Taxpayer Funded Politics: Lawmakers Should Take Away The State Bar Association's Advocacy Powers

state bar association of north dakota

North Dakota has a real problem with occupational licensing boards – state-sanctioned organizations that issue licenses to dentists and podiatrists and lawyers – which have seen their missions creep into political advocacy.

During the 2015 legislative session I found that fewer than eight state licensing boards with registered lobbyists. In October Attorney General Wayne Stenehjem’s office issued a legal opinion finding that one of those groups – the Board of Dental Examiners – had illegally employed a lobbyist to defeat legislation.

But perhaps the most egregious violator of what is supposed to be a separation between the official functions of government and political advocacy are the lawyers. During the 2014 election cycle the State Bar Association of North Dakota spent over $70,000 on defeating Measure 6 (the shared parenting measure). After Bismarck attorney Arnold Fleck sued the group, with the assistance of the Goldwater Institute, SBAND started giving lawyers who requested one a $10 refund on their mandatory $390 yearly licensing fee.

As you can see in the court documents Fleck forwarded to me (he wouldn’t comment on the on-going litigation specifically), his motion for summary judgment filed on November 20 includes as an exhibit a request from the North Dakota Court system for a refund from the bar association on behalf of what appears to be every judge in the state including the justices of the state Supreme Court.

Now the bar association is at it again. SBAND has convened a task force to review and propose changes to family law, yet one attorney invited to serve on the task force says he’s the only member in favor of shared parenting reforms and that the rest of the membership is made up of people who actively opposed Measure 6.

“I am on my own”

“As a core member [of the task force] it seems to me that I am on my own,” attorney Sean Kasson told me. “My thoughts are that you have all of these opponents of Measure 6 and it seems to me that I’m the one supportive of Measure 6. Don’t tell me that there’s one other person that couldn’t be brought in. Mr. Fleck isn’t on this committee.”

I spoke with Fleck, who said that when he inquired about serving on the task force he was told by SBAND executive director Tony Weiler he couldn’t serve because he sued the bar association. “I’m now forced to be a member of a bar association that is discriminating against me because I sued them when they violated by constitutional rights,” he said.

Both Kasson and Fleck feel that it’s unfair that they’re forced to pay dues to a bar association that engages in advocacy they don’t agree with, and refunds aren’t cutting it.

“I want this [taskforce] to go forward because I think if everyone keeps a level head they’re going to agree that shared parenting should be the result in 90 plus percent of these cases. I want it to go forward, but if it goes forward it should be validated by everyone.”

In an email sent to the task force and Weiler, Fleck asked that it be disbanded and a new effort convened by the state Supreme Court “made up of representation from all stakeholders.”

Kasson said the task force has already met once in what he described as an introductory meeting in Fargo.

Bar association still claiming it’s not politics

“The focus of it is not to start with that issue again, because it’s been defeated twice now by voters of this state,” Weiler told Mike Nowatzki, referring to the push for shared parenting.

According to Weiler SBAND is picking up the expenses for the task force, which is acceptable because the task force’s activities aren’t political. “Weiler said member dues can be spent on improving the quality of legal services,” Nowtazki reports, adding that Weiler claimed the task force “clearly falls within the definition.”

But Weiler made a similar claim about his group’s opposition to Measure 6 in 2014 before Fleck’s lawsuit prompted the refunds of dues payments.

“This is a social policy issue rather than a political issue,” executive director he told me about Measure 6 in October. The North Dakota Century Code doesn’t make that distinction, however. Under Chapter 16.1 of the code, 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.”

Where Weiler and SBAND may run into problems with their task force is that it’s hard to argue that you’re just trying to improve the quality of legal services when there is only token inclusion of a prominent point of view on those issues.

“This is what they do to defeat shared parenting in other states,” Fleck told me. “They create these committees that are lopsided.”

Time for a change

It may be that there are never political majorities in North Dakota in favor of the sort of family law reform the proponents of Measure 6 want. But what needs to end is the unfair advantage the lawyers have when it comes to their advocacy.

The Measure 6 campaign (much like an earlier iteration of it from 2006) was an all-volunteer affair. People who believed passionately in the issue and spent their own money to pursue it.

The lawyers, on the other hand, campaign against ballot measures (they spent tens of thousands in 2006 as well) and lobby to shape policy with the resources of the State of North Dakota. Both in terms of the authority of speaking as a state-sanctioned group and the money taken from mandatory dues payments to support the efforts.

I’m not sure how things will play out in the family law arena, but one area lawmakers should look into is ending the use of state licensing boards for advocacy. There’s nothing wrong with dentists or lawyers or podiatrists having an opinion about public policy and working to shape it. That’s democracy. Everyone gets a say.

But those people should engage in advocacy through private groups with their own money.