District One Republican Committee v. District One Democrat Committee , 1991 N.D. LEXIS 35 ( 1991 )

VANDE WALLE, Justice,

concurring specially.

I concur in that portion of the majority opinion which concludes that the district court lacks jurisdiction to hear civil election contests which have as their basis the violation of the Corrupt Practices Act. As the majority opinion observes, at common law there was no right to contest a public election in a court because elections were part of the political branch of the government and were beyond judicial control. Section 12 of Article IV of the North Dakota Constitution, as approved by the electors of this State on November 6, 1984 [see 1985 N.D.Laws, ch. 707] modifies that concept slightly and specifies that “[e]ach house is the judge of the qualifications of its members, but election contests are subject to review as provided by law.”

In view of the historical precedents which are continued in this constitutional provision, we should conclude the judicial branch of government has jurisdiction to entertain contests of election only when the legislature has authorized us to do so by direct and unequivocal action. Cf. Timm v. Schoenwald, 400 N.W.2d 260 (N.D.1987). Where substantial doubt exists as to whether or not the legislature intended the judicial branch to have jurisdiction to hear election contests we should not rationalize a basis upon which to conclude that we have jurisdiction. Chapter 16.1-16 is not direct and unequivocal. Nevertheless, if I were to apply the ordinary standards of statutory construction, I agree with the majority that in matters involving the violation of the Corrupt Practices Act the legislature intended they be tried by criminal action and not by a civil contest of election.