By Michael Ewald, Class of 2021
South Dakota Chief Justice David Gilbertson’s legacy stretches far beyond one case or opinion. Creating a new system of specialty courts, establishing a program to train and recruit rural legal practitioners, and positively influencing the lives of those he worked with every day will be the lasting impact of the longest-tenured chief justice in South Dakota history. David Gilbertson, the son of a nurse and minister, grew up in Sisseton, South Dakota.
He graduated from South Dakota State University in 1972 with three undergraduate degrees–in history, political science and geography–the first student to do so in just four years. In 1975, he graduated with his Juris Doctor from the University of South Dakota School of Law, where he later crossed paths with fellow South Dakota Supreme Court justices with whom he would later serve: John Konenkamp ‘74 J.D., Steven Zinter ’72 B.S., ‘75 J.D., Glen Severson ’72 B.S., ’75 J.D., Lori Wilbur ’74 B.A., ’77 J.D. and Judith Meierhenry ’66 B.S., ’68 M.A., ’77 J.D. After law school, Gilbertson returned to Sisseton as a prosecutor. Within six months, he tried his first murder case, winning a first-degree manslaughter conviction.
In 1986, South Dakota Gov. Bill Janklow appointed Gilbertson to the Fifth Judicial Circuit. At the time, at the age of 35, he was the youngest judge in South Dakota. In 1995, Gov. Janklow would again appoint Gilbertson, this time to the South Dakota Supreme Court. He would be elected as chief justice in 2001–his first of five terms.
Even beyond South Dakota, Chief Justice Gilbertson has been actively charting the course of state judiciaries. He previously served as president of the Conference of Chief Justices and as chair of the Board of the National Center for State Courts.
Emblematic of the Chief Justice’s commitment to the South Dakota legal system is his championing of specialty courts. The first specialty court, the Northern Hills Drug Court, was established as a pilot program in the Fourth Judicial Circuit in 2006. Within three years, two more drug courts were added in the Sixth and Second Judicial Circuits. Now, there are 19 specialty courts with different concentrations ranging from drug courts, DUI courts, mental health courts and veteran courts operating in South Dakota.
The most common type of specialty courts, drug courts, focus on high-risk, high-need adult felony offenders. The goals of the program include reducing substance abuse and recidivism and increasing public safety by better integrating substance abuse and prevention with judicial accountability in the Unified Judicial System.
Jennifer Williams, a career law clerk for multiple South Dakota Supreme Court justices since 2005, explained that the program is demanding and time intensive.
“It’s not an easy way out,” said Williams. “It would actually be easier to serve your time than to commit yourself to the program. But it’s effective.”
Even the application process is challenging, requiring a holistic evaluation of the applicant and his or her circumstances.
“There is a comprehensive application process where the perspective of many different players with different interests are involved,” said Williams.
“That process is critical to evaluate objectively whether the person would benefit from the program.”
Once in the drug court network, the enrollees find a support system that helps them make lasting change.
“The program focuses on underlying issues that prevent a person from being successful and helps them battle those issues whether it’s employment, housing, mental health or addiction services,” Williams said. “The impact is profound because you change the course for someone who had the potential to be revolving in and out of jail, which means no income and no ability to serve as a parent, further inhibiting the ability for that person to be successful.”
Statistics demonstrate the benefits of the program. According to a report by the South Dakota Legislative Research Council issued in 2018, the “Northern Hills [Drug Court] produced a 67.9% reduction in recidivism for graduates one-year post-program, while the Second Circuit Drug Court produced a 63.3% reduction.”
The secondary benefits are also substantial. More than 75% of the 196 entering homeless participants found homes prior to graduation. Since the program’s inception, 37 children have been born drug-free.
To really understand the impact of the specialty courts, Williams recommended visiting a drug court graduation.
“It is incredible to witness. You will become a believer in the system,” Williams said. “Each step along the way is celebrated, and all the other participants are celebrated too so everyone can see each other’s success. It really speaks to this idea that we’re all broken, but we can all work together to get better.”
Noreen Plumage, director of the specialty courts in the South Dakota Unified Judicial System, worked with Chief Justice Gilbertson as the courts were established. She viewed his steady leadership as key to their development and implementation.
“The word we use is ‘institutionalize.’ It is an amazing feat that he helped institutionalize the specialty courts,” said Plumage. “The Chief is very scholarly, and he worked with the experts to find the best practices and approach.
“One aspect that separates our drug courts from those in other states is that our drug courts were developed from the top down as opposed to a piecemeal approach.”
This led to the development of internal processing rules to ensure the courts maintained the highest professional standards.
“We wanted to prevent rogue courts. It ensured due process exists, that there is consistency regarding who is eligible for the program–all supported by research from around the country. We thought if we follow the data, we will get the positive results we want,” said Plumage.
This approach ensured the courts were successful, but also sustainable.
“Because he cared about the integrity of the court systems–it’s going to stick. There is reporting. There is accountability. He can be assured that what he has helped establish is going to keep going,” said Plumage.
Further, Plumage credited the Chief Justice for involving stakeholders at every level. “Whether it was the Governor’s Office, the legislature, local state’s attorneys, mental health and substance abuse experts–the Chief took everyone’s concerns seriously. It is another reason why the courts have been well received.”
This ensured South Dakota implemented the courts at the right pace and in the right way–efficient and effective at changing people’s lives.
Rural Attorney Recruitment Program
The Rural Attorney Recruitment Program is another example of the Chief Justice’s leadership that will continue to pay lasting dividends to South Dakota’s legal community.
As Suzanne Starr, director of the Rural Attorney Recruitment Program, explained, the idea began to blossom during one of the Chief Justice’s semi-annual visits to every county courthouse in the state.
“He does it every couple years to talk with various Unified Judicial System employees,” said Starr. “He likes to get the perspective with boots on the ground.”
“One challenge he noticed in rural areas is that offices were going vacant. His classmates were retiring without an adequate number of attorneys interested in filling their spots,” said Starr.
Recognizing the growing disparity between legal services in rural and urban areas, the Chief Justice began looking for a solution to an almost existential legal problem.
“The basic building blocks of any community includes legal services,” said Williams. “Small towns cannot function without a public defender, a state’s attorney, someone who can write a will or help someone start a business. Legal services are critical to their survival.”
Like so many other initiatives the Chief Justice led, he started with a thorough examination of the issues.
“During the investigation, we asked law students why they were not considering rural areas. The major fears were overwhelmingly student debt, a worry about a lack of mentorship, and the fears of starting and running your own law firm,” said Starr. “So we looked for an innovative way to address those concerns.”
Soon after, the Chief Justice started leading the charge to develop a pipeline of new attorneys in rural areas. He advocated for an initiative modeled after federal programs, which sponsored doctors in rural areas with scholarships. Ultimately, collaborating with the State Bar and members of the State Legislature, the Unified Judicial System established a pilot program in 2013 to provide qualifying attorneys an incentive payment in return for five continuous years of practice in an eligible rural county with a population of 10,000 or fewer. The funding comes from three sources: 50 percent from the state, 15 percent from the state bar and 35 percent from the county where the lawyer is located.
"We'll miss his wisdom. He served for man years. He's probably the longest serving chief justice in the nation. He was not just admired in South Dakota, but nationally as well. We'll miss his intelligence too. " - Former South Dakota Gov. Dennis Daugaard
The first placement occurred in Douglas County in 2013. Currently, there are 32 Project Rural Practice positions—10 of which are still open for new lawyers. Of the 22 practicing attorneys, 18 are USD law graduates. Five attorneys have graduated from the program with four staying in the counties where they were placed.
The impact is substantial. In addition to the cost savings realized by limiting the number of attorneys that must be brought in from neighboring counties, the attorneys become leaders in their communities as they establish their practices.
“The attorneys often serve in multiple capacities and in volunteer positions,” Starr said. “Once we get them invested, they become an integral part of the towns they live and work in.”
Serving as Chief Justice since 2001, David Gilbertson has played a pivotal role in shaping the judiciary in South Dakota. Presiding over thousands of appellate arguments during his tenure on the bench, many attorneys in South Dakota have only had the Chief Justice at the helm of an appeal.
“He has a very calm demeanor during oral arguments. He’s always very welcoming. Maybe most importantly he doesn’t make it about himself,” Williams said.
This translated effectively into the way he analyzed the difficult and complex legal issues before him and the court.
“His decision style would be to decide every single case for what that case presents before him. He’s an incredibly humble man. He comes into it with a personalized approach. Every case deserves the same weight and consideration. There’s no easy case or no brainers. If the cases were easy, they would not be before the Supreme Court,” Williams said.
When asked to describe his leadership style, Williams summarized it with one word–transformational.
“He, himself, has transformed the justice system, but he has supported and encouraged so many attorneys in their efforts to change the way the landscape looks.”
Former South Dakota Gov. Dennis Daugaard, ’75 B.A., agreed that the Chief Justice’s advocacy skills made him unique.
“Unlike some other supreme court justices around the nation, our Supreme Court Chief Justice cared about policymaking,” Daugaard said. “He cared about our criminal justice system and he was very active in the reform of our adult and juvenile systems. He had many policy initiatives of his own that make him stand out among his peers.”
“I think about him as the driver on the bus. And he always put a bunch of people in the seats with him when he dedicated himself to a program.
He had a lot of credibility with the legislature and the Governor’s Office,” said Plumage.
Beyond his advocacy skills and expertise in the courtroom, most of his colleagues will remember him for his kindness, humor and wisdom.
Richard Lenius, who worked for the Unified Judicial System for 10 years, knows the Chief Justice both as a supervisor and friend.
“I know he is a lot more patient now with technology than when we first started,” Lenius said with a laugh.
“He is the type of guy where if he is in on something, he is fully invested,” said Lenius. “But with everything he has going on, his first question to me is always about how my family is doing.”
The bonds they formed over the course of 10 years, which included transitioning to the Odysseus system, another initiative the Chief Justice led which moved court documents online making them more accessible, developed into a strong friendship.
“He’s become a very close family friend,” said Lenius. “I really consider him a third grandpa to my daughter. I’ve always called him ‘Chief’ and I always will, but my daughter is only three, and she could not really say chief, so she would pronounce his name ‘cheeb.’ Now, when he signs his name on a gift to my daughter, he signs it that way. It is that sense of humor that I’m not sure many people know about him unless you really know it.
“His attention and caring attitude–you can tell he very legitimately cares,” said Lenius. “And he does that with everyone. It is something I try to bring more into my own life.”
One story Williams thought offered a window into the Chief Justice’s persona was the care and attention he provided at the annual swearing-in ceremony for new members of the South Dakota Bar Association hosted in Pierre.
“We were thinking about ways we could make it better and it dawned on the Chief Justice that the families did not get a good view of the new bar members when they take the oath of office. He suggested we change the process, so the families can watch their loved ones raise their right hand and become sworn in as an attorney. It was a game changer,” Williams said. “Then he makes the time to take a photograph with every new admitted member. He is just incredibly thoughtful. He is going to be missed.”
Perhaps most defining about the Chief Justice’s legacy is that universal sentiment—the sense from his colleagues and friends how much he will be missed.
“We’ll miss his wisdom. He served for many years. He’s probably the longest serving chief justice in the nation. He was not just admired in South Dakota, but nationally as well. We’ll miss his intelligence too,” said Daugaard.
“He’s an amazing man and leader. He’s been the Chief Justice for 19 years and it speaks volumes that his peers have consistently voted him for that position for so many years,” said Starr. “He’s trusted and respected. We are going to be very sad to see him go.”
“After he retires, the most senior justice is Justice Kern, who started in 2015,” said Williams. “We’re definitely going to miss his institutional knowledge.”
However, the Chief Justice, like so many other times during his tenure, is taking a measured and calm approach attempting to prepare the next court for life without him on the bench.
“His motto is ‘be prepared,’” said Williams. “One thing he said that has stuck with me is that there are no new problems, just old problems recirculating. It gives me confidence in the future of the court.”
It is that approach that has helped steer Chief Justice David Gilbertson’s steadfast leadership atop the South Dakota Supreme Court for almost two decades. Wise, consistent, deliberate, forward-thinking—it is not only his approach from the bench, but also his legacy.
Chief Justice David Gilbertson (third from right) is pictured with nearly all the living justices who have served on the South Dakota Supreme Court, gathered at USD to announce the law school’s scholarship created in honor of the late Justice Steven L. Zinter (2002-2018). From left to right: Justice Lori Wilbur (2011-2017); Justice Mark Salter (2018-present); Chief Justice Roger Wollman (1971-1985); Justice Steven Jensen (2017-present); Justice Richard Sabers (1986-2008); Justice Glen Severson (2009-2018); Justice Robert Amundson (1991-2002); Justice Janine Kern (2014-present); Chief Justice David Gilbertson (1995-present); Justice Patricia DeVaney (2019-present) and Justice Judith Meierhenry (2002-2011). Not pictured are Justice Laurence Zastrow (1976-1979); Chief Justice Robert Miller (1986-2001) and Justice John Konenkamp (1994-2014).