Luther Birdzell, professor in the law school of the state university and a former member of the State Tax Commission, known to be a "single-taxer"; Richard H. Grace, a lawyer of Mohall having Socialist inclinations; [He was later to become a stanch Harding man.] and James E. Robinson, Fargo law partner of William Lemke, a League attorney and one of the inner circle of League leaders. Robinson was an elderly gentleman [age 75] with a flowing gray beard, known to be rather eccentric, though prominent as a crusader for judicial reforms.(161)
Historian Robert L. Morlan described the context of the election:
With Lynn Frazier and most of his associates on the [League's] state ticket looking more and more like "sure things" in November, the campaign during the fall months boiled down for the most part to a single issue. The Good Government League and the opposition press decided to concentrate their efforts on keeping control of the state Supreme Court, and the three League candidates were subjected to both abuse and ridicule. . . . Since the judges were elected on a separate nonpartisan judicial ballot, the chances were good that it would be neglected by many voters. The other three candidates for the positions on the five-man court were incumbents and on the basis of past decisions the League was certain that they would be counted upon to join with their old colleagues to strike down any "radical" acts of a League legislature.
Throughout the fall months almost the entire political emphasis of the [Nonpartisan League] Leader was upon the absolute necessity of electing the League judicial candidates if the work of the legislature was not to be thwarted.(162)
On September 11, 1916, the Supreme Court decided a challenge to an initiated constitutional measure after a 1914 constitutional amendment authorized popularly initiated amendments. The Court ruled the new amending procedure was not intended to be self-executing and needed to be implemented by the legislature, particularly to set the number of legal voters above twenty-five percent needed to initiate a proposed amendment.(163) Because the decision "dealt a body blow to League hopes for speedy constitutional amendments regarding public ownership after the fall elections[,] . . . the net result was probably at least a further stimulus to the campaign for the election of the League candidates for the court."(164) "New judges could reverse the decision; the election of League candidates would remove both judicial and constitutional obstacles to the League program. The Nonpartisan Leader said: 'We've got to have a Supreme Court that will hold constitutional the laws we pass in the legislature.'"(165)
The ensuing campaign focused almost entirely on the League's endorsed judicial candidates.
[T]he three League candidates were given the opportunity in the Leader to air their views on the function of the judiciary, and the result was a highly unusual exposition of jurisprudential thinking for the times. Birdzell viewed the courts as political bodies which must of necessity keep pace with modern thought and human progress, Robinson discussed his favorite theme of preference for the substance of justice over legal technicalities, and Grace propounded a doctrine of the equality of the branches of government as opposed to a superiority of the courts.(166)
In November, candidates Birdzell, Grace, and Robinson handily defeated Justices C.J. Fisk, E.T. Burke, and E.B. Goss.(167) But the election brought discord to the Court.(168)
Footnotes:
160. Our research of Bismarck Tribune newspaper microfilms for the period from January 1 through June 1916, turned up no reports that other political parties endorsed candidates for the state Supeme Court. The Tribune reported a convention by the Progressive Republicans on January 18, the Nonpartisan League on March 31, and the Democrats in April of 1916. Only the League was reported to have endorsed Supreme Court candidates, but the May 28, 1916, Bismarck Tribune, in a story, "More petitions have been filed," listed "E.B. Goss, Bismarck, Supreme Court Justice" under the heading of "Republicans" who had filed their nominating petitions, and listed "C.J. Fisk, Bismarck, Chief Justice of the Supreme Court" under the heading of "Democrats" who had filed. Bismarck Trib., May 28, 1916, at 13.
161. Robert L. Morlan, Political Prairie Fire 52-53 (1955) (recounting the ascent of the Nonpartisan League between 1915 and 1922 as a political force in this state).
162. Id. at 83.
163. See North Dakota ex rel. Linde v. Hall, 159 N.W. 281, 289 (N.D. 1916).
164. Morlan, supra note 161, at 84.
165. Robinson, supra note 9, at 337.
166. Morlan, supra note 161, at 84.
167. See Morlan, supra note 161, at 87.
168. See Robinson, supra note 9, at 339 ("[E]ven members of the state supreme court were not all on speaking terms with each other."). Ex-Justice Vogel believes Justice A.M. Christianson was the only justice of this era who remained on speaking terms with each of his colleagues. See Hon. Robert Vogel, Highlights of North Dakota Legal History, Faculty Lecture Series 1981-82 (Video copy held by Hon. Robert Vogel, Grand Forks, N.D.).