Filed 10/23/12 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
State of North Dakota by and through
the Department of Human Services
and its Child Support Enforcement Division, Petitioner and Appellant
v.
North Dakota Insurance Reserve Fund, Respondent and Appellee
No. 20110368
Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Bruce A. Romanick, Judge.
REVERSED AND REMANDED.
Opinion of the Court by Maring, Justice.
Sheila K. Keller, Assistant Attorney General, P.O. Box 7310, Bismarck, N.D. 58507-7310, for petitioner and appellant.
Tiffany L. Johnson (argued) and Gary R. Thune (appeared), P.O. Box 400, Bismarck, N.D. 58502-0400, for respondent and appellee.
State v. N.D. Insurance Reserve Fund
No. 20110368
Maring, Justice.
[¶1] The State of North Dakota, by and through the Department of Human Services and its Child Support Enforcement Division (“the Department”), appeals from a district court order denying its application for an order to enforce an administrative subpoena. We reverse and remand for further proceedings, concluding the district court erred in determining the Department was not statutorily authorized to issue an administrative subpoena to the North Dakota Insurance Reserve Fund (“NDIRF”).
I
[¶2] The Department, through its Child Support Enforcement Division and regional child support enforcement units, enforces the child support laws of North Dakota. NDIRF is a government self-insurance pool whose members include various political subdivisions that have joined together to self-insure against legal liabilities. In July 2010, the Department issued an administrative subpoena to NDIRF directing it to provide the following information or documents:
All records and papers, regardless of physical form, in the possession of the North Dakota Insurance Reserve Fund identifying any individual who has submitted a claim to the North Dakota Insurance Reserve Fund, including the amount of the claim. This request applies to any claim that is pending on the date of service of this subpoena or has been paid within two weeks prior to the date of this subpoena.
NDIRF objected to the subpoena, contending that the Department was not statutorily authorized to issue an administrative subpoena to NDIRF and that the subpoena was vague, ambiguous, and unduly burdensome.
[¶3] The Department filed an application for an order enforcing the administrative subpoena in district court. The district court determined that the Department was not statutorily authorized to issue an administrative subpoena to NDIRF and denied the application. The district court did not address NDIRF’s arguments that the subpoena was vague, ambiguous, and unduly burdensome.
II
[¶4] Before we consider the merits of an appeal, we must determine whether we have jurisdiction.
Holbach v. City of Minot
,
[¶5] We have previously reviewed district court decisions on enforcement of administrative subpoenas when the issue has been raised in an appeal from a separately appealable judgment or order.
See
State v. Hammer
,
[¶6] The Department contends that the order in this case is appealable under N.D.C.C. § 28-27-02(1) or (5). Those provisions allow an appeal from either “[a]n order affecting a substantial right made in any action, when such order in effect determines the action and prevents a judgment from which an appeal might be taken,” or “[a]n order which involves the merits of an action or some part thereof.” Both of those statutory provisions allow appeal of certain orders entered in an “action.” An action is “an ordinary proceeding in a court of justice, by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense,” N.D.C.C. § 32-01-02, and “[a] civil action is commenced by the service of a summons.” N.D.R.Civ.P. 3.
[¶7] The Department brought its application for an order enforcing the administrative subpoena in the district court under N.D.C.C. § 50-09-08.2(1)(b) and (f), which specifically authorizes the Department and its officials, employees, and agents to subpoena the production of books, records, and papers, and to “[m]ake application to the district court to compel . . . the production of books, records, and papers.” The statutory procedure under N.D.C.C. § 50-09-08.2(1)(f) authorizing application to the district court is not “an ordinary proceeding in a court of justice” prosecuting another party for enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of an offense, nor is it commenced by the service of a summons. See N.D.C.C. § 32-01-02; N.D.R.Civ.P. 3. Thus, the statutory procedure employed in this case was not an action, and the resulting order was not appealable under N.D.C.C. § 28-27-02(1) or (5).
[¶8] Although not cited by the parties, we conclude that N.D.C.C. § 28-27-02(2), which authorizes an appeal from “[a] final order affecting a substantial right made in special proceedings,” applies in this case and supplies the statutory authority for the appeal from the district court order denying the Department’s application for enforcement of the administrative subpoena. Under N.D.C.C. § 32-01-04, “[a] special proceeding is any remedy other than an action.” The procedure provided in N.D.C.C. § 50-09-08.2(1)(f), authorizing a proceeding to enforce an administrative subpoena in district court, creates a remedy which is not an action and is a “special proceeding” under N.D.C.C. § 32-01-04. Accordingly, the district court’s order denying the Department’s application was a “final order affecting a substantial right made in special proceedings” and was appealable under N.D.C.C. § 28-27-02(2). We therefore have jurisdiction.
III
[¶9] On the merits, this case turns on the interplay between two statutes and presents a pure question of statutory construction. Statutory interpretation is a question of law, which is fully reviewable on appeal.
Haugland v. City of Bismarck
,
02-38(2). Statutes are construed as a whole and are harmonized to give meaning to related provisions. N.D.C.C. § 1-02-07;
Meier v. North Dakota Dep’t of Human Servs.
,
[¶10] As part of its authority to enforce collection of child support, N.D.C.C. § 50-
09-08.2(1)(b) authorizes the Department to “[r]equire by subpoena . . . the production of books, records, and papers.” In 2009 the legislature enacted N.D.C.C. § 26.1-02-
28, which at the time of issuance of the subpoena in this case provided:
Child support insurance data match. Before paying a claim under a contract of insurance issued in this state, an insurer or government self-
insurance pool may exchange personal information about the claimant with the department of human services or its designee. This section applies notwithstanding any provision of law making the information confidential. A person is immune from suit or any liability under any federal or state law, including chapter 12.1-13 or 44-04, for acting in good faith under this section. The court shall award reasonable attorney’s fees and costs against any person that commences an action that is subsequently dismissed by reason of the immunity granted by this section.
[¶11] NDIRF contends, and the district court agreed, that the legislature’s directive in N.D.C.C. § 26.1-02-28 that a government self-insurance pool “may exchange information” with the Department means NDIRF had discretion to voluntarily share such information, but could not be required to do so.
See
J.P. v. Stark Cnty. Soc. Servs. Bd.
,
[¶12] When a general statutory provision conflicts with a specific provision in the same or another statute, “the two must be construed, if possible, so that effect may be given to both provisions.” N.D.C.C. § 1-02-07. When statutes relate to the same subject matter, we make every effort to harmonize and give meaningful effect to each statute.
Richter v. Houser
,
[¶13] We conclude the district court erred in holding that there was an irreconcilable conflict between N.D.C.C. §§ 26.1-02-28 and 50-09-08.2(1)(b) which could not be harmonized. The fact that N.D.C.C. § 26.1-02-28 gave NDIRF the authority to voluntarily disclose information to the Department, and provided immunity if it did so, does not necessarily create absolute discretion in NDIRF to refuse to provide the information if ordered to do so by an administrative subpoena. A statutory provision stating a person “may” do certain acts does not automatically mean they may not, under any circumstances, be compelled to do the acts. The statutes may be harmonized by construing N.D.C.C. § 26.1-02-28 as authorizing NDIRF to voluntarily disclose information to the Department, and creating immunity from suit by third persons if it does so, but still allowing the Department to subpoena specific records from NDIRF.
[¶14] Before the enactment of N.D.C.C. § 26.1-02-28 in 2009, the Department clearly had authority under N.D.C.C. § 50-09-08.2(1)(b) to subpoena records from NDIRF. The enactment of the statute in 2009 allowing NDIRF to voluntarily disclose the information, with a concomitant grant of immunity, did not expressly remove that authority. Rather, reading the statutory provisions in context and as a whole, and making every effort to harmonize them, we construe N.D.C.C. § 26.1-02-28 as merely granting NDIRF authority to voluntarily disclose information without fear of retaliatory lawsuits, but without affecting the Department’s existing authority to subpoena specific records under N.D.C.C. § 50-09-08.2(1)(b). The focus of the 2009 enactment was to encourage government self-insurance pools to voluntarily participate with the Department in a data match program without fear of liability to third parties, not to revoke the Department’s already existing authority to compel disclosure of such information by subpoena under N.D.C.C. § 50-09-08.2(1)(b).
[¶15] This interpretation of the statutory provisions is bolstered by subsequent amendments to N.D.C.C. § 26.1-02-28. We have previously recognized that subsequent amendments to a statute may be used in ascertaining the legislative intent of an earlier version of the statute.
See
Fandrich v. Wells Cnty. Bd. of Cnty. Comm’rs
,
02-28(2) and (7). Thus, under the current version of the statute, the permissive “may” is still in place, but the legislature has expressly provided that a government self-
insurance pool such as NDIRF is not subject to the Department’s subpoena power under N.D.C.C. § 50-09-08.2(1) if it complies with the voluntary reporting provisions. If, as NDIRF claims, the mere use of the word “may” in N.D.C.C. § 26.1-
02-28 trumps the Department’s subpoena power and places the decision whether to disclose information exclusively within NDIRF’s discretion, there would be no reason for the legislature to enact a separate subsection providing that NDIRF is not subject to the subpoena power under N.D.C.C. § 50-09-08.2(1) if it complies with the voluntary data match. The interpretation of N.D.C.C. § 26.1-02-28 urged by NDIRF would render subsection 7 of the current version of the statute mere surplusage.
See, e.g.
,
Sorenson v. Felton
,
[¶16] We conclude the district court erred in holding there was an irreconcilable conflict between N.D.C.C. §§ 26.1-02-28 and 50-09-08.2(1)(b), and in concluding the Department was not statutorily authorized to issue an administrative subpoena to NDIRF. Rather, the statutes can be harmonized and interpreted as granting NDIRF authority to voluntarily provide information, but continuing the Department’s authority to subpoena specific information which is not voluntarily disclosed. Accordingly, we reverse the order denying the Department’s application for an order enforcing the administrative subpoena. Because the district court did not address NDIRF’s contentions that the subpoena was vague, ambiguous, and unduly burdensome, we remand to the district court for further proceedings to properly consider these issues under the limited four-factor review of enforcement of an administrative subpoena.
See
State v. Hammer
,
IV
[¶17] We have considered the remaining issues and arguments raised by the parties and find them to be either unnecessary to our decision or without merit. We reverse the order denying the Department’s application for an order enforcing the administrative subpoena and remand for further proceedings.
[¶18] Mary Muehlen Maring
Daniel J. Crothers
Dale V. Sandstrom
Carol Ronning Kapsner
Gerald W. VandeWalle, C.J.