North Dakota Bar Officials Sued for Opposition to Shared Parenting Initiative

February 4, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

It had to happen, and now it has. On behalf of North Dakota attorney Arnold Fleck, the Goldwater Institute has filed suit against the State Bar Association of North Dakota (SBAND) and four of its officers. The federal lawsuit seeks declaratory and injunctive relief. Read about it here (Goldwater Institute).

The suit of course stems from the blatantly illegal activities of the SBAND in opposing the shared parenting initiative last Fall. As regular readers of this blog know by now, United States Supreme Court precedent is clear that mandatory state bar associations may not use their members’ fees to support or oppose legislation that some of its members may object to. Doing so violates those members’ right to freedom of speech. A fairly short list of Supreme Court cases makes the matter clear. It also makes clear what mandatory bar associations must do in order to preserve members’ rights.

Last fall, I posted two pieces pointing out that the SBAND was plainly in violation of the law governing the activities of mandatory associations. I exchanged emails with SBAND’s Executive Director, Tony Weiler, in which I explained the very obvious problems created by SBAND’s opposition to Measure 6, the shared parenting initiative. Now, having graduated from law school, Weiler can surely read. He can probably even read an opinion by the U.S. Supreme Court. But try as I might, he was dead-set against the idea that the SBAND was violating precedent and could be sued.

My guess is that he’s no longer quite so sure of his position, since of course he’s one of the defendants in the Goldwater Institute’s lawsuit.

But in truth, my guess also is that everything he wrote to me at the time was just a smokescreen. I think he was playing for time. After all, at the time of our correspondence, the election was only a matter of four weeks away. The SBAND had already committed some $70,000 to its opposition to the shared parenting initiative and Weiler wasn’t about to renege on that commitment. My guess is he knew he was going to get sued and didn’t care. The SBAND’s insurance carrier will pay his legal bills, so Weiler has nothing to fear except being made a fool of and my final guess is that that’s less important to him than was defeating shared parenting.

We see this time and again. Lawyers will do just about anything to stop shared parenting initiatives, bills, etc. State bar associations and their family law sections are committed to protecting their sources of revenue, one of which is the fear and loathing occasioned by child custody cases. Shared parenting has been shown to lessen parental conflict and there’s just too much “gold in them thar hills” for attorneys to let shared parenting become law if they can help it. And so far, with the illegal assistance of mandatory state bar associations, they’ve been able to prevail.

But that may be coming to a halt. It’s already done so in Nebraska whose bar association is now a shell of its former self thanks to the malfeasance of its leadership. They too lobbied against shared parenting bills as well as for and against various other proposed legislation. That, and the inevitable lawsuit that followed, caused the state Supreme Court to cut bar fees by two-thirds and all but take over its day-to-day operations.

Much the same will likely happen in North Dakota, whose bar, if anything, behaved more outrageously than did Nebraska’s. The simple truth is that there is no doubt whatsoever that Mr. Fleck will win his suit and the federal judge will issue injunctions against the use of bar funds for lobbying or opposing initiatives like Measure 6. That the SBAND’s behavior was so blatant and committed despite repeated warnings will surely mean the defendants’ insurance carrier will end up paying hefty attorney fees to the Goldwater Institute’s lawyers. This cannot be news to SBAND. Surely it saw all this coming even as it was paying its members’ money to oppose shared parenting.

But a little bird has told me the Nebraska and North Dakota cases won’t be the last state bar associations to be sued for exactly the type of behavior those two organizations engaged in. If my source is correct, there will be more where that came from. Currently some 38 states have mandatory bar associations and of course not all of them have opposed shared parenting bills. Hopefully the Nebraska and North Dakota lawsuits will provide a warning to other bar associations to comply with the well-established law about lobbying state legislatures.

If indeed those associations pull in their horns, it’ll be one major obstacle removed from the path of shared parenting laws across the country.

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