Office of Appellate Courts
1. In the absence of evidence that petitioner failed to assert a known right, court will not apply laches to bar petition under Minn. Stat. § 204B.44 (2000).
2. Motion to quash order to show cause on the basis that petition was insufficient on its face is denied.
3. The record supports the conclusion that candidate had sufficient presence in legislative district and intent to reside there to meet residency requirement of Minn. Const. art. IV, § 6.
The opinion of the court was delivered by: Per Curiam.
Heard, considered, and decided by the court en banc.
Petitioner Mark Piepho 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 John Hottinger'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 23 for six months immediately preceding the general election as required by Minn. Const. art. IV, §á6. The referee found that Hottinger established residency in District 23. This opinion confirms the order filed on August 28, 2002, denying the petition.
Petitioner is an eligible voter and elector in Legislative District 23. He claimed in his petition that Hottinger was required to live in District 23 from and after May 5, 2002, to establish residence as required by the Minnesota Constitution. Petitioner claimed Hottinger did not reside within District 23 at 304 West Grace Street in St. Peter, Minnesota, as the candidate represented in his affidavit of candidacy filed with the secretary of state. Petitioner also attached to his petition a property tax record indicating that Hottinger claimed the residential homestead classification for 20100 Horseshoe Lane in Mankato, outside the district. In addition, petitioner asserted that Hottinger failed to change his address on his driver's license to 304 West Grace Street until May 17, 2002, 12 days after the May 5, 2002, deadline. In support of the petition, petitioner later submitted an affidavit from two people who claimed to have lived at 304 West Grace Street, the residence Hottinger claimed as his, until May 24, 2002.
We issued an order requiring the respondent county auditors, the secretary of state, and Hottinger to respond to the petition. Hottinger denied the allegations in the petition and moved to quash the order to show cause. We deferred ruling on the motion to quash 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 Hottinger and his wife own property at 20100 Horseshoe Lane, Mankato, Minnesota, which is not in District 23 as recently reconfigured through redistricting. Sometime after the Minnesota Special Redistricting Panel's March 19, 2002, order mandating use of the panel's redistricting plan, Hottinger and his wife decided to move so that Hottinger would be eligible to run for office in 2002 in District 23. On April 17, 2002, Hottinger entered into a 12-month lease for 304 West Grace Street, St. Peter, in District 23, with ...