"The ability of a party to fully participate in his or her case is a fundamental access issue"
by Chief Justice Gerald W. VandeWalle
State Bar Association of North Dakota Annual Meeting
Thursday, June 16, 2011
Fargo, North Dakota
Thank you and good afternoon. I am pleased to offer the State of the Judiciary Report to the 112th Annual Meeting of the State Bar Association. Despite what some of the younger lawyers may believe, I have not been in attendance at all 112 meetings. A few people in this room were in attendance at the same meeting I was a few weeks ago in which the speaker, a retired Law School Dean, in talking about his age said that "With age comes wisdom but sometimes age comes alone."
I begin this report with some observations on the recent legislative session in respect to the third branch of government, the judicial branch. It was not an extraordinary session from our standpoint. We did not propose new high-profile programs and our requests for funding were modest. We did receive some, but not all, of the new FTE's we requested. But the idea of new FTE's, salary increases and some additional funding for programs is nearly unique when compared with the reduction in staff, closing of courthouses and loss of programs most of our colleagues in other States are enduring. I acknowledge and I appreciate the support of the Bar, Bill and Sandi and the others who were there to support the judiciary. And also I recognize the work of our lawyer legislators. They are few in number but large in stature.
Guardianship and Elder Issues
For the last two legislative sessions, I have urged a study of guardianship and other issues effecting the elderly. North Dakota has a population that is aging faster than most states. If not with wisdom, age does come with vulnerability, and there are unscrupulous people who do not hesitate to take advantage when they sense an opportunity. Financial exploitation, domestic violence and neglect of elders can occur between strangers and family members. Our system of compensating public administrators should be reviewed. The legislature did not accept our particular proposal to study elder issues but did agree to contract with an outside entity to study guardianship issues and the Legislative Management Committee indicated they will consider some of the issues with which we are concerned in that study. Assigned to Interim Committee Human Services.
Study of Court Fees
Arising out of discussions that originated in the Alternatives to Incarceration Committee, the legislature has decided to take up the issue of the number and types of fees that courts are mandated to impose in criminal cases. These types of fees often remain uncollected over the years and if they are all imposed the total may at times exceed the actual fine. These fees have been added piecemeal and it is time to review the cumulative effect of disparate legislation and we look forward to seeing the results of the study. Assigned to Commission on Alternatives to Incarceration.
Studies of Statutes of Limitation in Civil Cases
Another interim study that will be of interest to many of you is the legislature's study of the statutes of limitation in civil cases. Our current six year statute of limitations was originally enacted as part of the Revised Codes of the Territory of Dakota in 1877. The legislative history of this legislation shows both sides put forth impassioned arguments by their most skilled litigators before the bill to shorten the statutes of limitations for injury to person from six years to three years was turned into a study resolution. I am reminded that it is not only the Supreme Court that is asked to take testimony and make difficult decisions. Assigned to Interim Judiciary Committee.
Study of Juvenile Court Jurisdiction
Another study assigned to the Interim Judiciary Committee is a study of juvenile court jurisdiction and the process of transferring juveniles to district court, or "adult court" as the resolution uses the common vernacular although the term "adult court" is not defined by statute nor has the Legislature created an "adult court" by that name.
We have been doing some studying of our own. Nationally, North Dakota and West Virginia rank as the two states with the highest per capita rate of military enlistment. When our veterans return to North Dakota, it is an unfortunate fact that sometimes the things they experience in combat come back with them. Along with physical disabilities that may be severe enough to require the appointment of a guardian or conservator, there are two less visible, but equally problematic illnesses that can cause veterans to come into contact with the court. Post-traumatic stress can manifest in various ways, including drug and alcohol abuse, violence, disorderly conduct and mental health disturbances. Traumatic brain injury from exposure to bombs or motor vehicle accidents can cause irritability, mood swings, depression and decreased impulse control which may impact the family and the veteran's ability to maintain employment.
Veteran's Courts, based upon the problem-solving model of drug courts, are an increasingly popular way for court systems to address the unique needs of veterans and there has been some interest in starting a veteran's court in North Dakota. Our Court Services Committee, chaired by Justice Daniel Crothers, has been studying veteran's court over the past year. The committee has submitted a report concluding that because we do not know the extent to which specialized services may be needed, and based upon our court organization and state geography, that a better model for North Dakota is individual justice planning. Under this model, we would not create a separate Veteran's Court but instead would focus on early identification of veterans, an assessment of the needs of the veteran and close cooperation with veteran's service organizations to see that the veteran gets the help he or she needs. The Court will consider that report in the near future.
Expansion of Court's Limited English Proficiency Participation Plan
The ability of a party to fully participate in his or her case is a fundamental access issue that becomes particularly relevant in cases involving litigants who are not proficient in the English language. In the past, the court system provided interpreters at no cost for defendants in criminal and juvenile cases. We have recently expanded that policy and now provide interpreters for litigants and witnesses in criminal, juvenile delinquency, child welfare, divorce, annulment, custody, child support, guardianship, conservatorship and mental health cases. The United States Department of Justice has taken a great interest in this issue at the State court level and is demanding more be done.
I have tasked the Court Improvement Committee, chaired by Judge Sonja Clapp, with studying the American Bar Association's principles and standards for excellence in child abuse and neglect proceedings. These standards are in addition to the ABA's and the Court's docket currency standards and relate to court organization, selection, education and training for judges, and case processing. The committee has been meeting regularly and I expect to have a recommendation from them in the coming months.
Study of Race and Ethnic Bias in the Courts
The Commission to Study Race and Ethnic Bias in the Courts, co-chaired by Justice Carol Kapsner and District Court Judge Donovan Foughty, continues its mission. The Commission has begun its push toward completion of its study of racial and ethnic bias in the courts and toward a final report with recommendations. Sections of the final report covering juries, interpreters, and other areas of study have already been drafted and continue to be discussed. Recommendations are being derived from data gathered to date and from an ongoing analysis of other state reports and specific studies on individual topics, with these secondary sources either supporting general recommendations or providing information relevant to issues arising in North Dakota.
Having completed a series of public meetings throughout the state, the Commission is in the process of implementing several surveys designed to gather information specifically from attorneys, court personnel, and defendants who have completed the entire court process. The Commission is also working to create a small number of focus groups to attempt to gather data from individuals who were not reached in previous meetings, but whose professions provide them with insight on bias issues in the courts.
ABA Access to Justice Initiative
Last year, the American Bar Association began an "Access to Justice" initiative with a primary focus on "overcoming barriers to civil justice created by inability to afford counsel, culture, language and age." Part of that initiative is to encourage the highest court in each state to create an Access to Justice Commission. At the risk of repeating what I have already said, I want to take a moment to review what North Dakota has already done in this area.
The charge of the Access to Justice Commissions includes conducting a survey to determine the needs of the poor and the elderly. In North Dakota the State Bar Association and Legal Services of North Dakota have quite recently conducted those types of surveys. The charge also includes changing court rules to allow for limited—or unbundled—representation and allowing retired attorneys to offer pro bono services. Our rules already allow for those things.
A second charge of the Access to Justice Commissions is to expand interpreter services for litigants and cultural awareness for courts and the bar. Several years ago, our Court Services Administration Committee, then under the chairmanship of Justice Carol Kapsner, wrote a Court Interpreter Handbook that is available in every clerk of court and juvenile court office and on our website. The Judicial Education Committee chaired by Justice Mary Maring incorporates into our annual conferences training on cultural sensitivity, implicit bias, and practical tips on when and how to use interpreters effectively, and we created a Commission to study race and ethnic bias in the courts. In addition, we have recently expanded the types of cases in which the court provides foreign language interpreters.
A final charge of the Access to Justice Commissions is to expand services for self-represented litigants. Although we have not gone as far down this road as some courts have, we are making steady progress in this area. We developed a court policy on assisting self-represented litigants that has been in effect since 2003 and have developed forms for small claims, child support, divorce and probate actions.
We have done a great deal with Access to Justice issues because we as a court system and a state bar recognize that access to justice is more than just the ability to hire a lawyer or to get a hearing before a judge. We acknowledge that there is always work to be done in this area and that work will continue without establishing a Commission at this time.
Mediation for Cases on Appeal
Our district court mediation program for family statistics reveal that 55% of cases going through mediation settle all issues and another 17% settle some of their issues; 83% of participants report they are satisfied. Relying on these efforts, we hope to expand mediation to contested probate and family law cases at the appellate level. As with our district court mediation program, settling cases is secondary to the primary goal of minimizing family conflict by encouraging shared decision making. The Joint Committee on ADR, chaired by Robert Udland, has developed program protocols and a proposed rule that the court expects to circulate this summer in anticipation of possibly offering the first mediation sessions early this fall.
North Dakota government had a number of technology projects that were not completed timely, were over budget or had to be substantially reworked. Odyssey, the judicial branch case management system, is now operational state wide. I am grateful — and greatly relieved — that it came on line ahead of schedule and under budget. I acknowledge with gratitude the work of the Court Technology Committee chaired by Justice Dale Sandstrom and our technology staff. But it would not have been possible without the work and cooperation of our entire judicial staff, particularly in the offices of the clerks of court, and without your understanding and cooperation. I expect there are remaining issues to work out and other problems to resolve will arise in the future. But I am confident we will resolve those issues and that this tool will enable us to adapt and change the way we do business to be more effective and to be more efficient.
ABA 20/20 Commission
I have mentioned before that I serve on the ABA 20/20 Commission whose charter is to examine the ethical and regulatory impact of advancing technology and increasing globalization on the legal profession and to make recommendations to the House of Delegates. I again mention it because the Commission's recommendations will directly affect you, as lawyers. This is a three-year project and we are in the last quarter of the second year. The Commission split up its missions into working groups. I serve on several of those groups. One interesting group added later was to study the ranking of U.S. Lawyers by Newsweek. It came from the New York Bar. I was one of the few who did not have a conflict of interest on that subject. Interestingly, North Dakota, along with New Jersey, solved the issue of publicizing lawyer rankings in Rule 7.1 of the Rules of Professional Conduct by stating that if the lawyer is using comparisons of the lawyer's services with other lawyers, the comparison must be factually substantiated.
The Commission has agreed on some recommendations on outsourcing, confidentiality-related ethics issues for lawyers' use of technology, and rules relating to inbound foreign lawyers. For the most part the latter would amend Rules 5.5 and 8.5 to allow foreign lawyers the right to temporarily practice in a jurisdiction that is given to lawyers from other states in this country. The big issues, alternative business structures, including non-lawyer ownership of a law firm, and alternative litigation financing are under hot debate.
If you have an interest in these matters I urge you to go to the ABA website carrying the 20/20 reports, requests for comment and recommendations. It is: http://www.americanbar.org/groups/professional_responsibility/aba_ commission_on_ethics_20_20.html. In fact I urge you to look at it even if you are not interested to the end that in the future you will not ask "why didn't someone tell me about this?"
I close with the observation that while we are not without flaws, I believe the state of the Judiciary in North Dakota is vigorous, vital and healthy.
Thank you for allowing me the privilege to appear before you.