RECALLND v. Jaeger

• Decision Date: 21 December 2010
• Docket Number: No. 20100228.,20100228.
• Citation: 2010 ND 250,792 N.W.2d 511
• Parties: RECALLND, Petitioner v. Alvin JAEGER, Secretary of State for North Dakota, Respondent.
• Court: North Dakota Supreme Court

792 N.W.2d 511

2010 ND 250

RECALLND, Petitioner

v.Alvin JAEGER, Secretary of State for North Dakota, Respondent.

No. 20100228.

Supreme Court of North Dakota.

Dec. 21, 2010.

Jeffrey L. Sheets (on brief), Minot, N.D., and Andrew L. Schlafly (argued), Far Hills, N.J., for petitioner.

Douglas A. Bahr, Solicitor General, Office of Attorney General, Bismarck, N.D., for respondent.

Charles D. Jacobson, Minot, N.D., and Peter Ferrara, Easton, PA, for amicus curiaeAmerican Civil Rights Union; submitted on brief.

SANDSTROM, Justice.

[¶ 1] The right to recall their elected officials is an important liberty reserved by the people of North Dakota. The people have reserved this power over their elected officials through the state constitution. Within the state constitution, however, the people of North Dakota have limited their recall power to certain offices created under state law.

[¶ 2] RECALLND, a North Dakota nonprofit corporation, asks this Court to order Secretary of State Alvin Jaeger to approve for circulation its petition to recall United States Senator Kent Conrad. Sections 1 and 10, N.D. Const. art. III, provide that only certain elected officials may be recalled by the people of North Dakota. The Secretary of State concluded a United States Senator is not among those officials subject to recall. Although Senator Conrad has been elected by the voters of North Dakota, the office of United States Senator is created by the Constitution of the United States, not the Constitution of the State of North Dakota. The recall of a United States Senator elected from North Dakota would need to be both authorized by the Constitution of the State of North Dakota and permitted by the Constitution of the United States. Because the recall of a United States Senator is not authorized by North Dakota's Constitution, we need not decide the federal constitutional question. We deny RECALLND's request to order the Secretary of State to approve its petition for the recall of United States Senator Kent Conrad.

I

[¶ 3] RECALLND founder Joseph Wells delivered a letter and a petition form for the recall of United States Senator Kent Conrad to the Secretary of State in May 2010. His letter stated the petition form was a "first draft" and asked the Secretary of State to notify him of any changes that needed to be made. Ten days after Wells's letter and petition form were received by the Secretary of State, Attorney General Wayne Stenehjem issued an opinion concluding North Dakota law does not permit the recall of a congressional official, specifically a United States Senator. The Attorney General relied on N.D. Const. art. III, § 10, which he believes restricts the recall process to state government officials and other public offices created under the laws of North Dakota.

[¶ 4] Relying on the Attorney General's opinion, the Secretary of State informed Wells that he did not have the authority to approve RECALLND's petition for circulation. RECALLND now asks this Court to order the Secretary of State to approve its petition to begin the recall of United States Senator Kent Conrad.

II

[¶ 5] RECALLND contends we must exercise original jurisdiction in this matter because sections 6 and 7, N.D. Const. art. III, confer mandatory original jurisdiction over all decisions of the Secretary of State regarding petitions. The Secretary of State argues sections 6 and 7 apply only to initiative and referendum petitions, not to recall petitions. He does submit, however, that it is appropriate for this Court to decide this case by exercising discretionary jurisdiction under N.D.C.C. § 27-02-04.

[¶ 6] Section 5 has provisions dealing with the specific procedures regarding initiative and referendum petitions, but does not mention recall petitions. Section 6 uses the phrase "such petition" to refer tothe petitions delineated in section 5. Section 7 outlines the process of reviewing the Secretary of State's decisions made under the guidelines of section 6. Taken together, the amendment's language shows that sections 6 and 7 apply exclusively to initiative and referendum petitions. Not once is the recall process mentioned or referred to in sections 2 through 9. Accordingly, sections 6 and 7, N.D. Const. art. III, do not govern recall petitions.

[¶ 7] RECALLND seeks a writ of mandamus under N.D.C.C. § 32-34-01 compelling the Secretary of State to approve its petition for circulation. This Court has the power to issue original writs under N.D. Const. art. VI, § 2. The exercise of this power is left to this Court's discretion and cannot be invoked as a matter of right. Bolinske v. Jaeger, 2008 ND 180, ¶ 4, 756 N.W.2d 336. "It is well-settled that our power to exercise original jurisdiction extends only to those cases in which the questions presented ... affect the sovereignty of the state, the franchises or prerogatives of the state, or the liberties of its people." Kelsh v. Jaeger, 2002 ND 53, ¶ 2, 641 N.W.2d 100; see also N.D.C.C. § 27-02-04. We exercise original jurisdiction in this case because the State has a primary interest in the outcome and the sovereign rights of its citizens are affected.

III

[¶ 8] This case requires us to construe the various sections of N.D. Const. art. III. Principles of statutory construction generally apply to construction of the constitution. Thompson v. Jaeger, 2010 ND 174, ¶ 7, 788 N.W.2d 586. The principles for construing constitutional provisions were expressed in Kelsh v. Jaeger, 2002 ND 53, ¶ 7, 641 N.W.2d 100:

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 ex rel. Heitkamp 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).

A

[¶ 9] RECALLND argues the constitutions of North Dakota and the United States of America allow for the recall of a United States Senator, and therefore its petition should be approved.

[¶ 10] The office of United States Senator was created by Article I, Section 3 of the Constitution of the United States, and under the Seventeenth Amendment each Senator is "elected by the people" of the state "for six years." Article I, Section 3 of the United States Constitution reflects the framers' decision that qualifications to serve as United States Senator should be uniform throughout the nation.U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 837, 115 S.Ct. 1842, 131 L.Ed.2d 881 (1995). "Members of Congress are chosen by separate constituencies, but ... they become, when elected, servants of the people of the United States. They are not merely delegates appointed by separate, sovereign States; they occupy offices that are integral and essential components of a single National Government." Id. at 837-38, 115 S.Ct. 1842.

[¶ 11] The power of North Dakota's citizens to recall their elected officials comes solely from N.D. Const. art. III, §§ 1 and 10. Section 10 defines the scope of the power and specifies the "certain elected officials" subject to recall:

Any elected official of the state, of any county or of any legislative or county commissioner district shall be subject to recall by petition of electors equal in number to twenty-five percent of those who voted at the preceding general election for the office of governor in the state, county, or district in which the official is to be recalled.

The petition shall be filed with the official with whom a petition for nomination to the office in question is filed, who shall call a special election if he finds the petition valid and sufficient. No elector may remove his name from a recall petition.

Absent from section 10 is any reference to North Dakota's congressional officials, including a United States Senator. Under the plain language of this section, elected officials in state and county positions are subject to recall. Congressional officials, however, are not mentioned.

[¶ 12] RECALLND nevertheless argues that North Dakota's congressional delegation is included in N.D. Const. art. III, § 10. It contends the word "district" is modified by the terms preceding it—"state," "county," "legislative," and "county commissioner." Therefore, it argues section 10 should be read to state, "Any elected official who is elected by the people of the state ... district" is subject to recall. Alternatively, RECALLND argues section 10 should be read to state, "Any elected official of ... any legislative ... district" may be recalled, and a United States Senator is elected by the legislative district of North Dakota.

[¶ 13] RECALLND's first construction of N.D. Const. art. III, § 10, is untenable because it adds words not in the state constitution. The phrase "who is elected by the people" is not found in section 10, and implicitly including this phrase fundamentally changes the section's interpretation. We must interpret what is actually contained in the Constitution, not what the parties would prefer it contained. See Bulman v. Hulstrand Constr. Co., Inc., 521 N.W.2d 632, 636 (N.D.1994) ("The intent and purpose of a constitutional provision is to be determined, if possible, from the language itself.")

[¶ 14] We...