Traynor Law Firm, PC v. State

943 N.W.2d 320

TRAYNOR LAW FIRM, PC, Plaintiff, Appellant and Cross-Appellee

v. STATE of North Dakota, c/o Governor Doug Burgum, Defendant, Appellee and Cross-AppellantandThe Board of Ward County Commissioners, Defendant and Appellee

No. 20190310

Supreme Court of North Dakota.

Filed May 14, 2020

Jonathon Yunker (argued) and Jason P. Sayler (on brief), Devils Lake, ND, for plaintiff, appellant and cross-appellee.

James E. Nicolai, Office of Attorney General, Bismarck, ND, for defendant, appellee and cross-appellant.

Howard D. Swanson, Special Assistant State's Attorney, Grand Forks, ND, for defendant and appellee.

Crothers, Justice.

[¶1] Traynor Law Firm, PC, appeals the district court judgment awarding 6% interest on a bill for legal services. The State of North Dakota cross-appeals and argues Ward County is responsible for paying Traynor's bill, and the district court erred awarding any interest. We affirm in part, reverse in part and remand for further proceedings.

[¶2] Dustin Irwin died on October 6, 2014, in the Ward County jail. The circumstances of his death led to an investigation and criminal charges against Ward County Sheriff Steven Kukowski. Initially, Divide County State's Attorney Seymour Jordan was appointed to handle the criminal proceeding. Jordan determined the circumstances justified a petition for removal of Sheriff Kukowski from office. Governor Jack Dalrymple appointed Jordan as the special prosecutor for the removal. Ultimately, Jordan requested to withdraw and Governor Burgum appointed attorney Daniel Traynor as the special prosecutor. After completion of the removal proceedings, Traynor submitted his bill to the State on May 1, 2017. The State forwarded the bill to Ward County. Ward County refused to pay the bill.

[¶3] Traynor sued the State and Ward County to recover the unpaid fees. The State responded to Traynor's complaint by filing a motion to dismiss. Ward County answered Traynor's complaint and cross-claimed against the State. The State moved to dismiss Ward County's cross-claim. Traynor moved for judgment on the pleadings. The district court entered judgment in Traynor's favor against the State, and awarded interest at 6% per annum under Chapter 47-14, N.D.C.C., starting June 1, 2017. The court dismissed Traynor's claim against Ward County.

I

[¶4] The State and Ward County do not dispute the amount of Traynor's fees. The disputes are who is responsible to pay those fees and whether interest is recoverable. Therefore, the issue is one of law. Questions of law are reviewed de novo on the entire record. Bladow v. Bladow , 2005 ND 142, ¶ 9, 701 N.W.2d 903. However, the determination of whether a contract existed between Traynor and either defendant is a mixed question of law and fact. This Court "fully review[s] conclusions of law and mixed questions of law and fact under the de novo standard." Burlington Northern R.R. v. Fail , 2008 ND 114, ¶ 5, 751 N.W.2d 188.

II

[¶5] The State argues Ward County must pay Traynor's bill because Chapter 44-11, N.D.C.C., fails to address who should pay for the special prosecutor fees in a county official's removal proceeding, and therefore the catch-all provision in N.D.C.C. § 54-12-03 applies. The State argues N.D.C.C. § 54-12-03 mandates Ward County is responsible to pay expenses incurred in prosecuting any case resulting from an investigation by the Attorney General.

[¶6] Ward County argues neither Chapter 44-11, N.D.C.C., nor Chapter 54-12, N.D.C.C., imposes an obligation upon a county to pay the fees of an attorney appointed by the Governor for proceedings for the removal of a public official.

[¶7] Chapter 44-11, N.D.C.C., establishes the procedure for when an officer is removed by the Governor. Section 44-11-01, N.D.C.C., states, "The governor may remove from office any county commissioner, sheriff ... whenever it appears to the governor by a preponderance of the evidence after a hearing as provided in this chapter, that the officer has been guilty of misconduct...." Here, Ward County Sheriff, Steven Kukowski, was the public official to be removed. Therefore, Chapter 44-11, N.D.C.C., applies to these proceedings.

[¶8] Section 44-11-02, N.D.C.C., provides the process and in pertinent part states:

"1. The petition against any official authorized to be removed by the governor must be entitled in the name of this state and must be filed with the attorney general.

....

4. When the petition is filed, the attorney general shall conduct an investigation within thirty days. Upon completion of the investigation, the attorney general shall make a recommendation to the governor whether a removal proceeding should be conducted by a special commissioner, and if so, whether the accused officer should be suspended during the pendency of the proceeding.

5. Upon receipt of the recommendation of the attorney general the governor shall determine whether to proceed with the appointment of a special commissioner.... If the governor decides to appoint a special commissioner, the governor shall request that a prosecutor draft and serve the official complaint against the officer.

a. When the officer sought to be removed is other than the state's attorney, the state's attorney or other competent attorney, upon request of the governor, shall appear and prosecute."

[¶9] The State argues N.D.C.C. § 54-12-03 applied on its own and mandates Ward County is responsible to pay Traynor's fees. Section 54-12-03, N.D.C.C., authorizes the attorney general to investigate and prosecute criminal matters in counties. It states:

"The attorney general may make an investigation in any county in this state to the end that the laws of the state shall be enforced therein and all violators thereof brought to trial, when:

1. The attorney general deems it necessary for the successful enforcement of the laws of the state in such county;

2. Requested by a majority of the members of the board of county commissioners of the county; or

3. Petitioned by twenty-five taxpaying citizens of the county.

The necessary expenses incurred in making the investigation or in prosecuting any resulting case, as determined by the attorney general and not otherwise specifically provided by law, must be paid by the county out of the state's attorney's contingent fund. All such expenses paid from the state's attorney's contingent fund must be paid by the county treasurer upon the warrant of the county auditor. The warrant must be executed and delivered by the auditor in an amount and to the person designated therein upon the written order of the attorney general."

[¶10] The district court concluded Chapter 44-11, N.D.C.C., is silent regarding the payment of special prosecutor fees in a removal proceeding, and it is not necessary or required to import N.D.C.C. § 54-12-03 into Chapter 44-11. The district court explained:

"The plain language of the Chapter and the Statute do not support North Dakota's argument. Section 54-12-03, NDCC, provides the Attorney General with the authority to make an investigation when the Attorney General deems it necessary for successful enforcement of the laws, is requested to do so by a majority of the members of the Board of County Commissioners, or is petitioned by twenty-five taxpaying citizens of the county. None of these events occurred. Chapter 44-11, NDCC, requires the Attorney General to make an investigation and make a recommendation to the Governor upon the filing of a petition for removal of a public officer. Filing a petition of removal required by Chapter 44-11, NDCC, is not included in Section 54-12-03, NDCC.

" Section 54-12-03, NDCC, authorizes the Attorney General to conduct investigations, and to charge the fees for the Attorney General's expenses. The fees of the investigation is then the responsibility of the county, and are to be paid [from] the State's Attorney's contingency fund. However, it is the Governor, not the Attorney General, who makes the decision whether a removal proceeding should be initiated. Section 4[4]-11-02, NDCC. The expenses incurred in a removal proceeding are those made necessary by the actions of the Governor as a result of the exercise of his powers. The expenses incurred are not the expenses of the Attorney General, but rather the expenses incurred by the Special Prosecutor. It would seem therefore that absent some legislative directive that would shift the cost of the investigation to some other public entity that the expenses of Special Prosecutor in a removal proceeding are the responsibility of the Governor.

"The plain language of Section 44-11-01, NDCC, by its scope, also removes the Chapter from Section 54-12-03, NDCC. As noted above, Section 44-11-01, NDCC, allows the Governor to remove not only county officials, but school board members, city officials, township officials, and other governmental officers. The removal proceeding is the same for all. That is, a petition for removal is filed. The Attorney General investigates and makes recommendations to the Governor. The Governor then determines whether the removal process should go forward. A Special Prosecutor is called in. There is no authority in Section 54-12-03, NDCC, to pass the costs of the Special Prosecutor on to other governmental entities such as school boards, cities, or townships. Importing Section 54-12-03, NDCC, into Chapter 44-11, NDCC, would mean that in a removal proceeding only counties would pay the expenses of the Special Prosecutor from the State's Attorney's contingency fund[.] All other governmental entities would get a free pass. North Dakota offers no reasonable explanation for why the legislature would impose this burden only on the counties, but not on school boards, cities, townships, or the like.

"Chapter 44-11, NDCC, is silent regarding the payment of the Special Prosecutor in a removal proceeding. It is not necessary, or required to import Section 54-12-03, NDCC, into Chapter 44-11, NDCC.

"When the Code is silent on a particular issue, the common-law then prevails. Lembke v.

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