Riemers v. State
| Decision Date | 15 August 2007 |
| Docket Number | No. 20070038CA.,20070038CA. |
| Citation | 738 N.W.2d 906,2007 ND APP 3 |
| Parties | Roland C. RIEMERS, Plaintiff and Appellant, v. STATE of North Dakota, Defendant and Appellee. |
| Court | North Dakota Court of Appeals |
Roland C. Riemers, Emerado, N.D., pro se.
Douglas A. Bahr, Solicitor General, Office of Attorney General, Bismarck, N.D., for defendant and appellee.
[¶ 1] Roland Riemers appealed from a summary judgment dismissing his claims against the State Child Support Enforcement Office ("State"). We conclude Riemers has failed to raise a genuine issue of material fact requiring a trial on any of his claims, and we affirm the summary judgment dismissing Riemers' lawsuit.
[¶ 2] Riemers sued the State, alleging numerous violations of his state and federal constitutional and legal rights. In his amended complaint, Riemers essentially raised the following four claims: (1) the State filed a false report of child support arrearages; (2) the child and spousal support laws violate both the state and federal constitutions; (3) the State imposed unlawful interest rate charges on Riemers' past due child support; and (4) the unconstitutional child and spousal support laws "resulted at one time in [his] unconstitutional jailing."
[¶ 3] The State filed a motion for summary judgment under N.D.R.Civ.P. 56. The district court issued an extensive opinion addressing the issues in the case and granted the State's motion for summary judgment, dismissing all of Riemers' claims.
[¶ 4] The Supreme Court discussed the standards for reviewing a summary judgment in Riemers v. Anderson, 2004 ND 109, ¶ 10, 680 N.W.2d 280 (quoting Zuger v. State, 2004 ND 16, ¶¶ 7-8, 673 N.W.2d 615) (citations omitted):
Summary judgment is a procedural device for promptly disposing of a lawsuit without a trial if there are no genuine issues of material fact or inferences which can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. Whether summary judgment was properly granted is a question of law which we review de novo on the entire record. On appeal, this Court decides if the information available to the trial court precluded the existence of a genuine issue of material fact and entitled the moving party to summary judgment as a matter of law. Summary judgment is appropriate against parties who fail to establish the existence of a factual dispute on an essential element of a claim on which they will bear the burden of proof at trial.
A party resisting a motion for summary judgment may not simply rely upon the pleadings or upon unsupported, conclusory allegations. Factual assertions in a brief do not raise an issue of material fact satisfying Rule 56(e). Nor may a party merely reassert the allegations in his pleadings in order to defeat a summary judgment motion.
[¶ 5] Riemers asserts the State falsely reported his child support arrearages and in so doing "substantially harmed Riemers' financial and moral reputation." Riemers seeks $500,000 in damages for the State's defamation.
[¶ 6] Under N.D.C.C. § 14-02-03 libel "is a false and unprivileged publication by writing . . . which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes the person to be shunned or avoided, or which has a tendency to injure the person in the person's occupation." Every person has the right of protection from defamation. Jose v. Norwest Bank, 1999 ND 175, ¶ 23, 599 N.W.2d 293. There is no liability, however, for defamatory statements that are privileged. Id. at ¶ 25, 599 N.W.2d 293. Under N.D.C.C. § 14-02-05(1), a privileged communication is one made "in the proper discharge of an official duty." The privilege under this subsection is an absolute privilege for defamatory statements, even if made with malice. Rykowsky v. Dickinson Pub. Sch. Dist. No. 1, 508 N.W.2d 348, 351 (N.D.1993).
[¶ 7] Riemers concedes the child support reports are privileged communications under N.D.C.C. § 14-02-05(1). In his appellate brief, Riemers states, "[a]s correctly noted by the Court, `both parties agree that the CSEO [Child Support Enforcement Office] had a duty to report to consumer reporting agencies, and these reports were privileged.'" We conclude Riemers does not have a defamation claim against the State for this privileged communication.
[¶ 8] Riemers asserts the child and spousal support laws of this state are unconstitutional. He requests injunctive relief declaring the laws unconstitutional and an order requiring the State to repay all of the child and spousal support Riemers has paid since 2000. A party must do more than submit bare assertions to adequately raise constitutional issues. Riemers v. O'Halloran, 2004 ND 79, ¶ 6, 678 N.W.2d 547. A party asserting a constitutional claim must bring up the heavy artillery or forego the claim. Id. Riemers has cited neither fact nor law to support his assertion the child support laws are unconstitutional and have resulted in a denial of his legal rights. We conclude his request for injunctive relief is without merit and fails to raise a genuine issue of fact requiring a trial on the merits.
[¶ 9] Riemers asserts the State charged an unlawful rate of interest on his child support arrearages. The district court concluded, as a matter of law, the interest charges were authorized under N.D.C.C. § 28-20-34. Riemers has conceded this issue, and it is not, therefore, a ground upon which he seeks to reverse the summary judgment dismissing his lawsuit.
[¶ 10] Riemers asserts the unconstitutional child and spousal support laws resulted once in his unconstitutional incarceration. He seeks damages of $200,000.
[¶ 11] The trial court concluded Riemers was collaterally estopped from raising this issue because it "by logical and necessary implication must have been[] litigated and determined" in the prior case of Riemers v. Anderson, 2004 ND 109, ¶ 3 680 N.W.2d 280. On appeal, Riemers asserts the case referred to by the district court dealt with an arrest for assault in 2000, but Riemers' alleged false imprisonment in this case involves a subsequent two-week incarceration in the Traill County jail in 2001 for failure to pay child and spousal support.
[¶ 12] Collateral estoppel, or issue preclusion, generally forecloses the relitigation, in a second action based on a different claim, of particular issues of either fact or law which were, or by logical and necessary implication must have been, litigated and determined in the prior suit. Riemers v. Anderson, 2004 ND 109, ¶ 12, 680 N.W.2d 280.
[¶ 13] Assuming the alleged false imprisonment Riemers complains about in this litigation is different from and subsequent to the alleged false imprisonment discussed in prior litigation, then Riemers is not collaterally estopped from litigating the issue in this...
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