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Hoeven Appointee Dismisses Dalrymple Grand Jury Petition PDF Print E-mail
Written by Chet   
Monday, 26 November 2012 09:46

On Wednesday afternoon, as people were doing their Thanksgiving grocery shopping, a court order was made public in which a Gov. John Hoeven-appointed judge dismissed a petition filed by Dunn County residents seeking a grand jury investigation of the alleged bribery money received by Gov. Jack Dalrymple in 2011 and 2012. I'll say a few things about the decision, some of which may not be popular with some of our readers. Other things I'll say might be really popular. That's just how it's going to be.

I'll outline the case / allegations, as I understand them to be.

  1. There is a bipartisan group of North Dakotans who know of "campaign contribution" money paid by various folks in the oil and gas industry to Governor Jack Dalrymple while those individuals have matters pending (or an interest in matters pending) before the North Dakota State Industrial Commission.  We wrote about this back in early October.  (Click here to read all the details.)
  2. It is a prima facie violation of North Dakota law -- a felony -- for a person (including a corporation) to give money to a public official when that person has an interest in a matter pending before the public official if the person's interest "could be affected by the recipiant's performance or nonperformance of his official action or violation of his known legal duty as a public servant."  NDCC § 12.1-12-01
  3. There doesn't seem to be any dispute over whether Governor Dalrymple accepted money from people who had an interest in matters pending before the Industrial Commission, which Dalrymple chairs.
  4. Nobody was doing anything about the alleged/apparent felony violation, so a former Republican candidate for Governor took matters into his own hands and tried to follow North Dakota law by circulating petition to get a grand jury investigation of the alleged bribery or briberies. The petition was filed in Dunn County on or about October 31st, 2012. (Click here to read all about that.)
  5. There was some delay in the filing of the Petition. The delay was apparently partly caused by a deficiency in the State's court system's electronic filing system. Apparently there was no "slot" designed in the system for a petition such as this. In a letter submitted to the Clerk of Court by Dunn County State's Attorney Ross Sundeen, concerns were also expressed about the propriety of the petition.  Namely, (1) that the petitions might arguably be four separate petitions requiring four separate verifications, (2) that the jurisdiction of the Dunn County Court might not be appropriate, and (3) Some of the petition signers may not have been Dunn County electors.  (Read the letter by clicking here.)
  6. The petition was filed.
  7. Judge Herauf dismissed the petition on Wednesday before Thanksgiving.  Here's Judge Herauf's decision.

Dunn County -- Dalrymple Bribery Petition Decision -- Judge Herauf -- 11-21-12  

Now, here are my thoughts about this decision.  

Let's talk about what the Judge did.  There are two main reasons why he appears to have dismissed the Petition.  First, he said there were not enough signatures from qualified Dunn County electors.  Second, he said venue was not proper in Dunn County.

First, let's talk about the signatures.  He said 167 signatures were needed from Dunn County electors for the petition to be valid.  The petitions submitted contained 173 signatures. That means there was only a six signature cushion. If seven signatures are bad, then the entire petition could arguably be thrown out.  Judge Herauf looked at the petition on its face, saw that seven people listed addresses outside of Dunn County (see pp. 4-5 of his decision), and based upon that analysis, the entire petition could be thrown out because there were only 166 Dunn County electors who signed it. Those signatures had addresses in Bismarck, Fargo, Dickinson X 3, Laverne and New Town.  Based upon this, alone, the judge said he could thow out the entire petition.

But he didn't stop there. He went on to say that 55 of the Dunn County residents only provided post office box addresses, and that is not a sufficient address for a petition of this sort. The judge concluded you have to provide -- essentially -- a 911 street address.  Apparently North Dakotans who use only a post office box address can't be trusted to be residents of Dunn County. An additional 16 signatures did not have any address attached to them. It would seem that the Judge perceived there was no possible way to verify the physical addresses of these 71 people (plus 7?).  So the petition was thrown out.

But, additionally, he also concluded that if any grand jury petition were to be filed, it should be filed in Burleigh County because that's where the bribery (if any) took place.

I want to talk about each of these, one at a time.  First, an argument could be made that there is no requirement in the law that petition signors must provide any address at all.  (Start reading at page 3 of the document you see when you click here.)  So, if that's the case, they could have just signed the petition without any address at all. 

Second, I know people who reside in the oil patch but who have their mail routed to other places -- typically where their parents or other family members live -- outside the oil patch. There is no crime in doing this. It is completely appropriate to do it. If I want my mail to be routed to a friend's house in Fargo, I can do that. People who reside in the oil patch and who are qualified electors there, might want to have their mail sent outside the oil patch.  That's their business.

Third, I imagine there are a lot of people in Dunn County who think it's perfectly fine to use a Post Office Box.  I use one.  I'm not trying to hide anything. If someone wants to question where I live, they can send a letter to me at my post office box and ask me and I'll probably tell them.  The fact I use a post office box does not make me a non-elector in my county.  

Regarding signatures and their status as electors generally, I will simply say this: There should have been a hearing on this. The judge in this case could have cleared up these things at a hearing. After doing so, there very well might have been the same outcome, but he should have given the petitioners an opportunity to be heard. Instead -- without giving the petitioners an opportunity to present facts, law and argument as to why he should not do this -- the judge decided a 911 physical street address within Dunn County was required for every signature on the petition. It is not fair or just, in my opinion, to do that to them without giving them an opportunity to be heard. At the very least, the judge should have given the petitioners an opportunity to make their case.  Second, he assumed that anybody who did not provide a 911 physical address was not a Dunn County elector. If he had questions or problems with any of them, he could have held a hearing. He could have asked the petition sponsors to present evidence that those people were qualified Dunn County electors. Instead, he assumed they were not.  That is not fair or just, in my opinion.

Lastly, I want to talk about the conclusion that venue in Dunn County is not appropriate. I have a problem with that. A basic principle of law is that if you take your gun and stand in McKenzie County and shoot someone across the county line in Dunn County, you can be prosecuted either where you shot the gun, or where the affects of the shooting take place. This only makes sense. And, to apply this principle of law to this alleged bribery, if you take a bribe in Burleigh County and the effect of taking the bribe is that a mega spacing unit is approved in Dunn County, depriving Dunn County residents of money and liberty, then you can be tried in either county.  I'm not making this up; we have a law that says this.  

Part committed in different counties - Jurisdiction in either. When a crime or public offense is committed in part in one county and in part in another, or when the acts or effects thereof constituting, or requisite to the consummation of, the offense occur in two or more counties, the jurisdiction is in either or any of said counties.

NDCC § 29-03-04

But I'll admit this: I might agree with the judge that it could be proper to throw out the petition. It's possible (maybe even likely) that seven of the signatures on the petition were from people who were not qualified Dunn County electors.  But -- at least in theory -- we have something in American jurisprudence called "Due Process."  It comes from our state (Article I, section 9) and federal (section 1 of the fourteenth amendment) constitutions. People are supposed to get "notice" and "a meaningful opportunity to be heard." The petitioners in Dunn County could not have seen the dismissal of their petition coming, whether on the Wednesday before Thanksgiving or otherwise. And they certainly did not have an opportunity to be heard or an opportunity to prove (or argue) that the judge would be making a mistake by assuming all of those people were not qualified electors.

That's simply not fair.

And I simply disagree with the court -- and would argue that the law disagrees with him -- regarding venue. These folks are arguing that the result of the bribe -- the result of the gunshot in Burleigh County -- was the creation of a mega unit in Dunn County.  I think it's hard to argue against them.

Comments (6)add comment

big jake said:

Chet, while I make no claim as to being a legal expert, I have a body of experience in these areas. I agree with your analysis.

Furthermore, Judge Herauf made a completely political decsion. Far too common and an affront to the rule of law and an assualt on liberty. Justice Taney and the Dred Scott decsion comes to mind. In the recent past, this bunch of arrogant crooks have flaunted their contempt to our system and have been validated by an uninformed public. Of course the Gov. did what was alleged and with obvious impunity. So did 2 of our publice service commissioners. The Gov. should be impeached and all 3 of this known violators be removed and prosecuted as criminals---indeed, that is what they are. The Judge should be removed from office as their can be no doubt that he knows the law and is simply placing his own interest and the interests of the good ole boy network that put him where he is, ahead of integrity, honor and the law that he has sworn to uphold. Our reaction to this could not be too swift nor forceful. Maybe we should all reflect on the whole set of values that is running our system today and decided if our country is worth saving. If we will tolerate local corruption, what hope do we have in dealing with the big fish that are openly running Washington?
What offends me the most is the overt arrogance that these men exhibit. A perverted sense of entitlement with no regard for their fellow man.

I would suggest that all of you see the Lincoln movie and consider that that the evil that was being confronted at that time both in the north and the south is being repeated today. If we fail to act, and absent a Lincoln to guide us, our future is unsure at best. Franklin, Jefferson and many others understood that in order for us to be free, a requirement existed. Being that we needed informed and dedicated citizens to maintain and further the cause of freedom and liberty. Take a close look around and see if we are even close to that requirment.

Thanks Chet for you continuing service. I know that many of us truly appreciate it.
November 26, 2012
Votes: +5

What the Heck said:

Dunn County only makes sense as venue
Who knows where the actual bribe-taking might have happened? Could have been anywhere in the US as it involves companies with out-of-state headquarters. Phone, mail, in person at some schmooze-fest...we will probably never know.

This decision is less than shocking. Predicted it would happen. Judge probably consulted the AG first.
November 26, 2012
Votes: +1

nimrod's attorney's cousin said:

For some reason, the judge mistakenly thinks he has discretion to deny the petition "requesting" that a grand jury be convened. Judge overreaches in defining his role as a gatekeeper under the statute. Wrong-O Ralph. Next step, writ of mandamus to ND Supreme Court.
November 26, 2012
Votes: +3

What the Heck said:

Do over?
What is the statute of limitations? Can another petition be filed? Hopefully with more of a cushion in signers...
November 26, 2012
Votes: +1

nimrod's password said:

I think the judge's decision abridges many of the petitioners' fundamental right to farm using modern practices.
November 27, 2012
Votes: +1

big jake said:

I takes money and an outraged public to change this. We have neither. Sadly, this will continue until it collapses from the weight of its own corruption.
Any judge is merely a lawyer with political connections---it has always been so. And on occassion, we get a good judge. Not many in ND today. They do know exactly what to do when the sirens call comes through---

This bunch has always had the tendency to express their elitist views but have been careful no to be to open about it. It seems as though, at least to me, that when the WSI flap was successfully killed, it provided license for the good ole boys to do whatever they wanted. Losing Berg, like losing Romney is merely a small setback. Notice that the rabid right has not slowed down at all since the election. They are determined, focused, funded and patient. Something that the Democrats just don't get. Mostly too busy trying to be a pale image of the bad guys. Notice that the discussion has now changed to cut Soc. Sec, Medicare and Medicade. What a bunch of phonies. It seems to be OK to talk about taking from the least of us and giving the elite even more power. Democrats, this in not comprimise, NO, it as a moral collapse. What the hell is wrong with you? Moreover, what in the hell is wrong with us to tolerate this corrupt bunch here at home? How in the hell can we ever think about fixing Washington when we can't find the courage to fix what is wrong at home.
November 28, 2012
Votes: +3

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