Riley S. Kuntz, Plaintiff and Appellant v. State of North Dakota, Bureau of Criminal Investigation, Criminal Justice Information Sharing Director, Department of Transportation, Attorney General Wayne Stenehjem in his official and individual capacity, Deputy Director of BCI Lonnie Grabowska in his official and individual capacity, Liz Brocker in her official and individual capacity, and Mary Kluzak in her official and individual capacity, Defendants and Appellees
No. 20180135
IN THE SUPREME COURT STATE OF NORTH DAKOTA
Filed 2/21/19
2019 ND 46
Honorable James S. Hill, Judge
Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable James S. Hill, Judge.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Opinion of the Court by Tufte, Justice.
Riley S. Kuntz, self-represented, Dickinson, N.D., plaintiff and appellant.
Matthew A. Sagsveen (argued), Solicitor General, and Courtney R. Titus (appeared), Assistant Attorney General, Bismarck, N.D., for defendants and appellees.
Kuntz v. State
No. 20180135
[¶1] Riley Kuntz appeals from a judgment granting the State‘s motion for judgment on the pleadings and dismissing his claims with prejudice against the State, state agencies, and state officials in their official and individual capacities. We conclude the district court erred in dismissing his open records law claim under
I
[¶2] In August 2016, Kuntz submitted written requests for documents under the North Dakota open records law to the Bureau of Criminal Investigation (“BCI”), the Department of Transportation (“DOT”), and the Criminal Justice Information Sharing (“CJIS”) Director, seeking records relating to an agreement with “the FBI authorizing or allowing the search of any ND Driver License or non-photo identification database pursuant to a request from any government agency for the purposes of FACE or FIRS or NGI-IPS.” Responding on BCI‘s behalf, Liz Brocker denied his request. Brocker, also responding on CJIS‘s behalf, requested additional information to clarify his request. Kuntz replied, and Brocker denied his request. Responding on DOT‘s behalf, Mary Kluzak requested additional information to clarify his request, and Kuntz replied. Kluzak requested payment of a search and duplication fee to fulfill the request. Kuntz paid the fee and was provided a two-page attorney general opinion.
[¶3] In December 2016, Kuntz submitted a letter under the Freedom of Information Act (“FOIA”) to the federal Government Accountability Office (“GAO”) requesting records related to an agreement between the FBI and any government agency authorizing the search of the North Dakota driver license information databases. In a February 2017 letter, the GAO responded and confirmed the existence of a Memorandum of Understanding (“MOU”) between the FBI, CJIS, Attorney General, and BCI concerning searches of the North Dakota Attorney General BCI facial recognition photo repository. However, because the GAO obtained the MOU from the FBI, the GAO informed him it was GAO policy not to release records from its files that originate in another agency or organization.
[¶4] On July 20, 2017, Kuntz submitted written requests under the open records law to the North Dakota Attorney General, BCI, CJIS Director, and DOT, stating in part: “Please supply the Memorandum of Understanding between the FBI, Criminal Justice Information Services Division and ND Attorney General, BCI: Concerning the Search of Probe Photos Against the ND Attorney General of Criminal Investigation Photo Repository.” On July 24, 2017, Lonnie Grabowska, on BCI‘s behalf, replied in a letter requesting additional clarification, and Kuntz replied on August 2, 2017. Kluzak, on DOT‘s behalf, replied requesting funds for the fulfillment of the request. Kuntz replied to the DOT and did not pay the fee. Kluzak did not respond.
A request must reasonably identify specific records (
N.D.C.C. § 44-04-18(2) ). It is not a violation of the law if the reason a public entity denied a request is because you did not reasonably identify specific records. . . . Accordingly, we will not take any further action in response to your letter or any future correspondence from you in this regard.
[¶6] On September 19, 2017, Kuntz commenced this action by serving a summons and complaint, naming as defendants the State, the BCI, the CJIS Director, the DOT, Attorney General Wayne Stenehjem in his official and individual capacity, BCI Deputy Director Grabowska in his official and individual capacity, and Brocker and Kluzak in their official and individual capacities (collectively, the “State”). The parties do not dispute on appeal that while the state Solicitor General accepted service on behalf of the defendants in this case, Kuntz did not personally serve any of the defendants in their individual capacities.
[¶7] Kuntz‘s complaint claims violations of state open records laws; alleges claims for fraud, federal civil rights violations and attorney‘s fees; and also seeks declaratory relief. His complaint essentially claims the State, through its various agencies, had denied the existence of, or failed to respond to his open records request for, the specified MOU document. On September 22, 2017, after receiving service of the complaint, the Solicitor General mailed an MOU document to Kuntz, described by the Solicitor General as appearing to be the document requested.
[¶8] On October 11, 2017, the State responded to the complaint with a joint answer served by mail. In its answer the State admitted the Attorney General‘s Office and CJIS did not provide a response to the request for the MOU. On October 16, 2017, Kuntz filed the summons and complaint in the district court. On October 24, 2017, Kuntz filed a motion in the district court seeking a default judgment and a motion for sanctions against the State‘s counsel. The State opposed the motions. In a December 1, 2017, order, the district court denied both of Kuntz‘s motions.
[¶9] On January 19, 2018, the State moved the district court for judgment on the pleadings, arguing Kuntz‘s complaint failed to state a claim for which relief can be granted. Kuntz opposed the State‘s motion and moved the court for leave to amend the complaint. In its March 29, 2018, order, the district court granted the State‘s motion dismissing Kuntz‘s claims with prejudice. The court also denied Kuntz‘s motion for leave to amend his complaint.
II
[¶10] Kuntz argues the district court erred in denying his motion for a default judgment under
A
[¶11] Under
[¶12] Whether to grant a default judgment rests within the district court‘s discretion. Bell, 1998 ND 35, ¶ 11, 575 N.W.2d 211. The court also has “broad discretion in determining the quality of proof necessary to support granting a default judgment.” Id. A court abuses its discretion when it acts arbitrarily, unconscionably, or unreasonably, or when its decision is not the product of a rational mental process leading to a reasoned determination. Koenig v. State, 2018 ND 59, ¶ 7, 907 N.W.2d 344. The court‘s refusal to grant default judgment is not an abuse of discretion absent proof of “prejudice[] by the delay in the proceedings.” Id.; see also Filler v. Bragg, 1997 ND 24, ¶ 11, 559 N.W.2d 225 (“By its very language, Rule 55 provides default judgment may not be obtained against a party who has appeared.”).
[¶13] Kuntz argues the district court erred in finding “unsigned affidavits” are the proper method of service by mail; in finding the State filed a timely answer; and in failing to cite contrary authority in dismissing his motion. To understand his arguments, we note that when the State served its joint answer on Kuntz by mail on October 11, 2017, the affidavit of service accompanying the State‘s documents was not signed. The State subsequently filed the executed affidavit of service in the district court.
[¶14] The State asserts the affidavit of service included with a properly served document is unsigned so as to comply with the statements being attested to in the affidavit. The State‘s affidavit of service by mail for the joint answer provides, in relevant part: “I am of legal age and on the 11th day of October, 2017, I served the attached . . . upon Riley S. Kuntz by placing a true and correct copy thereof in an envelope addressed as follows . . . and depositing the same, with postage prepaid, in the United States mail at Bismarck, North Dakota.” The State maintains that its staff cannot sign a document stating that they placed a true and correct copy in an envelope and deposited it in the mail, until they have actually done so.
[¶15] In its December 1, 2017, order, the district court found it was uncontroverted that the State‘s joint answer had been served on October 11, 2017, which comports with the signed and sworn affidavit of service the State filed in the district court. The court also noted Kuntz‘s motion for default was filed on October 24, 2017, which was after the State filed its joint answer with the court on October 17, 2017. The court found no basis for entry of a default judgment under
[¶16] We agree that the State‘s practice of including an unsigned affidavit with documents served by mail is not improper. Kuntz is mistaken when he contends the
[¶17] Kuntz suggests the State is misleading the district court by filing a copy of the affidavit different from that which was mailed to him. However, the purpose of the affidavit of service is to establish record evidence of when the document was mailed. See
[¶18] The district court found the State had appeared and filed an answer before Kuntz moved for default and Kuntz had notice of the State‘s intent to defend in the proceedings. We conclude the district court did not abuse its discretion in denying Kuntz‘s motion for default judgment under
B
[¶19] Kuntz argues the district court erred in denying his motion for sanctions under
[¶20] “The district court may award sanctions against an attorney, a represented party, or both, if they violate or are responsible for a violation of
[¶21] Here, in denying sanctions, the district court found that “by every objective standard,” neither the defendants nor their attorneys made willful misrepresentations of fact in their answer to the claims under
[¶22] To the extent Kuntz argues the district court‘s findings were not sufficient, did not disclose the basis for conclusions of
[¶23] On the basis of the findings, we conclude the district court did not abuse its discretion in refusing to impose sanctions.
III
[¶24] Kuntz argues the district court erred in granting the State‘s motion for judgment on the pleadings, dismissing all of his claims with prejudice, and denying his motion to amend his complaint.
A
[¶25] Our standard for reviewing the district court‘s decision granting a motion for judgment on the pleadings is well established:
A party may move for judgment on the pleadings under
Rule 12(c), N.D.R.Civ.P. A pleading should not be dismissed underN.D.R.Civ.P. 12(c) unless it appears beyond doubt that no set of facts support a party‘s claim which would entitle him to relief. Nelson v. McAlester Fuel Co., 2017 ND 49, ¶ 20, 891 N.W.2d 126 (citing Tibert v. Minto Grain, 2004 ND 133, ¶ 7, 682 N.W.2d 294). We view the pleading in the light most favorable to the pleading party, and the allegations are taken as true. Nelson, at ¶ 20. A district court‘s decision granting judgment on the pleadings underN.D.R.Civ.P. 12(c) is reviewed de novo. Nelson, at ¶ 20.
Zundel v. Zundel, 2017 ND 217, ¶ 10, 901 N.W.2d 731 (emphasis added). We have said that the court‘s inquiry is directed to whether the allegations constitute a statement of a claim under
B
[¶26] Kuntz argues that the district court erred in dismissing his claims under the North Dakota open records law in
[¶27] Generally, a public entity must disclose all non-confidential records in its possession. See
[¶28]
Whether records have been produced within a reasonable time will depend on the facts of a given situation. A delay may be appropriate for a number of reasons, including reviewing large volumes of documents to respond to a request, excising closed or confidential information, availability and workload of staff who can respond to the request, balancing other responsibilities of the public entity that demand immediate attention, accessing the records requested, consulting with an attorney when there is reasonable doubt whether the records are open to the public, sorting out what has previously been provided to a requester, and seeking clarification on vague requests.
N.D. Op. Att‘y Gen. 2017-O-09, at 2 (Nov. 1, 2017) (collecting other attorney general opinions in footnote 7). “Although
[¶29] Attorney General opinions interpreting statutes guide executive branch officers and political subdivisions until a judicial decision reaches a different interpretation. See Werlinger v. Champion Healthcare Corp., 1999 ND 173, ¶ 47, 598 N.W.2d 820. “We give respectful attention to the attorney general‘s opinions and follow them when we find them persuasive.” Sorum v. Dalrymple, 2014 ND 233, ¶ 10, 857 N.W.2d 96 (quoting Holmgren v. N.D. Workers Comp. Bureau, 455 N.W.2d 200, 204 (N.D. 1990)). “However, Attorney General opinions are not binding upon this court and we will not follow them if they are inconsistent with the statutory interpretation that the court deems reasonable.” Id. (quoting Sauby v. City of Fargo, 2008 ND 60, ¶ 12, 747 N.W.2d 65).
[¶30] This case involves whether Kuntz sufficiently pled a civil action under
[¶31] In DeForest v. N.D. Dep‘t of Transp., 2018 ND 224, ¶¶ 8-9, 918 N.W.2d 43, we reiterated our standard for construing statutes:
“Statutory interpretation is a question of law, fully reviewable on appeal.” Teigen v. State, 2008 ND 88, ¶ 19, 749 N.W.2d 505. “Words in a statute are given their plain, ordinary, and commonly understood meaning, unless defined by statute or unless a contrary intention plainly appears.” Zajac v. Traill Cty. Water Res. Dist., 2016 ND 134, ¶ 6, 881 N.W.2d 666; see also
N.D.C.C. § 1-02-02 . “Words and phrases must be construed according to the context and the rules of grammar and the approved usage of the language.” Robot Aided Mfg., Inc. v. Moore, 1999 ND 14, ¶ 12, 589 N.W.2d 187 (quotingN.D.C.C. § 1-02-03 ). “The primary purpose of statutory interpretation is to determine the intention of the legislation.” Zajac, at ¶ 6. Our focus is on what meaning was intended by words and phrases enacted into law. “If the language of a statute is clear and unambiguous, ‘the letter of [the statute] is not to be disregarded under the pretext of pursuing its spirit.’” Id. at ¶ 6 (quotingN.D.C.C. § 1-02-05 ).We “construe[] statutes to avoid absurd or illogical results.” State v. Stegall, 2013 ND 49, ¶ 16, 828 N.W.2d 526 (quoting Mertz v. City of Elgin, 2011 ND 148, ¶ 7, 800 N.W.2d 710); see
N.D.C.C. § 1-02-38(4) (“In enacting a statute, it is presumed that: . . . [a] result feasible of execution is intended.”). Statutes are interpreted in context. In Interest of K.G., 551 N.W.2d 554, 556 (N.D. 1996). They are “construed as a whole and are harmonized to give meaning to related provisions.” Indus. Contractors, Inc. v. Taylor, 2017 ND 183, ¶ 11, 899 N.W.2d 680.
[¶32] We construe the language of
- A violation of section 44-04-18, 44-04-19, 44-04-19.2, 44-04-20, or 44-04-21 may be the subject of a civil action brought by an interested person or entity. For an alleged violation of section 44-04-18, the complaint must be accompanied by a dated, written request for the requested record. If a court finds that any of these sections have been violated by a public entity, the court may award declaratory relief, an injunction, a writ of prohibition or mandamus, costs, disbursements, and reasonable attorney‘s fees against the entity. For an intentional or knowing violation of section 44-04-18, 44-04-19, 44-04-19.2, 44-04-20, or 44-04-21, the court may also award damages in an amount equal to one thousand dollars or actual damages caused by the violation, whichever is greater. An action under this subsection must be commenced within sixty days of the date the person knew or should have known of the violation or within thirty days of issuance of an attorney general‘s opinion on the alleged violation, whichever is later. Venue for an action is in the county where the entity has its principal office or, if the entity does not have a principal office within the state, in Burleigh County. . . . .
- The remedies provided in this section are not available if a violation of section 44-04-18, 44-04-19, 44-04-19.2, 44-04-20, or 44-04-21 has been corrected before a civil action is filed and no person has been prejudiced or harmed by the delay. An interested person or entity may not file a civil action under this section seeking attorney‘s fees or damages, or both, until at least three working days after providing notice of the alleged violation to the chief administrative officer for the public entity. This subsection does not apply if the attorney general
has found under section 44-04-21.1, on a prior occasion, that the public entity has violated section 44-04-18, 44-04-19, 44-04-19.2, 44-04-20, or 44-04-21.
(Emphasis added.)
[¶33] The State contends a civil action under
[¶34] In his complaint, in addition to alleging unreasonable delay and intentional violations of
[¶35] We therefore conclude the district court erred in dismissing his civil action under
C
[¶36] Kuntz argues that the district court erred in dismissing his § 1983 claims alleging the State deprived him of his rights, privileges, and due process. The State responds that Kuntz cannot state a claim for relief under
[¶37] Because the parties do not dispute that none of the defendants was served in an individual capacity, the matters before us involve only the State, state agencies, and individuals in their official capacity as defendants. In Wheeler v. Burgum, 2018 ND 109, ¶ 6, 910 N.W.2d 845, this Court explained:
“Neither a state, an entity with Eleventh Amendment immunity, nor state
officials sued in their official capacity are ‘persons’ under 42 U.S.C. § 1983 , and neither is subject to suit under the statute in federal or state court.” Perry Center, Inc. v. Heitkamp, 1998 ND 78, ¶ 37, 576 N.W.2d 505. A claim seeking only injunctive relief may proceed against a state official in his official capacity because official-capacity actions seeking only prospective relief are not treated as actions against the State. Livingood v. Meece, 477 N.W.2d 183, 190 (N.D. 1991).
[¶38] Generally, “[a] claim under § 1983 must allege that conduct of a defendant acting under color of state law deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or by the laws of the United States.” Jensen v. Zuern, 517 N.W.2d 118, 123 (N.D. 1994) (citing Howlett v. Rose, 496 U.S. 356 (1990); Bell v. Stigers, 937 F.2d 1340 (8th Cir. 1991); Jones v. Gutschenritter, 909 F.2d 1208 (8th Cir. 1990); Livingood v. Meece, 477 N.W.2d 183 (N.D. 1991); 1 Nahmod, Civil Rights and Civil Liberties Litigation, The Law of Section 1983, 2.01 (3rd ed. 1991)). As one treatise has explained,
[¶39] In this case, Kuntz‘s complaint alleges that Stenehjem, Grabowska, Brocker, and Kluzak “denied the MOU to Plaintiff, subjected Plaintiff to the foregoing conspiracies, unlawful acts and omissions without due process of the law and violation of
[¶40] In an apparent attempt to preserve his § 1983 claim, Kuntz argues that the district court failed to recognize FOIA as a federally secured right or privilege. However, FOIA applies to federal agencies rather than to the State and state agencies. See St. Michael‘s Convalescent Hosp. v. State of California, 643 F.2d 1369, 1372-74 (9th Cir. 1981) (“The FOIA, generally, provides for the mandatory disclosure of information held by federal agencies, unless the requested material is exempt from mandatory disclosure.”); see also
[¶41] We conclude the district court properly dismissed Kuntz‘s § 1983 and related federal law claims.
D
[¶42] Kuntz argues the district court erred by not differentiating the “heightened” pleading requirements for claims of fraud versus claims of deceit. He essentially contends the particularity required under
[¶44] Under
- The suggestion as a fact of that which is not true by one who does not believe it to be true;
- The assertion as a fact of that which is not true by one who has no reasonable ground for believing it to be true;
- The suppression of a fact by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact; or
- A promise made without any intention of performing.
[¶45] Here, in its order granting judgment on the pleadings, the district court dismissed Kuntz‘s claims for fraud under
[¶46] Kuntz also argues the district court erred in denying his motion to amend the complaint. In its order denying leave to amend, the court held his proposed amendments were futile because he again failed to state a claim for relief for constructive fraud under
[¶47] “Under
[¶48]
- In any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault or anyone claiming under that person, by misleading another to the other‘s prejudice or to the prejudice of anyone claiming under the other; or
- In any such act or omission as the law specially declares to be fraudulent without respect to actual fraud.
“[C]onstructive fraud arises from the breach of a duty which is owed ordinarily because of a fiduciary or confidential relationship between the parties.” Land Office Co. v. Clapp-Thomssen Co., 442 N.W.2d 401, 406 (N.D.1989). A fiduciary or confidential relationship may be present in a “business agency, professional relationship, or family tie impelling or inducing the trusting party to relax the care and vigilance . . . ordinarily exercise[d]. In a fiduciary relationship, the superior party has a duty to act in the dependent party‘s best interest.” Nesvig v. Nesvig, 2004 ND 37, ¶ 20, 676 N.W.2d 73 (citations omitted).
[¶49] Here, in denying leave to amend, the district court concluded Kuntz failed to state a claim for relief against Kluzak and the DOT based on constructive fraud. The court further concluded he had neither alleged nor were there facts to suggest Kluzak owed him a duty based on a fiduciary or confidential relationship between the parties. We agree. Kuntz‘s claims alleging excessive fees are not premised on consent to contract or obligation, but on alleged violations of
[¶50] Additionally, in refusing to allow him leave to amend to assert a claim of deceit, the district court applied the greater particularity standard under
[¶51] We have recognized that fraud and deceit are distinct but similar concepts. To the extent Haugrud, 2017 ND 262, ¶ 14, 903 N.W.2d 537, suggests
[¶52] We conclude Kuntz failed to plead sufficient facts with particularity to support a claim for deceit, including how he relied on allegedly false or misleading representations and what the specific misrepresentations were from Stenehjem, Grabowska, Brocker, or Kluzak. See Thimjon Farms P‘ship v. First Int‘l Bank & Trust, 2013 ND 160, ¶ 33, 837 N.W.2d 327. We conclude the district court did not abuse its discretion in denying his motion for leave to amend.
E
[¶53] Kuntz argues that the district court erred in dismissing his complaint for declaratory relief under
[¶54] We review declaratory judgment actions under the same standards as other cases.
[¶55] To support a declaratory judgment action, we have said a justiciable controversy must exist, ripe for a judicial determination. Denault, 2017 ND 167, ¶ 7, 898 N.W.2d 452. “The Uniform Declaratory Judgments Act does not give a court the power to render advisory opinions or determine questions not essential to the decision of an actual controversy.” Denault, at ¶ 7 (quoting Richland Cty. Water Res. Bd. v. Pribbernow, 442 N.W.2d 916, 918 (N.D.1989)). “Once rights are violated, declaratory relief is inappropriate.” Pribbernow, at 919. Under “
[¶56] In his complaint, Kuntz sought declaratory judgments asking the court to issue a multitude of decrees. Because we are remanding for further proceedings, any relief Kuntz seeks on this issue is premature, as our decision must be limited to questions involving existing rights in real controversies. See Pribbernow, 442 N.W.2d at 919. Any opinion we might issue on the merits of the requested declaratory relief at this point would be advisory, and we do not address them.
IV
[¶57] We have considered Kuntz‘s remaining issues and arguments and conclude they are either unnecessary to our decision or are without merit. The judgment is affirmed in part and reversed in part, and the case is remanded for further proceedings under
[¶58] Jerod E. Tufte
Daniel J. Crothers
Lisa Fair McEvers
Jon J. Jensen
Gerald W. VandeWalle, C.J.