II. Meandering into the Twentieth Century
. . .
M. Age and Action
In December 1934, the average age of the justices surpassed sixty- three,(290) and the average became even older several times after that. Not long after Justice Grimson came to the Court in 1949 at age seventy,(291) Justice P.O. Sathre (1937-1938, 1951-1962), who had earlier served on the Court at age sixty-one for thirteen months, rejoined the Court in January 1951 at age seventy-five.(292) Thus, by 1954, the average age of the sitting justices reached seventy years, with three of them over age seventy.(293) Age may have affected the work of the Court during this mid-century interval.
Between 1934 and 1964, the workload of the Court withered with a depression-dampened economy that, for the Court at least, and perhaps for much of the state, persisted well past World War II.(294) In the earlier World War I era, the Supreme Court had several times written over 200 published opinions a year, peaking at 243 in 1919.(295) Thereafter, the number of published decisions gradually dwindled, reaching only ninety-four in 1934.(296) As depression-related conditions continued, the Court did as few as forty-one opinions in 1944, thirty-eight in 1947, and forty-five in 1960.(297) The output of published opinions did not again exceed one hundred for four decades until it reached 124 in 1974.(298)
During that middle third of the century, the age factor may have affected the pace of the Court's opinions despite the reduced volume. In the memory of the senior author of this account, the Court in the 1950s and early 1960s sometimes did not produce a written opinion in a case for over a year after the oral argument.(299) After 1964, however, when an opinion was not completed in a reasonable time by the assigned justice, the Court often re-assigned the case to another justice to get it completed without greater delay.(300)
Obviously, not all persons over age seventy lose their capacities to study, think, or write effectively, but common experience certainly implies that age increases the likelihood of reduced productivity. In apparent reaction to the perceived adverse effects of aging on the Court, the 1959 legislature imposed a penalty on any justice of the Supreme Court (and any district judge, too) who was appointed or elected after July 1, 1960, and who did not retire before age seventy-three. This enactment declared a judge who delayed retirement past his seventy-third birthday would "automatically waive all retirement benefits" and receive only the "judicial retirement assessment" the judge had personally contributed towards retirement.(301)
The justices' ears are still ringing from that legislative cuffing;(302) no justice since 1960 has chosen to stay in office past age seventy-two. The adverse effects of aging on performance should not affect the Court again.
In January 1963, a state senator from Devils Lake, Ralph J. Erickstad, was first elected to the Court at the relatively young age of forty,(303) and the average age of justices dropped below sixty years for the first time in three decades. By 1981, however, the number of published opinions went over 200 again, where it has been every year since.(304)
289. Rolfsrud, supra note 157, at 67.
290. See Sketch, supra note 2.
291. See Sketch, supra note 2, at 50.
292. See Sketch, supra note 2, at 48.
293. See Sketch, supra note 2, at 48 (stating that Justice Sathre was born February 7, 1876), 37 (stating that Justice Christianson was born August 11, 1877), 50 (stating that Justice Grimson was born November 20, 1878), 47 (stating that Justice Morris was born January 2, 1893), 49 (stating that Justice Thomas Burke was born October 24, 1896).
294. In 1950, Supreme Court Clerk John Henry Newton reported a contemporaneous slackening in trial work as well.
There has during the past twenty years been a decided falling off in trial work. In many counties of the state, up till the late twenties and early thirties, it was no uncommon thing to have a term continue for as long as six or seven weeks with continuous jury work. . . . Many factors have combined to produce this lack of trial work. Among others the Workmen's Compensation Act has eliminated much of the personal injury work which used to clog the court calendars. So too the Employers' Liability Act has eliminated many lawsuits . . . [by] railway employees; the carrying of liability insurance . . . and the settlement by the insurance carriers of claims without suit, even though the liability be doubtful; the building of overpasses and under passes, thus eliminating the grade crossing accidents, all are facts that have contributed to the falling off of jury work in the field of civil actions. Repeal of the national and state prohibitory laws have played their part in the falling off of criminal practice. . . . Now, even in some of the more populous counties the terms so far as jury work is concerned, will often be concluded in a matter of three or four days . . . .
J.H. Newton, Lecture No. 2 at the University of North Dakota School of Law, at 1-2 (1950) (lecture notes available in the North Dakota Supreme Court Law Library).
295. Search of West's North Dakota Reporter CD-ROM Cases database (database containing only North Dakota Supreme Court decisions).
296. See id.
297. See id. (search for records containing 1944, 1947, and 1960 in DATE field).
298. See id.
299. "A judge shall perform the duties of office . . . diligently." North Dakota Code of Judicial Conduct Canon 3 (2000). Commentary to Canon 3(B)(8) on "Adjudicative Responsibilities" explains: "Prompt disposition of the court's business requires a judge to devote adequate time to judicial duties, to be punctual in attending court and expeditious in determining matters under submission, and to insist that court officials, litigants and their lawyers cooperate with the judge to that end." (emphasis added).
300. See, e.g., State v. Glavkee, 138 N.W.2d 663 (N.D. 1965) (opinion of the Court by Strutz, J., on reassignment); Bismarck Baptist Church v. Wiedemann Indus. Inc., 201 N.W.2d 434 (N.D. 1972) (opinion of the Court by Strutz, C.J., on reassignment). During that eight-year period, at least 42 opinions were issued "on reassignment" by a full court without a dissent or concurrence, where the reassignment does not appear to have been made for another possible reason. Search of West's North Dakota Reporter CD-ROM Cases database (database containing only North Dakota Supreme Court decisions) (search for records containing "on reassignment"). Some other opinions on reassignment may reflect divided views on the Court or the belated absence of one or more justices due to disqualification or vacancy.
301. 1959 N.D. Laws ch. 254, § 1, at 424. Also see continued codification of the age penalty at section 27-17-01(1) of the North Dakota Century Code for judges "eligible for retirement hereunder." (emphasis added). All Supreme Court justices in office today, however, qualify for retirement under the public employee retirement system (P.E.R.S.) rather than under section 27-17 of the North Dakota Century Code.
302. A like penalty for failure to retire by age 73 had been imposed on judges and justices under P.E.R.S., see 1973 N.D. Laws ch. 246, § 12, but was quietly repealed, see 1977 N.D. Laws ch. 499, §17. The main incentive to retire under P.E.R.S. lies in the diminished multiplier after twenty years of judicial service. See N.D. Cent. Code § 54-52-17(4)(b)(1) (1989).
303. See Sketch, supra note 2, at 54.
304. Search of West's North Dakota Reporter CD-ROM Cases database (database containing only North Dakota Supreme Court decisions).