N.D. SC rejects property tax suit ahead of primary

Jessica M. Karmasek Jun. 11, 2012, 2:00pm



BISMARCK, N.D. (Legal Newsline) - The North Dakota Supreme Court, in a ruling last week, dismissed a lawsuit over a proposed constitutional amendment to abolish property taxes in the state.

A group called Empower the Taxpayer, its chairwoman Charlene Nelson and legal counsel Robert Hale appealed from an order dismissing their request for injunctive relief against numerous state and local government officials, and other entities.

According to its website, Empower is a non-profit political coalition "dedicated to the proposition that government stability need not come at the expense of the security and stability of the people it serves."

Members of the coalition -- and sponsors of North Dakota Initiated Constitutional Measure 2 -- "come from all walks of life," public and private, and include homeowners, renters, farmers and ranchers, single mothers, grandparents, business owners, county commissioners and state lawmakers.

Measure 2, which would abolish property taxes in North Dakota, is on Tuesday's primary election ballot.

Empower sued in February, seeking injunctive relief against the defendants -- Tax Commissioner Cory Fong and other public officials -- to prohibit them from, among other things, "advocating any position on Measure 2" and to declare them "no longer eligible to run for public office."

Attorney General Wayne Stenehjem's office represented Fong, state Sen. Dwight Cook, Sen. David Oehlke, state Rep. Charles Damschen and Rep. Lonnie Winrich in the lawsuit.

Empower, in its suit, alleged the officials and entities had violated provisions of the state's Corrupt Practices Act by distributing false and misleading information about the effect of Measure 2.

In particular, the group said the amendment's opponents are lying about its effects and illegally spending taxpayer money to fight it.

The Burleigh County District Court dismissed the action, concluding that Empower lacks standing to bring its claim as the Corrupt Practices Act is a criminal law; the defendants' actions did not violate the group's legal rights; and the Legislature did not imply a private right of action for violation of the act's provisions.

The state's high court, in ruling Thursday, affirmed the district court's decision.

Empower, it said, has failed to establish that there is a private right of action to enforce the provisions of the Corrupt Practices Act.

"Absent express statutory authorization, injunctive relief is not available to enjoin violations of criminal law," Justice Mary Muehlen Maring wrote for the Court.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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