Basin Electric Power Cooperative v. North Dakota Workers Compensation Bureau

541 N.W.2d 685, 1996 N.D. LEXIS 1

• Court: North Dakota Supreme Court
• Decided: January 3, 1996
• Docket: Civ. No. 950218
• Status: Published

Opinions

VANDE WALLE, Chief Justice.

Mary Jo Lemer appealed from a district court judgment reversing a Workers Compensation Bureau order awarding her benefits. Because the district court did not acquire subject matter jurisdiction over Basin Electric Power Cooperative’s [Basin] appeal of the Bureau’s order, we reverse the judgment.

Following a hearing in Burleigh County, the Bureau issued an order on November 10, 1994, awarding Lemer benefits for a work-related knee injury suffered while employed at Basin. Basin appealed the Bureau’s order to the district court for Burleigh County and served the notice of appeal and specification of error on December 7, 1994. The Bureau and Lemer jointly moved to dismiss the appeal, asserting Basin had taken the appeal in the wrong county under N.D.C.C. §§ 28-32-15 and 65-10-01. Because Lemer was injured in and resided in Mercer County, the Bureau and Lemer argued Mercer County was the proper county for Basin to file the appeal. Basin opposed the motion to dismiss and moved to change venue under N.D.C.C. § 28-04-07, to amend service to reflect Mercer County as the county of venue under N.D.R.Civ.P. 4(g), and to enlarge time for service and filing of a notice of appeal in a new county under N.D.R.Civ.P. 6(b).

The court denied the motion to dismiss and granted Basin’s motions, allowing Basin “to file the notice of appeal within fifteen (15) days of the execution of the Order in this case.” When the order was issued, the 30-day deadline for filing an appeal had long expired. The court then determined that some of the Bureau’s findings were not supported by a preponderance of the evidence and that some of its conclusions of law were not supported by the findings of fact. The court reversed the Bureau’s decision, and Lemer appealed.

Lemer asserts the district court erred in denying her motion to dismiss Basin’s appeal because the court lacked subject matter jurisdiction to hear it. We agree.

Under the Administrative Agencies Practice Act, “[a]ny party to any proceeding heard by an administrative agency, ... may appeal from the order within thirty days after notice of the order has been given....” N.D.C.C. § 28-32-15(1). “The appeal of an order may be taken to the district court designated by law, and if none is designated, then to the district court of the county in which the hearing or a part thereof was held.” N.D.C.C. § 28-32-15(3)(a). The workers compensation act provides in pertinent part:

“Appeal from, decision of bureau. If the final action of the bureau denies the right of the claimant to participate at all in the fund on the ground that the injury was self-inflicted, or on the ground that the accident did not arise in the course of employment, or upon any other ground going to the basis of the claim, or if the bureau allows the claimant to participate in the fund to a lesser degree than that claimed by the claimant, if such allowance is less than the maximum allowance provided by this title, the claimant may appeal to the district court of the county wherein the injury was inflicted or of the county in which the claimant resides. An employer may also appeal a decision of the bureau in any injury case in the manner prescribed in this section. An appeal involving injuries allegedly covered by insurance provided under contracts with extraterritorial coverage shall be triable in the district court of Burleigh County. Any appeal under this section shall be taken in the manner provided in chapter 28-32_”

N.D.C.C. § 65-10-01.

In Boyko v. N.D. Workmen’s Comp. Bureau, 409 N.W.2d 638 (N.D.1987), this court affirmed the dismissal of an appeal filed in Burleigh County by a claimant who neither resided in nor received his injury in Burleigh County. In that case, we ruled the “catchall” provision of N.D.C.C. § 28-32-15(3)(a), allowing an appeal to be taken to the district court of the county where the hearing was held if no district court is designated by law, did not apply because N.D.C.C. § 65-10-01 “specifically provides for jurisdiction for appeals from final action of the Bureau, either in the county of residence of the claimant or the county wherein the injury was inflicted.” Boyko, 409 N.W.2d at 640.

We also held that the appeal could not be entertained by a district court under its general jurisdiction.

“Under Article VI, Section 8, of the North Dakota Constitution, the district court has original jurisdiction of all causes, ‘except as otherwise provided by law,’ and such ‘appellate jurisdiction as may be provided by law or by rule of the supreme court.’ It is apparent that appeals from the Bureau are statutory in nature and are not matters of original jurisdiction for the district courts but rather involve exercise of the appellate jurisdiction of the district courts conferred by statute. Wagner v. North Dakota Board of Barber Exam., 186 N.W.2d 570 (N.D.1971) [statutes governing providing a tribunal for review of decisions of administrative agencies confer exclusive jurisdiction]; Petition of Village Board of Wheatland, 77 N.D. 194, 42 N.W.2d 321 (1950) [on appeal from administrative agency, a party invokes the appellate and not the original jurisdiction of the district court]. The statutory requirements for filing a notice of appeal from an administrative agency are thus jurisdictional and do not refer to venue. Prosper Energy Corp. v. Indus. Com’n of N.D., 359 N.W.2d 860 (N.D.1984); Happy Day Day Care Ctr. v. Social Service Bd., 313 N.W.2d 768 (N.D.1981); City of Casselton v. N.D. Public Serv. Com’n, 307 N.W.2d 849 (N.D.1981); Wagner, supra. Unless the district court to which the appeal is taken is specified by statute, the court lacks subject-matter jurisdiction to entertain the appeal. Prosper Energy Corp., supra.”

Boyko, 409 N.W.2d at 640-641.

Basin argues that Boyko is no longer controlling because of this court’s decision in Hayden v. Workers Compensation Bureau, 447 N.W.2d 489 (N.D.1989), and that, in any event, Boyko is distinguishable because the present case involves an appeal by an employer instead of a claimant. We reject both arguments.

In Hayden, a claimant originally appealed a Bureau order to the district court for Williams County instead of the district court for McKenzie County, where the injury occurred. In response to the Bureau’s motion to dismiss the appeal, the claimant, like Basin in the present ease, filed a motion to change venue under N.D.C.C. §§ 27-05-26 and 28-04-07, a motion to amend the service and pleadings under N.D.R.Civ.P. 4(g), and a motion to enlarge the time for serving and filing the notice of appeal under N.D.R.Civ.P. 6(b). The district court denied the Bureau’s motion to dismiss the appeal, granted the claimant’s motions, allowing the venue of the appeal to be change to McKenzie County, and affirmed the Bureau’s order on the merits.

In the lead opinion, two justices of this court rejected the Bureau’s argument that the district court did not obtain subject matter jurisdiction of the appeal because the appeal was not taken to the district court specified by statute. The two justices distinguished Boyko on the ground that “no motion for a transfer of jurisdiction” was made in that case, and concluded the trial court properly changed the venue of the appeal under N.D.C.C. § 28-04-07 because the “ends of justice” would be promoted. Hayden, 447 N.W.2d at 493, 494 (Erickstad, C.J., and Meschke, J., concurring). On the merits, the two justices affirmed the district court judgment upholding the Bureau’s denial of benefits.

One justice dissented, reasoning that because the case did not involve the original jurisdiction of the district court, but involved appellate jurisdiction conferred by statute, N.D.C.C. § 28-04-07 was inapplicable and did not “confer[ ] jurisdiction on the district court for Williams County to transfer this appeal to the district court for McKenzie County, after the thirty-day time within which to appeal had expired.” Hayden, 447 N.W.2d at 500 (Levine, J., dissenting). Construing the general venue statute as the two justices in the lead opinion had, according to the dissenting justice, “injectfs] into our law needless confusion and uncertainty.” Hayden, 447 N.W.2d at 501 (Levine, J., dissenting).

The two remaining justices concurred specially in the lead opinion, but only in the portions discussing and affirming the case on the merits. On the jurisdictional issue, however, the concurring justices agreed with the dissent that the general venue statute, N.D.C.C. § 28-04-07, does not apply to appeals from Bureau decisions. Stating that the lead opinion had misinterpreted Boyko, the concurring justices expressed their “fear that in the future reliance upon the discretion of the trial court to forward the appeal to the proper county will produce varied results which may be uneven at best and will create uncertainty rather than preciseness in the appeal process.” Hayden, 447 N.W.2d at 500 (VandeWalle, J., and Gierke, J., concurring specially). The concurring justices joined only in the result “because it leaves in effect the judgment of the district court and thereby the decision of the Bureau ... [which] is the same result that would have been achieved if the appeal to the district court had been dismissed for lack of jurisdiction.” Hayden, 447 N.W.2d at 500 (VandeWalle, J., and Gierke, J., concurring specially).

A majority of the supreme court is necessary to pronounce a decision. N.D. Const. Art. VI § 4. The majority of the court in Hayden adhered to Boyko and squarely held that the general change of venue statute, N.D.C.C. § 28-04-07, does not grant a district court authority to transfer an appeal from a Bureau decision to the proper district court. The Hayden decision is of no benefit to Basin in this ease.

Nor are we persuaded that Boyko is distinguishable because the appealing party here is the employer rather than the claimant. Section 65-10-01, N.D.C.C., provides in relevant part that “the claimant may appeal to the district court of the county wherein the injury was inflicted or of the county in which the claimant resides. An employer may also appeal a decision of the bureau in any injury case in the manner prescribed in this section. ... Any appeal under this section shall be taken in the manner provided in chapter 28-32.” [Emphasis added]. Words in the code are generally construed according to their plain, ordinary, and commonly understood meaning. State ex rel. Sprynczynatyk v. Mills, 523 N.W.2d 537 (N.D.1994). “Manner” is commonly defined as “[a] way, mode, method of doing anything, or mode of proceeding in any case or situation.” Black’s Law Dictionary, at p. 963 (6th. ed.1990). The phrases “in the manner” and “in the same manner” have been interpreted as incorporating the procedures required for effectuating an appeal or other statutorily described acts. See Szoboszlay v. Glessner, 233 Kan. 475, 664 P.2d 1327 (1983), and eases collected therein. Consequently, under N.D.C.C. § 65-10-01, an employer may appeal a Bureau decision the same way in which a claimant may appeal — to the district court of the county where the injury occurred or of the county where the claimant resides.

Even if we agreed with Basin that N.D.C.C. § 65-10-01 is ambiguous because it provides an employer “may” appeal a Bureau decision in the manner prescribed, therefore allowing a rational construction enabling the employer an additional option of appealing to the district court of the county where the hearing was held under N.D.C.C. § 28-32-15(3)(a), we would decline to adopt that construction of the statute.

Although the word “may” ordinarily creates a directory, non-mandatory duty, we will construe it as “must” where the context or subject matter compels that construction. North Dakota Com’n on Medical Competency v. Racek, 527 N.W.2d 262 (N.D.1995). Ambiguities in jurisdictional requirements of a statute should be construed in favor of the clear purpose of the law. Erickson v. Director, North Dakota Dept. of Transp., 507 N.W.2d 537 (N.D.1993). The purpose of the workers compensation law is to provide workers sure and certain relief regardless of questions of fault in exchange for their employers’ immunity from injured employees’ claims for relief. See Linnertz v. North Dakota Workers’ Compensation Bureau, 502 N.W.2d 528 (N.D.1993); N.D.C.C. § 65-01-01. We therefore construe the law governing workers compensation liberally in favor of injured workers to promote their wellbeing. Tooley v. Aim, 515 N.W.2d 137 (N.D.1994).¹ Construing N.D.C.C. § 65-10-01 to make it easier for employers to appeal from a Bureau decision than it is for claimants would conflict with the workers compensation law’s stated purpose and turn the rule of liberal construction in favor of injured workers on its head. Furthermore, insofar as it might create constitutional questions of equal protection, we will construe the statute to avoid any constitutional conflict. See Walker v. Schneider, 477 N.W.2d 167 (N.D.1991).

The district court also noted that “practical considerations” favored denial of Lemer’s motion to dismiss. Because both Mercer and Burleigh counties are in the South Central Judicial District, the court said “a change of venue is not necessary as the appeal was venued properly in the first place because the appeal was filed ‘... in the district court of the county in which the claimant resides’ and it makes no difference what county name is on the heading.” [Emphasis in original]. This concept appears to conflict with the current approach of the venue statutes. See N.D.C.C. Chapter 28-04. Furthermore, while the district court’s observation may have some utility from a practical standpoint, the language of N.D.C.C. § 65-10-01 does not permit such a construction. If changes in the law are desired to advance the objective of permitting claims to be decided on their merits with the least procedural obstructions, those changes must be made by the legislature. See Cahoon v. N.D. Workers Comp. Bureau, 482 N.W.2d 865, 867 n. 2 (N.D.1992).

We also disagree with Basin’s argument that the district court, in any event, properly enlarged the time to file the notice of appeal under N.D.R.Civ.P. 6(b). Rule 6(b) begins with the proviso that “[w]hen by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, ...” Courts construing the federal rule, upon which our rule is based, and similar state procedural rules, have held Rule 6(b) is limited to matters that arise under the rules of civil procedure or by order of the court, and not to periods of time which are definitely fixed by statute. See, e.g., United States v. Easement and Right-of-Way, 386 F.2d 769 (6th Cir.1967), cert. denied sub nom. Skaggs v. United States, 390 U.S. 947, 88 S.Ct. 1034, 19 L.Ed.2d 1136 (1968); Mathieson v. Hubler, 92 N.M. 381, 588 P.2d 1056 (Ct.App.1978); 4A Wright & Miller, Federal Practice and Procedure Civil 2d § 1165 (1987). Rule 6(b) did not authorize the district court to enlarge the 30-day time limit to take an appeal under N.D.C.C. § 28-32-15(1).

Because the district court had no subject matter jurisdiction in this case, we reverse the judgment.

SANDSTROM, LEVINE and NEUMANN, JJ., concur.

1 . The legislature amended N.D.C.C. § 65-01-01 effective August 1, 1995, and added the following language: "A civil action or civil claim arising under this title, which is subject to judicial review, must be reviewed solely on the merits of the action or claim. This title may not be construed liberally on behalf of any party to the action or claim.” 1995 N.D. Sess. Laws Ch. 605 § 1. Because the amendment was not effective when Basin filed the appeal and the trial court denied the motion to dismiss, it does not apply in this case. But even if we applied the new law, construing N.D.C.C. § 65-10-01 to make it easier for employers to appeal than it is for claimants would constitute a liberal construction on behalf of the employer in violation of the statutory amendment.