SUPREME COURT NO. 20170335 In the Supreme Court State of North Dakota C.T. Marhula, Contestant/Appellant, Supreme Court No. 20170335 [District Court No.18-2017-CV-01802] vs. City of Grand Forks, North Dakota, Contestee/Appellee. Appeal from the Final Judgment entered in the District Court, Northeast Central Judicial District, Grand Forks County, the Honorable Steven L. Marquart presiding MAIN BRIEF OF APPELLANT C.T. MARHULA Respectfully submitted 16th day of January, 2018. _______/s/_________ C.T. Marhula, Pro Se Contestant/Appellant 20170335 FILED IN THE OFFICE OF THE CLERK OF SUPREME COURT JANUARY 17, 2018 STATE OF NORTH DAKOTA
Transcript
SUPREME COURT NO. 20170335
In the Supreme Court State of North Dakota
C.T. Marhula, Contestant/Appellant, Supreme Court No. 20170335 [District Court No.18-2017-CV-01802] vs. City of Grand Forks, North Dakota, Contestee/Appellee.
Appeal from the Final Judgment entered in the District Court, Northeast Central Judicial District, Grand Forks County, the Honorable Steven L. Marquart presiding
MAIN BRIEF OF APPELLANT C.T. MARHULA
Respectfully submitted 16th day of January, 2018.
_______/s/_________
C.T. Marhula, Pro Se
Contestant/Appellant
20170335 FILED IN THE OFFICE OF THE CLERK OF SUPREME COURT JANUARY 17, 2018 STATE OF NORTH DAKOTA
TABLE OF CONTENTS Table of Authorities ....................................................................................................... ii-iii Statement of the Issues ...................................................................................................... iv Statement of the Case and Procedural History ................................................................. ¶1 Statement of the Facts ........................................................................................................ ¶4 Argument ...................................................................................................... ……………¶8
TABLE OF AUTHORITIES Cases Backes v. Byron, 443 N.W.2d 621, 1989 ND LEXIS 152 (N.D. 1989)……………...¶19 Forum Pub. Co. v. City of Fargo, 391 N.W.2d 169, 1986 ND LEXIS 373, 13 Media L. Rep. 1362 (N.D. 1986)………………………………………………..…………...¶21-¶22 Grubb v. Dewing, 48 ND 774, 187 N.W. 157, 1922 N.D. LEXIS 100 (N.D. 1922)…………………………………………………………………………….…...¶23 Heleringer v. Brown, 104 S.W.3d 397, 404 (Ky. 2003) ……………………….…...¶27 Independent School Dist. v. Independent School Dist., 170 N.W.2d 433, 440 (Minn. 1969) ……………………………………………………………………..…..……...¶29 Mittelstad v Bender, 210. N.W. 89 (N.D. 1973) ………………………..…..……...¶23 Morgan v. Hatch, 274 N.W.2d 563, (N.D. 1979) ………………………..…..……...¶23 People v. O'Rourke, 124 Cal. App. 752, 759 (Cal. App. 1932)………..…….……...¶29 Perry v. Hackney, 11 N.D. 148, 155, 90 N.W. 483, 485 (N.D. 1902)……….……...¶23
Rolette Public School District No. 29, 427 N.W.2d 812 (N.D.1988)……….…..…...¶21 Saefke v. VandeWalle, 279 N.W.2d, 415 (ND 1979).………………………...……...¶18 Solen Pub. School Dist. No. 3 v. Heisler, 381 N.W.2d 201, 203 (N.D. 1986) ……...¶30 State v. Jelliff, 251 N.W.2d, 1 (N.D.1977) ………….…………………………...¶11, ¶36 State v. Liberty National Bank and Trust Co., 427 N.W.2d 307, 308 (N.D.1988)..¶20-¶21 St. Onge v. Elkin, 376 N.W.2d, 41 (N.D.1985)..…………………..…………………...¶22
Wahpeton Public School District v. North Dakota Education Ass'n, 166 N.W.2d 389
A. The City of Grand Forks committed erred by conducting the election at one location not contrary to its own Home Rule Charter and City Code …..…...¶8
i. The District Court’s failure to address and follow N.D.C.C. §40-05.1 Home Rule In Cities is the absolute fatal flaw in its decision .............¶9
B. The District Court committed erred relying on N.D.C.C. § 16.1-01-02……¶14
i. The City’s claim as to mootness fails based on the theory of “Unclean
Hands.”……………………………………………………….………..¶15
ii. The City’s claim as to mootness also fails as a matter of law………¶18
iii. The original Appellants two requests before City Council, timely filing of an election challenge in District and timely filing of an appeal to this Court; all raising the issue of voting precinct location defeat any claim of mootness by the City………………………………………¶24
iv. In seeking post election relief, is the word “shall” mandatory or directory?..............................................................................................¶26
v. The City’s reasons for changing voting sites were not “good and sufficient reasons…………………………………………………….¶31
C. The City’s adaption of revised Chapter IV. in 2011 prevents City from
claiming the falsity of the clear meaning of Chapter IV…………..……….¶34 i. Even though the Court accepted some of the contestants withdrawing at this stage of the litigation, it should not affect subject matter jurisdiction..¶34
STATEMENT OF THE CASE
[¶1] The instant case is an appeal from a decision by the Northeast Judicial District,
Grand Forks County, North Dakota. Appellant, C.T. Marhula, is a North Dakota citizen
and eligible voter in the City of Grand Forks, North Dakota. Appellee, City of Grand
Forks, is a Home Rule Charter city government governed by its Home Rule Charter and
City Code.
[¶2] This action was commenced by a complaint filed July 12, 2017. It arises out a
dispute over whether or not the City of Grand Forks failure to comply with its own City
Code regarding the conducting of elections causes the election to be void.
[¶3] Following an Evidentiary Hearing, a motion for dismissal of all claims by the
Contestee/Appellee briefing and oral argument made in connection therewith, the District
Court summarily dismissed all of the plaintiff’s claims in this case. Judgment of Dismissal
was entered pursuant to that decision on August 22, 2017 [Doc. 82]. A Notice of Appeal
was filed on September 13, 2017 [Doc. 87], and the current appellate proceedings have
followed.
STATEMENT OF THE FACTS
A. The Contestant/Appellant, C.T. Marhula, was a voter in the City of Grand Forks Special Election held on June 20, 2017. This election was to determine whether or not the property formerly known as “Arbor Park” would be abandoned and whether or not the City of Grand Forks could proceed with a commercial sale of said property pursuant to a purchase agreement1.
[¶4] The election was held on June 20, 2017, at one location, the Alerus Center, in Grand
Forks, North Dakota. This is contrary to the Home Rule Charter of the City of Grand
Forks.
[¶5] The Summons and Complaint in this case were timely filed July 12, 2017. [Doc.
1 & 2]. The action is an election contest brought pursuant to the North Dakota Century
Code §16.1-16-03.
[¶6] The District Court held an Evidentiary Hearing on August 8, 2017. Respective
parties filed briefs and arguments to the Court and submitted exhibits throughout the action
outlining their respective positions.
[¶7] The District Court summarily dismissed all of the plaintiff’s claims in this case.
Judgment of Dismissal was entered pursuant to that decision on August 22, 2017 [Doc.
82].
1 The “Purchase Agreement,” [paragraph 8(a)] provides, in the relevant part the City warrants, “There are not actions, lawsuits, judgements, liens, suits, claims, investigations other proceedings pending or threatened against Seller or the Property which relates to Seller or the ownership, maintenance, or operation of the Property or might in any way affect the Property or this transaction. City Exhibit A.
ARGUMENT
A. The City of Grand Forks committed erred by conducting the election at one location not contrary to its own Home Rule Charter and City Code.
[¶8] The Home Rule Charter section of the NDCC clearly gives Home Rule Charter
Cities the power to control their election process. The City of Grand Forks is a Home
Rule Charter City. In its Charter it clearly has the power to set election procedures. The
City of Grand Forks clearly enacted a Code which mandated voting within each ward.
The City Attorney advised the City Council in 2011 voting within precincts and wards
was mandatory.
i. The District Court’s failure to address and follow N.D.C.C. §40-05.1 Home Rule In Cities is the absolute fatal flaw in its decision.
[¶9] N.D.C.C. 40-05.1-06 spells out the powers enjoyed by a Home Rule Charter City.
This Chapter states, “To provide for all matters (emphasis added) pertaining to city
election, except as to qualifications of electors.” N.D.C.C. §40-05.1-06.
[¶10] In Article III.-Powers of the City of Grand Forks Home Rule Charter it states,
“…Among its enumerated powers, which may be implemented by ordinance subject to
the limitations specified in this charter, shall be the following:… To provide for all
matters (emphasis added) pertaining to city elections, except as to qualifications of
electors.” City of Grand Forks Home Rule Charter, Article III-e.
[¶11] This Court has previously opined, “Statutes must be construed to avoid absurd
results.” State v. Jelliff, 251 N.W.2d 1 (N.D.1977); §1-02-38(3), NDCC; § 1-02-39,
NDCC.
[¶12] Defendant/City spends much energy proving issues not in dispute in this case. We
agree the City could (emphasis added) amend its Code to allow single site voting. The
fact is, they have not taken this action.
[¶13] The following quote comes from leading commentaries on statutory construction
(with my additional commentary in parenthesis and italics).
§ 73:8 Statutes regulating public elections “Statutes regulating the rights of citizens to vote are of great public interest…(Satisfying the Fargo test)…Such statutes have also been cited as encouraging participation in the election process….However, the intention of the legislature must be followed … Inconsequential deviations from…method…is only directory…(to suggest the number and location of voting sites is inconsequential is to ignore one the major current topics involving voting rights across our nation.)…But where a provision may affect the outcome of an election, it is mandatory…. Courts first look to the plain language…clearly indicates the legislative intention…court look no further….(See: ‘Chapter IV – ELECTIONS-ARTICLE 2. - VOTING PRECINCTS-4-0201. - Precincts. The city council shall establish by resolution the precincts within each ward…(emphasis added). ’ To suggest “shall establish within” is somehow only advisory would lead to an absurd interpretation this Court has warned against.)…The ultimate interpretation should be a reasonable one….A statute should not be construed so that any part of it is rendered superfluous or meaningless.” Statutes and Statutory Construction, Singer and Singer, Volume 3A, WEST, 7th edition, § 73:8, 2010, ppg912-926. (Author citations omitted).
B. The District Court committed erred relying on N.D.C.C. § 16.1-01-02.
[¶14] We agree with defendant/City that “…the City does not agree that this is a proper
issue in this case.” Defendant brief a ¶19, page 25. As will be developed below the
District Court failed to address what should be the deciding factor in this case, the
interaction and powers granted by N.D.C.C. 40-05.1 Home Rule In Cities.
i. The City’s claim as to mootness fails based on the theory of “Unclean Hands.”
[¶15] It is undisputed that on December 7, 2015, the City established multiply voting
sites for the next election cycle. It is undisputed the City sited 12 locations around the
City. See Plaintiff’s Exhibit 3A-3C.
[¶16] The City cannot deny it was, or at minimum, should have been aware of the
pending legal challenge to the June election. It argues before this Court it should be
rewarded by executing documents (Purchase Agreement and Warranty Deed) that
contained warranties it knew to be false.
[¶17] The City’s argument that contestants should have obtained a Temporary
Restraining Order (TRO) must also fail. Quite simply stated; it knew of threatened and
actual legal actions that prevented it from delivering a clean deed to the property. Based
on this knowledge a TRO should have been unnecessary.
ii. The City’s claim as to mootness also fails as a matter of law.
[¶18] We agree with defendant City’s claim in [¶12]. However, we do not think this is
a “trifle.” “We have a maxim in the North Dakota Code that the law should disregard
trifles. Section 31-11-05 (24) North Dakota Century Code.” Saefke v. VandeWalle, 279
N.W.2d 415 417 (ND 1979). In this case the election winner had about a 30,000 margin
of victory. In our case the margin was only 180 votes. Findings of Fact ¶25, page 4.
There is an old axiom in business, “To control the results of a meeting be the minute
taker, not the chair.” In politics it is,“To control the election results, control the voting
sites.” In Saefke the issue was a trifle, use of the court room for a commercial. In this
case the issue was a significant impairment of a fundamental right, the right to vote.
[¶19] It is important to objectively analyze the facts behind the cases cited by
Defendant/City. In Backes v. Byron, 443 N.W.2d 621 (ND 1989) the North Dakota
Supreme Court addressed the question of when a matter before the Court becomes moot.
The Court held:
In the instant case, we were informed by counsel that the second arbitration hearing was held on May 31, 1989, and that the final decision of the arbitrators was mailed to the parties on June 19, 1989. We conclude that once the second arbitration panel held a hearing and rendered its decision this appeal became moot.
[¶20] In this case Plaintiff/Contestants have complied with everything required by the
law. To reward the City for selling land they knew was in litigation would be a perverse
attack on the rule of law and the judicial norms or our great state and nation. See Rollette
and Liberty National Bank.
[¶21] It is interesting to note that in Rolette it was plaintiff arguing to make the issue
moot, it was resolved. Rolette Public School District No. 29, 427 N.W.2d 812
(N.D.1988). Again, this Court stated:
In State v. Liberty National Bank and Trust Co., 427 N.W.2d 307, 308 (N.D.1988), we recently observed that we "will not dismiss an appeal as moot where the matter in controversy is one of great public interest and involves the authority and power of public officials, or where the matter is `"capable of repetition, yet evading review."
In Forum Publishing Co. v. City of Fargo, 391 N.W.2d 169, 170 (N.D.1986), we reiterated a definition of "public interest":
`We understand `public interest' to mean more than mere curiosity; it means something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as the interest of the particular localities which may be affected by the matter in question.'
In Forum Publishing Co., supra, the trial court held that applications for police chief for the city of Fargo were subject to the open-records law even in the hands of a third-party consulting firm. After stays pending appeal were denied, the documents were released to the public. We concluded that the appeal was not moot because the case dealt with the right of the public to be informed, a matter of great public interest, and because the case also dealt with the authority and power of public bodies in hiring public officials.
In Liberty National Bank, supra, we held that an appeal was not moot. The issue was a three-year holding period for divestiture of land by a bank under § 10-06-13, N.D.C.C., was preempted by federal law. The Bank sold the land while the appeal was pending. (Emphasis added). We concluded that the enforcement of the corporate farming laws by the State itself was a matter of great public interest. Rolette Public School District No. 29, 427 N.W.2d 812 (N.D.1988);
[¶22] Defendant/City correctly, in [¶9], states the test this court will use, as put forward
in Forum Pub. Co. v. City of Fargo, 391 N.W.2d 169, 170 (ND. 1986). However; it
mis-states results this test implies. In Forum this court opined a public data request on
job applicants was of great public importance because it involved power of public bodies
to hire public officials. To suggest the fundamental right to vote as currently embodied in
the City of Grand Forks Code is not of broad public interest is a view Plaintiff asks this
Court to reject. This Court opined:
Ordinarily an appeal will be dismissed if the question raised on appeal has become moot or if, without fault of the respondent, an event has occurred which makes a determination of the question unnecessary and leaves no actual controversy to be determined. Wahpeton Public School District v. North Dakota Education Ass'n, 166 N.W.2d 389 (N.D. 1969), Forum Pub. Co. v. City of Fargo, 391 N.W.2d 169, 170 (ND
This Court has also opined:
We would do grave injustice to the doctrine of stare decisis were we to reexamine Hagen, supra, in a case such as this, where the very relief sought from this Court (i.e. rolled-in natural gas rates) currently exists without benefit or need of this Court's intervention. St. Onge v. Elkin, 376 N.W.2d 41 (N.D.1985).
[¶23] In Morgan v. Hatch, 274 N. W. 2nd 563 (1979) this court opined:
“…All election statutes are mandatory in the sense they impose a duty of obedience upon those within their purview. Perry v. Hacknesy, supra 11 N.D. at 155, 90 N.W. at 485…this court has called the statute “mandatory” and has held the ballot is void [see, e.g., Grubb v. Dewing, 48 N.D. 774, 187 N.W. 157 (1922)]; on the other hand, if the deviation from the statute is minor and in no way frustrates the intent and purpose of the statute, this court has called
such statute “directory” and has held that the irregularity does not affect the validity of the ballot [see, eg. Mittelstad v Bender, 210. N.W. 89 (N.D. 1973); Perry v. Hackney, supra], Morgan v. Hatch, 274 N.W. 2nd 563, 668 (1979).
iii. The original Appellants two requests before City Council, timely filing of an election challenge in District and timely filing of an appeal to this Court; all raising the issue of voting precinct location defeat any claim of mootness by the City.
[¶24] Ms. Mary Weaver, original Appellant and member of Petition Committee, raised
the issue of voting locations twice. It was discussed for ~10 minutes at a committee
Click on video, April10, 2017 Committee of the Whole Minute 4:10 to 14:00 and Click
on video, City Council meeting, April 17, 2017, minute 1:29:52 to 141:00
[¶25] Reviewing the videos of these meetings one is reminded of classic Silver Blaze,
by Sir Arthur Conan Doyle. The clue was not what the dog did at night, the clue was
what dog did not do (bark). http://sherlock-holmes.classic-literature.co.uk/silver-blaze/ebook-page-10.asp. This Court should note that it was not the advice the City
Attorney gave the Council at these two meetings; it was his silence and failure to alter his
2011 advice in which he said, “But under our (City) Code you do have to vote within
the designated precinct or ward.” (Emphasis added)Exhibit 1, Transcript March 2, 2011.
I trust this Court to determine what Mr. Swanson’s advice to the Council was.
iv. In seeking post election relief, is the word “shall” mandatory or directory?
[¶26] Plaintiff anticipates the City will vigorously argue to this Court post-
election relief should define “shall” as directory rather than mandatory. While
this may be a persuasive argument in other cases; when examining the total
[¶27] Below is from Chapter Nine of The Election Law Manual, William and
Mary School of Law.
“…Courts, therefore, usually strictly construe election contest statutes, both because of the costs associated with election contests and because of policy preferences that favor electoral finality and political stability. Page 9-3, See Heleringer v. Brown, 104 S.W.3d 397, 404 (Ky. 2003) (identifying the public policy interests surrounding elections)…. Footnote: See: Heleringer v. Brown, 104 S.W.3d 397, 404 (Ky. 2003) (identifying the public policy interests surrounding elections). And …Compliance failures do not automatically void the election, however, especially if the failure is not challenged until the election. Instead, courts typically construe statutes that are not challenged until after the election as directory, which allows the court to overlook harmless compliance failures, … Page 9-13 ‘
[¶28] An examination of attached Exhibit 2C, which is a summary of Trial Exhibit ???, illustrates the probable impact of going to a single site. Given the District Court opined “The future of Arbor Park was hotly contested.” the only logical conclusion is the single voting site suppressed the vote. District Court [¶21]. The evidence (voter turnout) clearly indicates the change to a single voting site had a significant, not harmless or de minimis, impact on the election.
[¶29] The following are some case law interpreting the word shall:
When used in statutes, contracts, or the like, the word "shall" is generally imperative or mandatory.[Independent School Dist. v. Independent School Dist., 170 N.W.2d 433, 440 (Minn. 1969)]
"In common, or ordinary parlance, and in its ordinary signification, the term 'shall' a word of command, and one which has always, or which must be given a
compulsory meaning; as denoting obligation. It has a peremptory meaning, and it is generally imperative or mandatory. It has the invariable significance of excluding the idea of discretion, and has the significance of operating to impose a duty which may be enforced, particularly if public policy is in favor of this meaning, or when addressed to public officials, or where a public interest is involved, or where the public or persons have rights which ought to be exercised or enforced, unless a contrary intent appears; but the context ought to be very strongly persuasive before it is softened into a mere permission," etc.[People v. O'Rourke, 124 Cal. App. 752, 759 (Cal. App. 1932)
https://definitions.uslegal.com/s/shall/
[¶30] However, the word “shall” in a statute generally indicates a duty that is mandatory. Solen Pub. School Dist. No. 3 v. Heisler, 381 N.W.2d 201, 203 (N.D. 1986).
v. The City’s reasons for changing voting sites were not “good and sufficient reasons.
[¶31] The N.D.C.C. requires “good and sufficient” reasons to change polling site. N.D.C.C. 16.1-04-02(4). Due to time constraints, Plaintiff is unable to provide clear citations, though the evidence does not support the standard of “good and sufficient.” Cost saving claim. If the City followed its own Code, there is no difference in personnel required. This also refutes their claim of finding enough workers. And furthermore; there are no “volunteers” involved with the official election process. See: CITY CODE ARTICLE 4- CONDUCT OF ELECTIONS—4-0401-Inspectors, judge, clerks.
For all general city elections the city council shall appoint one (1) inspector for each precinct at least twenty-one (21) days before the election is held, and two (2) judges and two (2) clerks of election for each precinct at least ten (10) days before the election is held. For special city elections the city council shall appoint one (1) inspector, two (2) clerks and two (2) judges of election for each precinct in the city at least ten (10) days before the election is held.
[¶32] Furthermore, the City chose the June date for the election. There was no
requirement it be held in June. In fact, at least one council member suggested holding it
in November with the sales tax vote. The City action actually cost them money, it did not
save any. Also, the City conducted the November, 2017, sales tax election without
assistance from the County. Reasons presented for going to a single site are not
supported by truthful evidence.
[¶33] Additionally, the Attorney General’s office has opined, “…normally voting
places are required to be within a particular voting precinct…located outside…when
doing so will enhance the elective franchise and (emphasis added) there is ‘good and
sufficient reason.’” 2001 N.D. Op. Att’y Gen. L-23. No one has suggested this enhanced
the elective franchise. It fact, the evidence supports Ms. Weaver’s concern expressed to
the city council.
C. The City’s adaption of revised Chapter IV. in 2011 prevents City from claiming the falsity of the clear meaning of Chapter IV.
[¶34] I again apologize to the Court for being unable to provide complete citations. A
close examination of Plaintiff’s Exhibit A & B , which appears to have been adopted 1-
7-2002; it could be argued it does not mandate “voting in every ward.” However,
testimony indicates until the June, 2017 election, every City election had multiple voting
sites. Thus, it is clear, in March, 2011, the City Attorney opined, “But under our (City)
Code you do have to vote within the designated precinct or ward.” Id. Furthermore, it
appears that on December 19, 2011, the city codified this past interpretation, “The city
council each shall establish by resolution the precincts within ward (emphasis
added)…” Chapter IV. Article 0402-10. This is conclusive evidence the requirement
was that each ward have at least one voting site within the boundaries of each ward.
Plaintiff’s Exhibit 7, Chpt. IV.
i. Even though the Court accepted some of the contestants withdrawing at this stage of the litigation, it should not affect subject matter jurisdiction
“A defeated candidate or ten qualified electors may contest the nomination or election of any person or the approval or rejection of any question or proposition…” N.D.C.C. 16.1-06-02.
[¶35] Contestant/Plaintiffs have clearly met this condition when the case was originally
filed. That is the requirement. Below requirements have also been met.
“An action to contest an election must be commenced by service of a summons and verified complaint.” N.D.C.C. 16.1-06-03. “An appeal to the supreme court of the judgment in an election contest action may be had by filing a notice of appeal with the clerk of the trial court within ten days of the date of the service of notice of entry of the judgment.” N.D.C.C. 16.1-06-03.
[¶36] This Court has rejected “absurd results.” This Court has previously opined,
“Statutes must be construed to avoid absurd results.” State v. Jelliff, 251 N.W.2d 1
