*1 BLOMQUIST, Petitioner Daniel N. Appellant, v. CLAGUE, of Police Chief
James Dakota, North of Grand O’Neil, appointing
Mayor authori C. P. Appellees.
ty, Respondents and No. 9698.
Civ. Dakota.
Supreme of North 1980.
Rehearing Denied March *2 confusing, conflicting,
this case are at times incomplete. and 1978, evening of March Blom- On the traveling in his quist duty off and van off-duty police officers. with two other westerly proceeding in a di- They Highway 2 in Grand rection on U. S. No. picked up a hitchhiker Forks when in who indicated a desire travel with conversation direction. From hitchhiker, Blomquist discovered on bail for a theft of- hitchhiker out soon turned to the fense. Conversation drugs Blomquist suspected subject of in narcot- the hitchhiker was involved trafficking. Blomquist ics told the hitch- marijuana pounds he hiker that had 500 Dvorak, Mack, Moosbrugger, Ohlsen & for sale. appellant; Forks, petitioner and for Grand Dvorak, by Shirley A. Grand Forks. argued following morning, The March about Blomquist related the information his Forks, Letnes, Fiedler, & Grand Marshall previous evening with conversation argued by respondents appellees; agent the hitchhiker to a narcotics in Grand Marshall, John Grand Forks. F. Blomquist Forks. claims that his intention agent setting narcotics in assist the PAÚLSON, Justice. up marijuana. a “controlled sale” appellant, Daniel N. however, morning, same the hitchhiker had brought appeal [“Blomquist”], this from attorney attorney and told the called his Dis- judgment County of the Grand Forks with the three about the conversation men petition his denying for writ of trict evening. in On his previous the van mandamus. The district court ruled that advice, went to attorney’s the hitchhiker his administra- in department the sheriff’s Grand “dis- tive remedies in connection with his up agreed cooperate setting in City of Forks Police missal” from the Grand buy” “controlled from three individuals Department and as a result of this Maixner, van. who had Dale remedy, failure seek agent informed narcotics in properly mandamus could not issued. working that the hitchhiker was opinion, we find For reasons set forth attempt with the in an to make a its that the trial court abused discretion from, purchase the men who had controlled denying petition writ mandamus. purchase been in the van. No such sale or reverse and remand to the district court We completed fact was ever because of the Blomquist be permit- with instructions that police were the seller involved both evidentiary hearing to ted an determine buyer proposed the same transaction.' “resignation” was voluntary whether his and, involuntary, involuntary, whether or 14, 1978, Blomquist March On called proper procedures were followed office into the of Chief Police James remand, bringing On dismissal. Clague [“Clague”] reprimanded and orally order that Lawrence A. Le- Honorable we. The follow- his unauthorized activities. clerc, East a district Central again orally repri- day, District, preside Judicial activities, time manded for Hintz Forks Police evidentiary Captain fact no of the Grand Because of the matter, Department. was held in this the facts August 9,1978, which had to be again On however, postponed, Attorney Clague’s in- because into office. called com- F. John Marshall suffered a heart attack Blomquist that had formed argument, earlier Mar- felony by attempting to deliver a on that oral mitted According to shall conceded that he had had a heart substance. Blom- controlled , account, he or else attack on but that quist’s was told *3 charges only days missed 21 of work thereafter. fired and would be he would be explain eight That op- delay asked for does not pressed against him. He an scheduling hearing months in anew the on portunity to call Truman Sorenson of the Union, application to discuss the the for a writ of mandamus. in order Teamsters with him. The Teamsters Union matter 11, 1978, Blomquist filed On December employees the law enforce- represents of all tort tort ac- against city. That agencies in Grand Forks. told ment appeal only tion relevant on this because charges felony against Sorenson existing already it added to the confusion in advised Sorenson County the case. The Grand Forks clerk resign. Blomquist then submitted his District filed both the tort action and 16, 1978. resignation by letter dated action in the file be- mandamus same Clague’s secretary typed by was The létter were because captions cause the similar and Clague accepted Blomquist’s in his office. filing were express no instructions as to “resignation” the same Blomquist’s counsel. The received from commingling papers in one file of the in For the next few weeks was problems losing job and believed that two actions caused considerable upset about made, espe- that nothing do motions he could it various there change resigned cially than be with demands because he rather fired. Finally presiding judge took control of time he discovered that
After some cases, matter, surrounding his consolidated the two circumstances decided he would hear cases. The April On that could be considered a dismissal. presiding hear these hearing judge’s decision to requested on his court, by approved cases was this based on “dismissal” before the Grand Forks representations in a let- made this court Civil Commission [“Commission”]. judge presiding ter from the district. “resigned” days This was 27 after he clarify fact at That letter did not Clague’s Chief office. time, separate two actions were that request Blomquist’s matter of action. though filed as were one hearing came the Commission for before application for writ of mandamus 1978, 27, April post- but was decision 27, 1979, and finally heard on 1978, 15, poned until June order that the trial without an was denied appear. On Blomquist’s attorney could hearing being held. 15, Blomquist’s request for a June denied and notified of Ass’n Fargo said in Ed. v. This court 27, letter dated 1978. this June Paulsen, (N.D.1976), 842, 849 it a trial court’s brought application then will not overturn 26,1978, denial writ of mandamus unless there July writ of mandamus dated of a for a the court has abused its finding thereof and filed an affidavit 32-34-06, N.D.C.C., 28, reason, For some discretion. Section July 1978. dated if an es provides jury for a determination mandamus was application writ of 3,1979, fact in the although question presented sential April until it never served application a writ of mandamus and city attorney appears 32-34-06, disputed answer. signed an of service dated Section admission N.D.C.C., questions disputed account of this indicates July the court application of fact should be resolved before that a on the matter is underly- legal on the issues proceeds to rule writ of mandamus scheduled for the 238 dismissal, untary is tantamount to a dis for a writ of mandamus. case, court found charge, layoff. Reynolds v. instant See Blomquist’s employ-
that the termination Angeles, Cal.App.3d Los 43 118 Cal. not a dismissal resignation and ment was a Rptr. (1974) [resignation police officer 59 dismissal, it Blom-. if was Horrall, fraud]; Temple v. 92 obtained timely to file quist failed (1949) [resig 909 Cal.App.2d 206 P.2d hearing. logic, court On obtained coer nation of officer based its conclusion that Cairns, cion]; 20 127 Moreno v. Cal.2d relief because he entitled mandamus (1942) P.2d fire chief forced [assistant reme- Davis, duress]; Cobac under court, however, its based dies. The trial 148,162 N.J.Super. A.2d [alcohol findings made with- of fact conclusions on inspector to re beverage ic control forced evidentiary hear- having ever held an out Court, sign The California under duress]. case, facts an evi- ing. Under the Moreno, at supra 127 P.2d stated: *4 dentiary hearing required and we hold resignations are akin [involuntary] “Such to it an abuse of discretion not offs, suspensions, discharges by to or lay provide one.1 of the element of coercion and virtue question The first which must be only bear a formal resemblance to volun- Blomquist’s whether or not answered is resignations. is tary person Whenever a “resignation” reality A a dismissal. his employment by severed from coercion of resignation by threat criminal obtained the severance is effected not his own and, prosecution obtained duress is A superior. will but the will of a therefore, Barnes, invalid. Hassett person who is forced to is thus in (1960). A.D.2d 206 N.Y.S.2d position discharged, who is not one Blomquist, he was According to threatened of one who exercises his own will to sur- to a prosecution attempting with deliver voluntarily.” his employment render Clague controlled substance. Chief did address this issue in the affidavit which he it has a Once been determined that submitted, Clague and, argues resignation therefore, counsel for involuntary but Blomquist’s alleged dismissal, the evidence analysis tantamount to wrongdoing criminal to be referred to proceed next the issue of whether attorney, regardless the state’s whether or If not the dismissal is valid. it is found resignation or not was obtained. invalid, discharged dismissal evidentiary, trial should have held an employee is entitled to reinstatement. If whether or not Blom- to determine valid, the dismissal is found to be ques quist’s through resignation was obtained tion becomes dis then whether not the prosecution. threats of criminal Such a charged employee failed to exhaust admin question question fact and its resolu remedies. istrative Courts have held that a required tion is before a decision can be employee involuntarily civil service who has presented issues in' rendered on the of law resigned must application writ of. mandamus. provided remedies for in cases dismissal. Moreno, g., supra; Reynolds, See e. Whether the termination Blom- supra. city Counsel for the contends that resignation quist’s employment was-a or a Blomquist failed exhaust his administra it was depends dismissal whether volun comply tive remedies because he failed to tary. courts with Other faced Code, 12(e) of the Grand Forks the same issue. Those courts have consist § ently provides which is held that invol which follows: Blomquist’s produce (five requested counsel witnesses witnesses court) hearing, summarily present at hear- but such de- judge, though ing writ of nied on the mandamus. prepared go forward with the evidence authority may, argued by It has been counsel for appointing “The city mayor city that the attor and the just misconduct, other inefficiency, or ney were informed time, cause, any employee any at dismiss and that advised Chief to ob immediately, pay, with without effective Blomquist’s resignation. again, tain Once attorney as to city approval evidentiary hearing lack of an in this employee being dismissed legality. The truth-ascertaining process. clouds the case statement of shall be furnished written part fact-finding process, As of its copy discharge, for the the reasons evidence to be court should have allowed Com- filed with shall be Civil presented by both would have sides which mission. may- indicated the extent of the control the a no- employee wishing appeal “An bringing or of Grand Forks exercised re-. must file a written tice of dismissal Blomquist’s dismissal. The trial quest with the Civil Service then have whether court should determined (15) calendar within fifteen Commission or not the Grand Code would the effective date of the dismiss- days of mayor authority delegate allow the receiving the notice of al. After written officer; or not discharge whether hear- hold a appeal the Commission shall chief authority delegated can to the days. If thirty so, calendar and, within police; or riot there whether delegation authority the dis- the Commission determines was a valid warranted, this case. employee is not missal *5 position to
shall be reinstated his former case, Blomquist of the facts Under salary, seniority with full restitution of griev- had no forum in which to vent his benefits.” status and all other evidentiary ances. He was entitled to an questions by appli- the hearing on raised undisputed that did not It is the for a writ of mandamus. cation request hearing days within of his a fifteen Paulsen, Fargo v. recent case of Ed. Ass’n tendered resignation. The (N.D.1976), 844 this court accepted on and the same March said: made His for prerequi- has “This court held that the later; twenty-seven days April on the issuance a writ of manda- sites to of court It is for this reason that petitioner the must show mus are that to exhaust concluded that plain, speedy, he has no and ade- that disagree. remedies. We remedy in of quate ordinary course upon it is determined remand legal right he the law and that has a clear If city compliance the action of the performance particular act to the of 12(e) compelled of of the Grand writ.” provisions sought with the to be § Code, then dismissal would least, the court should very At the district also There are several reasons be invalid. present allowed evidence invoke the city for Before the can this. remedy he showed that had no other which 12(e), ap fifteen-day limitation of right to rein- legal § and that he had clear 2(7) position of the with the Grand pointing authority, defined in statement to his § Department. points Police Those mayor of Forks City Code as the Grand Forks support of in his were raised affidavit discharge Blomquist and must allowed the writ but he was never therefor must be furnished to reasons present evidence to the contentions writing. city him cannot use in his affidavit. resignation as a subterfuge of a forced circumventing procedures means of its own that on Finally, requests procedures for which have appoint Supreme remand the Court should dismissal — ser protect in civil designed employees of Grand Forks. judge outside tactics N.W.2d very type Hospital Hagen, from the of positions vice In United (N.D.1979), held this court used here. 31755”, Application prejudice on Notice allegation there is “when court, Writ of Mandamus and on the Affidavit granting we favor presented to this separate by Mail. This where change judge” in situation file, yet a separate which should have presiding at the trial on be judge would some errors Blomquist now infers that under the merits. We believe district court caused all the clerk and the particular of this and circumstances facts ignore this mess. You will have case, should be re- Judge A. C. Bakken many dates documents. on Judge Lawrence A. Leclerc and moved evidentiary on preside at the (2) may concerned whether You be of the is in the best interests This remand. be proceedings were intended to mandamus judicial process integrity and fairness definite statement” of the com- a “more any indicate that we find and does not being sought by Attorney plaint allegations prejudice to the substance Marshall, meant the dam- of bias in favor of against Judge Bakken or complaint to show that he did age-action Department. Police the Grand Forks adequate rem- plain, speedy, not have a edy ordinary course of law. in the Section judgment and remanded reversed 32-34-02, NDCC. opinion with this proceedings for consistent upon change is ordered (3) Judge will confused Bak- You remand. hear, 12,1979, ken’s on March proceeding statement after a motion more definite ERICKSTAD; J.,C. SAND he acknowledging, on n WALLE, JJ., concur. VANDE demand copy had received change PEDERSON, Justice, concurring and dis- senting. You will be amazed can, you assumes that this writ of man- of the state- Although I concur in much damus, patrolman reinstate him as majority opinion, ment law He Department. Grand Forks Police hearing into the authorize an might anything doesn’t ask else Rip- qualify of this case has to merits to. be entitled *6 I believe ley’s “Believe it Not.” don’t face, appli- adequate amusing on its there is an Finally, you may even find it Leclerc, Judge now pending. police up cation would trained officer come you spoil drug I don’t want it for fun. new enforcement tool a fantastic things sale,” I itemizing the incredible find that a narcot- called “a controlled all agent tip target, us the Clerk of would off the in the record certified to ics officer, County, planned, target the District hand, it purchase. controlled On the other I do to comment on few the but want amusing strike as that Blom- you choicest. quist’s affidavit (1)You might wonder if there one says for writ of mandamus that he was two; Blomquist or Bloo- action or whether option resigning being “or afforded the whether James Cla- mquist plaintiff; fired,” having attorneys, when his but gue (individual) and the of Grand resignations un- found authorities critical Police) Clague (Chief of Forks or James prosecution, ar- der threat of criminal now defendants; (Mayor) P. O’Neil are the C. Blomquist resigned under a threat gue that has ever been made in and whether service felony charge. of a required by case Rules 4 either discover, did, interesting couple A to read that will as I cases NDRCivP. You special proceedings and related “'31755” was as- involve after a docket number $50,000 problems Special are Hazelton-Moffit court to the signed the clerk of Ward, Dist. No. 6 v. School suit damage against James and the Hamm, (N.D.1961), 77 N.D. Blomquist’s attorney’s secretary Holcomb v. City, that number, (1950). N.W.2d 52 A.L.R.2d file “Civil No. typed the same