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| The
State of the Judiciary Much has happened in
this past year and I would like to share some of the news with you. In addition to a freshly
minted chief justice, we also welcomed Justice Lorie Gildea as the newest associate justice of our Supreme Court
and Judges Renee Worke and Kevin Ross as
the newest judges on our court of appeals.
In addition, we have 22 new district court judges that have
joined our ranks since the last Bar convention. They are a tribute to the success of our merit
selection system and to the fine work of Eric Magnuson and his merit
selection committee in recommending to the governor these outstanding
lawyers to join our judiciary. I know that you have
questions about the state of our judiciary and I intend to be as responsive
as time permits. In that regard,
I was reminded of the story that I heard years ago about the car/train
collision at the railroad crossing.
During the trial that followed, it was discovered that a 15-year-old
boy had apparently been an eyewitness to the accident.
When defense counsel called the young man as the railroad’s
first witness in defense, the attorney began with the question, “What
is your name?” To which the young boy immediately replied,
“The arm was down and the bell was ringing.”
I hope that my remarks today will be as brief, yet more responsive. As for the state of
the judiciary, I have seen many administrative changes in our judiciary
since first taking the oath of office as a district court judge in
1982, but none are more exciting, dramatic, or challenging as two,
related, administrative changes that are now fully in place.
These two changes are state funding and the creation and implementation
of the Judicial Council. While the shift from
county to state funding may seem a bit arcane, the significance of
state funding for our courts cannot be underestimated — and in fact,
its impact eventually will be felt by all of you in this room. As many of you can attest,
up to now the system of county-by-county funding of the trial courts
has resulted in significant disparities in resources and services. Today our judicial branch
is unified under the same administrative goals with a single source
of funding. All of this gives
us new and much greater opportunities to promote consistency, accountability
and statewide innovation. And we now have for
the first time a single governing body to oversee the entire system. This body, known as the Judicial Council, is
comprised of 19 judges, 14 of whom are trial judges, and six court
administrators. The creation
of this body is the final accomplishment of the 15-year process to
fully unify the judicial branch — a goal shared by five of my predecessors. The Judicial Council meeting we had this morning
marks our first year of operation in this new era. I believe that we stand
first in all of the states in our nation in the progress that we have
made towards a fully unified, state-funded judicial branch with capacity
to establish statewide policies and equitably distribute our resources.
In July, our state court
administrator, Sue Dosal, will receive the
National Association of Court Managers Award of Merit in recognition
of her accomplishments and the accomplishments of our many outstanding
county, district and state administrators who have helped make Minnesota’s
judicial system a national model. Minnesota was one of
the first states in the country to utilize a weighted caseload study
to determine the objective need for judges, and it has now become
one of the first states in the country to utilize a similar analysis
for court staffing. With the completion of state funding, these
tools are helping us to identify and correct historic resource disparities. In addition, in the
next few years, you will see the Minnesota judiciary be among the
first in the country to consider broad statewide performance measurements
for our courts. In July, our Judicial
Council will spend a full day discussing priority benchmarks, such
as new case processing time standards for all state courts — appellate
and trial level — and even exploring ways to measure court users’
perceptions of fairness, building on current practice in Hennepin
County. Administratively, we
are committed to innovating, transforming and finding more effective
ways to meet the needs of the citizens we serve. Effectiveness is the
focus of a new judicial branch strategic initiative to expand statewide
what is known in the trade as “problem-solving” courts, starting with
those courts focused on alcohol and other drug issues.
Einstein’s definition
of insanity is “doing the same thing over and over again and expecting
different results.” Our traditional
way of handling alcohol and other drug offenders just doesn’t work
because it hasn’t addressed the root causes of the problems that bring
people to our courtrooms in the first place.
The pernicious cycle
of addiction and recidivism is a revolving door of justice in which
we see the same people time and time again come back into our criminal
justice system and our courtrooms. Chemical dependency
is an underlying factor in more than two-thirds of our criminal and
juvenile cases, as much as 70 percent of our child-protection cases
and a good chunk of family cases as well.
This year, more than 30 percent of the new admissions to our
state prisons are drug offenders and 90 percent of the inmates have
been diagnosed as chemically dependent or abusive.
Large percentages of people in our local jails — especially
in greater Minnesota — are there because of meth (methamphetamine) addiction. The costs to society are enormous and growing.
Drug courts closely
monitor offenders’ progress toward sobriety through frequent drug
testing, regular mandatory check-in court appearances, on-going treatment,
and the use of sanctions and incentives to foster behavior change. And let me assure you that the drug court model
fully incorporates the need to preserve public safety and to incarcerate
the dangerous. Drug courts have sprung
up around the state, based on extensive national research that the
approach works. In study after
study, drug courts have been proven to decrease both drug use and
criminal behavior. They lower rates of re-arrest, conviction and
recidivism. A 2005 report from
the Government Accounting Office showed a positive net benefit for
every court they studied. We now have 19 courts
operating and 21 more in the planning stage throughout the state. This approach saves taxpayers’ dollars, improves
public safety, holds people accountable, and perhaps most importantly,
saves peoples’ lives. We are forging allies
— across the branches and at the state and local level — who
support a broad and fundamental shift in how we deal with alcohol-
or drug-addicted offenders. I
ask that the Bar join with us in calling on the Legislature to support
this vital initiative. While starting a new
state drug court initiative we continue and deepen our commitment
to the Children’s Justice Initiative (“CJI”), begun under the leadership
of my predecessor, Kathleen Blatz. CJI is being institutionalized as the new “norm”
for how we handle child abuse and neglect cases. We are getting maltreated children into permanent
homes faster, improving rates of adoption, and removing the bureaucratic
hurdles that kept families in limbo for years. Under the direction
of Otter Tail County Judge Wally Senyk,
we just completed 11 regional, multidisciplinary training sessions
across the state, involving 1,800 people — judges, prosecutors, defenders,
court staff and many others. You
can expect us to continue our efforts to improve results for Minnesota’s
most vulnerable children and to make the Children’s Justice Initiative
a national model of statewide child protection reform. Another area that will
soon have a direct impact on all of your work is technology. The judiciary’s antiquated,
Carter-era computer system is being replaced by a new system called
MNCIS. As of this month, 61 counties have migrated
to the new system, and many of our business partners — such as probation
and county attorneys — are accessing this new system as well. As many of you remember,
our new technology framework will become a key component of the important
statewide CriMNet effort to integrate and
share criminal justice information.
Judges, attorneys, law enforcement and the 1,100 entities which
rely on this information to make important decisions about public
safety are much closer to a reality that will benefit all Minnesotans. Another important technology
advent just over the horizon is e-filing. For those of us who “cut our teeth” in a legal
field where all our work was transacted and copied on physical pieces
of paper, e-filing sounds like something
out of science fiction. But
it is here. This coming biennium, we will begin enabling
e-filing statewide for all criminal cases. Civil e-filing will
follow that implementation And, we’re using technology
to make our courts more accessible to the public. Last week we unveiled a new website that features
a self-help center, the ability to pay traffic fines in Ramsey and
Hennepin counties online, and quick access to trial and appellate
court information. We have
a new web address too, that we hope will be easier for people to remember.
www.mncourts.gov And for you appellate
lawyers, earlier this year we began video-recording Supreme Court
oral arguments and making them available on our website. I must admit even I am amazed that in the first
month, 1,400 people viewed our oral arguments! All of these issues
I have addressed thus far — unification, performance measurement,
problem-solving courts and technology — are areas impacting the bar
that deal with the administrative side of the judiciary. But there is also one area of mutual concern
that relates to the adjudicative side of work. And that is the issue
of maintaining a fair and impartial judiciary, and like the other
areas I’ve touched on today, it too signals a whole new era for the
judiciary. Of course, we all acknowledge
that what is fair is often in the eyes of the beholder. Years ago while serving as a Navy JAG officer
in Japan, I was assigned to prosecute a brutal assault case. The defendant — an American sailor — was found
guilty and placed on administrative hold, restricted to the base,
awaiting return to the United States.
Also I served as the base legal officer and one day I received
a call from Naval Investigative Services.
They told me that they had heard a rumor that the defendant
had a gun in his personal locker and was intent on shooting someone. They requested permission — a warrant — to search
the locker and I told them “no”: that they had not provided sufficient
probable cause to permit the search.
They called me back a half hour later and advised that they
had heard another rumor: “The individual has a gun in his locker and
intends to shoot you.” I said,
“Well, that sounds like probable cause to me!” So, acknowledging that
we are all subject to our own experiences in determining what is appropriate
and fair, I turn first to the words of my colleague, Justice Alan
Page, who in speaking on the need for a fair and impartial judiciary,
reminds us that judges are to exercise their judgment, not their will,
in the adjudication of cases. Recently, there has
been much rhetoric suggesting a need to dramatically alter the judiciary. Here in Minnesota, our
century-old tradition of having nonpartisan judicial elections and
a nonpartisan judiciary has changed.
As a result of the White
rulings, we have amended our judicial code.
Judicial candidates can now seek and receive political party
endorsement, announce their personal views on disputed political,
social and legal issues and, with some limits, personally solicit
contributions for their campaigns. As mentioned, our Minnesota Supreme Court has
complied with these federal rulings and has revised our canons accordingly.
Thus, beginning in the election of 2006, a judicial candidate
can now seek and receive political party endorsement, announce their
personal views of disputed issues and, with some limits, personally
solicit money. The question
for us and for our fellow citizens is whether we will be satisfied
with the judicial system that will result. To see our future, we
need only look to places that already have partisan endorsement in
judicial races. In the 2004 election
year, judicial candidate fundraising set new records in nine states. These giant sums of
money included contributions from both political parties and scores
of special interest groups, some with names like “And for the Sake
of the Kids” — a West Virginia organization that was funded by the
$2.4 million contribution of a single business executive.
And we’ve heard about
the single Illinois Supreme Court race in 2004 which set a new $9.3
million fundraising record. Plaintiffs’
lawyers and the Democratic Party put millions behind the Democratic
candidate. Business interests and the GOP poured millions
into the other candidate’s campaign. The winning candidate
in the race described the amount of money spent on this campaign as
“obscene.” He was quoted as
saying: “how can people have faith in the system?” That’s a good question. And we are also seeing
broad attacks on the judiciary, generally. In Kansas and Missouri this year, state legislatures
reacted to a series of judicial decisions by proposing constitutional
amendments that would allow them to remove judges with whom they disagreed.
One chamber of the Kansas Legislature reduced court funding
by $3.7 million as “payback” for court decisions on school funding In South Dakota this
year, 40,000 citizens signed a petition supporting a constitutional
amendment that would create a grand jury to indict state judges for
disregarding “material facts” and “blocking the lawful conclusion
of a case.” So how do we — in Minnesota
— preserve a fair judicial system in the midst of all this agitation?
In the judiciary, we are reaching out across the state in venues
just like this one to talk to our fellow citizens and our colleagues
about the issue. And we are reaching
out to members of the bar for your help in educating the public about
what is at stake in this debate and what role the courts play. A 1999 survey showed
that four out of ten Minnesotans claimed to know “little or nothing”
about the courts.1 Clearly,
we can do a better job in explaining how the judicial branch protects
citizens’ rights and liberties, and how its nonmajoritarian
structure is the genius of democratic design.
One might not always
agree with court decisions, but we should also be cognizant of the
reality that if you regularly put the rule of law to a popular vote,
it would cease to exist. Michael Mullane, an Arkansas law professor summed this up nicely in
an essay for National Public Radio.
He said:
I want to thank the
Bar, including Sue Holden and Pat Kelly, for providing leadership
and working to raise awareness about the issue.
We look forward to continuing our partnership on behalf of
a fair and impartial judiciary You should also know
that a Citizens Commission, chaired by former Governor Al Quie,
is studying other ways of selecting judges beside our current contested
election method — ways that could prevent or at least minimize the
intrusion of politics into the judiciary in our state, like longer
terms, retention elections, or merit selection appointment with Senate
confirmation. Sue Holden, Pat Kelly and other key MSBA representatives
are members of the Citizens Commission, which will issue its findings
and recommendations around the end of the year. As former President
Woodrow Wilson put it, government “keeps its promises, or does not
keep them, in its courts. For
the individual, therefore, … the struggle for constitutional government is
a struggle for good laws, indeed, but also for intelligent, independent
and impartial courts.” This is the kind of
system that I ask for your help in maintaining.
Doing so will preserve not only our democratic principles and
our rights as citizens, but also the lessons the law has instilled
in us, as its stewards. Let me close this rather
serious discussion concerning the importance of fairness and impartiality
with a story from the North Country — a true story. An old and now retired 9th District judge —
John Spellacy — enjoyed telling the story
of his first jury trial. His
father was also an attorney and was providing a strong second chair
for this, his son’s first trial. Near
the close of his voir dire of the jury, John felt it necessary
to begin asking each member of the jury panel — individually — if
he or she could think of any reason why they could not be a fair and
impartial juror in the case. As
he began that same question with the fifth juror, he felt his father’s
elbow in his side and heard him whisper:
“Knock it off; we don’t want them so fair that we lose this
case.” Again, it has been an
honor to be with you this noon and to continue the tradition of speaking
to you about the state of our judiciary. Thank you. Notes RUSSELL A. ANDERSON
is Chief Justice of the Minnesota Supreme Court. He delivered this “State of the Judiciary” address
at the Minnesota State Bar Association Convention, June 22, 2006,
in Brainerd, Minnesota. |
