ND high court changing — Crothers will be missed

The retirement of North Dakota Supreme Court Justice Daniel Crothers is only the latest in a number of changes to the makeup of the state’s highest judicial body.

As we reported previously, the Court also has a new Chief Justice. In recent years, other retirements and new appointments have also shaped the Court. What that will mean to the operation, tone, and direction of the Court remains to be seen.

Daniel Crothers was first appointed to the Court in 2005 by Gov. John Hoeven. He retired this week as the longest serving sitting North Dakota Supreme Court Justice.

After graduation from UND Law School in 1982, he worked both as a prosecutor and in private practice prior to his appointment. He then won three elections to the Supreme Court — the first for a brief stint to fill an unexpired term and the other two for ten year terms (Supreme Court justices are rarely challenged in state elections and their terms of office are the longest of any elected state officials). Interestingly, his retirement also leaves two years remaining in his term, allowing the Governor to appoint a replacement who will then stand for election in 2028 as an incumbent justice.

The changes on what has been a very stable Court for a long time are more frequent, these days. One thing remains certain, however, the wheels of justice will grind on, just as they have in North Dakota for many years. Hopefully, the Court’s strong record on applying the law as it is written — not trying to make it or twist it to fit their ideological bent (as is sadly now so common in many courts, at many levels, around the nation) — will continue with its new members.

Crothers will be missed

Although it’s seldom that I write in the first person here, it is fitting that I share observations about the Court and retiring Justice Daniel Crothers because I had the privilege of observing his tenure on the Supreme Court from an unusual perspective, and not just that of a legislator. A unique perspective resulted from serving many years on the House Judiciary Committee, including as its Vice Chairman and, for many years as its Chairman, serving on Supreme Court appointed panels, and, finally, as Speaker of the North Dakota House of Representatives. 

Those roles brought me in close contact with the Court and its members. For several years, it was relatively common for the Chairman of the Judiciary Committee to walk down the hall to visit with the long-time Chief Justice, Jerry VandeWalle. The discussions were not about bills in the legislature, but more broadly about the law, the Constitution, the function of the Court and his wise insights, opinions and advice — all off the record, of course. My service as the national chairman of the Council of State Governments (which is made up of all three branches of government in all 50 states) taught me that such collegiality between legislators and judges is rare — another reason to appreciate that, in North Dakota, the three branches of state government are only steps down the hall away from one another in our State Capitol, not siloed in different, far apart buildings.

Although my visits with Dan Crothers were less frequent, I greatly admired and appreciated his intellect, judgment, and legal wisdom and relished the talks that we were privileged to share. He respected the other branches of government and their functions although, even in his departure, he reportedly emphasized the importance of the “independence of the Court” (an oft-repeated phrase among judges and a topic we’ll return to in future writings).

I have always respected the members of our state’s Supreme Court but few of its members commanded more respect than Crothers. He always demonstrated the highest ideals of judicial temperament and demeanor in his service there. The opinions he authored were not only legally sound, well-reasoned, and conceptually focused, but also carefully crafted and easily understandable, even to the legally untrained observer. 

Among his most notable opinions was one which essentially clipped the wings of both other branches of state government, and appropriately so. It rejected several vetoes issued by former Gov. Doug Burgum in which he had attempted to line item veto the purpose of legislative appropriations, while retaining the money appropriated, apparently for any other use for which he chose to spend it. The opinion also slapped down the Legislature’s practice of allowing a smaller group of its members on The Budget Section to appropriate funds, something only the full Legislature can Constitutionally do.

Friese to succeed him

Gov. Kelly Armstrong has announced his appointment of Fargo defense attorney Mark Friese as Crothers’ replacement.

Friese will bring a unique perspective from years as one of the most respected defense attorneys in the state (Armstrong also practiced law as a defense attorney before running for Congress and Governor).

My contacts with Mark Friese were also not infrequent, as he often weighed in on legislation (something he likely won’t be doing as a Supreme Court Justice, unless it is legislation specifically dealing with the Court and its function). Both my Judiciary Committee experience and my service on the board that oversees North Dakota’s public defender system gave me a close look into defense attorneys’ perspectives, after gaining even greater familiarity with those of prosecutor.

His background will, no doubt, inform his service on the Court but, as all judges must, I have no doubt that he’ll strive for impartiality in his important new role.