December 30, 2016 by Barbara With
On December 14, 2016, nine law firms licensed to do business in North Dakota petitioned the North Dakota Supreme Court. Their question to the court was, “Do the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, as well as Article I, § 12 of the North Dakota Constitution, mandate that this state admit out-of-state attorneys in temporary practice to deal with the flood of criminal charges that is currently overwhelming the local bar’s ability to adequately represent all defendants?”
According to the petition:
- As of August 19, 2016, there had been just 28 DAPL-related arrests. On that day, Governor Jack Dalrymple declared that a state of “emergency” existed in Southwest and South Central North Dakota due to civil unrest. Since that time, more than 500 additional arrests have been made. These arrests have occurred predominately within Morton County.
- Policing the protests has been expensive. To date, protest-related law enforcement costs have exceeded $10 million, and the governor has sought and received an additional $7 million in emergency funding.
- Per the Commission on Legal Counsel for Indigents (“CLCI”), to date, 79 North Dakota attorneys have been assigned 265 cases; but the need is not yet met. As of December 2, 2016, court records list fully 264 defendants as being without counsel. Of these 264 defendants, at least 113 applied to be represented by public defenders were denied, in which some of these denials likely to be reversed upon correction and/or completion of paperwork.
- Every one of the 139-some defendants arrested on October 27, 2016 was charged as a co-conspirator to a felony. As a result, each could require separate counsel to avoid any conflicts with potential co-conspirators. Arguably, therefore, each public defender’s office, and each appointed counsel’s firm, can only take one case.
- Of those individuals arrested on October 27, at least 101— 74.8%— immediately applied for legal assistance. The system was not prepared to service this surge of defendants. Records suggest that many of the indigent defendants have been left to fend for themselves—recent data from the District Court Administrator’s Office indicates that of the 139 October 27 defendants, only 69 are represented by counsel, with the remaining 70 having no attorney listed.
- These events are of a historic scale. Petitioners know of no other time in which comparable strain has been placed on court system, relative to its size, by such a surge of arrests.
December 30 is the last day for public comments to be submitted to the court requesting they open North Dakota to legal representatives from other states. Copy and paste information below:
Subject: Supreme Court No. 20160436
Re: In the Matter of a Petition to Permit Temporary Provision of Legal Services by Qualified Attorneys From Outside North Dakota
I urge that the petition be granted so that all defendants charged for any NoDAPL actions be granted due process.