Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

The State of the Judiciary: 2009 – Building a 21st Century Judiciary

The Minnesota judiciary today finds itself in circumstances unlike those even a few years ago and courts are striving to do their work more effectively and efficiently despite limited resources and increased demand for services. Working in partnership with the bar and other entities, the Judicial Branch is rising to meet a variety of challenges, including to preserve an accessible, fair and impartial judiciary.


Thank you for that kind introduction. It is great to be here with you in Duluth today. I have been coming to these conventions since the early 1980s. I remember fishing from the shore in Duluth one year, slipping on some rocks and going into Superior up to my waist. Not a good thing to do most days, but particularly in early June. Those of you who know Judge John Smith or hail from the Park Rapids area may know that I have succumbed to the watery depths not once, but twice now in pursuit of the elusive “whopper.” There was also an incident on Potato Lake in addition to Lake Superior. Don’t worry—nothing was hurt except my pride, and I learned a valuable lesson—never fish with a reporter and a judge with a camera! Proving that good news travels fast, but humiliation travels at the speed of light, the Potato Lake dowsing even ended up in Outdoor Life. So if you are keeping score, that is “Fish – 2” and “Eric Magnuson – greatly humbled.”

It is good to be among so many of my colleagues from the practice of law. During my years as a practitioner, I participated actively in the State Bar Association, starting with the Young Lawyer Section when I was a young lawyer. Later, I cochaired the Pro Se Implementation Task Force and chaired the Court Rules Committee, and the Court of Appeals Task Force. I served in the Assembly during my time as president of the Minnesota Defense Lawyers Association. In other words, I feel at home with you here today.

I have been chief justice for just over a year. If time flies when you are having fun and one of the high points of your year was deciding if a vote for Lizard People counts, you have some idea of how long this year seemed to me.

I often get asked if the job is turning out to be what I thought it would. The simple answer is: No. When I accepted the appointment, I thought I had a pretty good idea of my duties, including writing opinions, advocating for change in how we select judges in Minnesota, and dealing with administrative matters and funding issues.

After all, I had clerked for one chief justice, Robert Sheran, and worked for and been mentored by another, Doug Amdahl. Plus, I had appeared before the supreme court dozens of times as an appellate lawyer.

But as I now appreciate, my mentors lived and worked in a different world, and at a different job, largely because they served at a time when the courts were a loose confederation of county-based trial courts and state-funded appellate courts operating in a pre-digital environment. The State Court Administrator’s Office in those days had limited duties and only a few employees, and the supreme court focused mostly on hearing appeals and periodically updating court rules.

Today, the Minnesota Judicial Branch is a fully state-funded, unified system of trial and appellate courts whose administration is overseen by the Judicial Council and a state court administration of more than 170 employees, many of whom are dedicated to maintaining the technology that underpins today’s court system. The chief justice serves as the chairman of the board of this $300 million a year business with 2,800 employees, and it turns out, that is a pretty big job all by itself.

Furthermore, the environment in which the courts function has changed dramatically. Demographic shifts, funding challenges, increased caseloads and technology advances put enormous pressure on the court system to keep pace with demands.

One of the most important things I have learned in my first year on the job is that today—in 2009—the job of the chief justice is not just to write opinions and manage the administrative issues of the judiciary. It is nothing less than to provide leadership in building a judiciary for the 21st century. 

So how are we doing at that task? What is the state of Minnesota’s judiciary today?

It is in a state of great flux. On one hand, we have incredible strengths. We have very high levels of trust and confidence from the people we serve. We have some of the most talented and hard-working judges and court staff in the country. We have a high-functioning governance system—the Judicial Council—and have made enormous strides in beginning to bring the courts’ antiquated paper system into a more seamless, electronic network. You have heard many of these strengths recounted at previous “State of the Judiciary” addresses, and for good reason—they are important.

But the world in which the judiciary operates has changed, even since my appearance on this stage last year as a brand new chief justice. The economy, credit collapse and state budget woes have all altered the way in which we build the judiciary of the 21st century.

Let me give you one example: Now when we recount our many strengths, citizens—and sometimes even legislators—ask whether we really need to excel. In other words, in a day and age where everyone is making financial sacrifices, does Minnesota really need a superb court system? Isn’t mediocre perhaps adequate, good enough?

The short, simple and blunt answer is: No. A mediocre court system ultimately costs more to operate, especially when staff reductions and case backlogs cause greater and greater delays in the administration of justice. Unlike a business that just cuts back on production, we have a constitutional obligation to provide justice for all who come through our courthouse doors. The cost of rolling back the courts from “Judiciary 4.0” to “Judiciary 1.0”—especially in the face of increased pressures and dwindling resources—is enormous.

To be sure, one of our greatest challenges in this era of cost-cutting is what I call the “clarity of naiveté.” The less you know about something, the simpler the answers seem—it is just human nature. Someone hearing about our budget challenges at first may be tempted to say, “well, why don’t you just cut X.” Once you know why something has come to be, the picture is more complex. Instead of asking, “why don’t we just cut X,” I have found it more valuable to ask, “why do we do this the way we do?” and then, “how can we do this better?”

I have spent much of this first year helping people understand that the system that serves citizens best is the system that demonstrates efficiency, effectiveness and accountability. If there is one thought that you take away from my remarks today, I hope it will be that we are engaged like never before on the question of “how can we do this better?”

Answering that question—successfully—is the only way we will achieve real efficiency, effectiveness and accountability, and it is a solid foundation on which to build the judiciary of the 21st century.

As we all know, the judiciary cannot function without resources. Let me give you a brief overview of where things stand following the most recent legislative session.

Following several years of shortfalls and underfunding, at the beginning of the session, we were operating 9 percent short-staffed, we were closing public counters, delaying cases, and forced to cut juror per diem. Then came the prospect of a 10 percent base cut. With personnel costs comprising 85 percent of our budget, we quickly calculated that a base reduction of 10 percent would mean cutting another 400-500 employees and we would be unable to process 21 of 51 different case types, based on their priority.

Most out-of-custody adult and juvenile misdemeanors would not be processed. Offenses like shoplifting, trespassing, worthless checks, and underage drinking would be in the low-priority category, to be addressed only when time allowed.

Conciliation court, consumer credit, and property-related claims would just sit in someone’s in-box waiting for action. The same would be true with tens of thousands of traffic and ordinance violations. And civil cases, always subordinate to the constitutional requirement of speedy trials in criminal cases, would be even further delayed.

That projection immediately raised concerns with legislators and with the governor. The question was put to me more than once whether the courts would not be abdicating their constitutional responsibilities if they simply stopped handling large numbers of cases. My response was pretty simple—if we do not have enough people, we cannot do all the work. If we do not have enough money, we will not have enough people. And then I asked: Whose constitutional responsibility is it to fund the justice system? It was an argument that seemed to get some traction.

We undertook a statewide campaign that was, in many ways, relentless. But it worked, because I got a lot of help.

The State Bar Association under the able leadership of Mike Ford played a huge role in addressing the legislature and the governor, and in rallying its members to contact their local legislators. Jim Backstrom and his colleagues from the County Attorneys Association, John Stuart and Kevin Kajer from the State Public Defenders Office, and Jerry Lane and Gary Hird from the Legal Services Coalition all expended tremendous time and energy in the effort.

Local bar organizations, including the Hennepin County Bar Association under the leadership of Mary Vasaly, stepped up and joined in the campaign. Our judges were also tireless in their service, including Kathleen Gearin from the 2nd Judicial District, David Knutson from the 1st and Chuck Porter from the 4th, who also serves as president of the District Judges Association. And we were joined by law enforcement representatives, as well as members of local government and labor organizations.

In the end—thanks to all that work by all those people and many more—our funding was not cut nearly as much as we had feared. The final budget bill, which the governor signed and is now law, provided for a roughly 1 percent overall cut to the courts, a 3 percent cut for the Board of Public Defense (which can be offset if the supreme court agrees to raise attorney registration fees) and a .8 percent reduction for civil legal services.

Our ability to avoid much deeper cuts was not without a price, however. As part of the effort to close the revenue gap, significantly increased fees were imposed on a wide variety of cases. As a result, it is going to cost more to go to court and to practice law in Minnesota. This is not what we wanted, and many would say that this is not the right way to fund the justice system. However, it was a tough reality.

We must avoid the temptation to think our comparatively small funding cut was a great success. It is better news than the alternative and I am proud of this considerable achievement, but we needed a $24 million increase just to keep the courts functioning at the same, reduced level that we have been over the last year.

So in light of this financial landscape, what is next in building the 21st century court system?

We are trying to better match our workload to our staff, by moving both work and people across district and county lines. For example, Rice County now processes conciliation court filings from Olmsted County and this kind of work sharing is happening across the state. The good news is that we are making better use of resources as a result.

At the same time, we are moving to equalize funding allocations statewide. We call this “staffing to the most efficient norm.” It has been a very hard process. It requires concentrating work so that we can be more efficient. Our studies showed that while Hennepin and Ramsey counties, for example, can achieve a high degree of efficiency because of a high volume of work, it is difficult to achieve that same level of efficiency in smaller courts. Nonetheless, our smaller courts are being asked to do more with fewer people, and the result is likely to be delays in case processing and document filing, as well as in issuing court orders or warrants.

We have flattened the management structure to further reduce costs. Fifty percent of our court administrators now oversee more than one county. Two of our ten judicial districts now share an administrator. And we have made many other supervisory cuts as well.

We have instituted a statewide fine collection system and sent our older unpaid fines and fees to a private collection company. As a result, in the last three years we have increased our revenue collected by $23 million. That is money that cities and the state have used to fund the justice system and other parts of state and local government.

Given our budget shortfall and shortage of judges, we likely will be reaching out to the bar to ask lawyers to volunteer to serve as referees to hear conciliation and perhaps other minor civil cases on a pro bono basis. This is now being done in Ramsey County and has proven to be a positive experience for the court and the volunteer lawyers. This proposal is being studied by a Judicial Council committee chaired by Brown County Judge John Rodenberg, with recommendations expected by the end of this year.

Judge Rodenberg’s committee is also studying our current judicial district structure to determine if changes are warranted, including whether our districts should be restructured to achieve greater administrative and cost efficiency, and whether there should be changes to our judge-staffing configurations or assignment of duties.

Technology will play a central role as we build a court system that can function effectively in the 21st century.

We have completed the installation of MNCIS, our state-of-the-art case-information system. Its web-based platform will open up many new opportunities for faster, more accurate and more efficient sharing of criminal justice information between the courts, our justice partners, and the public.

We are moving forward with three projects designed to reduce work for court staff through the electronic transfer of case information.

  • E-Citations will allow police to enter citations into our case-management system directly from computer terminals in their squad cars or their records management system. Many locations are already using the technology, including law enforcement agencies in Hennepin, Ramsey and Anoka.
  • E-Complaint enables prosecutors to electronically file complaints. Carver, Hennepin, Ramsey, Olmsted, St. Louis, Rice, Mower and Freeborn counties are already using the system. Kandiyohi, Houston, Steele and Waseca counties are in the planning stages.
  • E-Charging is underway with a successful pilot project in place at the Virginia Courthouse since March 19, and is used in filing felonies, gross misdemeanors, and statutory misdemeanors. St. Louis County courthouses in Hibbing and Duluth are expected to go online in June with E-Charging and will include branches of the county sheriff’s office, as well as police departments throughout the county. Olmsted, Carver and Kandiyohi are expected to be using E-Charging this summer. I am pleased to say that E-Filing of civil actions is also on the horizon, scheduled for implementation in the 2012-13 biennium.

One of our key initiatives right now is to centralize and automate as much as possible the handling of the 1.2 million payable citations our courts process each year. Instead of processing those tickets and fines in 87 separate counties, they will be handled by a single processing unit, with most payments made online or over the phone.

At the same time, we are studying the possibility of centralizing the handling of some of our lower-level and specialized hearings before subordinate judicial officers instead of judges, perhaps using video conferencing technology or ITV. We are doing some of that now with rural child support magistrate hearings with great success, so we know it can be done effectively.

Earlier this month, the supreme court established a task force to be led by Judge Chuck Porter to study and recommend changes to the Rules of Criminal Procedure that might, among other ideas, expand the use of ITV in criminal cases to reduce law-enforcement transport costs and cut the time for many of the participants.

Recognizing that budget constraints will be in the picture for the foreseeable future, the Judicial Branch is redoubling its efforts to answer the question, “how can we do this better?” We have found that the quality of the answer often depends on who helps us tackle the question. Our problems are rarely ever suffered or solved in isolation; we need your help—our justice partners and the bar.

We have learned from our successes with the Children’s Justice Initiative and our drug court efforts that partnerships across disciplines are inherently better at problem-solving than those partners acting alone.

Last fall, I convened the Criminal Justice Forum, a collaborative gathering of all the players in the criminal justice system (including prosecutors, defense lawyers—both public and private—law enforcement, corrections and local government officials), to brainstorm about how we might change the criminal justice system in large and small ways to make it work better. Not only did we get some concrete positive ideas, but the fact that those diverse parties were willing to come together and work collaboratively impressed both the legislature and the governor. In fact, the legislature specifically urged us to continue the effort, and to expand it to the area of civil litigation, a task I am working on now.

You can expect to see more of these multidisciplinary collaborations—and be invited to join them—in the months and years ahead. They have produced nation-leading innovations, measurably improved performance, and more satisfying work for our employees. This is government at its best, working across boundaries, breaking down barriers and implementing innovative approaches to better serve citizens. As we build the judiciary of the 21st century, these partnerships will be even more central to our operations and success.

The court system in the years ahead must be more accessible than ever for our citizens. We have taken major strides on this front in the last two years. Case information for both trial and appellate courts is now available through our website. In its first year, this innovation resulted in more than 1 million case searches—searches that no longer require a trip to the courthouse. Next month we will unveil a new website that will make court information even more useful and more accessible. And later this summer, we will introduce a new tool that will allow people summoned for jury duty to respond online, saving mailing costs and staff time.

Our Virtual Self-Help Center on our website continues to attract large numbers of visitors, averaging more than 30,000 visits a month. Every courthouse is now equipped with a computer work station where the public can access the Self-Help Center, and each workstation includes a telephone that will connect the user to support staff during limited hours.

We have allowed cameras in appellate courts for many years now, and provide a video archive of supreme court oral arguments on our website. Although more controversial, we are investigating the greater use of cameras in trial courts. The broadcasting and webcasting of the Senate election trial was favorably received by the public and enhanced the credibility of the judicial process. Later this year, a supreme court committee will recommend a pilot program intended to explore the possible consequences of greater camera access to district courtrooms. The order for the pilot project includes a requirement for a study to determine the impact on witnesses and parties that cameras may have, something I know many prosecutors, defense lawyers and victims advocates are concerned about.  We do not know where that pilot will lead us, but we are taking the right step in at least exploring a new direction.

Impartial Judiciary
Finally, in the midst of these enormous administrative challenges, we must remember that even if our 21st century court system is efficient, accessible, collaborative and technologically advanced, it will fail in its core mission if it is not viewed as fair and impartial.

We have had a recent reminder that our current way of selecting judges in Minnesota is burdened with the risk of eroding public confidence in the fairness of our courts.

Earlier this month the United States Supreme Court ruled that the West Virginia Supreme Court chief justice must recuse himself from a case involving a company whose CEO had contributed more than $3 million to the effort to elect the justice. The justice had refused to step down in the case.

The United States Supreme Court said: “Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when—without the other parties’ consent—a man chooses the judge in his own case.”

But we do not have to look to the East Coast for evidence of this threat to public trust and confidence in Minnesota’s courts. Wisconsin has had two extremely expensive and highly contentious campaigns for supreme court seats in the past four years, complete with negative ads, charges of ethical violations against the candidates, and ugly name-calling. Ohio, Michigan and Illinois have been through similar elections in recent years. The effect of every one of those elections is to damage the credibility of the judiciary as an increasingly cynical public views judicial elections as similar to highly partisan legislative and executive branch elections. Even judges in those states concede that not only does the public think court decisions are affected by campaign contributions, but the judges themselves believe that campaign-induced bias enters into judicial decisions.

A proposal to change the way we select judges is pending in the Minnesota Legislature. It would preserve the right of voters to remove a judge they feel is not worthy of the robe, while minimizing the influence of campaign contributions. I supported retention elections with public judicial-performance evaluation at this convention last year. I believe even more strongly today such a constitutional amendment should be put to the voters for their decision next year.

Because this is not all about any individual judge, or any single election. It is about providing that the process we use to evaluate and retain our judges ensures competence, dedication, high performance, and objectivity. No system is perfect, but retention elections coupled with public performance evaluation of our judges will help preserve the impartial and fair judiciary that Minnesotans currently enjoy and make it less likely that bitter, expensive, and partisan judicial elections will become the norm here as they have elsewhere.

It will take great effort to achieve these goals, and to overcome the opposition of those who are reluctant to change how we select our judges.

To meet this challenge, I ask the Minnesota State Bar Association and its individual members, as well as the public and the judges of our state, to support these efforts to assure the preservation of Minnesota’s fair and impartial judiciary just as you all worked this past year to assure adequate funding of the justice system. We are at a critical juncture in the history of our judicial system. We cannot allow overt and damaging politicization of the judiciary to happen. The best way to achieve that end is to address the issue before it becomes in Minnesota the huge problem it has been elsewhere.

These are important times not just for the courts, the legal profession and your clients, but for our country as a whole. We need to keep in mind what one scholar has observed, “history never feels like history when you’re living through it.”1 We are called to make history every day, but some days are more challenging than others.

But even with the many challenges ahead of us, I see success, not failure, in our future. Despite the challenges we have experienced over the last year, the Minnesota Judicial Branch is healthy and has the support of the public and an active and productive Minnesota State Bar Association.

So despite the obstacles and the unknowns, and after a fairly tumultuous first full year as chief justice, I leave you with two thoughts: first, confidence in the future and the people who will help us secure it, and second, and equally important, an overwhelming sense of gratitude. Gratitude for my able and gifted colleagues on the supreme court, the court of appeals, and the district courts. Gratitude for incredible court staff throughout the state who care so deeply and personally about the quality of their public service to Minnesotans. Gratitude to the legislators and governor and to the citizens of Minnesota, who made the justice system a priority in challenging times. And gratitude for our strong and lasting friendship with a bar that is second to none.

In closing, I would like to thank the Bar Association leadership and members for your critical support in the last legislative session.

1 John W. Gardner (1912 – ), quoted by Bill Moyers.

THE HON. ERIC MAGNUSON is chief justice of the Minnesota Supreme Court. He delivered these remarks at the annual convention of the Minnesota State Bar Association, June 26, 2009, in Duluth, Minnesota.

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