State of the Judiciary

2025 State of the Judiciary Address

Wed, 08 Jan 2025 10:09:00 GMT

2025 State of the Judiciary Address

On Jan. 7, 2025, North Dakota Chief Justice Jon Jensen presented the State of the Judiciary Address to the 69th Legislative Assembly.

Good morning.

Majority Leader Hogue and Majority Leader Lefor, thank you and all of the members of the 69th Legislative Assembly for the invitation to present the State of the Judiciary address to you, in the House Chamber, this morning. It is an honor to have this opportunity and a privilege to provide these remarks on behalf of the Judicial Branch.

Governor Armstrong, Lieutenant Governor Strinden, Justice Crothers, Justice McEvers, Justice Tufte, Justice Bahr, elected officials, and other distinguished guests—thank you for your service to the State of North Dakota and your attendance here today.

There are a number of new faces in the 69th Legislative Assembly, and despite the significant caseload within North Dakota courts, many of the people in this room are not likely to have had any interaction with our judicial system. With that in mind, I will take a few moments to describe how our judicial system is structured and how it functions.

In North Dakota we have municipal courts, state district courts, and the Supreme Court.

Our municipal courts have jurisdiction limited to violations of municipal ordinances, which may include Class B misdemeanors, infractions, and traffic violations. There are currently 87 municipal courts in North Dakota. Cities with a population under 5,000 are not required to have a municipal court and the municipal judge in those cities is not required to be law trained. Cities with a population greater than 5,000 are required to have a licensed attorney serve as the municipal court judge. There are no jury trials in municipal court; the criminal offenses are limited to Class B misdemeanors which have a maximum penalty of 30 days of incarcerations and fines up $1,500. Municipal court judges are elected officials who serve four-year terms.

Our district courts are where the majority of our workload is handled in North Dakota. We have 55 district court judges who are elected to serve six-year terms. Vacancies are filled by the Governor from a list of names provided by the Judicial Nominating Committee, or the Governor can require the vacancy to be filled by a special election.

There are currently 55 district court judges in North Dakota. The number of judges and their compensation is set by the Legislative Branch. The judicial branch would like to express its appreciation to the 68th Legislative Assembly which provided additional judgeships to serve the Northeast Central Judicial District and the East Central Judicial District. While the judiciary is a separate branch of our state government, the Legislative Assembly, through the determination of the number of judicial positions, compensation for those positions, and the overall funding provided to the Judicial Branch, has significant impact the quality of service provided to the citizens of North Dakota.

There are district court services in all 53 North Dakota counties. Our 55 district court judges serve, and are elected, within one of eight judicial districts. Those districts all include multiple counties. Our district courts have original and general jurisdiction in all cases except as otherwise provided by law. They have the authority to issue original and remedial writs. They have exclusive jurisdiction in criminal cases and have general jurisdiction for civil cases.

Our district courts would not function without our dedicated and hardworking clerk of court offices, court administration, and juvenile court officers. Our clerk of court offices are the engine that make our judicial system run. Our clerk of court offices are the primary contact the judicial system has with the public and every case entered into the judicial system flows through the clerk of court offices. The jobs are challenging with high workloads and the need to adapt to everchanging, but necessary, advances in technology. Our juvenile court officers work with some of the most difficult cases within our judicial system: children in need of services and juvenile criminal offenses.

In a time where the integrity of courts is being challenged and the confidence in judicial systems is being eroded, North Dakota’s court system and judges are remarkable. A three-year study on criminal case management that was recently completed shows that North Dakota judges carry the highest criminal caseload in the United States, and North Dakota courts are among the fastest courts in the United States to process criminal cases. Timely completion of criminal cases brings certainty and finality to the defendants, the victims, and their families.

Our judges, along with the clerk of court offices, court administration, and juvenile court officers, perform their remarkable work in the face of several
challenging caseloads, subject matter, and geography. Caseloads: Our district courts handle approximately 160,000 new filings and 20,000 reopened cases each year—180,000 cases. That is an incredible caseload for 55 district court judges and 53 clerk of court offices. As noted earlier, our judges carry the highest criminal caseload per judge in the United States. Subject matter: Our district court judges are judges of general jurisdiction. They are required to know and apply every aspect of the law, from traffic violations to felonies, from disorderly conduct to murder, domestic relations, juvenile cases, and every civil dispute requiring judicial resolution. In an age of specialization and narrow legal practices, our judges are required to interpret and apply the law in every area of practice. Geography: Our district judges are also challenged by geography. The North Dakota judicial system is committed to serving every citizen in each of our 53 counties. With only 55 judges our geography presents a challenge to provide access to the courts and local resolution of a case, but it is a challenge we have met and will continue to meet. The challenges faced by our judicial officers, high caseloads, the need to know and apply the law from every area of practice, and our state’s geography could not be overcome without dedicated and hardworking individuals. The citizens of North Dakota desire the best judicial system available. Attracting and retaining dedicated individuals must be a priority.

Being part of the judicial branch can be incredibly rewarding. We have the opportunity to share in the joy of adoptions and watch firsthand the successes achieved within our problem-solving juvenile, veterans, and treatment courts. However, the overwhelming part of our caseload requires the resolution of civil disputes and criminal proceedings. Those cases involve the dissolution of families, sentencing of defendants, listening to victims explain the impact a defendant’s action has had on them, and presiding over cases when juveniles are in need of assistance. It is necessary work, but not easy.

Members of the 69th Legislative Assembly, thank you for your willingness to serve your constituents and the State of North Dakota. You do not have an easy task. During the legislative session your will be required to consider what is, for me, an unimaginable amount of information. Despite the challenges you will be presented, you will, without a doubt, perform your duty with diligence and integrity. Your service is appreciated.

During your work this session you will be asked to consider legislation that has an impact on the North Dakota judicial system. The following items are among the legislation that you requested the Judicial Branch study during the interim or proposed legislation that will have direct impact on the judicial system:

As requested by the 68th Legislative Assembly, the Judicial Branch participated in a review of the guardianship and conservatorship programs spread out between several executive branch agencies and the Judicial Branch. We are supporting the creation of the Office of Guardianship and Conservatorship under the auspices of the court to better protect those under guardianship or conservatorship, and to provide accountability for the $17 million in public funds that is currently spent on guardianship services.

We have identified deficiencies and ambiguities in the municipal court process and have proposed a rewrite of those statutes. The purpose of the proposed statutory changes are to provide better service to citizens and accountability in the municipal courts.

Some North Dakota residents do not have access to legal services because of cost or geography. We are seeking to expand our self-help services by adding another attorney and creating the navigator position. A navigator can provide self-help services we don’t currently offer by reviewing completed documents. We are also exploring the recognition of “Allied Legal Professionals.” An ALP allows specially-trained non-lawyers to offer legal assistance in certain areas of the law.

We are also expanding problem-solving courts to include a veterans court in Fargo, a mental health court in Bismarck, and are exploring adding a domestic violence court in Bismarck.
We are making jury service simpler by shortening the time jurors are on call and creating an online service to request a postponement or an excuse from jury service.
Our mental health workgroup continues to work closely with the state hospital to streamline the evaluation process and decrease delays in case processing.

We also need your help in attracting and retaining individuals who are dedicated and capable of providing the judicial system the citizens of North Dakota deserve. You can assist by providing increased compensation for those individuals.

Earlier I commented on the unfortunate circumstances in our country that see the integrity of courts being challenged and the confidence in judicial systems is being eroded. Chief Justice John Roberts of the United States Supreme Court, in the annual year-end State of the Judiciary message provided insightful comments on this topic. Criticism and disagreement with judicial opinions is not new, is understandable, and when a court has erred, the criticism can be helpful. However, recently, challenges to judicial decisions and judicial officers have gone beyond understandable criticism to include threats of violence, intimidation, and even statements by representatives of the federal executive branch indicating an intent to ignore lawfully entered judicial orders.

We are not immune to these challenges in North Dakota. North Dakota judges and judicial branch employees have been the subject of threats of violence. The internet and social media platforms provide a forum for litigants to falsely allege that race, gender, ethnicity, or the perceived political affiliation of a judge was the reason for an adverse ruling and not the merits of the litigants’ case. Social media platforms are too often used to publish calls for violence and threats of intimidation against judges. As noted previously in these remarks, while public scrutiny and at times displeasure of a particular judicial decision are understandable, violence and intimation should not be tolerated.

The separation of powers and judicial review naturally give rise to tension between the branches of our state government. We are fortunate to live in a State where our political leaders and elected officials understand the importance of protecting the separation of powers and the necessity of judicial review. Our judges can faithfully discharge their duties in the most difficult of cases with the comfort of knowing that both the executive branch and the legislative branch of our state government will respect the decision regardless of the outcome. Likewise, our judges understand the need for a separation of powers and must faithfully limit ourselves to cases and controversies, leaving the executive and legislative branches to carry out their reciprocal duties.

Members of the 69th Legislative Assembly, thank you again for your service. Best wishes for a productive legislative session. And finally, thank you for the opportunity to address you today.

Download a video recording of the State of the Judiciary Address: https://www.ndcourts.gov/Media/Default/court-administration/State-of-the-Judiciary/2025-State-of-the-Judiciary.mp4

2021 State of the Judiciary Address

Mon, 11 Jan 2021 10:49:00 GMT

Chief Justice Jon Jensen presented the State of the Judiciary address on Jan. 5. Here is a transcript of his remarks:

Thank you for the invitation to report on the state of the judiciary and appear before a Joint Session of the 67^th Legislative Assembly of the State of North Dakota. Speaker Koppelman, Lieutenant Governor Sanford, Governor Burgum, members of the House and Senate, elected officials and colleagues on the trial and Supreme Court bench.

This room has special significance to a lot of people. It has special significance to me as well. This room was the location of several significant events in my life. In the fall of 1990, along with my spouse Linda Bata, I was sworn in as a lawyer in these chambers. In the winter of 1991, while working for former Chief Justice Ralph Erickstad, I listened to the state of the judiciary presentation in this room. In 2017, it was the location of my investiture to the North Dakota Supreme Court. Today, I am honored to stand in this room and report on the state of the judiciary.

The judicial branch mission is to provide the people, through an independent judiciary, equal access to fair and timely resolution of disputes under the law. Not only do I believe the judicial branch is meeting this stated mission, I firmly believe we are meeting that mission in an exceptional manner.

I hold that belief for three reasons: the people that are in our judicial system, the partnership we have with the executive branch, and the funding that is provided by this legislature.

I would like to start with the people who are in the judicial system and are performing in an exceptional manner. We have 53 trial court judges in North Dakota, we have five judicial referees, eight judicial districts and 53 clerk of court offices.

In most years we handle approximately 180,000 new cases or reopened cases. Our trial judges are elected, with vacancies filled by temporary appointments until the next general election.

We expect a lot from our district court judges. They are judges of general jurisdiction. What that means is our district court judges will handle family law cases, they will handle criminal cases, car accidents, and contract disputes. Although it’s a separate court, they’re the same judges who staff our juvenile court system.

On any given day our trial court judges may handle criminal appearances in the morning, later in the morning they may handle a family law matter, and in the afternoon maybe work on juvenile court matters. While it’s not unique, it is unusual. Many states have specialist judges that handle either criminal dockets or civil dockets, family law dockets or probate dockets. We expect our judges to know all those subject areas. Our judges work hard. In an average year they are assigned approximately 2,900 new cases and 500 reopened files.

Each of our judicial districts have different challenges. The larger populations in the Northeast Central Judicial District, the East Central Judicial District, the South Central Judicial District and the North Central Judicial District require us to maximize efficiencies in scheduling.

The increase in commercial activity as a result of oil production has imposed significant demands in the Southwest Judicial District and the Northwest Judicial District. Those demands are often lagging: as economic activity increased people were happy and there were fewer disputes; as productivity decreased people became less satisfied and disputes actually increased. Our caseloads in the Southwest Judicial District and the Northwest Judicial District are increasing rather than decreasing.

The Southeast Judicial District and the Northeast Judicial District provide challenges of geography. The Northeast Judicial District has six judges covering 11 counties. Those counties include Pembina County in the east all the way over to Renville County on that district’s western border. The Southeast Judicial District has seven judges covering 14 counties. They travel from Richland County in the southeast to Wells County in the center of the state.

The pandemic has raised significant challenges to all our district court judges but I am proud to stand here and say that all 53 of our district court judges as well as all five of our judicial referees continue to provide essential services to your constituents and to all of the State of North Dakota.

In mid-March the North Dakota Supreme Court suspended jury trials statewide and provided guidelines on court operations in response to the pandemic. Our presiding judges were given authority to suspend hearings and trials at the district court level after July. Presiding judges have been considering several factors, including the health and safety of our participants, when deciding whether to suspend court hearings or trials.

Our courts have remained open both in person and using reliable electronic means. Many of our judges excelled at using reliable electronic means. Our reliable electronic means workgroup led by Justice Daniel Crothers included many judges, clerks of court, and administrative personnel. Judge McCullough and Stiel in the East Central Judicial District, Judge McCarthy in the Northeast Central Judicial District and Judge Clark in the Southeast Judicial District, just to name a few, were very adapted to using live electronic means, holding dozens of hearings in single court sessions.

Judge Robin Schimdt, who is the presiding judge in the Northwest Judicial District and has an office in Watford City, explained the need to remain open as follows, and I believe it is a great summary of why the courts needed to remain open. She said that suspending jury trials and trials in general is detrimental to our system. It erodes faith and trust in the judiciary. People depend on governmental functions, especially during challenging times. Precautions can be taken to alleviate risk, however courts are pivotal to protecting citizens and their property and must remain open and accessible in a format that has been tested by time and experience.

Reliable electronic means is not a replacement for in person proceedings, but used in conjunction with in person proceedings it is a fantastic tool for ensuring the prompt and fair resolution of cases. Our judges have used reliable electronic means to complete their essential court functions.

What our judges did during the past year has been truly amazing. An additional group of people within our judicial system, and the largest group of people within the judicial branch, are our clerk of court staff. Those clerk of court staff work in 53 different county offices, one in each county. They are responsible for all of our recording and record keeping and processing filings.

In 2019 former Chief Justice Gerald VandeWalle expressed his concern in his state of the judiciary address that our clerk of court staff is understaffed. When we were previously asked to reduce our budget we set a goal of 82 percent staffing in our clerk of court offices.

Because of increased filings in Grand Forks County and in Cass County, Grand Forks County was operating at 70 percent staff and Cass County was operating at 60 percent staffing. Funding for Cass County and Grand Forks County was addressed in the 2019 legislative session by adding an additional clerk of court staff person to each of those counties. Thank you. We appreciate the additional staffing. It has improved docket currency in both of those districts.

We remain understaffed in our clerk of court offices. As we will discuss later regarding future legislative priorities, we believe we can resolve this issue primarily internally. In addition we will be proposing legislation in 2023 that will continue our growth.

During the pandemic the majority of our clerk of court staff transitioned to working at home and they have been remarkable. We have experienced very minimal initial delays in filings and no delays currently in filing. We continue to meet out benchmarks in our clerk of court offices and we continue to process filings in a timely manner.

In our district courts we have juvenile court staff. Our juvenile court staff is a model for other states. Where other states see 80 percent of their juvenile case being resolved by a judicial officer, we see 80 percent of ours being resolved before the necessity of court intervention. Interaction with juveniles is essential. Working with our court administration staff and our information technology staff, our juvenile court officers were able to make contact with both juveniles and their families during the pandemic

Later in my remarks with regards to the legislature partnership we have we will discuss House Bill 1036 and I believe it is an important bill for you to consider, although it is not one of our pending bills

People are one of the three keys to our exceptional judicial system here in North Dakota. Our employees are dedicated, they are essential, and they are truly the engine of what runs the judicial system. We also have executive branch partners and I believe that is the second key to the foundation of our exceptional judicial system – it would not be possible without the executive branch partnership.

A prime example occurred during the previous year. Correctional centers have a continuous flow of individuals into detention, either awaiting trial or serving a sentence of less than one year. All of that is continuous, it does not stop because of a pandemic. That is usually balanced by an outflow of individuals who have gone to trial and are acquitted, or gone to trial and are convicted and are either being sent to the state penitentiary or some other form of release.

During the pandemic, the state penitentiary stopped admitting new inmates in order to control its COVID issues. Correctional centers did not have that luxury. When someone is arrested for a violent crime and poses a risk to society they are detained. When we suspended jury trials until July, which further compounded the problem because now there was no outflow from our regional correctional centers. Working with the regional correctional centers, the county commissioners, as well as the state penitentiary, we were able to restore balance before there were any significant outbreaks within our regional correctional centers.

Our juvenile courts also have many connections to the executive branch. Our juvenile courts are most effective when there are placement options for juveniles at risk, either because of deprivation, neglect or abuse or in instances where a juvenile is in need of treatment. Using treatment as an example – judges and juvenile court officers often determine treatment is the best course of action for a juvenile, but the judicial system does not and should not operate treatment facilities. The judicial branch does not and should not have treatment providers. Those are executive branch functions.

Over the past biennium the lack of treatment options has become substantially deficient. Working with Chris Jones and his staff at the Department of Human Services as well as the Department of Juvenile Services we were able to secure a small number of additional placement options for juveniles. Unfortunately, even those small gains were eliminated when additional private providers elected not to continue juvenile treatment.

Our juvenile courts cannot function as intended without adequate placement options. While providing treatment services is not a judicial branch function, the juvenile court depends on adequate placement options. I encourage the legislature to look closely at the executive branch’s requests in regard to funding juvenile court placement options.

We also have a relationship with counties. As most of you know our facilities for our trial courts are county facilities. County commissions have been outstanding partners with our trial courts and were outstanding partners during the pandemic. We are thankful for all of the resources that our counties have provided.

The judicial branch has an endless interaction with the executive branch we are proud of the cooperation that we have with state agencies, the governor’s office and other state departments. Those partnerships are the second key in our exceptional judicial system.

The third key in our exceptional judicial system is legislative funding. We would not be an exceptional judicial system without the funding provided by this legislature.

First I want to thank you for the funding provided in the previous legislative session. The additional juvenile court officer, the additional recorder, the additional judicial officer, the staff for the North Dakota Judicial Conduct Commission and Attorney Disciplinary Board, the additional clerk of court and deputy clerks were appreciated. We believe we have been good stewards of those funds and we believe we will be good stewards of the funds we are provided in the future.

One example of our stewardship of these public funds was demonstrated by our response to social distancing requirements in the pandemic. The district courts needed a solution to allow staff to maintain an official recording of public proceedings while also being efficient and safe. However, the current network configuration and software was not going to provide a good long-term and cost effective solution to meet the need. The court used CARES funds to upgrade sound mixers and then purchased new recording software. That software solution provides the ability to record official court records from anywhere the staff has internet connectivity, including their home or their office, thus keeping them safe by minimizing close contact and maintaining social distancing.

In December, an electronic court recorder in the Northeast Central Judicial District piloted the new software. The judge, electronic court recorder, clerk of court, and all of the parties appeared electronically from different locations without a single person being in the courtroom. The electronic court recorder was able to utilize the interactive television system along with our new software and the recording software to operate both systems remotely.

There are additional features of the software that will make the staff more efficient, including the ability to create tags within the records. The additional capabilities of the software will also be explored with regard to efficiency. We currently expect that we can now do artificial transcription with accuracy close to 90 percent. Staff across the state are being trained on new software as it is being rolled out to the districts with the goal of statewide use by early spring of 2021. Our information technology staff and Justice Jerod Tufte have been instrumental in our technology changes.

During the upcoming legislative session, Sally Holewa, our state court administrator, and others will provide you with the specifics of our budget request. I have a few highlights I would like to discuss today.

When considering our current funding budget request there are three concepts that the judicial branch will keep in mind. Our funding should be driven by looking forward through the windshield not backwards through a rear view mirror. It is unlikely that yesterday’s needs will be the same as our needs 5 to 10 years from now. It’s much easier to change how we operate in anticipation of changes rather than as a reaction to change.

In December we provided a report to legislative management regarding court reporters. There were many people involved but I would like to extend a special thank you to Senator David Hogue. The report accurately reflects where the judicial system is at and it also provide us an opportunity to look forward to assess our future needs and to anticipate change.

That study provided us with the knowledge of how little support our trial judges are provided and how the recording function is better suited for the clerk of court’s office. Fifty-nine percent of our reporter recorder time is actually in the courtroom, 25 percent of their time is transcript related and only 16 percent is spent supporting judges. Internally we have begun a pilot program to reorganize our allocation of resources, moving the recording duties to the clerk of court’s office, ultimately eliminating manual transcription through artificial transcription and adopting the electronic record as our official record rather than a paper copy of the record, leveraging our new recording equipment, and reallocating support staff to roles directly supporting judges with research.

At the end of our reallocation it is our anticipation, without any request to this legislature for additional FTEs, we will be able to increase the staffing in our clerk of courts offices by a minimum of 10 FTEs. When fully automated transcription is available we anticipate that there will be an additional equivalent of 10-12 FTEs. At the same time as we increase direct support to judges, we will increase public access to our courts by providing low or no cost transcripts for appeal and we will be closer to meeting our fully funded and staffed clerk of court offices. All of this will be accomplished internally and again without the need for additional legislative funding.

I would like to talk about one of the other legislative initiatives and that is the child support initiative that will be heard in the judiciary committee tomorrow. In partnership with North Dakota Child Support Enforcement, we have begun removing our clerks of court from child support functions. This is a process that actually began several years ago. Those functions are properly an executive branch function.

The courts have previously initiated orders to show cause on behalf of a party, but that is not appropriate for the judicial branch. We do not issue similar orders without a motion by a party in any other civil proceeding. The judicial branch is the appropriate forum for resolving child support issues and in enforcement of child support issues, but we should not be acting as an extension of one of the parties or acting as an extension of the executive branch.

The child support computer system is also not compatible with our computer system. Despite valiant efforts we cannot make our computer system compatible. This session we are asking the legislature to remove the courts from that process.

I also want to discuss electronic filing. While it is not our request, the courts support the current initiative by the Attorney General’s Office to bring our county state’s attorney’s offices into electronic filing of initial criminal proceedings. Our state’s attorney’s offices are the only parties that are exempt from electronic filing requirements. In some counties this accounts for up to 20 percent of our deputy clerk of court’s time. We have started the project of converting the state’s attorney’s offices to electronic filing, but it needs funding to continue and sufficient funding to complete it within a reasonable amount of time.

We also have two major technology projects that we are asking the legislature to fund – both are long overdue. One is a document management system for our juvenile courts. Providing service to juveniles should not be impaired by deficiencies in our processing of documentation. The second is a docket management system for the Supreme Court. Our current system was designed as a unique system in 1994. The designer of that system is no longer working and is no longer providing service. The current system cannot be integrated into the same system used by our district courts.

As I mentioned earlier, also pending before the legislature is House Bill 1036, a rewrite of our juvenile justice process. I want to thank Representative Klemin and Justice Lisa Fair McEvers for their work on this project as well as the work of others on this project. It is an important step in reforming our juvenile laws. While not a judicial branch request, we support House Bill 1036.

We are also looking forward to the 2023 legislative session. I realize you have a lot on your plates now, but sometimes it’s helpful to discuss into the future what the judicial branch will be looking at in coming years. We are attempting to plan 5-10 years ahead. In the 2023 legislative session we will be asking for complete integration of the county clerk of court offices into the state judicial system.

Currently, the judicial system works and operate with 35 contract counties and the rest of the counties are state counties. We contract with the counties for services by their clerk of court offices. The judicial system is committed to providing service in every county in the State of North Dakota. During the pandemic we confirmed this by having clerks located in every county. We have confirmed that that’s beneficial and it does not impede our ability to allocate those resources statewide.

However, because the majority of our clerks are contract clerks, it is hard to integrate them with the rest of our system and it is difficult to properly allocate our resources. We can better allocate services and employee time if we have a uniform workforce. I want to repeat the goal is not to eliminate clerk of court offices in individual counties where deputy clerks are located, the goal is not to relocate clerks of court. The courts will remain open in every county and we are committed to a personal presence in every county. As I mentioned we’ll save this topic for 2023

Several sessions ago the legislature allocated funding to restore and expand the Liberty Memorial Building into a judicial center. Following that legislative session the budget forecast changed dramatically and the judicial branch voluntarily agreed to forgo and return to general funds the funding that was allocated to restore and expand the Liberty Memorial Building.

Each year the legislature meets, space to perform legislative functions is at a premium. During the interim the lack of permanent legislative rooms complicates your legislative function. We are providing space within the judicial branch this legislative session and will continue to do so if asked to accommodate committee chairs. When considering a bonding bill it is my request that you consider restoration and expansion of the Liberty Memorial Building to provide the judicial branch with much needed space and provide the legislature with space within the capitol itself

When I began today I told you that one of the events in this room that was special to me was the 1991 state of the judiciary address given by my former boss and former Chief Justice Ralph Erickstad. The year before I arrived, Chief Justice Erickstad and the Court had been involved in budget cuts. While he and I did not speak at length about the budget issues, one thing is memorable. He told me his budget philosophy was to ask the legislature only for what was needed, without exaggeration and without extras. His intention was to build credibility through good stewardship of taxpayer dollars. I believe he followed that philosophy, just as I believe former Chief Justice Gerald VandeWalle in subsequent legislative sessions has followed that philosophy. I intend to protect that credibility. The judicial branch will continue to be good stewards of taxpayer dollars.

We have an exceptional judicial system. It is built on good people, executive branch partnerships, and legislative funding. Thank you for the opportunity to be here today during a joint session of the legislature. It is an honor, and please accept my best wishes for a productive legislative session.

Download a video recording of the State of the Judiciary Address: https://www.ndcourts.gov/Media/Default/SupremeCourt/Audio/2021_SOJ.mp4

2019 State of the Judiciary Address

Thu, 03 Jan 2019 18:00:00 GMT

STATE OF THE JUDICIARY

Before the 66^th Legislative Assembly

January 3, 2019

Lieutenant Governor Sanford, Speaker Klemin, Governor Burgum, members of the Legislative Assembly, State executive officials, my judicial colleagues - the district judges and supreme court justices - and other friends. Thank you for the privilege of appearing before this Joint Session of the Sixty-sixth Legislative Assembly of our great State.

The North Dakota Court System should be a well-balanced, dynamic and highly functioning system that is able to continuously improve and adjust to meet challenges in all economic conditions. We must operate to treat every individual, in every part of the state, with respect and to ensure that all of our cases move through the court system in a thoughtful and timely manner.

The scales of justice held by Lady Justice symbolize the assessment of the figurative weight, the balance, of two sides in a dispute, but over the 40 years I have been on the bench, I have come to see that they are also symbolic of the other balances the courts must strike. These include the big questions of balancing mercy and justice, community safety and individual accountability, and transparency of court records with individual desire for privacy; but they also include the more prosaic questions of balancing accuracy and expediency; efficiency of technology and the personal acknowledgement that all individuals crave; and deciding where the line should be drawn between state support of government functions and individual fees for access to government services. Although I have been privileged to consider these questions on an almost daily basis, I must admit that I am no closer to a definitive answer for any of them. I can, however, say with confidence, that the exercise has made me more aware of the nuances of each issue and more appreciative of the work all of you do in wrestling the same kinds of questions.

I am not going to wax philosophical on these issues, neither my voice nor your patience would allow me to do that for very long, but I will say that in some way each of these considerations plays out in the challenges and initiatives that I am going to discuss this morning.

Need for additional staffing

Last session, in response to serious budget issues, we cut 55.5 positions. Thirty-five full-time and 1 part-time staff were eliminated, including 3 judicial referees. Also lost were 20 temporary staff who differed from our other staff only in that they worked without the benefits allowed to those whose positions were created as an FTE authorization by the legislature. No part of the court system was spared from budget cuts and the staff reductions came from the supreme court, the district court, the juvenile court, and the administrative offices of the court. We understood the dire circumstances the state was in at that time and we did what we had to do to make the targeted budget reduction. But, it would not be honest of me, nor would I be doing my job as the head of the court system, if I stood here today and said that all is well with the court system.

I have often used the analogy of standing on tiptoe in deep water to describe the operational side of the courts. We have always staffed our judicial and administrative offices to the lowest possible ratio that allows us to get work done. However, doing so leaves us like the individual who wades into deep water and stands on his tiptoes to keep from drowning. Everything is fine until a wave comes along and suddenly the individual finds himself underwater and fighting for his life. The court system is now underwater. I am not here today to sound the death knell for the court system, or to ask for reinstatement of all 56 positions, but I am here to ask for help regaining our footing by adding back 6 staff positions and creating one new judgeship.

We are requesting a judge for the South Central Judicial District, which has its judicial hub in Bismarck and Mandan and encompasses 9 counties. Although there are normal fluctuations in the number of cases filed annually, the trend in this district has been a steady increase in filings over the past 10 years. The increase has been such that they are currently three judges short of what our weighted caseload study reveals is needed to adequately handle the caseload. We would have requested this judgeship much earlier except that there was no space to house another judge. I am grateful to the citizens of Burleigh and Morton counties, and to the commissioners who serve those counties, for the funding that has allowed both courthouses to remodel and expand space available for judicial chambers and courtrooms. And, while the judges of the district had assistance from their colleagues in other districts as well as surrogate judges assigned, I am grateful for the manner in which they handled the crush of cases resulting from the Dakota Access Pipeline protests.

A judge does not work alone. A record must be made of every hearing, so along with a new judicial position, we are asking for a court reporter position to work with the new judge. We are also asking for a court recorder position in Minot to replace the position that was cut in 2015. The Minot position is especially needed as the loss of a recorder has resulted in delayed hearings and increased transcript costs.

When we cut clerk of court staff in 2015, we did so by setting a minimum staffing level of 82% of need. Due to increased case filings, the clerk’s office in Grand Forks County is now operating at 70% of need and the Cass County office is at 60% of need. We are requesting one deputy clerk for each of those offices in order to bring them back to the minimum staffing level. Inadequate staffing results in increased errors.

Along with the three judicial referees that were cut in 2015, we cut four law clerk positions. Law clerks perform legal research, initial review of motions, and initial drafts of orders. These services allow judges to make better informed and quicker decisions. Due to the loss of positions, we have two judicial districts – the Northwest and Southeast districts - that no longer have any law clerks. To remedy this, we are requesting reinstatement of one law clerk position in each of these districts.

The North Dakota Judicial Conduct Commission and Attorney Disciplinary Board is the leanest -run disciplinary system in any state. It operates with just 4 FTEs and an army of volunteer attorneys and judges. Two years ago, we revamped the rules of operation for the JCCDB to increase the timeliness of responses to complaints. Part of this revamping included moving some of the investigative functions being done by volunteers to a part-time, temporary position housed within the JCCDB. This has not worked as well as we had hoped because of the turnover in that position. In eighteen months, there have been three people who have accepted the position, only to leave shortly afterward for other employment. The Operations Committee of the JCCDB has requested that this position be converted from a part-time temporary to a part-time permanent position to provide some stability to the position.

And, while I do not want to be an alarmist, we are closely watching a case that was remanded by the United States Supreme Court to the 8^th Circuit Court of Appeals concerning the validity of the mandatory bar in North Dakota. Should the mandatory bar be held to be invalid, our current lawyer disciplinary system would require extensive statutory change.

The North Dakota Court System has not stopped innovating and striving to improve its ability to serve the people who depend on it to sort out the cases that come before it. North Dakota is unique in the cost-effective way we deliver clerk of court services, and our juvenile court approach to rehabilitating youth is hailed as a national model. Back in 1999, we were the first in the nation to have a fully electronic citation and traffic reporting system for tickets issued by the state patrol. In 2011, we became the first in the nation to have complete electronic filing capabilities for our district courts, and along with that, the first to mandate the use of electronic records management for both judges and staff. Beyond technology, we have created a family mediation program, a guardianship monitoring program, and a self-help center that assist thousands of citizens a year without imposing any extra fees for those services. We have strengthened protections for vulnerable adults and shortened the timeframe for decisions in child welfare cases and divorce cases involving children. In the same spirit of innovation, we are moving forward with several new projects.

Law Library Project

As much as I like books, it is time to re-envision our concept of a law library. Because so many resources are now available electronically and we have the ability to get books through quick shipping, we no longer need to maintain a large, formal library. We have put forward legislation to repeal the statutes requiring a law library. Our plan is to remodel the existing law library space to accommodate an expanded self-help center, improve the workspace for our central legal department, and relocate our IT staff to the Capitol. The initial outlay to remodel the space is estimated at $960,000, but we expect that these changes will result in ongoing savings of approximately $400,000 per biennium.

Juvenile Court

This past biennium, the juvenile court has instituted two new practices that have had a direct impact on the placement of children in detention. The first is to create disposition matrixes that provide more consistent sentencing for related charges and has reduced the number of youth being sent to the Youth Correctional Center.

The second is to mandate the use of a detention screening tool which has been effective in reducing the number of days youth are spending in detention.

In addition, we have been working with the Department of Human Services, the Division of Juvenile Services, and several other government and non-profit agencies on the dual status youth project. This is an interdisciplinary approach to handling youth who are in both the child welfare system and the court system. The project seeks to leverage resources from both entities to create a comprehensive plan to address the needs of children and their families.

During the interim session, the Juvenile Policy Board, under the leadership of Justice Lisa Fair McEvers, proposed raising the age of criminal responsibility from age 7 to age 10. The Justice Reinvestment Committee has introduced legislation to make that change.

Finally, I want to let you know that we have re-applied for the Court Improvement Program grant from the federal government. This grant is specifically to improve outcomes for children in need of protective services.

Guardianship

During the interim, our Guardianship Workgroup, which is ably chaired by Judge Cynthia Feland, took on the task of studying and rewriting the laws related to guardianship of minors to eliminate confusion over when cases should be filed in juvenile court or district court. Under the bill draft that we are proposing, only uncontested testamentary appointments will start in district court; all other guardianship of minor cases will be filed in juvenile court. This will give the court the ability to appoint a guardian ad litem for the child or an attorney for the parents. The proposed changes will also allow the court to continue monitoring the financial and personal well-being of any child who is under the care of a guardian.

Although not a court program, I bring your attention to the issue of adequate funding for the Public Administrator Support System (PASS) program. This is the program created by the legislature in 2013 to provide funding for public administrators. Over the years, public administrators have become the baby no one wants to hold. They serve as the guardians of last resort for those individuals who have no one else to look after them, or who are in the unfortunate position of having family members who are unable, unwilling or not qualified to provide guardianship services. Up until the early 1990s, public administrators were county employees, appointed by the county judge. When the county judge positions were eliminated, many counties also eliminated the public administrator position. Over the years, with no clear statutory determination as to whether the function should be funded by the counties or the state, there was a continual loss of individuals willing to take on those duties. To respond to the ever-growing gap between the need for services and the number of providers available, the legislature created the PASS program. Funding for the program has been in decline since its inception and the program has been forced to rewrite its guidelines several times to reduce the number of cases it can cover and lower the daily payment rate to guardians. An additional 5% cut to the PASS program is being proposed this biennium. With guardians having to take more cases without compensation, and a growing list of vulnerable adults waiting for assistance, I am afraid we are in danger of sliding back into the same situation we were in before the program was created.

Interdisciplinary Committee on Specialized Dockets

It has long been recognized that problem-solving courts, otherwise known as specialized dockets, are very effective in dealing with issues related to drug and alcohol use, post-traumatic stress syndrome, homelessness, and mental illness for those people who are in the court system. Nationwide, there are now over 30 types of specialized dockets, each with their own focus and funding. In North Dakota, we have three: adult drug court, juvenile drug court, and domestic violence court. Over the years, we have also been asked to consider adding mental health and veterans courts. Specialized dockets work because they allow for long-term, personal contact with defendants and because they are able to connect defendants with the resources, they need to rebuild a healthy life. We recognize that no one entity owns these courts and that to work they require assistance and support from all three branches of government. We recently adopted Administrative Rule 60 to establish an interdisciplinary committee whose focus will be on evaluating the need for the resources and legislation necessary to create new specialized dockets, to evaluate existing courts, and to recommend when and where new specialized dockets should be established.

Domestic Violence Court

In 2015, legislation was passed that authorized us to establish a domestic violence court. Under the direction of then-presiding judge Jon Jensen, the decision was made to move forward with a court in the Northeast Central Judicial District. Judges Jason McCarthy and Jay Knudson have been assigned to handle this specialized docket. The court held its first session in August and currently has 64 participants. Participants are individuals who have been convicted of a misdemeanor or felony assault against an intimate partner. The goals of the court include providing closer monitoring of offender compliance with sentencing conditions, and increasing victim safety by rehabilitating offenders and reducing the number of repeat offenses.

Justice Reinvestment

Judge Frank Racek, who serves as the presiding judge in the East Central Judicial District, has been serving on the Governor’s Committee on Justice Reinvestment.

Effective response to criminal behavior is an issue that he has studied extensively and he is well-positioned to lead in this arena. To implement the goals of justice reinvestment, he has worked with the Cass County Jail Administrator and the Cass County Commission to implement early identification of risks and needs using bail and pre-trial risk assessments. Due to a lack of resources, it has been necessary to limit these two pilot programs to cases assigned to Judge Racek, but even so, they show great promise and, I believe, will become a model for the rest of the state.

Judge Racek has also been working with both UND and NDSU to develop a medical approach to research-based sentencing that will use big data sets from multiple state information systems to create a system to address criminal justice needs with more speed and accuracy. The end goal is not to create a new program that will be cast as a wide-net, but instead create a system of rapid assessment that will allow for sentences based on the specific characteristics of defendants and their past responses to treatment and punishment.

Subcommittee on Bail and Pre-trial Reform

At the request of the Minority Justice Committee, we have established a subcommittee on bail and pre-trial reform. Many people forget that the primary reason for bail is to allow a defendant to secure release in order to aid in his or her own defense. Bail also acts as a lever to ensure that the defendant returns to court as required. Over the years, bail has also come to be seen as a means to provide for community safety by setting a high bail. However, there is a nationwide concern that people who cannot afford bail are being unnecessarily kept in jail. The subcommittee’s task will be to consider these uses of bail and to explore improvements to the processes and tools judges use to make pretrial release decisions. Pretrial release decisions include determinations by judges as to whether individuals arrested and detained should be released before trial, and the conditions that should be imposed if a defendant is released.

Conclusion

We also have in the works several other initiatives to increase efficiencies in both the Supreme Court and the district court. Some of these changes are in the planning stage and others are only in the initial discussion phase. It is too early to say whether they will have the outcomes we desire and I mention them only to assure you that despite our challenges, we strive to move forward to create a judicial system that is fair, timely, and accessible to all.

Thank you for the opportunity to appear before you to talk about our North Dakota judicial branch of government. I assure you of our continued cooperation with you in our common goal of keeping North Dakota one of the best places in the world to live. Best wishes for a positive and productive 66^th legislative session.

2017 State of the Judiciary Address

Wed, 04 Jan 2017 16:44:00 GMT

On Jan. 4, 2017, North Dakota Chief Justice Gerald VandeWalle presented the State of the Judiciary Address to the 65th Legislative Assembly. Here is the text of his remarks.

Members of the 65th Legislative Assembly, I am pleased to present the State of the Judiciary to you. Although not delivered in its traditional format, that is more to my advantage than yours as I realize that the written page provides me greater opportunity to expound on my thoughts than does the traditional speech. Nevertheless, I hope that in the future you will, as you have in the past, extend the courtesy of an invitation to the chief justice to appear before you to deliver the message of the Judicial Branch of Government.

The judiciary's role is indispensable and is indisputably a function of government. The structure of principles and rules determining how the sovereign power of a state is exercised, is referred to as "government." Like law enforcement, fire protection and the military, our system of government provides a judicial system with the integrity, independence and credibility to resolve disagreements and disputes. An independent judiciary protects every individual, every business, and every association, regardless of the power or volume of its voice or where that voice falls in the political arena.

Everybody is affected, directly or indirectly, by court decisions. Court decisions provide certainty under the law. Courts settle personal disputes, business disputes, and criminal charges. Courts interpret administrative rules, statutory questions, and constitutional issues. The issues encompassed in the thousands of individual cases filed each year include parenting time and residential responsibility, distribution of property after death, degree of fault and compensation for personal injury and property damage, land disputes, health care disputes, review of administrative agency decisions, and issues of crime and punishment.

Courts provide the ultimate protection for the most vulnerable in society -- our neglected and abused children, our mentally ill, our developmentally, cognitively, and physically disabled adults, and, sadly, an increasing number of our abandoned, neglected and abused elders. It is the court system that decides when it is appropriate to remove children from their homes and when it is appropriate to exclude other persons from the home. It is the court system that decides when a person is no longer able to make safe decisions about their mental health. It is the court system that decides when someone is incapacitated and unable to exercise their rights to manage their own money or choose where they will live or what kind of medical care they will accept.

Courts are part of the criminal justice process from initial filing through sentencing and after sentencing when issues of compliance or challenges to the court process arise. Any pinch in the court system creates a backlog in the process. Those of you who have been involved in incarceration issues know the greatest number of persons in county jails are not sentenced offenders but those waiting to go to court. Another significant portion are those persons who are waiting to go to court because they have been accused of violating probation or not complying with conditions of sentencing. A backlog in case processing increases jail, probation and prison costs. It affects the person accused of a crime, regardless of whether they are being held in jail or not. It affects their family and their employment as they wait and worry about the eventual outcome. Backlog keeps victims and witnesses in limbo as they wait for justice. If only the two ends of the system (law enforcement in the arrest stage and corrections in the post-sentence stage) are adequately funded and staffed, it increases costs to the county while doing little to advance the criminal justice system in North Dakota. So, too, of course if each end is not adequately funded.

Courts are not just another part of the process but also the arbiter of the system. There is a tendency when discussing criminal justice to focus on the idea of punishment of the guilty. However, it is a basic premise of our law that every person who is charged is considered innocent until proven guilty. Every person has the constitutional right to dispute the charges against them, to question the evidence and the witnesses presented by the prosecution, to present a defense, and to ask for a jury trial. Adequate funding for indigent defense, jury fees, legal research, and judicial staff is required to uphold those constitutional protections.

Courts are also charged with upholding the constitutional right to redress of grievances against the government. When there is a disagreement between a government entity and an individual it is the court's responsibility to determine whether the government can proceed or whether it will be restrained from acting.

Courts are part of the social services process. Courts are the institution that determine issues of juvenile delinquency and punishment. They are involved in child dependency and neglect cases from initial removal of a child from the home until a safe permanent placement for the child can be found.

Courts are involved in mental health commitments from the initial hold until the person is either found competent or placed under a treatment order. Courts are involved in adult guardianship and conservatorship cases from the initial request to determine competency and for years afterward as they monitor the delivery of services by the guardian or conservator. Courts are the last option for persons who contest administrative agency decisions affecting public assistance, workers compensation, unemployment compensation, and driver's license restrictions. Real people suffer genuine hardship when court hearings are delayed.

The court system now files 33,000 more cases per year than it did in 2009. These additional cases are not only coming from oil-impact areas but reflect increases from across the state. Since 2009 you have added 9 new judgeships chambered in the east, central, and western parts of the state. The legislature created these judgeships to address the increasing caseload and to give judges more time to devote individual attention to each case. I thank you for your foresight and understanding.

While we are not requesting more judges at this time, our most recent weighted caseload study shows that even with these additions we are still 10 judges short in the state.

Since 2009, we have added 21 clerk of court staff to address the growing caseload. This number includes 11 clerk of court employees who were already providing their services to us as county clerks and became state employees when their county elected to transfer their employment under N.D.C.C. ch. 27-05.2. Again, while we are not at this time requesting additional positions, despite the additional employees, our latest weighted workload assessment continues to show a statewide shortage of 21 clerks.

We have also added programs to directly address the needs of individuals - not the court system, not lawyers - but the needs of the actual people involved in court cases. These programs include adult and juvenile drug courts, family law mediation, guardianship monitoring, and a legal self-help center. To address the desperate shortage of attorneys in rural North Dakota which increases the costs to rural litigants and hampers the cities, school boards and other entities that regularly rely on legal advice, we worked with the UND Law School to create a rural law-clerk internship program.

Nor have we been standing still in the technology area. Since 2009 we have instituted electronic filing, electronic documents, electronic traffic citations, online credit card payments, online juror qualification and the online ability to request a deferred reporting date; email and text messaging services that send status updates regarding jury service; a public search website that allows searches for hearing dates, criminal and civil case dispositions, and judgment searches; electronic search warrants; and automated data exchanges with other state entities including CJIS (Criminal Justice Information System), SAVIN (Statewide Automated Victim Notification System), the Department of Health, the Secretary of State, and the Department of Transportation.

II.

The additional staff and new programs were necessary to keep the judicial system current and responsive to today's society. If staff must be reduced and programs eliminated North Dakotans should be aware of the results of those actions.

Delay in the court system results in dissipating assets. Real estate, money, investments, and lost opportunity are implicated not just in business-to-business disputes, but also in divorces, probate cases, mineral rights cases, and land disputes.

Delay in the court system affects the stability of families. Divorce and paternity cases often involve issues of custody, visitation, school district assignment, out-of-state relocation of children, and child support payments. Adoption, guardianship, and termination of parental rights are additional cases where delay in the court system keeps families in an agonizing state of uncertainty.

While I recognize that reductions must be made, the delivery of services and the quality of justice will suffer because of the cuts. We are already feeling those effects. Deficiency Appropriation: For the first time in its history, the judicial branch is requesting a deficiency appropriation. This is to cover the costs of the high number of contested cases in the South Central Judicial District related to the Dakota Access Pipeline controversy. While I understand the desire as well as the necessity to keep "government" lean, it places all of us in the position of playing "catch up," often with negative effects on the litigants as I have already noted above.

To meet the reduction to our 2015-2017 appropriation and to maintain that amount for the 2017-2019 biennium we have been holding open an average of 20 positions per month. We have cut three referee positions in the Northeast and Northeast Central Judicial Districts and implemented a reduction-in-force plan that will eliminate 56 other positions. This is a combination of regular full-time employees, full-time and part-time temporary employees, and contract positions. This plan also includes the forced relocation or job loss of six additional positions. These positions are not phantom vacancies that were not filled. They are positions that were filled until recently and some are vacant now only because of the hiring freeze and some are currently filled but we will be required to layoff an estimated 36 people on June 30th. The actual number of people who will lose their employment will depend on the number who are unable to find other employment between now and June 30th.

These reductions will put our clerk of court staffing level at 82% of need and our juvenile court staffing level at 98% of need. To reach this reduction, we will be shuttering the juvenile court office in Bottineau, and staffing Grafton, Jamestown and Wahpeton with only a single juvenile court officer to cover those counties and their surrounding areas.

These layoffs also include shuttering our guardianship monitoring program, eliminating the staff support for our central legal staff, the legal self-help center, eliminating the court improvement project, and reducing the technical support staff who support the more than 4,000 users of the electronic case management system. Some court recorders and court schedulers are also included in the layoffs which will have a direct impact on the ability to schedule and hold hearings. The elimination of law clerk positions in three districts will have an impact on the timeliness of judicial decisions.

On the operational side, we have eliminated all funding for equipment and capital assets, reduced funding for the minority justice program in Fargo and delayed the startup of the Devils Lake program until July 1, 2018, eliminated many of our contracts for juvenile services and reduced the remaining contracts by a minimum of 10%, and eliminated out-of-state travel, including travel for education purposes, at state expense.

None of these are choices that we would have willingly made but we recognize the need to reduce spending.

III.

I do not want to end these remarks on a negative note, so let me elaborate on some of the things we have accomplished over the past 18 months and some of the things we hope to be working on in the next year.

Rural law clerk program: Although the Court has had to eliminate funding for this program, UND Law School and the State Bar Association have picked up the program and expanded its scope. Their goal is to be able to provide stipends for up to eight summer interns working with judges, indigent defense counsel, state's attorneys and small law firms in rural areas of North Dakota. We are grateful to the School of Law and the State Bar Association of North Dakota for recognizing the need to protect access to justice in these areas.

Self-Help Center: With the addition of a paralegal, our self-help center was able to work with hundreds of more litigants and to produce dozens of new forms and informational brochures. This support staff will be eliminated due to budget cuts but we have retained the staff attorney for the program so the Center will not need to be closed down completely. Guardianship monitoring program: Although our guardianship monitoring program will be eliminated at the end of this biennium, we were able to begin some work on reviewing current guardianship cases. The guardianship program manager has developed new informational packets for guardians and easier to understand accounting forms for the required annual reports.

Guardianship Workgroup: Our Guardianship Workgroup, which is ably chaired by Judge Cynthia Feland, has been continuing its work on reviewing the guardianship and conservatorship statutes. We have submitted a bill for several changes based on the recommendations of that group. They have also created an online education program for new guardians which has become the model for several other states. The Workgroup's next projects include the development of standards for professional guardians and reviewing the juvenile court guardianship statutes.

Since I am talking about guardians, I do want to raise a note of concern about another program. This is the PASS (Public Administrators Support Services) program which is administered by the Association of Counties through money appropriated to the Office of Management and Budget. This program was created when the state took over the funding of Public Administrators from the counties.

Public administrators are appointed to serve as guardians when there is no other suitable person available. Without adequate funding the private entities who do this service may not continue to take cases.

Problem--solving courts: Problem-solving courts have been described as meeting the needs of people at the place where social, human and legal problems intersect. They are rooted in the common sense notion that certain kinds of offenders are better handled by dealing with the problems underlying their crimes rather than simple punishment. In North Dakota, they have primarily taken the form of adult and juvenile drug courts. We also have a DUI court in Wahpeton thanks to the hard work and perseverance of Judge Bradley Cruff. Although there have been efforts to create new drug courts in Dickinson, Rolla and Watford City, these efforts have been stymied by a shortage of probation staff and a lack of treatment and other community resources necessary to have an effective court. Due to the loss of judicial resources, the future of the adult drug court in Grand Forks remains up in the air. However, on a positive note, we believe there is a plan in place that will allow the Grand Forks juvenile drug court to continue for the foreseeable future.

In addition to drug courts, I am pleased the Grand Forks judges have been exploring the possibility of starting a domestic violence court. If it comes to fruition, this would be the first in our state and an important step in addressing violence in the home.

Mediation program: Our budget proposal preserves level funding for the family law mediation program. This is a mandatory program for divorcing or never-married parents that provides them assistance in negotiating an agreement on custody and visitation. In more than 70% of cases, the parties are able to reach agreement. Mediated cases reach final disposition nearly 6 months faster than non-mediated cases and have fewer post-judgment motions requiring court intervention to settle disputes between the parties. This program has been a success since its introduction and has consistently received participant satisfaction rate of more than 85%. It is important to the continued relationships parents have with their children and with one another. It is important that the parties leave the system with less, not more, hostility than when they entered the system.

Birchfield Decision: The Birchfield decision (Birchfield v. North Dakota, 136 S.Ct. 2160 (2016)) is a recent U.S. Supreme Court decision reversing Birchfield's conviction for refusing to submit to a blood test and requiring law enforcement to obtain a search warrant for a blood test when they suspect a person of driving under the influence. North Dakota law requires that the blood test be done within two hours of the DUI stop. With cooperation from those within and without the judicial branch, we were able to bring together an interdisciplinary group to develop protocols and a web-based solution which will allow officers anywhere in the state to present a search-warrant request to a judge and receive a response within that time frame. This web-based solution is being piloted in the Northeast Central Judicial District.

Juvenile Court: Our juvenile courts have implemented the use of a tool to screen for human trafficking of youth. Although we like to think that the sexual abuse of children for profit is not occurring in North Dakota, it is. That is the primary reason we have introduced a bill that will allow our juvenile court staff to release information to other entities when they know or suspect that a child is being trafficked.

Juvenile Court Study resolution: It has been 30 years since the structure of the juvenile court has been reviewed. That study was narrowly focused on the delivery of probation services. We have asked for a concurrent resolution to study several aspects of the juvenile court system. These include the supervision of children by juvenile court and by the Division of Juvenile Services; the continuum of care and management of cases for children who are under the supervision of both the juvenile court and social services; and whether the age of criminal responsibility (which is currently 7 years old) should be raised. I am aware of the many study resolutions introduced each legislative session and the limited resources the legislature has to investigate every worthy issue. Nevertheless, I hope you will support this particular study.

Review of our access, retention & preservation of records: Our Court Services Administration Committee, under the leadership of Justice Daniel Crothers, has undertaken the herculean task of reviewing the Court's access, retention and preservation rules and policies. While computers have made many things easier and faster, they also raise new issues. The Committee will be weighing such issues as the public right to access information versus litigants' right to privacy; whether access to records should change over time; how long records can be maintained in electronic format; and how to manage records that are not paper or electronic images of documents but are solely data fields or metadata.

Review of our time to disposition standards: Our Caseflow Management Committee, under the leadership of Surrogate Judge Allen Schmalenberger, has undertaken the first top to bottom review of our docket currency standards since they were originally adopted in 1990. These are the standards the court has set for when a final decision on a case should be issued. We understand that when a case is filed the litigants expect a judge to make a fair and timely decision and our standards should be designed to ensure that we meet those expectations.

Alternatives to Incarceration: Judge Douglas Mattson, Judge Frank Racek, and I have been serving on the Incarceration Issues Committee and Justice Lisa Fair McEvers is serving on the Commission on Alternatives to Incarceration. This has proven to be a learning experience for me and, I expect, for all of the members of the committees. Proposed legislation from these studies will be before you in this session. While our decisions were not always unanimous and some disagreement still exists, I ask you to closely look at the issues and the solutions as you consider this legislation.

Because this is a report on the place and condition of the judicial system in North Dakota, I have written at length about the operations of the judicial branch and the issues we face. The judicial branch is but one of the three co-equal branches of our government and I recognize with respect and deference the position and functions of our equal and separate partners, the legislative and executive branches, in this great enterprise we refer to as "government." I acknowledge with gratitude the cooperation and support of the legislative and executive branches of our State. I ask that you continue that cooperation and support as together we help to make North Dakota government among the best in the nation.

2015 State of the Judiciary Address

Wed, 07 Jan 2015 16:43:00 GMT

On Jan. 7, 2015, North Dakota Chief Justice Gerald VandeWalle presented the State of the Judiciary Address to the 64th Legislative Assembly. Here is the text of his remarks.

Introduction

Lieutenant Governor Wrigley, Speaker Belter, Governor Dalrymple, members of the Legislative Assembly, State executive officials, my judicial colleagues, the district judges, surrogate judges, and supreme court justices, and other friends. Thank you for the privilege of appearing before this Joint Session of the Sixty-fourth Legislative Assembly of our great State.

Most of us learned, or should have learned in school, that in 1215 at Runnymede near Windsor Castle, King John of England sat under a tree and signed the Magna Carta, the Great Charter. That document is the foundation of Constitutional rights and liberties and is the foundation of law that the entire court system of the United States relies on even today. Among the principles laid out in the document is the concept of due process. Due process is the conduct of legal proceedings according to established rules and principles for the protection and enforcement of private rights, including the right to fair hearing before a fair and impartial court with the power to decide the case. It encompasses the principle that the state must respect all of the legal rights that are owed to a person. It is a constitutional guarantee that all legal proceedings will be fair and that the application of laws will not be unreasonable, arbitrary or capricious.

This is the 800th anniversary of that signing and while attending a meeting of the executive committee of the Conference of Chief Justices in Washington, DC in November, it was my privilege to view one of the four remaining original copies of this document issued by the Royal Chancery. It was on loan to and displayed at the Library of Congress. That was shortly after Veterans Day when we honor our veterans who preserve and protect those liberties.

It was a stirring and emotional moment to be in the presence of this document, and to share with several my colleagues from around the nation, these words from that document:

No freeman is to be taken or imprisoned or disseised of his free tenement or of his liberties or free customs, or outlawed or exiled or in any way ruined, nor will we go against such a man or send against him save by lawful judgement of his peers or by the law of the land. To no-one will we sell or deny or delay right or justice.

These concepts of due process have been the guide by which I have endeavored to direct the North Dakota Court System in the years I have been privileged to serve on the Court and as its administrative head. They are the touchstone by which we measure our worth as a court system.

Need for Additional Judges and Staff

As you may have anticipated, this is the segue into the portion of this address in which I am asking for resources that cost money. I have made no secret of the fact we need additional help. In the past 10 years, the caseload in our courts has increased dramatically, particularly in the oil-impacted counties. In these counties, it is easy to see the connection to increased population, increased business activity, and increased law enforcement. In other areas of the state, most notably Burleigh and Morton counties, it has been more of a gradual increase, yet one that is so persistent that these two counties are now home to the most active courts in the state.

The lack of judges and court staff affects entire communities. Those charged with crimes sit in jail longer while they wait for their day in court and a judgment of guilt or innocence. This is disruptive to their own lives and those of their families; it is hard on the alleged victims and the witnesses who wait to testify, and it costs the counties thousands of dollars in incarceration costs. But criminal cases, while a majority in the court system, are not the only cases. Without an adequate number of judges and staff, children wait to learn if they will remain in foster care or return home; adults wait in uncertainty for divorces to be finalized and issues of child custody and property division to be decided; businesses wait for contracts to be interpreted and enforced, and thousands of dollars go into trust accounts until heirs and mineral rights issues can be adjudicated.

The rule of law depends on courts being available in a timely manner and without additional resources we are losing the ability to meet on a timely basis the needs of those who come to the court for help. The lack of resources, particularly in the criminal arena, has led to a system of 'conveyor-belt justice' where hearings are too often run by script and concluded in less than five minutes. We are requesting 4 additional judges and 15 additional court staff to meet the growing needs in Burleigh, Morton, Stark, McKenzie, Ward and Williams Counties.

As an aside, if the economy in North Dakota does slow down, experience has shown there is even greater demand on the courts when businesses fail, crime increases and the stresses on families result in more family law cases. In any event, should our need for judges diminish, last session you restored the authority of the court to eliminate judgeships when a vacancy in that office occurs and there is no need for the position in any location in the State.

Racial and Ethnic Justice

Due process is just an empty promise if we focus only on touching the constitutional bases without giving any thought to how our processes affect the lives of the people who come before us. To live up to the promise inherent in the concept of due process requires constant and vigorous review of our work. Four years ago, we undertook a long and thorough look at how we handled cases involving racial and ethnic minorities and found that we had room to improve. One of the ways we are addressing this is with a proposal to expand the very successful Youth Cultural Program to Cass and Ramsey counties.

This program directs services specifically to Native American children who are charged with a delinquent act and the program is currently available in Burleigh and Morton counties. Also, this past biennium, we have undertaken a review of how we are handling cases subject to the Indian Child Welfare Act. This Act is an important federal requirement to ensure that Native American children are not being unduly removed from their families and communities. The studies have pointed out areas where we need to improve compliance and we are committed to making those improvements.

Self-Help Center

Last biennium, you gave us funds to establish a legal self-help center. The program is up and running and busier than one might have imagined. The program provides direct support for callers, as well as indirect support through our website, brochures, and forms. The program is intended to serve a growing and underserved population -- those that cannot afford a lawyer but make enough money that they are not eligible for free or reduced-fee legal services. It would be ideal if every litigant were represented by counsel but the reality is many people choose to represent themselves and many more simply cannot afford to hire an attorney. There are a number of reasons why people might legitimately lose in court but economic inability to access the law should not be one of them. We are proposing an addition to the staff so we can provide more assistance to more people.

Guardianship Pilot Project

During the biennium, I established a workgroup to study guardianship issues. This workgroup is ably chaired by District Court Judge Cynthia Feland. The group has been hard at work studying the national probate court model standards for guardianship as well as the report on guardianship that the legislature commissioned two years ago. The workgroup submits several recommended statutory changes for your consideration this session. Those changes are intended to clarify the guardianship process, and more importantly, to safeguard the interests of those who are subject to guardianship proceedings.

In addition to the statutory changes, the workgroup has proposed a pilot project that would allow the court to monitor guardianships more closely. We do not have to look very far to see instances where those who are charged with the grave duty to protect the most vulnerable have instead taken advantage of them. This pilot project would provide the resources to investigate suspicious financial activity and to do follow up on the physical well-being of wards after the guardianship has been in place for a time.

Interdisciplinary Committee on Problem-Solving Courts

Nearly everyone is familiar with drug courts and the phenomenal success they are able to achieve. Right now, they are the only problem-solving court we have in North Dakota but there are also problem-solving court models for domestic violence, mental health and veteran's courts. All of these courts use non-adversarial processes and team-based decision making to help people change their lives.

To work, they need resources and participation from a wide range of public and private entities. We have introduced legislation to establish an interdisciplinary committee on problem-solving courts that is modeled after the interdisciplinary juvenile justice advisory board that has helped make North Dakota a model state for juvenile justice. We believe it is imperative that problem-solving courts be fully supported so their funding is stable and their survival is not dependent on the interest of any one person. To achieve that end, we need to have everyone at the table working toward the same goals.

Supreme Court Construction

In previous appearances before you I have mentioned the need for additional space for the Court and, in particular, the administrative side of the Court. The Governor has included $40 million in the budget for the remodeling and expansion of the Liberty Memorial Building. We ask your support for the project as proposed. The Supreme Court has a long-ago history with this classically beautiful building. We were original tenants in the building, occupying the 2nd floor along with the state library. We remained there until the court moved to the 2nd floor of the new state capitol in 1934. At the time the Liberty Memorial Building was erected in 1924, plans were made to build a Temple of Justice to house the Supreme Court which would be matched in exterior design to the Liberty Memorial Building. This future home of the Supreme Court was never built and I think I can safely say that after 91 years, it is not likely ever to be built. Accepting that, it seems fitting that the court return to Liberty Memorial Building and make it our permanent home.

In Recognition

I want to take a minute to recognize the efforts of my colleagues on the supreme and district court benches. Nowhere is there a harder working and more dedicated group of people. The citizens of North Dakota are well-served by the many men and women who have dedicated so much of their lives to public service, as well as those who have recently made the decision to join them on the bench. I thank recently retired Justice Mary Maring and retired judges, Joel Medd, Donald Jorgenson, Sonja Clapp, Jack Paulson, and William McLees. I note with sadness the recent passing of District Court Judge Karen Braaten. I also thank the surrogate judges who so ably stepped in when, because of our thin ranks, a judge's illness could have dramatically slowed the justice system.

Finally I also recognize and thank those legislators, members of the executive branch and public members who serve on our court committees and lend their expertise to our deliberations as we strive to make our courts more accessible and responsive to our citizens.

Conclusion

Lieutenant Governor Wrigley, Speaker Belter, Governor Dalrymple and members of the Legislative Assembly, I thank you again for the opportunity to speak to you this afternoon. In closing, while I am pleased to report that the North Dakota Judicial System is successfully meeting its obligations and satisfying its purpose, we do need your assistance to maintain and even improve on our role in our democratic republic. So I am most grateful for your good will and your willingness to work together with the judicial branch to provide the citizens of our beloved State of North Dakota, the system of justice which they so richly deserve and to which they are entitled under the principles which flow from the Magna Carta.

2013 State of the Judiciary Address to the Bar

Thu, 13 Jun 2013 15:41:00 GMT

Chief Justice VandeWalle

Chief Justice Gerald VandeWalle spoke at the State Bar Association Annual Meeting, Bismarck, North Dakota, June 13, 2013

Thank you for the opportunity to again report on the state of the North Dakota Judiciary.

I begin my remarks by acknowledging the Energy Impact Task Force Judge Hagerty formed early in her tenure as president. The report from the Task Force was presented to the Governor and the legislature prior to the legislative Assembly. It was widely discussed in the media. It effectively 'set the table' in that the needs for additional judges and employees was well known and accepted by the time we made our appearances to support those requests. I thank Jack McDonald, the chair of the Task Force, and the members for their work. There are some who might question whether we should encourage people to take up the practice of law. After all, Daniel Webster in an address said that after 25 years of observation, "I can give it as the condensed history of most, if not all, good lawyers, that they lived well and died poor." Given the alternative I don't think that is such a bad result.

Rural Law Clerk Program: To that end, President Hagerty has been instrumental in designing and championing a new Rural Law Clerk Program, which was funded by the legislature. At her suggestion we included in our budget request and received some funding for the proposal. Working with the UND School of Law, the court will establish up to three paid district court law clerk internships per year. These interns will be placed with rural judges serving communities of less than 15,000. Rural communities are losing attorneys. In 2012, there were 4 counties that had no attorneys at all, six counties with only one attorney and another 8 counties with only two attorneys.

The rural internship program is designed to encourage law school students to consider practicing in small communities. By inviting them into the community as young adults, to work in a professional capacity, we hope they will have a perspective on rural life and the many benefits that come with living in a close knit society and being a valued part of the local community, including the business community.

Appellate Mediation Program: We have authorized a Notice of Comment on proposed Appellate Rule 5 that will establish an Appellate Mediation Program. This program will offer litigants anticipating an appeal the opportunity to participate in mediation at no charge to them. It differs from the family law mediation program at the trial court level in three key aspects: First, it includes probate as well as family cases; second, it is available prior to the actual filing of an appeal; and third, parties can opt out of the program if certain conditions are met. The opt-out conditions are purposely narrowly written. Appellate mediation has a good track record in courts that have been using it. Nationally, the settlement rate for these types of programs is around 50%. This saves time and money for all parties in a case. But, as with our district court mediation program, our motivation and our primary goal is to minimize family conflict. When we close the book on a court case, we leave behind the families involved in those cases. We don't create the conflicts that come to our courts, but the process used to resolve those conflicts should not exacerbate them. No one wins when the price of a decision is a family no longer willing to communicate.

Minority Justice Implementation Committee: For the past several years, we have had a special task force examining the courts for racial and ethnic bias. The task force concluded its work last fall and reported that there is a perception of bias in the courts. A court's stock in trade is credibility. If litigants believe the deck is stacked against them, then even the most lawful and just decisions by the court are greeted with distrust. Understanding the importance of this issue, the task force did not stop at gauging perceptions but also presented the Court with more than 70 recommendations for ways to improve our performance. We are concerned about bias and the perception of bias and we adopted Administrative Order 21 which establishes an implementation committee. This committee will develop a strategic plan to implement the recommendations of the task force and monitor progress in this area.

Mandatory electronic filing and service: Did you notice that we recently mandated electronic filing and electronic service for all documents except initial pleadings in criminal and juvenile cases? No doubt you did notice we heard from a number of you. The transition has not been without some hiccups and misunderstandings but all-in-all it has gone smoothly. Electronic records benefit both the court and the bar.

We live in an information-driven world and work in a profession that relies on fast, accurate information. Fingertip access to documents and nearly simultaneous notice of filing of documents is something many have grown accustomed to. Indeed, for the younger and newer lawyers that is the norm.

It is unrealistic to expect that the court could hire enough staff to provide this service without requiring electronic filing and service. For two years prior to the adoption of the rule requiring electronic filing we encouraged voluntary participation in the system. I am grateful to the many lawyers who took the initiative to know the system and use it, but that left a large number of lawyers who did not. The result was unprecedented backlogs in all of our clerk's offices, which meant delays in getting vital information and documents circulated. It takes all of us working together to create a system that benefits everyone. Change is often a painful process but I am thankful that in North Dakota we have a history of working together to improve our system.

Citizen Access Coordinator: The issue of access to justice and how to provide adequate service to self-represented litigants is a perennial question. Last year, there were more than 1,700 people who represented themselves in civil, family and juvenile cases, and another 6,500 who represented themselves in felony, misdemeanor and infraction cases. These are numbers that we could not have imagined 15 years ago when courts first started to see an increasing number of people representing themselves.

There are reasons for this but I will not go into all of the research here. However, two of the biggest reasons are economics and education. Some people come to court alone because they can't afford to hire an attorney. There are not enough pro bono hours and reduced fee programs to accommodate all of these cases. Others come to court without an attorney because they believe they have the education and intellectual capacity to understand the law and court processes well enough to proceed on their own. Under either scenario, this can cause a great deal of frustration for the self-represented party, the court, and the litigants on the other side of the case.

To help alleviate some of this frustration, the court requested and received funding to establish a new position we titled the Citizen Access Coordinator. This person will be responsible for instituting a support center for self-represented litigants that will provide information about court rules, processes, and forms. The Coordinator is not intended to be the legal advisor of the self-represented litigant.

Judicial Planning Commission and Re-Districting: At the request of the Administrative Council, I asked the Judicial Planning Commission to consider the current judicial districts and make recommendations related to re-districting. Under the North Dakota Constitution (Article VI, Section 9) the Supreme Court is authorized to divide the State into judicial districts. The last time there was a major realignment of the districts was in 1979 shortly after I came to the bench to put into perspective and it is time to give them a fresh review. The three new judges authorized by the Legislature will help to alleviate the increasing workload caused in great part by our flourishing economy. One of the goals of the review is to bring the case loads per judge into a better balance. The Commission has sent recommendations to the Court which are now out for comment. Please take a look at the options they are recommending and give us your opinion.

Rule 57, Judicial Emergencies: The Court recently adopted Administrative Rule 57 which gives the Supreme Court the authority to declare a judicial emergency. If an emergency is declared, the Court can suspend, toll, extend or otherwise grant relief from deadlines and schedules. We have had to take this action before, in 1997 and 2011, on an ad hoc basis using the inherent power of the judiciary to manage the court system. This rule formalizes the process and will allow us to suspend statutes of limitations, designate temporary venues, and close courthouses in an orderly fashion. Now that we have a formal process in the statutes and in our rules, we hope we will not have to use it.

Legislative Session: Much of what I have discussed involves action taken by the recent Legislative Assembly. The Judicial Branch fared well in that our request for new judges, new positions and a few new programs were, for the most part, well received. Contrary to what is taking place in several of the other states, our judicial system is not under attack by the other branches. That does not mean we can be complacent. I am grateful to the Bar Association and its individual members for their support and for their vigilance in defending the rule of law and the rights and liberties of our citizens.

I also thank the members of SBAND for their service on the joint bench/bar committees, our disciplinary boards and the other Bar Committees that are so vital and so important to the continued vitality of the Association, the Judicial Branch and the legal profession in general. We are privileged to live in a State in which respect and civility are still the norm, not the exception. But our good fortune also brings responsibility .

We are not a large judicial system nor a large bar association. We have limited financial resources and even more significant, we have limited human resources. Nevertheless, we must continue to look introspectively and outwardly for ways to become more efficient and more relative to our role in government and society. We will continue, as our resources allow, to examine new programs in order to determine whether they will enhance our system of justice and serve the citizens as well as the profession. Future projects could include looking at operations within our clerks offices as the duties change as a result of technology and whether we need and have the resources to establish additional specialty courts such as veterans courts, mental health courts, reentry courts and probate courts. These are only examples of some of the proposals that have potential application in our judicial system in North Dakota.

But, I do not want to alarm you with the specter of immediately changing the course of the courts.

Rather, I look forward to continued good relations and cooperation with President Morris, the Board of Governors and the Association.

I am not an avid reader of poetry but in closing I end with a poem from a book of poetry I received about law, lawyers and judges. The poem by James Clarke is entitled 'Bit Players'. I read it for you to mull in your mind without further comment from me.

After the performance, & the judge &
lawyers have bowed to each other &
strutted off the stage, the victims
are quickly shunted off to the wings with
the rest of the props to await
the next unpaid curtain call.

Thank you for your good will and best wishes to SBAND for a successful year ahead.

2013 State of the Judiciary Address

Wed, 09 Jan 2013 16:40:00 GMT

On Jan. 9, 2013, North Dakota Chief Justice Gerald VandeWalle presented the State of the Judiciary Address to the 63rd Legislative Assembly. Here is the text of his remarks.

Introduction

Lieutenant Governor Wrigley, Speaker Devlin, Governor Dalrymple, members of the Legislative Assembly, State executive officials, my judicial colleagues—the district judges and supreme court justices—and other friends. Thank you for the privilege of appearing before this Joint Session of the Sixty-third Legislative Assembly of our great State.

I begin this State of the Judiciary by observing that access to the courts and the ability to participate in one's own case are key concepts in delivering justice. We do not always meet that goal, but we remain intent on keeping open the window of opportunity for all who seek remedy in our courts.

To that extent, I am pleased to report that for the most part the state of the North Dakota Judicial System is healthy. However, we are in need of your help to maintain the strength and vigor we must have to meet the challenges we face. I offer this brief review of what has happened, is happening, and will be happening in the Judicial system.

Task Force To Study Racial and Ethnic Bias in the Courts

Four years ago, I came to the Legislature to request funding for a task force to study racial and ethnic bias in the court system. The task force which was so ably co-chaired by Supreme Court Justice Carol Kapsner and District Court Judge Donovan Foughty has completed its initial investigation. The results may not be what we might have envisioned. Despite our efforts to ensure that we have a fair and impartial justice system, there is a perception of bias in the courts. Some of this may be a result of national controversies; some is obviously local. As our economy grows our population becomes more diversified. We need to be aware and understand what that means to the judicial system. We intend to keep working on this issue. The judicial branch has neither the power of the sword nor the purse but instead must rely on the respect of the people in order to carry out its duties. The trust of the people in our ability to run a fair and impartial court system is not just an ideal but a necessity for us to function as our Constitution envisions.

Mediation Program

Five years ago, we started a mediation pilot program to address the needs of families going through child custody proceedings. This program is available everywhere in the state and is allowing rural, low-income, minority and self-represented people access to mediation they would not have otherwise. It has proven to be a well-accepted program, with an 87% user satisfaction rate and a success rate that exceeded our expectations. We knew from previous evaluations that the program was having a positive impact on the number of cases that settled through mutual agreement of the parties. This past year, we had the opportunity to look at two other areas where we had hoped to see a positive impact: First, the time it takes to reach a final agreement; and Second, how often cases are re-opened because of new disputes.

I am very pleased to report that our program is having the outcome we had hoped for. The evaluation found that the mediation process reduced the time to settlement by as much as 5 months in the Northwest Judicial District. Furthermore, those cases that go through mediation are 60% less likely to be re-opened than cases that have not had the benefit of mediation. While that is good news for the court it is even better news for the families who are wrestling with the emotional, financial and legal issues that are part of any custody proceeding. Our goal is to keep family relationships civil and positive for the children involved.

We are considering building on the success of this mediation program by expanding it to family and probate cases on appeal. Our goal in implementing appellate mediation is the same as for the district court program—to minimize family conflict, to encourage shared decision-making, and to support healthy relationships and communication among family members. We believe that less time spent in litigation means less animosity and less expense for all concerned.

Parenting Coordinator Program

Where the Mediation Program is designed to assist parties early on in their case, the Parenting Coordinator Program is designed to assist parties after the parenting order is final. This program is the result of recommendations that came through the 2007-2009 interim committee on Judicial Process from the State Bar Association. The program is designed for those high-conflict cases where children are continually caught between parents whose parenting time becomes a tool in their on-going conflict with each other. In those cases, the judge can order the parties to pay for a parenting coordinator who has the authority to handle parenting time disputes immediately, without either party having to hire an attorney or file a motion with the court. By statute, this program is set to sunset on June 30, 2013. Anecdotal evidence suggests that it is effective, and acceptance is growing. The State Bar Association is asking you to lift the sunset clause in the statute, and we support that request. There is only minimal cost to the state to continue the program, but it is one more opportunity the court has to bring families to work together rather than fighting each other.

Problem Solving Courts

We currently have juvenile drug courts in six locations and adult drug courts in four locations and are in the process of establishing a juvenile drug court to serve the Valley City and Jamestown region. Interest is growing in other areas as well. Once again, I acknowledge Justice Mary Maring's and Judge Gail Hagerty's initiatives and the role of the executive and legislative branches in making these courts successful. The success of these courts truly rests on active collaboration between all three branches of government.

And in the area of problem-solving courts and children and families, we are planning to move forward with North Dakota School Justice Partnership Leaders, Kirsten Baesler, Superintendent of Public Instruction, and Scott Davis, Indian Affairs Commissioner, in a national program to "keep kids in school and out of court." While North Dakota has a good record of school attendance and graduation, there are areas in which we can improve. The juvenile drug courts have been effective on that front, and we will look at other instances in which we can cooperate with schools and other agencies. We want the juvenile courts to be an ally and not an obstacle to reducing the drop-out rate and keeping kids in school.

Recently, many states have implemented Veterans Courts to help veterans in the justice system as a result of their service to our Country. Our Court Services Administration Committee, chaired by Justice Daniel Crothers, examined the possibility of establishing such a court in North Dakota. Problem-solving courts demand a great deal of resources not just from the judiciary but many other entities including service providers, prosecutors and defense attorneys, probation, and community supporters. Our Committee determined there is not enough localized need in any area in the state to support a separate veterans court, but it did identify ways we can improve our court process to recognize when service-related issues are present. I assure you that this is something that is on our minds, and if we see an increasing need, we will respond accordingly. Our impaired veterans deserve no less.

Technology

I am pleased to report that our case management system, Odyssey, is implemented, and after April 1 of this year, 2013, all documents filed after the initiating pleadings must be filed electronically except for documents filed by self-represented litigants and prisoners; after June 1 of this year, initiating pleadings must be filed electronically in civil, non-juvenile cases. I am grateful to Justice Dale Sandstrom and the other members of the Court Technology Committee and technology staff for spearheading this momentous project, as well as you, the Legislature, who provided the funding. While there are still some problems we continue to resolve, we are well on our way to becoming a fully paperless system.

Guardianship Issues

Under the study resolution adopted in the 2011 Legislative Session, the interim Human Services Committee received a report on the guardianship system in North Dakota. The report contained a number of recommendations that fell into three basic categories:
1.Strengthening procedural protections during the guardianship appointment process;
2.Providing better safeguards for those under guardianship; and
3.Stabilizing funding of the Public Administrator system.

The Human Services Committee voted to move forward on recommendations related to procedural protections and funding public administrators. The Court is also moving forward on the guardianship and elder issues. I am in the process of establishing an interdisciplinary network of stakeholders to make recommendations for improvements and to assist in implementing best practices in this area. Our goal in establishing this network is create a mechanism for all the entities who work with the elderly to work together to make a better system for the aged. As our elder population increases these issues require our continuing attention.

Rural Law Clerk Program

Rural counties in North Dakota are facing a crisis in access to legal services. Currently, there are 21 counties that have 3 or fewer attorneys. In 4 of those counties, there are no attorneys at all. Many of the attorneys who live and practice in rural counties are nearing or past retirement age. At the suggestion of the State Bar Association, we are partnering with the UND Law School to create 3 summer internships for law students to address this shortage. These internships will be with judges chambered in communities with a population of 15,000 or less. We hope that this opportunity will show new lawyers the benefits of living and working in a small community and the satisfaction that can be found there.

UND Law School

And speaking of the law school, I am pleased to hear the Governor's recommendation for the capital improvements to the UND School of Law. I say this not just as a proud alumnus of that school but because of the importance the school has to our state as a whole. The substantial majority of the lawyers practicing in our state are UND law school graduates. They chose to remain in North Dakota and become hardworking professionals who contribute to our economy and our communities. Of course, the building does not make the program. But the building does attract people to the law school and most importantly allows for increased opportunities to learn, such as clinical legal education. As with the medical profession, we have a much better chance of retaining our young legal professionals if they choose to attend our law school.

Citizen Access Coordinator

Every year, more people come to court without an attorney either by choice or because they are unable to afford one. Last year, we saw over 1,700 people who represented themselves in court in civil, family and juvenile cases. If we count the number of people who represented themselves in felony, misdemeanor and infraction cases, that number jumps to over 6,500. As you might realize, navigating the court system is not a simple task. Too often these individuals are confused by the process and unable to proceed, requiring paperwork to be redone and hearings to be reset. This causes a great deal of frustration for the person and for the court. To confront this issue, we are proposing a new Citizen Access Coordinator position that will work under the auspices of the state law library. The Citizen Access Coordinator will be able to provide procedural advice and education to self-represented litigants. This in turn will help us to keep the wheels of justice turning.

Supreme Court Facilities

Because there are several new legislators, I briefly review the history of the unification of the North Dakota Judicial Branch. It began well over a half century ago when the Legislature abolished the office of justice of the peace. It continued, some might say peaked, with the elimination of county judges, county justices, and in some instances by local option, municipal judges and the transfer of the jurisdiction of those courts to our district courts and the administration to the Chief Justice and State Court Administrator. With regard to the district courts, Cass County and Williams County have recently completed substantial improvements to their county courthouses with the assistance of the Court Facilities Fund you established. We are grateful to the counties for this undertaking.

It has now been six years since I first broached the subject of adequate space for the Supreme Court. In 1982, when we moved into the Judicial Wing, the entire supreme court, clerk's office, office of the court administrator, and law library consisted of 5 justices and 16 staff. At that time, we were allocated just 1/3 of the space we had requested and were told that it was a 10- to 15-year solution. A lot has changed in 30 years, chief among them, as I mentioned, is the unification of the county and district courts into a single entity under the administrative direction of the Chief Justice. Keeping in mind that most of the 22,000 square feet the court occupies actually consists of the courtroom, the law library, and records storage, we are squeezed to the limit to house 46 staff in space that was originally intended for 16. John Boyle with Facilities Management has informed us of a proposal that would allow additional space for the Judicial Branch. In any event, once again, I am asking for your assistance in resolving this issue.

Judicial Emergencies

Most of you may not be familiar with the details of the practice of law, but you are all familiar with the flooding issues that we have been dealing with in this state. They disrupt the lives of individuals and wreak havoc on the ordinary course of business and government activity. When disasters happen, whether they are an act of God or man-made, the court needs the authority to ensure that the legal rights of litigants are protected. We have dealt with extended courthouse closures twice in the past fifteen years. I did not think lightning would strike twice. It did. This is why we are submitting a bill that will grant the supreme court the authority to temporarily suspend statutes of limitation in an orderly manner in the event of a disaster. It may seem like a small thing when people are faced with re-building homes and businesses but it is a significant step we can take to ensure no one loses their case because they or their attorney were displaced or a courthouse was closed.

Judges and Court Staff

Courts are vital to maintaining the infrastructure of our society. Although not always noticeable, it becomes more apparent in the face of a rapidly changing economic and social landscape. This past summer, the State Bar Association undertook a study of the impact energy development is having on the justice system. They concluded that in order to meet the needs of northwestern North Dakota, additional resources were needed across the board for courts, prosecutors, defense attorneys, social services, mental health providers and law enforcement. Businesses, government, and individuals need access to fair, quick, and neutral dispute resolution. There is no doubt that in measuring the business climate of the State, the due-process methods and the timeliness of the disposition of lawsuits plays a significant role in the result. Furthermore, backlogs drive up local incarceration costs, put the rights of the accused in jeopardy, impact businesses' ability to operate, and damage families. In our energy-impacted counties we are seeing unprecedented growth in probate and quiet title cases where mineral rights are determined. Unfortunately, we are also seeing unprecedented growth in criminal cases as well. Just as in other sectors—housing, transportation, sales—the energy impact is rippling across the state. Morton and Burleigh Counties in particular are absorbing displaced cases from the Northwest Judicial District. This in turn is putting a strain on their ability to function.

Rapid growth is not the only issue we are dealing with. Cass and Burleigh Counties have seen their population and caseloads growing year after year without additional resources to handle the change. We have managed it by increased efficiencies, but cutting corners comes at the cost of serving the public. We are grateful we have not had to endure budget cuts like other state courts have in the past few years, but the rapid growth in our state is producing the same sort of problems in handling our caseloads. I read recently that the average doctor's appointment is scheduled for 15 minutes. No one can question the value of having enough time to explain things to your doctor and giving the doctor adequate time to make a diagnosis. But, 15 minutes is a luxury when it comes to the average court hearing. Fifteen minutes is 5 minutes longer than the average protection order hearing and 5 times longer than the average bail hearing. One of our newly elected judges has been observing proceedings in various courts and has dubbed this as "conveyor-belt justice." It is what we have had to do to get the cases through the system. In some places, most notably in the northwestern part of the state, we are no longer able to provide even those minimum time frames.

So, how did we get in this situation? I described to you earlier the unification process. When we consolidated district and county courts, we were required by legislative mandate to reduce the number of judges. That number was arbitrarily set at 42. I have suggested in prior addresses to you that it was too deep a cut to be sustainable, and four years ago you created two new judgeships. In addition to cutting judges, the court also voluntarily eliminated clerk jobs when we consolidated the district and county clerk offices. Over the years, we have cut staff when our workload assessments tools said they were no longer needed. We have moved judges and staff from one court to another as a first option rather than coming to the legislature asking for more help. Ironically, one of those judges was moved from Watford City to Minot and one from Stanley to Minot. Watford City and Stanley have seen substantial increases in cases since that time. This has left us with no excess capacity in the system. We could manage with the status quo, but we are struggling to handle our burgeoning economy. We have now reached a crisis point where judicial services are suffering throughout the state. We can no longer serve the growing needs of one area of the State at the expense, by cannibalizing, of other parts of the State.

Moreover, Judge Frank Racek of Fargo has suggested that in light of our new case management system, it is time to review our procedures to determine whether or not there are functions we perform that are no longer necessary. I agree with his suggestion, but it is extremely difficult to ask our people to step back and take a look at what we are doing when the hydraulic pressure of what we currently do keeps increasing. There is simply no time to ponder needed changes.

We have before us a plan put forth by our Judicial Planning Commission to realign our district boundaries, but re-districting alone does not solve our judge shortage nor does it begin to address our staff shortage. In order to meet the demands of business and individuals, we must have additional judges and court staff to carry out the work. To that end I am requesting you to establish three new judgeships, two in the Northwest Judicial District, which is the area most directly impacted by oil development, and one in the East Central Judicial District, Fargo. That still leaves the South Central Judicial District, Bismarck, with a significant unmet judicial need. I am requesting several additional employees to meet the needs in offices such as that of the clerk of court.

I realize that you will hear similar pleas from many governmental agencies. I am concerned that the monotonous repetition of these requests may result in ennui (that's a two-bit French word that means boredom and the listlessness that accompanies it). I ask that you not succumb to ennui, at least not when the Judicial branch budget comes before you.

I quote one of our former supreme court justices, Justice Edward Engerud, who served from 1904 to 1907, when he said in 1906, "It is my belief that the people of the state desire to preserve the integrity and efficiency of the (supreme) court." I believe the same can be said of North Dakotans today.

Conclusion

Finally, the Judges' Association invites you to stop in the hall between the legislative chambers for a brief reception and refreshments. If you have another meeting, please feel free to snatch and carry.

Lieutenant Governor Wrigley, Speaker Devlin, Governor Dalrymple and members of the Legislative Assembly, I thank you for the opportunity to speak to you this afternoon. I wish you, the legislative branch and Governor Dalrymple and the officers of the executive branch, all success as you grapple with the issues that face our great State. It is an exciting time in North Dakota, and I look forward to working with you this session.

2012 State of the Judiciary Address

Thu, 14 Jun 2012 15:39:00 GMT

Chief Justice VandeWalle

Chief Justice Gerald VandeWalle spoke at the State Bar Association Annual Meeting, Grand Forks, North Dakota, June 14, 2012

President Venhuizen, members and guests of the North Dakota State Bar Association. Thank you for allowing me to again speak with you about the state of our North Dakota Judicial System. It is a privilege and a pleasure I do not take for granted.

The annual report of the North Dakota Judicial System for 2011 is now published and is available for viewing on the Supreme Court's website if you are interested. I do not intend to repeat the contents of that report in these remarks. I am aware that time is limited and I do not intend to overstay my welcome.

Oil Impact:

I begin with what seems to be everyone's topic of discussion � The Bakken. I thank the State Bar Association for the establishment of a task force to examine the impact of oil activity on the judicial system. We know that there have been increased caseloads throughout the Northwest and Southwest Judicial Districts and we anticipate that they will continue to increase in number as the oil boom continues and the area affected continues to spread.

One of the steps we have taken within the judicial system to measure and to understand the impact is to update the statewide workload assessments for judges and clerks of court. These assessments will give us a starting point for determining what additional resources the court may need and where they should be located. The assessments also ensure that we do not lose focus of the needs of the entire court system. While the oil impact counties are currently on the minds of the public and the media, we must not lose sight of the chronic judicial and staff shortages that exist and continue to grow in the South Central and East Central districts.

The forthcoming legislative session promises to be interesting as well as challenging. While our legislative proposals are not yet finalized, this Association has played a persuasive and significant role in the legislative process and I will again seek your counsel, your aid and your assistance in advancing our program.

Mediation Program:

We recently released the latest evaluation of our family law mediation program. This was the first opportunity we had to look at two areas where we had hoped to see some impact: the time it takes to reach disposition and the number of times the case comes back to court post-disposition. The evaluation found that the time was shortened by an average number of days that ranged from 80 days in the Northeast Central Judicial District to 150 days in the Northwest Judicial District. The percentage of cases that were re-opened in the South Central Judicial District decreased by 91% and in the Northeast Central Judicial District by 71%. The litigant satisfaction rate was 87%. We are pleased the program is being widely used and that it is having such positive results.

We are currently in the process of considering a proposed rule establishing the Appellate Mediation Program. This program would offer litigants involved in family and probate cases the opportunity to participate in mediation at no charge to them.

Commission to Study Racial and Ethnic Bias in the Courts:

Some of you are members of the court's Commission to Study Racial and Ethnic Bias in the Courts. Many of you have taken the time to complete the Commission's surveys and offered your input in other ways. The Commission will soon release its final report. One of the recommendations that will be included in that report is the need for court and bar sponsored programs to make courts more accessible to citizens from all cultures and the development of community outreach initiatives. I hope that when we move forward with these recommendations we will find a willing and eager partner in SBAND. While bias cannot be tolerated in any governmental branch or institution, it is particularly harmful in the courts, to which the public looks, above all, for fairness and neutrality.

Court Security:

This spring marks the 20th year since Judge Jahnke was shot while presiding over family court. I wish I could say that we had found a way to ensure something like this does not happen again in North Dakota. Sadly, that is not the case. Too often, especially in our rural communities, security is inadequate. We recognize county resources are limited and that it is hard to get anyone too excited about security when no one has been injured in recent years. However, just two years ago, we had an incident in Adams County where a defendant brought a gun into the courtroom. Thanks to the quick action of Jonathan Byers and a gun that misfired, no one was hurt. But the incident was a stark reminder that we can never become complacent about security.

Mandatory e-filing:

We are currently circulating a proposed amendment to Administrative Order 16 that would require all pleadings to be filed using the court's e-filing system, except for those used to initiate a case. We recognize this has a direct impact on how you do business with the courts and we are interested in hearing from you. E-filing has been available statewide for more than a year and the practicing bar's usage of it is slower than we expected. At the same time, we have seen a tremendously positive response to the bar's online access to court documents. The two parts of the system work hand-in-hand. When you use the e-filing system, the documents are clearer and the clerks are able to process them faster, which in turn makes them available more quickly to the judge and the litigants.

Self-Represented Litigants:

The issue of how to provide adequate service to self-represented litigants is a perennial question. We have recently referred a proposal to the Court Services Administration committee to consider instituting a support center for self-represented litigants that would provide assistance in completing forms. I do not know what the final recommendation from the committee will be, but the number of people choosing to forego using attorneys has been and will continue to grow.

Reduced funding for Civil Legal Services:

In light of North Dakota's booming economy and low unemployment rate, it may seem odd to talk about people in need. But, despite our affluence, there are people in our state who are without adequate resources and in need of legal services. The media reports indicate that many of the people drawn to North Dakota by the promise of jobs are destitute when they arrive. Some of them have needs with are greater that we might expect.

I raise this because Congress is again proposing further cuts to the Legal Services Corporation. More than half of the funding for Legal Services of North Dakota comes from funds appropriated to the Legal Services Corporation. Because of reduced federal funding last year, they were forced to lay off one full-time staff attorney and discontinue all 5 of their temporary law clerk positions. For every staff attorney position that Legal Services of North Dakota loses, approximately 700 North Dakotans will lose the opportunity to get the help they need to resolve their legal issue.

I thank all of you who have performed pro bono or reduced fee services or contributed money to provide legal services to the poor in the past year and I urge everyone to consider what they can do to help where they can. As our profession prospers from the economic upswing in North Dakota, we have a greater responsibility to contribute our money, if not our time, to assure access to the justice system in North Dakota.

Judicial Planning Commission and re-districting:

At the request of the Administrative Council, I asked the Judicial Planning Commission to consider the current judicial district boundaries and to make recommendations related to re-districting. The Commission has been considering three different proposals but has not yet decided which, if any, of the proposals it might recommend, or whether it will recommend any changes to district boundaries. I mention this because I am aware that in some areas of the state, city and county commissions and local bar associations have been approached about the various proposals. This may have given some people the idea that a decision has already been made. That is not the case. I assure you that if we reach the point where the Commission has a recommendation the Court looks favorably upon, we will ask for public comment before a decision is made.

Guardianship and Elder Issues:

For the last two legislative sessions, I have been urging a study of guardianship and other issues affecting the elderly. Last session, the legislators adopted our study proposal and hired a consultant to examine North Dakota's guardianship and public administrator system. The consultant released his final report at the end of May. He has presented recommendations that would strengthen the due process rights of proposed wards, raise the standard for guardianship, and establish an independent state agency to deliver public administrator services. It remains to be seen what the Human Services Committee will recommend and what might ultimately become law.

20/20 Commission:

I could speak at length about proposals made, adopted and discarded by the 20/20 Commission concerning changes in the ABA model rules of professional conduct and admission to practice as a result of changes in technology and the globalization of the practice of law. I do not intend to do so because tomorrow morning two knowledgeable people will discuss that topic at the Vogel Lecture on Professionalism and Legal Ethics. I urge you to attend, to hear about the issues, the proposals and the pros and cons of those proposals.

Contested Elections and the Need for Civil Discourse:

The critical importance of an independent judiciary in protecting and promoting democracy cannot be overstated. If the people cannot turn to the courts with confidence that the judge will fairly and impartially apply the law, then the courts will have become meaningless. Huge sums of money permeate some judicial elections. In other States relations among justices have deteriorated to a caustic level that would have been unthinkable even 10 years ago. I am proud of the civility with which North Dakota elections have always been conducted. It is yet another reason to be thankful and proud of North Dakota. But, if they are to stay that way, it is up to us, as a State and as a profession, to hold ourselves to a high standard of conduct.

As I have in the past, I again thank the North Dakota State Bar Association officers, members and staff for your interest, your cooperation and your support in preserving and improving the fair and impartial judicial system our citizens deserve. I am grateful for your advocacy on behalf of the judicial system. I am grateful I live in North Dakota.

State of the Judiciary Report 2011

Thu, 16 Jun 2011 15:38:00 GMT

"The ability of a party to fully participate in his or her case is a fundamental access issue"

by Chief Justice Gerald W. VandeWalle
State Bar Association of North Dakota Annual Meeting
Thursday, June 16, 2011
Fargo, North Dakota

Thank you and good afternoon. I am pleased to offer the State of the Judiciary Report to the 112th Annual Meeting of the State Bar Association. Despite what some of the younger lawyers may believe, I have not been in attendance at all 112 meetings. A few people in this room were in attendance at the same meeting I was a few weeks ago in which the speaker, a retired Law School Dean, in talking about his age said that "With age comes wisdom but sometimes age comes alone."

Legislative Session

I begin this report with some observations on the recent legislative session in respect to the third branch of government, the judicial branch. It was not an extraordinary session from our standpoint. We did not propose new high-profile programs and our requests for funding were modest. We did receive some, but not all, of the new FTE's we requested. But the idea of new FTE's, salary increases and some additional funding for programs is nearly unique when compared with the reduction in staff, closing of courthouses and loss of programs most of our colleagues in other States are enduring. I acknowledge and I appreciate the support of the Bar, Bill and Sandi and the others who were there to support the judiciary. And also I recognize the work of our lawyer legislators. They are few in number but large in stature.

Guardianship and Elder Issues

For the last two legislative sessions, I have urged a study of guardianship and other issues effecting the elderly. North Dakota has a population that is aging faster than most states. If not with wisdom, age does come with vulnerability, and there are unscrupulous people who do not hesitate to take advantage when they sense an opportunity. Financial exploitation, domestic violence and neglect of elders can occur between strangers and family members. Our system of compensating public administrators should be reviewed. The legislature did not accept our particular proposal to study elder issues but did agree to contract with an outside entity to study guardianship issues and the Legislative Management Committee indicated they will consider some of the issues with which we are concerned in that study. Assigned to Interim Committee Human Services.

Study of Court Fees

Arising out of discussions that originated in the Alternatives to Incarceration Committee, the legislature has decided to take up the issue of the number and types of fees that courts are mandated to impose in criminal cases. These types of fees often remain uncollected over the years and if they are all imposed the total may at times exceed the actual fine. These fees have been added piecemeal and it is time to review the cumulative effect of disparate legislation and we look forward to seeing the results of the study. Assigned to Commission on Alternatives to Incarceration.

Studies of Statutes of Limitation in Civil Cases

Another interim study that will be of interest to many of you is the legislature's study of the statutes of limitation in civil cases. Our current six year statute of limitations was originally enacted as part of the Revised Codes of the Territory of Dakota in 1877. The legislative history of this legislation shows both sides put forth impassioned arguments by their most skilled litigators before the bill to shorten the statutes of limitations for injury to person from six years to three years was turned into a study resolution. I am reminded that it is not only the Supreme Court that is asked to take testimony and make difficult decisions. Assigned to Interim Judiciary Committee.

Study of Juvenile Court Jurisdiction

Another study assigned to the Interim Judiciary Committee is a study of juvenile court jurisdiction and the process of transferring juveniles to district court, or "adult court" as the resolution uses the common vernacular although the term "adult court" is not defined by statute nor has the Legislature created an "adult court" by that name.

Veteran's Court

We have been doing some studying of our own. Nationally, North Dakota and West Virginia rank as the two states with the highest per capita rate of military enlistment. When our veterans return to North Dakota, it is an unfortunate fact that sometimes the things they experience in combat come back with them. Along with physical disabilities that may be severe enough to require the appointment of a guardian or conservator, there are two less visible, but equally problematic illnesses that can cause veterans to come into contact with the court. Post-traumatic stress can manifest in various ways, including drug and alcohol abuse, violence, disorderly conduct and mental health disturbances. Traumatic brain injury from exposure to bombs or motor vehicle accidents can cause irritability, mood swings, depression and decreased impulse control which may impact the family and the veteran's ability to maintain employment.

Veteran's Courts, based upon the problem-solving model of drug courts, are an increasingly popular way for court systems to address the unique needs of veterans and there has been some interest in starting a veteran's court in North Dakota. Our Court Services Committee, chaired by Justice Daniel Crothers, has been studying veteran's court over the past year. The committee has submitted a report concluding that because we do not know the extent to which specialized services may be needed, and based upon our court organization and state geography, that a better model for North Dakota is individual justice planning. Under this model, we would not create a separate Veteran's Court but instead would focus on early identification of veterans, an assessment of the needs of the veteran and close cooperation with veteran's service organizations to see that the veteran gets the help he or she needs. The Court will consider that report in the near future.

Expansion of Court's Limited English Proficiency Participation Plan

The ability of a party to fully participate in his or her case is a fundamental access issue that becomes particularly relevant in cases involving litigants who are not proficient in the English language. In the past, the court system provided interpreters at no cost for defendants in criminal and juvenile cases. We have recently expanded that policy and now provide interpreters for litigants and witnesses in criminal, juvenile delinquency, child welfare, divorce, annulment, custody, child support, guardianship, conservatorship and mental health cases. The United States Department of Justice has taken a great interest in this issue at the State court level and is demanding more be done.

Child Welfare

I have tasked the Court Improvement Committee, chaired by Judge Sonja Clapp, with studying the American Bar Association's principles and standards for excellence in child abuse and neglect proceedings. These standards are in addition to the ABA's and the Court's docket currency standards and relate to court organization, selection, education and training for judges, and case processing. The committee has been meeting regularly and I expect to have a recommendation from them in the coming months.

Study of Race and Ethnic Bias in the Courts

The Commission to Study Race and Ethnic Bias in the Courts, co-chaired by Justice Carol Kapsner and District Court Judge Donovan Foughty, continues its mission. The Commission has begun its push toward completion of its study of racial and ethnic bias in the courts and toward a final report with recommendations. Sections of the final report covering juries, interpreters, and other areas of study have already been drafted and continue to be discussed. Recommendations are being derived from data gathered to date and from an ongoing analysis of other state reports and specific studies on individual topics, with these secondary sources either supporting general recommendations or providing information relevant to issues arising in North Dakota.

Having completed a series of public meetings throughout the state, the Commission is in the process of implementing several surveys designed to gather information specifically from attorneys, court personnel, and defendants who have completed the entire court process. The Commission is also working to create a small number of focus groups to attempt to gather data from individuals who were not reached in previous meetings, but whose professions provide them with insight on bias issues in the courts.

ABA Access to Justice Initiative

Last year, the American Bar Association began an "Access to Justice" initiative with a primary focus on "overcoming barriers to civil justice created by inability to afford counsel, culture, language and age." Part of that initiative is to encourage the highest court in each state to create an Access to Justice Commission. At the risk of repeating what I have already said, I want to take a moment to review what North Dakota has already done in this area.

The charge of the Access to Justice Commissions includes conducting a survey to determine the needs of the poor and the elderly. In North Dakota the State Bar Association and Legal Services of North Dakota have quite recently conducted those types of surveys. The charge also includes changing court rules to allow for limited�or unbundled�representation and allowing retired attorneys to offer pro bono services. Our rules already allow for those things.

A second charge of the Access to Justice Commissions is to expand interpreter services for litigants and cultural awareness for courts and the bar. Several years ago, our Court Services Administration Committee, then under the chairmanship of Justice Carol Kapsner, wrote a Court Interpreter Handbook that is available in every clerk of court and juvenile court office and on our website. The Judicial Education Committee chaired by Justice Mary Maring incorporates into our annual conferences training on cultural sensitivity, implicit bias, and practical tips on when and how to use interpreters effectively, and we created a Commission to study race and ethnic bias in the courts. In addition, we have recently expanded the types of cases in which the court provides foreign language interpreters.

A final charge of the Access to Justice Commissions is to expand services for self-represented litigants. Although we have not gone as far down this road as some courts have, we are making steady progress in this area. We developed a court policy on assisting self-represented litigants that has been in effect since 2003 and have developed forms for small claims, child support, divorce and probate actions.

We have done a great deal with Access to Justice issues because we as a court system and a state bar recognize that access to justice is more than just the ability to hire a lawyer or to get a hearing before a judge. We acknowledge that there is always work to be done in this area and that work will continue without establishing a Commission at this time.

Mediation for Cases on Appeal

Our district court mediation program for family statistics reveal that 55% of cases going through mediation settle all issues and another 17% settle some of their issues; 83% of participants report they are satisfied. Relying on these efforts, we hope to expand mediation to contested probate and family law cases at the appellate level. As with our district court mediation program, settling cases is secondary to the primary goal of minimizing family conflict by encouraging shared decision making. The Joint Committee on ADR, chaired by Robert Udland, has developed program protocols and a proposed rule that the court expects to circulate this summer in anticipation of possibly offering the first mediation sessions early this fall.

Odyssey

North Dakota government had a number of technology projects that were not completed timely, were over budget or had to be substantially reworked. Odyssey, the judicial branch case management system, is now operational state wide. I am grateful � and greatly relieved � that it came on line ahead of schedule and under budget. I acknowledge with gratitude the work of the Court Technology Committee chaired by Justice Dale Sandstrom and our technology staff. But it would not have been possible without the work and cooperation of our entire judicial staff, particularly in the offices of the clerks of court, and without your understanding and cooperation. I expect there are remaining issues to work out and other problems to resolve will arise in the future. But I am confident we will resolve those issues and that this tool will enable us to adapt and change the way we do business to be more effective and to be more efficient.

ABA 20/20 Commission

I have mentioned before that I serve on the ABA 20/20 Commission whose charter is to examine the ethical and regulatory impact of advancing technology and increasing globalization on the legal profession and to make recommendations to the House of Delegates. I again mention it because the Commission's recommendations will directly affect you, as lawyers. This is a three-year project and we are in the last quarter of the second year. The Commission split up its missions into working groups. I serve on several of those groups. One interesting group added later was to study the ranking of U.S. Lawyers by Newsweek. It came from the New York Bar. I was one of the few who did not have a conflict of interest on that subject. Interestingly, North Dakota, along with New Jersey, solved the issue of publicizing lawyer rankings in Rule 7.1 of the Rules of Professional Conduct by stating that if the lawyer is using comparisons of the lawyer's services with other lawyers, the comparison must be factually substantiated.

The Commission has agreed on some recommendations on outsourcing, confidentiality-related ethics issues for lawyers' use of technology, and rules relating to inbound foreign lawyers. For the most part the latter would amend Rules 5.5 and 8.5 to allow foreign lawyers the right to temporarily practice in a jurisdiction that is given to lawyers from other states in this country. The big issues, alternative business structures, including non-lawyer ownership of a law firm, and alternative litigation financing are under hot debate.

If you have an interest in these matters I urge you to go to the ABA website carrying the 20/20 reports, requests for comment and recommendations. It is: http://www.americanbar.org/groups/professional_responsibility/aba_ commission_on_ethics_20_20.html. In fact I urge you to look at it even if you are not interested to the end that in the future you will not ask "why didn't someone tell me about this?"

I close with the observation that while we are not without flaws, I believe the state of the Judiciary in North Dakota is vigorous, vital and healthy.

Thank you for allowing me the privilege to appear before you.

State of the Judiciary Message 2011

Wed, 05 Jan 2011 16:36:00 GMT

By Chief Justice Gerald W. VandeWalle
Wednesday, January 5, 2011

"But it is as well a time to recognize the need and the ideal opportunity for the branches to work together to produce the well-functioning government the citizens of North Dakota established and expect from the co-equal branches that form our government."

Introduction

Lieutenant Governor Wrigley, Speaker Drovdal, Governor Dalrymple, members of the Legislative Assembly, State executive officials, my judicial colleagues -- the district judges and supreme court justices—and other friends. Thank you for the privilege of appearing before this Joint Session of the Sixty-second Legislative Assembly of our great State.

Before I begin my formal remarks I invite you to attend a brief reception in the Memorial Hall immediately following this session. This reception is hosted by the Judges Association and, this year, by the State Bar Association in honor of the recipient of the State Bar Association's Distinguished Service Award. This year's recipient is well known to many of you and for those of you who, on occasion, have had the urge to hang Jack McDonald, this is your opportunity. The plaque with the names of the recipients of the award hangs in the Supreme Court atrium. The quick and dirty hanging will take place in the Supreme Court Atrium right after you have the opportunity for a cup of coffee and a goodie.

The North Dakota Constitution requires the Governor to "present information on the condition of the state, together with any recommended legislation, to every regular and special session of the legislative assembly." N.D. Const. art. V, § 7. By contrast, the Chief Justice appears before the Assembly to present the state of the Judiciary by invitation of the Legislative Assembly. I perhaps should not tell you this, but it may surprise you to learn that delivering a State of the Judiciary message is not a privilege all of my colleagues in other states share. I do not take this privilege for granted and I recognize your already heavy schedule. The invitation to speak to you today is indicative of the spirit of cooperation and respect that our three branches of government in our state share. I thank you for that.

We learned early in our civics courses about separation of powers in the United States. The matter was debated by the founding fathers and is enshrined in our form of government at the federal and state level. The opinions of the Supreme Court recognize "that the creation of three branches of government by our constitution operates as an apportionment of the different classes of power whereby there is an implied exclusion of each branch from the exercise of the functions of the others." State ex rel. Spaeth v. Meier, 403 N.W.2d 392, 395 (N.D. 1987). That separation of powers was implied in our State Constitution, but in 1982 the Constitution was amended to provide: "The legislative, executive, and judicial branches are co-equal branches of government." N.D. Const. art. XI, § 26.

For our government to operate as it was intended, it is necessary that each branch respect the powers of the other two branches; but it is also necessary for each branch to defend its own powers against encroachment by the other two branches. The delineation of authority among the branches is not always well defined and may cause grinding and grating among the branches as each branch exercises its powers. That grinding and grating on occasion results in dissension among two or more of the branches, another lesson we learned in our civics courses.

What we did not always appreciate in our studies was that, notwithstanding the necessity of one branch of government to defend its powers against infringement by the other branches, the branches are dependent upon one another in order to fully exercise their powers. Indeed, that is part of the genius of our government and the reason that one branch is unable to govern without the assistance of other branches. In North Dakota this is the time—when the Legislature is in session—these precepts may be most apparent.

For the Judicial Branch, the State of the Judiciary is an opportunity to pose to the Legislature and the Executive the operations and goals of the Judiciary and the opportunity for you to examine those goals and operations. But that is but a small part of the interbranch relationship. For example, during the year we have the benefit of the wisdom and advice of legislators and executive branch representatives on court committees. The advice and input we receive from representatives of the other branches are invaluable to our policy-making decisions. In turn, several judicial branch officials serve on and advise legislative and executive branch committees; and issues arise within the other two branches of government that require the attention, consideration and cooperation of the Judicial Branch to resolve.

At this time, we have several ongoing projects in the Judicial Branch that would not be possible without the aid and cooperation of the other branches of government. I am grateful for your support of these programs.

I take a few minutes now to update you on these projects and to touch upon some other areas of concern.

Task Force To Study Racial and Ethnic Bias in the Courts

Two years ago, I came to the Legislature to request funding for a task force to study racial and ethnic bias in the court system. That request was granted and our task force, chaired by Justice Carol Kapsner and Judge Donovan Foughty, has been hard at work, with perhaps the most visible part of their work being the series of community discussions that they have been holding around the state. Some of the less visible aspects of their work include research in the areas of prison population, juvenile placement, and minority representation on juries, in the legal profession and within the court's workforce.

The work the Task Force has done to date lays the foundation for understanding the areas of concern; but much work remains to be done in this area. We asked our Task Force to continue its investigation and to provide the court with recommendations for ways we can improve. I repeat what I have said before: the strength of the court relies on the respect of the people. Our state demographics are changing and now is the time to be certain that every resident of North Dakota is assured of access to a fair and impartial justice system.

Mediation Pilot Program

In 2007, with funding provided by this Assembly, we began a mediation pilot program to address the needs of families going through divorce. I am happy to report that the mediation program's initial success exceeded our expectations. Eighty-three percent (83%) of people going through mediation report that they were satisfied with the program. Fifty-five percent (55%) of the cases in mediation reach a settlement on all of their issues and an additional 17% reach settlement on at least some of the issues. Early settlement of cases is an important component of the program because it shortens the length of time that parties are dealing with the uncertainty that accompanies any separation.

Another result of the mediation program that is perhaps more important than settlement, is the ability of mediation to improve how couples communicate during the divorce process and into the future. This is the greatest measure of success and we know that we are reaching it from comments we receive from the participants. Here are some of the things they told us about what was most helpful about the mediation:

> "the ability to speak and have my point of view listened to,"

> "we were able to hear from a third party how we spoke to each other and how we were communicating about our child's needs,"

> "we were able to hear the other point of view without all the screaming and yelling if we tried by ourselves," and

> (the most helpful part of mediation was) "avoiding court and hurt feelings about family ties."

This program is now in all counties in the state and is allowing rural, low-income, minority and self-represented people access to alternative dispute resolution that would not have been readily available to them without the program.

We are confident in the program and during the coming biennium we intend to study extending mediation services to contested probate cases and family law cases on appeal.

Parenting Coordinator Program

Where the Mediation Program is designed to assist parties early on in their case, the Parenting Coordinator Program is designed to assist parties after the divorce is final. This program is the result of recommendations that came from the 2007 interim committee on Judicial Process. The program is designed for those high-conflict cases where children are continually caught between parents who use parenting time as a tool in their on-going battle with each other. In those cases, the judge can order the parties to pay for a parenting coordinator who has the authority to handle parenting time disputes immediately, without either party having to hire an attorney or file a motion with the court.

Similar programs have been successfully implemented in other states and have proven effective in reducing the amount of conflict between parents. While we expect that the North Dakota program will be equally successful, it has been slow to get off the ground. We believe the two primary reasons for the slow start are lack of familiarity with the program and the costs associated with it. We continue to work with the program and expect to see it's usage increase over the coming biennium.

Problem Solving Courts

In this last biennium, a new juvenile drug court was established in Devils Lake. We now have juvenile drug courts in six locations and adult drug courts in four locations in the state. We continue to be open to the establishment of drug courts in other locations. These drug courts are prime examples of the cooperation required to achieve a goal. While the name of the program contains the word "court" the executive and legislative branches play a great role in these programs. I acknowledge the efforts of Justice Mary Maring in establishing juvenile drug courts, Judge Gail Hagerty and the Department of Corrections for their efforts in promoting and establishing adult drug courts.

While there are a number of other types of problem-solving courts around the country, not all are suitable to North Dakota. But, there is growing interest in Veterans Courts because of the number of veterans returning from Iraq and Afghanistan with problems such as post-traumatic stress syndrome. Our Court Services Administration Committee, chaired by Justice Daniel Crothers, and on which some of you serve, is examining the possibility of establishing a pilot veterans court if there is a need and if there are suitable treatment alternatives available. Again, this will require the cooperation and support of the legislative and the executive branches as well as the invaluable input from the veterans organizations to make this possible. I hope we can help those veterans who have given us so much of their life.

Study Resolution on Elder Issues

Last session, we introduced a resolution to study elder issues, that you adopted but it was not ultimately chosen for study. I am putting that resolution forward again because I am convinced that this is an area that North Dakota can no longer wait to confront. Within 30 years, more than thirty percent of the population of many of our rural counties is expected to be over the age of 65. Historically, North Dakota's loss of young people has created a situation in which family members who would normally be expected to provide care for their aged parents live far away. A lack of public guardians, limited funding for non-profit guardianship services, and the unsupervised use of representative payees and Power of Attorney agreements all contribute to conditions that make it easier to take advantage of the elderly. And we hear almost daily about some scam aimed at the elderly. Elder abuse, neglect, and exploitation involve complex civil and criminal issues that require a sustained and committed response by the courts and society. An aging population requires a comprehensive network of programs and services to ensure that our elderly are able to remain healthy and safe so they can live their later years in the manner they deserve. This is a big subject with many components but I know that if we take on this issue as a state, the task will be less daunting.

Supreme Court Facilities

When we moved into the Judicial Wing more than 25 years ago, it was billed as a 10-15 year solution. At that time the court was a very different organization than it is now. When the Judicial Wing was built, the entire Supreme Court operation consisted of 5 justices and 11 support staff. Since then, new programs involving the courts have been established and the Legislature has consolidated county and district court, unified administration of the courts under the Supreme Court and transferred the clerk of court functions to the state. The function of the Supreme Court in relation to the District Courts has gone from oversight of the lower courts to management of the courts. The court system is now a large organization to manage with 285 state employees and 32 contract county employees spread across the state. We have added staff and services to carry out these administrative and management duties which the State Constitution assigns to the Chief Justice. We are in need of additional space so that we can continue to carry out our mission of providing justice to the citizens of North Dakota.

As an aside, I compliment whoever is responsible for the kiosks in the lower hall, Memorial Hall and outside the committee rooms. They provide historical as well as interpretative and current information about the Legislature and about the State. I saw a picture on one of the kiosks I had not seen beforethe plans for the old Capitol. Only a portion of it was built, but when I saw the proposal for the entire building on the kiosk I thought to myself that would make an elegant court building. For those of you who do not know me, that was partially tongue-in-cheekbut only partially.

Cost-Sharing for District Court Space

The Supreme Court is not the only court in the state where space is an issue. As many of you are probably aware, our courts in some of our largest cities are squeezed for space. In other areas, aging courthouses are in need of substantial repair or may even be reaching the end of their useful life. Beginning in 1995 most of the court fees were required to be deposited in the State Treasury rather than the county treasuries. With this in mind, I raise the issue of the State paying the counties rent for court space or in the alternative, the counties receiving one-time payments from the State for building or substantially expanding court space. I am aware of the history of the transfer of court functions from county obligations to state funding and of the prior discussions on paying counties for use of court space. This is an issue that is going to continue to reappear. I support the counties receiving some form of payment, but it requires a legislative solution. I am not suggesting a new courthouse in every county; rather, the solution must be equitable for all counties while still ensuring that the space provided is adequate in need, size and functionality.

Case Management System

Finally, I give you an update on our case management system. The past two years have been devoted to upgrading the case management system for the trial courts. This computer system is the backbone of our organization and is vital to the court's ability to process cases. The system we have been putting in place provides better security, better financial tracking and better detail about cases. It is with a great deal of satisfaction—and relief—that I am able to report that the project is expected to be completed within budget and nearly two months ahead of schedule. A great deal of credit goes to our Technology Committee chaired by Justice Dale Sandstrom as well as to our project manager, the director and staff of our technology department and the staff in the clerks of court offices. They have been first rate.

When we set out on this project, we said that we wanted the replacement to bring us "leaps forward" in technology. I believe we are reaching our goal. We have moved into a paper-on-demand environment where documents are electronically filed or scanned and stored as images, and financial transactions can be done over the internet or by telephone. It has been an adjustment for all of us, but one that we have happily accepted. Judges and court employees alike have found much to like about the system, as do many of our justice system partners. Our next step in the process is to develop a disaster recovery plan to protect the system and ensure that the court can continue to function in the event of an emergency.

Conclusion

In conclusion, I go back to my opening remarks. The biennial legislative session is a time when heightened attention is focused on the separate powers of the three branches of government. But it is as well a time to recognize the need and the ideal opportunity for the branches to work together to produce the well-functioning government the citizens of North Dakota established and expect from the co-equal branches that form our government.

Lieutenant Governor Wrigley, Speaker Drovdal, Governor Dalrymple and members of the Legislative Assembly, I thank you for the opportunity to speak to you this afternoon and I look forward to working with you this session. Please stop for a cup of coffee in Memorial Hall, right outside of this Chamber.

State of the Judiciary Message 2010

Thu, 17 Jun 2010 15:35:00 GMT

"No system of justice can rise above the ethics of those who administer it."

by Chief Justice Gerald W. VandeWalle
State Bar Association of North Dakota Annual Meeting
Thursday, June 17, 2010
Bismarck, North Dakota

President Dynes and members of the State Bar Association of North Dakota. I am pleased to deliver the court's annual message to the 111th meeting of the State Bar Association.

Clarence Darrow is quoted in the New York Times April 19, 1936, as saying "There is no such thing as justice, in or out of court." With all due respect to Mr. Darrow, I hope to prove him wrong at least with regard to access to justice in the courts. Nevertheless, I am also aware of the following words from the 1929 Report of the National Commission on Law Observance that "No system of justice can rise above the ethics of those who administer it." To that end, access to the court system is a matter with which we are always concerned. Who gets access and how that affects their ability to seek justice is both a societal issue and a very personal subject for litigants and their attorneys. We have been working on issues of access in a number of ways.

E-Filing and Access to Documents

This past year we began the implementation of a new case management system in the trial courts. At this time all of the counties in the East Central and Southeast Judicial Districts are using the new Odyssey system. One of the features of this system of which we are most excited is the ability to electronically file documents. Our electronic filing system requires no special licenses or software on the part of the attorney, nor are there any extra fees associated with using electronic filing.

We are also making access to electronic documents available over the web to licensed North Dakota attorneys, again at no charge. We are doing this because we believe it will assist you in working more efficiently. Like the judges, you will have fingertip access to the documents in a case and more immediate knowledge of when orders and judgments are issued.

Justice Sandstrom and the members of the Operations Group which meets on a nearly weekly basis, the members of the Court Technology Committee, our staff in Information Technology and the staff in the offices of the clerks of court have spent many, many hours to roll out this case management system. I thank them for their dedication.

Expansion of Indigent Defense Services

On rare occasions, situations arise where a defendant in a criminal case is deemed incompetent to represent himself yet refuses to hire an attorney even though he has the financial means to do so. We recognize this as a serious issue and we are exploring legislative solutions that would authorize the Commission on Legal Counsel for Indigents to provide defense services to the defendant in these instances.

Expansion of the Family Mediation Program

Our family mediation program continues to receive high marks from participants. Ninety-one percent of participants state they are satisfied with the overall mediation process while 94% indicated they prefer mediation over going to court. I cannot overemphasize that the primary purpose of this program is not simply to settle cases. Rather, the overriding purpose is to use mediation to minimize family conflicts, encourage shared decision-making, and support healthy communication among family members. We have been conducting continuing evaluations of the program since its inception and the participants continue to tell us in great numbers that they like the program. Based on this encouraging feedback, we expanded the program this past year to include the Southwest, Northwest and Northeast Judicial Districts. Beginning in July, we will bring the program to the East Central and Southeast Judicial Districts. Once this is completed, the program will be available statewide. We were able to develop this program with the advice, assistance and cooperation of the Joint Alternative Dispute Resolution Committee. I thank them for their work.

Commission to Study Racial and Ethnic Bias in the Courts

Justice Carol Kapsner and District Court Judge Donovan Foughty are co-chairing the Court's Commission to Study Racial and Ethnic Bias in the Courts. The Commission has been meeting since December 2009. In June, the Commission held its first set of public meetings to gather direct input from members of the New Americans communities in Fargo. Six more meetings are planned throughout the state and on the reservations within the state.

In addition to listening to our court users, the Commission is also looking at the make-up of the court workforce, the North Dakota bar, and the representation of minorities on jury panels. While I have been asked to have the Commission investigate areas outside the judicial system, we need to look at our own house; to that end, the Commission will be issuing an interim report at the end of the year and we will be asking the legislature for funding to continue the important work of implementing the recommendations of the Commission. I ask you to cooperate with the Commission.

Judicial Planning Committee

Justice Kapsner is also chairing our Judicial Planning Committee. This Committee is charged with studying the administration and operation of the judicial system, assessing the demands and expectations of court users and the public, and developing short and long term plans for the court to improve the administration and operation of the judicial system. The Committee began meeting in June 2009 and is expected to continue to meet throughout the coming year. The main focus of the committee is on these areas:

The core services that must be offered in every county and how technology may impact that service;
The interaction between the judiciary and county government;
Standards for courtroom facilities; and
Funding mechanisms for judicial use of space in county facilities

Uniform Bar Exam

I remember sitting for the bar examination and I'm willing to bet that most of you do, too. Although it is a fixed experience in the minds of each one of us, in reality, the bar exam and scoring standards continue to change and evolve over the years. When I wrote the exam it consisted of essay questions on 18 subjects written by the local bar examiners. Today North Dakota's bar exam consists of three components: the Multistate Bar Examination, the Multistate Essay Examination and the Multistate Performance Test prepared by the National Conference of Bar Examiners. We have not tested state specific issues since July, 1999. I tell you this not to bring back unpleasant memories of writing those essay exams, but as a preface for explaining why we are looking at adopting the Uniform Bar Examination.

The Uniform Bar Examination is comprised of these same three components that we are now using. A move to the Uniform Bar Examination, as recommended by the State Board of Law Examiners and the Joint Committee on Attorney Standards, will not require significant change in either court rules or in the way we administer the bar exam. The benefit of moving to the Uniform Bar Examination means that our North Dakota lawyers whose score meets the criteria established by other Uniform Bar Exam states will be allowed to practice law in those states. Right now, Missouri is the only other state that has signed on to the Uniform Bar Examination, but it is anticipated that within a short time several other states will also join in. As we speak, the Uniform Bar Examination Committee chaired by Becky Thiem and on which I also serve is meeting in New York with representatives of several New England States to explore their participation. The proposed amendments to the Admissions to Practice Rules are currently out for comment. That comment period ends June 21st. Please let us know your thoughts on this proposal. I warn you, however, that comments along the lines of "things were a lot harder when I sat for the bar exam" will be greeted with a certain sense of recognition but won't be counted toward the final decision.

Problem Solving Courts

Access and justice within the court system come in a variety of forms. Last month we celebrated the 10th anniversary of the juvenile drug courts in Fargo and Grand Forks, the first juvenile drug courts in North Dakota. Spearheaded by Justice Maring, juvenile drug courts are now operating in Bismarck, Minot, Williston and Devils Lake, the newest of the juvenile drug courts. The Bismarck adult drug court was the first drug court in North Dakota and was the result of the cooperative efforts between the Department of Corrections and Judge Hagerty. Adult drug courts are now operating in Fargo, Grand Forks and Minot as well. These problem-solving courts work because the people involved are using their skills and knowledge to improve the access to justice and a better life for the participants. I expect the call will continue for additional drug courts, for mental health courts, veterans' courts, reentry courts and other similar courts. We will need to examine what we can do with the human resources available within the judicial system as well as without since these courts require the efforts of a variety of agencies and service providers.

ABA Commission on Ethics 20/20

Many of you know that I serve on the ABA's 20/20 Commission on Ethics. One of the issues this Commission is reviewing is that of the admission of foreign lawyers. There are several proposals that are circulating to adopt model rules that would allow foreign lawyers to appear in court under the pro hac vice rule; to be registered as corporate counsel and to be allowed to perform legal services on a temporary basis under the protections of Rule 5.5 of the Rules of Professional Conduct. Frankly, these are the easy issues; the more difficult issues with which the 20/20 Commission will deal in the next two and one-half years include multi-disciplinary practice, investor-owned and publicly traded law firms and, significantly for us, if and how lawyers are regulated and, if regulated, who will regulate the profession. The United Kingdom, Australia and Scotland have enacted or are considering substantial changes to how the profession is regulated in their countries. While the American Bar Association has renewed its commitment to regulation of the profession by the courts of the various states, it comes as no surprise that not everyone agrees with that position. Indeed, the United States Congress and federal agencies have become increasingly active in certain areas. With technology and the globalization of the practice of law, for many lawyers, including lawyers in North Dakota, the courts and the judicial system are irrelevant to their particular practice. These are difficult issues with which we are wrestling. The primary purpose of regulation of the profession is, of course, the protection of the client. Fortunately for me, Justice Crothers chairs the Client Protection Committee of the Center for Professional Responsibility of the ABA. I am able to draw on his expertise. Professor Stephen Gillers of New York University School of Law, also a member of the 20/20 Commission, is presenting a CLE session tomorrow morning and from the description of his topic I expect he will go into these issues in much greater detail. I will keep you informed of the work and progress of the Commission and the several other committees on which I also serve and which are also considering many of these same issues.

State of the Judiciary

Following precedent, this message was entitled "The State of the Judiciary." I consider it more of a report to you, the members of the State Bar Association, and the title has been changed to incorporate the fact this is a report to you. However, I close with my observations of the state of the judicial system in North Dakota. I am happy to be able to say that your judicial system is in good shape. We are able to handle cases efficiently; we are fortunate to live in a State which has the financial resources to adequately fund the judicial system; we have made some strides in resolving some of our problem areas. Nevertheless, there is still much to be done and access to justice remains a burning issue. I am pleased to hear that the Board of Governors has established within the State Bar Foundation a fund to which lawyers who for various reasons are unable to perform pro bono activities may contribute to support this important program of the Association.

Our judicial system is in good shape not only because we have been given adequate financial resources; rather, it is the people with whom I am privileged to work, the justices, the district court judges, our employees, our Clerk of Court Penny Miller, our State Court Administrator Sally Holewa and the other judicial and administrative personnel, the leadership of this Association, and you, the lawyers, who really make our legal system tick. I am proud of our judicial system. I hope you are too.

Thank you for the privilege of appearing before this 111th meeting of the North Dakota State Bar Association.

State of the Judiciary Message to the Bar 2009

Thu, 11 Jun 2009 15:34:00 GMT

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.

State of the Judiciary Message 2009

Wed, 07 Jan 2009 16:33:00 GMT

By Chief Justice Gerald W. VandeWalle
Wednesday, January 7, 2009

"A fair and impartial court system is a cornerstone of our form of government, and it is no secret that the strength of the court relies on the respect of the people."

Introduction

Lieutenant Governor Dalrymple, Speaker Monson, members of the Legislative Assembly, Governor Hoeven, state executive officials, my judicial colleagues and other friends. Thank you for allowing me to appear before this Joint Session of the Sixty-first Legislative Assembly of our great state. This is the 9^th State of the Judiciary message I have presented to you and the 25^th Assembly of the North Dakota Legislature I have had the opportunity to observe. I do not take the privilege to appear before you lightly, and I continue to feel that sense of excitement and anticipation that, at least for me, comes with each session.

Task Force on Racial and Ethnic Fairness

I am sure I will not be the first person you have heard remark on the changing demographics of our state of North Dakota. In addition to the continuing trend of an aging rural population, and, after years of a constant ethnic population, new economic opportunities are bringing people of different races and backgrounds to our state. It is our hope that they are finding North Dakota as open and as welcoming as our own ancestors did and that they will make North Dakota a home for themselves and their children.

A fair and impartial court system is a cornerstone of our form of government, and it is no secret that the strength of the court relies on the respect of the people. We must be certain that our courts are meeting the needs of all North Dakota citizens, including our first citizens, the Native Americans, as well as those new residents from other ethnic backgrounds who have come to our state seeking a better life and the equality our form of government promises. Bias cannot be tolerated in any governmental branch or institution, but it is particularly harmful in the courts, to which the public looks for fairness and neutrality. It is imperative that we identify and address any real or perceived bias within the court system. To this end, we will establish a task force on racial and ethnic fairness whose work will begin later this year. Funding for this task force is included in the Judicial Branch budget.

Study Resolution on Elder Issues

North Dakota has an aging population and the issues of the elderly are becoming more urgent. Within 30 years, more than 30% of the population of our rural counties is expected to be over 65. This, in conjunction with North Dakota's continued loss of young people, creates a situation in which family members who could normally be expected to provide care for their aged parents live far away. Elder abuse, neglect, and exploitation involve complex civil and criminal issues that require a sustained and committed response by the courts and society. There is a need for the state to ensure that vulnerable adults are being protected and that is why we have submitted a study resolution on elder issues. Identifying the issues is one step. Resolving them will require the cooperation of all three branches of government at both the state and local level. As a state, we have a proven record of being able to work together. When there are problems to be addressed we don't ignore them and we don't build walls between those agencies or groups that are most impacted by the problem. Instead, our model has been to bring our brightest and most knowledgeable folks together to build solutions that rest on collaboration and communication. This is one area in which that model of problem-solving is needed. I urge you to give serious consideration to accepting this study.

I have been asked to chair a task force on elder law for the Conference of Chief Justices and the Conference of State Court Administrators. I hope it is not because of my advancing age but rather because I raised the issue to the Conference, and it is an issue that is emerging in many states as the baby boomers reach retirement age. I hope to bring to the task force some of the issues and solutions we will be considering in North Dakota, and I hope to bring some of the thinking of the task force to the interim study if you accept this resolution for an interim study.

Mediation Pilot Program

With your support in the last legislative session, we began a mediation pilot program to address the needs of families going through divorce and child custody issues. The family-law practitioners in North Dakota are resourceful in helping couples resolve their differences without direct court intervention. The mediation program is designed to alleviate the lingering bitterness that can blossom when custody and visitation issues are not able to be effectively resolved without court intervention. The program has been established in two judicial districts and early evaluations are showing an exciting rate of success. Seventy-seven percent of couples going through the program have resolved their differences and report that the process was beneficial. We know that the program is achieving its desired result, not just by the number of cases that are settled, but by the comments we are receiving from participants. Comments such as, "it brought the two of us to a place where we were at least able to talk about the issues" and (the best thing about it was) "being able to talk face-to-face for the first time in months." We continue to evaluate the program to assure that the results are lasting and not merely a lull in the process of separation of a family, but we are encouraged by our progress and eager to expand the program to more areas of the state.

Drug Courts

A model of problem-solving courts that most of you are familiar with is drug courts. Since I last spoke with you, we have expanded juvenile drug courts into both Minot and Williston. We are currently in the planning stages for an additional juvenile drug court in Devils Lake. Drug courts are costly, but they are a proven method of resolving problems people are having with alcohol and drugs. These resolutions don't represent just the closure of another case, but a permanent and positive change in the life of the child who appears before the court. Drug courts play an important role in helping troubled children find the path to a healthy, productive adulthood. Adult drug courts, too, have been started or expanded in Grand Forks, Fargo, Bismarck and Minot and have proved effective in reducing recidivism rates. This is not a court system success alone. We rely on a strong partnership with state agencies, private providers, and non-profit organizations to carry out the drug court mission and we all share in its success.

Funding for Education

Speaking of working together to resolve problems, I congratulate Lt. Governor Dalrymple and the members of the Commission on Education Improvement and the North Dakota Legislature for working together to resolve the issue of funding for elementary and secondary education in North Dakota. Although I ordinarily do not talk about matters which have been the subject of litigation in our courts, some of you will recall that this matter was in our court nearly two decades ago and reached the Supreme Court some 15 years ago. My colleagues from other states are impressed by the fact the Executive and Legislative Branches in North Dakota were able to resolve this issue without an order from the Supreme Court.

Civil Legal Services for Indigents

There is a recognized need for adequate civil legal services for indigents. These services are provided to poor people who are involved in the legal system. These issues usually are related to housing, health, public benefits, and child and family matters. Federal funding for civil legal services does not keep pace as the need increases. As interest rates drop so does the income from lawyers' trust accounts, IOLTA, which has also provided funding for civil legal services. In North Dakota, part of the funds for civil legal services comes from civil filing fees. Since 1997 the civil legal services share of these funds has been capped at $400,000. I support legislation that removes the cap or raises it to some figure that will provide indigent litigants better access to the legal system.

Judgeships

Better access to the courts depends on more than just access to an attorney. To ensure fair, independent and timely resolution of cases, the courts must be adequately staffed and funded.

In prior addresses, I have shared my concerns that the reduction of judges from 53 to 42 was too deep a cut. That number was established by legislation in 1991, and was not based on any type of study or consideration related to population, geography or case filings. Our internal weighted caseload study, which we later put in place, measures judge need based on both number and type of case. These studies are done annually, and they have always shown a shortage of judges. I have resisted earlier suggestions that we increase the number of judges insisting that a long-term need be demonstrated. The past five studies have shown a continuing need for five additional judges. I am not here today to ask you for five new judgeships, but I am here to ask for two new judgeships this biennium, one for the Southeast Judicial District and one for the Northwest Judicial District, and authorization for one new judgeship for the East Central Judicial District to be funded in the following biennium. We have done what we can do internally to alleviate the issues created by the shortages of judges, but it has not been enough. These three districts need the services of at least one more full-time judge.

Judicial Salaries

It is not comfortable for me, as a judge, to ask for larger salaries for judges, but as the administrative head of the court system, it is my duty to do so. A sound salary administration plan is critical to attracting and retaining the best qualified people we can to provide judicial services. We must continue to take steps to ensure that district judgeships are sought after by the best and brightest of the practicing bar to assure the caliber of judicial leadership the state of North Dakota needs and deserves. The Governor's budget proposes a 5% increase for state employees, and we are also requesting salary increases of 5% in each year of the biennium for the judges and justices. This adjustment will bring us to a level where salaries for North Dakota judges are somewhat closer to their counterparts across the nation, and in particular, closer to the salaries in our sister state of South Dakota.

Supreme Court Facilities

The needs of the judiciary are not confined to staff and salaries. It is time to reintroduce the subject of adequate facilities for the Judicial Branch. I expect that, with very little exception, most of you were not around in 1975 when the last judicial space needs analysis was done. At that time, the entire Supreme Court operation consisted of 5 justices and 11 support staff. Since then, you have consolidated county and district court, and unified administration under the Supreme Court. County employees in the office of Clerk of Court became state employees. The function of the Supreme Court in relation to the district courts has gone from oversight of the lower courts to administration of the courts as envisioned by the Judicial Article of our State Constitution. The court system is now a large organization with 53 locations, 5 justices, 42 judges, 285 state employees, and 32 contract county employees to manage. We have added staff and services to carry out these management duties. Facility management has worked with us but with limited or no space available in the Capitol complex, we have been forced to temporarily locate part of the staff in leased premises. We are in need of additional space so that we can continue to carry out our mission of providing justice to the citizens of North Dakota. When we moved into the Judicial Wing more than 25 years ago, it was billed as a 10-15 year solution. The North Dakota courts were part of the territorial government when North Dakota became a state 120 years ago, and the North Dakota courts will continue to be here for at least another 120 years. We are requesting that this legislature authorize a space needs analysis so that we can begin looking for a permanent solution for the needs of the Supreme Court.

Rent for District Court Space

Property tax relief is an issue this legislature is expected to look into. With this in mind, I raise the subject of paying the counties rent for court space. Since the court filing fees were diverted from the county treasury to the state general fund in 1995, this matter has been discussed several times over the years but has not reached resolution. Each time it comes up I have said that I am not opposed to paying rent, but it must be a legislative solution that is equitable for the counties but still ensures that the space provided for the court is adequate in both size and functionality. I would not advocate the court system assuming ownership of courthouses, as some state court systems have done. But, I do advocate a role for the state in assuming a share of the cost of building new courthouses with the judiciary having meaningful involvement in the planning of the court facilities.

Case Management System

The court system relies heavily on tradition, but it operates like any other modern business. That includes the use of technology to track case files, court judgments, and fine payments. Last biennium, we were provided funds to plan for the replacement of our district court case management system. We have spent the past 18 months studying our needs and the different types of case management systems that are available to the courts. We have selected a well-established vendor with a proven track record of providing a solid, well-liked, and reliable case management system. Of course, it comes with a price tag to match. We are confident that this is a system that will meet our needs today and well into the future, and we are asking for the funds to purchase this software.

For the Record

I note for the record that Judge Cynthia Rothe- Seeger, the first woman to become a district judge in North Dakota, chose not to seek reelection. Judge Wickham Corwin, a Fargo lawyer, was elected to the position in November 2008 and assumed office January 1, 2009.

I note with sadness the death on September 9, 2007, of Gary Holum, former District Judge in Minot, and the death on June 25, 2008 of Surrogate Judge Jon Kerian, former District Judge in Minot.

Conclusion

I have attempted to outline for you the human issues which I believe the Judicial Branch, with your assistance, should tackle in this next biennium; a report on the development of those programs which are currently in progress in the Judicial Branch, and finally, an outline of the pragmatic needs of the court system which support and make possible the programs which directly affect the citizens of our state.

Lieutenant Governor Dalrymple, Speaker Monson, and members of the Legislative Assembly, I speak for my colleagues, the trial judges and the justices of the Supreme Court, when I thank you for your consideration and support of the Judicial Branch. We are all, legislators, Governor, Legislative Branch officials, judges, privileged to be engaged in the great endeavor to make our system of government one that serves the citizens and one the citizens respect. The genius of our form of government is that individually none of us could begin to achieve what, together, we can and will accomplish. I am grateful for the opportunity to speak with you this afternoon. I wish you wisdom and good fortune as you begin the Sixty-first Session of the Legislative Assembly of the State of North Dakota.

State of the Judiciary Message 2008

Thu, 12 Jun 2008 15:18:00 GMT

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.

State of the Judiciary Message to the Bar 2007

Thu, 14 Jun 2007 15:17:00 GMT

by Chief Justice Gerald W. VandeWalle
State Bar Association of North Dakota Convention
Thursday, June 14, 2007
Bismarck, North Dakota

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.

State of the Judiciary Message 2007

Thu, 04 Jan 2007 16:14:00 GMT

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

Watch video recording of address
Listen to audio recording of address

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.

State of the Judiciary Message 2006

Thu, 15 Jun 2006 15:13:00 GMT

by Chief Justice Gerald W. VandeWalle
State Bar Association of North Dakota Convention
Thursday, June 15, 2006
Fargo, North Dakota

Ladies and Gentlemen of the North Dakota State Bar Association, I am pleased to be here today to report on the State of the North Dakota Judiciary.

To begin, I thank the leadership of the Bar Association for their good will and cooperation this past year. Mike Williams, our President, was a senior law student the year I came on the bench. We worked together at that time when he arranged the panel of judges to judge the regional moot court competition. I enjoyed working with him then, and I still enjoy it all these years later. He and the Board of Governors and Bill Neumann, the Executive Director, have served our Association well. I look forward to working with Larry King, the Board and Bill in the year ahead.

Thirty years ago, the citizens of North Dakota voted to amend Article VI of the North Dakota Constitution. This amendment created a uniform court system and gave the Supreme Court administrative authority over the District courts and any lesser courts that may be established by law. What an act of great faith that was by the people of this state.

I am going to take some time to talk with you about how we have handled that responsibility, but, in order to fully understand the changes, I need to recall for you how things were.

Nineteen Seventy-Six. Gerald Ford was president and Jimmy Carter was president-elect. The median income was $12,686. Stamps were thirteen cents. The first Apple Computers went on the market with a total of 157 computers sold that year. Leisure suits and cardigans were the style of the day for men. For women, it was short polyester dresses and pantsuits. AM radio stations still outnumbered FM stations, and the dial on our television sets only went up to 13.

It was the year that "One Flew Over the Cuckoo's Nest" earned the Best Picture award and "All the President's Men" reminded us of the failings of a president. On television, M*A*S*H, One Day at a Time, and All in the Family took on the topics of war, feminism, and racism.

It was the year of the bicentennial the 200^th anniversary of the Declaration of Independence. Despite the distrust of government, or maybe in spite of it, the nation was gripped by a patriotic fervor that would remain unmatched until the tragedy of 9/11. Nevertheless, that was a patriotism born of sorrow. The patriotism of 1976 was born of exuberance a celebration that the pessimists, who had proclaimed this upstart nation with its radical notions of democracy and federalism would not long survive, had been soundly proved wrong. We had survived depressions, wars, and civil unrest. A president had been forced to resign, and we had come face to face with the indignities and inequities we had perpetrated against our own citizens. Yet, we celebrated the bicentennial because along with the bad, we could still grasp the good. There was a determination that the wrongs of the past would be righted and that government could be made to live up to the ideals we so proudly proclaimed in the Declaration of Independence and the United States Constitution.

It was in that spirit that the people of North Dakota executed this great act of trust.

Since 1976, many changes have occurred within the judicial branch. Some of them have been of our own making, and some of them have been made for us. Regardless of how they were initiated, we have risen to the challenge of implementing them, while never forgetting that the end result of any changes has to be improved judicial service for the people.

When the mantle of administrative supervision passed to the North Dakota Supreme Court, we were a multi-tiered system. There were municipal courts, county justices, county courts, county courts of increased jurisdiction, district courts, and the Supreme Court. Of the 205 municipal court judges, only 17 were law trained. Of the 38 county justices, 32 were law trained. Of the 38 county judges without increased jurisdiction, only 1 was law trained. We had 15 county judges with increased jurisdiction and 19 district court judges, all of whom were law trained.

The number of courts, the jurisdictional confusion, and the tangle of local court rules and practices are difficult if not impossible to imagine unless one practiced in it. Today, we have the constitutional courts of the Supreme Court and the District Courts, and legislatively created municipal courts. We have 78 municipal courts and many of them are served by law-trained judges. The simplification of the court structure and the rise of professionalism have done much to improve our citizens' respect and trust for our courts.

We cannot talk about the changes since 1976 without mentioning the reduction in judgeships. As of 2000, we are reduced to 42 district judges. We are feeling the squeeze as our caseloads continue to rise. Our latest study shows significant judge shortages in Minot, Jamestown, Fargo, and Bismarck.

However, I do not believe the Legislature will necessarily approve additional judgeships based on this study alone. Rather, we will have to illustrate we have put our house in order and made the adjustments and accommodations necessary to make us as efficient as the Legislature has the right to reasonably expect. I do not intend to make a list or regale you with all the details but some of the steps we have taken to become more efficient are interspersed in the discussion that follows.

We continue to face hard choices involving location of chambers. Just this year, we moved the judgeship from Stanley to Minot. This is not a decision that was made lightly or in haste. However, the sheer number of cases being filed in Ward County, along with the desire to provide a juvenile drug court, required us to move the resource where the need is greatest.

The caseflow management committees in the districts are working on ways to adjust court-calendaring practices and judge rotations to better utilize the resources we have. These changes directly impact the bar. Your input on these changes and your cooperation in implementing them is essential to ensuring that cases are handled timely.

Another significant change to the administration of the courts was the change to elected presiding judges. In 1976, the Supreme Court appointed a presiding judge for each district. While not a reflection on any individual, this system of appointment did not work because the presiding judge was imposed rather than chosen. Today, their peers within the district elect our presiding judges. This election is a sign of the confidence and respect that their colleagues have for the judges' leadership abilities and legal skills. It, too, is an act of trust by the governed.

At this time, I acknowledge our presiding judges for all their hard work and dedication to the courts of this state: Judge Karen Braaten, Northeast Central Judicial District, Judge Richard Geiger, Northeast Judicial District, Judge Bill McLees, Northwest Judicial District, Judge Georgia Dawson, East Central Judicial District, Judge John Paulson, Southeast Judicial District, Judge Gail Hagerty, South Central Judicial District, and Judge Allan Schmalenberger, Southwest Judicial District. I recognize as well the hard work and support of all the trial judges and my colleagues at the Supreme Court.

Along with these changes, have come changes in the rules and procedures of court. Consistency and predictability are key factors in building trust in the judicial system. Individual justice for individual cases ought to in fact, it must mean that judges are free from any pressure to decide a case in a particular way. However, there is a distinction between rendering a just decision and the methods for bringing a case to court. While individual justice must prevail behind the courtroom doors, the path to those doors should be free from obstacles, well lit, and accessible to all who seek it. It is the purpose of court rules and procedures to ensure that is how the public finds it.

Our ongoing committee work, the work of the Administrative Council, and the recent administrative reorganization has this as their primary duty. Our committees could not do their work without the participation of the bar. I thank each of you for your commitment to this process. You give us your time, your expertise, and your enthusiasm whenever you are called upon. I want you to know that it is very much appreciated.

Working with the members of the bar, we have implemented several rule changes over the course of this past year. We have authorized electronic filing. We have directed the Courts to provide web-based access to court records. We have provided greater protection of juror privacy. We have revised the rules of criminal procedure. We have mandated greater use of alternative dispute resolution processes, and we have created a single, comprehensive rule for use of interactive video where before there were separate orders by district. We are proud of these changes. We believe they will serve the bar and the public very well.

There are two other changes that deserve to be addressed separately. Those are the changes to the Rules of Professional Conduct and the Judicial Code of Conduct.

We have made changes to the Rules of Professional Conduct. This is always a difficult activity to undertake. It is our job to protect the interest of the public by prescribing right conduct and establishing standards of performance for attorneys. We believe these changes were necessary to ensure that the profession continues to be held in the highest regard.

I know that by now all of you are familiar with Republican Party v. White. Given the decisions in this case, North Dakota had no choice but to modify its Judicial Code of Conduct. I would be less than honest if I did not tell you that I am very worried about the impact Republican Party v. White will have on the judiciary, not just in North Dakota, but also across the United States.

When judges are encouraged to consider politics and personal agendas alongside the law, when special interest groups begin to pour money into supporting judges who openly advocate their cause, when local judges become the targets of national organizations, not because of corruption or misapplication of the law but simply for daring to apply the law, then an erosion of the trust that the courts have worked so hard to earn cannot be far behind. Already other states are seeing million dollar judicial races and attack ads sponsored by out-of-state interest groups. We sometimes lament that North Dakota is slow to respond to national trends. Let's hope that this is one that will bypass us completely. Our judicial races have been marked by civility, dignity, and respect for our opponents. I put my faith in you, the current members of the judiciary and the bar, to continue to uphold those values.

I conclude my report today, not by looking back to the past, but by looking forward to the future. I am pleased to announce that our Judicial Planning Commission has been reactivated under the leadership of Justice Crothers. This commission will be studying the administration and operation of our court system, and assessing the demands and expectations that court users, the public, the bar, and our sister branches of government have of the judiciary. It will be evaluating our current level of services, and it will be recommending both long and short-term goals for our future. We are excited to begin these steps on a journey to improved court performance and accountability. We are committed to a judicial system of excellence and I know that with your continued support we can make it happen.

Thank you for allowing me to appear before you today. I thoroughly enjoy mingling with lawyers. We are part of a proud and noble profession.

State of the Judiciary Message to the Bar 2005

Thu, 16 Jun 2005 15:12:00 GMT

by Chief Justice Gerald W. VandeWalle
State Bar Association of North Dakota Convention
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.

Enhanced Records Management

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.

For the Record

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.

Conclusion

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.

State of the Judiciary Message 2005

Wed, 05 Jan 2005 16:11:00 GMT

By Chief Justice Gerald W. VandeWalle
Wednesday, January 5, 2005

"The law is a living growth, not a changeless code."
—Yale Law School Inscription

Listen to the State of the Judiciary message.

Introduction

Lieutenant Governor Dalrymple, Speaker Klein, 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 Fifty-ninth Legislative Assembly of our great state.

Over the entrance of the Yale Law School, there is a carved inscription that reads: "The law is a living growth, not a changeless code." So, in reviewing remarks from prior years, the focus has been on change. As I review activities of the past two years, that is still what we are about. In fact, because of the forces that play in our state, I foresee change being the focus for years to come. With the increasing advances in information technology and how we do the work of the courts, we will inevitably see change as a constant. It is apparent that we in the North Dakota Judiciary need to prepare for an ever-changing world. We must routinely revisit resource allocation and service delivery systems to assure we are conducting our affairs in an efficient and effective manner. I want to share with you many of the changes that have occurred in the last two years, as well as some that I believe loom on the horizon. But in talking about change, allow me, as I have done before, to reach back 100 years to when our State was very new and very young, to connect to our heritage, and to remember that change comes from what we have learned and experienced. One hundred years ago, January 4, 1905, newly elected Governor E. Y. Sarles, in addressing the Joint Session of the Legislature, discussed a variety of issues many of you would find familiar. He noted that the site of the Capitol is not far from the spot where Lewis and Clark passed a winter 100 years ago on their journey up the Missouri River. Governor Sarles in his closing remarks to the legislators, recognizing the coordinate branches of government, said in words which remain true today, "Yours is the creative power, that is charged directly by the people with the enactment of their will into laws." Respecting your mission as legislators and recognizing our role as the judicial branch of government, I make the following report and recommendations.

Administrative Reorganization

Over the last two years, we have thoroughly reviewed the administrative structure of our trial courts. Under the able leadership of Justice William Neumann, the Judicial Planning Committee submitted several planning recommendations to the court. Included in those recommendations were several provisions concerning administrative reorganization. After considerable discussion and input from lawyers, judges, and court personnel, we approved a new administrative structure, which is reflected in Administrative Rules 2, 22 and 6.1. These rules took effect, for the most part, on August 1, 2004.

The organization of administrative support services should enhance that delivery of services. Our commitment is to provide services for all citizens throughout the state in a timely and equitable fashion. We completed the reduction in the number of trial court judges a few years ago. This initiative recognizes the need to simplify our administrative processes and relieve judges from the administrative burdens whenever possible. To that end, we have created four administrative units in the state. Administrative units are headed by professionally trained court administrators and all other personnel except those working directly for individual judges will be overseen by these court administrators. One of our objectives is to simplify the lines of authority, thus developing a system of greater accountability by which we can better measure the performance of the various offices. These changes brought about by the adoption of these rules should have a positive impact on all of the citizens of our great state.

A second objective is the improvement of the level of consistency of services of our clerk-of-court personnel, juvenile court personnel, and administrative personnel throughout the state. We seek to incorporate consistency in providing judicial services. People using the courts should be assured they do not have to confront different forms or procedures just because they have moved from one county to another. Unless there is a persuasive argument to the contrary, the forms and procedures should be the same throughout our state. We seek to improve and strengthen our administrative structure with consistency being one of the desirable outcomes.

This restructuring initiative focuses on internal operating practices and procedures to improve services available to each of our citizens. By definition, this means there will be change and the need for compromise. In the final analysis, this is not only a desirable goal; it is an administrative necessity as we strive for a cost-effective judiciary that provides judicial services in a just, equitable, and efficient manner.

Indigent Defense Services

Those of you, most of you, who have heard my previous State of the Judiciary messages know I am concerned about the administration and funding of our indigent defense system. In the 2001 Legislature, I asked for a study resolution to consider the establishment of a different method of providing legal representation for indigent criminal defendants and the feasability and desirability of establishing a public-defender system. As a result of that study by the interim committee, a bill was introduced into the 2003 Legislative Assembly which would have transferred the indigent defense system to the Office of Administrative Hearings. Although there was not great enthusiasm for the study, there was substantial opposition to the solution proposed by the interim committee. The bill was defeated, but in its place, as also recommended by the interim committee, the 2003 Legislature adopted another study resolution which recognized the conflict arising from the administration of the indigent defense system by the judiciary as well as the fact the current system is underfunded. Although the 2001 interim study did not result in legislation to resolve the problems, it did serve to increase awareness that we are in trouble with our current system.

Subsequent to the 2003 Legislative Session, through the active leadership and involvement of the State Bar Association, a task force was created to review our indigent defense system and provide recommendations to the Interim Criminal Justice Committee on desirable changes. This task force was funded by the State Bar Association, the North Dakota Judiciary, and the North Dakota Legislative Assembly. Working together in this partnership, the task force was originally chaired by Deputy Attorney General Sandi Tabor. When she stepped down as chair of the task force, Sharon Wilson Martens, Walsh County State's Attorney, assumed the leadership of this task force. I thank each and every member of the task force for their contribution and talent. In addition to representatives appointed by the State Bar Association, district judges, and public defenders, the Legislative Assembly was ably represented by Representative Ron Carlisle, Representative Duane DeKrey, Representative Lawrence Klemin, Representative William Kretschmar, Senator Jack Traynor, Senator Thomas Trenbeath, and Senator Constance L. Triplett.

The Spangenberg Group, a Massachusetts consulting firm that has worked for many years in numerous jurisdictions on indigent defense issues, provided technical assistance to the study. During this legislative session, you will have an opportunity to hear from those who have worked on this important initiative. In reviewing the draft legislation, I am confident you will agree this proposal has much to commend it to this body. During the committee process, you will hear from members of that task force as well as other concerned citizens. It is important that they share their views and concerns with you. This initiative is not merely a pet project of the Chief Justice. This Legislative Assembly needs to know about the deficiencies of our present system and the need for change. This new proposal will double the amount of general fund dollars necessary to deliver indigent defense services in the state. It represents the need for $6 million new dollars to be fully and adequately implemented. I will not belabor you with all of the deficiencies of our present contract system other than to underscore that in addition to the conflict of interest resulting from judges operating the indigent defense system, we are woefully underfunded and finding it increasingly difficult to interest attorneys in providing contract services. We spend $3.23 per capita for services in North Dakota. Idaho is at $6.39, South Dakota is at $8.35, and Montana is at $10.22. Of the nine states surveyed by the Spangenberg Group, the average per capita spending is $8.54. We lag far behind all states surveyed by an unacceptable amount. Although lack of resources is not the only problem, this lack of funding has exacerbated the flaws inherent in our current system.

With approval and implementation of this new plan, attorneys providing indigent defense services will receive a reasonable rate of compensation. The plan proposes a commission that will oversee and provide general administrative direction to an executive director for delivery of indigent defense services statewide. The legislation will allow but not require the commission to create full-time public defender offices. There are many positive aspects to this legislation. We are at a point where we need to make a change in our delivery of indigent defense services. The legislation being introduced meets all of the needs to assure quality services are provided statewide at a price we can afford.

Courthouse Improvement of Funds

During the last legislative session, House Bill 1088 was passed to establish an administrative fee structure to provide additional funds for indigent defense as well as providing funds for courthouse maintenance and minor remodeling. With 18 months of collections history, we are confident the collection of these administrative fees will exceed the original projection. Receipts to date have allowed us to provide supplemental allocations to contract counsel for the second year of this biennium. In addition, at least $460,000 will be available for court facility maintenance and improvements. While the objective of this legislation was never to fully fund indigent defense services nor to fully compensate counties for providing judicial facilities in their respective counties, in both instances, it appears we have a mechanism in place to address, in part, indigent defense needs as well as courthouse maintenance concerns.

I take this opportunity to recognize Senator Stan Lyson for his direct involvement on the committee charged with disbursing funds to counties for maintenance and improvement initiatives.

Judicial Improvement Program

We have just inaugurated a judicial improvement initiative for our judiciary. This initiative provides for lawyers and court employees to provide feedback for all judges within two years of their election. The results are, under the rule, confidential between the reviewer and the judge. However, the final report on the first survey from the Bureau of Governmental Affairs, which was selected as the independent entity to receive and summarize the survey information and transmit it to the reviewer, is that the operation ran smoothly. This program provides an opportunity for honest and constructive criticism to improve our individual performances as judges as well as the opportunity for affirmation of those things we, as judges, do well. It does not replace the Judicial Conduct Commission nor the informal complaint procedure we also established by rule, but hopefully, it will reduce the need for those procedures.

Digital Audio Recording

We have now installed digital audio recording in three courthouses in the state. It is currently operational in Stark, Cass, and Grand Forks Counties. Before the end of this biennium, we hope to install it in three additional chambered cities. We are moving from analog recording to digital recording in the higher volume counties of the state. This equipment is not only cost-effective, but will provide for an improved record of judicial proceedings in the future. It is becoming increasingly difficult to recruit court reporters due to the number of schools that have closed across the nation which has made it incumbent upon us to enhance audio recording activities so that we can assure a verbatim record of all judicial proceedings.

Electronic Ticket Processing

We are now a partner in moving data entered electronically by highway patrol officers in their vehicles to the courts and then to the Department of Transportation. This means that for the first time, government employees touch data only once. The officer in the vehicle enters the citation information, which is transferred electronically to the courts on a daily basis to create a new case. Court personnel then add to the file when the case is disposed of and the data is sent to the Department of Transportation to update driving records. We now have a seamless process for processing traffic violations from beginning to end. We currently enter approximately 65% of all tickets through this process, resulting in a substantial reduction in data entry on the part of our personnel.

Domestic Violence Order Preparation

Despite the enviably low crime rate North Dakota enjoys, domestic violence continues to be a concern. A substantial percentage of homicides in North Dakota are related to domestic violence. Domestic violence is unacceptable. We all need to do better in confronting this scourge. To that end, we have had in place, for over a year, a system permitting the electronic preparation of domestic violence protection orders. The domestic violence petition can now be prepared by domestic violence advocates and moved electronically to the court to provide data to begin the preparation of a temporary or permanent protection order. When the order is completed, the data is then moved electronically to the sheriff's office for service. The data also is transferred to the Bureau of Criminal Investigation to create a data base that becomes part of a statewide registry on domestic violence orders. This information is also relayed to a national repository on domestic violence orders maintained by the Federal Bureau of Investigation. For the first time, officers in the field are able to obtain the full text of domestic violence protection order information 24 hours a day without any delay

Interactive Television (ITV)

We continue to explore new uses for interactive television. We have systems operational in Burleigh, Mercer, McLean, Stutsman, and Cass Counties. These systems have already proved to be cost effective. They have allowed medical professionals from the State Hospital to appear in judicial proceedings eliminating the need for these individuals to travel to the courthouse where the hearing is being held. In December, we began initial appearances and arraignments of in-custody defendants in Cass County. With the jail located a number of miles from the courthouse, using Interactive Television means that transportation of in-custody defendants has been reduced as they have been able to have initial proceedings conducted over interactive television. We are looking at expanding this technology during the coming biennium to a number of other jurisdictions in the state.

Enhanced Records Management

We have begun the process of selecting an enhanced records management system. This system will serve as the basis for storing all district court case documents electronically. This will increase the efficiency with which the judicial branch can process cases and share case related documents.

Criminal Justice Information System (CJIS)

Since its inception by the Legislature, the judicial branch has been an active participant in the CJIS project. In the coming months, we will begin sharing court case information through the CJIS web site. This will enable criminal justice and law enforcement personnel to access court case information from the single CJIS web portal. I appreciate working with Curt Wolfe and Sandi Tabor on this project to the end that our citizens will be more secure because of the information we are able to share.

Drug Court Initiative

The interest in the use of problem-solving courts in our nation continues to grow. The concept of problem-solving courts has been endorsed by the Conference of Chief Justices of the United States. As you are aware, we have juvenile drug courts in Bismarck, Fargo, and Grand Forks. There are adult drug and alcohol courts in Bismarck and Fargo. The possibility of a problem-solving court in the northwest part of our state is under consideration. For a problem-solving court to work, there must be commitment of the state's attorney, treatment providers and probation personnel beyond the involvement of the judiciary for the initiative to be successful. These discussions have begun.

We have included $203,000 in general funds in our appropriation request to support our three existing juvenile drug courts. The results from these courts, while mixed, are promising. We learn from our failures as well as our successes. These courts represent a different model for involving the judiciary in dealing with the very difficult problems of addiction and provides a way to more effectively address substance abuse including methamphetamines, other drugs, and alcohol.

I take this opportunity to thank Justice Mary Maring for her efforts in support of our juvenile drug courts. The programs would not succeed without the commitment of the Department of Human Services, our juvenile court staff and the Department of Corrections. Initiatives like these cannot work without the cooperation and active involvement of all the critical components.

Judicial Salaries

The number of district judges was reduced to 42 district judges effective January 1, 2001. As you may be aware, we are experiencing quite a turnover in these positions due to retirements of a number of judges. Since January 1, 2003, we have experienced a 15% turnover in our district judgeships, having had six judges retire. This is the largest turnover in recent history. We must continue to take steps to ensure that district judgeships are sought after by the best and brightest of the practicing bar to assure the caliber of judicial leadership the state of North Dakota needs and deserves. As you may recall, we withdrew a pay raise request from our 2003-05 budget submission prior to the last session commencing. Our Judicial Conference took the position that we would request whatever was awarded state employees. As a result, our judges received no pay increase during the present biennium.

In 2001, the Fifty-seventh Legislative Assembly awarded a 14% increase for district judges. Our request in 2001 was that we needed to develop a compensation plan for North Dakota judges that would provide equity with South Dakota recognizing that this goal could not be achieved with one salary increase. We have included a 9.78% increase for the 2005-07 biennium. The increase request is 5.78% for the first year of the biennium and 4% for the second year of the biennium. Based on our best estimate of activities in South Dakota, this will move us much closer to a level of equity with our counterparts in that state. While not substantial, we do continue to have a slight increase in our caseload in the trial courts, but more importantly, the dynamics of the caseload are changing. This is a phenomenon that is being experienced throughout the United States and is one that we need to be sensitive to, assuring that we have the competencies on the bench to deal with the ever-changing problems of our society. A sound salary administration plan is critical in assuring the caliber of people that we need to provide judicial services.

Judicial Selection

Recently there have been attacks on the validity of the provisions of the Code of Judicial Conduct which govern the actions of judges and judicial candidates, particularly as applied to elections. Without going into detail, those challenges are directed at the statements judicial candidates are permitted to make concerning pending matters in the courts or those matters likely to come before the courts, the matter of political-party affiliation in North Dakota as you know judges are elected on a no-party ballot and attacks on restrictions of direct solicitations of funds by judicial candidates. Our neighboring state, Minnesota, was involved in a case which reached the United States Supreme Court. On remand, it is now pending in the 8th Circuit Court of Appeals which includes our State. Following the decision in the United States Supreme Court, cases in other jurisdictions, primarily federal courts, have called into question various restrictions in the activities of judicial candidates contained in the Code of Judicial Conduct. To some extent these attacks are attacks on judicial independence.

Depending on the outcome of some of the litigation, I suggest the State of North Dakota may want to review the method by which we select our judges. While North Dakota judicial elections have been conducted in an exemplary way, as the bar is lowered in other States it inevitably will affect us.

I do not intend these remarks to be alarmist nor to necessarily recommend we change the method of selecting judges. I suggest only that if the outcome of the pending lawsuits is as bleak as some predict, we should review the matter of selection, taking into consideration the realities of those elections. We should consider whether or not our attempts to keep judges as free from bias, actual or perceived, can be maintained in light of the destruction of many of the rules governing judicial elections.

I have no proposals for you, not even a study resolution. I ask only that you keep it in your minds as the litigation unfolds to the end that a future session of the Legislature may be prepared to consider the issues.

For the Record

As I mentioned earlier, six of our trial court judges retired during this past biennium.

Judge Benny Graff in Bismarck, the last of the trial judges on the bench when I came to the Supreme Court, retired early in 2004. Judge Norman Backes of Fargo retired last spring, and Judges Lawrence Leclerc and Michael McGuire of Fargo, Judge Bruce Bohlman of Grand Forks and Judge Gary Holum of Minot chose to retire at the end of their terms on December 31, 2004. Governor Hoeven appointed Sonna Anderson to succeed Judge Graff, Douglas Herman to succeed Judge Backes. The electors chose Steven Marquart and Steven McCullough to succeed Judges Leclerc and McGuire, Sonja Clapp to succeed Judge Bohlman and Gary Lee to succeed Judge Holum.

Conclusion

Today, I have touched on a number of initiatives and activities that are underway in our judicial system that 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 look forward to a productive and meaningful working relationship with the legislative and executive branches as we prepare to meet the changes we must all face together in the years ahead. To that end I pledge my cooperation.

Thank you.

State of the Judiciary Message 2003

Wed, 08 Jan 2003 21:39:00 GMT

By Chief Justice Gerald W. VandeWalle
Wednesday, January 8, 2003

"There is nothing permanent except change."
—Heraclitus, Greek philosopher

Introduction

Thank you for the privilege of appearing before this Joint Session of the Fifty-Eighth Legislative Assembly of our great state. From previous messages, you know I like to look back 100 years ago to see what was happening then. What a difference 100 years makes. 100 years ago Governor Frank White in his State of the State address to the Legislature said, "[a]t no period since statehood have the conditions that promote thrift and growth been so uniform and general over the entire state as have prevailed for the biennial period just closed. Our farms and ranges have produced in abundance. Prices of all products have been in excess of the usual average. The man of business, the mechanic and the laborer have all been profitably employed. Our gain in wealth is almost unprecedented. It is evidenced by the increased comfort in our homes, by the increased number of depositors and deposits in our banks, by the large amount of indebtedness that has been paid off, by the prompt and almost complete payment of taxes and interest on obligations."

We should be so lucky in 2003. In our own time, much has happened since I appeared before you last legislative session. Events have occurred that are reshaping our world. Yet, our form of government, through the rule of law, not only prevails, but also provides a beacon for the free world. At this time in our history, the recent past events are difficult to fully comprehend and are perplexing for everyone. They have made our day-to-day problems seem almost insignificant in comparison to many overriding concerns for our citizens' safety and well being. With that said, let me outline the accomplishments we have made and issues confronting us in the judiciary.

State Assumption of Clerk of Court Functions

We are in the final six months of our first full biennium with the revised clerk of court legislation. For the coming biennium, there is no change in the number of counties that have petitioned the state to assume their clerk of court operation. We have gone through growing pains to bring 96 personnel into our state system, but, the system envisioned in legislation passed in 1999 and implemented April 1, 2001, continues to work well in meeting the needs of all of our citizens, whether in large cities or rural communities.

We are requesting $2,671,000 for services in 41 counties that are under contract to provide clerk of court services. This represents a $149,000, or 6%, increase over the present biennium. This increase is due primarily to salary adjustments that have been made for county officials in the 41 counties where clerk personnel are providing court support services under contract.

Caseflow Management Progress

We continue to explore new ways of managing the trial courts' workload. The type of work coming into the courts continues to change, with more time being devoted to those cases that need prompt attention but are not of long duration. Judges and judicial referees receive regular management reports on the status of all of their pending cases. I am proud to report that our courts' caseloads are in good condition. Trials are being set timely and decisions are rendered without undue delay. We are fortunate in being able to manage this caseload as many urban states have a great deal of difficulty processing their court workloads in a timely manner.

As of January 1, 2001, we have 42 district judges statewide, as the court unification legislation required. We continue to provide judicial services in all 53 counties of our state. New case assignment practices in a number of our districts have allowed us to meet the changing workloads of the judges with the existing judicial resources. Increased efficiencies in case scheduling and greater utilization of computerized resources have contributed to the continued delivery of judicial services to all citizens. We will continue to explore ways of improving service delivery to capitalize on savings in time and money.

Problem Solving Courts for the Future

Nationwide, the concept of problem solving courts is gaining support. This change in direction for dealing with society's problems is more time intensive for judges and the helping professionals who provide the necessary support than our traditional courts. However, the investments of time and effort appear to be addressing a significant need and overall are cost-effective for our citizens.

When I last reported to you, we had established two juvenile drug courts. These drug courts, located in Fargo and Grand Forks, continue to function with the active commitment of our judges. Since that time, we have added a third juvenile drug court in Bismarck, which began operation this last October. These juvenile drug courts have been funded through grants from the Federal Office of Justice Programs, as well as grant funds received from the Edward Byrne Memorial State and Local Law Enforcement Assistance Grant Program. Our current budget requests $387,000 to continue the operation of these drug courts. Of this request, $101,000 are general fund dollars. Justice Mary Maring is a steadfast advocate for these courts. I thank her for her tireless work to establish these courts. If juvenile drug courts are to remain operational, a financial commitment of state dollars is required.

The drug court program centers on a multiphase substance abuse treatment regimen, but also addresses issues like mental health, education, and, in some cases, employment. The courts operate through a drug court team that closely supervises the progress of the participants.

Since young substance abusing offenders are not just adults who have had fewer birthdays, but are people with different dynamics and prospects, their attendance and progress in school are factors in the process. Parents must attend and provide input into their child's behavior and compliance with directives from the court, as well. This tested model has gained acceptance nationwide and is meeting with success wherever implemented.

In addition to the juvenile drug courts now underway, we have implemented two adult drug courts. The first adult drug court began operation in January 2001 in Bismarck. We are just now beginning a second adult drug court in Fargo. While requiring significant judicial involvement, the tracking services and counseling required are to a large measure what is reducing the level of incarceration as well as recidivism for this population of offenders. The judges who participate in the juvenile and adult drug courts must do so while also handling their regular caseload. It is a daunting task and I thank them for their commitment.

As these courts prove to be a successful alternative to dealing with the growing problem of substance abuse, we will consider the possibility of expanding this program in other parts of the state within the limited judicial resources we have to bring to bear on this serious problem.

Court Facilities Needs

We continue to work with the Association of Counties and individual county commissions to address the issue of facilities for court activities. State law (N.D.C.C. §27-01-01.1) provides that "each county shall provide the district court in the county with adequate chamber, court, and law library quarters and lights and fuel and appropriate facilities for clerk of court services that are state funded pursuant to §27-05.2-02." While this section, and §11-10-20 relating specifically to the clerks of district court offices, provide a framework for facility responsibilities, we continue to deal with many facility management issues that appear to be "between the lines" in the administration of our judicial system. Simply stated, there is an ongoing debate in many counties regarding the responsibility for providing renovations, expansion, and basic upkeep of court-related areas. In some counties the message is that if the courts want it done, they should pay for it themselves. All fine and fee revenue now flows to the state and as a result there is a sense that it is the state's responsibility to assume a greater role in providing court facilities.

Our state court administrator visited with legislative leaders regarding this issue over a year ago. As a result, a committee involving a number of stakeholders was assembled to address the concern. Representing the legislative council were Representative Duane DeKrey, Representative Pam Gulleson, and Senator Tom Trenbeath. The committee sought input from the Association of Counties, the courts, and the Bar Association, and its work is reflected in a bill that has been introduced by the Supreme Court. This bill provides for the addition of a $10 surcharge on all civil case filings to provide a fund for court facilities improvement. The fund would be administered by a representative group to provide some financial assistance through grants to counties for the renovation and remodeling of judicial facilities.

The proposal is not without controversy. Whether this is the best way to address funding needs for court renovation and remodeling projects is for this Legislative Assembly to grapple within the weeks ahead. But we need to develop a process to address issues that are increasingly occurring in each county where, since unification, the courts are now tenants in county buildings.

Technology

A number of initiatives have been introduced and completed in the technology arena. The worldwide events of the last 18 months underscore the need for timely, accurate data sharing between agencies and organizations that have a legitimate need for intelligence data. Coupled with this need is the recognition that we must provide for the efficient administration of our organizations. Automation is one part of this important mission.

UCIS/PCSS Integration

The state judiciary is now on one management information system. Our Unified Court Information System (UCIS) has been expanded into Cass County. Cass County is part of the East Central Judicial District which also includes Traill and Steele Counties. Since the early 1990s, Cass County has had an information system that provided services to the state's attorney's office, local corrections and the courts. However, this system was not compatible with the judicial information system operating in the rest of state. As a result of funding by the 2001 Legislative Assembly, we successfully completed the integration of Cass County into our Unified Court Information System in November 2002. We now have the criminal and civil case records of the highest volume county, Cass County, as part of our integrated information system. This major task could not have been accomplished without the cooperation of the judges and support personnel in Cass County and the commitment of our technology people and the funding by the 2001 Legislative Assembly.

Expansion of UCIS

As part of our technology plan, UCIS is installed and operational in 40 counties of the state. Thirteen counties still do not have automated case management capabilities, but our goal is to have these remaining counties operational and fully functioning on UCIS by the end of this biennium. This will mean that for the first time in the state's history, all case-related information will be residing in one shared database. That will allow us to provide timely, accurate, and appropriate data for our judges and court personnel and to make it available to other justice agencies, as well as providing all counties with automation.

Automated Domestic Violence Protection Order Process

Over a year ago we embarked on an initiative to automate the full text of temporary and permanent domestic violence protection orders. Some of you are aware from past messages of my concern over the number of domestic violence incidents in North Dakota. This effort will provide timely court information to law enforcement agencies to further support this vulnerable population. It will enable overall improvement in services that are provided through the criminal justice community. Once fully implemented, the system will allow us to provide the full text of protection orders, both temporary and permanent, to local law enforcement agencies. This data will be transmitted electronically to the Bureau of Criminal Investigation for entry in the state registry of domestic violence protection orders as well as the national registry maintained by the Federal Bureau of Investigations. We will have the ability to provide and update information on protection orders so that as orders are canceled or continued, the information can be transferred almost instantaneously to justice agencies that enforce the conditions of these orders. This project involves representatives from local law enforcement, local domestic violence advocacy groups, the State Council on Abused Women's Services, State Radio, Bureau of Criminal Investigation, and representatives from sheriff's departments and municipal law enforcement throughout the state.

In concert with the entry of the protection orders, we are working with the North Dakota Council on Abused Women Services on a pilot project with the Abused Adult Resources Center located in Bismarck to gather domestic violence petition information electronically. This petition information will be electronically transmitted to the courts for inclusion in domestic violence protection orders. These collaborative efforts are a demonstration of what can be done when people with a common interest and commitment work together to address a problem.

Enhanced Records Management

We have included just over $100,000 in our budget request to address enhanced records management in the courts. This very modest sum of money will be used to begin to implement recommendations contained in an enhanced records management study that is currently underway. Our objective is to develop a pilot project to begin the process of enhanced records management for our courts.

It will greatly improve the court's efficiency when a judge in one location is able to access the documents in a file retained in another location. We are neophytes in the area of enhanced records management but we do realize this is a critical dimension that will allow us to provide improved services with limited resources.

CJIS Initiative

I am going to spend a few minutes touching on other kinds of information sharing initiatives in which the judiciary is involved. I have alluded to some of them in the section I have just concluded on technology. I want to stress that the courts are committed to the efficient transfer of information to organizations that have a need for the information, thus eliminating the impact of inquiries made of court personnel and, more importantly, allowing organizations and individuals the opportunity of accessing information at their convenience from their respective locations.

I serve on a three-member commission that oversees our criminal justice information sharing initiative in North Dakota. The commission consists of representatives from the governor's office, attorney general's office, and the judiciary. The focus is on criminal justice information sharing needs statewide. Similar initiatives are being conducted in many states throughout the U.S. In the courts we have been actively involved in this effort for nearly two years. We are committed to developing and supporting cost-effective information sharing strategies to improve the administration of not only the courts, but also the justice agencies that rely so heavily on the work of the courts. Funds have been included within the budget of the Information Technology Department to implement this information sharing strategy. I support that request. It is critical that the links between justice agencies be direct and provide meaningful data in a timely and cost-efficient way if we are going to fully carry out our respective mandates.

Data Warehouse

As we all know, the internet has become the information and data superhighway of the 21^stcentury. I am amazed at the growth in diversity of information available on the internet. It is hard to realize that less than a decade ago, the internet was viewed only as a concept. Few of us envisioned how this information explosion would change our lives. We all turn to the internet for information at an increasing pace. In 2003, we have vast amounts of data available 24 hours a day.

We have created a data warehouse in the judiciary that provides access to court-related information. Court schedules and case filing and disposition statistics are available at a person's fingertips.

As you know, through our state judicial web page, we have been able to share topical court-related information and provide access to rules and activities of the courts on a routine basis. I take this opportunity to thank Justice Dale V. Sandstrom for the hours of work he has put into developing and supporting our award-winning website. I encourage you to visit us at www.ndcourts.com.

Data Sharing Initiatives

Much of the theme of this speech relates to the need for information and information sharing within a complex society. We now provide marriage dissolution information to the Department of Health and traffic ticket disposition data to the Department of Transportation, electronically. These initiatives efficiently eliminate redundant data entry and improve the accuracy of record information. This obviously improves the program management of the respective agencies.

We are working with the Highway Patrol to electronically move traffic citation data from the trooper in the patrol car to ultimately update driver records in the Department of Transportation (DOT). This will be one of the first examples of its type in North Dakota government where the entire transaction is done electronically, from patrol car to the court to DOT while using the network infrastructures of State Radio and the Information Technology Department (ITD)

We have trained Department of Correction personnel to access our information system so that probation officers can check the status of time payments and other probation conditions of their charges at their convenience. These many initiatives embody our engagement and commitment to information sharing.

Interactive Television (ITV)

The final technology initiative I will discuss is the use of interactive television. For three years, we have used ITV to connect Burleigh County to McLean and Mercer Counties. Bond hearings, initial appearances, witness testimony in trial, and other selected proceedings are conducted using this medium. The technology works well. We encourage lawyers to consider this medium to increase court access and reduce costs, as appropriate. We are ready to use ITV in Jamestown to facilitate appearances between the court and the State Hospital.

Our court has approved amendments to our rules to support ITV proceedings in Cass County. If the judges and county officials decide to proceed, preliminary court appearances by defendants could be conducted in the new Cass County Jail in West Fargo and the courthouse in downtown Fargo. These pilots will allow us to explore different and innovative ways for conducting various court appearances with participants at remote sites.

Judicial Planning

Under Justice William A. Neumann's leadership, our Judicial Planning Committee has provided significant recommendations for improving and streamlining the administration of our trial courts. These recommendations are being reviewed with the goal of assuring that we continue to have an efficient, cost-effective, and responsive judicial system within the state.

State/Tribal Relations

We have a very active committee under the chairmanship of the Honorable Donovan Foughty that continues to address areas of common concern and interest between the tribal and state courts. The Committee on Tribal and State Court Affairs provides a forum for leaders from both groups to present and resolve many of the perplexing problems that need attention in our state. Justice Carol Kapsner serves on this Committee.

Indigent Defense

A bill approved by the Interim Judiciary A Committee to transfer the administration of the indigent defense services from the Judicial branch has been prefiled. We supported the transfer before the interim committee. A transfer will avoid the accusation of conflict of interest on the part of the Judicial branch and will permit greater flexibility in seeking the best and most cost effective ways of providing indigent defense services. In budgeting for these services we attempted to hold the cost increase to a reasonable amount in the face of ever increasing demands on the system.

Judges' Salaries

We are very appreciative of the salary increase you provided judges this last biennium. It was part of a projected increase that would begin to bring the salaries in line with the judicial salaries in comparable states. Recognizing the difficult financial picture which affects all of us, the judges at the November meeting of the Judicial Conference passed a motion that Supreme Court Justices and district judges should request no more pay increase than is provided to state employees.

For the Record

I note with regret the death on September 12, 2001, of Judge Glenn Dill III of Minot in the Northwest Judicial District. As we are required to do by statute when a vacancy occurs, our Court reviews whether the transfer of the judgeship to another judicial district is necessary to fulfill a need for judicial services in another district for effective judicial administration. On December 14, 2001, after holding hearings and viewing written comments, our Court ordered the judgeship transferred to Cass County in the East Central Judicial District. Governor Hoeven subsequently appointed John C. Irby of Casselton to the judgeship in Cass County.

Judge Everett Nels Olson, chambered in Minot in the Northwest Judicial District, announced he would not seek reelection in 2002. By statute that announcement also required a review by our Court. After considering the information we received after Judge Dill's death we determined it was necessary to retain that judgeship in its present location in Minot for efficient judicial administration. That position was filled by election in November 2002. Judge Douglas Mattson was elected to that office and was formally invested last Friday, January 3, 2003.

I also note with great sadness the death of Ralph Erickstad, former Chief Justice and former State Senator, July 12, 2001, at the age of 78.

On July 18, 2002, my friend and State Court Administrator, Keithe Nelson, died. My relationship with Keithe began when we were in law school and I miss his friendship and wise counsel and advice.

Our Constitution provides the State Court Administrator is appointed by and serves at the pleasure of the Chief Justice. I formed a committee to review applicants for the position and from the committee's recommended candidates I named Ted Gladden, who has served as Assistant State Court Administrator for the trial courts, as the State Court Administrator. Ted served as acting State Court Administrator during Keithe's illness.

Conclusion

Today, I have touched on a number of initiatives and activities in service to our commitment to provide fair, effective, and timely judicial services to the citizens of North Dakota. As I look about, I am aware, now more than ever, that change is a constant in our lives. However, even in the midst of change, both within and without the judiciary, the goal of our judicial institutions remains the same: to enable the just and equitable resolution of disputes without undue delay, and thereby serve the needs of all citizens in the 21^stCentury.

In closing, I quote Heraclitus, a Greek philosopher, who said, "There is nothing permanent except change." Our measure of success will be determined by how we respond to that change.

State of the Judiciary

2025 State of the Judiciary Address

2021 State of the Judiciary Address

2019 State of the Judiciary Address

2017 State of the Judiciary Address

2015 State of the Judiciary Address

2013 State of the Judiciary Address to the Bar

2013 State of the Judiciary Address

2012 State of the Judiciary Address

State of the Judiciary Report 2011

State of the Judiciary Message 2011

State of the Judiciary Message 2010

State of the Judiciary Message to the Bar 2009

State of the Judiciary Message 2009

State of the Judiciary Message 2008

State of the Judiciary Message to the Bar 2007

State of the Judiciary Message 2007

By Chief Justice Gerald W. VandeWalleThursday, 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

Introduction

Juvenile Policy Board Initiatives

Children's Justice Initiative

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

Case Management System

Space Needs

Mediation Pilot Program

A Fair and Impartial Judiciary

North Dakota Justices' Teaching Institute

Indigent Defense

Drug Courts

State Court Administrator

District Judges

Conclusion

State of the Judiciary Message 2006

State of the Judiciary Message to the Bar 2005

State of the Judiciary Message 2005

State of the Judiciary Message 2003

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