FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
AUGUST 2, 2023
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2023 ND 149
Robert Martinie Goff, Appellant
v.
William Panos, Director,
Department of Transportation, Appellee
No. 20230115
Appeal from the District Court of Cass County, East Central Judicial District,
the Honorable Steven E. McCullough, Judge.
REVERSED AND REMANDED.
Opinion of the Court by Crothers, Justice, in which Chief Justice Jensen and
Justices Tufte and Bahr joined. Justice McEvers filed a dissenting opinion.
Drew J. Hushka (argued) and Mark A. Friese (on brief), Fargo, ND, for
appellant.
Michael T. Pitcher, Assistant Attorney General, Bismarck, ND, for appellee.
Goff v. NDDOT
No. 20230115
Crothers, Justice.
[¶1] Robert Goff appeals from an order denying his request for costs and
attorney’s fees relating to the Department of Transportation’s suspension of
Goff ’s driving privileges. We reverse and remand, concluding the district court
abused its discretion in deciding the Department’s proceeding against Goff was
substantially justified.
I
[¶2] In December 2021, Fargo police officers arrested Goff in an apartment
parking lot for being in actual physical control of a vehicle while under the
influence of intoxicating liquor. A driveway used to access the parking lot
included a sign reading “private property, private drive.”
[¶3] Goff requested an administrative hearing, arguing an ordinance, Fargo
Municipal Code § 8-1011, limited the public’s right to access property marked
as private without written permission from the owner. The owner of the
property, John Goff, testified the parking lot is for tenant parking only. John
Goff testified that deliverers and visitors are prohibited from going past the
sign to access the parking lot.
[¶4] The hearing officer concluded the ordinance prohibited the public from
parking in the private parking lot, but did not limit the public’s right to access
the lot. The hearing officer found the public had a right of access to the private
lot for vehicular use. The Department suspended Goff ’s driving privileges for
91 days, and the district court affirmed.
[¶5] This Court reversed, concluding the hearing officer misinterpreted the
ordinance. Goff v. Panos, 2022 ND 186, ¶ 12,
981 N.W.2d 909. We concluded
the ordinance provides that without written permission one may not drive or
park upon property marked as “private property.” Id. at ¶ 15. We concluded the
hearing officer’s finding that the public had a right of access to the private
parking lot for vehicular use was not supported by a preponderance of the
1
evidence. Id. We remanded for a determination of whether the Department
acted without substantial justification requiring an award of costs and
attorney’s fees to Goff under N.D.C.C. § 28-32-50(1). Goff, at ¶ 16.
[¶6] On remand, Goff argued he was entitled to costs and attorney’s fees
because the Department’s action against him was not substantially justified.
Goff claimed a reasonable person would not believe the public had a right to
access the private parking lot in light of signage on the property and Fargo
Municipal Code § 8-1011. The district court decided the Department acted with
substantial justification, and denied Goff ’s request for costs and attorney’s fees.
II
[¶7] Goff argues the district court abused its discretion in denying his request
for attorney’s fees under N.D.C.C. § 28-32-50(1). Goff asserts the Department
lacked substantial justification for its decision suspending his driving
privileges because no reasonable person could have concluded the hearing
officer’s findings were supported by the record.
[¶8] Section 28-32-50(1), N.D.C.C., provides:
“In any civil judicial proceeding involving as adverse parties an
administrative agency and a party not an administrative agency
or an agent of an administrative agency, the court must award the
party not an administrative agency reasonable attorney’s fees and
costs if the court finds in favor of that party and, in the case of a
final agency order, determines that the administrative agency
acted without substantial justification.”
Whether the agency acted with substantial justification is discretionary with
the district court, and this Court applies an abuse of discretion standard on
appeal. Goff, 2022 ND 186, ¶ 16. A court abuses its discretion if it acts in an
arbitrary, unreasonable, or unconscionable manner, if it misinterprets or
misapplies the law, or if its decision is not the product of a rational mental
process leading to a reasoned determination. N. Dakota Dep’t of Transp. v.
Schmitz,
2018 ND 113, ¶ 5,
910 N.W.2d 874.
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[¶9] “[S]ubstantially justified means justified in substance or in the main—
that is, justified to a degree that could satisfy a reasonable person.”
Lamplighter Lounge, Inc. v. State ex rel. Heitkamp, 523 N.W.2d 73, 75 (N.D.
1994) (cleaned up). An incorrect position may be justified if a reasonable person
could think that it has a reasonable basis in law and fact.
Id. “Substantial
justification represents a middle ground between the automatic award of fees
to the prevailing party on one side, and awarding fees only when a position is
frivolous or completely without merit on the other.”
Id.
[¶10] If a district court agrees an agency’s legal position was correct, it is a
strong indicator that “a reasonable person could think the position is correct,
and the position has a reasonable basis in law and fact.” Tedford v. Workforce
Safety and Ins.,
2007 ND 142, ¶ 27,
738 N.W.2d 29. Acceptance of an agency’s
position at earlier stages is some evidence of substantial justification, but it is
not dispositive and a separate analysis of the reasonableness of the agency’s
position is required.
Id.
[¶11] Here, the district court concluded the Department acted with substantial
justification in suspending Goff ’s driving privileges:
“Neither party here disputes that this case presented a close
question on an unsettled area of law. More importantly, the
hearing officer did not believe that the law was clear, given the
North Dakota Supreme Court’s recent decision in Suelzle v. North
Dakota Dep’t of Transp., 2020 ND 206, ¶ 14,
949 N.W.2d 862. In
the end, however, the hearing officer found that Goff ’s vehicle was
in a place where the public had a right of access for vehicular use
and believed a reasonable basis in law and fact existed to uphold
the arrest. The Court having been similarly convinced by the
reasonableness of the Department’s position upheld the decision.
See Tedford, 2007 ND 142, ¶ 28,
738 N.W.2d 29 (explaining that a
‘strong indicator’ that an agency’s position was substantially
justified is that it convinced a district court that its legal position
was correct). Although the Department was ultimately incorrect,
it nonetheless made good faith and facially reasonable arguments
based on facts that were supported by case law and, therefore, it
acted with substantial justification.”
3
[¶12] In Goff, 2022 ND 186, ¶¶ 11-15, the hearing officer erred in fact and in
law in deciding to suspend Goff ’s driving privileges. “The hearing officer
misinterpreted this ordinance as prohibiting the public only from parking in
the parking lot.” Id. at ¶ 12. We held the unambiguous ordinance, along with
the private property sign, “establishes that the public has no right of access to
this particular parking lot for vehicular use” without written permission. Id.
at ¶ 15. We also concluded John Goff ’s “uncontradicted testimony does not
support a finding that there is routine use of the parking lot by the public not
specifically invited to use the property.” Id. at ¶ 14.
[¶13] The district court concluded the Department acted with substantial
justification because it made reasonable arguments supporting the suspension
of Goff ’s driving privileges. However, the Department did not defend the
hearing officer’s factual findings or interpretation of Fargo Municipal Code §
8-1011. Instead, it argued the ordinance may not apply to the private parking
lot because the sign marking the property was not sufficiently displayed.
[¶14] On the basis of the sign, the ordinance, and John Goff ’s testimony, a
reasonable person could only conclude the public did not have access to the
parking lot. Because a reasonable person could not find a reasonable basis for
the Department’s decision, the district court abused its discretion in concluding
the Department acted with substantial justification. Upon a determination the
Department acted without substantial justification, “the court must award the
party not an administrative agency reasonable attorney’s fees and costs.”
N.D.C.C. § 28-32-50(1). We reverse the court’s order and remand for a
determination of Goff ’s reasonable attorney’s fees and costs.
III
[¶15] We have considered the parties’ remaining arguments and conclude they
are either without merit or not necessary to our decision. The order is reversed
and remanded.
[¶16] Jon J. Jensen, C.J.
Daniel J. Crothers
Jerod E. Tufte
Douglas A. Bahr
4
McEvers, Justice, dissenting.
[¶17] I respectfully dissent. As noted by the majority, the district court
concluded the Department acted with substantial justification. Majority, at ¶
11. The court noted in its decision that neither party disputed the case
presented a close question on an unsettled area of law, and the application of
a recent case. I disagree the court abused its discretion in concluding the
Department acted with substantial justification based on its reliance on
Tedford v. Workforce Safety & Ins., 2007 ND 142,
738 N.W.2d 29.
[¶18] In Tedford, we noted in determining substantial justification:
The fact that WSI convinced one district judge that its legal
position was correct is a strong indicator that “a reasonable person
could think the position is correct, and the position has a
reasonable basis in law and fact.” Rojas [v. Workforce Safety &
Ins.], 2006 ND 221, ¶ 17,
723 N.W.2d 403. Federal courts
construing the EAJA have recognized that acceptance of the
government’s position by another federal judge, even if the position
is ultimately found to be incorrect, is persuasive evidence that the
position was substantially justified. See, e.g., Herman v. Schwent,
177 F.3d 1063, 1065 (8th Cir. 1999); Friends of Boundary Waters
Wilderness v. Thomas, 53 F.3d 881, 885 (8th Cir. 1995); Sierra Club
v. Secretary of Army, 820 F.2d 513, 519 (1st Cir. 1987). The court
in Herman noted that “the Government’s ability to convince federal
judges of the reasonableness of its position, even if the judges’ and
Government’s position is ultimately rejected in a final decision on
the merits, is ‘the most powerful indicator of the reasonableness of
an ultimately rejected position.’” Herman, 177 F.3d at 1065
(quoting Friends of Boundary Waters, 53 F.3d at 885).
2007 ND 142, ¶ 27. The district court completed the necessary analysis and
found the Department made good faith and facially reasonable arguments that
were supported by case law before concluding the Department acted with
substantial justification. I do not agree the court abused its discretion.
[¶19] Lisa Fair McEvers
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