JIM FUGLIE: View From The Prairie — North Dakota Supreme Court: Dancing With Those That Brung You

Three times in less than a month, the North Dakota Republican Party has flexed its muscles and gone to the North Dakota Supreme Court and asked the state’s top five judges to keep something off the November 2020 General Election ballot. Three times they have succeeded.

The result is that:

  • A.  A measure to bring some election reform ideas before the voters to let them decide if they want to, for example, take the power of drawing legislative district lines out of the hands of partisan legislators (aka gerrymandering) and instead turn it over to an independent commission will not be on the ballot for voters to decide on. The judges used a technicality based on an obscure 1924 court case to disenfranchise 36,000 North Dakotans who had signed petitions to get it on the ballot. The court’s vote was 5-0.
  • B. The candidate endorsed for Insurance commissioner by the North Dakota Democratic-NPL Party in an act of either naivete or stupidity will not be on the ballot because she did not meet the residency requirements to hold the office. She voted in Nevada four years ago, and thus had not been a resident of North Dakota for five years as the North Dakota Constitution requires. It’s the same provision that removed Thomas Moodie from the office of governor in 1935 after serving only five weeks, when it was revealed he had voted in Minnesota in 1932. The court’s vote on Martin was 5-0.
  • C. Martin’s replacement on the ballot, Jason Anderson, nominated by the Democrats after Martin was disqualified, will not be on the ballot because, through some convoluted logic I don’t understand, the court ruled him ineligible for the ballot. This time the vote was 4-1, with Justice Gerald VandeWalle voting in the minority.

So let’s talk a bit about those four justices who voted all three times to keep something off the ballot. As I mentioned Monday, all of them were appointed to the bench by Republican governors.

First, Justice Jerod Tufte. The first thing you need to know is that he comes out of the Republican world, having served as Jack Dalrymple’s lawyer when Dalrymple was governor. Dalrymple rewarded him for keeping him out of jail, or whatever governors’ lawyers do, by appointing him to a judgeship in Valley City in 2014, and he was elected to the Supreme Court in 2016.

The second thing you need to know is that he received a campaign contribution of $1,000 from Pat Finken, chairman of the Brighter Future Alliance, which brought the lawsuit against Measure 3 in front of the court. Do you think he maybe should have recused himself?

The third thing you need to know about Tufte is that a number of other Republicans who signed on to the lawsuit in an amicus brief wrote checks to Tufte as well, including Kevin Cramer ($5,000), Doug Burgum ($1,000), John Hoeven ($2,000) and, yes, Wayne Stenehjem (sadly, only $250). Oh, and Shane Goettle, Finken’s lawyer, who gave $500. Let me ask again: Do you think he maybe should have recused himself?

The gifts, though not insignificant, were small potatoes compared to Tufte’s own investment — he wrote a $20,000 check to his campaign in 2016, although he had his wife sign it. It was not a terribly unusual thing for a North Dakota Supreme Court candidate to do, though. Judge candidates often finance their own campaigns to avoid any appearance of impropriety Tufte was just a little late to the dance on that one. And those prominent Republicans who helped get him elected got a pretty good return on their investment.

Three other Supreme Court justices owe their careers to the Republicans, too.

Justice Lisa Fair McEvers was appointed district judge by John Hoeven in 2010 and to the Supreme Court by Dalrymple in 2014. In her 2018 election, McEvers mostly paid for her own campaign, writing a check for $45,000. Her husband was not as generous — he only gave $1,000.

Justice Jon Jensen’s resume reads about the same. He was appointed a district judge by Jack Dalrymple in 2013 and to the Supreme Court by Doug Burgum in 2017.

Justice Dan Crothers was appointed to the Supreme Court by John Hoeven in 2005 and subsequently elected in 2008 and 2012.

So let’s review. Justice Tufte received campaign contributions totaling $8,000 from three very important people — a governor and two U.S. senators — who signed the amicus brief asking Tufte and the rest of the Supreme Court to keep Measure 3 off the ballot. He granted their request.

Justices McEvers, Jensen and Crothers were all appointed to the bench by governors — Hoeven and Burgum — who both signed the amicus brief requesting them to keep Measure 3 off the ballot. Their requests were granted.

What could possibly be wrong with all that?

Only the senior member of the court stands apart. Justice Gerald VandeWalle was plucked out of Republican Allen Olson’s Attorney General’s office by Democratic-NPL Gov. Art Link in 1978 and has served on the court for 42 years. He’s old now and, sadly, hospitalized with COVID-19 in Bismarck but has participated in the recent court cases from his hospital bed. I’m going to forgive his vote on the first case — he’s been heavily medicated while undergoing COVID treatment. Maybe his head was a little clearer when he heard the second and third ones. VandeWalle, by the way, doesn’t take campaign contributions.

Anyway, the timing and similarity of all that has a lot of people shaking their heads in amazement, including some lawyer friends of mine. One of them sent me this in an e-mail this week:

“The increased tribalism and partisan polarization that has corroded the legislative and executive branches of government has now infected our third branch of government: the judicial branch.

“Bush v. Gore, a U.S. Supreme Court case in which five Republican judges chose the president of the United States, signaled the end of any pretense that judges could or would remain above the partisan food fight that swirls around them. An independent judiciary now exists in name only.

“Judges, both state and federal, are selected based upon their partisan attributes and not based upon their qualifications, experience, and scholarship. In North Dakota, campaign contributions from embedded special interest groups also help to insure an attentive and friendly audience at the Supreme Court.

“The three recent decisions by the North Dakota Supreme Court illustrate that fact … to the dismay of all. Historically, appellate courts have avoided being dragged into the fevered scrums of blatantly political cases brought by partisans for partisan, political purposes.

“Mindful of the need to maintain the appearance of propriety and independence, the courts have traditionally exercised the good judgment by letting the voters decide these issues. As these recent political decisions issued by the North Dakota Supreme Court reveal, that time no longer exists in North Dakota.

“The pretense of pretending to be fair, impartial and independent is no longer necessary in North Dakota. In these three decisions, the North Dakota Supreme Court has publicly pronounced that which many have privately stated for years. The North Dakota Supreme Court is a “Wholly Owned Subsidiary of the Republican Party.”

Well. I won’t share that person’s name. That lawyer might have a case in front of the Supreme Court someday. But the key line there was, “The courts have traditionally exercised the good judgment by letting the voters decide …”

When 36,000 people petition the government to change the law, maybe the court should let the people of the state decide if they agree, instead of pre-empting the voters.

In Martin’s case, though, it was pretty obvious that she should know that she couldn’t vote somewhere else and be a resident of North Dakota. And party officials should have screened her a little better.

But what could possibly be wrong with letting the Democrats put a substitute for Martin on the ballot for the voters to decide on, even if he didn’t have a snowball’s chance in hell of winning? Indeed, Justice VandeWalle felt that the statute regarding a substitute candidate was ambiguous and said, “I would err on the side of placing a candidate’s name on the ballot when ambiguity exists in a statute.”

At the risk of sounding like a conservative, I’m wondering if we have a Supreme Court full of “activist judges.” I guess the reality of our political system is that there are going to be partisan connections in the judicial branch of government, no matter what. We just hope those connections don’t influence their decisions. But I think we’ve seen a bit of that here in North Dakota lately. The justices are mindful of the old saying, “Dance with those that brung you.”

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