State of the Judiciary Message 2006 Thursday, June 15, 2006

Ladies and Gentlemen of the North Dakota State Bar Association, I am pleased to be here today to report on the State of the North Dakota Judiciary.

To begin, I thank the leadership of the Bar Association for their good will and cooperation this past year. Mike Williams, our President, was a senior law student the year I came on the bench. We worked together at that time when he arranged the panel of judges to judge the regional moot court competition. I enjoyed working with him then, and I still enjoy it all these years later. He and the Board of Governors and Bill Neumann, the Executive Director, have served our Association well. I look forward to working with Larry King, the Board and Bill in the year ahead.

Thirty years ago, the citizens of North Dakota voted to amend Article VI of the North Dakota Constitution. This amendment created a uniform court system and gave the Supreme Court administrative authority over the District courts and any lesser courts that may be established by law. What an act of great faith that was by the people of this state.

I am going to take some time to talk with you about how we have handled that responsibility, but, in order to fully understand the changes, I need to recall for you how things were.

Nineteen Seventy-Six. Gerald Ford was president and Jimmy Carter was president-elect. The median income was $12,686. Stamps were thirteen cents. The first Apple Computers went on the market ­ with a total of 157 computers sold that year. Leisure suits and cardigans were the style of the day for men. For women, it was short polyester dresses and pantsuits. AM radio stations still outnumbered FM stations, and the dial on our television sets only went up to 13.

It was the year that "One Flew Over the Cuckoo's Nest" earned the Best Picture award and "All the President's Men" reminded us of the failings of a president. On television, M*A*S*H, One Day at a Time, and All in the Family took on the topics of war, feminism, and racism.

It was the year of the bicentennial ­ the 200^th anniversary of the Declaration of Independence. Despite the distrust of government, or maybe in spite of it, the nation was gripped by a patriotic fervor that would remain unmatched until the tragedy of 9/11. Nevertheless, that was a patriotism born of sorrow. The patriotism of 1976 was born of exuberance ­ a celebration that the pessimists, who had proclaimed this upstart nation with its radical notions of democracy and federalism would not long survive, had been soundly proved wrong. We had survived depressions, wars, and civil unrest. A president had been forced to resign, and we had come face to face with the indignities and inequities we had perpetrated against our own citizens. Yet, we celebrated the bicentennial because along with the bad, we could still grasp the good. There was a determination that the wrongs of the past would be righted and that government could be made to live up to the ideals we so proudly proclaimed in the Declaration of Independence and the United States Constitution.

It was in that spirit that the people of North Dakota executed this great act of trust.

Since 1976, many changes have occurred within the judicial branch. Some of them have been of our own making, and some of them have been made for us. Regardless of how they were initiated, we have risen to the challenge of implementing them, while never forgetting that the end result of any changes has to be improved judicial service for the people.

When the mantle of administrative supervision passed to the North Dakota Supreme Court, we were a multi-tiered system. There were municipal courts, county justices, county courts, county courts of increased jurisdiction, district courts, and the Supreme Court. Of the 205 municipal court judges, only 17 were law trained. Of the 38 county justices, 32 were law trained. Of the 38 county judges without increased jurisdiction, only 1 was law trained. We had 15 county judges with increased jurisdiction and 19 district court judges, all of whom were law trained.

The number of courts, the jurisdictional confusion, and the tangle of local court rules and practices are difficult if not impossible to imagine unless one practiced in it. Today, we have the constitutional courts of the Supreme Court and the District Courts, and legislatively created municipal courts. We have 78 municipal courts and many of them are served by law-trained judges. The simplification of the court structure and the rise of professionalism have done much to improve our citizens' respect and trust for our courts.

We cannot talk about the changes since 1976 without mentioning the reduction in judgeships. As of 2000, we are reduced to 42 district judges. We are feeling the squeeze as our caseloads continue to rise. Our latest study shows significant judge shortages in Minot, Jamestown, Fargo, and Bismarck.

However, I do not believe the Legislature will necessarily approve additional judgeships based on this study alone. Rather, we will have to illustrate we have put our house in order and made the adjustments and accommodations necessary to make us as efficient as the Legislature has the right to reasonably expect. I do not intend to make a list or regale you with all the details but some of the steps we have taken to become more efficient are interspersed in the discussion that follows.

We continue to face hard choices involving location of chambers. Just this year, we moved the judgeship from Stanley to Minot. This is not a decision that was made lightly or in haste. However, the sheer number of cases being filed in Ward County, along with the desire to provide a juvenile drug court, required us to move the resource where the need is greatest.

The caseflow management committees in the districts are working on ways to adjust court-calendaring practices and judge rotations to better utilize the resources we have. These changes directly impact the bar. Your input on these changes and your cooperation in implementing them is essential to ensuring that cases are handled timely.

Another significant change to the administration of the courts was the change to elected presiding judges. In 1976, the Supreme Court appointed a presiding judge for each district. While not a reflection on any individual, this system of appointment did not work because the presiding judge was imposed rather than chosen. Today, their peers within the district elect our presiding judges. This election is a sign of the confidence and respect that their colleagues have for the judges' leadership abilities and legal skills. It, too, is an act of trust by the governed.

At this time, I acknowledge our presiding judges for all their hard work and dedication to the courts of this state: Judge Karen Braaten, Northeast Central Judicial District, Judge Richard Geiger, Northeast Judicial District, Judge Bill McLees, Northwest Judicial District, Judge Georgia Dawson, East Central Judicial District, Judge John Paulson, Southeast Judicial District, Judge Gail Hagerty, South Central Judicial District, and Judge Allan Schmalenberger, Southwest Judicial District. I recognize as well the hard work and support of all the trial judges and my colleagues at the Supreme Court.

Along with these changes, have come changes in the rules and procedures of court. Consistency and predictability are key factors in building trust in the judicial system. Individual justice for individual cases ought to ­ in fact, it must ­ mean that judges are free from any pressure to decide a case in a particular way. However, there is a distinction between rendering a just decision and the methods for bringing a case to court. While individual justice must prevail behind the courtroom doors, the path to those doors should be free from obstacles, well lit, and accessible to all who seek it. It is the purpose of court rules and procedures to ensure that is how the public finds it.

Our ongoing committee work, the work of the Administrative Council, and the recent administrative reorganization has this as their primary duty. Our committees could not do their work without the participation of the bar. I thank each of you for your commitment to this process. You give us your time, your expertise, and your enthusiasm whenever you are called upon. I want you to know that it is very much appreciated.

Working with the members of the bar, we have implemented several rule changes over the course of this past year. We have authorized electronic filing. We have directed the Courts to provide web-based access to court records. We have provided greater protection of juror privacy. We have revised the rules of criminal procedure. We have mandated greater use of alternative dispute resolution processes, and we have created a single, comprehensive rule for use of interactive video where before there were separate orders by district. We are proud of these changes. We believe they will serve the bar and the public very well.

There are two other changes that deserve to be addressed separately. Those are the changes to the Rules of Professional Conduct and the Judicial Code of Conduct.

We have made changes to the Rules of Professional Conduct. This is always a difficult activity to undertake. It is our job to protect the interest of the public by prescribing right conduct and establishing standards of performance for attorneys. We believe these changes were necessary to ensure that the profession continues to be held in the highest regard.

I know that by now all of you are familiar with Republican Party v. White. Given the decisions in this case, North Dakota had no choice but to modify its Judicial Code of Conduct. I would be less than honest if I did not tell you that I am very worried about the impact Republican Party v. White will have on the judiciary, not just in North Dakota, but also across the United States.

When judges are encouraged to consider politics and personal agendas alongside the law, when special interest groups begin to pour money into supporting judges who openly advocate their cause, when local judges become the targets of national organizations, not because of corruption or misapplication of the law but simply for daring to apply the law, then an erosion of the trust that the courts have worked so hard to earn cannot be far behind. Already other states are seeing million dollar judicial races and attack ads sponsored by out-of-state interest groups. We sometimes lament that North Dakota is slow to respond to national trends. Let's hope that this is one that will bypass us completely. Our judicial races have been marked by civility, dignity, and respect for our opponents. I put my faith in you, the current members of the judiciary and the bar, to continue to uphold those values.

I conclude my report today, not by looking back to the past, but by looking forward to the future. I am pleased to announce that our Judicial Planning Commission has been reactivated under the leadership of Justice Crothers. This commission will be studying the administration and operation of our court system, and assessing the demands and expectations that court users, the public, the bar, and our sister branches of government have of the judiciary. It will be evaluating our current level of services, and it will be recommending both long and short-term goals for our future. We are excited to begin these steps on a journey to improved court performance and accountability. We are committed to a judicial system of excellence and I know that with your continued support we can make it happen.

Thank you for allowing me to appear before you today. I thoroughly enjoy mingling with lawyers. We are part of a proud and noble profession.