20200298 FILED IN THE OFFICE OF THE CLERK OF SUPREME COURT In the Supreme Court NOVEMBER 19, 2020 STATE OF NORTH DAKOTA State of North Dakota November 19, 2020 Supreme Court No. 20200298 Doug Burgum, in his capacity as North Dakota’s Governor, Petitioner, vs. Alvin Jaeger, in his capacity as North Dakota’s Secretary of State; the North Dakota Legislative Assembly, Chet Pollert, Chairman of Legislative Management; and the District 8 Republican Committee, Loren DeWitz, District Chairperson, Respondents. CORRECTED BRIEF OF INTERVENOR DEMOCRATIC NON-PARTISAN LEAGUE (DEM-NPL) DISTRICT 8 HOUSE OF REPRESENTATIVES CANDIDATE KATHRIN VOLOCHENKO IN RESPONSE TO THE PETITION BY NORTH DAKOTA GOVERNOR DOUG BURGUM FOR “PRELIMINARY INJUNCTIVE RELIEF, DECLARATORY JUDGMENT, WRIT OF INJUNCTION, AND WRIT OF MANDAMUS” Duane A. Lillehaug (03232) David C. Thompson (09321) MARING WILLIAMS LAW OFFICE, P.C. DAVID C. THOMPSON, P.C. 1220 Main Avenue, Suite 105 321 Kittson Avenue Fargo, North Dakota 58103 Grand Forks, ND, 58201 (701) 241-4141 (701) 775-7012 [email protected] [email protected] COUNSEL FOR INTERVENOR KATHRIN VOLOCHENKO 1 TABLE OF CONTENTS TABLE OF AUTHORITIES…………………………………………………………..…….3 STATEMENT OF THE ISSUES…………………………………………………....………5 STATEMENT OF THE CASE………………………………………………..……………¶1 … STATEMENT OF FACTS……………………………………………………………….….¶9 ARGUMENT……………………………………………………………………..................¶21 A. The “election” of David Andahl -- who was deceased at the time of the November 3, 2020 General Election -- is a “nullity” and the Legislative Assembly has not “provided by law” a procedure to address the manner in which the remaining second District 8 House of Representatives seat at issue in the election should be filled………………………………………………………………………... …..¶21 B. By virtue of the Doctrine of Separation of Powers enshrined in the North Dakota Constitution the Governor – the head of the Executive Branch of state government -- is without authority to appoint any person to be a member of the Legislative Assembly – in the Legislative Branch of state government………………….…¶31 C. After David Andahl’s “nullity” candidacy Governor Doug Burgum is precluded by the Separation of Powers Doctrine from appointing a replacement person to the second District 8 House of Representatives seat -- and where N.D.C.C. § 16.1-13- 10 is unavailing to the Respondents because this statute is inapplicable under the factual circumstances of David Andahl’s pre-election death – the Supreme Court should rely upon the apposite decisional law recited herein as persuasive authority and the Court should thus order that all votes cast for a deceased person are a collective nullity which can have no effect on the result of the election. …………………………………………………………………………………...¶37 CONCLUSION……………………………....................................................................¶52 2 TABLE OF AUTHORITIES Cases Blaine v. Almeda County, 35 P.2d 517, 518-519 (Cal. 1934)……………….¶43, 48, n. 16 Cassleton Reporter v. An Alleged Newspaper Called the “The Fargo Forun”, 261 N.W. 549 (N.D. 1935)…………………………………………………………………..¶49 n. 17 Dunagan v. Jones, 76 S.W.2d 219 (Tex. Civ. App. 1934)……………………………..¶43 Fields v. Nicholson, 150 N.E. 53 (Ind. 1926)……………………………….……¶43 n. 15 Jenness v. Clark, 129 N.W. 357 (N.D. 1910)……………………………….¶¶ 21,49 n. 17 Madden v. Election Commissioners, 146 N.E. 280 (Mass. 1925)……………¶¶43,44, 45 McQuagge v. Conrad, 65 So 2d 851, 852-853 (Fla. 1953)…………………………….¶24 Nielsen v. Neuharth, 331 N.W.2d 58, 60 (N.D. 1983) ……………………………¶¶21,26, North Dakota Legislative Assembly v, Burgum, 2018 ND 189, ¶¶40-42, 916 N.W.2d 83, 100-101 (N.D. 2018)……………………………………………………………………¶35 Stambaugh v. Price, 532 S.W.2d 929, 931 (Tenn. 1976)……………………….¶43, n.15 State ex. Rel. Bancroft v. Frear, 128 N.W. 1068, 1072-1076 (Wis. 1910).¶43, n.15, 44, 45 State ex. Rel. Wolff v. Guerkink, 109 P.2d 1094, 1099-1100 (Mont. 1941) ………..¶43, 46 Woll v. Jensen, 162 N.W.403 (N.D. 1917)…………………………………….¶49 & n. 17 Constitutional Provisions North Dakota Constitution, Article II, § 1…………………………………………...…¶25 North Dakota Constitution, Article IV, § 5………………………………………….....¶24 North Dakota Constitution, Article IV, § 11…………………………………..…..¶¶27, 28 North Dakota constitution, Article V…………………………………………………..¶33 North Dakota Constitution, Article V, §1……………………………………………....¶33 North Dakota Constitution, Article V, § 8…………………………...…¶¶31, 32, 34, n. 11 3 Statutes N.D.C.C. § 16.1-01-04………………………………………………………………....¶25 N.D.C.C. § 16.1-13-10…………………………………………………¶¶2,19, 29, n.9, 36 N.D.C.C. §16.1-11-18……………………………………………………………….…¶29 N.D.C.C. §54-07-01…………………………………………………………...…¶34, n. 11 N.D.C.C. § 54-12-01…………………………………………………………………...¶20 Court Rules Rule 19(a)(1) North Dakota Rules of Civil Procedure………………………….¶¶4, 6 & 7 Rule 24(a)(2) North Dakota Rules of Civil Procedure …………………………….¶4, & 6 Rule 27 North Dakota Rules of Appellate Procedure……………………………………¶4 Other Authorities North Dakota Attorney General Opinion [2020-L-08]………..….¶18, 19, 20, 37, n. 12 4 STATEMENT OF ISSUES A. The “election” of David Andahl -- who was deceased at the time of the November 3, 2020 General Election -- is a “nullity” and the Legislative Assembly has not “provided by law” a procedure to address the manner in which the remaining second District 8 House of Representatives seat at issue in the election should be filled………………………………………………………………………... …..¶21 B. By virtue of the Doctrine of Separation of Powers enshrined in the North Dakota Constitution the Governor – the head of the Executive Branch of state government -- is without authority to appoint any person to be a member of the Legislative Assembly – in the Legislative Branch of state government………………….…¶31 C. After David Andahl’s “nullity” candidacy Governor Doug Burgum is precluded by the Separation of Powers Doctrine from appointing a replacement person to the second District 8 House of Representatives seat -- and where N.D.C.C. § 16.1-13- 10 is unavailing to the Respondents because this statute is inapplicable under the factual circumstances of David Andahl’s pre-election death – the Supreme Court should rely upon the apposite decisional law recited herein as persuasive authority and the Court should thus order that all votes cast for a deceased person are a collective nullity which can have no effect on the result of the election …………………………………………………………………………………...¶37 5 STATEMENT OF THE CASE [¶1] Invoking original jurisdiction of the North Dakota Supreme Court, Governor Doug Burgum has petitioned the Court for “preliminary injunctive relief, declaratory judgment, a writ of injunction, and (a) writ of mandamus” to preclude the Secretary of State, Legislative Assembly and District 8 Republican Committee” from filling the District 8 legislative seat following the pre-election death of Republican House Candidate David Andahl – so as to permit the Governor to himself fill that seat by appointment. [¶2] Respondents North Dakota Secretary of State Al Jaeger, Legislative Management Chairman Chet Pollert, and District 8 Republican Committee Chairperson Loren DeWitz in turn embrace the October 13, 2020 Letter [2020-L-08] of Republican North Dakota Attorney General Wayne Stenehjem, pursuant to which Stenehjem concludes that votes cast for decedent David Andahl should be counted, that a “vacancy” in the office should be declared, and that Legislative Management should be permitted to appoint a successor pursuant to N.D.C.C. § 16.1-13-10. [¶3] On the basis of the attendant facts and those legal authorities which are presented herein, it is the position of Intervenor Democratic Non-Partisan League (Dem-NPL) Party District 8 House of Representatives Candidate Kathrin Volochenko that the respective positions adopted in this original jurisdiction case by both the Petitioner and the Respondents are incorrect. It is the further position of Intervenor Kathrin Volochenko and that – upon the facts and legal authorities set forth hereafter -- the Supreme Court should enter a declaration that all votes cast for decedent David Andal are a collective “nullity” and thus should not be counted. The necessary 6 consequence to that adjudication would be that Volochenko be declared by the Court to have prevailed in the November 3, 2020 General Election, and this she should be seated as a member of the House of Representatives representing District 8 in the Sixty-Seventh Legislative Assembly. [¶4] On November 17, 2020, Dem-NPL Party District 8 House of Representatives Candidate Kathrin Volochenko sought Intervenor status in the above-captioned original jurisdiction case before the Supreme Court pursuant to the authorities of N.D.R.App.P. 27, N.D.R.Civ.P. Rule 24(a)(2), and N.D.R.Civ.P. 19(a)(1). [¶5] Rule 24(a)(2) of the North Dakota Rules of Civil Procedure provides as follows: RULE 24. INTERVENTION (a) Intervention of Right. On timely motion, the court must permit anyone to intervene who: . (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest. [¶6] Under N.D.R.Civ.P. 19(a)(1), “[a] person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party” if the person meets the following requirements, in part: (B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person’s absence may: (i) as a practical matter impair or impede the person’s ability to protect the interest; [¶7] Furthermore, joinder of Kathrin Volochenko in this case will not deprive the Court of subject matter jurisdiction. N.D.R.Civ.P. 19(a)(1). Ms. Volochenko was a Dem-NPL 7 Party candidate for the House of Representatives in District 8, and she resides in North Dakota [¶8] On the evening of November 17, 2020, the Supreme Court granted Intervenor status to Kathrin Volochenko.