Can a North Dakota home rule city set its own recall election rules that differ from the state's recall procedure?

Plain-English summary

Dickinson adopted a home rule charter in 1990. Article 8 of that charter sets up the city's own recall procedure for elected officials: 15% of votes cast in the most recent city election to qualify, 15 days for the city to certify the petition, and a special election within 40 to 60 days after certification.

State law, in N.D.C.C. § 44-08-21, says something different: 25% of voters who cast ballots in the most recent election, a 30-day review window, and a special election 95 to 105 days after certification. The Dickinson City Attorney asked the AG whether the city's article 8 supersedes the state recall law.

The AG said no. Home rule supersession is two-step: the power has to be enumerated in N.D.C.C. § 40-05.1-06, and the charter has to actually claim it. None of the listed home rule powers cover recall. The closest candidate is § 40-05.1-06(7), which gives home rule cities authority over the "selection, terms, powers, duties, qualifications, and compensation" of city officers. The AG concluded that recall is the opposite of selection, not a subset of it. Under the rule of strict construction, any doubt about a municipal power resolves against the city, so the implied power to control recall procedures cannot be read into § 40-05.1-06(7).

The practical result: a recall in Dickinson has to follow the state law procedure in § 44-08-21, not the lower-threshold and faster-timeline procedure in article 8 of the charter.

What this means for you

If you're organizing a recall petition in Dickinson or another North Dakota home rule city

Use the state law thresholds: 25% of voters who voted in the most recent election. The charter's lower threshold doesn't apply, even if the charter says it does. Build your campaign around the longer state-law calendar (95 to 105 days from certification to special election).

If you're a city attorney for a home rule city with a recall provision in your charter

Treat the recall provision as essentially advisory. Until the Legislature amends N.D.C.C. § 40-05.1-06 to include recall as an enumerated power, your charter can't override § 44-08-21. If a recall is filed under the charter's lower threshold, you'll need to advise the city to apply state-law standards, which will likely mean rejecting the petition for insufficient signatures unless it also clears 25%.

If you're a citizen confused about which procedure governs

State law wins. The opinion only directly addresses Dickinson, but its reasoning applies to any North Dakota home rule city, since the analysis turns on the structure of N.D.C.C. § 40-05.1-06 (which is statewide), not on Dickinson-specific facts.

Common questions

Q: Why isn't recall a "selection" power?
A: The AG used dictionary definitions: "select" means choosing from a group by fitness or preference. Recall is the opposite, removing someone already chosen. The AG concluded that selection and removal are "inherently antipodal processes." Under strict construction, the power to control selection doesn't imply the power to control removal.

Q: What's the "rule of strict construction" for municipal powers?
A: Municipal powers are read narrowly. If there's any doubt about whether the Legislature granted a particular power, the doubt is resolved against the city. That doctrine traces back to early 20th-century North Dakota Supreme Court decisions and has been reaffirmed in cases like City of Fargo v. Malme and City of Bismarck v. Fettig.

Q: Could the Legislature change this by amending N.D.C.C. § 40-05.1-06?
A: Yes. The Legislature could add recall to the list of home rule powers. Until then, the existing list controls.

Q: What about the rest of Dickinson's article 8? Is the whole thing void?
A: The opinion doesn't say article 8 is void. It says article 8 cannot operate where it conflicts with N.D.C.C. § 44-08-21. The state law thresholds and timelines control; article 8 yields where it differs.

Q: How does this interact with the prior AG opinion on Bismarck initiative deadlines (2024-L-04)?
A: They're complementary. In 2024-L-04, the AG said state law fills in where the charter is silent. Here, the AG says state law trumps the charter where the charter purports to take a power not enumerated in § 40-05.1-06. Both opinions apply the same two-step supersession framework.

Background and statutory framework

The home rule supersession framework is built on three pieces. First, N.D.C.C. § 40-05.1-06 lists the specific powers a home rule city may claim. Second, the charter has to actually include the power. Third, the city has to enact an implementing ordinance (where required) for the power to be exercisable.

The North Dakota Supreme Court has applied the rule of strict construction to municipal powers since Lang v. City of Cavalier, 228 N.W. 819 (1930), and continues to apply it in more recent cases like City of Fargo v. Malme, 2007 ND 137. The doctrine means that any ambiguity about the existence or scope of a municipal power is resolved against the city.

For comparison, the AG noted statutes where the Legislature has expressly forbidden home rule supersession in particular areas: pesticide regulation (N.D.C.C. § 4.1-33-04), criminal offenses (N.D.C.C. § 12.1-01-05), and others. Those exclusions show the Legislature knows how to be explicit when it wants to protect state-law primacy. The absence of recall from the § 40-05.1-06 list, by contrast, leaves the question to the strict-construction default: doubt resolves against the city.

Citations and references

Statutes:
- N.D.C.C. ch. 40-05.1 (home rule cities)
- N.D.C.C. § 44-08-21 (recall procedure)
- N.D. Const. art. VII, § 2

Cases:
- City of Fargo v. Malme, 2007 ND 137, 737 N.W.2d 390
- Pelkey v. City of Fargo, 453 N.W.2d 801 (N.D. 1990)
- City of Bismarck v. Fettig, 1999 ND 193, 601 N.W.2d 247
- Litten v. City of Fargo, 294 N.W.2d 628 (N.D. 1980)
- State ex rel. Johnson v. Baker, 21 N.W.2d 355 (N.D. 1946)

Source

• Landing page: https://attorneygeneral.nd.gov/home-rule-cities-lack-the-statutory-authority-to-enact-an-ordinance-regarding-the-recall-of-city-officers-that-conflicts-with-the-process-set-forth-in-n-d-c-c-section-44-08-21/
• Original PDF: https://attorneygeneral.nd.gov/wp-content/uploads/2024/11/2024-L-05.pdf

Original opinion text

STATE OF NORTH DAKOTA
OFFICE OF ATTORNEY GENERAL
www.attorneygeneral.nd.gov
(701) 328-2210

Drew H. Wrigley
ATTORNEY GENERAL

LETTER OPINION
2024-L-05

Ms. Christina M. Wenko
Dickinson City Attorney
Mackoff Kellogg Law Firm
38 Second Ave. E.
Dickinson, ND 58601

Dear Ms. Wenko:

Thank you for your letter requesting my opinion on whether a home rule charter city may modify the elected official recall process enumerated in North Dakota Century Code (N.D.C.C.) § 44-08-21. Because the rule of strict construction applies in defining municipal powers and any doubt as to the existence of municipal powers must be resolved against the municipality, it is my opinion that N.D.C.C. § 40-05.1-06 does not grant home rule charter cities the power to devise a process for the recall of city officials separate from that provided in N.D.C.C. § 44-08-21.

ANALYSIS

Article VII, § 2, N.D. Const., requires the Legislature to provide by law for the establishment and government of all political subdivisions. "The Legislature also has the constitutional authority 'to provide by law for the establishment and exercise of home rule in counties and cities' ... and has provided for home rule cities by enacting N.D.C.C. ch. 40-05.1." Pursuant to N.D.C.C. § 40-05.1-05, home rule charters allow cities to enact ordinances which are contrary to those of the state. However, "a home rule city's ability to enact ordinances that supersede state law is not without limitation, because '[w]hatever powers a home rule city may have are based upon statutory provisions.'" Section 40-05.1-06, N.D.C.C., specifies powers a city may acquire if those powers are included in the city's home rule charter and the charter has been approved by a majority of the city's qualified voters. These powers include the power "[t]o provide for city officers, agencies, and employees, their selection, terms, powers, duties, qualifications, and compensation. To provide for change, selection, or creation of its form and structure of government, including its governing body, executive officer, and city officers." "[T]he supersession provision in N.D.C.C. § 40-05.1-05 applies only to those powers enumerated in N.D.C.C. § 40-05.1-06, and those powers must also be included in the charter and be implemented by ordinance."

The city of Dickinson is a municipal corporation which operates under a Home Rule Charter approved by a majority of its voters on May 22, 1990 (Home Rule Charter). Article 3 of the Home Rule Charter includes the power "[t]o provide for city officers, agencies, and employees, their selection, terms, powers, duties, qualifications, and compensation. To provide for change, selection, or creation of its form and structure of government, including its governing body, executive officer, and city officers." The Home Rule Charter also includes Article 8, which governs the recall of elected officers or officials, including three detailed, separate sections governing the form of the petition; the filing, certification and submission of the recall petition; and the election procedure and filing of any resulting vacancies. A fourth section states the article is self-executing. These provisions, including signature requirements and deadlines, conflict with the requirements of N.D.C.C. § 44-08-21, which ordinarily governs the recall of the elected officials of political subdivisions. While it is not clear which statutory home rule charter power Article 8 intends to implement, the requestor suggests that the authority to recall elected city officials may lie within N.D.C.C. § 40-05.1-06(7).

"The rule of strict construction applies in defining municipal powers." "Any doubt as to the existence or extent of municipal powers must be resolved against the municipality." Section 40-05.1-06(7), N.D.C.C., broadly gives home rule charter cities authority over the "selection, terms, powers, duties, qualifications, and compensation" of city officers, agencies, and employees. This provision, however, does not expressly address or authorize the adoption of a method of recall of elected city officers contrary to that provided by state law. "Words used in any statute are to be understood in their ordinary sense." "Selection" has a plain language meaning of the "process of selecting" with "select" being defined as "chosen from a number or group by fitness or preference." A recall of an elected official is the procedure by which a city official is removed from office by a vote of the people. Selection and removal of elected officials are inherently antipodal processes, and the power to modify the manner of the selection of city officials does not include the power to modify the manner of the removal of city officials. Because the rule of strict construction requires that any doubt regarding the existence of a municipal power be resolved against the municipality, the power to adopt a recall process contrary to the process set forth in N.D.C.C. § 44-08-21 cannot be implied from the unambiguous plain language of N.D.C.C. § 40-05.1-06(7).

Based upon the foregoing analysis, it is my opinion that N.D.C.C. § 40-05.1-06 does not grant home rule charter cities the authority to adopt a process for the recall of elected city officials which conflicts with the process set forth in state law at N.D.C.C. § 44-08-21.

Sincerely,

Drew H. Wrigley
Attorney General

This opinion is issued pursuant to N.D.C.C. § 54-12-01. It governs the actions of public officials until such time as the question presented is decided by the courts.