Office of Appellate Courts
1. Because an election for a seat in the state legislature is "an election for state * * * office" under Minn. Stat. § 204B.44 (2000), the petition was properly filed in this court and the motion to dismiss the petition for lack of jurisdiction is denied.
2. 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).
3. 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.
Heard, considered, and decided by the court en banc.
Petitioner Russ Lundquist filed a petition under Minn. Stat. § 204B.44 (2000) alleging a wrongful act or omission by the respondent county auditor in her placement of candidate Margaret Tilley'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 38A for six months immediately preceding the general election as required by Minn. Const. art. IV, § 6. The referee found that Tilley established residency in District 38A. This opinion confirms the order filed on August 28, 2002, denying the petition.
Petitioner is an eligible voter and elector in Legislative District 38A. He claimed in his petition that Tilley was required to live in District 38A from and after May 5, 2002, to establish residence as required by the Minnesota Constitution. Petitioner claimed Tilley did not reside within District 38A at 1470 Englert Road in Eagan, Minnesota, as she represented in her affidavit of candidacy filed with the county auditor, but at 1055 Wescott Road in Eagan, which is not in the district. In support of the petition, petitioner attached a property tax record indicating that Tilley claimed the residential homestead classification for 1055 Wescott Road, outside the district. Petitioner also submitted a copy of a videotape of a June 17, 2002, local cable access television show, in which Tilley stated, "If I win, I will move."
We issued an order requiring the respondent county auditor, the secretary of state, and Tilley to respond to the petition. Tilley denied the allegations in the petition, moved to dismiss the petition on jurisdictional grounds, and moved to dismiss the order to show cause on several other bases. 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 Tilley owns property at 1055 Wescott Road in Eagan, outside District 38A, and had lived at this address for 29 years prior to May 5, 2002. Tilley's college-aged daughter lived there in the summer of 2002. Tilley runs her campaign out of this address, which contained some of her furnishings during the relevant time period. However, Tilley began paying monthly rent of $350 on May 5, 2002, for two bedrooms at 3830 Alder Lane, Eagan, located in District 38A, to establish residency there. Tilley ...