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Steven Zaiser, As Chairman of the Sponsoring Committee For the v. Alvin A. Jaeger

October 23, 2012

STEVEN ZAISER, AS CHAIRMAN OF THE SPONSORING COMMITTEE FOR THE STATUTORY INITIATIVE RELATING TO THE NORTH DAKOTA MEDICAL MARIJUANA ACT,
PETITIONER
v.
ALVIN A. JAEGER, AS SECRETARY OF STATE OF NORTH DAKOTA,
RESPONDENT



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

N.D. Supreme CourtZaiser v. Jaeger, 2012 ND 221

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

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Writ of Prohibition. DENIED.

Opinion of the Court by Kapsner, Justice.

[¶1] Steven Zaiser, as Chairman of the Sponsoring Committee for the Statutory Initiative Relating to the North Dakota Medical Marijuana Act, asks this Court to order Secretary of State Alvin Jaeger to place an initiated measure for the Medical Marijuana Act on the November 6, 2012, general election ballot after the Secretary of State rejected 7,559 signatures on circulated petitions and decided the measure did not qualify for placement on that ballot. The Sponsoring Committee claims that although the submitted petitions included some elector signatures forged by petition circulators, the petitions contained sufficient valid signatures to place the measure on the ballot. Because of time constraints for placing the measure on the November 6, 2012, ballot, we issued a dispositive order on September 19, 2012, denying the Sponsoring Committee's request for relief and stating a written opinion would be filed at a later date. See Bolinske v. Jaeger, 2008 ND 180, ¶ 1, 756 N.W.2d 336; Municipal Servs. Corp. v. Kusler, 490 N.W.2d 700, 701 (N.D. 1992).

[¶2] The right to initiate and refer laws as a check on the legislative process is part of the fabric of our liberty, which is reserved to the people of North Dakota in the self-executing and mandatory provisions of N.D. Const. art. III. Thompson v. Jaeger, 2010 ND 174, ¶ 1, 788 N.W.2d 586. However, the people of North Dakota have also specified mandatory requirements for their exercise of the right to initiate laws, including a requirement that petition circulators "swear thereon that the electors who have signed the petition did so in their presence." N.D. Const. art. III, § 3. Because the circulators' petitions at issue in this case included signatures forged by the circulators in violation of that mandatory constitutional provision, the Secretary of State correctly rejected those petitions in calculating the number of elector signatures necessary to place the measure on the November 6, 2012, ballot and correctly determined the remaining petitions contained insufficient signatures to place the measure on that ballot. We issue this written opinion denying the Sponsoring Committee's request for relief.

I

[¶3] On May 22, 2012, the Sponsoring Committee submitted a petition for an initiated measure to enact the North Dakota Medical Marijuana Act to the Secretary of State for review and approval for circulation. The Secretary of State approved the petition for circulation on June 4, 2012. On August 6, 2012, the Secretary of State accepted delivery of 460 petitions for the initiated measure, which contained 20,092 signatures. The submitted petitions had attached circulators' affidavits required by N.D. Const. art. III, § 3, which followed the language of N.D.C.C. § 16.1-01-09(3) and said "that each signature contained on the attached petition was executed in my presence; and that to the best of my knowledge and belief each individual whose signature appears on the attached petition is a qualified elector; and that each signature contained on the attached petition is the genuine signature of the individual whose name it purports to be."

[¶4] The Secretary of State thereafter reviewed the petitions to determine their sufficiency and requested assistance from the Attorney General to investigate suspected forged signatures on the petitions. An August 17, 2012, report by an agent with the Bureau of Criminal Investigation stated:

During the North Dakota Secretary of State's review of the petitions, several concerns were raised regarding various petitions. Several of the petitions that had been circulated by various petition circulators contained qualified elector signatures that appeared to possibly have been forged. When looking at individual petitions, the North Dakota Secretary of State's office observed that several of the qualified elector signatures on the same petitions appeared to have different qualified elector names written in the same ink with the same penmanship.

[¶5] Bureau of Criminal Investigation reports reflect that on August 22, 2012, an agent interviewed six petition circulators and all six circulators admitted they had forged signatures on petitions circulated by them. One circulator admitted that "every signature he turned in" was forged. Another circulator could not estimate the percentage of legitimate signatures he obtained, but thought he turned in "more legitimate signatures tha[n] forged signatures." Another circulator "had no idea the number of signatures he forged versus the number of legitimate signatures he obtained." Another circulator "estimated that about half (1/2) the signatures he turned in were legitimately obtained signatures." Another circulator stated "most of the signatures he turned in . . . were forged." Another circulator stated "over half (1/2) of the signatures he turned in were forged signatures." The investigative reports state an agent met with the circulators and they "indicated that [they] would not be able to identify any legitimate signatures [they] obtained with a level of confidence that [they] would be willing to sign a petition circulator affidavit indicating the signatures were legitimately obtained."

[¶6] On September 4, 2012, the Secretary of State sent the Chairman of the Sponsoring Committee a letter, stating the Secretary of State had reviewed the sufficiency of the submitted petitions and notifying the Chairman the measure did not satisfy threshold signature requirements for placement on the November 6, 2012, general election ballot:

As summarized on the next page, the review conducted by my office (and based on an investigation conducted by the Bureau of Criminal Investigation) revealed that I am unable to accept at least 7,559 signatures. When that number is subtracted from the 20,092 signatures that were submitted on the petitions, the remaining balance is 12,533 or 919 signatures fewer than the required threshold of 13,452. The Secretary of State identified 6,045 signatures gathered by circulators who were "unwilling to re-affirm with their signature[s]" a circulator's affidavit in language following N.D.C.C. § 16.1-01-09(3). The Secretary of State also identified 1,514 additional signatures that could not be accepted for other reasons, including "bogus names, circulator from out-of-state, petition not circulated in its entirety, no address associated with signature, only a first name or a last name, no name, signature with out-of-state address, some person signed their own name and that of spouse/friend, no date appears on signature line beginning with first line, no date appears on signature line at the end, [and] date of signature was after the date the notarial act was executed." The Secretary of State indicated "[t]here was no random selection made of 2,000 names from the petitions for mailing postcards because the circulators had already indicated they would not re-affirm that all the signatures were genuine on the petitions they claimed to have circulated."

[¶7] On September 10, 2012, the Secretary of State "certif[ied to County Election Officials] the contests, candidates, and measures (including ballot language) that will appear on the ballot" for the November 6, 2012, general election. On September 14, 2012, the Chairman of the Sponsoring Committee asked this Court to "exercise its original jurisdiction and issue an order instructing the Secretary of State to place the initiated measure on the November 6, 2012, general election ballot and issue an immediate injunction preventing the Secretary of State from approving or printing any ballots until a ruling from this Court is made." After a responsive brief by the Secretary of State and a reply brief by the Chairman of the Sponsoring Committee and because of time constraints for placing the initiative measure on the November 6, 2012, ballot, we issued a dispositive order on September 19, 2012, denying the requested relief and stating a written opinion would be filed at a later date. See Bolinske, 2008 ND 180, ¶ 1, 756 N.W.2d 336; Municipal Servs. Corp., 490 N.W.2d at 701. II

[¶8] Under N.D. Const. art. III, "the people reserve the power to propose and enact laws by the initiative." N.D. Const. art. III, § 1. The provisions of N.D. Const. art. III, are self-executing and mandatory; however, the legislature may enact laws to facilitate and safeguard, but not to hamper, restrict, or impair the people's legislative powers. N.D. Const. art. III, § 1. The people's power to initiate legislation is a fundamental right, and we construe constitutional and statutory provisions liberally in favor of the people's exercise of their power. ...


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