IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2023 ND 128

Cameron Mickelson and Danielle Mickelson, Plaintiffs and Appellants

v.

City of Rolla, Defendant and Appellee

No. 20230009

Appeal from the District Court of Rolette County, Northeast Judicial District, 

the Honorable Anthony S. Benson, Judge.

AFFIRMED.

Opinion of the Court by Tufte, Justice.

Rachael S. Mickelson Hendrickson, Rolla, N.D., for plaintiffs and appellants.

Howard D. Swanson, Grand Forks, N.D., for defendant and appellee.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

JULY 7, 2022 

STATE OF NORTH DAKOTA
1

Mickelson v. City of Rolla

No. 20230009

Tufte, Justice.

[¶1] Cameron and Danielle Mickelson appeal from a district court order 

granting summary judgment to the City of Rolla and the subsequently entered 

judgment. Their attorney, Rachael Mickelson Hendrickson, requested records 

from the City under the state’s open records statute, N.D.C.C. § 44-04-18. The 

City argues that the district court properly granted summary judgment 

because, among other things, the Mickelsons failed to give the City notice 

under N.D.C.C. § 44-04-21.2(3). We affirm.

I

[¶2] The standard of review for summary judgment is well established:

Summary judgment is a procedural device under 

N.D.R.Civ.P. 56(c) for promptly resolving a controversy on the 

merits without a trial if there are no genuine issues of material 

fact or inferences that can reasonably be drawn from undisputed 

facts, or if the only issues to be resolved are questions of law. The 

party seeking summary judgment must demonstrate there are no 

genuine issues of material fact and the case is appropriate for 

judgment as a matter of law. In deciding whether the district court 

appropriately granted summary judgment, we view the evidence 

in the light most favorable to the opposing party, giving that party 

the benefit of all favorable inferences which can reasonably be 

drawn from the record. A party opposing a motion for summary 

judgment cannot simply rely on the pleadings or on unsupported 

conclusory allegations. Rather, a party opposing a summary 

judgment motion must present competent admissible evidence by 

affidavit or other comparable means that raises an issue of 

material fact and must, if appropriate, draw the court’s attention 

to relevant evidence in the record raising an issue of material fact. 

When reasonable persons can reach only one conclusion from the 

evidence, a question of fact may become a matter of law for the 

court to decide. A district court’s decision on summary judgment is 

a question of law that we review de novo on the record.
2

Solberg v. McKennett, 2021 ND 44, ¶ 6, 956 N.W.2d 767 (quoting Aftem Lake 

Developments, Inc. v. Riverview Homeowners Ass’n, 2020 ND 26, ¶ 8, 938 

N.W.2d 159).

[¶3] This Court has also explained its method for interpreting statutes:

Statutory interpretation is a question of law, which is fully 

reviewable on appeal. The primary purpose of statutory 

interpretation is to determine the intention of the legislation. 

Words in a statute are given their plain, ordinary, and commonly 

understood meaning, unless defined by statute or unless a 

contrary intention plainly appears. If the language of a statute is 

clear and unambiguous, the letter of the statute is not to be 

disregarded under the pretext of pursuing its spirit. If the 

language of the statute is ambiguous, however, a court may resort 

to extrinsic aids to interpret the statute.

Johnson v. Menard, Inc., 2021 ND 19, ¶ 16, 955 N.W.2d 27 (citation omitted).

Whether an appellant satisfied a statutory notice requirement is a question of 

statutory interpretation. Laufer v. Doe, 2020 ND 159, ¶¶ 15-20, 946 N.W.2d 

707.

II

[¶4] The district court found that the Mickelsons did not establish that they 

complied with the notice requirement in N.D.C.C. § 44-04-21.2(3). Hendrickson

requested the documents from the City under N.D.C.C. § 44-04-18(2). If an 

entity violates section 44-04-18, “[a]n interested person or entity may not file 

a civil action under this section seeking attorney’s fees or damages, or both, 

until at least three working days after providing notice of the alleged violation 

to the chief administrative officer for the public entity.” N.D.C.C. § 44-04-

21.2(3).

[¶5] The plain language of N.D.C.C. § 44-04-21.2(3) has four requirements

before a party may sue: (1) the person must provide notice, (2) of an alleged 

violation, (3) to the public entity’s chief administrative officer, and (4) at least 

three working days must have passed since the first three elements were all 

satisfied. Both parties agree that Rolla’s mayor is the chief administrative 

officer for the City.
3

[¶6] A document intended to provide notice under a statute or rule must 

clearly state the fact or allegation of which the document is giving notice. The 

only content required by N.D.C.C. § 44-04-21.2(3) is that the notice provided 

must contain “notice of the alleged violation.” Other similar statutory notice 

provisions provide greater specificity as to the required content. See N.D.C.C. 

§ 32-12.2-04 (describing requirements for a notice of a claim against the state 

for an injury). Here we have only the ordinary meaning of this simple 

provision. The ordinary meaning of “violation” is a breach of the law. Black’s 

Law Dictionary 1881 (11th ed. 2019). A violation is “alleged” when it is 

“[a]sserted to be true as described.” Black’s Law Dictionary 94 (11th ed. 2019). 

The term “notice” carries several different meanings depending on the context. 

Because this statute requires notice be provided to the public entity’s chief 

administrative officer, we read the statute as referring to actual notice or 

express notice. Black’s Law Dictionary 1277 (11th ed. 2019) (“actual notice. 

(18c) 1. Notice given directly to, or received personally by, a party. — Also 

termed express notice.”).

[¶7] Considering the plain meaning of this language in the context of the open 

records statutes, we conclude that to “provide notice of the alleged violation,”

the notice must describe, paraphrase, or cite to the statutory requirement 

alleged to have been violated and generally describe the facts alleged to 

constitute the violation. A document does not comply with this notice statute 

simply because a party could infer the fact or allegation of which notice must 

be provided. Cf. Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 315 

(1950) (stating where notice is required by the Due Process Clause, “[t]he 

means employed must be such as one desirous of actually informing the 

absentee might reasonably adopt to accomplish it”).

[¶8] Here, the Mickelsons argue that they complied with the notice statute 

on the basis of two exhibits in the record and because Hendrickson notified 

Rolla’s mayor of the violation at a December 14, 2021 Public Works Committee 

meeting and at a December 15, 2021 Regular Council meeting. The first exhibit

is an “Outline of Ordinances” that Hendrickson gave to the mayor of Rolla at 

the two meetings, and the second is a letter dated December 16, 2021, written 

by Hendrickson and sent to the Attorney General. The mayor received a copy 

of the letter from the Attorney General.
4

[¶9] Neither document gave the City notice of an alleged violation. The 

outline of ordinances simply informs the City that certain records had been 

requested but nothing had been received in response. The outline alleges some 

delay in response, but it does not contain any statement alleging a “violation” 

of any statute or rule and does not state it is to provide notice of anything. The 

letter to the Attorney General states: “I am requesting an opinion under 

N.D.C.C. § 44-04-21.1 on behalf of my clients Cameron and Danielle Mickelson 

as to whether the City of Rolla violated N.D.C.C. § 44-04-18 by failing to 

respond to a record request within a reasonable time.” This sentence does not 

allege that a violation occurred. Rather, it merely requests the Attorney 

General’s office to determine whether the City violated the open records 

statute; therefore, it is insufficient notice under N.D.C.C. § 44-04-21.2(3). 

Because we conclude the letter was not sufficient to provide notice of an alleged 

violation, we do not decide whether the Mickelsons established that they 

provided the letter to Rolla’s mayor by sending it to the Attorney General’s 

office, which forwarded it to the mayor on its own initiative.

[¶10] Finally, the Mickelsons failed to meet their burden to demonstrate that 

they provided sufficient notice at either the Public Works Committee meeting 

or the Regular Council meeting. The minutes of the council meeting do not 

mention that the Mickelsons or Hendrickson alleged at the meeting that the 

City had violated N.D.C.C. § 44-04-18(2). Nor have the Mickelsons cited to any 

evidence in the record demonstrating sufficient notice was provided at either 

meeting. They failed to “draw the court’s attention to relevant evidence in the 

record raising an issue of material fact.” McKennett, 2021 ND 44, ¶ 6.

III

[¶11] The district court properly granted summary judgment to the City. We 

affirm.

[¶12] Jon J. Jensen, C.J.

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte

Douglas A. Bahr