Empower the Taxpayer v. Fong
817 N.W.2d 381
| N.D. | 2012Background
- Empower seeks injunctive relief against state and local officials alleging violations of the North Dakota Corrupt Practices Act in connection with Measure 2 advocacy.
- The district court dismissed on pleadings (12(b)(6)) for lack of a private right of action under the Act; court treated the Act as criminal.
- Appellate review is de novo on the question of implied private remedies under a criminal statute.
- Court applies Cort v. Ash factors (three-factor test) to determine whether a private right of action is implied.
- Court concludes there is no express or implied private right of action and upholds dismissal of Empower’s action.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is there an implied private right of action to enforce the Corrupt Practices Act? | Empower argues the Act creates an implied private remedy. | Legislature has not shown intent to create a private remedy; Act is criminal. | No implied private right of action exists. |
| Is injunctive relief available to enforce a criminal statute without a private right of action? | Empower seeks injunctive relief to prevent alleged violations. | Injunctive relief is not available absent statutory authorization. | Injunctive relief against criminal violations is not available without express authorization. |
Key Cases Cited
- Trade ‘N Post, L.L.C. v. World Duty Free Americas, Inc., 2001 ND 116, 628 N.W.2d 707 (N.D. 2001) (three-factor framework for implying private rights of action under a statute)
- Ernst v. Burdick, 2004 ND 181, 687 N.W.2d 473 (N.D. 2004) (silence of legislature indicates no implied private remedy; factors guide implication)
- District One Republican Comm. v. District One Democrat Comm., 466 N.W.2d 820 (N.D. 1991) (corrupt practices acts not grounds for civil election contest; remedy is criminal)
- District One Republican Comm. v. District One Democrat Comm., 466 N.W.2d 827-28 (N.D. 1991) (application of Cort v. Ash factors to implied remedies)
- Svedberg v. Stamness, 525 N.W.2d 678 (N.D. 1994) (injunctive relief not available to enforce criminal statutes absent authorization)
- Brandvold v. Lewis and Clark Pub. Sch. Dist. No. 161, 2011 ND 185, 803 N.W.2d 827 (N.D. 2011) (de novo review for failure to state a claim; standard referenced)
- Cort v. Ash, 422 U.S. 66 (U.S. 1975) (three-factor test for implied private rights of action)