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Little v. Stark County Sheriff

Supreme Court of North Dakota

January 22, 2018

Parke William Little, Petitioner and Appellant
v.
Stark County Sheriff on behalf of the Stark County Sheriff's Office, Respondent and Appellee

         Appeal from the District Court of Stark County, Southwest Judicial District, the Honorable Stacy J. Louser, Judge.

          Thomas F. Murtha IV, Dickinson, ND, for petitioner and appellant.

          Benjamin J. Sand (argued) and Michael C. Waller (appeared), Bismarck, ND, for respondent and appellee.

          OPINION

          VandeWalle, Chief Justice.

         [¶ 1] Parke William Little appealed from a district court order denying his September 23, 2016, petition for a writ of mandamus. The petition requested an order compelling the Stark County Sheriff's Office to mail him notice that his request for employment as a deputy sheriff in 2008 had been refused. We affirm.

         I

         [¶ 2] Little is a disabled veteran who formerly served in the Marine Corps and the Army. Little worked for Stark County as a special deputy from approximately 2008-2016.

         [¶ 3] In July 2008, while employed as a special deputy, Little applied for a "deputy sheriff" position with Stark County. Little indicated his veteran's preference status in the application. Little was interviewed in November 2008. After the interview, Little became aware the deputy sheriff position was given to a non-veteran. Little continued to work in his capacity as a special deputy for Stark County until 2016.

         [¶ 4] In March 2015, Little, through counsel, sent a letter to the Stark County Sheriff's Department requesting written notification why he was refused the 2008 deputy sheriff position. The Department responded, referring Little's attorney to direct the matter to the state's attorney's office. Little, through counsel, submitted a letter to the Stark County States Attorney and the Stark County Sheriff on March 4, 2016, and received no response.

         [¶ 5] On September 23, 2016, Little filed a petition for writ of mandamus requesting the Stark County Sheriff's Department be required to comply with N.D.C.C. § 37-19.1-04(1). Little sought to compel the Department to send him written notice that his employment as a Stark County deputy sheriff had been refused. On April 10, 2017, a hearing was held. The district court denied the petition and dismissed with prejudice, stating, among other reasons:

[T]he Court notes that as Little acknowledged at the April 10th 2017 hearing, he waited nearly eight years after being employed as a Stark County Special Reserve Deputy to file the pending action. This Court will not now exercise the extraordinary remedy of granting a mandamus where the actions of Little himself fail to support such relief.

         II

         [¶ 6] Little argues he is entitled to the notice referenced in N.D.C.C. § 37-19.1-04(1), which provides, in part:

If a veteran, or a qualified veteran's spouse, hereafter known as the applicant, is not given the preference provided in section 37-19.1-02 or 37-19.1-03, the applicant, within fifteen calendar days after receipt of notification by certified mail or through the online recruiting solution system that employment has been refused, may request a hearing as provided in subsection 3. The notification from the employer must include the reasons for nonselection, inform the applicant of the right to an appeal hearing, inform the applicant of the requirement that the request for a hearing must be filed by certified mail within fifteen calendar days after the notification, inform the applicant that a request for an appeal hearing must be made to the commissioner of veterans' affairs at the included ...

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