Lead Opinion
This is аn appeal from a judgment rendering a verdict for the defendants. The action was dismissed on its merits, and defendants were awarded their costs and disbursements in the amount of $173.75. The district court concluded that the document which plaintiff sought access to was not a public record, and therefore it was not subject to NDCC § 44-04-18. Determining that this appeal is moot, we dismiss.
John J. Gosbee sought access to a document two Morton County officials had in their possession. The document in question was a draft of a lease that was still in preliminary rough draft form. A Bismarсk attorney had drafted the lease for the owners of some land in Morton County that was tentatively going to be used for a ski resort. The two officials in question were Richard Bendish, Morton Cоunty Commissioner, and Paul E. Trauger, Morton County Auditor. Both the officials and the county denied Gosbee access to the lease, so Gosbee brought a declaratory judgment actiоn in district court. The specific relief requested in the complaint was to inspect the lease, and to be awarded costs and expenses. After filing, but before trial, Gosbee mаde an uncontested motion requesting that a copy of the lease in the trial court’s possession be released to him. That motion was granted and complied with. At trial, the trial court ruled that the issue was not moot, and made the following conclusions of law:
“1. That the plaintiff has failed to prove that the draft lease involved was a public record subject to NDCC § 44-04-18.
“2. That to allow plaintiff to obtain the draft lease would discourage open discourse and inquiry regarding economic development.
“8. While the draft lease may have сontained the seeds of a potential public record, it did not germinate into one.
“4. That the draft lease was not a public record, and requiring its production or inspectiоn by plaintiff, would destroy or hinder the seeds of economic development before they had a chance to blossom.”
On appeal Gosbee presents two issues for review. First, whether there is a “germinating seed” exception to the North Dakota public records law; second, whether the North Dakota Rules of Professional Conduct forbid pro se attorneys from testifying in their own cases. The specific relief requested is reversal of the trial court’s judgment, and a remand of the case to the trial court in order that Gosbeе may enter an appropriate certification of costs at trial and on appeal.
Before we reach the issues raised by Gosbee, we need to address whether we will exercise jurisdiction to consider this appeal. Of particular concern is the fact that Gosbee has already received a copy of the lease. Our law is well established that courts cannot give advisory opinions, and appeals will be dismissed if the issues become moot or academic, such that no actual controvеrsy is left to be determined. Walker v. Schneider,
The fact that this was brought as a declaratory judgment proceeding does not eliminate the question of moótness. Although the purpose of declaratory judgment relief is to provide a method for parties to a justiciable controversy to settle uncertainties about rights, status, and other legаl relations, NDCC ch. 32-23; e.g., In re McMullen,
One way an appeal can become moot is the occurrence of events that result in the court’s inability to rendеr effective relief. E.g., Gasser,
However, even when technically moot, we will address issues when they are of great public interest and involve the authority and power of public officials, e.g., State v. Liberty Nat’l Bank and Trust Co.,
“'more than mere curiosity; it means something in which the public, the community at large, has some pecuniary interest, or somе interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as the interest of the particular localities which may be affected by the matter in quеstion.’”
Forum Publishing Co.,
The lease Gosbee originally sought from Bendish and Trauger does not rise to the level of public imрortance necessary to merit our review. Gosbee argues the controversy over proposed county funding of the ski resort in the form of MIDA bonds raises the lease to a matter of public importance. Although Gosbee’s reasons for seeking the lease include curiosity,
The insufficiency of public importance determination is bolstered even furthеr by the existence of a statute that exempts certain economic development records from disclosure under our open records law. NDCC § 44-04-18.2(1),
Although this issue of defining a publiс record may arise in the future, that alone does not empower us to render a purely advisory opinion. Rolette Educ. Ass’n v. Rolette Pub. Sch. Dist. No. 29,
For the above stated reasons, we dismiss this appeal.
Notes
. In his appellate brief, Gosbee argues that refusal to allow access to the lease shоuld be evidence there was something to hide.
. "44-04-18.2. Certain economic development records exempt from disclosure.
1. The following economic development records and information are not public records subject to section 44-04-18 and section 6 of article XI of the Constitution of North Dakota:
a. Records and information pertaining to a prospective location of a business or industry, including the identity, nature, and location of the business or industry, when no previous public disclosure has been made by the business or industry of the interest or intent of the business or industry to locate in, relocate within, or expand within this state. This exemption does not include records pertaining to the application for pеrmits or licenses necessary to do business or to expand business operations within this state, except as otherwise provided by law.
*454 b. Trade secrets and commercial or financial information received from a person, business, or industry that is interested in or is applying for or receiving financing or technical assistance, or other forms of business assistance.”
Concurrence Opinion
concurring in result.
I concur in the result. The issue is moot because Mr. Gosbee has received the document. The issue involved is not of great public interest. The statute that appears to control, N.D.C.C. § 44-04-18.2, was not argued to or considered by the trial court — a situation not likely to recur.