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Port: Sorry, but the executive and legislative branches are not the same as the judicial branch

The people elected to the executive branch, or the Legislature, make the laws and execute the laws. Thus, the voters have a fundamentally different relationship to them than they do to the judicial branch.

FILE PHOTO: Wayne Stenehjem, during a stop in Fargo May 19, 2016. (Dave Wallis/The Forum)
FILE PHOTO: Attorney General Wayne Stenehjem, during a stop in Fargo May 19, 2016.
(Dave Wallis/The Forum)

MINOT, N.D. — All due respect to Attorney General Wayne Stenehjem, who has announced that he'll be winding up a wonderful and very consequential career in North Dakota politics at the end of his current term (listen to my interview with him at the link), but his recent opinion issued to the state Ethics Commission is bunk.

And the reason, I believe, is that Stenehjem fell into a vocabulary trap.

What occasioned the opinion was a request from the commission for some clarity on their authority to regulate campaign contributions. The commissioners have come under fire from the partisan, left-wing activists who organized the ballot measure creating the commission for being reticent in cracking down on what they perceive as a conflict of interest.

A school official frustrated with a reporter's coverage was able to convince a law enforcement agent to launch an investigation that included seizing that reporter's phone so she could comb through all the personal and professional information on it. That shouldn't have happened, and it cannot happen again.

They, as one example, don't believe that people who work in the coal industry for a living should be making campaign contributions to elected officials who regulate coal mines. They think that sort of thing should be restricted, which is convenient for them, politically, as such a restriction would only apply to those who want to operate coal mines and not those who oppose coal .

Back to the matter at hand, the ethics commission was understandably reticent because the U.S. Supreme Court has correctly established that campaign contributions are protected political speech. If the ethics commission tries to restrict the ability of elected officials to act, in an official capacity, on people who contributed to their campaigns, is that not a First Amendment violation?


The commission asked Stenehjem, and this is where the vocabulary trap comes in.

The ethics amendment to North Dakota's state constitution, created by the ballot measure backed by the aforementioned left-wing activists, states in Section 2, subsection 5: "Directors, officers, commissioners, heads, or other executives of agencies shall avoid the appearance of bias, and shall disqualify themselves in any quasi-judicial proceeding in which monetary or in-kind support related to that person’s election to any office, or a financial interest not shared by the general public as defined by the ethics commission, creates an appearance of bias to a reasonable person."

The relevant term, the one which inspired Stenehjem's opinion to go off the rails, is "quasi-judicial."

In his opinion, Stenehjem found that this provision in the state constitution "would likely be found to be constitutional under the First Amendment of the federal constitution" if examined by the courts, and his reasoning is rooted in the established rules governing judicial conduct.

This opinion clears the way for the ethics commission to implement restrictions on the activities of statewide elected officials, though Stenehjem, prudently, warns that such policies may, in practice, still be a violation of the 1st amendment.

The problem with Stenehjem's conclusion is he allowed the term "quasi-judicial" to lead him to examine the relationship between elected members of the executive and legislative branches and their campaign donors in the same light as judicial candidates.

This passage, from the opinion, is where Stenehjem made his mistake: "There is no case law or Attorney General’s opinion directly on point regarding the legality of a law requiring the recusal of a public official in a quasi-judicial matter. It is understood that there are inherent differences between public officials of the executive and legislative branch and elected members of the judiciary, however, given the lack of authority directly on point, it is helpful to review the United States Supreme Court’s treatment of judicial recusal provisions and the Court’s rationale for upholding such provisions before addressing whether Section 2(5) is manifestly contrary to the First Amendment of the federal Constitution."

Stenehjem acknowledges that there are "inherent differences" between someone elected to the judicial branch, and someone elected to executive or legislative branches, but then goes on to scrutinize policies related to the latter as if they were the former anyway.


We elect judges in North Dakota, but they are nonpartisan elections. Because judges aren't really supposed to make policy (they do anyway, but that's a topic for a different sort of column). Judges are supposed to apply the laws and policies created by the other two branches of government to specific situations when disputes arise.

Really, they should be appointed, not elected. Most of the judges end up running unopposed anyway, so what are we even doing?

But I digress.

The people elected to the executive branch, or the legislature, make the laws and execute the laws. Thus, the voters have a fundamentally different relationship to them than they do to the judicial branch. The electorate has an interest in electing people to the Legislature, or to the Public Service Commission, or even to the Attorney General's Office, who represent a certain philosophy or platform of ideas when it comes to executing the duties of their office.

There is a great deal of disagreement among voters over what those philosophies or ideas should be, but that's politics.

This brings us back to the debate over the authority of the ethics commission. Some want a crackdown from the commission that would inevitably result in lopsided restrictions on political activities. If the activists behind this misguided ethics amendment get their way, the people who own businesses or represent industries would be essentially locked out of the political process, while those who are against things, like drilling for oil or farming the land, are not.

And Stenehjem, by buying into a word game that erroneously equates the jobs of the legislative/executive branches to the judicial branch, has given them a big boost.

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