*1 appears to However, rationale that same in which the situation apply
me to accomplished automobile
theft bodily inju- inflict serious
with a threat to
ry- sug- reasons to sound may
There well be theft, crime, committed
gest such that a bodily injury inflict serious
with a threat to more serious offense graded as a
should be even property, that of a
than the theft value, accomplished
high without dollar not But am convinced our
such a threat. that end or accomplishes that we
statute except by statute
can so construe the arbi- judicial If that end
trary fiat. desirable
policy Legislature should amend the accordingly.
statute RETZLAFF,
Ruth Plaintiff Appellant,
GRAND FORKS PUBLIC SCHOOL DIS- public corporation,
TRICT NO. Appellee.
Defendant and
Civ. No. 870370.
Supreme Court of North Dakota. $100,000 $100,000, extraordinary, cess property would be theft of more than worth automobile, merely justification including comments seem to reflect an was to be Class B making felony. adopted felony, Legislature for regardless If the theft of an automobile a same our value, lowering although of its lesser rationale the threshold for a an intent to $10,000, $100,000 felony limit the theft of an automobile to Class B a Class C from $100,000; therefore, felony felony. B if its value exceeded theft in this would be a Class instance *2 McConn,
“Mr. attorney, school district year reminded members that first profession grant- teachers are not hearing rights However, by ed law. he accept said board members could a state- Bismarck, Chapman, for Chapman and by ment the teacher on her own behalf. appellant, argued by Daniel J. plaintiff and spoke then “Ruth Retzlaff to the board. Chapman. agree She indicated that she did not Durick, Bismarck, for defend- Pearce & of her evaluations made work. indi- She argued by Gary R. Thune. appellee, ant and cated she did not have documentation to McConn, by Robert L. Jr. Appearance support herself because she did not be- McDonald, Jr., Bismarck, for ami- Jack threatening job lieve it was a issue. Newspaper North Dakota Ass’n ci curiae by “After some discussion board mem- Chapter North Dakota of the Socie- and the bers, following motion was made: Joumalists/Sigma Professional Delta ty of (Byron, Young) MSC Chi. Approve the nonrenewal Retzlaff, of contract for Ruth Grade ERICKSTAD, Chief Justice. Belmont. appeals Ruth Retzlaff from an order1 Motion Carried. complaint against dismissing her Grand taken, (5) “A and it vote was was five Forks No. 1. affirm. School District We (3) Kramer, yes three In no. Favor: Ruth Retzlaff was offered a contract to Seabloom, Young, Youngs, Byron. grade Elementary teach second at Belmont Carlson, Larson, Against: Thompson.” Forks, Dakota, North School Grand year. 28, 1987, the 1986-87 school This case arose By April letter dated the clerk out decision school board confirmed the school Grand Forks District No. 1 not to renew board’s decision not to renew Retzlaff’s teaching Retzlaff’s contract. The school para- contract. With seven additional board’s decision not to Retzlaff’s renew graphs explained why the letter Retzlaff’s contract on was based the recommenda- contract would not be renewed for the com- Randklev, Principal tions of Beth of Bel- ing year. school School, York, Elementary mont and Gordon complaint Retzlaff filed a in district court Superintendent elementary Assistant alleging rights pro- she was denied certain education for the district. by vided section N.D.C.C. She The school decision recorded in board’s alleged also that the school board “caused regular meeting April the minutes of its on unfairly castigated up her to be and held 14, 1987: great damage ridicule ... caused [and]
“NONRENEWAL reputation Dr. York asked the her stature and as a teach- summary board to consider the judgment nonrenewal er....” At a motion Retzlaff, hearing Ruth a first at teacher Retzlaff also contended Gary Belmont School. Ms. authority Retzlaff was rec- R. Thune was without represent ommended for Beth nonrenewal the school board and that individ- Randklev, Principal, because of lack of ual school board members met planning skill in principal separately effective lessons and an as a method of inability provide adequate intentionally circumventing “open instruction law.” See meetings students. N.D.C.C.2 § appealable pursuant provides: 1. The order 2. Section 28-27-02(5), N.D.C.C., § meetings.— construed in Bond v. Open governmental “44-04-19. Busch, (N.D.1981), Except law, specifically provided by 705 n. 3 as otherwise public governmental or which all allows us to review: bureaus, commissions, bodies, boards, or “5. An order which involves the merits of an agencies political of the state or subdivi- thereof_" part action or some state, organizations agencies sion of the or provide tions to notification of subsequently granted the written court The district to a judg- summary motion for school district’s an offer to first constitutes renew ment. of the teacher for the the contract ensu- there were contends: appeal Retzlaff On year under the same terms relating to questions and factual legal as the contract for the and conditions 15- compliance with board’s year.. notification of nonre- current Such *3 im- N.D.C.C.; 47-27.1, the school board given first-year a must newal authority; delegated its properly description of the contain a detailed rea- repre- Thune not authorized Gary R. was son or reasons for the nonrenewal.” board; school board and the the school sent [Emphasis added.] law,” section “open violated N.D.C.C., 15-47-27.1, requires meeting privately 44-04-19, N.D.C.C., by timely to take three rather than hold- the school district principal the school steps first-year teacher’s contract before a meeting. ing public a First, the school properly terminated. Retzlaff’s teach- parties agree that The in the district must conduct an evaluation exclusively by sec- rights defined are performance review” form of a “written N.D.C.C., 15-47-27.1, which reads: tion provide copy perform- a of the “written teachers— First-year “15-^7-27.1 first-year ance teacher not review” to the Evaluation —Renewal Second, later than 15. December school district and Each contracts. district must conduct an evaluation in this state director of institutions perform- provide the second “written through system have an established shall Fi- ance review” no later than March 15. pre- evaluations are two written which provide nally, the school district must writ- year every during pared each ten notification of its decision not to renew year of is in his or her first teacher who description of reasons and a detailed teaching. The must be in the evaluation April 15 and for nonrenewal between reviews, performance written form of completed the first review must be year Retz- On October 31 of the school first-year teachers made available to principal, Beth Rand- laff and the school fifteenth and the no later than December klev, signed REPORT a “SUPERVISORY completed and second review must be following report contains the # 1.” The fif- no later than March made available statement: year. If school board or teenth of each a goals that “Below is a list of educational of institutions determines the director in developed accordance with have been not to renew the contract a goal setting procedure of the school teacher, of the deci- written notification process. supervisory district’s given must sion of nonrenewal be agreed mutually April fifteenth “A of these teacher no earlier than discussion upon goals has between May first. Failure «.occurred nor later than teacher and or the director of institu- supervisor.” funds, following goals report for the part by public listed the supported 3. The in whole or year: funds, \ 1986-87 expending public open or shall scope with the public. governing "1. To become members of the familiar sequence bodies, boards, commissions, for the 2nd Scott-Foresman agencies, Agrade above thróugh look the last units series. I will meeting organizations in violation of this or going. see where students are the books to guilty for a section shall be of an infraction tl\e reading emphasis place with an "2. To an on body, public governmental A or first offense. development. urgency’ reading 'attitude of bureau, commission, agency or meets grade «.graders all second on Strive to have in violation of this section if it refuses May! level \ meeting, person persons to such or access up reading each within "3. To set refusal, climbs implicitly explicitly unless such or reading group promote independent or do communicated, physical due to a lack of vary class/group I will incentive systeit^. meeting person space room for the throughout the in- these continue persons seeking access." terest. 15-47-27.1, N.D.C.C., states she section affidavit indicates that Principal Randklev’s legislators in the class- some individual had their own personally observed concept performance review,” days before the first of a “written room on six different precise but that no definition was formed. place. evaluation took Indeed, legislators suggested two the defi- improp- trial court Retzlaff contends nition should be entrusted each school judgment summary because erly granted district.5 Report” not, “Supervisory the first 15-47-27.1, requires, legislative history is in While review.” The stat- “written conclusive, “Supervisory Re believe per- term “written ute does not define port” which indicates that Retzlaff met review,” parties both sub- formance supervisor with her and discussed the at from individuals affidavits mitted goals tainment of certain educational sub setting respec- forth their education field stantially complies with section definitions. tive previously N.D.C.C. We have ruled that *4 15-47-27.1, N.D.C.C., originated compliance procedural substantial with Section legislative requirements Bill 2394 of the 1983 for termination is sufficient in Senate Stensrud v. legislative history4 purpose Part of the of if their is fulfilled. session. view” on March assembly. the North Dakota that the sor. ... He way The “STEVE al. reasons for performance system. He felt this is the best review. dures with contracts individual school district.” “HOUSE—EDUCATION "March “Rep. “HOUSE EDUCATIONCOMMITTEE good “March "SB "6. To ages. "7. To smooth classroom the children er ceive "5. To hold progress report on tion/management/planning ing groups. oped Mrs. Hutton in (minimum "4. Senate Bill 2394 of the daily, Also can be used to was discussed: bill To 2394— by work and recognition." [******] Olsen asked for a ****** [******] definition of "written I help 9, 15, review, document, 9, 1983, help will devise requires and The minutes of those SWIONTEK, clapping my goals. 1983 respect Relating of one change 1983 practice complimenting students pointed a conference with Dr. Randklev development follow House good these to be left for each other as group per N.D.C.C., or removal of an individu- management. March develop positive nonrenewal out section on written behavior. Fargo, system month) improve forty-eighth Education Committee working defining work as a teacher and to was discussed 15, 1983, Dist. hearings of rewards for system to discuss performance. board together justify your with 3 read- of teachers’ up I will of formal 45, legislative organiza- each oth- they to each self im- as proce- reveal Spon- devel- part help my for re- re- 5. See comments of and Hoffner ante n. 4. performance review as follows: and Swiontek you "[Rep. when the teacher comes to teacher ent or that the that teacher. basis and down that after and discussions formal review is that individual, teacher as well as part superintendent within the ly up district, ah, "[Rep. sentative dible] At the two be left in. He said what maybe He also told what he board member. view of thought should be.” “Rep. if three reviews have “Rep. Swiontek said he liked amendments but “Rep. “Rep. they actually of the evaluation. Hoffner Hoffner Olsen asked if it meant a formal inter- [******] ****** with that principal Swiontek]: 2 formal reviews are Hoffner]: The gets but it would be leaves, some of the would observe the principal teacher, Olsen: I goes the discretion of the local suggestions you hearings, Representatives described sit down with that individual and principal copy over gave said it could include that. ah, all of this I’m sure would be they sign of other retains a think that’s individual on a guess Mr. Chairman and administration and school document the observations or the Representatives I think the everything, positive points of it and his existing language thought their idea or assistant my problems this would be basical- you interpretation. individuals language improvements off on it and the copy.” superintendent interpretation teacher_[inau- enough. ah, work, system a formal review very important of definition of superintend- observe the the written one-to-one when the principal, Swiontek monitor Hoffner He also should Repre- dates, why. sit 519, insists the school board relied too College, Mayville terminate (N.D.1985) (oral heavily notice to on the administration’s recommen- complied substantially voting college instructor not to her dation renew contract. that notifica- requirement procedural contends that if an administration Quarles also, writing); see tion submitting nonrenewal recommended 34, Dist. No. Public School McKenzie one sentence letter to the school e.g., (court (N.D.1982) would N.W.2d recommend nonrenewal because “[W]e if it invalidat- substance” form over “exalt discipline,” X has teacher had bad because nonrenewal ed teacher’s properly could school board vote to not right to a provide teacher failed to renew because the does not guaranteed by day stat- continuance seven sufficient to make a deci- information Thus, failed to assert teacher where ute. sion. Retzlaff contends the administration her, harmed her non- denial continuance produce to support should have evidence valid, notwithstanding teach- renewal its recommendation of nonrenewal. continuance). statutory right to er’s do not that section 15-47-27.- We believe performance review purpose of the relating to nonrenewal of first- apprise first-year teacher teachers, requires production expectations professional administration’s introduction evidence such would be any deficiencies in and alert judicial hearing in a or an required adminis- An examination of the his or her work. hearing, in a trative or even summary judg- response to the motion taught hearing for teachers who have more in support thereof ment and affidavits argument year. than one Retzlaff’s over- *5 not no that Retzlaff was contain contention legislature’s pursuant decision looks the expecta- apprised of the administration’s 15-47-26, N.D.C.C., to first- section omit any or that not alerted to tions she was protections provid- from the teachers the deficiencies. Her contention before in sections 15-47-27 and N.D. ed was she was apparently school board 15-47-38(5), N.D.C.C., pro- C.C. Section a apprised not that her vides, among things, prior other threatening be “job issue.” This cannot taught of teachers who nonrenewal “Supervisory Although test. the Re- the year, one the school board must more than port” signed by Retzlaff and Randklev give rea- reasons the deficiencies, alleged any does not set forth sons: substantially complies think it sec- with tion N.D.C.C. specific doc- be drawn from “[M]ust arising findings from formal re- umented argues Retzlaff also the Grand by the board re- views conducted with del improperly Forks School Board has spect perform- to the teacher’s overall egated responsibilities its nonre- during the given by the ance.... The reasons (1) process. newal Retzlaff the argues renewing not a teacher’s con- board for blindly school board recom followed the justify the must be tract sufficient mendations the administration the contemplated action of board independent should have made an determi arbitrary or may not be frivolous abilities, (2) teaching nation of her the ability, compe- the must be related to school board’s written notice of nonrenewal tence, qualifications or of the teacher as was invalid because the letter from came teacher, necessities dis- the the clerk of than board rather calling of funds for a trict such lack the school board itself. Retzlaff summa teaching staff.” reduction point question: rizes her is “[W]ho charge here?” Neither conten these hearing distinguished to be This latter is convincing. tions is hearing pro- expansive from the more also un- discharge for in for cause cases vided agrees
Retzlaff that the statute does 15-47-38(2), give first-year N.D.C.C.6 In addi- right teacher a hear- der section to a many contemplating discharging for cause afford the teacher 6. A school must board pro- attorney also assumes to act. In tion, quoted Campbell Bank we from City vides: Springs, Hot Ark. meeting, shall discuss S.W.2d the board “At the (1960): whether or and determine the reasons “ fact, has, in sub- not the administrator party is incumbent on the under- ‘[I]t If the board reasons. stantiated the taking question authority of the have not been the reasons finds that representing attorney adversary, his proceed- substantiated, the nonrenewal by affidavit, show to the Court facts ings be dismissed.” will presump- sufficient to raise a reasonable clearly excluded first- legislature attorney acting tion that in the protec- of these from all year teachers authority party case without from the he Accordingly, Retzlaff's assertion tions.7 then, represent, assumes to and not until did not conduct its the school board then, attorney may required ” light is without merit in investigation own authority.’ show his statute fact that the relieved of the produce any Retzlaff has failed to evi- duty. of that school board attorney dence that Thune acts without the next asserts authority. school board’s Retzlaff relies explaining sent the letter should have upon an affidavit made another teacher of the clerk reasons for nonrenewal instead within the district which reads: school board. Retzlaff asks: “Is it many “That she has attended who must determine what not the board meetings Defendant the reasons are nonrenewal? Where has district she examined the get a clerk of the board this authori- does minutes of the which she did ty?” Again, questions Retzlaff’s overlook any not attend and she is to find unable legislature’s expedite decision to nonre- instance when school board of the newal decisions of teachers. The engaged Defendant school district has legislature answer that the relieved the Gary the services of Mr. Thune as its making school board of the burden of inde- attorney and she is unable to find and is pendent findings respect compe- unaware of direction to said tency *6 may of It teachers. handling for the of this lawsuit on behalf appropriate chairperson been more for the of the school district.” signed of the school board to have the letter, light in subsequent but of the board probative value of this is affidavit action, in ratifying previous effect deci- its merely minimal as it asserts that as there sion, this contention also merit. lacks attorney ap- is the no evidence that was pointed by the it must concluded attorney Gary Retzlaff next asserts attorney Thune not that was authorized to authority R. Thune has no represent to the act for the board. The affidavit fails to school board. We said in State Bank v. presumption attorney rebut the that an Bismarck, (N.D. City 85, person entity for the 1982), authorized to act duly attorney that when a licensed Bank, appears ostensibly represents. he in an su- proceeding, action or Suess, Winkjer, proceed upon pra; Rolfstad, court must McKennett presumption Hanson, 734, that the before it is to & Kaiser v. N.W.2d authorized appear represent person (N.D.1974). for whom 28-32-06, 28-32-07, 28-32-09, procedural rights found in the North sections 28-32- Agencies 28-32-11, 28-32-12, 28-32-13, 28-32-14, 10,
Dakota Administrative
Practices Act.
N.D.C.C.,
15-47-38(2),
part:
28-32-16, 28-32-17, 28-32-18,
28-32-15,
reads in
28-
evidence,
28-32-20,
procedures
32-19,
"All
subpoena
relative to
and 28-32-21."
witnesses, oaths,
of
sion,
testimony,
record of
deci-
"teacher,”
By
rehearing,
definition the term
as used in
appeals,
7.
certification of
record, scope
procedure
appeals,
15-47-38 and 15-47-27 does not
include
§§
appeals
supreme
year
to
in
first
of teach-
court shall
"teachers who are
their
be con-
provisions
ing.”
ducted in accordance with the
N.D.C.C.
§
not
clearly
testimony,
denied
argues the school
such
Finally, Retzlaff
invalid
meetings
though
official
law
action
even
such
open
violated
board
is taken at
principal
in
official action
an otherwise
meeting
with
privately
legal meeting.”
to discuss Retz-
and three
two
groups of
After the school board
nonrenewal.
laff s
to the district court with
We remanded
Retzlaff s contract at
renew
not
voted
the district court direct
instructions
that
1987,
meeting
April
Prin
on
regular
its
actions
the school district to reconsider its
met
or two school
with one
cipal Randklev
Id.
open meeting.
in
an
during the first
at a time
members
board
present
were
in Danroth
Similar facts
met
of June 1987. Randklev
weeks
two
rule
and we
“no reason
overturn the
saw
mem
of the nine school board
seven
with
v. Bowman
in
Peters
of law announced
these “Informal
Randklev describes
bers.
Public
District No. 1.” Danroth
School
Meetings” as follows:
both Danroth
clear
at
It was
responded
I
“During these sessions
Peters that
the nonrenewal vote was
from
individual board
questions
illegal
In
“product
meeting.”
an
my
with
and described
members
however,
bar,
at
case
members
brought
no written doc-
Retzlaff.
Miss
alleged
held their
secret meet-
board
sessions,
these
did
any
umentation
ings
seven weeks
voted
board
after
personnel
any
from her
items
not share
Apparently
to renew Retzlaff’s contract.
file,
more than
never met with
two
to con-
of the board wanted
members
any one
No
members at
time.
board
previous
firm the
of a
decision.
wisdom
person
or other
was
administrator
circumstances,
peculiar
where
Under these
sessions.”
present at
of these
meetings
alleged
seven
secret
occurred
contends these
violat-
Retzlaff
had
weeks after the nonrenewal
been
vote
open meetings law
“When
ed the
because:
regular, open meeting,
con-
taken at
we
person from the
meets with an
one
public
clude
neither the
nor Retzlaff
that
information to be
administrator
obtain
say
prejudiced.
particularly
We
this
decision,
in connection
a board
used
light
been
of the fact
had Retzlaff
meeting
within
say
is a
hearing,
the board or
entitled to a
either
44-04-19, N.D.C.C.”
definition of Sec.
We
elected to have the
Retzlaff could have
disagree.
hearing
In this
closed.8
instance
meet
was invited to
Dan
arguments in
addressed similar
We
members
declined.
v. Mandaree Public School District
roth
(N.D.1982)
No.
case clear of a Meeting gatherings § are those Law N.D.C.C. govern- of the quorum or more members committee, ing quorum or a of a body, action of the school
“When official subcommittee, department, clearly product illegal of an district is thereof, minutes, at members meeting, in which documented commission agree open 15-47-38(5), it is to be reads rele- board and the teacher in public.” [Emphasis add- part: meeting persons or the "The be in to other vant must executive both ed.] of the session board unless 644
discuss, decide, concerned, or receive information as Insofar as the issue of fact is relating to the official group on issues the return to the summary judg- a motion for body.” governing business of that support ment in affidavits return deal “goal with whether or not the adopt- unnecessary to consider We find it setting” was an evaluation as a matter of time “quorum rule” at this but we I majority’s law. concur conclusion consider the legislature invite the issue at the trial court level of no issue fact may as the next case in this area law as to substantial compliance investigative of was raised. involve similar discussions Mayville v. quorum prior College, to official Stensrud State 368 less than a action.9 (N.D.1985). 519 N.W.2d herein, the order For the reasons stated complaint dismissing Retzlaff's is affirmed statutory costs to the school district. LEVINE, Justice, concurring and dis- senting. MESCHKE, JJ., concur. GIERKE agree While I compli- that substantial Walle, Justice, concurring special- Vande procedural requirement ance with the of a ty- performance written review is all that is majority opinion. concur I write required, I believe that “super- whether the separately emphasize if the series visory report” constitutes substantial com- meetings among of some of the members pliance question is a of fact. I would place prior of the school board had taken therefore summary reverse the trial court’s the decision not to renew Retzlaff’s con- judgment and remand this case for trial. tract, purpose evading of the consti- compliance degree Substantial is that of statutory open-meeting tutional and re- conformance procedural require- with a quirements, I regardless would reverse necessary accomplish ment the purposes quorum whether or not a of the board was requirement. of that See Stensrud v. present meetings. at those Because no 519, Mayville College, State subsequent action was taken to the meet- (N.D.1985). So, exact conformance is ings issue, remedy at applied in Peters necessary, if “the substantial interests 1, v. Bowman Pub. Sch. Dist. No. procedures designed safeguard are [the] (N.D.1975), N.W.2d applicable. is not protected....” are in fact satisfied and Furthermore, at the time Peters was writ- Mayville College Stensrud v. at
ten in 1975 remedy there was no for a quoting Piacitelli v. Southern Utah State violation of the open-meeting statute. The (Utah College, 1981). 636 P.2d provision making a violation of the statute an infraction was not enacted until 1977. Whether there compliance is substantial 44-04-19, N.D.C.C., See Section ordinarily question as amend- of fact. Stensrud ed 1977 N.D. Laws Ch. 417. As a Mayville supra State College, at 523. policy matter of signal ap- majority should not purpose concludes that the proval any attempts open- to evade the review is to inform the meeting requirements established teacher of the expectations administration’s Constitution and statutes of the State of and to alert the teacher of deficiencies North Dakota. in her work. It ques- becomes a material majority jurisdictions adopted 9. A groups quorum. of less than a Amici maintain quorum defining rule statute as a means of public body that "[i]f members of are conduct- meeting Note, open public. which must be See business, *8 ing public public meeting.” it is a Open Meeting The Minnesota Law reshapes After This question broad formulation Twenty Look, Years—A Second 5 Wm. Mitchell answering Although rather than it. we decline (1979). L.Rev. 389-90 nn. 70 and 72-73 herein, to formulate a definition we believe the Newspaper Amici North Dakota Association appropriate begin prop- definition must with the and the Chapter Society North Dakota public’s osition that the need to be informed Journalists/Sigma Professional urge Delta Chi against equally imperative must be balanced adopt quorum this Court not to rule. Amici public need for effective and efficient adminis- governmental contend bodies could circumvent government. tration of open meetings by gathering law in small then, was in whether Retzlaff tion of fact her and in- deficiencies
fact alerted expecta- administration’s
formed about the as the of her as well
tions fulfilling expec-
consequences those
tations. majority’s resolution of concur with respectful- in this case
the other issues issue of
ly dissent from its treatment of the compliance and from its affirm-
substantial summary judgment.
ance of the Dakota, North
STATE of Plaintiff Appellee,
v. LUND,
Gerald Defendant and
Appellant. Dakota,
STATE of North Plaintiff Appellee,
v. LUND,
Sheryl Defendant and
Appellant. Dakota,
STATE of North Plaintiff Appellee,
.v REIMCHE,
Kathy Defendant Appellant. Dakota,
STATE of North Plaintiff Appellee, REIMCHE,
Richard Defendant Appellant.
Crim. Nos. 870266-870269.
Supreme Court of North Dakota.