N.D. Sup. Ct.: A Century of Advances: Ch. III.B. Court Unification

III. Modernizing in the Twentieth Century
. . .
B. Court Unification

The other major development in modernizing the judicial system was trial court unification.

Chief Justice Ralph J. Erickstad The characteristics of a unified system were advocated to the legislature as early as 1975 by Chief Justice Erickstad by quoting the American Bar Association's Standards of Judicial Administration. Simplified here, those standards called for a judicial system with (a) uniform jurisdiction; (b) simple jurisdictional divisions; (c) uniform dispensation of justice through systemized rules of administration and procedure, continuing judicial conferences and education, and consistent policy administration; (d) clearly vested policy-making authority; and (e) clearly established administrative authority.⁽⁴³⁴⁾ A few years later, praising the people's 1976 approval of the new judicial article authorizing a unified judicial system, Chief Justice Erickstad explained: "A unified judicial system is intended to be a single provider of court services. A unified system is one that is accountable for quality services delivered in an efficient and effective manner."⁽⁴³⁵⁾ Those precepts clearly guided Chief Justice Erickstad's enormous efforts to improve the entire system.

1. 1961: Abolishing Justices of the Peace

Changing the structure of the trial courts actually began earlier when the 1959 legislature abolished justices of the peace.⁽⁴³⁶⁾ Justices of the peace had been instituted in the 1889 Constitution, which also empowered the legislature to abolish the positions.⁽⁴³⁷⁾ Justices of the peace had limited jurisdiction, were rarely law trained, and were paid from the fees they collected, a practice the United States Supreme Court had condemned as unconstitutional three decades before.⁽⁴³⁸⁾

Effective July 1, 1961, the legislature replaced justices of the peace with several categories of law-trained county judges, including county justices and county judges with increased jurisdiction.⁽⁴³⁹⁾

2. 1967: Electing the Chief Justice

Another major step in unification was the legislature's change of the method for selecting the Chief Justice from a regular rotation among all the justices to an election by all the judges in the system.

The 1889 Constitution directed that the Supreme Court "judge having the shortest term to serve, not holding his office by election or appointment to fill a vacancy, shall be chief justice . . . ."⁽⁴⁴⁰⁾ When the Court was expanded from three to five members by a constitutional amendment in 1908, three judges had to be elected in 1910 for identical six-year terms. Anticipating these three justices would have identically short terms between 1914 and 1916, the 1909 legislature directed the Chief then be selected by the justices from among themselves, but that law otherwise left the rotation system in place.⁽⁴⁴¹⁾

Later, all justices' terms were extended from six years to ten years and also staggered by a 1930 constitutional amendment implemented with the 1934 general election.⁽⁴⁴²⁾ The rotation method of selecting the Chief Justice worked again and remained in place.⁽⁴⁴³⁾

After an interim study on amending the judicial article, the Legislative Research Committee (LRC) recommended the 1965 legislature amend the relevant section of the Constitution to say: "The Chief Justice shall be selected as provided by law."⁽⁴⁴⁴⁾ The LRC Report also submitted a companion bill to authorize the Judicial Council to select the Chief Justice because the Committee "believed that these individuals would have better knowledge of the qualifications of the judges for this position."⁽⁴⁴⁵⁾ The membership of the Judicial Council comprised "all of the active and retired supreme and district court judges; one county judge; the attorney general; the dean of the School of Law; and five members of the State Bar Association."⁽⁴⁴⁶⁾

When the proposed 1965 amendment to the Constitution failed,⁽⁴⁴⁷⁾ the next interim LRC Report recommended the 1967 legislature authorize the Judicial Council to "appoint" the Chief Justice. The 1967 report explained why:

When the position revolves every two years, there is a lack of experience and the possibility exists that the duties of such office are not carried out or performed in the most skillful manner. The Committee believes that if the position is made more permanent a more effective administration will occur.⁽⁴⁴⁸⁾

Without explaining how that fit with the constitutional direction to rotate the position among the justices, the 1967 legislature authorized the judges of the supreme and district court to appoint the Chief Justice "from the members of the supreme court . . . ."⁽⁴⁴⁹⁾

In October 1967, the judges selected Justice Obert C. Teigen to be Chief Justice.⁽⁴⁵⁰⁾ In 1971, the judges named Alvin C. Strutz Chief Justice (1959-1973) in his place.⁽⁴⁵¹⁾ After Chief Justice Strutz died in office in June 1973, the judges elected Chief Justice Ralph J. Erickstad.⁽⁴⁵²⁾ He was regularly reelected every five years thereafter until he retired at the end of 1992 with nearly twenty years as Chief Justice.⁽⁴⁵³⁾

The modernizing move of electing the Chief Justice was made by the legislature, not the Court, much like procedural reform was begun. These legislative measures set the stage for amendment of the judicial article that implicitly approved the goal of improving the judicial system and enabled the Supreme Court to proceed with more modernization on its own.

3. 1972: Futile Efforts

The eventual amendment of the judicial article in the North Dakota Constitution grew out of legislative studies on general constitutional revision that began in the 1960s led by State Senator William R. Reichert of Dickinson, a lawyer.⁽⁴⁵⁴⁾ During 1963 and 1964, an interim LRC committee studied ways to improve the judicial article and recommended a proposal to submit to the people.⁽⁴⁵⁵⁾ All proposed constitutional measures, "while receiving very substantial support, were narrowly defeated," which the 1965-1966 LRC found "heartening."⁽⁴⁵⁶⁾ The 1967 legislature therefore continued to seek substantial revision of the judicial article, but it was again rejected.⁽⁴⁵⁷⁾

The 1969 legislature submitted the question of calling a Constitutional Convention "for the purpose of revising the Constitution of the State" to a popular vote, and the people voted for a Convention.⁽⁴⁵⁸⁾ As directed by a companion 1969 act,⁽⁴⁵⁹⁾ ninety-eight delegates were elected at the 1970 general election, and they convened at Bismarck on April 6, 1971.⁽⁴⁶⁰⁾

The Judicial Council quickly met and, on a motion by Judge Burdick, decided to draft a new judicial article "for the purpose of cooperating with the Constitutional Convention . . . ."⁽⁴⁶¹⁾ At a later meeting in 1971, the Judicial Council agreed to propose six points to the Convention for the new judicial article: (1) a Court of seven justices; (2) panels of three to decide "routine" cases; (3) "strong supervisory and disciplinary powers over lower courts" in the Supreme Court; (4) continue nonpartisan elections; (5) place authority in the Court to "redistrict the state"; and (6) make retirement at age seventy mandatory.⁽⁴⁶²⁾ Later at the same meeting, the Council studied at length a "working draft prepared by the staff of the North Dakota Constitutional Convention for the Committee on Judicial Functions and Political Subdivisions," and the Judicial Council recommended numerous technical changes.⁽⁴⁶³⁾

The Convention's committee on "Judicial Functions and Political Subdivisions" recommended a draft article for the "Judicial Department" that called for a five member Supreme Court, a unified judicial system, with power to "make rules for the government of all courts and for the procedures applicable therein."⁽⁴⁶⁴⁾ Including this new article, the Constitutional Convention recommended a complete remake of the 1889 Constitution in 1972,⁽⁴⁶⁵⁾ but several controversial features led the people at a special election on April 28, 1972 to roundly defeat the proposed revision.⁽⁴⁶⁶⁾ Wholesale revision of the Constitution was out.

4. 1976: A New Judicial Article

Before 1972 ended, the Judicial Council began studying a proposed new judicial article, prepared by the ubiquitous Judge Burdick, to ask the 1973 legislature to submit for a separate vote.⁽⁴⁶⁷⁾ Still, it took awhile. Nothing of much importance came out of the 1973 session.⁽⁴⁶⁸⁾

Overriding Chief Justice Erickstad's plea for even more study,⁽⁴⁶⁹⁾ the 1975 legislature adopted a resolution jointly sponsored by Representative William Kretchmar (a lawyer from Ashley who had also been a Constitutional Convention delegate) that salvaged the judicial article proposed by the Convention, modified it somewhat, and submitted it for a separate vote.⁽⁴⁷⁰⁾ Chief Justice Erickstad actively and publicly promoted passage of this proposal.⁽⁴⁷¹⁾ At the 1976 primary election, after more than a decade of repeated efforts, the people approved a new judicial article.⁽⁴⁷²⁾

The new article vested the judicial power of the state in a unified judicial system headed by a five-member Supreme Court with an administrative Chief Justice selected "in the manner provided by law."⁽⁴⁷³⁾ Length of residence was eliminated from the qualifications for a seat on the Court,⁽⁴⁷⁴⁾ and the Court was given complete power over procedure "to be followed by all the courts of this state."⁽⁴⁷⁵⁾ Finally, the judicial system could be renovated to fit modern expectations.

5. 1981: Unifying the Courts

The 1977 legislature, in a resolution sponsored by Senator Frank Wenstrom of Williston (who had presided over the 1972 Constitutional Convention),⁽⁴⁷⁶⁾ called for a moratorium on structural changes to the judicial system while an interim study was made of "the state's entire judicial system" for the 1979 legislative session.⁽⁴⁷⁷⁾ The interim Legislative Committee headed by Senator Howard Freed, a lawyer from Dickinson, and a Judicial Council committee worked jointly to propose legislation for the 1979 session. Lawyer Richard McGee from Minot headed a Citizen's Advisory Committee that participated in the study.⁽⁴⁷⁸⁾ The proposal called for state funding of a single-jurisdiction trial court organized by districts.⁽⁴⁷⁹⁾

Chief Justice Erickstad urged the 1979 session to implement the unified system with state funding in five phases: (1) statewide trial courts; (2) juvenile court personnel; (3) clerks of court; (4) jurors and indigent defense; and (5) incentives to improve trial court facilities.⁽⁴⁸⁰⁾ When the appropriations bill to fund statewide district courts was defeated in the Senate, "basically through opposition of the State Association of Counties," the 1979 legislature decided to study unifying the system for another two years.⁽⁴⁸¹⁾ Structural unification was delayed yet again.

The 1981 legislature began unifying the trial courts by appropriating state funds for district judges, jurors, indigent defense, and juvenile court ⁽⁴⁸²⁾ and, effective January 1, 1983, by replacing the multi-formed county courts with a single-level county court with uniform jurisdiction and law-trained judges throughout the state.⁽⁴⁸³⁾ Practice and procedure for county courts was made the same as for district courts, with direct appeals from the county courts on the record to the Supreme Court.⁽⁴⁸⁴⁾ While a number of county judges served more than one rural county, and some urban counties had more than one county judge, each had the same substantive jurisdiction.⁽⁴⁸⁵⁾

Substantial restructuring of the system had finally happened more than two decades after the first attempts to do so.

6. 1981: Judicial Nominating Committee

Since statehood, all interim judicial vacancies had been filled by appointment of the Governor at his sole discretion.⁽⁴⁸⁶⁾ For some time, the State Bar Association often informally made recommendations on the qualifications of known candidates to assist the Governor in filling a vacancy.⁽⁴⁸⁷⁾

The 1976 judicial article sought to formalize this nominating procedure. It directed a judicial nominating committee be established by law, and required the Governor to fill a vacancy from a list of candidates nominated by the committee, unless the Governor chose to call a special election for the position.⁽⁴⁸⁸⁾

The legislature was in no hurry. Not until 1979 did it act. Then it passed House Bill 1067 creating a nine-person committee, with three members to be appointed by each of the Chief Justice, president of the State Bar Association, and the speaker of the House of Representatives.⁽⁴⁸⁹⁾ Governor Arthur A. Link vetoed it.⁽⁴⁹⁰⁾

The Governor explained the 1977 legislature had failed to establish the committee as the Constitution directed, but that he had carried out "the intent of the Constitution by creating judicial nominating committees by executive act when vacancies occurred in the offices of a district judge and a supreme court justice."⁽⁴⁹¹⁾ Governor Link's reference to filling a Supreme Court vacancy was his appointment of then First Assistant Attorney General Gerald W. VandeWalle (elected Chief Justice in 1993) on August 15, 1978, to replace Justice Robert Vogel, who had resigned to move to Grand Forks to teach and practice law.⁽⁴⁹²⁾ Governor Link declared H.B. 1067 "not acceptable because the Governor has been excluded from the bill as an appointing authority for members of the nominating committee."⁽⁴⁹³⁾

Finally, in 1981, the legislature got it right by establishing a six-person committee to recommend candidates for judicial vacancies. Two members of the committee are appointed by each of the Governor, the Chief Justice, and the president of the State Bar Association, and each official also appoints an additional temporary member from the affected judicial district to nominate candidates for a district-judgeship vacancy.⁽⁴⁹⁴⁾

Since 1981, appointments from a committee-recommended list of qualified candidates have been made by successive Governors Allen I. Olson,⁽⁴⁹⁵⁾ George Sinner,⁽⁴⁹⁶⁾ and Edward T. Schafer.⁽⁴⁹⁷⁾ But the November 1984 election of Governor Sinner over sitting Governor Olson precipitated conflict over appointments to fill two vacancies that came soon after the election.

7. 1985: Dueling Governors

In early 1985, the Judicial Nominating Committee wisely sidestepped a dispute between the two Governors over filling two sudden vacancies.

Soon after the November 1984 general election, Justice Vernon R. Pederson announced his retirement effective January 7, 1985.⁽⁴⁹⁸⁾ As the Committee began accepting applications for nomination to that post, Justice Paul M. Sand died on December 8, 1984.⁽⁴⁹⁹⁾ The Judicial Nominating Committee invited applications and scheduled its meeting to interview applicants for both positions on Thursday, January 3, 1985.⁽⁵⁰⁰⁾

Governor Sinner filed his oath of office on December 31, 1984, and asserted his term began on January 1, 1985. Governor Olson, who had filed his oath of office four years before on Monday, January 6, 1981, claimed his term of office extended to the first Monday in January of 1985, the seventh day of the month, since the Secretary of State's Certificate of Election declared Sinner elected Governor for a four-year term "commencing on the first Monday in January 1985."⁽⁵⁰¹⁾

On January 2, 1985, the newly elected Attorney General, Nicholas Spaeth, asked the Supreme Court to exercise its original jurisdiction to decide which one was truly Governor that week.⁽⁵⁰²⁾ With the Committee expected to report its nominations on January 3 or 4, the Court scheduled an immediate hearing for the morning of Friday, January 4 to resolve the dispute over which governor had the constitutional authority to fill both vacancies on the Supreme Court.⁽⁵⁰³⁾ Justices Pederson, VandeWalle, and Gierke disqualified themselves, and four presiding district judges were called to sit temporarily on the Supreme Court with Chief Justice Erickstad to decide the case.⁽⁵⁰⁴⁾

On the morning of January 4, the Nominating Committee, chaired by Owen Anderson, a professor at the North Dakota Law School, delivered a list of eight candidates for the Court to both Governors Olson and Sinner.^(504A) Since the statutes authorized two to seven nominees for each vacancy, and allowed combined lists for multiple vacancies,⁽⁵⁰⁵⁾ the Committee recommended eight candidates:⁽⁵⁰⁶⁾ J. Philip Johnson of Fargo;⁽⁵⁰⁷⁾ Ward Kirby of Dickinson; Beryl J. Levine of Fargo; James Maxson of Minot; Herbert L. Meschke of Minot; Vern Neff of Williston; District Judge William Neumann of Rugby;⁽⁵⁰⁸⁾ and Rolf Sletten of Bismarck.

During the day on January 4, the Supreme Court held the hearing and issued a unanimous opinion.⁽⁵⁰⁹⁾ The Court ruled "the term of office for which Olson was elected in 1980 commenced on January 1, 1981, and terminated on December 31, 1984," and that "George A. Sinner is currently, and has been since the first moment of January 1, 1985, the Governor of the State of North Dakota."⁽⁵¹⁰⁾ On January 17, 1985, Governor Sinner appointed Justices Levine and Meschke, and they took office in early February.⁽⁵¹¹⁾

8. Election and Selection

Two members of the current Court, Justices William Neumann and Dale Sandstrom, were elected in 1992 without having gone through the Nominating Committee procedure for those positions.⁽⁵¹²⁾ Two members of the current Court were appointed by Governor Schafer from candidate lists recommended by the Nominating Committee. He appointed Justice Mary Muehlen Maring to replace Justice Levine who retired in 1996. Justice Maring was elected in 1996 to complete that term, and in 1998 reelected to a ten year term. To replace Justice Meschke, who retired in 1998, Governor Schafer appointed Justice Carol Ronning Kapsner.⁽⁵¹³⁾

Under the law establishing the Nominating Committee, its duty is to seek out and recommend "the most highly qualified" judicial candidates after inquiring into their "legal knowledge and ability, judicial temperament, experience, and moral character . . . ."⁽⁵¹⁴⁾ Since the formal inception of the Nominating Committee procedure, six of eight new justices have been selected from lists of candidates recommended by the Committee. The process has worked well.

9. Reporting to its Constituencies

Chief Justice Alvin C. Strutz started the important practice of communicating directly to the legislature.⁽⁵¹⁵⁾ His "brief report" to a joint legislative assembly in 1973 remarked on the role of the judiciary as the third branch of government, deplored "the low salaries being paid to our judges," and warned about the increasing workload for the judicial system.⁽⁵¹⁶⁾

Chief Justice Erickstad augmented and continued the legislative message as a major means of communicating with the coordinate legislative branch of government. He made a "State of the Judiciary" address to a joint legislative assembly in 1975 and to each succeeding biennial session during his tenure.⁽⁵¹⁷⁾ His messages became extensive reports on the condition of the judicial system, on efforts to find solutions to its problems, and on legislation recommended as desirable. Chief Justice VandeWalle has continued the practice.⁽⁵¹⁸⁾

While occasionally a Chief Justice or Justice had addressed the State Bar Association as far back as the turn of the century,⁽⁵¹⁹⁾ it was Chief Justice Erickstad who began and annualized the practice of formally reporting to the State Bar Association in 1975.⁽⁵²⁰⁾ Chief Justice VandeWalle has continued this equally important practice of regularly reporting to the Court's principal constituency.⁽⁵²¹⁾

Direct and regular communications with the legislature and the legal profession became important instruments for modernizing the Court and the judicial system. They will continue to be instrumental in those ongoing relationships.

10. Erickstad Era Progress

Many people helped modernize the system. Early on, leaders and members of the State Bar Association and some Justices spurred and pursued progressive changes. Still, looking back, one can see the meaningful changes came slowly, with much difficulty, and with great effort by key persons on and off the Court.

Modernization was largely accomplished by the Court obtaining complete power to make and revise rules and through implementing the constitutional change to unify the system. The contributions of one person in particular to these parallel developments stand out. The bulk of the progress took place during the three decades that Justice Ralph J. Erickstad served on the Court, and mostly during his leadership decades as Chief Justice.

Justice Erickstad backed rule-making efforts from the day he joined the Court in January 1963. He was instrumental in the second significant rule-making stage, formation of the committee to write new criminal rules in 1967. He served on that committee for the six years it took to write those rules. He chaired the criminal rules committee for nearly all of its work. Then, as Chief Justice, Erickstad presided over adoption of the rest of the new rules, as well as their ensuing improvements, refinements, and revisions.

Justice Erickstad was on the Court when legislative studies of constitutional revision began in 1963. Even more, when the proposed wholesale revision of the constitution, with its modern judicial article, was defeated in 1972, Chief Justice Erickstad became a forceful figure in rescuing the judicial article, in influencing the legislature to submit it to the people separately, and in campaigning publicly to approve it. When the people did approve the new judicial article that he championed, his patient efforts with the legislature gradually brought about implementation of the kind of unified judicial system that had been long sought by many.

Still, Chief Justice Erickstad did more than make rules and unify a jumbled system. He began, championed, and fostered many other worthwhile improvements during his stewardship of the judicial branch. Chief Justice Erickstad presided over equipping the court to do more work and to do it more efficiently; opening the Court and the judicial system to greater public accessibility; and elevating the statures of the Court, its members, and the trial court judges.

During the Erickstad Era, the Court took a number of steps to better equip itself and the system: The Court obtained funding for and recruited law clerks,⁽⁵²²⁾ and sought funding for law clerks for the trial courts.⁽⁵²³⁾ The Court developed the constitutional position of State Court Administrator, and staffed that office.⁽⁵²⁴⁾ The Court hired a Central Legal Staff of lawyers to assist justices in preparing opinions,⁽⁵²⁵⁾ and hired law-trained, professional librarians to assist in obtaining law-related materials and researching the law.⁽⁵²⁶⁾ The Court improved and increased judicial education.⁽⁵²⁷⁾ The Court fostered computerization of the judicial system for research, record-keeping, and communication.⁽⁵²⁸⁾ The Court established a commission to continuously study, prepare and publish pattern jury instructions.⁽⁵²⁹⁾

During the Erickstad Era, the Court took steps to make the judicial processes more open to public access and scrutiny: The Court established docket currency standards for both itself and the trial courts.⁽⁵³⁰⁾ The Court allowed cameras into courtrooms, first at the Court and then extended that full media access to the trial courts, too.⁽⁵³¹⁾ The Court authorized collection of interest on lawyers' trust accounts to fund civil legal services for the poor, public education on the legal system, and improvement of the administration of justice.⁽⁵³²⁾ The Court created a broad-based committee on state and tribal court relations,⁽⁵³³⁾ that bridged a chasm between two cultures in this state and that led directly to adoption of a rule for recognition of tribal court orders and judgments.⁽⁵³⁴⁾

Each of these progressive steps helped the status of the Court and judges, but Chief Justice Erickstad instigated other significant steps to improve the status of our courts. On his initiative, the Court began to hold public ceremonies to invest new judges and justices, focusing attention on the gravity of undertaking new public responsibilities.⁽⁵³⁵⁾ The Court obtained authorization for, got funding for, and built a new judicial wing on the state capitol building.⁽⁵³⁶⁾ This new judicial wing not only modernized the physical facilities of the Court, it also gave the Court more space for necessary staff to adequately administer the growing judicial system. Perhaps of equal importance, the new judicial wing brought symbolic balance in placing the judicial branch on the same physical plane in the capitol and in its own wing comparable to the other coordinate branches, executive and legislative. The judiciary thus became a visibly recognized coordinate component of government.

Our listing of other modernizing improvements is necessarily incomplete, but it illustrates the impressive extent of modernization that Chief Justice Erickstad accomplished during his leadership of the judicial system.

11. The Moving Force

How did Chief Justice Erickstad achieve so much? He did it by long hours and hard work, on low pay and with dedication, and by graciously and patiently seeking out people to help improve the judicial system.

Before election to the Court, Chief Justice Erickstad had been a State Senator from Devils Lake. He communicated well with other legislators. He did so both privately by inviting legislative leaders of both parties to his home to visit, and publicly by carefully prepared messages, communications, and committee presentations. He reached out to citizens, lawyers, and legislators to join court-related committees that were constantly encouraged to study distinct problems, to assess alternatives for solution, and to recommend actions that Chief Justice Erickstad then insisted be respectfully considered and promptly acted on by the Court.

Chief Justice Erickstad enlisted people from all over the state to improve the system. He became a consensus builder. And he then saw to it that the product of Court committees became beneficial laws, orders, and rules to run the judicial system.

Chief Justice Erickstad once explained his philosophy of public participation in a message to the legislature:

[These] standards are the product of an open and cooperative effort of judges, attorneys, and members of the public . . . . The public was represented on the committee and it was invited to participate, not only in hearings before the committee, but also before our Court prior to the adoption of the standards. We are committed to encouraging broad public interest and participation in improving court services, and we are very pleased with the contributions which these committees have made. The new open Supreme Court rulemaking process . . . is working well, considering its innovative nature. Experience with it, and further study of it by our Court Service Administration Committee will, no doubt, result in some amendments to it. It has moved us forward in our rulemaking area of endeavor.⁽⁵³⁷⁾

This broad public participation did indeed move the Court forward in modernizing judicial services during Chief Justice Erickstad's stewardship.⁽⁵³⁸⁾

Often certain persons make things happen in history. Chief Justice Erickstad was one of those. He brought the institutions of the Supreme Court and the judicial system fully into the twentieth century.⁽⁵³⁹⁾ More than any other single person, Chief Justice Erickstad must be credited with modernizing the North Dakota Supreme Court and the judicial system it serves.

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Footnotes:

434. See Chief Justice Erickstad's State of the Judiciary Address, State of North Dakota, Journal of the House 63 (44th Leg. 1975).

435. Chief Justice Erickstad's State of the Judiciary Address, State of North Dakota, Journal of the House 94 (46th Leg. 1975).

436. See 1959 N.D. Laws ch. 268, § 1, at 437.

437. See N.D. Const. art. IV, § 112 (repealed 1976).

438. See Tumey v. Ohio, 273 U.S. 510, 523, 531 (1927).

439. See 1959 N.D. Laws ch. 268 §§ 2-5, at 437-39. See generally James P. White, The New North Dakota County Justice Court, 36 N.D. L. Rev. 246 (1960).

440. N.D. Const. art. IV, § 92 (repealed 1976).

441. See 1909 N.D. Laws ch. 71, at 63; Lounsberry, supra note 1, at 447.

442. See 1931 N.D. Laws art. 46, at 578.

443. See N.D. Rev. Code § 27-0201 (1943).

444. 1965 Report of the North Dakota Legislative Research Committee 45.

445. See id. at 48; see also 1965 N.D. Laws ch. 225, at 435-41.

446. 1965 Report of the North Dakota Legislative Research Committee 48.

447. S. Con. Res. "P", 1965 N.D. Laws ch. 481 at 473-74, defeated in 1966 general election, 1967 N.D. Laws, ch. 512 at 1214-15.

448. 1967 Report of the North Dakota Legislative Research Committee 35.

449. 1967 N.D. Laws, ch. 245, § 1, at 508 (codified as amended at N.D. Cent Code § 27-02-01). The law is now clearly constitutional because, after the 1976 amendment, the judicial article now directs one of the five justices "shall be designated chief justice in the manner provided by law." N.D. Const. art. VI, § 2.

450. See Judicial Council Minutes 129 (Oct. 20, 1967) (on file with North Dakota Supreme Court Law Library). Justice Teigen was appointed to the Court to succeed Justice Grimson, who resigned in December 1958. See Sketch, supra note 2, at 52. Teigen had practiced law at Devils Lake, had been Ramsey County State's Attorney for eight years, and had been district judge from 1954. See Sketch, supra note 2, at 52. After his retirement in 1974, Justice Teigen became an Administrative Law Judge with the Social Security Administration until ill health forced his resignation from that position in February 1978. See Sketch, supra note 2, at 52.

451. See Minutes of Joint Meeting of the Supreme and District Court Judges (Oct. 23, 1970) (on file with North Dakota Supreme Court Administrator's Office) (showing Justice Strutz elected, effective January 1, 1971). Justice Strutz was appointed in April 1959 to replace Justice Nels Johnson (1954-1958), who died in office. See Sketch, supra note 2, at 51, 53.

452. See Minutes of Meeting of Supreme and District Court Judges 1 (June 20, 1973) (on file with North Dakota Supreme Court Administrator's Office).

453. See Judicial Council Minutes 4 (Nov. 23-24, 1987) (on file with North Dakota Supreme Court Administrator's Office); Minutes of Meeting of Supreme and District Court Judges (June 14, 1977 & Nov. 23, 1982) (on file with North Dakota Supreme Court Administrator's Office).

454. Senator Reichert chaired the Constitutional Revision subcommittees of the Legislative Research Committee for 1963-1964 and 1965-1966. See 1965 Report of the North Dakota Legislative Research Committee 2; 1967 Report of the North Dakota Legislative Research Committee 11.

455. See 1965 Report of the North Dakota Legislative Research Committee 45-54.

456. 1967 Report of the North Dakota Legislative Research Committee 11; S. Con. Res. "P", 1965 N.D. Laws, ch. 481, at 973-74, defeated at the 1966 general election, 1967 N.D. Laws ch. 512, at 1214-15

457. See S. Con. Res. "UU", 1967 N.D. Laws, ch. 517, at 1230-34, defeated at the 1968 primary election, 1969 N.D. Laws ch. 585, at 1244-48.

458. See H. Con. Res. 16, 1969 N.D. Laws, ch. 595, at 1278-79; approved at the 1970 primary election, 1971 N.D. Laws ch. 617, at 1333.

459. 1969 N.D. Laws ch. 462, at 991-95.

460. North Dakota Constitutional Convention, Interim Report vi (1972).

461. See Judicial Council Minutes 177 (Apr. 16, 1971) (on file with North Dakota Supreme Court Adminstrator's Office).

462. See Judicial Council Minutes 183 (Oct. 15, 1971) (on file with North Dakota Supreme Court Adminstrator's Office).

463. See id. at 186-89.

464. North Dakota Constitutional Convention, Interim Report 67 (1972).

465. See 1973 N.D. Sess. ch. 529, at 1389-1418.

466. See id. at 1418 (stating that the provision was disapproved 64,073 to 107,643).

467. See Judicial Council Minutes 207-08 (Dec. 19, 1972) (on file with North Dakota Supreme Court Administrator's Office).

468. See 1973 North Dakota Laws ch. 533, at 1422, House Concurrent Resolution No. 3017, proposed an addition to the judicial article to authorize the legislature to "provide for the retirement, discipline and removal of judges of the supreme court and district court[s]," besides use of impeachment. The people approved this overwhelmingly at the 1974 general election. See 1975 N.D. Laws ch. 606, at 1582. This authorization was also carried forward in the 1976 judicial article amendment. See N.D. Const. art. VI, § 12.

469. See Erickstad, supra note 372, at 27.

470. See 1975 N.D. Laws ch. 615, at 1598; Erickstad, supra note 372, at 27.

471. See Erickstad, supra note 372, at 27-28; see also Judicial Council Minutes 7 (June 19, 1975) (on file with North Dakota Supreme Court Administrator's Office); Judicial Council Minutes 2 (Nov. 24, 1975) (on file with North Dakota Supreme Court Administrator's Office).

472. See 1977 N.D. Laws ch. 599, at 1378-80.

473. N.D. Const. art. VI, §§ 1-3.

474. "Supreme court justices and district court judges shall be citizens of the United States and residents of this state, shall be learned in the law, and shall possess any additional qualifications prescribed by law." N.D. Const. art. VI, § 10. The three year residency requirement for a position on the Supreme Court is gone.

475. N.D. Const. art. VI, § 3: "The supreme court shall have authority to promulgate rules of procedure, including appellate procedure, to be followed by all the courts of this state; and, unless otherwise provided by law, to promulgate rules and regulations for the admission to practice, conduct, disciplining, and disbarment of attorneys at law." This plain language gives the Court complete power over all procedure.

476. See North Dakota Constitutional Convention, Interim Report vii (1972).

477. 1977 N.D. Laws, S. Con. Res. No. 4021, at 1546; see also Erickstad, supra note 372, at 29.

478. See id. at 29-30.

479. See id.; 1979 Report of the North Dakota Legislative Research Committee 105-12.

480. Chief Justice Erickstad's State of the Judiciary Address, State of North Dakota, Journal of the House 95-96 (46th Leg. 1975).

481. Erickstad, supra note 372, at 31-32; 1979 N.D. Laws, S. Con. Res. 4089, at 1963.

482. See 1981 N.D. Laws ch. 36, at 61-62. Clerks of court and courthouse facilities were left for continued funding by the counties.

483. See 1981 N.D. Laws ch. 319, at 857-72, codified at N.D. Cent. Code § 27-07.1, repealed by 1991 N.D. Laws ch. 326, § 203, at 974-1044.

484. See N.D. Cent. Code § 27-07.1-21, repealed by 1991 N.D. Laws ch. 326, § 203 at 974-1044.

485. See N.D. Cent. Code § 27-07.1-17, repealed by 1991 N.D. Laws ch. 326, § 203 at 974-1044. Twenty-six new county court judgeships resulted. "[Forty-two] counties joined fourteen multi-county agreements to share county court services. Of these, there [were] four two-county judgeships, six three-county judgeships, and four four-county judgeships." Erickstad, supra note 372, at 34.

486. See N.D. Const. art. IV, § 98 (repealed 1976).

487. In 1922, State Bar Association President Tracy R. Bangs suggested the Association poll its members "in a fair and impartial manner without politics entering into these recommendations" on judicial candidates for election. Annual Meeting of the Bar Association 47 (Sept. 14-15, 1922).

488. See N.D. Const. art. VI, § 13.

489. See 1979 N.D. Laws ch. 659, at 1630.

490. See Veto Message, 1979 N.D. Laws, at 1628-29.

491. Id. at 1629.

492. See Sketch, supra note 2, at 58, 62.

493. Veto Message, 1979 N.D. Laws, at 1629.

494. See 1981 N.D. Laws ch. 330, at 942-44 (codified as amended at N.D. Cent. Code §§27-25-01 to 27-2509)

495. Governor Olson appointed Justice H.F. "Sparky" Gierke III (1983-1992) to the position left by the retirement of Justice William Paulson (1967-1983). See Sketch, supra note 2, at 57, 63. While on the Court, Justice Gierke served as the first Vietnam Era State Commander of the N.D. American Legion, 1983-84. See Sketch, supra note 2, at 63. In that organization he also attained national leadership positions: as National Vice-Commander of the American Legion, 1985-86, and the first Vietnam Era National Commander of the American Legion, 1988-89. See Sketch, supra note 2, at 63.

496. Governor Sinner appointed Justice Beryl J. Levine (1985-1996) to the position left by the death of Justice Paul M. Sand (1975-1984), see Sketch, supra note 2, at 60, 64; Justice Herbert L. Meschke (1985-1998) to the position left by retirement of Justice Vernon R. Pederson (1975-1985), see Sketch, supra note 2, at 61, 65; and Justice J. Philip Johnson (1974 and 1992) to the position left by Justice Gierke, who resigned in 1992 to accept a presidential appointment to the U.S. Court of Military Appeals. Along with Justice Sathre, Justice Johnson shares the distinction of having served on the Court two different times, rather than continuously. For a second time, Justice Johnson was defeated for election after serving less than a year, and again returned to law practice in Fargo.

497. Governor Schafer appointed Justice Mary Muehlen Maring (1996-present) to the position left by Justice Levine's retirement; and Justice Carol Ronning Kapsner (1998-present) to the position left by Justice Meschke's retirement.

498. See Sketch, supra note 2, at 61.

499. See Sketch, supra note 2, at 60.

500. See Kevin Whalen, Court Candidates Trimmed to 8, Bismarck Trib., Jan. 4, 1985, at A1.

501. North Dakota v. Olson, 359 N.W.2d 876, 877-78 (N.D. 1985).

502. See id. at 877.

503. See Greg Sellnow, Spaeth Asks Justices for Fast Decision, Bismarck Trib., Jan. 4, 1985, at A1.

504. See Olson, 359 N.W.2d at 884.

504A. + Each governor, at different times, tried to influence the Nominating Committee's schedule. Then chairman, Owen Anderson, recalls:

I knew we had a big problem on our hands. One member of Governor Olson's staff called me and wanted me to move up the committee meeting dates. I politely refused. I knew from the beginning that, so long as we went about our business as planned, that we would have no impact on which Governor would make the selection for the two slots and that the integrity of the committee would be preserved. Sinner was on record that he regarded the Sand slot to be Olson's call, but then he changed his mind when he realized that the dates that we had selected for screening candidates would allow him to raise the issue of when he officially took office. In any event, on the day of the hearings, Sinner's appointed chief of staff, Chuck Fleming showed up with television cameras galore, demanding that we cease our meeting and defer to the wishes of newly elected Governor Sinner. I politely said that nothing that we would do would have an impact on the constitutional question that had already been raised, that we would treat both Governors equally-a decision that I had made several weeks before, and that we would choose the best candidates, regardless of partisanship. He then left and we began the interviewing process.

Letter to Herbert L. Meschke, dated October 23, 2000, from Owen L. Anderson, on sabbatical from lecturing at the University of Oklahoma Law School.

505. See N.D. Cent. Code §§ 27-25-02(4), 27-25-03 (1991).

506. See Whalen, supra note 500, at A1.

507. Johnson had served six months on the Court before, when he had been appointed by Governor William Guy in 1974 to fill the seat vacated by Justice Obert Teigen, but had been defeated for election. See Sketch, supra note 2, at 59.

508. Neumann was later elected to the Court in 1992.

509. See Olson, 359 N.W.2d at 884.

510. Id.

511. See Sketch, supra note 2, at 64-65.

512. Justice Neumann replaced Chief Justice Erickstad who retired. Justice Sandstrom won the position occupied by Justice Johnson. But Justice Neumann had been nominated by the committee in 1985 for other vacancies. See discussion, supra note 508.

513. Under a 1998 amendment to the judicial article, "[a]n appointment must continue for at least two years", and "the judge shall continue in the position until the next general election immediately following the service of at least two years." N.D. Const. art. VI, § 13(2), as added by an amendment approved June 9, 1998 (1999 N.D. Laws ch. 566, at 2103-04).

514. N.D. Cent. Code § 27-25-05 (1991).

515. See State of North Dakota, Journal of the House 66-68 (43d Leg. 1973).

516. Id.

517. See State of North Dakota, Journal of the House 58-65 (44th Leg. 1975); 89-98 (45th Leg. 1977); 93-99 (46th Leg. 1979); 129-36 (47th Leg. 1981); 123-29 (48th Leg. 1983); 118-28 (49th Leg. 1985); 159-70 (50th Leg. 1987); 76-83 (51st Leg. 1989); 87-92 (52d Leg. 1991).

518. See State of North Dakota, Journal of the House 92-95 (53d Leg. 1993); 77-84 (54th Leg. 1995); 66-69 (55th Leg. 1997); 57-63 (56th Leg. 1999).

519. Former Chief Justice Bartholomew addressed "[b]oth branches of the general assembly and a large concourse of lawyers and citizens assembled at the capitol in Bismarck," on February 4, 1901, to commemorate Justice John Marshall Day. Proceedings 1899-1904, supra note 389, at 38-46. He made one particularly striking statement: "An active, accurate, studious bar will not long tolerate an inefficient court." Proceedings 1899-1904, supra note 389, at 46.

Justice Bronson reported to the Bar Association's annual meeting at Minot on August 22, 1919, on legislation affecting the Court, the currency of the Court's docket, and administration of the courts. Annual Meeting of the Bar Association 54-57 (Aug. 21-22, 1919). Chief Justice Birdzell addressed the Bar's annual meeting in Minot on September 14, 1922, on the subject of "The Constitution and Modern Police." Annual Meeting of the Bar Association 51 (Sept. 14-15, 1922). In 1931, Chief Justice A.M. Christianson "gave an able address on the work of the North Dakota Judicial Council" to the Bar's annual meeting at Jamestown, August 18-20, 1931: "All the members of the Supreme Court . . . were in attendance and participated actively in the discussion." The Annual Meeting of the State Bar Association of North Dakota, III Dakota Law Review 421-22 (1931).

520. 52 N.D. L. Rev. 236 (1975). Later addresses may be found at: 53 N.D. L. Rev. 133 (1976); 54 N.D. L. Rev. 139 (1977); 55 N.D. L. Rev. 133 (1978); 56 N.D. L. Rev. 133 (1979); 57 N.D. L. Rev. 116 (1980); 58 N.D. L. Rev. 150 (1981); 59 N.D. L. Rev. 126 (1982); 60 N.D. L. Rev. 174 (1983); 61 N.D. L. Rev. 147 (1984); 62 N.D. L. Rev. 117 (1985); 62 N.D. L. Rev. 302 (1986); 63 N.D. L. Rev. 434 (1987); 64 N.D. L. Rev. 468 (1988); 65 N.D. L. Rev. 270 (1989); 66 N.D. L. Rev. 80 (1990); 67 N.D. L. Rev. 403 (1991); 68 N.D. L. Rev. 831 (1992).

521. 69 N.D. L. Rev. 705 (1993); 70 N.D. L. Rev. 748 (1994); 71 N.D. L. Rev. 912 (1995); 72 N.D. L. Rev. 864 (1996); 73 N.D. L. Rev. 611 (1997); 74 N.D. L. Rev. 642 (1998); 75 N.D. L. Rev. 710 (1999).

522. . In 1953, the president of the State Bar Association, E.T. Conmy, reported: "[T]he Association could not for the coming year wholly finance the salary of a Supreme Court Law Clerk as was done last year," but had agreed to contribute $1,500 towards "half-time help from a Law Clerk selected and it is hoped that the legislature will make a sufficient appropriation so that the Court will have the services soon of a full-time clerk." Annual Convention of SBAND at Fargo on August 6-8, 1953, 29 N.D. L. Rev. 377, 427 (1953). Apart from that brief, futile effort, there is no record or memory of regular law clerks before 1965.

After Justice Erickstad arrived at the Court, he advocated law clerks:

[T]he clerkship program should be placed high in priority. In 1963, the North Dakota Supreme Court had no clerkship program and there was very little interest in such a program by the members of that court . . . . In 1965, our court appeared before the Legislature requesting appropriation for five clerks; but, perhaps because of the newness of the program, the Legislature decided to start on a more modest basis and thus gave us two clerks. We have had appropriations for two clerks ever since. It is this writer's personal view that the work of the court could be greatly expedited if the Legislature would provide each interested judge with a clerk. In other words, the clerkship program would be much more successful if it were on a basis of one to one, rather than two to five.

Hon. Ralph J. Erickstad, Thoughts on Ways of Expediting the Work of Our Supreme Court, 46 N.D. L. Rev. 409, 410-11 (1970). See Appendix B for a year by year list of law clerks who have served the Justices.

523. Currently seven law clerks assist the district court judges throughout the state.

524. There have been three State Court Administrators: Calvin Rolfson (1971-1975), William Bohn (1975-1991), and Keith Nelson (1992-present), according to records in the Court Administrator's office.

525. Central Legal Staff began in 1979 with permanent employment of L. David Gunkel, who had been a law clerk in 1977-78, to assist the Court with appeals, motions, and petitions. See Chief Justice Ralph J. Erickstad, State of the Judiciary, at the Joint Session of the 47th Legislative Assembly (January 7, 1981), at 24 (condensed version appears in State of North Dakota, Journal of the House 129-36 (47th Leg. 1981). In July 1983, David Lee, who had been a law clerk in 1974-75, was added. In August 1983, Don Rysavy and Dennis Dockter, who had been law clerks previously, both joined the staff. In 1985, Jim Harris, a former law clerk and staff lawyer for the Joint Procedure Committee for three years, joined the staff for appellate work. Gary Raedeke, while serving as staff attorney for the Joint Procedure Committee, also assists with appellate work.

The following have served as staff attorneys for the Joint Procedure Committee and its predecessors: Jon Nelson, Duane Houdek, Joel Gilbertson, Keith Magnusson, David Lee, Jim Harris, DeNae Kautzmann, Keithe Nelson, and Gerhard Raedeke.

526. Joanne Dugan, hired in 1993, was the first librarian trained in law and library administration. She was succeeded in 1995 by Ted Smith. The law librarian, and other library staff, assist not only court personnel, but also government officials, attorneys and public patrons conducting legal research.

527. The Court secured a grant from the State Justice Institute to begin an annual in-state Judicial Training Institute in 1991, instead of sending judges to the National Judicial College at Reno so much.

528. Chief Justice Ralph J. Erickstad, State of the Judiciary, Joint Session of the 48th Legislative Assembly (January 5, 1983), at 8 (condensed version appears in State of North DAkota, Journal of the House 123-39 (48th Leg. 1983): "We are presently installing a computer as part of a pilot case management program here in the South Central Judicial District, under Presiding Judge Benny Graff." Access to computer-assisted legal research was implemented in 1989 for any trial judge who desired it. Today every justice and trial judge has a computer, at least one, if not a laptop as well.

529. N.D. Sup. Ct. Admin. R. 23 (effective July 1, 1987).

530. N.D. Sup. Ct. Admin. R. 12 (effective July 1, 1980).

531. N.D. Sup. Ct. Admin. R. 21 (effective July 1, 1984 and amended to extend to trial courts effective September 1, 1988).

532. N.D. Sup. Ct. Admin. R. 24 (effective July 1, 1987); N.D. Sup. Ct. Admin. R. 24.1 (adopted May 25, 1988); N.D. Sup. Ct. Admin. R. 24.2 (adopted May 25, 1988).

533. Administrative Rule 37 was effective May 18, 1994, after Chief Justice Erickstad retired, but resulted from ground work laid by him while on the Court. He has chaired the committee continuously since its creation.

534. See N.D. R. Ct. § 7.2.

535. Justice Robert Vogel's investiture ceremony was held in the Chambers of the House of Representatives at the North Dakota State Capitol in Bismarck on Wednesday, September 5, 1973. Since then, a similar ceremony has been held to invest each new justice, soon after each one took office.

536. See 1977 N.D. Laws ch. 139, at 314-16, "Construction of State Office Building," authorizing the board of university and school land to invest up to 8 million dollars to build an office building on the capitol grounds that would "conform substantially to the architecture of existing capitol buildings . . . ." Id. § 2. Section 8 "allocated a minimum of twenty-one thousand usable square feet within the office building" to the Supreme Court, and directed the building "be designed in a manner which will allow for future expansion of the building for additional supreme court space if necessary." The 1979 session authorized another $2.5 million for unspecified "additional square feet of floor space, and other fixtures, equipment, and improvements for the judicial wing and state office building." 1979 N.D. Laws ch. 203, § 1, at 446. The judicial wing on the east side of the capitol building was completed, and the Supreme Court moved into it, in 1981. Dedication ceremonies were held December 15, 1981.

537. See Chief Justice Erickstad's State of the Judiciary Address, State of North Dakota, Journal of the House 134 (47th Leg. 1981).

538. To illustrate this reliance on committee work, the forepart of Chief Justice Erickstad's printed 1989 State of the Judiciary message to the legislature, at vii, listed 17 advisory boards, commissions, and committees for the Supreme Court: Council of Presiding Judges, chaired by Chief Presiding Judge Benny Graff, Bismarck; Judicial Planning Committee, chaired by Justice Beryl J. Levine, Fargo; Joint Procedure Committee, chaired by Justice H.F. "Sparky" Gierke, Bismarck; Attorney Standards Committee, chaired by Vern C. Neff, Williston; Judiciary Standards Committee, chaired by Jane C. Voglewede, Fargo; Court Services Administration Committee, chaired by William A. Strutz, Bismarck; Personnel Advisory Board, chaired by William G. Bohn, Court Administrator, Bismarck; N.D. Legal Council for Indigents Commission, chaired by Judge Gail Hagerty, Bismarck; Coordinating Committee on Computer Installation and Programming, chaired by Justice Gierke, Bismarck; Advisory Committee on Cameras in the Courtroom, chaired by Justice Gierke, Bismarck; Civil Legal Services to Indigents Committee, chaired by Judge Joel D. Medd, Grand Forks; Joint Committee on Civil Legal Services to the Poor, chaired by Melvin Webster, Bismarck; Constitutional Celebration Committee, chaired by Justice Herbert L. Meschke, Minot; North Dakota Pattern Jury Instruction Committee, chaired by Judge Allen L. Schmalenberger, Dickinson; State Bar Board, chaired by John D. Kelly, Fargo; Disciplinary Board, chaired by Michael L. Halpern, Glen Ullin; Judicial Conduct Commission, chaired by Janet Maxson, Minot.

His 1989 message also listed eight committees of the Judicial Conference: Program Planning Committee, chaired by Judge Jonal H. Uglem, Hillsboro; Committee on Legislation, chaired by Justice Meschke; Committee on Salary and Retirement, chaired by Justice Gierke; Committee on Courts of Limited Jurisdiction, chaired by Judge Harold B. Herseth, Jamestown; Committee on Judicial Training, chaired by Judge Larry M. Hatch, Linton; Committee on Juvenile Court Procedures, chaired by Judge Norman J. Backes, Fargo; Committee on Judicial Immunity, chaired by Judge Kirk Smith, Grand Forks; Judicial Ethics Advisory Service Study Committee, chaired by Judge Lee A. Christofferson, Devils Lake. See id. at vi.

539. . Chief Justice Erickstad became a nationally recognized figure in his field, too.

He served five years as a member of the Executive Council of the National Conference of Chief Justices and is past president of the Conference of Chief Justices and past president of the National Center for State Courts. On July 2, 1987, he was appointed by President Reagan as a member of the board of directors of the State Justice Institute, serving until June 1990.

Fifty Year Members Reflect on Their Careers, Gavel (Journal of N.D. State Bar Ass'n), April/May 1999, at 8.

In November 1987, he received the North Dakota National Leadership Award of Excellence from Governor George Sinner, and in June 1988, was presented with the Distinguished Service Award by the State Bar Association of North Dakota. In May 1989, he received the Distinguished Service Award from the National Center for State Courts for his contributions to improve court administration both nationally and in the state of North Dakota. On December 3, 1992, he received from the American Judicature Society its Herbert Harley Award for "his exceptional contributions to the improvement of the administration of justice" in the state and the nation.

Id. at 9.