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In its unanimous opinion issued Tuesday, the North Dakota Supreme Court upheld evidence that convicted two people involved in a protest of the Dakota Access Pipeline in 2016.

Surrogate Judge Thomas Merrick convicted Mary Redway and Alex Simon in October 2017 of misdemeanors related to the protest march in a pasture in southern Morton County. Redway and Simon were sentenced to four and 12 days in jail, respectively, as the first defendants convicted from the protests to serve incarceration for convictions.

They appealed, claiming insufficient evidence to sustain their convictions, as well as First Amendment-protected activity.

The high court disagreed.

“Evidence in the record supports the district court's factual determination that Redway and Simon were more than simply present during the protests and were actively engaged in conduct constituting disorderly conduct under (state law),” opinion author Justice Jerod Tufte wrote. “Under our standard of review, we do not re-weigh the evidence about their conduct. We conclude there is sufficient evidence, viewed in the light most favorable to the verdict, to support their disorderly conduct convictions.”

Attorney Sam Saylor, who represented Redway and Simon at oral arguments in April, said he was disappointed by the opinion, and worries other attorneys may now cite it.

“I think the general takeaway here is that this entire case is still just pictures of Mary and Alex at a protest, and that’s it,” Saylor told the Tribune. “And it is difficult to believe that a conviction could be upheld when the only evidence is them walking and linking arms.”


Law enforcement formed skirmish lines to meet protesters marching in a pasture near pipeline construction on Oct. 22, 2016. Officers arrested 140 people, including Mary Redway and Alex Simon, who have appealed their misdemeanor convictions to the North Dakota Supreme Court.

Prosecutor Brian Grosinger previously described protesters’ behavior during the march in the pasture on Oct. 22, 2016, as “alarming, violent and tumultuous.”

Saylor said he’s also concerned by the circumstances of his clients’ convictions when they were not prohibited by a landowner from marching in the pasture on private land.

"Officers removed (protesters) because they were essentially annoying to officers because they were disobeying orders to leave this property," Saylor said. "So what does that mean? It means that if I'm on my property and I'm annoying an officer and that annoyance could simply be I refused to stop my protest, I can be arrested and convicted for disorderly conduct."

He also expressed concern for what “roadblocks” the misdemeanor convictions could have for his clients, of whom Simon is a teacher.

Redway said she was still considering the opinion and didn’t want to speak “prematurely.” She directed a reporter to her statement to the Water Protector Legal Collective: “I am also concerned about being part of the legal narrative, that this case can serve as a precedent in future First Amendment rights cases as well as legislation.”

WPLC described the court’s ruling as “ominous” for people demonstrating against government or corporate entities.  

As of Aug. 23, 15 of the 831 state-level criminal cases from the protests were open, according to South Central Judicial District figures. About 700 cases have been adjudicated two years after arrests began in August 2016 in the monthslong protests. About 90 arrest warrants remain inactive.

Redway’s and Simon’s joint appeal was the second protest case to be heard before the North Dakota Supreme Court, which also upheld a previous defendant’s conviction.

Five other appeals related to the protests are pending before the court.

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Capitol Reporter