Studer v. Kiffmeyer

• Decision Date: 20 April 2006
• Docket Number: No. A05-2412.,A05-2412.
• Parties: Rick STUDER, Petitioner, v. Mary KIFFMEYER, Minnesota Secretary of State, Respondent, Randy Schreifels, Stearns County Auditor/Treasurer, Respondent, Joan Neyssen, Benton County Auditor/Treasurer, Respondent, Ramona Doebler, Sherburne County Auditor/Treasurer, Respondent, and Sue Ek, Intervenor-Respondent.
• Court: Minnesota Supreme Court

712 N.W.2d 552

Rick STUDER, Petitioner, v. Mary KIFFMEYER, Minnesota Secretary of State, Respondent Randy Schreifels, Stearns County Auditor/Treasurer, Respondent Joan Neyssen, Benton County Auditor/Treasurer, Respondent Ramona Doebler, Sherburne County Auditor/Treasurer, Respondent, and Sue Ek, Intervenor-Respondent.

No. A05-2412.

Supreme Court of Minnesota.

April 20, 2006.

Alan W. Weinblatt, Asha Sharma, Weinblatt & Gaylord, P.L.C., St. Paul, MN, for Petitioner.

Kathleen A. Heaney, Sherburne County Attorney, Todd R. Schoffelman, Assistant County Attorney, Elk River, MN, for Respondent, Ramona Doebler.

Robert J. Raupp, Benton County Attorney, Foley, MN, for Respondent, Joan Neyssen.

Tony P. Trimble, Matthew W. Haapoja, Trimble & Associates, Ltd., Minneapolis, MN, for Respondent, Sue Ek.

Janelle P. Kendall, Stearns County Attorney, Marcus W. Miller, Chief-Civil Division, Stearns County Attorney's Office, St. Cloud, MN, for Respondent, Randy Schreifels.

Mike Hatch, Attorney General, Kenneth E. Raschke, Jr., Assistant Attorney General, St. Paul, MN, for Respondent, Mary Kiffmeyer.

Heard, considered, and decided by the court en banc.

OPINION

PER CURIAM.

Petitioner Rick Studer filed a petition under Minn.Stat. § 204B.44 (2004) requesting an order directing respondent election officials to remove the name of Sue Ek from the ballot for State Representative from House District 15B at the special election to be held on December 27, 2005. Petitioner alleged that Ek would not have resided in District 15B¹ for six months immediately preceding the special election as required by Minn. Const. art. IV, § 6. Ek intervened as a respondent, filed a response in opposition to the petition, and moved to dismiss the petition. The matter was referred to a referee to take evidence and make findings of fact. The referee found that Ek claimed residency in St. Paul, which is not in District 15B, within the six-month period preceding the election. This opinion confirms our order filed December 19, 2005, granting the petition and ordering Ek's name removed from the ballot.

On November 21, 2005, Governor Tim Pawlenty filed a Writ of Special Election for House District 15B and Senate District 15 with respondent Secretary of State, under Minn.Stat. §§ 204D.17 and 204D.22, subd. 1 (2004). The writ established November 28-December 1 as the candidate filing period, December 2 as the deadline for candidate affidavits of withdrawal, December 13 as the date for a special primary,² and December 27 as the date for the special election.

On November 28, 2005, Ek filed a Minnesota Affidavit of Candidacy for the District 15B house seat, in which she swore or affirmed that on the day of the special election she would have been a resident of District 15B for six months immediately preceding the election. Ek's affidavit of candidacy listed her residence as her parents' home in St. Cloud, Minnesota.

On December 9, 2005, Studer, an eligible voter in District 15B, filed a petition with this court under section 204B.44 alleging that Ek resided at an address on Niles Avenue in St. Paul, Minnesota (the "Niles Avenue home"), until at least July 9, 2005, a date less than six months before the December 27 special election. The petition requested an order requiring that respondent election officials remove Ek's name from the special election ballot,³ on the grounds that Ek would not have resided in the district for six months immediately preceding the special election as required by Minn. Const. art. IV, § 6.⁴ Petitioner attached to the petition voter registration documents purporting to show that Ek was registered as a voter in St. Paul until September 16, 2005, various website references showing a St. Paul address for Ek, and a City of St. Paul Office of License, Inspections and Environmental Protection ("LIEP") Home Occupation Affidavit signed by Ek, indicating the Niles Avenue home as her "principal residence." Petitioner later submitted affidavits in support of the petition from two neighbors who claimed to have observed Ek residing at the Niles Avenue home until mid-September 2005, and an affidavit from an employee of LIEP describing his communication with Ek concerning a complaint that she was operating a business out of the Niles Avenue home, including the Home Occupation Affidavit she submitted in response to the complaint.

We issued an order requiring service on Ek and setting a deadline for response to the petition. Ek moved to intervene, filed a response denying the allegations in the petition, and moved to dismiss based on untimeliness. We appointed the Honorable George Stephenson to serve as referee to take evidence and make findings of fact and provided an opportunity for the parties to file objections to the referee's findings and argue the matter to this court.

At the evidentiary hearing, the two neighbors of the Niles Avenue home testified that they saw Ek living at the St. Paul home, picking up mail, mowing the lawn, walking a dog, and having groups of visitors, into the fall of 2005. One of the neighbors testified that he filed a complaint with the city about excessive business-related traffic around the Niles Avenue home.

A license inspector from LIEP testified that he spoke with Ek in response to the neighbor's traffic complaint in July 2005. The inspector testified that he explained the rules of running a home business to Ek, including the requirement that "in order to be able to run a home occupation, basically a business out of a home, you had to live at * * * that home." He testified that Ek told him that she lived at the Niles Avenue home. The inspector testified he told Ek he would send her the rules for a home business and that she should read them and send back a signed affidavit of home occupation. He testified that the form Ek signed states that the home must be the principal residence of the person running the business to qualify as a home occupation.

The form, titled Home Occupation Affidavit, was introduced as an exhibit. The form, signed by Ek and dated July 9, 2005, states, "I, Susanne Ek, the undersigned, certify that I reside (RENTER) in the dwelling located at * * * Niles Avenue in Saint Paul. I would like to establish a nonprofit/home office type of business at the aforementioned address. I understand and agree to comply with the conditions stipulated for home occupation." The form also includes the following statements:

A home occupation is an occupation carried on in a dwelling unit by the resident thereof; provided that the use is limited in extent and incidental and secondary to the use of the dwelling unit for residential purposes * * *.

* * * *

All home occupation activities in dwelling units of less than 4,000 square feet of total living area, * * *, shall be conducted by no more than two (2) persons, for one (1) of whom the dwelling unit shall be the principal residence.

* * * *

For the purpose of subdivision (7), "principal residence" shall mean the dwelling where a person has established a permanent home from which the person has no present intention of moving. A principal residence is not established if the person has only a temporary physical presence in the dwelling unit.

(Emphasis added.)

Ek testified that she resided first in a Randolph Avenue property owned by her parents and then at the Niles Avenue home, also owned by her parents. She ran a business in which she was engaged with her mother from both residences. The business paid rent to Ek's parents for the Niles Avenue home.

Ek testified that she decided in early 2005 to move back to St. Cloud permanently and told her parents and others about that decision. She began moving her possessions from the Niles Avenue home to her parents' home in St. Cloud, where she intended to live until she bought either her parents' home or a neighbor's home.

Ek testified that she continued to visit, and occasionally stay overnight, at the Niles Avenue home in conjunction with running the business. Especially when she had to travel out of state for her business, she would stay overnight at the St. Paul address because it was close to the airport.

Ek testified that she changed her driver's license address only when she wanted to change her voter registration because she associated the two together. She said she did not file a change-of-address form with the post office because she did not want mail from mailing lists following her to St. Cloud.

Ek testified that her conversation with the St. Paul license inspector did not involve whether the Niles Avenue home was her residence, but only the limit on the number of people she could have at the house at one time for her business. Ek testified that she did not carefully read the Home Occupation Affidavit that she signed and that she did not understand it to say anything about her residency. She also thought she was only agreeing to the limit on the number of clients who could be at the house that she had discussed with the inspector. She thought her signature was on behalf of the business, indicating the business rented and occupied the property.

Ek's parents testified they understood Ek intended to move back to St. Cloud permanently. They believed she had done so before July 2005.

Based on the testimony and stipulated exhibits, the referee found as follows. Ek registered to vote in Sherburne County on September 16, 2005; she had been registered in Ramsey County until that date. Before November 21, 2005, Ek's home address was in St. Paul, according to Department of Public Safety driver's license records indicating that Ek was issued a license with an address in St. Cloud on November 21, 2005.

Ek's St. Paul next-door neighbor confirmed that during the summer of 2005 Ek continued to reside at the Niles Avenue home. In July of 2005, that neighbor lodged a complaint with LIEP concerning the volume of business-related traffic in and around the Niles Avenue home. Although Ek resided there, the...