Schmitz v. N.D. State Bd. of Chiropractic Exam'rs

971 N.W.2d 892

Dr. Jacob SCHMITZ, Plaintiff and Appellant

v.NORTH DAKOTA STATE BOARD OF CHIROPRACTIC EXAMINERS, Defendant and Appellee

No. 20210273

Supreme Court of North Dakota.

FILED MARCH 17, 2022

Rehearing Denied April 6, 2022

Michael J. Geiermann, Bismarck, ND, for plaintiff and appellant.

Matthew A. Sagsveen, Solicitor General, Office of the Attorney General, Bismarck, ND, for defendant and appellee.

Jensen, Chief Justice.

[¶1] Dr. Jacob Schmitz appeals from a district court judgment ordering the State Board of Chiropractic Examiners to disclose a limited portion of a recording from an April 2020 executive session of the Board, denying the disclosure of any portion of a May 2020 executive session, and the denial of his motion for attorney's fees. We decline to address Dr. Schmitz's allegation that his right to due process was violated by the in-camera review because it was not properly preserved, reverse the denial of attorney's fees, and remand for additional portions of the executive sessions to be disclosed to Dr. Schmitz and for a determination of an appropriate award of attorney's fees.

I

[¶2] In June 2020, Dr. Schmitz commenced this lawsuit, alleging that the Board violated the law regarding access to public records and meetings. Schmitz v. State Bd. of Chiropractic Exam'rs , 2021 ND 73, 958 N.W.2d 496 (" Schmitz I "). The district court dismissed the case after finding the complaint failed to state a claim upon which relief could be granted. This Court reversed, concluding the complaint contained specific allegations against the Board relating to access to public records and meetings. Id. The case was remanded for an in-camera review of the executive session recordings to decide whether the executive sessions went beyond the scope of attorney consultation or attorney work product. Id.

[¶3] On remand, the district court conducted an in-camera review and ordered the Board to disclose a portion of the April 2020 executive session recording. The court found the recording from the May 2020 executive session did not require any disclosure. The court subsequently denied Dr. Schmitz's motion for attorney's fees, concluding that initiating a civil action instead of an administrative review resulted in attorney's fees that could have been avoided and Dr. Schmitz had only prevailed in securing the disclosure of a limited amount of material.

II

[¶4] Dr. Schmitz argues the in-camera review is unconstitutional. Dr. Schmitz concedes the term "in-camera" is not ambiguous, but argues the application of in-camera review to his case deprives him of his constitutional right to due process.

[¶5] In the prior appeal, this Court remanded this case to the district court with the following instructions:

Accordingly, after an in camera review, to the extent the district court determines on remand that the recordings of the executive sessions, or discussion therein, went beyond the scope of attorney consultation or attorney work product, we direct the court to require disclosure of the recordings or discussion to only those matters not exempt under the law.

Schmitz , 2021 ND 73, ¶ 14, 958 N.W.2d 496. An in-camera inspection involves "[a] trial judge's private consideration of evidence." Black's Law Dictionary 909 (11th ed. 2019). Dr. Schmitz did not petition this Court for either clarification or modification of our directive to the district court to conduct an in-camera review. On remand, the district court conducted an in-camera review as mandated in Schmitz I and subsequently ordered a portion of the April 2020 executive session recording be disclosed to Dr. Schmitz.

[¶6] This Court has explained:

[T]he law of the case doctrine applies when an appellate court has decided a legal question and remanded to the district court for further proceedings. Under the law of the case doctrine, a party may not, in the same case with the same facts, relitigate issues that were decided in a prior appeal or issues which would have been resolved had they been properly presented in the first appeal. The law of the case doctrine is based upon the theory of res judicata, and is grounded on judicial economy to prevent piecemeal and unnecessary appeals.

Ring v. N.D. Dep't of Human Servs. , 2021 ND 151, ¶ 5, 963 N.W.2d 255 (cleaned up). Our mandate following the first appeal directed the district court to conduct an in-camera review. Dr. Schmitz concedes the meaning of "in-camera" in the context of our prior decision is unambiguous. Our directive to the court to conduct an in-camera review is the law of the case and we conclude Dr. Schmitz's challenge of the in-camera review is not properly before the Court on this appeal.

III

[¶7] Following oral argument, we requested supplemental briefing from the parties regarding the application of N.D.C.C. § 44-04-19.1(5) to this case. Section 44-04-19.1(5), N.D.C.C., provides an open records exemption for "attorney consultation." The subsection provides:

"Attorney consultation" means any discussion between a governing body and its attorney in instances in which the governing body seeks or receives the attorney's advice regarding and in anticipation of reasonably predictable or pending civil or criminal litigation or adversarial administrative proceedings or to receive its attorney's advice and guidance on the legal risks, strengths, and weaknesses of an action of a public entity which, if held in public, would have an adverse fiscal effect on the entity. All other discussions beyond the attorney's advice and guidance must be made in the open, unless otherwise provided by law. Mere presence or participation of an attorney at a meeting is not sufficient to constitute attorney consultation.

[¶8] We asked the parties to brief whether the definition of "attorney consultation" is ambiguous, and if so, what the meaning and scope is in this case. We also requested the parties brief the meaning of "adverse fiscal effect" and whether the phrase "which, if held in public" modifies the entire subsection.

[¶9] "Statutory interpretation is a question of law, fully reviewable on appeal."

State v. Bearrunner , 2019 ND 29, ¶ 5, 921 N.W.2d 894 (quoting reference omitted). "The primary purpose of statutory interpretation is to determine legislative intent." Id. (citing reference omitted). "Words in a statute are given their plain, ordinary, and commonly understood meaning, unless defined by statute or unless a contrary intention plainly appears." Id. (citing N.D.C.C. § 1-02-02 ).

[¶10] Section 44-04-19.1(5), N.D.C.C., is unambiguous. It provides two, separate avenues for a governing body to consult with its attorney or receive legal advice in a closed meeting. A governing body may close an open meeting: (1) when it seeks or receives the attorney's advice regarding and in anticipation of reasonably predictable or pending civil or criminal litigation, or an adversarial administrative proceeding; or (2) to receive its attorney's advice on the legal risk, strengths, and weaknesses of an action of a public entity which, if held in public, would have an adverse fiscal effect on the entity. The next two sentences following the attorney consultation exemption provide a directive that all other discussions beyond the attorney's advice and guidance must be made in the open, unless there is another exception, and a qualification that mere presence or participation of an attorney at a meeting does not constitute attorney consultation.

[¶11] In 2017, section 44-04-19.1(5), N.D.C.C., was amended as follows:

5. "Attorney consultation" means any discussion between a governing body and its attorney in instances in which the governing body seeks or receives the attorney's advice regarding and in anticipation of reasonably predictable or pending civil or criminal litigation or adversarial administrative proceedings or concerning pending civil or criminal litigation or pending adversarial administrative proceedings to receive its attorney's advice and guidance on the legal risks, strengths, and weaknesses of an action of a public entity which, if held in public, would have an adverse fiscal effect on the entity. All other discussions beyond the attorney's advice and guidance must be made in the open, unless otherwise provided by law . Mere presence or participation of an attorney at a meeting is not sufficient to constitute attorney consultation.

The fact that the latter clause of the first sentence was added at one time demonstrates that this clause is independent of the former clause in the sentence. The plain language of the section, as shown by the construction of the sentence, establishes that "adverse fiscal effect" only modifies the portion of the subsection added by the legislature in 2017.

[¶12] The Board discussed with its attorney and received the attorney's advice regarding adversarial administrative proceedings against Dr. Schmitz. Those discussions fall within the first exception from disclosure for attorney consultation. We accordingly need not apply the latter half of the subsection dealing with an "adverse fiscal effect."

IV

[¶13] Dr. Schmitz challenges his continued lack of access to the Board's executive sessions recordings. This Court has previously exercised its discretion to review materials the district court inspected in-camera. See Reems on Behalf of Reems v. Hunke , 509 N.W.2d 45 (N.D. 1993) ; Muraskin v. Muraskin , 336 N.W.2d 332 (N.D. 1983).

[¶14] While this Court has previously exercised its powers to review a district court's in-camera review, we have not explicitly stated our standard of review when we do so. In Reems on Behalf of Reems , this Court treated the in-camera review as a discovery request, and utilized an abuse of discretion standard of review on appeal. 509 N.W.2d at 48. We adopt and apply the abuse of discretion standard for the in-camera review by a district court for the determination of whether documents are exempt from disclosure following an open records request. One type of abuse of discretion is when the...