Interview with Chief Justice Gerald W. VandeWalle

Chief Justice Gerald W. VandeWalle of the North Dakota Supreme Court, currently serves as the chair of the Board of Directors of the National Center for State Courts, and as President of the Conference of Chief Justices.

_Q:You are both chair of the Board of Directors of the National Center for State Courts and President of the Conference of Chief Justices. How do these jobs mesh, and do they have a common mission?

_A: The Conference of Chief Justices (CCJ) is responsible for the establishment of the National Center for State Courts (NCSC). The NCSC is the secretariat for the CCJ, along with a lot of other judicially related organizations, although the mission of the NCSC exceeds that of the CCJ. I would describe it somewhat as CCJ being the policy maker and the NCSC being the execution arm of that policy. Judiciary.

_Q:In what areas do you, as a state court justice, interact with the federal courts, and with federal judges? What is your view of the relationship between state and federal courts, and state and federal judges? How could this relationship be improved?

_A:How state and federal courts interact probably depends on the state. From a formal standpoint, we invite federal judges to attend the CCJ meetings. They are usually judges who serve on the Judicial Conference Committee on Federal-State Jurisdiction. Occasionally, we invite other federal judges, particularly if they have areas of expertise on which we want to draw. They've been very gracious about helping us. Each of the jurisdictions also may have their own particular organization where the federal judges and state judges meet. We don't have one in North Dakota because we only have two district court judges and I see one of the judges in church every Sunday. If we have a problem, it's simple to pick up the telephone.

Generally, I think the relationship between state and federal courts is congenial, but I'm not going to tell you it is without problems. We deal with those problems in the Judicial Conference Federal-State Jurisdiction Committee, on which I serve. The issues concerning jurisdiction and the federalization of certain actions do create some tension between the courts. I expect some state judges take the federalization very easily, while others do not. I'm not sure some of the steps Congress took concerning habeas corpus were done in deference to state courts. But I think some of those steps ended up requiring more deference to state courts than perhaps the federal courts had been showing prior to that time.

We had a Federal-State Jurisdiction Committee meeting in June and the issue of class actions came up. One of the federal committees is looking at doing something about class action cases by a change in the federal rules. There's an issue whether or not they have the authority to do it. My thought is, as far as the relationship between the federal and state courts is concerned, it is one thing for Congress to step in and say "this is what's going to happen," but it's another for federal judges to propose a rule that in fact preempts state action. It's just a method of procedure, but—and this is my personal point of view—it is less offensive if it comes from Congress than if a federal judge says, "we're going to preempt you."

_Q:How has your membership on the Judicial Conference Committee on Federal-State Jurisdiction influenced your approach to, or view of, state court issues?

_A:I love my membership on the Committee; it is wonderful. It broadened my view considerably of the issues. I must admit I had looked at federal-state issues primarily through the eyes of a state judge. Now I've been exposed to the federal side of some of issues, and it's an eye-opener to me. I don't know if I always agree with federal judges, but it certainly has increased my understanding of their positions, and the workings of the federal Judiciary as far as their committee system—which is very impressive—is concerned. Yes, I have thoroughly enjoyed that assignment.

_Q:All but two of the state courts allow cameras in their courtrooms. The federal district courts, as you know, do not. Has the presence of cameras in state courts been a benefit?

_A:We allowed cameras in our courtroom shortly after I came on the North Dakota Supreme Court. We allowed them first in the Supreme Court and then into our trial courts, and we really have not had any problems. The cameras don't come anymore. By and large, it's the forbidden fruit _ if they can't be in the courtroom, they want to.

Now, I know they are going to be there for the sensational cases, and that may be more of a problem in federal courts than it is in state courts. I'm not convinced of that, but it may be. Overall, I think that the cameras have demystified the process.

From talking with people I realize they are formulating their opinions of how courts operate based on all the court TV programs. I'm not a TV watcher, but I've watched a couple programs on occasion, and some of them are horrible. They may be entertaining. But it's like saying a wedding is beautiful and then showing the bride and groom smashing the cake in one another's faces. It simply gives the wrong impression.

I don't think judicial proceedings are entertainment per se. So what do you want people to see on TV? The actual proceeding in its' entirety or entertainment?

_Q:Following the 1999 Conference on Public Trust and Confidence, the CCJ and the NCSC produced a National Action Plan. How have you implemented the plan. What, do you feel, is the current state of public trust and confidence in the courts?

_A:In my dark moments, I think that for every step forward we make in public trust and confidence, we take two steps back. There certainly are things that we need to be doing, and we are doing, in the line of public trust and confidence. We have a lot of work to do in this regard, partly because we assumed our system was so good it would just continue to operate. And it doesn't. Courts in particular rely on public trust and confidence.

Since the national conference, the level of activity and awareness of what we need to be doing in every state has increased greatly. The conference focused on a lot of issues that we've had to deal with, and we've put up a website that talks about what's going on in the various states and things that are happening. The CCJ has a committee that continues to work on this.

_Q:The state judicial systems have been swamped by cases, and there are increasing demands. How are the state courts coping—and do any of these mechanisms translate to the federal court system, where caseloads also are on the increase?

_A:Some things we've learned from the federal Judiciary, such as the federal rules of civil procedure and criminal procedure. In my state we have adopted these rules as well as the federal rules of evidence, and many other jurisdictions have, too, either in the same or
essentially the same form. We also picked up on case-management techniques that the federal Judiciary already was using.

I don't know whether the places have switched, but the state courts now may be the laboratory for innovation in handling increasing caseloads as well as other matters. Specialty courts dealing primarily with business issues are being developed by states to handle some of the more complex matters, more rapidly. I think we're going to see more specialty courts dealing with such matters as technology, for example.

_Q:Increasingly, legislation proposed in Congress has had the effect of bringing cases that were traditionally under the jurisdiction of state courts into federal courts. In the eyes of the state courts, is this federalization necessary?

_A:I think there is a tendency to federalize. It may be justified in some instances; in other instances I don't believe it is. I don't have a big problem when Congress creates a cause of action that didn't exist before and says these cases are going to be tried in federal court. I think it's much more problematic when all of a sudden Congress says—and class action suits are an example—that cases heretofore tried in state courts now are going to be tried in federal courts. I'm not going to tell you there are not problems in some states, with such things as class action lawsuits, but I don't know if it justifies federalizing everything.

_Q:In the press lately there have been a number of stories on people exonerated by post-conviction forensic DNA testing. How are the state courts responding? Should the federal government set standards for state courts in this area?

_A:This is a problem that I saw divide federal and state judges on the Federal State Jurisdiction Committee. I know there are federal judges who feel very, very strongly that DNA testing standards and requirements have to be in place. On DNA testing, and I'm really speaking for myself, it becomes more of an issue of funding—do we have the money to set up the DNA labs, to take all the samples every time someone is arrested, to keep all the samples for the number of years that we are supposed to keep them? I expect some states simply do not have the financial resources to meet what some of the federal requirements might be.

I think the bigger issue may arise with regard to standards for competency for counsel. I expect most states that have a death penalty believe they are taking steps to assure competent counsel, and they take some offense to some federal agency determining what the standards are going to be in state courts.

_Q: Are there any comments you'd like to add?

_A:Yes. I think that we have so many problems in common with federal judges that we ought to be working more with one another. In the past I've attended our 8^th Circuit conference, to which Chief Judge Wollman has graciously invited me. I've urged my colleagues to go when they are invited because I think the conferences are, first of all, a wonderful opportunity to get to know federal judges, but secondly, it gives you an insight into some of their issues. Although we do share so much in common, there is so much we don't know about one another.