Twenty-some years ago I was in law school and took a great class called “State Constitutional Law.” I don’t know whether it was a course that had ever been taught at UND Law School before I took it, or if it was ever taught again, but it was a great class.  There were only six students. We met in a small meeting room in the basement of the law school library. The professor was Barry Vickrey, who later went on to serve as dean of the University of South Dakota School of Law. He's now retired as dean, but continues to teach a full slate of classes at USD Law.

One day Professor Vickrey had a special treat for us. He had arranged to have a guest lecture from the gentleman who had compiled the sample cases in our text book. As I understand it, the textbook we used was the only state constitutional law textbook available in the country at the time. The lecture/presentation/discussion was an interesting and useful lecture, and I apply the things I learned in that class on that day -- and other class sessions as well -- in my everyday practice of law.

At the end of the guest lecturer's call, he took questions from our small group. I asked a question. My question was, essentially, “What you’re telling us is consistent with everything we’ve been reading and learning on this topic; that the federal constitution sets bare minimum protections of basic fundamental rights for citizens. State constitutions can provide MORE protection, but they cannot provide LESS protection. If that’s the case, why do I even have to argue federal constitutional protections at all? Why can’t I just argue state constitutional rights when I’m challenging a law or government action?” We had a brief back and forth on this, and he disagreed with my proposition. At the end of the back-and-forth, I suspect he recognized that I wasn’t going to change my view and he said something like this: “Well you can try your approach, but you’ll want to make sure your malpractice insurance is paid up.” This law school lecture happened 21 years ago, so these can’t possibly be exact quotations. But it’s what I took away from it, and – to be honest – though I disagreed with him, I have always followed his advice and argued both constitutions, even if I didn’t think I should need to do so.

A couple days ago I found out what that professor – and I'm pretty sure it was Professor Robert Williams, of Rutgers University School of Law – might have been talking about. On Tuesday, the North Dakota Supreme Court – in its occasionally dysfunctional way – "decided" whether a statute banning medication-induced abortions is unconstitutional. (Read the full decision by clicking here.) I’m going to oversimplify this quite a bit, just for sake of brevity (and with no offense intended to the justices), but I want to give you a breakdown of how the case was “decided.”

First, you need to know that the lawyer(s) for the Plaintiffs in the case apparently adopted my position from 20-some years ago; that since a state constitution cannot provide less protection than the federal constitution, you don’t have to argue both in order for your client to be entitled to the protections of both. The trial court judge did what I think he should have done, under the circumstances, and held that the statute banning the off-label prescription of medications for abortion purposes violated both the state and the federal constitutions; because to address a state constitution’s protections, it only makes sense to talk about the federal minimum, base-line protections. That decision was appealed to the North Dakota Supreme Court.

Two justices – Justice Kapsner and (Surrogate) Justice Maring – generally followed this logic and decided the statute is unconstitutional under both the state and federal constitutions. One Justice – Justice Crothers – held that the statute is unconstitutional under the federal constitution and – again for reasoning similar to my point with the professor 21 years ago – therefor the state constitutionality didn’t need to be addressed. If you understand what I’ve written so far, above, you understand why and how he could do this. (If you don’t, I’m probably not going to be able to help you, but there's plenty of material on this topic online. Maybe start here.)

So now you have three justices who say the statute is unconstitutional under the federal constitution, two of whom (Kapsner and Maring) have specifically said it violates the state constitution, too (because that only makes sense), but one of whom (Crothers) says he doesn’t have to get into the state constitutional discussion in order to decide the case (because that only makes sense). There are five justices, three held it to be unconstitutional, and so you’d think the case would be over, the statute declared unconstitutional… right?!?  Well, no. In North Dakota, Article VI, § 4, of our state constitution says it takes 4 out of the 5 justices agreeing that a statute is unconstitutional before it is unconstitutional.

So the majority needed a fourth justice, right? They needed one of the other two to agree with them. So what happens?

First, there’s Chief Justice Vande Walle. The Chief holds that the statute is NOT unconstitutional. His analysis includes discussion of both the state and federal constitutions.

Lastly, we have Justice Sandstrom.  Justice Sandstrom’s position is interesting.  He agrees with Vande Walle, apparently, that the statute does not violate the STATE constitution. But then he goes on to say all of the other judges – the four other Supreme Court justices, and the trial court judge – in addressing the federal constitution, at all, committed the judicial sin of obiter dicata.  He says that the case before the trial court was not a federal constitutional challenge, and so the other judges have all done something improper; they shouldn’t have addressed the federal constitutionality because it wasn’t expressly raised by the plaintiffs in their pleadings, below. So, Justice Sandstrom essentially says, there are only two justices – Maring and Kapsner – who have held that the statute is unconstitutional under the STATE constitution, and any discussion about the federal constitution by them or by the Chief or by the trial judge is and was improper judicial activism or overreach (my words; not his)

Again, keep in mind this whole discussion in this blog post is me paraphrasing the entire decision, generally, and is not intended to make you think they write on as simplistic or bombastic a level as I am here.

Sandstrom conveys there are only three justices who find the statute to be unconstitutional under the federal constitution, and that is not enough (under Article VI, section 4) for it to be “unconstitutional.” As noted, he does not address the federal constitutionality of the statute… at all. (Or so he writes; though if you've followed my discussion above, I think he does.) And, as he notes in a footnote, he is principally opposed to courts engaging in “advisory opinions” and “obiter dicta.” He perceives the federal constitutional analysis by the four other justices, and by the trial judge, to be advisory opinions, and obiter dicta, apparently. He’s saying they are ruling on things beyond the scope of the authority they’re given by the pleadings.

As you can likely tell, there are some things about this opinion that I’m struggling with.  First, I don’t understand why the plaintiffs didn’t also claim the statute violated the federal constitution.  I understand the principled position they likely were trying to take, but our justice system is no place to rest on principle or a claim of what is “fair” or “just” or "right." That’s not always what court cases are about. Sometimes they’re about making sure you don’t leave some judge with an opportunity to avoid an important substantive issue that, in reality, is and/or should be properly before him/her.  Sometimes cases are about navigating your way through an absurd obstacle course, fraught with Kafkaesque pitfalls. It is not helpful, generally, to create more Kafkaesque pitfalls for yourself. While I understand what these lawyers were doing, and while I think theirs is a principled approach, knowing your audience and its tendencies is more important than principles.

Second, I'm not making up this whole idea that the federal constitution provides a baseline below which state constitutions cannot go. Lots of people (judges, lawyers and law students) have written about this.  Justice Abrahamson of the Wisconsin Supreme Court, for example, has written the following:  “[t]he federal constitution establishes minimum rather than maximum guarantees of individual rights, and the state courts independently determine, according to their own law (generally their own state constitutions), the nature of the protection of the individual against state government.”  Abrahamson, Criminal Law and State Constitutions: The Emergence of State Constitutional Law, 63 Tex. L. Rev. 1141, 1153 (1985)

So here is my question:  If Justice Abrahamson and all of the other lawyers, legal scholars and jurists who agree with her are correct, that a state constitution can’t provide less (fewer) rights than the federal constitution, didn’t Justice Crothers, in fact, decide whether the statute violates our state constitution? Because if the federal constitution sets a floor for how little protection a state constitution can provide, by holding that the statute violates the federal constitution, he has, in fact, ruled on the state constitutional issue.

Another way to look at this is by asking this question: does Justice Sandstrom think he – or Justice Crothers – has legal authority to interpret North Dakota’s state constitutional provisions to provide LESS protection than the minimum protection afforded by the federal constitution?  If so, why wouldn’t he have cited authority for that proposition in his written opinion, because that would be kind of a big deal if it were true, wouldn't it?  And if state constitutions cannot provide less protection than the federal constitution, didn’t Sandstrom, in reality, also rule on the federal constitutional issue Justice Crothers expressly ruled on?

Lastly, if three out of five justices on the North Dakota Supreme Court rule that a statute is unconstitutional, shouldn’t the statute be unconstitutional? In other words, doesn’t it seem like maybe Article VI, section 4, of the North Dakota constitution is unconstitutional under the federal constitution, at least as it is applied in this case?

Think of it this way: What if our state constitution said that a statute is not unconstitutional unless all five justices found it to be unconstitutional? Wouldn’t that be an unreasonable hurdle for a litigant to overcome in order to have a state’s high court protect the people from an unconstitutional state law? If not, what if our state constitution said you had to get all five justices and five district court judges to agree that a statute is unconstitutional? What if the constitution said you had to convince all five justices and all of the district court judges that it is unconstitutional? Would that create an unreasonable burden? See, my point is that either a state statute violates the federal constitution, or it does not. If a statute is unconstitutional, is it reasonable to make it so difficult to get the protections people are entitled to get? Other than a simple majority – which our country usually operates under – what more should a litigant have to get in order to get the protection we’re all entitled to when a legislature enacts an unconstitutional law?

What are your thoughts on the Court's "decision"? I'd be particularly interested in hearing others who think I've misread or misinterpreted the decision. I don't claim to be infallible. And I don't wear a black robe. I'm just a caveman lawyer.

Rough transcript (from memory) of a recent conversation I had with a North Dakota Republican Party activist:

GOPer:  So what do you think about the statewide races this year?

Me:  I think a few of them are going to be really close. You?

GOPer: I don't think they're going to be as close as you think. Have you seen the Forum polls?

Me:  Yeah. They've got Rauschenberger ahead by 14 points, despite the fact he skips work to go out drinking all day with friends who drive drunk and total his SUV.

GOPer:  You think that race is going to be close?

Me: You'd think it'd be a blow-out for Astrup.

GOPer:  You do realize thirty-eight percent of North Dakotans would vote for Jerry Sandusky if he had an "R" after his name on the ballot, don't you?

Me:  Nice comparison. And, if you're right, classy bunch, that thirty-eight percent.

Is North Dakota really this messed up?

First, you have to be using the Google Chrome browser for this to work.  Then follow these instructions.

1.  Click on the three-lined icon immediately below the "X" in the upper-right-hand corner of the browser.

2.  Pull down to "Settings" and click on that.

3.  Go down to "Show advanced settings..." at the bottom, and click on that.

4,  Below "Privacy", click on "Content settings..."

5.  Below "JavaScript" click on "Manage exceptions..."

6.  Click in the box where it says "[*.]example.com" and add what I've got on the next line, exactly as I've typed it:

[*.]bismarcktribune.com

7.  On the pull down menu to the right of what you just typed, click and pull down to change the button to say "Block"

8.  Click the "Done" button.

9.  Click the "Done" button.

Now the Bismarck Tribune's annoying paywall should be turned off for you.

Enjoy.

(I think it's possible to do this in Firefox, too. It might also be possible in IE, but I don't know. If you figure out how to do it, please post the instructions in the comments.)

[Idea borrowed from Reddit.]

Note: We just saved you $12.00 per month. You're welcome. Now, please consider making a donation to NorthDecoder.com by clicking on the "Donate" button over in the right column/margin, a little ways down from the top.  Thanks!

(Cross-posted, with permission, from The Prairie Blog.)

In the 1970’s, when I was a reporter for The Dickinson Press, the coal boom was happening in western North Dakota, and there was a lot of power plant construction getting underway. Federal government largesse back then wasn’t what it has become today, but there were some federal funds flowing to North Dakota, mostly from the Rural Electrification Administration (now the Rural Utilities Service), to help build power lines and to help with other infrastructure needs.

Our congressional delegation back then was Senators Milton Young and Quentin Burdick and Representative Mark Andrews. Whenever the REA approved a loan or a grant to a North Dakota REC, they would give the congressional delegation the privilege of announcing it. So, from time to time, The Press newsroom would get a phone call from Washington announcing the funding.

The way it worked was, (this was the day long before e-mail) the staffer in the Washington office would dictate a news release over the phone to whoever answered the phone, (usually me).  So I would listen and type as the caller dictated the news release. Something like “Senator Quentin Burdick announced today the Rural Electrification Administration has approved a $270,000 grant to Slope electric Cooperative of New England for upgrading a transmission line . . . etc .” When they were done reading and I was done typing, we’d do a bit of small talk (“Cold back there in North Dakota? 80 degrees here.”) and that was that. I had my story for the next morning’s paper.

But then what would happen is, not too long after that, a second Congressional office call would come, and then a third, each calling to give me the same press release, with a different name in the first paragraph. Well, that got old, so I decided to have some fun with these guys, and I adopted a policy: Whoever called first got their name in the story. The other two got left out. So when the first staffer called me, I took the dictated press release, but then when a second staff person called, I told them “Sorry, but Senator Burdick already called, so Congressman Andrews missed out.”

After that I would sit at my desk and almost giggle at the thought of these three staff persons running down the halls of the United States Capitol to get to their typewriters and hammer out a press release, and then frantically dialing the long distance operator to place a call to this smart-ass reporter back in Dickinson, to get their boss’s name in the paper the next day. But the best thing about my policy was that the press releases got much shorter, usually just two or three short paragraphs, omitting some long-winded quote from Mark Andrews about how valuable our REC’s were to the state and the country and the whole free world. Made my job a lot easier.

I‘ve been thinking about those days a bit lately as I see this spate of press releases in the paper, almost on a daily basis at this time of the year, as the federal government’s fiscal year closes, announcing the incredible number of federal dollars flowing into our state. Now federal dollars flowing into North Dakota is not news. Forever, we have led the nation or been near the top of the list of states who receive more federal dollars than they send in with their 1040s. That’s generally because of the farm bill, which for many years has kept our agriculture industry afloat.

But it seems to be different this year. It seems to me that a great deal of money is flowing in to help us deal with problems associated with growing pains—read: an oil boom. Here are a few recent examples from newspaper stories I’ve read lately.

• $1.4 million to the state and the Three Affiliated Tribes to help curb violence against women in the Bakken region
• $5 million to North Dakota and the other states the Bakken oil trains pass through to help train first responders
• $2.7 million to North Dakota Job Service for upgrades to our unemployment insurance program (Huh? In a state with the nation’s lowest unemployment rate, less than 2%?)
• $9.9 million to Bismarck State College for job training (You can probably guess what kind of jobs they are going to be training for.)
• $191,000 to the Department of Transportation for training in how to handle hazardous materials, such as the train wreck near Casselton
• $4.9 million to the Bismarck Airport for upgrades (made necessary by increased air traffic, no doubt)
• $210,000 to the ND Public Service Commission for pipeline safety programs
• $880,000 to the Dickinson Airport
• $620,000 to the state and the Abused Adult Resource Center in Bismarck to help victims of sexual assault
• $480,000 to the ND Attorney General for narcotics enforcement

There are a lot more funds plowing into the state for other programs, such as a $6.6 million Health and Human Services grant ($5.4 million to the state, $1.2 million to tribes and social service agencies) to help elderly and people with developmental disabilities transition from institutions to communities. The state’s Department of Health will get over $600,000 for chronic disease prevention programs, a $3.1 million grant to the Agriculture Commissioner to help him promote specialty crops, $1.4 million to the State Health Department to upgrade immunization records, and $6.2 million to Fargo for property buyouts and new sewer construction for flood protection. The list goes on and on. Just in the stories I read in the Tribune since August 1, the total is more than $50 million.

So let me get this straight. A government that is flat-ass broke and running trillion dollar deficits is sending $50 million to a state that is running up massive budget surpluses—by some accounts we have more than $6 billion in the bank and it is growing by billions a year. WTF?

We’re collecting almost $5 billion a year in oil taxes from an industry creating huge social and infrastructure problems, but apparently our state officials have no shame. They stick that money in the bank and take the funny money rolling in from Washington.

Now don’t get me wrong. I’m a Democrat and a Liberal, and I think government ought to be here to help us do things we can’t do for ourselves. But I also believe we ought to pay our own way when we can. And in North Dakota, we certainly can. I’m almost embarrassed by some of those grants, especially things like hazmat training, pipeline safety and job training. C’mon. We created those problems. We need to clean up our own mess. We can certainly afford it. According to the state’s Office of Management and Budget, the state’s general fund surplus for the 2013-2015 biennium is expected to be more than $600 million by the time the biennium ends next June.

And there are other problems. Bismarck and Mandan residents just voted to raise their sales taxes to pay for a new jail. The uncontrolled oil boom, which state officials could have helped to control, has caused huge increases in both crime and convictions, and now we are paying for it while the state sits on billions. And I’m not the only one complaining.

My old friend Ron Anderson, a former pretty-conservative Legislator and now a McKenzie County Commissioner, said in the paper the other day he’d “be a rich man if he had a dollar for every person who’s asked him why Bismarck (state government) isn’t building the new Watford City hospital, instead of the board putting together a combination of federal and state loans, and a hefty infusion of a new city sales tax and donated money.”

The huge population explosion in McKenzie County and the huge increase in dangerous jobs and truck traffic have necessitated a new hospital. It’s a $60 million project. The federal government is lending the community $39 million. The city and some generous donors are putting up the other $21 million.

Anderson praised Watford City for passing a bond issue to build its own school and a new sales tax to help finance the hospital and a new events center. “There’s not many who could do that. You people have been tremendous,” he said. “We’ve broken so much ground, there’s not much left.”

But “They (the state) should be building this. We contribute (billions) to the state, but they’re not,” Anderson said.

All over western North Dakota, the story is the same. Cities are ponying up for new schools, clinics, hospitals, jails, policemen, firemen, EMTs and prosecutors while the state sits on its billions. In many cases, that is okay. But what I don’t think is okay is our continued raiding of the federal treasury when we can afford to do things for ourselves. I think that’s shameful.

But at some point along the line, the job of a congressional delegation became bringing home the bacon. They’ve all done it. They all do it. For the record, in the stories I read, Heidi’s team was first to the phone 7 times, Cramer’s 3 and Hoeven’s 2.  Unless they do things differently today.

UPDATED:

Did you see the Fargo Forum's editors' endorsement of radical, right-wing, tea-party candidate Kevin Cramer this week? If not, it's a "must read." You gotta check this out. I'm convinced it's either a joke, or a protest endorsement. Because if it's not one of those things, one can only be left believing the Forum's editor -- Matthew Von Pinnon -- is a complete idiot, and the worst writer in the world.  

Before digging into this thing, I should probably tell you what a "protest endorsement" is:  it's when an oppressive, unintelligent, threatening newspaper publisher tells the editor of a newspaper which candidate(s) the paper MUST endorse, and the editor is mad about it because the endorsement(s) is(are) absurd. So the editor writes an "endorsement" but fills it with so much unbelievable nonsense that everyone with a brain who reads it knows the editor is giving the endorsement under protest.  

So let's walk through the Forum's endorsement of this Cramer nut. I'm going to skip the first paragraph because it's just a set-up for the joke that follows. Here's the second paragraph:

Cramer’s opponent, Democratic state Sen. George Sinner of Fargo, is a credible candidate with good credentials. There is little doubt that he is qualified to serve. But his campaign has not offered sound reasons to replace the congressman.

Fargo Forum

This is funny because the Forum says Sinner hasn't "offered sound reasons" to fire Cramer. Except Sinner has. How do we know this? We read the reast of the editorial, all of which is overflowing with the "sound reasons" Sinner has given...

Cramer’s first year in the U.S. House has not been stumble-free. He was wrong, for instance, to be in the camp with House members who wanted to sever the food stamp program from the farm bill – a stunt that risked broad-based urban and rural support farm bills have always needed to pass. In the end, the bill included modest changes to food stamps, in addition to streamlined farm supports that, as a comprehensive bill, made for good legislation. Cramer supported it.

Fargo Forum

This is the first big sign Von Pinnon may be kidding.  See, Cramer has been in the House for more than a year. He's been there since January of 2013. He's almost been there two years. Shouldn't we be considering his voting record for the entire time he's been a House member? Or is Von Pinnon cracking a weak joke about how little Cramer has actually worked over the past (nearly) two years?

Oh, and, yeah; Cramer tried to kill the Farm Bill. Never mind that North Dakota has always been and forever will be (until we destroy the environment) a farm state. Cramer's against that. His voting record and public statements make that clear.

Here's the Forum's next joke (or protest?) paragraph:

Cramer also was among the misguided who voted more than 60 times to repeal the Affordable Care Act, knowing full well that it was a quixotic exercise. Making a statement once or even twice is reasonable, but rapping one’s legislative head on the wall more than 60 times is stupid.

Fargo Forum

See, as Von Pinnon points out, Cramer is on record of making a stupid vote more often than bi-weekly. A smart member of Congress doesn't log a stupid vote that often, but Cramer does. See, when he wasn't busy trying to kill the Farm BIll (which was stupid, supid, stupid), Cramer was busy doing other stupid things. And not just one stupid thing. If the Forum were right (and they're not) that Cramer had only been in the House for a year, that'd mean he'd made this stupid vote more than once a week. Can you imagine arguing for keeping an employee who shows up for work and -- ever week -- does something ridiculously stupid? And that's just the base! He does lots of other idiotic things, as Von Pinnon points out, "but we can bank on him doing this one stupid thing every week."  That's what the Forum is saying here.

Next:

That being said, the freshman congressman has been part of an increasingly influential House cadre that is trying to build healthy and respectful relationships with members of all political and ideological stripes. The aim, Cramer has said, is to get back to finding compromises for the most contentious issues, and then get things done. He has won praise for his participation from both sides of the political aisle.

Fargo Forum

This paragraph is LOL funny. It's the paragraph that made me think that, for sure, the Forum's editors are joking. Because, seriously? Cramer is "trying to build healthy and respectful relationships" with people who aren't radical right-wing tea-partiers like him? How about one example of that, Forum editors? What -- pray tell -- has Cramer done to reach across the aisle? Give me one thing? You can't? Right. You can't. And so you didn't. You guys are funny.

And he has done things to work towards "finding compromise for the most contentious issues, and get things done"?!? Bwa ha ha ha ha ha ha ha! What is this? Bizarro world? Opposites world?  Cite one -- just one -- example of Cramer working to "find compromise" or get things done.  Can't? Right. Didn't.  And "paise" "from both sides" of the aisle? Heh. Good one.

This Congress makes the "do-nothing" Congress of 1947-48 look like a bunch of over-achievers. And Cramer is a part of the problem; not the solution.

True to his word, Cramer spends as much time in North Dakota as he can. His work schedule in Washington can be exhausting, but as North Dakotans who have visited D.C. know, he will make time for them. He has been refreshingly responsive to all comers, regardless of party proclivity, which is a practice that was institutionalized by one of his predecessors, Democrat Rep. Earl Pomeroy.

Fargo Forum

I love this paragraph because it's written as if a Cramer P.R. flack wrote every word. "True to his word..."? Cramer's word was that he promised to hold 100 town hall meetings during his two year first-and-only term in the House.  How has he been "true to his word," you ask?  Well, instead of having a town hall meeting every other week, Cramer makes a radio show appearance once a week. Same thing? The Forum must think so. The rest of us? Not so much. An appearance on a radio show does not a town hall make.

And describing Cramer's work schedule as "exhausting" is almost the stupidest thing I've ever heard, seen or read in my life. Poor Kevin Cramer has to work 113 days a year.  Here's his work calendar for 2014, from the House Majority leader's website:

Tough schedule, eh? Think about how wiped out he must have been after the first six months in 2014. He worked eleven whole, grueling days in each January, February and April.  He worked 12 stressful days in each March, May and June.  Then he worked his toughest month in 2014, July, putting in a jaw-clenching four full 4-day work-weeks. After that grueling schedule, Cramer took all of August and the first week of September off. But then he got back to work, putting a vicious 10 days in September.  He worked the first two days of this month.

I don't know about you, but I'm sweating just THINKING about how hard Cramer's worked this year. The good news is that he's done working now until November 11th.  He'll work an exhausting seven days in November and eight days in December, before taking a break for the last HALF of December. Rest assured he'll get back to this hectic schedule a week or two into January, next year.

Exhausting schedule, my ass. This really is a joke. Or a protest. Or Von Pinnon is an idiot. 

Cramer's schedule is so exhausting, I'm not even going to waste my finger strength responding to the rest of the garbage in Von Pinnon's paragraph about how exhausting it is.

Now, check out the piece of resistance. ("Lego Movie" reference, for those of you with kids.):

Finally, Cramer is in a House majority that likely will get larger after Election Day in November. Therefore, he is well-positioned to secure plumb committee assignments and, in time, possibly a leadership slot. He’s done his first-term homework, and has gotten familiar with the lay of the land. He’s more than ready to further hone his legislative skills to even better represent the people of his state.

Fargo Forum

Okay, so -- because of shit journalism like the Forum's -- the Tea Party majority might get bigger. Great. Less work. More partisanship. Bigger hand-outs to the richest 1%. Eliminate Social Security as we know it. Privatized prisons and schools. Hooray.  

Now check out this gem... Cramer is "well-positioned" to get some "plumb" committee assignments.  

Gah!

Is Von Pinnon joking? He must be. He's supposed to be a professional journalist, and he doesn't know the difference between "plumb" and "plum"?!? This is where I decided Von Pinnon is joking. This endorsement is a parody. He almost had me duped, but this whole "plumb" thing really puts a ribbon on my certainty that it's all just a bad joke. 

Matthew Von PInnon, the Fargo Forum's editor, has either brilliantly written the best parody of a candidate endorsement, or the most poorly-written, poorly-thought-out, transparent protest endorsement ever. I've heard Von Pinnon is not a complete idiot, so I think we should give him the benefit of the doubt, and say it's all just a joke.

Well played, Mr. Von Pinnon. Well played.

************************************

UPDATE:  There are some folks out there sharing this blog post around. Some of the discussion in the comments under those shares suggest that the legitimacy of this blog post is harmed by my "misunderstanding" of how editorial endorsements are written. Trust me; I have a very clear understanding of how they are written. They are written in secret, with no author's name attached to them. (For the record, I kind of assume everyone knows who I am, though I use a nom de plumb (<- get it?). For those who don't know, I'm Chad Nodland, in Bismarck. Not afraid to have my name attached to this or any other post I've written, unlike the author of the Forum's endorsements.)

That said, I believe it is perfectly reasonable for me and everybody else to ascribe the editorial endorsements to a human, and I pick the Forum's editor, Matt Von Pinnon. If he wants to deny he writes the Forum's laughable editorial endorsements and tell us who does, he should do that. Until that happens, he's the author, as far as I'm concerned.

In an email exchange through the North Dakota Land Department, North Dakota Trust Lands Commissioner, Lance Gaebe (pictured), suggested that rather than write more stories exposing corruption and questionable ethics in North Dakota government, a reporter from a national news website should "do a story about how oil field service companies hire hot women to help man their trade show booths!" (emphasis added)

As Trust Lands Commissioner, Gaebe is appointed by the Board of University and School Lands (BUSL). The BUSL is made up of Governor Dalrymple, AG Stenehjem, SOS Jaeger, State Treasurer Schmidt and Superintendent of Public Instruction Baesler (Citation) Everything Gaebe does as commissioner is, as a matter of law, subject to the approval and supervision of the BUSL. (Citation) Dalrymple, Stenehjem, Jaeger, Schmidt and Baesler all supervised and approved of the sending of Gaebe's "hot women" email to one of his staff members.

To put the email into context, you'd have to know that a reporter -- Steve Horn -- for DeSmogBlog, a national climate science news reporting service, has done some interesting stories on the cozy relationship between big private equity firms and some of North Dakota's top elected and appointed officials. In one story, Horn wrote for DeSmogBlog about how a Manhattan-based private equity firm had hired disgraced former General David Patreus to come jet-set around North Dakota with North Dakota Treasurer Kelly Schmidt catching free rides on the equity firm's private jet. There are serious questions about whether it's appropriate (and legal) for an elected official to accept a corporation that's working on securing business with a board on which Schmidt serves. Anyway, it's an interesting story as it portrays yet another example of unchecked ethics problems in North Dakota's corrupt government.

Also, note that you haven't read anything about the questionable ethics of Schmidt's corporate jet-setting in any North Dakota newspaper, heard about it on the radio, or seen anything about it on TV.

When North Dakota Trust Lands Investments Director Jeff Engleson saw the story on DeSmogBlog back in May of this year, he forwarded the story to Trust Lands Commissioner Lance Gaebe. Gaebe responded, knowingly, asking if it was a "hard hitting piece on the cozy relationship?!"

Engleson's snark-filled response notes, among other things, that it was "not great for Treasurer [Kelly Schmidt]" and that he was "surprised [Horn] didn't mention that [General Patreaus's] girlfriend [Paula Broadwell] was from Bismarck."

Gaebe joined in the fun, suggesting...

"This 'reporter' should do a story about how oil field service companies hire hot women to help man their trade show booths!"

Keep in mind, this email exchange happened on the evening of May 22nd, the last day of the 2014 Williston Basin Petroeum Conference here in Bismarck. Anybody want to guess whether the North Dakota Land Commissioner or his office had a presence at (or sponsorship of) the Petroleum Conference?  

The taxpayers of North Dakota likely paid Gaebe to attend the conference. Assuming that's true, he clearly focused all of his taxpayer-funded attention on important state issues while there.

This is your tax dollars at work.  Dalrymple, Stenehjem, Jaeger, Schmidt and Baesler all ought to be proud of their fine approval and supervision of Gaebe.  Nice work, team!

Here's the exchange (start at the bottom and work your way up):

We're going to just share everything we got from the North Dakota Tax Department (NDTD) that relates to revelations relating to North Dakota Tax Commissioner Ryan Rauschenberger's leave of absence.  I asked the NDTD for all of their records relating to the revelations. I narrowed my request to ONLY general records, and communications between management level employees, and also limited the request to the date range of September 2nd (the date of the two motor vehicle collisions involving Rauschenberger's SUV) through September 8th (the date of the request). I was told this included records of communication involving roughly 20 or 21 Tax Department employees.  

I should note two things, for your consideration:

(a) I specifically asked for work-related communications falling into the above-outlined records description, even if those communications were done on personal email accounts, cell phone text messages, or instant messages. I did receive some records of state/work-related materials from personal communications systems, but have very little confidence that the NDTD management personnel fully disclosed what they legally should have; and

(b) I did not receive any records of work/state-related communications from Ryan Rauschenberger's personal cell phone or personal email accounts. I followed up with the NDTD Deputy Commissioner, asking whether I was going to get such records. I was told that the NDTD has no idea where Rauschenberger is, and no way of contacting him, so I would not be getting that subset of the records I requested.  I have requested an A.G. opinion on whether that partial denial of my request is acceptable.  I fully expect that (six months from now) Attorney General Stenehjem will issue an opinion saying that when a state official cannot be found to comply with a records request that it's perfectly acceptable for the agency to deny the request.  I would note, however, that it's kind of funny to me that Rauschenberger's father -- Ron Rauschenberger -- works in the Governor's office as the Governor's chief-of-staff, and the door to the Governor's office is about 30 feet from the door to the Attorney General's office. If Stenehjem wanted to find out how to contact Ryan Rauschenberger in order to show that there is some common sense in his office -- and he doesn't -- he could simply walk across the hall and ask his buddy, Ron, how to get in contact with his son, North Dakota's estranged Tax Commissioner Ryan Rauschenberger. 

So anyway... here's everything that's been given to me by the Tax Department, so far:

North Dakota Tax Department: The Estranged Tax Commissioner, Ryan Rauschenberger

You may have seen the story in last Friday's Fargo Forum about how Odney Advertising -- a Bismarck Public Relations firm, funded in large part by tax dollars, creators of the ND Tourism Department's horribly notorious "Legendary" ad campaign, and home to North Dakota's only questionably-funded SuperPAC -- attempted to get state employees in the ND Tax Department and Governor's Office to use public resources for political purposes.  Well... there's more to that story.  And I'm going to give a little bit of it to you today.

The story, if you didn't see it, is kind of interesting.  A couple weeks ago, unelected ND Tax Commissioner Ryan Rauschenberger loaned his SUV to a young, male companion. His male companion then rolled the vehicle on "The Strip" in Mandan. Later it was disclosed Rauschenberger had been cited with a traffic violation earlier that day when he ran into a line of vehicles on Washington Street in Bismarck.  The following day, news broke that Rauschenberger had been in alcohol treatment during his short tenure, after his father's boss appointed Rauschenberger to fill out the term of former Tax Commissioner Cory Fong, now the director of North Dakota's only SuperPAC.

As Odney Advertising's SuperPAC administrator and/or political consultant, Cory Fong, sent "talking points" to the personal, non-official email accounts of various employees in the Tax Department and the Governor's Office. Fong wanted to make sure state employees were spewing Rauschenberger's political campaign talking points when they resonded to questions about the leave of absence Rauschenberger is taking to quickly get "the cure" from his alcohol problem, so he can hurry back and get on the campaign trail. (Because it's apparently still 1953 in Fong's brain.) One such state employee -- Rauschenberger's deputy -- immediately recognized the impropriety of the email he received and deleted it.

Odney Advertising's owner, Pat Finken, is quoted in the Fargo Forum news story about this, as follows:

“This is common practice for us, to not only share with the client, but anybody that might have anything to do with the issue that we’re addressing,” he said Friday, adding, “It is the way that all PR firms work.”

Fargo Forum

I've checked with professionals in two different PR firms, and they've told me Finken is a bloviating windbag on this topic. It seems fairly clear he isn't telling the truth. But if you don't believe me, just ask an expert. This is not "the way that all PR firms work."  And if Finken sends "talking points" to state agencies every time a scandal needs to be politically spun, some questions: wouldn't he point an inquisitive reporter to other examples of talking points his firm has sent out?  Why haven't we seen these talking points before? Why were they secretly sent to government employees' personal/non-official email accounts? Why would a recipient freak out and delete the email immediately upon receipt? Why were officials in BOTH offices that received these "talking points" so quick to tell me the emails were unsolicited, and not responded to?  Don't those ALSO sound like "talking points"? Did those talking points also come from Odney, Finken and/or Fong?

So anyway, last week I made some state FOIA requests to the Tax Department, and some other agencies. In response I received records regarding Ryan Rauschenberger's absence from work, and the revelation that he was going into treatment for alcoholism.  One of the records kind of jumped off of the page at me.  It is a text message communication between two Tax Department employees, at least one of whom is in a managment position.  Here's a screen grab of that record:

I don't know if you can read that, so I'll point out the parts you should be most interested in. This is a text message exchange that involves at least one North Dakota Tax Department management level employee. I don't know either of them, but they are Roxie Gabel (hereinafter "Roxie") and Kathryn Strombeck (hereinafter "Kathryn").

It starts with Roxie asking Kathryn if she's read a certain mysteriously-funded, right-wing partisan political blog. Roxie says, "It explains a lot."  

Kathryn responds that she can't get it from the hospital. She asks "What's being said?"

Roxie responds, "Ryan's an alcoholic."

Kathryn types back, "Omg!!!!!!"

Roxie tells Kathryn about Rauschenberger loaning his SUV to Rauschenberger's drunk, young, male companion the previous afternoon. She then says, "When a reporter questioned him he was slurring his words and she called him on it."

Kathryn respons, "Wow!

So you may ask yourself why I am presenting this to you. That's fair. 

First, Roxie notes that the blog story about Ryan Rauschenberger being an alcoholic "explains a lot."  

What does this mean? What does this revelation about Rauschenberger's alcoholism "explain"? We know it explains "a lot," but what? Does it explain his absenteeism? Does it explain his erratic behavior? Does it explain his forgetfulness?  Does it explain his violent outbursts?  Does it explain Rauschenberger's mood swings?  There are a lot of things alcoholism might explain, but what is Roxie talking about, specifically?!?  What does it explain? How, for example, is his condition impacting his work? We're paying his salary; it seems like we ought to know the answer to this.

We could ask her, but you'd have to keep in mind that her continued employment probably depends on her response, so any response would have to be taken with a grain of salt. You'd also have to keep in mind that Odney, Finken and/or Fong have likely already given her "talking points." (Maybe this time they'll be smarter and just give them over the phone.) Don't get me wrong; I'm not saying she'd lie. She's probably a very honest person. I'm just saying that when your house payment depends on your current employment, people tend to bend the facts a bit. This should surprise nobody.

But there's another question that comes out of this exchange, I think. We learn from one of his employees that Rauschenberger was questioned by a female reporter, he was slurring his speech, "and she called him on it."  (Those are her words; not mine. See above.)

Assuming what Rauschenberger's staffer wrote is true..Where is the news story about this? Who is the female reporter who busted Rauschenberger slurring his speech? Has anybody seen a story that exposes this? If not, what possible explanation could there be for a reporter and/or a newspaper covering up that story?

Is some reporter or newspaper ALSO involved -- with Finken, Fong and Odney -- in the cover-up? If so, that seems to be kind of important.  

Rauschenberger has a lot of explaining to do. The people covering for him while he is out for a month or two have been left in a position where they still have to follow the law, while Rauschenberger makes it impossible for them to do so. (More on this later.) This is no way to run a state agency. Rauschenberger needs to resign the post his father -- the Governor's Chief-of-Staff -- got for him. He needs to do so because it is in his own best interests, but also in the best interests of the people of the great state of North Dakota.

If you take a map of Mandan, North Dakota, and draw a straight line from North Dakota Tax Commissioner Ryan Rauschenberger’s home to the place two miles away where Ryan’s (allegedly) drunk buddy rolled Ryan’s SUV on Tuesday afternoon while he was going on a “smoke run,” you almost go right over the top of the preschool where my five-year-old son was just finishing class on his first day back after his Summer vacation.

According to a former Minot hardware store assistant manager who now runs a radical right-wing political blog, Rauschenberger has admitted that, as he handed his SUV keys to his (allegedly) drunk friend, he thought to himself, “This guy is never coming back.”

At the time, Rauschenberger was supposed to be at his office in the Capitol Building, earning the $9,016 per month we – as his employers – pay him to be Tax Commissioner. Instead, according to reports, he was “relapsing” into the rut of his addiction to alcohol. Reports suggest he has been trying to deal with his addiction for some time, but keeps failing. No reports provide any information about the details of how Rauschenberger has been dealing with this problem.

Perhaps Rauschenberger was “relapsing” earlier the same day -- Tuesday -- on the first day of school for thousands of Bismarck kids, when Ryan rear-ended a car just three blocks from my house in Bismarck, as kids were being dropped off at the two schools nearby.

[J]ust hours before Larson’s crash, Rauschenberger was involved in a three-vehicle accident in Bismarck and cited for reckless driving.

An accident report from the Bismarck Police Department states that Rauschenberger, 31, Mandan, was cited following a car accident Tuesday morning.

According to the report, at 8:21 a.m. Tuesday Rauschenberger was traveling southbound on the 1100 block of North Washington Street in a 2007 Chevy when he collided with a vehicle that was stopped in traffic.

Bismarck Tribune

You have to ask yourself whether Rauschenberger was subjected to field sobriety tests, and alcohol tests Tuesday morning at 8:21 a.m., after ramming into the back of someone's car. If not, why not? Was he let go because he’s a part of North Dakota’s Republican mafia? Or wasn’t he drunk yet? Or still?

The above recitation of facts gives you a slight taste of where I start as I think about Rauschenberger’s announcement, today, that he is taking a little time off to take yet another quick run at resolving his problem so he can hurry back to the campaign trail:

“I have decided to take a temporary unpaid leave of absence effective today to seek additional professional help,” Rauschenberger said in his statement. “I expect to be back at work and on the campaign trail in just a few weeks.”

Bismarck Tribune (emphasis added)

But that is not all you would need to know about me to understand where I come from in thinking about Rauschenberger’s problems and his announcement today. You would also have to know that my life, like many others, has been touched by people close to me who have struggled with alcohol problems. I have struggled through “family week” at Heartview, where Rauschenberger has said he’s going to take another run at treatment. I have buried friends who have died as a result of the disease of alcoholism. In past jobs I have worked with people struggling while trying to balance their addiction with their work. In my current profession, I frequently help people with alcohol problems to find the help they need from other professionals. While I will not pretend to be an “expert” on alcoholism and its treatment, I am quite familiar with alcoholism and its treatment, thank you. I do not have time for people who tell me I am not appropriately knowledgeable about or sympathetic to the plight of people suffering from alcoholism. You can try to convince me I’m not sufficiently sympathetic, but you aren’t going to have much luck. Sorry, Charlie.

As is true for me with regard to my thoughts on anybody who has an alcohol problem, I want Ryan Rauschenberger to have a fair opportunity to get the help he needs. I do not know him at all, and I do not wish him any harm. The opposite is true. I hope he can find a path to sobriety that works for him, whether through a 12-step program, a spiritual re-awakening, in-patient care and aftercare, counseling, the Red Road, meditation, exercise, hypnotism or otherwise. I wish him well. I sincerely do.

But, as noted above, I am also a taxpayer, citizen and voter. In that capacity, I am -- as you are -- Ryan's boss. We pay his salary, and he answers to us, because he obviously answers to nobody else. Among the very few things we have learned from the local news stories about Ryan, we know that he’s been missing quite a bit of work during his eight months as Tax Commissioner because of his alcoholism. As Ryan’s employer, we should want to know how much work Ryan has missed. (I’d like a worthwhile local reporter to provide a detailed accounting of the time Ryan has spent out of the office, “relapsing.”) We know he was AWOL and “relapsing” on Tuesday when he negligently entrusted his SUV to his (allegedly) drunk buddy. As his employer, I think I have a right to know how many more days Ryan has been AWOL because I have been paying him $9,000 for a month of work, and I have a right to know how much money he has taken from me without actually working. I might even ask him to reimburse the portion of his salary he has taken from me -- from us -- through alcoholism-induced fraud. If he isn't willing to come clean and make amends, I should feel no remorse upon letting him go.

Again, I feel bad for him, but I am not willing to pay him $9,000 per month to work if he is not working. That is not mean and heartless; it's pragmatic and rational.

Now, according to today’s press release, Ryan is going to rush through treatment so he can hurry “back to work” and get back out “on the campaign trail in just a few weeks.”  As his boss and as someone who wants Ryan to succeed in his recovery, and as someone who has dealt with alcoholics countless times before, this is patently unrealistic.

If I were Ryan’s real boss, I would be compassionate to Ryan, but there would be consequences.  I would tell Ryan, “You can continue to work here, but you are on probation. You will have a cut in pay and be temporarily demoted. Your responsibilities will be reduced so you can focus on recovery. You will no longer have control of the checkbook. You cannot drive any company vehicles, or authorize anybody else to do so. When you have re-established my trust, you can have back your full salary, your title, your rights and responsibilities and the checkbook.  Eventually I'll give you the keys again. If you can operate under those conditions, you can stay. If you cannot, I’ll expect to see your resignation letter on my desk by the end of the day.”

People who know about alcoholism and its symptoms know that it is not “fixed” in three weeks. Sure, Ryan should get a chance to first deal with his problem and then redeem himself to his employer, but – as his boss – we should feel completely comfortable holding him accountable, through “tough love,” and making him earn our trust back. It would not be healthy or productive for us to join what may be a long list of Ryan's enablers.

Is that too harsh? Is that not “compassionate” enough?  Am I being a meany? Am I being a partisan hack?  I really don’t think so. I’d say the same thing if Ryan were my brother or son. I’d say the same thing if Ryan were a Democrat.  Ryan says he needs help, and – if he worked for me – I’d think my proposal, above, is a perfectly reasonable way to both help him get help, and to avoid liability for if/when he relapses again.

But there is a problem with my idea: Ryan is the appointed head of a state agency. He sits in a chair normally occupied by someone elected in a statewide race. (His dad’s boss appointed him to the job he started just 8 months ago.) Ryan cannot be put on probation. Nothing in our laws allows for that. He cannot have his salary reduced.  (His salary is dictated by state law at $108,202.00 per year by NDCC § 57-01-04; that's $9,016 per month). I don’t even know that he can voluntarily refuse his state-mandated salary.  (Perhaps he can donate it back to the State, but the salary is dictated by law.) The Governor cannot fire Rauschenberger. I thought he could, but the law that says he can has been “reinterpreted” (read “twisted”) through the creative use of Attorney General and Supreme Court opinions. But even if the Governor could fire Rauschenberger, does anybody really think the Governor would fire the son of his chief-of-staff?

We need to be realistic.

Let’s talk about some of the “concern trolling” we should all expect to see from this blog post.  First, I would say the same thing if Ryan had a brain tumor or cancer and it was causing him to skip work to go self-medicate with friends while he’s supposed to be in the office. As his employer, I can make reasonable accomodations for Ryan, but I do not have to let him skip work to go drinking without any consequences. If he cannot be trusted because of his brain tumor, it would be negligent of me to just ignore it and let him keep doing it. As his employer, I could be sued and held accountable if (because of a brain tumor) the keys he handed over to a drunk buddy were the keys to one of my vehicles. Be compassionate, yes; but do not be an enabler.

Also, I do not think Ryan should get a free pass because he wasn’t the drunk driver, and was – instead – only the person who gave the keys to the (allegedly) drunk driver. An SUV in the hands of a dangerously drunk person is a dangerous weapon. It's like any other dangerous weapon, including a gun. You can tell me an SUV is not a “dangerous weapon” all day and all night, but you’d be wrong. If you think it’s CRAZY TALK for me to say a vehicle can be a dangerous weapon, read the first paragraph of this 2013 North Dakota Supreme Court case and then give me a call. 

Handing his SUV keys over to a guy Ryan thought was so drunk “he’d never come back” is like handing a gun to someone you think is going to kill someone, whether it’s himself or someone else. At best it is "negligent entrustment." If his drunk buddy had killed someone, Ryan could have been -- and should have been -- sued, if not prosecuted. I'd be first in line to sue him, if his negligence killed someone I love.

Is that also “over the top” crazy talk? I don’t know. Let’s wait and see if Ryan relapses again and hands his keys over to some other drunk person, and that person kills your family member next time. Then let’s talk about whether it’s “over the top.”

This is serious business. We can get all mushy about Ryan and how it took a lot of courage for him to admit he has a problem, because it did. But it’s not enough to just get mushy about Ryan’s courage. He also needs to be held accountable – to make amends – for his wrongs. He has to make a searching and fearless moral inventory of himself, admitting the exact nature of his wrongs. I remember hearing that "you have to hit the bottom before you can get help."  I don't know if I agree with that, but I also don't think it's helpful for there to be no consequences when the probability of and implications for relapse are so serious.  

There are really only three options for Ryan Rauschenberger:  (1) He can hurry through a quick-fix treatment, as his press release suggests, so he can get back on the campaign trail in a few weeks, and hope that this time – unlike the previous times he’s tried treatment – he is successful; (2) He could be impeached by a legislature run by a supermajority that has never held one of its own accountable, whether for beating a spouse, drunk driving, or any other issue. Hopefully we can all agree that's never going to happen; or (3) Ryan could resign.

Considering all of the above, I think Ryan should resign. I don’t think the voters should have to take a gamble that he’ll be successful in his treatment this time, unlike the others. He should not expect that of us. It would be a sign of his lack of character for him to subject us to that. He is young enough so that he can bounce back. He can make a decision to turn his will and his life over to the care of God, and bounce back. I just don’t see any reason why we -- as his employers -- should take all the risk while he tries to stop failing in his attempts at sobriety. Hopefully he can pull it off this time, but I’d suggest it's not in anybody's best interests for him to be rushing through treatment so he can get back under the microscope of public scrutiny while he runs for an important government office.

Resign and take care of yourself, first. That's really important. Then work on earning our trust back, Ryan. Get the help you need. Follow the 12 steps, if that's the route you need to follow. Come clean about how much you've abused our trust and your office, and then prove to us that you deserve another shot.