Haugland v. Meier

air,’ gence in the but it has not been laid at Samson,

the doorstep defendant.” HAUGLAND, Brynhild Chester Reiten supra, 62 Wis.2d at 215 N.W.2d at 668. Petitioners, Redlin, and Rolland distinguishable Samson is from the in- appears stant case because it from the facts of that case that the activities of the indi- MEIER, Secretary Ben vidual defendants in the preparation Dakota, Respondent. North cooking of their respective turkeys, and No. 10497. Civ. salad, making of the turkey was all Thus, although negligence same. of North Dakota. Supreme Court existed, way determining there was no responsible who was for it. In the instant 17, 1983. Oct. case, the record reveals that Felchle and the Ehlis prepared turkeys and cooked their

differently and that Felchle did so in a

negligent manner.

Finally, nothing Felchle claims that turkey the record indicates that the actu

ally plaintiff prepared by eaten

him. we believe that the circum

stantial evidence in this case is also suffi prove

cient to this fact. As stated

trial court in its memorandum opinion:

“It is true that evidence estab- does not beyond

lish a reasonable doubt that Mr.

Felchle’s conduct caused the ultimate

problem, but we do know that he en-

gaged conduct would create this

result, assuming turkey contained sal- began cooking

monella before he it. suggest There is no other evidence also, N.W.2d809. See source; the the contrary. evidence is to Common sense dictates the conclusion than likely is more not that Mr. turkey

Felchle’s did contain salmonella prepare

and that his efforts to it were

inadequate to kill the bacteria.” evidence, considering

After the entire

are not left with a definite and firm convic-

tion that a mistake has been made. Ac-

cordingly, judgment is affirmed. PEDERSON, JJ., and PAUL-S

SAND

ON,* Justice, Surrogate and NORMAN J.

BACKES, Judge, District concur.

BACKES, Judge, sitting place District WALLE, J., disqualified.

of YANDE * 27-17-03, Justice WM. L. PAULSON served as a Surro- N.D.C.C. gate Judge for this case to Section the first we reversed

On set aside the decision of him House enjoined placing from on the ballot because the Bill 1500 extraneous impermissible an contained Meier, Haugland v. statement of intent. (N.D.1983). We reached a 335 N.W.2d 809 Meier, 336 Lips similar conclusion proceeding In this (N.D.1983). N.W.2d 346 petitioners contended Secre- approved not have tary of should State impermissi- it contained an petition because designating the introductory ble statement rejec- or approval next election for general Hankla, Wheeler, McGee, Backes Mi- & Ill, tion of the Bill in violation of § not, petitioners; argued by for Orlin W. Constitution, 5, of the North Dakota and § Backes, Minot. subject suspen- to that the Bill was not Wefald, Gen., Atty. Terry Robert 0. The present sion under circumstances. Adkins, Gen., Bismarck, Atty. L. Asst. for is: question statement respondent; argued by Attorney General STATE, OF “TO THE SECRETARY Wefald. DAKOTA: OF NORTH STATE Evans, Baird, Moench & Bis- Rosenberg, We, undersigned, being qualified marck, sponsors; argued by Dale W. Dakota, North electors of the State of Moench, Bismarck. percent than two consisting of more state as of the population the resident SAND, Justice. census, by of the last federal decennial Bill that House petition request this original peti- This is an The proceeding. passed thereof No. 1500 and the whole tioners, time, pursuant for the second to Legislative Assem- Forty-eighth at the III, 7, Article of the North Dakota Con- bly placed upon of North Dakota be stitution, to review requested Court it submitted ballot and that approv- and reverse the of State’s either Secretary of State for al of the as to form to refer House the electors of the State rejection by or 1500, Legislative Bill enacted the 1983 next general Dakota at the of North the name of Minot Assembly, changing election.” to Northwestern College Dakota Uni- versity. Haugland in the ease The statement first it to this one was almost identical

The respondent Secretary of instead of “primary “general election” of the referral filed follow- election.” It also had the additional presented argu- returns to the ing language: ments. held on or about “This election is to be sponsors, circulating 12, June 1984.

tion, Ill, to Art. Constitution, in accordance with to “We do this presented North Dakota the North Article III of ap- provisions and obtained the Dakota Constitution.” proval as to form.1 an affidavit with this Court 1. Bill 1500 was filed with the of State filed House stating approved April as contain- circu- he has on 1983. ing and has valid number of lated the and submitted them to the designated July Bill 1500 be that House of State on or before 18 primary ostensibly required containing ballot at the number of Ill, signatures specified election. 4. next statewide in Art. The Secre- statement, however, subject was not chal- such petition This shall be to review lenged first case. in the the supreme court. ...” Art. N.D.Const. interesting2 question: Why an poses

This the change? “All secretary decisions of the of state in the re- petition process subject are pertinent parts provisions questions view relating supreme raised court the exercise are as follows: jurisdiction....” of original ... power

“... reserve the Acts, approve reject legislative or or “If cast an majority votes thereof, parts .... the referendum af- initiated or referred measure are self-executing This article is and all of its firmative, shall be deemed enacted. provisions mandatory. Laws An measure which is initiated referred safeguard, enacted but facilitate law approved thirty days shall become restrict, hamper, not to these impair after the and a referred measure 1, Ill, powers.” Art. N.D.Const. § which rejected shall be void immediate- petition “A to initiate or to refer a Ill, 8, ly....” N.D.Const. Art. § shall presented measure be to the secre- 811, supra In number at we Haugland for A approval of state as to form. in specifically MeCarney noted that “Unlike shall approval for be presented Meier, [McCarney (N.D. 286 N.W.2d 780 signatures over the names twenty- and of 1979)], in a of we have this case sponsors, five or more electors as one of the approval petition whom be the of the form of a designated shall as chairman of the committee. sponsoring The of secretary insufficiency time when a determination of approve state shall the petition for still affords time for correction or amend if it proper circulation is in form and though again ment.” Even we are review the of contains names and addresses the ing the of the approval of sponsors and text the full of the meas- form, the petition as to in this instance Ill, ure.” Art. N.D.Const. § submitting petitions deadline for to the Sec petition may “... A be referendum retary gone of thus no time by, submitted after ninety days within or available within which corrections of filing the measure with the secre- to of can made as the form amendments tary of The a peti- state. submission of we petitions. Lips, supra, in of suspend operation any tion shall approval also had under consideration the legislative measure enacted assem- petition by to form a of referral bly except and emergency ap- measures when, for all practical of State propriation for the support measures and very little time purposes, departments maintenance of state signa make the and secure to corrections A institutions.... referred measure Lips emphasized tures In again. be voted upon at statewide elec- procedural difference between and substan a special tion or at called tive ex rel. Turner v. material. [See governor.” Ill, § Limbrecht, (Iowa 1976)]. 246 N.W.2d 380 secretary pass upon “The of state shall We that in instant also note case each petition, and if he finds it insuffi- al- twenty have days do not cient, ‘committee he shall for notify or under Art. for correction lowed § petitioners’ days twenty and allow for emphasizes impor- amendment. This correction or All amendment. decisions of the actions secretary regard any of state tance of the point interest, petition Lips, Lips 2. As a In identification the Bill. this state- supra, Haugland any challenged decided after first ment or discussed was not case, was decided but the instant con- party, not discussed iponsequently presently tained the identical under language this Court. 2, consideration in number for ments. Whenever a is submitted approving disapproving peti- State in form, tion as to form. for as to nonessential, recognize expected State is adopting of this inaccu- confusing, misleading, questionable, the additional imposed duty legit- that serve no rate items or statements responsibility examining approving statements including imate purpose, useful to circulation prior measure, require them against the to assure that the Secretary of State action appropriate be eliminated. If tion, form, as to is correct and thus avoid a stage taken at this Secretary of State is subsequent challenge as to form. It was under petitions as to form designed give publicity (presentation also advance expired, of the have not 2) ninety days referral effort. See Minutes and the amendment, correction, elimination duty Constitutional Convention. 2 is different Secretary of State under little accomplished very may easily the respon- and should not be confused with will avoid subse- probably effort or cost and to the suffi- sibility pertaining problems, expenditure and save quent ciency after the time as well as eliminate some money, and the been obtained Inattention to the emotional frustrations. submitted to the of State. per- the failure to constitutional duties or sponsors, ap- presenting plays favorably them into properly form form, proval twenty are not allowed proc- to the referral opposed hands of those days in which to make corrections or cause its demise. may ultimately ess and spon- amendments as allowed in 6. The argued that respondent sponsors The the dead- ninety-day sors must act within request. was a The only the statement line. is used in the statement. “request” term responsibility The under re § However, dispositive that in itself is not than a quires perfunctory approval more signers may sponsors the issue. The purpose which the may actually defeat believe, and were under have been led to process intent of 2. The referral § request that the impression, the erroneous objective, one that is to cause the basically that the pro was mere forma and placed measure or bill to be on the ballot State, required respondent, the people. for a vote of the To use it for as a matter of law. We grant the purpose objective, including other or cam may this statement have do not know how referred, against for or the item paigning any expla- Nor was any signers. influenced or de improper may eventually hinder given. nation the stroy process. signing the An elector opted at the Convention delegates obligated morally legally is not or election rather than the for the statewide to vote “no” on the referral item. Such stated, Hill Delegate election after general the may against elector vote in favor of or concerned about the size “I have never been item after it is on the ballot. vote, the of it.” Be that quality under § may, practically as it the error has been expected required pru to exercise by des- remedied judgment approving petition dent the next statewide election for ignating preserve purpose objective form to House Bill 1500. referral of process. Merely of the referral designating statement challenged petition contains the names and addresses election as the time requesting general and the full text of might proper the referral have been if approved measure does not entitle it to be provision3 constitutional impermissible prior it also state- contains other proposal Possibly in mind Committee No. 1-109 3. and the general designated provi- have elec- which would State had in mind the old adopted. they was not a referral vote but tion for sion rather than the new one II, repealed, Art. now which in part participate in § the nominating pro- election provided: cedure, it is a statewide election. “Each measure ... referred to the recognize We that the constitution

electors ... shall be voted at upon not specifically does require that the re statewide designated election in the ferred be placed measure on the ballot at tion, or at special election called However, the next statewide election. governor....” provides Art. Ill not only that the referred measure be upon voted at a statewide elec The new constitution not does men- tion, but also provides special for a election general tion this matter but which may be called the governor. This merely provides: indicates that an people sensed urgency “A referred measure voted get matter voted and resolved. upon at a statewide election or at a spe- Furthermore, the proposition if that cial election governor.” called referral measure need not be on the placed ballot the next statewide election were initiative, regarding the con- applied, as contended and argued provides: stitution sponsors, the results would be disastrous. “An initiative shall be sub- election, If it is not at the next statewide mitted than ninety days not less ballot, placed when should it be on the election at statewide which meas- two, four, years? or ten If the constitution ” ure is to be upon. voted ... provision al construed to mean the 5, N.D.Const. next statewide The sponsors argued also consti- inclined, if actually so could delay tution does not specifically provide that the placing the matter on the until ballot referral petition on the ballot at longer would no be concerned with the next statewide election. issue or even This indefinitely. would bring about an absurd result The term “statewide election” is should not do. 16 Am.Jur.2d Constitutional not defined nor has it become a word art. Law p. considering 464. After The term is used North Century Dakota objectives provision, of the constitutional setting Code 16.1-13-08 the proce forth we conclude that the implicitly constitution dure to fill a vacancy the United States requires that the referred measure be Senate. See also State ex Lanier v. rel. on placed the ballot the next statewide Hall, 74 (1946), N.D. 23 44 N.W.2d subject election can so that matter regarding statewide election Senate promptly. delay resolved A deliberate vacancy 16-0707, under then NDRC 1943. destroy proc could the referral effectively Meier, See also v. Hernett 173 N.W.2d 907 ess. (N.D.1970), language which contains the contains statement challenged also special “next primary or statewide following inaccuracy: whichever occurs first.” See also NDCC “We, undersigned consisting ... of 16.1-16-01(7) referring congressional, percent more than two of the resident statewide, district, recounts, (and etc. 16- population of the state as of the last 15-01.1 now repealed). we have Basically, ” federal decennial census .... types three of general, elections: primary, special. may All three be statewide petition fifty Each contained less than elections if all of the electors are entitled to signatures according to statements coun- vote A argument, election. election is sel made at is primary oral consid- merely a nominating process erably percent and is techni two the popula- less than of cally not considered an election tion. A not included complete was [Leu Montgomery, N.D. N.W. pleadings. Conceivably, 662 in state- (1914) ]; but, process collectively, because the election is ment meant that filed, used and all state may signa- of electors of the when all the petitions request. legal questions tion as a mere percent tures would be two or more. On available the Nevertheless, peti- Secretary the statement on each of State has advisor, Attorney General. legal tion is inaccurate.4 state’s the At- affidavit stated Any argument petitioners’ that tracked to the language torney “suggested” of that are on file with General had Sec- petitions that the statement not Secretary retary of office is of no con- of State Secretary in the but support solation or or a similar included suggestion.6 follow the provision, not contained in the constitu- did Furthermore, prior peti- tion to 1978. or re though Even the statement tions that were file with the not consti quest under consideration prior to that time were not chal- impermissible tute an extraneous statement chal- lenged primarily to form but were Lips, it of intent as found lenged sufficiency on the merits as to purpose, nevertheless serves no useful were signatures petitions valid after misleading, particularly inaccurate and approval, Consequently, filed for final etc. election when the referred reference to the adoption case law to the 2 is not prior of § on the ballot and the placed matter is to be applicable precedent and does not constitute contained signatures purportedly number of interpretation for the and construction of The statement should petition. each 2.§ been elimi have been eliminated. affidavit, State, proba in his in all present proceedings nated the that stated referral have materialized. bility would not Section office; passed designed filed5 with his that he on the 2 of Art. Ill was so petitions, approving the found them to be sufficient and form, elimina require as to would place intended to House Bill 1500 on so that if unnecessary ballot at the election in June 1984. tion of all material primary circulated, submitted, This is with his inconsistent challenged only form. he then matters explains by stating ultimately considered, would be rather that he treated the statement on the real substance 652,695 primary percent population name a candidate on the 4.Two 13,054. equals no-party ballot. The statement would have been any figure more accurate if it had not stated but 5. The minutes of the Constitutional Convention “We, undersigned, being stated changed to “sub- reflect the word “file” was electors, qualified request Bill 1500 House suggestions of the Sec- mit” at passed by Forty-Eighth Legislative Assem- retary affidavit uses the word but his bly placed upon provided to be the ballot as “file.” up law.” It is of State to and, determine the number of valid Attorney admitted that he ad- 6. The General sufficient, place if the measure on the ballot approve not to vised the of State provided by provi- as law. The constitutional petition because of the statement. suggest sponsors, submitting sions that the argument Attorney in his the to this Court that the observed General Secretary rather Secretary of State is a signers, re- than the should make the formal officer and is bound constitutional elected his advice. Resort to Art. answered the applied. quest to him that be on the the matter 5, would have heading provided by law. The on ballot as petition question as to which already objective, is to states which its Baker, 244, 21 74 N.D. In State peo- have the matter referred to a vote of the ple. 355, (1945), Dakota Su- N.W.2d preme 363 the North primarily petitioners directed their Attorney General is Court observed containing the statement the refer- to officer whose duties are also a constitutional prescribed opinions general would be at the next ence that the vote election. From this we statute, giving which includes may surmize that the officers, and then said: to state petitioners, except gen- for the reference to the they perform they this course will opinion “If follow election, por- eral are not concerned other duty, though the thus and even their given they tions of the statement. erroneous, to be them be later held objec- The referral as to form and they protected it. If do not will be tive, except sponsors signa- for number of course, they will be derelict to this follow their tures, comparable to have a to duty peril.” and act at their

107 one, items relating than to form. Section 2 can Lips, ber supra, case, this function properly only Secretary if repetition of similar errors in the future State reviews the in a prudent will not qualify as a form of excusable manner rather than approving neglect deserving disposition upon princi- presented as on a perfunctory basis. While be ples equity disapproved. and will we have no hesitation to state that The petitioners contended that House Bill eliminated, statement should have been but 1500, IV, 41, to Art. of countervailing circumstances Constitution, North Dakota became effec- producing a form of neglect, excusable we on tive 1 July but referral not convinced and do conclude that tions were not submitted to the Secretary Secretary of State must of State until which July 5 was after be reversed and set aside. time for cor- House Bill 1500 had become effective and were equitable rection available prin- other result, aas House Bill 1500 not be ciples might be applicable. suspended even though petitions were The countervailing circumstances include days. submitted within the 90 apparent good faith action Regarding the 90 after the Bill days though even they may have been the result been filed with of State with- impressions of erroneous previous from pe- the referral petition must be sub- on titions file with the Secretary of State mitted to the take from erroneous upon prior reliance into account the sequence which certain law which has no to application perti- provisions constitutional were adopted. present provisions nent constitutional legislative session was increased from consideration impression now. The days by adoption IV, 60 80 of Art. led the Secretary (S.L.1975, on 7 September 1976 ch. State believe that the petition could des- 2; S.L.1977, 596); ch. whereas the ignate at which election the referral would 90-day provision which the petition voted within upon. On matter the Secre- must be filed with the State in an affidavit this Court approved stated that the was adopted referral will on the ballot on November 1; next (S.L.1977, S.L.1979, statewide the primary ch. ch. election, rather general 696). than at the compelled election. From this we are to con- Also, the petition containing the unchal- clude that fully aware of lenged identical language, for the were, possibilities, just delegates as number, bill in a contemporary petition, including a tax that measure bill could Lips, supra, successfully was challenged but operative July become 1 and be suspend- only on another regarding item a statement later if a. ed valid filed with the of intent. This left an may have erroneous days within from impression. addition, In the lack of time in date the measure was filed with which to make corrections amendments delegates State. though this, itself, is also factor even the constitutional convention of 1972 were would not be controlling. 90-day period made aware that could change create some but no problems

Any one of the foregoing sep items made. We also take into account that arately sufficient, would not be but a com provisions adopted bination of all of these factors related rejected convention were first and later present close, matters complex question a adopted by provisions but these people, and constitute a form excusable neglect in Art. Ill deserves, consideration here and which accordingly apply, and we IV were not substance but principles changed of equity rather than a strict people again at a principle technical submitted to the of law. we add, Therefore, hasten to many later date were approved. uncertainties and now have been resolved num- the minutes Constitutional Con- of the 1972 108 weight entitled to House Bill 1500is emergency

vention are considerable not an meas- ure, nor is it an measure. objective purpose. appropriation as to and that meas- petitioners’ argument relied petitioners heavily gone consequently into effect and ure ex Toberman, rel. Moore v. 363 Mo. conformity not in suspended could not be is (1952), argu- of their support S.W.2d pro- aforementioned constitutional with the effective, law, ment that a having become only exception suspen- vision. The of this suspended. not be A review emergency if the is an sion is measure question that the principal discloses or an certain appropriation measure was whether or not the referral Also, that a considering is purposes. within the required ninety days. was filed provides 1 of Art. Ill part and § ninety days The court concluded that the provisions of Art. Ill are that all of began to run under the Missouri constitu- leave self-executing mandatory, little and beginning tion from and after of the 5. If we were applies that this doubt taken, legislature, is recess of the if a recess language that to construe constitutional adjournment. rather than from the date only to measures which have not applies it question passed prior The measure in effect, disregarding into we would be gone within petitions recess. The were not filed mandatory provi- self-executing and and, after there- ninety days the recess Art. III. sions of fore, suspended. the measure was not we are reaching In our conclusion aware resolving In present the issues challenge as to present that ed, recognize give we must and full consid validity of the sufficiency form. provision eration to the constitutional or other substantive matters are signatures Art. Ill is and all self-executing states that Nor are we not included our conclusion. provisions doing of its are In mandatory. challenge indicating that further so, provision we conclude that 90-day sufficiency of the substance filed within which must be Neither are we appropriate. not be provi with the and the challenge that suggesting such a should be stating sion that the of a valid submission is made it undertaken. such suspend operation shall its will have to be resolved on merits. except measure enacted Legislature, opinion the reasons in this For stated appropria measures emergency and certain aside the Secre- decline to reverse and set measures, man self-executing tion This leaves no room for datory. little or form. and means whenever an construction petition is within the 90 adequate submitted PAULSON,* WALLE, J., VANDE days a meas Justice, Surrogate concur. ure emergency appro which is not an or an ERICKSTAD, Justice, concurring Chief priation department for a state or institu specially. tion, suspended with the accordance provision which states: much of respectfully I concur in what opinion sus- in his and in “The submission shall Justice Sand said however, pend I, operation measure enact- the result he reaches. would legislative emphasized insignificance ed assembly in these peti- measures extraneous matter included emergency appropriation for the and mainte- I conclude that under circum- support measures tions. prejudice could have resulted departments nance of state and institu- stances no tions.” Art. the extraneous material thus from * 27-17-03, a Surro- N.D.C.C. Justice WM. L. PAULSON served as gate to Section Justice for this case inclusion of it not justify voiding subject does matter of referral petition. The process referendum thus far. Attorney General advised secretary appropriately. state There is no excusable

PEDERSON, Justice, dissenting. neglect involved. for Justification “Sun- type Injustice burst” treatment is absent. Although I what agree most of Jus- avoided the prospective applica- tice Sand has written for majority District, tion. See Kitto Minot Park court, I believe the doctrine of (N.D.1974). N.W.2d excusable neglect applied should not be accordingly disagree I with the results there is to be court test form reached. do I only Not believe that excusa- let be between the com- neglect place ble has no involving cases mittee and the secretary of state. That can law, in this conduct ordinarily occur if the secretary rejects more clearly fits definition of defiance all extraneous material. rather than innocence.

The first Haugland opinion clearly left a

“bright line” standard review of petitions approve

form no extraneous — matters. It ought be obvious that com-

munications between the committee and the

secretary state extraneous

Case Details

Case Name: Haugland v. Meier

Court Name: North Dakota Supreme Court

Date Published: Oct 17, 1983

Citation: 339 N.W.2d 100

Docket Number: Civ. 10497

Court Abbreviation: N.D.