This action might not be possible to undo. Are you sure you want to continue?
IN DISTRICT COURT SOUTH CENTRAL JUDICIAL DISTRICT CIVIL NO. 08-2012-CV-00309
Empower the Taxpayer, et aI., Plaintiffs, vs. Cory Fong, et aI.,
) ) ) ) ) ) ) ) ) ) )
ORDER DENYING INJUNCTIVE RELIEF AND ORDER DISMISSING CASE
LAW AND ANALYSIS Empower seeks an injunction to enforce the provisions of the Corrupt Practices Act in chapter 16.1-10, N.D.C.C. The Defendants argue Empower does not have standing to
bring a claim under the Corrupt Practices Act because it is a criminal law. A hearing was held on April 2, 2012. Mr. Boughey appeared for Plaintiffs and Ms. Franzen for the State
defendants and Mr. Bakke for the county defendants. This case started with a 45-page complaint, which could more easily be described as Empower's manifesto advocating their political position rather than a legal complaint setting out a succinct request for relief from the Court. Empower brings this action First, the Defendants allegedly
alleging Defendants violated NDCC 16.1-10 in two ways:
published false information in political advertisements in violation of N.D.C.C. 16.1-10-04; second, they allege the named Defendants used state resources for political purposes in violation of N.D.C.C. 16.1-10-02. The Defendants ranged from the State Tax
Commissioner, Cory Fong, to the North Dakota Weed Control Association.
The initial This
filing requested an injunction without providing the Courtan affidavit as required. request was denied by the Court for this deficiency.
Empower then renewed the request
filing an affidavit, which was simply a cut and paste of Empower's original allegations set out in its complaint with Charlene Nelson being the affiant. The County and State
Defendants filed responses to the request for an injunction and moved to have the matter dismissed. I. Standing "Standing is a threshold issue to determine whether a party is entitled to have a court decide the merits of a dispute." 769.
State v, Leingang, 2009 NO 38, en 17,763 N.W.2d
The North Dakota Supreme Court has explained:
The question of standing focuses upon whether the litigant is entitled to have the court decide the merits of the dispute. It is founded in concern about the proper-and properly limited-role of the courts in a democratic society. Without the limitation of the standing requirements, the courts would be called upon to decide. purely abstract .questions.As an aspect of justiciability, the standing requirement focuses upon whether the plaintiff has alleged such a personalstake in the outcome of the controversy as to justify exercise of the court's remedial powers on his behalf. The inquiry is two-fold. First, the plaintiff must have suffered some threatened or actual injury resulting from the putatively illegal action. Secondly, the asserted harm must not be a generalized grievance shared by all or a large class of citizens; the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights and interests of third parties. When a person is subject to a criminal prosecution, or is faced with its imminent prospect, that person has clearly established the standing requirements to oppose the prosecution by asserting his relevant constitutional rights. Id. (quoting Stat~ v, Carpenter, 301 N.W.2d 106, 107 (N.D. 1980)). Civil and criminal actions are the only two types of actions in North Dakota. N.D.C.C. § 32-01 ~03. "A criminal action is one prosecuted by the state as a party against
a person charged with a public offense for the punishment thereof."
N.D.C.C. § 32-01-05.
Section 16.1-10:-08, N.D.C.C., provides, "Any person violating any provision of [the Corrupt Practices Act], for which another penalty is not specifically provided, is guilty of a class A misdemeanor." misdemeanors. N.D.C.C. § 16.1-10-08. The term "public offense" includes (N.D. 1982).
See State v.Bergeron, 326 N.W.2d 684,685
"It is well settled that equity has no jurisdiction to restrain the commission of crimes, and that injunction may not issue for the prevention of criminal acts unconnected with a violation oflegal rights."Richmond
v. Miller, 292 N.W.2d 633, 633 (N.D. 1940).
See Fargo Women
use their equitable power to issue injunctions.
s Health Org., Inc. v.
Lambs of Christ, 488 N.W.2d 401,407 (N.D. 1992).
Thus, this Court must decide
whether the Defendants' alleged criminal acts are a violation of Empower's legal rights. A "legal right" is a "right created or recognized by law" or a "[rlight historically recognized by common-law courts."RIGHT, Black's Law Dictionary (9th ed. 2009).
Empower did not identify a legal right that was violated, and I am unable to identify any of Empower's common law rights that were violated. Therefore, the Court's equitable
powers cannot enjoin the Defendants' actions, and Empower does not have standing to bring a claim under the Corrupt Practices Act. Empower argues that the Corrupt Practices Act provides an implied private right of action. The Defendants argue that the Corrupt Practices Act does not provide an implied When determining whether a private right of action exists, the
private right of action.
North Dakota Supreme Court has applied the first three Cort factors: First, is the plaintiff one of the class for whose especial benefit the statute was enacted, ... -that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or 3
implicit, either to create such a remedy or to deny one? ... Third, is it consistent .vvithJheugderlyingpurposes of the legislative scheme. to imply such a remedy for the plaintiff?
Trade'NPost,L.LC. v.World Duty FreeAmericas, Inc. 2001 ND 116, arrarr 11-13,628
N.W.2d 707 (quoting Cort v.Ash, 422 U.S. 66, 78 (1975» (quotations omitted). The first factor looks at whether the Corrupt Practices Act creates a right in favor of Empower. •Nelson and Hale are taxpayers, and the purpose of the Corrupt Practices Act is to prevent tax dollars from being spent on political purposes.
See N.D.C.C. §
16.1-10-02(1) (stating property of the state or a political subdivision cannot be used for a political purpose). and Hale. The second factor examines the legislature's intent to create a private right of action. Nothing in the Act explicitly creates a private right of action. When reviewing the Thus, the Corrupt Practices Act may create a right in favor of Nelson
legislative history for the Corrupt Practices Act, nothing indicated that the legislature wanted to provide taxpayers with the power to independently enforce the provisions of the Corrupt Practices Act. The most recent amendments clarified that initiated measures
were included .in the definition of political purpose.
See Hearing on S.B. 2327 Before
N.D. Legis. Sess. (Feb.
the Senate Government and Veterans' Affairs Comm., 62nd
4, 2011) (testimony of Chairman Dever) ("It came to provide that government dollars cannot be used for or against a constitutional amendment.") The purpose of the bill is,
"AN ACT to amend and reenact subdivision a of subsection 2 of section 16.1-10-02 of the North Dakota Century Code, relating to the use of state or political subdivision services or property for political purposes; and to provide a penalty." § 1. 2011 N.D. Sess. Laws Ch. 157,
The third factor looks at whether implying a private right of action is consistent with the underlying legislative scheme. Providing a private right of action is not consistent with
the class A misdemeanor penalty the legislature used because, as addressed above, citizens cannot prosecute criminal laws. According to the three Carl factors, the
legislature did not intend to imply a private right of action under the Corrupt Practices Act. Empower lacks standing to bring this claim under the Corrupt Practices Act because the act is criminal, the Defendants' actions did not violate Empower's legal rights, and the legislature did not intend to provide a private right of action. Therefore, Empower
is not entitled to an injunction, and the case is appropriate for dismissal on the issue of standing.
ORDER Empower lacks standing to bring this claim as the Corrupt Practices Act is a criminal law, the Defendants' actions did not violate Empower's legal rights, and the legislature did not imply a private right of action. and the case is DISMISSED. Dated this 12th day of April, 2012. Empower is not entitled to an injunction,
This action might not be possible to undo. Are you sure you want to continue?
We've moved you to where you read on your other device.
Get the full title to continue reading from where you left off, or restart the preview.