Dang it, the Bismarck Tribune stole my headline this morning, pointing out on the front page there’s going to be a “3-way” over in the North Dakota Supreme Court on Friday morning, in the case involving the District legislative seat. If it turns out to be a good “3-way,” somebody’s going to get screwed. In fact, more than one somebody is going to get screwed. Maybe three somebodies are going to get screwed.
Actually, the way it is playing out, this is more like a “cluster …” than a “3-way.” So far, about 10 lawyers have weighed in on who should be the next state representative from District 8, as the result of a dead guy getting elected Nov. 3. We taxpayers are paying for about half of them. And that really pisses me off.
Because this is Billionaire Doug Burgum’s fight, and he should be paying for all of them. I’m guessing the state’s meter is going to be running at the rate of a couple of grand an hour. I could think of about a hundred better ways to spend our tax dollars, and for the governor to spend his time, trying to keep people alive during this pandemic rather than trying to keep one of his archenemies out of the Legislature.
I’m not going into all the details here. You’ve been reading about them in the papers. Burgum helped knock off Rep. Jeff Delzer in the June primary. Then one of the candidates he supported died a month before the election. But the dead guy got elected. For the past couple of weeks, Burgum and Attorney General Wayne Stenehjem have been squabbling over how to fill the empty seat that will exist when Delzer’s term expires Nov. 30 and his duly elected successor is dead.
Stenehjem has taken the side of the District 8 Republican Party establishment and most of the state legislators (at least the 85 percent of them who are Republicans) and basically is saying that Delzer gets to keep his seat as chairman of the House Appropriations Committee.
Gov. Burgum has appointed someone one else to take Delzer’s seat, citing one section of the North Dakota Constitution.
The Democratic-NPL Party says their candidate should get the seat, citing a different section of the constitution.
Stenehjem has seemingly said “Screw the Constitution, I’m the Attorney General and I’m making the laws here. We’re going to go by something called the ‘American Rule,’” which hereafter will be called “Wayne’s Rule”.
Well, Wayne’s Rule applies at least until the five men sitting behind a big bench at the front of a courtroom (or in front of television monitors) tell them all to take their “cluster ….” somewhere else.
At least 10 lawyers, at last count, have their names on briefs filed with the court and will be eagerly awaiting a chance for an orgasmic celebration over one of the most trivial political arguments I’ve ever seen, the question being whether the Republicans will hold either 79 or 80 of the House’s 94 seats, and if it is 80, who’s going to be that 80th Republican.
Burgum picked this fight by putting a couple of million dollars into a SuperPAC this past spring, taking sides in primary election cases between members of his own party (if they will continue to have him as a member after this is all settled). But now that it’s court time, he’s stiffing the taxpayers for the costs involved in a lawsuit he filed to protect his investment.
For a while, the case was just a clash of titans — Burgum vs. Stenehjem — who work about 50 feet apart, across the Great Hall of the North Dakota Capitol from each other. But now, we’ve got lawyers flocking to the Capitol from all over.
On Friday morning, we’ll be paying for three lawyers from the Vogel Law firm (whose names are not important to this story) who are representing Burgum, and government attorneys John Bjornson and Matthew Sagsveen, representing the Legislature and the rest of state Capitol, except the fellow who works across the hall.
We won’t be paying Bismarck lawyer John Olson, who’s apparently representing the District 8 Republican Party and its favorite son, Jeff Delzer. I’m not sure who’s paying him. The Democratic-NPL Party is being represented by a couple of high-powered eastern North Dakota lawyers, Duane Lillehaug and David Thompson. I think they are good Democratic-NPL soldiers volunteering their time.
I’ve read all the briefs filed by the lawyers, and even for a layman like me, they are pretty interesting. Stenehjem’s lawyers, for example, argue that the court should uphold the votes cast for the dead guy, Andahl, because those votes were considered a “protest against the qualified person (the Democrat, Kathrin Volochenko).”
But the Democrat lawyers representing Volochenko say that “The function of the voter is to express an affirmative choice of some person; not to content himself with merely expressing his disapproval of certain candidates. If a vote for a man known by the voter to be dead can be counted, then a vote for a stick or a stone or for “the man in the moon” could be counted too, they argue.
Citing a similar case that took place in Montana some years ago, the Democrat lawyers said, “Voters do many things with their ballots that are unpredictable and indecipherable. Some vote for “cheese pizza” or “Abraham Lincoln” or “Tim Tebow.” Were Abraham Lincoln, for example, to receive the second-most votes in District 8’s legislative race, it would be absurd for this court to say the Republican Party organization in Washburn gets to choose who fills Abraham Lincoln’s seat.”
Somehow, even Mickey Mouse and Oprah Winfrey even got cited in one of the briefs. If you want to read all of them, you can go to the North Dakota Supreme Court’s website. There you’ll also find briefs by a couple of “friends” who have gotten involved for some reason.
A fellow from Connecticut named Tyler Yeargain, a scholarly young law professor who claims to know something about these kinds of situations, apparently recruited by Burgum to provide moral support, sent in a brief to the court supporting Burgum’s position. Yeargain’s claim to experience is that he worked on “election security” for the Florida Republican Party before graduating from law school this past year. Uh huh. There’s some real credibility.
So far, though, I’ve found the most interesting player is a Fargo lawyer named Jonathan Garaas. Garaas filed his own amicus curiae brief, seemingly out of the blue, writing, “The undersigned represents that he is an attorney licensed in the state of North Dakota since 1973, and when asked by a family friend what happens when a candidate dies before an election, performed a couple of minutes of research and determined to give a permissible friendly/attorney’s advisory opinion to that friend that no controversy presently exists under North Dakota law. Further, the governor has no power to appoint — no vacancy yet exists.”
Garaas went on to say that he “authored this brief in whole, with the assistance of David Garaas (his brother and law partner), another North Dakota licensed attorney, when each had a couple of hours to squander while socially distancing in our office. No one has contributed money for the preparation of submission of this amicus curiae brief.”
In his “summary of argument,” Garaas wrote, “the governor has no power to appoint — no vacancy exists. Further, the North Dakota Supreme Court should not issue ‘advisory opinions.’”
Garaas pointed out that Rep. Jeff Delzer’s term does not end until Nov. 30, so there was no vacancy for Burgum to fill. He then said that Andahl was not elected because he was not a “qualified elector” and did not live in the district, since he was dead, and therefore was not eligible to be elected (something I first pointed out here a couple of weeks ago).
Finally, Garaas said that the Supreme Court is only being asked to “give an advisory opinion in a matter controlled by law.” Advisory opinions are “ill-advised,” Garaas said. “This is a political case between two (2) different branches of government with the law clear as to the result; the third branch should bow out.”
Well, sort of respectfully. I don’t know Jonathan Garaas, but he’s sure throwing cold water on this “3-way.” I am guessing he is mostly retired, and not worried about having to argue any cases before the current Supreme Court. I do remember he and his brother are the sons of a lawyer involved in another controversial appointment, John O. Garaas, who back in the 1970s, was the subject of a Supreme Court case when his appointment to a district judgeship by Gov. Art Link (the two were old friends from McKenzie County) was challenged by a bunch of “Fargo establishment” lawyers.
Garaas was Cass County State’s Attorney at the time and had apparently ruffled some feathers in some of the county’s prominent law firms. They challenged Link’s right to make the appointment. Jonathan, a young lawyer at the time not too many years out of law school, represented his father’s interests in that case, alongside Bismarck lawyer Albert Wolf, who argued on behalf of Link, and the two prevailed. The court upheld Link’s appointment, and the elder Garaas served as a district judge for about 10 years, and with distinction, in the opinion of some lawyers I talked to.
I don’t know who put the burr under Jonathan’s saddle to get involved in this case, but I sure enjoyed his brief.
And so the orgy starts at 9 a.m. Friday. There’s only about 10 days until the Legislature meets in its organizational session, so the court is going to have to sort this out pretty quickly, or three different people claiming to be a District 8 legislator will show up to be sworn in.
As I’ve said before, the five most dangerous words in the English language are “I’m not a lawyer, but …” I won’t be surprised by anything that comes out of this court. It could ignore the state constitution and support Stenehjem, in which case Jeff Delzer will be sworn in for a new term Dec. 1. It could support Burgum and tell him it agrees that a vacancy existed and the coal company guy Burgum appointed, Wade Boeshans, could be sworn in. Or it could throw a bone to the Democrats and agree than the third-place finisher, Kathrin Volochenko, could be sworn in.
Or, more likely than any of those three scenarios, it could just dismiss the lawsuit, tell everyone the Legislature is the judge of its own members, so just take your silly arguments away from our chambers and settle your own political differences yourselves. This is about politics, not the law. Like I said, I’m not a lawyer, but… don’t be surprised if that’s what they do.