IV. Preparing for the Twenty-first Century
A. Intermediate Court of Appeals
In January 1975, Chief Justice Erickstad warned the legislature that a steadily increasing number of appeals "may possibly require the creation of an Intermediate Court of Appeals," noting that twenty-seven states had established such a court "to relieve the pressures on the supreme court."(540) The number of appeals did increase substantially. By 1981 the Court was writing over 200 opinions per year, as it has done every year since.(541)
The 1983 legislature endorsed a resolution, sponsored by Representatives Tish Kelly of Fargo and William Kretschmar of Ashley and by Senators Rolland Redlin of Minot and Frank Wenstrom of Williston, for an interim study of "the present and projected North Dakota Supreme Court caseload and methods for the appropriate structure and administration of appellate court services in the interest of justice."(542) In May 1983, the LRC declined the study and instead suggested the judicial system do it.(543) The Court Services Administration Committee of the Supreme Court created a subcommittee to study Future Appellate Court Services, and Representative William Kretschmar agreed to chair it.(544)
In November 1984, the Judicial Council supported an intermediate appellate court, and Chief Justice Erickstad's 1985 State of the Judiciary message to the legislature lobbied vigorously for it.(545) In January 1985, the Court's Future Appellate Court Services Study Subcommittee recommended creation of an intermediate appellate court.(546) A parallel committee of the State Bar Association indecisively "acknowledged the existence of the workload problem, but urged . . . all other possible solutions be attempted prior to the creation of an intermediate appellate court."(547) Not surprisingly, the 1985 legislature then gave the Court no safety valve for the relentless buildup of work.
In 1987, the legislature finally authorized a court of appeals to ease the Supreme Court's workload.(548) Whenever the Supreme Court decides over 250 cases in a year, the Court may establish panels of three from among retired judges and active trial judges to hear specific cases referred by the Court.(549)
The Court has established a screening process. One of the clerk's staff (often the clerk), a staff lawyer, and one of the justices (in rotation) recommend cases for reference to the appeals panel whenever the Court decides it needs help with its caseload. From the inception of the court of appeals in 1987, only sixty-five cases have been referred to, heard by, and decided by panels of this temporary court of appeals.(550)
But this legislation came with a sunset clause that has been continuously extended, most recently in 1999 to expire at the end of the year 2003.(551) This intermediate appellate division has been carefully used by the Court, has functioned well, and has been especially necessary when the Court has been temporarily short-handed from an illness or vacancy.
Out of respect for the separation of powers, the legislative branch ought to permanently authorize temporary panels for the intermediate court of appeals. Alternatively, since it only involves assignment of existing judicial personnel, the Court should implement it by rule under its constitutional power to govern appellate procedure "to be followed by all of the courts of this state. . . ."(552) An intermediate appellate division will be a critical tool for the twenty-first century to cope with additional surges of appeals that are likely.
540. Chief Justice Erickstad's State of the Judiciary Address, State of North Dakota, Journal of the House 61 (44th Leg. 1975). Even earlier, Chief Justice Erickstad had advocated study of an intermediate appellate court. "[Another] way suggested for avoiding congestion and delay is in the creation of an Intermediate Appellate Court. This should be recommended for study now so that it might, if feasible, become a reality later." Erickstad, supra note 410, at 413.
541. Search of West's North Dakota Reporter CD-ROM Cases database (database containing only North Dakota Supreme Court decisions).
542. Chief Justice Ralph J. Ericksatd, State of the Judiciary, Joint Session of the 49th Legis. (Jan. 5, 1985), at 4 (condensed version appears in State of North Dakota, Journal of the House 118-28 (49th Leg. 1985).
543. See id.
544. See id.
545. See id. at 5-6.
546. See State of North Dakota, Journal of the House 163 (50th Leg. 1987).
547. Id. at 163-64
548. See 1987 N.D. Laws ch. 374, at 931-34; N.D. Cent. Code § 27-02.1.
549. See N.D. Cent. Code § 27-02.1-02(1).
550. Search of West's North Dakota Reporter CD-ROM Cases database (database containing only North Dakota Supreme Court decisions). The Court, though often petitioned for review, has only reviewed and reversed a single case decided by the Court of Appeals. See McAdam v. Dynes, 442 N.W.2d 914 (1989).
551. See 1999 N.D. Laws ch. 277, at 1171.
552. N.D. Const. art. VI, § 3.