Strand v. Cass County

• Decision Date: 28 August 2006
• Docket Number: No. 20050380.,20050380.
• Citation: 2006 ND 190,721 N.W.2d 374
• Parties: John STRAND, Cass County resident and tax payer and other Concerned Citizens and tax payers, similarly situated, Plaintiffs and Appellants v. CASS COUNTY, North Dakota, a political subdivision, Defendant and Appellee and the Cass County Commission, Defendant.
• Court: North Dakota Supreme Court

Page 374

721 N.W.2d 374

2006 ND 190

John STRAND, Cass County resident and tax payer and other Concerned Citizens and tax payers, similarly situated, Plaintiffs and Appellants v. CASS COUNTY, North Dakota, a political subdivision, Defendant and Appellee and the Cass County Commission, Defendant.

No. 20050380.

Supreme Court of North Dakota.

August 28, 2006.

Robert W. Harms (argued), Bismarck, ND, and John T. Goff (appeared), Montgomery, Goff and Bullis, Fargo, ND, for plaintiffs and appellants.

Robert G. Manly (argued), and W. Todd Haggart (appeared), Vogel Law Firm, Fargo, ND, for defendant and appellee.

CROTHERS, Justice.

[¶ 1] John Strand and other Cass County residents and taxpayers appeal from a judgment dismissing their civil rights and abuse of process actions against Cass County and from an order denying their request for an award of attorney fees. We conclude the district court did not commit reversible error in instructing the jury on the civil rights claim. We further conclude the court failed to rule on part of Strand's request for attorney fees. We affirm the judgment, but we reverse the order denying Strand's request for attorney fees and remand for reconsideration.

I

[¶ 2] In the late 1990s, Cass County voters approved a one-half cent sales tax for a new jail. The County eventually decided to demolish the old jail and sheriff's residence in Fargo. Strand and a group of Cass County citizens known as "Save the Jail" (collectively "Strand") sought to prevent demolition because both buildings were listed on the National Registry of Historic Places. In an effort to prevent demolition, Strand appeared at County Commission meetings, filed petitions for a two-year moratorium, wrote guest editorials in the newspaper, and initiated requests for opinions from the North Dakota Attorney General.

[¶ 3] On February 18, 2003, the County awarded bids to demolish the buildings. However, on February 25, 2003, the Attorney General issued a letter opinion declaring that "Cass County may not destroy the residence without the State Historical Board's approval." N.D. Op. Atty. Gen. 2003-L-11, at 1. The State Historical Board met on March 11, 2003, and granted the County permission to demolish the jail, but continued the hearing on the sheriff's residence until April 11, 2003. At the April 11 meeting, the Board gave its approval to demolish the sheriff's residence, and demolition work began in the afternoon. Also on April 11, 2003, the Attorney General issued another letter opinion declaring that under the terms of N.D.C.C. ch. 11-11, "if the project constitutes an extraordinary expenditure, Cass County cannot commence the project prior to submitting the proposed expenditure to a vote. Whether the demolition is a separate project from the proposed construction is a question of fact on which this office cannot opine." N.D. Op. Atty. Gen. 2003-L-25, at 4. The County decided that demolition was a separate project not requiring voter approval, and work continued.

[¶ 4] On April 14, 2003, Strand sued the County and obtained a temporary restraining order prohibiting any further demolition. Strand's complaint alleged that the County was obligated under N.D.C.C. ch. 11-11 to hold a vote before proceeding with demolition. The temporary restraining order was vacated by stipulation of the parties on April 22, 2003, because the buildings were so severely damaged. On May 6, 2003, the demolition contractor submitted a bill and proposed contract change order for $39,066 to the County. On May 7, 2003, the County filed its answer and counterclaim asserting that Strand's actions resulted in additional costs to the county "in excess of $39,000." The County also alleged that Strand's "allegations are untrue, made without reasonable cause and not in good faith and are frivolous pursuant to N.D.C.C. § 28-26-31," and requested "costs, disbursements and reasonable attorney fees as may be allowed by law." The County Commission subsequently approved filing the counterclaim. Strand was allowed to amend his complaint to allege that he was entitled to attorney fees from the County because its pleadings were frivolous and not filed in good faith, that the County had violated his civil rights under the First Amendment, the North Dakota Constitution, and 42 U.S.C. § 1983, and that the County had committed abuse of process.

[¶ 5] Strand's civil rights and abuse of process claims, as well as the County's counterclaim for additional costs, were submitted to a jury. On the morning of trial, the County withdrew its request for attorney fees against Strand. The jury found that the County did not violate Strand's First Amendment rights and did not commit abuse of process by asserting a counterclaim against Strand. The jury also found that Strand's procurement of the temporary restraining order did not damage the County. The district court later ruled that the County did not violate N.D.C.C. ch. 11-11 by failing to submit the demolition project to a vote of the electors. Strand then moved for an award of attorney fees alleging the County's pleadings, including its request for attorney fees, were not filed in good faith and were frivolous. The court denied Strand's request for an award of attorney fees. This appeal followed.

II

[¶ 6] Strand argues the district court committed reversible error in instructing the jury on his civil rights claim under 42 U.S.C. § 1983.

[¶ 7] We review jury instructions to determine whether, as a whole, they fairly and adequately advised the jury. Case Credit Corp. v. Oppegard's Inc., 2005 ND 141, ¶ 9, 701 N.W.2d 891. A proper jury instruction adequately informs the jury of the applicable law. Amyotte v. Rolette County Hous. Auth., 2003 ND 48, ¶ 5, 658 N.W.2d 324. The district court is not required to instruct the jury in the exact language sought by a party if the instructions are not misleading or confusing, and if they fairly advise the jury of the law on the essential issues of the case. Forster v. West Dakota Veterinary Clinic, Inc., 2004 ND 207, ¶ 29, 689 N.W.2d 366.

[¶ 8] The district court instructed the jury as follows:

CIVIL RIGHTS VIOLATION

To be found liable for a civil rights violation Cass County must have deprived John Strand of a right, privilege, or immunity secured by the First Amendment.

Depriving a person of their civil rights may include retaliation by the County for exercising those rights. Such retaliation may be shown if it tends to chill or deter the civil rights of a person of ordinary firmness. Also, through the conduct of the County, there is or will be a chilling effect on the First Amendment Rights of a person or persons of ordinary firmness in the present or in the future.

CIVIL RIGHTS VIOLATION-ELEMENTS

For you to find the defendant liable for a violation of the plaintiff's civil rights, the plaintiff must prove:

1. That the defendant deliberately deprived the plaintiff of a right, privilege or immunity provided by the United States Constitution;

2. That the deprivation of such protected right, privilege or immunity resulted from a policy or custom of the defendant; and

3. That the plaintiff sustained an actual injury as defined in these instructions.

Strand contends this instruction is erroneous because it required the jury to find that a violation of his civil rights had to be the result of a "policy or custom" of the County, and the commissioners' approval of the filing of the counterclaim indisputably constituted an official "policy."

[¶ 9] Strand's civil rights claim was based on 42 U.S.C. § 1983, which provides in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

[¶ 10] In Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the United States Supreme Court held that "a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." The Court's conclusion was based on the specific language of the statute itself, as well as the statute's legislative history. Id. at 665-83, 692, 98 S.Ct. 2018. As the Supreme Court later explained, "in Monell and subsequent cases, we have required a plaintiff seeking to impose liability on a municipality under § 1983 to identify a municipal `policy' or `custom' that caused the plaintiff's injury." Board of County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). In Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986), the Supreme Court also made it clear that "a municipality may be liable under § 1983 for a single decision by its properly constituted legislative body—whether or not that body had taken similar action in the past or intended to do so in the future— because even a single decision by such a body unquestionably constitutes an act of official government policy." The Court in Pembaur, at 481, 106 S.Ct. 1292 (footnote omitted), explained:

[A] government frequently chooses a course of action tailored to a particular situation and not intended to control decisions in later situations. If the decision to adopt that particular course of action is properly made by that government's authorized decisionmakers, it surely represents an act of official government "policy" as that term...