Spring 2020 Gavel 268650 SBAND Gavel Magazine_web | Page 9

SELECTION PROCESS FOR
CHIEF JUSTICE
HAS EVOLVED OVER TIME
MIKE HAGBURG
Attorney at Law
On Dec. 12, 2019, Jon J. Jensen won
appointment as chief justice after a vote by
the justices of the North Dakota Supreme
Court and the judges of the state’s district
courts. He succeeded Gerald W. VandeWalle
as chief justice on Jan. 1, becoming the 25th
person to serve in the position.
VandeWalle served the longest period of any
chief justice, 27 years. His predecessor, Ralph
J. Erickstad, served almost 20 years as chief.
Prior to Erickstad taking office in June 1973,
however, turnover in the chief position was
constant. Of the 22 people who preceded
Erickstad as chief, 10 served more than
once in the job and Justice Adolph M.
Christianson served three separate terms.
The reason for the chief justice merry-
go-round was that selection was based on
seniority. Section 92 of the original state
constitution stated that “[t]he judge having
the shortest term to serve, not holding his
office by election or appointment to fill a
vacancy, shall be chief justice.”
This system worked because Section 92
also required the terms of the justices be
staggered. In Oct. 1889, Guy C.H. Corliss,
Alfred Wallin, and Joseph M. Bartholomew
were elected as the first justices, with the
length of their terms determined by lot.
Justice Corliss received a three-year term and
consequently became the first chief justice.
He and the other original justices eventually
ended up all serving twice as chief because of
the seniority system.
When the Supreme Court was expanded to
five justices in 1910, however, three justices
ended up being elected to identical six
year terms. Anticipating the possibility of
having more than one justice with the same
seniority, the legislature enacted a statute in
1909 allowing the justices to select the chief
if no one was otherwise qualified under the
constitutional formula.
In the mid-1960s, there was a move to
amend the state constitution to provide for
selection of the chief justice as provided by
law. While this move failed, in 1967, the
legislature amended N.D.C.C. 27-02-01 to
provide for “appointment” of the chief justice
by “the judges of the supreme court and
district courts.” This is still the rule.
North Dakota is the only state that allows
such a broad range of judges to choose a
chief judge. In October 1967, the statutory
rule was applied for the first time and the
judges selected Obert C. Teigen as chief. In
1971, the judges named Alvin C. Strutz in
his place.
In 1976, the state constitution was amended
to provide that one of the justices of the
Supreme Court “shall be designated chief
justice in the manner provided by law.”
While N.D.C.C. 27-02-01 provides the
basic principles for appointment of the
chief justice, the Court, in 2019, amended
its administrative rules to provide a detailed
appointment procedure.
Under Administrative Rule 11, the chief ’s
term begins Jan. 1. The rule establishes a
deadline for justices to be included on the
ballot for chief, a procedure for balloting by
mail, and rules for opening and counting the
ballots. The state court administrator oversees
the appointment process.
Administrative Rule 11 also sets out the
process to be followed if there is a tie in the
balloting or no justice gains a majority. This
process was followed after the first round of
balloting in the selection of VandeWalle’s
successor. Three justices applied for the
position and none of them received a
majority of the votes cast. Consequently,
there was a second round of voting for
the top two candidates and Jensen won a
majority. He will serve a five-year term in
the office.
SPRING 2020
9