In the heartland’s fiercest modern-day shoot-out—farmers versus lawyers and bankers—it’s hard to tell the good guys from the bad.
Charles Niska, farmer and father of eight, is serving two consecutive one-year sentences in the North Dakota State Penitentiary for illegal practice of law and jumping bail.
Niska got into trouble helping his neighbor Richard Schmidt try to outwit two local banks, which had started foreclosure proceedings on Schmidt’s 3,500-acre farm and called in a $95,000 promissory note.
Schmidt, on Niska’s advice, tried to file “land patents” on his farm, which would exempt it from forfeit for bad debts. No deal. So (also on Niska’s advice) he wrote and mailed a letter of complaint, or “constructive notice,” to the county register of deeds who had refused to let him file. For this, Schmidt was charged with a Class C felony: “threatening a public servant.” The “constructive notice” had said merely that the register of deeds, in refusing to let Schmidt file, was remiss in her duty and liable for civil and criminal actions.
Considered by the law to be a victim of Niska’s manipulations, Schmidt copped a plea in return for talking about Niska, the prize the attorney general’s office had wanted all along. After Schmidt gave his evidence, Niska was charged with practicing law without a license, given a deferred sentence, put on probation, and ordered to undergo psychiatric testing (his speech rambles, he gets excited a lot, he has funny ideas about the income tax, he likes to talk about liberty and justice for all). Niska refused to be tested; on religious grounds he views psychiatry and psychology as a “devilish perversion,” and as a citizen he views the evaluation order as political harassment. When the county state’s attorney asked that his probation be revoked, Niska missed his hearing and was charged with jumping bail. Now he’s doing time.
Niska and Schmidt are joined by thousands of others across the Midwest in their efforts to foil the foreclosure mechanism, but it seems clear that each of these men is in trouble with the law mainly because he’s a royal pain in the neck. Certainly they pose no real threat to the system. Most have attended clandestine meetings at which out-of-state “experts” in “common law” give farmers a shred of hope and teach them, they think, to forestall foreclosure with loopholes and tricks—such as writing “constructive notices” or pleading that the lending agreement has been broken if their land is taken by force. The farmers use these maneuvers enthusiastically, like drowning men handed ping-pong balls. Can you blame a guy for trying?
Yes, says the law establishment. Such “common-law” efforts are feckless, undermine what real help could be given to the farmers, and result in a lot of bureaucratic paper-shuffling that clogs the courts and costs taxpayers money. Besides, they say, Niska and those like him really are misrepresenting themselves as lawyers. At least in North Dakota, the law is sufficiently vague that it can, when necessary, be interpreted as meaning that a nonlawyer giving anyone any sort of advice in legal matters can be prosecuted. (I grow faint thinking of the times I’ve said, “You oughta sue!” to friends who’ve been wronged at work or in a business transaction.) Niska was a gigantic burr under the saddle of The Law, and he was removed.
As one who once paid my $10 and filled out a simple two-page application for nonprofit incorporation of a four-person literary group (the application was provided by the secretary of state’s office), only to be told by a lawyer that the form wasn’t valid or nearly detailed enough and that I’d have to pay him or someone like him $500 to do it right, I sympathize with these farmers who resent the power, arrogance, and condescension of the law elite. On the other hand, if I ever really need a good attorney, I want to be sure I get one, and not some nut who doesn’t know a writ from a hole in the ground. But is it right for the law establishment to set the limits of its own domain? If the actions threatened in a “constructive notice”—lawsuits, being reported to a higher authority, etc.—are legal and possible, how can the filer be charged for filing? And if they aren’t possible, why worry about it?
Niska’s story brings other questions to mind. When a letter of complaint such as the one Richard Schmidt sent to the register of deeds is considered “threatening” and outlawed, only outlaws will have the courage to communicate displeasure to their elected officials. What then happens to government by representation?
And who among us hasn’t run into dead-earnest social workers and psychologists who are convinced—nay, taught—that no one is mentally healthy, that mad instability rages in us all, and that it’s their job to find it and fix it? Niska’s fear of shrinks makes perfect sense to me.
Regarding the farmers’ plight, there’s a good case for saying to them, “You borrowed too much too fast and got in trouble. Now take your licks like the rest of us have to.” For their part, though, these farmers claim that they were enticed into the situation by the banks back in the 70’s when there was plenty of easy money. The more radical among them claim it was a longstanding plot by the banks to get their land, but all of them say, in their own way, “Sure, we were fools, but it was offered to us and we took it.” How many of us would have refused?
Charles Niska could have gone to the State Farm but is imprisoned in isolation at the Pen because, for religious reasons, he refuses medical screening and a tuberculosis test. He misses his family, wrangles about his prison diet, is holding out for his own vitamin supplements, and still hasn’t agreed to psychiatric evaluation. And he recently passed up a chance for early release from his term, which expires in May 1988. Asking for parole, he said, would be admitting guilt.
He’s filed appeals in his county and at the U.S. District Court and says, “I haven’t been to the U.S. Supreme Court, so I’m not done yet. I’ll fight them to the end of my life if I have to, and I probably will.” This guy obviously has a few chickens loose—but something in me wants him to win. (Thanks to Frederic Smith of the Bismarck Tribune for his two-part feature clarifying the facts of this problem.)