Husebye v. Jaeger

Decision Date27 July 1995
Docket NumberNo. 950227,950227
PartiesJeff R. HUSEBYE, as Chairman of the Sponsoring Committee to Refer SB 2202 Passed by the Fifty-Fourth Legislative Assembly, Petitioner, v. Alvin A. JAEGER, Secretary of State, Respondent. Civ.
CourtNorth Dakota Supreme Court

Kathryn L. Dietz (argued), and Stephen D. Little (appearance), Dietz & Little, Bismarck, for petitioner.

Joann C. Toth (argued), Asst. Atty. Gen., and Laurie J. Loveland (appearance), Sol. Gen., Bismarck, for respondent.

VANDE WALLE, Chief Justice.

Jeff Husebye filed an application for an order to show cause requesting that this court exercise its original jurisdiction and direct Alvin Jaeger, the Secretary of State, to accept petitions seeking to refer a legislative enactment. Jaeger responds that he is statutorily precluded from accepting petitions submitted after 5 p.m. on the last day for submitting such petitions. We conclude that the statute relied upon by Jaeger is unconstitutional and that the State Constitution requires the Secretary of State to accept referral petitions until midnight of the 90th day after the date the referred measure was filed with the Secretary of State. We grant the application for the order to show cause and direct Jaeger to accept the disputed petitions.

The 1995 Legislature passed Senate Bill 2202, which amended certain provisions of the workers compensation law. The bill was filed in the Secretary of State's office at 4:48 p.m. on April 6, 1995. Husebye, as chair of a sponsoring committee seeking to refer Senate Bill 2202, delivered a proposed referendum petition to the Secretary of State's office on April 12, 1995. Because Art. III, Sec. 5, N.D. Const., requires that a referendum petition be submitted within 90 days after the measure is filed, Jaeger advised Husebye that the signed petitions would be due by July 5, 1995.

On July 5, 1995, Husebye arrived at the Secretary of State's office shortly before 5 p.m. and submitted 344 petitions. The parties dispute whether Husebye advised Jaeger that additional petitions were on the way, and whether Jaeger told Husebye that no petitions would be accepted after 5 p.m. It is undisputed, however, that Jaeger closed the outer office door at 5 p.m. Husebye asserts that, because Jaeger had advised him that no additional petitions would be accepted, he did not contact others who were waiting for his phone call and directions to deliver the additional petitions.

After leaving the Secretary of State's office, Husebye contacted legal counsel and was advised to attempt further deliveries of the additional petitions that evening. At approximately 7:30 p.m., Husebye telephoned Jaeger at his home and asked if Jaeger would accept additional petitions. Jaeger responded that he would not. At approximately 10:45 p.m., Husebye attempted to deliver the additional petitions to personnel on duty at the State Capitol. He was denied entry to the building by security personnel. Finally, at approximately 11:30 p.m., Husebye mailed the remaining petitions to the Secretary of State's office by certified mail. The package was postmarked July 5, 1995, and was received by the Secretary of State's office on July 6, 1995. Deeming the submission untimely, Jaeger returned the unopened package of petitions to Husebye, and Husebye gave the package to his attorney for safekeeping.

Jaeger subsequently determined that the 344 petitions submitted before 5 p.m. on July 5, 1995, contained 12,409 signatures, 367 short of the 12,776 signatures required to refer a legislative enactment. Husebye does not quarrel with that determination. The disputed petitions purport to contain 587 signatures. Jaeger advised Husebye that the referral attempt had failed, and Husebye filed this application for an order to show cause seeking expedited relief from this court. 1

All decisions of the Secretary of State regarding referendum petitions or the petition process are subject to review by the Supreme Court in the exercise of its original jurisdiction. Art. III, Secs. 6 & 7, N.D. Const. These provisions are self-executing and mandatory, Art. III, Sec. 1, N.D. Const., and our authority to review the Secretary of State's decisions on these matters is without limitation or qualification. Municipal Services Corp. v. Kusler, 490 N.W.2d 700 (N.D.1992); Preckel v. Byrne, 62 N.D. 356, 243 N.W. 823 (1932). In conducting our review, we independently examine the actions of the Secretary of State to determine whether he has complied with the law. Municipal Services Corp., supra.

In support of his decision to reject petitions submitted after 5 p.m., Jaeger relies upon Section 16.1-01-09(7), N.D.C.C.:

"A petition must be submitted to the secretary of state by five p.m. on the day designated as the deadline for submitting the petition."

Husebye contends that the statute conflicts with Art. III, Sec. 5, N.D. Const., which provides in part:

"A referendum petition may be submitted only within ninety days after the filing of the measure with the secretary of state."

Art. III, Sec. 1, N.D. Const., restricts the legislature's authority to enact laws affecting the power of 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."

The dispositive question in this case is whether Section 16.1-01-09(7), N.D.C.C., is in conflict with the intent of the people in directing that referral petitions be submitted within 90 days after the measure is filed and limiting the legislature to the enactment of laws which facilitate, not hamper, the referral power.

This court held in State v. Richardson, 16 N.D. 1, 109 N.W. 1026, 1029 (1906): "Unless the contrary is fixed by statute, a day extends over the 24 hours from one midnight to the next midnight." Other courts have also recognized that the term "day" generally means the full twenty-four hour period running from midnight to midnight. See, e.g., State v. Sheets, 338 N.W.2d 886 (Iowa 1983); Thomas v. Department of Corrections, 430 So.2d 1153 (La.Ct.App.1983); Nelson v. Sandkamp, 227 Minn. 177, 34 N.W.2d 640 (1948); Leach v. Chu, 150 A.D.2d 842, 540 N.Y.S.2d 596 (1989); Meisel v. Piggly Wiggly Corp., 418 N.W.2d 321 (S.D.1988); Johnston v. Board of Trustees, 661 P.2d 1045 (Wyo.1983); see also 74 Am.Jur.2d Time Sec. 11 (1974); 86 C.J.S. Time Sec. 12 (1954). Webster's New World Dictionary 361 (2nd ed. 1982), says that the "civil or legal day is from midnight to midnight." Finally, the common law rule was that a day consists of the full twenty-four hours and an obligation required to be performed within a certain number of days may be performed until midnight of the final day. II Blackstone, Commentaries *141.

Because the power of the people to reject laws under the power of the referendum is as broad as the power of the legislature to enact laws, Dawson v. Tobin, 74 N.D. 713, 24 N.W.2d 737 (1946), we presume that the people intended the normal, broad, and generally accepted meaning of the term "day." See, e.g., State ex rel. Backes v. A Motor Vehicle, 492 N.W.2d 595 (N.D.1992); Cardiff v. Bismarck Public School District, 263 N.W.2d 105 (N.D.1978). In requiring that petitions be submitted to the Secretary of State within 90 days, the people thereby gave petitioners a full twenty-four hour period on the 90th day to submit petitions. In reaching this conclusion, we are guided by the principle that referendum provisions in the constitution must be liberally construed, and any doubt should be resolved in favor of the exercise of this right by the people. McCarney v. Meier, 286 N.W.2d 780 (N.D.1979). Accordingly, we hold that Art. III, Sec. 5, N.D. Const., allows submission of referral petitions until midnight of the 90th day.

We are aware that, in the specific context of filing election petitions, a split of authority has developed. Numerous courts hold that the generally accepted meaning of "day" applies, so that a petition may be filed at any time until midnight of the last day. See, e.g., Application of Byrne, 19 N.J.Super. 313, 88 A.2d 283 (1952); In re Norton, 34 A.D. 79, 53 N.Y.S. 1093 (1898); Cross v. Cohen, 183 Misc. 611, 50 N.Y.S.2d 42 (Sup.Ct.1944); State ex rel. Haffner v. Green, 160 Ohio St. 189, 115 N.E.2d 154 (1953); State ex rel. Jones v. Board of Deputy State Supervisors, 93 Ohio St. 14, 112 N.E. 136 (1915); Earl v. Lewis, 28 Utah 116, 77 P. 235 (1904). Other jurisdictions, however, have held that nominating petitions must be filed in the office of the appropriate official before the close of regular business hours on the final day. See, e.g., Daniels v. Cavner, 404 Ill. 372, 88 N.E.2d 823 (1949); Johnson v. Holm, 198 Minn. 192, 269 N.W. 405 (1936); In re Norton, 25 Misc. 48, 53 N.Y.S. 924 (Sup.Ct.), reversed, 34 A.D. 79, 53 N.Y.S. 1093 (1898); State ex rel. Earley v. Batchelor, 15 Wash.2d 149, 130 P.2d 72 (1942); State ex rel. McQuesten v. Hinkle, 130 Wash. 525, 228 P. 299 (1924).

In determining which line of cases is persuasive in interpreting the North Dakota electorate's intent in enacting the 90-day requirement in Art. III, Sec. 5, N.D. Const., we look to the language construed in each case. Those cases holding that petitions must be filed by the close of normal business hours on the final day involve statutory language requiring that the documents be "filed" with a particular officer by a particular date. Many of these cases stress the nature of filing, which requires more than mere submission to the officer and includes notice to the general public by inclusion in the official records of the office.

Our constitutional provision does not require that the referendum petition be filed within 90 days, but provides: "A referendum petition may be submitted only within ninety days after the filing of the measure with the secretary of state." Art. III, Sec. 5, N.D. Const. [Emphasis added]. Prior to 1978, this constitutional provision did use the term...

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