Franciere v. City of Mandan

Docket No. 20190122
Oral Argument: Waived

Docket Info

Title
Susan Franciere, Plaintiff and Appellant
v.
City of Mandan, Defendant and Appellee
Case Type
CIVIL APPEAL : OTHER (Civil)
Appeal From
Case No. 2017-CV-00914
South Central Judicial District, Morton County
James S. Hill

Parties' Statement of Issues

  • Appellant

    1. Whether statutory law in North Dakota Century Code (hereafter “N.D.C.C.”) § 44-04-17.1(16) defines a “Record” as including a police report.
    2. Whether statutory law stated in N.D.C.C. § 44-04-18(1), on--public records subject to release, includes all records subject to release to the “victim” under the constitutional mandate in North Dakota Constitution (hereafter “N.D. Const.”), Article (hereafter “Art.”) I, Section (hereafter “Sec.”) 25(1)(l).
    3. Whether the constitutional mandate in ND Const., Art. XI, Sec. 6, on public records, includes all records subject to release to the “victim” under the constitutional mandate in N.D. Const., Art. I, § 25(1)(l).
    4. Whether statutory law stated in N.D.C.C. § 44-04-18(2), regarding copies, includes records subject to release to the “victim” under the constitutional mandate in N.D. Const., Art. I, § 25(1)(l).
    5. Whether the constitutional mandate in N.D. Const., Art. I, § 25(1)(l), on rights of a “victim” to records, overrides statutory law in N.D.C.C. § 44-04-18.7 exempting records from disclosure the records.
    6. Whether--statutory--law--in--N.D.C.C.--§--44-04-21.1,--on--requesting--an--Open Records and Meetings Opinion (hereafter “Opinion”) includes those records subject to release to the “victim” under a constitutional mandate in N.D. Const., Art. I, § 25(1)(l), that are not released to the person listed as a “victim” in those records.
    7. Whether-statutory-law-in-N.D.C.C.-§ 44-04-21.2,-on-the-use-of-a-civil action, includes violations for withholding records subject to release to the “victim” under the constitutional mandate in N.D. Const., Art. I, § 25(1)(l).
    8. Whether statutory law in N.D.C.C. § 44-04-21.2, on the use of-a-civil action, becomes moot if the public entity only corrects part or all violations of open records law after a civil action is brought under N.D.C.C. § 44-04-21.2.
    9. Whether statutory law in N.D.C.C. § 44-04-21.2,-on-the-use-of-a civil-action, becomes moot when a violation of statutory law in N.D.C.C. § 44-04-18(7) fails to be corrected during the course of that civil action that would allow for the remedies stated in statutory law in N.D.C.C. § 44-04-21.2(1).
    10. Whether-statutory law in N.D.C.C. § 44-04-21.2, on the use of a civil action, becomes moot when a violation of statutory law in N.D.C.C. § 44-04-18(8) exists during a civil action and cannot be corrected because of the type of violation under open records law that violation represents. 11. Whether statutory law in N.D.C.C. § 44-04-21.2, on the use of a civil action, includes when a public entity violates rights of a “victim” to records subject to release to a “victim” under the constitutional mandate in N.D. Const., Art. I, § 25(1)(l).
    12. Whether statutory law in N.D.C.C. § 44-04-21.3, regarding violations of open records law representing a criminal act, includes the refusal by a public entity to release records subject to release to a “victim” under the constitutional mandate in N.D. Const., Art. I, § 25(1)(l).
    13. Whether statutory law in N.D.C.C. § 12.1-11-06, regarding a criminal act when a public servant refuses to perform a duty mandated by law, includes the refusal to release records subject to release to a “victim” under the constitutional mandate in N.D. Const., Art. I, § 25(1)(l).
    14. Whether the constitutional mandate in N.D. Const., Art. I, § 25(1)(n), on “full and timely restitution” to a victim to make a “victim” whole, includes when the “victim” becomes a “victim” when a public entity commits an act defined as criminal under statutory law N.D.C.C. § 44-04-21.3.
    15. Whether the constitutional mandate in N.D. Const., Art. I, § 25(1)(n), on “full and timely restitution” to a victim to make a “victim” whole, includes when the “victim” becomes a “victim” when a public entity commits an act defined as criminal under statutory law N.D.C.C. § 12.1-11-06.
    16. Whether the constitutional mandate in N.D. Const., Art. I, § 25(1)(n), on “full and timely restitution” to a victim to make a “victim” whole, includes the costs, disbursements and damages listed in statutory law N.D.C.C. § 44-04-21.2(1).
    17. Whether the District Court erred by refusing to address whether the police report Franciere requested from the City of Mandan (hereafter “City”) under statutory law in N.D.C.C. § 44-04-18(2) and the constitutional mandate in N.D. Const., Art. I, § 25(1)(l), was a public record required to be released to Susan-Franciere-(hereafter “Franciere”) upon request before dismissing as moot Franciere’s civil action against the City.
    18. Whether the District Court violated Franciere’s rights under statutory law in N.D.C.C. § 44-04-21.2(1) by refusing to address if Franciere was entitled to be awarded costs, disbursements and damages by declaring Franciere’s civil action moot when the City only corrected the violation of statutory law in N.D.C.C. § 44-04-18(2) and the constitutional mandate in N.D. Const., Art. I, § 25(1)(l), after Franciere filed a civil action against the City under N.D.C.C. § 44-04-21.2(1) on October 23, 2017.
    19. Whether-the--District-Court-violated--Franciere’s-constitution-rights-when the District Court dismissed with prejudice Franciere’s civil action against the City, stopping Franciere from receiving “full and timely restitution” under the constitutional mandate in N.D. Const., Art. I, § 25(1)(n), by failing to order the City to pay Franciere costs, disbursements and damages under statutory law in N.D.C.C. § 44-04-21.2(1).
    20. Whether-the--District-Court-erred-by-presuming-no-controversies-still-existed for Franciere’s civil action against the City when declaring Franciere’s civil action against the City moot.

  • Appellee 1

    1. Whether the District Court correctly found that the issues raised in Franciere's Complaint were moot.
    2. Whether the District Court erred when it declined to rule whether the requested records were exempt from open records requests.
    3. Whether the District Court erred when it declined to rule whether it had personal jurisdiction over the City.


Summary

Susan Franciere appeals from a district court judgment dismissing her action against the City of Mandan to obtain police department records and seeking an award of damages.

On August 14, 2017, Franciere and her dog were attacked by another dog in Mandan. Shortly afterward, she requested a copy of the Mandan police report on the incident but was informed she could not receive one because the case was still active. On October 24, 2017, Franciere filed this lawsuit against the City. On October 30, 2017, she received a redacted copy of the police report. On January 12, 2018, Franciere received an unredacted copy of the report. In November 2018, Franciere moved for summary judgment in her favor, and the City responded with a cross-motion for summary judgment in its favor. The district court dismissed Franciere’s action, concluding it was moot because she had received the unredacted copy of the police report.

On appeal, Franciere raises numerous issues. She argues the district court erred in concluding the action was moot. She argues the court erred in not addressing whether the police report was a public record that could be withheld from her. She argues her action was not moot because controversies continue to exist. She also argues that if the case is moot, the court still had the authority to consider the merits of the case because it is of great public interest and is capable of repetition, yet evading review.


Briefs

Filing Date Description
05/20/2019 APPELLANT BRIEF View
06/19/2019 APPELLEE BRIEF View
07/02/2019 REPLY BRIEF View

Counsel

Party Type Name
APPELLEE PRIVATE PRACTICE Scott Kenneth Porsborg - 04904
APPELLEE PRIVATE PRACTICE Austin Theodore Lafferty - 07833
APPELLANT PRO SE Susan Franciere

(Note: Attachments may not be available for recently filed cases and/or confidential documents.)

Seq. # Filing Date Description Attachment
1 04/11/2019 NOTICE OF APPEAL : 04/11/2019
2 04/12/2019 NOT. OF FILING NOT. OF APPEAL AND PROOF OF SERV.
3 04/12/2019 Notice served on Susan Franciere and Scott K. Porsborg
4 05/10/2019 ELEC. RECORD ON APPEAL DATED MAY 9, 2019 (ENTRY NOS. 1-87)
5 05/20/2019 APPELLANT BRIEF View
6 05/20/2019 APPELLANT APPENDIX
7 05/28/2019 rec'd nonsubstantive corrections to Appellant's Appendix
8 05/30/2019 Rec'd 6 copies of ATB & ATA from Central Duplicating
9 06/19/2019 APPELLEE BRIEF View
10 06/21/2019 Received non-substantive corrections to Appellee's brief
11 06/25/2019 Rec'd 6 copies of AEB from Central Duplicating
12 07/02/2019 REPLY BRIEF View
13 07/09/2019 Rec'd 6 copies of RYB from CSD
14 08/02/2019 ORAL ARGUMENT WAIVED - NO REQUESTS FOR ORAL ARGUMENT