Timm v. Schoenwald

• Decision Date: 27 January 1987
• Docket Number: No. 870001CV,870001CV
• Parties: Mike TIMM, Contestant and Appellant, v. Larry SCHOENWALD; Dave Senger, County Auditor of Ward County; The County Canvassing Board of Ward County and its members, Helen Hurly, Dorothy Osteroos, Joan Hauge, Delores Bretheim, John Petrik, Joan Perkins, Brenda Zent, John Semingson, and Stanley Saugstad; The Recount Board of Ward County and its members, Ken Kruse, Ed Leonard, and Gary Williamson; and Ben Meier, North Dakota Secretary of State; Contestees and Appellees.
• Court: North Dakota Supreme Court

Page 260

400 N.W.2d 260

Mike TIMM, Contestant and Appellant, v. Larry SCHOENWALD; Dave Senger, County Auditor of Ward County; The County Canvassing Board of Ward County and its members, Helen Hurly, Dorothy Osteroos, Joan Hauge, Delores Bretheim, John Petrik, Joan Perkins, Brenda Zent, John Semingson, and Stanley Saugstad; The Recount Board of Ward County and its members, Ken Kruse, Ed Leonard, and Gary Williamson; and Ben Meier, North Dakota Secretary of State Contestees and Appellees.

No. 870001CV.

Supreme Court of North Dakota.

Jan. 27, 1987.

Robert S. Rau, of Bosard, McCutcheon & Rau, Minot, for contestant and appellant.

John J. Petrik, of Pringle & Herigstad, Minot, for contestees and appellees.

Terry L. Adkins (appearance), Asst. Atty. Gen., Bismarck, for North Dakota Secretary of State.

VANDE WALLE, Justice.

Mike Timm appealed from a district court judgment dismissing his election contest against Larry Schoenwald, the Ward County Auditor, the Ward County Canvassing Board and its members, the Ward County Recount Board and its members, and the Secretary of State [Contestees]. We affirm.

Timm and Schoenwald were candidates in the November 4, 1986 general election for the office of State Senator from the Fifth Legislative District in Ward County, North Dakota. On November 7, 1986, the Ward County Canvassing Board certified Timm as the winner of the election by one vote. The North Dakota Canvassing Board certified the results of the Ward County Canvassing Board and thereafter the Secretary of State issued a certificate of election to Timm.

Because Timm's margin of victory was less than one-half of one percent, the Ward County Recount Board conducted a mandatory recount and thereafter determined Schoenwald to be the winner of the election by five votes. The Secretary of State rescinded and revoked the certificate of election issued to Timm, and the Ward County Auditor certified the results of the Ward County Recount Board and prepared a corrected abstract of the votes in the election. The North Dakota Canvassing Board canvassed the corrected abstracts and, on November 26, 1986, certified Schoenwald as the winner of the election. On the same date the Secretary of State issued a certificate of election to Schoenwald.

Timm filed this election contest against the Contestees in district court on December 1, 1986, and served them with a summons and complaint on December 2, 1986. Timm alleged that he was improperly denied a certificate of election and that Schoenwald was improperly granted a certificate of election because of the following errors:

"a. Actions of election officials in the 5th Legislative District whereby 29 people were allowed to vote in the 5th District Precinct 6-A who were in fact not residents of said District nor precinct. That said 29 voters were and are in fact persons who and do [sic] reside in the 40-50th Legislative District and incorrectly, illegally, and erroneously voted in the 5th Legislative District and Precinct 6-A.

"b. That the Recount Board did erroneously and unlawfully count defaced and overvoted ballots identified by the Recount Board.

"c. That the Recount Board erroneously and unlawfully counted a vote twice for Larry Schoenwald when it should not have been counted at all.

"d. That Said Recount Board did in fact disenfranchise 11 duly counted resident voters of the 5th Legislative District by its action in disregarding and not counting such votes when said ballots were duly stamped by an election official of the precinct in which the same were cast but not initialed. That these duly qualified electors of the 5th Legislative District were disenfranchised by the Recount Board because of error, neglect, and wrongdoing on the part of election officials."

Timm requested the district court to determine that he was the duly elected candidate for the Senate seat in the Fifth Legislative District and to direct the appropriate officials to issue a certificate of election to him and annul the certificate of election issued to Schoenwald. Alternatively, Timm requested the district court to annul any previously issued certificate of election, to determine that the office was vacant, and to direct that a new election be held in Precinct 6-A of the Fifth Legislative District.

Schoenwald and the Ward County election officials moved to dismiss the action, asserting that the district court did not have jurisdiction to hear a legislative-election contest and, alternatively, that the action was not commenced within the time required by Section 16.1-16-04, N.D.C.C. The district court dismissed with prejudice, concluding that it did not have jurisdiction to hear the action and did not address the timeliness issue.

Timm contends that the district court had jurisdiction to hear this legislative-election contest because Chapter 16.1-16, N.D.C.C., authorizes two alternative forums for hearing legislative-election contests. He argues that legislative-election contests may be heard either in district court or in the Legislature because Sections 16.1-16-01 through 16.1-16-09, N.D.C.C., do not specifically prohibit legislative-election contests to be heard in district court nor do Sections 16.1-16-10 through 16.1-16-17, N.D.C.C., specifically require legislative-election contests be heard only before the Legislature. The Contestees respond that, when read together, Sections 16.1-16-04 and 16.1-16-10, N.D.C.C., require legislative-election contests to be heard only before the Legislature and that the district court does not have jurisdiction to hear those actions.

The resolution of this issue requires us to construe the statutory scheme for election contests in Chapter 16.1-16, N.D.C.C. ¹ In construing a statute it is well established that our duty is to ascertain the intent of the Legislature. E.g., County of Stutsman v. State Historical Society of North Dakota, 371 N.W.2d 321 (N.D.1985). A statute must be considered as a whole to determine the intent of the Legislature. E.g., In Interest of Nyflot, 340 N.W.2d 178 (N.D.1983). The Legislature's intent must be sought initially from the language of the statute as a whole. E.g., Morton County v. Henke, 308 N.W.2d 372 (N.D.1981).

Section 16.1-16-04, N.D.C.C., provides:

"Time for commencement of action. Any action to contest an election shall be commenced and the complaint shall be filed in the district court of the contestee's county of residence within five days after final certification of a recount by the appropriate canvassing board, or within fourteen days after the final certification by the appropriate canvassing board if no recount is to be conducted, except as provided in section 16.1-16-10. However, if the grounds for the action is the illegal payment of money or other valuable thing subsequent to the filing of any statement of expenses required by this title, or if the contestee does not or cannot meet the qualifications to hold the office as required by law, the action may be commenced at any time. The contestee shall serve and file his answer within fourteen days after service of the contest summons and complaint." [Emphasis added.]

Section 16.1-16-10, N.D.C.C., provides:

"Legislative contest of election. Legislative election contests shall be determined pursuant to sections 16.1-16-10 through 16.1-16-17. Any person intending to contest, before either house of the legislative assembly, the election of a member of the legislative assembly shall serve on that member a statement of contest, which shall specify the grounds for the contest. The statement shall be served on the member and a copy filed with the secretary of state within five days after a recount is completed, and within ten days after the canvass is completed if no recount is to be conducted." [Emphasis added.]

Additionally, Section 16.1-16-06, N.D.C.C., provides that "[u]nless otherwise specifically provided in this Chapter, election contest actions shall be tried as civil actions to the court without a jury," and Section 16.1-16-09, N.D.C.C., provides that "[u]nless otherwise specifically provided by this Chapter, appeals of election contest actions shall be conducted in the manner provided by law or rule for civil appeals from the district court." ² Section 16.1-16-15, N.D.C.C., provides that a "legislative election contest shall be heard and decided as provided by the legislative assembly."

Ordinarily, the use of the word "shall" in a statute indicates a mandatory duty and the use of the word "may" indicates directory duty; however, where necessary to give effect to intent, the word "shall" will be construed as "may." In Interest of Nyflot, 340 N.W.2d 178 (N.D.1983).

We believe the mandatory word "shall" in the above-cited statutes coupled with the "except as provided in section 16.1-16-10" and the "[u]nless otherwise specifically provided in this Chapter" language manifests an intent that legislative-election contests must be heard only before the Legislature. If the Legislature had intended to provide alternative forums for legislative-election contests it would have used the directory word "may" and it would not have included the "except as provided in Section 16.1-16-10" or the "unless otherwise specifically provided in this Chapter" language.

Moreover, the logical extension of Timm's argument would permit legislative-election contests to be heard in either the district court or the Legislature and could conceivably lead to a different result by each body on the same election. That scenario is inconsistent with our principal of separate branches of government and sets up a possible confrontation between the legislative and judicial branches of government. We do not believe the Legislature intended that result, nor do we believe it is consistent with the language of Chapter 16.1-16, N.D.C.C.

We also note that Section 16.1-16-01(8), N.D.C.C., provides that "results of any recount of votes cast in an election of a member of the legislative...