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Empower the Taxpayer, On Behalf of Itself and the 28,000 North v. State Tax Commissioner Cory Fong

June 7, 2012

EMPOWER THE TAXPAYER, ON BEHALF OF ITSELF AND THE 28,000 NORTH DAKOTANS WHO SIGNED THE PETITION, CHARLENE NELSON, AND ROBERT HALE, PLAINTIFFS AND APPELLANTS
v.
STATE TAX COMMISSIONER CORY FONG, SENATOR DWIGHT COOK, SENATOR DAVID OEHLKE, REPRESENTATIVE CHARLES DAMSCHEN, REPRESENTATIVE LONNIE WINRICH, DIVIDE COUNTY COMMISSIONER DOUG GRAUPE, CASS COUNTY COMMISSIONER SCOTT WAGNER, WAHPETON FINANCE DIRECTOR DARCIE HUWE, WILLIAMS COUNTY AUDITOR BETH INNIS, NORTH DAKOTA ASSOCIATION OF COUNTIES, NORTH DAKOTA ASSOCIATION OF COUNTY COMMISSIONERS, NORTH DAKOTA LEAGUE OF CITIES, NORTH DAKOTA WEED CONTROL ASSOCIATION, NORTH DAKOTA SCHOOL BOARD ASSOCIATION,
DEFENDANTS STATE TAX COMMISSIONER CORY FONG, SENATOR DWIGHT COOK, SENATOR DAVID OEHLKE, REPRESENTATIVE CHARLES DAMSCHEN, REPRESENTATIVE LONNIE WINRICH, DIVIDE COUNTY COMMISSIONER DOUG GRAUPE, CASS COUNTY COMMISSIONER SCOTT WAGNER, WAHPETON FINANCE DIRECTOR DARCIE HUWE, WILLIAMS COUNTY AUDITOR BETH INNIS, NORTH DAKOTA ASSOCIATION OF COUNTIES, NORTH DAKOTA LEAGUE OF CITIES, NORTH DAKOTA SCHOOL BOARD ASSOCIATION,
APPELLEES



Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Bruce A. Romanick, Judge.

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

Supreme CourtEmpower the Taxpayer

N.D. v. Cory Fong,

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

[Download as WordPerfect]

2012 ND 119

AFFIRMED.

Opinion of the Court by Maring, Justice.

[¶1] Empower the Taxpayer, Charlene Nelson, and Robert Hale (collectively "Empower") appeal from an order dismissing their request for injunctive relief against numerous state and local government officials and other entities. We affirm, because Empower has failed to establish that there is a private right of action to enforce the provisions of the North Dakota Corrupt Practices Act, N.D.C.C. ch. 16.1-10.

I

[¶2] Empower supports North Dakota Initiated Constitutional Measure 2 to abolish property taxes which is on the June 2012 primary election ballot. In February 2012, Empower brought this action seeking injunctive relief against the defendants to prohibit them from, among other things, "advocating any position on Measure 2" and to declare them "no longer eligible to run for public office." Empower alleged the officials and entities had violated provisions of the Corrupt Practices Act by distributing false and misleading information about the effect of Measure 2. The district court dismissed the action, concluding "Empower lacks standing to bring this claim as the Corrupt Practices Act is a criminal law, the Defendants' actions did not violate Empower's legal rights, and the legislature did not imply a private right of action" for violation of the Act's provisions.

II

[¶3] The district court dismissed the action on the pleadings under N.D.R.Civ.P. 12(b)(vi). This Court will affirm dismissal of a complaint for failure to state a claim if we cannot discern a potential for proof to support it, and we review the district court's decision de novo. See Brandvold v. Lewis and Clark Pub. Sch. Dist. No. 161, 2011 ND 185, ¶ 6, 803 N.W.2d 827. Empower relies solely on the defendants' alleged violations of the Corrupt Practices Act, N.D.C.C. §§ 16.1-10-02 and 16.1-10-04, to support its action for injunctive relief. The dispositive issue on appeal is whether the district court erred in concluding there is no private right of action to enforce the provisions of the Corrupt Practices Act.

[¶4] The Corrupt Practices Act specifically provides criminal penalties for violations of its provisions. See N.D.C.C. § 16.1-10-01 (listing circumstances under which a person is "guilty of corrupt practice" under the Act); N.D.C.C. § 16.1-10-04 (class A misdemeanor for publication of false information in political advertisements); N.D.C.C. § 16.1-10-06 (infraction for electioneering on election day); N.D.C.C. § 16.1-10-08 (class A misdemeanor for violation of other provisions of Act for which another penalty is not specifically provided). Because the language of the Act does not expressly create a private right of action, this Court looks to whether the Legislature impliedly intended to create a private right of action, and Empower, as the party urging an implied right of action, bears the burden of proof to establish the ...


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