Lund v. North Dakota State Highway Dept., s. 11365

Decision Date27 March 1987
Docket NumberNos. 11365,11387,s. 11365
Citation403 N.W.2d 25
PartiesArlin LUND, Plaintiff and Appellant, v. NORTH DAKOTA STATE HIGHWAY DEPARTMENT, Walter Hjelle, State Highway Commissioner, Officer Steven Kenner, and Deputy Raymond Dingeman, Defendants and Appellees. Civ.
CourtNorth Dakota Supreme Court

Fintan L. Dooley, Bismarck, for plaintiff and appellant; submitted on brief.

Myron E. Bothun, Asst. Atty. Gen., Bismarck, for North Dakota State Highway Department and Walter Hjelle, State Highway Commissioner; submitted on brief.

Hugh P. Seaworth, City Atty., Bismarck, for Officer Steven Kenner; submitted on brief.

Lawrence A. Dopson, of Pearce & Durick, Bismarck, for Deputy Raymond Dingeman; submitted on brief.


Arlin Lund appealed from the order of the district court of Burleigh County which denied his application for a writ of mandamus, and from orders dismissing his complaint. We granted a motion for consolidation of the appeals and we affirm the orders and judgment.

Lund was arrested on March 30, 1986, and charged with the offense of driving a vehicle while under the influence of intoxicating liquor. Lund requested a hearing before the State Highway Commissioner, but his request was denied because it was not made within the five-day statutorily prescribed period following his arrest.

On July 21, 1986, Lund commenced an action against the defendants. He claimed that he had been misled by law-enforcement officers and by the language of the temporary operator's permit which was issued to him and as a result failed to timely request a hearing. Lund asserted that at the hearing he would have rebutted contentions that he was driving while intoxicated. He requested several forms of relief, including: requiring the Highway Commissioner to issue him a license or grant a hearing; declaring that the provisions of the temporary operator's permit were not sufficient notice and thus violated his due-process rights; and awarding Lund damages equal to the increased cost of automobile insurance resulting from the suspension of his license. The defendants filed motions to dismiss and the trial court granted a summary judgment of dismissal to each of the defendants based upon Lund's failure to state a claim upon which relief can be granted.

On August 28, 1986, Lund applied for a writ of mandamus to require the Highway Commissioner to grant him an administrative hearing. Lund based his application on a claim that law-enforcement officers had intentionally misled him and caused him to fail to timely request a hearing. The trial court denied his application, stating that Lund had failed to state a claim upon which relief can be granted.

On appeal, Lund asserts that the trial court erred by:

1. denying his application for a writ of mandamus; and

2. dismissing by summary judgment his claim against each of the defendants.

We consider first Lund's claim that the trial court erred when it denied his application for a writ of mandamus.

In order to show that he is entitled to a writ of mandamus from the courts, the plaintiff must show that he has a clear legal right to the relief which he is seeking. Webster v. Bismarck Public Sch. Dist. No. 1, 321 N.W.2d 98 (N.D.1982). In Lee v. Walstad, 368 N.W.2d 542, 545 (N.D.1985), we set forth the standard of review when examining a denial of a writ of mandamus:

"A writ of mandamus will not lie ... unless the plaintiff's legal right to the performance of the particular act sought to be compelled by the writ is clear and complete, and we will reverse the trial court's denial of a writ of mandamus only if, as a matter of law, such writ should issue or there is a finding that the trial court has abused its discretion."

Section 32-34-01, N.D.C.C., provides in relevant part:

"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, ..." [Emphasis added.]

If the Highway Commissioner had a clear legal duty to grant Lund a hearing, a writ of mandamus may be properly issued to compel such action. Section 39-20-05, N.D.C.C., provides in part that "the commissioner shall afford that person an opportunity for a hearing if the person mails a request for the hearing to the commissioner within five days after the date of issuance of the temporary operator's permit." [Emphasis added.] It is clear that Section 39-20-05 creates a legal duty, but it is equally clear that the duty is contingent on the action taken by the driver [Lund]. Before the Commissioner's duty to order a hearing arises, the driver must have timely requested a hearing. Lund received his temporary operator's permit on March 30, 1986. He mailed his request for a hearing on April 7, 1986. Lund did not request a hearing within the five-day statutory period, and thus the Commissioner did not have a clear legal duty to grant a hearing. Cf. Bjerga v. Maislin Transport and Carriers Ins. Co., 400 N.W.2d 99 (Minn.1987).

Lund asserts that the Highway Commissioner should have weighed the equities of the situation and granted a hearing despite the fact that Lund's request was late. Requesting the Highway Commissioner to weigh equities and waive statutory time restrictions implies that the Commissioner had discretion as to whether or not to hold a hearing. If we were to assume, which we do not, that the Commissioner possessed such discretion, Lund nevertheless would not be entitled to the writ because mandamus is not proper to order a discretionary act. State ex rel. Peterson v. Olson, 307 N.W.2d 528 (N.D.1981); City of Fargo v. Cass County, 286 N.W.2d 494 (N.D.1979).

The Highway Commissioner did not have a legal duty to grant Lund a hearing and therefore the trial court did not abuse its discretion in refusing to issue the writ, nor has Lund shown that he was entitled to a writ of mandamus as a matter of law. 1

We now turn to Lund's claim that the trial court erred in dismissing, by summary judgment, his complaint against the various defendants because he failed to state a claim upon which relief can be granted.

Summary judgment should be granted only if, viewing the evidence in a light most favorable to the party against whom summary judgment is sought, it appears that there is no genuine issue as to any material fact, and that the party seeking it is entitled to summary judgment as a matter of law. Greenwood v. American Family Ins. Co., 398 N.W.2d 108 (N.D.1986). Summary judgment is proper, even if factual disputes exist between the parties, if the law is such that resolution of the factual dispute will not alter the result. First Nat. Bank of Hettinger v. Clark, 332 N.W.2d 264 (N.D.1983). Thus, accepting Lund's version of the facts as true, as we must, are the defendants still entitled to dismissal of Lund's complaint as a matter of law? Everett Drill. Vent. v. Knutson Flying Serv., 338 N.W.2d 662 (N.D.1983); O'Connell v. Entertainment Enterprises, 317 N.W.2d 385 (N.D.1982).

Lund submitted an affidavit in which he set forth his version of the conversation between him and the law-enforcement officers. For the purposes of our review of the summary judgment of dismissal, we must accept Lund's allegations regarding the statements of the officers. 2

Officer (when giving Lund his temporary operator's permit): "Here's your drivers pass; it will keep your drivers license [in effect] and serve as your license for 20 days while you are waiting for Court."

Lund: "Will there be any restrictions on it?.... Like for night driving or for work?"

Officer: "They are the same as a regular license and will go [expire] to the 19th of April."

Lund: "After that time is over [has expired] if the Court is not finished what do I do?"

Officer: "I would have to take it up with someone at the Drivers License Division."

Later, Lund again asked both officers if there would be any restrictions or problems, or what he would have to do to keep his privileges to drive, and the officer simply told him to take the temporary permit.

Lund states that when he asked what he would do when the 20 days [period for which temporary permit was in force] ran out, the deputy stated:

"I'm not sure how that works. You'll have to talk to somebody at the Drivers License Division."

Lund claims that these statements by the law-enforcement officers constitute "negligent misrepresentation, misleading speech." 3 It is evident that the officers did not misspeak regarding Lund's proper course of action, and did not speak in a manner that was misleading. Lund was informed that he should take up any further questions he had with the Drivers License Division. He did not do so but asserts that the officers should have either said nothing in response to his questions, or said only that they were not attorneys but police officers. It appears that Lund is complaining that the officers were too helpful. He seems to be alleging that the officers acted improperly because they told him some facts regarding his temporary permit, but failed to make it clear enough to him that he had only five days in which to request a hearing.

We have not previously held, and refuse to so hold today, that a police officer must affirmatively act to ensure that the driver understands...

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