Kjolsrud v. MKB MANAGEMENT CORP., 20030023.

• Decision Date: 23 September 2003
• Docket Number: No. 20030023.,20030023.
• Citation: 2003 ND 144,669 N.W.2d 82
• Parties: Amy Jo KJOLSRUD, f/k/a Amy Jo Mattson, Plaintiff, Appellant, and Cross-Appellee, v. MKB MANAGEMENT CORPORATION d/b/a Red River Women's Clinic, Defendant, Appellee, and Cross-Appellant.
• Court: North Dakota Supreme Court

669 N.W.2d 82

2003 ND 144

Amy Jo KJOLSRUD, f/k/a Amy Jo Mattson, Plaintiff, Appellant, and Cross-Appellee, v. MKB MANAGEMENT CORPORATION d/b/a Red River Women's Clinic, Defendant, Appellee, and Cross-Appellant.

No. 20030023.

Supreme Court of North Dakota.

September 23, 2003.

Rehearing Denied October 23, 2003.

John Kindley (argued), Mishawaka, IN, and Gregory L. Lange (appeared), Richardson, Lange & Donovan, Hazen, ND, for plaintiff, appellant, and cross-appellee.

Linda Rosenthal (argued), Janet Crepps (appeared), Center for Reproductive Rights, New York, NY, and Joseph A. Turman (appeared), DeMars & Turman, Fargo, ND, for defendant, appellee, and cross-appellant.

NEUMANN, Justice.

[¶ 1] Amy Jo Kjolsrud, formerly known as Amy Jo Mattson, appealed from a judgment dismissing her false advertising claim against MKB Management Corporation doing business as Red River Women's Clinic ("MKB"). MKB cross-appealed from the trial court's determination that Kjolsrud had standing under N.D.C.C. § 51-12-14 to bring her false advertising claim. We hold Kjolsrud does not have standing to maintain her false advertising claim, and we affirm the judgment dismissing her action.

I

[¶ 2] MKB is located in Fargo and provides women with reproductive health care services, including abortions. In December 1999, Kjolsrud sued MKB to enjoin it from distributing a brochure that contained an allegedly false statement that "[a]nti-abortion activists claim that having an abortion increases the risk of developing breast cancer and endangers future childbearing. None of these claims are supported by medical research or established medical organizations." Kjolsrud alleged MKB's brochure violated N.D.C.C. §§ 51-12-01 and 51-12-08, North Dakota's false advertising law, and sought to enjoin MKB from distributing the brochure under N.D.C.C. § 51-12-14. Kjolsrud conceded she had not read the brochure before filing her action. Her complaint alleged she was "a pro-life woman who lives in Fargo, North Dakota," and "regularly counsels women seeking abortion about the risks of abortion and about life-giving alternatives." Kjolsrud alleged standing under N.D.C.C. § 51-12-14 on "behalf of herself, women seeking abortions, and the general public."

[¶ 3] After Kjolsrud filed her action, MKB stopped using that brochure and replaced it with another brochure, which stated:

Some anti-abortion activists claim that having an abortion increases the risk of developing breast cancer. A substantial body of medical research indicates that there is no established link between abortion and breast cancer. In fact, the National Cancer Institute has stated, "[t]here is no evidence of a direct relationship between breast cancer and either induced or spontaneous abortion."

Kjolsrud filed a supplemental complaint, alleging both brochures violated N.D.C.C. § 51-12-08. She sought to enjoin MKB from distributing both brochures and to require MKB to affirmatively disclose "medical evidence that having an abortion increases the risk of developing breast cancer." Kjolsrud conceded that when she filed her supplemental complaint, she no longer lived in Fargo, or engaged in sidewalk counseling. However, her supplemental complaint alleged she was a "pro-life woman who lives in Fargo, North Dakota" and "regularly counsels women seeking abortion about the risks of abortion and about life-giving alternatives." She alleged standing under N.D.C.C. § 51-12-14 on "behalf of herself, women seeking abortions, and the general public."

[¶ 4] Kjolsrud subsequently filed an amended supplemental complaint seeking the same relief, but deleting her allegation that she was a pro-life woman who lived in Fargo and regularly counseled women seeking abortion about the risks of abortion and about life-giving alternatives. In her supplemental amended complaint, Kjolsrud alleged she was a citizen of North Dakota claiming standing under N.D.C.C. § 51-12-14 on "behalf of herself, women seeking abortions, and the general public."

[¶ 5] The trial court decided Kjolsrud had standing under N.D.C.C. § 51-12-14. After a bench trial, the court found the information contained in MKB's brochures was neither untrue nor misleading. The court denied Kjolsrud's request for injunctive relief and dismissed her action. Kjolsrud appealed, and MKB cross-appealed.

II

[¶ 6] MKB argues the trial court erred in concluding Kjolsrud had standing to maintain an action for injunctive relief under N.D.C.C. § 51-12-14, because she suffered no injury or threat of injury and had not seen MKB's brochures when she filed her complaint. Kjolsrud concedes she had not read MKB's brochures and was not personally misled or harmed by MKB's brochures. She claims she has standing under the plain language of N.D.C.C. § 51-12-14, which authorizes actions for injunction "by any person acting for the interests of itself, its members, or the general public." Relying on Stop Youth Addiction, Inc. v. Lucky Stores, Inc., 17 Cal.4th 553, 71 Cal.Rptr.2d 731, 950 P.2d 1086, 1091 (1998), she argues N.D.C.C. § 51-12-14 confers standing upon persons who have "suffered no injury at all."

[¶ 7] The interpretation of a statute is a question of law which is fully reviewable on appeal. Ash v. Traynor, 2000 ND 75, ¶ 4, 609 N.W.2d 96. The primary purpose of statutory construction is to ascertain the Legislature's intent. Douville v. Pembina County Water Res. Dist., ND 2000 124, ¶ 9, 612 N.W.2d 270. In ascertaining legislative intent, we look first to the words used in the statute, giving them their plain, ordinary, and commonly understood meaning. Id. at ¶ 9. If the plain language of a statute is clear and unambiguous, the letter of the statute cannot be disregarded under the pretext of pursuing its spirit because legislative intent is presumed clear from the face of the statute. Lawrence v. North Dakota Workers Comp. Bureau, 2000 ND 60, ¶ 19, 608 N.W.2d 254. We construe statutes to avoid constitutional infirmities. Id.

[¶ 8] Section 51-12-14, N.D.C.C. provides:

Any person who violates or proposes to violate any of the provisions of sections 51-12-08 through 51-12-12 may be enjoined by any court of competent jurisdiction.

Actions for injunction under this section may be prosecuted by the attorney general or any state's attorney in this state in the name of the people of the state of North Dakota upon their own complaint or upon the complaint of any board, officer, person, corporation, limited liability company, or association or by any person acting for the interests of itself, its members, or the general public.

[¶ 9] In State Bd. of Architecture v. Kirkham, Michael & Assoc., Inc., 179 N.W.2d 409, 410-11 (N.D.1970), this Court held the State Board of Architecture, in the exercise of its police power to regulate the architecture profession, was authorized to bring an action to enjoin false advertising under N.D.C.C.§ 51-12-14. There, the State Board of Architecture commenced an action under N.D.C.C. § 51-12-14 against an architectural firm to enjoin the firm from conducting allegedly false advertising of its architectural services in violation of N.D.C.C. § 51-12-08. State Bd., at 410. The trial court dismissed the complaint on the ground the State Board of Architecture was not authorized to maintain the action under N.D.C.C. § 51-12-14, because the action was not brought by the attorney general or a state's attorney. State Bd., at 410-11. This Court said N.D.C.C. § 51-12-14 authorized an action for injunctive relief by the attorney general or a state's attorney, or "by any person acting for the interests of itself, its members or the general public," and concluded:

Surely the Legislative Assembly intended this latter provision to have some meaning, even though the language of the statute is not clear or concise and certainly is not the best. The only meaning that this language can possibly be given is that, in addition to allowing such action to be brought by the Attorney General or by one of the State's attorneys, upon complaint of the parties mentioned, it might also be brought by any person acting for his own interests or by any board or association for its own interests or for the interests of its members or the interests of the general public.

This latter provision, as we interpret it, would permit an action to be brought by the State Board of Architecture for the interests of its members. The Board of Architecture brought this action to enjoin false advertising on the part of the defendant, to protect its own interests and the interests of its members and the interests of the general public.... We therefore hold that the State Board of Architecture may properly bring an action to enjoin false advertising under the above statute.

State Bd., at 411.

[¶ 10] The language of N.D.C.C. § 51-12-14 authorizes two potential classes of plaintiffs to bring an action in a court of competent jurisdiction for injunctive relief against any person who violates N.D.C.C. § 51-12-08:(1) the attorney general or any state's attorney upon their own complaint or upon the complaint of any board, officer, person, corporation or association, or (2) any person acting for the interests of itself, its members, or the general public. Section 1-01-28, N.D.C.C., defines "`person', except when used by way of contrast, [to] include[] not only a human being, but a body politic or corporate." See also N.D.C.C. § 1-01-09 (words defined by statute are given that meaning whenever it occurs in a subsequent statute, unless a contrary intention plainly appears). Under N.D.C.C. § 51-12-14, any person, which includes not only a human being but a body politic or corporate, acting for the interests of itself, its members, or the general public may bring an action in a court of competent jurisdiction for injunctive relief against any person who violates N.D.C.C. § 51-12-08.

[¶ 11] MKB nevertheless argues N.D.C.C. § 51-12-14 does not provide "limitless standing" for any person to maintain...