What’s at Stake in Espinoza v. Montana Department of Revenue? What the Equal Protection Clause Means in the Context of Classifications Based on Religiosity

VIKRAM DAVID AMAR, ALAN E. BROWNSTEIN

Illinois Law dean Vikram David Amar and UC Davis emeritus professor Alan E. Brownstein comment on a case before the U.S. Supreme Court that raises the question whether a religiously neutral student-aid program in Montana that affords students the choice of attending religious schools violates the religion clauses or the Equal Protection Clause of the U.S. Constitution. Amar and Brownstein express no opinion as to whether the courts’ often-expressed concerns about striking down invidiously motivated laws can be effectively overcome, but they contend that jurists who reject invalidating invidiously motivated laws must explain why reasons sufficient in other contexts are not persuasive in this case.

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Traynor Law Firm v. North Dakota, et al.

Citation: 2020 ND 108

Opinion Date: May 14, 2020

Judge: Daniel J. Crothers

Areas of Law: Contracts, Government & Administrative Law, Government Contracts, Legal Ethics

Dustin Irwin died in 2014, in the Ward County, North Dakota jail. The circumstances of his death led to an investigation and criminal charges against Ward County Sheriff Steven Kukowski. Initially, Divide County State’s Attorney Seymour Jordan was appointed to handle the criminal proceeding. Jordan determined the circumstances justified a petition for removal of Sheriff Kukowski from office. Governor Jack Dalrymple appointed Jordan as the special prosecutor for the removal. Ultimately, Jordan requested to withdraw and Governor Burgum appointed attorney Daniel Traynor as the special prosecutor. After completion of the removal proceedings, Traynor submitted his bill to the State on May 1, 2017. The State forwarded the bill to Ward County. Ward County refused to pay the bill. Traynor sued the State and Ward County to recover the unpaid fees. The State responded to Traynor’s complaint by filing a motion to dismiss. Ward County answered Traynor’s complaint and cross-claimed against the State. The State moved to dismiss Ward County’s cross-claim. Traynor moved for judgment on the pleadings. The district court entered judgment in Traynor’s favor against the State, and awarded interest at 6% per annum. The State argued Ward County had to pay Traynor’s bill because Chapter 44-11, N.D.C.C., failed to address who should pay for the special prosecutor fees in a county official’s removal proceeding, and therefore the catch-all provision in N.D.C.C. 54-12-03 applied. Ward County argues neither Chapter 44-11, N.D.C.C., nor Chapter 54- 12, N.D.C.C., imposes an obligation upon a county to pay the fees of an attorney appointed by the Governor for proceedings for the removal of a public official. The North Dakota Supreme Court concurred with the district court that Chapter 44-11, N.D.C.C., was silent regarding the payment of special prosecutor fees in a removal proceeding, and it was not necessary or required to import N.D.C.C. 54-12-03 into Chapter 44-11. Based on these facts, the Supreme Court concluded the district court did not err in finding a contract existed for legal services between Traynor and the State. The Court agreed with Traynor that the district court erred by awarding 6% per annum interest instead of the 1.5% monthly interest rate stated on its bill. The Supreme Court therefore affirmed in part, reversed in part and remanded for further proceedings.