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Recallnd v. Alvin Jaeger

December 21, 2010

RECALLND, PETITIONER
v.
ALVIN JAEGER, SECRETARY OF STATE FOR NORTH DAKOTA, RESPONDENT



The opinion of the court was delivered by: Sandstrom, Justice.

N.D. Supreme CourtRECALLND v. Jaeger, 2010 ND 250

This opinion is subject to petition for rehearing. [Go to Documents] [Download as WordPerfect]

Petition for original jurisdiction.

PETITION DENIED.

Opinion of the Court by Sandstrom, Justice.

RECALLND v. Jaeger

[¶1] The right to recall their elected officials is an important liberty reserved by the people of North Dakota. The people have reserved this power over their elected officials through the state constitution. Within the state constitution, however, the people of North Dakota have limited their recall power to certain offices created under state law.

[¶2] RECALLND, a North Dakota nonprofit corporation, asks this Court to order Secretary of State Alvin Jaeger to approve for circulation its petition to recall United States Senator Kent Conrad. Sections 1 and 10, N.D. Const. art. III, provide that only certain elected officials may be recalled by the people of North Dakota. The Secretary of State concluded a United States Senator is not among those officials subject to recall. Although Senator Conrad has been elected by the voters of North Dakota, the office of United States Senator is created by the Constitution of the United States, not the Constitution of the State of North Dakota. The recall of a United States Senator elected from North Dakota would need to be both authorized by the Constitution of the State of North Dakota and permitted by the Constitution of the United States. Because the recall of a United States Senator is not authorized by North Dakota's Constitution, we need not decide the federal constitutional question. We deny RECALLND's request to order the Secretary of State to approve its petition for the recall of United States Senator Kent Conrad.

I

[¶3] RECALLND founder Joseph Wells delivered a letter and a petition form for the recall of United States Senator Kent Conrad to the Secretary of State in May 2010. His letter stated the petition form was a "first draft" and asked the Secretary of State to notify him of any changes that needed to be made. Ten days after Wells's letter and petition form were received by the Secretary of State, Attorney General Wayne Stenehjem issued an opinion concluding North Dakota law does not permit the recall of a congressional official, specifically a United States Senator. The Attorney General relied on N.D. Const. art. III, § 10, which he believes restricts the recall process to state government officials and other public offices created under the laws of North Dakota.

[¶4] Relying on the Attorney General's opinion, the Secretary of State informed Wells that he did not have the authority to approve RECALLND's petition for circulation. RECALLND now asks this Court to order the Secretary of State to approve its petition to begin the recall of United States Senator Kent Conrad.

II

[¶5] RECALLND contends we must exercise original jurisdiction in this matter because sections 6 and 7, N.D. Const. art. III, confer mandatory original jurisdiction over all decisions of the Secretary of State regarding petitions. The Secretary of State argues sections 6 and 7 apply only to initiative and referendum petitions, not to recall petitions. He does submit, however, that it is appropriate for this Court to decide this case by exercising discretionary jurisdiction under N.D.C.C. § 27-02-04.

[¶6] Section 5 has provisions dealing with the specific procedures regarding initiative and referendum petitions, but does not mention recall petitions. Section 6 uses the phrase "such petition" to refer to the petitions delineated in section 5. Section 7 outlines the process of reviewing the Secretary of State's decisions made under the guidelines of section 6. Taken together, the amendment's language shows that sections 6 and 7 apply exclusively to initiative and referendum petitions. Not once is the recall process mentioned or referred to in sections 2 through 9. Accordingly, sections 6 and 7, N.D. Const. art. III, do not govern recall petitions.

[¶7] RECALLND seeks a writ of mandamus under N.D.C.C. § 32-34-01 compelling the Secretary of State to approve its petition for circulation. This Court has the power to issue original writs under N.D. Const. art. VI, § 2. The exercise of this power is left to this Court's discretion and cannot be invoked as a matter of right. Bolinske v. Jaeger, 2008 ND 180, ¶ 4, 756 N.W.2d 336. "It is well-settled that our power to exercise original jurisdiction extends only to those cases in which the questions presented . . . affect the sovereignty of the state, the franchises or prerogatives of the state, or the liberties of its people." Kelsh v. Jaeger, 2002 ND 53, ¶ 2, 641 N.W.2d 100; see also ...


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