News Item
2023 State of the Judiciary Address
Posted: Tuesday, June 27, 2023
As delivered by Chief Justice Lorie Gildea to the 2023 Minnesota State Bar Association (MSBA) Annual Conference
June 21, 2023
Good afternoon, members of the Minnesota Bar. Thank you so much for inviting me to join your Annual Convention, and for this opportunity to present the State of the Judiciary.
As I’m sure many of you have heard by now, this will be my final State of the Judiciary address before I leave the Supreme Court later this fall. It has been an honor and privilege to be able to deliver the State of the Judiciary for the past 13 years, and I believe this tradition is an important way for us to sustain the strong relationship between Bench and Bar here in Minnesota. I look forward to seeing this tradition continue in the years ahead with the next Chief Justice.
Speaking of changes in leadership, I offer my congratulations and thanks to Paul Peterson for his service as MSBA president. The strong partnership we enjoy between Bench and Bar starts at the very top, and I can’t say enough about the support Paul and the MSBA have offered in the past year. I call particular attention to the work of the MSBA during the most recent Legislative Session, which had a big impact on the success of our justice system at the Capitol this year.
Paul, thank you for being such a vocal advocate and supporter of our judiciary, and congratulations on an extremely successful year as Bar president.
And while I know the official “passing of the gavel” won’t happen until later this evening, I want to be among the first to welcome Paul Floyd on becoming the next president of our Bar Association.
Paul, thank you for stepping up and taking on this important role. I wish you the best in the year ahead.
As I prepare for my own “passing of the gavel” ceremony later this year, I am pleased to leave you with a really positive update on the state of our judiciary in Minnesota.
My optimism for the future is fueled, in part, by the success our justice system achieved during this most recent Legislative Session.
This success was no accident. In the months leading up to the Session, the Bench and Bar partnered to form a coalition around the common goal of securing critical funding for our state’s justice system.
This coalition worked hand-in-hand throughout a long and uncertain Session, focusing on our shared message that preserving public safety and access to justice needed to be among our state’s highest priorities.
The result of those efforts was a Public Safety budget bill that included vital funding for some of our judiciary’s most important priorities.
The investments made by the Legislature this Session will ensure our courts have the judges and workforce we need to keep up with our incoming caseload and maintain timely access to justice.
The bill will fund courtroom technology enhancements that will support our continued use of online hearings.
It will help us reduce the backlog of Major Criminal cases, and address the rising cost of providing psychological examinations in criminal and civil commitment cases.
The Legislature also provided major new investments for the Board of Public Defense and civil legal services.
For the Board of Public Defense, the Legislature provided funding equivalent to 206 new employees, which will help bring down the crushing workloads facing our state’s public defenders.
The bill also provided an 85% increase in the total funding that goes to civil legal services, which will undoubtedly help close the civil justice gap in Minnesota.
I offer our gratitude and appreciation to Governor Walz and all of our legislative champions who supported our budget request, and who fought for our justice system in those critical final weeks of the Legislative Session.
And, of course, I thank all of the people and organizations who were part of our justice system coalition, including the MSBA and all of its members. We couldn’t have achieved this success without your support, and our work at the Capitol this Session will undoubtedly improve how our justice system serves the people of Minnesota for years to come.
As a result of this historic and needed reinvestment, I am proud to say that the state of Minnesota’s judiciary is strong, and the future of our justice system is bright.
After three difficult years, we have reached the other side of the pandemic more unified, more innovative, and better prepared to meet the needs of Minnesotans. While we know there will be challenges ahead, our judiciary is committed to eliminating barriers to our courts, and ensuring timely access to justice for all Minnesotans.
During my remarks, I’m going to highlight the impact this new investment will have on our state’s courts, and on our ability to serve our justice partners and the people of Minnesota.
I will begin with an update on our oneCourt Hearings Initiative, and the continued evolution of how our courts use remote hearings to increase access to justice.
During the pandemic, our courts used remote hearings to maintain access to justice at a time when physical access to our courthouses was limited due to public health precautions. While this transition was borne out of necessity, it quickly became clear that the people we serve appreciated the ease and convenience of online court appearances.
Through surveys and focus groups, court users told us that remote hearings increased access to justice and removed barriers to attending court. Based on the positive feedback we received from court users, in late 2021, the Minnesota Judicial Council made the strategic decision to embrace the long-term use of remote hearings in our district courts. And in June 2022, our historic oneCourtMN Hearings Initiative (OHI) Policy officially took effect.
The OHI Policy – which is officially Judicial Council Policy 525 – sets out statewide guidelines for which non-criminal hearings are presumptively held in person, and which are presumptively remote.
For criminal and juvenile delinquency proceedings, the Policy, for now, gives each judicial district the authority to develop local guidelines for when remote and in-person hearings are used. Though, as we’ll discuss, our hope is to move toward a more consistent, statewide framework in the future.
As we’ve now been working under Policy 525 for a little more than a year, let’s take a look at what it has meant in practice.
Since Policy 525 took effect last June, 87% of all non-criminal hearings in the state have been held remotely. An additional three percent were considered hybrid hearings, in which some participants are in person, and others remote. Only 10% of non-criminal hearings have been held fully in person.
In criminal cases, working under each judicial district’s local hearing plans, 60% of all hearings have been held either fully remote or hybrid. The other 40% have been fully in person.
It is hard to capture just how sudden and dramatic of a change this has been to court operations. If you think back to 2019, it would have been almost impossible to imagine more than half of all court hearings being held in virtual courtrooms. But while this transformation was borne out of necessity, I don’t think there are many people eager to return to our pre-pandemic normal or who would turn their backs on the benefits we have found with the broader use of remote technology.
Since Policy 525 went into effect, we have continued to gather input and feedback from court stakeholders about our approach to remote hearings.
Over the past year, we have held three rounds of justice partner meetings, which have involved more than 60 organizations, including the MSBA. During these meetings, we heard overwhelmingly positive feedback. Our justice partners told us that remote hearings increase access to justice, make their work more efficient, and allow them to serve Minnesotans more effectively.
In addition to these justice partner meetings, we are also working to gather input directly from litigants and other hearing participants.
This past December, we launched a statewide hearing participant survey, which asks litigants, attorneys, and other participants in both online and in-person hearings, to provide feedback about their experiences.
To date, we’ve received thousands of survey responses, and we will continue to collect them through June. Looking at the preliminary data we’ve compiled so far, it’s clear that there is strong support for the use of remote hearings.
More than three-quarters of survey respondents so far have said they’d prefer to attend a future hearing remotely, rather than in person.
A significant majority of hearing participants surveyed told us they had no difficulty attending their hearings.
And, crucially, only a small percentage of hearing participants reported any difficulty using technology to attend their hearings.
As I said, this is just preliminary data, and we will be publishing a more complete survey analysis in the next few months. But it is important to see that the people who depend on our courts continue to support the balanced approach we are taking to remote, hybrid, and in-person hearings.
Over the course of the next year, the Judicial Branch will be taking all of the feedback and data we’ve collected since Policy 525 went into effect, and use that feedback to refine and adjust the Policy to make sure it is meeting the needs of our courts and users.
Ideally, we’d like to move toward a statewide framework for how criminal and juvenile delinquency hearings are held, but it’s too early in the process to know exactly what that approach may look like. Our steering committee that is overseeing this new hearing Policy will present its recommendations next summer, so you should expect to hear more about the next phase of the oneCourtMN Hearings Initiative in the second half of 2024.
The bottom line is that we are continuing to hear positive feedback about the oneCourt Hearings Initiative Policy. We are committed to building on this strategy going forward, and the new investments we received from the Legislature this Session will help us continue to enhance the technologies we use to make remote and hybrid hearings a success.
I am also pleased to report that the Legislature’s investment in our justice system will help us eliminate the remainder of our pandemic backlog of felony and gross misdemeanor cases.
As all of you will undoubtedly recall, the public health precautions in place during the height of the pandemic severely limited how much in-person activity could happen in our courthouses. As a result, between the start of the pandemic and November 2021, we saw the number of Major Criminal cases awaiting resolution in our district courts grow by nearly 40%.
Thankfully, in late 2021, we secured federal pandemic relief funding to help us tackle that backlog. We used that investment to hire temporary staff, use senior judges, and hold special case resolution events to bring down the backlog. I’m proud to say our criminal clearance rates over the past year have been higher than we’ve ever tracked before. As a result, as of this month, we have brought down the backlog by more than 10,000 cases, or 78%. Even better, 67 of our 87 district courts have completely eliminated their pandemic backlogs.
Our challenge coming into this year was that the federal funding we were relying on to reduce the backlog was set to expire. Which is why we are so grateful to the Legislature for dedicating $4.2 million in one-time funding to help us finish off the remainder of the pandemic backlog.
Our success in shrinking this significant backlog could not have happened without a lot of hard work, not only by our district court judges and staff, but by our prosecutors, public defenders, and private attorneys who are taking on bigger and bigger caseloads to help bring down the backlog.
I thank the Bar and our justice partners for all your efforts to help us address the backlog and ensure timely access to justice for the people of Minnesota. This has been a statewide, collaborative effort, and the people who depend on our courts will benefit greatly from our shared work.
As we move beyond the impacts of the pandemic, our courts are continuing to evolve and innovate to meet the changing needs of court users. Let me quickly walk you through some key innovations and initiatives happening in our courts.
Last summer, shortly after my previous State of the Judiciary address, we completed rollout of Minnesota Court Records Online, or MCRO. This new application provides, for the first time, online access to most public district court case documents.
To date, more than 22 million documents have been accessed through MCRO, making it perhaps the greatest expansion in access to court records in the history of our state.
I am also pleased to share that this past Session, the Legislature eliminated the statutory
requirement to charge an $8 fee for uncertified copies of court records. That means, effective July 1, you will no longer pay $8 for an uncertified paper copy of a court record at the courthouse. It also means we will not be charging a fee to view or download case records through MCRO. In other words, barring any future legislative action, access to documents in MCRO will continue to be provided at no cost to users.
Looking ahead, our courts are also getting ready to implement recent changes to Court Rules governing audio and video coverage of criminal court proceedings.
During my time as Chief Justice, the Supreme Court has issued several orders expanding access to cameras in the courtroom. In 2013, we authorized the use of cameras in civil proceedings with the consent of the judge. In 2018, following a three-year pilot, we made it easier to use recording devices in sentencing hearings and other criminal proceedings that occur after guilt has been established.
On January 1 of next year, our Court’s latest order will increase camera access for criminal trial proceedings. Rather than requiring both parties and the judge to agree to the use of a camera in the courtroom, the new Rules will allow the judge to authorize the use of recording devices in criminal trials, subject to a number of limitations outlined in the Rules.
The amended Rules provide a number of factors for district court judges to consider in determining whether to grant a request for coverage, including the positions of the parties, the wishes of any victims, and the level of public interest in the trial, among other factors.
I recognize that there remain many different viewpoints on this issue in our justice community, and our Court’s order acknowledges the very valid concerns raised around increasing the use of cameras in criminal trials. At the same time, as stated in our order, we believe these Rules changes will “promote transparency and confidence in the basic fairness that is an essential component of our system of justice in Minnesota” while also protecting “the constitutional rights and safety of all participants in criminal proceedings.”
I’m also happy to share an update on the Legal Paraprofessionals Pilot Project, which continues to show positive results.
The Legal Paraprofessional Pilot Project began in early 2021 as an effort to close the civil justice gap in Minnesota. The idea was to allow legal paraprofessionals, under the supervision of a licensed attorney, to provide legal advice and, in some cases, represent a client in court in two legal areas: landlord-tenant disputes and family law disputes.
While the Pilot got off to a slow start – due, in no small part, to it being launched during a global pandemic – we are now up to 24 approved legal paraprofessionals working across the state. Even better, we have seen great participation from around Minnesota, including in the metro area, regional centers, and smaller rural communities. By the end of 2022, legal paraprofessionals had provided representation in 159 cases across Minnesota.
The feedback we have received from the paraprofessionals and supervising attorneys involved in this Pilot has been overwhelmingly positive. Paraprofessionals tell us they can see how their involvement is expanding access to justice, by serving those who would otherwise go unrepresented. Supervising attorneys tell us they value their involvement in the Pilot, and that having their paraprofessionals take on additional tasks allows them to focus their time on more pressing issues.
The Pilot is currently authorized through March 2024, and the Standing Committee monitoring it will then deliver its final report and recommendations to the Supreme Court. My message to all of you is that this Pilot, while modest in scale, is having a real impact on increasing access to justice across our state. And there is still time for paraprofessionals and supervising attorneys to get involved in this groundbreaking and worthwhile effort.
Please, if you know a paralegal who is ready to take on more responsibilities and new challenges, take a moment to learn more about the Legal Paraprofessional Pilot Project on our website. And stay tuned over the next year, as our Court decides the future of the Pilot, and whether to expand or make permanent this new approach to addressing the unmet legal needs of Minnesotans.
The goal of the Legal Paraprofessional Pilot is a perfect segue to the final section of my presentation today, which will focus on increasing attorney access in Minnesota.
For as optimistic as I am about the future of our state’s justice system, I believe one of the most pressing challenges facing our legal community is lack of attorneys in rural communities.
According to an American Bar Association report from 2020, some 40% of all counties in the United States have fewer than one lawyer per 1,000 residents. These areas have been dubbed “legal deserts,” and we know there are many such deserts here in the land of 10,000 lakes.
As a daughter of rural Minnesota, this is an issue near and dear to my heart. And it is an issue that has a huge impact on the many Minnesotans who live in rural communities, and who now face an uphill battle in accessing justice.
In the Judicial Branch, we have made preserving court services in rural communities a top priority. In 2018, we undertook a statewide reengineering effort to move work from around the state to our smallest, most rural courthouses. This ensured the staff working in those rural locations had the workload needed to justify keeping those courthouse service windows open to the public.
In addition, the Judicial Branch’s shift to more remote hearings was driven, in part, by feedback that attorneys in metro areas could more easily serve out-of-county and rural residents.
Just as the Judicial Branch has strived to preserve equal access to justice across our great state, I believe the state Bar should have an equal commitment to preserving access to legal representation across Minnesota.
There is a tremendous amount of good work happening nationally that Minnesota can tap into.
The National Center for State Court’s Rural Justice Collaborative is bringing together justice system leaders from across the country to advance innovation, promote collaboration, and raise awareness of rural justice system needs. That committee has explored several different state-level approaches to increase access to attorneys in rural areas, including:
- Montana’s Rural Incubator Project for Lawyers, which trains and supports attorneys as they develop and launch new solo or small firm law practices in rural areas.
- South Dakota’s Rural Attorney Recruitment Program, which provides financial incentives for attorneys who spend five years of continuous practice in eligible rural areas.
- And Kansas’ new Rural Justice Initiative Committee, which is exploring options to address unmet legal needs in that state’s rural areas.
I encourage the Bar to look at these examples and to work on a Minnesota-focused strategy for increasing access to legal representation in rural communities. This is an issue in need of a cohesive, statewide strategy and, I believe, a perfect place for the Bench and Bar to work together to ensure all Minnesotans have equal access to justice.
On a related note, and to close my remarks today, I’m going to update you on the recent work undertaken by the Board of Law Examiners regarding the future of the Minnesota Bar Exam.
In June 2021, the Board of Law Examiners announced plans to conduct a comprehensive two-year study of the Exam. The goal was to ensure that the process we use for determining the competency of new attorneys continues to uphold the public’s trust and confidence, without creating inequitable barriers to groups historically underrepresented in the practice of law.
After a lengthy process involving numerous workgroups, draft recommendations, and public comment, the Board just submitted its report and recommendations to the Supreme Court on June 1.
As the Court currently has this report under advisement, I won’t go into too much detail about the Board’s reasoning and recommendations. You can find a copy of the report on the Board of Law Examiners (BLE) website, if you haven’t had a chance to review it.
I can say that the Board is recommending that Minnesota switch from the Uniform Bar Examination to what is known as the NextGen Bar Exam. The NextGen Bar Exam is currently under development by the National Conference of Bar Examiners, and is set to debut in July 2026. According to the BLE’s report, the NextGen exam will cover fewer subjects than the current Uniform Bar Exam, and will place a greater emphasis on lawyering skills, rather than
memorization.
The BLE is also recommending that the Supreme Court form an implementation committee to further explore and develop a curricular-based alternative to the Bar Exam that could be completed during law school. The report contends that the three Minnesota law schools already have in place robust clinic and experiential learning programs to move this concept forward. The proposed implementation committee would be directed to propose amendments to the Minnesota Rules for Admission for consideration by the Court.
I know the Bar Association has been closely involved in this process, and is monitoring it closely. As I said, the Supreme Court currently has these recommendations under advisement, and you’ll hear more from the Court on this topic in due course.
To close this year’s State of the Judiciary, I’m going to return to where I started, and that’s by thanking our partners in the Executive and Legislative branches, along with our partners in the state’s justice system, for helping to bring a productive, positive end to this most recent Legislative Session.
Over the course of the next year, you will see our courts continue to use new technologies to increase access and eliminate barriers to justice, and to make our courts more responsive and customer friendly. You will see us tackle the remainder of the pandemic backlog, and continue to deliver timely access to justice for all Minnesotans. You will see new public defenders, expanded civil legal aid services, and a shrinking justice gap here in Minnesota. And – I personally hope – you will see our justice system shine a new light on the issues around attorney access across our state.
Finally, I’m taking a moment of personal privilege to thank my friends in the Bar Association for your incredible partnership and dedicated service to our legal community during my time as Chief Justice.
Having had the opportunity to work with court leaders across the country over the past 13 years, I can tell you that what we have here in Minnesota is special. We have built one of the most innovative and forward-thinking justice systems in the country. We have resisted the type of politicization and partisanship that has impacted other judiciaries. And we have developed strong partnerships between the Bench and Bar centered around preserving fair and timely access to justice for all Minnesotans.
I could not be prouder of what we’ve built together, or more grateful to have shared this journey with such incredible judges, attorneys, staff, and partners across the state.
The future of the Minnesota’s justice system is bright, the state of our judiciary is strong, and I can’t wait to see what lies ahead for the Bench and Bar in Minnesota.
Thank you.