Trinity Medical Center v. North Dakota Bd. of Nursing, 11257

Decision Date08 January 1987
Docket NumberNo. 11257,11257
Citation399 N.W.2d 835
PartiesTRINITY MEDICAL CENTER and Medcenter One, not for profit corporation, Plaintiffs, v. NORTH DAKOTA BOARD OF NURSING; Jan Schauer, Kay Hovland, Yvonne Hamilton, Paulette Voegele, James Shearer, Alice Kotaska, Alvilda Skurdal, Karen Robideau, and Bonnie Bieber, constituting all of the members of the North Dakota Board of Nursing, Defendants. Civ.
CourtNorth Dakota Supreme Court

Bosard, McCutcheon & Rau, Minot, for plaintiff Trinity Medical Center; argued by Gary Lee.

Lundberg, Nodland, Lucas & Schulz, Bismarck, for plaintiff Medcenter One.

Calvin N. Rolfson, Sp. Asst. Atty. Gen. (argued), Bismarck, and Larry Kraft, Grand Forks, for defendants.

Zuger & Bucklin, Bismarck, amicus curiae for State Nurses Association.

Vedder, Price, Kaufman, & Kammholz, Chicago, Ill., amicus curiae for Nat. Council of State Boards of Nursing, Inc.

ERICKSTAD, Chief Justice.

The issues under consideration were certified to us pursuant to Rule 47.1 of the North Dakota Rules of Appellate Procedure by the Honorable Bert L. Wilson, Judge of the District Court of Northwest Judicial District. We affirm. The certified questions and answers by the district court are:

"1. Whether [or not] the authority given by the State Legislature to the North Dakota Board of Nursing through Section 43-12.1-08(6), N.D.C.C., constitutes a standardless delegation of legislative authority and [if it does] is therefore in violation of Article III, Section 1, of the North Dakota Constitution. [Answer: "No."]

"2. Whether [or not] the Nursing Board usurped purely legislative powers from the North Dakota Legislature in promulgating Article 54-03.1, N.D.A.C. [Answer: "No."]"

The trial court's findings of fact are as follows:


"Defendants are the duly appointed members of the North Dakota Board of Nursing.


"Pursuant to Chapter 43-12.1, N.D.C.C., the Nursing Board met and held public hearings. Subsequent to said hearings, and in accordance with Chapter 28-32, N.D.C.C., the Board promulgated various rules and regulations establishing the educational requirements for nurses in North Dakota and establishing criteria for approval of nursing education programs in North Dakota.


"The challenged rules appear in Article 54-03.1, N.D.A.C., and became effective on March 1, 1986.


"These rules apply to the schools of nursing operated by Plaintiffs. Application of these rules has injured, and will continue to injure the schools of nursing operated by the Plaintiffs. Plaintiffs have therefore initiated suit challenging the constitutional validity of those rules. Plaintiffs make no claim that the Board lacked authority to promulgate rules, or that these rules were not enacted in conformity and accordance with Chapter 28-32, N.D.C.C. Plaintiffs' claims therefore present no material factual issues, but do present material issues of law which are vital and of great moment, and the answers to which will completely dispose of the Plaintiffs' claims."

We shall hereafter refer to the plaintiffs as the Hospitals and to the defendants as the Board. On March 19, 1986, the Hospitals obtained from the district court of Williams County an ex parte order temporarily restraining the Board from enforcing administrative rules adopted by the Board including 54-03.1-11-04, N.D.A.C., giving the Board authority to order a discontinuation of nursing programs that did not meet its requirements, and an order to show cause why the restraining order should not continue pending final determination of the merits of the complaint. The complaint sought a judgment declaring Section 43-12.1-08(6), N.D.C.C., unconstitutional and an order first temporarily staying and ultimately permanently enjoining the enforcement of certain administrative rules adopted by the Board. The Board denied the essential allegations of the complaint and urged that it be dismissed. On April 24, 1986, the Hospitals served by mail a notice of motion and a motion to certify questions of law to our Court.

On May 21, 1986, the district court granted the motion for certification and halted all proceedings.

We must first determine whether or not the questions of law are appropriately before us. State v. Lebus, 339 N.W.2d 564, 566 (N.D.1983); Merchant v. Richland County Water Management District, Board of Commissioners, 270 N.W.2d 801, 804 (N.D.1978).

The certification of questions of law to the Supreme Court is authorized by Chapter 32-24, N.D.C.C. Section 32-24-01 provides:

"Where any cause is at issue, civil or criminal, in any district court or county court in this state and the issue of the same will depend principally or wholly on the construction of the law applicable thereto, and such construction or interpretation is in doubt and vital, or of great moment in the cause, the judge of any such court, on the application of the attorney for the plaintiff or defendant in a civil cause, and upon the application of the attorneys for the plaintiff and defendant in a criminal cause, may halt all proceedings until such question shall have been certified to the supreme court and by it determined."

The decision to submit certified questions of law is within the discretion of the trial court and we may refuse to consider certified questions that are frivolous, or are merely interlocutory, or are of insufficient importance to settle the issues in the case. Section 32-24-02, N.D.C.C.; City of Grand Forks v. Grand Forks County, 139 N.W.2d 242, 248 (N.D.1965).

In City of Grand Forks, 139 N.W.2d at 248, we said:

"The trial court must first exercise its discretion in determining that the questions to be certified are doubtful and it must be made to appear that the case in which they arise will depend wholly or principally upon the construction of law applicable to the questions certified.

"The questions of law must be clearly and distinctly stated. They should not involve questions of fact or mixed law and fact. Advisory opinions to the trial court are not contemplated by the statute." [Citations omitted.]

We additionally said in Lebus, 339 N.W.2d at 566, that "before a certified question will be considered by this Court, the result of the action must depend wholly, or at least principally, upon the construction of the law as it will be determined by the answers to the question or questions certified, regardless of whether answered in the negative or affirmative."

The Board argues that many of the facts contained in the Hospitals' complaint are in dispute. It specifically denies the finding of fact in the certification that "[a]pplication of these rules has injured, and will continue to injure the schools of nursing operated by the [Hospitals]." The Board argues, notwithstanding its plea that we decide the certified questions, that if the Hospitals have not been harmed by the application of either Section 43-12.1-08(6), N.D.C.C., or Article 54-03.1, N.D.A.C., the Hospitals would not have standing.

Rule 47.1(b)(2), N.D.R.App.P., permits the certifying court to transmit "with the certification order any parts of the record and other documents it deems necessary in answering the certified questions." In this case we have no memorandum opinion; however, it is apparent that the court relied upon the affidavits in the appendix to determine that the Hospitals have been injured and will continue to be injured by the rules in Article 54-03.1, N.D.A.C promulgated by the Board pursuant to Section 43-12.1-08(6). We agree that the standing is sufficient. See State v. Carpenter, 301 N.W.2d 106, 107 (N.D.1980). The two-fold test of standing is that the plaintiff must have suffered some threatened or actual injury resulting from the putatively illegal action, and the asserted harm must not be a generalized grievance shared by all or a large class of citizens.

The Board also contends that a reversal of the trial court's answers to the certified questions would not dispose of the action because unresolved issues raised in the Board's answer would remain. The Board alleges as an affirmative defense that the Hospitals are estopped from asserting their claims in equity either by the unclean hands doctrine or by their abuse of the process of law. For this contention the Board relies upon our decision in State v. Vogel, 343 N.W.2d 773 (N.D.1984). In Vogel we concluded that we would not answer certified questions unless our determination would resolve all remaining issues in the case. We commented:

"An additional barrier to our consideration of this question is the admission by both parties that, even had judgment not been entered, a determination by this court would not resolve all remaining issues in the case. In particular, Vogel advanced the defense of 'selective enforcement' in the county court. He further asserts that if this court were to answer the question in the negative he would continue to pursue that defense. Such would be his right because the issue was never resolved by the county court. We cannot, therefore, answer the question certified because, as was conceded, the issues in this case are not wholly dependent on our resolution of the particular question presented." 343 N.W.2d at 775.

In Vogel it was admitted that answering the certified questions would not resolve all remaining issues in the case. Here the district court found that the Hospitals' claims "present no material factual issues, but do present material issues of law which are vital and of great moment, and the answers to which will completely dispose of the [Hospitals'] claims." Because the decision to submit certified questions is within the sound discretion of the district judge we will not dismiss the questions unless presented with sufficient contrary evidence that the district court's findings of fact are in error or unless our analysis of the issues indicates that our answers will not principally resolve all remaining issues in the case.

As we believe that the answers to the certified...

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