Sally Holewa says North Dakota’s South Central Judicial District needs three bodies and one toe.
“They definitely have the biggest overall shortage as far as judicial bodies, that’s for sure,” the state court administrator said.
With a shortage of 3.06 judicial officers, the South Central Judicial District encompassing Burleigh, Morton and seven other counties has the most need for district judges and judicial referees in the state. A 2017 weighted caseload study analyzed each of North Dakota’s eight judicial districts, with varied results for each, but a general shortage suggested across the state.
Comprised of a metro area, rural counties, the state capital and penitentiary amid a growing population, the South Central Judicial District has had its plate full for years with steadily rising case numbers. Last year, the district met with 831 criminal cases from the Dakota Access protests and a statewide slash of 13 percent to court staff from budget cuts.
“I don’t imagine that somehow three more judges are going to be here, and we are managing the caseload,” South Central District Presiding Judge Gail Hagerty said. “It requires that we all work together. We have to be really smart about the way we do things.”
While some districts are “spot on” for judicial need, Holewa said the South Central district has had help from outside judges to take on the load, particularly the protest cases.
“It’s a North Dakota method, right? Everybody pitches in when there’s work to be done,” she said.
Hagerty said calendars drive judges' time, from their monthly meetings, to committed travel to rural counties, to courtroom space to trial weeks, all to handle the varied work.
“We all have to work smart and make really good use of our time,” she said.
Court staff, retired and other sitting judges have helped meet the caseload, especially in the protest cases. Holewa said flurries of deadlines and other time constraints make added pressure for all.
“(The protest cases) are playing a big role because it takes a lot of judicial time because there’s a lot of cases coming in in a short period of time, but it’s a temporary role — I’m not saying it’s short-term but it’s temporary,” Holewa said. “They’re going to eventually go away, but we build that into our weighted caseload, too.”
While Hagerty said traveling to smaller counties for court dates may not be the most efficient use of time, she said judges are “committed” to the rural counties, though Burleigh, Morton, McLean and Mercer counties carry about 95 percent of the South Central district caseload.
"You lose efficiency when you have a lot of people (traveling),” she said Wednesday after returning to Bismarck from Stanton. “I spent about three hours today on the road with a court reporter traveling with me.”
With a shortage in judicial officers, cases can take longer to be heard and resolved, according to Tony Weiler, executive director of the State Bar Association of North Dakota.
Bismarck attorney Zach Pelham commended the South Central district judges for their efficiency, adding that he opts to schedule court dates early to help move things along.
“Really from my clients’ perspective, I want to resolve a case as efficiently as possible, and in doing so, I want to have a schedule in place so that schedule is followed so my client has an idea of when (their) case is going to be resolved,” said Pelham, a civil practitioner who handles cases around the state.
Weiler also said arranging a court date depends on what the case is about and what's needed for it.
“If you need a one-hour hearing, that might be a lot easier to get than if the case is complex and if you need a weeklong trial,” he said. "And I know they're scheduling out into 2019 already."
Holewa said the Northwest Judicial District has seen more complex cases despite a drop in filings, such as misdemeanors, after the height of the Bakken oil boom.
“You have broken contracts. You have broken leases. You have buildings that were started but not finished, partners walking away,” she said. “So all of those things take more judge time.”
Weighted according to time and judge activity, Holewa said the 2017 caseload study doesn’t look at raw case numbers: “What it does is it says, 'You need judges to be more active in certain types of cases than others.'”
Chief Justice Gerald VandeWalle, of the North Dakota Supreme Court, said the study is only a tool, but “we are short. There’s no two ways about it.”
“The easy answer is we just get more judges but that’s probably not going to happen unless the fiscal situation turns around,” he said.
Holewa and Hagerty said only the Legislature can add judgeships. Since 1995, there’s always been some shortage, according to Holewa. That’s when legislation combined county and district judgeships, making 42 positions that began increasing from 2009 to 2015 to the 51 district judgeships around the state today.
“I wish I had a good answer for the shortage,” VandeWalle said. “It’s easy to say ‘Just give us more people.’ I’ve been around so long that I understand the legislative problem. Everyone needs more people."
About 35 court personnel were cut from around the state last year, said VandeWalle, adding that retired judges have helped meet the caseload from the pipeline protests.
Holewa said the court system can’t speak for the Legislature, but “we put our needs out there. We hope they can be accommodated.”
Sen. Diane Larson, R-Bismarck, vice chair of the Senate Judiciary Committee, said the issue is a complex one, but added she trusts VandeWalle and the state Supreme Court's assessment of court needs.
"Our Supreme Court is, pardon the pun, very judicious and so they are careful to know what's ideal to what we should have and also balance that with what our resources are that can accommodate it," Larson said.