Thompson v. Peterson

• Decision Date: 25 April 1996
• Docket Number: No. 950276,950276
• Parties: 108 Ed. Law Rep. 1273 J. Malcolm THOMPSON, Plaintiff and Appellant, v. Larry R. PETERSON, David B. Danbom, Yur-Bok Lee, Gerald Anderson, Thomas Isern, Harriette McCaul, Rick D. Johnson, all of whom are and/or were persons employed within the teaching faculty and/or administration at North Dakota State University, being named herein as having acted in both their individual and official capacities, and North Dakota State University, a publicly supported institution of higher learning under the control of the North Dakota State Board of Higher Education, Defendants and Appellees. Civil
• Court: North Dakota Supreme Court

Page 856

546 N.W.2d 856

108 Ed. Law Rep. 1273

J. Malcolm THOMPSON, Plaintiff and Appellant, v. Larry R. PETERSON, David B. Danbom, Yur-Bok Lee, Gerald

Anderson, Thomas Isern, Harriette McCaul, Rick D. Johnson,

all of whom are and/or were persons employed within the

teaching faculty and/or administration at North Dakota State

University, being named herein as having acted in both their

individual and official capacities, and North Dakota State

University, a publicly supported institution of higher

learning under the control of the North Dakota State Board

of Higher Education, Defendants and Appellees.

Civil No. 950276.

Supreme Court of North Dakota.

April 25, 1996.

David C. Thompson (argued), of David C. Thompson, P.C., Grand Forks, for plaintiff and appellant.

Douglas A. Bahr (argued), Assistant Attorney General, Attorney General's Office, Bismarck, and Sara Beth Gullickson (no appearance), Assistant Attorney General, Moorhead, MN, for defendants and appellees.

MESCHKE, Justice.

J. Malcolm Thompson appealed from a judgment dismissing his lawsuit against North Dakota State University (NDSU), and Larry Peterson, David Danbom, Yur-Bok Lee, Gerald Anderson, Thomas Isern, Harriette McCaul, and Rick Johnson in their official capacities as members of the faculty and administration of NDSU and in their individual capacities (collectively referred to as defendants). ¹ Thompson sought damages and injunctive relief to remedy termination of his nontenured position as an assistant history professor. We affirm.

I

In 1991 Thompson accepted a nontenured, probationary appointment with NDSU as an assistant professor of history. Thompson's employment agreement with NDSU was expressly governed by the State Board of Higher Education Regulations on Academic Freedom, Tenure, and Due Process and by the NDSU University Senate Policy Implementing Procedural Regulations. NDSU renewed Thompson's probationary appointment for the 1992-93 and 1993-94 academic years.

On April 22, 1994, Peterson, the chair of the history department, notified Thompson that the tenured faculty in the history department had "concluded that [Thompson was] not making satisfactory progress toward successful promotion and tenure, especially in the area of teaching," and had "voted to recommend to the Dean of the College of Humanities and Social Sciences and Vice President for Academic Affairs that [his] probationary appointment should not be renewed." On April 28, Thompson made a written request to Peterson for a statement of "reasons that contributed to the decision for non-renewal of my probationary, tenure-track appointment." On April 29, Peterson informed Thompson that Section 351C.2 of the NDSU Policy Manual directed that nonrenewal decisions " 'shall be made in every instance by the University President,' " and that a nonrenewal decision had not yet been made in his case.

Meanwhile, Isern, the Dean of the College of Humanities and Social Sciences, and Sharon Wallace, Vice President for Academic Affairs, accepted the history department's recommendation for nonrenewal and forwarded it to NDSU President Jim Ozbun. On May 13, 1994, Ozbun notified Thompson that his faculty appointment at NDSU would not be renewed beyond the 1994-95 academic year and invited Thompson to "consult NDSU Policies 350 and 351 for your further procedural rights." Thompson did not pursue any further internal administrative remedies, and he received a "terminal contract" for the 1994-95 academic year. ²

Thompson sued the defendants in Grand Forks County in the Northeast Central Judicial District, alleging, in substance, a breach of his employment contract; an infringement of his state constitutional rights to substantive and procedural due process, freedom of speech, and protection of his reputation; and a violation of the "secret personnel file" provisions of N.D.C.C. Ch. 15-38.2. The district court in Grand Forks County, the Honorable Kirk Smith, granted an ex parte temporary restraining order that prohibited NDSU from terminating Thompson and from hiring a replacement.

The defendants demanded a change of venue to Cass County in the East Central Judicial District. ³ The defendants also moved to vacate the temporary restraining order and to dismiss Thompson's complaint. Judge Smith granted the defendants' motion to change venue to Cass County, but declined to rule on the remaining motions.

The action was then venued in Cass County, and eventually assigned to the Honorable Norman J. Backes. Judge Backes dismissed Thompson's complaint, concluding that the decision not to renew Thompson's teaching contract was made by NDSU President Ozbun on May 13, 1994, and that Thompson did not make a written request to Ozbun for the reasons for the nonrenewal decision as required by Section 605(c) of the State Board Regulations. Judge Backes ruled that Thompson's April 28, 1994 request to Peterson was misdirected and premature, and because Thompson had failed to exhaust his administrative remedies, the court lacked jurisdiction to hear his lawsuit. Thompson appealed.

II

Thompson contends Judge Smith should have remained the presiding judge in this lawsuit, and Judge Backes's dismissal was without jurisdiction and was null and void. Thompson asserts a change of venue and the designation of a presiding judge are two different subjects. He argues that, although the defendants had a threshold statutory right to have this lawsuit tried in Cass County, they waived their right to file a demand for change of judge by requesting a change of venue from Grand Forks County to Cass County. Thompson's argument mistakes the effect of a change of venue from one judicial district to another.

Jurisdiction is the power and authority of a court to hear and decide a case, Rudnick v. City of Jamestown, 463 N.W.2d 632 (N.D.1990), while venue means the place where the power to decide a case is to be exercised. Selland v. Selland, 494 N.W.2d 367 (N.D.1992). Under N.D. Const., Art. VI, § 8 and NDCC 27-05-06, district courts in North Dakota have authority to hear and determine civil actions. See Rudnick (district court had jurisdiction to hear claim that employee's demotion violated due process). The district court in Cass County had authority to hear this lawsuit, and the question here is the effect of the change of venue on the assignment of the judge.

Subject to other specific exceptions in NDCC Ch. 28-04, venue for a civil action is generally "in the county in which the defendant or one of the defendants resides at the time of the commencement of the action." NDCC 28-04-05; Varriano v. Bang, 541 N.W.2d 707 (N.D.1996). An action may be tried in an improper venue "unless the defendant, before the time for answering expires, demands in writing that the trial be had in the proper county." NDCC 28-04-06; Varriano. If the county designated for trial in a complaint is an improper venue, the court may change the place of trial. NDCC 28-04-07(1). Under NDCC 27-05-26, a change of venue may be taken from "one judge to another in the same district or in another district, or from one county to another, or from one district to another in the manner provided by law." When venue is changed, NDCC 28-04-08 directs that all further proceedings must be had in the county where the place of trial is changed to. With exceptions not relevant here, NDCC 27-05-22 declares that no judge of a district court may hear any action in a judicial district where the judge was not elected.

When a change of venue has been granted, our civil venue statutes do not explicitly allow the judge granting the change to follow the case from one judicial district to another judicial district. Compare NDRCrimP 21(c) ("Whenever the place of trial is change as provided in this Rule ... the judge ordering the transfer shall preside at the trial.") When our venue statutes are construed together to give meaning to each provision, the effect of a change of venue transfers the case from "one judge to another ... in another district," and precludes a judge who grants a change of venue in one judicial district from following the case to a judicial district where the judge was not elected.

To hold otherwise would permit a claimant to begin his lawsuit in a county in the wrong judicial district, but retain the "wrong" judge when the defendant exercises the virtually automatic transfer of venue to the proper county. See NDCC 28-04-06 and 28-04-07. The selection of the judge sought by Thompson, and the sweeping disqualification of the judges in the proper judicial district would contravene the correct procedures for changing a judge detailed in NDCC 29-15-21, and would permit judge-shopping in its worst sense.

Here, Judge Smith, a duly-elected judge in the Northeast Central Judicial District, granted a change of venue to Cass County in the East Central Judicial District. Under NDCC 27-05-22 and 27-05-26, the change of venue precluded Judge Smith from presiding over the case outside of the judicial district where he was elected after he transferred the case to a county in another district. Judge Backes, a duly-elected judge in the East Central Judicial District, had jurisdiction to decide this lawsuit.

III

Thompson asserts the trial court erred in dismissing his lawsuit for failure to exhaust his internal administrative remedies at NDSU. He contends he substantially complied with NDSU's procedures for exhausting his administrative remedies, and argues those remedies were precluded under circumstances analogous to Hom v. State, 459 N.W.2d 823 (N.D.1990). We disagree.

In describing our standard of review, the parties have relied upon cases involving dismissals for failure to state a claim upon which relief can be granted under NDRCivP 12(b)(v). See Williams v. State, 405 N.W.2d 615 (N.D.1987); Johnson & Maxwell, Ltd. v. Lind, 288 N.W.2d 763 (N.D.1980). However, the defendants' motion to dismiss cited both NDRCivP 12(b)(i) and (v), and the trial court explicitly...