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The end of a circuit court era: With retirements, SD has seen changeover on the bench

As circuit court judges from the Baby Boomer generation have reached that age, a generational turnover in the circuit courts has occurred. Now, all but seven of the state’s circuit court judges were appointed by either Gov. Dennis Daugaard or former governor Mike Rounds. (Graphic by Troy Becker / Forum News Service)

After nearly 40 years as a judge in South Dakota’s Seventh Circuit, Judge Jeff Davis’ final term is up in January.

Davis, of Rapid City, recently turned 70, the age at which circuit court judges must retire, making him one of the last to do so in quick succession over the last decade.

Spread across seven judicial circuits, South Dakota has 43 circuit court judges, each of whom, like Davis, can potentially keep their jobs until they turn 70. In the seven years he’s been in office, Gov. Dennis Daugaard has appointed 27 of the current 43 judges on the bench.

“By the time he leaves office, it’ll probably be almost 30 circuit judges out of the 43, because we have a couple more vacancies coming up here at the end of this year,” Daugaard’s Chief of Staff Tony Venhuizen said. “And that’s really a function of age.”

As circuit court judges from the Baby Boomer generation have reached that age, a generational turnover in the circuit courts has occurred. Now, all but seven of the state’s circuit court judges were appointed by either Daugaard or former governor Mike Rounds. Of those remaining seven, five were elected in 2014; one, Jon Flemmer, was elected in 1998; and Davis, the longest-serving circuit court judge in the state presently, was appointed in 1979.

First Circuit Judge Tami Bern, of Vermillion, said the recent increase in the turnover of judges made her transition more difficult. The First Circuit covers Aurora, Bon Homme, Brule, Buffalo, Clay, Charles Mix, Davison, Douglas, Hanson, Hutchinson, McCook, Turner, Yankton and Union counties.

“Our circuit was hit particularly hard all at once,” Bern said. “We had Judge (Tim) Bjorkman, who retired; Judge (Glen) Eng retired; Judge (Gordon) Swanson, who was the magistrate in Mitchell, was appointed to the Fourth Circuit Court … Because of our shortages in circuit, it was a more painstaking transition than it would’ve been if we’d been fully staffed.”

According to Venhuizen, age doesn’t play much of a role in the governor’s selection of judges, and most applicants are between the ages of 30 and 60. While the current circuit court judges have a range of ages spanning more than four decades, a repeat occurrence of a generational turnover like the present one is not totally out of the question, as it is unlikely every circuit court judge will remain in the circuit court until they turn 70.

In addition to the fact that some judges retire before age 70, this is in part because circuit court judges are often promoted to larger jurisdictions — for example, all five of the current South Dakota Supreme Court justices were formerly circuit court judges — and because judges can be challenged in elections every eight years.

While 2014 — the most recent election year for the circuit courts — saw five circuit court spots filled by new judges, election challengers are fairly uncommon; Davis, who has now held his seat through five election cycles, has never had anyone compete for his spot.

The qualifications for the job

South Dakota has three levels of judges. Magistrate judges, who typically deal with lower-level misdemeanors and civil cases, are chosen by presiding circuit court judges in their respective circuits. Judges in the circuit courts, which have original jurisdiction over civil and criminal cases, and the Supreme Court, which is primarily an appeals court, are appointed by the governor.

During his tenure, Davis said he’s seen significant changes, such as the creation of drug courts and other specialty courts. Although he was twice asked to go to the state’s Supreme Court, he said he prefers the circuit court, as its day-to-day operations better suit his interests.

“It’s nothing against the Supreme Court,” Davis said. “My interest was in the trial court. It’s an active court. You’re kind of working and helping with the people every day instead of setting broad policies and establishing law.”

Circuit court and Supreme Court judgeship appointments in South Dakota follow the same general process. First, when a position opens up, it’s advertised, and candidates have a specified window of time to fill out an application.

“The application is pretty long and detailed,” Venhuizen said. “They also require a criminal background check, and they look at the bar association to see if there’ve been complaints against you as a lawyer. They look at your credit report, that type of thing. They hire an investigator who goes around and interviews people you’ve worked with, lawyers and judges and other people, to kind of get their attitudes about each candidate, and then they interview the applicants.”

That investigation is done by the Judicial Qualifications Commission, which consists of seven members — two appointed by the governor, two elected by the circuit court judges from among themselves and three who are lawyers selected by the State Bar Association — and is tasked with figuring out which of the applicants is qualified to be judges.

The commission then passes a list of at least two approved candidates to the governor, who can then either make the final decision from among those names or reject the list and make the commission start over.

Understanding the process

Jon Erickson, of Huron, who was a judge for 30 years in South Dakota’s Third Circuit, said he thinks the in-depth screening of potential judges that takes place when judges are being considered for appointment makes the process more fair than the election process.

Erickson, who also served two terms on the Judicial Qualifications Commission, said that while in his experience, most governors interview candidates personally and there are no major differences in what they are looking for, there are some small differences that vary from one governor to another during the appointment process. For instance, Daugaard has created a four-person panel, made up of himself, Venhuizen, Lieutenant Governor Matt Michels and Policy Advisor Matt Konenkamp, which he utilizes during the interview process.

“My experience was (that) the lawyer governors were less likely to bring in politics and more interested in getting judges with experience and more interested in a person’s judicial philosophy,” Erickson said.

In addition to appointing nearly two-thirds of the state’s circuit court judges, Daugaard has also appointed three of the five current Supreme Court judges, as well as a fourth judge who has since retired.

Venhuizen said Daugaard typically tries to interview all of the people approved by the Judicial Qualifications Commission, but that this might not happen if he is given a long list of names or if he’s previously interviewed someone on the list. Daugaard has also selected who he wants to interview based on their written application, Venhuizen said.

Erickson said that experience, not politics, age or the potential to be groomed for a courtroom with a larger jurisdiction, is typically what matters most to both the Judicial Qualifications Commission and to governors. He said that while he was serving on the commission, candidates’ writing samples would be critical, as they showed both how the prospective judges both wrote and thought, and that in addition to extensive background research on case history, candidates were asked what they would do in a variety of situations.

“(Daugaard) likes to see people who have experience just generally,” Venhuizen said. “He puts stock in the comments that people’s colleagues have about them; you want to appoint somebody that’s respected and well thought of in the bar. He also looks for people who have what I think the governor would call emotional maturity. You want someone who can conduct themselves in kind of a calm way and with a certain amount of dignity and decorum and isn’t going to overreact to situations.”

Bern said that although judge turnover has made transitioning more difficult for recently appointed judges, there isn’t much she would change about the way things are run.

“I think there is something to be said about institutional integrity,” she said.

As he enters retirement, Erickson said he’s looking forward to traveling and improving his golf game, although he also signed a contract to occasionally handle conflict cases. Davis, meanwhile, said he doesn’t currently have any concrete plans after he moves out of his position in January, and he hopes he’s contributed to positive changes.

“I’m going to miss it. It’s been a good gig,” Davis said.