Dickinson Public School Dist. v. Sanstead

• Decision Date: 19 July 1988
• Docket Number: No. 22,No. 14,14,22
• Citation: 425 N.W.2d 906
• Parties: 47 Ed. Law Rep. 1145 DICKINSON PUBLIC SCHOOL DISTRICT; Zap Public School District; Stanton Public School District; and Bismarck Public School District, Plaintiffs and Appellees, v. Wayne SANSTEAD, Superintendent, Department of Public Instruction, and the State of North Dakota, Defendants and Appellants. Civ. 870221.
• Court: North Dakota Supreme Court

Page 906

425 N.W.2d 906

47 Ed. Law Rep. 1145

DICKINSON PUBLIC SCHOOL DISTRICT; Zap Public School

District No. 14; Stanton Public School District

No. 22; and Bismarck Public School

District, Plaintiffs and Appellees, v. Wayne SANSTEAD, Superintendent, Department of Public

Instruction, and the State of North Dakota,

Defendants and Appellants.

Civ. 870221.

Supreme Court of North Dakota.

July 19, 1988.

Mackoff, Kellogg, Kirby & Kloster, P.C., Dickinson, for plaintiffs and appellees Dickinson Public School Dist., Zap Public School Dist. No. 14, and Stanton Public School Dist. No. 22.

Wheeler, Wolf, Peterson, Schmitz, McDonald & Johnson, Bismarck, for plaintiff and appellee Bismarck Public School Dist.

Paul F. Ebeltoft, Jr., of Mackoff, Kellogg, Kirby & Kloster, P.C., argued for plaintiffs and appellees.

Patricia May McCord Moen (argued), Asst. Atty. Gen., Bismarck, for defendants and appellants.

ERICKSTAD, Chief Justice.

Wayne Sanstead, in his official capacity as the Superintendent of the Department of Public Instruction, and the State of North Dakota [hereafter collectively referred to as the State] appeal from a district court judgment awarding $371,548.28 plus interest and costs to the Dickinson Public School District, the Stanton Public School District, and the Bismarck Public School District [hereafter collectively referred to as the School Districts]. ¹ We reverse and remand for entry of judgment dismissing the action.

The School Districts brought this action in July 1984 challenging the State's method of calculating per-pupil foundation aid payments under Chapter 15-40.1, N.D.C.C. The School Districts sought additional foundation aid payments for school years 1982-83 and 1983-84, as well as declaratory relief. On cross-motions for summary judgment, the district court determined that the action was not barred by sovereign immunity and that the State had failed to calculate the foundation aid payments in accordance with the statutory scheme. ² The court awarded damages in the amount of $371,548.28. The State appeals.

The School Districts have moved to dismiss the appeal, asserting that the State has attempted to appeal from a non-appealable order. The State's notice of appeal states that the appeal is from the "Amended Order Granting Summary Judgment." Although the order itself is not appealable, we have held that an attempted appeal from an order or memorandum decision will be treated as an appeal from a subsequently entered consistent judgment, if one exists. Vanderhoof v. Gravel Products, Inc., 404 N.W.2d 485, 488 (N.D.1987); Olson v. Job Service North Dakota, 379 N.W.2d 285, 287 (N.D.1985). The subsequently entered judgment in this case is consistent with the order, and we therefore treat the appeal as being from the judgment.

The State alleges that this action is barred by Article I, Section 9, of the North Dakota Constitution, which provides that "[s]uits may be brought against the state in such manner, in such courts, and in such cases, as the legislative assembly may, by law, direct." ³ Although the constitutional provision invests the Legislature with authority to modify or waive the State's immunity from suit, it is equally well established that no suit may be maintained against the State unless the Legislature has authorized it. Senger v. Hulstrand Construction, Inc., 320 N.W.2d 507, 508 (N.D.1982).

Pursuant to its constitutional grant of authority, the Legislature has enacted Section 32-12-02, N.D.C.C., which provides that "[a]n action respecting the title to property, or arising upon contract, may be brought in the district court against the state the same as against a private person." We have construed Section 32-12-02, N.D.C.C., to bar any suit against the State which is not within the express provision of the statute. Kristensen v. Strinden, 343 N.W.2d 67, 74 (N.D.1983); Stark County v. State, 160 N.W.2d 101, 105 (N.D.1968).

The School Districts allege, and the district court concluded, that the instant action is one "arising upon contract." The School Districts further allege that the district court's determination that a contract existed is a finding of fact subject to the "clearly erroneous" standard of Rule 52(a), N.D.R.Civ.P.

Because this is a summary judgment case, the School Districts have placed themselves in a peculiar position by arguing that the "finding" is not clearly erroneous. Summary judgment is inappropriate if a finding of fact must be made. Brown v. North Dakota State University, 372 N.W.2d 879, 883 (N.D.1985); Johnson v. Mineral Estate, Inc., 343 N.W.2d 778, 780 (N.D.1984).

A review of the court's order, however, demonstrates that the court did not resolve factual disputes to reach its conclusion that a contractual relationship existed. There was no actual agreement, either written or oral, between the State and the School Districts for per-pupil payments. The existence of a contractual relationship was based solely upon the status created by Chapter 15-40.1. The district court held as a matter of law that Chapter 15-40.1, N.D.C.C., creates an express contract between the State and all school districts in the state:

"Herein, the State of North Dakota, in the furnishing of State school aid, has entered into a unilateral contract with each of the individual school districts who have filed a claim for State school aid and have satisfied the statutory requirements for qualification of the same. While the State is clearly authorized to set the per pupil school aid, each school district having satisfied statutory requirements to receive state school aid and having thereby furnished the educational services, have fulfilled the terms of the unilateral contract and are entitled to fulfill the terms of the unilateral contract and are entitled to just compensation as authorized by statute. Such funding is an obligation of the State of North Dakota by direct appropriation of the legislature."

Our review is thus not restricted by Rule 52(a), but rather the district court's determination is a conclusion of law which is fully reviewable on appeal.

We were presented with the question of whether a statute directing disbursement of appropriated funds to governmental units created a contract with the State in Stark County v. State, supra. In Stark County, the county claimed that under the appropriate statute disbursements to counties from the Motor Vehicle Registration Fund should have been based upon the number of vehicles registered in each county, rather than upon the amount of registration fees collected in each county. The county argued that the action was one based upon contract and therefore not barred by sovereign immunity because the statute created a contract between the county and the State. We rejected the county's argument:

"Did the statute providing for the distribution of a part of the motor-vehicle registration moneys amount to a contract between the State and Stark County?

"The statute clearly does not create an express contract. The State, in an attempt to assist the counties, which are creatures of the Constitution (N.Dak. Constitution, Secs. 130, 166-173, 175), provided that a portion of the motor-vehicle registration moneys be returned to the counties for highway purposes. The State could have kept all of such moneys, as indeed it has done at times in the past." Stark County, supra, 160 N.W.2d at 105.

The School Districts have not drawn our attention to any relevant distinction between Stark County and the circumstances presented in this case to support their argument that Chapter 15-40.1 creates an express contract between the School Districts and the State. The court in Stark County relied upon the fact that the Legislature could, as it had in the past, provide that all such funds be retained by the State. Stark County, supra, 160 N.W.2d at 105. Similarly, the Legislature could have required, as it did in the distant past, that all funding for public schools be borne by the local district, inasmuch as the State's constitutional directive to provide a uniform system of public schools is satisfied by provision for the creation of school districts and for a uniform system of schools in those districts. Dornacker v. Olson, 248 N.W.2d 844, 849 (N.D.1976); Todd v. Board of Education, 54 N.D. 235 241, 209 N.W. 369, 371 (1926). See N.D. Const. art. VIII, Sec. 2. Furthermore, we have previously stated that state aid to local school districts is a mere gratuity:

"State aid to school districts, however, is not reimbursement for or payment for anything. It is a grant in aid and in so far as the local districts are concerned it is in the nature of a gratuity." Zenith School District No. 32 v. Peterson, 81 N.W.2d 764, 768 (N.D.1957).

We conclude that Chapter 15-40.1, N.D.C.C., does not create an express contract between the School Districts and the State. Thus, because this action is not one "arising upon contract" it is barred by the doctrine of sovereign immunity. ⁴

The School Districts assert that the judgment may be sustained as a valid writ of mandamus or as a declaratory judgment. It is clear from the language of the judgment itself and from the court's prior order that the judgment was intended to award compensatory damages for past conduct by the State. It is not sustainable as a writ of mandamus or as a declaratory judgment.

The School Districts request in the alternative that we remand for further proceedings to allow them to establish their right to a writ of mandamus or declaratory relief. At this point, mandamus or declaratory relief would be inappropriate.

Mandamus is a remedy for official inaction, but it is not the proper remedy to compel the undoing of acts already done or the correction of wrongs already perpetrated. State ex rel. Conrad v. Langer, 68 N.D. 167, 175, 277 N.W. 504, 509 (1937). This action clearly seeks payment for past misdeeds, specifically per-pupil payments for school years 1982-83 and 1983-84. Even if the School...