ND Human Rights Coalition v. Bertsch

• Decision Date: 17 May 2005
• Docket Number: No. 20040297.,20040297.
• Citation: 697 N.W.2d 1,2005 ND 98
• Parties: NORTH DAKOTA HUMAN RIGHTS COALITION, a North Dakota non-profit corporation; Richard Folstrom, Christopher Beeter, Shelly Ann Peterson, Jerry Zillier, Dave Shove, Charles Stebbins, and Patricia Villanueva (legal guardian for Lisa Villanueva); individually, and on behalf of all others similarly situated, Plaintiffs and Appellees v. Leann K. BERTSCH, Commissioner, North Dakota Department of Labor, Defendant and Appellant.
• Court: North Dakota Supreme Court

697 N.W.2d 1

2005 ND 98

NORTH DAKOTA HUMAN RIGHTS COALITION, a North Dakota non-profit corporation; Richard Folstrom, Christopher Beeter, Shelly Ann Peterson, Jerry Zillier, Dave Shove, Charles Stebbins, and Patricia Villanueva (legal guardian for Lisa Villanueva); individually, and on behalf of all others similarly situated, Plaintiffs and Appellees v. Leann K. BERTSCH, Commissioner, North Dakota Department of Labor, Defendant and Appellant.

No. 20040297.

Supreme Court of North Dakota.

May 17, 2005.

Mark G. Schneider, Schneider & Schneider, Fargo, N.D., for plaintiffs and appellees.

Douglas A. Bahr, Solicitor General, Office of Attorney General, Bismarck, N.D., for defendant and appellant.

SANDSTROM, Justice.

[¶ 1] The Commissioner of the North Dakota Department of Labor ("Commissioner") appealed from an order certifying a class action for individuals who have filed discriminatory practice complaints with the Commissioner and have not received a probable cause determination and from an order denying the Commissioner's motion to alter or amend the order certifying the class action. We conclude the trial court's explanation for granting class certification is insufficient to understand the basis for its decision. We reverse and remand.

I

[¶ 2] The North Dakota Human Rights Coalition ("Coalition"), a North Dakota non-profit corporation, and seven persons, individually and on behalf of all others similarly situated, sued the Commissioner, challenging the Commissioner's "policy of failing and refusing to perform his mandatory, nondiscretionary duties" under N.D.C.C. § 14-02.4-23(2) and (3). The plaintiffs alleged the Commissioner failed to "determine from the facts whether probable cause exists to believe that a discriminatory practice has occurred" for the vast majority of discriminatory practice complaints filed with the Commissioner. The plaintiffs also alleged the Commissioner refused to provide administrative hearings for individuals alleging violations of their human rights "even though the Commissioner has found `... probable cause exists to believe that a discriminatory practice has occurred and [the Department of Labor] is unable to resolve the complaint through informal negotiations or conciliation.'" The plaintiffs sought declaratory relief and a writ of mandamus to compel the Commissioner (1) to promptly determine from the facts whether probable cause exists to believe a discriminatory practice has occurred for each discriminatory practice complaint that has been, or will be, filed with the Commissioner, and (2) to immediately provide administrative hearings if the Commissioner finds probable cause to believe a discriminatory practice has occurred and is unable to resolve the complaint through informal negotiations or conciliation. The Commissioner moved to dismiss the plaintiffs' complaint, and the plaintiffs sought certification of their lawsuit as a class action.

[¶ 3] After a hearing, the trial court denied the Commissioner's motion to dismiss and construed the Commissioner's obligations under N.D.C.C. § 14-02.4-23, which provides:

1. The department shall investigate complaints of alleged discriminatory practices. An aggrieved person may file a complaint with the department alleging the discriminatory practice. The department may file a complaint.

A complaint must be in writing and in the form prescribed by the department.

2. The department shall determine from the facts whether probable cause exists to believe that a discriminatory practice has occurred. If the department determines that no probable cause exists to believe that a discriminatory practice has occurred, the department shall promptly dismiss the complaint.

3. If the department determines that probable cause exists to believe that a discriminatory practice has occurred and is unable to resolve the complaint through informal negotiations or conciliation, the department shall provide for an administrative hearing in the manner provided in chapter 28-32 on the complaint.

The court concluded N.D.C.C. § 14-02.4-23 does not create a mandatory, non-discretionary duty for the Commissioner to make a determination for every discriminatory practice complaint, because the Commissioner has authority to assist the parties in conciliation before, and without, issuing a determination. The court concluded N.D.C.C. § 14-02.4-23 requires the Commissioner to provide an administrative hearing only when probable cause exists and the matter cannot be settled. The court concluded the Commissioner is not required to provide an administrative hearing if, after notification of the right to a hearing, the complaining party does not request a hearing.

[¶ 4] In deciding the named plaintiffs' claims, the trial court ruled the Coalition lacked standing to bring the action in its own right or as a representative of any alleged class. The court decided Richard Folstrom and Christopher Beeter, the two individual plaintiffs who alleged a discriminatory practice that occurred before the August 1, 2001, effective date of N.D.C.C. § 14-02.4-23, had been improperly denied an administrative hearing and ordered the Commissioner to provide them with a hearing as soon as practicable. The court determined there were factual questions about whether the Commissioner had misled two other individual plaintiffs, Shelly Ann Peterson and Jerry Zillier, regarding their right to an administrative hearing. The court decided the remaining three individual plaintiffs, Dave Shove, Charles Stebbins, and Patricia Villanueva, as legal guardian for Lisa Villanueva, had filed discriminatory practice complaints but had not yet received a probable cause determination on their complaints, and the court retained jurisdiction over their claims until the Commissioner issued determinations on their charges, or until the charges were conciliated.

[¶ 5] In considering the plaintiffs' request for class certification, the court said the plaintiffs' proposed class of persons who have filed, or will file, a discrimination charge with the Commissioner was overly broad. The court identified four possible subclasses of plaintiffs: (1) individuals receiving a probable cause determination for alleged discriminatory practices occurring before the August 1, 2001, effective date of N.D.C.C. § 14-02.4-23; (2) individuals who have filed discriminatory practice charges and have not received a probable cause determination; (3) individuals who alleged they have been forced to participate in conciliation; and (4) individuals who have received written notice of a right to an administrative hearing, but who allege they have been misled by subsequent statements from the Labor Department about the efficacy of a hearing or the relief a hearing could afford. The court determined Shove, Stebbins, and Villanueva, the three individual plaintiffs who had filed discriminatory practice complaints and had not yet received a probable cause determination, could represent the subclass of individuals who have filed discriminatory practice complaints and have not received a probable cause determination. The court certified their claims as a class action, but declined to certify the other three subclasses as a class action.

[¶ 6] The Commissioner moved to alter or amend the court's order certifying the class action, seeking an order denying certification of any class, or defining the class as plaintiffs who have been harmed because the Commissioner has not promptly or properly investigated their claims of discrimination. The court denied the Commissioner's motion, stating the issue was "the process in which claims requiring a probable cause determination sit and gather dust." The court said "those claims that have met the Department's probable cause test languish with no hearing as required by statute: zero hearings in three years. At this point in time, we simply cannot leave it to the Department to self-determine whether it has met its statutory duties" under N.D.C.C. § 14-02.4-23.

[¶ 7] The trial court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, N.D.C.C. § 28-27-02, and N.D.R.Civ.P. 23(d)(3).

II

[¶ 8] The parties have not challenged the trial court's interpretation of N.D.C.C. § 14-02.4-23, or the court's refusal to certify three of the subclasses identified by the court. Rather, the Commissioner argues the court abused its discretion in certifying a class action for individuals who have filed discriminatory practice complaints and have not yet received probable cause determinations.

[¶ 9] A trial court may certify a lawsuit as a class action under N.D.R.Civ.P. 23 if the court finds the following four requirements: (1) the class is so numerous or so constituted that joinder of all members, whether or not otherwise required or permitted, is impracticable; (2) there is a question of law or fact common to the class; (3) a class action should be permitted for the fair and efficient adjudication of the controversy; and (4) the representative parties fairly and adequately will protect the interests of the class. Bice v. Petro-Hunt, L.L.C., 2004 ND 113, ¶ 6, 681 N.W.2d 74. A trial court may rely on common sense assumptions to support a finding of numerosity, and the requirement for common questions of law or fact is easily satisfied. Werlinger v. Champion Healthcare Corp., 1999 ND 173, ¶¶ 13, 16, 598 N.W.2d 820. In determining whether a class action should be permitted for the fair and efficient adjudication of a controversy, N.D.R.Civ.P. 23(c)(1) outlines thirteen factors the court must consider. The court is not required to specifically address each of the thirteen factors, but the court must weigh the competing factors, and no one factor predominates over the other factors. Howe v. Microsoft Corp., 2003 ND 12, ¶ 9, 656 N.W.2d 285. In determining whether the representative parties...