Riemers v. City of Grand Forks

Decision Date07 November 2006
Docket NumberNo. 20060057.,20060057.
Citation723 N.W.2d 518,2006 ND 224
PartiesRoland C. RIEMERS, Plaintiff and Appellant, v. CITY OF GRAND FORKS, Respondent and Appellee.
CourtNorth Dakota Supreme Court

Roland C. Riemers (argued), pro se, Emerado, ND, plaintiff and appellant.

Sarah S. Barron (argued), and Ronald F. Fischer (on brief), Pearson Christensen & Clapp, P.L.L.P., Grand Forks, ND, for respondent and appellee.

KAPSNER, Justice.

[¶ 1] Roland Riemers appeals from the findings of fact, conclusions of law, and order for judgment1 that awarded the City of Grand Forks ("the City") summary judgment on his request for open records. We affirm.

I

[¶ 2] On April 4, 2005, Riemers requested access to evidence logs and other information relating to an officer-involved shooting from the Grand Forks Police Department ("GFPD"). The GFPD refused access, telling Riemers that the information could not be released until the shooting victim's trial ended. Riemers then requested access to the information in writing. The GFPD's response included copies of media releases and the cover sheet of the police report, but it did not contain all of the records Riemers requested. It informed Riemers that the GFPD did not have the majority of the information. The response did, however, refer Riemers to other agencies in possession of the records. Finally, it stated that the GFPD considered the evidence logs a part of an "active criminal investigation" and, as such, the GFPD considered the logs exempt from disclosure under the open records law.

[¶ 3] On April 5, Riemers requested an Attorney General's opinion, claiming the GFPD violated the open records law. The Attorney General found the GFPD properly referred Riemers to another agency, the evidence logs were exempt from disclosure, the GFPD properly refused to disclose the logs, and the requested information was part of an "active criminal investigation" because the shooting victim's prosecution was incomplete. N.D. Att'y Gen.2005-O-13 (Aug. 10, 2005).

[¶ 4] On June 6, Riemers filed a complaint in district court, challenging the GFPD's open records policy. At the scheduling conference, the court determined no discovery would be required after Riemers indicated that factual discovery was "not applicable." Based on these facts, the City, representing the GFPD, filed a motion for summary judgment.

[¶ 5] The court held a hearing on September 27, 2005 to consider the City's summary judgment motion. Riemers did not appear at the hearing. At the hearing's conclusion, the court granted summary judgment in favor of the City. Riemers, upon learning of the judgment, filed a motion for reconsideration, claiming he did not receive notice of the hearing. The court granted his motion for reconsideration and scheduled another hearing on December 19, 2005. Prior to the December 19 hearing, Riemers filed a response to the City's summary judgment motion and a motion to extend the time to complete discovery. Again, however, Riemers failed to appear at the hearing, asserting a family death prevented his appearance. After hearing the City's arguments, reviewing the pleadings, and considering the Attorney General's opinion, the district court denied Riemers' motion to extend the time for discovery and entered summary judgment in favor of the City, dismissing Riemers' complaint with prejudice.

II

[¶ 6] On appeal, Riemers argues the district court erred by dismissing the complaint against the City based on the persuasiveness of the Attorney General's opinion instead of the court's independent analysis; in concluding the City did not have to provide access to the requested documents that were not in its possession at the time of the request; and in considering the entire evidence file as part of an ongoing investigation. The City argues summary judgment was appropriate; the district court did not improperly shift its authority to the Attorney General; the GFPD did not violate the open records law when it referred Riemers to another agency; and the evidence logs were exempt from disclosure under the open records law at the time of Riemers' request. We address each of those issues below.

A

[¶ 7] Whether summary judgment was properly granted is "a question of law which we review de novo on the entire record." Wahl v. Country Mut. Ins. Co., 2002 ND 42, ¶ 6, 640 N.W.2d 689. We have stated:

Summary judgment is a procedural device for promptly and expeditiously disposing of an action without a trial if either party is entitled to judgment as a matter of law and no dispute exists as to either the material facts or the reasonable inferences to be drawn from undisputed facts, or resolving the factual disputes will not alter the result. . . . Summary judgment is appropriate against parties who fail to establish the existence of a factual dispute on an essential element of their claim and on which they will bear the burden of proof at trial.

Hilton v. N.D. Educ. Ass'n, 2002 ND 209, ¶ 23, 655 N.W.2d 60 (citations omitted). The evidence is reviewed in a light most favorable to the non-moving party. Trinity Health v. North Cent. Emergency Servs., 2003 ND 86, ¶ 15, 662 N.W.2d 280. The non-moving party also receives the benefit of all inferences that can reasonably be drawn from the evidence. Id. The moving party has the initial burden of showing there is no genuine issue of material fact. Iglehart v. Iglehart, 2003 ND 154, ¶ 10, 670 N.W.2d 343 (quoting Anderson v. Meyer Broad. Co., 2001 ND 125, ¶ 14, 630 N.W.2d 46). However, the non-moving party cannot simply rely upon the pleadings or unsupported, conclusory allegations. Id. That party must present competent, admissible evidence raising an issue of material fact. Id. The court has no duty to scour the record for evidence that would preclude summary judgment. Id. Moreover, "[a] scintilla of evidence is not sufficient to support a claim, there must be enough evidence for a reasonable jury to find for the plaintiff." Id. (citing Wishnatsky v. Huey, 1998 ND APP 8, ¶ 5, 584 N.W.2d 859).

[¶ 8] Riemers' briefs and motions are a near verbatim recitation of the City's statement of the facts. Riemers merely relied upon his pleadings and unsupported, conclusory allegations and he has not presented competent, admissible evidence raising an issue of material fact. We have repeatedly held that to avoid summary judgment, a party must do more. Iglehart, 2003 ND 154, ¶ 10, 670 N.W.2d 343. "When no pertinent evidence on an essential element is presented to the trial court in resistance to the motion for summary judgment, it is presumed that no such evidence exists." Kummer v. City of Fargo, 516 N.W.2d 294, 297 (N.D.1994). Since no issue of material fact has been raised, Riemers' issues on appeal concern the interpretation of N.D.C.C. ch. 44-04 and its application to undisputed facts. The district court did not err in entering summary judgment.

B

[¶ 9] Riemers argues the district court improperly relied on an Attorney General's opinion instead of offering its own analysis. He claims this "delegation of judicial authority" denied him due process under the North Dakota Constitution. Alleged violations of constitutional rights are reviewed de novo. See Riemers v. Grand Forks Herald, 2004 ND 192, ¶ 11, 688 N.W.2d 167. We have also said: "`a party waives an issue by not providing supporting argument and, without supportive reasoning or citations to relevant authorities, an argument is without merit.'" Id. (quoting Riemers v. O'Halloran, 2004 ND 79, ¶ 6, 678 N.W.2d 547). In other words, "[a] party asserting a constitutional claim such as this must make a strong case supported by both fact and law or `forgo the claim.'" Id. (quoting O'Halloran, 2004 ND 79, ¶ 6, 678 N.W.2d 547).

[¶ 10] In asserting his due process claim, Riemers fails to provide any supporting reasoning or citations to legal authorities. He merely relies upon his bare assertions that the district court violated his due process rights. Without support, Riemers' contentions are without merit. Id.

[¶ 11] Riemers argues the court erred by relying on the persuasive authority of an Attorney General's opinion. An Attorney General's opinion is not binding authority upon the courts; however, "opinions of the Attorney General are entitled to respect, and courts should follow them if they are persuasive." Edinger v. Governing Auth. of Stutsman County Corr. Ctr. & Law Enf. Ctr., 2005 ND 79, ¶ 13, 695 N.W.2d 447.

[¶ 12] In the instant appeal, the district court made a specific finding that the Attorney General's opinion was "highly persuasive." It was entitled to do so. Id. Additionally, the court did not rely solely upon the Attorney General's opinion. The court indicated it made its decision after "having considered the brief filed by the City in support of it[s] motion and the argument of the City's counsel, Riemers' written Response, and the Open Records and Meetings Opinion, 2005-O-13, issued by the Attorney General on August 10, 2005, and being fully advised in the matter . . . ." The Attorney General's opinion was consistent with the court's independent reasonable interpretation of the law. N.D. Fair Housing Council, Inc. v. Peterson, 2001 ND 81, ¶ 16, 625 N.W.2d 551 (citing N.D. Fair Housing Council, Inc. v. Haider, No. CIV A1-98-077, 1999 WL 33283355, *4 (D.N.D.1999) (unreported)) (finding an Attorney General's opinion "highly persuasive" because it was "consistent with an independent analysis of the question presented"). The court did not err in considering the Attorney General's opinion in addition to its consistent independent analysis. Peterson, at ¶ 16.

C

[¶ 13] Riemers argues the district court erred in ruling the City was not required to disclose records that were not in the City's custody at the time of his request. Riemers requested the evidence logs and copies of the shooting victim's warrants from the GFPD, which is a "public entity" for open records law purposes. N.D.C.C. § 44-04-17.1(12). Generally, a public...

To continue reading

Request your trial
21 cases
  • State v. Brown
    • United States
    • North Dakota Supreme Court
    • August 18, 2009
    ...follow them if they are persuasive. Baukol Builders, Inc. v. County of Grand Forks, 2008 ND 116, ¶ 28, 751 N.W.2d 191; Riemers v. City of Grand Forks, 2006 ND 224, ¶ 11, 723 N.W.2d 518. Although not binding on the courts, an attorney general's opinion nevertheless has an important bearing u......
  • State v. Loughead, 20060160.
    • United States
    • North Dakota Supreme Court
    • February 1, 2007
    ...9, 714 N.W.2d 52 ("Our Court will not consider an argument that is not adequately articulated, supported, and briefed."); Riemers v. City of Grand Forks, 2006 ND 224, ¶ 14, 723 N.W.2d 518 (declining to consider an issue raised for the first time on appeal); Berlin v. State, 2000 ND 13, ¶¶ 1......
  • Kuntz v. State
    • United States
    • North Dakota Supreme Court
    • February 21, 2019
    ...Generally, a public entity must disclose all non-confidential records in its possession. See N.D.C.C. § 44-04-18(1) ; Riemers v. City of Grand Forks , 2006 ND 224, ¶ 13, 723 N.W.2d 518. A public entity is not required, however, to disclose a record not in its possession or custody. N.D.C.C.......
  • Hale v. State
    • United States
    • North Dakota Supreme Court
    • July 12, 2012
    ...public purpose). Although not binding on courts, opinions of the Attorney General are entitled to deference if persuasive. Riemers v. City of Grand Forks, 2006 ND 224, ¶ 11, 723 N.W.2d 518. The Attorney General's opinions are consistent with our interpretation of enterprise and are persuasi......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT