South Dakota Chief Justice on State Courts’ Challenges, Public Service and Rural Access

Episode Notes

Transcript

Chief Justice Steven R. Jensen:

I really came to a full appreciation of the justice gap when I came onto the bench and saw the number of self-represented litigants in the courts and the impact of that, both on the individuals trying to present their cases, but also on the entire justice system and the integrity of the system.

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Equal access to justice is a core American value. In each episode of Talk Justice an An LSC Podcast, we’ll explore ways to expand access to justice and illustrate why it is important to the legal community, business government, and the General Public Talk. Justice is sponsored by the Leaders Council of the Legal Services Corporation.

Ronald S. Flagg:

Hello and welcome to Talk Justice. I’m Ron Flagg, president of LSC and your host for this episode. Today I’m honored to be joined by Chief Justice Steven R. Jensen of the South Dakota Supreme Court. Chief Justice Jensen was appointed to the South Dakota Supreme Court by Governor Dennis Dugard and sworn in November of 2017. He represents the Supreme Court Fourth District, which consists of a collection of 14 counties in the southeast corner of the state. In 2021, he was selected by his colleagues to serve as Chief Justice and he was reselected to a second term as Chief Justice at the beginning of 2025. Chief Justice Jensen is the President-elect of the National Conference of Chief Justices. He also serves as a member of the conferences committee on Legal Education and Admissions reform, known as Clear Chief Justice Jensen, thanks so much for joining me today.

Chief Justice Steven R. Jensen:

Thanks, Ron. Great to be here.

Ronald S. Flagg:

Now, growing up on a farm near Wakanda, South Dakota, when and how did you develop an interest in law and what drew you to it?

Chief Justice Steven R. Jensen:

Yeah, so my background, my family’s background, my great great grandfather came from Norway, immigrated to the US homesteaded the farm near Wakanda. His son was a farmer. My grandfather was a farmer, my dad was a farmer. So I always assumed growing up I would be a farmer. That was really, I guess my vocational goal in life early on. But three things really kind of pointed me toward the law and the first was my dad always told me that he had wished he’d gone to college. It didn’t work out for him before he went to farm, and so he told me, you can always come back and farm, but you need to go to college first. And so he really from a young age talked to me a lot about the importance of that and wanted me to get a college education. Second, I didn’t know a lot of lawyers and had never met a lawyer before I went to college, but I really had an interest in history government.

I read a lot of books, obviously a lot of lawyers crossover in those areas and really started to develop an interest in being a lawyer. And so that was second. And then last when I was in college, I did a internship on Capitol Hill. The legislative director for the senator that I worked for was a great mentor that summer and talked a lot. He was a lawyer, talked a lot about going to law school, what it was like to be a lawyer and the importance of doing good as a lawyer. And that really sealed the deal for me, that opportunity.

Ronald S. Flagg:

What a great story and what a great story of really you’re in. My generation benefited from education and the children of parents who didn’t necessarily get a chance to go to college were able to succeed in life in some sense by getting a great education after law school, you clerked for Justice Richard Saber of the South Dakota Supreme Court and then entered private practice for around 20 years before moving to the bench. Today you’re a dedicated supporter of civil legal services and committed to closing the justice gap that exists for those who can’t afford an attorney for their civil legal needs. Between your first year of law school and becoming a chief justice, how did that civil legal justice gap come to your attention?

Chief Justice Steven R. Jensen:

Yeah, unfortunately, I don’t know that I really heard a lot about the justice gap in law school, or at least I wasn’t aware of it at that time. Most of the emphasis in law school was really getting good grades, getting on law review, clerking for a law firm and ultimately getting a job in private practice. So I think that was kind of my focus in law school and maybe I just missed the other side of the legal profession, but in private practice I primarily handled civil litigation business, commercial employment cases, and I really enjoyed that work, but I also had an opportunity to regularly handle pro bono cases and really found that to be fulfilling and enjoyed that work. I had two great mentors early in my practice. They were fantastic attorneys, great attorneys, but they also emphasized the importance of professionalism and also the importance of giving back and the legal profession.

And so I think that the two of them really were great influences on me in terms of thinking about our obligation as lawyers. We’d be given a lot we need to give back, but honestly, I would say that I really came to a full appreciation of the justice gap when I came onto the bench and saw the number of self-represented litigants in the courts and the impact of that, both on the individuals trying to present their cases, but also on the entire justice system and the integrity of the system. And so I have to say it was really kind of later in my legal career that I came to fully understand the significance and the importance of that justice gap.

Ronald S. Flagg:

Well, I’m going to want to come back to that theme in a moment when we talk about your work on the committee on Legal Education and Admissions Reform. But before we go there, I’d like to talk a little bit about the conference of Chief Justices. The conference brings together the highest judicial officers from every state and territory across the country really to share knowledge about state court systems and discuss the major challenges facing your courts. For example, the conference played a major role in sharing innovations and best practices as COVID spread. Could you talk about why this collaboration is valuable and what the conference of Chief Justices is able to achieve through it?

Chief Justice Steven R. Jensen:

Yeah, I’d probably start Ron, and you know this about 97, 90 8% of the cases filed in the United States are filed in the state courts. And so state courts have a really unique role of being close to their communities, resolving everyday disputes and protecting the rights of litigants, but also ensuring everyone has an opportunity to be heard. So you put all that together, and that sounds maybe relatively simple when I say all that, but there’s a lot to that in terms of ensuring access to the courts and in terms of ensuring people have an opportunity to be heard. And so these are the challenges state courts face and the conference has really been good on working on initiatives, collaborating on projects such as mental health initiatives, I proving access to justice to the court and of course clear, which maybe we’ll talk about a little bit more, but some of those initiatives have been so important, not just nationally, but also in individual states.

The National Center for State Courts, which is overseen by the conference of Chief Justices and the conference of state court administrators is really an important part of that and providing assistance to the courts. We use them as a small state. We use the national center so much to assist us in providing expertise in areas that we just don’t have the staff to be able to do that. The other thing I would say is just the individual one-on-one opportunities to, there’s some amazing chief justice across the country and the opportunity to collaborate with them and talk about things that are working in their courts, things that aren’t working and really share ideas across the spectrum. The last thing I’d say is, and this has been a real emphasis particularly the last few years, and our focus is how do we improve the courts? We don’t talk about politics and we don’t talk about, we’ve got red states, blue states. That’s not part of our focus and that’s not what we talk about. We talk about how we can improve the work we’re doing, and I think that’s really been a recipe for success for us, particularly in the climate we’re in today.

Ronald S. Flagg:

Yeah, I had a terrific opportunity and LSC had a terrific opportunity to collaborate with the conference of chief Justices as well as the conference of state court administrators in looking at the opioid epidemic and how it affected everyday Americans and how it affected the courts. And it obviously also implicated civil legal aid because there are a lot of civil legal issues that come up in the context of opioid use disorder. And we did some terrific work in educating both the courts across the country as well as legal aid programs across the country about some optimal practices in helping people who are trying to work through and recover from opioid use disorder. Now, another collaboration you and I had was the chance to work together as part of clear the Committee on Legal Education and Admissions Reform. You were chair of a working group that I was a member of focusing on public interest and public service attorneys Clear published its report and recommendations just last year in July, 2025. And one of the reports major recommendations was the need for courts to better champion public interest lawyering. What from your perspective are the barriers preventing law students and lawyers from pursuing this type of work and how do you see the courts helping to address them? You mentioned that as a law student, the civil justice gap hadn’t been much in mind, so maybe that’s an area that law schools and all of us can think about.

Chief Justice Steven R. Jensen:

And maybe I can just go back and talk about CLEAR and really the initiative and what that involved. And I think we realized, and the more we studied and looked at this, this was really a two year effort. We’ve just started Clear 2.0 this year in January, and that really is about implementation of the things we’ve put into the report. But CLEAR was really an effort really for the first time by state courts as regulators of the legal profession to look at law licensure practice readiness, and then encouraging lawyers to engage in public interest law. I mean, those were really the three focuses of our effort. And as it relates to public interest law, and you were involved in our subgroup, and so you know this, but studies show that most law students go to law school for the same reason I did. They want to make a difference in people’s lives.

They really want to work with people and they recognize a tremendous opportunity we have as lawyers to make a difference in people’s lives and lives of individuals and families. But what we often see these studies show is that what they call public interest drift, where an individual enters law school with sort of wide eyes and excited about making a difference, and then sometimes the economic practical realities of the cost of legal education, lower salaries and public interest law. And so there’s some of that drift. But the other thing we saw as we talked, we did about 15 gatherings around the country with lawyers and law schools and the legal profession and to really talk about these issues. And one of the things we heard and that we saw is that oftentimes in law school, there isn’t always an emphasis on public interest law in the law school, bar associations and even some of the public interest organizations are not doing as much recruiting as say the private law firms in law school.

And so much like my experience, law students don’t always have the opportunity to or maybe don’t understand or have the as much experience on the public interest side because they see private practitioners coming in and talking about private practice. And so part of that I think is just raising an awareness both in law school and even coming right out of law school of the importance of a public interest law and raising the prominence of it. And I think one of the things we talked a lot about, as in our clear group as leaders in the profession, as regulators of the profession, that’s something that the courts need to be champion and really need to be emphasizing both in law school and postgraduate. We also, and we’ve talked a lot about this, the economic realities. There are some programs out there today that are certainly helpful and beneficial for individuals that are wanting to work in public interest law, but can we work with our state legislators? Can we work with private entities to really think about how we can really enhance those economic opportunities for individuals engaged in public interest law? So that really was a lot of our discussion on the public interest side.

Ronald S. Flagg:

Well, another clear recommendation focused on encouraging rural practice. I recall about 15 years ago, I spoke to one of your predecessors who was the chief justice of South Dakota at the time, and he underscored that, unlike in the district of where we have I think over a hundred thousand members of the DC bar, although not all living in DC that in South Dakota, there were a number of counties with no lawyers or maybe just one lawyer, the county judge or county prosecutor, and as I say, clear focused on encouraging rural practice. And the problem of legal deserts is a real one, not just in South Dakota, but across many areas of the country, including a number of states that have large urban areas, but other areas of the states are more sparsely populated. Now I know that South Dakota has been working to increase the supply of attorneys in the state generally and for more than a decade now, particularly in rural areas. Can you tell us about the approaches that South Dakota has tried and how effective they’ve been?

Chief Justice Steven R. Jensen:

Yeah, our statistics in South Dakota and we’re not unusual, I think most states, as you alluded to, Ron, have the same issue with rural deserts and areas where there just aren’t lawyers available. So in South Dakota, we have six counties where there are no lawyers. We have 23 counties with three or fewer lawyers, which is almost half of our counties, not quite across the state. And the other thing we’re seeing is the graying of rural lawyers and that a lot of the rural practitioners today are toward the end of their careers, and we’re not seeing a lot of younger lawyers going in and replacing those lawyers that are getting closer to retirement age. So statistically, most of our young lawyers go into Sioux Falls or Rapid, our two primary metropolitan areas in South Dakota. So for example, in Sioux Falls, 64% of the lawyers are located in the metro area in Sioux Falls, but about 35% of the population.

That gives you a little sense of a little bit of the disparity from a statewide perspective. Of course, a lot of the counties where there aren’t lawyers available or sometimes some of the poor counties, a lot of our reservation counties in South Dakota, and that’s an area that we continue to struggle in. So really three efforts that we’re still working on and continue to work on. But the first was the Rural practice Program, which was started by our prior chief Justice about 10 years ago. And that program is a partnership between the court system, the state bar and local governments who contribute funds to reimburse the cost of law school tuition over a period of five years to individuals who are willing to go and practice in a rural community. And they get reimbursed monthly over that five year period of time. And that’s been a really nice, because you’ve got theBar interested and they can provide mentoring the court system who can do a lot of the outreach and to the local governmental entities and are certainly aware of where we need more lawyers and then local governments.

And we’ve seen some of the counties or cities that qualify for the program who not only provide some of the funding but have also when a lawyer moves in, they’ll say, we will find a spot for you. We’ll get a building. We will try to create a nice office setting for you. So it’s really been a nice partnership. And as I mentioned, the program has been in place for about 10 years and most of our participants have stayed after they’ve completed their five years and continue to practice. We’ve had some lawyers from out of state that had no connection to South Dakota that we’re practicing in large cities and said, I want to come out and practice in rural South Dakota. And we’ve had not a lot, but we’ve had a few of those lawyers and that’s been a really nice fit as well. So that’s one of the efforts that we’ve worked on over the last 10 years and continue to work on.

And the second program, relatively new program is our alternative pathways, which is alternative law licensure program where we’ve created an experiential program in the third year of law school at the University of South Dakota and allow students to work for a public interest entity such as a prosecutor’s office, a public defender’s office or legal services entity. They have a supervising attorney. During that third year, they create a portfolio of work and then theBar examiners review that portfolio to determine competence. They’re also then graded on the work through the law school. So they’re being reviewed both from a professional standpoint and from a law school standpoint. And then they take the professional responsibility exam, undergo the standard character and fitness review, and if they pass the program and then also graduate from law school, they receive their degree and their law licensure simultaneously when they graduate. We’ll have our first graduates coming out this year in 2026, graduating class.

And in return for participating in the program, they agreed to practice in a public interest public service job for a period of at least two years. And we’re hoping that some of those individuals will stay and make that a career over the course of their legal practice. I mentioned that program because it’s one of our public interest programs, but it also, we’re talking with some rural practitioners now and we hope to expand that in the next couple of years into a rural practice program that would also encourage lawyers going into a rural practice setting. Our third effort is we’ve worked with the legislature for the last really three or four years for working on reorganizing our internet defense system in South Dakota. We’ve always had a county funded system, which as you imagine, as I mentioned the statistics earlier, a lot of those rural counties we don’t have lawyers to practice in.

And so lawyers are even driving hours or sometimes we’re just struggling to find lawyers, particularly in more serious felony cases to be able to participate. And so we’ve created an state appellate office, and our next effort is to really work toward creating some regional offices that will be able to provide incident defense in criminal cases in counties where we really struggle to find lawyers, particularly rural counties. So those are some of the programs we have going. There are a lot of barriers to rural practice and encouraging that rural practice, but we hope that some of these programs will alleviate some of those gaps that we have today. On the rural practice side,

Ronald S. Flagg:

That’s an impressive and broad array of different approaches to trying to address these issues. And one thing that strikes me, whether it’s in South Dakota or elsewhere, and for that matter, whether it’s in rural areas or urban America, that when you have these difficult problems, whether it’s the legal deserts or the shortage of lawyers going into legal aid or public defender practices, the solution require leadership. These problems don’t solve themselves. Somebody has to stand up and get a group together and work collaboratively. So they require leadership and then strategic thinking because if you just throw darts at the wall, you’ll end up with a lot of holes in your wall and probably not much accomplished. But you’ve obviously in South Dakota had some great leadership as well as strategic thinking. And for those of our listeners who want to hear more about the rural deserts and some of the solutions to rural deserts both in South Dakota and across the country, LSC has sponsored a rural justice task force, which issued its report last fall, and you can find it on our [email protected].

Now chief, another approach, another set of initiatives for dealing with the justice gap is technology. Technology is certainly a major tool for increasing access to justice, and I’ve heard from some rural judges and attorneys that the ability to have court online is saving people a lot of time and many miles traveled that became even more pronounced during the pandemic. But I’ve also heard from others that many people they serve aren’t equipped to engage with virtual court or with online self-help resources or that culturally they find that some people just value doing business face-to-face and not remotely. In your experience, how do these points resonate with you and how are South Dakota courts approaching implementing technology?

Chief Justice Steven R. Jensen:

Yeah, there’s no doubt that remote proceedings are time savers, money savers, and the other thing that we’ve seen are some of the safety and cost considerations of avoiding maybe volatile proceedings in the Courtroom as well as transporting inmates to court. We’ve got, again, some of the rural counties where they don’t have jails. Sheriff’s office will transport sometimes an hour or so back and forth. And so there’s definitely some many efficiencies created by remote proceedings. But as you’ve indicated in your question, there are trade-offs as well, which I think we’re seeing. And as we’ve moved out of the pandemic for the last several years, which is really where most courts really developed some robust remote proceedings and the equipment to do that, I think we’re learning what some of those trade-offs are. And I’ll just give you a few of the comments I’ve heard from both judges and practitioners about the importance of coming to the Courtroom and the courthouse visiting in person with your opponent before the hearing and maybe afterward, and not only just from talking about the case, but also sometimes developing relationships that are very positive as well, getting to know the other judges court staff.

And I think along that same line, I’ve heard maybe some loss of professionalism when proceedings are held remotely and maybe sometimes an absence of that in some of the remote proceedings or maybe just people don’t developed the relationships, maybe they used to, and when court was held in person, another common trade off I’ve heard is young lawyers missing out on, and I had this experience in my career on some on the job training of sitting in the Courtroom waiting for your case to be called and seeing maybe some of the good things and bad things that can either save you or get you into trouble in the Courtroom. And so I think those are some of maybe the trade-offs or some of the things we have to think about as we are really, as I said a few years ago to the court as we talked about rule changes and things, the genie is out of the bottle.

We’ve got to just decide how best to make this work within our system. And as far as access, our courtrooms are much better equipped to handle remote proceedings today. We’ve done some training, had a lot of discussions, some rule revisions around some of particularly types of proceedings that are appropriate for remote access. And I would say for the time being, at least in South Dakota, our judges generally try to set up any type of evidentiary hearing in person. And so some of the hearings where we have legal arguments or initial appearances, things like that, but really my belief is when you’re talking about credibility of witnesses and ability to introduce exhibits and particularly for self-represented litigants, that’s really hard I think when they aren’t in the Courtroom. And so that’s kind of where our line generally has been drawn here in South Dakota. And I also think our court staff is pretty good about communicating with litigants, particularly when they’re self-represented and about their ability to participate and what it looks like.

And we’re continually doing training on that, and that’s an effort that we’re working on. And this is a little bit beyond your question, Ron, so stop me if I’m going too far. But when it comes to technology, the thing that I think we have to talk about today is AI and how that’s impacting the court system. And we’ve all read about and heard about some of the high profile cases where judges or lawyers have cited fake citations and that AI is generated. I can’t say we’ve had a lot of problems with that in South Dakota, but we are seeing within our courts a lot of AI generated filings from self-represented litigants. Sometimes that’s helpful, but sometimes it’s just a lot of volume that our judges and court staff have to work through. And so that’s an area that I think is going to continue to increase, and we’re going to have to think about how do we staff that? How do we make sure, as I like to say, we find the nuggets in that volume of information and actually know what’s being presented and what’s being argued. And that’s so important in terms of people having the opportunity to present their case. And so again, that’s a little bit off your question, but I just think that’s an area that we really struggle with in the court system and are thinking about how we work through some of those challenges.

Ronald S. Flagg:

No, I think it’s actually dead on. I mean, you and I both know that across the country, somewhere north of 90% of low income people facing civil legal problems don’t get the help they need. And certainly AI is a potential resource to them and a potential resource to making a material difference on the justice gap. But obviously the sorts of issues that you’ve mentioned need to be addressed so that it’s a credible and useful resource and not one that causes problems. But Chief, it has been a real pleasure to speak with you. I think the issues we’ve been talking about, justice gap, the rural deserts, the use of technology and innovative programs, as I said before, really require leadership and strategic thinking. And folks in South Dakota are lucky to have you as Chief Justice, as has been clear from our conversation, I want to thank you for your support of civil legal services and for taking the time to share your thoughts with us today. I look forward to continuing to collaborate with you in the conference of Chief Justices going forward.

Chief Justice Steven R. Jensen:

Thanks, Ron. I just wanted to say, first of all, I wanted to say congratulations on getting most of your funding this year, at least through Congress. That was great news a couple of weeks back. But the other thing I just want to add, and this gets back to my comment about coming onto the bench and realizing the justice gap and what legal services provides to our court system, the opportunity to have a lawyer on each side and a case really impacts our system and the opportunity to decide cases, make decisions that really are well thought out and we have good arguments and good evidence on. And so the work of legal services in South Dakota and I’m sure throughout the country is so appreciated by our court system. So I just want to thank you and Ron and for Legal Services Corporation for the support you provide, not only to South Dakota but throughout the country.

Ronald S. Flagg:

Thanks so much and thanks to our listeners for tuning in to this episode of Talk Justice. Be sure to subscribe so you don’t miss an episode. Stay well.

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