Potts v. City of Devils Lake

• Citation: 953 N.W.2d 648
• Decision Date: 12 January 2021
• Docket Number: No. 20200144,20200144
• Parties: Brandon POTTS, Plaintiff and Appellant v. CITY OF DEVILS LAKE and Devils Lake Police Department, Defendants and Appellees
• Court: United States State Supreme Court of North Dakota

953 N.W.2d 648

Brandon POTTS, Plaintiff and Appellant

v.CITY OF DEVILS LAKE and Devils Lake Police Department, Defendants and Appellees

No. 20200144

Supreme Court of North Dakota.

FILED JANUARY 12, 2021

Leo F. J. Wilking, Fargo, ND, for plaintiff and appellant.

Scott K. Porsborg (argued) and Austin T. Lafferty (appeared), Bismarck, ND, for defendants and appellees.

Mark A. Friese, Fargo, ND, for Amicus Curiae North Dakota Fraternal Order of Police.

Crothers, Justice.

[¶1] Brandon Potts appeals after the district court granted summary judgment to the City of Devils Lake and the Devils Lake Police Department (collectively, "Devils Lake") dismissing his claim for wrongful termination. Potts argues the court erred in holding under North Dakota law that no exception to the employment-at-will doctrine exists for law enforcement officers who act in self-defense. We affirm.

I

[¶2] Potts was hired as a patrol officer in the Devils Lake Police Department in May 2008 and was promoted to detective in March 2013. In February 2019, he was terminated after a July 2018 incident where, while attempting to arrest a suspect, Potts's service weapon discharged, striking the suspect in the head, and resulting in his death.

[¶3] In August 2019, Potts sued Devils Lake for wrongful termination, alleging his termination was against public policy. In September 2019, Devils Lake answered the complaint, denied any wrongful termination and asserted various affirmative defenses. The parties initially filed a stipulation of facts with a joint motion for certification of question of law by the district court. The parties ultimately converted their joint motion to cross-motions for summary judgment.

[¶4] After a hearing in March 2020, the district court issued an April 2020 memorandum opinion and order granting summary judgment in favor of Devils Lake. The court concluded that no clear and compelling public policy exists in favor of an exception to the employment-at-will doctrine in North Dakota for law enforcement officers who act in self-defense.

II

[¶5] "Summary judgment is a procedural device for the prompt resolution of a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law." McCormick, Inc. v. Fredericks , 2020 ND 161, ¶ 29, 946 N.W.2d 728 (quoting Krebsbach v. Trinity Hosps., Inc. , 2020 ND 24, ¶ 7, 938 N.W.2d 133 ). On appeal this Court views the evidence in the light most favorable to the party opposing the motion. Id. Whether the district court properly granted summary judgment is a question of law, which this Court reviews de novo on the entire record. Id.

III

[¶6] The sole issue on appeal is whether the district court erred as a matter of law in holding there is no public policy exception from the employment-at-will doctrine for law enforcement officers who act in self-defense.

[¶7] North Dakota law presumes at-will employment under N.D.C.C. § 34-03-01, providing that "employment having no specified term may be terminated at the will of either party on notice to the other, except when otherwise provided by this title." Yahna v. Altru Health Sys., 2015 ND 275, ¶ 8, 871 N.W.2d 580. Under N.D.C.C. § 34-03-01, employment without a definite term is presumed to be at will, giving an employer the right to terminate an at-will employee with or without cause. See Dahlberg v. Lutheran Soc. Servs. of N.D. , 2001 ND 73, ¶ 13, 625 N.W.2d 241 ; Jose v. Norwest Bank , 1999 ND 175, ¶¶ 10, 17, 599 N.W.2d 293. This Court, however, has recognized certain exceptions to this presumption.

[¶8] For example, "[t]his Court has recognized the statutory presumption for at-will employment may be modified by an employment handbook creating contractual rights to employment, or by the statutory proscription against unlawful age discrimination in the North Dakota Human Rights Act, N.D.C.C. ch. 14-02.4." Yahna , 2015 ND 275, ¶ 8, 871 N.W.2d 580 (citing Spratt v. MDU Res. Grp., Inc. , 2011 ND 94, ¶¶ 9-19, 797 N.W.2d 328 (analyzing age discrimination claim under Human Rights Act)); Hunt v. Banner Health Sys. , 2006 ND 174, ¶¶ 9-17, 720 N.W.2d 49 (analyzing effect of employee handbook on at-will employment presumption). This Court has also recognized limited public policy exceptions to the at-will employment doctrine:

"Although at-will employees generally may be discharged at any time for any reason, we have recognized limited, public policy exceptions to the at-will presumption if employees establish they were terminated in retaliation for complying with a clear public policy. See Ressler v. Humane Soc. , 480 N.W.2d 429, 432 (N.D. 1992) (holding public policy prohibited employer from discharging employee in retaliation for honoring subpoena and informing employer she was prepared to testify contrary to employer's interest in criminal proceeding); Krein v. Marian Manor Nursing Home , 415 N.W.2d 793, 795 (N.D. 1987) (holding public policy prohibited employer from discharging employee in retaliation for seeking workers compensation benefits). Compare Jose , 1999 ND 175, ¶ 21, 599 N.W.2d 293 (holding employees identified no clear public policy which their termination violated); Lee v. Walstad , 368 N.W.2d 542, 547 (N.D. 1985) (same)."

Dahlberg , 2001 ND 73, ¶ 32, 625 N.W.2d 241.

[¶9] Potts acknowledges that this Court has never addressed whether self-defense is a public policy exception to the at-will employment doctrine. He nevertheless asserts this Court should adopt the rationale set forth by other courts. See, e.g. , Ray v. Wal-Mart Stores, Inc. , 359 P.3d 614, 619 (Utah 2015) (holding "that Utah law reflects a policy favoring the right of self-defense, and that policy is of sufficient magnitude to qualify as a substantial public policy exception to the at-will employment doctrine, but only under the narrow circumstances where an employee cannot withdraw and faces imminent serious bodily injury"), and Feliciano v. 7-Eleven, Inc. , 210 W.Va. 740, 559 S.E.2d 713, 724 (2001) (holding the "right of self-defense in response to lethal imminent danger is a substantial public policy exception to the at will employment doctrine and will support a cause of action for wrongful discharge[; however,] [a]n aggrieved employer may then rebut the presumption of a wrongful discharge by demonstrating that it had a plausible and legitimate business reason for terminating its employee").

[¶10] Potts contends North Dakota's constitution and statutes provide sufficiently clear public policy to support an exception to the at-will employment doctrine under N.D.C.C. § 34-03-01. In support of his argument for a public policy exception, Potts relies on N.D. Const. art. I, § 1 ("All individuals are by nature equally free and independent and have certain inalienable rights, among which are those of enjoying and defending life and liberty ...."); N.D.C.C. § 12.1-05-03 (providing justification for using force on another person in self-defense); N.D.C.C. § 12.1-05-02(1) ("Conduct engaged in by a public servant in the course of the person's official duties is justified when it is required or authorized by law."); and N.D.C.C. § 12.1-05-07(2)(a),(b) (providing deadly force is justified when "it is expressly authorized by law" or "used in lawful self-defense ... if such force is necessary to protect the actor or anyone else against death, serious bodily injury, or the commission of a felony involving violence").

[¶11] Potts argues his actions in subduing the suspect were taken as a public servant in the course of his official duties and were taken in lawful self-defense. He contends he should not lose his job for doing his job. Potts further argues the exception to at-will employment for obeying a subpoena, Ressler , 480 N.W.2d 429, applies with equal force to a determination for compliance with a statutory duty, particularly when the use of force was reasonable and justified. He contends the Ray, 359 P.3d 614, and Feliciano , 559 S.E.2d 713, cases support recognizing a public policy exception, and cases from other jurisdictions are factually distinct.

[¶12] In its amicus curiae brief, the North Dakota Fraternal Order of Police ("NDFOP") argues that peace officers should not be forced to forfeit their constitutional right to self-defense on a fear of losing their job and that North Dakota's self-defense law shows clear and compelling public policy for an exception to the at-will employment doctrine. NDFOP contends a policy allowing termination of a police officer for acting in self-defense while making an arrest is inimical to existing public policy, resulting in police officers not defending themselves fearing job loss and offenders resisting to avoid arrest. NDFOP also asserts the public policy concern is more akin to that in Ressler , 480 N.W.2d 429, and Krein , 415 N.W.2d 793.

[¶13] Devils Lake responds that the district court correctly held there was not a public policy expressed with "sufficient clarity and weight" to support an exception from the employment-at-will doctrine for law enforcement officers acting in self-defense. Devils Lake contends this Court is cautious to recognize public policy exceptions and both Ressler and Krein are distinguishable because they involved private rather than public employers. Devils Lake argues North Dakota's constitutional, statutory, and administrative provisions do not support recognizing a public policy exception.

[¶14] Devils Lake argues that the Ray and Feliciano cases are not persuasive, are not binding, and are not the best guidance. Devils Lake asserts a majority of other jurisdictions that have considered the issue have declined to recognize this public policy exception, citing Hoven v. Walgreen Co. , 751 F.3d 778 (6th Cir. 2014) ; Keshe v. CVS Pharmacy Inc. , No. 2:14-cv-08418CAS(MANx), 2016 WL 1367702 (C.D. Cal. Apr. 5, 2016), aff'd sub nom. Keshe v. CVS Pharmacy , 711 F.App'x 396 (9th Cir. 2017) ; ...