Blomquist v. Clague

PEDERSON, Justice,

concurring and dissenting.

Although I concur in much of the statement of law in the majority opinion, to authorize an evidentiary hearing into the merits of this case has to qualify for Ripley’s “Believe it or Not.” I don’t believe that, on its face, there is an adequate application now pending. Judge Leclerc, have fun. I don’t want to spoil it for you by itemizing all of the incredible things I find in the record certified to us by the Clerk of the District Court of Grand Forks County, but I do want to comment on a few of the choicest.

(1)You might wonder if there is one action or two; whether Blomquist or Bloo-mquist is the plaintiff; whether James Cla-gue (individual) and the City of Grand Forks or James Clague (Chief of Police) and C. P. O’Neil (Mayor) are the defendants; and whether service has ever been made in either case as required by Rules 4 and 5, NDRCivP. You will discover, as I did, that after a docket number “'31755” was assigned by the clerk of court to the $50,000 damage suit against James Clague and the City, that Blomquist’s attorney’s secretary typed the same file number, “Civil No. 31755”, on the Notice of Application for a Writ of Mandamus and on the Affidavit of Service by Mail. This is a separate action which should have had a separate file, yet Blomquist now infers that some errors by the clerk and the district court caused all of this mess. You will have to ignore the dates on many documents.

(2) You may be concerned whether the mandamus proceedings were intended to be a “more definite statement” of the complaint that was being sought by Attorney Marshall, or if Blomquist meant the damage-action complaint to show that he did not have a plain, speedy, and adequate remedy in the ordinary course of law. Section 32-34-02, NDCC.

(3) You will be confused by Judge Bak-ken’s proceeding to hear, on March 12,1979, a motion for more definite statement after acknowledging, on March 9, 1979, that he had received a copy of Blomquist’s demand ■ for change of judge.

(4) You will be amazed that Blomquist assumes that you can, by this writ of mandamus, reinstate him as a patrolman on the Grand Forks Police Department. He doesn’t ask for anything else that he might be entitled to.

(5) Finally, you may even find it amusing that a trained police officer would come up with a fantastic new drug enforcement tool called “a controlled sale,” and that a narcotics agent would tip off the target, even if the target is a police officer, in a planned, controlled purchase. On the other hand, it should not strike you as amusing that Blom-quist’s affidavit in support of application for writ of mandamus says that he was afforded the option of resigning “or being fired,” but when his attorneys, having found authorities critical of resignations under threat of criminal prosecution, now argue that Blomquist resigned under a threat of a felony charge.

A couple of interesting cases to read that involve special proceedings and related problems are Hazelton-Moffit Special School Dist. No. 6 v. Ward, 107 N.W.2d 636 (N.D.1961), and Holcomb v. Hamm, 77 N.D. 154, 42 N.W.2d 70, 52 A.L.R.2d 471 (1950).