Property tax activists fight ruling

BISMARCK — Activists are challenging a ruling that they owe almost $26,000 to cover the legal fees of four county officials they sued after the officials publicly lambasted a ballot measure that asked voters to abolish property taxes in North Dakota.

Bismarck attorney Lynn Boughey, who represents the activists, argued Monday that South Central District Judge Bruce Romanick’s ruling ignored a state law that restricts what public officials may say about citizen initiatives. Boughey said he filed a request asking Romanick to reconsider his decision.

The ballot measure, a proposed constitutional amendment, was soundly defeated last June, with more than 76 percent of North Dakota voters rejecting the idea.

Boughey represents Empower the Taxpayer, a citizens’ group that promoted the idea, along with two of its board members, Robert Hale, of Minot, and Charlene Nelson, of Casselton. Romanick’s ruling included an order that the initiative’s promoters make a public apology to those they had accused of wrongdoing.

“I was exceedingly surprised that a court would award sanctions against an entity that is trying to get public officials to follow the law,” Boughey said.

During the campaign on the ballot measure, Hale, Nelson and Empower the Taxpayer sued several state and county officials, North Dakota lawmakers and organizations contending they were illegally using taxpayer funds to fight the ballot initiative. The lawsuit also said they were violating a state law that says public officials may make only neutral, factual statements about a voter initiative.

Romanick dismissed the lawsuit, and the North Dakota Supreme Court upheld his decision, ruling that private citizens did not have the power to enforce state laws against illegal campaigning.

The judge later ruled Empower the Taxpayer had no reason for suing Divide County Commissioner Doug Graupe, Cass County Commissioner Scott Wagner, Williams County Auditor Beth Innis and Darcie Huwe, finance director for the city of Wahpeton.

The anti-property tax group never asserted any of the four had used public resources to campaign against the measure, only that they had made statements critical of it, Romanick said.

The judge ordered the group to pay the four officials’ legal fees and write a public retraction of “allegations of corruption and ... alleged impropriety for anyone expressing their opinions against” the ballot measure.

Randall Bakke, a Bismarck attorney who represented the four county officials, said Monday they have asked for $25,805 in lawyers’ fees and $825 in court costs. He declined comment Monday on Boughey’s request that Romanick reconsider his decision, saying he had not reviewed it.

Boughey said North Dakota law bars public officials from taking a stand on ballot measures, not just from using public property for campaigning. The four who were sued deliberately exaggerated the impact that abolishing property taxes would have on local governments, he said.

“Each of the four individual public officials did more than merely advocate a position,” Boughey wrote in a court filing. “These individuals also provided false and misleading information.”

Hale said the initiative’s supporters decided to sue after county prosecutors declined to respond to their allegations that public officials were using illegal tactics to campaign against the measure.

He described Romanick’s ruling as a “pure political decision, in my opinion, attempting to dampen and create a chilling effect for anybody to bring an action when government is out of control and violates the law.”

“Now, the judge may have thought that they have a First Amendment right to say anything they want,” Hale said. “However, the Legislature is the one that passed the law.”

Attorney General Wayne Stenehjem said his office had not sought reimbursement for attorneys’ fees spent defending Tax Commissioner Cory Fong and four state legislators who were also named as defendants in the lawsuit. However, Stenehjem said he supported Romanick’s decision.

“I hope that it has the result of making people less likely to file frivolous lawsuits,” Stenehjem said.

Empower the Taxpayer’s action, the attorney general said, had deterred a number of public officials from giving their opinions about the measure’s potential consequences, Stenehjem said.

“There were public officials, elected county officials, state officials, who have a constitutional right to speak out on issues of importance, and they felt chilled,” Stenehjem said. “They felt, ‘I don’t think I dare (speak about the measure) because I might get sued by these people.’”

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