North Dakota Supreme Court Highlights
By Joshua A. Swanson and Ian McLean
Authors’ Note and Caveat: The following cases of interest were recently decided by the North Dakota Supreme Court. Because the following contains the authors’ summary of the decisions, the reader is encouraged to read the entire published decision to determine its precedential value, if any, in any given case.
Bjerke v. North Dakota Legislative Assembly, et al., 2026 ND 118. Filed on 6 / 25 / 26.
In 2022, North Dakota voters approved a constitutional amendment imposing term limits on members of the legislative assembly. The amendment also created Article XV, § 4, which provides the legislative assembly may not propose a constitutional amendment altering or repealing those term limits. Instead, that authority is reserved to the people through the initiative process.
During the 2025 Legislative Session, the legislative assembly adopted Senate Concurrent Resolution 4008, proposing to amend the term limits and repeal Article XV, § 4. The measure was scheduled to appear on the November 2026 general election ballot.
Members of the sponsoring committee for the 2022 term-limit initiative petitioned the Supreme Court to exercise its original jurisdiction. They sought a declaration that the legislative assembly lacked constitutional authority to adopt the resolution and an injunction preventing the secretary of state from placing the measure on the ballot. The legislative assembly argued the dispute was not ripe and the petitioners lacked standing.
The Supreme Court concluded the case warranted the exercise of its discretionary original jurisdiction because it involved an issue of great public importance. The Court also held the petitioners had standing and the case was ripe because they challenged the legislature’ s authority to place the measure on the ballot – not the constitutionality of the proposed amendment itself.
On the merits, the Court concluded the plain language of Article XV, § 4 expressly limits the legislative assembly’ s general authority to propose constitutional amendments. Because Article XV, § 4 provides that, " notwithstanding " Article IV, § 16, only the people may propose amendments altering or repealing legislative term limits, the legislature lacked authority to adopt the resolution.
The Court declared the resolution and proposed ballot measure void, enjoined the secretary of state from placing the measure on the November 2026 ballot, and denied the petitioners’ request for attorney’ s fees.
Egan v. Union Carbide Corp., 2026 ND 140. Filed on 7 / 9 / 26.
Egan appealed from a judgment dismissing his claims against Union Carbide Corporation for lack of personal jurisdiction. In affirming, the Supreme Court held that registering to do business in North Dakota, by itself, is not sufficient contact for jurisdiction to attach to a foreign corporation; and negotiating dismissal of the lawsuit in a prior action did not constitute the purposeful availment due process required for personal jurisdiction. The Court also held that failure to assert an affirmative defense in a lawsuit dismissed without prejudice did not bar the defense in a subsequent case.
Egan brought claims related to asbestos exposure against Union Carbide and other defendants in a previous case, and subsequently stipulated to dismiss his claims against Union Carbide in that litigation without prejudice. Egan then filed the present lawsuit against Union Carbide and other defendants, alleging the defendants caused asbestos to be placed in the stream of commerce and he was injured by exposure. Union Carbide filed an answer affirmatively pleading the defense of lack of personal jurisdiction.
Union Carbide argued it was a foreign corporation organized under New York law with a principal place of business in Texas, and claimed it did not have sufficient contact with North Dakota for courts here to exercise personal jurisdiction over it. Egan replied, asserting Union Carbide waived its defense by not raising it in the earlier litigation, and the company consented to personal jurisdiction in North Dakota by registering to do business here.
North Dakota courts use a two-part test to determine whether personal jurisdiction exists over a nonresident. The district court must first ensure the requirements of the state’ s long-arm provision, N. D. R. Civ. P. 4( b)( 2), are satisfied. If those requirements are met, the court must next determine whether due process is satisfied. To satisfy due process concerns, the nonresident defendant must have sufficient minimum contacts with North Dakota so the exercise of personal jurisdiction does not offend traditional notions of fair play and substantial justice.
Joshua A. Swanson is a shareholder at Vogel Law Firm in Fargo where he practices energy law, construction and property law, and general litigation.
Ian McLean is a shareholder at Serkland Law Firm in Fargo where he practices in commercial litigation, municipal and education law, and criminal law.
24 THE GAVEL