NorthDecoder.com -- North Dakota's Most Influential Political Blog | A Blogger Never Forgets His First Subpoena

You probably wouldn't know it by reading any of North Dakota's newspapers, but litigation is still pending between a whistleblower who is suing North Dakota's Workforce Safety and Insurance (WSI), and the State, for illegally retaliating against him by terminating his employment with the state last year. You'll recall Dr. James Long uncovered what he believed to be illegal conduct being engaged in by WSI's CEO and others, he blew the whistle and then was semi-promptly sent packing. WSI fabricated an assortment of explanations for Long's termination so Long -- and two other WSI employees who received settlements from the State -- sued WSI and the State of North Dakota for violating North Dakota's whistleblower protection laws.

According to information available on the North Dakota Supreme Court's website, the case is scheduled to go before a jury in ~~February~~ April of next year. Discovery has to be completed by December of this year.

The case is being defended by Randall J. Bakke and Mitchell D. Armstrong at the law firm of Smith Bakke Porsborg and Schweigert in Bismarck. They have been appointed by North Dakota Attorney General Wayne Stenehjem to be "Special Assistant Attorneys General," fighting for our state government's right to retaliate against whistle blowers. Your tax dollars are going to the lawyers in this private firm who are defending WSI's termination of Dr. Long for blowing the whistle on WSI's CEO, Charles "Sandy" Blunt and others whose conduct Long and at least three (or four?) (or many more who just didn't say anything?) other WSI employees thought was illegal. Sandy Blunt, you will recall, was convicted last year of a felony for abusing your public dollars. That conviction is on appeal before the North Dakota Supreme Court right now. Regardless of the outcome of that appeal, you'd think Long should have a legitimate claim that he saw something he thought appeared to be criminal conduct by his boss.

This week, your tax dollars went to pay a team of lawyers in Bismarck to use a subpoena to attempt to extract information from me, a blogger. In Friday morning's mail, I got one of those little "certified letter card" thing-deals. I had to get up off my lazy tush and go over to the Post Office to get this ~~letter~~ subpoena from Bakke and Armstrong. They are demanding that I turn over any emails I've sent to or received from James Long, any "blogs... received from or posted by James Long," my cell phone records/bills showing any conversations I may have had with Mr. Long and any notes I may have taken of conversations with Dr. Long from January of 2007 to today's date.

I've been mulling this over. And I've chuckled a few times. But I'm not particularly happy about it. It's kind of offensive.

See, we have a law in North Dakota. It's what they call in legal circles a "shield law." Here's what it says:

Without getting into any other constitutional protections that might exist, etc., this is the law I'm mulling over today.

I should note, first, that I'm not even sure I'm in a position to say whether Long ever provided any information to me as a source for anything I wrote on the blog. He might have. But he might not have. That's neither here nor there. It's really none of anybody else's business, as far as I'm concerned. Newspaper publishers, reporters, bloggers, and anybody else that publishes news -- the law tells us -- shouldn't have to worry about disclosing whether anybody has ever been a source of information for them. Let's not dance around it, though; Wayne Stenehjem's Special Assistant Attorney General thugs are suggesting they think Long was a source for news I published on the blog, or they wouldn't have directed the subpoena to me personally and to NorthDecoder.com. They want to peak inside the thoughts and methods of a news gatherer and publisher.

Here's what I think: I think these Special Assistant Attorneys General are on a fishing expedition. They're running up their legal fees. That's what I think. And do you know who pays those legal fees? We do. The citizens of North Dakota pick up the tab in the form of "premiums" paid by WSI and other state agencies to ~~North Dakota's Insurance Reserve Fund~~ a risk pool. Those premiums are your tax dollars. But don't worry; I'm pretty sure ~~NDIRF and~~ Attorney General Wayne Stenehjem will pull the reigns in on these off-the-rails fishermen.

[Corrections: A reader points out that NDIRF doesn't insure WSI or, generally, the state and suggests they have their own risk management pool. My bad.]

You know what else I think? I think I'm tired of our Republican leaders talking about "personal responsibility" out of one side of their mouth while denying responsiblity when it's so obvious they can't deny it. It seems pretty obvious to me that our state government -- including employees of at least two state agencies -- conspired to retaliate against four honest, hard-working whistleblowers who did the right thing by reporting that they sincerely believed their state employee bosses were breaking the law. (And there's been one criminal conviction and an assortment of forced and otherwise unusual resignations since then, by the way.) WSI pays insurance for this. That's what they pay ~~NDIRF~~ for. ND~~IRF~~ has a big pile of money to compensate people who have been wronged by misconduct of State employees. ND~~IRF~~ should dig down deep into its deep, deep pockets and pay these people every dime they're asking for. Take some responsibility. Do the right thing. WSI played baseball, swung the bat and broke the window. Now they should pay for the window. Instead, they'll pay these Special Assistant Attorneys General to go on ridiculous, frivolous, unconstitutional, illegal fishing expeditions.

You know who could make this whole lawsuit go away in one phone call? North Dakota Governor John Hoeven. He has absolute control over North Dakota's Workforce Safety and Insurance now. One phone call from John Hoeven and the State of North Dakota does the right thing. But he hasn't and the State hasn't. Because Hoeven is busy hiding under his desk, coming out only long enough to occasionally take credit for someone else's hard work. Instead, we'll see these Special Assistant Attorneys General fishing around in the records of some blogger. Next stop for these Special Assistant Attorneys General? The Bismarck Tribune and the Fargo Forum.

Twetter said:

	Silence my man. I don't know much for sure, but I know Chet is a "person ~~was~~ engaged in gathering, writing, photographing, or editing news and was employed by or acting for any organization engaged in publishing or broadcasting news". 31-01-06.2 was written to protect our right to know, that Subpoena was written to shut Chet up. Good luck with that.
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September 19, 2009, 07:28 AM
Votes: +3

M.G. said:

Where will this end!
Here we are again at another public lynching by North Dakota for the freedom of speech. When does the witch hunts end with the state? The states (including WSI) spend from my figures millions of dollars trying to discredit someone through baseless investigations in which they come up with nothing more then dead end paperwork. My guess is that this is only the tip of the iceberg for the investigation into trying to dig up dirt on someone (Naming Jim Long) to try even harder to discredit him.

The question being if WSI can create fictitious paperwork to explain away the firing of Jim Long who is to say they can not fabricate paperwork to make it look more like a conspiracy against WSI? If the WSI board was blind enough to believe that hand written notes that did not show up in Mr. Long’s job evaluation now exist, they are more then likely just as big a part of the issue as the person(s) that wrote the “after the fact papers”. In this case who can explain the clean bill of health that Jim Long received in his job evaluation, and yet “had so many complaints” in his records? Last time I checked 1+1=2, so did they do some subtraction when doing his evaluation, or did these complaints not exist? My theory is the complaints are a fabrication in order to fire Jim Long; otherwise he would not have received such glowing reports on his job.

If a jury were as blind as the WSI Board on this Jim Long will lose his lawsuit, however a timeline speaks louder then anything. Now the other question is how many WSI employees will get up on the stand and perjure themselves for the sake of an agency that will fire you on a whim? You may lie once on the stand, however if that lie is found out it will affect you in the long run of another job after WSI fires you!

September 19, 2009, 08:12 AM
Votes: +0

Out West said:

	Almost right Well, Geez, Chet, you had everything right until the last paragraph. They won't be stopping at the Forum or the Tribune because there were no stories there, so there's nothing to find.
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September 19, 2009, 09:18 AM
Votes: +0

Marty said:

	Hmmm Wonder if Cates received a subpoena?
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September 19, 2009, 09:39 AM
Votes: +0

What the Heck said:

Again, why should anyone be surprised
Abuse of power. Pure and simple. Until this gets national scrutiny by real journalists, the abuse will continue. Abuse of workers, abuse of anyone who dares challenge the system.

Will this issue get the attention of a national news organization? Will other real journalists (besides Chet) dig deeper? One would think Hoeven would pick up the phone asap and call off the dogs, unless he wants to explain this to a national audience.

September 19, 2009, 10:44 AM
Votes: +0

I have issues said:

News, News and more News
Abuse of power, pure and simple. Maybe AG Stenehjem is just too busy preparing his remarks for Rove's indictment, oops, induction into the Scandinavian Hall of Fame to pay attention to the actual law.

I can tell you all that I have read more investigative news on Northdecoder than I have in any newspaper that I read...that is ALL ND online news, every day. Especially on the WSI scandal/campaign of lies.

It is/was common practice to read an posting on this blog and walaa...the next day or day after there would be an article in one of the ND rags, less investigative and more fluffy of course, on the very same topic. The Forum was pretty good for using Northdecoder as a source and reference for its articles.

Doubt they will get a Subpoena...I wonder about Cates and the Beacon...oh ya...that was just plagiarized garbage, never mind.

Maybe now is a good time to file that collection suit against Cates for the 100K. That could help defer some of the costs for your work. Not saying you are going to comply, I would fight it tooth and nail, but it would make for interesting news...if anyone had the balls to report on it.

We're with ya Chet...time to play hardball. Have you contacted the ALCU? I am a card carrying member...bet they would be interested in this one.

smilies/shocked.gif

September 19, 2009, 11:34 AM
Votes: +1

doug d riley said:

...
Everyone must have forgotten that wsi really stands for the (UNTOUCHABLES),they meaning(WSI)can bend paperclips with their bare hands,they meaning(WSI)have judges from the alj's all the way top the top in their pockets,they are most likely the only ones in the whole state of north dakota that have built bullitproof building,no-one has even question WHY wsi still has FIVE of the AG's top bulldogs still guarding the wsi doors,no-one ever even questioned why five or six of the long time board members did'nt even regain their seats,no-one ever questioned why top wsi personal recieved hugh bonuses,but say their in the hole an need to raise premiums,no-ones allowed to look at the safety grants until wsi has found someway to bury them or to clean them up,wsi only fears two things-wsi fears if their beloved hoeven runs for senate an somehow wins then a new governor just might have a set an demand a full-blown investigation into the long hidden working of wsi,the only other thing that wsi fears an fears the most is CHET,for he's the only one that has had a set,he's the only one that has dented an tarnished their armor,an he's been the only one thats been able to gather enough folks with enough voice to be able to bring in outside attention,if wsi can shut-up CHET,then they would have to worry able any lawsuit from Mr.Long-i for one still hope that Mr.Long cleans their clocks...as for cates,he's going right down to the court house first thing monday morning an fileing a subpoena on himselve an takeing it right over to the tribune to show them that he recieved one...

September 19, 2009, 01:31 PM
Votes: -1

Marty said:

	strategy I think Bakke is very afraid of the information Cates would have to turn over if he were subject to subpoena. He will want to argue 31-01-06.2 applies to Cates, but he isn't 100% sure it's a winning argument. So, he's subpoena'ing you, to preemptively force Long to make the argument on his behalf -- that blogs are news organizations under 31-01-06.2. That's what I think.
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September 19, 2009, 02:27 PM
Votes: +0

Marty said:

	further... Cates himself doesn't want to have to be the one to argue blogs are news organizations, since he said he'd pay $100,000 to the first news organization who proved he published falsehoods, which you did ... and Cates said blogs aren't news organizations. Okay, so that's a stretch; I'm sure that's not what Bakke's up to. But it is kinda funny.
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September 19, 2009, 04:21 PM
Votes: +0

Correction said:

Well actually.
NDIRF only insures local governments, well that's the bulk of their coverage. The state has it's own little risk pool funded with our tax dollars. It's managed by The Risk Management Division (of Hoeven's OMB). Which rents office space from, drum roll please, WSI. The Director of RMD is a guy named Tag Anderson. Wait, where else have I seen that name? Isn't he one of the people named in the "Long law suit"? Yep, no other. And no, he is not being sued as the head of RMD. Anyone know why he is named? Don't tell me you are going to let the Subpoena silence you. Purpose of the Subpoena?

September 19, 2009, 05:59 PM
Votes: +0

Chet said:

Duly noted (above)
I thought WSI was an exception; thought I'd read a statute to that effect way back when. Just looked for it and couldn't find it. C.R.S. You must be right. Thanks.

I can't get inside the mind of Long's lawyer, but I'd guess Tag was named as a defendant because he was the A.G.'s office's expert on avoiding liability for wrongfully terminating state employees [i.e. avoiding getting accused of doing it, and "winning" for the state when it was so accused] and would further guess that he advised WSI how to dismiss the whistle blowers.

How'm I doing so far?

September 20, 2009, 03:43 AM
Votes: +0

.MIKE said:

	... Godspeed
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September 20, 2009, 06:52 AM
Votes: +0

Big Jake said:

...
In your 2 words you could add " and the horse you rode in on."

Not surpising but troubling. As a layman, I don't know if the law has kept up with technology regarding the internet, blogging, etc. and the status of just who is regarded as news media, etc. Regardless of that, you are clearly being punished as has anyone else who has stirred the pot regarding WSI.

As an aside, it has always troubled me that the AG and other agencies retain outside counsel using taxpayer dollars. Wayne has a large and supposedly competent staff that are on salary. Why can't they be used for what they have been hired and trained to do? The answer is always political---not pragmatic. It will be interesting to watch the progress of the Long case, as well as the appeal of the Blunt case. A real test of this Supreme Court. Considering the attitude of the country and at least as much here in ND, it will be telling.
Call the ACLU. Engage them in what they do best. It seems to me that this is a really big deal. Perhaps an important precedent.

Way to go Wayne!!!!! Perhaps you have consulted with Rove. He certainly knows how to kick liberty in the teeth and for the most part get away with it. Fine fellow. Doesn't it make us all proud to be Americans???
The usurpers of liberty never sleep. Eternal vigilance is truly our only defense.

September 20, 2009, 08:40 AM
Votes: +0

What the Heck said:

	Flexing their muscle WSI, Stenejhem and Company are sweeping as far and wide as possible because they can. Who's going to stop them? They need to destroy Long and they'll spend as many $ and leave as many bodies in the wake as necessary to achieve that goal. What will it take for justice to prevail? Seriously, what can be done????
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September 20, 2009, 09:23 AM
Votes: -1

nimrod said:

	Col. Sherm Potter sez . . . Horse Hockey.
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September 20, 2009, 03:53 PM
Votes: -1

nd.baby said:

	... You're obviously doing something right. Congrats!
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September 20, 2009, 11:38 PM
Votes: -1

Chet said:

The Tribune Weighs in
Keith Darnay of the Bismarck Tribune weighs in on the issue this morning:

Now, you can get USA Today, Science, MacLife and a host of other publications as complete downloadable PDFs. Most print publications use Web sites to disseminate their content over the Internet. Bloggers are the digital versions of "old media" columnists and reporters. And most "old media" columnists and reporters are producing content for the digital world as well.

The Bismarck Tribune (09-21-2009) (emphasis added)

September 21, 2009, 06:59 AM
Votes: +0

Aldon Hynes said:

	My Source for North Dakota News For the record, I am not a resident of North Dakota and I do not follow news events in North Dakota very closely. However, when I seek to get news about what is happing in North Dakota, NorthDecoder.com is my primary source of information. From my perspective NorthDecoder.com clearly falls within the purview of NDCC § 31-01-06.2
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September 21, 2009, 01:35 PM | url
Votes: -1

J. Lock said:

Interesting question of statutory construction
Hey Chet:

As a lawyer, I find your use of the word "thugs" to be inappropriate. Thugs knock down doors in the middle of night. They do not use certified mail and the Court process. Especially since you are schooled in the law; and not without resources to respond and protect your interests.

In an orderly, civil society, disputes are resolved through the judicial process -- which involves lawyers making their clients' cases and then letting a co-equal branch of government decide. This is not thuggery.

But all of that is beside the point. I agree that it appears that you qualify under all of the statute except the following language: "and was employed by or acting for any organization engaged in publishing or broadcasting news . . ."

Were you employed or engaged by an "organization." Can a sole person be considered an "organization."

I do not know the answer, but I would be interested in seeing how the Court resolves this issue. (Of course, the Court could simply skip the issue about whether the statute applies to you and simply assume it does, but order you to disclose the material nonetheless . . . . ).

Keep us posted, and good luck.

JL

September 21, 2009, 05:24 PM
Votes: +0

S. Fred Wood said:

Carly Simon

You're so vain
You probably think this song is about you
You're so vain
I'll bet you think this song is about you
Don't you? Don't you?

Well Senor Lock. When Mr. Editor in Chief said "We -- and I truly mean "we" -- are an organization." I thought he included me. I've provided some news, I've even sent him a few dollars to further the cause. I hope, in some small way, Chet considers me part of the organization. Even if it is is just as a bur under Adam's saddle.

Speaking of news, I'm sure y'all heard about Blunt's briefs being on the Supreme Court's web site under "October happenings."

I wish someone who took B-Law in college would analyse the briefs.

PS. I can't believe Adam doesn't tell us how the net convention was.

September 21, 2009, 07:53 PM
Votes: -1

doug d riley said:

...
you know it must be really nice to be able to bring all your friends with you to a new job out of state,to be able to double dip on your expenses,to have your best friend set up a safety grant deal that enables your so called organizasion to give money to state legislatures,to hold parties for them,to come up with fake vacations for them just so that they will pass curtain bills that kick injured workers to the curb,but you cry like a two year old at the store because your mommy's not going to buy you that sucker,when you get busted,you bitch about having too give 2000 dollars to the homeless an have to do 1000 hrs. of community service-when the trurh should have been ten years with bubba as his little candy girl,but this is justuce,the injured workers get to lose everything they workered so hard for-families-homes-life,the injured get to go on welfare after they've sold everything they have owned,but politicians butt suckers get unemployment,200,000 thousand dollars,and his manacured hand lightly slapped,thank god theres no corruption in this state.......

September 22, 2009, 12:34 AM
Votes: +0

Chet said:

	Flashback to high school geometry An imagined conversation: Socrates: Gentleman, what do you call a basketball player who stands in a crowd in the middle of the paint, recklessly swinging his elbows around? J Lock: A basketball player. Chet: A thug. Socrates: Correct.
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September 22, 2009, 04:48 AM
Votes: +5

Adam said:

To Fred
We all need a burr in our saddle from time to time to keep us honest.

Thanks for the reminder, my apoligies for not reporting back to you on Netroots Nation. I was running all over the place for a while visiting family and forgot to mention the rest of the story on my experience. I had a blast while I was there. I managed to meet many people whose work I read on a very regular basis, including many members of the hateful Nazi site, DailyKos. I said "Hi!" to Kos, met David Waldman, whom I email on a semi-regular basis, Met Bill in Portland Maine, the author of CHEERS and JEERS, as well as his partner, Common Sense Mainer(Michael Moore, no relation). I also met several statewide bloggers, including Shannyn Moore, the Alaska radio host who was threatened with a lawsuit by Sarah Palin for suggesting that she may have resigned as Governor of Alaska because of federal investigations for embezzlement. We ended up trading a few war stories and have kept in touch somewhat.

On top of that I played trivia with Congressman Jerry Nadler(D-NY-8 ), and got an autographed copy of "Howard Dean's Prescription for Real Healthcare Reform" by Governor Dean himself.

In all the conference was great fun and I was honored to be a part of it.

September 24, 2009, 11:00 AM
Votes: +1

Steve Little said:

To: J. Locke
As a lawyer myself, I found your comment interesting if a trifle naive. Every May 1st, lawyers and judges dance around the Maypole congratulating each other on what a civilized justice system we have. Gone are the days when ordinary citizens settled their disputes with fists or knives or guns. Now we use legal process, nice and neat and tidy. Of course, in the old days when people dealt directly with their adversaries, it was usually one against one. A single man against a mob wasn't considered sporting. If you've ever litigated against the State or an insurance company or a large corporation, you've learned how lopsided "justice" can be. Lawyers like Chad, who champion the rights of the comman man, should be carried around on peoples' shoulders in torch-lit parades. Others, who use both the legal system and the political system to prey on the weak, are in fact thugs. By the way, the word derives from India where assassins used knotted cords to silently strangle their unsuspecting victims. It still occurs today, although usually with subpoenas instead of knotted cords.

September 24, 2009, 01:34 PM
Votes: +4

What the Heck said:

	Organization Here's one definition of an oranization: A group of people intentionally organized to accomplish an overall, common goal or set of goals. Business organizations can range in size from two people to tens of thousands. Seems to me that northdecoder has at least 2 people intentionally working toward a common goal.
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September 27, 2009, 05:18 PM
Votes: +0

Truth said:

...
This is a ploy they use, for one of the whistleblowers who settled they sent the exact same request. They want to wear down people so that people will just say forget it and give up - a tactic used by WSI.

I am curious though Chet, as an attorney how would you prosecute (not settle) the case (I have no idea what you specialize in)? Have you ever sent someone a subpeona with outrageous expectations during the discovery process?

Even the Bismarck Tribune/Fargo Forum have a disclaimer on their websites explaining that information may be turned over from commentors under court orders.

WSI is a corrupt organization and until John Halvorson and Jodi Bjornson and the other attorneys get out of there nothing will change. While Jim Long was part of the corruption, he (or so I heard) did turn around and now wants sympathy from many of us (where was his sympathy for those he ran off when he was a MADDOG?????), but should he be rewarded handsomely for having done to him what he did to others? I'm torn on that part.

September 28, 2009, 09:56 PM
Votes: +2