Municipal Services Corp. v. State By and Through North Dakota Dept. of Health and Consol. Laboratories
Decision Date | 31 March 1992 |
Docket Number | No. 910208,910208 |
Citation | 483 N.W.2d 560 |
Parties | MUNICIPAL SERVICES CORPORATION, Appellee, v. The STATE of North Dakota, acting By and Through the NORTH DAKOTA DEPARTMENT OF HEALTH AND CONSOLIDATED LABORATORIES, Appellant. Civ. |
Court | North Dakota Supreme Court |
Raymond T. Reott (argued) of Jenner & Block, Chicago, Ill., Kelsch, Kelsch, Ruff & Austin, Mandan, and Pringle & Herigstad, P.C., Minot, for appellee. Appearances by Gretchen M. Livingston, Thomas F. Kelsch, and David J. Hogue.
Nicholas J. Spaeth (argued), Atty. Gen., William J. Delmore and Gregory B. Gullickson, Asst. Attys. Gen., Atty. General's Office, Bismarck, for appellant. Appearances by William J. Delmore and Gregory B. Gullickson.
The State appeals from a district court judgment vacating the North Dakota Department of Health and Consolidated Laboratories' [Department] order denying Municipal Services Corporation's [MSC] application to modify its Sawyer facility permit to allow it to dispose of municipal waste combuster ash. We conclude that the Department's procedure did not afford MSC a fair hearing and we, therefore, affirm the judgment as hereafter modified.
MSC owns a landfill site in Ward County for disposal of nonhazardous industrial solid waste. MSC petitioned the Department for modification of its landfill permit to include changes in the construction, operation, closure and postclosure maintenance of the site, and for permission to dispose of municipal waste combuster (incinerator) ash in the modified landfill.
The Department maintained a public comment period on the application from November 3 through December 10, 1990. The Department held a public hearing on the application in Sawyer on November 28 and 29, 1990. Dr. Robert M. Wentz, State Health Officer, presided as the Department's hearing officer. Approximately 85 witnesses testified and approximately 270 exhibits were received in evidence. On December 20, 1990, Dr. Wentz issued findings of fact, conclusions of law and an order denying MSC's application for modification of its permit.
MSC petitioned for rehearing and also petitioned to disqualify Dr. Wentz as the hearing officer, based upon a November 19, 1990, letter from Dr. Wentz to Governor George A. Sinner. The Department denied MSC's petitions and MSC appealed to the district court.
On appeal, the district court ordered that the Department's decision be vacated, stating:
"8. All things considered, in reviewing this record on appeal I discern:
-- Intolerably high probability of bias by the adjudicator.
-- Clear appearance of prejudgment before the Hearing.
-- Failure to perform in a way that would lend credibility to the ultimate decision or that might earn deference to it.
Judgment was entered accordingly and the Department appealed.
MSC moved to dismiss the appeal for lack of appellate jurisdiction. The Department appealed pursuant to Sec. 28-32-21, N.D.C.C., which allows an administrative agency to appeal from the final judgment of the district court. MSC contends that "[t]here can be no dispute that the district court's order is not a final judgment" and argues that "[a]n order that merely vacates a prior decision leaves the action pending below." We disagree. The district court did not retain jurisdiction and remand a matter to the administrative agency for the receipt and consideration of additional evidence under Sec. 28-32-18, N.D.C.C., before deciding the appeal. Here, the district court decided the appeal, vacated the Department's decision, and remanded the matter to the Department to affirm, reverse, amend or modify its decision. The district court had nothing more to do in the case. A judgment was entered and it was final and appealable under Sec. 28-32-21, N.D.C.C. To adopt MSC's argument would render many district court decisions on legal questions "effectively unreviewable" [Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351, 358 (1978) ].
On appeal, the Department asserts that Dr. Wentz's letter to Governor Sinner did not constitute legal bias. In his November 19, 1990, letter to Governor Sinner, Dr. Wentz stated:
In Withrow v. Larkin, 421 U.S. 35, 46-47, 95 S.Ct. 1456, 1464, 43 L.Ed.2d 712, 723 (1975), the United States Supreme Court addressed the issue of when an adjudicator's bias or prejudice would constitute a denial of procedural due process:
See also Domek v. North Dakota State Personnel Bd., 430 N.W.2d 339 (N.D.1988); Mattheis v. City of Hazen, 421 N.W.2d 476 (N.D.1988). " " Baier v. Hampton, 440 N.W.2d 712, 715 (N.D.1989), quoting In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942, 946 (1955). 4 J. Stein, G. Mitchell, and B. Mezines, Administrative Law Sec. 35.03 (1991). Under Sec. 28-32-19(4), N.D.C.C., a court may overturn an administrative agency decision, if the agency's rules or procedure do not afford the appellant a fair hearing. Judicial review provides the ultimate due process protection to those aggrieved by agency decisions. Sletten v. Briggs, 448 N.W.2d 607 (N.D.1989), cert. denied, 493 U.S. 1080, 110 S.Ct. 1135, 107 L.Ed.2d 1041 (1990).
Dr. Wentz's integrity has not been challenged. No one has alleged that Dr. Wentz "has a pecuniary interest in the outcome," that "he has been the target of personal abuse or criticism from the party before him" (Withrow v. Larkin, supra ), or that he had any "personal animosity" (Mattheis v. City of Hazen, supra, 421 N.W.2d at 480). Thus, rather than an issue of actual bias, we are faced with an issue about prejudgment, "[a]n area closely akin to bias." 4 Stein, Mitchell, and Mezines, supra, Sec. 35.03.
MSC relies on a number of decisions involving adjudicative facts in support of its assertion that Dr. Wentz impermissibly prejudged the relevant facts and law: In re Murchison, supra; Baier v. Hampton, supra; Antoniu v. S.E.C., 877 F.2d 721 (8th Cir.1989), cert. denied, 494 U.S. 1004, 110 S.Ct. 1296, 108 L.Ed.2d 473 (1990); Cinderella Career and Finishing Schools, Inc. v. F.T.C., 425 F.2d 583 (D.C.Cir.1970); New York State Inspection, Security and Law Enforcement Employees v. New York State Public Employment Relations Board, 629 F.Supp. 33 (N.D.N.Y...
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