Derus v. Higgins

555 N.W.2d 515, 24 Media L. Rep. (BNA) 2521, 1996 Minn. LEXIS 903, 1996 WL 595680

Opinions

OPINION

KEITH, Chief Justice and COYNE, Justice.

John Derus, an unsuccessful candidate in the September 10, 1996 primary election for nomination as the Democratic-Farmer-Labor party’s candidate in the general election to the Minnesota Senate, District 58, has filed a verified notice of an election contest in Hennepin County District Court. See Minn. Stat. § 209.02 (1994). We dismiss the notice of contest.

Summarily, Derus asserts that the election was tainted when the Minneapolis Star-Tribune newspaper erroneously printed his photograph under a headline concerning charity fraud. More specifically, Derus alleges that the Star-Tribune has a history of criticizing him and that the placement of his widely-recognized picture under the “charity fraud” headline on the day of the primary election constituted “a false and misleading article creating the impression that Derus was somehow connected with dishonest conduct.” Derus further alleges that the actions of the Star-Tribune violated Minnesota election law and the Minnesota Constitution by misrepresenting him to the public and by engaging in a fraud which obstructed or prevented the free exercise of the right to vote by voters in District 58. Significantly, while Derus does not allege that Linda Higgins violated any state election law or that she bears any personal responsibility for the article, he asserts that she, the successful candidate and contestee herein, should be denied the DFL nomination and a special primary election should be held.

Derus seeks the following remedies for the claimed violations: (1) the invalidation and revocation of the certificate of nomination issued to Higgins; (2) an order of the court directing that no names appear on the general election ballot for District 58 until this contest is completed; (8) an order of the court directing that a special primary election be held either before the November 5, 1996 general election or, if that is not possible or practical, that the general election for District 58 be delayed until after a called special primary election is held; (4) reimbursement by the Star-Tribune of all costs and attorney fees incurred by the candidates and of all costs incurred by Hennepin County in conducting additional elections; and (5) other appropriate relief.¹

Upon the filing of the notice of contest, the district court administrator submitted the notice to the Chief Justice of this court in accordance with Minn.Stat. § 209.10, subd. 1, for his provision to the parties of a list of all district judges of the state to allow those parties to exercise alternative strikes until but one named judge remained. Minn.Stat. § 209.10, subd. 2. By order filed on October 1,1996² we stayed district court proceedings pending our consideration of the motion to dismiss which Linda Higgins had filed in the district court. We acknowledged in that order and confirm here today the need for immediate and prompt consideration of the motion because implicated by these proceedings is the general election to be held on November 5,1996.

In this most unusual circumstance,³ we exercise our inherent authority to consider the threshold question of whether the document denominated as a “notice of contest” presents a justiciable claim for relief under the Minnesota election laws.⁴ In our view, only if it does will the Chief Justice perform the ministerial task of providing the list of judges to the parties as contemplated by Minn.Stat. § 209.10, subd. 2. Alternatively, if it does not, the interests of the citizens of the State of Minnesota and the contestee compel a dismissal of this action without further proceedings. To resolve that threshold question, we are called upon to examine the substance of Derus’ allegations, not just the form of the notice.

Derus claims that an activity of a third party, the Star-Tribune, violates the Fair Campaign Practices Act’s prohibitions against undue influence and fraud in an election. Minn.Stat. § 211B.07 provides as follows:

A person may not directly or indirectly use or threaten * * ⅜ undue influence * * * against an individual to compel the individual to vote for or against a candidate * * *. Abduction, duress, or fraud may not be used to obstruct or prevent the free exercise of the right to vote of a voter at a primary * * *.

Nevertheless, he invokes none of the remedies provided by the Fair Campaign Practices Act for an alleged violation of its multiple provisions. The Act imposes criminal penalties in the form of a gross misdemeanor or misdemeanor conviction upon its violators, without regard for their identity — that is, whether the alleged violator is a candidate, a campaign worker or an unrelated third-party. See, e.g., Minn.Stat. §§ 211B.07, .16 and .19. A candidate who violates a provision of the Act may face forfeiture of nomination, in addition to the criminal penalties, under circumstances defined in the statute. See Minn.Stat. § 211B.17. Here, in the absence of an allegation of wrongdoing by the candidate Higgins or by one acting with her authority or consent, the forfeiture provision is inapplicable and we decline to judicially expand its language to afford a remedy for a claimed violation by a noncandidate.

Therefore, although Derus claims an entitlement to maintain an “election contest” on the basis of a “deliberate, serious, and material violations of the Minnesota election law,” Minn.Stat. § 209.02, to the extent the allegations of wrongdoing with regard to the conduct of this third party only implicate the Act, the remedies provided therein are exclusive. We therefore hold that while the contestant has attempted to avail himself of broad remedial relief under the election laws by denominating this proceeding as an election contest, even accepting as true for those purposes the allegations of wrongdoing included in the “notice,” no justiciable claim for relief thereunder has been asserted. The purported notice of contest must be dismissed.⁵ Accordingly, as there exists no “election contest” within the statutory structure, it follows that the Chief Justice is not required to provide the list contemplated by Minn.Stat. § 209.10, subd. 2. Holding otherwise would disrupt the settled understanding of the Minnesota election law. Thirty years ago, this court held that third-party violations of election law cannot provide the basis for contesting a judicial election. Munnell v. Rowlette, 275 Minn. 92, 100, 145 N.W.2d 531, 536 (1966). That Munnell stated a general rule is made clear by our statements in previous cases. See, e.g., Phillips, 248 Minn, at 466-68, 80 N.W.2d at 520 (recognizing that contests based on violations of the Corrupt Practices Act, predecessor provisions to the Fair Campaign Practices Act, are limited to acts of the candidate and those for whom he or she is “responsible,” quoting Johnson v. DuBois, 208 Minn. 557, 565, 294 N.W. 839, 842 (1940)); Hawley v. Wallace, 137 Minn. 183, 185, 163 N.W. 127, 128 (1917) (“The statute does not intend to punish one with the loss of an office to which he is elected because .of statements circulated by his friends in which he does not participate.”). Nothing in the current version of the election laws indicates that the rule should be different in this case.

Moreover, our precedent indicates that the Fair Campaign Practices Act forfeiture pro visions apply to election contests based on a successful candidate’s violation of that Act. See In re Contest of Election in DFL Primary Held on Tuesday, Sept. 13, 1983, 344 N.W.2d 826, 881-32 (Minn.1984) (applying the forfeiture restrictions in chapter 210A, chapter 211B’s predecessor); id. at 833 (Wahl, J., dissenting) (same); In re Election of Ryan, 303 N.W.2d 462, 467-68 (Minn.1981) (same); Schmitt v. McLaughlin, 275 N.W.2d 587, 591 (Minn.1979)(same). Again, the Act’s forfeiture provisions require candidate involvement in misconduct before forfeiture is proper. Minn.Stat. § 211B.17. We conclude that the legislature must not have intended for election contests to be based on independent misconduct of third parties. If the legislature wishes to change the common and long-standing construction of the election contests statute, it clearly has the authority to do so.

The legislature has crafted a statutory structure for the orderly conduct of elections and for remediation in the event of a violation of those laws. E.g., Phillips, 248 Minn, at 476, 80 N.W.2d at 529-29. “It is properly the function of the legislature and not that of the courts to change the obligations imposed upon one who desires to commence an election contest.” Powell v. Johnson, 304 Minn. 534, 536, 231 N.W.2d 926, 927 (1975). We therefore commend to the legislature an inquiry into whether, under the circumstances of record, it should design a statutory remedy not now provided for conduct such as alleged here and submit this decision to it for whatever purposes it may deem appropriate. It is necessary to comment that we have long grappled with the question of what role the judiciary plays or should play in the legislature’s own constitutionally-mandated inquiry into the qualification of its membership. We have stated that the constitutionality of the role assigned the judicial branch with regard to legislative election contests by Minn.Stat. c. 209 is open to question, but because we are of the opinion that the document here denominated a “notice of contest” does not present a justiciable claim for relief under the Minnesota election laws and that that role is not implicated in these proceedings, we simply reiterate Chief Justice Sheran’s statement in Scheibel v. Pavlak, 282 N.W.2d 843, 853 (Minn.1979):

We submit [this] opinion to [the Minnesota Senate] with the understanding that whether the Supreme Court should henceforth decline jurisdiction in legislative election contests covered by Minn.Stat. § 209.09 in light of Article IV, Section 6 and Article III, Section 1 of the Minnesota Constitution is a question reserved for future decision.⁶

It should be understood that we are concerned here with the statutorily established procedures for judicial involvement in elections, rather than with the ultimate qualification of a member — a matter reserved for the legislature. Although we hold that these proceedings fall outside the statutory election provisions now existing, this decision does not preclude Derus from seeking a remedy from the legislature itself, for it is the legislature that is the “judge of the * * * eligibility of its own members.” Minn. Const, art. 4, § 6.

Notice of contest dismissed.

ANDERSON and STRINGER, JJ., took no part in the consideration or decision of this case.

Footnotes

1

. As this court noted in Phillips v. Ericson, 248 Minn. 452, 457, 80 N.W.2d 513, 517 (1957), “The authority of courts to entertain election contests is purely statutory * * Similarly, the remedies for claimed violations of the election laws are only those provided by statute. The only remedies provided by the Fair Campaign Practices Act are conviction of the violator of a misdemeanor or gross misdemeanor, or forfeiture of the nomination or office in certain circumstances when the candidate has been found guilty of violation of the Act or the violation was committed by another person with the knowledge, consent, or connivance of the candidate. Even a candidate held responsible for violation of the Act does not forfeit the nomination or office if the offense was trivial or the act or omission arose from accidental miscalculation or other reasonable cause, provided there was no want of good faith. Minn.Stat. § 211B.17, subd. 2. The Act does not address penalties which could be imposed upon a noncandidate other than criminal conviction. Nothing in the Act, however, authorizes the judiciary to delete the names of all candidates from the general election for District 58 pending disposition of this matter; nothing in the statute authorizes an order directing a special primary election or delaying the general election for District 58; and nothing in the statute would permit imposition of an enforceable order imposing on the Minneapolis Star-Tribune reimbursement of the costs and attorney fees incurred by the candidates and of all costs incurred by Hennepin County in conducting additional elections.' Indeed, were the courts to afford the unprecedented relief Derus seeks, it would, in effect, have usurped the very function that we have long acknowledged is that of the legislature alone — the prerogative that it determine the qualifications of its members by deciding, only with regard to a primary election, that Higgins is not entitled to the certificate of nomination. See Minn. Const, art. IV, § 6.

2

. We directed the parties to file simultaneous memoranda addressing designated issues to facilitate our expeditious and immediate consideration of the merits of Higgins’ motion to dismiss.

3

. The question of whether conduct of a third party with no connection to a legislative candidate may serve as a basis for invalidating an election is an issue of first impression in this state.

4

. Insofar as practicable, the Rules of Civil Procedure govern election contests. Minn.Stat. § 209.065; see also Phillips, 248 Minn, at 476, 80 N.W.2d at 528-29 ("To the extent that the election law establishes procedure which may be adopted it should be followed. Where there is no law, the general rules applicable to trial of civil cases should be followed.”). Higgins’ motion to dismiss is proper under Minn.R.Civ.P. 12.02(a) and (e) (lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted). Cf. Moulton v. Newton, 274 Minn. 545, 550, 144 N.W.2d 706, 710 (1966) (referring to a lack of deliberate, serious, and material violations of election law as a jurisdictional deficiency).

5

. While Justice Tomljanovich argues in her dissent that our dismissal of the notice violates this contestant’s statutory right to a determination of the facts at the district court, our decision accepts for its purposes that the allegations contained in the notice are true and that they nevertheless would not support Derus' claims to relief, which are not available under the statute. Under these circumstances, the district court’s fact-finding responsibilities are not invoked.

6

. We also reserve the issues of whether the established constitutional distinction between primary and general legislative elections may affect the reference of certain procedures to the judiciary by the legislature under Scheibel, 282 N.W.2d at 849, n. 15 (distinguishing Moe v. Alsop, 288 Minn. 323, 180 N.W.2d 255 (1970) because it involved a candidate's placement on a primary ballot, not whether an elected state legislator should be removed). Cf. Touhey v. Donovan, 259 Minn. 63, 67, 105 N.W.2d 849, 851 (1960) ("Since the adoption of our primary election law, we have consistently held that the primary is not an election in the sense that the word is used in our constitution.”); State ex rel. 25 Voters v. Selvig, 170 Minn. 406, 407, 212 N.W. 604, 604 (1927) (refusing to adjudicate a contested general election for Congress on the basis of alleged Corrupt Practices Act violations — -"Such primary elections are not of the character contemplated or intended by the term election as used in the Constitution of the United States or the Constitution of this state * * *. They are merely a method of nominating candidates for office to be filled by the voters at the election intended by the Constitution.”). (Citations omitted).