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Kroschel v. Levi

Supreme Court of North Dakota

July 7, 2015

Morgan R. Kroschel, Appellant
v.
Grant Levi, Director, North Dakota Department of Transportation, Appellee

Page 110

Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Norman G. Anderson, Judge.

Mark A. Friese, Fargo, ND, for appellant.

Andrew Moraghan, Office of Attorney General, Bismarck, ND, for appellee.

Daniel J. Crothers, Lisa Fair McEvers, Dale V. Sandstrom, William F. Hodny, S.J., Gerald W. VandeWalle, C.J. Opinion of the Court by Crothers, Justice. The Honorable William F. Hodny, S.J., sitting in place of Kapsner, J., disqualified.

OPINION

Page 111

Crothers, Justice.

[¶1] Morgan R. Kroschel appeals from a district court judgment affirming the Department of Transportation's suspension of her driving privileges. Kroschel argues the officer acted outside his territorial jurisdiction and was without lawful authority to arrest Kroschel. We reverse.

I

[¶2] Ryan Haskell is an officer with the North Dakota State University Police Department. He was driving outside NDSU campus and observed Kroschel turn across a designated turn lane rather than enter a travel lane. The officer followed the vehicle before making a stop. At no time during this incident was the officer or Kroschel on NDSU property. Officer Haskell ultimately arrested Kroschel for driving under the influence of alcohol.

[¶3] At the administrative hearing, Kroschel argued the officer did not have jurisdiction to arrest her because she was not on NDSU property. The Department argued a Memorandum of Understanding (" MOU" ) between the Fargo Police Department and NDSU granted Officer Haskell city-wide jurisdiction. The MOU was signed by NDSU President of Business and Finance, NDSU Director of University Police and Safety, Interim Fargo Police Chief and the Fargo Mayor. The MOU states NDSU, the Fargo Police Department and the City of Fargo agree to accept these " guidelines for cooperation in the provision of personal and property on the NDSU campus, and to provide for appointment of NDSU police officers City-wide jurisdiction." The MOU allows appointment of NDSU officers as special police officers under Fargo Municipal Ordinance 5-0104. The hearing officer found

Page 112

the MOU grants NDSU police city-wide jurisdiction, giving the officer authority to stop Kroschel. The hearing officer suspended Kroschel's license for 180 days. Kroschel appealed to the district court, arguing the hearing officer's decision is not in accordance with the law.

[¶4] The hearing officer found:

" The Fargo Police Chief had authority to swear Officer Haskell in as an officer with authority throughout the city. NDCC 40-20-05; Fargo Municipal Ordinance 5-0104. The Memorandum of Understanding provides the Fargo Police Department significant information, access, quality assurance and cooperation from the NDSU Police. Exhibit 16. In regard to colleges and universities, the North Dakota Legislature has approved 'the employment of law enforcement officers having concurrent jurisdiction with other law enforcement officers to enforce laws and regulations at its institutions.' NDCC 15-10-17(2)."

[¶5] The district court affirmed the hearing officer's decision but under different authority of law. The district court found:

" Section 44-08-24(1) gives authority to North Dakota state and local law enforcement agencies to 'establish policies and procedures or enter agreements with other criminal justice agencies of this state' to assist other state and local criminal justice agencies and to exchange peace officers on a temporary basis. The department argues the MOU derives its authority from § 44-08-24, even though the MOU was executed in 2006 and § 44-08-24 was not enacted until 2011. . . . The MOU by its terms gives no expiration date. According to Officer Haskell, when he stopped Ms. Kroschel he was acting under the authority of the MOU. By all indications the MOU is a continuing agreement, still in effect. There is no suggestion that it has been terminated or rescinded. Moreover, there is no requirement that the MOU make reference to § 44-08-24 before it can derive authority from § 44-08-24. When § 44-08-24 was enacted, the MOU immediately acquired the legal support of § 44-08-24. . . . Section 44-08-24 provides independent legal authority for the MOU. Finally, it is clear from the language of the statute that the phrase 'on a temporary basis' only applies to the exchange of peace officers in § 44-08-24(1)(b) and not to the assistance referred to in § 44-08-24(1)(a)."

The district court also found " § 54-40.3-04 only applies to agreements between a criminal justice agency of this state and another state. The MOU in this case is an agreement between two law enforcement agencies within the state, and therefore, § 54-40.3-04 is inapplicable." Kroschel appeals.

II

[¶6] " We review an administrative revocation of a driver's license under N.D.C.C. § 28-32-46." Vanlishout v. N.D. Dep't of Transp., 2011 ND 138, ¶ 12, 799 N.W.2d 397. We must affirm the Department's order unless:

" 1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.

Page 113

6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8. The conclusions of law and order of the agency do not sufficiently explain the agency's rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge."

N.D.C.C. § 28-32-46. " When an appeal involves an interpretation of a statute, a legal question, this Court will affirm the agency's order unless it finds the order is not in accordance with the law." Johnson v. Dep't of Transp.,2004 ND 148, ¶ 5, 683 N.W.2d 886. " Although this Court's review is limited to the record before the administrative agency, 'the district court's analysis is entitled to respect if its reasoning is sound.'" Deeth v. Dir., N.D. Dep't of Transp.,2014 ND 232, ¶ 10, 857 N.W.2d 86 (quoting Obrigewitch v. Dir., N.D. Dep't of Transp.,2002 ND 177, ¶ 7, 653 N.W.2d 73). " We review appeals from the final judgment of a district court in the same manner as provided for in N.D.C.C. § 28-32-46 or N.D.C.C. § ...


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