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 .
Fargo Education Association v . Fargo Public School District , 2024 ND 201 . Filed on 11 / 8 / 24 .
The Fargo Education Association represents teachers employed by the Fargo Public School District in negotiations . The district employs school psychologists and had historically paid the school psychologists consistent with the wage matrix which is part of the teachers ’ negotiated contracts . However , in 2023 , the district increased the salary of school psychologists in a manner that did not comply with the terms of the negotiated agreements for teachers . Additionally , in 2023 , the district posted an opening for a special education teacher position . After receiving no applications , the district accepted bids to fill the position and awarded the bid to a third-party entity . This third-party entity then provided a special education teacher for the 2023-2024 school year . The amount paid to the third-party entity was more than typically paid to special education teachers under the teachers ’ negotiated contracts .
The association filed a grievance , which the district denied . The association then filed a petition for a writ of mandamus with the district court requesting the district be forced to rescind its contracts with the school psychologists and third-party entity and offer new contracts that comply with the 2023-2025 teacher contract . The district court denied and dismissed the association ’ s petition .
On appeal , the Supreme Court affirmed the dismissal of the association ’ s petition . In regard to the association ’ s argument that school psychologists are teachers under N . D . C . C . 15.1-16-01 ( 5 ), the Supreme Court disagreed . Teacher is defined as a public school employee licensed to teach by the education standards and practices board or approved to teach by the education standard and practices board and employed primarily as a classroom teacher . The Supreme Court held school psychologists are not teachers , as they are not employed primarily as a classroom teacher .
As to the district ’ s service agreement with the third-party entity to employ a special education teacher , the Supreme Court held the third-party entity was an independent entity and not an employee of the district . Likewise , the actual special education teacher was employed by the third-party entity , not by the district and therefore could not be an employee of the district .
Overboe v . Overboe , et . al ., 2024 ND 233 . Filed on 12 / 19 / 24 .
The Department of Health and Human Services sent a child support obligee a notice it had suspended judgment interest on pastdue child support payments owed to her by the obligor . The state believed it had the authority to do so under N . D . C . C . § 14-09- 25 ( 8 ), which states : “ The child support agency may suspend or waive judgment interest on an arrearage as part of an amnesty program , as an incentive for satisfying a child support obligation or complying with a payment plan , or if the child support agency determines the judgment interest is not collectible through commercially reasonable efforts .” The obligee requested a hearing on the waiver of the interest .
At the hearing , neither party raised the issue of the constitutionality of the statute . Instead , the district court raised the issue on its own initiative . The district court reasoned the interest that was due is a property right of the obligee , not the state . The district court determined N . D . C . C . § 14-09- 25 ( 8 ) violates the Fifth Amendment to the United States Constitution because it authorizes the state to take private property without just compensation . The district court declared the statute unconstitutional and vacated the department ’ s decision .
The state appealed . The Supreme Court noted the standard for declaring a law unconstitutional is high . Special procedural rules apply to constitutional challenges . The separation of powers created by our state and federal constitutions requires courts to exercise judicial restraint and constitutional avoidance . A corollary to the separation of powers is the party presentation principle . This principle requires , absent special circumstances , courts not rule on constitutional questions unless the constitutional challenge is properly presented to the court , and then only to the extent necessary to the determination of the cause and not at the instance
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 .
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