North Dakota Council of School Administrators v. Sinner

Burgard issues raised Both of the only May transactions. as to relevant DAKOTA OF NORTH COUNCIL argument Burgard premises in fact ADMINISTRATORS, Fargo SCHOOL that appellate brief assertion his with District, Harvey Public Public School upon conspiracy charge the De- based No. Val School District 38 and Central fails the same cember 1987 transaction ley No. Peti Public School District challenge de- upon he relied reason tioners, Cross-Appel Appellants and corroboration

livery conviction: insufficient lees, testimony. of Rosemore’s SINNER, George The Gover Honorable that Rosemore’s testi We held nor, Dakota, Rayl, North Dick State of corroborated, sufficiently and mony was Director, Management and Office upon presumption which Bur- thus the Budget, Respondents, Appellees gard’s arguments is invalid. The rest Cross-Appellants, may upheld jury’s verdict therefore support is a con the evidence sufficient upon conviction Decem spiracy based Sanstead, Wayne Superintendent, Dr. transaction. Rosemore was not at ber 1987 Instruction, Respondent Public acting in collaboration with that Appellee. police, overt which effected an acts No. Civ. 890301. objective conspiracy were commit previously noted a de ted. We have that Supreme Court of North Dakota. delivery may be fendant convicted July conspiracy de substance and controlled upon based liver a controlled substance Mayer, 356

same transaction. State (N.D.1984). In this allegation, case, sup is the there additional evidence, Burgard ported by the knew marijuana he sold Rosemore person, a third going to be delivered to conspiracy beyond the sin so the reached gle sale to Rosemore. Burgard’s conspiracy conclude

We amply appli- supported is conviction cable law and evidence.4 judgment affirmed. of conviction ERICKSTAD, C.J., YANDE MESCHKE, JJ., WALLE, LEVINE and concur. 4. Our resolution involving defendant and law enforce- this issue renders unneces- sary to discuss a defendant whether ment officials. conspiracy convicted of based conduct (argued),

William D. Schmidt Wheeler Wolf, Bismarck, petitioners, appellants for cross-appellees. (argued), Atty. Patricia M. Moen Asst. Gen., Bismarck, respondents, for appellees cross-appellants George Honorable Rayl. and Dick Sinner (argued), Atty. E. Lane Asst. Robert Gen., Bismarck, Dept, Transp., respondent appellee Wayne Dr. San- stead.

OPINION

ERICKSTAD, Chief Justice. The North Dakota Council of School Ad- Fargo ministrators Public Council], [the District, Harvey Dis- School School Public Valley trict No. and Central Public District No. 003 School Dis- School [the appeal from a district court order tricts] dismissing application their for a writ of mandamus. We affirm. Legislature appropriated The 1987 upon projecting revenue forecasts based $1,055 approximately general billion fund revenues for the 1987-1989 biennium. July projection pre- When a 1988 revenue for the dicted revenues biennium $1,017 billion, Rayl, Richard the Director of Budget, im- Management the Office of provisions 54-44.- plemented the of Section 1-12, N.D.C.C., gen- uniformly reduce all agencies’ budgets by percent eral fund two result, through process. As a an allotment Department of Public Instruction [DPI] expenditures by required was to reduce its $7,661,458. grants Foundation aid to local consequently reduced school districts were $6,331,711 for the biennium. Throughout the remainder of the bienni- um, the revenue forecasts showed increas- ingly higher projections. The No- revenue vember 1988 forecast estimated revenues $1,022 billion; at the March 1989 forecast $1,039 billion; forecast, April included the effects of the sales tax which passed by Legisla- the 1989 rate increase $1,040 ture, was billion. apparent

In June 1989 it became actual revenues biennium would $1,055 projection fact exceed the billion the 1987 I. based STANDING 20, 1989, appropriations. On June its party is to have decide A entitled a court Association of School Admin- North Dakota dispute only demon- the merits of after writing requested istrators funds be standing litigate strating that he restored allow the full aid foundation placed issues before the court. State v. payments Legisla- authorized (N.D.1985). Tibor, 373 N.W.2d Sanstead, 1989, Wayne ture. On June Rayl1 Sinner and assert that the Council Instruction, Superintendent of the Public standing lacks to seek a writ of mandamus 1989, 29, request. a On June made similar compel to of that the restoration funds and agencies the Rayl informed all state percent reductions would not re- to as- standing two School Districts have stored. Actual revenues 1987-1989 claims, sert their own individual not those $1,072 eventually over totaled bil- biennium of similarly other situated districts. lion, projec- million more than the some $17 Rayl Sinner and concede that the School the appropria- tions 1987-1989 standing have to indi- Districts assert their tions were based. therefore reach vidual claims. We will the The Council commenced action and, merits as to individual claims Sanstead, against Rayl, and Governor petitioners because we conclude that the Sinner, seeking George a writ of manda- mandamus, not to a of were entitled writ compel mus to restoration of allotted funds unnecessary we find it to resolve the dis- payments in the to allow foundation aid puted standing. of issues appropriated by Legisla- amount the 1987 joined The as ture. School Districts were arguments appeal The Council’s on days later, any petitioners few before a the identical to those of individual School responsive pleading had served. The been petitioning parties The were all Districts. dismissing district court entered an order represented by counsel, same filed 6, September the action 1989. The of brief, single argument. and made one oral ap- Council and the School Districts have No would served determin- pealed, cross-ap- Rayl have Sinner ing standing the Council has when whether pealed. of no ef- resolution that issue would have dispositive following The issues are appeal. fect on the outcome of this appeals: unnecessary Similarly, it is to determine 1) Do the Council and School Districts standing Districts whether School have standing? similarly to other situ- assert claims of 2) appeal Is moot? school districts. That issue relates ated 3) refusing Did the trial court err scope the relief solely to the which could requiring issue a writ mandamus granted petitioners entitled were restore respondents allotted con- mandamus. Because we writ DPI for as disbursement court not err in clude that district did payments? aid foundation writ, scope refusing to issue the 4) 54-44.1-12, N.D.C.C., Is Section if a were issued is relief available writ delegation legisla- unconstitutional authority? tive immaterial.2 question Respondent represented by sepa- ac There is some whether or not the Sanstead is expi supported generally tion could have been commenced after the rate counsel and has biennium, and not petitioners’ attempt compel ration of the whether or restoration of joinder of the back" School Districts "relates funds to DPI. the time action commenced argument question 2. A con- These were not raised in the was raised at oral Council. issues cerning might pleadings, arguments application as or briefs to the of what denoted court, appellate "quasi briefs. statute of defense. The district or in the An limitations” presented Council not to the trial court will not be commenced this action June issue prior appeal. time on to the end of the biennium. considered the first Hanson (N.D. joined parties County, as on v. Williams School Districts were 14, 1989, Hersch, (N.D. 1990); July State after the biennium ended. cf. II. MOOTNESS late in strong the biennium. There is a end, probability that the biennium will Rayl ap Sinner and assert that this thirty-day period specified in Section 54- peal is moot they because cannot now be 44.1-11, N.D.C.C., run, appro- will and the appropri ordered to transfer funds to meet priation lapse will and be cancelled before a ations for Specif the 1987-1989 biennium. legal challenge in the courts can “work its ically, they argue way through appellate the trial and court lapsed July and been cancelled as of processes.” v. Liberty See State National 54-44.1-11, pursuant to Section Bank, supra, 427 N.W.2d at 309. This is a They C.C. further assert that the funds example classic capable of an issue which is Budget have been transferred to the Stabi repetition, yet evading review. Fund, 54-27.2-03, lization N.D.C.C., expenditure restricts of those decline appeal We to dismiss the as moot. appropriations funds to for the current bi ennium. III. MANDAMUS Assuming that these assertions are cor The School Districts assert that the trial rect, we nevertheless decline to dismiss the court refusing erred in to issue a writ of appeal as moot. We will not dismiss an directing Sinner, Rayl, mandamus and San- appeal as moot matter in contro where stead restore the allotted funds to DPI versy great public is one of interest and these local school disburse authority power public involves the of districts as foundation aid. officials, or capable where matter is of Issuance of of gov- writs mandamus is repetition, yet evading See, e.g., review. 32-34-01, by erned N.D.C.C.: Rolette Education Association v. Rolette “By and to whom writ mandamus of 29, Public School District No. 427 N.W.2d issued.—The writ of mandamus 812, (N.D.1988); 814 Liberty State v. Na by issued the supreme and district courts Co., tional Bank and Trust 427 N.W.2d any tribunal, corporation, inferior 307, (N.D.), 956, denied, 308 cert. 488 U.S. board, person compel or perform- 393, (1988). 109 S.Ct. 102 L.Ed.2d 382 ance of an act specially which the law All of the in relevant factors this case enjoins duty resulting as a from of- against militate appeal dismissal of the as fice, trust, or station....” petitioners challenge moot. The the au- seeking party The of manda thority of state writ impinge officials to demonstrating mus bears the of appropriation power burden assembly, legal right per that he has a and assert in clear to the the statute question particular sought formance of the constitutes an unconstitutional act to be delegation compelled by legislative power E.g., of to the exec- the writ. Old Broad Backes, 734, utive way Corp. branch. Millions of dollars in state v. 450 736 N.W.2d (N.D.1990); aid to local hang school districts Bradley v. Beach Public great clearly 3, balance. These are issues of School District No. 427 N.W.2d 352 public involving authority (N.D.1988); concern Lund v. North Dakota State power public of 25, officials. Highway Department, 403 N.W.2d (N.D.1987). The officer must a non- Additionally, the of inherent nature discretionary duty perform the act: appropriation and process allotment set “ lie Chapter 54-44.1, N.D.C.C., forth in ‘Mandamus will not ... unless the virtual- ly repetition meaningful plaintiff’s legal right assures or relator’s to the without a opportunity judicial Any performance particular sought act review. compelled by an allotment reducing agency is made bud- the writ is clear and gets, complete.... availability actual of additional Neither will lie it where very plain, speedy revenues will not be discerned until there is some other (in 1989) appeal). a criminal case the statute of limita- noticeable for first time on jurisdictional tions is a fact and is therefore made, ing expenditure is

adequate remedy ordinary specific in the course law_ find or more of the by To enforceable manda- director shall one exist: mus, duty clearly following one circumstances to must be enjoined law. The law peremptorily moneys “1. The and estimated revenues act, it must not authorize ap- specific fund from which ’ require must it to be done.... propriation [Cita- is made are insufficient to tions legislative appropriations omitted.]” meet all from the fund. Mart, Minot, City Mini Inc. v. obligation (N.D.1984) (quoting payment “2. in- Mid or the Minot, City curred is not authorized law. land Produce Co. 257-258, 294 N.W. expenditure obligation “3. The con- (1940)). trary to intent as recorded records, any doc- reliable Issuance of the writ is left to the uments, or other reliable evidence court, discretion of the trial and a sound available. on denial of the writ will not overturned availability “4. Circumstances or appeal unless the court abused its dis previously facts not known foreseen Corp. Baches, Broadway cretion. Old legislative assembly by the 736; supra, 450 N.W.2d at McCollum v. possible accomplishment of make Bismarck, City City Commissioners of at a (N.D.1986). A court appropriated.” amount than that lesser in an its discretion when acts abuses unconscionable, arbitrary, or unreasonable specifically provides The statute that the Backes, Broadway Corp. v. manner. Old budget may of the make an director allot- supra, 450 N.W.2d at 736. ment for which reduces available funds an if one or more of the four assert The School Districts that Sec not, guidelines however, met. It is does 54-44.1-12, N.D.C.C., imposes specif tion a provide express implicit duty or upon an ic, duty statutory upon the director of the if the director to funds the “unallot” rea- restore, “unallot,” budget funds subsequently son for the allotment abates. projected rise after an allotment revenues Nor do the School direct our at- Districts provides: made. That statute been legislative history sug- tention to which expenditures. over “Control rate of Legislature gests the intended to im- that budget The director of shall exercise the duty upon pose a the director. such Had the execution of continual control over Legislature require the meant to restora- budget affecting departments the the tion of funds if allotted and when revenue government, agencies of with state projections improved, explicit- it could have judi exception the of the ly done so. means the cial branches. Execution Legislative Assembly analysis all The 1989 approval commitments percent budget conformity program provid aware of the two reduc- with the budget, comparison through tions frequent ed in the that had occurred allot- estimates, August process ment in 1988. The actual March revenues and projections predicted 1989 revenue analyses and on the these reve- basis of $1,039 Nevertheless, expendi nues of comparisons control the rate billion. Legislature through of allotments. took no action to restore the system tures a funds, by specific through supplemental ap- The allotment made allotted must be otherwise, agencies propriations and based its departments fund and all budget on must 1989-1991 those additional funds moneys that receive from fund being at percentage allotted on ba available the end of the 1987-1989 a uniform The 1989 did not sis. Before an allotment is made which biennium. restored, require reduce that allotted funds be will the amount funds which through specific appro to an which it could done pursuant can be disbursed appropriation bill 1989 priation or before an allotment disallow- (N.D.1988). relied In session, apparently it 432 N.W.2d 897-898 instead setting Trinity Medical Center v. North Dakota availability of (N.D. Nursing, bienni- Board appropriations N.W.2d 835 1987), underpin um.3 traced the historical we nings of the doctrine and reviewed at Rayl, as not determine whether We need con length evolution in this state. We its budget, discretionary had director of application a more relaxed cluded that 54-44.1-12, N.D.C.C., power under Section “necessitat nondelegation doctrine was ques funds. The relevant to restore0 the society complexities of the ed proceeding is whether tion in a mandamus Center, Trinity Medical which we live.” absolute, duty nondiscretionary he an supra, 399 N.W.2d at funds. The Districts School restore carry their of demon burden have failed apply the It is within this context that we legal duty strating a clear to restore standards doctrine. In traditional of the Accordingly, we conclude that funds. County Stutsman v. State Historical did not abuse its discretion when trial court (N.D.1985), Society, 371 N.W.2d it refused to issue writ of mandamus. summarized those standards: we expressly by the “Unless authorized IV. CONSTITUTIONALITY Constitution, Legislature may State Districts that Section The School assert delegate legislative powers purely its not 54-44.1-12, N.D.C.C., is unconstitutional Ralston Purina any body. other Legislature’s authority delegation of Hagemeister, Company v. Const., X, under Article Section N.D. However, (N.D.1971). Legisla- appropriate state funds. may delegate powers ture not Leg- are im exclusively legislative All enactments and which strong presumption of consti bued conveniently with cannot do because islature conclu tutionality, presumption and the Simply detailed nature. because clearly sive unless it is shown that Legislature may have exercised a or federal contravenes state statute power does not mean that must exer- Hegg, constitution. State Ralston Purina power. In cise Jones, (N.D.1987); Richter supra, Company, pointed out we 209, (N.D.1985). Any 211 doubt N.W.2d delegable distinction the true between of the constitu must be resolved favor non-delegable power was whether and Verry v. Tren tionality of the statute. granted gives authority power to beath, 567, (N.D.1967). 148 N.W.2d 571 power per- or that make a law whether only to the of a law which tains execution change recently gradual noted a We have by Legislature. The enacted was doc- approach nondelegation to the our facts which power to ascertain certain trine, and we now the modern view follow bring provisions of a law into that, area, it will recognizes complex in a which by its is not an operation own terms may necessary del- appropriate and to be terms, delegation of general long unconstitutional egate in and as broad Housing Authority Ferch v. powers. adequate proce- as and there are standards of Lawrence, 764, County, 79 N.D. Cass Lawrence safeguards. dural 25, 1989, greater pre- August approximately than $17.2 after the million dated In an affidavit ended, November, Rayl viously ex- session 1989 estimated in and plained: drought greater million than the fore- $22.6 July, Legislature relied cast in on budget, prepared "OMB executive additional revenue to fund the 1989-91 Legislature, presented the as- it to the with appropriations and no considera- biennium’s be sumption would not that 2% allotment given utilizing was to the additional reve- tion my knowledge, To the issue wheth- restored. pur- for the nue to unallot 2% reduction by the 2% never discussed er unallot expenditure during pose of bien- agencies, Legislature, or state individual agency group suggest- No nor interest groups during nium. special the 1989 Ses- interest fact, March, 1989, that the additional revenue should used ed sion. In when the forecast general that would be ‘unallotment.’” indicated fund revenues 286 es- parameters However, set execute the law within (1953). the law must

849 by Legislature. tablished en reasonably guidelines clear forth body to appropriate ascertain able the the School Districts We conclude Co., su Purina the facts. Ralston v. 54- demonstrate that Section have failed to pra.” 44.1-12, N.D.C.C., an unconsti- constitutes legislative authority. delegation of tutional governmental Delegation of various remaining issues We have reviewed long recognized as a been functions has parties and find them to be raised necessity: virtual The order of the district without merit. “ ‘ delegate Legislature cannot “The court is affirmed. law, it can make power to its make Trinity Medical County, 13 N.D. There are halls 713 [ inquiry and determination outside of the Pa. cannot be known the law er, own action some fact a law County, and must 491, Am.Rep. useful (1904) at 839 stop the wheels of makes, legislation.” delegate many things upon which wise legislation ] depend. (quoting state therefore be a (quoting to the 242] Center, 100 N.W. 711 intends to power to determine To ’ Locke’s must 716).” things upon [Picton Picton v. Cass lawmaking pow- deny N.W. depend supra, government. Appeal, subject make, ^[711] v. Cass (1904)). would which which its at terms ty, resulting in nizes that in a ing the guards. adequate standards and necessary and rately to nale contained therein. But JJ., concur. islative specially. I majority opinion and am aware VANDE I concur in the result reached GIERKE, delegation authority In our sound that the “modern view” WALLE, LEVINE delegation appropriate increasingly “complex a note of caution concern- consistently greater I legislative authority. agree broad Justice, procedural safe- area” accompanied MESCHKE, intricate socie- with I write delegate leg- concurring the ratio- may general in the recog- sepa- in- in- government, volvement 54-44.1-12, N.D.C.C., by its evitable, in states such as particularly requires terms the director desire a full- Dakota which do not North one or more of four enu to determine that professional branch allot present merated factors is an before Nevertheless, appears there government. reducing appropriation may be ment distinction those to me to be some between regard, In this this case is substan made. regulatory and administrative functions of tially ex rel. similar cases such as State freely delegated Davis, N.W. 59 N.D. Kaufman body more role of by that and the basic (1930), v. Ha Co. Ralston Purina appropriating the funds wherewith (N.D.1971), in gemeister, 188 N.W.2d 405 I delegated performed. functions are to be constitutionality of upheld the which we suggest more fundamental roles de- those limits for an statutes which set outside mand closer review. fees, licensing re appropriation and for to simultaneously granted spectively, and one of There should be little doubt that vary the agency authority to an limited more roles of the the basic charged with specific expended amounts not the most fundamental role branch—if Trinity repetitiveness Medi the with which it in those outside limits. See because of Center, (summarizing power and of “the supra performed these must be cal —is i.e., appropriation of cases). purse,” the the other similar operation of the entire budget power funds for the given not the director of the Const, IV, art. law, authority government.1 to only a the §§ to make Davis, 1971), taxing appropriation involved the and 1. Cases such as State ex rel. Kaufman Assembly, (1930), authority Legislative but did Ralston and 59 N.D. 229 N.W. 105 (N.D. underlying purpose, such as the Hagemeister, not involve an N.W.2d 405 Purina Co. v. thereof, portion time for allotment or a if the esti- [specifying the manner and and X, appropriation and N.D. Const. art. mates which the director relied bills] [public moneys changed; prescribe system whereby to be disbursed § appropriation]. pursuant anticipated specified at a date revenue object particularly This is true where of will determine whether or not a reduction appropriation made, is for a ordained might provide objec- is to be better VIII, by the Constitution. N.D. Const. art. by delegate tive standards which to to the Assembly [Legislative pro must make budget authority director of the to re- § and for establishment maintenance vision appropriations. duce State ex public system of a schools]. present I believe statute is so broad Link, (N.D. rel. Walker N.W.2d 823 vague alarmingly as to close to the 1975) [Legislature cannot refuse to fund a edge legally acceptable delega- is a what constitutionally mandated function]. legislative authority. tion of The director 54-44.1-12, NDCC, which autho- budget ap- of the is authorized to reduce budget director of the rizes the to exercise propriations if the estimated revenues will budget the execution of the control over legislative appro- insufficient to meet all agencies affecting departments of priations particular from a fund [in separate government fund, not the general state case the which is the source —but judicial branches thereof— portion of funds for a substantial of the does, observes, forth majority as the set govern- fundamental activities of state reducing appropriations. for circumstances doing and in so the reductions must ment] 1 of that section sets forth the departments agen- Subsection be uniform for all standard, i.e., “moneys first that the moneys cies that receive from that fund. specific estimated revenues in a fund from But other than those restrictions there are appropriation is made are insuffi- guid- no standards which the director is legislative appropriations meet cient to all ed as to the extent of the reductions or the Although the fund.” this is a reason from if obligation to restore those reductions reducing appropriation, for I am less improve. Perhaps revenue estimates most objective few, convinced that sets forth importantly, any, proce- there are budget for standard the director safeguards whereby dural the actions of in revenue estimates questioned by follow. Fluctuations the director two-year period over the more than from disagree predicate with the for those who Legis- opin- the time of the majority I concerned the actions. am Assembly to end of the biennium upbn expand lative the del- ion will be relied appropriations made egation legislative authority for which the were in this trou- in, example, unexpected not appropriations. suggest should I blesome area recession. But affirming of drouth and denial of the writ that while recog- instance, more than ought 54-44.1-12 does little in this of mandamus we § important It is possibility. warning nize that that the current statute sound a delegate to Legislative Assembly not legal pitfalls which could result contains authority contrary the director of the in other circumstanc- conclusion judgment for substitute that officer’s es. Assembly. equally

judgment of the It Assembly’s important not thwart LEVINE, J., concurs. 54-44.1-12, 3 of intent subsection [see § would, for ex- Provisions which NDCC]. the com- ample, establish the time at which parison with actual of income estimates made; proce-

revenues is to be describe income; predicting re- dure to be used quire to restore an director secondary elementary cation in the State. edu-

maintenance

Case Details

Case Name: North Dakota Council of School Administrators v. Sinner

Court Name: North Dakota Supreme Court

Date Published: Jul 3, 1990

Citation: 458 N.W.2d 280

Docket Number: Civ. 890301

Court Abbreviation: N.D.