Municipal Services Corp. v. Kusler

• Decision Date: 17 September 1992
• Docket Number: No. 920244,920244
• Citation: 490 N.W.2d 700
• Parties: MUNICIPAL SERVICES CORPORATION and Gloria David, Petitioners, v. Jim KUSLER, as Secretary of State, State of North Dakota, Respondent. Civ.
• Court: North Dakota Supreme Court

Page 700

490 N.W.2d 700

MUNICIPAL SERVICES CORPORATION and Gloria David Petitioners, v. Jim KUSLER, as Secretary of State, State of North Dakota Respondent.

Civ. No. 920244.

Supreme Court of North Dakota.

Sept. 17, 1992.

Raymond T. Reott (argued), Gretchen M. Livingston (appearance) of Jenner & Block, Chicago, Ill., David J. Hogue (appearance) of Pringle & Herigstad, Minot, and Thomas F. Kelsch (appearance) of Kelsch, Kelsch, Ruff & Austin, Mandan, for petitioners.

Elaine Ayers (argued) and Laurie J. Loveland (appearance) Atty. General's Office, Bismarck, for respondent.

LEVINE, Justice.

Municipal Services Corporation (MSC), an owner and operator of a solid waste disposal facility in North Dakota, and Gloria David, a North Dakota citizen and taxpayer, applied to this court for an order directing Jim Kusler, the Secretary of State (Secretary), to demonstrate why he should not be enjoined from certifying on the November 3, 1992, election ballot an initiated measure that establishes an "Environmental Protection and Recycling Fund" and imposes a fee on the disposal or incineration of waste in this state. We issued an order on August 20, 1992, prohibiting the Secretary from certifying the petition containing the initiated measure until further order of this court. The Secretary filed a response to the application and also filed separate motions to dismiss the application and to vacate or modify our August 20, 1992, order.

Oral arguments were presented before this court on September 3, 1992. On that same date, because the time limits for placing the initiated measure on the ballot required prompt resolution of this dispute, we issued a dispositive order stating that this explanatory opinion would follow. In that order, we held that the ballot title prepared by the Secretary was legally sufficient and that the Secretary's approval of the initiated petition as to its form was proper. We vacated the August 20, 1992, temporary injunction and denied the request for permanent injunctive relief.

Pursuant to Art. III, Sec. 2, of the North Dakota Constitution, the sponsors of the initiated measure presented their petition to the Secretary for approval as to form. The Secretary prepared a ballot title which was approved by the attorney general and affixed to the petition as required by statute. After circulating the petition to obtain necessary signatures, the sponsors submitted it to the Secretary for placing the initiated measure on the November 3, 1992, ballot.

In support of their application for a permanent injunction, MSC and David mounted two attacks: (1) the ballot title, prepared by the Secretary, did not accurately and fairly represent the initiated measure and (2) the Secretary should not have approved the petition "as to form."

Art. III, Sec. 6, N.D. Const., makes "[a]ll decisions of the secretary of state in regard to any [initiative or referendum] petition ... subject to review by the supreme court." Art. III, Sec. 7, N.D. Const., makes "[a]ll decisions of the secretary of state in the petition process ... subject to review by the supreme court in the exercise of original jurisdiction." These provisions are self-executing and mandatory. Art. III, Sec. 1, N.D. Const. So, our authority to review the Secretary's decisions on these matters is without limitation or qualification. Preckel v. Byrne, 62 N.D. 356, 243 N.W. 823 (1932).

Our self-executing special jurisdiction under Art. III, Secs. 6 and 7, N.D. Const., as referred to in Preckel, id., is to be contrasted with our jurisdiction under Art. VI, Sec. 2, N.D. Const., which gives us discretionary original jurisdiction. For example, in State ex rel. Wefald v. Meier, 347 N.W.2d 562 (N.D.1984), the attorney general petitioned this court for an appropriate writ, requiring us to review different ballot statements on a referendum petition prepared by the attorney general's office and the Secretary of State. We exercised our discretionary jurisdiction under Art. VI, Sec. 2, N.D. Const., in that case. Because the petition here was brought under Art. III, N.D. Const., we exercise our mandatory jurisdiction under that article, and State ex rel. Wefald v. Meier, id., is not controlling on the jurisdiction issue. In conducting our review, we independently examine the actions of the Secretary to determine whether he has complied with the law. See, e.g., Lips v. Meier, 336 N.W.2d 346 (N.D.1983).

The applicants argued that the ballot title, prepared and affixed to the petition by the Secretary, was inaccurate and did not fairly represent the proposed initiated measure.

Section 16.1-01-09, N.D.C.C., requires the Secretary, upon receiving a petition to initiate or refer a measure, to draft "a short and concise statement which must fairly represent the measure." That statement is called the "ballot title" which, when approved by the attorney general, must be affixed to the petition.

The full text of the ballot title, prepared by the Secretary for this initiated measure, states:

"This initiated measure establishes an environmental protection and recycling fund from moneys collected from fees for waste disposal or incineration in North Dakota. The fund shall be used for recycling programs and for cleanup of land, air or water pollution.

"The measure establishes a 50 cent per ton fee on waste generated within 100 miles from the final disposal site. The measure also establishes a fee on waste generated more than 100 miles from the final disposal point, equal to the cost of waste disposal at the disposal point closest to where it was generated less the actual cost of disposal at the final disposal facility. Waste site operators must collect the fee and may retain 1% of the fee collected." (Emphasis added.)

The applicants asserted that the ballot title failed in four ways to fairly represent the initiated measure: (1) it failed to inform the voters that the initiated measure imposed a tax on the people of the state, rather than a fee; (2) it did not inform the voters that the effect of the measure would be that those who generate waste would pay for the charges imposed by the measure, not those who operate disposal facilities or transport waste; (3) it inaccurately described the method of computing the fee imposed on waste generated beyond 100 miles from a disposal site; and (4) it did not inform the voters that the proceeds to be used for recycling and pollution cleanup would be reduced by administrative expenses.

The applicants' objections to the ballot title demonstrate a misunderstanding of the purpose of the ballot title. The statutory directive is that the Secretary prepare a "short and concise" statement "fairly" representing the proposed measure. We agree with the Arkansas Supreme Court's analysis of the purpose and scope of a ballot title:

"[T]he ballot title is designed to adequately summarize the provisions of the proposal and be complete enough to convey to the voter an intelligible idea of the scope and import of the proposal.... The ballot title must also be free from any misleading tendency, whether by amplification, omission or fallacy. It must not be tinged with partisan coloring....

"It is difficult to prepare a perfect ballot title. It is sufficient if it informs the voters with such clarity that they can cast their ballot with a fair understanding of the issue presented." (Citations omitted.) Ferstl v. McCuen, 296 Ark. 504, 758 S.W.2d 398, 400 (1988).

In reviewing a ballot title, the court must not concern itself with the merit or lack of merit of the proposed measure, because that determination rests with the electorate. Matter of Title, Ballot Title, Etc., 649 P.2d 303 (Colo.1982). Furthermore, the ballot title need not encompass every possible effect of the measure nor must it convey possible problems that may arise upon implementing the measure. Id., at 310. If the ballot title is neither misleading nor unfair, it is not our responsibility to draft a better one. Manny v. Paulus, 281 Or. 215, 573 P.2d 1248 (1978).

Having compared the ballot title with the full text of the initiated measure, we conclude that it is a concise statement that fairly represents the measure. That is all that the law requires it to be. The applicants' objections are primarily an attack on the substance of the proposed measure. Their objections reveal a fear that the electorate will not understand the ultimate consequences of the measure and will approve it, with dire consequences. The Secretary need not, and, indeed, must not, incorporate the expression of those concerns in the ballot title. Matter of Title, Ballot Title, Etc., supra.

The applicants objected that the ballot title used the word "fee" which is the same term that appears in the proposed measure. They argued that the Secretary should have recognized that the "fee" was actually a "tax" and that he should have used the latter term in the ballot title. We disagree. If the applicants believe that the measure actually imposes a tax, rather than a fee, their argument should be directed to the political arena of debate among the electorate where the merits of that point can be argued. The Secretary's use of the term "fee" in the ballot title, as it was used in the proposed measure, itself, is neither misleading nor inaccurate.

The applicants' other objections to the ballot title are equally unavailing. The questions of who will ultimately bear the charges imposed by the measure, how the charges are to be computed, and to what extent collected funds will be used for administration rather than recycling and pollution cleanup are social and political issues that fall outside the scope of the ballot title. An attempt by the Secretary to include a fair and impartial discussion of all of those matters in the ballot title, would create the antithesis of the "short and concise" statement required by Section 16.1-01-09, N.D.C.C.

The applicants specifically objected to the Secretary's summary of the calculation...