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Emineth v. Jaeger

United States District Court, North Dakota, Southwestern Division

October 31, 2012

Gary EMINETH, Plaintiff,
Alvin JAEGER, Secretary of State of North Dakota, in his official capacity; Wayne Stenehjem, Attorney General of North Dakota, in his official capacity; Richard J. Riha, Burleigh County State's Attorney, in his official capacity, Defendants.

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Monte Lane Rogneby, Vogel Law Firm, Bismarck, ND, for Plaintiff.


DANIEL L. HOVLAND, District Judge.

Before the Court is a " Motion for Preliminary Injunction" filed by the Plaintiff on October 25, 2012. See Docket No. 12. The defendants filed responsive briefs on October 29, 2012. See Docket Nos. 13-14. The parties have agreed there is no need for a hearing on the motion and the matter may be decided on the briefs. For the reasons set forth below, the motion is GRANTED.


The plaintiff, Gary Emineth, is a resident of Lincoln, North Dakota. Emineth challenges the constitutionality of Section 16.1-10-06 of the North Dakota Century Code, which provides as follows:

16.1-10-06. Electioneering on Election Day— Penalty.
Any person asking, soliciting, or in any manner trying to induce or persuade, any voter on an election day to vote or refrain from voting for any candidate or the candidates or ticket of any political party or organization, or any measure submitted to the people, is guilty of an infraction. The display upon motor vehicles of adhesive signs which are not readily removable and which promote the candidacy of any individual, any political party, or a vote upon any measure, and political advertisements promoting the candidacy of any individual, political party, or a vote upon any measure which are displayed on fixed permanent billboards, may not, however, be deemed a violation of this section.

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Emineth seeks to exercise his First Amendment right to engage in political activity on November 6, 2012— Election Day. He contends the North Dakota statute is an unconstitutional abridgment of his First Amendment right to free speech as incorporated against the states by the Fourteenth Amendment. Emineth is currently engaged in constitutionally-protected speech through a display of election yard signs on his private property, and he does not wish to take those signs down on November 6, 2012, as required by North Dakota law. Emineth states that he wishes to speak in support of candidates on Election Day by distributing flyers in public places, which state law prohibits. Emineth states that he frequently discusses the upcoming election with friends, family members, associates, and neighbors, and seeks to continue to do so on Election Day, but state law prohibits such actions. Emineth contends the plain language of Section 16.1-10-06 criminalizes all speech aimed at persuading a voter to cast (or not cast) his or her ballot in any particular way on Election Day. He argues that outlawing this conduct before it even takes place imposes a prior restraint on constitutionally-protected speech. Under North Dakota law, if a private individual advocates for or against a candidate, a ballot measure, or any party on an election day— whether to a family member, neighbor, friend, associate, or any other voter— that individual is subject to criminal prosecution. There are few exceptions to criminal prosecution, other than the limited exception for billboards and bumper stickers with particular adhesion qualities. See N.D.C.C. ยง 16.1-10-06.


In determining whether a preliminary injunction should be granted, Rule 65(b) of the Federal Rules of Civil Procedure directs the court to assess whether immediate and irreparable injury, loss, or damage will result to the applicant. The court is required to consider the factors set forth in Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir.1981). Whether a preliminary injunction or temporary restraining order should be granted involves consideration of " (1) the threat of irreparable harm to the movant; (2) the state of balance between this harm and the injury that granting the injunction will inflict on other parties litigant; (3) the probability that movant will succeed on the merits; and (4) the public interest." Id.

It is well-established that the burden of establishing the necessity of a temporary restraining order or a preliminary injunction is on the movant. Baker Elec. Coop., Inc. v. Chaske, 28 F.3d 1466, 1472 (8th Cir.1994); Modern Computer Sys., Inc. v. Modern Banking Sys., Inc., 871 F.2d 734, 737 (8th Cir.1989). " ‘ No single factor in itself is dispositive; in each case all of the factors must be considered to determine whether on balance they weigh towards granting the injunction.’ " Baker Elec. Coop., Inc., 28 F.3d at 1472 (quoting Calvin Klein Cosmetics Corp. v. Lenox Labs., Inc., 815 F.2d 500, 503 (8th Cir.1987)).


The plaintiff must show there is a threat of irreparable harm if injunctive relief is not granted, and that such harm is not compensable by money damages. Doe v. LaDue, 514 F.Supp.2d 1131, 1135 (D.Minn.2007) (citing Northland Ins. Cos. v. Blaylock, 115 F.Supp.2d 1108, 1116 (D.Minn.2000)). " The ‘ mere possibility’ that harm may occur before a trial on the merits is not enough." Johnson v. Bd. of Police Comm'rs, 351 F.Supp.2d 929, 945 (E.D.Mo.2004). The ...

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