State ex rel. Olson v. Bakken, s. 10362

• Decision Date: 14 January 1983
• Docket Number: Nos. 10362,10363,s. 10362
• Citation: 329 N.W.2d 575
• Parties: STATE of North Dakota ex rel. Allen I. OLSON, Governor of the State of North Dakota, Petitioner, v. Honorable A.C. BAKKEN, Judge of the District Court, Respondent. Henry STINNETT, Jeanne Stinnett, Peter Nikle, Don Cooksey, Joanne Cooksey, Donald Harriman, Darlene Harriman, Tom Gest, John Ippoliti, Jerry Waletzko, Jan Kurtyka, and LeRoy Kurtyka, Contestants and Appellees, v. Anita HANSEN, County Auditor of Grand Forks County, and the County Canvassing Board of Grand Forks County, Contestees and Appellants. Civ.
• Court: North Dakota Supreme Court

Page 575

329 N.W.2d 575

STATE of North Dakota ex rel. Allen I. OLSON, Governor of

the State of North Dakota, Petitioner, v. Honorable A.C. BAKKEN, Judge of the District Court,

Respondent.

Henry STINNETT, Jeanne Stinnett, Peter Nikle, Don Cooksey,

Joanne Cooksey, Donald Harriman, Darlene Harriman, Tom Gest,

John Ippoliti, Jerry Waletzko, Jan Kurtyka, and LeRoy

Kurtyka, Contestants and Appellees, v. Anita HANSEN, County Auditor of Grand Forks County, and the

County Canvassing Board of Grand Forks County,

Contestees and Appellants.

Civ. Nos. 10362, 10363.

Supreme Court of North Dakota.

Jan. 14, 1983.

Robert O. Wefald, Atty. Gen., argued, and Terry L. Adkins, Asst. Atty. Gen., Bismarck, for petitioner, and contestees and appellants.

A.C. Bakken, Grand Forks, argued, pro se.

Henry Howe, Grand Forks, argued, and Mary Seaworth, Senior Law Student, argued, for contestants and appellees.

SAND, Justice.

Initially, twelve voters brought an action under the provisions of North Dakota Century Code Sec. 16.1-16-02 against the Grand Forks County Auditor and Grand Forks County Canvassing Board contesting ¹ the election held on 2 November 1982 in Winship precinct, Grand Forks, North Dakota. The action was filed with the clerk of the district court pursuant to NDCC Sec. 16.1-16-04. The contestees (Auditor and Canvassing Board) answered and admitted that a ballot label (voting guide booklet) intended for another precinct was erroneously placed in a voting booth of Winship precinct; that ballots (ballot cards) voted in all six voting booths at Winship precinct, including the booth in which the ballot label that did not correspond ² with the ballot card was used, were placed in the same ballot box and were commingled; and that this error was not discovered until 526 ballots (including absentee ballots) had been deposited in the ballot box.

Sixty-one ballots were cast after the discovery and correction, and were placed in a separate ballot box. The County Canvassing Board met and certified only the 61 votes cast in Winship precinct after the discovery of the error. The board ruled that it was impossible to determine the actual preference or intent of the voters from an examination of the ballots voted from guide books in which the order of listing candidates varied. However, in the final analysis, the only race that had a margin less than 526 votes was for legislative candidates for the House of Representatives from the Forty-second District.

After a hearing, the district court found that the error was of such magnitude that it could have affected the outcome of the election; that it was impossible to determine the actual will or intent of the 526 Winship precinct voters; and "that no one was elected to the race for the second seat in the House of Representatives in District 42 and any election certificate issued to Mike Hamerlik must therefore be annulled and set aside." The court also noted that the last sentence ³ of NDCC Sec. 16.1-16-08(4) was not applicable because the members of the House of Representatives are elected only for a two-year period, pursuant to Art. IV, Sec. 9 of the North Dakota Constitution, without the usual "until his successor is duly elected and qualified," and as a result there was no incumbent. Therefore the remedies provided for in NDCC Sec. 16.1-16-08(4) applied, and the trial court order "pursuant to Section 19, of Article IV, of the North Dakota State Constitution, the Governor shall issue a Writ of Election to fill any vacancy." The court also concluded that the election should be limited to the 526 voters whose ballots were not counted and that the voters should be permitted to vote on all issues and that their votes should be added to the official certification of votes by the Grand Forks County Canvassing Board.

The judgment also directed that certified copies of the findings of fact, conclusions of law, order for judgment and judgment be transmitted to the Governor and the Speaker of the House of Representatives for the 48th Legislative Assembly.

In the meantime, a certificate of election was issued to Mike Hamerlik, the legislative candidate whose margin of victory was less than 526 votes, and the House of Representatives had an organizational meeting on 7 December 1982. Thereafter, the State of North Dakota ex rel. Allen I. Olson, Governor, requested this Court to exercise its original jurisdiction and issue an appropriate writ declaring the judgment of the district court void ab initio and such other relief as may be appropriate.

Shortly thereafter, the County Auditor and the Canvassing Board of Grand Forks County, pursuant to NDCC Sec. 16.1-16-09, appealed the judgment of the district court to this Court. This Court, in an effort to expedite the entire matter, directed that both cases be heard at the same time, 7 January 1983.

Both the appeal by the twelve voters and the application to this Court for an appropriate writ involved basically the same issue and, accordingly, we will treat them as wholly consolidated. ⁴

The contestees and the State, relying upon Art. IV, Sec. 26, N.D. Const., contended that the trial court was without jurisdiction on the subject matter and as a result its judgment was void. Art. IV, Sec. 26, states:

"Each house shall be the judge of the election returns and qualifications of its own members."

This provision (previously Sec. 47) has been involved in some manner by this Court in a number of instances. Morgan v. Hatch, 274 N.W.2d 563 (N.D.1979); State ex rel. Olson v. Thompson, 248 N.W.2d 347 (N.D.1976); State ex rel. Andrews v. Quam, 72 N.D. 344, 7 N.W.2d 738 (1943); State ex rel. Schmeding v. District Court of Sixth Judicial District, 67 N.D. 196, 271 N.W. 137 (1937). In Morgan, after referring to the earlier case of Thompson, the Court concluded that the constitutional provision did not deprive it of jurisdiction in determining if absentee ballots without an official stamp or initial, in a senatorial contest, should or should not be counted.

Significantly, the United States Constitution has a similar provision found in Art. 1, Sec. 5, which provides:

"Each house shall be the judge of the elections, returns and qualifications of its own members ...."

The United States constitutional provision has been construed at least twice by the United States Supreme Court. In Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969), the Court held that Art. 1, Sec. 5, is limited to the standing qualifications prescribed in the Constitution and the Court was not deprived of jurisdiction in an expulsion question involving a non-political matter. In Roudebush v. Hartke, 405 U.S. 15, 92 S.Ct. 804, 31 L.Ed.2d 1 (1972), the Court held that Art. 1, Sec. 5, did not prohibit the Indiana courts from conducting a recount of the election ballots for the office of United States Senator.

Other state courts, in interpreting a similar constitutional provision, have concluded that each house of the legislature has the final power and authority to judge elections, returns, and qualifications of its own members; however, even though the legislature has the final power, that power does not prevent courts from exercising jurisdiction and entertaining election contests. State ex rel. Wahl v. Richards, 44 Del. 566, 64 A.2d 400 (1949) (relief sought under constitutional provision giving Supreme Court jurisdiction to issue writ of mandamus to Superior Court was not in conflict with constitutional power given to legislature to determine elections and qualifications of its own members where determination of question was made before the House convened); State ex rel. Wheeler v. Shelby Circuit Court, 267 Ind. 265, 369 N.E.2d 933 (1977) (statute permitting courts to participate in recount process was not invasion of legislative prerogative to determine qualifications of its members because neither original vote nor recount were absolutely binding on the legislative body); Phillips v. Ericson, 248 Minn. 452, 80 N.W.2d 513 (1957) (statute conferred authority upon district court to hear election contest, subject to final action in the house of legislature involved); Rice v. Power, 19 N.Y.2d 106, 278 N.Y.S.2d 361, 224 N.E.2d 865 (N.Y.1967) (courts have power to require that certificate of election reflect an accurate tally of votes cast despite constitutional provision that makes Convention the ultimate judge of elections, returns, and qualifications of members); Williamson v. State Election Board, 431 P.2d 352 (Okl.1967), and Wickersham v. State Election Board, 357 P.2d 421 (Okl.1960) (court had constitutional power to enforce election laws of state pertaining to recount notwithstanding provision that each house shall be the judge of elections, returns, and qualifications of its members); Bailey v. Burns, 118 R.I. 428, 375 A.2d 203 (1977), and McGann v. Board of Elections, 85 R.I. 223, 129 A.2d 341 (1957) (jurisdiction of Supreme Court to pass on questions of law in cases brought before it involving elections for senators and representatives to the general assembly was not affected by constitutional provision that each house of the general assembly shall be the judge of the election and qualifications of its members).

We are aware that several courts, in matters relating primarily to qualifications, have held that each house of the legislature has final and exclusive authority to judge its members. In re McGee, 36 Cal.2d 592, 226 P.2d 1 (1951); Lee v. Lancaster, 262 So.2d 124 (La.App.1972); Lund ex rel. Wilbur v. Pratt, 308 A.2d 554 (Me.1973); Opinion of Justices to the Senate, 375 Mass. 795, 376 N.E.2d 810 (1978); Combs v. Groener, 256 Ore. 336, 472 P.2d 281 (1970); Scott v. Thornton, 234 S.C. 19, 106 S.E.2d 446 (1959).

The North Dakota Supreme Court, in State ex rel. Sathre v. Quickstad, 66 N.D. 689, 268 N.W. 683, 107 A.L.R. 202 (1936), had under consideration a statute providing in part that "the city council shall be the judge of the election and...