Happy Day Day Care Center v. Social Service Board of North Dakota

313 N.W.2d 768, 1981 N.D. LEXIS 367
CourtNorth Dakota Supreme Court
DecidedDecember 22, 1981
DocketCiv. 10023
StatusPublished
Cited by15 cases

This text of 313 N.W.2d 768 (Happy Day Day Care Center v. Social Service Board of North Dakota) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Happy Day Day Care Center v. Social Service Board of North Dakota, 313 N.W.2d 768, 1981 N.D. LEXIS 367 (N.D. 1981).

Opinions

SAND, Justice.

Happy Day Day Care Center [Center] appealed from a district court judgment which dismissed for lack of subject matter jurisdiction its appeal from a decision of the [769]*769Social Service Board of North Dakota [Board] which upheld a recommendation by the appeals referee supervisor for the Board, Thomas Dahle, to revoke the Center’s license to operate a day care center.

Following complaints from parents as to child abuse and neglect at the Center, the Ward County Social Service Board, in cooperation with the Minot area Social Service Center, investigated child care practices in the Center. At the conclusion of the investigation, a notice of intent to revoke the day care license dated 12 Mar. 1980 was issued under the signature of the day care supervisor from the Board, Shirley Dyksh-oom.

The Center filed a request for an administrative hearing dated 17 Mar. 1980 and a four-day hearing was held before referee Dahle at the area social service center in Minot, North Dakota. The dates of the hearing were 3 Apr. 1980, 8 May 1980, 9 May 1980, and 12 May 1980. During the course of the hearing exhibits and oral testimony were introduced into evidence.

On the last day of the hearing in Minot and after all the testimony and exhibits were introduced, referee Dahle invited counsel for the parties to submit written arguments on law and fact to assist him in preparing a recommendation to present to the Board. After receiving the written arguments, referee Dahle recommended that the Board affirm and uphold the action of the supervisor of day care services and revoke the license to operate the Center. The Board initially considered Dahle’s recommendation (proposed finding of fact and recommended decision) at their 22 Aug. 1980 meeting in Bismarck, N. D. The record reflects that the Board did not have an opportunity to examine the proposed findings as against the record because the findings were received by some members of the Board the day before the meeting. The record suggests that the Board was particularly concerned with the wording of the findings and that the findings were supported in the record so as to withstand review by a court. The Board deferred a decision until its meeting on 18 Sept. 1980 in Bismarck and accepted referee Dahle’s recommendation in a decision dated 23 Sept. 1980 and affirmed his recommendation to revoke the license of the Center.

The Center appealed the Board’s decision to the district court of Burleigh County. The Board moved to dismiss the appeal for lack of subject matter jurisdiction because it was filed in the district court in Burleigh County rather than the district court in Ward County where the “hearing” was held. The motion was granted and order of dismissal and judgment were issued. The Center filed motions for relief from the order and judgment. The motions were denied and the Center appealed to this Court.

The dispositive issue of this appeal is whether or not the district court of Bur-leigh County had subject matter jurisdiction of the appeal from the Board’s decision.

Section 28-32-15, North Dakota Century Code, provides, in part, as follows:

“Any party to any proceeding heard by an administrative agency, except in cases where the decision of the administrative agency is declared final by any other statute, may appeal from such decision within thirty days after notice thereof has been given, or if a rehearing has been requested as provided herein and denied, within thirty days after notice of such denial has been mailed to him. Such appeal may be taken to the district court designated by law, and if none is designated, then to the district court of the county wherein the hearing or a part thereof was held . . . [Emphasis added.]

The parties agree that no district court is designated by law to hear appeals from decisions by the Board.

The Center asserts that the administrative tribunal took no final action until the notice of decision was issued in Bismarck on 23 Sept. 1980. The Center further asserts that an element of a common law “hearing” was the right to be heard upon the force of the evidence deduced by both sides and [770]*770upon the applicable law,1 and that if this right is denied, due process has not been observed. Based on the foregoing, the Center contends that the “hearing or a part thereof” was held in Burleigh County and the appeal to the district court in Burleigh County was proper.

The Board asserts that the term “hearing” contemplates taking of testimony and evidence and that because this was done in Ward County, in Minot, the district court in Ward County was the proper court to hear the appeal and the district court of Burleigh County properly dismissed the appeal for lack of subject matter jurisdiction.

In Wagner v. North Dakota Board of Barber Examiners, 186 N.W.2d 570 (N.D.1971), an appeal was taken to the district court in Burleigh County from an order entered after a hearing before the barber board in Cass County. We held that the district court of Burleigh County was without jurisdiction to hear the appeal and also made the following statements:

“On an appeal from a determination of an administrative agency the district court does not exercise original jurisdiction vested in it by the constitution. It exercises appellate jurisdiction conferred upon it by statute. [Citations omitted.] In order for the district court to acquire jurisdiction of an appeal from an administrative agency, the appeal must be taken to ‘the district court designated by law, and if none is designated, then to the district court of the county wherein the hearing or a part thereof was held.’ [Citation omitted.] It is this territorial jurisdiction which gives the court the power to act on the subject matter of the action.” Wagner v. North Dakota Board of Barber Examiners at 572.

See also, City of Casselton v. North Dakota Public Service Commission, 307 N.W.2d 849 (N.D.1981).

Although these cases are helpful, they are not dispositive of whether or not the deliberations of the Board, made in consideration of referee Dahle’s recommendation, constitute a “hearing or part thereof” within the meaning of NDCC § ¾8-32-15. We must also consider our rules of statutory construction to determine the proper interpretation of the word “hearing.”

The primary purpose of statutory construction is to ascertain the intent of the Legislature. State v. Moore, 286 N.W.2d 274 (N.D.1979); Hughes v. State Farm Mutual Automobile Insurance Co., 236 N.W.2d 870 (N.D.1975). A statute must be considered as a whole with a view toward arriving at the intent of the legislature. Apple Creek Township v. City of Bismarck, 271 N.W.2d 583 (N.D.1978); Horst v. Guy, 219 N.W.2d 153 (N.D.1974). In construing a statutory provision a strong effort must be made to give meaning to every word, clause, and sentence in the enactment Brenna v. Hjelle,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Friends of the Rail Bridge v. N.D. Dep't of Water Resources
2024 ND 22 (North Dakota Supreme Court, 2024)
Gale v. North Dakota Board of Podiatric Medicine
1997 ND 83 (North Dakota Supreme Court, 1997)
Cladding Tech., Inc. v. State ex rel. Clayburgh
1997 ND 84 (North Dakota Supreme Court, 1997)
Basin Elec. Power Co-Op. v. ND WORKERS COMP. BUREAU
541 N.W.2d 685 (North Dakota Supreme Court, 1996)
Aggie Investments GP v. Public Service Commission of North Dakota
451 N.W.2d 141 (North Dakota Supreme Court, 1990)
Hayden v. North Dakota Workers Compensation Bureau
447 N.W.2d 489 (North Dakota Supreme Court, 1989)
Boyko v. North Dakota Workmen's Compensation Bureau
409 N.W.2d 638 (North Dakota Supreme Court, 1987)
Investment Rarities, Inc. v. Bottineau County Water Resource District
396 N.W.2d 746 (North Dakota Supreme Court, 1986)
Prosper Energy Corp. v. Industrial Commission
359 N.W.2d 860 (North Dakota Supreme Court, 1984)
Happy Day Day Care Center v. Social Service Board of North Dakota
313 N.W.2d 768 (North Dakota Supreme Court, 1981)

Cite This Page — Counsel Stack

Bluebook (online)
313 N.W.2d 768, 1981 N.D. LEXIS 367, Counsel Stack Legal Research, https://law.counselstack.com/opinion/happy-day-day-care-center-v-social-service-board-of-north-dakota-nd-1981.