Stephenson v. Hoeven

20070055 Jamey M. Stephenson, Appellee
v.
The Honorable John Hoeven, as
Governor of the State of North
Dakota, and as Commander in Chief
of the North Dakota National Guard,
and Major General David Sprynczynatyk,
Adjutant General of the North
Dakota National Guard, Appellants

Appeal from: District Court, East Central Judicial District, Cass County
Judge John Charles Irby
Nature of Action: Administrative Proceeding
Counsel:
Appellant: Douglas Alan Bahr , Att. General Office
Appellee: Mertz Law Office
Term: 05/2007   Argument: 05/25/2007  9:30am
ND cite: 2007 ND 136
NW cite: 737 N.W.2d 260

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
I.Section 28-32-42(1), N.D.C.C., grants the district court appellate jurisdiction of orders issued in adjudicative proceedings. Special Orders AA-86 were not issued as part of an adjudicative proceeding. Did the district court lack appellate jurisdiction to review Special Orders AA-86 under N.D.C.C.  28-32-42(1)?
II.Section 37-04-15(1), N.D.C.C., provides a commission in the Air National Guard (ANG) may be vacated as determined by an efficiency board as provided by federal regulation. The applicable federal regulation provides that the authority to separate ANG assigned members from state status rests with the state Adjutant General. The regulation further provides the Adjutant General is the Separation Authority when the separation is for ANG unique separations. The Adjutant General separated Stephenson from state status for an ANG unique separation. Did the Adjutant General act within his authority?

Appellee's Statement of the Issues:
Whether the district court had jurisdiction to review the Adjutant General's order?
Whether Stephenson's Appeal is justiciable because the Adjutant General exceeded his authority?

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Docket entries:
102/22/2007 NOTICE OF APPEAL: 02/20/2007
203/12/2007 APPELLANT BRIEF
303/12/2007 Addendum attached to Appellant's Brief
403/12/2007 APPELLANT APPENDIX
503/12/2007 DISK (ATB) electronic
603/23/2007 RECORD ON APPEAL
704/12/2007 APPELLEE BRIEF
804/12/2007 E-FILED BRIEF (AEB)
904/13/2007 Received Surcharge for Appellee's Brief (Receipt 17350)
1004/17/2007 Rec'd 7 copies of AEB from Central Duplicating.
1104/23/2007 REPLY BRIEF
1204/23/2007 DISK - RYB (emailed)
1304/23/2007 Affidavit of Service by Mail
1405/25/2007 APPEARANCES: Douglas A. Bahr, Maj. Gen. David Sprynczynatyk, Lt. Col. Dave Thiele; Monty G. Mertz,
1505/25/2007 Lt. Jamey M. Stephenson
1605/25/2007 ARGUED: Bahr; Mertz
1705/25/2007 ORAL ARGUMENT WEBCAST
1808/22/2007 DISPOSITION: REVERSED
1908/22/2007 UNANIMOUS OPINION: Maring, Mary Muehlen
2008/22/2007 Costs taxed in favor of the Appellants
2108/23/2007 Judgment e-mailed to Parties
2209/13/2007 MANDATE
2309/19/2007 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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