IN THE SUPREME COURT
STATE OF NORTH DAKOTA
| Amy Jo Kjolsrud, f/k/a Amy Jo Mattson, | ||
| Plaintiff - Appellant, | Case No.: 20030023 | |
| District Court No.: 99-C-03734 | ||
| v. | ||
| MKB Management Corporation | Defendant's Cross-Appeal from Final | |
| d/b/a Red River Women's Clinic, | Judgment Entered by Cass County | |
| Defendant Appellee/Cross-Appellant. | District Court | |
REPLY BRIEF FOR DEFENDANT-APPELLEE/CROSS-APPELLANT
| Joseph A. Turman | Linda Rosenthal* | ||||||
| Bar Number 03128 | Janet Crepps* | ||||||
| DeMars & Turman, Ltd. | Center for Reproductive Rights | ||||||
| Community First Tower, Suite 600 | 120 Wall Street | ||||||
| 520 Main Avenue | New York, NY 10005 | ||||||
| Fargo, ND 58124 | (917) 637-3600 | ||||||
| (701) 293-5592 | *Non-Resident Attorneys | ||||||
ATTORNEYS FOR DEFENDANT-APPELLEE/CROSS-APPELLANT
TABLE OF CONTENTS
TABLE OF AUTHORITIES ii
A. PLAINTIFF DOES NOT HAVE STANDING TO PURSUE CLAIMS
UNDER NORTH DAKOTA CENTURY CODE SECTION 51-12-14. ¶1
B. CONCLUSION ¶4
TABLE OF AUTHORITIES
Cases
County of Stutsman v. State Historical Soc'y of North Dakota,
371 N.W.2d 321 (N.D. 1985) ¶1
Ganim v. Smith and Wesson Corp., No. 16465, 2001 WL 1151184,
-- A.2d -- (Conn. Oct. 9, 2001) ¶3
Hall v. Walter, 969 P.2d 224 (Colo. 1998) (en banc) ¶3
State Bd. of Architecture v. Kirkham, Michael & Assocs.,
179 N.W.2d 409 (N.D. 1970) ¶2
Stop Youth Addiction v. Lucky Stores, Inc., 950 P.2d 1086 (Cal. 1998) ¶3
State v. Rosenquist, 51 N.W.2d 767 (N.D. 1952) ¶4
Statutes and Regulations
N.D. Cent. Code § 51-12-14 ¶1
PLAINTIFF DOES NOT HAVE STANDING TO PURSUE CLAIMS UNDER NORTH DAKOTA CENTURY CODE SECTION 51-12-14
It is undisputed that Plaintiff has no personal connection to the alleged false advertising she seeks to remedy in this lawsuit. In her reply, Plaintiff does not attempt to rebut the majority of Defendant's arguments as to why she lacks standing to pursue her false advertising claims under North Dakota Century Code Section 51-12-14. And while Plaintiff chooses to emphasize Section 51-12-14's "any person" language, she ignores altogether that Section 51-12-14 also requires that a false advertising claim may only be brought in a court of "competent jurisdiction." See N.D. Cent. Code § 51-12-14. Nevertheless, it is well established that each and every phrase of a statute should be considered to be meaningful, lest the legislature have enacted "idle" words. Cf. County of Stutsman v. State Historical Soc'y of North Dakota, 371 N.W.2d 321, 325 (N.D. 1985). It is equally well established that a plaintiff must allege some injury in order to present a cognizable case or controversy in order for a court to have jurisdiction under North Dakota law. See Defs. Br. at ¶¶ 52-59.
Plaintiff's reliance on State Board of Architecture v. Kirkham, Michael & Associates is misplaced. See Pl. Reply Br. at ¶ 1. In State Board, a North Dakota corporation represented itself to the public as a registered architecture firm in violation of state law. See 179 N.W.2d 409, 411 (N.D. 1970). The State Board of Architecture sued the corporation seeking an injunction "to protect its own interests and the interests of its members and the interests of the general public." See 179 N.W.2d at 411. On appeal, this Court considered the issue of the Board's standing under the false advertising statute, noting that the "language of [Section 51-12-14] is not clear or concise and certainly not the best." Id. This Court held that the Board did, in fact, have standing to pursue its false advertising claims, albeit on a narrow basis: namely, on behalf of "the interests of its members;" it did not hold that the State Board had standing on behalf of the general public. Id. Thus, the decision in State Board is consistent with traditional standing principles that require a plaintiff to assert an "injury," as the Board could plainly have alleged harms to itself and the architecture profession as a whole based on the defendant's misrepresentations.
Finally, while it is true that California courts have abandoned injury as a requirement for standing under the California false advertising statute, a number of states have refused to do away with standing requirements in the face of consumer protection statutes that attempt to expand standing beyond traditional prudential requirements. See, e.g., Ganim v. Smith and Wesson Corp., No. 16465, 2001 WL 1151184, at *23, -- A.2d -- (Conn. Oct. 9, 2001) (requiring plaintiffs to allege non-remote injuries, notwithstanding broad language of Connecticut Unfair Trade Practices Act); Hall v. Walter, 969 P.2d 224, 230-31 (Colo. 1998) (en banc) (refusing to construe "any person" provision under Colorado Consumer Protection Act as permitting private cause of action regardless of injury); see also Stop Youth Addiction v. Lucky Stores, Inc., 950 P.2d 1086 (Cal. 1998) (describing California's limitless grant of standing to non-injured persons as "unique" among state statutes) (Brown, J. dissenting).
CONCLUSION
This Court has consistently adhered to traditional standing principles when construing broad statutory language. See, e.g., State v. Rosenquist, 51 N.W.2d 767 (N.D. 1952). Plaintiff does not satisfy the well-established and fundamental prudential requirements to present her claims to this Court. Accordingly, Plaintiff's claims should be dismissed for lack of standing and the judgment for Defendant affirmed on this basis.
| Dated: June 13, 2003 | Respectfully submitted, | ||
| /s/ | Joseph A. Turman | ||
| Joseph A. Turman | |||
| Bar Number 03128 | |||
| DeMars & Turman, Ltd. | |||
| Community First Tower, Suite 600 | |||
| 520 Main Avenue | |||
| Fargo, ND 58124 | |||
| (701) 293-5592 | |||
| Linda Rosenthal* | |||
| Janet Crepps* | |||
| Center for Reproductive Rights | |||
| 120 Wall Street | |||
| New York, NY 10005 | |||
| (917) 637-3600 | |||
| *Non-Resident Attorneys | |||
| ATTORNEYS FOR DEFENDANT-APPELLEE/CROSS-APPELLANT | |||