Berg v. Jaeger

• Decision Date: 26 August 2020
• Docket Number: No. 20200184,20200184
• Citation: 948 N.W.2d 4
• Parties: Rick BERG, individually in his capacity as a resident and elector of the State of North Dakota, and as Chairman of the North Dakota Republican Party, Petitioner v. Alvin JAEGER, in his capacity as North Dakota's Secretary of State, and Travisia Jonette Minor, a/k/a Travisia Martin, Respondents
• Court: North Dakota Supreme Court

948 N.W.2d 4

Rick BERG, individually in his capacity as a resident and elector of the State of North Dakota, and as Chairman of the North Dakota Republican Party, Petitioner

v.Alvin JAEGER, in his capacity as North Dakota's Secretary of State, and Travisia Jonette Minor, a/k/a Travisia Martin, Respondents

No. 20200184

Supreme Court of North Dakota.

Filed August 26, 2020

Courtney A. Presthus, Dickinson, N.D., for petitioner.

Matthew A. Sagsveen, Solicitor General, Office of the Attorney General, Bismarck, N.D., for respondent Alvin Jaeger.

McLain J. Schneider (argued), Fargo, N.D., and David C. Thompson (appeared), Grand Forks, N.D., for respondent Travisia Martin.

Per Curiam.

[¶1] Rick Berg, as a resident and elector of this state, and as chairman of the North Dakota Republican Party, petitioned this Court to exercise its original jurisdiction and issue a writ of mandamus directing Secretary of State Alvin Jaeger to remove Travisia Jonette Minor, A/K/A Travisia Martin from the November 3, 2020, general election ballot for the office of insurance commissioner. We exercise our original jurisdiction to consider Berg's petition, and we grant an alternative writ of injunction.

I

[¶2] On April 2, 2020, Martin filed an affidavit of candidacy, statement of interest, and certificate of endorsement with Jaeger requesting she be placed on the primary election ballot as the North Dakota Democratic-NPL party candidate for North Dakota Insurance Commissioner. In the affidavit of candidacy, Martin certified she met the requirements to hold the office of insurance commissioner.

[¶3] On May 20, 2020, the executive director of the North Dakota Republican Party sent a letter to Jaeger stating Martin was ineligible to hold the office of insurance commissioner because she was not a North Dakota resident for five years preceding the November 2020 election. The Republican Party alleged Martin was ineligible to hold elective office because she voted in Nevada in the November 2016 election. The Republican Party requested Jaeger remove Martin from the November 2020 general election ballot.

[¶4] On May 28, 2020, Jaeger sent a letter to Martin requesting information regarding her North Dakota residence. In response, Martin asserted she had maintained her physical residence in North Dakota since 2015. Martin also admitted to voting in Nevada in the November 2016 election, claiming she was unfamiliar with North Dakota's voter eligibility requirements. Martin included with her response a letter from Dale Vander Vorst attesting that Martin had been residing with him in North Dakota since before November 2015. Martin also included letters from her former attorney and orthopedic surgeon stating she moved to North Dakota in 2015.

[¶5] Jaeger refused to remove Martin from the ballot, stating he may only remove a candidate from the ballot if the candidate refuses to accept the party nomination or if ordered to do so by a court.

On July 9, 2020, Berg petitioned this Court for a writ of mandamus directing Jaeger to remove Martin from the general election ballot. Berg contends Martin was not a resident of North Dakota in 2016 when she voted in Nevada, and therefore she will be ineligible to hold the office of insurance commissioner because she will not have been a resident for the required five years preceding election.

[¶6] Following oral argument, this Court ordered the district court to hold an evidentiary hearing and make findings of fact on "whether [Martin] will have been a North Dakota resident for the five years preceding the 2020 general election." On August 12, 2020, the district court held an evidentiary hearing. The court heard testimony from Martin and Vander Vorst and received several exhibits into evidence. After the hearing, the court found "Martin was not a North Dakota resident until sometime after November 2016."

II

[¶7] Article VI, § 2, of the North Dakota Constitution states this Court "shall have appellate jurisdiction, and shall also have original jurisdiction with authority to issue, hear, and determine such original and remedial writs as may be necessary to properly exercise its jurisdiction." This Court's authority to issue original writs is discretionary and may not be invoked as a matter of right. Riemers v. Jaeger , 2018 ND 192, ¶ 5, 916 N.W.2d 113. "It is well settled that 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." Id. "The interest of the state must be primary, not incidental, and the public must have an interest or right that is affected." Id.

[¶8] The issue in this case concerns the eligibility of a candidate for state office to hold the office and "involves the people's power to govern themselves through the voting process." Riemers , 2018 ND 192, ¶ 6, 916 N.W.2d 113. Our cases have recognized the public interest involved with the power of the people to govern themselves in the voting process. Id. The issue here involving the eligibility of a candidate for state office is a matter of public interest warranting the exercise of this Court's original jurisdiction to consider Berg's petition.

III

[¶9] "Under N.D.C.C. § 32-34-01, this Court may issue a writ of mandamus to compel performance of an act which the law specifically enjoins as a duty resulting from an office." Riemers , 2018 ND 192, ¶ 7, 916 N.W.2d 113. "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." Id. To be enforceable by mandamus, the law must require an act to be done; mandamus cannot compel an official's discretionary actions. Eichhorn v. Waldo Twp. Bd. of Supervisors , 2006 ND 214, ¶ 19, 723 N.W.2d 112.

A

[¶10] Berg claims Martin is not eligible to hold the office of insurance commissioner because she will not have been a North Dakota resident for five years preceding the election.

[¶11] Eligibility to hold elective office in the executive branch is governed by N.D. Const. art. V, § 4, which states that "[t]o be eligible to hold an elective office established by this article, a person must be a qualified elector of this state, must be at least twenty-five years of age on the day of the election, and must have been a resident of this state for the five years preceding election to office." A resident of this state, as used in the Constitution, means having had a legal residence "entitling one to vote or to hold office in the state of North Dakota." State ex rel. Sathre v. Moodie , 65 N.D. 340, 258 N.W. 558, 562 (1935). Several factors relevant to determining one's legal residence are set forth in N.D.C.C. § 54-01-26 :

Every person has in law a residence. In determining the place of residence, the following rules must be observed:

1. It is the place where one remains when not called elsewhere for labor or other special or temporary purpose and to which the person returns in seasons of repose.

2. There can be only one residence.

3. A residence cannot be lost until another is gained.

....

7. The residence can be changed only by the union of act and intent.

[¶12] "A legal residence is the place where an individual has established his home, where he is habitually present, and which he intends to return to when he is away for business or pleasure." Dietz v. City of Medora , 333 N.W.2d 702, 705 (N.D. 1983). "Every person has only one legal residence, as distinguished from the possibility of several actual physical residences." Id. All of the facts and circumstances in an individual's life may be used when considering the factual issue of whether or not there has been a change of legal residence. Id. Legal residence, determined under the rules in N.D.C.C. § 54-01-26, is a question of fact to be determined by the factfinder. Dietz , at 705.

[¶13] If an issue of fact is presented in an original proceeding in this Court, N.D.C.C. § 27-02-17 provides:

If an issue of fact is joined, or an assessment of damages by a jury is necessary, in any action or proceeding commenced in the supreme court, the court, in its discretion, may send the same to some district court, and it there must be determined in the same manner as other issues of fact are tried or other assessments are made, and a return thereof must be made as directed by the supreme court. In such cases, the supreme court may order a special verdict to be found and returned.

Because Martin's residence is a question of fact, we asked the district court for factual findings relating to Martin's residence for the five years preceding the general election. In finding that Martin did not become a North Dakota resident until after November 2016, the district court stated in part:

In considering the testimony from Martin, the Court is also left with evidence and testimony that her actions and intentions regarding her residency often conflicted at various times during the relevant timeframe. However, the Court does specifically find that Martin was a credible witness. She appeared truthful and candid, and nothing in her testimony suggested any ill will or intent both in her current testimony or in her actions throughout the timeframe relevant to this matter.

....

Given all the evidence and testimony, this Court specifically finds that Martin was not a North Dakota resident at the time she cast her vote in the November 2016 election. While Martin had, in part, acted as though she was a North Dakota resident by physically moving to North Dakota, and while she likely had begun the intention of changing domiciles, she had not fully abandoned her former Nevada domicile, and she did not yet have a bona fide intention to change and remain in North Dakota permanently. This finding is based on numerous factors, some of which are more persuasive than others, but none of which are conclusive. Taken

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