Burr v. N.D. State Board of Dental Examiners

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
FEBRUARY 18, 2021
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2021 ND 31Rebecca N. Burr, Plaintiff and Appellant
v.
North Dakota State Board
of Dental Examiners, Defendant and Appellee
No. 20200219
Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable Bobbi Brown Weiler, Judge.
AFFIRMED.
Opinion of the Court by Tufte, Justice.
Rebecca N. Burr, self-represented, Las Vegas, Nevada, plaintiff and appellant;
submitted on brief.
Matthew A. Sagsveen, Solicitor General, and Carl M. Karpinski, Assistant
Attorney General, Office of Attorney General, Bismarck, North Dakota, for
defendant and appellee; submitted on brief.
Burr v. N.D. State Board of Dental Examiners
No. 20200219
Tufte, Justice.
[¶1] Rebecca Burr appeals from a district court judgment dismissing her
complaint against the North Dakota Board of Dental Examiners. On appeal,
Burr argues the district court erred in concluding that the Board was entitled
to discretionary immunity and in dismissing her complaint for failure to state
a claim upon which relief can be granted. We affirm.
I
[¶2] In mid-2019, Burr filed a complaint with the North Dakota Board of
Dental Examiners alleging a dentist previously licensed by the Board
committed aggravated assault and permanently maimed her in 1989. Her
original complaint to the Board stated that she had reached out to the Board
in 1996 by sending a letter outlining some of the same complaints that were in
the 2019 formal complaint. The Board responded to Burr’s complaint with a
formal letter stating that it had determined “there is not a reasonable basis to
believe that a violation of NDCC 43-28-18 or the rules promulgated by the
Board occurred” and that the matter was dismissed without any action having
been taken. In January 2020, Burr served the Office of Management and
Budget (“OMB”) a notice of claim in the amount of $250,000, alleging that the
Board failed to satisfy its legal obligation to investigate her claim “and that the
failure to do so caused Ms. Burr further harm, pain and suffering.” In February
2020, OMB notified Burr by letter that her claim had been denied. Burr did
not pursue an administrative appeal of that decision.
[¶3] Burr then commenced this action by serving the Board and OMB with a
summons and complaint in May 2020. Burr argues that the Board had a
statutory duty to investigate her claims, that it breached this duty and acted
with gross negligence in failing to investigate her claims, and that this breach
of duty caused her harm. The Board subsequently moved for dismissal of the
complaint under N.D.R.Civ.P. 12(b) for lack of jurisdiction and failure to state
a claim upon which relief can be granted on the grounds that the suit was
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barred by quasi-judicial and discretionary immunity. The district court
granted the Board’s motion to dismiss, finding it lacked jurisdiction, and
concluding that the Board was entitled to both quasi-judicial immunity and
discretionary immunity.
II
[¶4] In Ramirez v. Walmart we explained:
A motion to dismiss under N.D.R.Civ.P. 12(b)(6) tests the
legal sufficiency of the claim presented in the complaint. On
appeal, we construe the complaint in the light most favorable to
the plaintiff and accept as true the well-pleaded allegations in the
complaint. This Court will affirm a judgment dismissing a
complaint for failure to state a claim under N.D.R.Civ.P. 12(b)(6)
if we cannot discern a potential for proof to support it. We review
a district court’s decision granting a motion to dismiss under
N.D.R.Civ.P. 12(b)(6) de novo.
2018 ND 179, ¶ 7, 915 N.W.2d 674 (cleaned up).
III
A
[¶5] Burr argues the district court erred when it concluded it lacked subject
matter jurisdiction because she did not serve OMB within 180 days of her
having notice of the alleged injury. When a court’s subject matter jurisdiction
is contested, the court must address that threshold issue before proceeding to
the merits. Franciere v. City of Mandan, 2019 ND 233, ¶ 12, 932 N.W.2d 907.
For the district court to have subject matter jurisdiction, Burr was required to
serve notice of her claim on OMB within 180 days of the date she discovered or
reasonably should have discovered her injury. N.D.C.C. § 32-12.2-04(1). The
district court found the injury asserted by Burr was in 1989 when she was
allegedly maimed and assaulted while undergoing dental work. The district
court further found that even if the court accepted that Burr did not have full
memory of the injury until July 2019, her notice of claim to OMB on January
31, 2020, was beyond the 180 days provided in statute.
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[¶6] Although the underlying dental services are featured prominently in
Burr’s complaint and argument, her claim is deceptively narrow, which led the
district court to an erroneous determination of the date of injury. Burr’s claim
in this suit is that the Board failed in its mandatory duty to investigate her
claim, to notify the accused dentist, and to demand a response. Her claimed
injuries in this suit include: “It is alleged that the Defendant State Board’s
refusal to conduct any investigation whatsoever was synonymous with telling
Plaintiff that her injury was insignificant, meaningless, and that her life had
little or no value, causing her ongoing harm and trauma.” The Board denied
Burr’s complaint without investigation in October 2019. Because Burr’s notice
of claim was provided to OMB in January 2020, the district court was not
deprived of jurisdiction by N.D.C.C. § 32-12.2-04.
B
[¶7] Burr argues the district court erred in determining the Board was
entitled to discretionary immunity. The state and state employees are immune
from:
A claim based upon a decision to exercise or perform or a failure to
exercise or perform a discretionary function or duty on the part of
the state or its employees, regardless of whether the discretion
involved is abused or whether the statute, order, rule, or resolution
under which the discretionary function or duty is performed is
valid or invalid. Discretionary acts include acts, errors, or
omissions in the design of any public project but do not include the
drafting of plans and specifications that are provided to a
contractor to construct a public project.
N.D.C.C. § 32-12.2-02(3)(b). “The test we apply when determining
governmental liability and discretionary acts distinguishes between immune
discretionary acts and non-immune ministerial acts.” The Perry Ctr., Inc. v.
Heitkamp, 1998 ND 78, ¶ 29, 576 N.W.2d 505 (citing Olson v. City of Garrison,
539 N.W.2d 663, 665 n.3 (N.D. 1995)). “Thus, the discretionary function
exception will not apply when a . . . statute, regulation, or policy specifically
prescribes a course of action for an employee to follow because ‘the employee
has no rightful option but to adhere to the directive,’ and because ‘the
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government has restricted its own discretion’ through the directive.” Olson,
539 N.W.2d at 666 (citation omitted). “Moreover, the directive must be specific
and mandatory as opposed to a general statutory duty.” Id. (citation omitted).
“In examining the nature of the challenged conduct, [the first inquiry a court
must consider is] whether the action is a matter of choice for the acting
employee.” Id. (citing Berkovitz v. United States, 486 U.S. 531, 536 (1988)).
[¶8] Burr argues that the Board had two statutory requirements it refused to
follow. First she argues that the “Board refused to follow the administrative
act requirement of scheduling a preliminary hearing . . . .” For this argument,
Burr cites to N.D.C.C. § 28-32-21, which provides the procedures for
adjudicative proceedings under the Administrative Agencies Practice Act.
Section 43-28-18.2, N.D.C.C., however, controls the procedure for initiation of
disciplinary complaints against dentists. “The board shall determine if there is
a reasonable basis to believe the dentist engaged in conduct identified as
grounds for disciplinary action . . . . If the board determines there is a
reasonable basis to believe, the board shall proceed with a disciplinary action
in accordance with chapter 28-32.” N.D.C.C. § 43-28-18.2(5). The Board
exercises an element of choice and judgment in determining whether there is
a reasonable basis to believe the dentist engaged in certain conduct and, with
that, whether to proceed with disciplinary action under chapter 28-32.
[¶9] “Even if ‘the challenged conduct involves an element of judgment [or
choice], [the second inquiry a court must consider is] whether that judgment
[or choice] is of the kind that the discretionary function exception was designed
to shield.’” Olson, 539 N.W.2d at 667 (citing Berkovitz, 486 U.S. at 536). “The
focus of the inquiry is not on the [government’s] subjective intent in exercising
the discretion conferred . . . but on the nature of the actions taken and on
whether they are susceptible to policy analysis.” Id. (quoting United States v.
Gaubert, 499 U.S. 315, 325 (1991)). “The purpose of the discretionary function
exception is to ‘prevent judicial “second-guessing” of legislative and
administrative decisions grounded in social, economic, and political policy
through the medium of an action in tort.’” Id. (citing Berkovitz, 486 U.S. at 536-
37). “This inquiry is more difficult to answer because it directly implicates the
separation of powers concerns.” Id.
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[¶10] The Board is an administrative unit of the executive branch of state
government, and its members are appointed by the Governor. N.D.C.C. §§ 28-
32-01(2); 43-28-03. The Board has a choice in issuing, suspending, revoking,
limiting, canceling, restricting, and reinstating licenses to practice dentistry
upon any grounds authorized by chapter 28-32. N.D.C.C. § 43-28-06(3). The
Board has a choice whether to proceed with disciplinary actions under chapter
28-32 against a former dentist. “This discretionary-function exception respects
the constitutional separation of powers by preventing judicial interference
with policymaking of the executive and legislative branches.” Olson, 539
N.W.2d at 669 (Meschke, Justice, concurring). The Board, as an administrative
unit of the executive branch, is responsible for making decisions regarding the
licensing and discipline of dentists in this state based on social, economic, and
political policy. The district court correctly concluded that the Board was
entitled to discretionary immunity for the decision not to proceed with a
disciplinary action under chapter 28-32 and, thus, not to hold a hearing.
[¶11] Burr also argues the Board is required to send a copy of her complaint to
the accused former dentist and require him to respond, and to create an
administrative record that would be the basis for any appeal from the Board’s
decision. Section 43-28-18.2(1), N.D.C.C., states, “A person may file a written
and signed complaint with the board alleging a dentist engaged in conduct
identified as grounds for disciplinary action under section 43-28-18.” A
“dentist” is defined by section 43-28-01(5), N.D.C.C., as “an individual who has
a license to practice in this state and who holds a valid biennial certificate of
registration.” At the time that Burr filed her complaint with the Board, Dr.
Vogel was retired and was not a licensed dentist. Whatever requirements the
Board may have under chapter 43-28 with regard to a licensed dentist, there
are no requirements related to a person no longer licensed to be a dentist.
Further, the choice by the Board whether to investigate a complaint against a
person no longer licensed to be a dentist is one based in social and economic
policy. The district court correctly concluded the Board was entitled to
discretionary immunity for the choice not to investigate Burr’s complaint.
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IV
[¶12] We affirm.
[¶13] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
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