State v. Haskell1/30/2001
Petition for Supervisory Writ.
SUPERVISORY WRIT GRANTED.
Opinion of the Court by Maring, Justice.
[ ] The State of North Dakota, by the North Dakota Department of Corrections and Rehabilitation ("the State"), has petitioned this Court for a supervisory writ directing the trial court to vacate its June 19, 2000, order denying the State's motion to dismiss Julie Smith's complaint for lack of subject matter jurisdiction. We conclude this is an appropriate case in which to exercise our supervisory jurisdiction, and we grant the petition.
[ ] Julie Smith ("Smith") sued the State, alleging she had been wrongfully terminated as an addiction counselor by the State, in violation of the North Dakota Human Rights Act, ch. 14-02.4, N.D.C.C., and the Americans With Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq. ("ADA"). The State moved to dismiss the complaint, alleging the trial court lacked subject matter jurisdiction because Smith "failed to file a notice of claim as required by N.D.C.C. § 32-12.2-04(1) and because the State of North Dakota cannot be sued by a private party litigant under the ADA without the State's express consent."
[ ] On June 19, 2000, the trial court issued an order denying the State's motion, holding "the definitions contained in § 14-02.4-02(5) and (11), N.D.C.C. make it clear that the State is subject to an action under the chapter; and § 14-02.4-19, N.D.C.C. governs the time and manner of bringing such an action." The State petitioned for a supervisory writ directing the trial court to vacate its order.
[ ] This Court's authority to issue supervisory writs under N.D. Const. art. VI, § 2, and N.D.C.C. § 27-02-04 is a discretionary authority we exercise on a case-by-case basis, rarely and cautiously, and only to rectify errors and prevent injustice in extraordinary cases in which there is no adequate alternative remedy. E.g., Roe v. Rothe-Seeger, 2000 ND 63, 5, 608 N.W.2d 289; Dimond v. State Bd. of Higher Educ., 1999 ND 228, 19, 603 N.W.2d 66; State ex rel. Heitkamp v. Hagerty, 1998 ND 122, 6, 580 N.W.2d 139; Traynor v. Leclerc, 1997 ND 47, 6, 561 N.W.2d 644; North Dakota Comm'n on Med. Competency v. Racek, 527 N.W.2d 262, 264 (N.D. 1995). Here, the case is extraordinary, the trial court erred, and the State has no adequate alternative remedy, because the denial of a motion to dismiss is not appealable. We, therefore, conclude this is an appropriate case in which to exercise our supervisory jurisdiction.
[ ] Section 32-12.2-04, N.D.C.C., provides, in part:
1. A person bringing a claim against the state or a state employee for an injury shall present to the director of the office of management and budget within one hundred eighty days after the alleged injury is discovered or reasonably should have been discovered a written notice stating the time, place, and circumstances of the injury, the names of any state employees known to be involved, and the amount of compensation or other relief demanded. . . .
. A person bringing a legal action against the state or a state employee for a claim shall deliver a copy of the summons, complaint, or other legal pleading in which the claim is first asserted in the action to the director of the office of management and budget at the time the summons, complaint, or other legal pleading is served in the action. This provision is in addition to any applicable rule of civil procedure.
Section 32-12.2-01, N.D.C.C., provides, in part:
As used in this chapter, unless the context otherwise requires:
. "Claim" means any claim for money damages brought against the state or a state employee for an
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