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Bill to criminalize court leaks gets thumbs down from North Dakota panel

The proposal comes as a reaction to the tumult that followed the unauthorized release of a U.S. Supreme Court ruling overturning Roe v. Wade.

A mustached man in a light brown blazer, patterned shirt and tie speaks at a podium.
Jack McDonald, a lobbyist with the North Dakota Newspaper Association, testifies on a bill at the North Dakota Capitol on Wednesday, Jan. 4, 2023.
Jeremy Turley / Forum News Service
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BISMARCK — Less than a year after a leaker sent journalists an unreleased draft of a high-profile U.S. Supreme Court decision, North Dakota's top judicial panel has proposed legislation that would criminalize the disclosure of unpublished court rulings. A committee of lawmakers thinks it's a bad idea.

A bill backed by the North Dakota Supreme Court would make it a Class A misdemeanor to intentionally disclose a pending court decision to an unauthorized person. The penalty, punishable by up to 360 days in prison and a $3,000 fine, would apply to the leaker, not the receiver of the information.

The one-sentence proposal comes as a reaction to the tumult that followed the unapproved release of a U.S. Supreme Court ruling overturning Roe v. Wade, said Sara Behrens, an attorney for the state court administrator.

In May, Politico published a draft version of the landmark Dobbs decision, which gave states the ability to prohibit abortion when it was officially released in June. The unprecedented leak from a still-unknown source generated massive controversy and resulted in justices receiving death threats.

Behrens told the House Judiciary Committee on Wednesday, Jan. 4, that a leaked draft decision in North Dakota "could lead to major consequences for judge safety, confidence in the judicial system and the economic viability of a business subject to the opinion."

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Outside the North Dakota Supreme Court chambers
Outside the North Dakota Supreme Court chambers.
John Hageman / Forum News Service

Jack McDonald, an attorney and lobbyist for the North Dakota Newspaper Association, testified against the bill, saying it represented "a solution to a problem that doesn’t exist" in the state.

"I don’t think we should be making a crime out of something that’s never happened," McDonald said.

McDonald noted that imposing criminal penalty on leakers could theoretically put pressure on journalists to release the name of their source or to refrain from publishing information. He said the Supreme Court could instead create an internal policy to punish leakers.

Fargo GOP Rep. Shannon Roers Jones and several other members of the Judiciary Committee shared McDonald's view that the bill addresses a non-issue. Jamestown GOP Rep. Bernie Satrom took the opposite view, saying the Dobbs leak showed a vulnerability at the national level and North Dakota shouldn't wait for a similar situation to play out locally.

The committee voted 10-2 to give the bill a "do not pass" recommendation on Wednesday. The proposal will go to a vote of the entire House.

Editor's note: The Forum of Fargo-Moorhead and other newspapers owned by Forum Communications Company are members of the North Dakota Newspaper Association.

Jeremy Turley is a Bismarck-based reporter for Forum News Service, which provides news coverage to publications owned by Forum Communications Company.
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"We're trying to create this trail that would be easier for people to catch and find the people that are doing it," said Sen. Doug Larsen, R-Mandan