State of North Dakota In District Court

County of Burleigh South Central Judicial District

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Terry Brennan, ) Case No.:
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Plaintiff, )
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vs. ) COMPLAINT
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State Bar Association of North Dakota, )
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Defendants. )
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COMES NOW THE PLAINTIFF, Terry Brennan, who states and alleges as follows:

THE PARTIES

[1] Plaintiff, is a citizen and national of the United States, presently residing in the

Commonwealth of Massachusetts at 17 Thaxter Road, Newtonville.

[2] Defendant, State Bar Association of North Dakota (SBAND), was established by the

State of North Dakota under N.D.C.C. 27-12-01 as a statutory entity with membership

consisting of every person who currently holds a valid North Dakota license to practice law as

well as those individuals with an unrevoked certificate of admission who have paid the annual

fee to the state bar association. SBAND has its principal offices at 1661 Capitol Way, Suite

104LL, Bismarck, N.D. 58501.

Brennan v. SBAND
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 JURISDICTION, VENUE AND STATUTORY CAUSE OF ACTION

[3] Jurisdiction is proper in the State of North Dakota as all alleged incidents and attendant

facts occurred in North Dakota, Defendant resides in the State of North Dakota, and this case

arises under the Constitution and laws of the State of North Dakota, including, N.D. Const., Art.

11, 5 & 6, N.D.C.C. 44-04-01 et seq. and more specifically N.D.C.C. 44-04-18 and 44-04-

21.2. N.D. R. Civ. P. 4(b).

[4] Venue is proper in Burleigh County. N.D.C.C. 44-04-21.2 (1).

[5] This is a case brought pursuant to Article 11, Sections 5 & 6 of the Constitution of the

State of North Dakota and N.D.C.C. 44-04-01 et seq. pertaining to public meetings and records.

[6] This action is timely under the statutes, rules, regulations, case law and other provisions

of laws of the State of North Dakota, as the Plaintiff has commenced this action within sixty (60)

days of when he knew or should have known of the violations of N.D.C.C. 44-04-01 et seq. and

more specifically N.D.C.C. 44-04-18 (7) & 44-04-18 (8).

FACTS

[7] On or about March 1, 2017, the Plaintiff submitted a Formal Open Records Request

(SBAND); March 1, 2017 (hereafter FORR) to Anthony J. Weiler aka Tony Weiler (hereafter

Tony Weiler), Executive Director of the State Bar Association of North Dakota, with a cc to

Jeanne Schlittenhard, Associate Executive Director.

[8] On or about March 8, 2017, Tony Weiler responded to the FORR stating that he was in

the process of determining the costs for production of the documents requested in the stated

FORR and that he would require payment in advance.

Brennan v. SBAND
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[9] The Plaintiff responded to Tony Weiler on or about March 8, 2017, outlined the urgency

of the FORR as it related to a matter that was pending before the North Dakota Legislature,

namely, consideration of House Bill 1392 (HB 1392) regarding shared parenting.

[10] Plaintiff reminded Tony Weiler about the statutory dictate that Mr. Weiler avoid

unreasonable delay and comply with other statutory requirements, including copy charges.

[11] On or about March 10, 2017, Tony Weiler sent an email to the Plaintiff requesting

advance payment of costs to provide the records, and indicated that a response would take up to

seven (7) days to comply with.

[12] On or about March 10, 2017, Plaintiff responded to Mr. Weiler asking that the response

be expedited and stating that seven (7) days seemed unreasonable in light of the fact that the

original request was sent on March 1, 2017.

[13] On or about March 10, 2017, at approximately 2:28 oclock p.m., Mr. Weiler responded

and requested that the Plaintiff define unreasonable as the Plaintiff understood the term to be

defined by North Dakota Law and excused the delay with the statement that he had been

extremely busy with the Legislative Session and was the only one in [his] Office who can

possibly respond to [Plaintiffs] request in any meaningful, and timely fashion.

[14] In his email, Mr. Weiler indicated that a response could be provided more quickly if the

Plaintiff accepted documents in electronic fashion.

[15] Plaintiff promptly responded to Mr. Weiler at approximately 2:34 oclock p.m. on or

about March 10, 2017, indicating his willingness to accept documents in electronic format with

PDF being preferred and indicating his understanding of reasonable.

Brennan v. SBAND
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[16] Mr. Weiler responded to the Plaintiff at approximately 3:59 oclock p.m, on or about

March 10, 2017, stating that Mr. Weiler would provide documents by Tuesday of next week, at

the latest, which would have been March 14, 2017.

[17] On March 10, 2017, Plaintiff filed his first complaint online with the Office of the

Attorney General of the State of North Dakota, but no reply was received.

[18] Mr. Weiler produced the documents on March 13, 2017.

[19] On or about March 23, 2017, at approximately 10:36 oclock a.m., Plaintiff submitted a

second Formal Open Records Request (hereafter FORR II), which is attached, included and

incorporated herein as part of this Complaint as Exhibit 1.

[20] At approximately 5:03 oclock p.m., on or about March 24, 2017, Tony Weiler responded

to the FORR II stating that he would respond, but that his priority was the legislative session and

doing other work of SBAND and summed it up saying he was very busy and had a work trip

the following week, but would respond as soon as possible.

[21] On or about April 5, 2017, at approximately 9:53 oclock a.m., the Plaintiff responded to

Mr. Weiler and reminded him that he had not responded to the March 24, 2017, FORR II and

reminded Mr. Weiler of the time sensitive nature of the FORR II and the reasonable time

requirements for responding to such requests.

[22] At approximately 9:56 oclock a.m., on or about April 5, 2017, Mr. Weiler responded to

the Plaintiff stating: Hopefully today, and if you want to press in some way, feel free to do

so.

[23] One of the Plaintiffs requests in FORR II was for: [a]ll records and communications

relating to Keeping Kids First, including, but not limited to, any communications with any of the

Members of the Keeping Kids First coalition as defined in the attached.

Brennan v. SBAND
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[24] Tony Weiler responded to this portion of the FORR II, stating that:

[t]his request could be voluminous, as you know, there was a great amount of
effort and time association with the Keeping Kids First committee (for which we
were sued, and for which we are still in litigation). I anticipate that any answer
that includes All records and communications would take more time than would
be necessary unless you can in some way provide me with more details as to what
you are looking for. Further, the KKF campaign was in 2014, and many of these
records may simply no longer exist. If a response is necessary, Id say this
question is vague, overbroad and unduly burdensome. Id anticipate it would take
weeks to find, copy, and provide this documentation (to the extent it is even
exists). If you truly want all records relating to KKF, then I will provide you
with a reasonable estimate of the time and effort it will take, and ask for payment
in advance.

[25] Mr. Weiler never offered any proof of disposition or preservation of records regarding

KKF pursuant to N.D.C.C. Chapter 54-46, or whether the fact the KKF records may simply no

longer exist was the result of improper destruction in violation of the North Dakota Century

Codes requirement to preserve state records, or whether the state records management

administrator was so notified of improper destruction. N.D.C.C. 54-46-07.

[26] At approximately 5:33 oclock p.m., on or about April 5, 2017, Tony Weiler requested

clarification of the FORR II and wanted to know who the Plaintiff was and who he was with?

[27] On or about April 6, 2017, at approximately 10:17 oclock a.m., Plaintiff sent an email to

Tony Weiler requesting materials under the auspices of Keller v. State Bar of California, 496

U.S. 1 (1990) which has been requested in the FORR II, and asked for an estimate of costs on the

Keeping Kids First materials so as to allow him to make decision on how to narrow the scope of

the request.

[28] Mr. Weiler responded at approximately 6:00 oclock p.m. on or about April 6, 2017

stating simply: [h]oped tomorrow.

Brennan v. SBAND
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[29] On or about April 7, 2017, at approximately 2:00 oclock p.m., Mr. Weiler responded to

the Plaintiff stating that he did not find the Plaintiffs request specific enough under N.D.C.C.

44-04-18 (1), that he had a red expandable folder of documents on Keeping Kids First that the

Plaintiff could come to the office to review if he gave Mr. Weiler notice of his visit, and admitted

he had emails related to Keeping Kids First.

[30] On or about April 7, 2017, at approximately 5:44 oclock p.m., Plaintiff emailed Mr.

Weiler to notify him that he did not consider documents provided to comply with the FORR II,

and to request correction of deficiencies.

[31] On or about April 7, 2017, at approximately 6:00 oclock p.m., Tony Weiler responded

stating simply: I have also asked who you are with and you have not responded.

[32] On or about April 10, 2017, at approximately 4:02 oclock p.m., Plaintiff inquired as to

when Mr. Weiler intended to finish complying with the FORR II request?

[33] On or about April 10, 2017, at approximately 4:16 oclock p.m., Mr. Weiler responded:

When I have time, and in due course. I responded to most of it, and will provide
what I consider to be responsive to the rest of the request once the information is
ready. Your opinion on what is responsive, and specific examples of what you
want, mean absolutely nothing to me so long as I am complying with the law.
Two other things. I will not provide any other response until you answer my
questions. Second, it isnt necessary for you to give me any other advice on
what the law requires. If you feel we are in violation take whatever steps you feel
necessary. Could I be more clear?

[34] On April 10, 2017, the Plaintiff filed a Complaint with the North Dakota Attorney

Generals Office and received a response from them on April 11, 2017, stating the complaint was

received and explaining the process.

Brennan v. SBAND
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[35] On or about April 10, 2017, at approximately 5:14 oclock p.m., Mr. Weiler responded

stating that he had a chance to review the follow up request, which he did not consider to be part

of FORR II and that he would respond with what SBAND deemed responsive by weeks end.

[36] On or about April 10, 2017 at approximately 7:16 oclock p.m., Plaintiff responded to

Mr. Weiler reminding him of the requirements of North Dakota law, stating that it had been

nearly three weeks since his request was made, and pointing out that another four (4) days was

an unreasonable amount of time to respond given the FORR II was provided to Mr. Weiler

eighteen (18) days previous.

[37] On or about April 12, 2017, at approximately 3:28 oclock p.m., Mr. Weiler responded

with some documents for the Plaintiff, but did not provide email concerning Keeping Kids First,

stating instead that:

[a]s you are well aware, we are in litigation with respect to actions taken by
SBAND in 2014 involving Keeping Kids First and the Failed Measure 6. I am
seeking outside counsel as to whether I should provide those emails. Further, I
want to take that question to my Board of Governors later this month. Or, I will
provide those once the litigation has ended (Oral Argument was held in the 8th
Circuit last week).
With respect to your objections below, the Open Records laws in North Dakota
do not require me to explain any record to you. I have provided records
responsive to your request and at this time do not intend to provide anything
else.

[38] On or about April 13, 2017, at approximately 4:07 oclock a.m., Plaintiff reminded Tony

Weiler that under North Dakota Law if Mr. Weiler were denying a request for records then, if

requested, he must provide legal authority for the denial in writing, and that Plaintiff had

requested such confirmation of authority on March 24, 2017, but had not received the written

justification for the denial.

[39] Mr. Weiler has not responded further.

Brennan v. SBAND
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[40] On April 19, 2017, HB 1392 failed to pass the North Dakota State Senate.

[41] On or about April 26, 2017, at approximately 9:29 oclock p.m., attorney Sean Kasson

sent an email to members of the Family Law Task Force stating:

Family Law Task Force Members and Best Interest Factors Review Committee:

Mr. Fleming's office is able to provide the number of child custody/residential

responsibility cases that have equal parenting time awards (attached), but I'm
looking to see if anyone can provide the number of cases in North Dakota that
have a shared parenting award (defined by the child/children receiving at least
35% parenting time from each parent). If you have this information, I'd
appreciate you providing it to me at your earliest convenience.
Thank you for your assistance.
Sean Kasson

[42] On or about April 27, 2017 at approximately 9:05 oclock a.m., Mr. Weiler sent an email

to the members of the Family Law Task Force stating:

Good morning. Please keep in mind that if you respond, and include me in your
response, that anything you write could be subject to NDs Open Records law.
Further, anything you put in that response could be used against you by the
supporters of the Original HB1392, and Shared Parenting in North Dakota, to
harass, intimidate, attempt to harm your professional reputation, and cyber-bully
you. Thanks.

[43] No further responses to FORR II have been received.

COUNT I: VIOLATION OF N.D.C.C. 44-04-18 and Sections 5 & 6 for Article 11 of the
North Dakota Constitution

[44] Paragraphs 1 through 43 are restated and incorporated herein by reference.

[45] SBAND is a public entity within the meaning of N.D.C.C. 44-04-17.1 (12)(a) in that it

was created by statute, namely, N.D.C.C. 27-12-01 et seq.

[46] The operation of SBAND is governed by its Constitution and Bylaws. N.D.C.C. 27-12-

01.

Brennan v. SBAND
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[47] Management of the affairs of SBAND is vested by SBANDs Constitution in the Board

of Governors.

[48] The SBAND Board of Governors are granted authority by SBANDs Bylaws to appoint

an Executive Director.

[49] Tony Weiler serves as the appointed Executive Director of SBAND with delegated

authority from the Board of Governors to: . . . perform all duties imposed by law and the

Constitution and By-Laws of the Association.

[50] Records are recorded information of any kind, regardless of the physical form or

characteristic by which the information is stored, recorded or reproduced, which is in the

possession or custody of a public entity or its agent and which has been received or prepared for

use in connection with public business or contains information relating to public business.

N.D.C.C. 44-04-17.1 (15).

[51] Records include working papers and preliminary drafts. N.D.C.C. 44-04-17.1 (15).

[52] Unless otherwise provided by law, all records are public records and are open and

accessible during regular office hours and a copy of specific records may be requested. N.D.

Const. Art. 11, 5 & 6; N.D.C.C. 44-04-18.

[53] A request for a copy of specific public records need not be in person or in writing, and

upon a request being made, any entity subject to N.D.C.C. 44-04-18 (1) shall furnish one copy

of all the public records requested.

[54] A requestor need not explain who they are or who they are with as a prerequisite to

provision of a copy of a requested public record. N.D. Atty. Gen. Op. No. O-2 (2009).

[55] Unreasonable delay of the right to receive a copy of a public record violates N.D.C.C. 44-

04-18.

Brennan v. SBAND
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[56] Defendant, by and through its delegate, Executive Director Tony Weiler, violated

N.D.C.C. 44-04-18 by demanding to know who the Plaintiff was and who he was with prior to

providing requested public records in response to FORR II.

[57] Defendant, by and through its delegate, Executive Director Tony Weiler, failed to

respond within a reasonable time to FORR II.

[58] Defendant, by and through its delegate, Executive Director Tony Weiler, acted with

unreasonable delay in response to FORR II.

[59] The nature of Defendant, by and through its Executive Director Tony Weilers actions

and responses to FORR II exhibit intentional efforts to impede, delay or deny access to public

records in FORR II.

[60] Defendant violated N.D.C.C. 44-04-18 (7) by not providing legal authority for his denial

of access to public records.

PRAYER FOR RELIEF

[61] WHEREFORE, given the foregoing Complaint, the Plaintiff respectfully requests

judgment against the Defendant as follows:

1. For declaratory relief that the Plaintiff is entitled to the documents requested.

2. For a Writ of Mandamus ordering the Defendant to deliver a copy of the requested

information immediately and to do so at a cost and for payment in advance as provided

by law.

3. For all costs and disbursements.

4. For reasonable attorney fees as provided at N.D.C.C. 44-04-21.2 (1).

5. For damages of $1,000.00 or alternatively, the actual damages caused by the violation

and based upon the alleged intentional or knowing violation.

Brennan v. SBAND
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 6. For any other and further relief deemed just and appropriate by the Court.

Dated this 11th day of May 2017.

D J CHAPMAN LAW, P.C.

/s/David J. Chapman

David J. Chapman (ND Atty #05531)

1121 Westrac Drive, #206
Fargo, ND 58103
(701) 232-5899
FAX: (701) 232-6470
dchapman@djchapmanlaw.com
Attorney for Plaintiff

Brennan v. SBAND
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