Fargo Ed. Ass'n v. Paulsen

• Decision Date: 12 March 1976
• Docket Number: No. 9168,9168
• Parties: 92 L.R.R.M. (BNA) 2492, 78 Lab.Cas. P 53,823 FARGO EDUCATION ASSOCIATION, Plaintiff-Appellant, v. John Q. PAULSEN et al., Defendants-Appellees.
• Court: North Dakota Supreme Court

Page 842

239 N.W.2d 842

92 L.R.R.M. (BNA) 2492, 78 Lab.Cas. P 53,823

FARGO EDUCATION ASSOCIATION, Plaintiff-Appellant, v. John Q. PAULSEN et al., Defendants-Appellees.

No. 9168.

Supreme Court of North Dakota.

March 12, 1976.

Syllabus by the Court

1. The prerequisites to the issuance of a writ of mandamus are that the petitioner must show that he has no plain, speedy, and adequate remedy in the ordinary course of the law and that he has a clear legal right to the performance of the particular act sought to be compelled by the writ.

2. The fact that the court will be forced to construe or interpret a statute or examine the facts to which a statute applies does not necessarily preclude the remedy of mandamus.

3. The term 'negotiate in good faith' as used in § 15--38.1--12, NDCC, simply means to present and discuss proposals for the purpose of persuading or being persuaded by logic and reasoning and does not mean that any agreement must be reached or that either side surrender any of its duties and responsibilities.

4. Where the prerequisites of the writ of mandamus have been met, the court nevertheless in its sound judgment may deny the writ in the interest of justice.

5. This court will not overturn the trial court's denial of a writ of mandamus unless the trial court abused its discretion in denying the writ of mandamus.

6. Where the items on which negotiation is demanded are not sufficiently described for this court to make a determination of whether or not they are negotiable under the statute, and where the trial court found that interpretation and construction of certain statutes would be necessary before it could determine if there was a duty owed, we cannot say as a matter of law that the trial court abused its discretion in denying the writ of mandamus.

Daniel J. Chapman, Bismarck, for plaintiff and appellant.

Tenneson, Serkland Lundberg & Erickson, Fargo, for defendants and appellees; argued by Norman G. Tenneson, Fargo.

SAND, Judge.

The appellant, Fargo Education Association (hereinafter the Association), the designated representative organization for all classroom teachers employed in the Fargo Public School District #1, appealed from the order of the Cass County District Court denying its petition for writ of mandamus.

The Association, as the representative of the classroom teachers, was engaged in negotiations with the school board of Fargo Public School District #1 (hereinafter the Board) on employer-employee matters.

The Association alleged in its pleadings that the Board refused to negotiate on nine stated issues, other than salaries for teachers, on the grounds of management prerogative, and petitioned the district court for a writ of mandamus to compel the named members of the Board to negotiate in good faith on the nine stated issues in controversy between the parties.

The district court found that a legal question of substance existed as to whether or not the Board was under any legal duty to act under the applicable statute (Chapter 15--38.1, NDCC) and therefore this was not a proper case for employing the remedy of mandamus. The Association appeals from this denial.

In denying the petition for the writ of mandamus, the district court stated that, upon application, leave to amend the petition so that the proper remedy may be invoked will be liberally extended. However, the Association elected to appeal rather than to amend.

The Association on appeal now asks that this court return the matter to the trial court with a mandate to rule upon the issues presented to it on petition for the writ of mandamus or in the alternative rule as a matter of law that the writ of mandamus should issue.

The writ of mandamus is provided for in § 32--34--01, NDCC, which states:

'The writ of mandamus May be issued by the supreme and district courts to any inferior tribunal, corporation, board, or person to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled and from which he is precluded unlawfully by such inferior tribunal, corporation, board, or person.' (Underscoring ours.)

Section 32--34--02, NDCC, reads as follows:

'The writ Must be issued in all cases when there is not a plain, speedy, and adequate remedy in the ordinary course of law. It must be issued upon affidavit upon the application of the party beneficially interested except those writs issued sua sponte by the supreme court.' (Underscoring ours.)

This court has held that the prerequisites to the issuance of a writ of mandamus are that the petitioner must show that he has no plain, speedy, and adequate remedy in the ordinary course of the law and that he has a clear legal right to the performance of the particular act sought to be compelled by the writ. This implies more than a bare allegation. Great Lakes Pipe Line Co. v. City of Grand Forks, 142 N.W.2d 126 (N.D.1966); Dakota National Ins. Co. v. Commissioner of Insurance, 79 N.D. 97, 54 N.W.2d 745 (1952); Midland Produce Co. v. City of Minot, 70 N.D. 256, 294 N.W. 192 (1940); Cary v. Morton County, 57 N.D. 700, 223 N.W. 928 (1929).

The Board claims that the Association did not meet or satisfy the basic requirements for a writ of mandamus as indicated by § 32--34--01 and § 32--34--02, NDCC. The Board contended that the Association had an adequate remedy at law, such as declaratory judgment, and also argued that the Association not only failed to show, but actually could not show, that it did not have a plain, speedy, and adequate remedy in the ordinary course of law. The Board also argued that the required 'right to compel performance' had not been established. The Board contended specifically that the items ¹ listed in paragraph V of the petition for writ of mandamus are not negotiable. The Board further contended that pursuant to § 15--39.1--14(2), ² NDCC, it was compelled to negotiate on any duties, responsibilities or powers imposed upon it by statute.

The Association, however, contends that § 15--38.1--12(1), NDCC, requires the Board to negotiate on all matters that affect 'terms and conditions of employment and employer-employee relations.'

We recognize that as between § 15--38.1--12 and § 15--38.1--14 there appears to be some need for construction or interpretation, and that a need for reconciliation may exist. This issue, however, has not been sufficiently refined in this instance so as to require or permit resort to § 1--02--08, NDCC, to reconcile any differences that may exist.

The trial court found that 'a bona fide dispute on a material legal issue' existed which would require the court to first determine whether or not there was any duty to act before it could determine that a duty existed which was not being performed. The trial court stated that, 'where there is a legal question of substance . . . which clouds the question whether a board has a duty to act, I don't believe that this court should use its extraordinary powers given it by statute in the mandamus chapter.'

The trial court in announcing its decision made a general reference to American Jurisprudence 2d, without stating the volume or page. In 52 Am.Jur.2d Mandamus, § 35, page 360, the following is stated:

'The function of mandamus is to compel action by the respondent, and it cannot be employed to adjudicate and establish rights or define duties. The courts act with caution with respect to the writ and award it only in cases where it clearly appears that under the law it ought to issue, upon a clear showing as to the applicant's right, and the respondent's duty. The writ will not be granted in a doubtful case, or if the injuries complained of are too speculative to warrant resort to an extraordinary remedy, and this is especially true where, if granted, the writ will not be effectual.'

And, at 55 C.J.S. Mandamus § 63, page 100, we find the following:

'Mandamus will lie to compel performance of a specific ministerial or administrative act or duty, and, as a general rule, mandamus is the proper remedy only where the act or duty is purely ministerial, and is clearly and plainly established or imposed by law.'

The petitioner for a writ of mandamus must also have a clear legal right to the relief sought.

The fact that the court will be forced to construe or interpret a statute or examine the facts to which a statute applies does not necessarily preclude the remedy of mandamus. More frequently than not, statutes defining the duties of a public officer will lend themselves to different constructions or interpretations by the parties involved and will require a judicial construction. Because some judicial interpretation may be required to enunciate specifically the duties of the officer does not necessarily preclude a court from employing the mandamus procedure. Case law in North Dakota supports this concept.

In Henley v. Fingal Public School District #54, 219 N.W.2d 106 (N.D.1974), a teacher, by summons and complaint, sought to enjoin the school board from hiring a person to replace him and to require the school board to issue a teaching contract to him. The Supreme Court construed and interpreted the statutes in dispute after examining the language in some detail, and held that under its interpretation mandamus should have been granted the teacher, but because it was too late to grant it then, as the school year had already been completed, the case was remanded to the district court to determine the compensatory damages to which the teacher was entitled.

Great Lakes Pipe Line Co., supra, involved another dispute over whether the statute in question imposed a duty upon a public body. The Supreme Court, after construing the statutes involved, examined the facts in the case. The Supreme Court stated that the petitioner had alleged all the facts, which, if established, would demonstrate a clear legal right to relief. The...