North Dakota Distinctives

By VandeWalle, Gerald W. | Albany Law Review, Summer 2013 | Go to article overview

North Dakota Distinctives


VandeWalle, Gerald W., Albany Law Review


The North Dakota court system is the only state court in the nation that has not made cuts due to budget woes, according to the November/December 2012 issue of the Council of State Governments' Capitol Ideas. (1) While part of this can be attributed to the state's diversified, and currently booming, economy, (2) credit must also go to actions the Court has taken over time to modernize and streamline the judicial system. The Court has relied on its dedicated personnel and has leveraged technology to efficiently and effectively provide judicial services to urban centers and sparsely populated rural areas. (3) Even in lean times the Court has resisted cuts and managed to deliver high-quality judicial services to the citizens of the state.

As an agrarian state, populous ideals undergird the formation of state government and influenced the Court's creation and workings. These populous underpinnings are apparent in some of our Court's distinctives, such as the supermajority requirements, the broad right to appeal, and the election of justices. Now to some of the distinctives:

Constitutional supermajority. The North Dakota Constitution requires at least four of the five members of the Court to declare a legislative enactment unconstitutional. (4)

Certiorari. Appeals to the North Dakota Supreme Court are of right and not by certiorari. Reflecting its populous roots, the North Dakota Constitution allows the legislature to confer on the people a broad right to appeal and it has done so by statute. (5)

Court Elections and Selection. Supreme Court justices and District Court judges are elected on no-party ballots. Justices serve ten-year terms and judges serve six-year terms. (6) The Supreme Court has five justices; all cases are decided en banc. (7) Forty-four judges presently comprise the District Court bench, (8) At statehood, judicial elections were partisan. Following a particularly nasty and bruising 1906 campaign for Supreme Court Justice, the laws were changed to provide that all judicial elections are non-partisan. (9) Today incumbent justices or judges are seldom challenged for reelection.

Courts and the Legislature. The judicial budget is submitted directly to the North Dakota Legislative Assembly, without review by the governor. For the last forty years, near the beginning of the session, the chief justice has been invited to deliver a "State of the Judiciary" speech to a joint session of the legislative assembly. (10) The Court enjoys a cooperative relationship with the assembly, as evidenced by the trust and respect each branch tenders toward the other branch.

Chief Justice. One of the early steps in modernizing the Court system was changing how the chief justice is selected. Prior to 1967, the chief justice was the justice with the shortest time left on his term; generally this resulted in a different chief justice every two years. (11) Now, and perhaps unique to North Dakota, the chief justice of the Supreme Court is elected by vote of the Supreme Court Justices and trial court judges. (12) The chief justice must be chosen from among the justices of the Supreme Court and serves for five years or until his current term as justice expires. (13) The chief justice may be re-elected and has no term limits; he may resign as chief justice without giving up his role as a justice. (14) The current chief justice has held that position for twenty-one years and has been on the Court for thirty-five years. (15) In addition to judicial duties, the chief justice serves as the administrative head of the unified court system.

Continuity. Continuity is a hallmark of the Court. The Court began in 1889 as a three-member Court and was expanded to a five-member Court in 1909. (16) Since statehood, only fifty-one justices have served on the Court; six justices have served on the Court for twenty-five to thirty-nine years. (17) The current Court has sat together for over seven years and the Court has had only one new justice in the last fourteen years, (18) Court personnel also stay with the court system--turnover rates are low. …

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