District One Republican Committee v. District One Democrat Committee

466 N.W.2d 820, 1991 N.D. LEXIS 35, 1991 WL 27255
CourtNorth Dakota Supreme Court
DecidedMarch 5, 1991
DocketCiv. 910017
StatusPublished
Cited by18 cases

This text of 466 N.W.2d 820 (District One Republican Committee v. District One Democrat Committee) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
District One Republican Committee v. District One Democrat Committee, 466 N.W.2d 820, 1991 N.D. LEXIS 35, 1991 WL 27255 (N.D. 1991).

Opinions

ERICKSTAD, Chief Justice.

Vern Neff and the District One Republican Committee, Tod Maleckar, Chairman [Contestants], appeal from a judgment dismissing their election contest against James C. Yockim, individually; the District One Democrat Committee, Glenna Meiers, Chairperson, District 1 Democrat Committee; and Glenna Meiers, individually [Con-testees] 1. We affirm.

In the November 6, 1990 general election, Neff, incumbent Yockim, and independent David Westerso were candidates for the office of State Senator from the First Legislative District in Williams County, North Dakota. On November 4, 1990, George Gaukler, the State Democratic chairman, advised Yockim that the latest [822]*822election polls indicated that the District One Senate race was a dead heat. Gaukler and Yockim discussed last minute campaign strategy, and they decided to distribute a campaign flier in District One on November 5, 1990, the day before the election.

The subject of the flier was Neffs involvement with the Hedderich building in Williston, and the failure to pay property taxes and special assessments which resulted in Williams County taking the property through a tax deed proceeding. During a conference call on November 5, 1990, Yock-im, Gaukler, and Gerald Rustad, a member of Yockim’s campaign advisory committee, edited a draft of the flier to choose the words which were most “useful” and “precise” to persuade the residents of District One to vote for Yockim.

Approximately 5,000 copies of the edited flier were printed on orange paper with black lettering:

“WHY DON’T REPUBLICANS CARE ABOUT HIGH PROPERTY TAXES?
“The Story the Williston Herald Refused to Print ...
“Republican State Senate candidate Vern Neff owned an interest in the Hedde-rich’s building in Williston. For five years Mr. Neff and his partners did not pay the property taxes. Last year he turned the building back to the taxpayers of Williston and handed you a bill for $80,000.00.
“Then Mr. Neff walked away.
“Now he thinks you should send him to the State Senate.
“The fact is Yern Neff and his partners failed to pay their taxes here in Williston. Is he then qualified to go to Bismarck and deal with state tax policy? We don’t think so.
“Recently, Senator Jim Yockim fought for and won over $300,000 in property tax relief for Williston. Why didn’t your property taxes go down?
“Mr. Neff and his friends took care of that. You paid for his property taxes.
“During the 1989 legislative session Senator Yockim sponsored a bill to make the speculators pay their property taxes instead of dumping the property onto the local property owners.
“Mr. Neff opposed this bill. After it failed he dumped the Hedderich’s building back onto you.
“The real tragedy is that what Mr. Neff did was perfectly legal. As a lawyer he knew it.
“DO YOU REALLY THINK THAT WE NEED ANOTHER LAWYER IN BISMARCK?”

On the afternoon of November 5, 1990, Glenna Meiers, the District Chairperson for the District One Democratic Party, called an elementary school teacher who made an announcement on the school’s public address system to solicit volunteers- to distribute the orange fliers. The volunteers distributed the orange fliers between 5:00 and 11:00 p.m. that night. Some of the volunteers personally delivered the orange fliers to residents of District One while other volunteers simply left the orange fliers in doorways. Consequently, some of the orange fliers were not read until election day. The certified results of the election disclosed that Yockim received 2101 votes, Neff 1925 votes, and Westerso 270 votes.

The contestants then commenced this election contest pursuant to Ch. 16.1-16, N.D.C.C., alleging that the contestees violated Sections 16.1-10-01(1) and (3); 16.1— 10-02; 16.1-10-04; and 16.1-10-06 of the corrupt practices act [Ch. 16.1-10, N.D.C. C.]. The contestants alleged that the statements in the orange flier were “knowingly” and “deliberately calculated falsehoods” designed to prevent Neffs election to the Senate.

The contestees answered, generally denying that their conduct violated the corrupt practices act. Alternatively, they alleged that a corrupt practices act violation is not grounds for an election contest under Ch. 16.1-16, N.D.C.C. The contestees also alleged that the statements in the orange flier were protected free speech under the First and Fourteenth Amendments of the United States Constitution.

The contestees moved for summary judgment, contending that a corrupt practices [823]*823act violation is not grounds for an election contest under Ch. 16.1-16, N.D.C.C. The trial court withheld a ruling on the motion pending the presentation of evidence at trial. After trial the court denied the contes-tees’ motion, concluding that Section 16.1-16-02, N.D.C.C., incorporated the corrupt practices act into Ch. 16.1-16, N.D.C.C., and that, although a criminal action may be brought, a civil election contest is a viable method to contest alleged violations of the corrupt practices act.

At trial, there was evidence presented that, in 1978, Neff and his business partner, Loye Ashton, d/b/a Hedderich Realty, purchased an interest in commercial property in Williston known as the Hedderich building by contract for deed from lone M. and Helen M. Howard. The contract for deed was not recorded and the Howards remained record title owners of the Hedde-rich building. The contract for deed required Ashton and Neff to pay all property taxes and special assessments on the Hedderich building. Property taxes and special assessments were not paid from 1984 through 1989, and in 1989 Williams County commenced proceedings to obtain a tax deed on the property. Williams County obtained a tax deed in November 1989 and deeded the property to the City of Williston on February 15, 1990. The City of Willi-ston, through city attorney Gerald Rustad, then entered into negotiations with Ashton which culminated in a Lease with Option to Purchase the property. Neff had no dealings with Williams County or the City of Williston after the property was taken through a tax deed proceeding, and he is not a party to the Lease with Option to Purchase. Prior to the general election, Yockim investigated Neffs interest in the Hedderich building and requested that the Williston Herald print a story about that subject. However, the Williston Herald did not do so.

At trial, there was also evidence presented that during the 1989 legislative session, Yockim sponsored SB 2326 which added special assessments to Ch. 57-21, N.D.C.C., dealing with priorities of taxes over a mortgage holder’s right to receive rents from commercial property. Neff, in a private conversation with Marlene Eide, who was a Williams County Commissioner, a registered lobbyist, and an employee of the law firm in which Neff was a partner, told Eide that, in his opinion, he did not think SB 2326 would “stand the test” or “hold up.” When Yockim asked Eide to support SB 2326, she told him of her conversation with Neff and that her conversation with Neff was one of the reasons why she did not support SB 2326. SB 2326 received a do not pass recommendation from the Senate Finance and Taxation Committee and was defeated on the floor of the Senate.

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District One Republican Committee v. District One Democrat Committee
466 N.W.2d 820 (North Dakota Supreme Court, 1991)

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Bluebook (online)
466 N.W.2d 820, 1991 N.D. LEXIS 35, 1991 WL 27255, Counsel Stack Legal Research, https://law.counselstack.com/opinion/district-one-republican-committee-v-district-one-democrat-committee-nd-1991.