North Dakota’s Relaxed Pro Hac Vice Provision for Water Protectors Should Stay

By: Michael Chou

The North Dakota Legislature clarified that it believes constructing pipelines matters more than protecting people’s right to peacefully protest when it passed legislation in January 2017 that increases penalties for and further criminalizes acts of non-violent resistance. The impetus for this batch of anti-protest legislation was the Standing Rock movement, in which the Standing Rock Sioux Tribe brought attention to the Dakota Access Pipeline (“DAPL”) and thousands of people joined the resistance against DAPL’s construction.

Since August 2016, over 700 people have been arrested from the DAPL protests, resulting in an unprecedented caseload for North Dakota’s South Central District Court. These cases involve a mix of legal issues, including mass arrests, civil disorder, conspiracy to commit reckless endangerment, indigenous Treaty rights, and environmental rights, among others. The unprecedented buildup and types of cases have made it very difficult, if not impossible, for local counsel alone to provide adequate representation for these water protectors.

Special Provision for Adequate Representation

In January 2017, attorneys petitioned the North Dakota Supreme Court for changes in North Dakota’s pro hac vice procedures (pro hac vice allows an attorney to legally practice in a jurisdiction where she or he is not licensed without committing unauthorized practice of law) so that the defendants arrested for protesting DAPL could be fairly represented in court. After considering over 16,000 comments, the North Dakota Supreme Court conceded that the significantly increased caseload and “finite resources” could lead to “delay or inconvenience to litigants.” The court responded by temporarily streamlining the pro hac vice procedure for out-of-state attorneys working pro bono to defend water protectors in DAPL-related cases. The relaxed pro hac vice provision excuses the requirement that North Dakota-associate lawyers appear in-person and remain in court for all proceedings (each pro hac vice attorney needs an associate attorney who is licensed to practice in North Dakota as co-counsel) and waives the pro hac vice filing fee.

Judges (Who Are Hearing These Cases!) Petition to End Special Provision

On September 11, 2017, presiding Judge Gail Hagerty, writing for the South Central District judges, petitioned the North Dakota Supreme Court to end the relaxed pro hac vice provision for attorneys who are not already of record. She claims that “[t]here is no longer any justification for dispensing with the general rules for pro hac vice practice. New cases are no longer being filed, and there is no indication that local attorneys are unavailable to provide representation.” This claim is incorrect.

First, there is still a need for this provision as ending the streamlined pro hac vice procedure could leave more than a hundred water protectors without legal representation. Many of these defendants do not qualify for court-appointed counsel and cannot afford a private attorney. The Water Protector Legal Collective maintains that local attorneys are unable to meet all the defendants’ requirements for a fair trial and that pro hac vice attorneys are necessary to fill those unmet needs.

Second, this relaxed pro hac vice provision is actually saving North Dakota taxpayers money that would otherwise go to hiring indigenous defense attorneys since the out-of-state attorneys are working pro bono.

Under the 14th Amendment, states are required to provide defendants due process of law and this involves the right to be fairly heard. Importantly, the 6th Amendment ensures access to effective counsel—which means adequate legal assistance. Here, the indigent defendants (most of whom are either indigenous or from a minority group) deserve counsel who can provide special expertise and cultural awareness while litigating complex indigenous-related issues and aiding in lengthy courtroom procedures such as discovery. Pro hac vice attorneys have stepped up to meet these requirements, and it would be fundamentally unfair to notions of justice to end this provision while so many defendants are still unrepresented.

Call for Action

The North Dakota Supreme Court is accepting emails to Penny Miller at supclerkofcourt@ndcourts.gov until October 2nd at 4 p.m. (CT) for comment. Please support the continuation of North Dakota’s relaxed pro hac vice provision to facilitate the process for out-of-state attorneys to work pro bono and adequately defend the water protectors arrested in the resistance against DAPL.