State of the Judiciary Message 2008 Thursday, June 12, 2008
by Chief Justice Gerald W. VandeWalle
State Bar Association of North Dakota Annual Meeting
Thursday, June 12, 2008
Grand Forks, North Dakota
President David Petersen, officers and members of the State Bar Association, I am grateful for the opportunity to again report to you on the state of the North Dakota Judiciary. In past years we have made printed copies of this message and attached to it the Annual Report of the Courts. Because both the State of the Judiciary and the Annual Report are readily accessible on the Supreme Court website, almost simultaneously with my appearance, we have not done so this year. The Supreme Court website address is: www.ndcourts.gov. But, if you or someone you know who is not here would like the message or Annual Report in hard copy, e-mail rbarnaby@ndcourts.gov, call or write us and we will forward a hard copy to you.
It is not unusual for words to change meaning with the passage of time. Over the course of my lifetime, one of those words has been "collaboration." As a boy growing up during World War II, collaboration meant colluding with the enemy. At that time, a "collaborator" was a person who secretly helped the enemy destroy his neighbors, in short, he was a person to be despised. A lot of time and a lot of changes have passed by since those days. Today, I stand before you and say that much of what has come to pass since I last spoke to this distinguished body is because of collaboration — collaboration, not in the sense I knew it as a boy, but collaboration in its most honorable form — the joining of like-minded individuals working for the betterment of society.
I will speak first of the court's mediation pilot project. The pilots are located in the Northeast Central and the South Central Judicial Districts. That project is just now getting off the ground, with the first mediation sessions being delivered in May of this year. We would not be nearly this far along if it were not for the work of the joint committee on ADR under the leadership of Becky Thiem. A subcommittee, under the leadership of Kristine Paranica, put in many, many hours assisting in the development of the court rule and program protocols that the project is working under. Kristine Paranica was instrumental in drafting the protocols, and we are grateful for her dedication to the concepts of alternative dispute resolution. Together they took an idea and a concept and gave it form and substance. There will undoubtedly be changes as we move ahead. This is, after all, a pilot project. I know that even though many of you have expressed apprehension over this project, you are nevertheless supportive of its primary goal of reducing acrimony in family cases.
Along these lines, the Bar Association's Custody and Visitation Task Force under the chair of Sherry Mills Moore has been studying custody issues and is preparing to make recommendations to the interim committee on Judicial Process. I am looking forward to learning more about those recommendations and to working with the bar to implement any legislative changes that result from them.
The use of joint bench and bar committees and task forces is one way in which ideas can be studied and refined. Over the past few years, several lawyers and judges have been involved in the Bar Association's Task Force on Judicial Selection, chaired by Jack Marcil. As you know, the legislature declined to again take up this issue as an interim study, most probably because there has been little or no recent controversy or scandal in North Dakota judicial elections. But I do not believe that the Pandora's Box that was opened with Republican Party vs. White can be easily closed. Frankly, the news from judicial elections in other states seems to get worse rather than better. While we have yet to see the high-dollar, hard-fought, some would say dirty, judicial elections that courts in other states are dealing with, we cannot be too quick to assure ourselves that we never will. We cannot assume that the growing lack of trust and confidence in the judicial system in those states does not affect the public trust and confidence in the North Dakota judicial system. It may be that future events will require us to once again take up the work that this Task Force has begun. If that should happen, we can be confident that the work done by this Task Force will have laid a firm foundation upon which to build.
There are a number of other instances of collaboration with outcomes which have benefitted the citizens of North Dakota. The successful teen drug court program which Justice Maring has promoted and the equally successful adult drug court program which Judge Hagerty pioneered in Bismarck are two such efforts. These programs are now being implemented across the state. They are possible because of the cooperation between the courts, lawyers, the Department of Human Services, the Department of Corrections, the Highway Patrol, and other agencies that have provided personnel or funding through grants or appropriations to support the drug courts.
The Children's Justice Task Force, about which I spoke last year was the result of cooperation among the three branches of government. A local program in Cass County, involving a variety of local government and private agencies as well as the courts and the lawyers, is intended to identify and divert people who, as a result of mental problems, would otherwise be entering the criminal justice system.
A new program pioneered by Mike Schwindt in Dickinson with the cooperation of Judge Schmalenberger and Job Service helps parents who are unable to make required child support payments because of unemployment find jobs. The program has won national attention and a national award for its innovative ideas. It is now being expanded to other judicial districts and eventually it is intended to become a state-wide program.
There are other examples I could, and perhaps should, have mentioned. For the most part the results of these collaborative engagements are well worth the effort.
However, working together does not necessarily mean that the bench and bar will always agree on things. In that spirit, I point to the new court rule on disclosure of malpractice insurance. I recognize there was some opposition to this rule when you enacted a resolution a year ago authorizing the Board of Governors to petition the Court for its approval. I know that many of you are discouraged by what seems to be a constant barrage of negative images about lawyers and the practice of law. It is not the intent of the Supreme Court to propagate those images. Rather, we understood that the Bar Association and the Board of Governors recognized it is a growing trend for states to require disclosure. It is far better for us to get ahead of the curve then it would be to wait until some other body decides to take it up as an issue. We are a self-regulating profession. As such, it is imperative that we look at the profession through the eyes of others. We must strive to understand their concerns and to meet them head-on. We must continue to set our own standards high. This is not always easy, but I submit to you that it is always necessary.
We are also acutely aware of concerns over the juror qualification and questionnaire forms. The Jury Standards Committee again considered the matter and I understand that while no changes were made in their recommendations, the Committee continues to work to find a common ground that will protect jury privacy and yet assist the lawyers in choosing a fair and impartial jury.
On another matter, and as a "heads up," the Judicial System is in the process of replacing its current case management system, UCIS. An expanded technology committee chaired by Justice Sandstrom is looking at vendor proposals, and we expect to again request funds to purchase it from the legislature. We had money in this biennium's appropriation but will not be able to complete the purchase during this biennium. I bring this to your attention because in a variety of ways, only one of which is e-filing, what we do with the case management system will affect many of you, directly or indirectly. Stay tuned!
Finally, our need to collaborate does not stop with the good work that was done this past year. I have two issues in which I wish to elicit your support.
The first involves pro bono work. I am pleased that North Dakota lawyers contribute countless hours of their time and expertise to provide free or reduced fee services to individuals and to community causes. While the oil-boom and higher prices for agricultural products are bringing revenues into the state, not everyone is able to share in the prosperity. The rising costs of gasoline and food are pushing more people to a point where they have trouble meeting everyday needs. When these same people are confronted with a legal issue, they often have nowhere to turn except to Legal Services. As you know, the federal funds for Legal Services are limited. The State provides limited assistance from the filing fees, but without your help in filling in the gaps, more people will find themselves all alone in court. We are seeing continuing increases in the number of people who represent themselves in court. I do not know how many others there are who attempt to represent themselves in transactions in which they should seek the advice of a lawyer but do not have the financial ability to seek that advice. In any case, as the numbers grow so does our obligation to assure they have meaningful access to justice increase.
The lawyer's profession is an honorable one, and it places a high regard on service to others. The comment to Rule 6.1 of the Rules of Professional Conduct, the rule advocating pro bono public service, recognizes "the basic responsibility of each lawyer engaged in the practice of law to provide public interest legal service."
I urge you to look to the needs of your community and give serious thought and consideration to what you can do to help. Finally, and most important, I ask that you act to provide those needed legal services. I know the State Bar Association office will be happy to hear from you.
The second issue in which I ask for your support is this: I am growing more and more concerned about the need for and how the courts deal with guardianships and public administrators. With our aging population, it will become an issue of ever greater importance. I think that it may be especially acute in North Dakota because many of the family members who would normally provide care to elderly relatives are no longer residing in North Dakota. I intend to approach the legislature with these concerns and ask them to consider a study on population and aging issues. If this resolution should be accepted for interim study, I expect the legislature will look to the Bar for its input.
In the past, the judicial branch was inclined to hold itself aloof, to wait for problems to reach the point of a lawsuit rather than become involved. While I might occasionally find myself longing for those quieter times, I am glad that times have changed. I am glad that I can stand here today and say, "Thanks to our collaborative efforts, our courts and our communities are strong."
I close by acknowledging the positive working relationship between the State Bar Association and the Courts. Neither is beholden to the other, but we have listened carefully when you asked us to and you have always graciously heard us out. Together we have benefitted the State of North Dakota, and in doing so we have bettered our profession.
Thank you.