Limmer v. Ritchie

819 N.W.2d 622, 2012 WL 3642681

• Court: Supreme Court of Minnesota
• Decided: August 27, 2012
• Docket: Nos. A12-1149, A12-1258
• Status: Published

Opinions

OPINION

PER CURIAM.

In these two cases, petitioners, members of the Minnesota Legislature and others, filed petitions pursuant to Minn.Stat. § 204B.44 (2010). Petitioners seek an order requiring respondent Mark Ritchie, the Minnesota Secretary of State, to use the titles designated by the Minnesota Legislature for two proposed constitutional amendment ballot questions that will appear on the November 2012 general election ballot. Petitioners contend that by failing to use the title designated by the Legislature for each ballot question, respondents have failed to comply with the statutory requirement to “provide an appropriate title” for the ballot question, Minn.Stat. § 204D.15, subd. 1 (2010), and have erred in the preparation of the ballot. See Minn.Stat. § 204B.44 (a), (b), (d). We conclude that when the Legislature has included a title for a ballot question in the bill proposing a constitutional amendment, the “appropriate title” the Secretary of State must provide for that ballot question is the title designated by the Legislature. As a result, the Secretary of State exceeded his authority under Minn.Stat. § 204D.15, subd. 1, when he provided titles for the ballot questions different from those passed by the Legislature. We therefore grant the petitions, and order the Secretary of State to use the titles set forth in Ch. 88, § 2(b), 2011 Minn. Laws 364 (Case No. 12-1149), and in Ch. 167, § 2(b), 2012 Minn. Laws 145-46 (Case No. 12-1258).¹

Marriage Amendment (No. 12-1U9)

The facts giving rise to the petition involving the proposed marriage amendment are undisputed. In May 2011 the Legislature approved a proposed amendment to Article XIII of the Minnesota Constitution that would add the following language to the constitution: “Only a union of one man and one woman shall be valid or recognized as a marriage in Minnesota.” Ch. 88, § 1, 2011 Minn. Laws 364, 364. The Legislature also approved the language of the question to be placed on the November 2012 ballot regarding the proposed amendment: “Shall the Minnesota Constitution be amended to provide that only a union of one man and one woman shall be valid or recognized as a marriage in Minnesota?” Id. § 2(a), 2011 Minn. Laws at 364. Finally, the Legislature approved a title for the ballot question: “The title required under Minnesota Statutes, section 204D.15, subdivision 1, for the question submitted to the people under paragraph (a) shall be ‘Recognition of Marriage Solely Between One Man and One Woman.’” Id. § 2(b), 2011 Minn. Laws at 364. Chapter 88, which contains the proposed constitutional amendment, ballot question, and ballot question title, was presented to Governor Mark Dayton.

On May 25, 2011, the Governor sent a letter to Senator Michelle Fischbach, the President of the Minnesota Senate, stating that he had “vetoed and [was] returning Chapter 88, Senate File 1308.” Governor Dayton referred to his veto as “symbolic,” but he also stated that he “was exercising [his] legal responsibility to either sign it or veto it.”

On June 15, 2012, the Secretary of State sent a letter to Attorney General Lori Swanson, explaining that pursuant to MinmStat. § 204D.15, subd. 1, he had chosen a title for the ballot question regarding the proposed marriage amendment. The Secretary indicated that the title he had chosen to appear on the ballot with the Legislature’s ballot question, and that he was “submitting] for [her] approval,” was “Limiting the Status of Marriage to Opposite Sex Couples.” The Attorney General “approved” the title proposed by the Secretary in a letter dated June 19, 2012.

Voter Identification (No. 12-1258)

The facts giving rise to the petition involving the proposed voter identification amendment are also undisputed. In April 2012 the Legislature approved a proposed amendment to Article VII, Section 1 of the Minnesota Constitution that would add the following two subsections:

(a)Every person 18 years of age or more who has been a citizen of the United States for three months and who has resided in the precinct for 30 days next preceding an election shall be entitled to vote in that precinct. The place of voting by one otherwise qualified who has changed his residence within 30 days preceding the election shall be prescribed by law. The following persons shall not be entitled or permitted to vote at any election in this state: A person not meeting the above requirements; a person who has been convicted of treason or felony, unless restored to civil rights; a person under guardianship, or a person who is insane or not mentally competent.

(b) All voters, voting in person must present valid government-issued photographic identification before receiving a ballot. The state must issue photographic identification at no charge to an eligible voter who does not have a form of identification meeting the requirements of this section. A voter unable to present government-issued photographic identification must be permitted to submit a provisional ballot. A provisional ballot must only be counted if the voter certifies the provisional ballot in the manner provided by law.

(c) All voters, including those not voting in person, must be subject to substantially equivalent identity and eligibility verification prior to a ballot being cast or counted.

Ch. 167, § 1, 2012 Minn. Laws 145-46 (additions underlined).

In the same session law, the Legislature also approved the language of the question to be placed on the November 2012 ballot regarding the proposed constitutional amendment:

Shall the Minnesota Constitution be amended to require all voters to present valid photo identification to vote and to require the state to provide free identification to eligible voters, effective July 1, 2013?

Id. § 2(a), 2012 Minn. Laws at 146. Finally, the Legislature approved a title for the ballot question: “Photo Identification Required for Voting.” Id. § 2(b), 2012 Minn. Laws at 146.²

The bill containing the proposed constitutional amendment, ballot question, and ballot question title was presented to Governor Mark Dayton, who vetoed it. The Governor’s letter acknowledged that he did “not have the power to prevent this unwise and unnecessary Constitutional Amendment from appearing on the Minnesota ballot in November....” The Governor stated, however, that he was “exercising [his] legal responsibility to either sign or veto the amendment[,]” and that he was “vetoing the amendment and its title.... ”

Thereafter, Secretary of State Mark Rit-chie asked Attorney General Lori Swanson to review and approve the following title for the ballot question pertaining to the proposed voter identification amendment: “Changes to In-Person & Absentee Voting & Voter Registration; Provisional Ballots.” The Attorney General “approved” the title in a letter dated July 6, 2012.

I.

The parties present a number of arguments that raise constitutional issues and issues of statutory construction. Petitioners contend that because proposing a constitutional amendment to the voters, including the form of the ballot question for such a proposed amendment, is exclusively a legislative function under Article IX of the Minnesota Constitution, the Legislature’s approved title for a ballot question for such a proposed amendment is part of the ballot measure itself. Petitioners therefore urge us to construe section 204D.15 to require the Secretary of State to “provide” the title designated by the Legislature when the Legislature has designated one with a proposed constitutional amendment. In essence, petitioners contend that the Secretary has no discretion to choose a ballot title unless the Legislature fails to provide one.

Respondents agree the Legislature has the constitutional authority to propose constitutional amendments. But respondents contend, in essence, that this authority is implemented as provided by state law. Respondents assert that the Legislature validly delegated the exclusive authority to provide and approve a title for ballot questions to the Secretary of State and the Attorney General in 1919. Respondents argue that the Secretary of State and the Attorney General properly exercised their statutory authority here — indeed, were required to do so — when the Secretary provided, and the Attorney General approved, titles for the ballot questions with respect to the proposed marriage and voter identification amendments.

Respondents also note that for almost 100 years, ballot questions that propose constitutional amendments have been, by statutory directive, accompanied by a ballot title. See Act of Mar. 18, 1919, ch. 76, § 1, 1919 Minn. Laws 72, 73 (now codified as amended at Minn.Stat. § 204D.15 (2010)). Through this statutory authority, the Legislature has directed the Secretary of State to provide the ballot question title with the provided title approved by the Attorney General.³ More specifically, the Secretary of State shall “provide an appropriate title for each question printed on the [constitutional amendment][⁴] ballot. The title shall be approved by the attorney general, and shall consist of not more than one printed line above the question to which it refers.” Minn.Stat. § 204D.15, subd. 1. Respondents argue that under the plain language of section 204D.15, the titles chosen by the Secretary of State and approved by the Attorney General are the titles that must appear on the ballot for the two constitutional amendments at issue.

The parties agree that the Minnesota Constitution vests in the Legislature the power to propose constitutional amendments to the people. Article IX, Section 1 of the Minnesota Constitution grants the Legislature this power:

A majority of the members elected to each house of the legislature may propose amendments to this constitution. Proposed amendments shall be published with the laws passed at the same session and submitted to the people for their approval or rejection at a general election.

We have held that the Legislature has discretion in deciding the form and manner of placing proposed constitutional amendments before voters. See, e.g., Breza v. Kiffmeyer, 723 N.W.2d 633, 636 (Minn.2006) (“[T]he form and manner of submitting the question of a constitutional amendment to the people ‘are left to the judgment and discretion of the legislature ....”’) (quoting State ex rel. Marr v. Stearns, 72 Minn. 200, 218, 75 N.W. 210, 214 (1898)); Wass v. Anderson, 312 Minn. 394, 399, 252 N.W.2d 131, 135 (1977) (noting, in a challenge to an amendment based on the alleged violation of the single subject rule, the concession “that the constitution imposes no requirement as to the form a proposed constitutional amendment must take,” and that while preferable to propose amendments separately, that decision “is a matter addressed to legislative discretion”); Winget v. Holm, 187 Minn. 78, 85, 244 N.W. 331, 334 (1932) (“Since the Legislature is invested with the power to propose amendments, their scope and form must be left to it within reasonable limits”).

Our precedent has also “recognized that where the constitution commits a matter to one branch of government, the constitution prohibits the other branches from interfering with the coordinate branch’s exercise of its authority.” In re Civil Commitment of Giem, 742 N.W.2d 422, 429 (Minn.2007); see also State ex rel. Birkeland v. Christianson, 179 Minn. 337, 340, 229 N.W. 313, 314 (1930) (explaining that no branch of government “can control, coerce or restrain the action or nonaction of either of the others in the exercise of any official power or duty conferred by the constitution”). This separation of powers principle is grounded in the Minnesota Constitution, which prohibits one branch of government from exercising “any powers properly belonging to either of the other[ ] [branches] except in the instances expressly provided in this constitution.” Minn. Const, art. Ill, § 1; see also Laase v. 2007 Chevrolet Tahoe, 776 N.W.2d 431, 437-38 (Minn.2009) (discussing the “constitutional principle of separation of powers”). There is no dispute in this case that the constitution does not specifically provide a role for the Executive Branch in the amendment process.

The parties’ dispute here centers on statutory interpretation — the extent of the Secretary of State’s authority under Minn. Stat. § 204D.15, subd. 1, to provide a ballot title different from that designated by the Legislature in the bill approving the ballot question for a proposed constitutional amendment. We conclude, as explained below, that the language of Minn.Stat. § 204D.15, subd. 1, does not authorize the Secretary of State to provide a title for a ballot question for a proposed constitutional amendment that is different from the title chosen by the Legislature in the bill accompanying the proposed amendment.

II.

We do not need to decide in this case whether, as petitioners contend, the Legislature has exclusive authority under Article IX to designate a ballot title for a proposed constitutional amendment. Indeed, it may be that, when the Legislature has not adopted a title for a proposed constitutional amendment, there is room for the Executive Branch to act in this area under Minn.Stat. § 204D.15. But when the Legislature has acted and chosen the title, a difficult constitutional confrontation is presented if we were to conclude, as respondents argue, that the title provided by the Executive Branch supersedes the title enacted by the Legislature as part of its authority to determine “the form and manner of submitting” proposed amendments to the people. Breza, 723 N.W.2d at 636. Allowing the Secretary of State, an Executive Branch Officer with no constitutional authority over the form and manner of proposed constitutional amendments, to simply ignore the Legislature’s action in proposing and passing a title to accompany a ballot question on a constitutional amendment potentially risks interfering with the Legislature’s constitutional authority.

We need not resolve that thorny separation of powers problem here, however, because “we are to construe statutes to avoid a constitutional confrontation if it is possible to do so.” State v. Gaiovnik, 794 N.W.2d 643, 648 (Minn.2011); see also Giem, 742 N.W.2d at 429 (“We have held that if we can construe a statute to avoid a constitutional confrontation, we are to do so.”); In re Harhut, 385 N.W.2d 305, 313 (Minn.1986) (“Again, we employ the principle that this court must construe a statute in such a way as to avoid constitutional conflict.”). We do so “even if the construction that avoids a constitutional confrontation is the ‘less natural’ construction” so long as the construction is a reasonable one. Gaiovnik, 794 N.W.2d at 648 (quoting State ex rel. Doe v. Madonna, 295 N.W.2d 356, 363 (Minn.1980)); see also Hutchinson Tech., Inc. v. Comm’r of Revenue, 698 N.W.2d 1, 18 (Minn.2005) (interpreting a statute in a manner that was inconsistent with its plain language in order to avoid the conclusion that statute violated the Commerce Clause).

We turn then to the relevant language of the statute in question, Minn.Stat. § 204D.15. The Secretary of State’s statutory obligation is to “provide an appropriate title for each question printed” on the constitutional amendment ballot. “Provide” and “appropriate” are broad terms. “Provide” means to “prepare, get ready,” or “arrange (something) beforehand.” The New Shorter Oxford English Dictionary 2393 (4th ed.1993); see also Webster’s New International Dictionary 1827 (3rd ed.1961) (defining “provide” as “to make ready;” “to procure in advance; get ready beforehand; prepare” or “to fit out or fit up; equip” or “to supply for use; afford; yield”). “Appropriate” means “suitable for the purpose and circumstances; befitting the place or occasion.” Funk & Wagnalls Neiv Standard Dictionary of the English Language 140 (1945); see also American Heritage Dictionary of the English Language 88 (5th ed.2011) (defining “appropriate” as “suitable for a particular person, condition, occasion, or place; fitting”). Neither of these terms clearly indicate that the Secretary has the exclusive authority to determine or establish the title for a ballot question.

Rather, these terms reasonably suggest that the Secretary’s statutory obligation is to prepare the ballot before the election by ensuring that a suitable title is included on the ballot. This conclusion does not fully answer the issue presented, however, because an “appropriate” or suitable title could be construed to mean the title designated by the Legislature, or the title chosen by the Secretary.⁵

Our precedent directs that we are to use the construction of the statute that avoids a constitutional problem when such a construction is reasonable. See, e.g., Giem, 742 N.W.2d at 430 (describing “our mandate to construe statutes, if possible, to avoid constitutional infirmities”). Consistent with this precedent, and in order to avoid the separation of powers problem discussed above, we conclude that when the Legislature passes a title for the ballot question in the legislation adopting a proposed constitutional amendment, that is the “appropriate title” the Secretary of State must provide under Minn.Stat. § 204D.15, subd. 1.⁶

Based on our construction of Minn. Stat. § 204D.15, subd. 1, we hold that the Secretary of State erred and exceeded his authority when he provided titles for the ballot questions on the proposed marriage and voter identification amendments different from the titles chosen by the Legislature. Instead, the appropriate titles the Secretary of State must provide are the titles passed by the Legislature in Chapter 88, section 2(b), 2011 Minn. Laws 364, and in Chapter 167, section 2(b), 2012 Minn. Laws 145-46.

IT IS HEREBY ORDERED THAT:

1. The petition of Warren Limmer, et al., is granted in No. 12-1149 to the extent that it seeks an order directing the Secretary of State to provide the following title for the ballot question related to the proposed constitutional amendment defining marriage that will appear on the 2012 general election ballot: “Recognition of Marriage Solely Between One Man and One Woman”; and

2. The petition of Mary Kiffmeyer, et al., is granted in No. 12-1258 to the extent that it seeks an order directing the Secretary of State to provide the following title for the ballot question related to the proposed constitutional amendment on voter identification that will appear on the 2012 general election ballot: “Photo Identification Required for Voting”; and

3. The Secretary of State is directed to place on the ballot the following title for the ballot question related to the proposed constitutional amendment defining marriage that will appear on the 2012 general election ballot: “Recognition of Marriage Solely Between One Man and One Woman”; and

4. The Secretary of State is directed to place on the ballot the following title for the ballot question related to the proposed constitutional amendment on voter identification that will appear on the 2012 general election ballot: “Photo Identification Required for Voting.”

1 . We consolidated these cases for oral argument by order of July 26, 2012, Limmer v. Ritchie, Order (Minn. filed July 26, 2012), and consolidated the cases for purposes of decision by order of August 22, 2012, Limmer v. Ritchie, Order (Minn, filed August 26, 2012).

2 . On May 30, 2012, a petition was filed with this court under Minn.Stat. § 204B.44, seeking to "strik[e] the ballot question pertaining to the Voter Identification and Provisional Ballot Amendment” and to enjoin the Secretary of State from placing the question on the November 2012 general election ballot. We denied that petition. See League of Women Voters v. Ritchie, 819 N.W.2d 636 (Minn. 2012).

3 . Until 1981, the Secretary was required to "apply” an appropriate title. Minn.Stat. § 203A.31, subd. 2 (1980). This statute was amended in 1981 and recodified at Minn.Stat. § 204D.15, subd. 1 (2010), with the current language. See Act of Apr. 14, 1981, ch. 29, art. 6, § 15, 1981 Minn. Laws 38, 127.

4 . The statute refers to the pink ballot, which is the ballot on which questions for proposed constitutional amendments appear. Minn. Stat. § 204D. 15, subd. 1; see also Minn.Stat. § 204D.15, subd. 2 (describing the pink ballot).

5 . As noted by one of the amici, prior to 2008, the Legislature did not designate a title for the ballot questions proposing constitutional amendments, leaving that task to the Secretary of State. In 2008 the Legislature proposed a constitutional amendment and included a title in the bill that proposed the constitutional amendment. Ch. 151, § 2(b), 2008 Minn. Laws 35-36. The Secretary of State provided the Legislature’s title on the ballot. See Example Ballots, Minnesota Office of the Secretary of State, http://www.sos.state. mn.us/index.aspx?page=227 (last visited Aug. 24, 2012) (providing a link to a sample ballot from the 2008 general election containing the constitutional amendment and the Legislature's title). The parties acknowledge that the history of Minnesota’s ballot questions on constitutional amendments shows that sometimes the Legislature has provided the title, and sometimes the Secretary of State has provided the title. See State Constitutional Amendments Considered, Minnesota Legislative Reference Library, http://www.leg.state. mn.us/lrl/mngov/constitutionalamendments. aspx (last visited Aug. 24, 2012) (listing all constitutional amendments proposed by the legislature between 1858 and 2012). Thus, the "appropriate” title is, as its plain meaning suggests, "suitable for the purpose and circumstances.” Here, the purpose and surrounding circumstances include the Legislature’s decision to designate a title to be used with the ballot question. Had the Legislature not designated a ballot title, a title provided by the Secretary may be an "appropriate” title. But in the absence of statutory language clearly stating that the authority to choose the title for a ballot question rests solely with the Secretary of State, we conclude that a title designated by the Legislature for a ballot question in the bill proposing the constitutional amendment is the only "appropriate” title.

6 . The dissent of Justice Page posits a hypothetical involving a constitutional amendment that would "reinstate prohibition” with a legislatively enacted ballot title, "Eliminating the Personal Income Tax.” We need not decide in this case the outer limits, if any, of the legislative authority regarding the titling of ballot questions for proposed constitutional amendments.