Tom Welk
Boyce, Greenfield, Pashby & Welk, L.L.P.
101 North Phillips Avenue, Suite 600
P.O. Box 5015
Sioux Falls, South Dakota 57117-5015
Admitted: 1975, South Dakota
Law School: University of South Dakota, J.D., 1975
College: University of South Dakota School of
Business (B.S., Economics with honors, 1972; M.B.A., 1975)
Member: The State Bar of South Dakota (President,
2004-2005); American Bar Association.
Biography: Formerly with South Dakota Attorney General's Office, 1975-1979.
(Certified as a Civil Trial Advocate by the National Board of Trial Advocacy)
Born: Hoven, South Dakota, August 12, 1950
June, 2005
The Swan Song
This is my last President's Page. The year has passed quickly. As prior
Presidents have noted and those who will follow will also observe, a year as
president makes one realize how fortunate we are to be members of our Bar.
Attendance at regional and national meetings has affirmed this appreciation. We
are successful because of a knowledgeable and efficient staff, attentive and
supportive commissioners and a legacy of good leadership. Our relationship with
judiciary and the Law School has never been more cooperative and collegial.
However, we must continue to be relevant to our members. Otherwise we lose our
life blood - the energy of our members. Our organization cannot flourish unless
members participate in the sections, committees, special projects and leadership
positions. Our young lawyers must see that participation in our Association is
helpful to them as lawyers and also to the public, who we serve. As I have
stated before in another President's Page, technology will both challenge and
assist us to maintain our Association. It helps us close our geography yet, if
not carefully utilized, will isolate our members.
Please consider attending the annual convention in Rapid City. Most of the bar
associations are challenged each year to increase attendance at the annual
meeting. Our Bar is remarkable for our attendance. Here are a few reasons why
you should attend this year's Bar convention. You have the opportunity to:
1. Attend CLEs that are relevant to
your practice (and worthy of monetary credit for those insured by ALPS)
2. Socialize with members you know
and to meet new members;
3. Display your athletic talents;
4. Voice your opinion on changes that
are being considered by the Bar as to several matters;
5. Participate in meetings of
sections, committees and organizations of which you are a member; and
6. Enjoy our beautiful Black Hills.
It has been an honor and privilege to represent you during this year. Thank you
for the opportunity to be of service to you.
May, 2005
LAW SCHOOL GRADUATION DAY
The Terry Schiavo case, the death of Pope John Paul II, the new papacy of Pope
Benedict XVI and the Iraq war will mark this time in history. However, I seek to
comment this month upon a more provincial yet important event - your law school
graduation day. This month 76 graduates from USD Law School will complete their
formal education. Remember that day-so much enthusiasm yet so much trepidation.
All of us remember that anxiety wondering what our professional life was going
to be.
Our USD graduates face, according to statistics, an average of $52,000 in law
school debt and $17,000 debt for undergraduate studies. Obviously, these numbers
vary by student depending on a number of factors. This obstacle should encourage
all of us to help our graduates in their quest for employment. All of us
remember the anxiety waiting for those calls and letters from prospective
employers. Let us all be prompt in responding to inquiries from new graduates
regarding employment opportunities.
This month should be a time for all of us to reflect upon our own graduation
day. Most importantly, now is a moment to remember those with whom we spent
three years. As the anniversary of your graduation approaches, it is a time to
consider those class members who you have not seen or made contact with for
years. Hopefully, we will not merely muse where our former classmates may be or
what they are doing but to seek them out. For some of us, the memory of
graduation is a time to recall those we knew who have died. We all struggled
together and chose our own paths but we all began the journey together.
Life has not treated us all fairly since our graduation. Many in our graduation
classes have faced personal, family and professional challenges during their
careers. This is a time to be thankful for good fortunes that we have enjoyed.
It is a time to reconnect.
This month is also a time to reflect upon the oath we took when we were admitted
to the Bar. These words serve to remind us of our noble profession:
I do solemnly swear, or affirm, that:
I will support the Constitution of
the United States and the Constitution of the State of South Dakota;
I will maintain the respect due to
courts of justice and judicial officers;
I will not counsel or maintain any
suit or proceeding which shall appear to me to be unjust, nor any defense except
such as I believe to be honestly debatable under the law of the land;
I will employ for the purpose of
maintaining the causes confided to me such means only as are consistent with
truth and honor, and will never seek to mislead the judge or jury by any
artifice or false statement of fact or law;
I will maintain the confidence and
preserve inviolate the secrets of my client, and will accept no compensation in
connection with a client's business except from that client or with the client's
knowledge or approval;
I will abstain from all offensive
personality, and advance no fact prejudicial to the honor or reputation of a
party or witness, unless required by the justice of the cause with which I am
charged;
I will never reject, from any
consideration personal to myself, the cause of the defenseless or oppressed, or
delay any person's cause for lucre or malice.
Enjoy the memories! Remember the Day!
April, 2005
CLE OF THE FUTURE
Do you want to reduce our Bar Association's budget? If so, you can do so by not
providing “hard copies” of materials at our Continuing Legal Education ("CLE")
seminars. Our Bar pays over $27,000 for printing our educational materials for
CLEs. Our Bar staff estimates that if we provided CDs of CLE materials this cost
would be reduced by approximately $25,000.
I believe that our Bar will transition to the CD format for materials over the
next several years. The change will however be measured to acclimate some of us
who insist we can’t function without “real paper.” Although no decision has yet
been made by anyone, I can envision the day (which is already here) where CLE
participants will be sent via email the CLE materials to be downloaded by CLE
participants prior to the CLE and have CDs available at the seminar. These
changes will be cost efficient but worrisome.
Our State has not ever mandated CLE. Our attendance numbers have been
outstanding. In other Bar organizations, especially voluntary bars, CLE revenues
are a primary source of revenue and face competition from private CLE vendors.
Our members know that CLE is a part of their professional life that should be
continued to maintain their proficiency. The issue for me, however, is more
fundamental - the fabric of our social network for our Bar members.
As I have observed this past year in my travels as your President, as other
Presidents before me have noted, our Bar is remarkable for its collegiality.
This is a Bar where family life is important. Knowing each other fosters
civility. Attendance at CLEs affords all of us the opportunity to meet old
friends and create new ones.
My worry is that as technology and economics force us to become more driven to
on line CLEs that we will lose our closeness as opportunities will be reduced to
meet our members. As these CLEs become more available with satellite broadcasts
and materials on line who will want to incur the time and expense to attend a
CLE? To those technologically proficient younger lawyers (and to those of us
technologically challenged) let us not let this happen!
In my humble opinion, we need to make this transition to the electronic media
for our CLE materials and the eventual internet or satellite broadcast in a
thoughtful and measured way. Future bar leaders and commissions will be
challenged by issue. In the interim, let us pledge to meet members of our Bar
that we don’t know. Let us continue the cordiality to each other that has long
been our tradition despite the evolving technology.
March, 2005
Our Bar Organization
This month I thought I would publish some facts I thought you might want to know
about our Bar organization. These will not qualify for the "David Letterman top
ten list", nonetheless, they may be of interest to you.
1. How many members do we have in our Bar organization?
The following is our membership count as of March 1, 2005:
Active Instate — 1671
Active Out-of State — 455
Inactive Instate — 134
Inactive Out-of State — 402
Total — 2662
2. Of our members, what is the percentage that are females and how does that
percentage compare to prior years? The following are the membership counts for
female lawyers from April 1, 1993 to March 1, 2005:
1993
1994 1995 1996
1997 1998 1999 2000 2001 2002 2003
2004 2005
Active 270 293
305 330 357
380 405 416 445 463 488 495 528
Inactive 68 77
101 109 113
119 124 124 123 128 129 149 161
Total 338 370
406 439 470
499 529 540 568 591 617 644 689
3. Where are most of our active resident South Dakota members located?
Sioux Falls....543
Rapid City.....325
Pierre............154
Aberdeen........74
Yankton..........46
Watertown......36
Brookings.......30
Mitchell..........24
Huron.............23
Total...........1255
4. What is our annual budget? Our current budget is approximately $1.1 million.
Dues revenues constitute approximately 65% of our revenues. Other primary
sources of :revenues come from Dakota Disc, Pattern Jury Instructions, pro hac
vice, and various miscellaneous items.
5. How many employees do we have and what do they do? 5 employees as follows:
Tom Barnett: Executive Director and
Secretary-Treasurer of State Bar
DeeAnn Stevens: 26 year employee –
Office Manager/Assistant Executive Director/CLE Coordinator/Finance
Kelly Krell: 21 year employee —
Director of Communications/Data Base Manager/IOLTA/ Newsletter Editor
Larry Zastrow: Assistant Disciplinary
Board Counsel/Computer Programmer/Electronic Legal Research Expert/
Dakota Disc
Publisher/Editor
Anita Zastrow: Information
Technician/Program Manager/assist with Dakota Disc, weekly updates
6. How many students will be graduating from the USD Law School this spring? 76
7. What is the current total enrollment at the USD Law School? 237
8. What is the economic impact to the State of South Dakota for the legal
services rendered by our members? According to the S.D. Department of Revenue
and Regulation for the calendar year 2004, our members reported gross receipts
received for the rendition of legal services as follows:
Aberdeen - $ 8,773,529
Brookings - $ 2,589,285
Huron - $ 1,028,319
Mitchell - $ 1,784,524
Pierre - $ 5, 290,523
Rapid City - $ 37,336,140
Sioux Falls- $ 57,739,242
Spearfish - $ 2,546,348
Watertown - $ 3,467,173
Yankton - $ 3,758,263
According to Tom Barnett, legal services generated approximately $9 million in
sales tax revenue.
February, 2005
2005 Legislature
As you are reading this President’s Page, our Legislature is in session. All of
our legislators deserve thanks and appreciation for the time that they devote to
the affairs of our State. However, as lawyers we owe a special note of thanks to
the lawyers who serve in the Legislature and in state government. The following
are South Dakota lawyers who donate their time on our behalf:
Dennis Daugaard, Lt. Governor
Sen. Lee Schoenbeck - President Pro
Tempore
Sen. Eric Bogue - majority leader
Sen. Dave Knudson - chair, taxation
committee
Rep. Matt Michels - Speaker
Rep. Tom Deadrick - Speaker Pro
Tempore (incoming in two years)
Rep. Sean O'Brien - majority whip
Rep. Margaret Gillespie - assistant
minority leader
Rep. Joni Cutler - chair, judiciary
committee
Rep. Roger Hunt
Rep. Shawn Tornow
Rep. Tom Van Norman
These lawyers serve unselfishly in devoting their time to helping all of us. As
we know as lawyers, sometimes the best measure of service is to defeat bad
legislation or to help draft vaguely worded legislation so that it may be
interpreted. These lawyers spend many hours away from their practice settings
and employment devoting their time to public service. The next time that you see
them, thank them for their service.
At the beginning of this legislative session, our profession was confronted with
a sales tax issue on legal services. Most lawyers who pay sales tax received a
publication from the South Dakota Department of Revenue and Regulation (“the
Department”) regarding a new interpretation of how sales tax should be charged
on legal services. Fortunately, through our secretary/treasurer’s efforts and
with the cooperation of the Department, this potential dispute was resolved. The
Department will be issuing new interpretative materials which should be read by
all lawyers who charge sales and use tax. I wanted to commend especially the
efforts that Tom Barnett expended on our behalf in resolving the matter with the
Department.
I also want to extend my appreciation to the many lawyers who provide, through
our sections, constructive comments on proposed legislation. Your expertise on
these matters helps create better legislation for all of us.
I also want to thank you for the many kind comments that I received regarding
the South Dakota Trial Academy. Applications are now being received from the
participants, faculty and scholarship applicants. I am always amazed at the
enthusiasm of our lawyers when a worthwhile project is announced. Openings
continue to exist for participants and faculty members and scholarship
opportunities.
January, 2005
SOUTH DAKOTA TRIAL ACADEMY-THE TIME HAS COME
One of the vexing problems we face today in our profession is the absence of
meaningful trial experiences for our young lawyers. This situation has arisen
from a number of factors such as increasing alternative dispute utilization and
the ever increasing cost of litigation. Moreover, even the experiences which
were traditionally available to younger lawyers in criminal law seem to be
vanishing as the use of specialized public defender offices and career
prosecutors become more prevalent. In addition, I am sure that many other
factors exist that contribute to the ever decreasing opportunities for our
younger lawyers to hone their trial skills. Regardless of why this situation
exists we need to address it. Many other states, bar associations and trial
organizations have addressed this matter by conducting various forms of trial
academies which use a variety of formats such as lectures, demonstrations by
instructors, and demonstrations by participants. These forums have existed in
many states for years but not in South Dakota. No longer!
I have been thinking about this problem for several years and have decided that
it is a problem I want to try to remedy. I have solicited help and received it.
I have counted on the generosity of all our lawyers regardless of practice
setting. As usual, our lawyers when confronted with a problem they know is
genuine have stepped up to help.
First, I needed someone who could administer the program who had credibility
with the trial bar. Chet Grosclose accepted my proposal to serve as coordinator.
Second, I needed facilities. USD Law School through Deans Barry Vickery and
Angela Erickson have joined the team and offered the Law School facilities
including videotaping. Third, I needed a steering committee from the trial bar
and the Law School. The South Dakota Trial Lawyers, our local ABOTA Chapter, and
the South Dakota Defense Lawyers stepped forward not only with their talent but
funding three slots for scholarships-two for our legal service corporations and
one scholarship for a solo or small firm practitioner.
The members of the steering committee are as follows: Dean Barry Vickery,
Assistant Dean Angela Erickson, Chet Groseclose, Scott Heidepriem, Reed
Rasmussen, Judge Dave Gienapp, Terry Quinn, Mark Meierhenry, Bill Fuller, Mike
Abourezk and Bob Ulrich of the USD Law School who teaches the trial technique
course. These lawyers will help with the curriculum design, instructor
selection, and awarding of scholarships.
I also begged ALPS for some “seed money”. They have generously agreed to fund
$5000 for the initial class. Thank you ALPS for your commitment to our
profession and our Bar Association. Of course, I need the help of the State Bar
staff along with the Law School staff to help administer the program.
The last, and probably the most important, team member that was added was the
National Institute for Trial Advocacy (“NITA”), one of the most reputable trial
teaching organizations in the United States. NITA has been designing trial
programs and teaching instructors, and providing trial programs for over 30
years. I am excited to announce that NITA will be cosponsoring the first South
Dakota Trial Academy. NITA has given us one of their best, Mark Caldwell, who
will assist in the course design and training of instructors.
The dates have been set July 18 to July 22, 2005 in Vermillion. The initial
program is being designed and will include a day with a national speaker on
depositions which will include how to take and prepare for depositions. The
remainder of the week will consist of lectures and then demonstrations by the
participants on direct and cross examination, problem witnesses, exhibits, and
objections. All participants will have the opportunity to do two demonstrations
per each instruction block. Most of the exercises will be videotaped for future
reference.
The cost will be $1500 per participant which is substantially less than most
national programs. There will be twenty-four (24) in the first class. A deposit
will be required and will not be refunded unless someone takes your place. A
waiting list will be created. Forms for registration are included in this
Newsletter. Please send them to the State Bar Headquarters. The participants
will be responsible for their own food and lodging besides the tuition. We will
help with the arrangements.
We need seven instructors besides Chet. We need experienced civil trial lawyers.
I have also included a form to sign up as an instructor in this Newsletter. The
screening committee will make the final selection. You must be prepared to
donate one week of your time in July. We will pay the expenses for food and
lodging but there will be no honorariums paid for this class. Your reward will
be helping our young lawyers become better lawyers and helping the clients they
will serve. I do plan on giving some recognition to our first instructors at the
annual convention in June. Mark Meierhenry has promised he will help design the
course week so that there will be some enjoyable social activities as he
reminded me that this week needs to have some fun along with all the work.
Lastly, if you are interested in the solo or small firm scholarship please write
a letter as to why you think you should be selected. A notice is also in this
Newsletter. Again, the screening committee will award the scholarship slot.
My vision is that this will become the preeminent training for our young lawyers
with a combination of national expertise from NITA, and both national and South
Dakota instructors. Our young lawyers should not have to travel to other states
to obtain the training they need. I am resolved to make the South Dakota Trial
Academy a reality. Work with me and others to help us succeed. The time has
come! This program promises to be as good as any national program with quality
national and South Dakota instructors in a NITA sponsored program located in
South Dakota.
December, 2004
THE SECRET TO LIFE-ENJOY THE PASSAGE OF TIME
James Taylor
In the song Secret O’ Life James Taylor croons “The secret to life is enjoying
the passage of time”. His words are especially true during this time of the
year. During this holiday season we all need to seek repose from our stressful
lives by reflecting on what is important to us. This is the time of the year to
step back from the next case or client imposed deadline to contemplate not only
our legal but personal joys.
Take time to be thankful for our families and friends. Call a family member, a
former classmate or friend you have not spoken with for a time. Find time to
look for that special gift for your spouse or special friend. Reserve time to do
something with your children that you always meant to do during the year but
have not done so. Read that book you promised yourself you were always going to
read.
This is also a time to give thanks for the men and women who are in harms way
protecting us all. Although we are not sure we have all of our lawyers
identified, we believe the following South Dakota lawyers are currently serving
in active military duty or have served in active duty service since September
11, 2001:
Jim Seward
Gary Schumaker
Pat Pardy
James Sword
Matt Rusch
Chris Kennebec
Phil Stiles
Stacy Koostra
Corey Brooks
James Harr
Brock Jensen
Melissa Neville
Kelly Schmidt
Brian Underdahl
Iris Mince Rosenthal
Rob McDonald
James K. Floyd
Kimberly Wolf
Thank you to Don McCarty of Brookings for providing this information. Please
keep these lawyers and their families in your thoughts and prayers that they may
return safely.
This is also a time to express our appreciation to our colleagues, support staff
and others that surround us each day. Do something special for them as they have
done for you all year. All of us need those that surround us to help us to do
what we do each day. Furthermore, we need to be appreciative to all our brothers
and sisters in the State Bar of South Dakota. One needs to appreciate the
closeness of our Bar and how we are able to practice in a collegial and
professional manner.
I think after almost thirty years of practice one becomes more contemplative
about the practice. The cases won or lost seem too distant now but not the
lawyers and judges with whom you have dealt over the years, especially the ones
that have died. Think about our friends that have passed away this year.
There is enough stress for everybody all year. Enjoy the season! Enjoy the
passage of time!
November, 2004
OUR FOUNDATION
Next month our dues statements will be sent out to all of you. These notices
will again ask you to make a decision on whether you want to contribute to the
South Dakota Bar Foundation (“the Foundation”). Last year 958 lawyers
contributed to our Foundation and contributed the sum of $75,022.50 of which
$50,000 was placed in the permanent endowment and $25,000 was used to meet
critical current needs.
You need to know the history of our Foundation as we are embarking upon a
program over the next several years to restore the fund balance. Our Foundation
was founded by a small group of lawyers in 1983. Inspired by the creation of
Interest on Lawyers’ Trust Account (“IOLTA”) by an order signed by then Chief
Justice Jon Fosheim, the Foundation has had a remarkable impact on South Dakota.
Among those who led this organization during its founding were then Bar
President, Charles “Rick” Johnson, and past Bar Presidents, Tom Foye, Bob Hofer,
Arlo Sommervold, Tex Hoy and Herb Heidepriem. Our Foundation has contributed
over $2 million to non-profit organizations committed to the fight for access to
justice and law-related education. During our Foundation’s history, we have
contributed over $760,000 to projects intended to further access to justice
which include grants to Black Hills Legal Services, Dakota Plains and East River
Legal Services. Funding also includes contributions for everything from the
Butte County Child Protection Team, CASA, to the South Dakota Guardianship
Program. Our Foundation has contributed over the years over $1.4 million for
law-related education. These have included grants to various schools, the
funding of our Ask-A-Lawyer program, coverage of our State Legislature, and a
consumer’s guide to South Dakota law.
We all became complacent when IOLTA interest rates were high. As the interest
rates dramatically declined, the principal on our Foundation monies has slowly
eroded. The following are the fund balances for the last ten years as of the
close of our fiscal year of June 30th.
2004.................$ 46,000
2003.................$ 56,500
2002.................$ 61,500
2001.................$ 72,233
2000.................$ 75,500
1999.................$101,800
1998.................$104,800
1997.................$108,950
1996.................$114,800
1995.................$119,300
Last year, the Foundation gave total grants of $46,000. The grants were awarded
to East River Legal Services - $20,000; South Dakota Guardianship Program -
$7,500; and the Public Information Committee/Young Lawyers Section - $18,500 (to
cover Ask-A-Lawyer, pamphlet printing, Citizenship in our Schools and Speakers
Bureau travel expenses).
We need to return to the days where our Foundation can make significant
contributions to law- related education and access to justice. We need to
identify our Foundation as a charitable organization that is worthy of our
support. The Foundation will be the funding vehicle to help us make significant
contributions to the public and provide education of our legal system that
cannot be done from the ordinary revenues and expenses of our organization. The
recent political campaign attacks on our profession demonstrate the critical
need to address public perception of lawyers and our system of justice.
There are many worthy organizations that all of us encounter in our daily lives.
I do not intend that we should discontinue support of the other non-profit,
charitable and church related organizations that all of us are part of as
members. I do, however, encourage you to contemplate your contribution to our
Foundation as it is something that we all, as lawyers, regardless of practice
setting, need to identify as one of our worthy charitable organizations. I ask
you to again affirm the interest that you demonstrated last year and to continue
to contribute to our Foundation.
As Bar leaders, we will continue to attempt to grow the Foundation and to
restore the financial condition. The needs that existed have not disappeared
since we have stopped funding them.
October, 2004
LEGAL SERVICES -TIME TO ACT
All of us know that the delivery of legal services to the poor and disadvantaged
is an obligation of everybody in our profession. Each state and local
jurisdiction addresses this responsibility in a different manner both as to
delivery and funding of such services.
South Dakota has two legal services organizations that deliver legal services to
low income people. Both are underfunded and overwhelmed by the existing need.
East River Legal Services ("East River") delivers legal services from their
office in Sioux Falls and also uses a so-called Judicare delivery model. Under
this Judicare program, East River pays private attorneys on a discounted fee
basis to represent eligible clients. East River has a total staff of 10
including 3 lawyers, 2 paralegals, and 5 support staff. East River's total
funding, from all sources, is $440,000. East River closed a total of 752 cases
in 2003 and had 252 open, pending case files at the end of 2003. In addition,
814 applications for service were rejected. The East River service area includes
33 counties in eastern South Dakota. Doug Cummings is the Executive Director of
East River.
Dakota Plains Legal Services ("Dakota Plains"), given the nature of their
service area, utilizes a direct service delivery model through their 7 branch
offices. Dakota Plains currently has a total staff of 30 people, including 10
attorneys, 12 paralegals, and 8 support staff. Dakota Plains’ funding, from all
sources, is $1,770,157. Dakota Plains closed a total of 2,622 cases in 2003 and
had 770 open, pending case files at the end of 2003. The Dakota Plains service
area includes 9 reservations and 33 adjacent counties. Ron Hutchinson is the
Executive Director of Dakota Plains.
Both organizations have overwhelming caseloads. Many of their cases involve
protracted, litigation including a large number of domestic relations cases. The
lawyers who work for these organizations are dedicated, overworked, and
underpaid. The lawyers currently working at East River are: Doug Cummings, Karen
Hattervig and Jim Billion. The lawyers currently working at Dakota Plains are:
Ron Hutchinson, Neil Carsrud, Kelly Smidt (on military call up), Judi Roberts,
Kristi Johnson (on military call up), Tom Mortland, Larry Mamula, Paul Brankin,
Jennifer Coleman, Dan Jongeling, and Lisa Kiser.
The funding of these organizations is fragile as we all know relying on grants
and money from the Legal Service Corporation which is funded by Congress. We are
all too familiar with the budget reductions that these organizations constantly
are facing.
Our State Bar assistance has helped fund these organizations, especially East
River, from our Bar Foundation. I will be talking next month about revitalizing
our Bar Foundation. However, we need to provide a more strategic and
institutional solution to both the funding and delivery issues. We are
undertaking to do so.
Your State Bar has formed a committee of experienced and dedicated lawyers to
provide us recommendations at our Annual Meeting in June as to the delivery and
funding issues. These lawyers include: Thomas G. Fritz, Judith K. Meierhenry,
Gary J. Pashby, Stanley E. Whiting, Douglas P. Cummings, Jr., Cheryl Three Stars
Valandra, Dean Barry Vickrey, Bob L. Morris, Robert E. Hayes, Ronald D.
Hutchinson, Randall B. Turner, Michael T. Swallow and David L. Nadolski.
Please thank the lawyers and their staff that work every day to help the poor
and disadvantaged. Also, thank the lawyers working on our committee on this
project.
Finally, thank you to all the lawyers in our State who have helped with a pro
bono file or reduced a fee for a client that they know could not pay. I know
that numerous examples could be given of the lawyers in this State who have
reduced fees or provided services without charge to those who could not pay
without publicity. Our reward is the appreciation of those served.
Please continue to do your part and we, as your State Bar, will try to help
these two worthy organizations and the people they serve.
September, 2004
Amendment A
On November 2, 2004 South Dakota voters will decide a number of political races.
Politics are the prerogative of each of us and therefore remain individual
questions. I suspect that after the media be-comes tired of discussing these
races they will finally turn their attention to the proposed constitutional
amendments that will be on the ballot. These issues are important. Proposed
Amendment A would authorize merit selection of our circuit judges and provide
for retention elections. Amendment B would authorize the Legislature to allow
food and transportation services for school children who do not attend public
schools. The ballot also contains an initiated measure to repeal the sales tax
on food. As lawyers, we have a responsibility to be informed on these measures
as the public and our clients will seek our input.
My remarks are limited to Amendment A because our Bar has taken a formal
position sup-porting Amendment A ("the Amendment"). At our annual convention in
Sioux Falls in June of 2003 our Association voted by a margin of 2 to 1 to
support the Amendment. This support is conditioned upon a requirement that an
evaluation of the judiciary who seek to be retained will be developed and
available to the public in advance of the election. Our organization has
appointed a committee to develop this evaluation methodology. The Committee
members are John Hagemann and Jim Nelson, Co-Chairs, Hon. Robert Amundson, Hon.
Lee Anderson, Hon. David Gienapp, Jim Roby and Chet Groseclose. This Committee
did receive initial input at a public hearing held at the 2004 annual
convention. If the Amendment is approved by the elector-ate this Committee is
charged with bringing to the 2005 annual Convention in Rapid City a
recommendation as to the evaluation model. Many evaluation models exist in
numerous states, including our neighbor Wyoming. If the Amendment is approved,
our Bar owes an obligation to provide substantial input in developing an
evaluation process that will inform the public in advance of the election of how
a judge is performing in the office.
As all of us should be aware this Amendment was precipitated, in substantial
part, by decisions in Republican Party of Minnesota v White, 536 US 765 (2002),
which was further discussed after remand by the Eighth Circuit at 247 F3d 854
(8th Cir. 2004) and the Eleventh Circuit in Weaver v Bonner, 309 F3d 1312 (11th
Cir. 2002). These decisions undeniably alter judicial elections in the future
because candidates may do and say things that would otherwise have been
prohibited under the prior Judicial Code of Conduct.
The arguments in support of the Amendment are well known. Judges are to be
independent, fair and impartial. Prior judicial elections have been nonpartisan.
Money and third party interest groups have not been factors in South Dakota
judicial elections. These rules will now change. Outside interest groups will
seek to influence the electorate on the candidates' personal positions rather
than qualifications. Moreover, campaign financing of judicial elections will
change requiring more direct solicitations by candidates. Can we, as lawyers,
and the public expect with these changes that our judges will continue to be
independent, fair and impartial? Also, we have had retention elections for the
Supreme Court since 1980. No issues have arisen.
Opponents will suggest that the electorate will become disenfranchised. Others
may argue that the retention elections will become a lifetime appointment. As to
the latter argument, we only need to look to our neighboring states to see that
experience shows that judges are not retained when the Bar and public believe
that judges do not possess the continued qualifications of the office.
The disenfranchisement argument also has been squarely addressed by Hon. Tim D.
Tucker and Christina L. Fischer in the law review article entitled "Merit
Selection: A Better Method to Select South Dakota's Circuit Court Judges" 49 SD
L Rev 182 (2004). The authors demonstrate by empirical study of South Dakota
elections that a small number of contested judicial elections have occurred
since the formation of the Unified Judicial System. The authors suggest that the
people of South Dakota were allowed to vote since 1982 for less than 20% of
their circuit judges because of so few contested elections. Id at 187.
Furthermore, the authors demonstrate that voter actions demonstrate low voter
participation in that over 80% of South Dakota registered voters did not vote in
primary judicial elections and only 53% in general contested judicial elections.
Id at 188-190. I commend the reading of this article to all lawyers in South
Dakota for a persuasive analysis based on policy reasons and voting behavior in
South Dakota elections why Amendment A should be supported.
I know that some of our members disagree and do not support the Amendment. I
respect their views. Some op-position has developed be-cause of disappointment
with our current system. I admit that our current system will not produce
everybody's choice for a judicial vacancy that is believed to be the best
candidate. However, that occasional weakness should be compared to what type of
system we will have if Amendment A is not approved.
During the next couple of months we owe an obligation to express our opinions on
this matter. We have an obligation to use our knowledge and experience to voice
our beliefs. You will be seeing support of Amendment A by our organization based
on our members' approval. Our judicial elections were not broken. They are now.
Amendment A will help restore the confidence that our judges will continue to be
independent, fair and impartial.
August, 2004
OUR FIRST DAY PRACTICING LAW
Remember the first day you practiced law? For each of us this day invokes
different memories. Some thoughts may have included an appreciation of the
contributions of our families. Other thoughts may have included a thankfulness
that the long formal educational journey had ended and our practical education
in the law began.
In South Dakota, this special day has had little significance other than to the
new lawyer. New employers, whether they be public or private, want the new
lawyer to begin work as soon as the successful bar examination results are
known. Our Young Lawyers Section wants to change our view of this historic event
for our new lawyers. They have embarked upon a new idea to recognize our newest
lawyers at various ceremonies throughout our State. These events started, to a
limited degree, last year with experiments at various circuit levels. For
example, in the Second Circuit all of the judges were present with the new
lawyers at their swearing in ceremony along with the new lawyers' friends and
family followed by a short reception. It was most rewarding to see the families,
most of whom (like mine) had no other lawyers in their families, look proudly
upon their family member’s accomplishment.
This year the Young Lawyer’s Section has organized ceremonies on a circuit basis
to honor our newest members on Friday, September 24, 2004. The schedule is as
follows:
*First Circuit. Judge Jensen will conduct the ceremony at 3:30 at the Clay
County Courthouse.
*Second Circuit. Judge Severson will conduct the ceremony at 4:00 at the
Minnehaha County Courthouse.
*Third Circuit. Judge Erickson will conduct the ceremony at 11:00 a.m. at the
Brookings County Courthouse.
*Fourth Circuit. Judge Johns will perform the ceremony at 2:30 at the Lawrence
County Courthouse.
*Fifth Circuit. Judge Von Wald will conduct the ceremony at 2:30 at the Brown
County Courthouse.
*Sixth Circuit. Judge Gors will conduct the ceremony at 4:00 at the Hughes
County Courthouse.
*Seventh Circuit. Judge Trimble will conduct the ceremony at 1:15 at the
Pennington County Courthouse.
At the time of this writing, eighty-seven (87) persons are scheduled to take the
Bar Examination in July. We do not know how many will pass or how many will
become active members of our Bar and where they will be located. However, we do
know that those who will become members do need to feel that they are welcome.
They need to understand, what most of us already know, that we have a Bar that
wants all our members to feel appreciated by all of us and to understand that we
are not a nameless and faceless group of people in the Bar directory.
In preparation for the writing of this article, I asked Sheri Anderson,
secretary of the Board of Examiners, to provide me with some historical
statistics on the pass rate on the Bar Exam that I thought might be of interest.
Sheri furnished me with the following information regarding the number of
persons who took the exam and the pass rate:
Feb 1999: 27 took the exam - 74% passed
July 1999: 79 took the exam - 82% passed
Feb 2000: 31 took the exam - 68% passed
July 2000: 78 took the exam - 88% passed
Feb 2001: 21 took the exam - 90% passed
July 2001: 62 took the exam - 92% passed
Feb 2002: 17 took the exam - 94% passed
July 2002: 57 took the exam - 93% passed
Feb 2003: 30 took the exam - 83% passed
July 2003: 65 took the exam - 78% passed
Feb 2004: 28 took the exam - 64% passed
The Board of Bar Examiners believes that the lower pass rate beginning in 2003
does not reflect any change in the standards applied by the Board. Indeed, there
were no changes in standards. The Board’s impression was that the lower pass
rate resulted from the historically very high pass rate which led some people
outside South Dakota, who may have failed bar exams in other states, to apply
for and take the South Dakota bar exam. The Board believes another reason for
the low pass rate may be that the historically high pass rate has led some South
Dakota applicants to believe they can pass without devoting as much time to the
preparation for the exam as have applicants in the past.
If you are able to do so, please take the time out of your busy day to attend
the reception in your area to show your appreciation to our newest members and
their families. You may meet the opposing lawyer on your next file and you will
certainly meet your newest colleagues. Please check, however, with the Young
Lawyers Section Director for your circuit to confirm that the ceremony is going
to proceed because your circuit may not have any new members.
Kudos should be given to the Young Lawyers Section and their Board of Directors.
These lawyers include: President - Anne Marie Feiock; President Elect - Kelly
Marnette; Secretary/Treasurer - Rebecca Morlock Reeves; Board of Directors -
Tiffani Landeen-Hoeke (1st Circuit), Shawn Nichols (2nd Circuit), Kristin Asche
(3rd Circuit), Suzanne Dardis (4th Circuit), Jason Campbell (5th Circuit), Sara
Harens (6th Circuit), Sara Frankenstein (7th Circuit) and Wendy Kloeppner
(At-Large).
You also should know that for the last few years the Chief Justice and the then
State Bar President address the first year class at USD Law School during their
orientation. The Bar is and will continue to reach out to our newest members.
These events are important to all of us to maintain our strong relationship so
that future generations of lawyers know what a great thing we have going in this
State!
July, 2004
How Relevant is Our Bar Organization to Your Practice?
Your leadership is attempting to grapple, in part, with this question by
changing this year our committee system. The committees that previously existed
arose from many sources. Some from antiquity (e.g. the negligence and tort
committee). Some were created by issues that have arisen at various times. The
Bar Commissioners beginning this year have eliminated some of the committees and
have created sections based on practice areas to help lawyers in those areas
communicate with each other. Hopefully, with the assistance of computer
technology, lawyers regardless of the practice setting can discuss relevant
cases, issues and legislative issues.
The Bar Commissioners authorized the creation of the following sections. I have
appointed the following chairs and co-chairs to each section where needed:
SECTION: SECTION CHIEF
Administrative Law: Julie Johnson
Agricultural Law: Jon Lauck
Alternative Dispute Resolution: Chet Groseclose
Business Law: Pat Goetzinger
Criminal Law: Jana Miner (defense)
Debtor/Creditor: Clair Gerry (debtor), Brent Wilbur (creditor)
Family Law: Karen Hattervig
Health Law: Heather Springer
Indian Law: Cheryl Laurenz Bogue
In-House Counsel: Mike Dietrich
Intellectual Property Law: Troy Leonard
Labor & Employment Law: Dick Casey (employee), Don Knudsen (employer)
Natural Resources: Roxanne Giedd
Public Sector Lawyers: (Leadership is elected)
Real Property, Probate & Trust: (Leadership is elected)
Tort, Insurance & Trial Law: Clint Sargent (plaintiff), Roy Wise (defendant)
Sole Practitioner & Small Office: Tom Lee
Workers Compensation: Dennis Finch (claimant), Rick Orr (employer/insurer)
Young Lawyers (Leadership is elected)
In those areas where apparent philosophical differences may exist, I attempted
to balance those interests by appointing co-chairs. My hope is that the
organizational documents of these sections will maintain a philosophical balance
so the Bar has the benefit of views from all our members. The section chairs and
co-chairs will appoint other officers to lead the section this year. After one
year, the section itself will elect its own leadership. The template of the
organization of the section will follow those of the public sector section that
was organized a couple of years ago. The real property, probate and trust
section already also elects its own leadership and also serves as a good
blueprint of the development of sections.
There will be no limitation on the members of each section. Any person who is
willing to pay the sign-up fee ($10.00) can become a member of the section. It
is important, however, that your email address be provided to the State Bar upon
the sign-up so that you may be added to the list serve. In this newsletter there
is a form to be completed and sent to the State Bar office in regard to the
sections that you want to join. Please take a few minutes to complete the form
and send in your check. If you want to be on one of the remaining committees,
you also need to send in your committee preference form.
The Bar staff will have the list serve organized within thirty to sixty days. In
addition, we are in the process of developing a conference call system so that
section leaders can utilize conference calls more inexpensively and efficiently
when needed. From past experiences, list serves have a very useful purpose but
sometimes committees must meet either in person or by telephone to discuss their
issues.
In my view, the committees and sections need to be evaluated from time to time
by the Bar Commissioners to maintain their relevance. Moreover, if a group of
lawyers wants to create its own list serve regardless of the relevance to the
practice of law, I encourage you to do so (e.g. lawyers who run marathons). The
Bar should be a communication vehicle to you with other members to exchange not
only ideas relating to the legal interests but personal interests. Our Bar will
be better if we know one another not only as professionals but also as
individual persons.
My hope is that these sections will foster communication among all our members,
especially our newest members who are much more computer literate than some of
the rest of us. One of the best attributes we have is our own willingness to
help one another. Hopefully, this new venture will continue to strengthen the
professional bonds among our members.
I look forward to being of service to all of you during the current year.