N.D. Supreme Court throws out protection order after finding abuse counselor acted as attorney
BISMARCK – The state Supreme Court has thrown out a protection order between an estranged husband and wife after finding that a domestic violence counselor for the Rape and Abuse Crisis Center in Fargo essentially acted as the wife’s attorney at a recent hearing in the case.
The case was appealed to the Supreme Court by the husband, Leon Francis, who after an episode of domestic violence was prohibited by the lower court from having contact with his wife and all but supervised visits with their children.
In his appeal, Francis objected to the lower court allowing Rape and Abuse Crisis Center advocate Glen Hase to introduce evidence, make objections and question the wife, Nichole Francis, on the stand.
The lower court found that Nichole Francis showed there was either actual or imminent domestic violence and sided with her.
In its ruling Wednesday, the Supreme Court overturned that decision, saying the lower court abused its discretion in allowing Hase so much scope of activity in the courtroom.
Under administrative rules of the court, advocates are allowed to help a petitioner fill out forms, sit with them during proceedings and make some statements to the court – but not to the extent East Central District Judge William McCullough permitted, the high court stated.
“Hase’s participation exceeded that permitted by this Court’s administrative rules … the district court essentially treated Hase as Nichole Francis’s attorney,” Justice Daniel Crothers wrote in the court’s decision.
Hase objected on Nichole Francis’s behalf when Leon Francis asked for the hearing to be postponed to a later date, Crothers wrote.
She also conducted Nichole Francis’s direct and redirect examination in court.
The higher court reversed McCullough’s decision and awarded Leon Francis a new hearing.
In a concurring decision, Justice Dale Sandstrom wrote that the administrative rules established for domestic violence advocates weren’t intended to allow them to speak for victims in court or otherwise practice unauthorized law.
Sandstrom stated that judges and referees can do a lot to avoid that kind of excessive participation through “neutral engagement,” or clarifying, questioning and explaining things in court.
An official for the Rape and Abuse Crisis Center declined to comment.