Lead Opinion
[¶ 1] Ounjаniese Brown appeals from a district court judgment denying her request for review of Burleigh County Housing Authority’s (“BCHA”) decision to terminate her housing assistance benefits. We conclude the district court lacked jurisdiction over the matter, and we vacate the court’s judgment and orders.
I
[¶ 2] Brown was a recipient of benefits under a federal housing assistance program administered in Burleigh County by BCHA. In February 2012, BCHA terminated Brown’s housing assistance benefits. On March 9, 2012, Brown filed a notice of appeal and specification of error in the district court, stating she was appealing BCHA’s February 2012 decision to terminate her housing assistance under N.D.C.C. § 28-32-42. Brown alleged BCHA’s decision violated her constitutional rights, she did not receive a fair hearing, and BCHA failed to consider evidence she presented.
[¶ 3] In March 2012, BCHA filed a motion to dismiss, arguing it is not an agency for purposes of the Administrative Agencies Practices Act (“AAPA”), N.D.C.C. ch. 28-32, and therefore thе district court does not have jurisdiction to hear Brown’s appeal.
[¶ 4] On March 9, 2012, Brown moved for an order staying BCHA’s decision to terminate her housing assistance benefits and for a temporary injunction prohibiting BCHA from discontinuing her housing assistance. On April 12, 2012, the district court granted Brown’s request and entered an order staying BCHA’s decision to terminate Brown’s housing assistance and ordered BCHA was temporarily enjoined from adversely affecting Brown’s benefits. On April 30, 2012, Brown moved tо enforce the temporary injunction and to require BCHA to remit rental payments to Brown’s landlord.
[¶ 5] On April 26, 2012, BCHA filed a supplemental motion requesting dismissal, arguing Brown’s appeal from BCHA’s decision was untimely. On May 21, 2012, the court denied BCHA’s motion tо dismiss and granted Brown’s motion to enforce the injunction. The court ordered BCHA to immediately give Brown an informal hearing on her eligibility for housing assistance.
[¶ 6] BCHA held an informal hearing and issued a decision. The hearing officer ruled the state courts lack jurisdiction,
[¶ 7] On August 29, 2012, Brown moved for review after remand, requesting the court review BCHA’s decision. Brown alsо moved for contempt and to compel and enforce the court’s prior orders. Brown alleged BCHA was in contempt for failing to pay her housing assistance benefits as the court ordered and for failing to give her a meaningful hearing about her eligibility for benefits.
[¶ 8] On November 1, 2012, after a hearing, the court entered an order denying Brown’s motion to compel and for contempt and her request for review. The court found that BCHA was not in contempt for failing to pay Brown’s housing assistance because her eligibility had ceased prior to the court’s order staying BCHA’s decision to terminate her benefits and that BCHA scheduled an “administrative” hearing pursuant to court order. A judgment wаs subsequently entered.
[¶ 9] Brown appealed the district court’s decision, arguing the district court has jurisdiction to review BCHA’s decision and BCHA’s decision is not in accordance with the law and violates her constitutional rights. BCHA moved to dismiss Brown’s appeal, arguing the district court did not have jurisdiction and Brown’s appeal of BCHA’s decision was untimely.
II
[¶ 10] The dispositive issue on appeal is whether the district court had jurisdiction to review BCHA’s decision under N.D.C.C. ch. 28-32, the AAPA.
[¶ 11] Brown filed a notice of appeal and specification of error in the district court under N.D.C.C. § 28-32-42, appealing BCHA’s decision to terminate her housing assistance. Chapter 28-32, N.D.C.C., authorizes limited judicial review of an administrative agency’s deсision. Ennis v. North Dakota Dep’t of Human Servs.,
board, bureau, сommission, department, or other administrative unit of the executive branch of state government, including one or more officers, employees, or other persons directly or indirectly purporting to act on behalf or under authority of the agency. An administrative unit located within or subordinate to an administrative agency must be treated as part of that agency to the extent it purports to exercise authority subject to this chapter.
N.D.C.C. § 28-32-01(2). Cеrtain governmental units are specifically excluded from the definition of an administrative agency for purposes of the AAPA. Id.
[¶ 12] Section 28-32-01(2), N.D.C.C., does not specifically exclude city and county housing authorities from the definition of an administrative agency. However, BCHA argues it is not an administrative agency as defined by the statute because it is not an administrative unit under the executive branch of state government.
[¶ 13] City and county housing authorities are creаted under N.D.C.C. § 23-11-02, which provides:
In each city and in each county of the state, there is created a public body corporate and politic to be known as the “housing authority” of the city or county, as the case may be. Such authority may not transact any business nor exercise any powers granted by this chapter until the governing body of the city or of the county, as the case may be, by proper resolution, declares that there is need for an authority to function in such city or county.
Section 23-11-11, N.D.C.C., lists the housing authorities’ powers and duties.
[¶ 14] City and county housing authorities are public corporations. See N.D.C.C. § 28-11-02; Fetch v. Housing Auth. of Cass Cnty.,
[¶ 15] Furthermore, BCHA is not an administrаtive unit located within or subordinate to an administrative agency. In other cases this Court has held that the AAPA applies when a county board administers a federal program subject to the direction and supervision of a state executive agency. See Schmidt v. Ward Cnty. Soc. Servs. Bd.,
[¶ 16] Although BCHA administers a federal program like the county social ser
[¶ 17] BCHA is a public corporation and is not an administrative unit of the executive branch of state government, and therefore we conclude the AAPA does not apply to or provide for judicial rеview of BCHA’s actions. Under N.D.C.C. § 23-11-11(2), a city or county housing authority can sue or be sued in state court and Brown could have brought an independent action against BCHA. However, Brown brought the action as an appeal of BCHA’s decisiоn under N.D.C.C. ch. 28-32, and therefore the district court did not have jurisdiction.
[¶ 18] A court must have jurisdiction to issue a valid order. In re M.W.,
Ill
[¶ 19] We conclude the district court did not have jurisdiction, and we vacate the court’s judgment and оrders.
Concurrence Opinion
concurring specially.
[¶ 21] In this case we vacate the district court’s judgment because “the district court did not have jurisdiction.” I agree with that disposition. I write separately only to note that a court has the jurisdiction to determine whether or not it has jurisdiction of the subject matter and jurisdiction of the parties. James River Nat’l Bank v. Haas,
[¶ 22] Here the district court denied Brown’s request for review of the decision of the hearing officer. Part of that decision was the conclusion that the Burleigh County Housing Authority was not a state agency within thе definition of N.D.C.C. ch. 28-32, the Administrative Agencies Practices Act.. The district court would therefore be without jurisdiction to hear an appeal from the decision of the Bur-leigh County Housing Authority under that Act. To that extent it might appear wе should affirm the judgment of the district court rather than vacate it. However, as our opinion notes, the district court, without jurisdiction to do so in the first instance, ordered the hearing which resulted in that conclusion. I therefore agree that
[¶ 28] DANIEL J. CROTHERS, J., concurs.