Derus v. Higgins, C8-96-1993
| Decision Date | 09 October 1996 |
| Docket Number | No. C8-96-1993,C8-96-1993 |
| Citation | 555 N.W.2d 515 |
| Parties | 24 Media L. Rep. 2521 John DERUS, Contestant, v. Linda HIGGINS, Patrick H. O'Connor, County Auditor, Hennepin County, Contestees, v. COWLES MEDIA COMPANY, d/b/a The Star-Tribune, An Indispensable Party. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
A purported notice of an election contest which states no justiciable claim under the Minnesota election laws, specifically Minn.Stat. cc. 209 and 211B, must be dismissed without further proceedings.
Best & Flanagan, P.L.L.P., Brian F. Rice, Elliot C. Rothenberg, Minneapolis, for Contestant John Derus.
Weinblatt & Associates, Alan W. Weinblatt, Lawrence E. Meuwissen, St. Paul, for Contestee, Linda Higgins.
Hennepin County Attorney's Office, Patrick Diamond, Minneapolis, for Contestees, Patrick O'Connor, County Auditor, Hennepin County.
Faegre & Benson L.L.P., John D. French, John P. Borger, Elizabeth L. Taylor, Minneapolis, for Indispensable Party, Cowles Media Company, d/b/a The Star-Tribune.
Considered and decided by the court en banc.
John Derus, an unsuccessful candidate in the September 10, 1996 primary election for nomination as the Democratic-Farmer-Labor party's candidate in the general election to the Minnesota Senate, District 58, has filed a verified notice of an election contest in Hennepin County District Court. See Minn.Stat. § 209.02 (1994). We dismiss the notice of contest.
Summarily, Derus asserts that the election was tainted when the Minneapolis Star-Tribune newspaper erroneously printed his photograph under a headline concerning charity fraud. More specifically, Derus alleges that the Star-Tribune has a history of criticizing him and that the placement of his widely-recognized picture under the "charity fraud" headline on the day of the primary election constituted "a false and misleading article creating the impression that Derus was somehow connected with dishonest conduct." Derus further alleges that the actions of the Star-Tribune violated Minnesota election law and the Minnesota Constitution by misrepresenting him to the public and by engaging in a fraud which obstructed or prevented the free exercise of the right to vote by voters in District 58. Significantly, while Derus does not allege that Linda Higgins violated any state election law or that she bears any personal responsibility for the article, he asserts that she, the successful candidate and contestee herein, should be denied the DFL nomination and a special primary election should be held.
Derus seeks the following remedies for the claimed violations: (1) the invalidation and revocation of the certificate of nomination issued to Higgins; (2) an order of the court directing that no names appear on the general election ballot for District 58 until this contest is completed; (3) an order of the court directing that a special primary election be held either before the November 5, 1996 general election or, if that is not possible or practical, that the general election for District 58 be delayed until after a called special primary election is held; (4) reimbursement by the Star-Tribune of all costs and attorney fees incurred by the candidates and of all costs incurred by Hennepin County in conducting additional elections; and (5) other appropriate relief. 1
Upon the filing of the notice of contest, the district court administrator submitted the notice to the Chief Justice of this court in accordance with Minn.Stat. § 209.10, subd. 1, for his provision to the parties of a list of all district judges of the state to allow those parties to exercise alternative strikes until but one named judge remained. Minn.Stat. § 209.10, subd. 2. By order filed on October 1, 1996 2 we stayed district court proceedings pending our consideration of the motion to dismiss which Linda Higgins had filed in the district court. We acknowledged in that order and confirm here today the need for immediate and prompt consideration of the motion because implicated by these proceedings is the general election to be held on November 5, 1996.
In this most unusual circumstance, 3 we exercise our inherent authority to consider the threshold question of whether the document denominated as a "notice of contest" presents a justiciable claim for relief under the Minnesota election laws. 4 In our view only if it does will the Chief Justice perform the ministerial task of providing the list of judges to the parties as contemplated by Minn.Stat. § 209.10, subd. 2. Alternatively, if it does not, the interests of the citizens of the State of Minnesota and the contestee compel a dismissal of this action without further proceedings. To resolve that threshold question, we are called upon to examine the substance of Derus' allegations, not just the form of the notice.
Derus claims that an activity of a third party, the Star-Tribune, violates the Fair Campaign Practices Act's prohibitions against undue influence and fraud in an election. Minn.Stat. § 211B.07 provides as follows:
A person may not directly or indirectly use or threaten * * * undue influence * * * against an individual to compel the individual to vote for or against a candidate * * *. Abduction, duress, or fraud may not be used to obstruct or prevent the free exercise of the right to vote of a voter at a primary * * *.
Nevertheless, he invokes none of the remedies provided by the Fair Campaign Practices Act for an alleged violation of its multiple provisions. The Act imposes criminal penalties in the form of a gross misdemeanor or misdemeanor conviction upon its violators, without regard for their identity--that is, whether the alleged violator is a candidate, a campaign worker or an unrelated third-party. See, e.g., Minn.Stat. §§ 211B.07, .16 and .19. A candidate who violates a provision of the Act may face forfeiture of nomination, in addition to the criminal penalties, under circumstances defined in the statute. See Minn.Stat. § 211B.17. Here, in the absence of an allegation of wrongdoing by the candidate Higgins or by one acting with her authority or consent, the forfeiture provision is inapplicable and we decline to judicially expand its language to afford a remedy for a claimed violation by a noncandidate.
Therefore, although Derus claims an entitlement to maintain an "election contest" on the basis of a "deliberate, serious, and material violations of the Minnesota election law," Minn.Stat. § 209.02, to the extent the allegations of wrongdoing with regard to the conduct of this third party only implicate the Act, the remedies provided therein are exclusive. We therefore hold that while the contestant has attempted to avail himself of broad remedial relief under the election laws by denominating this proceeding as an election contest, even accepting as true for those purposes the allegations of wrongdoing included in the "notice," no justiciable claim for relief thereunder has been asserted. The purported notice of contest must be dismissed. 5 Accordingly, as there exists no "election contest" within the statutory structure, it follows that the Chief Justice is not required to provide the list contemplated by Minn.Stat. § 209.10, subd. 2. Holding otherwise would disrupt the settled understanding of the Minnesota election law. Thirty years ago, this court held that third-party violations of election law cannot provide the basis for contesting a judicial election. Munnell v. Rowlette, 275 Minn. 92, 100, 145 N.W.2d 531, 536 (1966). That Munnell stated a general rule is made clear by our statements in previous cases. See, e.g., Phillips, 248 Minn. at 466-68, 80 N.W.2d at 520 (); Hawley v. Wallace, 137 Minn. 183, 185, 163 N.W. 127, 128 (1917) (). Nothing in the current version of the election laws indicates that the rule should be different in this case.
Moreover, our precedent indicates that the Fair Campaign Practices Act forfeiture provisions apply to election contests based on a successful candidate's violation of that Act. See In re Contest of Election in DFL Primary Held on Tuesday, Sept. 13, 1983, 344 N.W.2d 826, 831-32 (Minn.1984) (); id. at 833 (Wahl, J., dissenting) (same); In re Election of Ryan, 303 N.W.2d 462, 467-68 (Minn.1981) (same); Schmitt v. McLaughlin, 275 N.W.2d 587, 591 (Minn.1979)(same). Again, the Act's forfeiture provisions require candidate involvement in misconduct before forfeiture is proper. Minn.Stat. § 211B.17. We conclude that the legislature must not have intended for election contests to be based on independent misconduct of third parties. If the legislature wishes to change the common and long-standing construction of the election contests statute, it clearly has the authority to do so.
The legislature has crafted a statutory structure for the orderly conduct of elections and for remediation in the event of a violation of those laws. E.g., Phillips, 248 Minn. at 476, 80 N.W.2d at 529-29. "It is properly the function of the legislature and not that of the courts to change the obligations imposed upon one who desires to commence an election contest." Powell v. Johnson, 304 Minn. 534, 536, 231 N.W.2d 926, 927 (1975). We therefore commend to the legislature an inquiry into whether, under the circumstances of record, it should design a statutory remedy not now provided for conduct such as alleged here and submit this decision to it for...
To continue reading
Request your trial
-
Bergstrom v. McEwen, A21-0082
...can be granted to challenge the legal sufficiency of the grounds on which an election contest is based. See, e.g. , Derus v. Higgins , 555 N.W.2d 515, 516 n.4 (Minn. 1996) (stating that a motion to dismiss an election contest was properly brought under Rule 12.02(e) ); Franson v. Carlson , ......