from the District Court of Morton County, South Central
Judicial District, the Honorable James S. Hill, Judge.
Franciere, Mandan, ND, plaintiff and appellant; submitted on
K. Porsborg and Austin T. Lafferty, Bismarck, ND, for
defendant and appellee; submitted on brief.
Susan Franciere appeals from a judgment dismissing her action
against the City of Mandan seeking to obtain police
department records and an award of damages for the City's
failure to timely provide the requested records. The district
court dismissed the action as moot because Franciere
eventually received the records she requested. We vacate the
judgment and remand for further proceedings.
On August 14, 2017, Franciere and her dog were attacked by a
dog in Mandan. On August 16, 2017, she went to the Mandan
Police Department, asserted her rights under Article I,
§ 25 of the North Dakota Constitution, and requested a
copy of the police report on the incident under the open
records law. On August 17, 2017, she called the police
department and was informed the dog was undergoing a 10-day
rabies quarantine. On August 18, 2017, Franciere sent a
letter to the chief of police requesting the police report.
On August 22, 2017, she received a phone call from a police
lieutenant who told her she would not receive the report
because the case was still active and no information would be
released until the case was closed. In September 2017, she
contacted the city attorney about the incident.
On October 24, 2017, Franciere filed this action against the
City alleging violations of Article I, § 25, and Article
XI, § 6, of the North Dakota Constitution, and the open
records law. In her complaint Franciere requested judgment
providing declaratory relief that she was entitled to the
records she had requested, providing a Writ of Mandamus
ordering the City to immediately deliver to her a copy of the
requested records, a recovery of her costs and disbursements,
damages of $1, 000 based on her assertion the City
intentionally or knowingly violated the law when it had
denied her the requested records, and any other and further
relief deemed just and appropriate by the district court.
Franciere received a redacted report of the incident from the
police department on November 1, 2017. On January 13, 2018,
she received an unredacted report from the police department.
No activity is reflected in the record for an entire year
following Franciere filing her complaint on October 24, 2017.
On October 24, 2018, the district court sent notice that the
case would be dismissed unless a request to keep the file
open was filed by November 14, 2018.
On November 14, 2018, Franciere filed a motion for summary
judgment. On November 15, 2018, the City filed an answer to
the complaint which included a statement the "Defendants
assert and incorporate by reference all affirmative defenses
available pursuant to Rules 8, 9, and 12 of the North Dakota
and Federal Rules of Civil Procedure." On December 6,
2018, the City filed a response to Franciere's motion for
summary judgment and initiated a cross-motion for summary
judgment including an assertion the records requested were
not subject to the open records law and a request to
"dismiss this case for Insufficient Service of Process
and Lack of Personal Jurisdiction."
Relying on Gosbee v. Bendish, 512 N.W.2d 450 (N.D.
1994), the district court dismissed the action with prejudice
finding as follows:
Similarly here, this Court determines this case to be moot.
Franciere was provided with an unredacted copy of the
requested report on January 12, 2018.
Franciere seeks declaratory relief, which would require this
Court to issue an advisory opinion. Furthermore, Franciere
seeks a Writ of Mandamus ordering the City to turn over the
report. As Franciere already has a copy of the ...