FARGO — A Cass County District Court Judge said Thursday, Sept. 23, that she will expedite her review of the question of whether Fargo Mayor Tim Mahoney is eligible to run for reelection in June 2022.
Based on a directive from Fargo City Commissioners, the city of Fargo filed a petition with the court in August asking whether city code prevents Mahoney's name from being placed on the June primary ballot for the city election.
The petition essentially reflects a clash of opinion between City Attorney Erik Johnson and Mahoney, as Johnson has expressed more than once his position that Mahoney is not eligible to run again based on city code, while Mahoney maintains 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.
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 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.
In making public his desire to run in the June 2022 election, Mahoney has maintained that he is eligible to run because partial terms he served on the commission should not be included in the calculation of his term limit.
According to the petition 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 Walker, 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 2018 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.
Johnson underscored that although Mahoney transitioned from being a commissioner to being mayor on May 12, 2015, there was no point during the June 2014 to June 2018 time period when Mahoney was not a member of the city commission.
After the city filed the petition in August to have a district judge look at the eligibility question, the court granted a request from Mahoney to intervene in the legal action, as he had a personal stake in the outcome of the decision.
At a status conference held Thursday regarding the petition, Tami Norgard, an attorney representing Mahoney as an intervenor in the case, expressed to Judge Stephannie Stiel that if a decision could be rendered sometime in November it could be beneficial to Mahoney's efforts to get his name on the ballot.
Stiel said she understood that the timing of her decision held ramifications for Mahoney's ability to file as a candidate, and she said she would do what she could to render a decision as soon as possible.
She noted, however, that the district court was down three judges, and given her other duties, it might not be possible for her to render a November decision.
In court filings, Norgard said she agreed with an earlier legal opinion offered by an attorney on behalf of Mahoney that maintained his past partial terms should not be included in the calculation of what constitutes a "term" for the purposes of calculating term limits.
Stiel said she would accept written and oral arguments before making a decision.