Onstad v. Jaeger

Filed 09/25/20 by Clerk of Supreme Court

IN THE SUPREME COURT
STATE OF NORTH DAKOTA

2020 ND 203

Kenton Onstad, individually in his
capacity as a resident and elector of
North Dakota District 4 and as chair of
the District 4 Democratic-NPL Party, Petitioner
v.
Alvin Jaeger, in his capacity as
North Dakota Secretary of State, and
Terry B. Jones, Respondents

No. 20200251

Petition for Writ of Mandamus.

WRIT DENIED.

Per Curiam.

McLain J. Schneider, Fargo, ND, for petitioner.

Matthew A. Sagsveen, Solicitor General, Bismarck, ND, for responent Alvin
Jaeger, in his capacity as North Dakota Secretary of State.

Monte L. Rogneby, Bismarck, ND, for respondent Terry B. Jones.
 Onstad v. Jaeger, et al.
No. 20200251

Per Curiam.

[¶1] Kenton Onstad, individually in his capacity as a resident and elector of
North Dakota District 4 and as chair of the District 4 Democratic-NPL Party,
petitioned for a writ of mandamus to compel Secretary of State Alvin Jaeger to
remove Terry B. Jones from the general election ballot as a candidate for the
House of Representatives from District 4. Onstad argues Jones is
constitutionally ineligible to hold the office of representative from District 4
because he will not have been a North Dakota resident for one year
immediately prior to the November general election. We deny Onstad’s petition
for a writ of mandamus.

I

[¶2] Jones represented District 4 in the North Dakota House of
Representatives in the 2017 and 2019 legislative sessions. Jones was placed on
the 2020 primary election ballot as a North Dakota Republican Party
candidate for North Dakota House of Representatives from District 4. He was
nominated in the primary election to advance to the 2020 general election as a
candidate for representative from District 4.

[¶3] On September 8, 2020, Onstad sent Jaeger a letter requesting removal
of Jones’ name from the general election ballot, alleging Jones does not meet
residency requirements for election as a member of the North Dakota House of
Representatives. Onstad also asserted Jones should be removed from his
current seat in the state legislature. Onstad claimed a candidate must have
been a resident in North Dakota for one year immediately prior to the general
election to be eligible as a representative in the state legislature. Onstad
alleged Jones does not reside in North Dakota; he maintains a residence in
Wyoming; he is the registered agent for Jones Brothers Enterprises, LLC,
which is a Wyoming limited liability company; the company’s 2020 annual
report lists Jones as the registered agent with a mailing address in Wyoming;

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and a person may not serve as a registered agent for a Wyoming business
unless they reside in Wyoming.

[¶4] In a letter dated September 9, 2020, Jaeger denied Onstad’s request.
Jaeger stated he was unable to comply with Onstad’s request and explained
N.D. Const. art. IV, § 12 states that each house is the judge of the qualifications
of its members. Jaeger also explained, “Additionally, last Friday I forwarded
to the County Auditors my certification of the ballot for the November General
Election and the preparation of the ballot is well underway.”

[¶5] On September 16, 2020, Onstad petitioned this Court for a writ of
mandamus directing Jaeger to remove Jones’ name from the 2020 general
election ballot. Onstad contends Jones has not been a North Dakota resident
for one year immediately prior to the November 3, 2020 general election, and
therefore he is constitutionally ineligible to hold the office of representative in
the state legislature.

[¶6] Following oral argument, this Court ordered the district court to hold an
evidentiary hearing and make findings of fact on whether Jones will have been
a North Dakota resident for one year preceding the 2020 general election. On
September 22, 2020, the district court held an evidentiary hearing. After the
hearing, the court found Jones will have been a North Dakota resident for more
than one year at the time of the general election.

II

[¶7] Article VI, § 2, of the North Dakota Constitution gives this Court the
authority to issue, hear, and determine original and remedial writs as may be
necessary to properly exercise our jurisdiction. Our authority is discretionary
and may not be invoked as a matter of right. Bolinske v. Jaeger, 2008 ND 180,
¶ 4, 756 N.W.2d 336. “[T]he power to exercise our original jurisdiction extends
only to those cases where the questions presented are publici juris and affect
the sovereignty of the state, the franchises or prerogatives of the state, or the
liberties of its people.” Berg v. Jaeger, 2020 ND 178, ¶ 7, 948 N.W.2d 4 (quoting
Riemers v. Jaeger, 2018 ND 192, ¶ 5, 916 N.W.2d 113). “The interest of the

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state must be primary, not incidental, and the public must have an interest or
right that is affected.” Berg, at ¶ 7 (quoting Riemers, at ¶ 5).

[¶8] A writ of mandamus may be issued to compel the performance of an act
which the law specifically requires a state official to perform. N.D.C.C. § 32-
34-01. “A petitioner for a writ of mandamus must show a clear legal right to
performance of the act sought to be compelled and must establish no plain,
speedy, and adequate remedy exists in the ordinary course of law.” Berg, 2020
ND 178, ¶ 9 (quoting Riemers, 2018 ND 192, ¶ 7). The law must require an act
to be done to be enforceable by mandamus. Berg, at ¶ 9.

III

[¶9] Jaeger argues he does not have statutory authority to correct an alleged
ballot error after an election has begun. He contends, even if this Court
adjudicates Jones’ eligibility and determines he is not eligible, the provisions
of N.D.C.C. § 16.1-01-08 do not apply after the ballot has been printed and the
election has begun. He essentially argues the petition should be dismissed
because the issues are moot.

[¶10] Generally this Court does not address issues that are moot:

Courts will not issue advisory opinions and will dismiss an appeal
as moot if the issues become academic and there is no actual
controversy left to be determined. No actual controversy exists if
subsequent events make it impossible for a court to provide
effective relief, or if the lapse of time has made the issue moot.
Courts will determine a moot issue rather than dismiss an appeal,
however, if the controversy is one of great public interest and
involves the authority and power of public officials, or if the matter
is capable of repetition, yet evading review.

Nelson v. Nelson, 2020 ND 130, ¶ 7, 944 N.W.2d 335 (quoting In re Estate of
Shubert, 2013 ND 215, ¶ 12, 839 N.W.2d 811).

[¶11] Section 16.1-01-08, N.D.C.C., states in relevant part:

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 The secretary of state shall thoroughly investigate, when the
matter comes to the secretary of state’s attention, any of the
following:
1. Any error or omission which has occurred or is about to
occur in the placing of any name on an official election ballot.
2. Any error which has been or is about to be committed in
printing the ballot.
....
If required, the secretary of state shall order the officer or person charged
with such error, wrong, or neglect to correct the error, desist from the
wrongful act, or perform any required duty. The secretary of state may
call upon any county auditor for aid in investigation and correction of the
problem. The secretary of state shall cause any person who violates the
secretary of state’s order to be prosecuted, if the violation constitutes an
offense pursuant to this chapter. If the administrative remedies fail to
correct the problem, or if the secretary of state refuses to act, any person
may petition the supreme court . . . for an order compelling the correction
of the error, wrong, neglect, or act.

(Emphasis added.)

[¶12] In interpreting a statute, words are understood in their ordinary sense.
N.D.C.C. § 1-02-02. “Words and phrases must be construed according to the
context and the rules of grammar and the approved usage of the language.”
N.D.C.C. § 1-02-03.

[¶13] Section 16.1-01-08, N.D.C.C., specifically authorizes this Court to order
the secretary of state to correct an error which has occurred in placing any
name on a ballot or has been committed in printing the ballot. The statute uses
the words “which has occurred” and “has been . . . committed” which describes
an action that occurred in the past. The plain language of the statute indicates
an error may be corrected on a ballot that has already been printed.

[¶14] Furthermore, the statute does not include any time limitations on when
a person may petition for an order compelling the correction of an error or limit
when the court may order an error be corrected before the election. Cf. In re
Lopez, 593 S.W.3d 353 (Tex. Ct. App. 2018) (dismissing petition for a writ of
mandamus as moot because petition was filed on the day overseas ballots were

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mailed and statutory law stated an application to be placed on a ballot may not
be challenged for compliance with the applicable requirements after the day
before any ballot to be voted early by mail is mailed).

[¶15] Because N.D.C.C. § 16.1-01-08 authorizes the Court to order the
correction of an error on a printed ballot and does not limit the time for
correcting an error before the election, the issues raised in the petition are not
moot. Under the facts of this case, we decline to dismiss the petition for
mootness.

IV

[¶16] Onstad argues Jones is not eligible to hold the office of state legislator
because he will not have been a North Dakota resident for one year preceding
the election. Onstad contends undisputed evidence indicates Jones has been a
resident of Wyoming and not North Dakota during the year prior to the
election, including Jones owns a Wyoming limited liability company, Jones is
a registered agent for the company and indicated in its 2019 and 2020 annual
reports that he “resides” in Wyoming, he owns residential property in Wyoming
and listed the address of that property as his address in the annual reports, he
paid property taxes on that residential property in June 2020, he urges people
to contact him in his capacity as a state legislator at his Wyoming cell phone
number, and he receives fax correspondence from constituents at a Wyoming
number associated with his Wyoming company.

[¶17] Eligibility to hold elective office in the state legislature is governed by
N.D. Const. art. IV, § 5, which states:

Each individual elected or appointed to the legislative assembly
must be, on the day of the election or appointment, a qualified
elector in the district from which the member was selected and
must have been a resident of the state for one year immediately
prior to that election. An individual may not serve in the legislative
assembly unless the individual lives in the district from which
selected.

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 We have explained, “A resident of this state, as used in the Constitution,
means having had a legal residence ‘entitling one to vote or to hold office in the
state of North Dakota.’” Berg, 2020 ND 178, ¶ 11 (quoting State ex rel. Sathre
v. Moodie, 258 N.W. 558, 562 (N.D. 1935)).

[¶18] Several factors relevant to determining a person’s legal residence are set
forth in N.D.C.C. § 54-01-26:

Every person has in law a residence. In determining the place of
residence, the following rules must be observed:
1. It is the place where one remains when not called elsewhere for
labor or other special or temporary purpose and to which the
person returns in seasons of repose.
2. There can be only one residence.
3. A residence cannot be lost until another is gained.
....
7. The residence can be changed only by the union of act and intent.

A person may have several physical residences, but has only one legal
residence. Berg, 2020 ND 178, ¶ 12. A person’s intent to change their legal
residence is an important consideration, but “inconsistent acts can negate
declared intent.” Dietz v. City of Medora, 333 N.W.2d 702, 705 (N.D. 1983).

[¶19] “All of the facts and circumstances in an individual’s life may be used
when considering the factual issue of whether or not there has been a change
of legal residence.” Berg, 2020 ND 178, ¶ 12. Evidence that has been considered
to determine a person’s legal residence includes “declarations, payment of
taxes, licenses, business connections, property ownership, burial plans, church
membership, and membership in clubs.” Dietz, 333 N.W.2d at 705. A person
does not lose his legal residency solely because of temporary absences from the
area. Id. “Legal residence, determined under the rules in N.D.C.C. § 54-01-26,
is a question of fact to be determined by the factfinder.” Berg, at ¶ 12.

[¶20] Because Jones’ legal residence is a question of fact and this Court may
send issues of fact to be determined to the district court under N.D.C.C. § 27-
02-17, we asked the district court to hold an evidentiary hearing and make
factual findings about whether Jones will have been a resident of the State of

6
North Dakota for one year or more on November 3, 2020. The district court
found Jones will have been a North Dakota resident for more than one year at
the time of the general election, stating:

Terry B. Jones has had a North Dakota Driver’s License
since 2013. Mr. Jones’ current address is 413 Eagle Drive, New
Town, North Dakota.
Mr. Jones started voting in North Dakota State and local
elections solely in New Town, North Dakota, casting ballots on
November 8, 2016, November 6, 2018, and June 9, 2020. During
this time, Mr. Jones has not voted anywhere other than North
Dakota.
Mr. Jones has completed and filed a North Dakota income
tax return as a resident of North Dakota, paying income taxes on
all of his income, whether generated in North Dakota or elsewhere
in 2015, 2016, 2017, 2018, and 2019.
Mr. Jones has two vehicles that have been titled in North
Dakota since 2017. A third vehicle was titled in North Dakota in
2019.
Mr. Jones’ cattle brand is registered in North Dakota.
In 2017, Mr. Jones applied for and received a North Dakota
Concealed Weapon License applying as a North Dakota resident.
Mr. Jones’ CDL Medical Examiner Certificate was
completed by a North Dakota Doctor, and it lists a New Town,
North Dakota, address. Mr. Jones receives his medical and dental
care in North Dakota.
On January 22, 2016, Mr. Jones registered Jones Brothers
Enterprises LLC[ ] as a foreign limited liability company in the
State of North Dakota, and he has been the registered agent in
North Dakota from that time to the present.
On May 7, 2019, Mr. Jones filed with the North Dakota
District Court a Verified Complaint in which he swore under oath
that he was a resident of Mountrail County, North Dakota.
Mr. Jones has worked and lived in North Dakota since at
least 2015.
....
Terry B. Jones has been a resident of the State of North
Dakota for more than one year, and will be a resident of the State
of North Dakota for more than a year on November 3, 2020.

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[¶21] The district court’s factual findings are entitled to appreciable weight.
Berg, 2020 ND 178, ¶ 15. After reviewing the entire record, we conclude the
district court’s findings are supported by substantial evidence. We adopt the
court’s findings.

[¶22] Considering all of the facts and circumstances, Jones will have been a
North Dakota resident for more than one year at the time of the November 3,
2020 general election. We conclude Jones satisfies the constitutional residency
requirement for election to the office of state legislator and it was not error to
place his name on the ballot.

V

[¶23] We deny Onstad’s petition for a writ of mandamus.

[¶24] Jon J. Jensen, C.J.
Lisa Fair McEvers
Daniel J. Crothers
Gerald W. VandeWalle
Jerod E. Tufte

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