SANDERSON v. WALSH CLERK DEPUTY CLERK OF COURT (2026)

[¶1] Mitchell Sanderson appeals from a judgment dismissing his complaint and awarding Defendants attorney's fees. Sanderson argues the district court erred in granting Defendants’ motion to dismiss for failure to state a claim upon which relief can be granted, rejecting his argument that the district court clerks were required to take and file an oath of office, and concluding his complaint was frivolous. We affirm.

I

[¶2] Sanderson alleged in his complaint that Defendants Walsh County Clerk of Court Beverly Demers and Walsh County Deputy Clerk of Court Michelle Flanders violated state law by failing to take and file an oath of office. As remedies, Sanderson demanded Defendants’ “bonds be forfeited to [him],” they be “removed from the office,” “that everything the clerks have done in [his] cases be ruled null and void,” that he “be awarded [p]unitive damages and declaratory and injunctive relief for all rulings against him and filings which there is no immunity,” and that he be awarded “general and special damages for [his] emotional distress.”

[¶3] Defendants moved to dismiss under N.D.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted, and requested attorney's fees, arguing Sanderson's complaint was frivolous. After a hearing, the district court granted Defendants’ motion to dismiss, determining the complaint failed to state a claim for which relief can be granted; and awarded Defendants attorney's fees, concluding the complaint was frivolous. The court entered an amended judgment of dismissal with prejudice.

II

[¶4] Sanderson argues the district court erred by granting Defendants’ motion to dismiss under N.D.R.Civ.P. 12(b)(6).

A motion to dismiss a complaint under N.D.R.Civ.P. 12(b)(6) tests the legal sufficiency of the claim presented in the complaint. On appeal from a dismissal under N.D.R.Civ.P. 12(b)(6), we construe the complaint in the light most favorable to the plaintiff and accept as true the well-pleaded allegations in the complaint. A district court's decision granting a Rule 12(b)(6) motion to dismiss a complaint will be affirmed 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 on appeal.

Schmitz v. N.D. State Bd. of Chiropractic Exam'rs, 2021 ND 73, ¶ 6, 958 N.W.2d 496.

[¶5] Sanderson alleged Defendants violated state law by failing to take and file an oath of office. The district court rejected that allegation as a matter of law, concluding he failed to state a claim for which relief can be granted. Sanderson asserts several provisions of state law require Defendants to provide an oath of office: N.D. Const. art. XI, § 4, and N.D.C.C. chs. 44-01, 44-05, 27-05.2, 27-03, and 11-10. The court did not err in determining these provisions do not apply to Defendants as a matter of law.

A

[¶6] N.D. Const. art. XI, § 4, states, “Members of the legislative assembly and the executive and judicial branches, except such inferior officers as may be by law exempted, before they enter on the duties of their respective offices, shall take and subscribe” an oath or affirmation to support the United States and North Dakota constitutions and “faithfully discharge the duties of the office.” Under N.D.C.C. § 44-01-05, “Each civil officer in this state before entering upon the duties of that individual's office shall take and subscribe the oath prescribed in section 4 of article XI of the Constitution of North Dakota. The oath must be endorsed upon the back of, or attached to, the commission, appointment, or certificate of election. The term civil officer includes every elected official and any individual appointed by such elected official.” These oath requirements have existed since statehood. N.D. Const. art. XVII, § 211 (1889) (“Members of the legislative assembly and judicial department, except such inferior officers as may be by law exempted shall, before they enter on the duties of their respective offices, take and subscribe the following oath or affirmation.”); 1889-90 N.D. Sess. Laws ch. 105, § 1 (requiring “civil officer” to take oath or affirmation); N.D.R.C. § 341 (1895) (“Each civil officer in this state before entering upon the duties of his office shall take and subscribe the oath prescribed in section 211 of the constitution.”).

[¶7] Sanderson alleged in his complaint that Defendants are district court clerks employed by the unified judicial system. Sanderson argues, as district court clerks, Defendants are judicial branch members who have not been exempted by the law from taking an oath of office. He contends Defendants are civil officers.

[¶8] It is undisputed that Defendants are employed by the unified judicial system. See N.D.C.C. § 27-05.2-02(1), (3)-(4); N.D. Sup. Ct. Admin. R. 46(3)(a). They are not elected officials and have not been appointed by an elected official. N.D.C.C. § 27-05.2-02(1), (3)-(4); N.D. Sup. Ct. Admin. R. 46(3)(a). The term “civil officer” expressly “includes every elected official and any individual appointed by such elected official,” but this non-exclusive use of “includes” does not point to a definition of “civil officer” that reaches beyond elected officials and their appointees. See Trade ‘N Post, L.L.C. v. World Duty Free Americas, Inc., 2001 ND 116, ¶ 20, 628 N.W.2d 707 (“In construing statutes, this Court has recognized the maxim expressio unius est exclusio alterius: The mention of one thing implies the exclusion of another.” (Cleaned up)). The statute's filing requirement confirms as much. The required oath “must be endorsed upon the back of, or attached to, the commission, appointment, or certificate of election.” N.D.C.C. § 44-01-05. The statute thus presupposes that the individual taking the oath holds one of those instruments—a commission, an instrument of appointment, or a certificate of election—each of which belongs to an elected or appointed official. Defendants, neither elected nor appointed, hold none. As a matter of law, Defendants are not civil officers. Sanderson has provided no relevant authority showing “members” of the judicial branch under N.D. Const. art. XI, § 4, refers to unelected and unappointed employees of the unified judicial system.

[¶9] At statehood, no other constitutional provisions referenced “members” of the judicial branch. The 1889 Constitution made clear, however, that “members” of the legislative assembly meant the state senators and representatives. See, e.g., N.D. Const. art. II, § 26 (1889) (“The senate shall be composed of not less than thirty nor more than fifty members.”); N.D. Const. art. II, § 32 (1889) (“The house of representatives shall be composed of not less than sixty, nor more than one hundred and forty members.”); N.D. Const. art. II, § 41 (1889) (“The term of service of the members of the legislative assembly shall begin on the first Tuesday in January, next after their election.”). In 1924, this Court cited the oath requirement of section 211 of the N.D. Constitution and stated that “as a condition precedent to the performance of any official act, each judge is required to take an official oath, whereby he, in the most solemn manner, pledges himself to support the federal and state Constitutions and to faithfully discharge the duties of his office.” State v. First State Bank of Jud, 52 N.D. 231, 202 N.W. 391, 396 (1924).

[¶10] The context surrounding the constitutional oath requirement shows “[m]embers” is not defined as broadly as Sanderson suggests. “Members” of the Legislative Assembly unequivocally refers to elected state senators and representatives, not employees of the legislature. Although First State Bank of Jud specifically recognized the oath requirement applies to judges, we have not held the same for employees of the unified judicial system. Moreover, N.D.C.C. § 44-01-05 requires only “civil officer[s]”—elected and appointed officials—to take the oath prescribed in N.D. Const. art. XI, § 4, implying through exclusion that the Assembly by law exempted these unelected and unappointed state employees, or “inferior officers” as described in N.D. Const. art. XI, § 4, from taking the oath. See Sanderson v. Walsh County, 2006 ND 83, ¶ 16, 712 N.W.2d 842 (noting that in statutory construction, we consider “the actual language, its connection with other clauses, and the words or expressions which obviously are by design omitted”; “the law is what is said, not what is unsaid, and the mention of one thing implies exclusion of another” (quotations omitted)); see also Trade ‘N Post, 2001 ND 116, ¶ 20, 628 N.W.2d 707. We agree with the district court that the oath requirements do not apply to Defendants—unelected and unappointed employees of the unified judicial system.

B

[¶11] Sanderson cites several other statutes concerning oaths of office. None apply in this case.

[¶12] Sanderson cites N.D.C.C. § 44-05-01 in support of his claims. But N.D.C.C. § 44-05-01 merely identifies which “officers are authorized to administer oaths.” See Zuraff v. Reiger, 2018 ND 143, ¶ 20, 911 N.W.2d 887 (“Section 44-05-01, N.D.C.C., authorizes judges, clerks of court, notaries, and other clerks to administer oaths.”). The issue is whether Defendants were required to take and file oaths, not who may administer any required oath. Thus, this statute does not apply.

[¶13] Section 27-05.2-07, N.D.C.C., concerns oath violations or neglect of duties by ex officio clerks:

If an ex officio clerk of the district court violates the clerk's oath of office or neglects or refuses to perform any of the duties of office and any person is injured or aggrieved by such violation or neglect, such person may institute legal proceedings upon the bond of the clerk and recover double the amount of damages actually sustained. For each such violation or neglect by the clerk, the county treasurer shall collect a forfeiture of not less than fifty dollars.

Defendants are not “ex officio clerk[s] of the district court.” An ex officio clerk of the district court refers to an “individual designated by a board of county commissioners to provide clerk of district court services under subsection 2 or 6” of N.D.C.C. § 27-05.2-02. N.D.C.C. § 27-05.2-02(1). Subsection 2 involves a county electing to provide clerk of district court services at its own expense, and subsection 6 involves a county entering into an agreement with this Court for funding of clerk of district court services. N.D.C.C. § 27-05.2-02(2), (6). Sanderson has not asserted that either subsection applies. In his complaint, Sanderson alleged Defendants are employees of the unified judicial system, not ex officio clerks. See also N.D.C.C. § 27-05.2-02(1), (3)-(4); N.D. Sup. Ct. Admin. R. 46(3)(a). Thus, N.D.C.C. § 27-05.2-07 does not apply.

[¶14] Sanderson cites N.D.C.C. § 27-03-02 for support, which states, “The clerk of the supreme court, before entering upon the clerk's duties, shall qualify by taking the oath prescribed for civil officers. The clerk may appoint a deputy who shall take and subscribe the oath prescribed for civil officers and file the same in the supreme court.” Because this statute specifically applies to the “clerk of the supreme court” and the supreme court clerk's “deputy,” not district court clerks, it is inapplicable to Defendants.

[¶15] Finally, Sanderson cites a footnote in State v. Stuart, 544 N.W.2d 158, 160 n.3 (N.D. 1996), which states that “a district court clerk is required to take an oath of office, see NDCC 11-10-09 and 11-10-13.” The cited authorities for that proposition, N.D.C.C. §§ 11-10-09 and 11-10-13, require every “county officer” and “deputy county officer” to take an oath of office. Thus, the statement in Stuart was particular to district court clerks employed by the county. As Sanderson alleged, Defendants are employees of the unified judicial system, not county officers. Stuart did not hold that district court clerks employed by the unified judicial system were required to take an oath of office. The statutes are clear that they apply to county officers, and neither the statutes, nor Stuart, are applicable here.

[¶16] Because none of these statutes require Defendants to take and file an oath of office, Sanderson has failed to state a claim upon which relief can be granted. The district court did not err in granting Defendants’ N.D.R.Civ.P. 12(b)(6) motion and dismissing the complaint.

III

[¶17] Sanderson argues the district court erred by finding his complaint frivolous and awarding Defendants attorney's fees. The court awarded attorney's fees under N.D.C.C. § 28-26-01(2), which states:

In civil actions the court shall, upon a finding that a claim for relief was frivolous, award reasonable actual and statutory costs, including reasonable attorney's fees to the prevailing party. Such costs must be awarded regardless of the good faith of the attorney or party making the claim for relief if there is such a complete absence of actual facts or law that a reasonable person could not have thought a court would render judgment in that person's favor, providing the prevailing party has in responsive pleading alleged the frivolous nature of the claim. This subsection does not require the award of costs or fees against an attorney or party advancing a claim unwarranted under existing law, if it is supported by a good-faith argument for an extension, modification, or reversal of the existing law.

[¶18] “The court has discretion under this statute to determine whether the claim is frivolous and how much to award. However, the court must award costs and attorney's fees if it finds the claim is frivolous.” Bolinske v. Sandstrom, 2024 ND 163, ¶ 16, 10 N.W.3d 770. “Frivolous claims are those which have such a complete absence of actual facts or law that a reasonable person could not have expected that a court would render judgment in that person's favor.” Id. ¶ 20. We review an attorney's fees award for an abuse of discretion. Id. ¶ 17. “A district court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, its decision is not the product of a rational mental process leading to a reasoned determination, or it misinterprets or misapplies the law.” Id.

[¶19] The district court concluded Sanderson's claims were frivolous because there was a complete absence of facts or law supporting the claims and no reasonable person could have thought a court would rule in his favor. We agree. Sanderson alleged Defendants were employed by the unified judicial system and then argued that numerous statutes apply to those employees. On their face, they do not. The court did not abuse its discretion in concluding Sanderson's claims are frivolous and awarding attorney's fees to Defendants.

IV

[¶20] Sanderson's remaining arguments are inadequately briefed, not properly before this Court, without merit, or unnecessary to our decision. The judgment is affirmed.

Tufte, Justice.

[¶21] Jerod E. Tufte Jon J. Jensen Douglas A. Bahr Mark A. Friese Lolita G. Hartl Romanick, S.J.[¶22] The Honorable Lolita G. Hartl Romanick, Surrogate Judge, sitting in place of Fair McEvers, C.J., disqualified.