Haugland v. Meier, 10497

• Decision Date: 17 October 1983
• Docket Number: No. 10497,10497
• Citation: 339 N.W.2d 100
• Parties: 13 Ed. Law Rep. 1085 Brynhild HAUGLAND, Chester Reiten and Rolland Redlin, Petitioners, v. Ben MEIER, Secretary of State, State of North Dakota, Respondent. Civ.
• Court: North Dakota Supreme Court

Page 100

339 N.W.2d 100

13 Ed. Law Rep. 1085

Brynhild HAUGLAND, Chester Reiten and Rolland Redlin, Petitioners, v. Ben MEIER, Secretary of State, State of North Dakota, Respondent.

Civ. No. 10497.

Supreme Court of North Dakota.

Oct. 17, 1983.

McGee, Hankla, Backes & Wheeler, Minot, for petitioners; argued by Orlin W. Backes, Minot.

Robert O. Wefald, Atty. Gen., and Terry L. Adkins, Asst. Atty. Gen., Bismarck, for respondent; argued by Attorney General Wefald.

Rosenberg, Evans, Moench & Baird, Bismarck, for sponsors; argued by Dale W. Moench, Bismarck.

SAND, Justice.

This is an original proceeding. The petitioners, for the second time, pursuant to Article III, Sec. 7, of the North Dakota Constitution, requested this Court to review and reverse the Secretary of State's approval of the petition as to form to refer House Bill 1500, enacted by the 1983 Legislative Assembly, changing the name of Minot State College to Dakota Northwestern University.

The respondent Secretary of State, and the sponsors of the referral petition, filed returns to the request and presented arguments.

The sponsors, before circulating the petition, and pursuant to Art. III, Sec. 2, of the North Dakota Constitution, presented to and obtained the Secretary of State's approval as to form. ¹

On the first challenge we reversed and set aside the decision of the Secretary of State and enjoined him from placing House Bill 1500 on the ballot because the petition contained an impermissible extraneous statement of intent. Haugland v. Meier, 335 N.W.2d 809 (N.D.1983). We reached a similar conclusion in Lips v. Meier, 336 N.W.2d 346 (N.D.1983). In this proceeding the petitioners contended that the Secretary of State should not have approved the petition because it contained an impermissible introductory statement designating the next general election for approval or rejection of the Bill in violation of Art. III, Sec. 2 and Sec. 5, of the North Dakota Constitution, and that the Bill was not subject to suspension under present circumstances. The statement in question is:

"TO THE SECRETARY OF STATE, STATE OF NORTH DAKOTA:

We, the undersigned, being qualified electors of the State of North Dakota, consisting of more than two percent of the resident population of the state as of the last federal decennial census, by this petition request that House Bill No. 1500 and the whole thereof passed at the Forty-eighth Legislative Assembly of North Dakota be placed upon the ballot and that it be submitted by the Secretary of State for either approval or rejection by the electors of the State of North Dakota at the next general election."

The statement in the first Haugland case was almost identical to this one except it had "primary election" instead of "general election." It also had the additional following language:

"This election is to be held on or about June 12, 1984.

"We do this in accordance with the provisions of Article III of the North Dakota Constitution."

This statement, however, was not challenged in the first Haugland case.

This poses an interesting ² question: Why the change?

The pertinent parts of the constitutional provisions relating to the questions raised are as follows:

"... the people reserve the power ... to approve or reject legislative Acts, or parts thereof, by the referendum .... This article is self-executing and all of its provisions are mandatory. Laws may be enacted to facilitate and safeguard, but not to hamper, restrict, or impair these powers." Art. III, Sec. 1, N.D.Const.

"A petition to initiate or to refer a measure shall be presented to the secretary of state for approval as to form. A request for approval shall be presented over the names and signatures of twenty-five or more electors as sponsors, one of whom shall be designated as chairman of the sponsoring committee. The secretary of state shall approve the petition for circulation if it is in proper form and contains the names and addresses of the sponsors and the full text of the measure." Art. III, Sec. 2, N.D.Const.

"... A referendum petition may be submitted only within ninety days after the filing of the measure with the secretary of state. The submission of a petition shall suspend the operation of any measure enacted by the legislative assembly except emergency measures and appropriation measures for the support and maintenance of state departments and institutions.... A referred measure may be voted upon at a statewide election or at a special election called by the governor." Art. III, Sec. 5, N.D.Const.

"The secretary of state shall pass upon each petition, and if he finds it insufficient, he shall notify the 'committee for the petitioners' and allow twenty days for correction or amendment. All decisions of the secretary of state in regard to any such petition shall be subject to review by the supreme court...." Art. III, Sec. 6, N.D.Const.

"All decisions of the secretary of state in the petition process are subject to review by the supreme court in the exercise of original jurisdiction...." Art. III, Sec. 7, N.D.Const.

"If a majority of votes cast upon an initiated or a referred measure are affirmative, it shall be deemed enacted. An initiated or referred measure which is approved shall become law thirty days after the election, and a referred measure which is rejected shall be void immediately...." Art. III, Sec. 8, N.D.Const.

In Haugland number 1, supra at 811, we specifically noted that "Unlike in McCarney [ McCarney v. Meier, 286 N.W.2d 780 (N.D.1979) ], we have in this case a challenge of the approval of the form of the petition at a time when a determination of insufficiency still affords time for correction or amendment." Even though we are again reviewing the Secretary of State's approval of the petition as to form, in this instance the deadline for submitting petitions to the Secretary of State has gone by, thus no time is available within which corrections or amendments can be made as to the form of the petitions. However, in Lips, supra, we also had under consideration the approval as to form of a referral petition by the Secretary of State when, for all practical purposes, the sponsors had very little time to make the corrections and secure signatures again. In Lips we emphasized the difference between procedural and substantive material. [See State ex rel. Turner v. Limbrecht, 246 N.W.2d 330 (Iowa 1976) ].

We also note that in the instant case the sponsors do not have the twenty days allowed under Art. III, Sec. 2, for correction or amendment. This emphasizes the importance of the actions of the Secretary of State in approving or disapproving a petition as to form.

The people of this State, in adopting Art. III, Sec. 2, imposed the additional duty and responsibility of examining and approving the petition prior to circulation upon the Secretary of State to assure that the petition, as to form, is correct and thus avoid a subsequent challenge as to form. It was also designed to give advance publicity of any referral effort. See Minutes of the Constitutional Convention. The duty of the Secretary of State under Sec. 2 is different and should not be confused with the responsibility under Sec. 6 pertaining to the sufficiency of the petition after the signatures have been obtained and the petitions are submitted to the Secretary of State. The sponsors, in presenting a petition for approval as to form, are not allowed twenty days in which to make corrections or amendments as allowed in Sec. 6. The sponsors must act within the ninety-day deadline.

The responsibility under Sec. 2 requires more than a perfunctory approval which may actually defeat the purpose and intent of Sec. 2. The referral process has basically one objective, that is to cause the measure or bill to be placed on the ballot for a vote of the people. To use it for any other purpose or objective, including campaigning for or against the item referred, is improper and may eventually hinder or destroy the process. An elector signing the petition is not obligated morally or legally to vote "no" on the referral item. Such elector may vote in favor of or against the item after it is on the ballot.

The Secretary of State, under Sec. 2, is expected and required to exercise prudent judgment in approving a petition as to form to preserve the purpose and objective of the referral process. Merely because a petition contains the names and addresses of the sponsors and the full text of the measure does not entitle it to be approved if it also contains other impermissible statements. Whenever a petition is submitted for approval as to form, the Secretary of State is expected to recognize nonessential, questionable, confusing, misleading, inaccurate items or statements that serve no legitimate useful purpose, including statements against the measure, and require them to be eliminated. If appropriate action by the Secretary of State is taken at this stage (presentation of petitions as to form under Sec. 2) and the ninety days have not expired, any correction, amendment, or elimination may easily be accomplished with very little effort or cost and probably will avoid subsequent problems, and save expenditure of time and money, as well as eliminate some emotional frustrations. Inattention to the constitutional duties or the failure to perform them properly plays favorably into the hands of those opposed to the referral process and may ultimately cause its demise.

The respondent and sponsors argued that the statement was only a request. The term "request" is used in the statement. However, that in itself is not dispositive of the issue. The sponsors and signers may have been led to believe, and were under the erroneous impression, that the request was mere pro forma and that the Secretary of State, the respondent, was required to grant the request as a matter of law. We do not know how this statement may have influenced any signers. Nor was any explanation given.

The delegates...