State ex rel. Kusler v. Sinner

• Decision Date: 26 September 1992
• Docket Number: No. 920270,920270
• Citation: 491 N.W.2d 382
• Parties: STATE of North Dakota ex rel. Jim KUSLER, Secretary of State, Petitioner and Relator, and Kevin Cramer, Chairman of the North Dakota Republican Party, Intervenor, and Darold Larson, Intervenor, v. George SINNER, Governor of the State of North Dakota, Respondent. Civ.
• Court: North Dakota Supreme Court

Page 382

491 N.W.2d 382

STATE of North Dakota ex rel. Jim KUSLER, Secretary of

State, Petitioner and Relator,

and

Kevin Cramer, Chairman of the North Dakota Republican Party, Intervenor, and Darold Larson, Intervenor, v. George SINNER, Governor of the State of North Dakota, Respondent.

Civ. No. 920270.

Supreme Court of North Dakota.

Sept. 26, 1992.

John D. Kelly (argued), Harlan G. Fuglesten, and Steven A. Johnson, Special Asst. Attys. Gen., Fargo, for petitioner and relator. Appearance by Rosellen Sand, Asst. Atty. Gen Richard J. Gross (argued), Bismarck, for respondent.

Traynor, Rutten & Traynor, Devils Lake, for intervenor Kevin Cramer, Chairman of the North Dakota Republican Party; appearance by John T. Traynor.

Winkjer, McKennett, Stenehjem, Reierson & Forsberg, Williston, for intervenor Kevin Cramer, Chairman of the North Dakota Republican Party; argued by Dean Winkjer.

Peter B. Crary Law Office, Fargo, filed brief on behalf of intervenor Darold Larson.

MESCHKE, Justice.

This is an original proceeding seeking an interpretation of the statutory procedure for, and the timing of, a special election to fill a vacancy in the office of United States Senator from North Dakota. Because of related statutory deadlines mandated for filing certificates of nomination and for making ballots available to absentee voters, we conclude that the statutory authorizations for calling and holding the special election to fill this vacancy do not allow the special election to be held at the same time as the November 3 general election.

After more than thirty-two years of distinguished service as United States Senator from North Dakota, Quentin N. Burdick died on September 8, 1992. Over two years remained of his term. Governor George Sinner appointed Senator Burdick's widow, Jocelyn, to temporarily fill the vacancy until a successor is elected at a special election. In preparation for a special election, the North Dakota Democratic-NPL party called its nominating convention for October 3, 1992, and the North Dakota Republican party called its convention for October 4, 1992.

On September 16, 1992, Governor Sinner issued a writ of election setting the special election to fill the vacancy to coincide with the November 3 general election. This election is scheduled less than 60 days after Senator Burdick's death and 30 days after the political parties' nominating conventions.

On September 21, Secretary of State Jim Kusler, the state's chief election officer, petitioned this Court to exercise original jurisdiction to resolve significant questions of statutory interpretation about the timing and administration of the special election to fill the Senate vacancy. The Petitioner seeks an appropriate writ to nullify the writ of election issued by Governor Sinner, the respondent, and also to compel the Governor to schedule the special election so that candidates may comply with NDCC 16.1-12-04(5) in filing their certificates of nomination at least sixty days before the special election. As respondent, the Governor joins with the Secretary of State in asking this Court to clarify the procedures for calling and holding the special election to fill the vacancy.

We immediately granted the Petitioner's request for expedited disposition under NDRAppP 2. We have also granted motions to intervene on the side of the Petitioner by Kevin Cramer, Chairman of the North Dakota Republican party, and by Darold Larson, a prospective independent candidate.

N.D. Const., Art. VI, Sec. 2 authorizes this Court to exercise original jurisdiction and to issue original and remedial writs necessary to properly exercise its jurisdiction. Under that constitutional provision, the power vested in this Court to issue original writs is a discretionary power which may not be invoked as a matter of right. State ex rel. Spaeth v. Olson ex rel. Sinner, 359 N.W.2d 876 (N.D.1985). Compare Municipal Services Corp. v. Kusler, 490 N.W.2d 700 (N.D.1992). It is well settled that our power to exercise our original jurisdiction extends only to those cases where 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. State ex rel. Link v. Olson, 286 N.W.2d 262 (N.D.1979); NDCC 27-02-04. The interest of the state must be primary, not incidental, and the public must have an interest or right that is affected. State ex rel. Peterson v. Olson, 307 N.W.2d 528 (N.D.1981). These criteria exist here.

This case involves the scheduling of a special election to fill a vacancy in the office of United States Senator. Few matters involve more public interest than the process of electing a new United States Senator. This dispute involves significant questions of interpretations of the statute on calling and conducting a special election for that purpose, as well as the statutes that authorize candidates to have their names placed on the ballot and that make absentee voters ballots available. In other cases involving important questions about the voting process, we have exercised our original jurisdiction. For one example, see State ex rel. Wefald v. Meier, 347 N.W.2d 562 (N.D.1984) [referendum process]. This case involves similar special circumstances, presenting questions of an urgent and emergency nature that need a speedy determination. We conclude, therefore, that this is a matter of public interest for our exercise of original jurisdiction.

NDCC 16.1-13-08 directs the legislatively prescribed procedure for filling a vacancy in the office of United States Senator: ¹

When a vacancy occurs in the office of United States senator from this state, the governor, by appointment, may fill the vacancy temporarily, but any person so appointed shall serve only until the vacancy is filled by election as follows:

1. If the vacancy occurs during a calendar year in which there is a regularly scheduled statewide election and at least ninety days prior to the general election in that year, the vacancy must be filled at the next statewide election; however, if there is not at least a ninety-day period between the date of the vacancy and the date of the next statewide election, the vacancy must be filled at the general election.

2. If the vacancy occurs during a calendar year in which there is not a statewide election regularly scheduled or during a calendar year in which such an election is scheduled but less than ninety days prior to the general election, the governor shall issue a writ of election which must designate a time for holding a special election to fill the vacancy, which election must be held within ninety days of the occurrence of the vacancy.

The Governor's submission to this Court says that this statute "is susceptible to several conflicting interpretations." We agree.

In construing statutes, our duty is to ascertain the intent of the Legislature. County of Stutsman v. State Historical Society, 371 N.W.2d 321 (N.D.1985). A statute must be construed as a whole to determine the legislative intent, and if possible, the entire statute must be given meaning because the law neither does nor requires idle acts. Id.

Reading NDCC 16.1-13-08 in its entirety, it specifically directs when a separate special election must be called to fill a Senate vacancy and when a special election must be held in conjunction with a statewide primary or general election. ² Subsection (2) applies if the Senate vacancy occurs during a calendar year when there is not a regularly scheduled statewide election, or when the vacancy occurs less than ninety days prior to the general election.

For subsection (2) to have meaning and not be surplusage, subsection (1) must be construed to apply if the Senate vacancy occurs during a calendar year when there is a regularly scheduled statewide election and when the vacancy occurs more than ninety days prior to the general election. In that event, there is both a statewide primary and a statewide general election, and if the vacancy occurs more than 90 days before the statewide primary election, it must be filled at the "next statewide election," the primary election; however, if the vacancy occurs less than 90 days before the "next statewide election," the primary election, the vacancy must be filled at the general election. Thus, in adopting NDCC 16.1-13-08, the Legislature has recognized that, when a Senate vacancy occurs less than 90 days before a statewide primary election, there may be insufficient time to properly hold a special election in conjunction with the primary. Under those circumstances, subsection (1) requires that the special election be held at the general election.

In this case, the Senate vacancy occurred less than ninety days before the general election. In this event, the procedure for filling the vacancy is governed by subsection (2) of NDCC 16.1-13-08 that requires the Governor to issue a writ of election and schedule a special election within 90 days of the vacancy. The statute sets a maximum time, but expresses no minimum time that the Governor must comply with. The Governor has scheduled a special election within 90 days of the vacancy, so he has literally complied with NDCC 16.1-13-08.

Still, NDCC 16.1-13-08 must be construed in harmony with other related election statutes in order to give meaning and effect to all of the election laws. Haugland v. Spaeth, 476 N.W.2d 692 (N.D.1991). It is an axiom of statutory interpretation that "[w]henever a general provision in a statute is in conflict with a special provision in the same or in another statute, the two must be construed, if possible, so that effect may be given to both provisions, ..." NDCC 1-02-07. Here, compliance with other mandatory election statutes requires more time before the special election can be held.

NDCC 16.1-12-04(5) directs:

In the case of special elections called to fill vacancies, certificates of nomination must be filed and in the actual possession of the...