In 2014, multiple attorneys and advocacy groups reported on the improper actions of the State Bar Association of North Dakota (SBAND) regarding their unlawful use of mandatory bar dues to oppose a ballot measure. Despite repeated outreach to the North Dakota media, only Chris Berg at 6:30 Point of View (KVLY – owned by Grey Television) reported on these unlawful actions.

In part of that reporting, SBAND Family Law spokesperson, Jason McLean, implied the status quo leads to less litigation and that attorneys don’t make significant money off the current process. Both implications are dubious as depicted by the video.

The rest of the North Dakota media, including Inforum Communications, remained silent on SBAND’s questionable connections with the opposition effort. They did not report on an SBAND subcommittee creating a front group, Keeping Kids First, much less the level of financial support SBAND gave to the group, or how SBAND allowed the group to use its IT infrastructure. 

Only after the election was over, and  after SBAND was sued by the out of state, Goldwater Institute, did articles appear in local media.    

As we all know, SBAND’s opposition to the referendum prevailed. Now, just a few years later, multiple legislators have sponsored another reform bill, which is even better for kids. Yet again, Jason McLean, now head of the Family Law SBAND committee, has taken up the opposition mantle.

It is happening again

An “Open Records Request” to SBAND has exposed additional irregular activity by SBAND and its member attorneys against the new reform bill, which passed the House Committee (15 to 0), the House of Representatives (71 to 21), and is now being reviewed in the Senate Judiciary Committee. The communications suggest that the SBAND players hope to kill the bill in this committee.

A few highlights

There is no problem

During the 2014 campaign, Jason McLean, acting as the spokesperson for the Bar Association’s “Keeping Kids First” front group, told the public that changes to the law were unnecessary because there was no gender bias in North Dakota law, stating:

"Our law is gender-neutral. There is not a presumption that allows the award of a child to the mother over the father. Each parent comes in on equal footing."

Newly exposed documents contradict that story. Attorney Jackie Stebbins, who in a private email to SBAND Executive Director, Tony Weiler, attorney Mclean himself, and others, stated:

“I know Kelly [Senator Armstrong] likes the “idea” and “concept” of starting with joint, but he absolutely understands that it has to be workable.  While we may disagree with him about “starting at joint” – maybe even informally and surely with a presumption, it’s nice for us all to know where he’s coming from.”

Apart from the open records request, Attorney Stebbins was also interviewed by Real World Divorce and made a similar statement that gender issues play a strong role in North Dakota courts:

"Gender issues are alive and well and young moms can do pretty well at shutting dads out."

The gendered trend was further substantiated in another recent article:

“Typically, child custody arrangements give one parent sole custody (usually the mother) and the other parent (usually the father) visitation rights.”

As for Mr. McLean, he has backtracked on his 2014 statement by blaming the lack of shared parenting awards on Judicial ignorance:

“He said many judges don't understand that shared parenting is an alternative and resort to standard arrangements, like every other weekend.”

We are doing this for the kids

The open records request also revealed that while SBAND attorneys have claimed to the public that their motivation for opposing shared parenting was not to protect their revenue, but instead that they wanted what was best for children, an email from Tony Weiler, the Executive Director of SBAND suggests otherwise. Discussing efforts to defeat the pending reforms, he wrote:

“I am walking a fine line, as you know, but I want what is best for [lawyer] practitioners, and those who need your help.”  

Pressure on the press

The documents also show attorney Jason McLean’s ability to impact Inforum Communications.  On February 9th, he sent an email stating:

Meeting with Inforum Communications

Only three days later, Mr. McFeely published an article at Inforum Communications, regurgitating many of SBAND’s talking points on Shared Parenting.

Pressure on the Bar

McLean also pushed SBAND take an official position opposing Shared Parenting Legislation despite SBAND’s one year-old policy against such positions and despite the fact that similar actions two years earlier resulted in SBAND being sued in Federal court.  That lawsuit confirmed SBAND was violating its members’ Constitutional rights and forced SBAND to make fundamental changes to its governance practices.  SBAND officials must have balked originally, thinking of the Goldwater suit and settlement. McLean noted he understands the “trepidation” which would accompany SBAND taking a position:

“Our section needs to be backed by SBAND as a whole.  We need to have a united front.  I understand the trepidation that comes with that step, but this is the type of legislation that needs the BOG’s (Board of Governors) position on.  I ask that the BOG reconsider its current stance and oppose this bill.”

SBAND leadership set aside their “trepidation” and acquiesced to Mr. McLean’s request despite their year-old policy against such action and despite the significant risk their action would result in more litigation against SBAND.

Other lobbying rule breaking

Janelle Moos, the Executive Director of the domestic violence group CAWS, was also involved in the communications with SBAND and assorted members.  In one communication, Ms. Moos confidently stated:

“If we have to amend the bill that’s fine Senator Armstrong will kill it in the Senate but I think if we can get enough committee members to support a do not pass in Judiciary that would be my preference.”

Federal law prohibits groups that receive funding under the Violence Against Women Act, such as CAWS, from using any portion of their federal grants to lobby.  There are substantial penalties for violations, which range from a minimum of $10,000 to $100,000 per occurrence.  It will be interesting to see how many separate communications Ms. Moos has had with members of the legislature since each communication could give rise to five figure fines.  

Finally, while there is ongoing and repeated evidence of texting, dinner invitations, calls, and other communications from members of SBAND with Senator Armstrong, the chair of the Judiciary committee, in a thorough review of all the documents, there is absolutely no evidence whatsoever of any wrong doing by Senator Armstrong.  On the contrary, North Dakota advocates have both consistently and continually communicated their belief that Senator Armstrong is “judging the bill on its merits” and feel, despite the onslaught of communications he’s received from SBAND members, they’ve gotten a fair hearing by Senator Armstrong in particular and the other members of his committee. 

Find more commentary on these email revelations on the Jay Thomas Show, which found them "concerning," and on 6:30 Point of View with Chris Berg.