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Dale Wetzel, Associated Press, Published April 03 2012

Lawyer: Property tax lawsuit throttles free speech

BISMARCK, N.D. — A lawsuit that challenges public officials’ opposition to a proposal to abolish North Dakota property taxes ignores their right to speak on issues and is intended to silence dissident voices, an attorney claimed Tuesday.

“Political debate and discussion is the very essence of free speech, and that's what's at stake here,” said Randall Bakke, an attorney for county officials who are being sued because of allegedly false statements they've made about the consequences of dumping local property taxes.

Advocates of the property tax measure “are trying to stifle any free discussion of the issues and present their side only,” Bakke said.

Bakke and Lynn Boughey, an attorney who represents supporters of abolishing property taxes, spoke Tuesday at a hearing on whether the lawsuit should proceed. South Central District Judge Bruce Romanick, who is handling the case, said he hoped to rule soon.

Boughey said his clients only wanted to avoid having their own tax money being used to fight them.

“I think (public officials) do not have a First Amendment right to lie, but they seem to think otherwise,” Boughey said.

The struggle is over Measure 2, a citizen initiative on the June 12 primary ballot that would change the North Dakota Constitution.

It would eliminate local property taxes and order the Legislature to replace the money with revenues from statewide levies, including taxes on income, sales, coal and oil.

North Dakota's Tax Department says the Legislature would have to earmark at least $812 million annually to local governments if the measure is approved.

Critics of the proposal say it may force North Dakotans to pay more in income and sales taxes. North Dakota state government's general fund budget is about $4 billion over two years.

Empower the Taxpayer, a group that gathered more than 28,000 petition signatures to put the amendment on the ballot, is suing Tax Commissioner Cory Fong, along with a group of legislators, county officials and nonprofit groups that represent government agencies.

Measure 2 proponents claim that public officials are illegally using taxpayer money to campaign against the initiative and are asking Romanick to order them to stop. The lawsuit's defendants want the judge to throw out the lawsuit.

Boughey said public officials have falsely contended the measure would strip control from local governments, force reductions in police and fire protection and veterans’ benefits, and require the Legislature to be in session year-round to handle spending requests from local officials.

“We're trying to have a fair and appropriate discussion,” Boughey said. “A fair discussion means you don't go running around scaring people, and you don't send out lies.”

Bakke argued that the measure's advocates have provided no proof that public funds were being spent to support the measure.

The disputed statements by the officials being sued were made in public forums and in responses to reporters’ questions, and were not being propagated with taxpayer money, Bakke said.

Kirsten Renata Franzen, an assistant attorney general who is representing Fong and four state lawmakers who are defendants in the lawsuit, argued the law against spending public funds to fight a ballot measure could be enforced only by prosecutors, not private individuals.

Boughey said the law gives citizens the right to attempt to enforce it with a civil lawsuit if prosecutors do not charge anyone with a crime.

A prosecutor, Richard Riha, the Burleigh County state's attorney, is the current president of the board of directors of the North Dakota Association of Counties, which is one of the lawsuit's defendants, Boughey said.

“Their assertion is that only the criminal law can be used. Well, it's highly doubtful, since (Franzen) is here ... saying everything's fine. I rather doubt they're going to charge any of these people,” Boughey said. “I rather doubt, highly, that any of the state's attorneys would be (filing charges).”

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