A judicious approach to dramatic increase

Chief Justice Gerald VandeWalle of the North Dakota Supreme Court spoke at a meeting of the Minot Kiwanis Club Tuesday about the dramatic changes in the judicial system in the state, unity in those changes, and a bit of history of those changes.

“When people say ‘What kind of cases do you hear? What’s going on in the courts?’ my answer is take a look at society,” VandeWalle said late in his speech, summarizing changes he spoke of in the state both throughout his legal career and upon us now.

He began with his history, saying that when he entered the legal world the state of North Dakota looked much different. There were “Supreme Court justices, district court judges, … county court judges, … county courts with increased jurisdiction,” city judges, and justices of the peace. In 1957 justices of the peace were abolished by the state legislature in the first move of unifying the judicial system and simplifying it.

Thereafter was a systematic reduction in the types of judges up to the point, in 1991, when county judges were turned into district judges left with brunt of judicial casework with city judges only hearing municipal ordinance violations. At that point there were 42 judges.

“And part of the unification system required us to reduce the number of judges,” he said. “They (the Legislature) said to the Supreme Court that you have to cut 12 judges over the next 10 years. And we did.”

But the caseload were unmanageable and more judges were requested. Courts received two more judges in 2009 and three more this year, with two to be stationed in the “Northwest corner of the state,” in Watford City and Williston, with the third going to Fargo. This leaves the state with a total of 47 judges, which still may not be enough.

Dramatic increases

In a single year, district court filings in the state rose 11.26 percent, from 167,165 in 2011 to 185,982 in 2012. Likewise, over the same period, the Supreme Court saw a rise of 22 percent in appeals heard from 364 to 442, evenly split between civil and criminal cases.

Felonies are also increasing dramatically.

“Law enforcement has to deal with the major fires and put those out and let the minor ones go,” VandeWalle said in an analogy. “We had a drug court in Williston. It’s no longer operating and if you think it’s because teenagers in Williston quit drinking then you’ve got another thing coming.”

One way in which the courts are addressing this is through increased mediation.

VandeWalle feels that the adversarial system in place for criminal law is a great system that exposes the truth and inner workings of any case, but feels it doesn’t work in family law because of its delicate nature.

“You have two people who are split, they have children together, and even after the lawsuit is done they will continue to have those children together for the rest of their lives,” he said. “They were a one-time family and they no longer are but they still have to get along with each other.”

While the program wasn’t started to decrease caseload, it had the side benefit of doing so, and the courts are looking at additional ways out-of-court mediation can help solve additional problems in the state, such as mediations over mineral rights in the Bakken Formation in the Western third of the state.

What’s next

“It’s an exciting time to live in North Dakota after all those years in which we were fairly stagnant,” VandeWalle said. “So I will tell you that the legislation has been pretty good to us. They haven’t given us everything we want and I don’t think they should give us everything we ask for.”

What they did give were those additional five judges in 2009 and 2013, which are already working on overbearing caseloads.

But VandeWalle said, with “due respect” toward the two Northwest Judicial District judges present at the meeting, Judge Douglas L. Mattson and Judge Gary Lee, that the clerks are overworked, too.

The courts use a “weighted caseload to determine the number of judges,” which weights all the actions taken by judges, multiplies it by the number of cases, and then divides that by the number of judges to determine an imperfect prediction of the amount of judges needed. They also use a similar method for detecting the number of employees needed to support that work.

Back to history, VandeWalle said that once it was “unheard of” for someone to argue their own case before the Supreme Court but that now it’s fairly common and that those people come to the clerks for help. Although the clerks can’t offer legal help, they still point people to resources or explain processes and that can add a significant amount of work for them.

Williams County decided to close their Courthouse for half a day each week just to take that added duty away long enough to attempt to catch up on work, and the Supreme Court has followed suit, although VandeWalle joked that choosing Friday afternoon may not have been wise considering it may appear they’re just trying to lengthen their weekend.

Going out from the oil, though, Burleigh County appears to be the next “hotspot” the courts will have to examine for future needs.

Those interested in reading the reports of the Supreme Court should visit the official website (http://www.ndcourts.gov).