Riemers v. Jaeger

• Decision Date: 26 February 2013
• Docket Number: No. 20120353.,20120353.
• Citation: 2013 ND 30,827 N.W.2d 330
• Parties: Roland RIEMERS, Plaintiff and Appellant v. Alvin A. JAEGER, as Secretary of State of North Dakota, Defendant and Appellee.
• Court: North Dakota Supreme Court

827 N.W.2d 330

2013 ND 30

Roland RIEMERS, Plaintiff and Appellant

v.Alvin A. JAEGER, as Secretary of State of North Dakota, Defendant and Appellee.

No. 20120353.

Supreme Court of North Dakota.

Feb. 26, 2013.

Roland Riemers, Grand Forks, N.D., pro se.

Douglas A. Bahr, Solicitor General, Bismarck, N.D., for defendant and appellee.

CROTHERS Justice.

[¶ 1] Roland Riemers appeals from a district court order denying his petition for a writ to require Secretary of State Alvin Jaeger to remove the Republican and Democratic–NPL party candidates for governor and lieutenant governor from the ballot for the November 2012 general election, or alternatively, to require the Secretary of State to place him on that ballot as the Libertarian party candidate for governor. We affirm.

I

[¶ 2] In April 2012, the Libertarian party of North Dakota endorsed Riemers as its candidate for governor and Richard Ames as its candidate for lieutenant governor for the 2012 election. According to Riemers, both candidates filed separate certificates of endorsement and statements of interests with the Secretary of State to place their names on the ballot for the June 2012 primary election, but Ames did not submit a signature page with his statement of interests. SeeN.D.C.C. § 16.1–09–02 (stating “[e]very candidate for elective office shall sign and file the statement of interests as required by this chapter”). The Secretary of State placed Riemers' name on the primary ballot as the Libertarian candidate for governor, but Ames' name was not placed on that ballot. After Riemers received enough votes in the June primary election to qualify for placement on the ballot for the November general election, the Secretary of State asked the Attorney General whether Riemers had been nominated as a candidate for governor according to state law and whether he was eligible for certification on the general election ballot without an accompanying candidate for lieutenant governor.

[¶ 3] In July 2012, the Attorney General issued a written opinion, ruling Riemers was not nominated for governor according to state law because the requirement of N.D. Const. art. V, § 3 for a joint ballot for governor and lieutenant governor was not satisfied. N.D. Att'y Gen. Op.2012–L–07. The Attorney General's opinion also cited N.D.C.C. § 16.1–11–06(2), providing “[i]f the [nominating] petition or certificate of endorsement is for the office of governor or lieutenant governor, the petition or certificate must contain the names and other information required of candidates for both those offices.” The Attorney General explained:

“This language requires two things. First, the gubernatorial candidate's certificate of endorsement or nominating petition should have mentioned the name of a candidate for Lieutenant Governor together with the ancillary information such as the appropriate address, telephone number, title of office, and party (which it did not). Second, a candidate for Lieutenant Governor would have had to file a certificate of endorsement or nominating petition together with all the required information including certain information regarding the candidate for Governor. This provision of the law was likewise not followed. Because, in this instance, there was no candidate for Lieutenant Governor on the primary election ballot and because the gubernatorial candidate for the Libertarian Party (who did appear on the primary election ballot) did not name a running mate and other pertinent information required of candidates for both those offices in the nominating petition or certificate of endorsement, the Libertarian Party candidate for Governor was not nominated in accordance with North Dakota law.

“ ‘North Dakota law generally differentiates between a primary election and a general election.’ Persons properly nominated at a primary election in accordance with the provisions of N.D.C.C. ch. 16.1–11 are eligible as candidates to be voted for at the ensuing general election. However, because the gubernatorial candidate for this party was not nominated in accordance with N.D.C.C. § 16.1–11–06(2), he was not properly nominated and thus not eligible as a candidate for the ensuing November general election.”

N.D. Att'y Gen. Op.2012–L–07 (footnotes omitted).

[¶ 4] The Secretary of State followed the Attorney General's opinion and did not certify Riemers for the November general election ballot as the Libertarian candidate for governor. According to Riemers, he asked the Secretary of State to provide him with copies of the certificates of endorsement for the Republican and Democratic candidates for governor and lieutenant governor and the certificates of endorsement provided to him separately listed the respective candidates for governor and lieutenant governor for those parties without referencing information about a running mate. SeeN.D.C.C. §§ 16.1–11–09 and 16.1–11–10 (statutory form for certificate of endorsement and accompanying affidavit). In correspondence with the Secretary of State, Riemers claimed those separate certificates of endorsement violated the mandatory language of N.D.C.C. § 16.1–11–06(2) and those candidates also should be removed from the general election ballot.

[¶ 5] The Secretary of State informed Riemers that those candidates' certificates of endorsement were properly filed under state law:

“I have attached PDF 2923. On page 1, it states that a candidate or candidates (in case of Gov/Lt Gov) have one of two choices to have their names placed on the Primary Election Ballot. If they select the petition method (which, is the same form that is required of Independent candidates for Governor/Lt Governor for the General election), the name of the Lt Governor candidate must be listed on the petition prior to its circulation.

“If they select the Certificate of Endorsement method, then a separate SFN 17196 is filed for both the Governor candidate and the Lt Governor candidate. They are not listed together on one form, as is the case with the petition method. Each candidate separately files an Affidavit of Candidacy and a Statement of Interests form. These are the same forms required of the candidates that selected the petition method.

“SFN 02704 and SFN 17196 are different forms and are used, as dictated by the selection made by the candidates, i.e., petition or endorsement.

“For the primary election, the respective candidates for the Republican Party and Democratic/NPL Party selected the Endorsement method. Their papers related to that selection were properly filed according to state law. Subsequently, they were nominated in the primary election to be listed under the name of their political party for the November ballot. The selected names for the respective parties are automatically advanced and they do not have to file any further forms. This is the same option that is available for Governor/Lt Governor candidates representing any other political party.”

[¶ 6] Riemers thereafter submitted sufficient signatures to the Secretary of State for certification on the November general election ballot as an independent candidate for governor, with Anthony Johns as his accompanying candidate for lieutenant governor. On September 10, 2012, the Secretary of State certified the candidates for the general election ballot under N.D.C.C. § 16.1–12–04(1), including the Republican and Democratic candidates for governor and lieutenant governor and Riemers and Johns as independent candidates for those offices.

[¶ 7] On September 10, 2012, after filing the petition in this proceeding in the district court on August 30, 2012 and being informed a previous attempt to serve the petition on the Secretary of State by certified mail was insufficient under N.D.R.Civ.P. 4(d)(2), Riemers personally served an Assistant Attorney General with the petition for a writ of mandamus, a writ of prohibition, a writ of quo warranto, and for preventive or declaratory relief. Riemers named the Secretary of State as the respondent and asked the district court to require the Secretary of State to remove the Republican and Democratic candidates for governor and lieutenant governor from the November general election ballot for failure to file a joint certificate of endorsement for the primary election. Riemers alternatively sought an order requiring the Secretary of State to place his name on the general election ballot as the Libertarian candidate for governor with Anthony Johns as the Libertarian candidate for lieutenant governor. Riemers also sought an order directing the Secretary of State to stop discriminating against minor party and independent candidates.

[¶ 8] Based on the documents filed by the parties, the district court denied Riemers' requests for relief, finding he had shown no clear legal right to a writ of mandamus to remove the Republican and Democratic candidates for governor and lieutenant governor from the November general election ballot or to place him on that ballot as the Libertarian candidate for governor. The court found the Secretary of State properly relied on N.D. Att'y Gen. Op.2012–L–07 in not placing Riemers on the general election ballot as the Libertarian candidate for governor because he did not have an accompanying Libertarian candidate for lieutenant governor. The court said Riemers was not entitled to quo warranto relief and denied his claim for injunctive relief, stating, “Other than bare allegations, however, [he] has presented no credible evidence that the North Dakota Secretary of State has engaged in discriminatory behavior against him or anyone else.”

II

[¶ 9] Riemers identifies several issues for review, including that the district court erred in finding he presented only bare allegations and no credible evidence the Secretary of State had engaged in discriminatory conduct or exceeded his authority, that the court erred in finding he presented no law requiring removal of the Republican and Democratic candidates for governor and lieutenant governor...