North Dakota Supreme Court Highlights
By Scott O. Diamond, Joshua A. Swanson, and Ian McLean
Authors’ Note and Caveat: The following cases of interest were recently decided by the North Dakota Supreme Court. Because the following contains the authors’ summary of the decisions, the reader is encouraged to read the entire published decision to determine its precedential value, if any, in any given case.
Haskell v. Grand Forks Public School District, 2026 ND 40. Filed on 2 / 12 / 26.
This appeal involved alleged violations of North Dakota’ s open meetings law arising out of a July 2024 grievance hearing before the Grand Forks Public School Board. The hearing concerned a dispute between the school district and a teacher. During the open portion of the meeting, both the school board’ s attorney and the teacher’ s attorney presented their respective positions. The school board then voted to enter executive session to allow its attorney to provide legal advice regarding the grievance. After the executive session concluded, the board returned to open session and voted to deny the relief requested by the teacher.
The teacher’ s union representative( Haskell) subsequently filed suit, alleging the executive session violated open meetings law and seeking disclosure of the recording of the closed session. Both parties moved for summary judgment, and the district court granted summary judgment in favor of the school district.
On appeal, Haskell argued the school board waived its right to enter executive session because its attorney provided legal analysis during the public portion of the meeting. The North Dakota Supreme Court rejected this argument, holding that an attorney’ s public explanation of a governmental entity’ s legal position does not waive the attorney consultation exemption under N. D. C. C. § 44-04-19.1( 5). The Court reasoned that adopting Haskell’ s position would undermine the exemption by discouraging public entities from openly articulating their legal positions.
Haskell also argued the district court violated her due process rights by failing to provide her access to the executive session recording. The Court rejected this claim, concluding there is no authority requiring a party seeking disclosure of exempt or privileged records to participate in an in camera review or otherwise obtain access to those records.
However, the Supreme Court held the district court abused its discretion by granting summary judgment without first conducting an in camera review of the executive session recording. Because the government controls the only record of what occurred during the closed session, courts must independently verify whether the discussion remained within the scope of the claimed exemption. Reliance solely on affidavits and representations from the public entity is insufficient. The Court affirmed in part, reversed in part, and remanded for the district court to conduct an in camera review of the executive session recording.
Justice Crothers concurred in part and dissented in part. While he agreed with the majority’ s analysis of the open meetings issues, he disagreed with the decision to remand. Justice Crothers reasoned that Haskell did not adequately raise or brief the argument that the district court abused its discretion by failing to conduct an in camera review.
Nygard v. Volker, et al., 2026 ND 50. Filed 2 / 19 / 2026.
Nygaard purchased a home in Fargo, but Volker later recorded a quitclaim deed purporting to transfer the property to himself. Volker claimed the deed was part of an agreement in which he guaranteed a $ 40,000 loan to Nygaard from a private investor, giving him the right to record the deed if she failed to repay the loan. Nygaard denied signing any such agreement or deed and brought a quiet title action alleging forgery.
Nygaard served Volker with requests for production and inspection of Volker’ s electronic devices and email accounts. Volker moved for a protective order. Nygaard responded by presenting evidence demonstrating that some documents produced by Volker had been altered. The district court then entered a detailed discovery order outlining the procedure for production of electronically stored information.
Scott O. Diamond is a judicial referee for the East Central Judicial District of North Dakota.
Joshua A. Swanson is a shareholder at Vogel Law Firm in Fargo where he practices energy law, construction and property law, and general litigation.
Ian McLean is a shareholder at Serkland Law Firm in Fargo where he practices in commercial litigation, municipal and education law, and criminal law.
22 THE GAVEL