It’s now up to Congress

Colleen Auer

Former city attorney

I was determined to identify and root out the corruption at the City. Through this process, I learned more about that corruption, the identities of several of the key players, the identities of co-conspirators who helped to perpetrate and to conceal that corruption, and that there is no place, at present, the citizens of North Dakota can turn to halt this corruption.

In particular, no state agency in North Dakota has the power and authority to investigate complaints of public corruption, to audit government operations, and to identify and hold wrongdoers accountable.

Although the Department of Justice and the FBI both claim that public corruption (including judicial corruption) is a top enforcement priority, I learned that the Department of Justice won’t take on any alleged corruption unless the FBI brings it to them on a silver platter. The FBI, however, is ill-equipped to piece together the details and legal nuances of layered and well-concealed corruption which requires the skills of trained auditors, lawyers and investigators. So, it was no surprise that the FBI was bedeviled by my complaints of public corruption and, due only to my persistence, initiated a beleaguered and brief investigation of that corruption that went nowhere.

That left the court system. Alas, the state-court system in North Dakota appears to be firmly in the pockets of the politicians. In fact, I can’t think of one state-court case that ever, and I mean ever, went against a City, a State agency, the Governor or another elected official. Of course, I haven’t looked at every single state-court case in North Dakota, but I have looked at enough to see the writing on the wall.

Sadly, the federal-court system is no better. I learned that from my research and four years of fighting the City in that system with the goal of getting my job back so that I could expose the corruption at the City, put an end to it and hold the wrongdoers accountable.

I filed two cases against the City and litigated them from inception through appeal. Both were dismissed by the district court without a trial, and the Eighth Circuit upheld those decisions on appeal.

One case was for retaliatory discharge in violation of Title VII and the First Amendment (the “Employment Case”). The other case was for unlawful access, use and disclosure of my personal credit report in violation of the Fair Credit Reporting Act (the “FCRA Case”).

In the Employment Case, it was undisputed that the City destroyed material evidence, delayed producing it and withheld it from discovery after receiving my written demand to preserve it. Yet district court Judge Hovland chose to overlook those matters entirely and to grant summary judgment to the City dismissing my complaint. On appeal, the Eighth Circuit Panel affirmed that decision. To do so, the Panel misrepresented the lower-court proceedings, relied on fictitious facts, misrepresented the evidence and defied governing law. The full court and Panel both refused to reconsider that opinion.

In the FCRA Case, the credit-agency defendants answered my complaint. Then, Judge Erickson ordered the City to destroy all electronic copies of my credit report and to deposit the rest with the court and dismissed the claims against the City with prejudice. On interlocutory appeal, the Eighth Circuit refused to vacate that Destruction Order and deemed it an oversight. The case went back to Erickson. He let it languish for months, derailed all case deadlines set by the parties, and ultimately forced me to sacrifice valid claims in order to appeal the Destruction Order and the remaining claims he dismissed. Judge Erickson was then elevated to the Eighth Circuit bench. When my appeal later reached the Eighth Circuit, the Panel couldn’t justify Erickson’s Judgment or the Destruction Order. Nevertheless, they came up with an alternative ground to support Erickson’s dismissal of my claims which would also shield Erickson from liability for the unauthorized destruction of material evidence in the case. To do so, they misstated the facts and evidence in the court record, ignored harmful facts and evidence, and defied governing law.

Unfortunately, there is no recourse for “bad” decisions like these due to broad judicial immunity, the flawed DOJ/FBI anti-corruption program, and the fact that misconduct complaints against federal judges rarely become public, and few face consequences.

This is the perfect storm for corruption. And the corrupt in North Dakota are taking full advantage of it. It’s well past time for Congress to do something about it.