Kelsh v. Jaeger

Decision Date28 March 2002
Docket NumberNo. 20020060.,20020060.
Citation2002 ND 53,641 N.W.2d 100
PartiesJerome KELSH, Petitioner, v. Alvin A. JAEGER, in his capacity as Secretary of State, State of North Dakota, Respondent.
CourtNorth Dakota Supreme Court

David R. Bliss, Bliss Law Office, Bismarck, for petitioner.

Wayne K. Stenehjem, Attorney General, Attorney General's Office, Douglas Alan Bahr (appeared), Solicitor General, Attorney General's Office, Bismarck, for respondent and Office of Attorney General.

Jeffrey S. Weikum, Pagel Weikum Law Firm, Bismarck, for North Dakota Democratic-NPL Party.

Thomas D. Kelsch, Kelsch, Kelsch, Ruff & Kranda, Mandan, for North Dakota Republican Party.

PER CURIAM.

[¶ 1] Jerome Kelsh petitions this Court to exercise its original jurisdiction to issue a writ of prohibition enjoining the Secretary of State from administering an election for the office of state senator in District 26 for the 2002 primary and general elections. Kelsh asserts N.D.C.C. § 54-03-01.8 truncates his four-year senate term and thereby violates N.D. Const. art. IV, § 4, requiring a senator's term must be for four years. We hold the language in N.D.C.C. § 54-03-01.8 that allows an incumbent state senator to decide whether to stop an election for state senator in District 26 in 2002 is an impermissible delegation of legislative power, and we strike it. By allowing an election for state senator in District 26 in 2002, N.D.C.C. § 54-03-01.8 provides the electors in this newly redrawn district their constitutional right to elect a state senator from the district. We hold the remainder of the statute, in truncating Kelsh's term, does not violate N.D. Const. art. IV, § 4, and we deny the writ.

I

[¶ 2] A writ of prohibition is an extraordinary remedy to prevent an inferior body or tribunal from acting without or in excess of jurisdiction when there is not a plain, speedy, and adequate remedy in the course of law. N.D.C.C. § 32-35-01; Old Broadway Corp. v. Backes, 450 N.W.2d 734, 736 (N.D.1990). Under N.D. Const. art. VI, § 2, this Court has authority to exercise original jurisdiction and to issue remedial writs necessary to properly exercise its jurisdiction. The power vested in this Court to issue original writs is discretionary and may not be invoked as a matter of right. State ex rel. Kusler v. Sinner, 491 N.W.2d 382, 384 (N.D.1992). It is well-settled that our power to exercise original jurisdiction extends only to those cases in which 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. To warrant the exercise of this Court's original jurisdiction, the interest of the state must be primary, not incidental, and the public—the community at large—must have an interest or right that may be affected. State ex rel. Wefald v. Meier, 347 N.W.2d 562, 564 (N.D.1984).

[¶ 3] The issues in this case involve the people's right to elect representatives to the state Legislature and the Legislature's right to truncate the terms of elected representatives by legislative redistricting. The case involves the people's right of franchise and the Legislature's authority to effectively disenfranchise some of the electorate. Few matters encompass more public interest than issues involving the power of the people to govern themselves through the voting process. See Meier, 347 N.W.2d at 564. We conclude, therefore, this matter is of public interest and warrants our exercise of original jurisdiction.

II

[¶ 4] Kelsh asserts N.D.C.C. § 54-03-01.8, as amended in 2001 by the 57th Legislative Assembly, violates N.D. Const. art. IV, § 4, because the statute effectively reduces his term as an elected senator in District 26 from four years to two years. The 57th Legislative Assembly adopted a redistricting plan after the 2000 federal census. The plan reduced the number of senatorial districts from 49 to 47, fixed the number of senators and representatives, and divided the state into senatorial districts.

[¶ 5] Relevant to this case is N.D. Const. art. IV, § 2, which states, in part:

The legislative assembly shall fix the number of senators and representatives and divide the state into as many senatorial districts of compact and contiguous territory as there are senators. The districts thus ascertained and determined after the 1990 federal decennial census shall continue until the adjournment of the first regular session after each federal decennial census, or until changed by law.
The legislative assembly shall guarantee, as nearly as is practicable, that every elector is equal to every other elector in the state in the power to cast ballots for legislative candidates. A senator and at least two representatives must be apportioned to each senatorial district and be elected at large or from subdistricts from those districts.

Also relevant is N.D. Const. art. IV, § 3, which states:

The legislative assembly shall establish by law a procedure whereby one-half of the members of the senate and one-half of the members of the house of representatives, as nearly as is practicable, are elected biennially.

The 57th Legislative Assembly in 2001 amended N.D.C.C. § 54-03-01.8 to provide:

A senator from an odd-numbered district must be elected in 2002 for a term of four years and a senator from an even-numbered district must be elected in 2004 for a term of four years. Except as otherwise provided in this section, a senator from an even-numbered district in which there is another incumbent senator as a result of legislative redistricting must be elected in 2002 for a term of two years. However, if as a result of legislative redistricting a senator elected in 1998 is placed in an even-numbered district there must be an election in 2002 for a term of two years unless the senator elected in 1998 files by February 15, 2002, a written statement with the secretary of state stating that the senator elected in 1998 agrees that there need not be an election for a senator in 2002 and that the senator elected in 2000 may continue that senator's term; based on this requirement, districts twenty and twenty-six may be required to elect senators in 2002. A senator from an odd-numbered district in which there is another incumbent senator must be elected in 2002 for a term of four years; based on this requirement, district thirty-one must elect a senator in 2002. The term of a senator from an even-numbered district who is placed in an odd-numbered district as a result of legislative redistricting expires as of December 1, 2002; based on this requirement, the term of the senator elected in district twelve in 2000 expires as of December 1, 2002, and district twenty-three must elect a senator in 2002.

[¶ 6] Joel Heitkamp was elected in 1998 to a four-year term as state senator in former District 27. Jerome Kelsh was elected in 2000 to a four-year term as state senator in District 26. As part of the Legislature's 2001 redistricting plan, a substantial portion of former District 27, including Heitkamp's township of residence, was placed in District 26. Section 54-03-01.8, N.D.C.C., requires District 26 to elect a state senator in 2002 for a two-year term unless Heitkamp, the senator who was elected in 1998 and was placed in District 26 by the redistricting plan, filed a written statement by February 15, 2002 agreeing that there need not be an election in District 26 for state senator in 2002. Heitkamp did not file such a statement by February 15, 2002. Consequently, N.D.C.C. § 54-03-01.8 requires District 26 to elect a state senator in 2002 and truncates the term of Kelsh, the incumbent senator in District 26 elected to a four-year term in 2000. Kelsh asserts the statute, by reducing his four-year term to a two-year term, violates N.D. Const. art. IV, § 4, which provides: "Senators and representatives must be elected for terms of four years." Kelsh asks this Court to declare the statute unconstitutional and to issue a writ of prohibition enjoining the Secretary of State from administering a primary and a general election to elect a state senator in District 26 in 2002. The resolution of this issue requires us to construe our state constitution and to determine whether the Legislature, in amending N.D.C.C. § 54-03-01.8, contravened any part of it.

[¶ 7] When interpreting the state constitution, our overriding objective is to give effect to the intent and purpose of the people adopting the constitutional statement. City of Bismarck v. Fettig, 1999 ND 193, ¶ 8, 601 N.W.2d 247. The intent and purpose of a constitutional provision is to be determined, if possible, from the language itself. State v. Hagerty, 1998 ND 122, ¶ 13, 580 N.W.2d 139. We give words in a constitutional provision their plain, ordinary, and commonly understood meaning. Tormaschy v. Hjelle, 210 N.W.2d 100, 102 (N.D.1973). When interpreting constitutional provisions, we apply general principles of statutory construction. Hagerty, at ¶ 13. We must give effect and meaning to every provision and reconcile, if possible, apparently inconsistent provisions. State ex rel. Sanstead v. Freed, 251 N.W.2d 898, 908 (N.D.1977). We presume the people do not intend absurd or ludicrous results in adopting constitutional provisions, and we therefore construe such provisions to avoid those results. North Dakota Comm'n on Med. Competency v. Racek, 527 N.W.2d 262, 266 (N.D.1995).

[¶ 8] This Court addressed predecessor constitutional provisions involving staggered senate terms and the four-year term requirement in State ex rel. Williams v. Meyer, 20 N.D. 628, 127 N.W. 834 (1910). In Meyer, a senator elected to a four-year term in 1908 was required by the Legislature's reapportionment of senate districts to run for reelection in 1910, after having served only two years of his term. In support of his argument that he was entitled to serve out his four-year term, the senator relied on Section 27 of the constitution, the predecessor to N.D. Const. art....

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