Hendrix v. Jaeger
| Docket Number | 20220233 |
| Decision Date | 07 September 2022 |
| Citation | 979 N.W.2d 918 |
| Parties | Jared HENDRIX, as chairman of the North Dakota for Term Limits Sponsoring Committee, and North Dakota for Term Limits, Petitioners v. Alvin A. JAEGER, in his official capacity as North Dakota Secretary of State, Respondent |
| Court | North Dakota Supreme Court |
Edward D. Greim (argued) and Matthew R. Mueller (on brief), Kansas City, Missouri, and Jesse H. Walstad (appeared), Bismarck, North Dakota, for petitioners.
David R. Phillips, Special Assistant Attorney General (argued), Matthew A. Sagsveen, Solicitor General (appeared), and the Honorable Drew H. Wrigley, Attorney General (appeared), Bismarck, North Dakota, for respondent.
PETITION GRANTED.
[¶1] Jared Hendrix, as chairman of the North Dakota for Term Limits Sponsoring Committee, and North Dakota for Term Limits (collectively, "Petitioners" or "Committee") petition for a writ of mandamus requiring the Secretary of State to place the Term Limits Initiative on the November 8, 2022, general election ballot. The Secretary of State rejected 29,101 signatures on circulated petitions and concluded the initiative did not qualify for placement on the ballot. The Petitioners argue the Secretary of State improperly invalidated signatures on the basis of a finding of notary fraud relating to two circulators, a pattern of notary fraud relating to one notary, violation of the pay-per-signature ban, and other issues. We conclude the Secretary of State misapplied the law by excluding signatures on the basis of a determination that a pattern of likely notary violations on some petitions permitted his invalidation of all signatures on all petitions that were sworn before the same notary. Because adding the signatures invalidated for imputed fraud to the 17,265 other signatures accepted by the Secretary of State places the initiative over the constitutional requirement of 31,164, we grant the Committee's petition and issue a writ of mandamus requiring the Secretary of State to place the Term Limits Initiative on the November 8, 2022, ballot.
[¶2] In July 2021, the Committee submitted the Term Limits Initiative petition to the Secretary of State for review and approval. The proposed initiative would create a new article in the North Dakota Constitution imposing term limits on the Governor and members of the Legislative Assembly. The Secretary of State approved the petition for circulation. To place the initiative on the November 2022 ballot, the Committee was required to gather 31,164 qualified elector signatures.
[¶3] On February 15, 2022, the Secretary of State received 1,441 petition packets containing 46,366 elector signatures from the Committee. On March 22, 2022, the Secretary of State notified the Committee that 29,101 signatures were invalid and thus it had failed to submit enough valid signatures to place the initiative on the November ballot. He informed the Committee that he would not certify the initiative for placement on the ballot. The Committee requested an opportunity to review the petitions and the specific reasons for the rejection of each signature. In the following weeks, the Secretary of State returned the petitions, provided a spreadsheet outlining his reasons for rejecting signatures, and advised the Committee it had 20 days to review the rejections and provide any corrections.
[¶4] The Secretary of State invalidated every elector signature appearing on petitions gathered by circulators whose affidavits were notarized by Zeph Toe. The Secretary of State informed the Committee that In reaching this decision, two petition circulators raised "red flags" for the Secretary of State: Chloe Lloyd and Ramona Morris. The Secretary of State determined their signatures on circulator affidavits attached to the petitions were inconsistent. As a result of his opinion that these signatures "vary wildly," the Secretary of State inferred they had not been signed in the presence of Toe when he notarized them, which would be unlawful and raise serious credibility concerns about Toe.
[¶5] In August 2022, the Committee petitioned the Court for a writ of mandamus requiring the Secretary of State to place the Term Limits Initiative on the November 8, 2022, general election ballot. We ordered the district court to hold an evidentiary hearing and make findings of fact on the Secretary of State's disqualification of petition signatures. On August 23, 2022, the court held the evidentiary hearing.
[¶6] The people of North Dakota reserved to themselves the power to propose and adopt constitutional amendments by the initiative. N.D. Const. art. III, § 1. "Laws may be enacted to facilitate and safeguard, but not to hamper, restrict, or impair these powers." Id. "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." N.D. Const. art. III, § 7 ; see also N.D. Const. art. III, § 6 (). We have mandatory original jurisdiction under N.D. Const. art. III, §§ 6, 7. Zaiser v. Jaeger , 2012 ND 221, ¶ 11, 822 N.W.2d 472 ; N.D. State Bd. of Higher Educ. v. Jaeger , 2012 ND 64, ¶¶ 10, 13, 815 N.W.2d 215.
[¶7] The Secretary of State has a constitutional duty to pass upon the sufficiency of initiative petitions. N.D. Const. art. III, § 6. According to N.D.C.C. § 16.1-01-10, this duty must be completed within thirty-five days. We have recognized the Secretary of State "has some discretion in passing on the sufficiency of submitted petitions." Zaiser , 2012 ND 221, ¶ 19, 822 N.W.2d 472. However, these responsibilities are "limited" and "ministerial in nature." Haugen v. Jaeger , 2020 ND 177, ¶ 4, 948 N.W.2d 1 (quoting Bd. of Higher Educ. , 2012 ND 64, ¶ 10, 815 N.W.2d 215 ). If the Secretary of State's decision "involves the exercise of some discretion, his decision is entitled to some deference; however, to the extent his decision involves a question of law, the review is de novo, and neither party has the burden of proof." Zaiser , at ¶ 19.
[¶8] The Petitioners argue the Secretary of State erred by invalidating 15,740 otherwise valid signatures merely because they appeared on petitions gathered by circulators whose affidavits were notarized by Zeph Toe. The March 22, 2022, letter from the Secretary of State to the Committee stated, The 751 petitions having a circulator affidavit notarized by Zeph Toe contained 21,684 signatures, 5,944 of which were deficient for other reasons and 15,740 of which were otherwise "valid" and disqualified solely on the basis of the Zeph Toe notarization.
[¶9] At all relevant times, Toe has been a North Dakota notary in good standing. On April 11, 2022, during the 20-day correction period, the Committee provided the Secretary of State an affidavit from Toe attaching some of his notary logbook entries. Toe attested he followed the law in identifying the circulators appearing before him and witnessed the circulators sign the petitions before he notarized them. Lloyd, the circulator whose signatures raised suspicion, also provided an affidavit, dated April 14, 2022, stating the disputed signatures were her signatures. The Secretary of State did not consider either affidavit for purposes of correction, explaining Zeph Toe's affidavit "was inaccurate because the signatures varied too much among the various petitions; so I can't believe it." The district court disregarded these affidavits as untimely and untruthful. In original jurisdiction cases such as this, we do not apply the clearly erroneous standard, but rather give the district court's findings of fact "appreciable weight." Berg v. Jaeger , 2020 ND 178, ¶¶ 14-15, 948 N.W.2d 4.
[¶10] The Secretary of State had no more than 35 days to pass upon the sufficiency of the initiative petition under N.D.C.C. § 16.1-01-10, which in this case was March 22, 2022. After the Secretary of State's 35-day review period closes, Article III, § 6, of the North Dakota Constitution allows twenty days to correct an insufficient petition from the date the Secretary of State notifies the sponsoring committee. Although the Committee was initially notified of the insufficient petition on March 22, 2022, the Committee did not receive the spreadsheet outlining the precise reasons for excluding each signature until April 5, or the last of the returned petitions until April 11. The Secretary of State does not contest the timeliness of these affidavits, and we conclude both were timely submitted to the Secretary of State. The Secretary of State explained he viewed the affidavits as untruthful on the basis of his belief that the signatures on the circulator affidavits varied too much to be anything other than fraudulent. As a result, he determined that both Lloyd and Toe lacked credibility to submit an affidavit that should be considered. We consider all information available to the Secretary of State when the final decision was made at the end of the correction period.
[¶11] We begin our analysis by stating what we do not decide here. The Secretary of State determined that differences in handwriting by petition circulators Chloe Lloyd and Ramona Morris in their affidavits purportedly sworn before notary Zeph Toe were sufficient on their own (despite supplemental affidavits disputing the alleged fraud) to find the notarial act by Toe was fraudulent. We need not review whether that finding was supported by the information available to the...
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