Saefke v. Stenehjem

Summary

The Supreme Court of North Dakota affirmed dismissal of Frederick Saefke's claims challenging the Attorney General's opinions concerning Burleigh County donations to the Bismarck-Mandan Symphony Orchestra. The court held that Saefke's claims against the Attorney General did not present a justiciable controversy and that the state's attorney acted within his prosecutorial discretion. The court dismissed the appeal regarding appointment of a private attorney under N.D.C.C. § 11-16-06 and declined to issue a supervisory writ.

Holdings

1. A challenge to the correctness of the attorney general's opinion did not present a justiciable controversy because there was no present actual case or controversy concerning the county commission's authority to make the donations; deciding the issue would produce an advisory opinion.
2. The state's attorney's decisions not to pursue additional civil recovery and to refer potential criminal prosecution to the attorney general were discretionary decisions, and the district court did not err in refusing to issue a writ of mandamus.
3. An order refusing to appoint a private attorney under N.D.C.C. § 11-16-06 was not appealable under N.D.C.C. § 28-27-02; the attempted appeal was therefore considered together with the alternative petition for a supervisory writ.
4. The Supreme Court declined to issue a supervisory writ because the record did not establish a need to correct an error or prevent an injustice, and Riha's discretionary decisions were supported by a rational process.

Questions Presented

1. Whether Saefke's challenge to the attorney general's formal opinion presented a justiciable controversy supporting declaratory relief.
2. Whether the state's attorney had a mandatory duty to initiate civil or criminal proceedings against the county commissioners and whether mandamus or appointment of a private attorney was warranted.
3. Whether the district court's refusal to appoint a private attorney under N.D.C.C. § 11-16-06 was appealable.
4. Whether the Supreme Court should exercise supervisory jurisdiction and issue a supervisory writ.

Disposition

affirmed