Kristensen v. Strinden

• Citation: 343 N.W.2d 67
• Decision Date: 21 December 1983
• Docket Number: No. 10422,10422
• Parties: Luther KRISTENSEN, Plaintiff and Appellant, v. Theron L. STRINDEN, in his Official Capacity as Registrar of the North Dakota Department of Motor Vehicles, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 67

343 N.W.2d 67

Luther KRISTENSEN, Plaintiff and Appellant, v. Theron L. STRINDEN, in his Official Capacity as Registrar of the North Dakota Department of Motor Vehicles Defendant and Appellee.

Civ. No. 10422.

Supreme Court of North Dakota.

Dec. 21, 1983.

Nicholas J. Spaeth, of Vogel, Brantner, Kelly, Knutson, Weir & Bye, Fargo, for plaintiff and appellant.

Robert J. Udland, Asst. Atty. Gen., Bismarck, for defendant and appellee.

VANDE WALLE, Justice.

Luther Kristensen has appealed from a judgment dismissing his claim for relief under the Federal and State Constitutions, and 42 U.S.C. Sec. 1983, against Theron L. Strinden, in his official capacity as Registrar of the North Dakota Department of Motor Vehicles. For the reasons which follow, we affirm.

Kristensen served as manager of the Fargo Motor Vehicle Branch Office of the North Dakota Department of Motor Vehicles (hereinafter "Department") from August 1978 to June 30, 1981, at which time Kristensen's "Branch Office Agreement" with the Department expired. The agreement was not renewed.

Strinden is a member of the Republican Party and an appointee of Governor Allen I. Olson, who took office in 1981. Kristensen is a member of the Democratic Party.

Kristensen brought suit claiming, essentially, that his position as branch manager was not renewed by Strinden solely because Kristensen was a member of the Democratic Party, and therefore, his rights to free speech and association were violated under the United States Supreme Court's decisions in Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), and Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). In his complaint, Kristensen alleged direct causes of action under the First and Fourteenth Amendments to the United States Constitution and under Article I, Sections 1, 4, and 7 of the North Dakota Constitution, as well as a cause of action under 42 U.S.C. Sec. 1983. ¹ Kristensen requested an injunction restoring him to his position as manager of the Fargo Branch Office; restitution of lost past income in the amount of $50,000; damages in the amount of $170,000; punitive damages in an amount "exceeding $100,000;" and costs, disbursements, and attorney fees pursuant to 42 U.S.C. Sec. 1988.

Strinden subsequently moved to dismiss the action for failure to state a claim upon which relief can be granted, and, in the alternative, for summary judgment based primarily on the theory that any judgment rendered against Strinden in his official capacity as Registrar would be satisfied from State funds and that such a judgment was barred by the State's sovereign immunity. Further circumstances relating to this contention will be discussed later in the opinion.

The district court granted Strinden's motion to dismiss. The court determined that the State of North Dakota was the real party in interest and, as such, was entitled to raise sovereign immunity as a bar to the suit. The court further concluded that a State is not a "person" subject to suit under Sec. 1983. Kristensen appealed from this judgment.

Broadly stated, the issue raised by Kristensen in this case is whether or not the doctrine of sovereign immunity bars his constitutional challenge to Strinden's failure to reappoint him as branch manager. Before reaching this question, however, we first consider the appellee's contention that our State courts should not entertain suits brought under Sec. 1983.

I

Although our court has never directly decided the issue [see Falkenstein v. City of Bismarck, 268 N.W.2d 787, 789 n. 1 (N.D.1978) ], it is now well settled that claims brought under Sec. 1983 are fully cognizable in State courts. Maine v. Thiboutot, 448 U.S. 1, 3 n. 1, 100 S.Ct. 2502, 2503 n. 1, 65 L.Ed.2d 555, 558 n. 1 (1980); Martinez v. California, 444 U.S. 277, 283 n. 7, 100 S.Ct. 553, 558 n. 7, 62 L.Ed.2d 481, 488 n. 7 (1980). See also Allen v. McCurry, 449 U.S. 90, 99 n. 15, 101 S.Ct. 411, 417 n. 15, 66 L.Ed.2d 308, 316 n. 15 (1980). The appellee, however, correctly points out that the United States Supreme Court has not determined whether or not State courts are obligated to exercise jurisdiction over Sec. 1983 suits. See Thiboutot, supra; Martinez, supra; McCurry, supra. The appellee relies upon the Tennessee Supreme Court's decision in Chamberlain v. Brown, 223 Tenn. 25, 442 S.W.2d 248 (1969), matters of public policy, and the existence of an adequate State remedy via "a direct cause of action under the State Constitution" for the proposition that there is no need to require the courts of this State to entertain a Sec. 1983 action.

In Chamberlain, supra, 223 Tenn. at 35, 442 S.W.2d at 252, the court refused to exercise jurisdiction in a Sec. 1983 action, concluding that "it would be illogical indeed to hold that a State court should enforce, or is required to enforce, an alleged cause of action which owes its very existence to congressional recognition of reluctance or refusal of State courts to act."

However, every State court that has considered the Chamberlain decision has rejected its reasoning in favor of exercising jurisdiction in Sec. 1983 actions. See New Times, Inc. v. Arizona Board of Regents, 20 Ariz.App. 422, 513 P.2d 960 (1973), vacated on other grounds, 110 Ariz. 367, 519 P.2d 169 (1974); Brown v. Pitchess, 13 Cal.3d 518, 119 Cal.Rptr. 204, 531 P.2d 772 (1975); Bohacs v. Reid, 63 Ill.App.3d 477, 20 Ill.Dec. 304, 379 N.E.2d 1372 (1978); Alberty v. Daniel, 25 Ill.App.3d 291, 323 N.E.2d 110 (1974); Cooper v. Hutchinson Police Dept., 6 Kan.App.2d 806, 636 P.2d 184 (1981), overruled on other grounds, Miller v. City of Overland Park, 231 Kan. 557, 646 P.2d 1114 (1982); Thiboutot v. State, 405 A.2d 230, aff'd sub nom. Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980); De Bleecker v. Montgomery County, 48 Md.App. 455, 427 A.2d 1075 (1981), reversed on other grounds, 292 Md. 498, 438 A.2d 1348 (1982); Shapiro v. Columbia Un. Nat. Bk. & Tr. Co., 576 S.W.2d 310 (Mo.1978), cert. denied, 444 U.S. 831, 100 S.Ct. 60, 62 L.Ed.2d 40 (1979); Brody v. Leamy, 90 Misc.2d 1, 393 N.Y.S.2d 243 (Sup.Ct.Dutchess Cty.1977); Commonwealth ex rel. Saunders v. Creamer, 11 Pa.Commw. 160, 312 A.2d 454 (1973), vacated on other grounds, 464 Pa. 2, 345 A.2d 702 (1975); Terry v. Kolski, 78 Wis.2d 475, 254 N.W.2d 704 (1977).

In addition, we fail to see how public policy would be served by barring access to the courts of this State to its citizens who choose to litigate crucial civil rights issues, which Sec. 1983 cases raise, in a State rather than a Federal court. Nor do we believe that all defendants in Sec. 1983 actions should be required to defend these actions only in front of Federal judges. It would indeed be contrary to public policy to preclude our State courts from granting to plaintiffs a full measure of relief from wrongs inflicted upon them. In sum, we believe our State courts "are no less proper a forum for the vindication of civil rights than the federal courts." Royer v. Adams, 121 N.H. 1024, 1026, 437 A.2d 316, 317 (1981).

Assuming arguendo that the existence of an adequate State remedy can be considered in deciding whether or not Sec. 1983 actions should be entertained in State courts, ² the appellee's contention that Kristensen's direct cause of action under the State Constitution provides him with an adequate State remedy is speculative at best. Although this court, citing as authority Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), held in State v. Howe, 308 N.W.2d 743 (N.D.1981), that our courts have the power to fashion a remedy, without legislative authorization, to vindicate the violation of a person's constitutional rights, our court to date has not implied a direct cause of action for damages for violation of the North Dakota constitutional provisions relied upon by Kristensen. The possibility that this court might fashion such a remedy one day in the future can hardly be considered an "adequate" State remedy in the context of the present case.

Most important, however, the appellee has not brought to our attention any authority under State law which allows this court to choose to not entertain Sec. 1983 actions. The court in Chamberlain, supra, 223 Tenn. at 31, 442 S.W.2d at 250-251, stated that "no policy of this State can be found in its history, judicial or otherwise, that would require the judicial branch of the government of Tennessee to entertain such action." Our law is to the contrary. Article I, Section 9, of the North Dakota Constitution provides in part that "[a]ll courts shall be open, and every man for any injury done him in his lands, goods, person or reputation shall have remedy by due process of law, and right and justice administered without sale, denial or delay." Our Constitution does not permit State courts any discretion in determining whether or not to entertain actions properly brought before them.

We therefore conclude that our State courts are vested with concurrent jurisdiction to entertain suits brought under Sec. 1983.

II

We now turn to the merits of Kristensen's claim that sovereign immunity does not bar his constitutional challenge to Strinden's failure to reappoint him as branch manager. We believe this contention necessitates three separate inquiries: (A) whether or not Kristensen's action is, in effect, a suit against the State of North Dakota; (B) whether or not Kristensen's suit can be considered an action "arising upon contract," for which the State has waived its immunity under Sec. 32-12-02, N.D.C.C.; and (C) whether or not the State may raise its sovereign immunity as a bar to a suit in State court for the alleged violation of Federal constitutional rights.

A

In determining whether or not Kristensen has in fact brought suit against the State of North Dakota, a further examination of some of the procedural circumstances present in this case is appropriate.

Kristensen's complaint was...