Kapsner and her husband , attorney John C . Kapsner , in Switzerland , October 2017 .
The North Dakota Supreme Court during former Justice Kapsner ’ s tenure .
arguments . “ Those lawyers who had done Moot Court in law school are prepared ,” she continues . “ But mostly , it is the attitude the attorneys come with . If they come with the expectation to have a discussion on problems with the court , they will be successful . If they come with the attitude there are no problems , they will not have a good oral argument .”
“ I don ’ t equate a winning argument with a good oralist ,” she continues . “ You can still argue well a case that you will lose .”
She encourages lawyers to remember on whose behalf they are arguing before the court . “ Lawyers should always remember they are advocates for their clients . They should try to do it as aggressively as they can while maintaining their own honesty .”
Cases with Impact
Kapsner served in an era of very little turnover on the Supreme Court . “ We were extraordinarily stable and were a long-serving court ,” she notes of the years she spent serving with current Chief Justice Gerald W . VandeWalle and Justice Daniel J . Crothers , retired Justice Mary Muehlen Maring , retired Justice William A . Neumann , and retired Justice Dale V . Sandstrom . “ Now is a time of great turnover in the North Dakota Supreme Court and district courts .”
The cases which had a significant impact on her , notes Kapsner , were the sex offender commitment cases . “ These are a stream of cases I find troubling . Individuals are losing their freedom on a prediction they are going to do something against the law at some point in time which is not imminent ,” Kapsner notes , adding she wrote a number of dissents related to these cases . “ Often , in my opinion , there was insufficient evidence to support a commitment . The evidence was an actuarial test , which predicts how groups will act but does not assess an individual .”
Family law cases also challenged Kapsner . “ It was difficult when a child doesn ’ t have a fit parent in either parent ,” she notes . “ You don ’ t overturn many of those cases , however , because the district judge saw the people , heard the evidence , and is in a better position to make the decisions .”
“ An always interesting and evolving area of the law is the Fourth Amendment relating to searches ,” she continues . “ With technology , people have more ways to store property and information and to retrieve it , and it is a difficult question to decide when and how the government can have access to it .”
Kapsner noted , while practicing law was not easy , it was something she enjoyed . “ I think the practice of law is very difficult , but I loved litigation and I loved being an appellate judge more . My favorite part of the job was the discussion of complicated cases with my colleagues .”
Plans for the Future
Kapsner continues to serve as a surrogate judge for the North Dakota Supreme Court , and her husband remains a mentor at his law office , but they have also enjoyed the additional time now available , she says . “ We travel every minute we can . I want to see as much of the world as I can , do as much stitching and quilting as I can , and read all those books that piled up for ‘ someday .’”
The New Justices of the North Dakota Supreme Court
Justice Jerod E . Tufte
Justice Jerod E . Tufte was elected to the North Dakota Supreme Court in November 2016 and his investiture ceremony was held Jan . 6 . Tufte ’ s election to the Supreme Court filled a vacancy created by
Justice Tufte takes the oath of office from Chief Justice VandeWalle .
10 THE GAVEL