State of the Judiciary Message to the Bar 2007 Thursday, June 14, 2007

President King, members of the North Dakota State Bar Association, I am pleased to be here today to report on the State of the North Dakota Judiciary. I know your time is limited, so I will move right into my remarks.

Weighted Caseload & Judge Need

Since I last spoke with you in June 2006, Judges Ronald Goodman, Ronald Hilden and Robert Holte retired. Judges Lester Ketterling and Burt Riskedahl retired earlier in 2006. In 2006, five of our most experienced trial judges left the bench. That is a considerable number in one year in a state that currently has only 42 trial judges. Also, since I last spoke with you, we have re-calculated our judge need using the weighted caseload method we have used for many years. As of 2006, we are seeing a need for 5 additional judgeships. Our latest study shows an increased judge need in Fargo, Bismarck, Jamestown, and Minot. Although this is only a snapshot in time, if this trend continues, we will be approaching the Legislature in the next biennium to request an increase in the number of judgeships.

Tone and Tenor of Judicial Elections

Recent judicial elections in other states have unfortunately proven the prediction that Republican Party vs. White would lead to expensive, partisan, and caustic elections. Judges in those states are coming to the bench after slogging through the mud of bitter campaigns largely fueled by special interest groups determined to pack the bench with advocates. Although we have yet to experience this in North Dakota, what happened in those states reflects on all of us. The threat that this poses to a fair, independent, and impartial court system cannot be overstated.

Outside of judicial elections, we have already seen the rise of out-of-state interest groups providing funding and support for change in North Dakota. There is no reason to believe those groups will not be here as well. We need only look to N.D. Family Alliance v. Bader and similar cases brought in several states. Judicial elections are not immune to these forces. Without restrictions, special and single interest groups are allowed to choose the candidate they will endorse. The candidates seem unable to control neither the tone or tenor of these groups, nor the content of their advertisements, and judicial races can become a race to the bottom.

Although the Legislative Council declined to continue the interim study of judicial selection that it began last biennium, I urge this Association to continue the Task Force it assembled and to continue to consider appropriate alternatives in either the judicial selection process or other related areas to confront these potential problems.

Finally, we do retain control over the tone and tenor of our own behavior. North Dakota judicial elections have always been marked by civility and respect between the candidates. Let us vow to carry on that fine tradition regardless of all other changes that may be thrust upon us.

Family Mediation Pilot Project

It is customary for lawyers to shake hands with opposing counsel and congratulate them on a good fight after a hard-won legal battle. Lawyers are trained to respect the process and not to take legal maneuvering personal. With this background, it is sometimes easy to forget the degree to which a legal battle becomes a personal battle for litigants. Nowhere is this more evident than in family law cases where in order to win one party must call into question the other's parenting skills, question the degree of their closeness to their child, and mock their ability to provide adequate love and protection for their child.

Our current adversarial system can do a disservice to parents and their children. We can no longer pretend that we are unaware of that fact.

Several years ago, we enacted a rule that allowed for court-sponsored mediation. It was a worthy goal, but as a program, it has failed. It is time to try something else. This is too important an issue to individual litigants and to society, as a whole, to not try another method.

Realizing that, we pursued and received funding from the Legislature to establish a pilot family law mediation project. The pilot project will be administered by the Supreme Court and handled on a contract basis with sites located in the Northeast Central and South Central Judicial Districts.

Some members of the bar may take offense to the notion of court-sponsored mediation. I hope not. However, they may feel it is an intrusion into pre-trial negotiations and fear it will have an adverse effect on their ability to settle cases in their client's favor. We are moving with care to develop protocols to address these concerns. But, there should be no mistake -- we intend to change how contested family law cases are handled, and we are going to do so with the deliberate intent of making it less acrimonious for these disputes to be resolved.

We cannot erase the pain that occurs when a family splits apart, but we will do everything within our power to ensure that the court system is not adding to it.

I have asked the Joint Committee on Alternative Dispute Resolution, chaired by Rebecca Thiem, for their recommendations. I understand the committee has appointed an expanded subcommittee to study the matter and make recommendations to our court. I look forward to receiving their report.

Juror Privacy

Nationally, the issue of juror privacy has been a topic of much discussion. This has been largely driven by jurors themselves raising concerns about retaliation, identity theft, post-trial contact from litigants and the media, and other general privacy issues. It is not unusual for us to see these same types of concerns raised in our own juror surveys.

In response to these concerns, we have adopted the ABA standards on juror privacy and handling juror information. These standards include differentiating among information collected for jury qualification, jury administration and voir dire.

The modified juror qualification form, which only requires prospective jurors to answer questions to determine if they qualify to serve as a juror, is probably the most visible of these changes. Some of you have expressed concern by the change. We do not intend to interfere with a lawyer's ability to prepare for trial; however, our first priority has to be to the persons who sacrifice time and money to carry out the very important function of jury service.

Standard Forms

We have expanded the role of our Trial Court Operations Committee to include review of statewide forms. Some forms, such as those for criminal judgments and domestic abuse, have not been modified in some time, and we recognize the need to update them. That committee is chaired by Judge David Nelson. The committee will call on others who have expertise in the area in which certain forms are being modified or developed. I encourage you to contact Judge Nelson if you have suggestions for the committee.

Interim Studies

In 2006, the Gender Fairness Implementation Committee did a 10-year assessment of our efforts to reduce gender-based bias in the court system. The assessment revealed that we have made great strides in mitigating gender bias in employment, in decision making, and in treatment of litigants and counsel.

The area of domestic violence remains a concern, and one of the recommendations that came out of the assessment was that we should study the processes, procedures, and statutes governing protection orders. This recommendation was put before the Legislature and was chosen as an interim study resolution.

The Legislature also chose to study best practices related to child custody. Child custody, as you well know, was an issue this last election and this past legislative session, and it will continue to be an issue. We cannot say that how we handle child custody is the best system nor can we say with any reliance that another system would be better. I welcome the interim study and look forward to the recommendations that come from it.

The area of juvenile court responsibilities was not chosen as an interim legislative study. Nevertheless, we consider this an important issue that needs to be resolved, and I expect the Juvenile Policy Board will continue working on it.

Children's Justice Initiative

I formed a Children's Justice Task Force to examine how we are doing in the area of foster care. Part of that initiative is to identify delay in how cases proceed to final disposition. One of the issues I have chosen to address is delay in the appellate process of cases involving abuse or neglect. North Dakota is one of only a few states that does not have an expedited process for these cases.

The Task Force recommended an interim legislative study to look at some of the concerns raised by the task force, which includes adequate funding for social service agencies staffing, treatment options, and foster parents, among others. The Legislative Council did not choose this area for an interim study.

Another issue that deserves review is how we implement the provisions of the Indian Child Welfare Act. The Juvenile Policy Board proposed some statutory language that would have served as a guide in this area. This proposal was rejected by the Legislature. Because consistency in application is a justice issue, we may need to revisit this issue as a court rule.

Self-Represented Litigants

We live in a changed society. Over the past twenty years, increased access to higher education and fingertip access to information have transformed how the average citizen does business. This is obvious in the reduction of the role of broker or middleman across a wide spectrum of services: investment, real estate, and travel come most easily to mind. It is also obvious in the increased number of self-represented litigants that contact the court every day.

In addition to the "do-it-yourself" culture that now exists is the economic reality of court-related costs. Many people simply cannot afford to hire an attorney to represent them or believe they cannot afford an attorney regardless of how much they may want to, and choose to proceed on their own. While we should and do provide access to the courts to the self-represented, at the same time we must balance their plight with the rights of parties represented by counsel and the need for respect for court rules and procedures.

As a court system, we have a duty to provide adequate information to all litigants. We have committed to expanding the number of resources we offer, including better training for clerks of court and more web-based information about the court system in general and about how different cases proceed through the court.

Legislative Relations

I have already mentioned several matters involving the legislative session. Another item, which may be of some interest to you, involves UCIS, the Unified Court Information System. UCIS has served us well but it is reaching its limits, and we requested money from the Legislature to begin the planning process to update or replace the system. The Legislature granted our request. As of now, it appears we will look at a new system, and we will ask the 2009 Legislature for funds to replace that system. Our implementation of enhanced records management will be put on hold until the new system is developed.

The Legislature treated the Judicial Branch well and I am grateful. Our budget raised few questions. Although some might say it was due to the large surplus, other budgets faced more problems. We have worked hard to make the budget process transparent, and we have been candid in its preparation and presentation. I believe the hard work and integrity of Sally Holewa, State Court Administrator, and Susan Sisk, Director of Finance, are major reasons for our success.

I acknowledge the support of the State Bar Association, its Board of Governors, its Legislative Committee, and Bill Neumann, the Executive Director. There was little lawyer bashing or judge bashing in this Legislature. The executive director and the Legislative Committee obviously did a superb job in testifying before committees, explaining proposed legislation, and providing information and assistance to the legislators.

Public Trust and Confidence

This past year, we conducted a public trust and confidence survey. Overall, we found that court users have a very positive perception of the court system.

Comparison with the 1999 Public Trust and Confidence survey shows that perceptions have improved dramatically since 1999.

We found that the factors with the greatest increase in positive scores are those factors that the court can directly control: monitoring the progress of cases, availability of judicial services, helpfulness and behavior of court staff, ease of process, enforcement of orders, clarity of orders, and perception of judicial integrity.

The survey did indicate some issues remain, in particular those related to the cost of bringing a case to court and lack of information about the courts, as well as a perception that judicial decisions are affected by political and campaign concerns. I believe that the latter perception is affected by the national scene in view of the few contested judicial elections in North Dakota.

We also found that forty-six percent of respondents were at the courthouse to get case information, file papers, or make payments. We see each of these as areas in which the court can strive to develop technological solutions that will give citizens a choice of going to the courthouse or accessing information remotely.

We know that perceptions about the courts are not developed in isolation. They are a reflection of the entire legal community. I applaud you for your efforts to make the legal system fair and understandable. I also thank you for the time and talent you provide in serving on court committees and joint court and bar association committees. We would not have the fine system of justice we now have nor respect for that system without you.

Closing

Although the bar and the judiciary do not and need not always agree on a given issue, the cooperation and open discussion between the bar and the bench benefits not only judges and lawyers, but the public as well. I am grateful for that relationship. I do not take it for granted, and I intend to foster it.