Burgum v. Jaeger

951 N.W.2d 380

Doug BURGUM, in his capacity as North Dakota's Governor, Petitioner

v. Alvin JAEGER, in his capacity as North Dakota's Secretary of State; the North Dakota Legislative Assembly, Chet Pollert, Chairman of Legislative Management; and the District 8 Republican Committee, Loren DeWitz, District Chairperson, RespondentsandDemocratic Non-Partisan League District 8 House of Representatives Candidate Kathrin Volochenko, Intervenor

No. 20200298

Supreme Court of North Dakota.

FILED NOVEMBER 24, 2020

Amended January 25, 2021

Robert J. Pathroff (argued) and Megan J. Gordon and Nick M. Surma (on brief), Bismarck, ND, for petitioner.

Wayne K. Stenehjem, Attorney General (argued), and David R. Phillips (on brief), Bismarck, ND, for respondents Alvin Jaeger, in his capacity as North Dakota's Secretary of State and the North Dakota Legislative Assembly, Chet Pollert, Chairman of Legislative Management.

John M. Olson, Bismarck, ND, for respondent District 8 Republican Committee, Loren DeWitz, District Chairperson.

David C. Thompson (argued), Grand Forks, ND, and Duane A. Lillehaug (on brief), Fargo, ND, for intervenor Democratic Non-Partisan League (DEM-NPL) District 8 House of Representative Candidate Kathrin Volochenko.

Tyler Yeargain (on brief), New Haven, CT, amicus curiae.

Jonathan T. Garaas (on brief), Fargo, ND, amicus curiae.

Crothers, Justice.

[¶1] Governor Doug Burgum petitions this Court to exercise our original jurisdiction to issue declarations and a writ of mandamus concerning who appoints the replacement after the pre-election death of a candidate for an office in the Legislative Assembly. We declare the legal status and deny the requested relief.

I

[¶2] The petition concerns the office of State Representative for District Eight. The facts are not in dispute. Four candidates appeared on the 2020 general election ballot for two available seats in that office. Kathrin Volochenko and Linda Babb were Democratic-NPL Party candidates. Dave Nehring and David Andahl were Republican Party candidates. None of them were incumbents.

[¶3] On October 5, 2020 Andahl died. That date was twenty-nine days before the election, after ballots were printed and early voting had begun. Subsequently, Secretary of State Alvin Jaeger requested from Attorney General Wayne Stenehjem advice about "[w]hat the result or effect will be of the votes that are cast for the deceased candidate." N.D. Op. Att'y Gen. 2020-L-08 (October 13, 2020). On October 13, 2020, Stenehjem issued a letter opinion stating "our court follows the majority of states that use the ‘American’ rule, where votes cast for the deceased candidate would be counted." Id. Stenehjem concluded:

"The North Dakota State Constitution provides that ‘[t]he legislative assembly may provide by law a procedure to fill vacancies occurring in either house of the legislative assembly.’ The legislative assembly has done so, and the process is set forth in N.D.C.C. § 16.1-13-10. Upon the application of state law and the ‘American’ rule, it is my opinion that this would be the appropriate method to fill a vacancy."

Id. at p. 5.

[¶4] Election day totals showed Nehring received the most votes and Andahl received the second most votes. The day after the election, the Governor announced his intention to appoint an individual to fill the office Andahl presumably would have filled. In accordance with Attorney General Letter Opinion 2020-L-08, the election results were certified but no certificate of election was issued to Andahl because of his death. Officials for the District Eight Republican Committee announced their intention to appoint an individual to fill the office. Volochenko received the third most votes. She intervened in this case and claims no vacancy in office will exist because she was elected to the office.

II

[¶5] The Governor requested the following relief:

"1. A declaration that the late David Andahl does not meet the qualifications to hold the office of a member of the legislative assembly and therefore may not receive a certificate of election and become a member of the legislative assembly.

2. A declaration that N.D.C.C. § 16.1-13-10 is inapplicable to the vacancy created by David Andahl's death and subsequent receipt of the second most votes at the November 3, 2020 election.

3. A declaration that no method is provided by the North Dakota Constitution or by North Dakota law to fill the vacancy except N.D. Const. art. V, § 8, and that the Governor has the constitutional authority to fill the vacancy by gubernatorial appointment pursuant to N.D. Const. art. V, § 8.

4. Preliminary injunctive relief and a writ of injunction enjoining the Secretary of State from issuing a certificate of election to the late David Andahl, and from issuing a certificate of appointment and oath of office to an appointee of the District 8 Republican Committee or the chairman of legislative management under the procedure provided at N.D.C.C. § 16.1-13-10 ; and enjoining the District 8 Republican Committee or the chairman of legislative management from selecting an individual to fill the vacancy under the procedure provided at N.D.C.C. § 16.1-13-10.¹

5. A writ of mandamus compelling the Secretary of State to attest the Governor's written appointment of an individual to fill the vacancy after certification of election results by the State Canvassing Board, and compelling the Secretary of State to issue a certificate of appointment and oath of office to the Governor's appointee after the certification of the results."

[¶6] This Court has "original jurisdiction with authority to issue, hear, and determine such original and remedial writs as may be necessary ...." N.D. Const. art. VI, § 2. Our authority to issue original writs is discretionary. Berg v. Jaeger , 2020 ND 178, ¶ 7, 948 N.W.2d 4. "The power to exercise our original jurisdiction extends only to those cases where the questions presented are publici juris and affect the sovereignty of the state, the franchises or prerogatives of the state, or the liberties of its people." Onstad v. Jaeger , 2020 ND 203, ¶ 7, 949 N.W.2d 214 (quoting Berg , at ¶ 7 ). "The interest of the state must be primary, not incidental, and the public must have an interest or right that is affected." Riemers v. Jaeger , 2018 ND 192, ¶ 5, 916 N.W.2d 113. Even upon proper showing, original jurisdiction is always discretionary, and the Court determines for itself whether a matter is within its original jurisdiction. State ex rel. Link v. Olson , 286 N.W.2d 262, 266 (N.D. 1979).

[¶7] This case presents unresolved questions created by the death of a candidate receiving the plurality of votes cast for a constitutional office. We have consistently recognized that the power of the people to govern themselves through the voting process implicates a public interest. See Onstad , 2020 ND 203, ¶ 7, 949 N.W.2d 214 ; Berg, 2020 ND 178, ¶ 8, 948 N.W.2d 4 ; Riemers , 2018 ND 192, ¶ 6, 916 N.W.2d 113 ; RECALLND v. Jaeger , 2010 ND 250, ¶ 7, 792 N.W.2d 511.

[¶8] This case also involves a dispute between the executive and legislative branches of government about which has authority to fill a legislative vacancy. "These issues concern the balance of powers between the legislative and executive branches of government." N.D. Legislative Assembly v. Burgum , 2018 ND 189, ¶ 10, 916 N.W.2d 83 ; see also The Federalist No. 48 (James Madison). "Because our constitution provides for a separation of legislative, executive, and judicial powers, actions which tend to undermine this separation are of great public concern." Burgum, at ¶ 10. Therefore, this case presents justiciable controversies of significant public interest and concern, and we exercise our discretionary jurisdiction.

III

[¶9] The Governor petitions this Court for a declaration that he has authority to appoint an individual to fill the office Andahl presumably would have filled. He requests a writ of mandamus directing the Secretary of State to issue a certificate of appointment and oath of office to his appointee.

[¶10] We may issue a writ of mandamus to compel a state official to perform an act that the law specifically requires. N.D.C.C. § 32-34-01. "A petitioner for a writ of mandamus must show a clear legal right to performance of the act sought to be compelled and must establish no plain, speedy, and adequate remedy exists in the ordinary course of law." Onstad , 2020 ND 203, ¶ 8, 949 N.W.2d 214 (quoting Berg , 2020 ND 178, ¶ 9, 948 N.W.2d 4 ).

[¶11] The Governor argues he has authority to make an appointment in this case under N.D. Const. art. V, § 8, which provides: "The governor may fill a vacancy in any office by appointment if no other method is provided by this constitution or by law." The Governor's authority to make an appointment in this case therefore requires a vacancy in the office of State Representative for District Eight and the absence of a legal method to fill that vacancy.

A

[¶12] The Governor asserts that on December 1, 2020 a vacancy will exist in the office of State Representative for District Eight. The Legislative Assembly and the District Eight Republican Committee agree. The incumbents’ terms will expire on that date. See N.D. Const. art. IV, §§ 4, 7 ; N.D.C.C. § 44-02-01(5). The Governor requests a declaration that he has the exclusive authority to make an appointment effective on that occurrence. For us to render a declaration, a present justiciable controversy must exist. Brandvold v. Lewis & Clark Pub. Sch. Dist. No. 161 , 2011 ND 185, ¶ 8, 803 N.W.2d 827 (citing Ramsey Cnty. Farm Bureau v. Ramsey Cnty. , 2008 ND 175, ¶ 22, 755 N.W.2d 920 ). Although the date on which the Governor's appointment would become effective has not yet arrived, the parties agree nothing will prevent the current House members’ terms from expiring on November 30, 2020. Therefore, a present controversy exists as to whether the Governor will have authority to appoint on December 1, 2020. Because a declaration by this Court resolves that...