STATE OF NORTH DAKOTA IN DISTRICT COURT COUNTY OF BURLEIGH SOUTH CENTRAL JUDICIAL DISTRICT os 1-2018-CV-024¢ Kimberly Krohn, M.D., Eric Johnson, Case No. 08-2018-CV-02464 MD,, Anthony Amold, Krisanna Peterson, and Wyatt Ell, Petitioners, ORDER DENYING PETITION FOR v WRIT OF MANDAMUS. Wayne Stenehjem, Attomey General of North Dakota, Respondents. BACKGROUND [$1] This matter is before the Court on a Perition for Writ of Mandamus filed by Petitioners Kimberly Krohn, M.D., Eric Johnson, MJ, Antheny Arnold, Krisanna Peterson, and Wyatt Ell. On September 24, 2018, Petitioners filed a Petition for Writ of Mandamus with attachments and Brief in Support of Petition for Writ of Mandamus with attachments, [DE 1, 9] In the Perition, Petitioners alleges (1) Wayne Stenehjem, Attorney General of North Dakota, failed to follow the law requiring this Court to compel him to withdraw from Texas et al. v. United States of America, (No. 4:18-C1V-00167-0, N.D. Texas 2018) (Count 1) and (2) Stenehjem breached his duty to defend the benefit provided to North Dakota resideats in Section 50-24.1-37 of the North Dakota Century Code by joining Texas et al. (Count 11). Id. Petitioners further allege Stenehjem has no standing to represent North Dakota residents patens patriae in an action against the federal government. Id. [92] Respondent, Wayne Stenehjem, Attorney General of North Dakota, resists the Petition 108-2018-CV-02464 Page 2 of 4 arguing there is no clear legal right for this Court to compel what Petitioners have requested under Section 32-34-01 and requests this Court dismiss the Petitioner's Petition in its entirety. (DF. 26, 28) [$3] On October 18, 2018, Petitioners filed a Request for Hearing. Subsequently, a hearing was scheduled for November 26, 2018. On October 24, 2018, Petitioners filed a Request for Expedited Hearing with attachments, Petition for Writ of Mandamus with attachments, Brief in Support of Petition for Writ of Mandamus with attachments, and an Appendix with the North Dakota Supreme Court. The North Dakota Supreme Court considered the matter and, on October 31, 2018, filed an Order of Denial, denying the relief requested by Petitioner. [DE 46; “The Court considered the matter, and ORDERED, the relief requested is DENIED.” LAW AND DECISION [4] _ Section 27-02-16 of the North Dakota Century Code governs issuance and return of writs by the Supreme Court. The supreme court, subject to such regulations and conditions as it may prescribe, always must be open for the issuance and return of all writs and process which it may lawfully issue and for the hearing and determination of the same. Any judge of said court may order the issuance of any such writ or process and prescribe the time and manner of service and the time and place of return of the same. . .. Any district court or any judge thereof before whom any writ is made returnable as, prescribed in this section is authorized to carry into complete execution all of its judgments, decrees, and determinations, subject to appeal as provided by law N.D.C. § 27-02-16. [45] Here, the North Dakota Supreme Court has spoken. The writ was not made returnable, Instead, the Supreme Court considered the matter and, on October 31, 2018, filed an Order of Denial, denying the relief requested by Petitioner. [DE 46] Therefore, while this Court is authorized to carry into complete execution all of its judgments, decrees, and determinations, subject to appeal as provided by law, nothing remains for this Court (o rule on,Page 3 of 4 [96] Assuming without finding that the Supreme Court had retumed the wrt to district court, this Court would have nonetheless denied the relicf requested. Under Section 32-34-01 of the North Dakota Century Code: The writ of mandamus may be issued by the supreme and district courts to any inferior tribunal, corporation. board, or person to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled and trom which the party is precluded unlawfully by such inferior tribunal, corporation, board, or person. (97) The party secking a writ of mandamus bears the burden of demonstrating a clear legal right Krabseth v. to the performance of the particular acts sought to be compelled by the writ Moore, 1997 ND 224, § 6, 571 N.W.2d 146. He must also demonstrate there is no other plain, speedy and adequate remedy in the ordinary course of law. Wilson v. Koppy, 2002 ND 179, § 13, 653 N.W.24 68, [$8] Here, Petitioners have failed to meet their burden. Generally, Petitioners fails to cite authority in support of their arguments, or their arguments without merit. As such, the Court finds as follows: First, Petitioners do not have a clear legal right for the court to mandate that the Attomey General appoint special assistant attorneys general to represent the State in Texay et al. Second, contrary to Petitioner's assertion, the Attomey General is not represented by attorneys in Texas et al. Third, only the Attorney General may from the Texas Atorney General's offi represent the state. Discretionary litigation decisions, such as withdrawal from Texas et al., lie wholly within the authority of the Attorney General, not the Court. Fourth, the Attorney General does not violate any duty to defend state statutes trom constitutional challenges when he appropriately challenges an unconstitutional federal law, Finally, this Court does not have subject matter jurisdiction over the Attorney General's compliance with Texas local rules. Similarly, this