Dr. Jacob Schmitz, Plaintiff and Appellant v. North Dakota State Board of Chiropractic Examiners, Defendant and Appellee
No. 20200310
IN THE SUPREME COURT STATE OF NORTH DAKOTA
APRIL 20, 2021
2021 ND 73
Opinion of the Court by VandeWalle, Justice.
Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Pamela A. Nesvig, Judge.
REVERSED AND REMANDED.
Michael J. Geiermann, Bismarck, ND, for plaintiff and appellant.
Seth J. O‘Neill (argued), Assistant Attorney General, and Matthew A. Sagsveen (on brief), Solicitor General, Bismarck, ND for defendant and appellee.
Schmitz v. State Board of Chiropractic Examiners
No. 20200310
[¶1] Dr. Jacob Schmitz appealed from a judgment entered after the district court granted the North Dakota State Board of Chiropractic Examiners’ motion to dismiss for failure to state a claim upon which relief can be granted under
I
[¶2] In March 2019, the North Dakota State Board of Chiropractic Examiners (the “Board“) issued an administrative complaint against Schmitz, a chiropractor licensed by the Board. The administrative complaint initiated an administrative proceeding against Schmitz, which resulted in the administrative law judge (“ALJ“) issuing a recommended order granting summary judgment to the Board. The ALJ declined recommending the disciplinary action that the Board should take against Schmitz. Instead, he noted six observations to aid the Board‘s determination of disciplinary action against Schmitz.
[¶3] In April 2020, the Board noticed a special meeting, with Schmitz listed in the notice and agenda, including a footnote stating, “The governing body anticipates this topic may be discussed in Executive Session. The legal authority for Executive Session is
[¶4] In May 2020, the Board held a regular meeting. The proposed agenda included approving the draft order for summary judgment against Schmitz, with a footnote providing, “[T]he governing body anticipates this topic may be discussed in Executive Session. The legal authority for Executive Session is
[¶5] In June 2020, Schmitz commenced this lawsuit, alleging the Board violated the law on access to public records and meetings. The Board moved to dismiss for failure to state a claim upon which relief can be granted. After a hearing, the district court granted the Board‘s motion and dismissed the complaint.
II
[¶6] Schmitz argues the district court erred by granting the Board‘s
A motion to dismiss a complaint under
N.D.R.Civ.P. 12(b)[6] tests the legal sufficiency of the claim presented in the complaint. On appeal from a dismissal underN.D.R.Civ.P. 12(b)[6] , we construe the complaint in the light most favorable to the plaintiff and accept as true the well-pleaded allegations in the complaint. A district court‘s decision granting aRule 12(b)(6) motion to dismiss a complaint will be affirmed if we cannot discern a potential for proof to support it. We review a district court‘s decision granting a motion to dismiss underN.D.R.Civ.P. 12(b)(6) de novo on appeal.
Krile v. Lawyer, 2020 ND 176, ¶ 15, 947 N.W.2d 366 (cleaned up). “A court‘s scrutiny of pleadings should be deferential to the plaintiff, unless it is clear there are no provable facts entitling the plaintiff to relief.” Rose v. United Equitable Ins. Co., 2001 ND 154, ¶ 10, 632 N.W.2d 429. Because determinations on the merits are generally preferred to dismissal on the pleadings,
[¶7] Schmitz alleges in his complaint that the Board violated laws on access to public records and meetings.
[¶8] Under
[¶9] All meetings of a public entity must be open to the public, except as otherwise provided by law.
“Attorney consultation” means any discussion between a governing body and its attorney in instances in which the governing body seeks or receives the attorney‘s advice regarding and in anticipation of reasonably predictable or pending civil or criminal litigation or adversarial administrative proceedings or to receive its attorney‘s advice and guidance on the legal risks, strengths, and weaknesses of an action of a public entity which, if held in public, would have an adverse fiscal effect on the entity. All other discussions beyond the attorney‘s advice and guidance must be made in the open, unless otherwise provided by law. Mere presence or participation of an attorney at a meeting is not sufficient to constitute attorney consultation.
[¶10] Schmitz contends the district court failed to accept as true the allegations in the complaint. The complaint provides the ALJ issued a recommended order for summary judgment in favor of the Board, but did not propose any sanctions against Schmitz. The Board held a meeting in April 2020, with only two items on the agenda: 1) Schmitz, and 2) per diem. Shortly after beginning the meeting, the Board went into executive session, which lasted approximately one hour and forty-five minutes. After the meeting opened back up to the public, the Board assessed $123,000 in penalties, costs, and fees against Schmitz, and required his practice to be monitored for six quarters at his expense. Schmitz alleges the Board discussed and established these sanctions in the executive session. Schmitz requested the recording of the Board‘s executive session, and the Board denied the request. The Board held another meeting in May 2020. The proposed agenda included approving the draft order for summary judgment against Schmitz. Soon after the meeting began, the Board went into executive session for approximately thirty-five minutes. After the executive session, the Board voted to confirm the sanctions against Schmitz. Schmitz requested the recording of this executive session, and was denied by the Board.
[¶11] Schmitz claims the Board violated
[¶12] The Board argues some of the allegations in the complaint are conclusory or speculative, and should be disregarded, relying on Brakke v. Rudnick, 409 N.W.2d 326 (N.D. 1987). In Brakke, the Court concluded that the trial court did not err in dismissing the complaint against the twenty-seven defendants because of insufficient service of process. Id. at 331-32. As an additional and independent reason for dismissal, the trial court determined the complaint failed to state a claim for relief. Id. at 328. In relation to some of the allegations in the complaint, the Court stated:
Although we recognize the complaint does contain generic allegations that the “defendants” conspired to deny the plaintiffs due process of law, the allegations are merely conclusory statements unsupported by allegations of factual circumstances
specifically relating to any of the defendants. We do not believe that those generic allegations are sufficient to state a cause of action as to any specific defendants.
Id. at 333 (citations omitted).
[¶13] Here, the complaint does not contain generic allegations against unnamed defendants. It contains specific allegations against the Board relating to access to public records and meetings. We decline to extend the limited rule in Brakke to the facts of this case. The complaint states a claim for relief. Because the district court erred in its application of
[¶14] Schmitz provided several prayers for relief in his complaint, including for the district court to declare the executive sessions, or portions thereof, violated the open meetings law, and order the recordings, or portions thereof, be provided to Schmitz and made public. Attorney work product and attorney consultation are exempt from the general laws on access to public records and meetings. See
III
[¶15] We reverse the judgment and order granting the Board‘s motion to dismiss, and remand for further proceedings consistent with this opinion.
[¶16] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte