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A Tiff In North Dakota Law Enforcement PDF Print E-mail
Written by Chet   
Tuesday, 17 March 2009 18:00

CageI sat through a short legislative committee hearing Tuesday morning that got kind of spicy.  It was the North Dakota Senate Judiciary Committee hearing on House Bill 1416.  The part people seemed to be fighting about is this:

12-60-08.1. Power of the attorney general to issue subpoenas in bureau investigations. The attorney general may issue an administrative subpoena compelling the recipient to provide records or information to an agent of the bureau of criminal investigation in any criminal matter being investigated by the bureau.

HB 1416 

The horribly unconstitutional (in my opinion) provision is being pushed through the legislature by Attorney General Wayne Stenehjem.  It's kind of flown under the radar so far this session.  It was passed in the House and is now in front of the Senate Judiciary Committee.  What was interesting is that the States Attorneys showed up and testified in opposition to the bill.  So we had local prosecutors arguing with the state's top prosecutor about the legitimacy of his claimed need for this bill.  Here's how it played out:

Assistant Attorney General Jon Byers got up first, and testified that there's only one way for prosecutors to get subpoenas issued for out-of-state internet Internet Protocol (IP) information and that is by contacting a cop in the state where the Internet Service Provider (ISP) is located, convince them to set aside all their other work and go talk to a local prosecutor, and get the prosecutor convinced to seek the issuance of a subpoena by a judge.  Byers and the BCI cop who testified in support of this bill acknowledged that this relates, almost exclusively, to internet-related crimes.  He made it sound like the process for getting these out-of-state subpoenas is horribly burdensome, but it's the only way this can get done.  He claimed states attorneys can get subpoenas through the "States Attorney Inquiry" process, but that the subpoenas ultimately are issued without court participation.  He was wrong.

After Byers and the other A.G. employee supporter of the bill got done testifying about how the A.G.'s office needs this subpoena power, then McLean County States Attorney Ladd Erickson got up and essentially said -- without saying it -- that Jon Byers has no idea what he's talking about.  He pointed out that there's a process that involves both a state and federal statute that he and other states attorneys use all the time to get this out-of-state internet information.  He described the process.  It included court participation and the issuance of a court order.  He said states attorneys all around the state use the same process all the time.  It sounded like it was quick and easy and not a big deal, but that it also protected citizens' privacy and due process rights by involving the court and requiring a minimal showing of proof (something the A.G.'s bill doesn't include).  Intentionally or otherwise, Byers was made to look like he was completely clueless about how subpoenas are issued by prosecutors "in the real world."  I watched Byers as Erickson described this process.  His face turned redder and redder as Erickson explained how the real world works.  I couldn't tell if he was angry or embarassed.  Perhaps both.

Bottom line?  The A.G.'s office was either wrong, or they were deliberately providing false information to the committee.  I'll give them the benefit of the doubt and say they probably just didn't know what they were talking about.  They usually don't.

Erickson was asked by the committee's chairman, David Nething, why he hadn't testified about this bill when it was in front of the House committee.  Erickson explained he had tried to work something out with the Attorney General.  It sounded as though the A.G. wasn't willing to work with him.  Erickson said he had some proposed amendments, but it sounded as though the A.G. wasn't interested in looking at them.  Erickson provided copies of the proposed amendments to the committee members.

What's interesting -- and controversial -- about this bill is that it purports to create a process for issuance of an "administrative subpoena" by the A.G.'s office -- without any checks or balances by the judicial branch -- in ALL criminal cases being investigated by the A.G.'s office and it's investigative arm, the Bureau of Criminal Investigations.  For people who aren't law trained, that might not seem like a big deal, but it is.  Generally speaking, subpoenas can only be issued in the name of a court.  An exception probably exists in investigations by administrative agencies.  An example might be that the Department of Human Services has authority to issue administrative subpoenas when it is investigating a licensed daycare provider.  Or the Securities Department might issue an administrative subpoena when it is investigating a stock broker.  Same with the North Dakota Insurance Commissioner's office.  Those sorts of administrative subpoenas in non-criminal cases are fairly normal.  If evidence of criminal conduct is discovered during the course of information obtained with an administrative investigation, the agency might involve a prosecutor.  Again, that's normal. 

But this bill would open the door wide open for the A.G. to issue subpoenas in every criminal investigation with no standards being imposed and no judicial oversight.  It would essentially invalidate and/or circumvent Rule 17 of the North Dakota Rules of Criminal Procedure, which requires that all subpoenas in criminal investigations have to be issued "in the court's name."  If you're a constitutional law buff, you might know that the legislature has tried invalidating/circumventing court procedural rules in the past, with little success.  State v. Hanson comes to mind.  That was a case where the legislature tried to override the Supreme Court's rules relating to the exchange of information between defendants and prosecutors in criminal cases.  The Supreme Court said that's a power limited to the government courts  and threw out an entire section of the North Dakota Century Code.

A nearly identical proposal was the subject of much debate in Washington, D.C., last month.  D.C. cops made all the same arguments being made by North Dakota's A.G.  The A.C.L.U. got involved in fighting the D.C. law, but we don't have any civil liberties in North Dakota, so they haven't engaged here.  This is an area of the law that's pretty hot around the country, yet our local media hasn't written anything about the fact there's a fight going on here.  They're too busy not writing about the way our legislators are trying to mis-use the stimulus money to not write about big fights between North Datota's law enforcement entities.

Those of us who work with this stuff sometimes wonder how the Attorney General -- a guy who has sworn to uphold the laws and constitution of the State of North Dakota and of the United States -- can be the person advocating for what appears, pretty clearly, to be an unconstitutional law.  It must be awkward for him and his staff, especially when they show up at the hearing so unprepared and end up making significant misrepresentations to the committee members.

It was interesting to see local states attorneys fighting for people's rights while our Republican Attorney General was fighting to circumvent the constitution.   One thing one of the county prosecutors said in his testimony was that he hates to ever be on the opposite side of the A.G.'s office on a bill.  You could cut the tension in the room with a knife.  This bill has obviously caused some stress in the relationship between the A.G.'s office and the local prosecutors.

It'll be interesting to see where this horrible bill ends up.  

Look for a story on this in tomorrow's Bismarck Tribune or Fargo For 'em, but don't hold your breath while you look.  This stuff is too hard for them.

Comments (3)add comment

nimrod said:

This bill is really scary. Isn't it funny how Republicans are the ones who don't have a whole lot of respect for an individual citizen's civil liberties?
March 19, 2009
Votes: +0

What the Heck said:

Will anyone challenge this horrible piece of legislation if it's passed? And the abortion bill?

Too bad we can't export our legislators to a place where they belong.
March 19, 2009
Votes: +0

Big Jake said:

To nimrod: it is not funny but it is predictable. They are steadily moving further to the right-----fascism, nazism, totalatarianism is always the next level. Our system is designed and intended to correct these movements---they are the enemy of freedom and liberty. So far, in ND, we are not doing too well. No matter what the reason, anything that abbrogates our liberty or our Constitution needs to be regarded as anti-American. The concentration of wealth is the first sign of this deterioration.
March 21, 2009 | url
Votes: +0

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