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Fargo mayor's shot at 4 more years rests in judge's hands after attorneys present oral arguments on term limit issue

City attorney's opinion states Fargo Mayor Tim Mahoney has exhausted available terms

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Fargo Mayor Tim Mahoney’s attorney Tami Norgard speaks to Judge Stephannie Stiel on Monday, Nov. 1, 2021, at the Cass County Courthouse. The city of Fargo has asked Stiel to decide whether city ordinance prevents Mahoney from seeking re-election in June. Alyssa Goelzer / The Forum
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FARGO — A Cass County District Court judge heard oral arguments on Monday, Nov. 1, on the question of whether Fargo Mayor Tim Mahoney is eligible to run for reelection in June 2022.

"You have given me a lot to consider," Judge Stephannie Stiel said after hearing from Tami Norgard, an attorney representing Mahoney, and Ian McLean, an attorney representing the city of Fargo.

Both attorneys had already provided Stiel with written arguments.

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Stiel did not say when she would provide a written opinion, but she said she was aware of the time issues involved and that she would issue her ruling as soon as possible.

The court became involved in the question of Mahoney's eligibility as a candidate last summer after the city commission directed the city attorney's office to file a petition with the court asking whether city code prevents Mahoney's name from being placed on the June primary ballot.

The petition reflected a clash of opinion between City Attorney Erik Johnson and Mahoney, as Johnson maintains Mahoney is not eligible to run again based on city code , while Mahoney says that is not the case.

Fargo's city code dictates that a city commissioner is limited to serving three consecutive four-year terms, but exceptions apply.

One exception holds that if a commissioner vacates their position before their term has expired, the person who fills that seat can serve three full four-year terms in addition to the remaining months of the seat left vacant.

However, the rules also state that any member who has served in the capacity of mayor, as well as city commissioner, may not serve more than four successive four-year terms.

Those two exceptions to the basic three-term rule create a question in Mahoney's case, because although he has been on the city commission since September of 2005, that tenure is a result of a mixture of regular and special elections.

On Monday, McLean acknowledged that city election rules can give rise to different interpretations, and he described the eligibility question as a "good faith dispute."

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Ian McLean, an attorney representing the city of Fargo, speaks to Judge Stephannie Stiel on Monday, Nov. 1, 2021, at the Cass County Courthouse. The city of Fargo has asked the court to decide whether Mayor Tim Mahoney is eligible to place his name on the city election ballot in June. Alyssa Goelzer / The Forum
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He said, however, that any interpretation that argues for allowing someone to serve more than four successive terms on the city commission was not a reasonable interpretation of city election rules.

In presenting her arguments, Norgard cited something called "the canon of democracy," which she said is a body of decided case law that asserts a presumption of eligibility exists in cases where restrictions on eligibility are unclear.

Under that doctrine, she said, "If it's not clear that he (Mahoney) can't run, then I think he should be allowed to run."

According to information provided to the court, Mahoney's view of election rules would make it possible for someone to remain on the city commission continuously for perhaps 28 years, as opposed to the approximately 16 years asserted by the city attorney's reading of election rules.

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Cass County District Court Judge Stephannie Stiel asks questions of Fargo Mayor Tim Mahoney’s attorney, Tami Norgard, on Monday, Nov. 1, 2021. Alyssa Goelzer / The Forum
Alyssa Goelzer / The Forum

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"I'm asking if it (the 28-year period) is an absurd result," Stiel said, directing her question to Norgard.

Norgard said if following election rules results in a string of terms the city commission feels is too long, it is the job of the city commission to change its election rules.

Mahoney's election history

According to information the city filed with the court:

Mahoney first became a member of the city commission on Sept. 27, 2005, following his victory in a special city election to fill a vacancy on the commission, with the remainder of that term being less than four years.

In June 2006, Mahoney was reelected to serve his first full four-year term on the city commission.

In June 2010, Mahoney was reelected to serve his second full four-year term on the city commission, and in 2014 he was reelected to serve his third full four-year term, while also being appointed deputy mayor.

In June 2014, Dennis Walaker, who was mayor at the time, was reelected as mayor.

Walaker died in December 2014, and as deputy mayor Mahoney began serving as acting mayor.

The city set a special election for April 28, 2015, to elect someone to serve out the remainder of Walaker's June 2014 to June 2018 mayoral term.

As required by a Fargo Home Rule Charter provision, in late January of 2015 Mahoney resigned his city commission office, with the resignation to take effect two weeks after the special election.

At the same time, Mahoney submitted a petition to run for mayor, and he won.

According to the petition, Mahoney became mayor on May 12, 2015, the same day his resignation as city commissioner took effect. Tony Gehrig became a city commissioner that same day, as well, filling the seat vacated by Mahoney's resignation as a commissioner.

In June 2018, Mahoney was reelected to serve a four-year term as mayor, which commenced in June of 2018 and expires in June of 2022.

Prior to the city filing the petition in August, Johnson reiterated a stand he put in writing several years ago holding that Mahoney had reached the end of his eligibility to run again, either for the mayoral seat or a new term on the city commission.

In an opinion he provided the commission this summer, Johnson acknowledged the city rule that states "any member elected to a term of less than four years as a result of a vacancy on the board shall be eligible to serve three additional four-year terms" could be interpreted in a way that supports an argument that the mayor is eligible to run again.

However, he said, that interpretation fails to hold up given the full wording of the city's term limit rules, which go on to state that any member who has served as mayor as well as city commissioner may not serve more than four successive four-year terms.

At an impromptu press conference after Monday's hearing, Norgard stressed that based on established case law the presumption of candidacy should be granted whenever there is ambiguity regarding a candidate's qualifications.

Mahoney agreed.

"If they (voters) don't want to elect me again, they have the opportunity to do it at the ballot box," Mahoney said.

If the judge issues a ruling unfavorable to their case, Mahoney and Norgard said they plan to launch a legal challenge.

I'm a reporter and a photographer and sometimes I create videos to go with my stories.

I graduated from Minnesota State University Moorhead and in my time with The Forum I have covered a number of beats, from cops and courts to business and education.

I've also written about UFOs, ghosts, dinosaur bones and the planet Pluto.

You may reach me by phone at 701-241-5555, or by email at dolson@forumcomm.com
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