State of the Judiciary Message to the Bar 2005 Thursday, June 16, 2005

"The only sense that is common in the long run, is the sense of change - and we all instinctively avoid it."
—E.B. White

Introduction

Thank you Madam President for the warm introduction. I appreciate the opportunity to report to the gathered membership of the North Dakota State Bar Association on the State of the North Dakota Judiciary.

As I have stated in past presentations, change is ever present and it seems almost all consuming. In a quotation by E. B. White, he said, "The only sense that is common in the long run, is the sense of change - and we all instinctively avoid it." Fortunately, or unfortunately for those who resist change, and most of us do at one time or another, there is a great deal of truth in this quotation. My remarks today are about changes in the last year.

Indigent Defense Services

A milestone was reached with the passage of SB 2027. This bill provides for the creation of an indigent defense commission. For a number of years, I have been very concerned about the organization of indigent defense services, believing that the services should be administered by an independent body and removed from judicial oversight. As you may recall, there was an interim legislative study approved following the 2001 legislative session. Legislation was introduced in 2003, but that bill failed. During the interim leading up to the 2005 session, another interim legislative committee was given the task of assessing our indigent defense services a second time. This committee, under the leadership of Representative Lois Delmore, of Grand Forks, worked in collaboration with a State Bar Association task force to review our current delivery system and provide recommendations to the interim committee for change. I take a moment to recognize and thank the lawyer members of this task force: Sharon Wilson Martens, Birch Burdick, Dennis Fisher, District Judge Laurie Fontaine, Jim Ganje, District Judge John Greenwood, Marvin Hager, Rebecca Heigaard McGurran, Representative Lawrence Klemin, District Judge Debbie Kleven, Representative William Kretschmar, Lawrence Kropp, Kent Morrow, Steven Mottinger, Chad Nodland, David L. Peterson, Bruce Quick, District Judge Allan Schmalenberger, Sandi Tabor, Robert Thomas, Senator Jack Traynor, Senator Thomas Trenbeath, Senator Constance L. Triplett, and Christine Hogan, Staff. The task force, which was funded in part by the Bar Association, the Supreme Court, and the Legislative Assembly, developed a legislative proposal for submission to the interim legislative committee. That proposal is now law. The new system calls for an increase of over $5 million in funding for the creation of the commission and a 48% increase in funds available for contract services.

Once the legislative session began, there were many people involved in moving this initiative forward. Joel Gilbertson, Sherry Mills Moore, Sandi Tabor, and Jack McDonald played keys roles in lobbying for the successful passage of this legislation. I would be remiss if I did not recognize the support of the chairs of the House and Senate judiciary committees, Representative Duane DeKrey, who was also a member of the task force, and Senator Jack Traynor, for their guidance of this bill through the committee process. Representative Ron Carlisle of the House Appropriations Committee, also a member of the task force, played a key role in working with the judiciary in the funding strategy for the commission itself.

This legislation represents a milestone in criminal justice services in our state. The Legislative Assembly has provided greater funding to assist the new system in addressing the shortcomings of our present system. Funds have been included in the commission's budget for a director and support staff. Passage of SB 2027 is as significant as many of the earlier pieces of legislation that resulted in the unification of the courts of North Dakota.

To each of you who visited with individual legislators in support of this legislation, thank you. The Legislature may not have been eager to spend scarce resources on this issue but they saw the need, recognized their obligation and did what needed to be done. Please thank your legislators. This is the type of legislation that could not have passed without the commitment and involvement of many people.

Courthouse Improvement of Funds

As I reported last year, a statutory committee is in place to provide funds to counties for courthouse renovation and maintenance projects. In the first cycle of grants, $536,647 in grants was awarded to counties. For the first biennium of its operations, it is anticipated that the committee will have approximately $920,000 available for grants. This program provides funding for specific court-related projects that will improve the physical plant in our 53 counties. Grant funds derived from a mandatory assessment in criminal cases. The granting process represents a commitment to the maintenance and upkeep of county courthouses. I hope you will notice the changes being made in the various county courthouses of the state. Changes range from remodeling initiatives to new carpet, paint, and improved sound systems in the courtrooms. This initiative underscores a recognition that court facilities in all of our counties should be maintained to a high standard for the citizens of the state.

Technology Advancements

We have moved forward with the installation of digital audio recording systems in our courthouses. The systems are being installed to replace the analog recording systems that we have used for many years. By June 30, we will have extended digital audio systems to Barnes, Ramsey, Richland, Stutsman, and Walsh Counties. Systems were installed earlier in Cass, Grand Forks, and Stark Counties. We will continue to assess this technology and expand it into the more rural jurisdictions of our state as we can justify it.

Interactive Television

As you know, we have recently adopted and already amended Administrative Rule 52, which provides a general framework for the use of interactive television throughout the state for selected court proceedings. It will permit, among other things, the acceptance of a guilty plea and sentencing of a defendant with the consent of the parties. Use of this technology is being requested by lawyers, judges and the general citizenry to facilitate judicial proceedings. By the end of June, we will have expanded interactive television to Grand Forks, Ramsey, Stark, and Ward Counties. We are also installing a second system in Cass County due to the volume of ITV hearings being held in that county. As each day goes by, we learn of new applications for this technology. We now have interactive television in a conference room at the Supreme Court and have begun using it for staff meetings of the State Court Administrator's Office as well as other committee meetings. We are already realizing a savings in travel time for our personnel. I am confident that as the technology becomes more commonplace, we will find more uses for interactive television in support of the court's business.

We are just now moving forward with a pilot project in Mercer and Burleigh Counties on an enhanced records management system. This system will provide for imaging of court records and ultimately electronic case filing in the trial courts. This system will be tied to our electronic case management system. The concept is based on the elimination of a paper file in one location. Using an electronic record, judges and court personnel will have access to the court's record from remote locations. Once the pilot project has successfully concluded, we will consider implementing enhanced records management services in the other 51 counties of the state at a rate of approximately two counties per month. This is a substantial undertaking for our technology staff and will create a learning curve for our clerk personnel. However, once implemented, it will reduce our records storage needs and increase access to court records dramatically.

Administrative Reorganization

We are now into our tenth month since Administrative Rules 2, 22, and 6.1 took effect and provided a new administrative organization for the judicial system. We have professionally trained administrators in Administrative Unit 1, which is the Northeast and Northeast Central Judicial Districts, Administrative Unit 3, which is the South Central and Southwest Judicial Districts, and Administrative Unit 4, which is the Northwest Judicial District. We are actively recruiting to fill the position in Administrative Unit 2, which is the East Central and Southeast Judicial Districts. I am heartened by the reports I have received regarding this initiative. My directive to our State Court Administrator was that reorganization should occur with minimal disruption to the judges and lawyers of the state. Based on work plans that have been created in the administrative units, this administrative reorganization is being carried out in that spirit. We are striving for greater consistency in administrative processes and removing day-to-day administrative tasks from the judges' shoulders. None of our activities has in any way impeded or changed the delivery of judicial service, which was one of our objectives. Rather, we are gaining efficiencies as we reassess our personnel needs and simplify our operating procedures.

Accountability

This session brought about a number of pieces of legislation to address accountability within government. These initiatives are directed towards achieving greater accountability on the part of all units of government. I am happy to report that we are in a position to embrace and respond to any questions concerning the judicial branch, while always recognizing we are a separate branch of government. Our weighted caseload study for judges and weighted workload plans for clerk of court and juvenile court personnel position us well for assessing personnel needs. Our docket currency standards provide the basis for routinely monitoring the workload of the courts. We are positioned to identify administrative needs as they arise and respond expeditiously, timely, and effectively to these needs. We have effective tools in place to monitor our branch's operational needs and communicate this information to the Legislative Assembly and the Executive Branch.

On the point of the role and use of docket currency standards, I stress that cases are monitored from the point of filing in the district court. At times, this may cause angst for some parties and their attorneys, but it is the court's responsibility to assure timely resolution of all cases. The phrase "justice delayed, is justice denied" underscores the need for aggressive case management procedures.

Judicial Selection

In the January State of the Judiciary Message to the 2005 Legislature, I noted my concern with the attack on the Code of Judicial Conduct which governs the actions of judges and judicial candidates, particularly as applied to elections. I told the legislators I had a concern but no proposals, not even a study resolution.

A study resolution, HR 3014 to study judicial elections and recent court decisions affecting conduct of judicial elections was introduced, not at my request although I did not oppose it. It was accepted for study by the Legislative Council and assigned to the Judicial Process Interim Committee. As of this writing I do not know the members of that committee. While I would prefer elections as we have known them in the past, that is most likely wishful thinking. They will, like the other areas I have touched upon today, change also. But we should strive to find a system that keeps judges as free from bias, actual or perceived, as can be maintained in light of the developing case law. I urge the Bar Association to take part in the discussion before the Judicial Process Committee of this significant issue.

Since we last met, we have had five retirements. Their replacements have been filled by election this last November. The electors chose Steven Marquart and Steven McCullough to succeed Judges Larry Leclerc and Michael McGuire; Sonja Clapp to succeed Judge Bruce Bohlman; and Gary Lee to succeed Judge Gary Holum. I recognize the years of dedicated service by the retiring judges and welcome the new judges to our judiciary. William Neumann served our state very ably as a district judge for 12 years and then on the Supreme Court for over 12 years. We miss him on the bench but we are pleased he will continue working for the profession and our citizens in his position as your Executive Director. I know he will enjoy the challenges of his new career. Ted Gladden, State Court Administrator, has announced his retirement. I regret that decision but I must respect it. Ted has given many years of service to the North Dakota Judiciary in several positions including State Court Administrator. I owe Ted a big thank you, as does the entire judiciary, for a job very well done.

Today, I have touched on a number of initiatives and activities that are underway in our judicial system and which reflect on our continued commitment to providing a high level of judicial services for all citizens of the state. In the midst of these changes, I ask you to reflect on the values of our system of government and the critical role the judiciary plays in the lives of every citizen. As we look at the efforts being made throughout the world to establish democratic forms of government, we must be mindful and thankful for our Constitution. It provides the framework within which we can continue to make changes to improve the administration of justice. I am also mindful of the relationship between the bar and the bench in North Dakota. While we may, on occasion, disagree on a particular matter, together we have accomplished many beneficial initiatives for the profession and most importantly for the citizens of our State. Thank you for your support this past year and particularly this legislative session. I look forward to continuing our positive working relationship in the future.