State of the Judiciary Message to the Bar 2009 Thursday, June 11, 2009
by Chief Justice Gerald W. VandeWalle
State Bar Association of North Dakota Annual Meeting
Thursday, June 11, 2009
Bismarck, North Dakota
President Maring and fellow members of the State Bar Association of North Dakota, I am pleased to be here today to deliver the Court's annual message to this assembly. I intend to outline briefly some of the matters, other than legal actions, that have occupied the Judicial Branch since I last spoke with you. We have decided to "go green" and this message has not been printed. It will be available on the Supreme Court's website along with the January, 2009 State of the Judiciary message to the Legislature.
Judicial Planning Committee: The courts and the practice of law are continually adapting to new ideas, new expectations and new technologies. To anticipate and deal with these changes, the Judicial Planning Committee, chaired by Justice Carol Kapsner, has been reactivated and held its first meeting on Tuesday of this week. The work of this committee will be important as we try to map the future of the courts and keep abreast of the issues which will face us.
Securing Personal Information: This year the court adopted a new Rule of Court, Rule 3.4, which is designed to secure the personal information of litigants. It is a difficult decision to determine where to draw the line when the information is necessary to distinguish one person from another or required by an outside entity to process a court order and we received some negative feedback. The new rule provides two different options for submitting designated personal information. We believe these options are the best way to gather information that is necessary to process cases yet afford litigants some measure of protection against theft or harassment.
Legislature: This session of the Legislature was different for reasons you already know about. While the Legislature chose not to study some of the issues we asked it to look at in the coming interim, and while we did not receive all the new positions we asked for, the Legislature did authorize two new judges and the Supreme Court has begun the preliminaries in determining the chambers for those new judges. There were a few bumps but for the most part it was a good session for the Bar and the Judiciary. This is due in large part to the leadership of President Maring, the Board of Governors, Executive Director Bill Neumann, State Court Administrator Sally Holewa and the staffs of the Association and the Courts. I appreciate and thank them for their efforts not only with the Legislature but in many other areas that affect what we do as lawyers and judges.
I do want to comment briefly on a few legislative actions which affect the bar and the bench.
Parenting Act: This past biennium this Association's Task Force on Family Law worked very closely with the Interim Committee on Judicial Process to identify best practices for handling divorce cases involving children. The result of that study was introduced to the Legislature as SB 2042, and passed with minimal changes. There are three components to the Parenting Act that require all of us to make some adjustments in our way of speaking and thinking, yet afford us an expanded opportunity to assist families through one of the most difficult periods of their lives. Those three changes are: new terminology; the introduction of parenting plans; and a new parenting coordinator program. I will say just a few words about each of these.
A. Terminology -- I know it is difficult to suddenly stop using the familiar words of "custody" and "visitation" and instead use the longer, and what may feel like more awkward, terms of "primary residential responsibility" and "parenting time." I will need to make a special effort to adapt and I ask you to make a concerted effort to do so also. The change in terminology is not just "window-dressing" as some people have suggested but a more fundamental change. These terms do not carry the negative connotations of the current terms and they more accurately describe what occurs when a couple divorces.
B. Parenting Plans -- A parenting plan will be required for all divorce cases involving children filed after August 1, 2009. These plans are designed to eliminate future conflict by spelling out the rights and responsibilities of each parent. While this is good in and of itself, the plans also serve a deeper purpose. By emphasizing the specifics for the future, it should shift the focus of the litigants from the mindset of "I'm divorcing" into a post-separation mindset that reflects the reality of parenting from separate homes.
C. Parenting Coordinator Program -- Finally, the bill establishes a parenting coordinator program. The role of the parenting coordinator is to resolve parenting time issues in high conflict cases. The Court, with the assistance of the Alternative Dispute Resolution subcommittee, is currently working on a parenting coordinator rule, and putting together policies, procedures and protocol for the parenting coordinator program. We expect this program to be running statewide by early fall. It will require cooperation among the lawyers, the parenting coordinators and the judges to make this program work.
Family Law Mediation Program: The Family Law Mediation Program has been running for more than a year now in the South Central and Northeast Central Judicial Districts. The acceptance of the program and the initial evaluation of its effectiveness have been excitingly positive. In August, we will be expanding the program into three more districts: The Southwest, Northeast and Northwest. We are excited about the opportunity to offer these services in more areas. While time will tell the story of the lasting success of the mediations, we believe that the program will continue to prove its value to the litigants who use its services.
Task Force on Racial and Ethnic Fairness: Bias cannot be tolerated in any governmental branch or institution, but it is particularly harmful in the courts, to whom the public rightly looks to for fairness and neutrality. To be certain that our courts are meeting the needs of all who come before them, I asked the Legislature for funding a Task Force on Racial and Ethnic Fairness. The Legislature appropriated the funds and this task force will begin its work later this fall. Some of you may be asked to serve on the task force and all of you will be asked to participate in focus groups and surveys. I hope you will take the time to assist us in this important endeavor. The Gender Fairness Task Force revealed we had work to do and the time has come for us to look at where we are in matters of race and ethnicity.
Justices Teaching Institute: One of the initiatives of the Court, under the leadership of Justice Mary Maring, is the Justices Teaching Institute. Lee Ann Barnhardt, the Judicial Educator, has planned the third such institute for this fall and some 17 social science teachers from the middle schools and high schools will come to Bismarck for the program to hear from the five justices more about our system of government and especially the courts and the legal system. We have also been pleased, along with many of you, to be involved in the We The People program sponsored by the State Bar Association. If we intend our legal system and the system of government under which it operates to continue, it is important that we support and become involved in helping succeeding generations to understand and appreciate what we have.
Electronic Filing the New District Court Case Management System: We are implementing a new district court case management system, called Odyssey. Because there were some disasters with some governmental agencies' information technology projects, there was concern among the legislators about the new case management system for the Judicial Branch. However, our court technology committee, chaired by Justice Sandstrom, the operations oversight group chaired by Judge Schmalenberger, the technology staff, the State Court Administrator, Sally Holewa, and, in fact, the users, have done a superb job in selecting a provider and working with the provider. Once the Legislature saw the preparatory work that has been done, they appropriated the necessary funds to implement the new system this biennium. The system will be implemented in Cass and Traill Counties in October. This will begin a two-year process of converting all district courts and ten municipal courts to the new system. The new system will incorporate electronic filing and document management. The court is fully funding the electronic filing component, so there will be no added costs to litigants for using it. Odyssey will also make it possible to transmit notices and orders electronically. At some point, I believe we will need to look closely at some of our longstanding rules to decide when and how we can leverage this technology to better serve all of us including the lawyers using the court system.
International Issues - Foreign Lawyers Admission to Practice: Two weeks ago Justice Crothers and I attended a conference in Chicago entitled "The Future is Here." It was sponsored, among others, by the ABA and the Conference of Chief Justices. Its purpose was to alert us to what is taking place with the practice of law globally. I moderated the opening panel composed of representatives of the legal professions in England, Australia and New South Wales as well as a professor of International Law from Penn State University. That panel and other panels during the day discussed the advent of multi disciplinary practices as well as investor owned law firms.
Although it was not intended to be the topic of the conference, the issue of the admission of foreign law graduates to practice in this country also arose. I serve on an ad hoc committee on International Issues of the Section of Legal Education and Admission of the Bar. I chair a subcommittee whose task it was to determine whether or not the ABA should consider a model rule on the admission of foreign lawyers. Our subcommittee's report is due to go to the larger committee this week. These issues are all intertwined and bear watching.
The luncheon speaker at the Chicago meeting was Michael Greco, past president of the ABA. He told us that we should take advantage of lessons we can learn from those countries that are now engaging in far reaching experimentation and that questions need to be answered before we seriously consider the types of reforms implemented in England, Wales and Australia. He set forth a list of provocative questions including one that asks "Why should not the state supreme courts, pursuant to the separation of powers doctrine, regulate the legal profession in the US -- as opposed to Congress, the Executive Branch of government, the state legislatures, or an independent and all-powerful Legal Services Commissioner as in Australia?"
These are issues with which we are sure to be faced as the economy becomes even more global and the status quo in the practice of law is challenged.
Mr. Greco ended with this admonition; I quote directly and I commend it to you:
"We must ensure that any changes made to the legal profession in the United States preserve the core values and principles of an ethical, independent legal profession. That is our challenge, and our responsibility."
Although the face of how we practice law changes over time, the core values we aspire to do not. I am proud of the collaboration between the courts and the bar association and all we do to make those values come to life. I look forward to continuing that cooperative relationship.
Thank you for again allowing me to speak to you about our court system.