Shared parenting supporters cry foul over use of attorney fees for opposition

By Rob Port | Watchdog.org North Dakota Bureau

BISMARCK, N.D. — Supporters of a state ballot measure to create shared parenting laws says the state’s bar association is illegally spending compulsory lawyer dues to defeat it, but the lawyers say they’re not doing anything wrong.

Measure 6, if approved by voters, would “create a presumption that each parent is a fit parent and entitled to be awarded equal parental rights and responsibilities by a court unless there is clear and convincing evidence to the contrary,” according to language approved for the November ballot.

Proponents of the measure say it would fix inequality in the family law system. Opponents say it would complicate an already difficult process, creating needless litigation.

In question is spending by the lawyers on making their case against Measure 6.

Illegal opposition?

Opposition to the measure is being funded exclusively by the State Bar Association of North Dakota. According to disclosure reports filed with the North Dakota Secretary of State’s office, the Keeping Kids First committee has received $60,000 in contributions from the association. Executive director Tony Weiler says that figure doesn’t include another $10,000 his organization contributed that hasn’t been disclosed yet.

So far, the North Dakota Shared Parenting Initiative committee that supports Measure 6 has reported $6,825 in contributions, all from individuals.

Measure 6 proponents say using dues required by state law to fund political activities isn’t right.

“It is illegal what they are doing,” Mitchell Sanderson, spokesman for the North Dakota Shared Parenting Initiative, told Watchdog. “No doubt about it. They’re a mandatory association so they cannot use any funds to lobby against a measure like this.”

Weiler disagrees.

“We are a private association of attorneys,” he said. “We do work in conjunction with the state on discipline and licensing.”

Mandatory dues for politics

Weiler admitted North Dakota law requires attorneys operating in the state to pay a $380 per-year licensing fee to the bar association, and that the funds spent on opposing Measure 6 are drawn from those dues.

But Weiler also said the bar association’s governing board has determined this ballot measure isn’t a political issue. “This is a social policy issue rather than a political issue,” he said.

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.”

Get a refund

Weiler points to two U.S. Supreme Court decisions as justification for the legality of the spending against Measure 6.

In Keller vs. California, the Supreme Court found the use of compulsory member dues to a bar association for political activities would violate the First Amendment rights of members, but only if those political activities were not incurred on issues related to the regulation of the legal industry. Weiler argues that spending on opposition to Measure 6 passes that test because it seeks to regulate family law.

He also said North Dakota attorneys who don’t like their dues spent this way can get a refund.

A second Supreme Court ruling, Abood vs. Detroit Board of Education, found that labor unions could spend dues money on political activities, but only dues from members who agree with the activities.

Weiler said that in light of Abood, any attorney in North Dakota who objects to the bar association’s spending against Measure 6 can get a refund of their dues prorated for the amount of money the bar association has spent on opposing Measure 6.

Litigation pending?

Robert Franklin, a former attorney and executive editor of the Houston Law Review, is now a board member for the National Parents Organization, which promotes shared parenting laws. He argued the bar association isn’t using their funds legally and litigation may be forthcoming. He said the Nebraska Supreme Court recently reigned in the political activities of that state’s bar association.

In September 2014, the Nebraska State Bar Association settled a lawsuit filed by a state lawmaker who claimed his dues were being illegally used for political activities. According to the Associated Press, mandatory membership dues in that state dropped from over $300 per year to under $100 after the courts restricted the use of those funds to “only those activities needed to regulate the legal profession, such as maintaining records, mandating continuing education for lawyers, and enforcing the ethical rules of attorneys.”

“My belief is that the North Dakota association will shortly learn that lesson as well,” Franklin told Watchdog.

According to Franklin, the bar association isn’t complying with the U.S. Supreme Court’s rulings in Keller and Abood.

“Keller very clearly holds where you have a mandatory state bar the dues cannot be used for anything but a legitimate regulatory function,” he said. “Taking a position against a particular bill before the legislature, or in this instance a ballot measure, has nothing to do with regulating the legal industry.”

As for the refunds, Franklin said the Abood ruling requires the association or labor union in question provide a neutral third party to arbitrate membership claims.

“The North Dakota bar does nothing of the sort,” he said.

Shared parenting leads in the polls

Recent polling shows that, despite the lopsided financial support, Measure 6 stands a good chance of passing. According to a University of North Dakota poll commissioned by Forum Communications, 44 percent of North Dakotans say they’re voting yes while 30 percent say they’re voting no.

The polling was conducted September 26 and October 3. It sampled 505 random North Dakotans with a margin of error of plus or minus 5 percent.