Medcenter One, Inc. v. North Dakota State Board of Pharmacy
561 N.W.2d 634
N.D.
1997
Check Treatment

*1 record should reflect that the at- “The 1997 ND torneys Reporter pe- and the have Court ONE, INC., Plaintiff, MEDCENTER rused the record and have identified two Appellee Cross-Appellant, areas where statements were made re- v. mutuality, although garding at least we are identify anything unable to area where NORTH DAKOTA STATE BOARD OF was stated about where this occurred.” PHARMACY, Defendant, Appellant Cross-Appellee. objected, arguing, think Christensen “I jury rely should be on instructed their Civil 960299. No. testimony. Otherwise, of the recollection Supreme Court of North Dakota. greater emphasis give portion would to one testimony than to others.” Christen- April contrary § sen’s motion was 29-22-05.

On appeal, attempts to Christensen recast objection by arguing it was error to limit testimony jury. read to the But this

objection made the trial objections

we appeal will not consider

which were not trial raised court. Manhattan,

State v. 453 N.W.2d

(N.D.1990). It apparent Christensen could objected

have request spe- to the court’s

cifically asked to have cross-examination well, jury read officer but did

not. While, 29-22-05, it is

not in deny trial court’s discretion to

jury’s it, request testimony have read previously have reading held the of testi

mony specifically requested juror Hartsoch,

was harmless error. 329 N.W.2d Thus, court, discretion,

at 372. a trial in its

may request jury specify the testimo

ny it desires rehear to save time and avoid transcript

confusion. Our review the re

veals no resulting obvious error from not

reading testimony additional of the officer to jury. We affirm. NEUMANN, SANDSTROM,

MARING, MESCHKE, JJ., concur. *2 (argued), D.

Timothy standing, actively Lervick Rolfson regularly em- Offices, responsible Lervick & Law ployed Schulz Geiermann for the man- Bismarck, P.C., plaintiff, appellee, agement, supervision, operation cross-appellant. pharmacy. such tant appellant, dell David (appearance), Attorney A. Lindell and cross-appellee. *3 General, Washburn, (argued), Special and William F. Lin- for defendant, Assis- apply 1963, provisions if otherwise holder [*****] of subsection 5 qualified permit to conduct the on shall July not 1, pharmacy, provided permit such MESCHKE, Justice. operations holder who shall un- discontinue North Dakota [¶ 1] The State Board permit der fail such or to such renew appealed summary judgment Pharmacy a permit upon expiration shall not thereafter which, business for permits: We therefore affirm. renewed clause, own profit corporation, a uous claratory judgment construing Medcenter’s ownership requirements. trative neys’ hold court’s refusal Medcenter ership requirements of NDCC declaring One, Inc., exempt pharmacy, factory proof [¶ 2] Since before pharmacy Medcenter’s failure a board with mandates that remedies does majority annually by a is two exemptions under NDCC 28-32-21.1. pharmacy cross-appealed it to shall pharmacy or a renewal adopted NDCC at its not entitled to of all to of the statute to interest obtain [*****] issue from award Medcenter attor- 1963, hospital a continuously operated owned Medcenter from the a the Board. licensed or to permit permit, upon Medcenter, in following: preclude renew exhaust adminis- in a pharmacist-own- from any pharmacy by to 43-15-35(5), grandfather 43-15-35(5). In pharmacist- pharmacist also its operate unambig- the 1963, permits exempt annual a satis- fees. non- hold trial We de- a its retail counsel informed Medcenter that the ownership from notified sion of at the Medcenter ture were pital cies. When N.D.C.C. 43-15-35 was tal amended effective two hospitals serving only patients in that hos- exemption [not] cies [¶ 4] In be lapsed cies subsection as to such discontinued or such expanded 3] After Pharmacy. sales to the exempt set types recognized furnishing hospital 5 shall not services, hospital. two the Board about the permit. The September available to Medcenter One forth in by one decided type pharmacy remodeling licensed for from on and that Medcenter believed pharmacy practice, general Before service that distinction in community/retail pharma- apply community/retail January N.D.C.C. 43-15-35 would requirement to July the pharmacy 1995, pharmacists. would still be expand provisions to July provisions 1,1963, public. only the Board’s hospital pharma- 1, 1996, planned reorganization, 1, 1963, to its for permits patients Medcenter of subsec- pharmacy pharma- majority to make permits one for exempt legisla- Hospi- expan- there legal such in applicant permit quali-

5. The such is pharmacy practice codified pharmacy, fied conduct the by providing is a distinction that N.D.C.C. 43- pharmacist good standing licensed in apply hospital pharma- or 15-35 does partnership, is a active member of furnishing only patients each cies service in is pharmacist good which a in hospital community/retail phar- licensed such or to standing, association, corporation 1, or a or holding July macies on permit majority by opinion stock which owned It my Hospital is is that Bismarck pharmacists good standing, Pharmacy licensed beneficiary hospi- was liability company, major- or a exemption type limited tal since that was ity membership practice in which pharmacy engaged interests is' it was in on pharmacists July my in good opinion owned licensed 1963. It is that Med- motion, (32 party opposing Pharmacy years now able there is not center One later) genuine dispute material exemption is no about the facts entitled to additional facts, undisputed or the inferences from pharmacies, because community/retail only question law is involved. Pear type practice engaged Assocs., 1, 1963, v. Grand Forks Motel 553 N.W.2d July Bis- July 1963. On resisting summary party A Hospital hospital pharmacy marck judgment present must admissible com- community/retail pharma- permit and not a otherwise, evidence, petent by affidavit summary, cy I believe that permit. In genuine material that shows a issue of fact. pharmacy be known proposed Pear, explained summary in- Pear. As we Systems Pharmacy” will which “Health judgment proper when a fails persons other than retail sales clude dispute about an element your raise factual es- hospital comply with patients of *4 43-15-35(5). party’s sential to that claim. N.D.C.C.

* * *' n n [¶ The Board contends trial 8] deciding court erred in Medcenter was you you disagree my opinion If with required to exhaust administrative remedies hearing on this mat- want a formal Board declaratory suing for relief. Medcen- before ter, Upon I please let the Board or know. responds required it was not to exhaust ter filing application of formal or other a administrative remedies because inter appropriate pleadings, matter can be this unambiguous is pretation purely of an statute hearing perhaps at for a formal scheduled question of law. a meeting of the of Pharma- the next Board cy- act, declaratory judgment [¶ The 9] 32-23, seeking is [¶ Instead of administrative NDCC is remedial and to be 5] Ch. remedies, declaratory liberally uncertainty sued for re- settle con construed to lief, statuses, asserting expansion legal was proposed cerning rights, its and other rela 32-23-12; re- exempt pharmacist-ownership from the tions. NDCC In Interest of 43-15-35(5). McMullen, of The 196 quirements 470 Un N.W.2d pharmacy 32-23-02, “[a]ny ... person Board answered that Medcenter’s der NDCC status, exempt, legal Medcenter had rights, was not and that whose or other relations by may ... have failed to exhaust its administrative remedies. are a statute deter affected ... aris any question mined of construction summary granted The trial court may ... ... ing under the statute obtain “[sjince Medcenter, judgment ruling, status, legal rights, of or other a declaration nothing statutory interpre- case more than is relations thereunder.” statute, unambiguous tation an the exhaus- of [of remedies] doctrine McMullen, in 470 [¶ We outlined 10] pri- application” no is “the court’s because 198-99, the basic framework from N.W.2d at statutory mary in The construction.” [role] Tweeden, 132, 48 78 N.D. Iverson v. unambiguous lan- concluded (1951), suitability assessing for guage 43-15-35 did not differenti- of NDCC declaratory relief: pharmacy hospital ate and retail between precedent requisite facts or conditions Medcenter, permits and as must generally which courts hold exist permit of a before continuous holder since declaratory may in relief be order exempt pharmacist-own- from the may summarized follows: obtained be ership requirements. The court also denied (1) justiciable controver- there must exist a request for fees. Medcenter’s controversy in a sy; say, which that is right against is one who declaratory judgment claim of asserted review this [¶ 7] We (2) it; contesting judgment has an interest in summary standards under the persons Summary pro- controversy be between judgment must is NDRCivP (3) adverse; deciding whose interests are promptly an action with- cedure if, declaratory relief must have a le- seeking viewing out a trial after the evidence controversy, that is to light gal favor- possible inferences most interest (4) interest; say, legally upon protectible depends exhaustion doctrine considerations, controversy in the including the issue involved bundle of whether ripe expertise determination. the issues need the of an adminis- body, interpretation statute, trative Ripeness corollary is a to exhaustion ad- pure question resolution of a of law. remedies, 2 Am.Jur.2d Ad- ministrative see City See also Kessler v. Board Educ. (1994), § ministrative Law and is the Fessenden, (N.D.1958) (no 87 N.W.2d 743 analysis procedural crux of our this action. requirement for exhaustion of administrative may [¶ 11] Before someone sue remedies where in- construction of statute relief, declaratory generally, the exhaustion pure customarily legal question volved decid- required. remedies is courts). by acknowledges ed Shark Brothers (N.D. Alm, E.g., Tooley v. 515 N.W.2d 137 that exhaustion of administrative remedies is 1994). requirement The exhaustion serves rigid prerequisite not a for a inter- objectives preserving the dual au pretation infringe agen- that does not on an thority efficiency. and promoting cy’s decisionmaking process. factual Stein, Mitchell, Mezines, See 5 Administra (1997). pre tive Law 49.01 The doctrine availability of declarato agency authority recognizing serves ry requires relief this context thus agency’s decisionmaking responsibili initial appraisal generated by the in issues ty. requirement Id. The exhaustion terpretation pharmacist-ownership *5 re particularly weighty agency’s when deci 43-15-35(5). quirements of NDCC The in sion factual involves issues terpretation of question a statute is a of law Clinic, expertise. Arts See Medical P.C. v. fully that is reviewable a court. Northern Initiatives, Inc., 531 Franciscan N.W.2d 289 (N.D. State, X-Ray Co. v. 542 N.W.2d 733 prerequisite The es exhaustion 1996). goal primary construing The a dispute tablishes efficient method for res Legis statute is to ascertain the intent of the by giving agency olution a chance to Id. language lature. We look first to being correct its Id. mistakes before sued. legislative the statute to ascertain intent. Id. If opportunity has an to correct give We construe as a to statutes whole errors, judicial may controversy its own a be meaning phrase, to each word and whenever or, minimum, piecemeal at a appeals mooted fairly possible. County v. State Stutsman Stein, may Mitchell, be avoided. Mez- See 5 (N.D. Society, Historical 371 N.W.2d 321 And, § ines at 49.01. dispute where the is 1985). If is statute clear level, not at resolved the administrative unambiguous, legislative and intent is generally exhaustion of will remedies devel presumed clear from the face of statute. review, op complete a record es for explained X-Ray, Id. As we in Northern a pecially complex in technical or factual situa ambiguous statute is it susceptible is to tions. See Medical Arts. These factors differing, meanings. but rational recognize a vital role exhaustion ad for plain language exemp- [¶ The 14] relationship ministrative remedies in the be tions in NDCC 43-15-35 is not susceptible of tween executive branch meanings. two different and rational It government. es of clearly unambiguously describes two ex- Notwithstanding 12] emptions pharmacist-ownership [¶ these institu to the re- justifications, quirements. tional the exhaustion doctrine is pharmacies The first for that well-recognized exceptions, has in permits July several on and have not cluding legal question simply a operations when involves discontinued or failed to renew interpretation permit. plain language does not need their The that agency’s expertise applies permit the exercise of an in mak all exemption pharmacy to ing date, generally just factual decisions. 2 Am. on that not See holders retail or non- 511; § hospital pharmacies. exemption Jur.2d Law at 5 Administrative The second Mitchell, Stein, applies hospital pharmacies furnishing Mezines at 49.02. In to Shark ser- Brothers, County, only Inc. v. patients hospital. Cass 256 N.W.2d vice to in the The (N.D.1977), 701 explained application plain language that of NDCC 43-15-35 does not ments, exemption explicitly is mutually and neither say exemptions are exclu- the two pharmacy. only had intended the limited to a retail If the sive. to exemption only apply retail or first unambiguous 18] hold the clear and [¶ We limited nonhospital pharmacies, it would have two of NDCC 43-15-35 declares appropriate language. exemption with that exemptions pharmacist-ownership re- it The Board nevertheless asserts exempt quirements, pharmacy may a historically exemp- first interpreted the has ownership requirements qual- if it from those only pharmacies, and apply to retail exemption. ifies under either long-standing interpretation is en- argues its that The Board also asserts to administrative deference. titled the trial interfered with the Board’s conclusory opposing Med- Board’s affidavit decisionmaking process, be summary judgment motion for avers center’s effectively cause Medcen- the court decided always inter- that NDCC 43-15-35 “has been qualified” a ter was to conduct “otherwise by The to mean there are preted Board pharmacy under retail NDCC 43-15-35 exemptions, grandfather clause one two required apply an additional only furnishing hospital pharmacies service permit operate pharmacy a retail patients hospital in its and one eommu- NDCC 43-15-34. permit nity/retail pharmacies holding a 1,1963.” however, July argument, Board’s [¶20] The premised on its claimed distinction between however, Board, shown pharmacy hospital permit. retail Our any specific long- examples claimed distinction, and the law does not make established, practical construction of NDCC Board no evidence to show Med- has offered Ness, Fargo City v. 43-15-35. See qualified” oper- center was not “otherwise (N.D.1996). Moreover, permit pharmacy. ate a needs has issued Board has established operate pharmacy, but NDCC 43-15-34 types permits different different two *6 procure an require does Medcenter to not categories pharmacy practice. per- of separate permit to make sales additional or pharmacies limit to mits in this record do not general circum- public. to the Under these “hospital” operation. a “retail” either or stances, infringe decision not the court’s does 43-15-01(21) (“pharmacy” means See NDCC decisionmaking process, and on the Board’s medicines, drugs, shop or or “store where reject attempt posture to its the Board’s sale, dispensed, displayed are chemicals distinc- argument purported exhaustion sold, purposes, at retail for medicinal hospital pharmacy tion retail between compounded, prescriptions are where permits. board.”). duly by the registered which is ordinarily agency’s long Courts should Although [¶ 21] an [1F17] cautiously affecting in cases adminis standing practical interpretation proceed Arts; Tooley. deference, agencies. trative See Medical courts will statute is entitled however, case, In this the doctrine of exhaus interpretation to an not defer administrative re contrary does not unambiguous language tion of administrative remedies that is to the interpreta X-Ray. quire deferring a decision on the Accepting the statute. of Northern unambiguous NDCC language tion of of interpretation would add the the the Board’s pro exemption the administrative 43-15-35 until after word “retail” the first completed. ease involves requirements. cess has This pharmacist-ownership been unambiguous of only interpretation an Legislature did include that the not statute, any gen 43-15-35, issues nothing in and does involve NDCC NDCC Ch. 43-15, erally to an administrative decision- reserved nor the Board’s administrative authorizes, de rules, maker. 32-23-05 types permits As NDCC authorizes different the claratory in this case will terminate “hospital” pharmacies. relief for “retail” and for de Instead, controversy. affirm the trial court’s unambiguous language the clear and does not the exhaustion doctrine specifies exemptions two cision that of NDCC 43-15-35 declaratory relief construe pharmacist-ownership require- prevent from the 43-15-35, 28-32-21.1, scope unambiguous interpret NDCC of NDCC interpretation of and we affirm the court’s applicability to to assess its an action for that statute. declaratory relief. cross-appeal, In its Similar raised issues were about the claims it under was entitled fees Oil, scope of NDCC 28-32-21.1 Service

NDCC 28-32-21.1: State, Inc. v. judicial 1. In proceeding civil involv- taxpayer applied There a to the State for a ing parties as adverse an administra- concededly refund of taxes collected under a party an agency tive and a ad- sought unconstitutional statute and attor- agency agent ministrative or an of an neys’ incurred in bringing applica- agency, administrative the court argued taxpayer’s tion. The State party award not an administrative application was not made under NDCC Ch. agency attorneys’ fees and reasonable 28-32, applied and that NDCC 28-32-21.1 court costs finds in favor judicial only civil proceeding to a to review a and, in the a final case of agency final administrative order. We did order, agency determines that the ad- 28-32-21.1, scope decide NDCC agency ministrative acted without however, because, assuming the statute was justification. substantial applicable, we held the trial abused its applies 2. This section an administra- deciding discretion acted without State judicial proceeding brought tive or civil justification substantial circum- by party agen- not an administrative stances of ease. cy against agency an order, agency of a final review Oil, too, In Service we invited the pursuant or for review to this Legislature clarify applicability chapter legality agency rule- Soon, part 28-32-21.1. legisla- making adopted by action or a rule overhauling rulemaking procedures agency rulemaking result of as a agencies, appealed. being action phrase added the “in the case a final Any attorneys’ 3. fees and costs awarded 28-32-21.1(1) agency order” to NDCC pursuant paid section must be (cid:127) (3). Laws, 1993 N.D. See Sess. Ch. from funds available to the administra- amended, yet As NDCC 28-32-21.1 does not order, tive the final rulemaking clearly explain relationship of its subsec- *7 action, or rule of which was reviewed tions, nothing in legislative the available by may the court. The court withhold history scope clarifies the of that statute. of part attorneys’ all or the from fees (1) broadly any [¶ 25] Subsection authorizes the court the award if finds the admin- action, attorneys’ any court to award agency’s “[i]n istrative in case of fees civil the order, judicial agency substantially a final proceeding” was if the court finds in favor justified special nonagency and, or circumstances party of the in the case of a exist which make the all or a order, award of agency final agency determines the portion attorneys’ unjust. of the fees justification. acted without substantial Sub- (2), however, says ap- section section “[t]his Nothing this in section shall con- be plies judicial an or civil rights strued to alter the of a proceeding judicial ... any collect fees under review of a applicable other final order, agency judicial pursuant law. or for review chapter legality agency of the this rule- that, argues because action making by adopted agen- action or a rule an declaratory relief did not a “final involve cy rulemaking being as a of the action result order,” agency required the court was (3) appealed.” says “[a]ny Subsection attor- attorneys’ award prevailing party it fees as a (1), neys’ ... pursuant to regardless under fees awarded this sec- subsection of whether paid the Board justifica- acted without from funds available to the substantial argument order, tion. upon agency Medcenter’s calls us to the final rule- lating utility rates. Our in action, which reviewed electric decision making rule of was however, 28- by Aggie, court.” does not mean NDCC the expansive is so it authorizes 32-21.1 statutory scheme of We the [¶ 26] believe judicial attorneys’ any proceed- fees civil 28-32-21.1, read a whole to when as NDCC “judicial ing than of a final other review meaning as as much the statute give judicial pursuant order agency or for review legislative to au- intent possible, manifests agen- legality Ch. of the [NDCC 28-32] judicial “[i]n civil thorize cy rulemaking adopted by a rule an action or final “judicial proceeding” for review agency rulemaking action as result order, pursuant agency or for review being appealed.”1 legality agency rule- chapter the to this adopted by agen- making action a rule declaratory judgment This action did [¶ 28] being rulemaking cy a result action as agency judicially legality of an review finds in favor of appealed,” the court action, judicially rulemaking nor did review and, in the a final nonagency party case of agency final order. We therefore hold order, agency acted agency determines the apply 28-32-21.1 does not to this NDCC justification. Construing without substantial Medcenter was not to attor- case.2 .entitled pro- language “any civil about 28-32-21.1, neys’ fees NDCC ceeding” and “in ease of a final re- affirm court’s denial Medcenter’s (1) in manner in the broad order” subsection quest for fees. effectively suggested Medcenter would declaratory judgment. affirm the [¶ 29] We (2) negate in subsections section,” (3) limiting applicability of “this WALLE, C.J., our rule of VANDE [¶ 30]

and would be inconsistent with SANDSTROM, MARING, give meaning to NEUMANN construction statute, JJ., phrase of a whenever each word and concur. County

fairly possible. Stutsman See Justice, SANDSTROM, concurring. (construing phrase surplusage isolated construing than entire section as sur- rather In Investments v. Public Ser Aggie plusage). (N.D. Commission, vice (which 1991),this Court held the Commission Aggie in Public Our Invs. v. decision already days hearings on the had (N.D.1991), Comm’n, 470 N.W.2d 805 Serv. ease) justification acted without reasonable Aggie require In does different result. no failing yet hearing to hold another which con- we construed NDCC 28-32-21.1 Aggie requested. After and Service one had rejected of an rate case. text electric (N.D.1992), Oil, State, Inc. v. 479 N.W.2d 815 argument did not PSC legislative change noted addition apply to the 28-32-21.1 to intend NDCC Court, Opinion session of rates, next utility regulation of because electric (1) both legislature, by unanimous votes of limit- of subsection houses, adopted Bill 1993 S.L. House in that said -28-32- ed manner. We 49-02-02(5), *8 463, amending ch. N.D.C.C. “expansive and and held 21.1 was inclusive” many im- regu- making explicit, what considered actions except it did not Although any attorneys' "in civil NDCC 28-32-21.1. NDCC authorizes fees 1. 28-32-21.1 Equal comparable arguably circumstances the Federal action” of the federal law Act, Aggie 28-32-21.1, 28 U.S.C. 2412. See Access Justice than even the federal broader Comm'n, N.W.2d 805 Invs. v. Public Ser. attorneys' prevail- law does not fees authorize law, of the federal regardless ing nonagency parties of whether 2412(d)(1)(A), attorneys’ fees U.S.C. authorizes substantially position of States was the United (other sounding any civil than "in action cases justified. tort), including proceedings for review action, brought by against the United avoiding pro- Ironically, by 2. having jurisdiction States action, court relief, declaratory electing and an action for cess position of finds unless the court prevented effectively any award Medcenter has substantially justified." the United States was to it under NDCC 28-32-21.1. version, however, include does not The federal (3) (2) limiting language and like subsections plicit, Public Service Commission need hearing

not hold “no interested hearing.” for a

asked justification” 32] “Substantial must be

[¶

reasonably assessed. Opinion I concur in the Court. WALLE, C.J., VANDE concurs.

1997 ND 58

In the Matter of the ESTATE OF ZIMMERMAN,

Wallace W.

Deceased. ZIMMERMAN, Surviving L.

Sarah Spouse, Zimmerman, and Maureen K. McCullough (argued), Steven E. of Ohns- Daughter, Appellants, Petitioners and Twichell, Fargo, petitioners tad West appellants.

v. Yinje (argued), Vinje Edmund G. Law ZIMMERMAN, Rep- Andrew C. Personal Office, respondent Fargo, appellee. resentative of the Estate of W. Wallace Zimmerman, Respondent Appellee, MARING, Justice. L. appealed Sarah Zimmerman from declaring a district order she had Zimmerman, Respondent.

Karen M. right waived her to an elective share of the Civil No. 960318. spouse, estate of her deceased W. Wallace appeal, Zimmerman. dismiss the be- Supreme Court of Dakota. North cause is an there unresolved claim between Sarah Zimmerman the estate and there April 54(b), N.D.R.Civ.P., is no Rule certification. Zimmerman

[¶2] Wallace died testate will, January 1994. His on Au- executed 6,1986, gust probate was admitted to his son, Zimmerman, C. appointed Andrew personal representative to es- administer the unsupervised tate in probate pro- informal ceedings. *9 January

[¶3] On Sarah filed Right “Motion for Determination of Share,” claiming right, Elective as the sur- viving spouse, to an elective share of resisted, representative personal estate. The arguing right waived her Sarah to an elective