IN THE SUPREME COURT

STATE OF NORTH DAKOTA

Donald Poochigian, O’Dale Brown, Barbara Collins, Abigail Collins, Mary Weaver, David Haberman, Gordon Iseminger, Troy Fugate, Elaine Lewandowski-Johnson, Bailey Bubach, Angela Nagle, Lorrie Bulmer, Ron Franz, Concetta Renna, Veronica Dockter, Leigh Jeanotte, James Schothorst, Lisa Carney, C.T. Marhula, Alex Fornes, Deborah Hildebrandt, William Lubitz, Ralph Honda, Contestants/Appellants -vs- City of Grand Forks, North Dakota, Contestee/Appellee

SUPREME COURT NO. 20170335

Grand Forks County Court Case No. 18-2017-CV-01802

APPEAL FROM FINDINGS OF FACT, CONCLUSIONS OF LAWAND ORDER FOR JUDGMENT ENTERED ON AUGUST 17, 2017, AND JUDGMENT OF DISMISSAL

ENTERED ON AUGUST 22, 2017

THE HONORABLE STEVEN L. MARQUART

NORTHEAST CENTRAL JUDICIAL DISTRICT GRAND FORKS COUNTY, NORTH DAKOTA

BRIEF OF CONTESTEE/APPELLEE CITY OF GRAND FORKS PEARSON CHRISTENSEN, PLLP Ronald F. Fischer (ND Attorney ID #03707) rfischer@grandforkslaw.com Daniel L. Gaustad (ND Attorney ID #05282)

dan@grandforkslaw.com 24 North 4th Street P.O. Box 5758 Grand Forks, ND 58206-5758

Telephone: (701) 775-0521/Fax: (701) 775-0524 Attorneys for Contestee/Appellee City of Grand Forks

2017335FILED

IN THE OFFICE OF THE CLERK OF SUPREME COURT

FEBRUARY 12, 2018 STATE OF NORTH DAKOTA

Page ii

TABLE OF CONTENTS

Para. TABLE OF CITED AUTHORITIES [pages iii - vii] JURISDICTIONAL STATEMENT .................................................................................1

STANDARD OF REVIEW ...............................................................................................3 ISSUES PRESENTED .......................................................................................................5

A. Whether the case is moot since the City no longer owns the Arbor Park property ..................................................................................................................5

B. Whether the court lacks subject matter jurisdiction because the complaint

was not timely filed within the time mandated by N.D.C.C. § 16.1-16-04 ........5 C. Whether the City Council, exercising its legislative power, had the authority to designate one voting location for all City Wards/precincts for the

June 20, 2017 special election ................................................................................5 STATEMENT OF THE CASE .........................................................................................6

LAW AND ARGUMENT................................................................................................12

I. The Case Has Been Rendered Moot Since the City No Longer Owns The Arbor Park Property ..........................................................................................12 II. The Court Lacks Subject Matter Jurisdiction Over This Election Contest ...14

III. The City Council, Exercising its Legislative Power, Had the Authority to Designate One Voting Location For All City Wards/Precincts For the June 20, 2017 Special Election ...........................................................................25

CONCLUSION ...............................................................................................................47 CERTIFICATE OF COMPLIANCE ...........................................................................48

Page iii

TABLE OF CITED AUTHORITIES

Para. CASE LAW:

North Dakota:

Adams County v. Smith 23 N.W.2d 873 (N.D. 1946) ..............................................................................27

Brash v. Gulleson 2013 ND 156, 835 N.W.2d 798 ...........................................................................4 Bryan v. Miller 16 N.W.2d 275 (N.D. 1944) ..............................................................................14 Cahill v. McDowell 169 N.W. 499 (N.D. 1918) ................................................................................18 Catlin v. Catlin 494 N.W.2d 581 (N.D. 1992) ............................................................................11 Cheetah Props. 1, LLC v. Panther Pressure Testers, Inc. 2016 ND 102, 879 N.W.2d 423 ...........................................................................4 District One Republican Committee v. District One Democrat Committee 466 N.W.2d 820 (N.D. 1991) .......................................................................14,18

Elliot v. Drayton Public School Dist. No. 19 406 N.W.2d 655 (N.D. 1987) .......................................................................22,23

Frith v. Fargo Park District, et al. 2016 ND 213, 886 N.W.2d 836 .........................................................................24 Investors Title Ins. Co. v. Herzig 2010 ND 138, 785 N.W.2d 863 .........................................................................14 In Re Disciplinary Action Against Dvorak 2000 ND 98, 611 N.W.2d 147 ...........................................................................24

Page iv

TABLE OF CITED AUTHORITIES (continued)

Para. Kee v. Redlin 203 N.W.2d 423 (N.D. 1972) ............................................................................18

Kerlin v. City of Devils Lake 141 N.W. 756 (N.D. 1913) ................................................................................46 Larson v. Midland Hospital Supply, Inc. 2016 ND 214, 891 N.W.2d 364 ...........................................................................4 Maher v. Jahnel 19 N.W.2d 453 (N.D. 1945) ..............................................................................14 McCoy v. Davis 164 N.W. 951 (N.D. 1917) ................................................................................39

McDonald v. Koths 249 N.W. 706 (N.D. 1933) ..................................................................................4 Nelson v. Johnson 2010 ND 23, 778 N.W.2d 773 .............................................................................4

Olesen v. Hoge 137 N.W. 826 (N.D. 1912) ................................................................................18

Olmstead v. First Interstate Bank of Fargo, N.A. 449 N.W.2d 804 (N.D. 1989) ..............................................................................6

Reliable, Inc. v. Stutsman County Com’n 409 N.W.2d 632 (N.D. 1987) ............................................................................14

Schillerstrom v. Schillerstrom 32 N.W.2d 106 (N.D. 1948) ..............................................................................14

Service Oil, Inc. v. Gjestvang 2015 ND 77, 861 N.W.2d 490 .............................................................................4

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TABLE OF CITED AUTHORITIES

(continued) Para.

State ex rel. City of Bismarck v. District Court in and for Burleigh County 253 N.W. 744 (N.D. 1934) ................................................................................38 State ex rel. Linde v. Taylor, L.R.A. 156 N.W. 561 (N.D. 1916) ................................................................................40

State ex rel. Olson v. Bakken 329 N.W.2d 575 (N.D. 1983) ............................................................................45

Tayloe v. City of Wahpeton 62 N.W.2d 31 (N.D. 1953) ................................................................................39

Torkelson v. Byrne 276 N.W. 134 (N.D. 1937) ...........................................................................37,45

Federal Courts:

Angle v. Chicago, St. P., M. & O. Ry. Co. 151 U.S. 1 (1894) ...............................................................................................42

Detroit United Ry. v. City of Detroit 255 U.S. 171 (1921) ...........................................................................................42

McCray v. U.S. 195 U.S. 27 (1904) .............................................................................................42 Soon Hing v. Crowley 113 U.S. 703 (1990) ......................................................................................38,42

U. S. v. O’Brien 391 U.S. 367 (1968) ...........................................................................................42

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TABLE OF CITED AUTHORITIES (continued)

Para. Other States:

Behrendt v. Wilcox 269 N.W. 155 (Mich. 1936) ...............................................................................37

County Council of Prince George’s County v. Offen 639 A.2d 1070 (Md. 1994) ................................................................................43

Judy v. Schaefer 627 A.2d 1039 (Md. 1993) ................................................................................43

Kenwood Gardens Condominiums, Inc. v. Whalen Properties, LLC 144 A.3d 647 (Md. 2016) ..................................................................................43 Seif v. City of Long Beach 36 N.E.2d 630 (N.Y. 1941) ................................................................................43

Talbot County v. Miles Point Property, LLC. 2 A.3d 344 (Md. 2010) ......................................................................................43

STATUTES AND RULES:

North Dakota Century Code:

N.D.C.C. Ch. 16.1-16 .............................................................................................3,6 N.D.C.C. § 16.1-16-02 .............................................................................................11 N.D.C.C. § 16.1-16-04 ..................................................................................1,5,16,24 N.D.C.C. § 16.1-16-06 ...............................................................................................3 N.D.C.C. § 16.1-16-09 ...............................................................................................2 N.D.C.C. § 28-01-38 ................................................................................................23 N.D.C.C. § 40-05.1-06 .............................................................................................32 N.D.C.C. § 40-21-03.1 .............................................................................................29 N.D.C.C. § 40-21-09 ................................................................................................29

Page vii

TABLE OF CITED AUTHORITIES (continued)

Para. North Dakota Rules of Civil Procedure: N.D.R.Civ.P. 7 .........................................................................................................20

N.D.R.Civ.P. 52 .........................................................................................................4 North Dakota Rules of Court: N.D.R.Ct. 3.5 .................................................................................................21,22,23 SECONDARY SOURCES: ND AG Opinion: 1993 N.D. Op. Atty. Gen. L-28 ...............................................................................46 American Jurisprudence: 26 Am. Jur.2d, Elections § 316 (1966) ……………………………………………18 26 Am. Jur.2d, Elections § 328 (1966) ……………………………………………18

Page 1

JURISDICTIONAL STATEMENT

[¶1] The City of Grand Forks (“City”) asserts the court lacks subject matter jurisdiction over

this matter because the election contest was filed beyond the time mandated by N.D.C.C. §16.1-

16-04. See Argument II, infra.

[¶2] Judgment of the district court in election contests is appealable pursuant to N.D.C.C. §

16.1-16-09, which states in relevant part: “An appeal to the supreme court of the judgment in an

election contest action may be had by filing a notice of appeal with the clerk of the trial court

within ten days of the date of the service of notice of entry of the judgment.” Notice of appeal

was filed/served on September 1, 2017, within the ten days provided by the statute. District

Court Docket (“Doc.”) 87.

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STANDARD OF REVIEW

[¶3] This election contest was brought pursuant to N.D.C.C. Chapter 16.1-16; and in

particular N.D.C.C. § 16.1-16-06 which provides in relevant part: “Election contest actions must

be tried as civil actions to the court without a jury.” A bench trial was held in the matter

commencing August 9, 2017 and concluding August 10, 2017.

[¶4] Findings of fact in an election contest by the district court will not be set aside on appeal

unless they are clearly erroneous. See McDonald v. Koths, 63 N.D. 716, 249 N.W. 706, 708 (1933).

As recently observed by this court in Larson v. Midland Hospital Supply, Inc., 2016 ND 214, ¶9,

891 N.W.2d 364 (2016):

“The standard of review from a bench trial is well established:

“In an appeal from a bench trial, a trial court’s findings of fact are reviewed under the clearly erroneous standard of N.D.R.Civ.P. 52(a) and its conclusions of law are fully reviewable. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, after reviewing all the evidence, we are left with a definite and firm conviction a mistake has been made. In a bench trial, a trial court is the determiner of credibility issues and we do not second-guess the trial court on its credibility determinations.”

Serv. Oil, Inc. v. Gjestvang. 2015 ND 77, ¶ 12, 861 N.W.2d 490 (quoting Brash v. Gulleson, 2013 ND 156, ¶ 7, 835 N.W.2d 798) (internal citations and quotation marks omitted). “A district court’s choice between two permissible views of the weight of the evidence is not clearly erroneous.” Cheetah Props. 1, LLC v. Panther Pressure Testers, Inc., 2016 ND 102, ¶ 9, 879 N.W.2d 423 (quoting Nelson v. Johnson, 2010 ND 23, ¶ 31, 778 N.W.2d 773).”

Page 3

ISSUES PRESENTED

[¶5] The City contends, given the current posture of the case as outlined in the Statement of

the Case, infra, the issues are as follows:

A. Whether the case is moot since the City no longer owns the Arbor Park property.

B. Whether the court lacks subject matter jurisdiction because the complaint was not timely

filed within the time mandated by N.D.C.C. § 16.1-16-04.

C. Whether the City Council, exercising its legislative power, had the authority to designate

one voting location for all City Wards/precincts for the June 20, 2017 special election.

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STATEMENT OF THE CASE

[¶6] This election contest was filed on July 12, 2017, pursuant to Chapter 16.1-16, N.D.C.C.,

raising two issues which Contestants claim authorized the court to set aside a City special

election held on June 20, 2017 concerning the future use of property commonly known as Arbor

Park. The first issue asserts the City improperly used one voting location (the Grand Forks

Alerus Center1) for all City Wards/precincts. The second issue concerns two absentee ballots

postmarked on the date of the election that were not counted by the City Canvassing Board.2 See

complaint, Doc. 2.

[¶7] On July 21, 2017 the City filed an answer to the complaint [Doc. 8], with an affidavit

(and supporting exhibits) from City Attorney Howard Swanson [Doc. 9-19], as well as a motion

to dismiss the complaint for lack of subject matter jurisdiction. [Doc. 5-7]. The City also made

an oral motion to dismiss arguing the complaint failed to state claims upon which relief could be

granted under North Dakota law. Trial Transcript (“TT”) 3-12. All of the City’s motions were

denied,3 and the case went to a trial before the court, the Honorable Steven L. Marquart, District

1 The Alerus Center is located at 1200 42nd Street South Grand Forks, ND. It is a multipurpose sports and events center, the home of University of North Dakota football, and has been open since the early 2000’s. See: http://www.aleruscenter.com/. 2 Based upon the appellant brief filed by Mr. Marhula, the only issue now being asserted as a basis to void the June 20, 2017 election is the argument that the City improperly used one voting location for that election. The issue concerning the two absentee ballots has been abandoned. Olmstead v. First Interstate Bank of Fargo, N.A., 449 N.W.2d 804, 807 (N.D. 1989) (“Issues not briefed or argued are deemed abandoned”). 3 With respect to the motion to dismiss for lack of subject matter jurisdiction, the district court issued a Memorandum Opinion and Order denying that motion on August 9, 2017. [Doc. 49; Appellee Appendix (“AAppx.”) 1-4]. The oral motion to dismiss was denied by the court at the commencement of the bench trial on August 9, 2017. TT 12.

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Judge, presiding. At the conclusion of the trial, the court informed counsel for both sides that if

they wished to submit additional arguments, simultaneous closing briefs could be served and

provided to the court no later than 5 p.m. on August 16, 2017. See TT 190-191. The City timely

served its closing brief. [Doc. 51]. However, Contestants’ closing brief was not filed until the

following day. [Doc. 54].4

[¶8] On August 17, 2017 the district court issued Findings of Fact, Conclusions of Law and

Order for Judgment, directing dismissal of the complaint with prejudice and awarding the City

its costs and disbursements. [Doc. 59]. A judgment consistent therewith was filed August 22,

2017. [Doc. 82]. Notice of entry of judgment was served/filed August 23, 2017. [Doc. 85].

[¶9] The Contestants filed a notice of appeal on September 1, 2017 [Doc. 87]. While that

notice of appeal raised several issues, as noted in footnote 2, supra, the only issue being pursued

by Mr. Marhula concerns the location of voting for the June 20, 2017 special election.

[¶10] Following filing of the appeal, the City made a motion to dismiss on the ground of

mootness, since it no longer owns the Arbor Park property. Supreme Court Docket (“SCDoc.”)

19. The court has determined that motion will be heard with the merits. SCDoc. 35.

[¶11] With the sole exception of appellant C.T. Marhula (“Marhula”), who advised the court he

was proceeding pro se (SCDoc. 18), all of the other Contestants/Appellants moved to be

dismissed from the appeal, and their lawyer Henry Howe moved to withdraw. SCDoc. 22. That

4 While we normally would not point out the late filing of the Contestants’ closing brief, we do so here because it was not the first time Contestants failed to comply with deadlines in this case. At the very outset, as detailed in Argument II, infra, the complaint itself was not timely filed. Then, instead of timely serving/filing a response to the City’s motion to dismiss, which response was due on August 4, 2017, Contestants counsel served and filed with the district court a late response just minutes before oral argument on that motion on August 8, 2017. [Doc. 44–46].

Page 6

motion was granted by the court. SCDoc. 34. N.D.C.C. § 16.1-16-02 states that ten (10) qualified

electors may contest the approval or rejection of any question submitted to a vote of the

electorate. There is no dispute that at the time this case was filed more than ten qualified electors

were Contestants. The statute is silent on what should occur if, as in this case, there are less than

ten qualified electors remaining in the case before it becomes final. It would seem that the

conditions set forth in N.D.C.C. § 16.1-16-02 go to the issue of subject matter jurisdiction of the

court over the case. Since questions of subject matter jurisdiction are generally determined by

the circumstances that exist as of the time the case is filed, and subsequent events do not change

that determination, Catlin v. Catlin, 494 N.W.2d 581, 587 (ND 1992), the City will not be

asking the court to dismiss the appeal on the ground that only one qualified elector remains in

this case.

ARGUMENT

I. The Case Has Been Rendered Moot Since the City No Longer Owns the Arbor Park Property.

[¶12] The City incorporates herein by reference the facts and arguments set forth in the City’s

previously filed motion to dismiss. Those facts and arguments shall not be repeated herein.

Nothing Marhula has filed in response to that motion undercuts or negates the undisputed fact

that the City no longer owns the property formerly known as Arbor Park. That property was sold

by the City following the June 20, 2017 special election to Green Jacket, LLC. The City no

longer retains any ownership rights or reversionary interest in the property.

[¶13] While Marhula argues that the document attached and referred to in the affidavit of Cindy

Marhula (Appellant’s Appendix [“Appx.”] pages 27-28) shows that the City’s former

reversionary interest in the property has not expired – thereby attempting to contradict the

Page 7

affidavit of Mayor Michael Brown submitted in support of the City’s motion to dismiss the

appeal – Marhula’s argument is misplaced. When the court examines the referenced document it

will note that the buyer of the property was in fact authorized to do ground work and excavation

sufficient to satisfy the conditions in the purchase agreement and warranty deed necessary for the

City’s reversionary interest to expire. The building permit issued by the City to Green Jacket,

LLC on October 11, 2017 specifically states, under the box captioned Corrections/Notes “This

permit allows the demo, site prep work & any digging for new foundation elements only.”

(Appx. 28). It was that work, which was done by Green Jacket LLC following issuance of the

building permit, which terminated the City’s reversionary interest in the Arbor Park property.

Since the City no longer has any ownership interest in the Arbor Park property, this election

contest has been rendered moot for the reasons set forth in the City’s motion to dismiss the

appeal.

II. The Court Lacks Subject Matter Jurisdiction Over This Election Contest.

[¶14] It is axiomatic that before the court can reach the merits of a case it must first have

subject matter jurisdiction. Subject matter jurisdiction is the court's power to hear and determine

the general subject involved in the action, and the issue of subject matter jurisdiction can be

raised at any time, including on appeal. Investors Title Ins. Co. v. Herzig, 2010 ND 138, ¶57, 785

N.W.2d 863, 880-881. As noted by this court, a judgment or order entered without subject matter

jurisdiction is void. Id. “A court has subject matter jurisdiction if it has the authority, under the

constitution and laws, to hear and determine cases of the general class to which the particular

action belongs.” Reliable, Inc. v. Stutsman County Com’n, 409 N.W.2d 632, 634 (N.D. 1987)

(citing Bryan v. Miller, 16 N.W.2d 275, 282 (N.D. 1944); Schillerstrom v. Schillerstrom, 32

N.W.2d 106, 122 (N.D. 1948)). Subject matter jurisdiction cannot be conferred by the consent

Page 8

of the parties. Reliable, Inc., 409 N.W.2d at 634. As such, if an election contestant fails to

satisfy the statutory requirements to properly commence an action to contest an election, the

district court lacks jurisdiction to entertain the contest. See Maher v. Jahnel, 73 N.D. 742, 19

N.W.2d 453 (1945). See, also, District One Republican Committee v. District One Democrat

Committee, 466 N.W.2d 820, 824 (ND 1991).

[¶15] The facts relevant to this issue are straight forward, and are not contested by Marhula.

The election concerning the future of Arbor Park occurred on June 20, 2017, and the Canvassing

Board certified the results on June 26, 2017. The Complaint [Doc. 2] contesting that election was

e-filed with the district court on July 12, 2017. See Appellant’s Brief ¶2.

[¶16] The timing requirements to pursue an election contest are contained in N.D.C.C. § 16.1-

16-04:

Any action to contest an election must be commenced and the complaint must be filed in the district court of the contestee’s county of residence within five days after final certification of a recount by the appropriate canvassing board or within fourteen days after the final certification by the appropriate canvassing board if no recount is to be conducted. However, if the grounds for the action are the illegal payment of money or other valuable thing subsequent to the filing of any statement of expenses required by this title or if the contestee does not or cannot meet the qualifications to hold the office as required by law, the action may be commenced at any time. The contestee shall serve and file an answer within fourteen days after service of the contest summons and complaint. [Emphasis added]

[¶17] In the instant case, since there was no recount, the Contestants had 14 days from the final

certification of the vote by the Canvassing Board within which to commence the action and file a

verified complaint with the district court. The Contestants did not do so. The fourteen (14) day

period, excluding the June 26, 2017 triggering date (when the Canvassing Board issued its final

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certification) ended on Monday, July 10, 2017, the date the Complaint in this action is dated and

served on the City.

[¶18] Statutes limiting the time to bring an election contest are mandatory and jurisdictional.

Kee v. Redlin, 203 N.W.2d 423, 428 (N.D. 1972). “At common law there was no right to contest

a public election in a court because elections were part of the political branch of government and

were beyond the control of the judicial branch.” District One Republican Committee v. District

One Democrat Committee, 466 N.W.2d 820, 824 (ND 1991) (citing 26 Am Jur.2d, Elections, §§

316, 328 (1966)). “An election contest is therefore dependent upon constitutional and statutory

authority to invoke the jurisdiction of the courts.” Id.; See also Cahill v. McDowell, 40 N.D.

625, 169 N.W. 499, 501 (ND 1918) (“A contest proceeding is statutory, and the matters involved

are only judicial to the extent the statute makes them so.”); Olesen v. Hoge, 23 N.D. 648, 137

N.W. 826 (1912) (No jurisdiction was acquired because the contest proceedings were not

instituted within 10 days after the completion of the canvass, citing a previous version of the

election contest statute having to do with ballot counting and requiring the proceeding be

initiated by affidavit and notice within 10 days).

[¶19] In Contestants’ untimely (see footnote 4, supra) response in opposition to the City’s

motion to dismiss, their attorney, Henry Howe (“Howe”), argued that he tried to e-file the

complaint on July 10, 2017, but the clerk of court rejected the filing claiming that certain

deficiencies existed with the complaint. Howe asserted the initial complaint was not accepted

because the clerk required him to provide the “addresses for all parties” – something Howe says

the rules do not require. See Contestants’ Response Brief, ¶ 12. Doc. 44. See, also, pages 7-12 of

the transcript of the August 8, 2017 oral argument on the City’s motion to dismiss. Howe went

on to state that his attempted refiling was also returned by the clerk “with additional information

Page 10

requested by the Court.” ¶12, Doc. 44. However, Howe did not enlighten the court what that

additional information was. Nor did Howe (unlike the request for addresses of the plaintiffs) say

that the “additional information” was not something required by the rules.

[¶20] Of significance, when the clerk’s office returned Howe’s first filing it was not, as Howe

asserted, merely due to failure to provide “addresses for all parties.” Rather, as indicated on the

sixth page of Exhibit 2 (Doc. 46), the notice from the court entitled “Filing Returned,” the

comments as to why the filing was returned were as follows: “When initiating a new case you

must include the name and address of all parties. The Plaintiffs should be added as “Plaintiff” not

“Additional Party.” [Emphasis added]. See Appellee Appendix (“AAppx.”) 11. Accordingly,

when the entire note from the clerk is read, it is clear that Howe’s representation that they were

only seeking “addresses for all parties” is a misrepresentation of the facts concerning what was

actually requested by the clerk before the complaint could be filed. Moreover, the clerk’s

requirement that the names of all parties be included is wholly consistent with the application of

N.D.R.Civ.P. 7(a), which provides that “the title of the complaint must name all the parties.”

[¶21] But putting all of the foregoing aside, the Contestants could have avoided the late filing

that occurred on July 12, 2017. Rule 3.5(c)(3) of the North Dakota Rules of Court provides:

(3) If a document submitted for electronic filing is rejected, the time for filing is tolled from the time of submission to the time the e-mail generated by the Odyssey system notifying the filer of rejection is sent. The document will be considered timely filed if resubmitted within three days after the notice of rejection. A party seeking to take advantage of this tolling provision must file and serve a separate document providing notice that the rejected document is being resubmitted under N.D.R.Ct. 3.5(c)(3). [Emphasis added].

Had Howe followed that rule the filing of the complaint would have related back to the defective

July 10, 2017 attempted filing which was returned by the clerk.

Page 11

[¶22] In denying the City’s motion to dismiss the district court glossed over the requirements of

Rule 3.5(c)(3), N.D.R.Ct., and instead relied upon Elliot v. Drayton Public School Dist. No. 19,

406 N.W.2d 655 (N.D. 1987) to find that it had subject matter jurisdiction. AAppx 1-4; Doc. 49.

The district court’s ruling is an incorrect reading of Elliot.

[¶23] While this court in Elliot applied the rule that service of an election contest proceeding is

effective upon delivery to the Sheriff within the time period provided by the statute, with the

intention that the pleadings be immediately delivered to the opposing party, the court also held

that statutes limiting the time to bring an election contest are mandatory and jurisdictional. Elliot

v. Drayton Public School Dist. No. 19, 406 N.W.2d 655, 657 (N.D. 1987). In Elliot it was

undisputed that the pleadings contesting the election were filed with the clerk of court within the

time mandated by the statute, as well as delivered to the sheriff for service. Moreover, by statute

in North Dakota delivery of pleadings to the sheriff with the intention to have service made

constitutes commencement of an action. N.D.C.C. § 28-01-38. In contrast, filing does not occur

until the pleadings are accepted by the clerk of court. Moreover, there is a procedure in place –

via Rule 3.5(c)(3), N.D.R.Ct. – for a defectively filed pleading to be corrected and have the filing

deemed to occur as of the date it was originally attempted. That procedure was not complied

with in this case, as demonstrated by the complete absence of any Rule 3.5(c)(3), N.D.R.Ct.

documentation in the record.

[¶24] Lawyers are expected to know and follow the rules. See e.g. In Re Disciplinary Action

Against Dvorak, 2000 ND 98, ¶ 12, 611 N.W.2d 147 (“if ‘all persons are presumed to know the

law,’ then certainly a seasoned attorney, knew or should have known the legal principles

applicable to their case (citation omitted)”). There are consequences for failing to follow the

rules. As admitted by Marhula, filing of the complaint did not occur until July 12, 2017 which is

Page 12

two days beyond the time allowed by N.D.C.C. §16.1-16-04. Accordingly, the court lacks

subject matter jurisdiction to proceed, and the complaint must be dismissed with prejudice. See,

e.g., Frith v. Fargo Park District, et al., 2016 ND 213, ¶16.

III. The City Council, Exercising its Legislative Power, Had the Authority to Designate One Voting Location For All City Wards/Precincts For the June 20, 2017 Special Election.

[¶25] The appellant’s brief filed by Marhula fails to present to the court the relevant and

material facts that went into the decision of the City Council to select the Alerus Center as the

sole voting location for the June 20, 2017 special election. Indeed, nowhere in Marhula’s brief

does he take issue with, much less argue they are clearly erroneous, the findings of fact by the

district court in its August 17, 2017 “Findings of Fact, Conclusions of Law and Order for

Judgment.” Doc. 59; Appx. 7-9. Rather, Marhula seems to suggest that the facts are not relevant,

and instead simply argues that the City was precluded from using one voting location for all City

wards/precincts by Chapter IV of the City Code. Neither the facts of this case nor the law support

Marhula’s argument.

[¶26] Marhula asserts that City Code Chapter IV (Appx. 32)5 compels the City to have voting

locations in all City Wards/precincts for all City elections, including the June 20, 2017 special

election concerning Arbor Park. However, nowhere in City Code Chapter IV is there any

language that binds or constrains the City Council with respect to setting the location of voting in

municipal elections, such as the June 20, 2017 Arbor Park vote. When the court reviews City

Code Chapter IV it will find that the location of polling places is left up to the discretion of the

City Council “as may be designated by resolution.” See, e.g., Article 4-0201 and Article 4-0301,

5 City Code IV was marked and received at trial as Trial Exhibit (“TE”) 6, Doc. 65.

Page 13

Chapter IV, City Code. Appx. 32. In an attempt to support his argument to the contrary, in ¶34 of

his brief Marhula points to comments made at a March 7, 2011 meeting of the City Council by

City Attorney Howard Swanson (“Swanson”).6 Appx. 18-23; Doc. 55. When the court examines

the comments made by Swanson in response to various questions from members of the council at

that meeting, at no time did Swanson state that the City could not have one voting location for

multiple Wards/precincts for municipal elections. Indeed, to the contrary, Swanson stated at the

March 7, 2011 meeting: “As to a specific election for a municipal issue the City Council

determines what precincts will be used and whether or not you wish to vote by ward.” Appx. 21.

In addition, toward the end of his comments, Swanson stated in relevant part “All municipal

elections have to comply with state law. The only thing different with respect to a municipal

election is you do have a choice as to selecting your polling places.” Appx. 23. As Swanson

testified at trial, the comment he made quoted at ¶34 of Marhula’s brief was in response to a

question from then councilman Grandstrand about whether a voter could just show up at any

polling place in the City established for a particular election and vote, even though the voter was

from a different Ward/precinct. TT 116-117. That was clearly not an issue with the June 20,

2017 Arbor Park vote, where the City Council passed a resolution that all City Wards/precincts

where to vote at the Alerus Center.

[¶27] While it is true from the comments of several City Council members at the March 7,

2011 meeting that they preferred to have voting places within the City Wards/precincts, the

composition (membership) of the City Council had completely changed by April, 2017 when the

6 Swanson is and has been the City Attorney since 1988. Prior to that, he served as a Deputy City Attorney from 1984 to 1988. Swanson’s resume’ is in evidence as TE 9 (Doc. 67); TT 73. Swanson worked in the City Attorney’s Office at the time the Grand Forks City Code was adopted, and has been the City Attorney for all subsequent amendments to that Code.

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Arbor Park election was debated. Not only had the membership of the City Council changed, it is

important to note that the facts facing the City Council in April of 2017, in deliberating on the

conditions for the June 20, 2017 special election, had materially changed from March of 2011.7

In contrast to 2011, the City in 2017 was required, if it wanted assistance from the County, to

utilize electronic polling books (which weren’t used in 2011). The City does not have electronic

polling books. TT 156. Electronic polling books are expensive (between $1,000 to $1,200 per

book), and the County has 60 of them. TT 183. They greatly speed up the voting process. TT

153. The evidence is undisputed that the City would have had an extremely difficult time to have

the special election without the County’s assistance. See, e.g., discussion at pages 10 and 11 of

the transcript of the April 17, 2017 City Council meeting. AAppx. 37-38; Doc. 57. See, also, the

testimony of Swanson that the City Finance Department (which has responsibility for City

elections) was short staffed due to illness, and a heavy workload dealing with budgeting matters.

TT 84. Moreover, Ms. Debbie Nelson (“Nelson”), Finance and Tax Director for Grand Forks

County, testified the County would not help with the June 20, 2017 special election unless the

City agreed to have one voting location for all City Wards/precincts. TT 155-158. That is why

the Joint Powers Agreement (AAppx. 47; TE 12; Doc. 70) contains condition number 4, which

states: “This agreement is contingent upon using one central polling location.” The City Council

considered all of those factors and more in deciding to use just one voting location for the Arbor

Park election.

7 Legislative bodies, such as the Grand Forks City Council, are not bound by previous City Council decisions. Indeed, this court has recognized that there is nothing improper even within the same session, from the legislative body “changing its mind” with respect to the particular subject of legislation. See Adams County v. Smith, 74 N.D.621, 627, 23 N.W.2d 873, 877 (1946). Moreover, if the legislative action of a subsequent body is irreconcilably in conflict with that taken earlier, the earlier must give way to the later. Id.

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[¶28] As recognized by City Councilman Weber, who voted NO on the location for the June

20, 2017 special election (he preferred multiple locations): “We should do all that’s necess—

reasonably possible to facilitate the accessibility and to avoid ever compromising any voter’s

right to cast a ballot. I also recognize the issue of expense and the challenge of procuring

adequate staffing—volunteer staffing, right?—and the need to cooperate with the county.

I’m ready to vote.” [Emphasis added]. AAppx. 36. The evidence establishes that the City

Council considered and deliberated on the issue of voting locations for the June 20, 2017 special

election, and made a reasoned decision to use the Alerus Center as the sole voting location

because of, inter alia, location, ease of access, cost savings, difficulty in finding workers, and the

necessity for County cooperation and assistance in order to use the County’s electronic polling

books, among many other factors.

[¶29] Swanson’s undisputed testimony in this case (TT 37, 43-46, 79, and 116) completely

contradicts Marhula’s argument that Chapter IV governs the location of voting places for City

elections. Swanson testified that Chapter IV divides the City into Wards and precincts, but that

the actual location of voting places for the City Wards/precincts is left to the discretion of the

City Council pursuant to state law, including (but not by way of limitation) N.D.C.C. § 40-21-

03.1, which states:

40-21-03.1. Designation of polling places for municipal elections.

The governing body of any city at the time of calling any general or special municipal election, or prior to the time of registration for said election, if such registration is required by law, when officers of said city are not to be elected by wards or districts, may by resolution designate such voting precincts and polling places for said election as it may deem necessary for the conduct of the same and shall in giving notice of said election designate such voting precincts and polling places.

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See, also N.D.C.C. §40-21-09 which states in relevant part: “This section does not prohibit the

use of one building as the election polling place for more than one ward or the installation of

electronic voting systems from separate wards in one building.”

[¶30] Based upon Swanson’s undisputed testimony, there can be no legitimate doubt that the

City complied with all legal requirements in selecting the Alerus Center as the single voting

location for all Ward/precincts for the June 20, 2017 special election. As already noted, the City

Council discussed the issue and allowed public comment, as corroborated by Ms. Mary Weaver

(TT 18-19), a witness called by Contestants, before passing a resolution to use the Alerus Center

as the single voting location for the special election.

[¶31] The undisputed evidence reveals that after deliberation, the City Council passed a

resolution setting the date of the election, the location for the voting to take place, and entered

into a joint powers agreement with the County to help the City with the special election.

Swanson testified (TT 84-91) that pursuant to direction from the City Council, he prepared the

appropriate documents. See TE 13; Doc. 71 (Notice of Special Election and Initiated Resolution

Ballot). Notice of the election was placed on the City’s website, which included a colored Map

clearly indicating on its face that “ALL WARDS VOTE AT ALERUS CENTER – 1200 S 42ND

STREET.” Appx. 26; TE 14; Doc 72. Notice of the special election was duly and timely

published in the official City newspaper. TE 15; Doc.73. That notice stated that the combined

voting place for all City Wards/precincts was going to be the Alerus Center. Moreover, since the

issue was hotly debated, there was significant media coverage leading up to the June 20, 2017

special election. TT 85-86.

[¶32] Other than his argument concerning City Code Chapter IV, Marhula makes no other

argument that the City violated any laws in choosing the Alerus Center as the sole voting

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location for the June 20, 2017 special election. Indeed, as to City Code Chapter IV, Marhula

concedes that the City could “amend its Code to allow single site voting.” Appellant Brief ¶12.

Marhula also admits “it could be argued it [referring to City Code Chapter IV] does not mandate

‘voting in every ward.’” See ¶34 of Marhula’s Appellant Brief. To the extent Marhula is

suggesting that N.D.C.C. § 40-05.1-06, cited in ¶9 of his brief, abrogates the ability of the City to

rely upon state statutes authorizing the City to have one voting location for municipal elections,

that suggestion would be refuted by the last sentence of N.D.C.C. § 40-05.1-06 which states:

“The statutes of the state of North Dakota, so far as applicable, shall continue to apply to home

rule cities, except insofar as superseded by the charters of such cities or by ordinance passed

pursuant to such charters.”

[¶33] The only witness presented by Contestants who said she didn’t vote on June 20th was

Mrs. Susan Mibeck, who testified her decision not to vote was driven by personal reasons, not

because she couldn’t vote at the Alerus Center. TT 185-189. The only other witness presented by

Contestants was Ms. Weaver, who testified she actually voted by absentee ballot, and the

procedure for obtaining and casting an absentee ballot was easy, quick and went very smoothly.

TT 26. Moreover, the record in this case contains no evidence that having a single voting

location either benefitted or hindered either side. No evidence was presented that having voting

locations in all City Wards/precincts would have changed the result of the election. No evidence

was presented, expert or otherwise, that those who were in favor of the ballot measure on June

20, 2017 were hampered from voting any more than those who opposed the ballot measure. The

very same argument being asserted by Marhula, if accepted by the court, could have been used

by those in favor of a NO vote had the YES votes carried the day.

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[¶34] Evidence was also presented that the June 20, 2017 special election was not the first time

the Alerus Center had been used by the City as a sole voting location for all City

Wards/precincts. For several years prior to 2017 the Alerus Center had been used as the sole

location for casting early votes for all City Wards/precincts. See, e.g., AAppx. 41. Nelson

testified she received compliments from people who used early voting at the Alerus Center. TT

160, 174. In addition, the evidence is undisputed that several years prior to the June 20, 2017

special election the Alerus Center became the sole voting location for both Wards 6 and 7. TT

50, 101-102. In addition, the idea of using the Alerus Center as the sole voting location for all

City Wards/precincts for elections was not something that magically materialized with respect to

the June 20, 2017 special election. See, e.g., TE 10; AAppx. 39-46, the minutes of a meeting of

the City Council on December 7, 2015, at page 3: “There was some discussion relative to the

sites with comments relative to using the Alerus Center as the only site for voting and using the

Alerus as the site for early voting.” AAppx. 41.

[¶35] Nelson also testified concerning a special election conducted by the County in 2007,

where the Alerus Center was the sole voting location for all City Wards/precincts. TT 158-159.

Nelson testified from her experience in being responsible for all County voting for over the past

13 years, there is a clear trend toward going with fewer voting locations. TT 158. This is due to

many factors, including the ever-growing difficulty in finding workers for elections, the costs

associated with multiple voting locations, and the difficulty finding suitable voting locations that

comply with the Americans with Disabilities Act, and that have plenty of space for voters and for

parking.8 The Alerus Center meets all of these needs. Nelson testified that based upon her

8 The record also contains undisputed testimony from both Swanson and Nelson that in recent years the Grand Forks Public Schools, in concern for the children, were no longer making their facilities available for voting. TT 47, 166-167.

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involvement with the June 20, 2017 special election, she did not observe anything improper

being done.9 TT 164.

[¶36] The undisputed evidence also establishes that while one voting location was used for the

June 20, 2017 special election, separate ballots were kept for each City Ward. As testified by

Nelson, TT 161-164, when a City resident came in to vote at the Alerus Center on June 20, 2017,

s/he would have been directed by a worker in the hallway to the particular ballroom being used

to vote. There were also signs set up directing voters. When the voter entered the ballroom where

the voting took place, s/he was required to provide a suitable form of identification, and confirm

that s/he was a United States citizen (as required by state law). With the use of electronic poll

books, the voter was then directed to a spot at a table for her/his particular Ward, and given a

color-coded ballot (each Ward had its own color), and s/he was then allowed to go to a voting

booth and cast her/his vote. The ballot was then taken and, under the supervision of an election

worker, placed by the voter in the appropriate spot so the vote could be counted.

[¶37] In bringing an election contest, the Contestants have the burden of proof. “The

contestant’s notice of contest alleges that void votes were cast and counted. The contestee’s

answer specifically denies this. Since the issue is raised by the contestant the burden of proof

thereon rests upon him.…The rule is clear and sound that an election is not to be set aside

because of an irregularity unless it appears that the irregularity affected the result. Behrendt v.

Wilcox, 277 Mich. 232, 269 N.W. 155, at page 161.” Torkelson v. Byrne, 68 N.D. 13, 276 N.W.

134, 138, 142; 113 A.L.R. 1213 (1937).

9 With absentee voting available 40 days before the election, in effect there were two locations for voting because any voter who wished to do so could simply walk (as did Ms. Weaver) or drive to the County building, downtown across the street from the courthouse, and obtain a ballot and vote.

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[¶38] While there is no evidence in the record to support this, to the extent Marhula is

suggesting that the City Council had an improper motive or intent in selecting the Alerus Center

as the sole voting location for the June 20, 2017 special election, the law is universally clear that

courts will not look behind legislative action by governing bodies that is legal and valid on its

face (such as the resolution adopted by the City Council in this case, setting the date, location

and terms for the special election involving Arbor Park). “And the rule is general, with reference

to the enactments of all legislative bodies, that the courts cannot inquire into the motives of the

legislators in passing them, except as they may be disclosed on the face of the acts, or inferable

from their operation, considered with reference to the condition of the country and existing

legislation. The motives of the legislators, considered as to the purposes they had in view, will

always be presumed to be to accomplish that which follows as the natural and reasonable effect

of their enactments.” Soon Hing v. Crowley, 113 U. S. 703, 5 S. Ct. 730, 734, 28 L. Ed. 1145.”

State ex rel. City of Bismarck v. District Court in and for Burleigh County, 64 N.D. 399, 253

N.W. 744, 748 (1934).

[¶39] “If the statute or an ordinance has been enacted in a manner provided by law and for a

purpose permissible under the Constitution, neither the motives which impel its enactment nor

any alleged outside arrangements of the councilmen can be made the object of judicial inquiry

for the purpose of invalidating or preventing the operation of the law or ordinance. Courts should

not go outside of the record in searching for reasons for annulling a statute. McCoy v. Davis, 38

N.D. 328, 164 N.W. 951.” Tayloe v. City of Wahpeton, 62 N.W.2d 31, 39 (ND 1953).

[¶40] “The courts are not concerned with the wisdom, necessity, or expediency of legislation.

These are matters for the Legislature. 8 Cyc. 776, 851. The motives of the legislators cannot be

inquired into in determining the constitutionality of a statute. ‘Ignorance or improper motives in

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the enactment of legislation are never imputed to the Legislature. The courts will conclusively

presume that no general laws are ever passed either through want of information on the part of

the Legislature or because it was misled by false representations of interested parties; and a

statute which violates, neither expressly nor by necessary implication, any constitutional

provision, is itself conclusive evidence of its propriety and justice.’ 8 Cyc. 804, 851.” State ex

rel. Linde v. Taylor, L.R.A., 33 N.D. 76, 156 N.W. 561, 565 (1916).

[¶41] Based upon the foregoing authority, had the Contestants sought to offer evidence at trial

(which they did not do – other than conclusory allegations by Contestants’ counsel) as to

improper motives by the City Council in passing the resolution setting the terms and conditions

of the June 20, 2017 special election concerning Arbor Park, that proffered evidence would have

been irrelevant (improper inquiry), since on its face the action taken by the City Council was in

all respects within its legislative authority provided by law. In addition to North Dakota law, case

law from both federal and state courts in other jurisdictions support that result.

[¶42] “The bill abounds in allegations that voters were misled by the fraudulent conduct of the

officials of the city in their efforts to procure the property of the complainant at less than its

value by misrepresenting in a circular, and otherwise, the purpose and effect of the vote to be

taken upon the question of acquiring a municipal system of transportation. We think that the

court below correctly held that the motives of the officials, and of the electors acting upon

the proposal, are not proper subjects of judicial inquiry in an action like this so long as the

means adopted for submission of the question to the people conformed to the requirements

of the law. The principle has been declared by this court. Angle v. Ry. Co., 151 U. S. 1, 18, 14

Sup. Ct. 240, 38 L. Ed. 55; Soon Hing v. Crowley, 113 U. S. 703, 710, 5 Sup. Ct. 730, 28 L. Ed.

1145. This feature of the bill is an attempt to inquire in a collateral way into the validity of an

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election which was held without steps being taken to enjoin, and which was vigorously contested

to a final result.” Detroit United Ry. v. City of Detroit, 255 U.S. 171, 178 (1921) (emphasis

added). “The decisions of this court from the beginning lend no support whatever to the

assumption that the judiciary may restrain the exercise of lawful power on the assumption that a

wrongful purpose or motive has caused the power to be exerted. As we have previously said:

from the beginning no case can be found announcing such a doctrine, and, on the contrary, the

doctrine of a number of cases is inconsistent with its existence.” McCray v. U.S., 195 U.S. 27,

56 (1904). See, also, U. S. v. O’Brien, 391 U.S. 367 (1968).

[¶43] Judicial scrutiny of legislative action under the court’s ordinary jurisdiction “ ‘is limited

to assessing whether [a government body] was acting within its legal boundaries.’ ”8 Miles Point

Prop., LLC, 415 Md. at 393, 2 A.3d at 356 (quoting *339 Cnty. Council of Prince George’s

Cnty. v. Offen, 334 Md. 499, 507, 639 A.2d 1070, 1074 (1994)). See also Judy v. Schaefer, 331

Md. 239, 265–66, 627 A.2d 1039, 1052–53 (1993) (noting that when an agency action is

legislative in nature, as opposed to adjudicatory or quasi-judicial in nature, the scope of review is

limited).” Kenwood Gardens Condominiums, Inc. v. Whalen Properties, LLC, 449 Md. 313

(2016) (upholding resolution by City approving a PUD). See, also, Seif v. City of Long Beach,

286 N.Y. 382, 36 N.E.2d 630 (1941) (The courts are not concerned with city council motives in

refusing to adopt resolution authorizing or confirming mayor retainer of attorney as special

counsel for city in certain litigation). “

[¶44] The facts of this case, based upon the undisputed evidence presented at trial, reveal that the

City Council followed the laws of the state in all respects with regard to the June 20, 2017 special

election, including designating the Alerus Center as the sole location for voting for all City

Wards/precincts. It would be highly improper for the Court to look behind those legal actions of

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the City Council to find some improper motive/purpose behind those actions, even if the

Contestants had come forward with evidence at trial showing such improper motive/purpose

(which they did not).10

[¶45] Even if the Contestants had come forward with evidence that the June 20, 2017 City

special election was in some fashion “erroneous” [within the meaning of N.D.C.C. §16.1-16-

05(2]], they would also have been required to produce evidence that the “erroneous” act (in this

case, having one location for voting for all City Wards/precincts) would have changed the result

of the election. See Torkelson v. Byrne, 68 N.D. 13, 276 N.W. 134, 138, 142; 113 A.L.R. 1213

(1937). See, e.g., State ex rel. Olson v. Bakken, 329 N.W.2d 575, 580 (ND 1983) wherein this

court held: “The law and equity does not favor disenfranchising voters who have complied with

the law when the disenfranchisement occurs merely because of mistake, error, negligence, or

10 It is worth reflecting upon where the court would end up if it determined it could look behind legal actions taken by political subdivision governing bodies for some bad motive or purpose behind those actions. To say the floodgates of litigation would be opened would be an understatement. It is hard to think of any action taken by a governing body that would not be open to judicial second guessing. It would involve a serious breach of separation of powers, allowing the court to interject itself in all forms of government action even when that action is taken in all respects consistent with the power and authority given to the legislative body. Frankly, there would be no election called for by a political subdivision (or the state legislature) that wouldn’t be open to collateral attack by voters who take their chances that the election will go their way, and when it doesn’t bring a lawsuit, alleging an improper purpose by the legislative body, even if no illegal action was taken in calling for or conducting the election. To say that the Contestants position would be bad law would be to define what bad law means. Such a result would disenfranchise the majority of voters who voted NO with respect to the June 20, 2017 special election, in a case where that election was legally held and conducted in all respects as allowed by North Dakota law. Moreover, how is the court going to determine the alleged “bad motive” of the governing body? Is it going to be enough that just one of the members of the governing body had that bad motive? Is it going to be necessary to find that a majority of the governing body members had that bad motive? Is the court going to be allowed to infer bad motive without any testimony that such a motive was in the mind/heart of the members of the governing body? Simply put, any suggestion that the court should assume power to look behind the otherwise lawful action of a governing body, to find some improper motive, and then set aside that lawful action, is a very dangerous precedent, and should be rejected.

Page 24

misconduct on the part of election officials.” The court went on to uphold the trial court’s

decision calling for a revote in only the one precinct where the evidence was of such a magnitude

have affected the outcome of the election.

[¶46] There can be little doubt that the City Council acted legally, within the discretionary

authority provided to it by state law and City Code, to have one voting location for all City

Wards/precincts for the June 20, 2017 election. However, even if the City Council did not have

that legal authority, North Dakota law is well settled and would not support declaring the

election void as requested by Marhula. See Kerlin v. City of Devils Lake, 25 N.D. 207, 141 N.W.

756 (1913) for a case directly on point. See, also, F.C. Rohrich, 1993 N.D. Op. Atty. Gen. L-28

(1993) (City may properly have only one polling place in special election despite having three

wards).

CONCLUSION

[¶47] For all of the foregoing reasons, the City requests that the court either dismiss the case as

moot, dismiss for lack of subject matter jurisdiction, or affirm the decision of the district court

dismissing the complaint with prejudice. The City also requests that it be awarded its costs and

disbursements on appeal.

Respectfully submitted this 12th day of February, 2017.

/s/ Ronald F. Fischer _________________________________________

Ronald F. Fischer, ND ID #03707 rfischer@grandforkslaw.com PEARSON CHRISTENSEN, PLLP 24 North 4th Street - P.O. Box 5758 Grand Forks, ND 58206-5758 (701) 775-0521; FAX: (701) 775-0524 Attorneys for Contestee/Appellee City of Grand Forks

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CERTIFICATE OF COMPLIANCE

[¶48] The undersigned, as attorney for Contestee/Appellee City of Grand Forks in the above

matter, and as the author of the above brief, hereby certifies, in compliance with Rule 32(a)(8) of

the North Dakota Rules of Appellate Procedure, the above brief was prepared with proportional

type face and the number of words in the above brief, excluding words in the table of contents,

table of authorities, and certificate of compliance, total 7,974 words.

Dated this 12th day of February, 2018.

/s/ Ronald F. Fischer _________________________________________

Ronald F. Fischer (ND Attorney ID #03707) rfischer@grandforkslaw.com

Daniel L. Gaustad (ND Attorney ID #05282) dan@grandforkslaw.com PEARSON CHRISTENSEN, PLLP 24 North 4th Street - P.O. Box 5758 Grand Forks, ND 58206-5758 (701) 775-0521; FAX: (701) 775-0524 Attorneys for Contestee/Appellee City of Grand Forks