Message from the Chief Justice

A message from the Chief Justice on in-person hearings

Tue, 04 Aug 2020 18:10:00 GMT

Throughout the Judicial Branch, juvenile court staff, reporters and recorders, administrators, law clerks and the members of the clerk of court offices have all worked to make our return to in-person proceedings as safe as possible. The return to in-person proceedings is necessary to fulfill our obligation to provide a forum for litigants, protect the vulnerable, and make sure the rights of those accused of crimes are met. Thank you for meeting the challenge and the contribution each of you have made in creating the safest possible environment for in-person proceedings.

Working our way through the pandemic will not always be smooth. There will be events that disrupt our ability to provide in-person proceedings. When an event does occur, the safety of our judicial branch team members and the public is our foremost concern. This may require us to pause or delay in-person proceedings. As we have demonstrated over the past several months, we have been able to perform our essential functions even when in-person proceedings have been restricted. Our presiding judges, unit administrators, and our clerks of court, working together, have the flexibility to increase or decrease in-person proceedings to fit the present circumstances in each district.

Thank you to all of the court staff, judges, lawyers, bailiffs, and law enforcement for your dedication in keeping the court system running. For your health and for the safety of others, I encourage you to continue to follow good social distancing practices.

Jon J. Jensen

Chief Justice

North Dakota Supreme Court

Response to SBAND question regarding the CARES ACT and Administrative Order 27

Tue, 28 Apr 2020 11:00:00 GMT

The following question was received from a member of the State Bar Association of North Dakota. Responses to earlier questions and comments were posted on the Supreme Court web page. Thank you for the submission of questions and comments. All of your questions and comments have been considered, answers have been provided to many of your questions, and we have provided a response to many of your comments. We will continue to review questions and comments provided through SBAND. Your input is appreciated.

Does Amended Administrative Order 27 regarding evictions overrule Section 4024 of the CARES Act regarding rental properties with federal assistance or federally related financing?

Administrative Order 27 addresses whether North Dakota courts are available to adjudicate a certain type of civil proceeding, in this case residential evictions. The Order does not attempt to address limitations imposed by other law(s) on any person seeking to terminate North Dakota leases.

Updated second response to questions from SBAND members

Tue, 28 Apr 2020 09:00:00 GMT

The following are additional responses to questions and comments forwarded to the Court through the State Bar Association of North Dakota. Responses to earlier questions and comments were posted on the Supreme Court web page on March 27, 2020. Thank you for the submission of questions and comments. All of your questions and comments have been considered, answers have been provided to many of your questions, and we have provided a response to many of your comments. We will continue to review questions and comments provided through SBAND. Your input is appreciated.

Will the Court take action to waive or protect stimulus checks from garnishment for unpaid child support obligations? No. We have been in contact with the Director of Child Support Services for the North Dakota Department of Human Services. North Dakota Child Support Services has been seeking, without success, to secure local discretion over the disbursement of stimulus payments. North Dakota Child Support Services will be issuing a public statement in the immediate future.

Other Child Support Service news: Child Support Services has transitioned more than 70% of its staff to working from home. Receipt and disbursement of payments have continued uninterrupted. Child Support Services will work with obligors to suspend collection efforts resulting from the loss of income related to the current emergency.

Will attorneys be “essential services” in the event the Governor issues a shelter-in-place order? The Court is aware of the essential nature of many proceedings within the judicial system. We are fortunate in North Dakota to have exceptional communication between the three branches of government and our expectation is the exceptional communication will continue and we will have input on the scope of law-related activities.

Will there be further direction regarding dockets going forward? Yes, when we are able to determine we are on the path to resuming normal operations we will provide additional guidance regarding dockets. Each district operates with a different number of judges and different geographic challenges. Our district judges will have significant input in how we resume normal operations. Unfortunately, the date we will be able to return to normal operations is not certain.

Will the Court consider the use of alternative video platforms for court proceedings? We have received many suggestions for different electronic platforms for conducting remote proceedings. Thank you. All of the suggestions are welcome. Our district judges have been using a variety of platforms for remote hearings and, to the extent possible, our district judges continue to conduct court proceedings. We are committed to resolving as many proceedings, both criminal and civil, through reliable electronic means as possible. We can, and will, get better at implementing reliable electronic means.

Is the Court willing to establish a committee to allow practicing lawyers to have input in shaping the judicial system’s response to the emergency? The Court will reach out to Tony Weiler, the Executive Director of SBAND, to arrange an electronic conference with the chairs of each SBAND practice section. We also understand SBAND represents a variety of viewpoints. On many issues we have received comments that are difficult to reconcile. For example, some practitioners have expressed disappointment with the continuation of any judicial functions while others are requesting we continue with all proceedings, including jury trials. The Court will continue to balance its priority of ensuring the health of its team members and those who use the judicial system with the rights of litigants to have their cases resolved.

Comment: Criminal defendants who are being held in custody are entitled to a fair and speedy jury trial. We agree. We appreciate the passionate comments we have received advocating for the rights of individuals being held in custody. We are committed to resuming jury trials when appropriate. However, we believe the current suspension of jury trials is necessary and consistent with guidance provided by both federal and state authorities.

Will the Court waive some requirements related to having documents notarized? In our prior responses we addressed a question regarding remote attestation by a notary. We have subsequently received several emails referencing specific documents and the requirement to have a notary witness the document. Rule 11 of the North Dakota Rules of Civil Procedure was recently amended to be consistent with Chapter 31-15 of the North Dakota Century Code expanding the use of unsworn declarations. Please refer to Rule 11 and Chapter 31-15 for guidance on using unsworn declarations.

Will the Court issue specific guidance on parenting time orders? On April 1, 2020, the Court issued a statement reminding parents that all court orders for parenting time and support remain in force and an existing parenting time order can only be modified through agreement or a new order. We are confident most parents are working together during this emergency to pursue what is best for their children. We are also confident that most parents who were confused about whether the emergency required them to continue to follow the order will read the Court’s statement and follow their existing parenting plans. Hopefully the Court’s expansion of its family mediation program, as described in the following paragraph, will be able to resolve some of the remaining compliance issues. Unfortunately, some parents will not follow their existing parenting plans, whether for good cause or in violation of the parenting plan. In those instances, formal enforcement proceedings are necessary for our trial courts to intervene.

In order to minimize family conflict and to help parents quickly resolve issues, the Court has developed the Expedited Parenting Time Mediation Program. The program offers one-hour of telephone mediation at no cost to parties facing parenting time disputes. The program is limited to cases filed in North Dakota in which a parenting time plan has been established or an interim order addressing parenting time has been entered. Counsel for the parties are allowed to participate in the mediation. In order to participate in the program, parties must submit a request for mediation. The request form is available online. After receiving the form, the program administrator will assign a mediator, who will provide the parties with a selection of possible dates and times for the one-hour mediation session. If the parties reach an agreement through the mediation, the mediator will prepare a written summary for the parties to sign noting all agreements made in the parties' own words.

Why did the court suspend most residential eviction proceedings?
Administrative Order 27 addressed residential evictions which are required by law to have a hearing within 15 days of service of the summons. Most of our district courts are currently unable meet those deadlines when the majority of courthouses are closed or only open to the public by appointment. In addition, approximately 80% of judicial branch employees are working at home. Our district courts are challenged to meet deadlines in emergency cases such as mental health and domestic violence as well as constitutionally mandated proceedings in criminal cases, which the Court has little or no ability to delay. Section 27-02-27, N.D.C.C. grants the Supreme Court authority to declare a judicial emergency when an emergency endangers or infringes on the normal functioning of the court. The COVID-19 pandemic has created such an emergency, requiring the issuance of an order temporarily suspending hearings in most residential evictions.

Residential eviction proceedings required suspension through an emergency order based on the volume of cases and because the deadlines imposed by law could not be met as a result of the COVID-19 pandemic emergency. Our order included an exception to allow evictions to proceed if there is a showing of good cause to the trial court. Our order also anticipates residential eviction proceedings may resume during the emergency and provides for the hearings to be conducted through reliable electronic means, but with extended deadlines. Our order does not modify the rights or obligations of the parties to a residential lease. Our limited technology resources are being applied where needed most and it currently is not possible to conduct the same number of hearings electronically as we could have conducted inside our courtrooms. We are adding more cases to our dockets every day. Our district court judges and staff are working hard to handle as many cases as they can during the emergency.

Does Amended Administrative Order 27 regarding evictions overrule Section 4024 of the CARES Act regarding rental properties with federal assistance or federally related financing?
Administrative Order 27 addresses whether North Dakota courts are available to adjudicate a certain type of civil proceeding, in this case residential evictions. The Order does not attempt to address limitations imposed by other law(s) on any person seeking to terminate North Dakota leases.

Chief Justice expresses thanks to judicial team members

Mon, 13 Apr 2020 11:00:00 GMT

Judicial Team Members, greetings. Your hard work and dedication to the North Dakota Judicial System over the past several weeks is appreciated. Although many of you are working from home, our district courts are handling far more cases than we had initially imagined would be possible. While we are not at “normal operations” we are moving forward. Our ability to process the cases we are handling is due to your hard work. Thank you.

Our clerk of court offices, both district court and the Supreme Court, have done an amazing job continuing to handle filings during the emergency. The volume of work is astounding. While every team member has done his or her part, I have personally had a chance to see the Clerk of the Supreme Court, Petra Hulm, and her staff working through this emergency. Their hard work has allowed the Court to continue its oral arguments. Thank you.

Our administrative staff has continued to provide valuable support in human resources, accounting, and other services. Our administrative staff has allowed us to leverage technology to continue to get our essential tasks done. Lee Ann Barnhardt and Kim Dockter have facilitated countless video conferences and educational events to help us through the emergency. Please let them know if there is a particular topic you think would be helpful to address in an upcoming video event.

We have all had one or more experiences with our IT Department over the last several weeks. They have worked tirelessly to keep our computers and networks going, and their work has been exceptional.

We recognize that being a reporter or recorder during this emergency has been difficult. Reporters and recorders have been present for emergency hearings and wrestled with multiple electronic meeting platforms. Similarly, the administrative assistants and judicial assistants have leveraged technology to continue to support operations throughout the organization. Thank you for continuing to provide exceptional work.

Our juvenile court officers, directors, and drug court staff have found innovative ways to maintain contact with youth to continue supporting, educating and guiding them during these times. Thank you.

Justice Crothers has worked tirelessly to develop a guide for conducting video hearings. We anticipate we will be able to share that work with the district courts within the immediate future to get feedback and make appropriate modifications. It will be a template to use during this emergency and well into the future.

The Court continues to meet regularly with the presiding judges and unit administrators for each of the judicial districts. The presiding judges have provided fantastic guidance during the emergency. The frequent meetings have allowed the districts to share information about procedures that are working and discuss solutions for problems. Presiding Judges Romanick, Lee and Hager have helped with decisive decision making and providing critical feedback leading to improved decisions. Presiding Judges Herauf and Schmidt have used their experiences handling the volume of cases arising as a result of the oil boom to assure us we will succeed, regardless of how many bumps there may be in the road. Presiding Judge Narum has offered great advice on changes to help resolve cases, including streamlining some child support modifications. Presiding Judge Racek has kept our criminal dockets moving forward. Judge Foughty has offered thoughtful observations during our meetings in a manner that assures us we will be back to normal before we know it. Scott Johnson, Carolyn Probst, Donna Wunderlich, and Rod Olson have worked alongside the presiding judges to implement decisions and made sure the collective decisions have been shared with all of the team members within the units.

Our discussions are now focusing on returning to normal operations. We will continue to be mindful of our obligations to protect the health of team members and the public while we add more proceedings to our schedules. We have much to look forward to and much to be proud of having accomplished. The Court hopes your energy and enthusiasm will continue as we work toward resuming more of our regular activities using innovative methods

Updated Supreme Court statement on parenting time

Fri, 03 Apr 2020 10:00:00 GMT

On April 1, 2020, the Court expanded its family mediation program to allow access to family mediators to resolve parenting time disputes in cases with existing parenting time orders and without the necessity of a pending motion. The expansion of the family mediation program addresses two concerns raised in many emails that have been received by the Court during the current emergency; the expense of modifying or enforcing existing orders and the delay inherent in the formal motions process. The expanded program is being provided without cost to the parties and has been designed to require the mediation to occur within one to seven days of the online application and requires a determination to be made within three days of the mediation.

With schools closed and courthouses operating with limited access during this emergency, parents who live apart might be confused about changing family situations and existing parenting time orders. All court orders for parenting time and support remain in force and must be followed. Only a new court order can change an existing order. A new court order requires the submission of a formal motion, in writing, to the court.

Where government actions restrict travel or, if a child’s safety is at issue, parents should work together to maintain the child’s access to both parents as close to the normal arrangement as possible. If it is necessary to share parenting responsibilities in ways that are different than an existing court order, parents should work together to further the child’s best interests. The court has provided an expansion of our family mediation program to assist parents in reaching an agreement.

Information on parenting time mediation: https://www.ndcourts.gov/legal-self-help/request-for-expedited-parenting-time-mediation

Chief Justice's updated statement on appeals to the North Dakota Supreme Court

Tue, 31 Mar 2020 11:18:00 GMT

The health and safety of our judicial team members, litigants and attorneys is our priority. We also understand our obligation to continue essential functions within the judicial system. Recognizing these competing interests, the North Dakota Supreme Court clerk’s office will remain open for filing documents, and the Court will hear oral arguments by electronic means next week. COVID-19 related requests for an extension or continuance will be considered supported by good cause.

As of Thursday, March 19, 2020, the State Capitol has been closed to public access. Arrangements can be made for entry to the building if delivery to the clerk of court is required. The Clerk of the Supreme Court can be reached at: supclerkofcourt@ndcourts.gov or 701-328-2221. Before contacting the clerk of court to arrange for entry to the Capitol, please determine whether electronic transmission or delivery by mail or reliable third party service is available. Please be aware, as of March 30, 2020 the public entrance has been moved to the West entrance location. Individuals entering the Capitol through the public entrance will be required to go through a COVID-19 screening process.

Oral arguments before the Supreme Court beginning March 23, 2020 have been conducted by electronic means. The Justices and lawyers are appearing in the cases using a real-time audio and video interface for the arguments. The oral arguments are webcast live at www.ndcourts.gov and will be available for playback shortly after each case is heard.

Jon J. Jensen

Chief Justice

North Dakota Supreme Court

Responses to questions from SBAND Members

Fri, 27 Mar 2020 21:41:00 GMT

The following are responses to questions and comments forwarded to the Court through the State Bar Association of North Dakota. Thank you for the prompt submission of questions and comments. All of your questions and comments have been considered, answers have been provided to many of your questions, and we have provided a response to many of your comments. We will continue to review the remaining questions and comments. Your input is appreciated.

Will future jury trials be suspended for several incubation cycles of the COVID-19 virus? Jury trials have been suspended. The health of our judicial team members and individuals who interact with our judicial system is our priority. Jury trials will resume when the risk of transmittal of the virus is minimal. Comments we have been provided about sharing microphones during jury selection are appreciated and we will review how we conduct our jury selection to reduce unnecessary risk.

Can transcription fees for indigent clients be waived? The Court is not currently considering the waiver of transcription fees for indigent civil clients as part of its response to the COVID-19 emergency. The cost of transcripts in civil proceedings has been and remains a concern of the court.

Can the use of ITV, telephonic and other forms of remote access be expanded? Many of the comments, questions, and suggestions we have received relate to the expanded use of remote participation in hearings. We appreciate the suggestions we have received. For example, one suggestion was to integrate multi-party access into the existing ITV network. That suggestion and others will be forwarded to our technology department.

Many of our courts are using remote methods for conducting hearings. Administrative Rule 52 provides broad discretion for conducting proceedings by reliable electronic means. In civil cases, there are no restrictions on what proceedings can be conducted by reliable electronic means. The exchange of documentary evidence can be overcome by pre-hearing submission of exhibits and stipulations. Criminal cases have greater restrictions on when proceedings can be conducted by reliable electronic means.

Why are the courts still operating? We received many comments regarding this subject and the related subject of uniformity. Uniformity is addressed in the response to question number 5.

The comments and questions regarding our continued operations were split between requesting a complete shutdown of all court proceedings with the possible exception of emergency proceedings, and requests to continue court operations to the extent possible. Our priority is the health of our judicial team members and individuals who come in contact with the court system. That priority must be balanced with our duty to provide a forum for protecting vulnerable persons, providing a forum to ensure children in abusive or neglectful situations are safe, and satisfying our obligation with regard to the rights of individuals accused of crimes. We understand any proceeding not conducted remotely creates a risk of exposure to COVID-19. Most of our districts have eliminated in-person contact except in emergency proceedings. As of March 25, 2020, we have addressed these concerns by instructing all districts to conduct in-person hearings only in emergency proceedings and when an alternative is not available.

Why isn’t there uniformity between the districts? Your comments for more uniformity have been heard. As noted in the prior response, a clear directive has been provided to the districts regarding the limitation on conducting in-person hearings. Essential court functions will continue. Proceedings that can continue to be heard through reliable electronic means will continue to be heard when possible.

Each district has different experiences and ability to conduct proceedings through the use of reliable electronic means. All of the districts are increasing their capabilities. Cases which can proceed through electronic means should proceed through electronic means. The practicing bar can facilitate this process by preparing and distributing documentary evidence prior to the hearing.

Why haven’t deadlines in civil cases been automatically extended? Comments and questions from the practicing bar were received on both sides of this issue. Many responses indicated discovery, and in particular depositions, have become impossible to conduct or arrange. Other comments stressed the need for clients to have a resolution, noted there are many cases decided through default procedures, and stressed the use of reliable electronic means.

Requests for continuances related to COVID-19 are presumptively made for good cause. No civil cases are being required to proceed forward where there is an agreement by counsel to continue the proceeding. District judges will continue to be given discretion to proceed with non-emergency cases by using reliable electronic means. Regardless of how well the judicial system’s workload is managed during the emergency, there will be significant delays following the end of the emergency. To the extent we are able to resolve cases now through reliable electronic means, future delay times will be reduced.

How will cases be handled when the emergency ends? Cases with statutory or constitutional time requirements will be provided priority. This includes, but is not limited to, juvenile proceedings, speedy trial requests in criminal proceedings, and civil commitment proceedings. The resolution of cases through the use of reliable electronic means during the emergency is critical to limiting the amount of post-emergency delays.

What happens if the Governor issues a shelter in place order? We anticipate emergency proceedings will continue. Non-emergency proceedings will continue if there are reliable electronic means available. Continuance requests related to the COVID-19 emergency will be presumed to be supported by good cause.

Why are eviction proceedings continuing? The Court has issued an order suspending residential eviction proceedings.

Can Administrative Rule 52 be relaxed in criminal cases to allow proceedings to continue through reliable electronic means? Subject to the Court’s obligation to protect constitutional rights afforded to criminal defendants, relaxation of Administrative Rule 52 will be considered.

Can the requirement to notarize documents and the physical presence of the stenographer to swear in deposition witnesses be addressed? Rule 11 of the North Dakota Rules of Civil Procedure was recently amended to substantially expand the use of sworn declarations. The Court will consider an emergency order eliminating the physical presence of the stenographer to swear in deposition witnesses. In a recent conversation with the North Dakota Secretary of State we have confirmed remote notary attestation is covered by N.D.C.C. 44-06.1-13.1 (please review the public notice issued by the North Dakota Secretary of State and the statute for guidance).

Will the Court address potential visitation disputes? First, our family mediation program is being expanded to allow parties to access mediation to resolve parenting disputes without the necessity of filing a motion. A decision will be made by the mediator within three days. The suggestion to clarify whether or not the school year has ended or continues with regard to summer parenting time is appreciated and action will be considered.

Can North Dakota Rule of Criminal Procedure 43 be expanded? The Court has expanded the use of Rule 43 to include felonies with presumptive probation sentences. Further expansion will be considered.

The Court will continue to provide responses to questions and comments. Again, thank you for your input.

Office of the State Auditor issues positive report for the Judicial Branch

Mon, 23 Mar 2020 11:00:00 GMT

The Office of the State Auditor has released its audit report for the Judicial Branch for the biennium ending June 30, 2019. The “audit did not identify any areas of concern . . . [w]e wish to express our appreciation to Chief Justice Jensen and his staff for the courtesy, cooperation, and assistance they provided to us during this audit.” Joshua C. Gallion, North Dakota State Auditor.

The audit is a positive reflection on the Judicial Branch’s proper management of state taxpayer resources. State Court Administrator Sally Holewa and her staff, along with the other Judicial Branch team members, must be given credit for the positive result of the audit. Ms. Holewa oversees the day-to-day accounting functions of the Judicial Branch.

Highlights of the report include the following:

The Judicial Branch was in compliance with significant statutes, laws, rules and regulations under which it was created and is functioning.
Internal control was adequate and no deficiencies in internal control that were significant within the context of our audit objectives were identified.
There were no indications of lack of efficiency in financial operations and management of the Judicial Branch.
No difficulties were encountered with the audit.

The Judicial Branch provides essential services. It is providing those services in an efficient manner that is mindful of our responsibility to the taxpayers. We will continue to be good stewards of the resources provided to us through legislative funding and other sources.

Jon J. Jensen
Chief Justice
North Dakota Supreme Court

Download the 2019 Judicial Branch Audit Report.

Chief Justice statement on continuances and rescheduling

Thu, 19 Mar 2020 11:00:00 GMT

The Court has recently issued emergency orders related to the COVID-19 emergency. The health and safety of our judicial team members, litigants and attorneys is our priority. We also understand our obligation to continue essential functions to provide a forum for protecting vulnerable persons, providing stability for children, and providing a forum for the resolution of criminal proceedings.

Emergency Administrative Order 25 suspended jury trial proceedings. Eliminating the gathering of large groups of people and gatherings in confined spaces is necessary given the state of emergency declared both federally and by the State of North Dakota. The order also suspended the mandatory review of guardianship proceedings.

Emergency Administrative Order 25 acts as a floor and is not intended as a directive to continue with non-jury trial proceedings which would expose team members, litigants, and attorneys to an unnecessary health risk. Our district judges have been empowered to liberally exercise their discretion in continuing proceedings. Our district judges, with the assistance of litigants and attorneys, are in the best position to evaluate and decide which proceedings should proceed forward and whether alternative forms of appearance can be arranged. The Court has arranged daily information exchanges with the district courts and the Court will take system-wide action when appropriate.

The input from trial court judges, administrators, judicial team members, litigants, and attorneys is welcome and necessary. Our goal is to continue essential operations while we continue to acknowledge our priority of maintaining a safe and healthy environment.

Courthouses around the State are closing their public access, but allowing court operations. We will continue to implement alternative methods for resolving pending legal issues. You can help by providing your suggestions and comments. More information from you will make for better decisions.

Jon J. Jensen

Chief Justice

North Dakota Supreme Court