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Franciere v. City of Mandan

Supreme Court of North Dakota

September 12, 2019

Susan Franciere, Plaintiff and Appellant
v.
City of Mandan, Defendant and Appellee

          Appeal from the District Court of Morton County, South Central Judicial District, the Honorable James S. Hill, Judge.

          Susan Franciere, Mandan, ND, plaintiff and appellant; submitted on brief.

          Scott K. Porsborg and Austin T. Lafferty, Bismarck, ND, for defendant and appellee; submitted on brief.

          OPINION

          Jensen, Justice.

         [¶1] 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.

         I

         [¶2] 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.

         [¶3] 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.

         [¶4] 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.

         [¶5] 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.

         [¶6] 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."

         [¶7] 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 ...

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