

 Justice Maring noted some additional changes to the questionnaire and will provide them to staff.

Ten Year Assessment - Draft

 Committee members next reviewed the general structure and content of a preliminary draft of the 10 Year Assessment Report. Staff said initial questions concerning the structure of the draft are whether the general content is satisfactory, whether the structure is appropriate, and whether responses from those who answered questionnaires and participated in discussion groups are adequately and accurately used in the Report.

 Justice Maring drew attention to a Progress Report developed by the New York Judicial Committee on Women in the Courts. With respect to using survey responses, she noted that the Report often sets out responses in a manner such as "one lawyer who provides back up services to domestic violence attorneys analyzed this problem from her vantage point and said ...." or one administrative judge with considerable experience in criminal law believes ... ". She suggested a similar format be used in the Assessment Report to the extent possible. She also said data should be included concerning the number of questionnaires that were distributed, the number of responses, and the number of participants in the various discussion groups. Committee members agreed with the suggested additions to the draft Assessment Report.

 With respect to the structure and content of the preliminary report, Committee members agreed the draft is generally satisfactory. Staff said suggested additions will be made and the draft will be supplemented with employee responses, responses from judges, referees, and surrogate judges, and additional information from the discussion group meetings.

Next Meetings

 Chair Maring explained that the Committee's 10 Year Assessment Report will be part of the fall Bench & Bar Seminar, which is scheduled for September 14-15. In light of that timeframe, Committee members agreed meetings should be scheduled for approximately mid-July and mid-August at which revisions to the draft report will be reviewed and the report finally approved.
There being no further business, the meeting was adjourned at 9:35 a.m.

Jim Ganje, Staff