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Olson v. Zuehlke

October 17, 2002

RALPH OLSON, PETITIONER,
v.
ROBERT ZUEHLKE, AS COUNTY AUDITOR OF ITASCA COUNTY, MINNESOTA, RESPONDENT,
KIRK PEYSAR, AS COUNTY AUDITOR OF AITKIN COUNTY, MINNESOTA, RESPONDENT,
MARY KIFFMEYER, MINNESOTA SECRETARY OF STATE, RESPONDENT,
LOREN SOLBERG, INTERVENOR.



Office of Appellate Courts

SYLLABUS BY THE COURT

1. In the absence of evidence that petitioner failed to assert a known right, the court will not apply laches to bar a petition under Minn. Stat. § 204B.44 (2000).

2. The record supports the conclusion that candidate had sufficient presence in legislative district and intent to reside there to meet residence requirement of Minn. Const. art. IV, § 6.

The opinion of the court was delivered by: Per Curiam.

Original Jurisdiction

Took no part, Hanson, J.

Petition denied.

Heard, considered, and decided by the court en banc.

OPINION

Petitioner Ralph Olson filed a petition under Minn. Stat. § 204B.44 (2000) alleging a wrongful act or omission by the respondent county auditors in their placement of candidate Loren Solberg's name on the ballot for the 2002 election. The petition was referred to a referee to take and receive evidence and make findings of fact relative to petitioner's claim that the candidate will not have resided in Legislative District 3B for six months immediately preceding the general election as required by Minn. Const. art. IV, §á6. The referee found that Solberg established residency in District 3B. This opinion confirms the order filed on August 28, 2002, denying the petition.

Petitioner is an eligible voter and elector in Legislative District 3B. He claimed in his petition that Solberg was required to live in District 3B from and after May 5, 2002, to establish residency as required by the Minnesota Constitution. Petitioner claimed Solberg did not reside within District 3B at 2214 Southwest Third Avenue in Grand Rapids, Minnesota, as he represented in his affidavit of candidacy filed with the secretary of state, but at 115 Fifth Avenue in Bovey, Minnesota, which is not in District 3B as a result of a redistricting plan that went into effect on March 19, 2002. In support of the petition, petitioner attached an affidavit from Gordon Newstrom, who attests that he owned the property at 2114 Third Avenue in Grand Rapids and sold it to Solberg on June 17, 2002. Newstrom claims in the affidavit that he resided on the property until July 1, 2002. Petitioner also attached to his petition a copy of Solberg's resident combination fishing license processed on May 8, 2002, which listed the Bovey address.

We issued an order requiring the respondent county auditors, the secretary of state, and Solberg to respond to the petition. Solberg denied the allegations in the petition and moved to dismiss the order to show cause on several grounds. We deferred ruling on the motions and appointed the Honorable Edward Toussaint, Jr., to serve as referee in the matter to take and receive all evidence and make findings of fact. See Parsons v. Hickey, 294 Minn. 543, 544, 201 N.W.2d 739, 740 (1972); Moe v. Alsop, 288 Minn. 323, 325, 180 N.W.2d 255, 257 (1970).

The referee found that Solberg is and has been since 1983 a member of the Minnesota House of Representatives. After the redistricting plan was announced on March 19, 2002, Solberg decided to move within the new boundaries of District 3B, which he believed encompassed 70-75% of his former district. On April 16, 2002, Solberg and his wife entered into a purchase agreement with Newstrom to purchase Newstrom's townhouse at 2114 Southwest Third Avenue in Grand Rapids, which is in District 3B. The Solbergs asked for earlier possession or a leaseback arrangement, but Newstrom, who was 89 years old at the time, was unwilling to give up possession before July 2002. In his affidavit in response to the petition, Solberg stated, "Because Mr. Newstrom had no other place to move, I agreed to allow him to stay in the house until a delayed closing." Newstrom acknowledged in writing receipt of $1.00 for what Solberg characterized as rental of the "facility," and what Newstrom characterized as use of the mailbox. On April 23, 2002, Solberg and his wife arranged financing of the townhouse purchase.

On April 16, 2002, Solberg applied for a new voter registration card with the Grand Rapids address. Solberg's wife's pay stub for the pay period ending April 30, 2002, reflects the change to the Grand Rapids address. On April 22, ...


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