Annexation of Part of Donnybrook Public School Dist. No. 24 of Mountrail and Ward Counties to Stanley Public School Dist. No. 2 of Mountrail County, Matter of, s. 10774

• Decision Date: 26 March 1985
• Docket Number: Nos. 10774,10775,s. 10774
• Parties: 24 Ed. Law Rep. 491 In the Matter of the ANNEXATION OF a PART OF DONNYBROOK PUBLIC SCHOOL DISTRICT NO. 24 OF MOUNTRAIL AND WARD COUNTIES TO STANLEY PUBLIC SCHOOL DISTRICT NO. 2 OF MOUNTRAIL COUNTY, State of North Dakota. Civ.
• Court: North Dakota Supreme Court

Page 514

365 N.W.2d 514

24 Ed. Law Rep. 491

In the Matter of the ANNEXATION OF a PART OF DONNYBROOK PUBLIC SCHOOL DISTRICT NO. 24 OF MOUNTRAIL AND WARD COUNTIES TO STANLEY PUBLIC SCHOOL DISTRICT NO. 2 OF MOUNTRAIL COUNTY, State of North Dakota.

Civ. Nos. 10774, 10775.

Supreme Court of North Dakota.

March 26, 1985.

Nancy K. Hoff, Asst. Atty. Gen., Bismarck, for appellant State Bd. of Public School Educ.

Freed, Dynes, Reichert & Buresh, Dickinson, for Donnybrook Public School Dist.; argued by George T. Dynes, Dickinson.

John S. Steinberger, Jr., Kenmare, for Goettle and Gandrud, amicus curiae. Appearance only.

GIERKE, Justice.

The State Board of Public School Education (the State Board) has appealed from district court judgments setting aside the State Board's approval of two petitions to annex land from Donnybrook Public School District No. 24 (Donnybrook) to Stanley Public School District No. 2 (Stanley). We reverse and remand.

By petition, Marlowe and Cathleen Gandrud, whose children have never attended school in Donnybrook, sought to have the following land located in Donnybrook annexed to Stanley:

"SE 1/4 of Section 8 of Township 157 North Range 88 West commonly known as Stave Township, Mountrail County."

By petition, James and Doris Goettle, who have had children attend school in Donnybrook, sought to have the following land located in Donnybrook annexed to Stanley "Lots 4, 5, 6, and 7 of Section 6 of Township 157 North Range 88 West commonly known as Stave Township; and Lots 1, 2, 3, and 4 of Section 7 of Township 157 North Range 88 West commonly known as Stave Township, Mountrail County."

All of the property sought to be annexed is located in Mountrail County. Part of Donnybrook is located in Ward County. Hearings on the petitions were conducted by the county committees for the reorganization of school districts of both Ward and Mountrail Counties on July 13, 1983. The Mountrail County Committee approved both petitions and the Ward County Committee disapproved both petitions.

The petitions were then submitted to the State Board. At a hearing held on August 16, 1983, the State Board remanded both petitions to the county committees with directions that they make specific written findings of fact. The county committees made findings of fact and the State Board held hearings on the petitions on October 17, 1983. The two petitions were heard separately, but the testimony in the first hearing was incorporated into the second hearing. The State Board approved both annexation petitions.

Donnybrook appealed the State Board's decisions to the district court. The district court remanded the Gandrud annexation to the State Board with directions (1) to consider "whether or not the proposed annexation will be consistent with the Comprehensive Program for the Reorganization of School Districts within Ward County"; (2) "that the matter be entirely reheard by the State committee" because of failure to comply with Sec. 15-53.1-06, N.D.C.C.; (3) "that the State Committee rehear the entire matter and consider any evidence the parties may wish to submit on the subject" of the impact on Donnybrook; and (4) "that this petition first be remanded by the State Committee to the Mountrail County Committee for a rehearing on this petition at which time all requirements of the open meeting law should be complied with." The district court similarly remanded the Goettle annexation, but the court also determined that the Goettle property was not contiguous to Stanley and directed "that the State Committee dismiss the Goettle petition for annexation without any further hearings." The State Board appealed both judgments to this Court.

Several issues have been raised on appeal:

I

Whether or not failure of a county committee to take a recorded roll call vote on an annexation petition requires the State Board to deny a petition and remand the matter to the county committee for rehearing.

II

Whether or not the property sought to be annexed in the Goettle petition is contiguous to Stanley and whether or not annexation would result in logical boundaries.

III

Whether or not the State Board was required to consider the effect of the annexation petitions on Donnybrook.

IV

Whether or not the State Board was required to find that the petitions were in accordance with the Ward County reorganization plan in order to approve them.

V

Whether or not the State Board complied with Sec. 15-53.1-06(3), N.D.C.C.

VI

Whether or not it is constitutionally permissible to allow some residents to select a school district by annexation when that privilege is denied residents in the interior of a school district.

VII

Whether or not the district court considered the effect on the Goettle children of remaining in Donnybrook and the effect on the Gandrud children of being forced to begin attending Donnybrook.

Our review is governed by Secs. 28-32-21 and 28-32-19, N.D.C.C. Edmore Public School District No. 2 v. State Board of Public School Education, 326 N.W.2d 81 (N.D.1982).

"In an appeal from a decision of an administrative agency, such as the State Committee, which has been appealed first to the district court and then to this court, we review the decision of the agency and look to the record compiled by the agency. Application of Nebraska Public Power Dist., 330 N.W.2d 143, 146 (N.D.1983). Section 28-32-19, N.D.C.C., controls the scope of our review of an administrative agency determination. The factual basis of an administrative order is reviewed in a limited manner by considering the following questions: '(1) Are the findings of fact supported by a preponderance of the evidence? (2) Are the conclusions of law sustained by the findings of fact? (3) Is the agency decision supported by the conclusions of law?' Asbridge v. North Dakota State Highway Com'r, 291 N.W.2d 739, 743 (N.D.1980). In addition to reviewing the factual basis for an agency's decision, this court considers whether the decision violates constitutional rights or is not in accord with the law. See Sec. 28-32-19, N.D.C.C. This court exercises restraint when reviewing agency findings; we do not substitute our judgment for that of the agency. Asbridge, supra 291 N.W.2d at 744." [Footnote omitted.]

Garner Public School District No. 10 v. Golden Valley County Committee For Reorganization of School Districts, 334 N.W.2d 665, 671 (N.D.1983).

"Ordinarily, determinations of an administrative body are presumed to be correct and valid. In re Superior Service Company, 94 N.W.2d 84, 88-89 (N.D.1959). Courts do not have jurisdiction to decide administrative questions. Application of Northern States Power Company, 171 N.W.2d 751, 755 (N.D.1969).

"It is not the function of the judiciary to act as a super board, substituting its judgment for that of the administrator whose decision is being reviewed. See Soo Line Railroad Company v. City of Wilton, 172 N.W.2d 74 (N.D.1969), and Appeal of Johnson, 173 N.W.2d 475, 482 (N.D.1970)."

Barnes County v. Garrison Diversion Conservancy District, 312 N.W.2d 20, 25 (N.D.1981).

Section 28-32-19, N.D.C.C., which governs the scope of review of administrative agency decisions in both the district court and in this Court, provides:

"28-32-19. Scope of and procedure on appeal from determination of administrative agency. The court shall try and hear an appeal from the determination of an administrative agency without a jury and the evidence considered by the court shall be confined to the record filed with the court.... After such hearing, the court shall affirm the decision of the agency unless it shall find that any of the following are present:

1. The decision or determination is not in accordance with the law.

2. The decision is in violation of the constitutional rights of the appellant.

3. Provisions of this chapter have not been complied with in the proceedings before the agency.

4. The rules or procedure of the agency have not afforded the appellant a fair hearing.

5. The findings of fact made by the agency are not supported by a preponderance of the evidence.

6. The conclusions and decision of the agency are not supported by its findings of fact...."

I

One of the reasons the district court remanded the State Board's decisions was the failure of the Mountrail County Committee for the Reorganization of School Districts to conduct a roll call vote on the petitions and to have the roll call vote reflected in the minutes of the meeting, as required by Sec. 44-04-21, N.D.C.C., which provides:

"44-04-21. Open voting at public meetings required--Results recorded in minutes. Unless otherwise specifically provided by law, all votes of whatever kind taken at any public meeting governed by the provisions of section 44-04-19 must be open, public votes, and all nonprocedural votes must be recorded roll call votes, with the votes of each member being made public at the open meeting. The minutes shall show the results of every vote taken at the meeting, and shall show the recorded vote of each member on every recorded roll call vote."

The purpose of the September 12, 1983, meeting at which no recorded roll call vote was taken was to adopt findings on factors set forth in Sec. 15-53.1-06, N.D.C.C., as directed by the State Board. It was not to reach a decision or change a decision previously made. The county committee's decision to approve the annexation petitions was made at hearings held on July 13, 1983. The minutes of July 13, 1983, reflect who made and seconded the motions to approve the petitions and also reflect that the motions were passed unanimously, with Leonard Goettle abstaining from voting on the Goettle petition.

Relying on Peters v. Bowman Public School District No. 1, 231 N.W.2d 817 (N.D.1975) and Danroth v. Mandaree Public School District No. 36, 320 N.W.2d 780 (N.D.1982), Donnybrook asserts that a violation of Sec. 44-04-21, N.D.C.C., by a county committee, like a violation of Sec. 44-04-19, N.D.C.C., requires that "the entire procedure be...