North Dakota Bar Association Sued!

On September 17th, almost 7 weeks before the North Dakota election, attorney and blogger Robert Franklin stated that the actions of the State Bar Association of North Dakota (SBAND) were “illegal” in their opposition to North Dakota Ballot Measure 6 for Shared Parenting.   The article explained that an opposition group named “Keeping Kids First” had been formed and was using the SBAND e-mail domain  Although this claim was easily substantiated (screen capture below), the North Dakota media stayed silent.

On October 13th, more than 3 weeks before the election, attorney and blogger Rachel Alexander reported the controlling 12 member “Committee” of “Keeping Kids First”, who had chosen not to disclose their profession, included nine practicing divorce attorneys and the Executive Director of SBAND, but the North Dakota media stayed silent.     

On October 14th, 3 weeks before the election, LW4SP reported 100% of the $60,000 in funding then received by “Keeping Kids First” came from SBAND, (screen capture below) but the North Dakota Media stayed silent.

On October 15th, almost 3 weeks before the election, blogger Rob Port reported SBAND donated another $10,000 to “Keeping Kids First” (new total $70,000) and their “donations” came from the mandatory dues of SBAND members.  This piece also reported SBAND’s justification:  

“But Weiler also said the bar association’s governing board has determined this ballot measure isn’t a political issue. “This is a social policy issue rather than a political issue,” he said.

Port also reported that the North Dakota Century Code made no such distinction, stating “a “corrupt practice” is defined as the use of public resources for a ”political purpose,” which includes “any activity undertaken in support of or in opposition to a statewide initiated or referred measure.”  Still the North Dakota media stayed silent.  

 On October 16th, almost 3 weeks before the election, attorney and blogger Tom James reported:

“According to Leading Women For Shared Parenting, though, the Association went beyond that, actually donating some $60,000 of Association money to the outfit to actively campaign against Ballot Measure No. 6. If this is true, then it would seem that a pretty strong case can be made that the Association violated the First Amendment rights of those of its members who support the measure.”

Although similar statements had been espoused by two other attorneys, the North Dakota media stayed silent.  

On October 17th, two and a half weeks before the election, Attorney Robert Franklin again called the actions of SBAND “illegal” and stated:

A court in North Dakota should immediately issue a restraining order against the State Bar Association of North Dakota prohibiting it from further expenditure of members’ dues for a purpose utterly unrelated to the regulation of the legal profession and under procedures that are entirely insufficient according to Supreme Court precedent.

Although Attorney Franklin used a Law Review article to support his case, the North Dakota media stayed silent.  

On October 22nd, almost two weeks before the election, four national Shared Parenting groups issued a press release calling for a civil rights investigation of SBAND.  In the release, the four organizations stated:

“SBAND created a front organization ("Keeping Kids First"), which is led by a 12 member committee that includes nine divorce attorneys (all members of SBAND) and the SBAND Executive Director, to oppose the initiative.  The sole source of funding for Keeping Kids First is $70,000 from SBAND member dues.  The organizations believe the public has a right to know when a group presents itself as disinterested, but is instead a front for deeply invested stakeholders.” 

This press release did not generate a single call from a North Dakota reporter, and the North Dakota media stayed silent.  

On October 23rd, a week and a half before the election, “Keeping Kids First” Chairman Paul Schauer called Measure 6 a “Political Issue.”  This was only 8 days after SBAND justified their “donation” to “Keeping Kids First” by saying Measure 6 wasn’t a political issue.  The media was informed, but the North Dakota media stayed silent.

On October 24th, a week and a half before the election, attorney and blogger Leslie Loftis wrote a piece entitled “When is a Possible Legal Violation by Lawyers Worthy of News Coverage?”  Attorney Loftis went so far as to ask:

“A referendum on a foundation of family law is favored in the polls, funded by individual small donations, and opposed almost exclusively by divorce lawyers who are appropriating state bar money to fund their opposition—this isn’t newsworthy?  Usually the press likes everyday citizens uniting against the corporate machine stories. Granted the big-bad here isn’t a corporate machine but a collection of lawyers. But since when do lawyers inspire less ire than corporations?”

In response, the North Dakota media stayed silent.

Finally, on October 28th, one week before the election, a single member of the North Dakota media investigated and reported on the actions of SBAND.  Chris Berg from Valley News Live conducted an interview with Divorce Attorney Jason McLean whose responses were so transparent and so laughable that even he couldn't keep a straight face while mouthing them.  The SBAND representative actually stated they were spending $70,000 to defeat the Shared Parenting Measure so their members could be in court less and make less money.  Meanwhile, the rest of the North Dakota media stayed silent.

This morning The Goldwater Institute, whose lead council is famed attorney Clint Bolick, filed suit against SBAND for violating the civil rights of its members

Although it will be difficult for North Dakota Shared Parenting advocates to accept, the outcome of this trial may help more children than if the initiative had passed.  That’s because last year the Nebraska Supreme Court restructured the Nebraska State Bar Association in response to that mandatory bar association's lobbying on non-germane legislation, including family law legislation like Measure 6.  As a result, the Nebraska State Bar Association no longer has access to mandatory dues and is now effectively voluntary.  

One such finding could be explained as an anomaly, but two is a trend.  

If the SBAND suit comes to a similar conclusion (and it’s likely given Nebraska and North Dakota are in the same appellate district) Bar Associations across the United States will be on notice.  Additional suits are being considered and any mandatory bar association that uses member dues to oppose shared parenting should consider itself at risk for a civil rights law suit.

Everyone can draw their own conclusion why the North Dakota media felt citizens shouldn’t be aware of the actions of SBAND or that “Keeping Kids First” was but a front designed to make a group of divorce lawyers look like a grass roots organization.  Further, we'll not muse about the results of the election if citizens had been informed of the actions of SBAND or if SBAND didn’t have access to its member’s mandatory dues to pay for a negative advertising campaign larger than most North Dakota companies could ever afford.  

But it does seem fair to ask if the actions (or non-actions) of the North Dakota media, as thoroughly outlined above, aren’t indicative of why newspapers are in desperate trouble and why less than one-fourth of Americans trust them.    

So CONGRATULATIONS TO THE BLOGGERS who performed the investigative journalism the North Dakota media wouldn't and were able to uncover enough evidence and attract enough attention to capture the interest of The Goldwater Institute. 

We look forward to the outcome of these proceedings.