Spring 2020 Gavel 268650 SBAND Gavel Magazine_web | Page 13

n Justice VandeWalle is a North Dakota legend and icon! I have a
40-year practice history in North Dakota and there is no judge,
at any level, I have more respect for!

– Paul Oppegard
n I have never, ever heard anyone suggest Justice Vandewalle
has made a decision based upon or influenced by partisan
considerations.

– Marilyn Foss
n Unlike most of the law clerks hired by the Supreme Court, I had
previously worked two years as a law clerk to a federal district
court judge. As such, Justice VandeWalle allowed me to pick
the cases I was interested in working on, cases that would have
otherwise gone up to the full-time law clerks upstairs. One of
those cases was Andrews v. O’Hearn, the case in which the court
“rediscovered” a rule that had not been used for over 25 years,
in which a party making a motion for new trial was limited
on appeal to those issues raised in the motion. In working on
this case, and others, I discovered three important details about
Justice VandeWalle.
First, he remembers everything. One of the issues raised during
oral arguments in the Andrews case was not raised in the briefs.
About five weeks later, when Justice VandeWalle reviewed the
draft opinion he noted I did not address that issue and referred
from memory to what Attorney Axelrod had said during
oral arguments. I went back and listened to the cassette tape
recording of the hearing and listened in amazement as I heard
Attorney Axelrod state the exact same words, word for word,
that Justice VandeWalle had recalled from memory. I soon
discovered Justice VandeWalle not only remembered the names
of the cases he had worked on, but quite often could recite the
Northwest 2nd citation from memory.
The second thing I remember most about working for Justice
VandeWalle is that discussing a draft opinion (or for that matter,
any legal issue) with him at his desk was 10 times harder than
arguing before the full court. The questions came fast and
furious, all interconnected and directed to the final conclusion,
which he already reached and was making his law clerk
understand and then reach the same conclusion.
Continued on page 14...
Getting Jerry VandeWalle Elected!
By Robert Wefald
Justice Jerry VandeWalle was
appointed to the Supreme Court by
Governor Link in Aug. 1978, only to
face election in Nov. 1978. He had to
immediately put together a winning
campaign. He chose Jack McDonald
and me to advise him and to help plan
a winning campaign. Why he asked
me to help, I don’t know. I’m sure he
chose Jack because he had media
skills. I have a clear memory of the
three of us sitting around the kitchen
table in Jerry’s apartment. With only
a little more than two months to go
before the election, we sketched out
a campaign plan, the key to which was
Jerry’s sterling reputation. Appointed
by Democrat Governor Art Link
and having worked with Republican
Attorney General Al Olson and his
Republican predecessors Leslie
Burgum and Helgi Johanneson, Jerry
had excellent bipartisan support.
I know the three of us subsequently
discussed how to handle the
complaint of another candidate that
Jerry had illegally used state property
for political purposes (a violation of
§16.1-10-02, NDCC) by having his
photo for his campaign taken in the
Supreme Court courtroom, but that
turned out to be an inconsequential
campaign tactic for his opponent.
This ended up in the North Dakota
Supreme Court, which confirmed it
was not a violation of §16.1-10-02
(Saefke v. VandeWalle, 279 N.W.2d
415, 1979 N.D. LEXIS 257). with the approval of a constitutional
amendment to Article VI, Section 13,
of the N.D. Constitution - that I call
the “J. Phillip Johnson Amendment”
- to not require any person appointed
to a Supreme Court or district court
position to stand for election until
the next general election after the
justice or judge had been in office for
a minimum of two complete years.
An interesting sidelight to this case,
is that all of the sitting justices at the
time – Chief Justice Ralph J. Erickstad,
and Justices William Paulson, Vernon
R. Pederson, Paul M. Sand and, of
course, Jerry, recused themselves.
The case was decided by district
court judges sitting in for the recused
justices. Judge Roy A. Ilvedson served
as acting chief justice. The other
“subs” were Judges Douglas B. Heen,
Albert C. Bakken, Robert L. Eckert,
and Norbert J. Muggli. I call it this, because J. Phillip
Johnson, a Fargo attorney, was
appointed to the Supreme Court
by Gov. Arthur A. Link in June 1974
to replace Justice Obert C. Teigen,
who had retired. However, because
the Constitution then required an
appointee run in the next general
election, he had to run in November
1974 and was defeated.
This unfair situation of requiring an
appointed justice or judge to run
for election just a few months after
appointment was remedied in 1998,
Gov. George Sinner appointed
Johnson to the court on February 11,
1992, to replace Justice H.F. Gierke
III, who resigned to take a federal
position. However, he was again
defeated in the November 1992
general election.
SPRING 2020
13