State of the Judiciary Message 2007 Thursday, January 4, 2007

By Chief Justice Gerald W. VandeWalle
Thursday, January 4, 2007

"We should forget all party differences and personal grievances and give to the corporation and individual justice alike. Each is entitled to this and none is entitled to more."
—Governor John Burke, 1907 State of the State Address

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Introduction

Lieutenant Governor Dalrymple, Speaker Delzer, Governor Hoeven, members of the Legislative Assembly, state executive officials, my judicial colleagues and other friends. Thank you for the privilege of appearing before this Joint Session of the Sixtieth Legislative Assembly of our great state.

This past year we have been marking the thirtieth anniversary of the amendment of the North Dakota Constitution and the changes that brought to the Judicial Branch. Thirty years ago, we had a multi-tiered county and municipal court system with overlapping jurisdiction, judges without law training, and unwritten rules of court.

Today, we have a unified branch of government, with a single layer of trial courts, staffed by judicial minds equal to the best in the nation. We are proud of our accomplishments even as we look toward the work of the future. With that in mind, I make the following report of the State of the Judiciary in North Dakota. Several of the topics are discussed in greater detail in the appendix of the written report of the judiciary, which will be distributed at the conclusion of this special session.

Juvenile Policy Board Initiatives

North Dakota's Juvenile Court Act was adopted in 1969 and has been amended only sporadically since then. In July 2004, I asked the Judiciary's Juvenile Policy Board to review the Juvenile Court Act in its entirety and to make recommendations for changes if any were needed. Under the leadership of District Court Judge Debbie Kleven, the Board has done that and we will be introducing legislation that is a result of this review.

The review identified a number of statutes that are unclear and raise issues the Juvenile Policy Board concluded should be discussed and resolved through the legislative study process.

The Juvenile Policy Board will also be crafting rules of procedure in juvenile court.

Children's Justice Initiative

The Chief Justices of the nation's state courts have made improvement of the Child Welfare system a priority. North Dakota ranks very high in this area nationally, but we cannot be complacent. As part of this national effort, in 2006, I commissioned a task force to look at North Dakota's child welfare system and make recommendations on ways in which the court system can respond better to deprivation cases. The task force made 8 recommendations that are intended to improve the care and opportunities for the most vulnerable of our children. I will not go through those recommendations now. They are included in the bound copy of this address. I do want to take this time to thank Senator Judy Lee for her participation in and support for this task force. We also are asking for a legislative study of the issues, which might require legislative action.

10-Year Review of Efforts to Eliminate Gender Bias in the Courts

Ten years ago, the court instituted changes designed to eliminate gender bias in the court system. During this past biennium, the court, under the leadership of Justice Mary Muehlen Maring, undertook a review to determine the effect of the changes. The results indicated that we have succeeded in reducing gender bias in professional decorum and court activity. An area of concern that was raised is the perception that bias continues to exist in the area of domestic violence restraining orders. In the coming biennium, we ask you to review the entire domestic violence restraining order process to ensure that we are not inadvertently disadvantaging any party.

Case Management System

The court, like every other business or government entity, relies on computers to track our case files and opinions. In today's society, we could not function without them. Our current system, Unified Court Information System (UCIS), is now 18 years old and in need of replacement. Replacing such a complex system is a hard and lengthy process. We anticipate going through the planning, request for proposals, and workflow processes in the coming year, in preparation for purchasing a new system in the next biennium.

Space Needs

In 1977, plans for a Supreme Court building were drafted, and it seemed that a Supreme Court building would be approved then. Ultimately, a decision was made to add a wing to the Capitol that would address the needs of the Court, Health, Human Services, and Central Data Processing. The Supreme Court was allocated 22,000 square feet of space as a 10 to 15 year solution. The large bulk of the space in the "Judicial Wing" is devoted to Executive Branch agencies. The judiciary is a co-equal branch of government with the legislature and the executive in a balance of powers designed by the founders of this country. It has now been 25 years since we moved into the Judicial Wing. We need more space. The unification of the judicial system has resulted in fewer judges but the transfer of the district court employees and subsequently the clerks of district court and their staffs from the county to the state substantially increased our administrative responsibilities and our staff.

I do not have a specific proposal for you to consider, but as you examine the space needs of state government in general, I ask you to remember our space needs as well.

Mediation Pilot Program

We recognize the adversarial system is not good for families. It can and on occasion does inject hostility and bitterness into a situation that is already wrought with emotion. We are aware of this and in 2001, our court adopted a rule encouraging alternative dispute resolution that was intended to address the issue. The rule has not worked as we had hoped. Too many people opt out of the process without even trying it and real mediation remains something available only to those with the money to afford to hire a private mediator. We have wrestled with this issue for a long time attempting, without success, to find a way to implement mediation without additional cost and without disenfranchising the indigent. We have developed a concept for a limited pilot project for mediating custody and visitation disputes when a divorce action is filed and we are asking you to provide funds to test the program in two sites.

A Fair and Impartial Judiciary

As those of you who have attended the State of the Judiciary in past years know, I like to review what the Governor of this state said 100 years ago in his State of the State address to the Legislature. There was no State of the Judiciary then. John Burke was the newly elected Governor of North Dakota. Governor Burke's statue, a picture is on the cover of the report you will receive, now stands outside this Capitol and is one of the two North Dakota statues in the Statuary Hall of Fame in our Nation's Capitol. In addressing the 1907 Legislature, Governor Burke said: "I might also call your attention to the growing sentiment in this state in favor of a non-partisan judiciary . . . . The purpose of such a law would be to take the judiciary . . . out of politics and no such position would then come to any one as a reward for political services, but rather on account of special fitness and qualifications, and believing, as I do, that the enactment of such a law is in the interests of [the] judiciary . . . , I therefore heartily recommend it to your most careful and conscientious consideration." The no party ballot legislation was not enacted until 1909. That legislation required a ballot entitled "the judiciary ballot" upon which were to be placed the names of the candidates for judge of the supreme court and judge of the district court without party designation. Although we no longer have a ballot entitled "the judiciary ballot", since that time the election of judges has been, for the most part, free of partisan politics.

Yet today all across the nation courts are under attack. What started out as political rhetoric has quickly become a threat upon the very institutions designed to protect the citizenry from the tyranny of the majority. Judges are being routinely targeted by special interest groups and threatened with reprisal for ruling on the law. We in the Midwest are not immune. South Dakota recently faced a ballot initiative, financed by out-of-state political action groups that, if passed, would have opened the door to jailing not only judges but also any elected official or juror who made a decision that someone disagreed with. There is ample evidence to show that this rhetoric has accelerated to the point where physical threats and attacks on judges are on the rise. In our own state, there have been 25 death threats against individual judges within the past six years and that does not include other threats to the judges or their families.

Public trust and confidence begins with a fair and impartial judiciary. Judge Edward Brunner, a trial judge from Wisconsin, in accepting the Rehnquist Award for Judicial Excellence from the National Center for State Courts in November, said it well: "Faith and trust in judges begins in each of our communities, in each of our courts. When that trust is earned, nurtured and preserved at the state and local level, citizens are less liable to respond to the demagoguery of interest groups. It is the judges and administrators of state courts who are the point men and women in this effort to earn the public's confidence."

Our very recently completed survey revealed a relatively high level of trust in North Dakota courts by those persons having contact with the judicial system. Every day judges work to provide peaceful resolution of disputes, to protect constitutional rights, and to uphold the rule of law. However, as you recognized when you enacted the Judicial Elections Study Resolution last session, a fair and impartial judiciary, while it begins with judges, involves more than judges. The critical importance of a fair and impartial judiciary in protecting and promoting democracy cannot be overstated. If the people cannot turn to the courts with trust and confidence that the judge will fairly and impartially listen to the facts and apply the law, they have little left to them except despair or violence. Those conditions are something no society can long tolerate and continue to survive.

North Dakota Justices' Teaching Institute

This past October the Supreme Court Justices, with the financial support of the North Dakota Division of Independent Study Institute, developed a public outreach program to foster a better understanding of the role of the courts, how they work and how they make decisions. Recognizing the tremendous impact teachers have on our children and in our communities, we extended invitations to social science and history teachers to participate in a program with the Justices as the teachers and facilitators. Some 25 of our best and brightest teachers spent two days with the Supreme Court in lectures, discussions, and simulated decision-making in which the teachers were the justices. The dialogue between the justices and the teachers was spirited and invigorating. The evaluations of the program were positive and we are now considering future institutes. I am grateful to Justice Mary Maring who spearheaded this project and to all of my colleagues for their willing participation.

Indigent Defense

I must mention indigent defense. As most of you know, the judiciary was a strong advocate for the creation of an indigent defense system independent of the Judicial Branch. The Legislature recognized the need and the logic for such a system and last session you established the Indigent Defendant Commission charged with the responsibility of creating an independent indigent defense system. I am grateful and thank you for your action. The Commission had a Herculean task of creating a new agency, staffing it, and drafting rules and procedures for indigent defense counsel. Under the excellent leadership provided by the Indigent Defense Commission and director Robin Huseby, this was accomplished and the new indigent defense system is working better than anyone could have predicted. Representative Duane DeKrey and former Senator Tom Trenbeath both serve on that Board and I recognize their efforts in protecting the rights of those citizens who are often not able to speak for themselves.

Drug Courts

We are pleased to announce that next week the Ward County juvenile drug court will be in operation. We have finished the planning process for a juvenile drug court in Williston and have committed to beginning a court there as soon as the funds become available and the other participants are ready.

Discussions continue on expanding the adult drug court in Fargo and in putting new adult drug courts in Minot and Grand Forks. Drug courts play an important role in helping people to turn their lives around, giving them a chance that they are not likely to get anywhere else.

State Court Administrator

Ted Gladden, State Court Administrator, retired a year ago. Ted served the North Dakota Judicial Branch in a number of capacities during his career. I am grateful to him for his good work and sound advice in the administration of the North Dakota Judicial Branch of Government.

Subsequent to Ted's retirement, I appointed Sally Holewa State Court Administrator. Sally was the court administrator for Administrative Unit 3, comprising the Southwest and South Central Judicial Districts. Sally has established herself as an able and innovative state court administrator. She will be meeting many of you for the first time during this session, and I know you will quickly come to appreciate her abilities and her grasp of the issues.

District Judges

Effective January 1, 2001, the number of district judges was reduced to 42. As I have mentioned in the past, I have concerns 42 judges may not be enough to assure our citizens the access to justice without delay required by the North Dakota Constitution. Our latest weighted caseload studies now indicate a statewide shortage of 5 judges. The district courts have been actively developing better case assignment and judge rotation schedules to meet this growing demand. We are serving the needs of litigants to reach the courtroom in a timely fashion, but we are mindful that it comes at the price of rationing the amount of time they may spend there.

We are asking for salary increases that will bring us to a level somewhat commensurate with our colleagues in South Dakota, our sister state, and the state that most closely models the demographics and culture of North Dakota. We believe this request fits with the concept of equity adjustment for positions that are substantially underpaid.

Conclusion

In closing, allow me to again quote Governor Burke's words 100 years ago. While he was speaking to the Legislature, his words apply to all of us, regardless of the branch of government in which we serve:

"We should not forget that we are here as the servants of the people and that, as such, it is our duty to favor the enactment of wholesome, good laws, no matter from what source they come, and to put the seal of disapproval upon those which are not wholesome and good, irrespective of their source."

"We should forget all party differences and personal grievances and give to the corporation and individual justice alike. Each is entitled to this and none is entitled to more."

Governor Burke closed with a promise to the Legislature to cooperate and assist to the best of his ability for the common good and general welfare of our citizens. I also promise you, the Legislature, and Governor Hoeven the cooperation and assistance of myself and the other judges and employees of the Judicial Branch as you chart the future course for the people of our great state.

Thank for your allowing me to speak with you this afternoon.