McCarney v. Meier

ERICKSTAD, Chief Justice,

dissenting.

I respectfully dissent.

Although Justice Pederson, in speaking for the majority of our court correctly states principles of constitutional construction, in his search for the meaning of the present language of the pertinent provisions of our State Constitution he has ignored recent history and thus has arrived at conclusions of law that are strained and that fail to express the actual intent of our people. In view of our decision in Hernett v. Meier, 173 N.W.2d 907 (N.D.1970), and the response of the people of our state through their approval of a constitutional amendment (N.D.Const. art. 105, § 1(3) adopted in 1979) requiring that each elector signing a petition to refer a law enacted by the Legislature also write in his post-office address, it is incumbent upon this court to recognize that change in the constitution and act accordingly.

When Hernett was decided in 1970, the requirement that each signer of a referral petition also add his residence and post-office address was statutory only. Such a requirement was not a part of our State Constitution, which, subject to the United States Constitution and treaties appropriately entered into, is the highest law in our state. As the majority opinion in Hernett said, “All that the Constitution requires is that the person sign his own name and that he be an elector of the State of North Dakota.” At that time the Constitution required nothing more. Article II Section 25 of our Constitution, in effect at that time, said that, “Laws may be enacted to facilitate its operation, but no laws shall be enacted to hamper, restrict, or impair the *789exercise of the rights herein reserved to the people.” On the basis of the foregoing constitutional provisions, the majority in Harriett interpreted the statutory requirement for residence and post-office address as being met by those signers listing only their county, city, and state. I dissented in Her-nett, saying that the unfortunate result of the majority’s approach in reviewing referendum petitions was to make discovery of, and prosecution for, fraud almost impossible. I suggested that such an approach might ultimately discredit the referendum process. In that dissent I stressed the need for constitutional and statutory reform to, in essence, build integrity into the system.

Although constitutional change occurs slowly, and rightfully so because hastily conceived and adopted changes could be very disruptive if not disastrous, constitutional reform did come when our people, on November 7, 1978, approved Article 105 as an amendment to the Constitution of North Dakota.1 Section 3 of Section 1 of Article 105 provides in relevant part:

“Each elector signing a petition shall also write in the date of signing and his post-office address.”

In view of the foregoing historical background leading to the approval of Article 105 by our people, one cannot read that provision to mean anything other than what it says, that is, “Each elector shall write in the date of his signing and his post-office address.” The Secretary of State, in performing his constitutional duties, determined that an address to comply with this provision would have to be complete enough to permit delivery of mail by the postal service to the signer at the address written by the signer on the petition.2 That was a reasonable conclusion in light of his responsibilities to pass upon the sufficiency of the petitions (in effect, to verify the authenticity of the signatures).3

In his affidavit, dated September 21, 1979, the Secretary of State says in relevant part:

“On August 10,1979,1 caused 250 cards to be mailed to individuals whose post office address was indicated as ‘Bismarck’, ‘Mandan’, ‘Dickinson’ and several other large cities throughout the state; the addresses used on the cards were the addresses given on the petitions when originally filed (Exhibits 8-1 through 8-284). On August 16, 1979, I caused an additional 110 cards to be mailed to individuals in the same cities. 290 of all cards were returned unlivered [undelivered] because of ‘insufficient addresses’.”

In Hernett our court utilized an abuse of discretion standard for reviewing the secretary’s determination of the sufficiency of referendum petitions. Justice Strutz, speaking for the majority, said:

“So the Constitution places upon the Secretary of State the duty of determining, in the first place, whether the petitions conform to the requirements of the Constitution and the laws of this State. In the discharge of such responsibility placed upon him, the Secretary of State must exercise a certain amount of discretion. Can we say that he has abused this discretion in passing upon the petitions *790here under consideration? We do not believe that an abuse of discretion has been shown.” 173 N.W.2d at 918.

If the Secretary of State is authorized by our State Constitution to exercise discretion, we must recognize that the discretion is his, not ours. In my view he did not abuse his discretion in determining that the addresses placed on the petitions were insufficient when mail addressed to those addresses was returned as undeliverable. His decision should be upheld especially in light of the way that he illuminated the path by which the petitioner could proceed to comply with the State Constitution.

The Secretary of State, by letter dated July 24, 1979, informed the petitioner, Robert P. McCarney, of the exact manner in which the petitions could be made to comply with the State Constitution:

“It is necessary that you return each numbered petition requiring correction to the same circulator who signed the affidavit and who circulated such petition. The circulator must contact each signer whose address needs to be completed and have such signer write his or her complete address, as is now required by the Constitution.
“Each petition returned with corrections or amendments should be accompanied by an affidavit of the circulator stating that he (or she) previously circulated the petition, that he (or she) personally contacted the signers who needed to complete their addresses, that he (or she) witnessed each signer write his (or her) complete Post Office address, and that he (or she) knows that the persons who signed the petition initially are the same persons who wrote in their own Post Office addresses.”

Notwithstanding those specific and clear instructions, the petitioner did not follow them. Instead, he had persons who were apparently not even circulators insert house numbers and street addresses in the petitions, by the use of telephone directories, for signers who had originally failed to do so. In Hernett, it was urged that a number of signatures were invalid because the petition circulator inserted the residence and post-office addresses of the signers out of the immediate presence of the signers. In upholding that practice, Justice Strutz, speaking for the majority of the court, said:

“As we heretofore have pointed out, all that the Constitution requires is that the person sign his own name and that he be an elector of the State of North Dakota. These signatures clearly comply with this fundamental constitutional requirement. Nowhere in the Constitution is there a requirement that the signer of the petition place his residence, postoffice address, and date of signing on the petition in his own handwriting.”

In response to that statement, the Legislature passed a concurrent resolution providing for a constitutional amendment and our people approved it.4 That amendment, which is contained in Article 105 of our State Constitution, now specifically requires that each elector sign his name and also write in his post-office address on any referral petition. It cannot now be an abuse of discretion for the Secretary of State to insist that the post-office address be written on the petitions by the electors signing the petitions in compliance with Article 105.

Justice Pederson has ignored the historical background leading to the adoption of Article 105 and in so doing he has arrived at a conclusion that ignores the intent of both the Legislature and the people to provide a referral process that discourages fraud. His refusal to interpret the constitutional requirement of a post-office address as necessitating a street or number is based primarily on the view that the sample petition may have misled the signers. It should be noted that most of the signers having a street or number did include these items as part of their post-office address on the petitions. It is unfortunate if some of the signers were misled by the sample, but such a possible circumstance cannot justify reading an exception into the Constitution where none exists. If it could justify such an exception, the vitality of numerous con*791stitutional mandates would be entirely dependent upon the acts of governmental officers and employees. Such an approach is a frail basis upon which to construe constitutional provisions.

Justice Pederson says that the post-office address requirement “should not work to the disadvantage of the qualified electors who signed the petitions and expected their signatures to be counted.” This cannot be a sufficient reason to allow noncompliance with a constitutional mandate.

In the case of Kuhn v. Beede, 249 N.W.2d 230 (N.D.1976), this court held, in an opinion written by Justice Paulson, that an absent voter’s ballot could not be counted in those instances where the election officials failed to stamp and initial the ballot as an official ballot pursuant to the statutory requirement. It was therein urged that the absent voters should not be denied their privilege to vote through the default or neglect of an election officer to properly endorse the ballots. The majority of this court rejected that argument and quoted approvingly from the case of Miller v. Schallern, 8 N.D. 395, 79 N.W. 865, 866-67 (1899),

‘ . . . counsel’s utmost contention is that an enforcement of the statute as it reads may in some cases operate, and in the case at bar will operate, practically to deprive electors of their constitutional right to vote, and to have their votes counted. But this cannot be made a test of the validity of any regulative statute. There are many regulative provisions in election statutes the enforcement of which will and do operate to deprive voters of their privilege, and yet their constitutionality cannot be successfully challenged. . . .’” 249 N.W.2d at 237-38.

In holding that the absent voters’ ballots in Kuhn could not be counted, we said:

“The contention is made that, because fraud has not been alleged in the casting of the 202 absent voters’ ballots which were not endorsed with the official stamp and initials, they should be counted notwithstanding that the law specifically provides that such ballots are void. If we were to hold that unless fraud is alleged such ballots shall be counted, we would be encouraging such allegations in the future. An allegation of fraud is easily made but is difficult to prove. . It is no doubt because of this difficulty and the consequences in the election process of such a requirement that the legislature required the stamping and initialling of ballots in order to prevent fraud in the first instance. Although we can conceive of means by which such a procedural safeguard might be circumvented, and although there may be other means that could be devised to prevent fraud, we cannot conclude that the means adopted by our legislature does ‘not contribute substantially to the integrity of the election process’.” 249 N.W.2d at 236.

The foregoing reasoning in Kuhn is even more compelling in the instant case because we are dealing here with a constitutional mandate, not merely a legislative one. We cannot validly interpret out of existence the constitutional requirement of a post-office address on the ground that the signatures of some qualified electors may not be counted if the requirement is upheld.

Through the appellate brief prepared by counsel for the Secretary of State and by the personal affidavit of the Secretary, this court has been informed of certain irregularities in the referral petition process which were discovered by the Secretary of State during his investigation into the sufficiency of the petitions. The validity of 1,842 signatures may be affected by one or more of the following irregularities: (1) Persons signing petitions as circulator did not personally circulate the petitions; (2) Dates of notarization on petitions were changed subsequent to the notarization; and (3) Petitions were notarized prior to acquisition of any signatures on the petitions.

Section 3 of Section 1 of Article 105 of our Constitution, reads:

“The petition shall be circulated only by electors. They shall swear thereon that the electors who have signed the petition did so in their presence.”

*792A circulator who does not personally circulate a petition cannot swear thereon that the electors who have signed the petition did so in their presence. If the circulator does so swear, he has sworn falsely. An appropriate deterrent of such perjury would be rejection of the petition.

As the Secretary of State did not include these irregularities in his notice informing the petitioner of matters requiring correction, they may not be a basis for the Secretary’s rejection of signatures. Notwithstanding that, fact, if the foregoing irregularities are true they further demonstrate the type of loose procedure that our State Constitution as now written was designed to prevent.

By the approval of Article 105, our people have responded to the need for constitutional reform to strengthen the referendum process against the potential for fraud. For the reasons stated herein, I would uphold the Secretary of State’s refusal to place the referred statute on the ballot.

.The delegates of the 1972 Constitutional Convention submitted an entirely new state constitution which the voters rejected on April 28, 1972. That proposed constitution included the following provision regarding the referendum process, “Each elector signing a petition shall also write in the date of signing and his post-office address.” The 1977 Legislature adopted House Concurrent Resolution Number 3088 (S.L.1977, Ch. 613, § 1) for the creation of a new article (Article 105) to the Constitution of the State of North Dakota. That resolution, which includes the identical provision quoted herein with regard to the referendum process, was approved by the voters on November 7, 1978.

. In Dawson v. Meier, 78 N.W.2d 420, 428 (N.D.1956), this court defined a “post office address” as follows: “The post office address of a person is the place to which his mail is directed in order that it may be delivered to him by the post office. Or, in other words, it is the place where he gets his mail.”

. “The secretary of state shall pass upon each petition, and if he finds it insufficient, he shall notify the ‘Committee for the Petitioners’ and allow twenty days for correction or amendment. . . ” (N.D.Const. art. 105, § 1(6)).

. Our people approved the amendment by a vote of 102,182 to 75, 413. Ch. 696, 1979 S.L.