North Dakota ICWA Case on Qualified Expert Witness

Here: Interest of K.S.D. and J.S.D., 2017 ND 289

The lack of qualified expert testimony on whether the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child leaves this record without evidence necessary for the district court to find the State established the ICWA requirement by proof beyond a reasonable doubt. 25 U.S.C. There is a line of authority that upholds termination of parental rights absent an ICWA qualified expert witness. We choose to follow the other branch of authority because the United States Code and the United States Code of Federal Regulations require—and do not merely suggest—that a qualified expert witness testify on the ICWA requirements in all ICWA terminations.

 

(Unrelated, one has to love a Court that only allows opinions to be downloaded as WordPerfect documents. That’s commitment.)

North Dakota SCT Declines to Terminate the Special Provision of Legal Services Order

Here is the court’s order in In the Matter of a Petition to Terminate the Special Provision of Legal Services by Qualified Attorneys From Outside North Dakota:

20160436_op_Petition to Terminate Special Provision of Legal Services

Prior post here.

Request from WPLC Regarding N.D. Petition to Rescind Special Provision

Dear Law School faculty:

I am an attorney associated with the Water Protectors Legal Collective (WPLC), the legal assistance project which has been assisting the Standing Rock Tribe and its supporters protesting the Dakota Access Pipeline in North Dakota.  I’m writing together with Elana Gold, a law graduate working with WPLC, to ask you to consider signing the statement below which will be transmitted to the North Dakota Supreme Court.

In January, the North Dakota Supreme Court granted Special Provisions allowing qualified attorneys from outside North Dakota who are not members of the North Dakota bar to provide pro hac vice legal services in North Dakota representing defendants charged as a result of protest activities connected to the Dakota Access Pipeline.  Just days ago the Presiding District Judge of the South Central Judicial District where DAPL cases are pending, Hon. Gail Hagerty, petitioned the Supreme Court of North Dakota to terminate the Special Provisions the Supreme Court ordered on January 18, 2017 allowing out of state attorneys to represent protesters supporting the Water Protectors.  The Supreme Court initially adopted the provisions to ensure the constitutional rights of these defendants because there is limited access to legal resources in North Dakota. Revoking this provision would be a blow to the rights of defendants.   (Click here to see a copy of the Petition to Terminate the Special Provision.)

The North Dakota Supreme Court is allowing comment on the proposal until Monday October 2nd at 4 p.m.  Over 175 law school faculty from around the United States signed a comment in December 2016 in support of granting the original Special Provisions.  WPLC asks you to now consider signing a comment in opposition to the Petition of Judge Hagerty and the Judges of the South Central Judicial District to terminate the Special Provision allowing out-of-state attorneys to represent protesters.  If you are willing to sign the statement below, please send your name, faculty title, and the name of your institution to Elana Gold at elanagoldlaw@protonmail.com on or before Monday October 2nd at Noon Central Daylight time (1pm Eastern, 10am Pacific).  Please share this request with colleagues at your school.  Thank you for your support.

Respectfully,
Terry Janis
Executive Director
Water Protector Legal Collective


To:       Hon. Justices of the Supreme Court of North Dakota
c/o Penny L. Miller, Esq., Clerk of the Supreme Court
Judicial Wing, First Fl.
600 E. Boulevard Ave.
Bismarck, ND  58505-0530

Re:       In the Matter of a Petition dated September 11, 2017
to Terminate the Court’s Special Provision Adopted
January 18, 2017 to Allow Qualified Attorneys Not Licensed in
North Dakota to Provide Legal Services to Defendants
Charged As a Result of Protest Activities connected to
The Dakota Access Pipeline

We are law school faculty from throughout the United States.  We urge the North Dakota Supreme Court to continue to allow qualified attorneys admitted in other jurisdictions to practice temporarily in North Dakota in order to protect the constitutional rights of those arrested in connection with their opposition to the Dakota Access Pipeline. To this end, we oppose the Petition to Terminate the Special Provision of Legal Services by Qualified Attorneys from Outside North Dakota.

The circumstances that created the initial need for this provision remain critical. Over 800 arrests were made during the Water Protector camps at Standing Rock. As of September 11, 2017 some 150 defendants remained unrepresented and over half of the 800 cases are still unresolved. As these cases rapidly move to trial, it is evident that the number of criminal defense attorneys licensed in North Dakota and available to represent these defendants is inadequate. It would be an affront to fundamental fairness and due process to allow some Water Protectors access to pro hac vice attorneys while denying it to the second half of defendants.

We are concerned that under these circumstances the rights guaranteed the defendants by the state and federal constitutions cannot be upheld. The right of both indigent and non-indigent defendants to adequate and effective counsel undergirds the guarantees of a fair and speedy trial, due process, and equal protection that constitute the cornerstones of the rule of law. The Court can protect these foundational principles and preclude the time and expense of years of subsequent litigation should these defendants be denied their constitutional rights by denying this proposed Petition.

For these reasons we ask the Court to deny the Petition to Revoke dated September 11, 2017 and urge the Court to ensure that all persons arrested and charged in North Dakota have access to adequate and effective legal representation.

Respectfully,
[NAMES OF LAW FACULTY]

“ND Judges Trying to End Program Allowing Out-of-State Lawyer to Represent Water Protectors” UPDATE: Notice of Comment – Petition to Terminate the Special Provision of Legal Services

From Democracy Now, here.

Update with Notice of Comment (docs here, too)

20160436_O2

20160436_ptf2

North Dakota SCT Awards Attorney Fees to Defendants in Indian Country Tort Claim Brought in State Court

Here is the opinion in Tillich v. Bruce.

An excerpt:

Don Bruce, Vinier Davis, and Linda Davis (“Defendants”) appeal from a judgment granting their motion to dismiss and denying their request for attorney fees. We reverse the district court’s denial of the Defendants’ request for attorney fees under N.D.C.C. § 28-26-01(2) and remand for calculation of attorney fees based upon accepted factors and order the district court award attorney fees to the Defendants.

Briefs:

1. Tillich v. Bruce – Appellee Brief
Abstract: Argument date: Oct. 2016. Topic: Torts (Negligence, Liab., Nuis.). Judge: Hon. M. Richard Geiger.

 

2. Tillich v. Bruce – Appellant Brief
Abstract: Argument date: Oct. 2016. Topic: Torts (Negligence, Liab., Nuis.). Judge: Hon. M. Richard Geiger.

 

3. Tillich v. Bruce – Reply Brief
Abstract: Argument date: Oct. 2016. Topic: Torts (Negligence, Liab., Nuis.). Judge: Hon. M. Richard Geiger.

Order from North Dakota Supreme Court Regarding Out of State Lawyers

Here. This order is issued after receiving more than 16,000 comments on the proposed temporary rule, which was in response to the large number of arrests during the DAPL protests late last year (and which are ongoing–law enforcement clashed with water protectors over the MLK weekend). The full order is worth reading, but here are the requirements:

In criminal cases pending in the South Central Judicial District arising from arrests made during the protests of the Dakota Access Pipeline between August 1, 2016 and until further order of this Court, a lawyer authorized to practice law in another state, and not disbarred, suspended or otherwise restricted from practice in any jurisdiction, may provide legal services in North Dakota on a temporary basis. The legal services must be provided on a pro bono basis, without payment or the expectation of payment of a fee. This Order does not prohibit a lawyer providing legal services under authority of this Order from being reimbursed from nongovernmental funds for actual expenses incurred while rendering services under this Order. The following requirements, processes and procedures shall apply:

1) The lawyer seeking pro hac vice admission must complete a form available through the Clerk of the Supreme Court and file it with the North Dakota State Board of Law Examiners;

2) The lawyer seeking pro hac vice admission must file the above referenced form with a certificate from his or her resident state licensing authority certifying the lawyer is admitted, currently licensed, eligible to practice and in good standing;

3) The lawyer seeking pro hac vice admission must associate with a licensed North Dakota lawyer as required under N.D. Admission Prac. R. 3. We excuse the requirement that the North Dakota associate lawyer appear in-person and remain in court for all proceedings unless the district judge presiding in the case enters an order, based on a case-specific reason, requiring the presence of the North Dakota associate lawyer;

4) The pro hac vice filing fee is waived;

5) Upon receipt of the completed form and required materials, the North Dakota State Board of Law Examiners will provide the lawyer seeking pro hac vice admission an identification number that must be included on all pleadings filed with any court regarding these matters;

6) Each business day the Clerk of the Supreme Court shall provide the Court Administrator for the South Central Judicial District with a listing of all lawyers who have been granted pro hac vice admission as provided in this Order;

7) Lawyers admitted pro hac vice must access the North Dakota Odyssey electronic case management system through the associate lawyer unless the associate lawyer does not subscribe to North Dakota’s Odyssey case management system. If the associate lawyer does not subscribe to Odyssey case management system, the lawyer admitted pro hac vice may email filings to the clerk of court;

8) The lawyer admitted pro hac vice under this Order is not by virtue of that admission limited in the number of appearances or representations he or she can make regarding these matters;

9) The lawyer admitted pro hac vice under this Order must remain licensed and in good standing in the lawyer’s state of licensure, and must verify in writing to the North Dakota State Board of Law Examiners no later than January 5, 2018, their licensure  status and provide a listing of pending cases for which they are acting under this Order; and

10) Any allegations of misconduct by a lawyer admitted pro hac vice under this Order that is reported to the Disciplinary Board of North Dakota will be provided to the lawyer’s state of licensure, and may be grounds for revocation of pro hac vice admission under this Order.

Indian Law Firms’ Letter to N.D. Supreme Court Re DAPL Arrestees’ Right to Counsel

Downloads(PDF): 12.29.2016 – Comment Letter re Emergency Petition – Misc Attorneys an Firms across countryAPB Co Comment Letter North Dakota Supreme Court December 2016

Link: “Debate generated by petition for expanded legal representation” by Caroline Grueskin from the Bismarck Tribune,

Previous posts: N.D. Supreme Court Accepting Comments Until December 30th on Proposed Temporary Rule to Allow Out of State Lawyers PracticePetitioners Request Out-of-State Lawyers Be Allowed to Represent Protesters

N.D. Supreme Court Accepting Comments Until December 30th on Proposed Temporary Rule to Allow Out of State Lawyers Practice

This temporary rule would allow out of state attorneys to practice in North Dakota so long as the “judicial emergency” (i.e., representing those water protectors who have been arrested) ends.

Notice here. Send comments to supclerkofcourt@ndcourts.gov

Anyone can and should comment. Generally speaking, comments from N.D. barred lawyers in support of this rule would be very helpful. Comments out-of-state lawyers who would practice under this rule would be also helpful. Short comments from non-lawyers in support of the rule would also be good, and especially from those who live in-state.

Proposed rule here.

A lawyer authorized to practice law in another United States jurisdiction, and not disbarred, suspended from practice, or otherwise restricted from practice in any jurisdiction may provide legal services in this jurisdiction on a temporary basis. The legal services must be assigned and supervised through the North Dakota Bar Association, which shall adopt an admission application substantially comporting with that used by the United States District Court for the District of North Dakota.