971 N.W.2d 892
N.D.2022Background
- In June 2020 Schmitz sued the State Board of Chiropractic Examiners alleging violations of North Dakota open records and open meetings laws related to two executive-session recordings (April and May 2020).
- This Court’s prior opinion (Schmitz I) reversed dismissal and remanded for an in‑camera review to determine whether executive-session content exceeded the attorney‑consultation exemption.
- On remand the district court conducted the in‑camera review, ordered limited disclosure from the April recording, refused disclosure from the May recording, and denied Schmitz’s request for attorney’s fees.
- On this appeal the Supreme Court (majority) declined to revisit the propriety of the in‑camera review (law‑of‑the‑case), held § 44‑04‑19.1(5) unambiguous, applied an abuse‑of‑discretion standard to the in‑camera review, and ordered additional discrete portions of both recordings disclosed.
- The Court reversed the denial of attorney’s fees, holding the district court abused its discretion by penalizing Schmitz for bringing a direct civil action (which the statutes permit) and remanded for a fee determination.
- Two justices (McEvers and VandeWalle) wrote separately: McEvers would protect more of the recordings as attorney consultation; VandeWalle would affirm the district court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Whether the mandated in‑camera review violated due process | Schmitz: in‑camera review deprived him of constitutional due process | Board: in‑camera review was ordered by this Court and proper | Not addressed on merits — law of the case requires in‑camera review and Schmitz waived challenge on this appeal |
| 2. Scope and meaning of “attorney consultation” in N.D.C.C. § 44‑04‑19.1(5) | Schmitz: the Board exceeded the exemption; many portions are not protected | Board: discussions were attorney consultation concerning adversarial administrative proceedings | Court: statute unambiguous; two distinct bases for closure; first clause (adversarial proceedings) applied here, so some discussions qualify but not all |
| 3. Standard and result of appellate review of district court’s in‑camera review | Schmitz: district court misapplied the law and withheld non‑protected discussion | Board: district court properly exercised discretion in protecting the recordings | Court: abuse‑of‑discretion standard applies; court found some withheld portions were not attorney consultation and ordered specific additional timestamps disclosed |
| 4. Whether Schmitz is entitled to attorney’s fees | Schmitz: prevailing party on open‑records claim and statute permits fees | Board: Schmitz should not get fees because he could have used administrative remedy and prevailed only partially | Court: district court abused discretion by denying fees based on choice to file civil action; reversed and remanded for fee award |
Key Cases Cited
- Schmitz v. State Bd. of Chiropractic Exam’rs, 958 N.W.2d 496 (N.D. 2021) (prior remand directing in‑camera review of executive sessions)
- Ring v. N.D. Dep’t of Human Servs., 963 N.W.2d 255 (N.D. 2021) (explaining the law‑of‑the‑case doctrine)
- Reems on Behalf of Reems v. Hunke, 509 N.W.2d 45 (N.D. 1993) (treated in‑camera inspection akin to discovery and applied abuse‑of‑discretion review)
- Muraskin v. Muraskin, 336 N.W.2d 332 (N.D. 1983) (prior exercise of appellate review over in‑camera matters)
- State v. Bearrunner, 921 N.W.2d 894 (N.D. 2019) (statutory interpretation principles; give words their plain and ordinary meaning)
- Estate of Smith v. 968 N.W.2d 157 (N.D. 2021) (abuse‑of‑discretion includes misapplication of law)
- Estate of Johnson v. 897 N.W.2d 921 (N.D. 2017) (abuse‑of‑discretion standard discussion)
- Estate of Finch v. 963 N.W.2d 754 (N.D. 2021) (standard for review of attorney’s‑fees rulings)