MINOT, N.D. -- The North Dakota Supreme Court is operating under new leadership at the moment. Chief Justice Jon Jensen was appointed to the Supreme Court by Burgum in 2017. He was seated as chief justice in January .
His comments to the media at the time are revealing.
"I think judges like to help people," Jensen said. "And I think you're no longer an advocate but you're in some ways finding the legal solution, but the solution."
That's not correct.
The job of the judge isn't to find a solution. It is to apply the law, as created by the legislative and executive branches, to a specific situation.
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That Jensen feels differently has led North Dakota's highest court to make a terrible decision regarding the relationship between landlords and tenants.
A significant point of contention in our debate over how best to respond to the COVID-19 pandemic has been the question of evictions.
The state Supreme Court overstepped its authority in making a policy decision about evictions before any of our policymakers weighed in.
In addition to their judicial role, North Dakota's justices must administer our state's courts. They make decisions about the rules of procedure. They decide how to handle weather cancelations. Stuff like that.
But when the Supreme Court issued an emergency order suspending eviction cases (read it below), they overstepped. The justices exceeded their authority as the judicial branch of government.
This isn't about whether or not you think we ought to be still evicting people in the middle of a pandemic. This is about who should have made that decision.
It shouldn't have been the courts.
Legislatures make policy. Governors make policy.
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Judges are supposed to adjudicate the policy made by the other branches, acting as a sort of referee to sort through conflicts.
They are supposed to be impartial. They are supposed to cultivate neutrality.
They can't do that if they're the ones who made the policy.
The judges can't be a referee if they're also calling plays on the field.
Our justices cannot be both the quarterback, throwing passes and the referee ruling those passes completed.
If the justices had responded to the pandemic by making a broad decision about the function of the courts, that would have been fine. The courts in our state often close down or limit operations due to things like blizzards or floods. It would have been a routine thing to be expected in a moment like this one.
Our courts didn't do that.
Instead, they issued a specific order about evictions, seemingly in response to a political movement.
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Many have called on Gov. Doug Burgum to issue an executive order about evictions and foreclosures, but as a practical matter, he never got to make that policy decision because the courts made it for him.
Perhaps he's even glad that the courts relieved him of making a tough decision.
That's wrong, not least because if Burgum had made the call, those believing he had overreached in some way would have the courts as a venue to settle that dispute.
How, exactly, does one go about filing a lawsuit, to be heard in North Dakota's courts, challenging the legality of an order issued by North Dakota's courts?
ND Supreme Court Order by Rob Port on Scribd
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Rob Port, founder of SayAnythingBlog.com, is a Forum Communications commentator. Reach him on Twitter at @robport or via email at rport@forumcomm.com .
