Monaghen v. Simon

• Decision Date: 21 December 2016
• Docket Number: A16-1252
• Citation: 888 N.W.2d 324
• Parties: Tamara MONAGHEN, Petitioner, v. Steve SIMON, Minnesota Secretary of State, Respondent.
• Court: Minnesota Supreme Court

888 N.W.2d 324

Tamara MONAGHEN, Petitioner,

v.Steve SIMON, Minnesota Secretary of State, Respondent.

A16-1252

Supreme Court of Minnesota.

Filed: December 21, 2016

Virginia Stark, Stark Law Office, Lindstrom, Minnesota, for petitioner.

Lori Swanson, Attorney General, Nathan J. Hartshorn, Assistant Attorney General, Saint Paul, Minnesota, for respondent Steve Simon.

R. Reid LeBeau II, Michael L. Murphy, Jeffrey K. Holth, The Jacobson Law Group, Saint Paul, Minnesota, for respondent Robert Barrett.

OPINION

PER CURIAM.

Petitioner Tamara Monaghen filed a petition under Minn. Stat. § 204B.44 (2016), requesting an order directing respondent Steve Simon, the Minnesota Secretary of State, to remove the name of Robert Barrett from the ballot for State Representative for Legislative District 32B at the general election held on November 8, 2016. Petitioner alleged that Barrett did not reside in District 32B for the 6 months immediately preceding the 2016 general election. We referred the matter to a referee to take evidence and make findings of fact. The referee found that petitioner had proven that Barrett did not reside in District 32B during the period between the Fourth of July weekend and August 1, 2016, and that the evidence supported removing Barrett's name from the ballot. This opinion confirms our order, filed September 8, 2016, granting the petition to the extent it sought an order declaring that Robert Barrett is ineligible to hold the office of State Representative for Legislative District 32B. We denied the petition, however, to the extent it sought an order declaring that Robert Barrett's name be removed from the 2016 general election ballot for the office of State Representative for District 32B.

Petitioner is an eligible voter in Legislative District 32B. She claimed in her petition that Barrett was required to live in District 32B from at least May 8, 2016, to the date of the election, to establish residence as required by the Minnesota Constitution. Petitioner claimed that Barrett did not reside within District 32B at a house on Furuby Road in Taylors Falls, Minnesota (the Furuby house), as Barrett stated in the affidavit of candidacy he filed with the Minnesota Secretary of State. Petitioner claimed that she and others investigated whether Barrett resided at the Furuby house in July 2016 and documented that he did not reside there. We issued an order requiring the Minnesota Secretary of State and Barrett to respond to the petition. Barrett denied the allegations in the petition and moved to dismiss the petition, in part, based on laches. We appointed the Honorable George Stephenson to sit as a referee, hold an evidentiary hearing, and submit findings of fact to our court on whether Barrett had resided in Legislative District 32B for the 6 months immediately preceding the November 8, 2016 general election.

The referee held an evidentiary hearing on August 19, 2016. The testimony presented at the hearing, as well as the exhibits entered into evidence, establish the following. Barrett and his wife own a house in Shafer, Minnesota (the Shafer house), which is outside of District 32B. They purchased this house in 2005.¹ Ms. Barrett resides at the Shafer house. Robert Barrett owns and drives a dark red Honda Civic and a black Dodge truck.

In October 2015, Barrett entered into a 14-month lease for the Furuby house, which is a two-bedroom, single-family residence. The Furuby house is located in District 32B. Barrett paid $300 a month in rent and an average of $30 per month for utilities. The house came sparsely furnished with a sofa, kitchen table, and a chair. Barrett's lease will expire at the end of December 2016. Barrett testified that he would like to buy the Furuby house when the lease expires, but he has not mentioned his interest to the owners, whom he has known for many years.

Barrett testified that he has resided at the Furuby house since October 2015. He said that he slept most nights at the Furuby house and that he made dinner for himself at this house four to five times per week. He testified he was at the Shafer house 4 to 5 days per week, though he stayed overnight at that house only 2 nights per week. When asked if he could explain why petitioner and her witnesses never encountered him when they visited the Furuby house, Barrett testified that he stopped answering his door "for DFL activists that are there to harass me."

Barrett testified that his wife spent 1 to 3 nights per week at the Furuby house until the spring. He acknowledged that since May, his wife had spent fewer nights per week there, and in July and August, she spent 0 to 1 nights per week at the Furuby house. Barrett said that his wife began spending less time at the Furuby house because she did not feel safe there due to the DFL activists surveilling the property and harassing them. The referee rejected this explanation for why Barrett's wife stopped spending time at the Furuby house because she could not have known about the actions of the DFL activists in May, when she started spending less time there. The referee noted that the DFL activists began the surveillance in July, and Ms. Barrett did not learn about it until August, after the petition was filed.

Barrett did not have internet service, cable or satellite television, or trash pickup at the Furuby house. There was also no washing machine or dryer. Barrett did not have any insurance for the Furuby house. He did not entertain there. Barrett, however, listed the address of the Furuby house on his driver's license and his passport. Barrett also received packages from Amazon at the Furuby house.

Petitioner and two others investigated whether Barrett was living at the Furuby house. Between the weekend of the Fourth of July and August 1, 2016, they made 30 visits to the Furuby house on 15 different days. The visits were as early as 5:50 a.m. and as late as 10:07 p.m. During these visits, no one answered the door when petitioner and the others rang the doorbell or knocked. They did not see any cars in the garage, and they did not see any lights on, except for one occasion when a basement light was on. On many of the visits, a black truck was parked in the same location outside the garage.

During one of these visits, one of the investigators positioned his car so that his high beams illuminated the living room window. He saw no furniture and nothing on the living room walls.

Barrett was at the Furuby house at least one time during this period. On July 25, 2016, one of the investigators left DFL campaign literature between the storm door and the front door of the Furuby house. Barrett wrote on the campaign literature and put it back where he found it.

Other evidence suggested that Barrett was at the Furuby house toward the end of July. One investigator noticed on July 29 that the lawn looked like it was freshly mowed. Before July 31, the investigators saw the truck parked outside the garage. On July 31 and August 1, the truck was not there, and the Honda Civic was parked outside the garage.

In early July, petitioner's attorney contacted T.K. about conducting surveillance of the entrance to the driveway leading to the Furuby house. On public land across from the driveway entrance, T.K. positioned a motion-activated camera. He programmed the camera to take two photos if a vehicle stopped at the mailbox or turned into or out of the Furuby driveway. For the periods from July 12 through July 22 and the evening of July 28 through August 1, between the hours of 4 p.m. and 10 p.m., the camera took hundreds of pictures of the entrance to the driveway. Only two of these photos showed a car that looked like Barrett's Honda Civic. These photos, which were taken at 9:30 p.m. on July 15, showed the car stopping at the mailbox. The camera did not capture any images of the car in or entering the driveway that night, or any other night.

The referee concluded that petitioner "proved by clear and convincing evidence that ... Barrett did not reside in Legislative District 32B during the period between the 4th of July weekend and August 1st, 2016." According to the referee, petitioner established "clearly and convincingly that ... Barrett did not have the requisite physical presence at Furuby during the requisite period before the election in November." The referee further concluded that "Barrett's expressions of intent to make Furuby his home are simply not credible and are completely at odds with the facts." According to the referee, "Barrett's (and his family's) lack of physical presence at Furuby demonstrate [Barrett's] lack of intent to remain there." By physical presence, the referee not only took into account Barrett's "bodily presence at Furuby," but also "the presence or absence of ‘creature comforts' like trash service, internet, cable or satellite television, household appliances, furniture, and pets." The referee also noted that Barrett had no plans to separate from or divorce his wife. And the referee rejected Barrett's claim that he wished to purchase the Furuby house as not credible.

The referee also concluded that "Barrett's claims of occupancy and residency at Furuby challenge credulity." The referee noted that Barrett's explanation for why it appeared that no one was at the Furuby house when petitioner and the others visited "was that he stopped answering the door." The referee rejected that explanation as "simply not credible when viewed with all of the other evidence." According to the referee, Barrett's "testimony was simply not credible."

I.

We first consider Barrett's argument that we should dismiss the petition based on laches. Laches is an equitable doctrine applied to " ‘prevent one who has not been diligent in asserting a known right from recovering at the expense of one who has been prejudiced by the delay.’ " Winters v. Kiffmeyer , 650 N.W.2d 167, 169 (Minn. 2002) (quoting Aronovitch v. Levy , 238 Minn. 237, 242, 56 N.W.2d 570, 574 (1953) ).

We have dismissed election challenges due to...