IN THE SUPREME COURT
STATE OF NORTH DAKOTA
|Jerome Kelsh,||)||ORIGINAL PROCEEDING|
|vs.||)||Supreme Court No.|
|Alvin A. Jaeger, in his capacity||)|
|as Secretary of State, State of||)|
BRIEF IN SUPPORT OF PETITION FOR WRIT OF PROHIBITION OR OTHER APPROPRIATE WRIT AND MOTION FOR EXPEDITED REVIEW
|BLISS LAW OFFICE|
|Counsel for the Petitioner|
|316 North 5th Street, Suite 104|
|PO Box 1854|
|Bismarck, ND 58502-1854|
|BY: David R. Bliss ID #04729|
TABLE OF CONTENTS
TABLE OF CONTENTS i
TABLE OF AUTHORITIES ii
STATEMENT OF ISSUES 1
STATEMENT OF THE CASE 1
LAW AND ARGUMENT 3
ORIGINAL JURISDICTION IS APPROPRIATE 3
B. SECTION 2 OF N.D.C.C. 54-03-01.8 AS AMENDED IS
CONTRARY TO THE PLAIN MEANING OF N.D. CONST.
ART. IV, § 4 5
state senator's term to less than four years 5
2. N.D. Const. art.IV, § 3 can be interpreted harmoniously
with N.D. Const. art. IV, § 4 8
3. N.D. Const. art. IV, § 3 allows only practicable
procedures by which experienced senate members
are elected and maintained. 9
C. THE COURT SHOULD ISSUE A WRIT OF PROHIBITION
OR OTHER APPROPRIATE WRIT TO FORBID THE
SECRETARY OF STATE FROM ADMINISTERING THE
PROVISIONS OF SECTION 2, N.D.C.C. 54-03-01.8 AS
AMENDED TO PREVENT AN UNCONSTITUTIONAL
DISTRICT 26 ELECTION TO BE HELD 10
CONCLUSION. . . . . 11
CERTIFICATION OF COMPLIANCE 11
TABLE OF AUTHORITIES
Fort Sumter Hotel v. South Carolina Tax Commission et al,
21 S.E. 2d 393 (S.C. 1942) 9
Harding v. City of Dickinson, 33 N.W. 2d 626 (N.D. 1948). 7
McCarney v. Meier, 286 N.W. 2d 780, 783 (N.D. 1979) 7, 9
Old Broadway Corp. v. Backes, 450 N.W. 2d 734 (N.D. 1990) 10
Resolution Trust Corp. v. Dickinson Econ-Storage,
474 N.W. 2d 50, 52 (N.D. 1981) 9
State ex rel. Link v. Olson, 286 N.W. 2d 262, (N.D. 1979) 3, 4
State ex rel. Kusler v. Sinner, 491 N.W. 2d 382, (N.D. 1992) 3, 4, 10
State ex rel. Peterson v. Olson, 307 N.W. 2d 528 (N.D. 1981) 4, 7
State ex rel. Wefald v. Meier, 347 N.W. 2d 562 (N.D. 1984) 5, 7, 10
State ex rel. Williams v. Meyer, 127 N.W. 834 (N.D. 1910) 6
Sanstead v. Freed, 251 N.W. 2d 898, 908 (N.D. 1977) 7, 8
Wills v. Schroeder Aviation, Inc., 390 N.W. 2d 545 (N.D. 1986) 7
North Dakota Constitution:
N.D. Const., Art. IV, § 2 3
N.D. Const., Art. IV, § 3 6, 8-10
N.D. Const., Art. IV, § 4 5-8, 10
N.D. Const., Art. VI, § 2 3
Chapman v. Meier, 372 F. Supp. 363 (D.N.D. 1972) 6
North Dakota Century Code:
N.D.C.C. 54-03-01.8 1-3, 5-11
N.D.C.C. 27-02-04 3, 4
N.D.C.C. 1-02-05 . . . . 7
N.D.C.C. 1-02-02 . . . . 7
North Dakota Rules of Appellate Procedure:
Rule 2, N.D.R. App. Pro 1
Rule 28 (g), N.D.R. App. Pro. 11
72 C.J.S. 467. 10
Webster's New Universal Unabridged Dictionary, 1517 (1996) 9, 10
STATEMENT OF THE ISSUES
1. Whether it is appropriate for the Court to invoke its original jurisdiction in this case.
2. Whether Section 2, N.D.C.C. 54-03-01.8 as amended should be declared un-constitutional.
STATEMENT OF THE CASE
A. Nature of the Case.
Petitioner and state Senator Jerome Kelsh requests that the Court invoke its original jurisdiction to hear and resolve the issue as to whether Section 2, N.D.C.C. 54-03-01.8 as amended is constitutional. [See also App. 11-15]. Senator Kelsh has served in the North Dakota state senate from the 26th Legislative District since 1984. Senator Kelsh was re-elected to a four year senate term in the 2000 general election. This statute, amended by the North Dakota legislature in 2001, requires that Senator Kelsh's four year term be truncated to two years as the result of the legislature's redistricting of District 26. The respondent is the North Dakota Secretary of State, who has the statutory authority to enforce the state's election laws, and who must administer and enforce Section 2, N.D.C.C. 54-03-01.8 as amended. Senator Kelsh requests that the Court issue a writ of prohibition or other appropriate writ which prohibits and enjoins the Secretary of State from administering an election for the office of District 26 state senator in the 2002 primary and general elections.
B. Statement of Facts.
In a special session which commenced on November 26, 2001, the North Dakota legislature passed a redistricting bill which amended N.D.C.C. 54-03-01.8 to require that Senator Kelsh's four year term in District 26 be truncated to two years. Legislative history is scant as to legislative intent in passing the bill. [App. 8-10]. Art. IV, § 4 of the North Dakota Constitution requires that senators must be elected for terms of four years.
On March 4, 1992, then-Attorney General Nicholas J. Spaeth issued an opinion which declared that a statute which limits the terms of state senators to two years is unconstitutional. [App. 1-2]. On July 13, 2001, Attorney General Wayne Stenehjem overruled General Spaeth's opinion when he issued a letter opinion which declared that the legislature has the authority to reduce the terms of one or more senators or representatives from four years to two years if necessary to effectuate an otherwise valid redistricting plan. [App. 3-7]. The legislature's passage of Senate Bill 2456 placed former District 27 state Senator Joel Heitkamp and Senator Kelsh within the same District 26 boundaries. Senator Heitkamp was elected to a District 27 four year senate term in 1998. Senator Heitkamp did not notify the Secretary of State that he would not seek re-election by February 15, 2002, pursuant to Section 2 of N.D.C.C. 54-03-01.8 as amended. As a result, Senator Kelsh, a sitting senator who has two years left of his senatorial term, must face a special election against former Senator Heitkamp, who until the redistricting plan went into effect was the state senator from an adjoining legislative district.
C. Request for Expedited Review.
Senator Kelsh requests that the Court suspend any requirements or provisions of the North Dakota Rules of Appellate Procedure in this particular case pursuant to Rule 2, N.D.R. App. Pro., in order to expedite its review and resolution of this case. Senator Kelsh requests that the Court expedite its review so that the constitutionality of Section 2, N.D.C.C. 54-03-01.8 as amended can be determined prior to the initiation of the special election process required by this statute. This issue represents a justiciable controversy and is one of significant public interest to North Dakota voters, political candidates and political parties. Its immediacy in this particular case stems in part from Senator Heitkamp's February 15, 2002 election not to decline a re-election bid in Senator Kelsh's District 26. District 26 legislative candidates, state and local election officials and voters each have rights and duties which would be affected by the enforcement of Section 2 of N.D.C.C. 54-03-01.8 as amended.
Senator Kelsh requests that the Court establish a date and time at which this matter can be heard at its earliest convenience so that the issue may be resolved prior to the March 10, 2002 District 26 district convention.
LAW AND ARGUMENT
At issue is whether the Court may exercise its original jurisdiction and issue a writ of prohibition or other appropriate writ to resolve an election law controversy. The Court has original jurisdiction with authority to issue, hear and determine such original and remedial writs as may be necessary to properly exercise its jurisdiction. N.D. Const. art. VI, § 2. The Court may issue such original and remedial writs as are necessary for the proper exercise of its jurisdiction, and in such cases of strictly public concern as involve questions affecting the sovereign rights of this state or its franchises or privileges. N.D.C.C. 27-02-04; State ex rel. Link v. Olson, 286 N.W. 2d 262, (N.D. 1979).
The power vested in the Court to issue original writs is a discretionary power which may not be invoked as a matter of right. State ex rel. Kusler v. Sinner, 491 N.W. 2d 382 (N.D. 1992). It is well settled that the Court's power to exercise 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. Id.; State ex rel. Link v. Olson, 286 N.W. 2d 262 (N.D. 1979); N.D.C.C. 27-02-04. The public must have an interest or right that is affected. State ex rel. Peterson v. Olson, 307 N.W. 2d 528 (N.D. 1981).
This issue represents essential public interests and rights. Those directly affected by the outcome of this case include District 26 legislative candidates, political parties who support those candidates, election officials who must administer the election process and voters themselves. This issue is one of vital public interest to the citizens of North Dakota.
The Court has exercised its original jurisdiction in other disputes where it was called upon to interpret statutes which relate to the voting process. In State ex rel. Kusler v. Sinner, 429 N.W. 2d 382 (N.D. 1992), the Court asserted its original jurisdiction to hear then-Secretary of State Jim Kusler's petition to exercise its original jurisdiction to issue a writ of certiorari or other appropriate writ to nullify then-Governor Sinner's writ of election which scheduled a special election for November 3, 1992 to fill the vacancy of deceased United States Senator Quentin N. Burdick. Secretary Kusler requested that the Court issue a writ of mandamus or other appropriate writ to compel Governor Sinner to schedule a special election so that candidates could file their certificates of nomination at least 60 days prior to the day of the election. Id. Governor Sinner's writ of election set the special election less than 60 days after Senator Burdick's death and 30 days after the political parties nominating conventions. Id. The Court found that the Kusler proceeding involved special circumstances which presented "questions of an urgent and emergency nature that need a speedy determination. We conclude, therefore, that this is a matter of public interest for our exercise of original jurisdiction." Kusler at 385. Similar circumstances exist in this case. District 26 voters, political candidates and election officials need the Court's guidance as to whether it is constitutional to hold a special election to truncate a state senator's four year term based upon the legislature's reapportionment plan.
In State ex rel. Wefald v. Meier, 347 N.W. 2d 562 (N.D. 1984), the Court invoked its original jurisdiction to rule on a petition by then-Secretary of State Ben Meier who had prepared a proposed ballot and explanatory statement for a referred measure. Then-Attorney General Wefald rejected the ballot and explanation as contrary to law. The Court heard this matter and stated that the referendum process is one "whereby the people, through the exercise of their right to vote, determine the laws under which they will be governed. Few matters encompass more public interest than this process." Id. at 564.
This proceeding also presents issues of an urgent and emergency nature which require a speedy determination. Section 2, N.D.C.C. 54-03-01.8 as amended requires that a special election be held in District 26 since Senator Heitkamp did not file notice by February 15, 2002, that he would not run against Senator Kelsh, the sitting District 26 senator. The District 26 nominating convention is scheduled for March 10, 2002. These special circumstances present urgent issues which require the Court's speedy determination.
B. SECTION 2 OF N.D.C.C. 54-03-01.8 AS AMENDED IS CONTRARY TO THE PLAIN MEANING OF N.D. CONST. ART. IV, § 4.
1. Art. IV, § 4 forbids truncation of a state senator's term to less than four years.
In 2001, North Dakota's 57th Legislative Assembly passed Senate Bill 2456, a legislative redistricting bill which amended N.D.C.C. 54-03-01.8 as follows:
A senator from an odd-numbered district must be elected in 2002 for a term of four years and a senator from an even-numbered district must be elected in 2004 for a term of four years. Except as otherwise provided in this section, a senator from an even-numbered district in which there is another incumbent senator as a result of legislative redistricting must be elected in 2002 for a term of two years. However, if as a result of legislative redistricting a senator elected in 1998 is placed in an even-numbered district there must be an election in 2002 for a term of two years unless the senator elected in 1998 files by February 15, 2002, a written statement with the secretary of state stating that the senator elected in 1998 agrees that there need not be an election for a senator in 2002 and that the senator elected in 2000 may continue that senator's term; based on this requirement, districts twenty and twenty-six may be required to elect senators in 2002.
N.D.C.C. 54-03-08.1 (2).
The legislature's passage of this statute had the practical effect of forcing an incumbent state senator from an adjacent district whose term had expired to run for election in a district represented by a state senator with two years left on his term.
This statute as amended must be interpreted in light of North Dakota's constitutional mandate that senators be elected for terms of four years. N.D. Const. art. IV, § 4. Until December 1, 1986, N.D. Const. art. IV, § 4 provided for four year terms of state senators "except as hereinafter provided." Id. The Court in State ex rel. Williams v. Meyer, 127 N.W. 834 (N.D. 1910) referred to this additional language when the Court allowed senatorial terms to be staggered:
The phrase "except as hereinafter provided" referred to, relates not only to the senators of the even class elected in 1890, but it is applicable to those elected after any apportionment at which new districts are created, so far as necessary to bring them in harmony with the plan of the Constitution regarding the membership of the senate and the terms of office of the senators." (emphasis added).
Meyer at 836.
The Meyer court reconciled its staggering of legislative terms based upon the above language. This language was also present when the 1981 legislature truncated the terms of certain senators in its redistricting plan. See 1981 N.D. Sess. Laws ch. 804; N.D. Const., art. IV, § 3. The language was also present when four senators' terms were truncated to two years through the legislature's reapportionment plan after the 1970 census. Chapman v. Meier, 372F. Supp. 363 (D.N.D. 1972). North Dakota voters approved the deletion of this language on June 12, 1984 when they approved the constitutional amendment to do so.
Section 2, N.D.C.C. 54-03-08.1 as amended, however, must now be interpreted in light of the N.D. Const. art. IV, § 4 which has since been stripped of the language to which the Meyer Court referred. Principles of construction applicable to statutes generally are available to construction of the Constitution. McCarney v. Meier, 286 N.W. 2d 780, 783 (N.D. 1979); Sanstead v. Freed, 251 N.W. 2d 898 (N.D. 1977). Expediency has no application nor does public clamor, majority desire, or apparent need (quoting State v. Olson, 176 N.W. 528, 534 (N.D. 1920). Id. When the wording of a statute is clear and free of all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit. N.D.C.C. 1-02-05. The letter of a clear and unambiguous statute cannot be disregarded under the pretext of pursuing its spirit because the legislative intent is presumed clear from the face of the statute. Wills v. Schroeder Aviation, Inc., 390 N.W. 2d 545 (N.D. 1986). Words used in any statute are to be understood in their ordinary sense unless a contrary intention plainly appears. N.D.C.C. 1-02-02; Harding v. City of Dickinson, 33 N.W. 2d 626 (N.D. 1948). In this case, it is difficult to perceive of a construction of N.D. Const. art. IV, § 4 which could mean anything other than the mandate that state senators be elected for four year terms. The rules of construction do not apply when the language of the statute can be plainly understood. As the Sanstead Court stated:
The legislature must be understood to mean what it has plainly expressed, and this excludes construction. The legislative intent being plainly expressed, so that the act read by itself, or in connection with other statutes pertaining to the same subject, is clear, certain, and unambiguous, the courts have only the simple and obvious duty to enforce the law according to its terms.
Sanstead at 447.
When the clear meaning of N.D. Const. art. IV, § 4 is applied to this reapportionment statute, Section 2, N.D.C.C. 54-03-01.8 as amended is unconstitutional in that it requires a sitting state senator run for and serve a two year term in his own district.
2. N.D. Const. art IV, § 3 can be interpreted harmoniously with N.D. Const. art. IV, § 4.
The Court in its construction of constitutional provisions must make every effort to take into account the entire Constitution. Sanstead v. Freed, 251 N.W. 2d 898, 908 (N.D. 1977). The Court must reconcile apparently inconsistent provisions when it construes and interprets the Constitution. Id. Art. IV, § 3 of the Constitution provides as follows:
The legislative assembly shall establish by law a procedure whereby one-half of the members of the senate and one-half of the members of the house of representatives, as nearly as is practicable are elected biennially (emphasis added).
N.D. Const. art. IV, § 3
N.D. Const. art. 4, § 4 does not conflict with the provisions of N.D. Const. art. 4, § 3 when these respective provisions are applied to the facts of this case. N.D. Const. art. 4, § 3 requires that one-half of the members of the senate are to be elected biennially, and that these senators so elected should serve a term of four years. In this case, Senator Kelsh was re-elected as District 26 state senator in the year 2000. His four year term expires in the year 2004. Senator Kelsh remains in his original district, District 26, which remains an even numbered district. Since all other legislative districts in which a legislator's terms may have been truncated have also resolved their respective situations, District 26 is the single remaining district to which Section 2, N.D.C.C. 54-03-01.8 as amended applies.
Senator Kelsh's term comports with the North Dakota constitutional provisions as to biennial elections and four year terms but Section 2, N.D.C.C. 54-03-01.8 as amended, does not. Section 2, N.D.C.C. 54-03-01.8 as amended should therefore be declared unconstitutional in that it denies the full force and effect of the constitutional mandate to require senators to be elected for four year terms.
3. N.D. Const. art. IV, § 3 allows only practicable procedures by which experienced senate members are elected and maintained.
At issue is whether Section 2, N.D.C.C. 54-03-01.8 as amended is a practicable procedure by which to elect state senators. The legislative assembly shall establish by law a procedure whereby one-half of the members of the senate, as nearly as practicable are elected biennially. N.D. Const. art. IV, § 3. (emphasis added). It is well settled that the legislature must provide a senate composed of members one-half of whom are experienced in their duties. Id. As the Meyer court stated, "it was the clear intent of the constitutional convention to provide a Senate which should at all times as nearly as practicable, be composed of members one-half of whom were experienced in the duties of their offices." Meyer at 836.
In this case, Senator Kelsh is one of the more experienced senators in the legislature, having served District 26 since 1984. There is a statutory presumption that the legislature's intent was not to create absurd results or unjust consequences in the passage of a statute. Resolution Trust Corp. v. Dickinson Econ-Storage, 474 N.W. 2d 50, 52 (N.D. 1981). To require a sitting senator with seventeen years' legislative experience to run for a two year term in the middle of his four year term serves neither constitutional mandates nor the voters of North Dakota.
Courts have struggled with the proper definition of the term "practicable." In Fort Sumter Hotel v. South Carolina Tax Commission et al, 21 S.E. 2d 393 (S.C. 1942), the South Carolina court interpreted the phrase "as nearly as may be practicable" as "meaning what the words indicate to wit, that the procedure must be followed unless there is some valid reason why in some particular respect it is not practicable to do so." Id. at 396. Webster's Dictionary defines "practicable" as "capable of being done, effected or put into practice, with the available means; feasible." Webster's at 1517. Corpus Juris Secundum defines the term, in part, as "capable of being done or accomplished with available means or resources; capable of being performed or effected; feasible; feasible, fair, and convenient; possible of execution or performance." 72 C.J.S. 467.
The legislature could have passed a practicable reapportionment plan by which a sitting senator's four year term would not be truncated and in the case of Senator Kelsh, there would be no loss of an experienced senator in the legislative body pursuant to the clear intent of the Constitution. Section 2, N.D.C.C. 54-03-01.8 as amended does not represent a fair and feasible plan which can pass constitutional muster.
C. THE COURT SHOULD ISSUE A WRIT OF PROHIBITION OR OTHER APPROPRIATE WRIT TO FORBID THE SECRETARY OF STATE TO ADMINISTER THE PROVISIONS OF SECTION 2, N.D.C.C. 54-03-01.8 AS AMENDED TO PREVENT AN UNCONSTITUTIONAL DISTRICT 26 ELECTION TO BE HELD.
The Court has invoked its original jurisdiction in proceedings which posed voting process issues. State ex rel. Kusler v. Sinner, 491 N.W. 2d 382, (N.D. 1992); State ex rel. Wefald v. Meier, 347 N.W. 2d 562 (N.D. 1984). A writ of prohibition is appropriate when there is no plain, speedy, and adequate remedy in the ordinary course of law. Old Broadway Corp. v. Backes, 450 N.W. 2d 734 (N.D. 1990).
In this case, Senator Kelsh asks this Court to prohibit the Secretary of State from administering an election pursuant to Section 2, N.D.C.C. 54-03-01.8 as amended, the statutory basis of which may be unconstitutional. The fifty-seventh legislature has passed a redistricting plan which is not narrowly tailored to accommodate the constitutional provisions as set forth in N.D. Const. art. IV, § 4 and art. IV, § 3, respectively. The letter and spirit of N.D. Const. art. IV, § 4 are to require state senators to be elected to four year terms if possible and, just as importantly, to maintain experienced senators in the senate body. Section 2, N.D.C.C. 54-03-01.8 as amended fails in both these respects. To remedy these present circumstances, Senator Kelsh requests that this Court prohibit Section 2, N.D.C.C. 54-03-01.8 as amended from taking effect. Its practical purpose would enable Senator Kelsh to complete his four year term as required under the North Dakota constitution without the necessity of standing for a mid-term election.
Petitioner Kelsh respectfully requests that the Court grant his petition which requests that the Court declare as unconstitutional Section 2, N.D.C.C. 54-03-01.8 as amended, to issue a writ of prohibition or other appropriate writ which prohibits and enjoins the Secretary of State from administering an election for the office of District 26 state senator in 2002 pursuant to this statute, and for other and further relief as the Court deems appropriate under the circumstances.
CERTIFICATION OF COMPLIANCE
The undersigned, as attorney for the petitioner in the above matter, and as the author of the above brief, hereby certifies, in compliance with Rule 28(g) of the North Dakota Rules of Appellate Procedure, that the above brief was prepared with proportional typeface and that the total number of words, excluding words in the table of contents and table of authorities, does not exceed 10, 500 words.
Dated this ____ day of March, 2002.
|BLISS LAW OFFICE|
|Counsel for the Petitioner|
|316 North 5th Street, Suite 104|
|PO Box 1854|
|Bismarck, ND 58502-1854|
|BY: David R. Bliss ID #04729|