Hendrix v. Jaeger , 2022 ND 168 ( 2022 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
SEPTEMBER 7, 2022
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2022 ND 168Jared Hendrix, as chairman of the
North Dakota for Term Limits
Sponsoring Committee, and North
Dakota for Term Limits, Petitioners
v.
Alvin A. Jaeger, in his official capacity
as North Dakota Secretary of State, Respondent
No. 20220233
Petition for Writ of Mandamus.
PETITION GRANTED.
Opinion of the Court by Tufte, Justice.
Edward D. Greim (argued) and Matthew R. Mueller (on brief), Kansas City,
Missouri, and Jesse H. Walstad (appeared), Bismarck, North Dakota, for
petitioners.
David R. Phillips, Special Assistant Attorney General (argued), Matthew A.
Sagsveen, Solicitor General (appeared), and the Honorable Drew H. Wrigley,
Attorney General (appeared), Bismarck, North Dakota, for respondent.
Hendrix v. Jaeger
No. 20220233
Tufte, Justice.
[¶1] Jared Hendrix, as chairman of the North Dakota for Term Limits
Sponsoring Committee, and North Dakota for Term Limits (collectively,
“Petitioners” or “Committee”) petition for a writ of mandamus requiring the
Secretary of State to place the Term Limits Initiative on the November 8, 2022,
general election ballot. The Secretary of State rejected 29,101 signatures on
circulated petitions and concluded the initiative did not qualify for placement
on the ballot. The Petitioners argue the Secretary of State improperly
invalidated signatures on the basis of a finding of notary fraud relating to two
circulators, a pattern of notary fraud relating to one notary, violation of the
pay-per-signature ban, and other issues. We conclude the Secretary of State
misapplied the law by excluding signatures on the basis of a determination
that a pattern of likely notary violations on some petitions permitted his
invalidation of all signatures on all petitions that were sworn before the same
notary. Because adding the signatures invalidated for imputed fraud to the
17,265 other signatures accepted by the Secretary of State places the initiative
over the constitutional requirement of 31,164, we grant the Committee’s
petition and issue a writ of mandamus requiring the Secretary of State to place
the Term Limits Initiative on the November 8, 2022, ballot.
I
[¶2] In July 2021, the Committee submitted the Term Limits Initiative
petition to the Secretary of State for review and approval. The proposed
initiative would create a new article in the North Dakota Constitution
imposing term limits on the Governor and members of the Legislative
Assembly. The Secretary of State approved the petition for circulation. To place
the initiative on the November 2022 ballot, the Committee was required to
gather 31,164 qualified elector signatures.
[¶3] On February 15, 2022, the Secretary of State received 1,441 petition
packets containing 46,366 elector signatures from the Committee. On March
22, 2022, the Secretary of State notified the Committee that 29,101 signatures
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were invalid and thus it had failed to submit enough valid signatures to place
the initiative on the November ballot. He informed the Committee that he
would not certify the initiative for placement on the ballot. The Committee
requested an opportunity to review the petitions and the specific reasons for
the rejection of each signature. In the following weeks, the Secretary of State
returned the petitions, provided a spreadsheet outlining his reasons for
rejecting signatures, and advised the Committee it had 20 days to review the
rejections and provide any corrections.
[¶4] The Secretary of State invalidated every elector signature appearing on
petitions gathered by circulators whose affidavits were notarized by Zeph Toe.
The Secretary of State informed the Committee that “[s]everal signatures of
circulators were likely forged on affidavits in the presence of [Toe]. Therefore,
all affidavits (attached to 751 petitions that included 15,740 signatures)
notarized by [Toe] were not counted.” In reaching this decision, two petition
circulators raised “red flags” for the Secretary of State: Chloe Lloyd and
Ramona Morris. The Secretary of State determined their signatures on
circulator affidavits attached to the petitions were inconsistent. As a result of
his opinion that these signatures “vary wildly,” the Secretary of State inferred
they had not been signed in the presence of Toe when he notarized them, which
would be unlawful and raise serious credibility concerns about Toe.
[¶5] In August 2022, the Committee petitioned the Court for a writ of
mandamus requiring the Secretary of State to place the Term Limits Initiative
on the November 8, 2022, general election ballot. We ordered the district court
to hold an evidentiary hearing and make findings of fact on the Secretary of
State’s disqualification of petition signatures. On August 23, 2022, the court
held the evidentiary hearing.
II
[¶6] The people of North Dakota reserved to themselves the power to propose
and adopt constitutional amendments by the initiative. N.D. Const. art. III,
§ 1. “Laws may be enacted to facilitate and safeguard, but not to hamper,
restrict, or impair these powers.” Id. “All decisions of the secretary of state in
the petition process are subject to review by the supreme court in the exercise
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of original jurisdiction.” N.D. Const. art. III, § 7; see also N.D. Const. art. III,
§ 6 (stating all decisions of the Secretary of State “in regard to any petition are
subject to review by the supreme court”). We have mandatory original
jurisdiction under N.D. Const. art. III, §§ 6, 7. Zaiser v. Jaeger, 2012 ND 221,
¶ 11, 822 N.W.2d 472; N.D. State Bd. of Higher Educ. v. Jaeger, 2012 ND 64,
¶¶ 10, 13, 815 N.W.2d 215.
[¶7] The Secretary of State has a constitutional duty to pass upon the
sufficiency of initiative petitions. N.D. Const. art. III, § 6. According to
N.D.C.C. § 16.1-01-10, this duty must be completed within thirty-five days. We
have recognized the Secretary of State “has some discretion in passing on the
sufficiency of submitted petitions.” Zaiser, 2012 ND 221, ¶ 19. However, these
responsibilities are “limited” and “ministerial in nature.” Haugen v. Jaeger,
2020 ND 177, ¶ 4, 948 N.W.2d 1 (quoting Bd. of Higher Educ., 2012 ND 64,
¶ 10). If the Secretary of State’s decision “involves the exercise of some
discretion, his decision is entitled to some deference; however, to the extent his
decision involves a question of law, the review is de novo, and neither party has
the burden of proof.” Zaiser, at ¶ 19.
A
[¶8] The Petitioners argue the Secretary of State erred by invalidating 15,740
otherwise valid signatures merely because they appeared on petitions gathered
by circulators whose affidavits were notarized by Zeph Toe. The March 22,
2022, letter from the Secretary of State to the Committee stated, “Several
signatures of circulators were likely forged on affidavits in the presence of a
notary public. Therefore, all affidavits (attached to 751 petitions that included
15,740 signatures) notarized by this notary were not counted.” The 751
petitions having a circulator affidavit notarized by Zeph Toe contained 21,684
signatures, 5,944 of which were deficient for other reasons and 15,740 of which
were otherwise “valid” and disqualified solely on the basis of the Zeph Toe
notarization.
[¶9] At all relevant times, Toe has been a North Dakota notary in good
standing. On April 11, 2022, during the 20-day correction period, the
Committee provided the Secretary of State an affidavit from Toe attaching
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some of his notary logbook entries. Toe attested he followed the law in
identifying the circulators appearing before him and witnessed the circulators
sign the petitions before he notarized them. Lloyd, the circulator whose
signatures raised suspicion, also provided an affidavit, dated April 14, 2022,
stating the disputed signatures were her signatures. The Secretary of State
did not consider either affidavit for purposes of correction, explaining Zeph
Toe’s affidavit “was inaccurate because the signatures varied too much among
the various petitions; so I can’t believe it.” The district court disregarded these
affidavits as untimely and untruthful. In original jurisdiction cases such as
this, we do not apply the clearly erroneous standard, but rather give the
district court’s findings of fact “appreciable weight.” Berg v. Jaeger, 2020 ND
178, ¶¶ 14-15, 948 N.W.2d 4.
[¶10] The Secretary of State had no more than 35 days to pass upon the
sufficiency of the initiative petition under N.D.C.C. § 16.1-01-10, which in this
case was March 22, 2022. After the Secretary of State’s 35-day review period
closes, Article III, § 6, of the North Dakota Constitution allows twenty days to
correct an insufficient petition from the date the Secretary of State notifies the
sponsoring committee. Although the Committee was initially notified of the
insufficient petition on March 22, 2022, the Committee did not receive the
spreadsheet outlining the precise reasons for excluding each signature until
April 5, or the last of the returned petitions until April 11. The Secretary of
State does not contest the timeliness of these affidavits, and we conclude both
were timely submitted to the Secretary of State. The Secretary of State
explained he viewed the affidavits as untruthful on the basis of his belief that
the signatures on the circulator affidavits varied too much to be anything other
than fraudulent. As a result, he determined that both Lloyd and Toe lacked
credibility to submit an affidavit that should be considered. We consider all
information available to the Secretary of State when the final decision was
made at the end of the correction period.
B
[¶11] We begin our analysis by stating what we do not decide here. The
Secretary of State determined that differences in handwriting by petition
circulators Chloe Lloyd and Ramona Morris in their affidavits purportedly
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sworn before notary Zeph Toe were sufficient on their own (despite
supplemental affidavits disputing the alleged fraud) to find the notarial act by
Toe was fraudulent. We need not review whether that finding was supported
by the information available to the Secretary of State at the time he
determined the petition was insufficient. Assuming without deciding that the
petitions having circulator affidavits by either Lloyd or Morris and sworn
before Toe were properly excluded for fraud, we conclude the dispositive issue
is whether there is legal authority supporting the Secretary of State’s decision
to impute that fraud to all petitions having circulator affidavits sworn to before
the same notary.
[¶12] Concerning only the petition affidavits notarized by Toe, the record
reflects a total of 1,043 “valid” signatures on the Lloyd petitions and zero
“valid” signatures on the Morris petitions.1 The disqualification of petitions
1Chloe Lloyd submitted the following petition packets having a circulator’s affidavit notarized by Toe.
Pet. No. Invalid Valid Raw Total
808 49 0 49
809 11 37 48
812 7 39 46
814 15 35 50
815 5 45 50
816 8 42 50
817 20 30 50
818 10 40 50
819 9 41 50
820 8 42 50
821 15 35 50
824 5 12 17
825 13 37 50
826 11 39 50
827 5 45 50
828 9 41 50
829 15 35 50
830 11 39 50
831 15 34 49
832 15 35 50
833 33 17 50
1377 7 33 40
1378 3 37 40
1379 6 34 40
1382 1 5 6
1385 2 12 14
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having circulator affidavits notarized by Toe invalidated 15,740 signatures
solely on the basis of the Toe notarization. Those 15,740 signatures included
all Morris and Lloyd signatures indicated as valid in the Secretary of State’s
summary. The Secretary of State’s inference of fraud due to inconsistent
signatures attached to these Lloyd and Morris petition packets directly
implicates 1,043 otherwise valid signatures. The Secretary’s imputation of
fraud to the remaining petition packets notarized by Toe, but not circulated by
Lloyd or Morris, accounts for invalidation of the other 14,697 signatures
(15,740 minus 1,043). If, as petitioners argue, imputed fraud may not be a basis
for invalidating signatures, that question alone is dispositive and we need not
review whether there is sufficient support for the Secretary of State’s finding
of fraud.
[¶13] Without conceding the circulator signatures taken before Toe were
inconsistent, the Petitioners contend that even if some circulator affidavits had
inconsistencies or some circulator signatures were actually forged, the
invalidation of all elector signatures on all petition packets notarized by Toe is
unprecedented and unlawful. The Petitioners cite several cases from other
jurisdictions in support of rejecting only those signatures that are actually and
demonstrably fraudulent, not the otherwise valid elector signatures. See
Bradshaw v. Ashcroft, 559 S.W.3d 79, 88 (Mo. Ct. App. 2018) (concluding
statute did not “expressly provide that a circulator’s dishonesty in an affidavit,
or a notary’s dishonesty in an attestation, will require otherwise valid voter
signatures not to be counted”); Committee for a Healthy Future, Inc. v.
1391 10 22 32
1392 5 30 35
1394 2 35 37
1397 5 12 17
1398 1 17 18
1401 6 15 21
1404 3 23 26
1405 3 23 26
1406 2 25 27
345 1043 1388
Ramona Morris submitted six petition packets numbered 1111, 1112, 1113, 1114, 1115, and 1116 having
a circulator’s affidavit notarized by Toe. The Secretary of State’s Apr. 5, 2022 summary of the petition
packets indicates there were no valid signatures in these petition packets.
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Carnahan, 201 S.W.3d 503, 509 (Mo. 2006) (en banc) (stating that “[i]f the
validity of the voters’ signatures can be otherwise verified, their signatures
should not be invalidated by the notary’s negligence or deliberate misconduct”);
United Labor Committee of Missouri v. Kirkpatrick, 572 S.W.2d 449, 454 (Mo.
1978) (en banc) (same); Hebert v. State Ballot Law Comm’n, 10 Mass. App. Ct.
275, 279 (1980) (quoting State ex rel. McNary v. Olcott, 125 P. 303, 307 (Or.
1912)) (“[I]n the absence of evidence of intentional fraud or guilty knowledge
on the part of the circulator, it would be an unjust rule to deprive the honest
signer of his right to have his signature counted, merely because some
disqualified person signed, or because some person, without the knowledge of
the circulator, affixed a fictitious name, or gave a fictitious address.”);
Fraternal Order of Police Lodge 35 v. Montgomery Cty., 80 A.3d 686, 697 (Md.
2013) (holding that “minor errors in the circulator affidavit will not invalidate
petition signatures that are already certified by the appropriate administrative
body”).
[¶14] The Secretary of State acknowledged his office has never before
invalidated all petitions from a single notary, and he cited no authority from
any jurisdiction in which a class of documents relating to a notary had been
invalidated as a result of notarial fraud or other misconduct. Our research,
both inside and outside the election context, has revealed no precedent
supporting invalidation of a class of documents notarized by an individual
notary on the basis of imputing fraud relating to some of the documents. The
Secretary of State applied the logical inference of the common law maxim “false
in one thing, false in all things,” often referred to in Latin as falsus in uno,
falsus in omnibus. Of course, the Secretary of State found not one, but “several”
of Lloyd’s circulator affidavits to have been fraudulently notarized by Toe. But
as detailed below, North Dakota law is contrary to application of the inference
in this context, and the weight of authority from other jurisdictions is to reject
application of this inference—even where there is admitted fraud as to several
documents—and invalidate only those documents bearing indicia of fraud.
[¶15] The Secretary of State invalidated petition signatures on the basis of
notary fraud he imputed from his inference of fraud in other petitions. Section
44-06.1-24, N.D.C.C., provides for when notarial acts are valid: “Except as
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otherwise provided in this chapter, the failure of a notarial officer to perform
the duties or meet the requirements specified in this chapter does not
invalidate a notarial act performed by the notarial officer.” Application of the
common law maxim “false in one, false in all” to notarial acts in this context
would be contrary to the Revised Uniform Law on Notarial Acts (RULNA). See
N.D.C.C. §§ 1-01-06; 1-02-13. Imputing fraud to a facially valid notarial act
from a separate act that may support an inference of notarial misconduct is
impermissible—each notarial act must be challenged separately. N.D.C.C.
§ 44-06.1-24 [RULNA § 26] (“The validity of a notarial act under this chapter
does not prevent an aggrieved person from seeking to invalidate the record or
transaction that is the subject of the notarial act or from seeking other
remedies based on other laws of this state or law of the United States.”). The
official comments to RULNA § 26 confirm a strong presumption of validity for
facially valid notarial acts. So long as an individual is a notarial officer, “the
failure of a notarial officer to perform the duties or to meet the requirements
of this act does not invalidate the notarial act performed by the notarial officer.
For example, a notarial act performed by a notary public whose assurance or
surety bond may have expired or been cancelled is not invalidated.” RULNA
§ 26 cmt. Although “a notarial act may be valid, the underlying record . . . may
be set aside in appropriate legal proceedings.” Id. Reliance on the validity of
notarial acts is vital in many areas of law, including real estate transactions.
Although fraud in one transaction is certainly relevant to a notary’s credibility
as to another transaction, it is not by itself sufficient to invalidate other acts
by the same notary.
[¶16] In passing on the sufficiency of petitions, the “secretary of state shall
conduct a representative random sampling of the signatures contained in the
petitions . . . to determine the validity of the signatures.” N.D.C.C. § 16.1-01-
10. “Signatures determined by the secretary of state to be invalid may not be
counted . . . .” Id. However, “in passing on the sufficiency of a petition, there is
a presumption that each signature in the petition is the genuine signature of
the person whose name it purports to be.” Zaiser, 2012 ND 221, ¶ 21. The
Secretary of State described the importance of the notary as follows: “If the
notary does not faithfully execute his duties and cannot be trusted, it calls into
question whether the circulator did make the required attestation, and in turn
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calls into question the information contained on the attestation about the
signers and signatures.”
[¶17] In Zaiser, the Secretary of State rejected signatures on circulated
petitions and determined an initiative measure to legalize medical marijuana
did not qualify for placement on the ballot. 2012 ND 221, ¶ 1. The Secretary of
State, through the Bureau of Criminal Investigation, had conducted personal
interviews of six petition circulators. Id. at ¶ 21. All six circulators admitted to
forging signatures on petitions they circulated, including one circulator who
admitted that “every signature he turned in” was forged. Id. at ¶ 5. The other
five circulators “indicated that [they] would not be able to identify any
legitimate signatures [they] obtained with a level of confidence that [they]
would be willing to sign a petition circulator affidavit indicating the signatures
were legitimately obtained.” Id. at ¶ 28. After the Secretary of State rejected
all of the signatures on these petitions, the sponsoring committee challenged
his rejection. Id. at ¶¶ 6-7. We concluded the Secretary of State “correctly
determined the petitions with elector signatures forged by circulators and
accompanied by false circulators’ affidavits could not be used to calculate the
number of elector signatures necessary to place the initiative measure on the
[ballot].” Id. at ¶ 29. Thus, the disqualification of signatures was limited to
those petitions where circulators admitted to forging signatures and the
petitions were not supported by a supplemental circulator affidavit.
[¶18] The Pennsylvania Supreme Court considered and rejected a similar
argument in In re Farnese, 17 A.3d 375 (Pa. 2011). In that case, “the objectors
essentially made a ‘pattern of fraud’ or ‘false-in-one, false-in-all’ argument and
asked the court to strike as invalid every signature page submitted by any
circulator who had a page voluntarily withdrawn by the candidate. Similarly,
the objectors argued that all the signature pages notarized by Jonathan J.
Oriole had to be stricken because Mr. Oriole had falsely notarized a withdrawn
page.” Id. at 384 (Castille, C.J., concurring); id. at 388 (Saylor, J., concurring)
(“I also agree with Mr. Chief Justice Castille, that Appellants’ novel false-in-
one-false-in-all theory, as presented to the Commonwealth Court, was
appropriately rejected by that court.”); id. at 390 (Eakin, J., joined by Baer, J.,
concurring) (“I continue to agree that a ‘false in one, false in all’ principle
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should be rejected in these cases . . . fraud should not be a presumptive total
disqualification, but a permissible consideration.”).
[¶19] In Cunningham v. Schaeflein, the Appellate Court of Illinois considered
a pattern of violations involving two circulators who “regularly failed to
personally appear before notary Lisa Hwang when swearing their petition
sheets” and a request by the objecting parties to invalidate all petitions
associated with the notary and the two circulators. 969 N.E.2d 861, 865 (Ill.
App. Ct. 2012). Both circulators testified that they had submitted signed
circulator affidavits without personally appearing before the notary. Id. at 866-
67. The notary also testified that she would sometimes notarize petitions of
individuals who had not appeared before her. Id. at 867. In addition to this
testimony, a certified forensic document examiner provided expert testimony
that many of the signatures submitted by the two circulators “bore
characteristics of common authorship.” Id. The hearing officer found no basis
to invalidate all petitions notarized by Hwang, and the electoral board adopted
the hearing officer’s findings. Id. On appeal, the court concluded that the
testimony called into question all sheets signed by the two circulators and
“cast[] a cloud over all sheets notarized by Hwang, even if the evidence does
not establish that every instance of swearing was improper” and struck only
the petition sheets circulated by the two circulators. Id. at 876-77.
[¶20] In Raila v. Cook Cty. Officers Electoral Bd., the Board adopted the
hearing officer’s finding that “ten notaries and 12 circulators engaged in an
intentional pattern of fraud” and struck all sheets notarized by the ten notaries
and all sheets circulated by the 12 circulators. 2018 IL App (1st) 180400-U,
2018 WL 1365513, at ¶¶ 25-26. On appeal, the only issue was the invalidation
of signatures on the basis of a pattern of notary and circulator fraud, consisting
of “numerous instances of Raila’s circulators having mailed in petition sheets
to the campaign that were either unsigned or signed but unnotarized, and that
those petition sheets were subsequently signed by someone other than the
original circulator.” Id. at ¶¶ 6, 8. The hearing officer received affidavits from
mail-in circulators who stated they returned signed but unnotarized petitions
that were later notarized. Id. at ¶ 40. Three circulators testified at the
evidentiary hearing that a total of 38 petition sheets were notarized without
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their having appeared before a notary. Id. A fourth was barred from testifying
but provided affidavits supporting the pattern as to 121 additional sheets. Id.
at ¶¶ 15, 40. Beyond these 159 sheets, the Board struck sheets containing over
7,800 valid signatures on the basis of notary misconduct. Id. at ¶ 41. The court
concluded:
Furthermore, there were no admissions by any of the
notaries involved that they intentionally notarized sheets without
the circulator present. There was no evidence from any witness
who observed notaries notarizing petition sheets without the
named circulator present. There was no evidence from any witness
that anyone ever instructed a notary to notarize petition sheets
without the named circulator present. While there was some
evidence that certain notaries, including Raila herself, notarized
sheets without the circulator present, that evidence simply does
not rise to level of “clear and convincing” evidence of a pattern of
fraud, and is certainly not sufficient evidence to warrant striking
each and every sheet notarized by ten of the notaries.
Id.
[¶21] We find these cases persuasive in rejecting wholesale invalidation of
signatures for irregularities by the notary. See also Zaiser, 2012 ND 221, ¶¶ 5,
28-29 (rejecting signatures that were either admitted to be forged or which
were not supported by a supplemental circulator affidavit). We conclude the
Secretary of State misapplied the law by imputing fraud from several
inconsistent signatures of circulators on several affidavits sworn to before Toe
and, as a result, disqualifying all 15,740 signatures on 751 petitions notarized
by Toe.
III
[¶22] The Secretary of State’s decision to invalidate all signatures on petitions
having circulator oaths notarized by Zeph Toe was a misapplication of law. The
Secretary of State’s spreadsheet of signatures notarized by Zeph Toe indicates
15,740 signatures were disqualified solely because Toe notarized those
petitions and were otherwise indicated to be “valid signatures.” Setting aside
the 1,043 signatures directly connected to the signature inconsistencies found
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by the Secretary of State, the remaining 14,697 signatures are sufficient when
added to other signatures found valid by the Secretary of State to qualify the
measure for the ballot.
[¶23] We need not address the Petitioners’ additional arguments that the
Secretary of State erred in invalidating signatures for violating name and
address requirements and the pay-per-signature ban, N.D.C.C. § 16.1-01-
12(1)(j), because they are unnecessary to our decision. We also need not address
the constitutional challenge to N.D.C.C. § 16.1-01-12(1)(j). See Poochigian v.
City of Grand Forks, 2018 ND 144, ¶ 10, 912 N.W.2d 344 (noting that “courts
will not give advisory opinions on abstract legal questions, and an action will
be dismissed if there is no actual controversy left to be determined and the
issues have become moot or academic”). Accordingly, we decline to address
those issues.
[¶24] We grant the Committee’s petition and issue a writ of mandamus
requiring the Secretary of State to place the Term Limits Initiative on the
November 8, 2022, general election ballot.
[¶25] Jon J. Jensen, C.J.
Lisa Fair McEvers
Jerod E. Tufte
Allan L. Schmalenberger, S.J.
William A. Neumann, S.J.
[¶26] The Honorable William A. Neumann and the Honorable Allan L.
Schmalenberger, Surrogate Judges, sitting in place of VandeWalle, J., and
Crothers, J., disqualified.
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