Chief Justice Steven Jensen addresses the South Dakota Legislature in Pierre on Jan. 11, 2023. (Joshua Haiar/South Dakota Searchlight)
South Dakotans would lose the right to elect judges under a proposal from lawmakers that the state’s chief justice addressed Wednesday during his State of the Judiciary speech.
Judges can rise to the bench by way of the ballot, but most do not.
Judicial elections are mandated by the state constitution, but they only happen every eight years. When a sitting circuit judge retires or vacates the bench between those elections, the governor appoints their replacement, picking from a list of candidates screened and recommended by the state’s Judicial Qualifications Commission.
Most of those appointed judges never see a challenger when election day comes. Just three contested judicial races took place last year, and only one included an incumbent.
On Wednesday, South Dakota Supreme Court Chief Justice Steven Jensen said the high court will confer with circuit judges and the Unified Judicial System (UJS) in the coming weeks as lawmakers consider a resolution that would ask voters in the 2024 general election to do away with contested judicial elections.
Jensen said the court “will be communicating further with the legislature” on the resolution, which is sponsored by Sen. Lee Schoenbeck, R-Watertown, and Rep. Will Mortenson, R-Pierre.
If lawmakers back the effort and voters approve the effort, all judicial elections would ask voters only if they’d like to keep or remove their local judges.
“This is the current process in the constitution for selecting and retaining South Dakota Supreme Court justices,” Jensen said. “The proposed amendment would provide for a parallel system to select circuit judges.”
The resolution on judicial elections was one of several highlights from Jensen’s speech to a joint session of the Legislature.
Also covered: the price of public defenders, access to rehabilitation programs for underage offenders, courthouse security and the importance of the bar exam.
Public defender payments
On public defense, the chief justice said, there’s a need to study ways to improve how counties are reimbursed.
Every criminal fine in the state carries a $50 surcharge, $7.50 of which is used to cover the cost of the private attorneys who contract as public defenders in 63 of South Dakota’s 66 counties.
That pot of money is the lone state funding source for the price of constitutionally mandated public defense, Jensen said, but it covers just 2-3% of the $21 million those counties pay in attorney fees each year.
Jensen asked lawmakers to authorize a study group to tackle efficiencies and funding for public defense.
“I have no doubt that if we roll up our sleeves we can develop a more cost-effective and efficient public defender system that will continue our state’s long tradition of guaranteeing the right to competent counsel in every case,” Jensen said.
Rehabilitation important to public safety
The chief justice stressed the value of existing work groups on courthouse security and rehabilitation.
The UJS Barriers Group first convened last year to address access to rehabilitation programs for juvenile offenders across the state. It has representatives from the UJS, as well as from the Governor’s Office, Department of Corrections, Department of Social Services and other agencies, all of which have ties to rehabilitation programs for non-violent young offenders.
Most adults in prison are between 18 and 25, and they are often involved in the system before they come of age. If the justice system can address issues with nonviolent offenders and drug users earlier on, he said, the ripple effects will improve public safety overall.
“The greater success we have in rehabilitating nonviolent young offenders, the less likely these offenders will be to gravitate toward gangs, drug dealing, and more serious criminal behavior that often accompanies these high-risk activities,” Jensen said.
On courthouse security, Jensen called for a continued expansion of county level committees to improve safety for judges, lawyers, employees and the public in courthouses.
Bar exam backed
On the bar exam, the chief justice pointed to a recently appointed committee formed in part to sidestep legislative efforts to ease entry into the legal profession.
Rep. Mary Fitzgerald, R-Deadwood, introduced a bill last session that would have offered a law license to all University of South Dakota Law School graduates without the need for a passing score on the bar exam. Fitzgerald has signaled that she plans to introduce a modified version of the bill this year, as well.
Bar exam detractors argue that the timed, multiple choice portion of the exam, which is the portion that causes most bar exam failures, is a poor measure of legal competence.
Jensen disagreed from the lectern on Wednesday. The study group will hear from experts with the National Council of Bar Examiners during its work sessions and confront some of the issues raised by backers of Fitzgerald’s proposals, he said, but the chief justice told the chamber that the bar exam is an important part of the licensure process in South Dakota.
It’s true that the passage rate for South Dakota law graduates dipped significantly for a few years in the last decade, but scores are once again above the national average.
“Some of the criticism of the bar examination is that it is too hard,” Jensen said. “Respectfully, the process to assess competence must be rigorous. Lawyers occupy unique positions of trust and responsibility. Clients place their confidence in lawyers to represent them in questions concerning their property, their liberty, and in the most serious criminal cases, their lives.”
EDITOR’S NOTE: This story and headline have been corrected to reflect the source of the resolution on contested judicial elections, as well as the South Dakota Supreme Court’s position on the resolution.
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