Jerome Kelsh, Petitioner and Relator, vs. Alvin A. Jaeger, in his capacity as Secretary of State, State of North Dakota, Respondent
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PETITION FOR WRIT OF PROHIBITION OR OTHER APPROPRIATE WRIT, MOTION FOR EXPEDITED REVIEW
Petitioner Jerome Kelsh respectfully states as follows:
PARTIES TO THE ACTION
Petitioner Jerome Kelsh (Kelsh) is the duly elected incumbent state senator of District 26, State of North Dakota.
Respondent Alvin A. Jaeger is the Secretary of State of North Dakota.
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; N.D.C.C. 27-02-04; State ex rel. Kusler v. Sinner, 491 N.W. 2d 382 (N.D.1992); State ex rel. Peterson v. Olson, 307 N.W. 2d 528, 530-31 (N.D.1981). The Court's original jurisdiction extends only to those cases where the questions presented are publici juris and affect the sovereignty of the state, the franchises or peragatives of the state, or the liberties of its people. State ex rel. Link v. Olson, 286 N.W. 2d 262 (N.D.1979). The interest of the state must be primary, not incidental, and the public must have an interest or right that is affected. State ex rel. Kusler v. Sinner, N.W. 2d (N.D.1992); State ex rel. Peterson v. Olson, 307 N.W. 2d 528, 530-31 (N.D.1981). At issue here is whether or under what circumstances the North Dakota legislature may truncate the terms of a sitting state senator of North Dakota, an issue of significant public interest to North Dakota voters, candidates and political parties. Senator Kelsh respectfully requests that the Court invoke its original jurisdiction to resolve this matter.
NATURE OF PROCEEDING
North Dakota's fifty-seventh legislative assembly passed Senate Bill No. 2456, a legislative redistricting bill which amended N.D.C.C. 54-03-01.8 to require that Senator Kelsh's four year term be truncated to two years as a result of the legislature's redistricting of District 26. See Section 2, N.D.C.C. 54-03-01.8 of the 2001 Supplement to the North Dakota Century Code.
Until 1983, then-Section 27 of the North Dakota Constitution provided that "senators shall be elected for the term of four years, except as hereinafter provided." N.D. Const.; See N.D. Const. art. IV, § 4. On June 12, 1984, the people of North Dakota approved the 1983 legislative assembly's revision to the Constitution which deleted the terms "except as hereinafter provided." N.D. Const., art. IV, § 4; 1981 N.D. Sess. Laws, ch. 804. The 2001 legislative assembly's amendment of N.D.C.C. 54-03-01.8 contravenes the plain language of N.D. Const. art. IV, § 4 which requires that a senator's term must be four years. Senator Kelsh respectfully requests this Court to find that Section 2, N.D.C.C. 54-03-01.8 as amended violates the plain meaning of N.D. Const., art. IV, § 4.
Section 2, N.D.C.C. 54-03-01.8 as amended requires that 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. Id. Senator Joel Heitkamp's township of residence borders the newly-created District 25 adjacent to District 26, and was placed within the newly-designated boundaries of Senator Kelsh's District 26. Heitkamp and Kelsh now both reside within the new District 26 boundaries. Section 2, N.D.C.C. 54-03-01.8 as amended requires that there be an election held in District 26 for a two (2) year term if Heitkamp did not decline to seek re-election by February 15, 2002. Heitkamp did not decline to seek re-election by February 15, 2002, thus creating a situation whereby Kelsh as the sitting District 26 senator must face re-election in the middle of his term and must run for a new term of only two years.
The District 26 Democrat-NPL party is scheduled to hold its district convention on March 10, 2002, at which time the District must conduct what may be an unconstitutional nomination process. This issue is one of exceptional public interest which directly affects the constitutional rights of voters and elected officials and which requires immediate resolution by this Court.
NATURE OF RELIEF REQUESTED
This case represents issues essential to North Dakota's public interest and which directly affect its constituents. Whether the legislature may truncate a senator's four year term and require special elections to do so are issues vital to North Dakota voters, political candidates and their respective political parties as well as the election process itself. These issues require the Court's immediate attention since the District 26 nominating convention must be held shortly under the provisions of Section 2, N.D.C.C. 54-03-01.8 as amended.
This petition for a writ of prohibition or other appropriate writ and motion for expedited review is based upon the attached brief in support of petition, the affidavit of Jerome Kelsh, and all of the records and files in this case.
WHEREFORE, Petitioner Kelsh prays that:
This Court order Respondent Alvin A. Jaeger to serve and file a brief within an expedited time established by the Court.
This Court order that both petitioner and respondent appear before this Court at the earliest possible date and time to present arguments to the Court on the merits of these issues.
That this Court issue a writ of prohibition or other appropriate writ which declares unconstitutional Section 2, N.D.C.C. 54-03-01.8 as amended and issue a writ of prohibition or other appropriate writ which prohibits and enjoins the respondent from administering an election for the office of District 26 state senator in the 2002 primary and general elections.
This Court grant such other and further relief as the Court deems appropriate under the circumstances.
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 (701) 255-6820 BY: _________________________ David R. Bliss ID #04729