Saefke v. Stenehjem

• Decision Date: 29 December 2003
• Docket Number: No. 20030202.,20030202.
• Citation: 2003 ND 202,673 N.W.2d 41
• Parties: Frederick E. SAEFKE, Jr., Petitioner and Appellant v. Wayne STENEHJEM, Attorney General, State of North Dakota and Richard J. Riha, State's Attorney of Burleigh County, North Dakota, Respondents and Appellees.
• Court: North Dakota Supreme Court

673 N.W.2d 41

2003 ND 202

Frederick E. SAEFKE, Jr., Petitioner and Appellant v. Wayne STENEHJEM, Attorney General, State of North Dakota and Richard J. Riha, State's Attorney of Burleigh County, North Dakota, Respondents and Appellees.

No. 20030202.

Supreme Court of North Dakota.

December 29, 2003.

Rehearing Denied January 21, 2004.

Frederick E. Saefke, Jr., pro se, Bismarck, ND, for petitioner and appellant.

Douglas Alan Bahr, Solicitor General, Bismarck, ND, for respondent and appellee Wayne Stenehjem.

Scott K. Porsborg, Smith Bakke Oppegard Porsborg Wolf, Bismarck, ND, for respondent and appellee Richard J. Riha.

MARING, Justice.

[¶ 1] Frederick E. Saefke, Jr., appealed from a judgment dismissing his action against Attorney General Wayne Stenehjem and Burleigh County State's Attorney Richard J. Riha. Saefke alternatively petitioned this Court to exercise its supervisory jurisdiction and issue a supervisory writ. We affirm the dismissal of Saefke's claims against Stenehjem and dismiss Saefke's appeal of his claims against Riha, and we decline to issue a supervisory writ.

I

[¶ 2] Saefke's claims relate to the Burleigh County Commission's financial contributions to the Bismarck-Mandan Symphony Orchestra ["Symphony"] for July 4th celebrations at the capitol grounds. In a January 3, 2002, letter to Burleigh County Commissioner Marlan Haakenson, Riha concluded that, with certain exceptions for distributions to an authorized industry, enterprise, or business of the county which had been established on or before the donation, donations by a political subdivision to private groups were prohibited by N.D. Const. art X, § 18.

[¶ 3] In a June 27, 2002, response to a letter from Burleigh County Auditor Kevin Glatt, Riha reiterated his opinion about donations to private groups and concluded a requested donation to the Symphony for the upcoming July 4th celebration would violate N.D. Const. art. X, § 18. On July 1, 2002, the Burleigh County Commission passed a resolution to "officially celebrate the 4th of July and the life of Theodore Roosevelt" and to "initiate its 4th of July Celebration and ensure fire safety by supporting the celebration to take place on the capitol grounds on the 4th of July." Commissioner William Delmore stated "there [was] no money associated with this resolution and added that if we can get people to go to the capitol grounds rather than setting off their own fireworks we reduce the risk of fire, especially with the very dry conditions in the area." The Burleigh County Commission, with Commissioner Haakenson absent, then voted to donate $5,000 to the Symphony for the July 4, 2002, celebration. According to Riha, he was not then asked for an opinion on whether the connection to fire safety made the donation legal.

[¶ 4] On July 3, 2002, Glatt asked Riha for an opinion regarding payment of the $5,000 in view of Riha's June 27, 2002, opinion about the legality of the donation. Riha informed Glatt that he was "obligated to act as the commission directs."

[¶ 5] On August 9, 2002, Riha requested a formal opinion from Stenehjem about donations from 1997 to 2001 to support the July 4th celebrations for those years and about the 2002 donation. In an August 26, 2002, letter to Stenehjem, Burleigh County Commissioner Claus Lembke explained that, before authorizing the donation, the commission had debated and passed a motion making the July 4th celebration an "authorized enterprise or business" of Burleigh County, and the commission followed Riha's advice "to the letter and acted according to his instruction." Lembke's letter indicated Riha "was present during the debate of this issue and never voiced any concern over our actions," and the commission believed it was "following the law and the constitution." On September 24, 2002, Stenehjem issued a formal opinion, concluding the donations were prohibited and any authority for a county to make a donation for an authorized industry, enterprise, or business must be derived from a state law that authorized the donation. Stenehjem's opinion also concluded Riha had discretionary authority under N.D.C.C. § 11-16-01(13) to bring an action to recover any money illegally donated against those individual county commissioners who voted for the donations.

[¶ 6] Riha determined that, in addition to the 2002 donation, $11,000 had been donated to the Symphony from 1997 to 2001. According to Riha, he:

decided to demand on behalf of the county re-payment of the $5,000 contribution made in 2002, in lieu of pursuing past contributions. My rationale for deciding on this compromise was as follows:

1) The commissioners did not personally benefit from the contributions, as opposed to the situation in Grant County.

2) The past contributions were made innocently, before I issued my opinion on the legality of the contributions.

3) A special assistant appointed under section 11-16-07 would have quickly expended far more in county funds than the $11,000 that would eventually be collected. I felt $5,000 was a reasonable compromise, and one the commissioners would accept, thus avoiding costly litigation. The Commissioners who voted for the contribution had already requested that I "appeal" the Attorney General's opinion to the District Court, as they were anxious to have the decision overturned. I declined.... However, it was clear that the Commissioners would vigorously challenge any suit in an attempt to overrule the Attorney General's opinion. I saw little benefit to the County in spending more county funds on a special assistant than the amount that would eventually be collected.

4) In spite of the law on this issue, I felt there was little likelihood of success. The contributions to the Symphony were politically popular, and the only source of recovery for the monies was from the commissioners personally. I felt the fact that none of the commissioners benefited from the contributions made it unlikely a fact-finder would hold them personally responsible for repayment.

[¶ 7] In November 2002, after a donation from a local benefactor, the Symphony refunded $5,000 to Burleigh County, and Riha did not initiate a civil action against the individual commissioners to recover donations made from 1997 through 2001. In December 2002, after a request from Saefke to criminally prosecute the commissioners who voted for the donations, Riha formally referred the matter to Stenehjem for possible criminal proceedings against those commissioners. In December 2002, Stenehjem concluded criminal charges were not warranted and declined to prosecute.

[¶ 8] Saefke commenced this action against Stenehjem and Riha, claiming present and former Burleigh County Commissioners misapplied public funds and asking the district court to (1) overrule Stenehjem's formal opinion that Riha had discretionary authority to prosecute the county commissioners and Stenehjem's December 2002 decision that criminal charges against the commissioners were not warranted, (2) find Riha had neglected his duty, and (3) appoint an attorney under N.D.C.C. § 11-16-06 to prosecute civil and criminal actions against the county commissioners who had voted for the donations. Saefke alternatively sought a writ of mandamus directing Riha to fulfill his duties. The district court dismissed Saefke's action, concluding his complaint failed to state a claim against Stenehjem and Riha had not failed to perform his duties under N.D.C.C. § 11-16-06. Saefke appealed from the judgment dismissing his action and alternatively sought a supervisory writ.

II

[¶ 9] Saefke asks this Court to overrule Stenehjem's formal opinion that Riha had "discretionary" authority to prosecute the county commissioners, to hold Riha had a "duty" to prosecute the commissioners, and to issue a supervisory writ directing the district court to appoint an attorney to prosecute civil and criminal actions against the county commissioners who voted for the donations.

A

[¶ 10] Saefke's complaint alleged Stenehjem's "Formal Opinion ... with respect to the State's Attorney having `Discretion' to act against the Burleigh County Commissioners, civilly and that no criminal charges were warranted, by memorandum, December 23, 2002, were both in error." The district court ruled Saefke's complaint failed to state a claim against Stenehjem under N.D.R.Civ.P. 12(b)(vi).

[¶ 11] The purpose of a N.D.R.Civ.P. 12(b)(vi) motion is to test the legal sufficiency of the claims presented in the complaint. Ziegelmann v. DaimlerChrysler Corp., 2002 ND 134, ¶ 5, 649 N.W.2d 556. On appeal from a dismissal under N.D.R.Civ.P. 12(b), we construe the complaint in the light most favorable to the plaintiff, taking as true the well-pleaded allegations in the complaint. Id. A complaint should not be dismissed under N.D.R.Civ.P. 12(b) unless it discloses with certainty the impossibility of proving a claim upon which relief can be granted. Id. We will affirm a judgment dismissing a complaint for failure to state a claim if we cannot discern a potential for proof to support the complaint. Id.

[¶ 12] Saefke's complaint effectively asked the district court for a declaratory judgment to overrule the formal opinion and memorandum of Stenehjem. In In Interest of McMullen, 470 N.W.2d 196, 198-99 (N.D.1991), we outlined criteria from Iverson v. Tweeden, 78 N.D. 132, 138-40, 48 N.W.2d 367, 370-71 (1951), for obtaining declaratory relief:

The requisite precedent facts or conditions which the courts generally hold must exist in order that declaratory relief may be obtained may be summarized as follows: (1) there must exist a justiciable controversy; that is to say, a controversy in which a claim of right is asserted against one who has an interest in contesting it; (2) the controversy must be between persons whose interests are adverse; (3) the party seeking declaratory relief must have a legal interest in the controversy, that is to say, a legally protectible interest; and (4) the issue involved in

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