By Chief Justice Gerald W. VandeWalle
Wednesday, January 10, 2001
"Good laws are the best legacy which one generation can leave to another."
—Governor Devine 1901
Thank you for the privilege of appearing before you to present the State of the Judiciary Message at the beginning of a new century. We have just experienced a test of our constitutional form of government, and the rule of law prevailed. I share with you some words written by Martha Barnett, President of the American Bar Association, during the heat of the past election controversy
Rather than attacking the justice system, we should be thankful that we have a system of government in which disputes can be resolved in courthouses, not in the streets. It is our long-standing tradition that when the political branches of government are unable to resolve their differences, these matters are thrust upon our courts. Interpretation of often-conflicting statutory provisions and regulatory standards is the daily work of courts in this country. Our legal adversarial system---like our free enterprise system, our democratic electoral system, and our "marketplace of ideas"---provides a cauldron for the resolution of the competing and conflicting views, which characterize our democracy. Rather than resorting to name-calling and slurs of lawyers and the court, we should remember their role in insuring that the Rule of Law is honored. Our system of government, founded on the Rule of Law, is the envy of the world. It is often complicated and messy, but it works.
After these last two months, our issues in the North Dakota Judiciary may not seem eventful. However, as our Nation and our State continue the normal operations of government, the importance of these issues will again be apparent. Let me begin.
State Assumption of Clerk of Court Functions
The Fifty-Sixth Legislative Assembly enacted legislation providing for the state assumption of clerk of court functions. Large counties were given the choice of electing state funding for clerk of court operations or funding it without state assistance. Medium size counties were given the choice of electing state funding, contracting with the state to provide clerk of court services, or funding the function without state reimbursement. Small counties with less than one full-time clerk of court had the choice of contracting with the state to provide clerk of court services or fund the function without state reimbursement.
Eleven counties have asked for state funding for clerk of court offices. Three counties have opted to fund clerk of court services from county funds. One county did not respond within the statutory deadline. The remaining 38 counties have signed agreements with the state to provide clerk of court services with reimbursement from the state for court-related duties.
Six years ago we were asked what the cost would be to fund clerk of court operations. We estimated the cost to be eleven million dollars. This has been a well-known cost and one that was known to all when HB 1275 was enacted last session.
We attempted to present a budget to you this year that was less than the eleven million projected for the last six years but were unable to do so. Unfortunately inflation, salary costs, and county contract costs add up to a total clerk of court required budget of $11,091,626.
We were given one million dollars to fund clerk of court operations for the last three months of the current biennium. This is $228,000 short of requirements. As a result, we were not able to reimburse contract counties for operational expenses in our contracts or purchase equipment for state-funded offices. If this shortfall were to continue for more than three months, we may have to consider closing offices and shortchanging contract counties money they have a right to expect under current law.
Planning and implementation are on schedule and all identified issues raised have been resolved or are under study. With the continued cooperation of the clerks of court, we expect implementation to be smooth on April 1, 2001. This venture has been more successful than I would have believed possible under the circumstances.
The North Dakota juvenile courts continue to implement an operating philosophy known as "Balanced and Restorative Justice". This philosophy represents a shift from the traditional "treatment-based system" to one that emphasizes holding juveniles accountable to victims and to the community. As such, the juvenile courts emphasize financial restitution to victims and completion of community service hours. An innovative example of this change of philosophy has been the establishment of juvenile accountability conferences. These conferences provide the opportunity for victims to explain to youthful offenders the real consequences of their actions and allow the victim a say in what sanction will be imposed on the offender. Through continued implementation of additional accountability-based programming, such as intensive tracking, electronic monitoring, and drug and alcohol testing, the juvenile courts continued to serve the people of North Dakota well.
Two years ago I reported that the Juvenile Policy Board approved developing pilot juvenile drug courts in North Dakota. Over the past year, the East Central and Northeast Central Judicial Districts were chosen as pilot sites and a planning committee under the leadership of Justice Mary Muehlen Maring began meeting to plan the juvenile drug court "model". In April 2000, the committee completed its work, and the drug courts were operational as of May 1, 2000. The preliminary reaction is most positive.
The juvenile drug court model combines intense judicial supervision, incentives, sanctions, drug testing, treatment, aftercare, and community service to intervene effectively in the lives of substance-abusing youth offenders.
The planning process has been funded through grants from the Office of Justice Programs, Drug Courts Program Office. The North Dakota Supreme Court was also awarded an Edward Byrne Memorial State and Local Law Enforcement Assistance grant to begin implementation of the pilot juvenile drug courts. Our current budget request contains a modest amount of funding to continue the operation of these courts. Federal funds were provided for planning and implementation, but they are now drying up. If these pilot programs are successful, as we expect they will be, the money we expend now will save countless dollars in the future by keeping these young people from future incarceration because of addiction.
As I reported to you two years ago, in November 1998, as part of a national project, a Public Trust and Confidence Committee, chaired by Justice William A. Neumann, was established to gauge the public perception of court systems in North Dakota. The members of the Committee represented a broad spectrum of interests and experiences. Their report has been completed.
The Committee considered information from many sources including self-represented and attorney-represented litigants, jurors, court observers, and interested citizens. After reviewing two national surveys, the Commission commissioned a statewide survey of public satisfaction with the Judicial system. The Judiciary did well in our state survey. We also asked about other state institutions so we could have a base of comparison. I am pleased to report the legislature also did well in the survey. Nevertheless, there is always room for improvement - - for both of us.
North Dakota issues were categorized into ten broad categories: public access to the courts; education and civic literacy; system process; lawyers; civility, integrity and professionalism; impact of the media; bias in the system; caring for society; jury service; and the integrity of the judiciary and the judicial process. Strategies for addressing these issues were recommended. Methods for implementing the strategies were also recommended.
After reviewing the Committee report, the Supreme Court established a Public Trust and Confidence Implementation Committee. Administrative Order 12 has been signed, committee members identified and letters of appointment have been dispatched. Justice William A. Neumann will chair the committee.
The Supreme Court has resumed a practice fairly common in the 1980s, that of having oral arguments in cities other than Bismarck. During the past year, we have had the pleasure of interacting with outstanding young people from Linton High School, West Fargo High School, Des Lacs-Burlington High School, and New Rockford High School, in addition to the annual session at the UND Law School. Students from neighboring high schools and the general public were invited to the oral arguments where space allowed. We are scheduled into 2002.
One thing that is different from the '80s, we not only hear oral arguments, we visit the classrooms and engage in discussions and answer questions asked by students and teachers. If anyone questions the dedication of North Dakota teachers or the caliber and quality of our young people, I recommend they visit our schools. We are welcomed graciously and told how much the students have learned from our visit. In truth, it is we who are energized by these fine young people.
The Gender Fairness Implementation Committee, chaired by Justice Maring, is charged by Administrative Order 7 with implementing the recommendations of the Final Report of the Commission on Gender Fairness in the Courts. During 1999, the Committee assisted in coordinating several education programs concerning bias in the courts and provided articles concerning Committee activities for publication in the Gavel, a publication of the State Bar Association. The Committee also reviewed methods used in other jurisdictions of addressing bias-related complaints and began an assessment of an informal complaint procedure for responding to such complaints. The informal complaint procedure, which drew considerable comment, has been modified, and we will institute a pilot program beginning with the judges and employees of the judicial system.
The Committee also prepared and distributed to all judges a judge's guide on how to conduct gender-fair proceedings and recommended changes to the Code of Judicial Conduct Canons.
The judiciary has implemented a project in Stark County to test the feasibility of using digital audio recording for judicial proceedings. As part of this project, all courtrooms in the courthouse are connected to the judges' chambers and the central server. Judicial proceedings are recorded in a digitized format. Using this technology, judges can enter their own personal notes on the record and have testimony available in their chambers when testimony is stored on a central server. Multiple parties can access the testimony simultaneously.
To give you an idea of where this technology could lead us, a project in the general trial courts in Tampa, Florida, allows attorneys to review portions of the digital record from their offices using the Internet. Transcripts are prepared overnight using a service bureau in Nova Scotia and the record is transmitted via the Internet. While we are not including these aspects in this pilot project, this technology provides greater accessibility to judicial proceedings and a cost effective storage format for the judicial proceeding record.
In May a pilot project began in the South Central Judicial District using interactive television to supplement court proceedings in two outlying counties. The pilot project uses ITV for selected judicial proceedings between Burleigh, McLean, Mercer, and Morton counties. This project is designed to test how ITV can enhance judicial services in more rural parts of the state. The project, chaired by the Honorable James Vukelic, is the first application of this technology in the state and follows a project inaugurated in the 9th Judicial District of Minnesota about 24 months ago. Attorneys serving on the committee are: Robert W. Martin, Bismarck; Scott Porsberg, Bismarck; Merle Torkelson, Washburn; and Jim Johnson, Stanton. Scott Porsberg chaired the Procurement Subcommittee and Bob Martin chaired the Protocols Subcommittee. The cost effectiveness of the program is being evaluated. It will be based on activity through 12/31/00. We are hopeful this technology will improve the quality of access to judicial services in rural counties. In areas where such technology is too expensive for just judicial use, we hope to work with schools, government agencies, and the community to share costs and provide a service beneficial to all.
The Judicial Branch has been actively pursuing ways that will allow the information systems used by the Judicial Branch to communicate with the information systems used by other governmental entities such as the Attorney General's Office, Department of Transportation, and some county entities. We have also begun working to give law enforcement and criminal justice agencies access to our management system for the purpose of reviewing information specific to cases. This includes personnel from police agencies, state's attorneys, Department of Corrections, and the Attorney General's Office.
We are working with several municipal courts to integrate their case management systems with that used by the Judicial Branch. These are but a few examples of ongoing projects underway to insure the most efficient and effective use of our information technology resources.
Two years ago I reported Justice Dale Sandstrom's website continues to receive worldwide acclaim. Since then it was voted by the American Association of Law Libraries as the best judicial website in the nation. In the fall of 1999, the Sixth International Court Technology Conference announced the North Dakota Supreme Court web page is the best on the web.
The project to make North Dakota Supreme Court opinions available on the web continues. Currently, cases dating back to 1988 are on the web and available for your research. We have scanned cases back to 1975 but they have to be formatted and proofed before they can be put on the web. This is a slow and laborious task. Our goal is to put all cases decided since 1950 on the web.
On April 12-14, 2000, 38 of the 43 district judges and all of the justices of the Supreme Court met in Carrington, North Dakota, to discuss long-range planning issues.
The discussion on planning priorities was led by Dr. Dale Lefever, a nationally recognized expert in judicial leadership. The assembled group identified issues for serious discussion in each of the major sections of the Trial Court Performance Standards as follows:
Access to Justice
Expedition and Timeliness
Equality, Fairness and Integrity
Independence and Equality
Public Trust and Confidence
"Better practices" were also discussed. The results of the leadership conference will provide the starting point and background for study by a newly reconstituted Judicial Planning Committee.
With the Unified Court Information System (UCIS) serving as the case management system, 30 counties are now able to track case filings on-line. The remaining counties, with the exception of Cass County which operates a separate system, have access to UCIS through the cooperation of their neighboring on-line counties. As the use of this system grows, we collate a more comprehensive summary of court data to analyze the workload of the judiciary.
We have gathered five years of caseload statistics since the unification of our county and district courts in 1995. Criminal filings have fluctuated in recent years with 1999 filings declining 4.1% from 1998, but remaining higher than 1995 levels. Civil case filings decreased 6.7% from 1998 and have shown a continued downward trend since 1995, registering an overall decrease of 8.2%. Case filings have decreased 4.2% overall since 1995.
Ralph J. Erickstad Courtroom
On July 12, 2000, the Supreme Court Courtroom was dedicated as the Ralph J. Erickstad Courtroom. Among the out-of-state dignitaries who spoke were the Honorable Robert Miller, Chief Justice of the South Dakota Supreme Court, and the Honorable H.F. "Sparky" Gierke, Judge of the U.S. Court of Appeals for the Armed Forces and former Justice of the North Dakota Supreme Court. A dedication plaque in honor of Ralph J. Erickstad was unveiled in the courtroom. The plaque reads as follows:
Chief Justice Erickstad was a leader in the unification of the state's trial courts and in the development of the judicial wing and the Supreme Court chambers of the State Capitol, which were completed in 1981. He was nationally recognized for his leadership with the Conference of Chief Justices and the National Center for State Courts. He served through appointment by President Ronald Reagan and confirmation of the United State Senate on the Board of Directors of the State Judicial Institute.
Ralph Erickstad was recognized as "the master navigator of modernization for the courts" by Retired Justice Herbert Meschke and Supreme Court Librarian Ted Smith in their superb history entitled "The North Dakota Supreme Court: A Century of Advances". This history is published in Volume 76 Number 2 (2000) North Dakota Law Review. I have been concerned that the history of the Court was being lost and am deeply grateful and indebted to Justice Meschke and Ted Smith for their detailed research and work. For those of you interested in the history of our state, I recommend the history for your reading. It contains some interesting history of legislative-judicial cooperation.
After considerable study, prompted in part by an appropriation in the 1995 Legislative Session to develop an alternative dispute resolution option for parties in dispute, the Court on December 6, 2000, adopted Rules 8.8 and 8.9, North Dakota Rules of Court. These rules recognize the importance of alternative dispute resolution ("ADR") as a tool to assist our citizens in resolving disputes in a timely and cost-effective manner and encourage parties to civil suits to participate in ADR. The rules establish mediative court-sponsored settlement conferences and domestic relations mediation as the primary form of ADR offered by the district court and encourages parties to arrange and participate in ADR in the private market as an alternative to court-sponsored ADR. A sliding fee schedule based on participants' assets and income will be applied to court-sponsored mediation services in domestic relations cases.
Our purpose is not to compete with the private ADR market but to provide court-sponsored ADR to those who have limited finances, particularly in domestic relations cases where there is the greatest need for alternatives to the adversarial method of resolving disputes.
We also approved establishment of a roster of neutrals for civil arbitration, civil mediation, and domestic relations mediation from which parties may seek a neutral.
Finally, the Court approved the petition from the State Bar Association to establish a joint committee responsible for continuing study and review of ADR in the justice system.
As most of you are aware, before a defendant can be sentenced to incarceration, the defendant must have been defended by an attorney. If the defendant is indigent and cannot afford an attorney, an attorney must be provided at state expense. North Dakota has traditionally contracted with law firms and attorneys to provide representation in each judicial district. This method of providing defense services has become more complex, difficult and costly each year. There are other methods of providing defense services such as a public defender program. It has been 26 years since the legislature last looked at alternatives to the current system. It is now time to reexamine how the required services can best be provided.
The last page of the State of the Judiciary Message book you have before you contains a draft concurrent resolution that addresses these issues. I urge your favorable consideration of this concurrent resolution.
We have struggled for some time with how to appropriately and effectively recover, or "recoup", state dollars expended in providing legal representation for indigent criminal defendants. State law requires that defendants reimburse the state, or county or city for that matter, for any funds so spent and our recoupment level traditionally is about 8 to 10 percent of the total amount spent on indigent defense. That recoupment level more or less mirrors the national average. One method of offsetting, at least in part, the cost of providing indigent defense services is to require criminal defendants to pay an application fee when they apply for indigent defense services. Approximately 15 states have now enacted legislation to implement such a fee. At the request of our Legal Counsel for Indigents Commission, the Supreme Court considered proposed legislation that would establish such a fee in North Dakota. The proposal was approved and the legislation will be before you for consideration this session.
Legislation we have prefiled for your consideration includes a bill to amend sections of the North Dakota Century Code removing now obsolete language relating to elimination of judgeships.
A bill to amend and reenact sections of the Century Code to insure temporary orders, restraining disorderly conduct, and ex parte protection orders remain in effect until terminated by the Court or a protection order is entered.
A bill to change the name of the State Bar Board to the Board of Law Examiners to remove confusion between the State Bar Association, which is the organization to which all licensed lawyers in North Dakota belong, and the Board which is established by law to examine and recommend applicants seeking a license to practice law in North Dakota.
A bill to eliminate confusion governing appeals from post-conviction relief proceedings.
In 1991 when court unification was passed, there were 53 county and district court judges. In 1995 when unification became effective, I reported in the State of the Judiciary Address on January 4, the number of judges was 48. Today we have 42 judges, a 21% reduction in ten years. The decision to eliminate vacancies became increasingly difficult, but the decision to eliminate the chamber of a sitting judge in order to reduce to 42, the legislatively requested number by January 1, 2001, was by far the most difficult. This is the last reduction the court is required to make although the court is authorized and will continue to make transfers when vacancies occur and transfers are necessary.
When court unification was passed, district court judges pay ranked 45thout of the 50 states. On July 1, 2001, North Dakota Judges will rank 50thout of 50 unless a salary adjustment is enacted. This has occurred during the period when there was a 21% reduction of judges and a resulting 26% increase in individual caseload. This is a case in which our citizens received more for less.
Our budget proposes a plan to begin to restore balance to North Dakota judicial pay. The salary of South Dakota judges is approximately 12% greater than North Dakota judges. Our plan proposes to reach the South Dakota level through a salary increase plus a small inflation adjustment over a period of two biennia. Six percent of the difference is requested this biennium, and the remaining six percent will be requested in 2003. We ask your support for equitable compensation for judges who have been asked to do more and more over the last ten years.
The number of self-represented persons in the judicial system continues to grow. Many, but not all, of these persons are needy. We are studying methods of accommodating these people without compromising the impartiality of the system.
The multi-jurisdictional practice of law ("MJP") is a big issue nationally. There are those who propose no barriers to the practice of law across state boundaries. The issue is multi-faceted and exceedingly complex. It will bear watching.
I note with sadness the deaths of William Paulson, retired justice of the North Dakota Supreme Court; Dennis Schneider, retired district judge from Bismarck; and Eugene Burdick, retired district judge from Williston. These judges served distinguished careers with the North Dakota Judiciary.
Judge Kirk Smith, district judge from Grand Forks, retired at the end of the year.
We welcome to the bench, Judge Karen Braaten, who was elected in November to the judgeship held by Judge Smith, and Judge Bruce Romanick who was elected to the judgeship in Bismarck previously held by Judge James Vukelic.
In my 1999 State of the Judiciary Message I reviewed some of the statements contained in then-Governor Devine's State of the State Message in 1899 just before the turn of the century.
Since there was no State of the Judiciary Message in those days, I went back to the House Journal for 1901 to learn that ex-Governor Devine again gave the State of the State address because Governor F. B. Fancher had become ill the previous September. Ex-Governor Devine's address was followed by the address of Frank White, the incoming Governor.
Governor Devine told the legislature:
As a nation we confidently assert that our people are among the most enlightened and progressive on the face of the earth; and you have the honor to represent the people of a state having the smallest per cent of illiteracy of any state in the union, and who are the peer of any people in the land, in patriotism, intelligence, integrity and love of equality; in truth and justice in the affairs of mankind.
He concluded with the observation that "Good laws are the best legacy which one generation can leave to another."
Governor Devine had great insight. All of us, in government and out, should strive to retain for our populace these qualities of which Governor Devine spoke. Although our institutions of government are criticized, we must only work harder to overcome cynicism and skepticism. As Governor Devine said, our citizens are the peer of any people in the land. I submit they will quickly reject what we do that is wrong but even more quickly defend what we do that is right. We can ask no more.
Thank you for allowing me the privilege to report on the State of the North Dakota Judiciary and to discuss with you some of the activity in the Judicial branch.
We wish you well as you discuss and debate the proposals to implement and protect the inalienable rights we all enjoy under the Rule of Law as established by the United States and North Dakota Constitutions.
of North Dakota
___ CONCURRENT RESOLUTION NO. ___
A concurrent resolution directing the Legislative Council to study the method of providing legal representation for indigent criminal defendants and the feasibility and desirability of establishing a public defender system.
WHEREAS, the Legislative Assembly last considered the establishment of a different method of providing indigent defense services during the 1973 and 1975 legislative sessions and the dynamics and requirements of providing those services have changed considerably since that time; and
WHEREAS, in response to litigation or increasing costs, other states have found it necessary to conduct studies or enact laws to address issues regarding the effective provision of legal representation for indigent criminal defendants; and
WHEREAS, costs associated with the indigent defense contract system administered by the North Dakota judicial branch continue to increase in greater proportion than most other costs of the judiciary; and
WHEREAS, the current indigent defense contract system poses troubling, conflict-related issues concerning judge involvement in deciding when criminal defense expenses, such as expert witnesses, should be allowed while also presiding in cases involving indigent criminal defendants;
NOW, THEREFORE, BE IT RESOLVED BY THE _______________ OF NORTH DAKOTA, THE ______________ CONCURRING THEREIN:
That the Legislative Council study the method of providing legal representation for indigent criminal defendants and the feasibility and desirability of establishing a public defender system; and
BE IT FURTHER RESOLVED, that the Legislative Council report its finding and recommendations, together with any legislation required to implement the recommendations, to the Fifty-seventh Legislative Assembly.
The Council of Presiding Judges consists of the presiding judge of each of the seven judicial districts with the chief justice as chairman. The members of the Council are: Chief Justice Gerald W. VandeWalle, Presiding Judges Benny A. Graff, Allan L. Schmalenberger, Lee A. Christofferson, John T. Paulson, Norman J. Backes, Lawrence E. Jahnke and Robert W. Holte.
The Council of Presiding Judges works primarily with caseloads and court administration. Its charter is to ensure that the business of the courts is handled with dispatch and efficiency. The Council meets at the call of the chair, normally each month. In attendance at each of the meetings is the state court administrator, the two assistant directors of the trial courts, and on occasion, the district court administrative assistants.
In the North Dakota judicial system, a system of committees has been established to develop creative new ideas and evaluate proposals for improving public services. Representative of the people of North Dakota, these advisory committees include citizen members, legislators, lawyers, district court judges, municipal court judges, and members of the Supreme Court.
Judicial Planning Committee
The Judicial Planning Committee is chaired by Justice William A. Neumann. The Committee identifies, describes, and clarifies problem areas in the judiciary. Plans are then developed and, after approval by the Supreme Court, are referred to judicial leaders and other standing committees for planning guidance.
Joint Procedure Committee
The Joint Procedure Committee is the standing committee of the Supreme Court responsible for proposing adoption, amendment, or repeal of rules of civil procedure, rules of criminal procedure, rules of appellate procedure, rules of evidence, rules of court, and specialized court procedure. Justice Dale V. Sandstrom chairs the Committee. Recent projects include new rules and amendments governing custody investigators, guardians ad litem, predeliberation discussion by jurors, appearances by attorneys not licensed in North Dakota, and ex parte applications by indigent defendants for funding. The Committee has also been working on alternative dispute resolution and is revising the North Dakota Rules of Appellate Procedure in response to the 1998 revision of the federal rules.
Joint Committee on Attorney Standards
The Joint Attorney Standards Committee was established following adoption of Administrative Rule 38 by the Supreme Court. The Committee, chaired this past year by Judge Ralph R. Erickson of Fargo, is comprised of members appointed by the Chief Justice and the Board of Governors of the State Bar Association. During 1999, the Committee submitted to the Supreme Court proposed amendments to Rule 8.4, Rules of Professional Conduct, which identified manifestation of bias as a form of misconduct, and undertook a review of issues related to client access to files, lawyer advertising, and multi-disciplinary practice.
Judiciary Standards Committee
The Judiciary Standards Committee, chaired by Brian Neugebauer of West Fargo, studies and reviews all rules relating to the supervision of the judiciary, including judicial discipline, judicial ethics, and the judicial nominating process.
Court Services Administration Committee
The Court Services Administration Committee, chaired by William A. Strutz of Bismarck, is responsible for the study and review of all rules and orders relating to the administrative supervision of the judicial system. The Committee also studied implementation of 1999 legislation providing for state funding of clerk of district court services. As part of that study, the Committee submitted to the Supreme Court a proposed rule on clerk duties and appointment.
Committee on Tribal and State Court Affairs
The Committee on Tribal and State Court Affairs was established following adoption of Administrative Rule 37 by the Supreme Court. The Committee is chaired by former Chief Justice Ralph J. Erickstad and is comprised of tribal and state court judges, tribal and state court support services representatives, and public members. It is intended to provide a vehicle for expanding awareness about the operation of tribal and state court systems; identifying and discussing issues regarding court practices, procedures, and administration which are of common concern to members of the two court systems; and for cultivating mutual respect for, and cooperation between, tribal and state courts.
Gender Fairness Implementation Committee
The Gender Fairness Implementation Committee, chaired by Justice Mary Muehlen Maring, was established by Supreme Court Administrative Order 7 to oversee implementation of the recommendations of the Supreme Court's Commission on Gender Fairness in the Courts. It is further charged with monitoring the progress of the judicial branch in eliminating gender bias in the courts. During 1999, the Committee assisted in coordinating several education programs concerning bias in the courts and provided articles concerning Committee activities for publication in the Gavel, a publication of the State Bar Association. The Committee also reviewed methods in other jurisdictions of addressing bias related complaints and began an assessment of an informal complaint procedure for responding to such complaints.
Personnel Policy Board
The Personnel Policy Board was established following adoption of Administrative Policy 106 on July 15, 1998, by the Supreme Court. This Board replaces what formerly was two boards, the Supreme Court Personnel Advisory Board and the District Court Personnel Advisory Board. The seven-member Board is comprised of one supreme court justice, three district court judges and four employees of the supreme and district courts. The Board's primary responsibilities are resolving personnel disputes; recommending to the Supreme Court for adoption policies relating to human resources, and the development of an annual salary administrative plan for the judiciary.
Court Technology Committee
The Court Technology Committee, chaired by District Court Judge Allan Schmalenberger, Dickinson, is responsible for the planning and implementation of information technology for the Judicial Branch. The Committee's coordinated efforts are responsible for consistent and efficient management of information technology resources. The Committee has been improving the service and support of the information technology systems by implementing an automated help desk system, consolidating information systems, and studying and planning for the needs of the judiciary.
During 1999, the unified court information system (UCIS) continued to evolve and grow. The Committee approved the expansion of UCIS to include a total of 30 counties. In March, the Southeast judicial district was migrated from the Barnes County AS/400 and began using UCIS on the judicial AS/400 in Bismarck. This brought the number of districts using a single, integrated UCIS database to five. The Northeast Central judicial district continues to use a UCIS installation that resides on the Grand Forks County AS/400. Our plan is to migrate the Grand Forks database in 2001 to the AS/400 in Bismarck. The East Central judicial district continues to use an alternate system, PCSS. The Committee also approved policies that made it possible for law enforcement and state's attorneys to access selected UCIS data.
The Court Technology Committee also oversaw the purchase and implementation of a statewide juvenile court system and a digital recording system that is being tested in the Southwest judicial district.
A comprehensive integration and migration analysis was performed in 1999. The result of this analysis is a technology plan which will provide general guidelines for the next five to seven years.
The Committee will continue to work towards integrated systems within the judicial branch and with other government entities in the coming years.
The North Dakota Judicial Conference is chaired by Justice Dale V. Sandstrom of Bismarck. Judicial Conference committees are active in many areas.
Committee on Legislation
The Committee on Legislation, chaired by Judge Burt Riskedahl, Bismarck, drafts, reviews, and tracks proposed legislation that may affect the North Dakota judicial system. During legislative sessions, the Committee provides weekly reports to the members of the conference on legislation that could affect judicial services.
Committee on Judicial Compensation
The Committee on Judicial Compensation, formerly the Committee on Salary and Retirement, is co-chaired by Justice William Neumann and Judge Ralph R. Erickson. The Committee monitors various proposals affecting judges' salaries and retirement benefits.
Judicial Ethics Advisory Committee
The Judicial Ethics Advisory Committee, chaired by District Judge Lee A. Christofferson of Devils Lake, provides advisory services for judges relating to judicial ethics issues. The Committee has provided all judges with an ethics manual and responds to inquiries by judges on ethics questions. The Committee also documents responses for use by all members of the judiciary.
Jury Standards Committee
The Jury Standards Committee, chaired by District Judge Robert Holte of Stanley, studies and oversees the operation of North Dakota's jury system.
The Advisory Commission on Cameras in the Courtroom is chaired by Justice Dale V. Sandstrom and was established under Administrative Rule 21, which governs electronic and photographic coverage of court proceedings. The Commission generally monitors the experience with cameras in the North Dakota Supreme Court, in district courts, and municipal courts.
The North Dakota Legal Counsel for Indigents Commission, chaired by Judge Debbie Kleven, Grand Forks, identifies and reviews issues concerning the operation of the indigent defense contract system. This biennium, the Commission reviewed the prospects for a pilot public defender system, considered issues regarding the equitable allocation of indigent defense funds, and monitored 1999 legislation affecting indigent defense services.
The Pattern Jury Instruction Commission was established by Administrative Rule 23 and is composed of six lawyer members appointed by the SBAND Board of Governors and six judge members appointed by the chair of the Judicial Conference after consultation with the Executive Committee.
The Commission, chaired by Judge John McClintock, Jr. of Rugby, has been involved in a substantive review of North Dakota's existing criminal jury instructions as well as preparing instructions for criminal offenses created by enacted legislation. The Commission is staffed by Lynn Kerbeshian, Grand Forks, who assists in research, revising, and drafting jury instructions.
The Continuing Judicial Education Commission was established under AR 36 in July 1993. The Commission is chaired by District Judge Donald L. Jorgensen of Mandan. The responsibilities of the Commission are to establish policies that effect the implementation of the mandatory education provision of the rule; develop judicial education programs for judges and court support personnel; develop and recommend a biennial budget for judicial education activities to the North Dakota Supreme Court; and develop a library of resource materials for judges and court support personnel. During 1996, the Commission requested and the Supreme Court approved expanding the mandatory education rule to include judicial referees and juvenile court directors and court officers.
The Juvenile Policy Board is implementing balanced and restorative justice as the operational philosophy to be followed by North Dakota juvenile courts. The Board is chaired by District Judge Norman J. Backes of Fargo. This approach emphasizes public safety, accountability to the victim and the community, and the development of skills which enhance the ability to become productive citizens. The juvenile court officers will focus more on involvement of the victim, insuring payment of restitution, completion of community service hours, and other outcome based programs and will be less involved in counseling or "family therapy". This policy direction is possible when the juvenile courts are part of an overall community approach to address juvenile delinquency; the problems of families; and drug and alcohol abuse. As part of this community approach, the courts work closely with many entities which have been authorized by the legislature, including the local Children's Services Coordinating Committee.
The State Bar Board was created by the 1919 Legislative Assembly to assist the Supreme Court in its constitutional responsibility to regulate the admission to practice. The Bar Board's three members must all be licensed members of the North Dakota bar. Board members are Rebecca S. Thiem of the Bismarck firm of Zuger, Kirmis, and Smith; Mark L. Stenehjem of the Williston firm of Winkjer, McKennett, Stenehjem, Reierson, and Forsberg; and Paul F. Richard of MeritCare Health System of Fargo. By statute, Penny Miller, the Clerk of Court, serves as Secretary-Treasurer to the Board.
Admission to practice in North Dakota can be based on the results of the written bar examination; five years of admission with at least four years of practice in another jurisdiction; or, within two years of application, achieving a score of 150 on the multistate bar examination (MBE), admission in another jurisdiction. However, every applicant for admission must be at least 18 years old, of good moral character, fit to practice law, and been awarded a juris doctor or equivalent degree from a law school approved, or provisionally approved, for accreditation by the ABA.
Good moral character and fitness to practice law include honesty, trustworthiness, diligence and reliability, as well as the ability to perform the obligations a member of the Bar owes to clients, the courts, opposing parties and counsel, and the public in general. The Board has petitioned the Supreme Court for a rule change permitting conditional admission when circumstances warrant it.
The Bar Board administered a two-day bar examination in July 1999.
The State Bar Board is also responsible for collecting annual license fees. In 1999, 1,856 lawyers and judges, 373 of whom were women, were licensed.
The Disciplinary Board was created in 1965 to provide for investigating, evaluating, and acting upon complaints alleging unethical conduct by attorneys licensed in North Dakota. The Rules of Professional Conduct are the primary guide for lawyer conduct, and the North Dakota Rules for Lawyer Discipline provide the procedural framework for the handling and disposition of complaints.
The Board has ten members--three non-lawyer members and seven lawyers. Richard E.T. Smith, Wahpeton, serves as chairman. The non-lawyer members are appointed from around the state by the Supreme Court from a list submitted by the State Bar Association, the Attorney General, and the District Judges Association. One lawyer member is appointed by the Supreme Court from each of the seven judicial districts. All members are unpaid volunteers. Paul W. Jacobson serves as Disciplinary Counsel and Loralyn Hegland serves as Assistant Disciplinary Counsel. Penny Miller, Clerk of the Supreme Court, serves as secretary to the Board.
How the Process Works
When a written complaint alleging attorney misconduct is received, it is filed with the Board's secretary and referred to either the District Inquiry Committee East, West, or Northeast of the State Bar Association. These committees are composed of three non-lawyer members and six lawyers, appointed by the Bar Association. The chair of the committee reviews the complaint and, if appropriate, assigns the complaint for investigation to a member of the committee or staff counsel. If the complaint, on its face, does not indicate misconduct, an investigation will not be conducted and the matter will be referred to the committee for summary dismissal. Actions available to district inquiry committees are dismissal, issuing an admonition, probation with the consent of the respondent attorney, or directing that formal proceedings be started.
Formal proceedings are begun when there is probable cause to believe that misconduct has occurred that deserves a public reprimand, suspension, or disbarment. A petition for discipline is filed by Disciplinary Counsel, and a hearing panel is appointed by the chair of the Disciplinary Board to make findings and a recommendation. Present and past members of the Board may serve as hearing panel members. Under rule amendments which became effective July 1, 1999, recommendations of the hearing panel that do not result in dismissal, consent probation, or reprimand are filed directly with the Court. The hearing panel may enter orders of dismissal, consent probation, or reprimand; however, they are subject to a petition for review that is filed with the Court.
By Supreme Court Administrative Rule, the Joint Attorney Standards Committee provides the vehicle for the coordinated, complementary, and continuing study and review of the range of issues concerning attorney standards and supervision.
In 1999, 211 new complaints were filed. A majority of the complaints alleged improper conduct. Complaints regarding incompetent representation, neglect or delay, failure to communicate with the client, conflict of interest, client funds and property, and excessive fees were also received. As of November 30, 2000, 171 files alleging misconduct have been opened. In 1999 through November 30, 2000, two attorneys were disbarred, seven attorneys were suspended, 10 (public) reprimands were issued, 27 admonitions were issued, and one admonition with consent probation were instituted, while nine consent probations were entered into. One disbarred attorney's request for reinstatement was denied.
The Judicial Conduct Commission was established in 1975 to receive, evaluate, and investigate complaints against any judge in the state and, when necessary, conduct hearings concerning the discipline, removal or retirement of any judge. District Court Judge Benny A. Graff is serving as acting chair of the Commission. The Commission consists of four non-lawyers, two judges, and one lawyer. The non-lawyers are appointed by the Governor; the judges are appointed by the District Judges Association; and the lawyer member is appointed by the State Bar Association.
The Commission's procedures are set forth in the North Dakota Rules of the Judicial Conduct Commission. Complaints alleging judicial misconduct are filed with Disciplinary Counsel, who evaluates the complaint. When a complaint is noticed for investigation, the judge has the duty to respond and has the opportunity to present any information the judge may choose. If there is substantial misconduct, formal proceedings will be instituted and a hearing will be held. The Commission may issue an admonition, with the consent of the judge. The Supreme Court must take final action on public censure, suspension, removal or retirement, or any discipline which limits the performance of judicial duties.
Ninety-two complaints were filed in 1999. Of these, 76 were against 32 district judges, three against two referees, and six were against six municipal judges. The most common complaint is with a judicial decision, which is generally a matter for appeal or further court proceedings rather than misconduct. Other common concerns are with impartiality and improper ex parte communication.