Port: North Dakota has got to start paying its judges more

"North Dakota's population has grown more than 20% since 1990, yet we have fewer judges on the bench today then we did back then. If we want good judges, we have to start paying more."

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North Dakota Chief Justice Jon Jensen delivers his first State of the Judiciary address on the inaugural day of the 2021 Legislative Session on Tuesday, Jan. 5, 2021, in Bismarck.
Special to The Forum

MINOT, N.D. — In his State of the Judiciary address to state lawmakers earlier this month, Justice Jon Jensen, chief of North Dakota's Supreme Court, argued in favor of a pay increase for the state's judges.

He should get it.

His case for the pay raises? It's math, and it's compelling.

While we're paying for fewer judges, they're doing more work. Our courts, in their most recent annual report, saw approximately 159,000 new cases, and 21,000 re-opened cases. Those numbers are growing, yet fewer judges are on the bench than 30 years ago when our state's population was 21% less.

"Every one of our districts are handling more cases and handling the caseload with less judicial officers than were in the judicial branch in 1990," Jensen told lawmakers .


Regarding our courts, the taxpayers are getting bang for their buck.

Now, to be clear, it's not like judicial salaries have been stagnating. They've risen steadily, despite a period of stagnation during the budget shortfalls that greeted Gov. Doug Burgum upon taking office. But the rise has been relatively slow — just about 8% over the last five years — and the pay level is not attracting as many candidates for the bench as in years past.

In North Dakota, the judges are ostensibly elected, including those sitting on the state Supreme Court. I say "ostensibly" because, more often than not, those elections are not competitive. "In the past five years we have had several open judgeships filled by election with only one candidate on the ballot," Jensen said in his address.

PHOTO: ND Supreme Court Chief Justice Jon Jensen
North Dakota Supreme Court Chief Justice Jon Jensen.
(Forum News Service file photo)

The unfortunate trend has been toward judicial positions being filled through a gubernatorial appointment instead of elections. Judges often step down before their terms are up, necessitating an appointment through a too-cozy process where, as I noted in a previous column , who you know matters a great deal.

Of the five current members of our state Supreme Court, only one was elected first. The rest were appointed.

Yet even the appointment process has seen its pool of applicants dry up. "Vacancies filled by the Governor’s Office used to routinely have a dozen or more candidates, many from private practice," Jensen told lawmakers . "Now, some positions attract just enough applicants to send options to the Governor’s Office for selection."

Pay is the problem. Judges are lawyers, first, and I don't think it will come as a surprise to you, dear reader, that good lawyers can make a lot of money in the private sector.

According to a report from the National Center for State Courts, North Dakota's Supreme Court salaries rank 40th in the nation, even after adjustments for cost of living. Pay for district court judges ranks 41st.


Good lawyers in North Dakota can make a lot more money working for state government outside the judicial branch. "Judges have fallen behind other state positions. Judges rank 330th on the list of state positions in terms of compensation," Jensen said in his address . "That does not include local county and school district positions, a number of which also provide greater compensation."

"There are a number of attorney positions within the executive branch which routinely appear in our courts whose compensation exceeds the judges’ compensation," he continued.

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"Even if Trump is convicted in the criminal justice system, it's not going to matter in the political system until Trump's supporters care about the honesty and integrity of their candidate."
"The way things are trending, the tax policy that emerges from this Legislature may tilt more toward failed property tax buydowns than income tax relief."
"But I suspect that won't stop many self-styled 'conservatives' in this era of Republican politics, dominated by reactionary supporters of Donald Trump, from accusing him of liberalism."

Why should you, the taxpayer, care about this? Because the courts are central to how our society operates.

If you find yourself sued, or accused of a crime, or in the middle of a messy divorce, do you want the judge presiding over your matter to be some overworked, underpaid product of an electoral and appointment process? A mediocrity for whom the modest pay of the judicial bench looked more appealing than private practice?

That's not to besmirch the men and women currently serving our courts. "We have great judges in North Dakota, but that is because of good fortune," Jensen said in his address. His point being that we're lucky that so many strong legal minds have chosen to prioritize public service over what they could earn in other roles.

But do we really want to hang our hats on that? As this pay problem persists, the quality of our state's judiciary is going to erode, to the detriment of all of us.

In the judiciary budget, which is House Bill 1002 , Jensen is asking for an additional $6.4 million in additional appropriations for salaries. This works out to a 20% bump in 2024, and a 15% bump in 2025.

That sounds like a lot, but we're playing catch-up, and in the context of the overall budget, we aren't talking about a lot of money.


"The entire judicial budget is 2/3 of 1% of the state budget," Jensen said in his address . "Judicial salaries are 1/10 of 1% of the state budget."

Do we want elections for judges, both local and statewide, to be competitive? Do we want capable, competent people sitting on the state bench so that when our lives, liberty, and property are in jeopardy in some legal proceeding, we can have confidence in the person presiding?

If the answers to those questions are "yes," then we have to start paying more.

Opinion by Rob Port
Rob Port is a news reporter, columnist, and podcast host for the Forum News Service. He has an extensive background in investigations and public records. He has covered political events in North Dakota and the upper Midwest for two decades. Reach him at Click here to subscribe to his Plain Talk podcast.
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