2019 State of the Judiciary Address Thursday, January 3, 2019
STATE OF THE JUDICIARY
Before the 66th Legislative Assembly
January 3, 2019
Lieutenant Governor Sanford, Speaker Klemin, Governor Burgum, members of the Legislative Assembly, State executive officials, my judicial colleagues - the district judges and supreme court justices - and other friends. Thank you for the privilege of appearing before this Joint Session of the Sixty-sixth Legislative Assembly of our great State.
The North Dakota Court System should be a well-balanced, dynamic and highly functioning system that is able to continuously improve and adjust to meet challenges in all economic conditions. We must operate to treat every individual, in every part of the state, with respect and to ensure that all of our cases move through the court system in a thoughtful and timely manner.
The scales of justice held by Lady Justice symbolize the assessment of the figurative weight, the balance, of two sides in a dispute, but over the 40 years I have been on the bench, I have come to see that they are also symbolic of the other balances the courts must strike. These include the big questions of balancing mercy and justice, community safety and individual accountability, and transparency of court records with individual desire for privacy; but they also include the more prosaic questions of balancing accuracy and expediency; efficiency of technology and the personal acknowledgement that all individuals crave; and deciding where the line should be drawn between state support of government functions and individual fees for access to government services. Although I have been privileged to consider these questions on an almost daily basis, I must admit that I am no closer to a definitive answer for any of them. I can, however, say with confidence, that the exercise has made me more aware of the nuances of each issue and more appreciative of the work all of you do in wrestling the same kinds of questions.
I am not going to wax philosophical on these issues, neither my voice nor your patience would allow me to do that for very long, but I will say that in some way each of these considerations plays out in the challenges and initiatives that I am going to discuss this morning.
Need for additional staffing
Last session, in response to serious budget issues, we cut 55.5 positions. Thirty-five full-time and 1 part-time staff were eliminated, including 3 judicial referees. Also lost were 20 temporary staff who differed from our other staff only in that they worked without the benefits allowed to those whose positions were created as an FTE authorization by the legislature. No part of the court system was spared from budget cuts and the staff reductions came from the supreme court, the district court, the juvenile court, and the administrative offices of the court. We understood the dire circumstances the state was in at that time and we did what we had to do to make the targeted budget reduction. But, it would not be honest of me, nor would I be doing my job as the head of the court system, if I stood here today and said that all is well with the court system.
I have often used the analogy of standing on tiptoe in deep water to describe the operational side of the courts. We have always staffed our judicial and administrative offices to the lowest possible ratio that allows us to get work done. However, doing so leaves us like the individual who wades into deep water and stands on his tiptoes to keep from drowning. Everything is fine until a wave comes along and suddenly the individual finds himself underwater and fighting for his life. The court system is now underwater. I am not here today to sound the death knell for the court system, or to ask for reinstatement of all 56 positions, but I am here to ask for help regaining our footing by adding back 6 staff positions and creating one new judgeship.
We are requesting a judge for the South Central Judicial District, which has its judicial hub in Bismarck and Mandan and encompasses 9 counties. Although there are normal fluctuations in the number of cases filed annually, the trend in this district has been a steady increase in filings over the past 10 years. The increase has been such that they are currently three judges short of what our weighted caseload study reveals is needed to adequately handle the caseload. We would have requested this judgeship much earlier except that there was no space to house another judge. I am grateful to the citizens of Burleigh and Morton counties, and to the commissioners who serve those counties, for the funding that has allowed both courthouses to remodel and expand space available for judicial chambers and courtrooms. And, while the judges of the district had assistance from their colleagues in other districts as well as surrogate judges assigned, I am grateful for the manner in which they handled the crush of cases resulting from the Dakota Access Pipeline protests.
A judge does not work alone. A record must be made of every hearing, so along with a new judicial position, we are asking for a court reporter position to work with the new judge. We are also asking for a court recorder position in Minot to replace the position that was cut in 2015. The Minot position is especially needed as the loss of a recorder has resulted in delayed hearings and increased transcript costs.
When we cut clerk of court staff in 2015, we did so by setting a minimum staffing level of 82% of need. Due to increased case filings, the clerk’s office in Grand Forks County is now operating at 70% of need and the Cass County office is at 60% of need. We are requesting one deputy clerk for each of those offices in order to bring them back to the minimum staffing level. Inadequate staffing results in increased errors.
Along with the three judicial referees that were cut in 2015, we cut four law clerk positions. Law clerks perform legal research, initial review of motions, and initial drafts of orders. These services allow judges to make better informed and quicker decisions. Due to the loss of positions, we have two judicial districts – the Northwest and Southeast districts - that no longer have any law clerks. To remedy this, we are requesting reinstatement of one law clerk position in each of these districts.
The North Dakota Judicial Conduct Commission and Attorney Disciplinary Board is the leanest -run disciplinary system in any state. It operates with just 4 FTEs and an army of volunteer attorneys and judges. Two years ago, we revamped the rules of operation for the JCCDB to increase the timeliness of responses to complaints. Part of this revamping included moving some of the investigative functions being done by volunteers to a part-time, temporary position housed within the JCCDB. This has not worked as well as we had hoped because of the turnover in that position. In eighteen months, there have been three people who have accepted the position, only to leave shortly afterward for other employment. The Operations Committee of the JCCDB has requested that this position be converted from a part-time temporary to a part-time permanent position to provide some stability to the position.
And, while I do not want to be an alarmist, we are closely watching a case that was remanded by the United States Supreme Court to the 8th Circuit Court of Appeals concerning the validity of the mandatory bar in North Dakota. Should the mandatory bar be held to be invalid, our current lawyer disciplinary system would require extensive statutory change.
The North Dakota Court System has not stopped innovating and striving to improve its ability to serve the people who depend on it to sort out the cases that come before it. North Dakota is unique in the cost-effective way we deliver clerk of court services, and our juvenile court approach to rehabilitating youth is hailed as a national model. Back in 1999, we were the first in the nation to have a fully electronic citation and traffic reporting system for tickets issued by the state patrol. In 2011, we became the first in the nation to have complete electronic filing capabilities for our district courts, and along with that, the first to mandate the use of electronic records management for both judges and staff. Beyond technology, we have created a family mediation program, a guardianship monitoring program, and a self-help center that assist thousands of citizens a year without imposing any extra fees for those services. We have strengthened protections for vulnerable adults and shortened the timeframe for decisions in child welfare cases and divorce cases involving children. In the same spirit of innovation, we are moving forward with several new projects.
Law Library Project
As much as I like books, it is time to re-envision our concept of a law library. Because so many resources are now available electronically and we have the ability to get books through quick shipping, we no longer need to maintain a large, formal library. We have put forward legislation to repeal the statutes requiring a law library. Our plan is to remodel the existing law library space to accommodate an expanded self-help center, improve the workspace for our central legal department, and relocate our IT staff to the Capitol. The initial outlay to remodel the space is estimated at $960,000, but we expect that these changes will result in ongoing savings of approximately $400,000 per biennium.
Juvenile Court
This past biennium, the juvenile court has instituted two new practices that have had a direct impact on the placement of children in detention. The first is to create disposition matrixes that provide more consistent sentencing for related charges and has reduced the number of youth being sent to the Youth Correctional Center.
The second is to mandate the use of a detention screening tool which has been effective in reducing the number of days youth are spending in detention.
In addition, we have been working with the Department of Human Services, the Division of Juvenile Services, and several other government and non-profit agencies on the dual status youth project. This is an interdisciplinary approach to handling youth who are in both the child welfare system and the court system. The project seeks to leverage resources from both entities to create a comprehensive plan to address the needs of children and their families.
During the interim session, the Juvenile Policy Board, under the leadership of Justice Lisa Fair McEvers, proposed raising the age of criminal responsibility from age 7 to age 10. The Justice Reinvestment Committee has introduced legislation to make that change.
Finally, I want to let you know that we have re-applied for the Court Improvement Program grant from the federal government. This grant is specifically to improve outcomes for children in need of protective services.
Guardianship
During the interim, our Guardianship Workgroup, which is ably chaired by Judge Cynthia Feland, took on the task of studying and rewriting the laws related to guardianship of minors to eliminate confusion over when cases should be filed in juvenile court or district court. Under the bill draft that we are proposing, only uncontested testamentary appointments will start in district court; all other guardianship of minor cases will be filed in juvenile court. This will give the court the ability to appoint a guardian ad litem for the child or an attorney for the parents. The proposed changes will also allow the court to continue monitoring the financial and personal well-being of any child who is under the care of a guardian.
Although not a court program, I bring your attention to the issue of adequate funding for the Public Administrator Support System (PASS) program. This is the program created by the legislature in 2013 to provide funding for public administrators. Over the years, public administrators have become the baby no one wants to hold. They serve as the guardians of last resort for those individuals who have no one else to look after them, or who are in the unfortunate position of having family members who are unable, unwilling or not qualified to provide guardianship services. Up until the early 1990s, public administrators were county employees, appointed by the county judge. When the county judge positions were eliminated, many counties also eliminated the public administrator position. Over the years, with no clear statutory determination as to whether the function should be funded by the counties or the state, there was a continual loss of individuals willing to take on those duties. To respond to the ever-growing gap between the need for services and the number of providers available, the legislature created the PASS program. Funding for the program has been in decline since its inception and the program has been forced to rewrite its guidelines several times to reduce the number of cases it can cover and lower the daily payment rate to guardians. An additional 5% cut to the PASS program is being proposed this biennium. With guardians having to take more cases without compensation, and a growing list of vulnerable adults waiting for assistance, I am afraid we are in danger of sliding back into the same situation we were in before the program was created.
Interdisciplinary Committee on Specialized Dockets
It has long been recognized that problem-solving courts, otherwise known as specialized dockets, are very effective in dealing with issues related to drug and alcohol use, post-traumatic stress syndrome, homelessness, and mental illness for those people who are in the court system. Nationwide, there are now over 30 types of specialized dockets, each with their own focus and funding. In North Dakota, we have three: adult drug court, juvenile drug court, and domestic violence court. Over the years, we have also been asked to consider adding mental health and veterans courts. Specialized dockets work because they allow for long-term, personal contact with defendants and because they are able to connect defendants with the resources, they need to rebuild a healthy life. We recognize that no one entity owns these courts and that to work they require assistance and support from all three branches of government. We recently adopted Administrative Rule 60 to establish an interdisciplinary committee whose focus will be on evaluating the need for the resources and legislation necessary to create new specialized dockets, to evaluate existing courts, and to recommend when and where new specialized dockets should be established.
Domestic Violence Court
In 2015, legislation was passed that authorized us to establish a domestic violence court. Under the direction of then-presiding judge Jon Jensen, the decision was made to move forward with a court in the Northeast Central Judicial District. Judges Jason McCarthy and Jay Knudson have been assigned to handle this specialized docket. The court held its first session in August and currently has 64 participants. Participants are individuals who have been convicted of a misdemeanor or felony assault against an intimate partner. The goals of the court include providing closer monitoring of offender compliance with sentencing conditions, and increasing victim safety by rehabilitating offenders and reducing the number of repeat offenses.
Justice Reinvestment
Judge Frank Racek, who serves as the presiding judge in the East Central Judicial District, has been serving on the Governor’s Committee on Justice Reinvestment.
Effective response to criminal behavior is an issue that he has studied extensively and he is well-positioned to lead in this arena. To implement the goals of justice reinvestment, he has worked with the Cass County Jail Administrator and the Cass County Commission to implement early identification of risks and needs using bail and pre-trial risk assessments. Due to a lack of resources, it has been necessary to limit these two pilot programs to cases assigned to Judge Racek, but even so, they show great promise and, I believe, will become a model for the rest of the state.
Judge Racek has also been working with both UND and NDSU to develop a medical approach to research-based sentencing that will use big data sets from multiple state information systems to create a system to address criminal justice needs with more speed and accuracy. The end goal is not to create a new program that will be cast as a wide-net, but instead create a system of rapid assessment that will allow for sentences based on the specific characteristics of defendants and their past responses to treatment and punishment.
Subcommittee on Bail and Pre-trial Reform
At the request of the Minority Justice Committee, we have established a subcommittee on bail and pre-trial reform. Many people forget that the primary reason for bail is to allow a defendant to secure release in order to aid in his or her own defense. Bail also acts as a lever to ensure that the defendant returns to court as required. Over the years, bail has also come to be seen as a means to provide for community safety by setting a high bail. However, there is a nationwide concern that people who cannot afford bail are being unnecessarily kept in jail. The subcommittee’s task will be to consider these uses of bail and to explore improvements to the processes and tools judges use to make pretrial release decisions. Pretrial release decisions include determinations by judges as to whether individuals arrested and detained should be released before trial, and the conditions that should be imposed if a defendant is released.
Conclusion
We also have in the works several other initiatives to increase efficiencies in both the Supreme Court and the district court. Some of these changes are in the planning stage and others are only in the initial discussion phase. It is too early to say whether they will have the outcomes we desire and I mention them only to assure you that despite our challenges, we strive to move forward to create a judicial system that is fair, timely, and accessible to all.
Thank you for the opportunity to appear before you to talk about our North Dakota judicial branch of government. I assure you of our continued cooperation with you in our common goal of keeping North Dakota one of the best places in the world to live. Best wishes for a positive and productive 66th legislative session.