State ex rel. Spaeth v. Meiers, 870053CV

Decision Date01 April 1987
Docket NumberNo. 870053CV,870053CV
Citation403 N.W.2d 392
PartiesSTATE of North Dakota ex rel. Nicholas J. SPAETH, Attorney General, and ex rel. Richard Kloubec, Speaker of the North Dakota House of Representatives, Petitioners, v. Ruth MEIERS, President of the North Dakota Senate; and Rolland W. Redlin, President Pro Tempore of the North Dakota Senate, Respondents.
CourtNorth Dakota Supreme Court

Nicholas J. Spaeth, Atty. Gen. and Laurie Loveland, Asst. Atty. Gen., Office of Atty. Gen., State Capitol, Bismarck, for petitioners; argued by Laurie Loveland.

Kenneth M. Jakes, Sp. Asst. Atty. Gen., Bismarck and Christine A. Hogan, Sp. Asst. Atty. Gen., Bismarck, for respondents; argued by Christine A. Hogan.

John Schneider, State Representative, for Charles Mertens, Minority Leader. amicus curiae.

Wayne Stenehjem, State Senator, for John Olson, Senate Minority Leader. amicus curiae.

LEVINE, Justice.

The petitioners, Nicholas J. Spaeth, Attorney General of the State of North Dakota and Richard Kloubec, Speaker of the North Dakota House of Representatives (House) request this court to exercise its original jurisdiction and to issue an alternative writ of mandamus requiring the respondents, Ruth Meiers, President of the North Dakota Senate (Senate), and Rolland Redlin, President Pro Tempore of the Senate, "to accept HB No. 1346 from the House of Representatives and submit that bill to the Senate for its consideration." We decline the invitation to exercise our original jurisdiction.

On February 20, 1987, the House approved HB No. 1346 by a majority vote and thereafter Speaker Kloubec signed and transmitted the bill to the Senate for consideration. Senator Redlin, acting in his capacity as President Pro Tempore of the Senate, refused to accept HB No. 1346 on the ground that the bill, which repeals an initiated measure, failed to pass the House by a two-thirds majority vote which Redlin believed was necessary under Art. III, Sec. 8, N.D. Const. Redlin returned the bill to the House without first submitting it for consideration by the Senate. The petitioners then filed this application for an alternative writ of mandamus.

On February 25, 1987, Kloubec requested and received an Attorney General's opinion which concluded:

"... an initiated measure approved by the electors may be amended or repealed by less than a two-thirds vote of the Legislative Assembly where the Legislature's amendment or repeal is enacted less than seven years after the initiated measure's effective date but becomes effective after that seven-year period has passed." N.D. Attorney General's Opinion 87-5.

After receiving the Attorney General's opinion, Kloubec transmitted HB No. 1346 and a copy of the opinion to the Senate. Senator Redlin again refused to accept HB No. 1346 and ordered the bill returned to the House. Senator John Olson subsequently moved to appeal the President Pro Tempore's decision; however, Senator Richard Maixner moved to table the motion to appeal, and the motion to table carried. 1987 S.J. pp. 1115-1116.

This court's authority to exercise original jurisdiction under Art. VI, Sec. 2, N.D. Const., is a discretionary authority which cannot be invoked as a matter of right. State ex rel. Link v. Olson, 286 N.W.2d 262 (N.D.1979). This court will determine for itself whether or not to exercise its original jurisdiction. See State ex rel. Peterson v. Olson, 307 N.W.2d 528 (N.D.1981).

The petitioners contend that this case, like State ex rel. Sanstead v. Freed, 251 N.W.2d 898 (N.D.1977), requires constitutional interpretation and is therefore appropriate for judicial review. The issue, petitioners argue, is whether the state constitution requires that HB No. 1346 be approved by two-thirds of the members of each house. We, however, conclude that the constitutional issue is not the dispositive issue in this case and is not ripe for adjudication at this time. 1 The key issue on the merits, requiring resolution were we to exercise original jurisdiction, is whether or not the President or President Pro Tempore of the Senate may, under that legislative body's procedural rules, refuse to accept a bill which has been sent to that body from the House for consideration.

In Sanstead the Lieutenant Governor requested this court to exercise its original jurisdiction to enjoin the Senate from conducting its proceedings under rules which allegedly violated his constitutional right to cast the deciding vote in the Senate on the final passage of a bill. We exercised our original jurisdiction and granted the writ to the extent required to prevent the Senate from operating under an unconstitutional rule. In discussing the jurisdictional issue in Sanstead, we rejected the argument that our assumption of jurisdiction would create a confrontation between equal branches of state government:

"It is the responsibility of this Court to act as the ultimate interpreter of the Constitution of the State of North Dakota.

* * *

* * *

"Our consideration of State Senate Rules 26 and 55 requires only that the Constitution of the State of North Dakota be interpreted, in the instant case. This determination falls squarely within the traditional role accorded this Court." (251 N.W.2d at 903-904.)

We believe the circumstances in Sanstead, under which we determined it was appropriate to exercise original jurisdiction, are clearly distinguishable from the circumstances in this case. In Sanstead this court was requested to interpret the constitution to determine if the Senate was operating under unconstitutional rules of procedure. In this case there is no allegation that the respondents are operating under unconstitutional rules. Unlike the dispositive issue in Sanstead requiring constitutional interpretation, the dispositive issue in this case merely concerns the interpretation and application of the legislature's procedural rules. In Sanstead there was conflict, with constitutional ramifications, between the executive and the legislative branches of government. In this case the conflict is a procedural intra-branch dispute among members of the legislature.

The legislative, executive, and judicial branches are coequal branches of government, and each branch is supreme in its own sphere. Art. XI, Sec. 26, N.D. Const.; State ex rel. Mason v. Baker, 69 N.D. 488, 288 N.W. 202 (1939). This court has long recognized that the creation of the three branches of government by our constitution operates as an apportionment of the different classes of power whereby there is an implied exclusion of each branch from the exercise of the functions of the others. Ranta v. McCarney, 391 N.W.2d 161 (N.D.1986); City of Carrington v. Foster County, 166 N.W.2d 377 (N.D.1969); Kermott v. Bagley, 19 N.D. 345, 124 N.W. 397 (1910). In recognition of these abiding principles, the judiciary exercises great restraint when requested to intervene in matters entrusted to the other branches of government.

Article IV, Sec. 12 of the North Dakota Constitution authorizes each house of the legislative assembly to establish its procedural rules. The Senate's construction of its own rules applicable to the lawmaking process is a legislative function. Such legislative action which does not exceed constitutional authority is open only to political challenge. Cf. Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); see also Henkin "Is There a 'Political Question' Doctrine? " 85 Yale L.J. 597 (1976). Senator Redlin's interpretation of the Senate's procedural rules and the subsequent refusal of the Senate members to overrule his determination are internal matters capable of resolution by the legislative branch, which has various nonjudicial remedies available to it within the political forum. See, e.g., Mason's Manual of Legislature Procedure, Secs. 230, 576.

This court ordinarily will not issue its prerogative writs in order to bring about that which voluntary political action can perform. State ex rel. McArthur v. McLean, 35 N.D. 203, 159 N.W. 847 (1916). We therefore deem the instant case an...

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