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The city of Bismarck's reliance on state law regarding the timeframe for gathering signatures on citizen-initiated petitions is constitutional, according to an opinion from the state attorney general related to an effort by a former mayor to lower property taxes and utility rates. Former Mayor Marlan Haakenson hasn't decided on his path forward but said the matter could end up in court or in front of the City Commission. Attorney General Drew Wrigley recently supported the city's use of a state law that requires petitions to be submitted within a year, writing that the interpretation does not violate residents' constitutional right to initiate petitions under the state constitution .
Wrigley argued that the constitution applies only to state laws and "does not include a reserved power to initiate or refer local laws or ordinances." In August, City Attorney Jannelle Combs penned a letter to Wrigley's office asking if Bismarck's use of the state law was a violation of the city's home rule charter and the petition rights of residents. While Bismarck's home rule charter outlines a framework for resident petitions, Combs stated that the ordinance does not specify how long a petition can be circulated or how long signatures remain valid before the petition is presented.
Because of this, the city follows a state law that imposes a one-year limit on citizen petitions, since its home rule charter does not include a provision that would override the state statute. "Because art. 5 of the Home Rule Charter does not contain a provision related to time limits for filing or presentation of a petition to initiate an ordinance, it is my opinion that the time limits set forth in (state law) apply," Wrigley wrote.
North Dakota Attorney General Drew Wrigley. The question arose after former Bismarck Mayor Marlan Haakenson challenged the city's use of the state law. He argued that the state law limitation of one year is an example of "constitutional overreach," infringing on the constitutional rights of residents to petition.
Haakenson has been circulating a petition since November 2022, seeking to to roll back property taxes and utility rates to their 2018 levels and requiring any future increases be approved by voters. Haakenson, who served as mayor from 1986-90, previously told city staff that he would continue gathering signatures, despite the petition exceeding one year in circulation. Haakenson believes the attorney general's opinion on the matter is wrong.
Haakenson maintains that if the city has no ordinance governing time limits for city petitions, that there should be no time limit regardless of what state law says. Haakenson's argument is based on his interpretation of Article 5, Section 3 of Bismarck's home rule charter, which reads: "This article shall be self-executing and all of its provisions treated as mandatory. Ordinances may be enacted to facilitate its operation but no ordinances shall be enacted to hamper, restrict or impair the exercise of the rights herein reserved to the people.
" "When the city passed their home rule charter, they did not put a time limit in it because it would hamper, restrict or impair the exercise of the citizens' rights," Haakenson said. "That's my main question for the attorney general, but he did not address that point." Bismarck residents can initiate petitions due to the city's status as a home rule charter city, which grants additional self-governing authority, such as levying taxes and enacting ordinances.
Ordinances made under a city's home rule charter supersede any conflicting state law within the city's jurisdiction. Jannelle Combs Combs presumes that Haakenson's petition is now moot since he did not submit any of the previously collected signatures to the city. In August, Assistant City Attorney Stephanie Pretzer suggested that the city could accept signatures collected within the one-year period if the remaining signatures are valid.
However, Combs believes Haakenson indicated that he does not have enough valid signatures. She noted that Haakenson could initiate a new petition with the correct paperwork. Haakenson maintains that he did have enough valid signatures, stating that he collected 1,504 during 2023.
He wouldn't say how many of those signatures were signed prior to Nov. 23, 2023. Haakenson said he has several avenues to explore moving forward.
He suggested that he could take the issue up with a judge since Wigley's letter is merely an opinion, which is not legally binding. He also mentioned the possibility of presenting the matter to the City Commission and asking the board to vote on placing the measure on a ballot. If that occurs, the proposal would only require a simple majority to become law.
"1,600 people signed this petition, and now all of a sudden we find out that their signatures are not valid," Haakenson said. "However, in my opinion, and anyone else that I've talked with -- that is the will of the people, that they wanted a chance to vote on this petition that I put out. "That's the will of the people and the city commissioners are supposed to be listening to the will of the people.
" Haakenson has also floated the idea of printing a new petition in The Bismarck Tribune for readers to clip and sign themselves. Any new petition would need 1,466 signatures, equal to 15% of the number of people who voted in the city mayor election in 2022. If enough signatures are verified, the City Commission would have the option of passing an ordinance or putting the matter to a public vote.
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