Tooley v. Alm

• Decision Date: 20 April 1994
• Docket Number: No. 930358,930358
• Citation: 515 N.W.2d 137
• Parties: Darrell TOOLEY, on behalf of himself and all others similarly situated, Plaintiff and Appellant, v. Diane ALM, Executive Director of the North Dakota Workers Compensation Bureau, and North Dakota Workers Compensation Bureau, Defendants and Appellees. Civ.
• Court: North Dakota Supreme Court

Page 137

515 N.W.2d 137

Darrell TOOLEY, on behalf of himself and all others similarly situated, Plaintiff and Appellant, v. Diane ALM, Executive Director of the North Dakota Workers Compensation Bureau, and North Dakota Workers Compensation Bureau, Defendants and Appellees.

Civ. No. 930358.

Supreme Court of North Dakota.

April 20, 1994.

Glen R. Bruhschwein, Mackoff, Kellogg, Kirby & Kloster, P.C., Dickinson, for plaintiff and appellant.

Dean J. Haas, Asst. Atty. Gen., ND Workers Compensation Bureau, Bismarck, for defendants and appellees.

SANDSTROM, Justice.

The plaintiff in this action, Darrell Tooley, seeks certification of a class action in order to compel the North Dakota Workers Compensation Bureau to notify and screen claimants for potential permanent partial impairment awards. Tooley appeals from a judgment dismissing his action for a declaratory judgment and a writ of mandamus against the bureau and its executive director. We hold Tooley has not shown a clear legal right to the relief requested and has an adequate legal remedy which has not been exhausted. We therefore affirm the district court judgment.

I

On September 3, 1987, Tooley was injured in the course of his employment and filed a claim with the bureau for benefits. The bureau accepted Tooley's claim and paid him benefits of $26,348.59 for disability, doctors, hospital, drugs, rehabilitation, and miscellaneous expenses. As of May 5, 1991, the bureau had not awarded Tooley any benefits for permanent partial impairment.

Tooley, "on behalf of himself and all others similarly situated," brought this action against the bureau and its executive director for declaratory relief and a writ of mandamus, alleging he and other members of a proposed class were entitled to notice of their right to request a permanent partial impairment award and to have an evaluation for permanent partial impairment. Tooley moved to certify the lawsuit as a class action, asserting he and the other proposed class members have reached maximum medical improvement and have a clear legal right to notification of their right to request an award for permanent partial impairment and to an impairment evaluation.

The bureau moved to dismiss Tooley's action, asserting the district court lacked jurisdiction because Tooley had an adequate remedy at law and had failed to exhaust his administrative remedies. The district court agreed and dismissed Tooley's complaint, concluding it lacked jurisdiction because an administrative appeal provided him with a plain, speedy, and adequate remedy in the ordinary course of law and he had not exhausted his administrative remedies. Tooley appealed.

II

We consider Tooley's arguments in the context of the district court's authority to grant declaratory relief and a writ of mandamus. Art. VI, Sec. 8, of the North Dakota Constitution grants the district court original jurisdiction of all causes, except as otherwise provided by law, ¹ appellate jurisdiction as may be provided by law or by rule of the Supreme Court, and jurisdiction to issue necessary writs. Rudnick v. City of Jamestown, 463 N.W.2d 632, 635 (N.D.1990).

Chapter 32-23, N.D.C.C., authorizes courts of record to issue declaratory judgments. N.D.C.C. Sec. 32-23-02 provides "any person ... whose rights, status, or other legal relations are affected by a statute ... may have determined any question of construction or validity arising under the ... statute ... and may obtain a declaration of rights, status, or other legal relations thereunder." A court's authority to grant declaratory relief, however, requires the exhaustion of administrative remedies. Transportation Division of Fargo Chamber of Commerce v. Sandstrom, 337 N.W.2d 160, 162-63 (N.D.1983); Shark Brothers Inc. v. Cass County, 256 N.W.2d 701, 705-06 (N.D.1977). See Amerada Hess Corp. v. Conrad, 410 N.W.2d 124, 126 (N.D.1987).

Tooley cites Shark Brothers to argue the doctrine of exhaustion of remedies is not firmly established in the administrative agency context. In Shark Brothers, however, this Court affirmed the dismissal of an action for declaratory and injunctive relief to restrain a 1976 tax assessment of certain property. Recognizing the use of the property had not changed from prior tax years and the property's taxable status was involved in both a pending administrative appeal for the prior years and the action for declaratory judgment, this Court said:

"We do not favor or encourage, nor can we sustain, bifurcated self-induced or self-initiated procedures, one in the administrative process and one in the judicial process covering the same legal questions.

"If such bifurcated procedures were encouraged or sustained, it would create duplication, and uncertainty, and waste manpower and money, with no appreciable result, and all without improving the administration of justice. If one side of a proceeding were permitted to proceed both in the administrative channels and the judicial channels at the same time the other side could also resort to the same procedure. The result would be endless confusion, which we can ill afford."

Shark Brothers at 705-06.

In Sandstrom, this Court reviewed the dismissal of an action for injunctive and declaratory relief challenging a rate increase which had been approved by the Public Service Commission. The Court reiterated its position on bifurcated proceedings and affirmed the dismissal because the plaintiff failed to follow the statutory procedure for appealing the rate increase. See Amerada Hess Corp. v. Conrad, 410 N.W.2d 124, 126-27 n. 1 (N.D.1987) (doubt expressed about propriety of declaratory judgment for questions arising from tax commissioner's assessment of additional oil and gas production taxes). Compare In Interest of McMullen, 470 N.W.2d 196, 199-200 (N.D.1991) (declaratory relief available to resolve issue which is not subject to administrative determination). Contrary to Tooley's argument, the requirement for exhaustion of remedies is well established for administrative decisions.

Similar principles govern the availability of mandamus to compel performance of an act by an administrative agency. N.D.C.C. Sec. 32-34-01 authorizes a district court to issue a writ of mandamus to "any inferior tribunal, corporation, board, or person to compel the performance of an act which the law specifically enjoins as a duty." Mandamus may be used to compel performance of a ministerial duty, but may not be used to compel performance of discretionary acts. Lund v. North Dakota Highway Department 03 N.W.2d 25, 27 (N.D.1987). An applicant for a writ of mandamus must demonstrate a clear legal right to the performance of an act and must have no other plain, speedy, and adequate remedy in the ordinary course of law. Old Broadway Corp. v. Backes, 450 N.W.2d 734, 736 (N.D.1990). Mandamus is not available if an appeal is authorized from an adverse decision of an administrative agency. Newman Signs, Inc. v. Hjelle, 300 N.W.2d 860, 862 (N.D.1980).

In Wallace v. North Dakota Workmen's Compensation Bureau, 69 N.D. 165, 284 N.W. 420, 423 (1939), this Court affirmed the granting of a writ of mandamus to compel the bureau to allow a claimant to inspect the bureau's medical records and files regarding termination of his benefits, because the claimant was entitled to inspect records which the bureau had used as a basis to terminate his benefits and he had no other plain, speedy, and adequate remedy in the ordinary course of law. Compare Manikowske v. North Dakota Workmen's Compensation Bureau, 373 N.W.2d 884, 887 (N.D.1985) (writ of certiorari not available to compel full evidentiary hearing on claim for workers' compensation benefits where claimant failed to timely appeal denial of benefits after informal hearing). Wallace illustrates mandamus is available to compel an administrative agency to perform a ministerial duty which the law requires the agency to perform, but mandamus is not available to direct how, or in whose favor, the agency decides a case. Mogaard v. City of Garrison, 47 N.D. 468, 182 N.W. 758, 760 (1921).

Although N.D.C.C. Secs. 65-01-01 and 65-05-06 abolish all civil actions and claims for relief for personal injuries by employees against employers in most hazardous employment and all jurisdiction of courts over those causes, a petition for a writ of mandamus seeks to compel performance of a ministerial duty which the law requires to be performed and is not an action for personal injuries. Compare Barsness v. General Diesel & Equipment, 422 N.W.2d 819, 823-24 (N.D.1988) (action based upon express contract of indemnification between employer and third-party tortfeasor is exception to exclusive remedy rule of workers compensation, because it is an action on a separate legal claim based upon contract and not an action for damages). Those statutes do not preclude the use of mandamus to compel the bureau to perform a ministerial act which the law specifically requires, if there is no right to appeal from the bureau's failure to perform the act. Wallace. See generally 82 Am.Jur.2d, Workers' Compensation Secs. 525, 696 (1992); 52 Am.Jur.2d, Mandamus Sec. 162 et seq. (1970).

We decline to hold mandamus is never available to compel the bureau to perform an act which the law specifically requires it to perform. See Investment Rarities, Inc. v. Bottineau County Water Resource District, 396 N.W.2d 746, 748 (N.D.1986) (although there was no statutory authority for appeal, administrative determination by State Engineer could be reviewed through special proceedings such as mandamus, certiorari, or prohibition). Rather, the inquiry is on whether a petitioner for mandamus has a clear legal right to compel the bureau to perform an act and whether the petitioner has an adequate legal remedy in the ordinary course of law, which both require consideration of the nature of Tooley's underlying claim.

III

A

Tooley asserts the bureau must notify him and others in his proposed class of their right to...