2013 State of the Judiciary Address to the Bar Thursday, June 13, 2013

Chief Justice VandeWalle

Chief Justice Gerald VandeWalle spoke at the State Bar Association Annual Meeting, Bismarck, North Dakota, June 13, 2013

Thank you for the opportunity to again report on the state of the North Dakota Judiciary.

I begin my remarks by acknowledging the Energy Impact Task Force Judge Hagerty formed early in her tenure as president. The report from the Task Force was presented to the Governor and the legislature prior to the legislative Assembly. It was widely discussed in the media. It effectively 'set the table' in that the needs for additional judges and employees was well known and accepted by the time we made our appearances to support those requests. I thank Jack McDonald, the chair of the Task Force, and the members for their work. There are some who might question whether we should encourage people to take up the practice of law. After all, Daniel Webster in an address said that after 25 years of observation, "I can give it as the condensed history of most, if not all, good lawyers, that they lived well and died poor." Given the alternative I don't think that is such a bad result.

Rural Law Clerk Program: To that end, President Hagerty has been instrumental in designing and championing a new Rural Law Clerk Program, which was funded by the legislature. At her suggestion we included in our budget request and received some funding for the proposal. Working with the UND School of Law, the court will establish up to three paid district court law clerk internships per year. These interns will be placed with rural judges serving communities of less than 15,000. Rural communities are losing attorneys. In 2012, there were 4 counties that had no attorneys at all, six counties with only one attorney and another 8 counties with only two attorneys.

The rural internship program is designed to encourage law school students to consider practicing in small communities. By inviting them into the community as young adults, to work in a professional capacity, we hope they will have a perspective on rural life and the many benefits that come with living in a close knit society and being a valued part of the local community, including the business community.

Appellate Mediation Program: We have authorized a Notice of Comment on proposed Appellate Rule 5 that will establish an Appellate Mediation Program. This program will offer litigants anticipating an appeal the opportunity to participate in mediation at no charge to them. It differs from the family law mediation program at the trial court level in three key aspects: First, it includes probate as well as family cases; second, it is available prior to the actual filing of an appeal; and third, parties can opt out of the program if certain conditions are met. The opt-out conditions are purposely narrowly written. Appellate mediation has a good track record in courts that have been using it. Nationally, the settlement rate for these types of programs is around 50%. This saves time and money for all parties in a case. But, as with our district court mediation program, our motivation and our primary goal is to minimize family conflict. When we close the book on a court case, we leave behind the families involved in those cases. We don't create the conflicts that come to our courts, but the process used to resolve those conflicts should not exacerbate them. No one wins when the price of a decision is a family no longer willing to communicate.

Minority Justice Implementation Committee: For the past several years, we have had a special task force examining the courts for racial and ethnic bias. The task force concluded its work last fall and reported that there is a perception of bias in the courts. A court's stock in trade is credibility. If litigants believe the deck is stacked against them, then even the most lawful and just decisions by the court are greeted with distrust. Understanding the importance of this issue, the task force did not stop at gauging perceptions but also presented the Court with more than 70 recommendations for ways to improve our performance. We are concerned about bias and the perception of bias and we adopted Administrative Order 21 which establishes an implementation committee. This committee will develop a strategic plan to implement the recommendations of the task force and monitor progress in this area.

Mandatory electronic filing and service: Did you notice that we recently mandated electronic filing and electronic service for all documents except initial pleadings in criminal and juvenile cases? No doubt you did notice we heard from a number of you. The transition has not been without some hiccups and misunderstandings but all-in-all it has gone smoothly. Electronic records benefit both the court and the bar.

We live in an information-driven world and work in a profession that relies on fast, accurate information. Fingertip access to documents and nearly simultaneous notice of filing of documents is something many have grown accustomed to. Indeed, for the younger and newer lawyers that is the norm.

It is unrealistic to expect that the court could hire enough staff to provide this service without requiring electronic filing and service. For two years prior to the adoption of the rule requiring electronic filing we encouraged voluntary participation in the system. I am grateful to the many lawyers who took the initiative to know the system and use it, but that left a large number of lawyers who did not. The result was unprecedented backlogs in all of our clerk's offices, which meant delays in getting vital information and documents circulated. It takes all of us working together to create a system that benefits everyone. Change is often a painful process but I am thankful that in North Dakota we have a history of working together to improve our system.

Citizen Access Coordinator: The issue of access to justice and how to provide adequate service to self-represented litigants is a perennial question. Last year, there were more than 1,700 people who represented themselves in civil, family and juvenile cases, and another 6,500 who represented themselves in felony, misdemeanor and infraction cases. These are numbers that we could not have imagined 15 years ago when courts first started to see an increasing number of people representing themselves.

There are reasons for this but I will not go into all of the research here. However, two of the biggest reasons are economics and education. Some people come to court alone because they can't afford to hire an attorney. There are not enough pro bono hours and reduced fee programs to accommodate all of these cases. Others come to court without an attorney because they believe they have the education and intellectual capacity to understand the law and court processes well enough to proceed on their own. Under either scenario, this can cause a great deal of frustration for the self-represented party, the court, and the litigants on the other side of the case.

To help alleviate some of this frustration, the court requested and received funding to establish a new position we titled the Citizen Access Coordinator. This person will be responsible for instituting a support center for self-represented litigants that will provide information about court rules, processes, and forms. The Coordinator is not intended to be the legal advisor of the self-represented litigant.

Judicial Planning Commission and Re-Districting: At the request of the Administrative Council, I asked the Judicial Planning Commission to consider the current judicial districts and make recommendations related to re-districting. Under the North Dakota Constitution (Article VI, Section 9) the Supreme Court is authorized to divide the State into judicial districts. The last time there was a major realignment of the districts was in 1979 shortly after I came to the bench to put into perspective and it is time to give them a fresh review. The three new judges authorized by the Legislature will help to alleviate the increasing workload caused in great part by our flourishing economy. One of the goals of the review is to bring the case loads per judge into a better balance. The Commission has sent recommendations to the Court which are now out for comment. Please take a look at the options they are recommending and give us your opinion.

Rule 57, Judicial Emergencies: The Court recently adopted Administrative Rule 57 which gives the Supreme Court the authority to declare a judicial emergency. If an emergency is declared, the Court can suspend, toll, extend or otherwise grant relief from deadlines and schedules. We have had to take this action before, in 1997 and 2011, on an ad hoc basis using the inherent power of the judiciary to manage the court system. This rule formalizes the process and will allow us to suspend statutes of limitations, designate temporary venues, and close courthouses in an orderly fashion. Now that we have a formal process in the statutes and in our rules, we hope we will not have to use it.

Legislative Session: Much of what I have discussed involves action taken by the recent Legislative Assembly. The Judicial Branch fared well in that our request for new judges, new positions and a few new programs were, for the most part, well received. Contrary to what is taking place in several of the other states, our judicial system is not under attack by the other branches. That does not mean we can be complacent. I am grateful to the Bar Association and its individual members for their support and for their vigilance in defending the rule of law and the rights and liberties of our citizens.

I also thank the members of SBAND for their service on the joint bench/bar committees, our disciplinary boards and the other Bar Committees that are so vital and so important to the continued vitality of the Association, the Judicial Branch and the legal profession in general. We are privileged to live in a State in which respect and civility are still the norm, not the exception. But our good fortune also brings responsibility .

We are not a large judicial system nor a large bar association. We have limited financial resources and even more significant, we have limited human resources. Nevertheless, we must continue to look introspectively and outwardly for ways to become more efficient and more relative to our role in government and society. We will continue, as our resources allow, to examine new programs in order to determine whether they will enhance our system of justice and serve the citizens as well as the profession. Future projects could include looking at operations within our clerks offices as the duties change as a result of technology and whether we need and have the resources to establish additional specialty courts such as veterans courts, mental health courts, reentry courts and probate courts. These are only examples of some of the proposals that have potential application in our judicial system in North Dakota.

But, I do not want to alarm you with the specter of immediately changing the course of the courts.

Rather, I look forward to continued good relations and cooperation with President Morris, the Board of Governors and the Association.

I am not an avid reader of poetry but in closing I end with a poem from a book of poetry I received about law, lawyers and judges. The poem by James Clarke is entitled 'Bit Players'. I read it for you to mull in your mind without further comment from me.

After the performance, & the judge &
lawyers have bowed to each other &
strutted off the stage, the victims
are quickly shunted off to the wings with
the rest of the props to await
the next unpaid curtain call.

Thank you for your good will and best wishes to SBAND for a successful year ahead.