A week before North Dakota voters decide a citizen initiative to eliminate property taxes, the state Supreme Court grilled attorneys Tuesday about what public officials are allowed to say about ballot measures.
Supporters of Measure 2, a North Dakota constitutional amendment that would abolish property taxes, are seeking judicial sanctions against public officials whom they believe are illegally campaigning to defeat the amendment.
The measure's backers argue that North Dakota law bars public officials from giving their opinions about ballot initiatives, an assertion that Supreme Court Justice Dale Sandstrom said would violate their free-speech rights.
"Your interpretation would say that elected officials surrender their First Amendment rights on classic political questions," Sandstrom said to Lynn Boughey, a Bismarck attorney for Empower the Taxpayer. The group gathered more than 27,000 petition signatures to put the amendment on the ballot.
"Is it your position that a public official cannot say, `I am for or against any proposal like this?'" Chief Justice Gerald VandeWalle asked Boughey.
Yes, Boughey replied. "You read through the legislative history (of the state law), the idea is that the government should not be arguing against something that the people are attempting to change," he said.
The case began in February, when Empower the Taxpayer and two of its principal members, Charlene Nelson, of Casselton, and Robert Hale, of Minot, sued a group of public officials and organizations, including Tax Commissioner Cory Fong and four state legislators.
They asked a judge to bar Fong and the other officials from making anything but neutral statements about Measure 2, claiming they were spreading lies about the amendment's potential impact and illegally spending taxpayers' money to defeat it.
Local government officials argue that eliminating property taxes would deprive local taxpayers of a revenue source they can control and make them dependent on the North Dakota Legislature for aid.
A district judge dismissed the lawsuit, ruling that the law that Empower the Taxpayer, Hale and Nelson were attempting to invoke could be enforced only by prosecutors, not private citizens. The decision was appealed.
The Supreme Court will rule on the case later, after the June 12 election in which Measure 2 is on the ballot. The election also features three other ballot measures and Republican primary races for the U.S. Senate and House.
Kirsten Renata Franzen, an assistant attorney general, argued the law has no explicit provision for private enforcement. Lawmakers "were concerned about this law being used as a political foil, as it is being used today," she said.
"This is a criminal (law), and from a policy perspective, it is important that you get a (prosecutor) involved," because the prosecutor has no direct stake in the election, Franzen said.
Randall Bakke, a Bismarck attorney for local officials and government associations named in the lawsuit, said the legal action was intended to throttle critics of Measure 2.
"The First Amendment requires free and fair discussion of these types of political issues," he said. "It seems ludicrous to me to make the argument that public officials, who are elected ... should not be commenting upon how a measure like Measure 2 will affect their county or their community."