One of the axioms of newspaper work is that eventually some quirk, contradiction or coincidence will occur that is worth pointing out. To have three examples in seven days makes for a rich, full week, journalistically speaking.
That’s what happened in North Dakota the first week in November.
The quirk is the election of a new chief justice of the Supreme Court. Although North Dakotans elect the members of the Supreme Court (or ratify appointments after vacancies occur), the chief justice is chosen by the state’s judges from among the justices already on the court. This means a field of five and a turnout of fewer than 60 voters, the five sitting justices and the district court judges. No other state chooses its chief justice in this way, and contests are rare.
This year’s contest is to replace Chief Justice Gerald VandeWalle. He was appointed to the court in 1978. In 1993, he was elected chief justice; he’s been elected five times since and is currently the longest serving chief justice in the nation. VandeWalle, who is 86, is leaving the chief’s job but he will remain on the court. His term ends in 2024.
This is the first contested election for chief justice since 1984. Three of the five justices said they want the job and are listed on the ballot. This raises the possibility that the chief could be elected without a majority of votes. Ballots were mailed to eligible voters Friday; polls close (so to speak) on Nov. 18, and the result will be announced Nov. 25. The 1984 election doesn’t provide any precedents; there were only two candidates.
It was nevertheless history making. The justice who lost promptly resigned, leaving two vacancies on the court, since another of the judges had died. Of course, 1984 was an election year, and the sitting governor had been defeated. The winner, Bud Sinner, asserted the right to make the appointments by arguing that his term began with the new year, rather than with the formal inauguration ceremony held in early January. For a time, the state had two governors. The dispute was resolved in Sinner’s favor, and he made the appointments.
Nothing quite so strange is anticipated in this election but it could be historic all the same. A woman could be elected chief justice for the first time in the state’s history. The court’s record of equal opportunity is a better record than higher education has achieved. The Supreme Court has had a female member since 1985, and for most of that time, there have been two women on the five-member court. Since 2017, not a single sitting state college president is female, and in the history of the system, only half a dozen women have been presidents, and none at the research institutions. Only one woman is among the finalists in the current search for a new president at UND.
Also last week, Republicans continued their intra-party fight about separation of powers. The notable contradiction here is that North Dakota Republicans are protecting legislative privilege while their counterparts in the nation’s capital have coalesced around the importance of executive power, as a legislative hearing involving the state auditor showed.
is the most newsworthy state auditor since Berta Baker left the office 64 years ago. She was the first woman elected to two statewide offices, treasurer and auditor. She held the second office for 22 years and earned a reputation in the press and before the Supreme Court as a contrarian not afraid to challenge sitting governors.
Press reporting of Wednesday’s legislative committee meeting suggested that lawmakers thought Gallion had gone to far by referring an audit of the Commerce Department to the attorney general to determine whether criminal charges should be brought – as the law requires. Pleading conflict of interest, the attorney general sent the matter on to his counterpart in South Dakota. The issue is the timing of payments for a project in Grand Forks. Michele Kommer, head of the Department of Commerce, pleaded extenuating circumstances. She’s taken the precaution of hiring an attorney, however.
Gallion may have gone too far; he also found wrongdoing at the State Library. He withdrew an audit critical of Williston's funding of a new airport.
The audit also found a contract for a new logo promoting tourism in the state – an activity under the purview of the Commerce Department – had been divided. The resulting contracts were below the threshold for competitive bidding.
By coincidence, today the Supreme Court will hold a hearing on similar subterfuge, this one perpetrated by an energy company that presented plans for a project just below the size threshold requiring a state permit – with the clear intention of asking for a second project of the same size at the same location.
Like I say, government never disappoints the journalistically inclined. News happens.
Mike Jacobs is a former editor and publisher of the Herald.