author: KAPSNER, Justice.

text:
    2006 ND 84
    STATE of North Dakota ex rel. Wayne STENEHJEM, Attorney General, Plaintiff and Appellee v. FREEEATS.COM, INC., dba The FreeEats Companies, ccAdvertising, ccAdvertising.biz, ccAdvertising.Info, ElectionResearch.com, FECads.com, and FECResearch.com, Defendant and Appellant.
    No. 20050171.
    Supreme Court of North Dakota.
    April 21, 2006.

      James Patrick Thomas (argued), Assistant Attorney General, Parrell D. Gross-man (appeared), Assistant Attorney General, Office of Attorney General, Bismarck, ND, and Wayne K. Stenehjem (appeared), Attorney General, Office of Attorney General, Bismarck, ND, for plaintiff and appel-lee.
    Patrick J. Ward (argued), Lawrence E. King (appeared), Zuger Kirmis & Smith, Bismarck, ND, Emilio W. Cividanes (appeared), Venable, L.L.P., Washington, DC, David H. Bamberger (on brief), and James P. Rathvon (on brief), DLA Piper Rudniek Gray Cary, U.S., L.L.P., Washington, DC, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] FreeEats.com, Inc. (“FreeEats”) has appealed from a summary judgment finding FreeEats in violation of North Dakota’s telephone solicitation statutes and imposing civil penalties, attorney fees, costs, and disbursements. We affirm, concluding North Dakota’s prohibition against placement of political polling calls using an automatic dialing — -announcing device is not preempted by federal law.

I

[¶ 2] FreeEats is based in Herndon, Virginia, and conducts telephone surveys and polling services. In August 2004, FreeEats placed numerous political polling calls from its call center in Ashburn, Virginia, to residences in North Dakota. FreeEats employed an automatic dialing-announcing device to place the calls, and all of the calls used prerecorded messages with no live person on the line.

[¶ 3] On September 17, 2004, the State brought this action against FreeEats seeking civil penalties for violations of N.D.C.C. § 51-28-02. FreeEats admitted it made the automated calls to North Dakota residents, but argued application of N.D.C.C. § 51-28-02 to interstate political polling calls was preempted by federal law. On cross-motions for summary judgment, the district court concluded that application of N.D.C.C. § 51-28-02 was not preempted by federal law and that the calls placed by FreeEats to North Dakota residents violated the statute. Judgment was entered ordering FreeEats to pay $10,000 in civil penalties and $10,000 in attorney fees, costs, and disbursements. FreeEats has appealed, alleging the district court erred in concluding that federal law did not preempt application of N.D.C.C. § 51-28-02 to interstate political polling calls.

II

[¶ 4] Summary judgment is a procedural device for the prompt resolution of 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 the undisputed facts, or if the only issues to be resolved are questions of law. Wheeler v. Gardner, 2006 ND 24, ¶ 8, 708 N.W.2d 908; Jacob v. Nodak Mut. Ins. Co., 2005 ND 56, ¶ 11, 693 N.W.2d 604. Summary judgment is appropriate if the issues in the case are such that resolution of any factual disputes will not alter the result. Jacob, at ¶ 11; Tibert v. Slominski, 2005 ND 34, ¶ 8, 692 N.W.2d 133. Whether the trial court properly granted summary judgment is a question of law that we review de novo on the entire record. Wheeler, at ¶ 8; Heng v. Rotech Med. Corp., 2004 ND 204, ¶ 9, 688 N.W.2d 389.

[¶ 5] In this case there are no disputed issues of material fact, and the sole question presented involves interpretation of statutes. Interpretation and application of a statute is a question of law, which is fully reviewable on appeal. Wheeler, 2006 ND 24, ¶ 10, 708 N.W.2d 908; Smith v. Hall, 2005 ND 215, ¶ 15, 707 N.W.2d 247. Accordingly, this case was appropriate for resolution on a motion for summary judgment.

Ill

[¶ 6] The sole question presented on appeal is whether federal law preempts the application of N.D.C.C. § 51-28-02 to automated political polling calls made from Virginia to residents in North Dakota.

[¶ 7] Section 51-28-02, N.D.C.C., prohibits the placement of telephone calls using an automatic dialing-announcing device except in certain enumerated instances:

A caller may not use or connect to a telephone line an automatic dialing-announcing device unless the subscriber has knowingly requested, consented to, permitted, or authorized receipt of the message or the message is immediately preceded by a live operator who obtains the subscriber’s consent before the message is delivered. This section and section 51-28-05 do not apply to a message from a public safety agency notifying- a person of an emergency; a message from a school district to a student, a parent, or an employee; a message to a subscriber with whom the caller has a current business relationship; or a message advising an employee of a work schedule.

The calls placed by FreeEats to North Dakota residents in 2004 did not fit under any of the exemptions in N.D.C.C. § 51-28-02.

[¶ 8] FreeEats contends, however, that application of N.D.C.C. § 51-28-02 to interstate calls is preempted by 47 U.S.C. § 227, the Telephone Consumer Protection Act of 1991 (“TCPA”). The TCPA prohibits calls to a residential telephone line using an artificial or prerecorded voice without the recipient’s prior express consent, “unless the call is initiated for emergency purposes or is exempted by rule or order by the [Federal Communications] Commission under paragraph (2)(B).” 47 U.S.C. § 227(b)(1)(B). Under paragraph (2)(B), the FCC is authorized to exempt calls that are not made for a commercial purpose. 47 U.S.C. § 227(b)(2)(B)(i). The FCC has adopted a regulation exempting calls not made for a commercial purpose from the TCPA’s general prohibition on calls using an artificial or prerecorded voice message. 47 C.F.R. § 64.1200(a)(2)(ii) (2005). FreeEats contends the political polling calls at issue in this case were not made for a commercial purpose, and were therefore permissible under federal law.

A

[¶ 9] The crux of this ease lies in the interpretation of the TCPA’s “savings clause,” 47 U.S.C. § 227(e)(1):

(1) State law not preempted
Except for the standards prescribed under subsection (d) of this section and subject to paragraph (2) of this subsection, nothing in this section or in the regulations prescribed under this section shall preempt any State law that imposes more restrictive intrastate requirements or regulations on, or which prohibits—
(A) the use of telephone facsimile machines or other electronic devices to send unsolicited advertisements;
(B) the use of automatic telephone dialing systems;
(C) the use of artificial or prerecorded voice messages; or
(D) the making of telephone solicitations.

[¶ 10] The parties offer conflicting interpretations of the statute, centering upon the scope of the term “intrastate.” The State contends the language of the statute is clear and unambiguous, and the term “intrastate” modifies only “more restrictive ... requirements or regulations,” and does not modify “which prohibits.” The State argues that the TCPA therefore expressly permits application of state statutes which prohibit certain classes of calls placed with automatic dialing systems or which use artificial or prerecorded voice messages to interstate calls placed to North Dakota residents. FreeEats argues the legislative history of the TCPA indicates Congressional intent to preempt state regulation of interstate calls, and therefore urges that the term “intrastate” must be read as applying to the phrase “which prohibits.” Thus, FreeEats contends, the TCPA preempts any attempt by a state to either regulate or prohibit interstate calls which employ automatic dialers or prerecorded messages.

[¶ 11] In interpreting the statute, we are guided by well-settled rules of federal statutory construction. When the language of a statute is plain, “the sole function of the courts — at least where the disposition required by the text is not absurd — is to enforce it according to its terms.” Dodd v. United States, 545 U.S.

353, -, 125 S.Ct. 2478, 2483, 162 L.Ed.2d 343 (2005) (quoting Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6, 120 S.Ct. 1942, 147 L.Ed.2d 1 (2000)); Lamie v. United States Trustee, 540 U.S. 526, 534, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004) (quoting Hartford). The “preeminent canon of statutory interpretation” requires that courts “presume that [the] legislature says in a statute what it means and means in a statute what it says there.” BedRoc Ltd. v. United States, 541 U.S. 176, 183, 124 S.Ct. 1587, 158 L.Ed.2d 338 (2004) (quoting Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992)); see Dodd, at 2482 (quoting Connecticut Nat’l Bank). The court’s inquiry “begins with the statutory text, and ends there as well if the text is unambiguous,” BedRoc, at 183, 124 S.Ct. 1587, and courts and administrative agencies must give effect to the unambiguously expressed intent of Congress. Norfolk & Western Ry. Co. v. American Train Dispatchers Ass’n, 499 U.S. 117, 128, 111 S.Ct. 1156, 113 L.Ed.2d 95 (1991).

[¶ 12] The Supreme Court has concluded that “vague notions of a statute’s ‘basic purpose’ are ... inadequate to overcome the words of its text regarding the specific issue under consideration.” Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 220, 122 S.Ct. 708, 151 L.Ed.2d 635 (2002) (quoting Mertens v. Hewitt Assocs., 508 U.S. 248, 261, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993)). It is not a court’s function “to find reasons for what Congress has plainly done,” but rather the court’s job is to “avoid rendering what Congress has plainly done ... devoid of reason and effect.” Great-West, at 217-18, 122 S.Ct. 708. It is for Congress, not the courts, to amend a statute if the plain language of the statute does not accurately reflect the true intent of Congress. See Dodd, 125 S.Ct. at 2483. As noted by the Supreme Court in Carter v. United States, 530 U.S. 255, 271, 120 S.Ct. 2159, 147 L.Ed.2d 203 (2000) (citation omitted) (quoting Bank One Chicago, N.A v. Midwest Bank & Trust Co., 516 U.S. 264, 279, 116 S.Ct. 637, 133 L.Ed.2d 635 (1996) (Scalia, J., concurring)), when construing a statute a court must “begin by examining the text, not by ‘psychoanalyzing those who enacted it.’ ”

[¶ 13] The TCPA savings clause expressly exempts from preemption “any State law that imposes more restrictive intrastate requirements or regulations on, or which prohibits” unsolicited fax advertisements, use of automatic dialers, use of artificial or prerecorded voice messages, or making of telephone solicitations. 47 U.S.C. § 227(e)(1). The State contends that the use of the disjunctive “or,” preceded by a comma, indicates the word “intrastate” in the first clause does not modify the second clause. FreeEats essentially ignores the language of the statute and bases its argument upon the contention that the legislative history demonstrates Congressional intent to preempt all state statutes affecting interstate calls.

[¶ 14] The word “or” is disjunctive in nature and ordinarily indicates an alternative between different things or actions. Reiter v. Sonotone Corp., 442 U.S. 330, 338-39, 99 S.Ct. 2326, 60 L.Ed.2d 931 (1979); Christl v. Swanson, 2000 ND 74, ¶ 12, 609 N.W.2d 70; Narum v. Faxx Foods, Inc., 1999 ND 45, ¶20, 590 N.W.2d 454. Terms or phrases separated by “or” have separate and independent significance. Reiter, at 338-39, 99 S.Ct. 2326. Coupled with the comma preceding “or,” which indicates a separate clause, the statutory language clearly creates two distinct and independent phrases. Thus, read logically and grammatically, the statute states that nothing in the TCPA preempts any state law “that imposes more restrictive intrastate requirements or regulations on” the enumerated classes of calls, and nothing in the TCPA preempts any state law “which prohibits” calls within the enumerated list. “Intrastate” unambiguously modifies only the first clause, not the second. If Congress had intended that the second part of the statute apply only to intrastate calls, “it could simply have said that.” Great-West, 534 U.S. at 218, 122 S.Ct. 708. Because the statutory text is unambiguous, our inquiry into its meaning ends there. BedRoc, 541 U.S. at 183, 124 S.Ct. 1587.

[¶ 15] FreeEats contends that, even if the statutory language is clear, a literal interpretation of the statute would create an absurd result. See Dodd, 125 S.Ct. at 2483; Lamie, 540 U.S. at 534, 124 S.Ct. 1023. Specifically, FreeEats argues it is illogical to allow states to adopt more restrictive regulations on only intrastate calls, but to allow wholesale prohibition of certain classes of both intrastate and interstate calls.

[¶ 16] FreeEats contends that one important policy basis for enactment of the TCPA was to alleviate the excessive burdens which might be placed upon interstate telemarketers if they were required to comply with a plethora of conflicting regulations from all fifty states. In this context, there may be a substantial difference between the effect of state laws which seek to impose voluminous regulations upon interstate calls and those which wholly prohibit a specific class of interstate calls. The TCPA and corresponding regulations govern many diverse aspects of such calls. For example, under the relevant federal regulation, telephone solicitations may only be made to a residential telephone customer between 8 a.m. and 9 p.m. local time. 47 C.F.R. § 64.1200(c)(1). It is foreseeable that, if each state adopted differing time restrictions on telemarketing calls, it may be difficult for a telemarketer to adjust its equipment to place calls to the various states only within a particular state’s permissible hours. The states could conceivably create a stream of inconsistent and conflicting regulations on innumerable aspects of telemarketing calls, thereby making compliance with each individual state’s unique set of rules and regulations burdensome.

[¶ 17] By contrast, it would be a relatively simple matter for a telemarketer to comply with a state statute which wholly prohibits certain enumerated classes of calls. When contemplating placing a certain type of call, the telemarketer need only review state law to determine if such calls are prohibited in a particular state. If so, it is presumably an easy task for the telemarketer to refrain from placing calls to that state’s residents. See Utah Div. of Consumer Prot. v. Flagship Capital, 2005 UT 76, ¶ 22, 125 P.3d 894 (“the record does not reflect that a national telemarketer would confront any substantial hardship by being required to determine which of its calls reach the telephones of Utah residents”).

[¶ 18] We conclude that a literal interpretation of the unambiguous language of the statute does not lead to an absurd result. See Dodd, 125 S.Ct. at 2483; Lamie, 540 U.S. at 534, 124 S.Ct. 1023. We therefore interpret the express language of 47 U.S.C. § 227(e)(1) to provide that the TCPA does not preempt any state law which prohibits interstate calls using automatic telephone dialing systems or using artificial or prerecorded voice messages. We must review FreeEats’ claim of federal preemption within the context of this interpretation of the TCPA.

B

[¶ 19] Under the Supremacy Clause, U.S. Const. art. VI, the laws of the United States are the “supreme law of the land,” and state law that conflicts with federal law is without effect. Home of Economy v. Burlington N. Santa Fe R.R., 2005 ND 74, ¶5, 694 N.W.2d 840. In Home of Economy, we quoted the United States Supreme Court’s outline of the parameters of federal preemption under the Supremacy Clause:

First, Congress can define explicitly the extent to which its enactments pre-empt state law. Pre-emption fundamentally is a question of congressional intent, and when Congress has made its intent known through explicit statutory language, the courts’ task is an easy one.
Second, in the absence of explicit statutory language, state law is pre-empted where it regulates conduct in a field that Congress intended the Federal Government to occupy exclusively. Such an intent may be inferred from a “scheme of federal regulation ... so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it,” or where an Act of Congress “touch[es] a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.” Although this Court has not hesitated to draw an inference of field pre-emption where it is supported by the federal statutory and regulatory schemes, it has emphasized: “Where ... the field which Congress is said to have pre-empted” includes areas that have “been traditionally occupied by the States,” congressional intent to supersede state laws must be “ ‘clear and manifest.’ ”
Finally, state law is pre-empted to the extent that it actually conflicts with federal law. Thus, the Court has found pre-emption where it is impossible for a private party to comply with both state and federal requirements, or where state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”

Home of Economy, at ¶ 5 (quoting English v. General Elec. Co., 496 U.S. 72, 78-79, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990)). Thus, federal preemption analysis includes three components: express preemption, field preemption, and conflict preemption.

[¶ 20] Because of the “interstitial nature of Federal law,” preemption of state law is not favored, and the framework for analyzing a preemption claim under the Supremacy Clause begins with the basic assumption that Congress did not intend to displace state law. Billey v. North Dakota Stockmen’s Ass’n, 1998 ND 120, ¶ 28, 579 N.W.2d 171 (quoting Federal Land Bank of St. Paul v. Lillehaugen, 404 N.W.2d 452, 455 (N.D. 1987)); see also Home of Economy, 2005 ND 74, ¶ 6, 694 N.W.2d 840. The United States Supreme Court has expressly noted that, because “the States are independent sovereigns in our federal system, we have long presumed that Congress does not cavalierly pre-empt” state law. Bates v. Dow Agrosciences LLC, 544 U.S. 431, 125 S.Ct. 1788, 1801, 161 L.Ed.2d 687 (2005) (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996)). Although the assumption that Congress did not intend to displace state law is not ordinarily triggered when a state statute touches upon an area where there has been a history of significant federal presence, where the state acts in a field that states have traditionally occupied, the assumption that the state’s historic police powers are not superseded by federal law applies unless Congress clearly and manifestly expresses a contrary intent. Home of Economy, at ¶ 6.

[¶ 21] It has long been recognized that the police power of a state extends beyond the health, morals, and safety of the community, and encompasses the duty to protect the privacy of its citi-

zens, including the authority to protect the peaceful enjoyment of the home and the well-being and tranquility of the community. See Hynes v. Mayor and Council, 425 U.S. 610, 619, 96 S.Ct. 1755, 48 L.Ed.2d 243 (1976); Breard v. City of Alexandria, 341 U.S. 622, 640, 71 S.Ct. 920, 95 L.Ed. 1233 (1951); Thornhill v. Alabama, 310 U.S. 88, 105, 60 S.Ct. 736, 84 L.Ed. 1093 (1940). This authority includes the power to enact laws regulating or prohibiting interstate telemarketing practices. See Flagship Capital, 2005 UT 76, ¶¶ 19-20, 125 P.3d 894. Furthermore, the United States Court of Appeals for the Eighth Circuit, in a case upholding the constitutionality of the North Dakota Telephone Solicitations Act, N.D.C.C. ch. 51-28, the statute involved here, noted that “residential privacy is a ‘significant’ government interest, particularly when telemarketing calls ‘are flourishing, and becoming a reoccurring nuisance by virtue of their quantity.’ ” Fraternal Order of Police v. Stenehjem, 431 F.3d 591, 597 (8th Cir.2005) (quoting Van Bergen v. Minnesota, 59 F.3d 1541, 1555 (8th Cir.1995)). In concluding that a Utah statute regulating telemarketing was not preempted by the TCPA, the Supreme Court of Utah held that, “[w]here the police power is at issue, there is a presumption that the regulations can constitutionally coexist, with a resulting burden of proof placed on the party claiming preemption.” Flagship Capital, at ¶ 20 (citing Hillsborough County v. Automated Med. Labs., Inc., 471 U.S. 707, 716, 105 S.Ct. 2371, 85 L.Ed.2d 714 (1985)). As noted by the United States Supreme Court, when considering preemption a court must “start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” City of Columbus v. Ours Garage & Wrecker Serv., Inc., 536 U.S. 424, 432, 122 S.Ct. 2226, 153 L.Ed.2d 430 (2002) (quoting Wisconsin Pub. Intervenor v. Mortier, 501 U.S. 597, 605, 111 S.Ct. 2476, 115 L.Ed.2d 532 (1991)).

[¶ 22] We thus begin our analysis with the assumption that Congress did not intend the TCPA to abrogate statutes implementing the state’s police power to protect its citizens’ privacy and peaceful enjoyment of their homes, and FreeEats, as the party claiming preemption, bears the burden of proving it was the clear and manifest intent of Congress to supersede state law. See Bates, 125 S.Ct. at 1801; Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992); Billey, 1998 ND 120, ¶ 28, 579 N.W.2d 171; State v. Liberty Nat’l Bank & Trust Co., 427 N.W.2d 307, 310 (N.D.1988). The “ultimate touchstone” of preemption analysis is Congressional intent. Cipollone, 505 U.S. at 516, 112 S.Ct. 2608 (quoting Malone v. White Motor Corp., 435 U.S. 497, 504, 98 S.Ct. 1185, 55 L.Ed.2d 443 (1978)). When Congress has expressly addressed preemption in the federal statute, the question whether the federal law preempts state law necessarily is largely a matter of statutory construction. Home of Economy, 2005 ND 74, ¶ 6, 694 N.W.2d 840; Billey, at ¶ 28; Liberty Nat’l, at 310 (quoting L. Tribe, American Constitutional Law § 6-25, at 480 (2d ed. 1988)). In such cases, the plain wording of the statute “necessarily contains the best evidence of Congress’ pre-emptive intent.” Sprietsma v. Mercury Marine, 537 U.S. 51, 62-63, 123 S.Ct. 518, 154 L.Ed.2d 466 (2002) (quoting CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993)).

C

[¶ 23] As previously noted, there are three forms of federal preemption: express preemption, field preemption, and conflict preemption. Express preemption arises when Congress has explicitly defined the extent to which its enactment preempts state law. English, 496 U.S. at 78, 110 S.Ct. 2270; Home of Economy, 2005 ND 74, ¶ 5, 694 N.W.2d 840. There is no provision in the TCPA which explicitly states that the federal statute was intended to preempt state laws prohibiting certain classes of interstate calls. Rather, the federal act includes a provision explicitly stating that such state laws are not preempted by the TCPA. See 47 U.S.C. § 227(e)(1). There is no express preemption in this case.

D

[¶ 24] FreeEats contends that the pervasive and comprehensive scope of the TCPA evidences Congressional intent to fully occupy the field and preempt any and all state laws attempting to regulate or prohibit interstate telemarketing calls.

[¶ 25] Field preemption occurs when Congress intends federal law to occupy the entire field covered by the federal statute, to the exclusion of state regulation of the same subject matter. English, 496 U.S. at 79, 110 S.Ct. 2270; Home of Economy, 2005 ND 74, ¶ 5, 694 N.W.2d 840. Such an intent may be inferred when the scheme of federal regulation is so pervasive as to create an inference that Congress left no room for the states to supplement it, or when the federal interest in the field is so dominant that it will be assumed to preclude enforcement of state laws on the same subject. English, at 79, 110 S.Ct. 2270; Home of Economy, at ¶ 5. Where the field to be preempted encompasses areas that have been traditionally occupied by the states through their police power, congressional intent to displace state law must be “clear and manifest.” English, at 79, 110 S.Ct. 2270 (quoting Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977)); Home of Economy, at ¶ 5; see also Ours Garage, 536 U.S. at 432, 122 S.Ct. 2226.

[¶ 26] In Flagship Capital, 2005 UT 76, ¶ 18, 125 P.3d 894, the court expressly-rejected the notion that the federal interest in regulating interstate telemarketing is so dominant that it supersedes all state laws touching the issue:

While it is unquestioned that telemarketing is national, in fact global, in its scope, this confluence of commerce and technology, despite its power to inspire widespread annoyance and worse, throughout our nation, has not necessarily thereby created an exclusive federal interest. The Supreme Court has stated that “every subject that merits congressional legislation is, by definition, a subject of national concern. That cannot mean, however, that every federal statute ousts all related state law.” Hillsborough County v. Automated Labs., Inc., 471 U.S. 707, 716, 105 S.Ct. 2371, 85 L.Ed.2d 714 (1985). An apt analogy is the regulation of interstate highways. There, the interstate nature of the field is so undisputable that the subject has the word “interstate” in its name. However, this does not mean that federal interests dominate in the regulation of this interstate system. Instead, most of the regulation of the highways is left to the individual states to regulate through their police power to protect their citizens’ health, welfare, and safety. Interstate telemarketing fits a similar niche. Like interstate highways, there is a federal interest, as illustrated by the TCPA, to define the basic parameters within which interstate telemarketing may occur. Within those walls, however, the states are left with discretion to determine whether the welfare of their citizens requires greater protection and to act on that determination.

[¶ 27] Similarly, the United States Supreme Court in Hillsborough, 471 U.S. at 717, 105 S.Ct. 2371, concluded that the comprehensive nature of federal law on a subject does not necessarily mean states are barred from imposing additional requirements:

In New York Dept. of Social Services v. Dublino, 413 U.S. 405, 93 S.Ct. 2507, 37 L.Ed.2d 688 (1973), the Court stated that “[t]he subjects of modern social and regulatory legislation often by their very nature require intricate and complex responses from the Congress, but without Congress necessarily intending its enactment as the exclusive means of meeting the problem.” Id., at 415, 93 S.Ct., at 2514. There, in upholding state work-incentive provisions against a preemption challenge, the Court noted that the federal provisions “had to be sufficiently comprehensive to authorize and govern programs in States which had no ... requirements of their own as well as cooperatively in States with such requirements.” Ibid. But merely because the federal provisions were sufficiently comprehensive to meet the need identified by Congress did not mean that States and localities were barred from identifying additional needs or imposing further requirements in the field.

[¶ 28] The inclusion in a federal act of a specific, limited preemption provision is a clear expression of Congressional intent that federal law was not meant to wholly preempt state law in this field. Billey, 1998 ND 120, ¶ 31, 579 N.W.2d 171. The United States Supreme Court recognized in Cipollone, 505 U.S. at 517, 112 S.Ct. 2608:

When Congress has considered the issue of pre-emption and has included in the enacted legislation a provision explicitly addressing that issue, and when that provision provides a “reliable indicium of congressional intent with respect to state authority,” Malone v. White Motor Corp., 435 U.S., at 505, 98 S.Ct., at 1190, “there is no need to infer congressional intent to pre-empt state laws from the substantive provisions” of the legislation. California Federal Savings & Loan Assn. v. Guerra, 479 U.S. 272, 282, 107 S.Ct. 683, 690, 93 L.Ed.2d 613 (1987) (opinion of Marshall, J.).

[¶ 29] The United States Court of Appeals for the Eighth Circuit has expressly held that there was no intent by Congress to create field preemption under the TCPA:

The TCPA carries no implication that Congress intended to preempt state law; the statute includes a preemption provision expressly not preempting certain state laws. If Congress intended to preempt other state laws, that intent could easily have been expressed as part of the same provision. Further, the preemption provision makes it clear that Congress did not intend to “occupy the field” of ADAD regulation, see Florida Lime & Avocado Growers v. Paul, 373 U.S. 132, 142, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963), or to promote national uniformity of ADAD regulation, as it expressly does not preempt state regulation of intrastate ADAD calls that differs from federal regulation.

Van Bergen, 59 F.3d at 1548.

[¶ 30] The TCPA includes explicit provisions stating the TCPA was not intended to preclude enforcement of all state laws within its subject matter. See 47 U.S.C. § 227(e)(1). In fact, 47 U.S.C. § 227(e)(1) is expressly titled “State law not preempted.” See Chair King, Inc. v. GTE Mobilnet of Houston, Inc., 184 S.W.3d 707, 718 (Tex.2006). The TCPA also contains a provision reserving the right of state officials to bring actions in state courts “on the basis of an alleged violation of any general civil or criminal statute of such State.” 47 U.S.C. § 227(f)(6). The statutory language of the TCPA clearly expresses the intent of Congress that the TCPA was not meant to wholly occupy the field within its subject matter, and was not intended to preempt all state law affecting the same subject. We conclude there is no field preemption in this case.

E

[¶ 31] The final prong of preemption analysis is conflict preemption. Conflict preemption may be found to exist “where it is impossible for a private party to comply with both state and federal requirements, or where state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’” English, 496 U.S. at 79, 110 S.Ct. 2270 (citation omitted) (quoting Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941)); Home of Economy, 2005 ND 74, ¶ 5, 694 N.W.2d 840 (quoting English).

[¶ 32] FreeEats has failed to meet its burden of demonstrating that application of N.D.C.C. § 51-28-02 to interstate political polling calls would make it impossible for a private party to comply with both federal and state law. In analyzing such “actual conflict” preemption, the United States Supreme Court has used the example of a state law that would “premis[e] liability upon the presence of the very windshield retention requirements that federal law requires.” Geier v. American Honda Motor Co., 529 U.S. 861, 871-72, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000). There has been no showing that a telemarketer’s compliance with the prohibitions in N.D.C.C. § 51-28-02 would place it in direct noncompliance with the TCPA. In the context of this case, FreeEats would not have violated any provision in the TCPA if it had complied with North Dakota law and refrained from placing calls to North Dakota residents.

[¶ 33] FreeEats argues that there is an actual conflict between federal and state law because “FreeEats can conform to both sets of requirements only by forsaking the federally recognized right to use prerecorded messages when making interstate polling calls to residents of North Dakota.” In addition to being premised upon a misreading of the clear and unambiguous language of the TCPA’s savings clause, FreeEats’ contention ignores the “interstitial nature” of federal law. See Billey, 1998 ND 120, ¶28, 579 N.W.2d 171. States are generally free to complement federal law by identifying additional local needs and imposing further regulations. See Hillsborough, 471 U.S. at 717, 105 S.Ct. 2371. A federal statutory prohibition of certain conduct does not automatically create an overarching right to engage in all conduct not expressly prohibited by the statute.

[¶ 34] Addressing whether the TCPA preempts application of state telemarketing laws to interstate telemarketing calls, the Supreme Court of Utah reasoned:

Close examination of the Utah laws shows that they are not in conflict with the TCPA, nor do they stand as an obstacle to the accomplishment and full objective of federal law. We see no reason why telemarketing companies would be unable to comply with both the Utah laws and the federal statutes. This intention of the Utah legislature is made clear by Utah Code section 13-25a-103(4), which reads: “A person may not make or authorize a telephone solicitation in violation of Title 47 U.S.C. 227.” The telemarketing standards set by our legislature are stricter than, but do not directly conflict with, the federal standards. A telemarketer who complies with the Utah standards will have little difficulty complying with the federal standards. Moreover, the record does not reflect that a national telemarketer would confront any substantial hardship by being required to determine which of its calls reach the telephones of Utah residents. Therefore, the Utah law does not force a telemarketer to conform its nationwide practices with Utah standards in order to prevent an inadvertent violation. The telemarketer can simply identify those calls that would be made to Utah and choose to not make those calls or to conform those calls to the Utah regulations. That the TCPA creates a uniform nationwide minimum set of prohibited telemarketing activities does not mean that Utah’s heightened standard for companies wishing to make phone calls to this state conflicts with the federal scheme.

Flagship Capital, 2005 UT 76, ¶ 22, 125 P.3d 894 (footnote omitted); see also Chair King, 184 S.W.3d at 718 (“Congress clearly did not intend the TCPA to establish a ceiling if states decided to be more aggressive in their approach”).

[¶ 35] Similarly, we conclude FreeEats has failed to demonstrate that application of N.D.C.C. § 51-28-02 to interstate political polling calls would stand as an obstacle to the accomplishment of the full purposes of Congress in enacting the TCPA. When Congress has addressed preemption in the federal statute, preemption is necessarily a question of statutory construction, Home of Economy, 2005 ND 74, ¶ 6, 694 N.W.2d 840, and where Congress has expressed its intent in reasonably plain terms the language of the statute is ordinarily regarded as conclusive. Negonsott v. Samuels, 507 U.S. 99, 104, 113 S.Ct. 1119, 122 L.Ed.2d 457 (1993). Here, the plain language of 47 U.S.C. § 227(e)(1) demonstrates that it was not within the full purposes of the TCPA to prevent states from prohibiting certain interstate telemarketing calls.

[¶ 36] FreeEats argues that the United States Supreme Court’s decisions in Geier, 529 U.S. 861, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000) and United States v. Locke, 529 U.S. 89, 120 S.Ct. 1135, 146 L.Ed.2d 69 (2000), make it clear that statutory savings clauses do not insulate state enactments from preemption analysis. See also Sprietsma, 537 U.S. at 65, 123 S.Ct. 518. The Court in those cases recognized that inclusion of a savings clause in a federal statute does not bar the ordinary working of conflict preemption principles. See Sprietsma, at 65, 123 S.Ct. 518; Geier, at 869, 120 S.Ct. 1913. The Court did not, however, hold that the language Congress employed in a savings clause is wholly immaterial to preemption analysis. The Court merely rejected the notion that inclusion of a savings clause created a “special burden” beyond that inherent in ordinary preemption principles, and concluded state law may be found preempted by federal law if there is an actual conflict with the federal objective. See Geier, at 870-72, 120 S.Ct. 1913.

[¶ 37] We do not read those cases as holding that a court may not consider the precise language of a savings clause when discerning the intent of Congress and the purpose of the federal act when determining whether conflict preemption is present. In each of those cases, the Court was required to determine whether conflict preemption existed when there were inconsistent and conflicting preemption provisions and savings clauses within the federal statutes. They did not involve, as this case, an express provision explicitly providing that nothing in the federal statute “shall preempt any State law” on the precise subject matter involved in the case.

[¶ 38] We have analyzed the preemption question under ordinary conflict preemption principles. In doing so, we have attempted to discern the intent of Congress and to give effect to the purposes underlying the TCPA. We have found Congressional intent and the resulting purpose of the statute in the clear and unambiguous language of the statute. Where Congress has included an express provision granting states the power to enact laws prohibiting the use of automatic telephone dialing systems or artificial or prerecorded voice messages in interstate telemarketing calls, it cannot frustrate the intent of Congress when the state acts within the terms of that grant.

[¶ 39] In defining express preemption, the United States Supreme Court has held that “[p]re-emption fundamentally is a question of congressional intent, and when Congress has made its intent known through explicit statutory language, the courts’ task is an easy one.” English, 496 U.S. at 78-79, 110 S.Ct. 2270 (citation omitted). Although this rule is ordinarily applied in situations where Congress has expressly declared that certain state laws are preempted, we see no reason why it does not apply with equal force when Congress clearly and unambiguously states that certain state laws are not preempted by the federal act. In either case, the intent of Congress is clear from the statutory language, and the court’s “easy” and solitary task is to enforce the statute according to its terms. We conclude Congress has clearly and unambiguously expressed its intent that the TCPA does not preempt application of a state statute prohibiting interstate telemarketing calls which use automatic dialing equipment or artificial or prerecorded voice messages.

[¶ 40] Our holding is in accord with the only other appellate decision expressly addressing this issue to date. See Flagship Capital, 2005 UT 76, 125 P.3d 894. FreeEats has drawn our attention to a recent federal trial court decision holding, in the context of interstate facsimile advertisements, that the TCPA’s savings clause did not preclude preemption of California’s attempt to regulate interstate fax advertising. Chamber of Commerce v. Lockyer, 2006 WL 462482 (E.D.Cal. Feb.27, 2006). The court’s decision in Lockyer was premised upon its conclusion that the presumption against preemption does not apply and upon a strained reading of the language of 47 U.S.C. § 227(e)(1). We decline to follow Lockyer.

IV

[¶ 41] We have considered the remaining issues and arguments raised by the parties and they are either unnecessary to our decision or are without merit. We affirm the judgment.

[¶ 42] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, and DANIEL J. CROTHERS, JJ., and WILLIAM F. HODNY, Surrogate Judge, concur.

[¶ 43] The Honorable WILLIAM F. HODNY, Surrogate Judge, sitting in place of

SANDSTROM, J., disqualified.


source: Caselaw Access Project

author: CROTHERS, Justice.

license: Public Domain

text:
    2006 ND 83
    Mitchell S. SANDERSON, Plaintiff and Appellant Jonah M. Sanderson and Madelyn R. Sanderson, Plaintiffs v. WALSH COUNTY, Bob Thomas, Sharon Martens, and M. Richard Geiger, Defendants and Appellees.
    No. 20050303.
    Supreme Court of North Dakota.
    April 21, 2006.

      Mitchell S. Sanderson, pro se, Grand Forks, ND, submitted on brief.
    Ronald F. Fischer (on brief), Pearson Christensen Cahill & Clapp, P.L.L.P., Grand Forks, ND and Daniel Lee Gaustad (on brief), Pearson Christensen Cahill & Clapp, P.L.L.P., Grafton, ND, for defendants and appellees Walsh County, Bob Thomas and Sharon Martens.
    Douglas Alan Bahr, Solicitor General (on brief), Office of Attorney General, Bismarck, N.D., for defendant and appellee M. Richard Geiger.
   CROTHERS, Justice.

[¶ 1] Mitchell Sanderson appeals from district court decisions dismissing without prejudice his action against various state and county officials. We hold the district court’s dismissal of Sanderson’s action without prejudice is appealable, and the court did not err in concluding there was insufficient service of process. We affirm.

I

[¶ 2] In March 2005, Sanderson attempted to commence an action against Walsh County, Walsh County Deputy Sheriff Bob Thomas (“Thomas”), Walsh County States Attorney Sharon Martens (“Martens”), and District Court Judge M. Richard Geiger (“Judge Geiger”). From the record, Sanderson filed an affidavit of service by mail indicating his Summons and Complaint were mailed March 9, 2005, by certified mail with return receipt and restricted delivery to Walsh County Commissioner Allen Ruzicka, Bob Thomas, Sharon Martens and Richard Geiger. Sanderson filed another affidavit of service by mail indicating the Summons and Complaint were also mailed on May 31, 2005, to the Governor of North Dakota, by certified mail with return receipt and restricted delivery, and to OMB by first-class mail. Other than the affidavits, however, the record does not contain any return receipts indicating delivery to these individuals actually occurred. Sanderson asserted numerous causes of action against the defendants including civil rights and tort claims arising out of Sanderson’s divorce action and his March'2003 arrest for felonious restraint. The felonious restraint charge was later dismissed. Sanderson’s complaint in this lawsuit seeks damages for actions by Thomas and Martens while employed by Walsh County and actions by Judge Geiger while employed by the State of North Dakota.

[¶ 3] Walsh County, Thomas, and Martens answered Sanderson’s complaint and moved for summary judgment, seeking dismissal for lack of proper service of process. Judge Geiger also moved to dismiss, asserting the district court lacked personal jurisdiction over him due to insufficient service of process. In August 2005, the district court dismissed Sanderson’s complaint without prejudice against all the defendants, concluding there was insufficient service of process.

II

[¶ 4] Before addressing the merits of Sanderson’s appeal, we must first consider whether this Court has jurisdiction to hear his appeal. Sanderson’s Notice of Appeal purports to appeal from the August 1, 2005, Order of Dismissal and Order Granting Motion for Summary Judgment. With regard to the Order of Dismissal for Judge Geiger, a subsequent judgment was entered on August.22, 2005. No judgment was entered upon the Order Granting Summary Judgment for Walsh County, Thomas, and Martens. Because there was a subsequent consistent judgment entered upon the Order of Dismissal against Judge Geiger, and the other order was obviously intended to be final, this appeal is properly before us. See Van Valkenburg v. Paracelsus Healthcare Corp., 2000 ND 38, ¶ 8 n. 1, 606 N.W.2d 908 (treating order granting summary judgment as appealable final order where order was obviously intended to be final); Greenwood, Greenwood & Greenwood, P.C. v. Klem, 450 N.W.2d 745, 746 (N.D.1990) (treating appeal from order as properly before the Court where- subsequent consistent judgment was entered).

[¶ 5] The right to appeal in this State is governed solely by statute. Mann v. N.D. Tax Comm’r, 2005 ND 36, ¶ 7, 692 N.W.2d 490. Without a statutory basis to hear an appeal, this Court must dismiss the appeal. Id. Generally, an order dismissing a complaint without prejudice is not appealable. See Kouba v. Febeo, Inc., 1998 ND 171, ¶ 4, 583 N.W.2d 810; Community Homes of Bismarck, Inc. v. Cloo-ten, 508 N.W.2d 364, 365 (N.D.1993); Runck v. Brakke, 421 N.W.2d 487, 488 (N.D.1988). Because either' party may commence another action after a civil complaint is dismissed without prejudice, an order dismissing an action without prejudice neither “determines the action” nor “prevents a judgment from which an appeal might be taken.” See N.D.C.C. § 28-27-02(1). Such an order of dismissal does not involve the merits of an action or some part thereof. See N.D.C.C. § 28-27-02(5); Runck, at 488.

[¶ 6] We have also explained, however, a dismissal without prejudice may be final and appealable where the dismissal has the “practical effect of terminating the litigation in the plaintiffs chosen forum.” See Haugenoe v. Bambrick, 2003 ND 92, ¶2, 663 N.W.2d 175. We have consistently held that where a statute of limitations has run, a dismissal of the entire action “effectively forecloses litigation in the courts of this state.” Id. Thus, a dismissal without prejudice is appealable where a statute of limitations has run. See Beaudoin v. South Texas Blood and Tissue Center, 2004 ND 49, ¶ 7, 676 N.W.2d 103; Van Klootwyk v. Baptist Home, Inc., 2003 ND 112, ¶ 7, 665 N.W.2d 679; Jaskoviak v. Graver, 2002 ND 1, ¶ 8, 638 N.W.2d 1.

[¶.7] We have also held dismissals without prejudice are final and appealable where litigation is foreclosed in the state courts. See Rolette County Soc. Serv. Bd. v. B.E., 2005 ND 101, ¶4, 697 N.W.2d 333 (holding appealable district court’s order dismissing for lack of subject-matter jurisdiction -due to determination of exclusive tribal court jurisdiction); Pratt v. Altendorf, 2005 ND 32, ¶4, 692 N.W.2d 115 (holding appealable dismissal without prejudice where six-year statute of limitation would not bar plaintiff from bringing a subsequent action, but where certain statutory notice prerequisites to filing an action arising out. of pesticide application did); Winer v. Penny Enters., Inc., 2004 ND 21, ¶ 6, 674 N.W.2d 9 (holding appealable district court’s dismissal for lack of subject-matter jurisdiction over enrolled tribal members); Rodenburg v. Fargo-Moor- head Young Men’s Christian Ass’n, 2001 ND 139, ¶ 12, 632 N.W.2d 407 (holding appealable dismissal on grounds of lack of personal jurisdiction, particularly where the plaintiff cannot cure the defect that led to dismissal); Triple Quest, Inc. v. Cleveland Gear Co., Inc., 2001 ND 101, ¶¶ 8-10, 627 N.W.2d 379 (holding appealable dismissal where application of forum selection clause permanently put plaintiff out of district court).

[¶8] Sanderson’s complaint asserts a number of causes of action, including claims of defamation and false .imprisonment, which have two-year statutes of limitation. See N.D.C.C. § 28-01-18(1); O’Fallon v. Pollard, 427 N.W.2d 809, 811 (N.D.1988). The district court’s dismissal occurred in August 2005, more than two years after Sanderson’s arrest. Assuming arguendo the relevant limitations period commenced with the date of Sanderson’s March 2003 arrest, he would be barred for at least two causes of action. Cf. Chromalloy American Corp. v. Elyria Foundry Co., 955 S.W.2d 1, 3 (Mo.1997) (stating exceptions to general rule that dismissal without prejudice is not appealable where the dismissal operates to preclude party “from bringing another action for the same cause and may be res judicata of what the judgment actually decided” or “has the practical effect of terminating the litigation in the form cast or in the plaintiffs chosen forum”).

[¶ 9] If this Court were to retain jurisdiction only over those claims which arguably are barred by the relevant statutes of limitations and dismiss the remaining causes of action, this would force Sander-son to proceed in a manner akin to an improper splitting of his cause of action. See Freed v. Unruh, 1998 ND 34, ¶ 10, 575 N.W.2d 433 (allowing plaintiff to proceed with lawsuit would be analogous to an improper splitting of cause of action); Farmers Ins. Exchange v. Arlt, 61 N.W.2d 429, 434 (N.D.1953) (stating when there is a single cause of action, although there may be different kinds of damages, only one suit can be brought); Jacobson v. Mutual Ben. Health & Accident Ass’n, 73 N.D. 108, 11 N.W.2d 442 (1943) (holding a person who has availed himself of part of single claim or obligation in action or defense is thereafter estopped from enforcing the remainder of it). Cf. Choice Fin. Group v. Schellpfeffer, 2005 ND 90, ¶¶ 7-9, 696 N.W.2d 504 (explaining where liability rests on the same transaction, an award of some damages, with additional damages reserved, does not constitute a separate claim under N.D.R.Civ.P. 54(b), but is simply an example of an attempt to split a cause of action). Because dismissal here will effectively foreclose some of his claims in a subsequent action, we conclude the district court’s dismissal of Sanderson’s entire action is appealable. We therefore turn to the merits of his appeal.

Ill

[¶ 10] Sanderson asserts the district court erred in dismissing the complaint against Judge Geiger and against Walsh County and its employees based on insufficient service of process. In dismissing Sanderson’s complaint, the district court construed the complaint to be against the defendants in their official capacities. The district court also took judicial notice that Judge Geiger is an elected district judge for the State, despite Sanderson’s failure to name the State as a party. Prior to the district court’s dismissal- of Sanderson’s action, he moved to file an amended complaint that named the State of North Dakota as a defendant. However, before considering Sanderson’s motion to amend, the district court held that it did not have personal jurisdiction over the defendants and dismissed the entire action. We therefore confine our review to the original complaint. Sanderson’s .complaint requests damages against the defendants “jointly and severally for all charges and violations of law for each defendants [sic] are being charged individually for their actions while employed by Walsh County, and Walsh County and the state of North Dakota as respondent [sic] superior.” It is clear from Sanderson’s complaint and it can not be seriously disputed that Sander-son’s claims against the defendants are for actions taken in their official capacities.

[¶ 11] For purposes of valid service of process, suing state officials solely in their official capacities, as opposed to suing them in their individual or personal capacities, is tantamount to suing the State itself. See Livingood v. Meece, 477 N.W.2d 183, 189 (N.D.1991); see also N.D.C.C. § 32-12.2-03(1) (stating an action for an injury proximately caused by alleged negligence, wrongful act, or omission of state employee occurring within the scope of the employee’s employment must be brought against the State). Cf. Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir.1999) (holding a complaint against a public official or employee must explicitly state it as being brought against the person in the person’s individual capacity or else the complaint will be construed as suing the person only in the person’s official capacity); Artis v. Francis Howell North Band Booster Ass’n, Inc., 161 F.3d 1178, 1182 (8th Cir.1998) (stating in order to sue a public official in his or her individual capacity, the plaintiff must expressly and unambiguously state so in the pleadings, otherwise, it will be assumed the defendant is sued only in his or her official capacity). Similarly, for service of process, suing county officials solely in their official capacities is tantamount to suing the county itself. See N.D.C.C. § 32-12.1-04(1) (stating an action for injuries proximately caused by the alleged negligence, wrongful act, or omission of an employee of a political subdivision occurring within the scope of the employee’s employment or office shall be brought against the political subdivision). Therefore, according to law Sanderson’s complaint is against Walsh County and the State of North Dakota for purposes of determining sufficiency of service of process. We do not address, however, whether naming only a state or county employee as a party for actions or omissions within the scope of the employee’s employment complies with either N.D.C.C. § 32-12.2-03 or § 32-12.1-04, respectively.

[¶ 12] Sanderson argues his use of certified mail in attempting service upon Walsh County and the State of North Dakota was sufficient. Sanderson asserts that Judge Geiger, and apparently later the Governor, were served by certified mail; and further, service was attempted on Walsh County Commissioner Allen Ruzicka, also by certified mail with return receipt and restricted delivery, in addition to Thomas and Martens.

[¶ 13] Under N.D.R.Civ.P. 3, an action is commenced by the service of a summons. Valid service of process, as directed by N.D.R.Civ.P. 4, is necessary for a court to acquire personal jurisdiction over a defendant. See Gessner v. City of Minot, 1998 ND 157, ¶ 5, 583 N.W.2d 90. A party must strictly comply with the specific requirements for service of process. Id. Absent valid service of process, even actual knowledge of the existence of a lawsuit is insufficient to effectuate personal jurisdiction over a defendant. Muhammed v. Welch, 2004 ND 46, ¶ 11, 675 N.W.2d 402. Without valid service of process, any judgment is void because the court lacks personal jurisdiction. Smith v. City of Grand Forks, 478 N.W.2d 370, 371 (N.D.1991).

[¶ 14] The North Dakota Rules of Civil Procedure specifically require that an action against the State and against a political subdivision like Walsh County must be commenced by “delivering” a copy of the summons to the appropriate person. Rule 4(d)(2), N.D.R.Civ.P., states in relevant part:

Personal service of process within the state must be made as follows:
(E) upon a city, township, school district, park district, county, or any other municipal or public corporation, by delivering a copy of the summons to any member of its governing board;
(F) upon the state, by delivering a copy of the summons to the governor or attorney general or an assistant attorney general and, upon an agency of the state, such as the Bank of North Dakota or the State Mill and Elevator Association, by delivering a copy of the summons to the managing head of the agency or to the attorney general or an assistant attorney general[.]

[¶ 15] The record reflects Sanderson’s only attempted service on Walsh County and the State was the mailing of the summons and complaint by certified mail. Sanderson argues the word “delivering” in Rule 4(d)(2) includes service by mail. However, neither N.D.R.Civ.P. 4(d)(2)(E) nor 4(d)(2)(F) refer to, or permit, the mailing of a summons. Rather, they specifically require “delivering” a copy of the summons to the officials designated in the relevant subsections of Rule 4.

[¶ 16] In interpreting our rules of court, we apply principles of statutory construction to ascertain intent. See State v. Lamb, 541 N.W.2d 457, 459 (N.D. 1996); Bickel v. Jackson, 530 N.W.2d 318, 320 (N.D.1995). We ascertain intent by looking first to the language of the rule, where words are construed in accordance with their plain, ordinary, and commonly understood meaning. Lamb, at 459. If possible, we construe rules as a whole to give meaning to each word and phrase. Id. We also consider “the actual language, its connection with other clauses, and ‘the words or expressions which obviously are by design omitted.’ ” Clapp v. Cass County, 236 N.W.2d 850, 854 (N.D.1975). In construing statutes and rules, the law is what is said, not what is unsaid, and the mention of one thing implies exclusion of another. Zueger v. North Dakota Workers Compensation Bureau, 1998 ND 175, ¶ 11, 584 N.W.2d 530.

[¶ 17] Rule 4 makes a clear textual distinction between service by “delivering” and service by “mail.” Specifically, N.D.R.Civ.P. 4(d)(2)(A) authorizes personal service of process of a summons upon an individual in several ways, including by “(i) delivering a copy of the summons to the individual personally;” or by “(v) any form of mail or third-party commercial delivery addressed to the individual to be served and requiring a signed receipt and resulting in delivery to that individually’ (Emphasis added.) Rule 4(d)(2)(D) also authorizes service upon a domestic or foreign corporation in several ways, including by “(i) delivering a copy of the summons ...;” or by “(iii) any form of mail or third-party commercial delivery. ...” Those subsections plainly distinguish between personally delivering and the act of mailing and, when mailing is authorized, require the mailing to result in actual delivery. Language authorizing service of process by mailing, without proof of delivery, is conspicuously absent in both N.D.R.Civ.P. 4(d)(2)(E) and 4(d)(2)(F).

[¶ 18] Sanderson’s assertion the word “delivering” in N.D.R.Civ.P. 4(d)(2)(E) and 4(d)(2)(F) includes certified mail would render the inclusion of the specific mailing requirements under N.D.R.Civ.P. 4(d)(2)(A)(v) and 4(d)(2)(D)(iii) redundant and largely meaningless. See Bickel, 530 N.W.2d at 320 (stating a presumption the legislature acts with purpose and does not perform idle acts); cf. Helmets v. Sortino, 545 N.W.2d 796, 799 (N.D.1996) (holding, prior to the 1999 amendment of N.D.R.Civ.P. 4(d)(2)(A)(v) . and 4(d)(2)(D)(iii) to allow third-party commercial delivery, .that Federal Express delivery is not mail delivery); Gabriel v. United States, 30 F.3d 75, 77 (7th Cir.1994) (holding the Rule 4 requirement of “delivery” to the appropriate United States Attorney required personal service, not service by certified mail). Furthermore, this Court stated nearly a century ago, “[T]he use of the words ‘personal service,’ unqualified, in a statute means actual service by delivering to the person, and not to a proxy.” McKenzie v. Boynton, 19 N.D. 531, 536, 125 N.W. 1059, 1062 (N'.D.1910). We conclude therefore that “delivering” a copy of the summons as contemplated under N.D.R.Civ.P. 4(d)(2)(E) and 4(d)(2)(F) does not include mailing, even by certified mail with return receipt and restricted delivery.

[¶ 19] From our review 'of the record, Sanderson did not comply with N.D.R.Civ.P. 4(d)(2)(E) and 4(d)(2)(F) tó effectuate proper service on the State or on Walsh County. We hold the district court did not err in dismissing Sanderson’s complaint against all the defendants for insufficient service of process.

IV

[¶ 20] The district court decisions are affirmed.

[¶ 21] GERALD W. VANDE WALLE, C.J., DALE V. SANDSTROM and CAROL RONNING KAPSNER, JJ„ and ALLAN L. SCHMALENBERGER, District Judge, concur.

[¶ 22] The Honorable ALLAN L. SCHMALENBERGER, District Judge, sitting in place of

MARING, J., disqualified.


author: PER CURIAM.

text:
    2006 ND 85
    In the MATTER OF the Application for DISCIPLINARY ACTION AGAINST Monty G. MERTZ, a Member of the Bar of the State of North Dakota. Disciplinary Board of the Supreme Court of the State of North Dakota, Petitioner v. Monty G. Mertz, Respondent.
    No. 20050360.
    Supreme Court of North Dakota.
    April 24, 2006.

      Paul W. Jacobson, Disciplinary Counsel, Bismarck, ND, for petitioner.
    Craig E. Johnson, Johnson, Ramstad & Mottinger, P.L.L.P., Fargo, ND, for respondent.
   PER CURIAM.

[¶ 1] Disciplinary Counsel and Monty G. Mertz object to a report by the hearing panel of the Disciplinary Board which found Mertz violated N.D.R. Prof. Conduct 3.4(a) and 4.4 and recommended Mertz be suspended from the practice of law for one month and pay $2,966.96 in costs and expenses for the disciplinary proceeding. We conclude there is clear and convincing evidence that Mertz violated N.D.R. Prof. Conduct 4.4, and order that Mertz be publicly reprimanded and pay the costs and expenses of the disciplinary proceeding.

I

[¶ 2] On the night of November 2, 2004, Meagan Mertz, the daughter of attorney Monty Mertz, and her dogs encountered Gary Allen Hanson in a West Fargo park. Meagan Mertz’s dogs approached Hanson and one of the dogs bit Hanson’s leg. Later that night, Hanson contacted the West Fargo police to report the incident. The police issued a press release, asking for help in identifying the dogs’ owner to determine if the dogs had received rabies vaccinations. Hanson also contacted the local news media about his version of the events. Meagan Mertz eventually contacted the West Fargo police and informed them that she owned the dogs and they had received rabies vaccinations.

[¶ 3] Hanson signed a complaint for a vicious-animal-at-large infraction for violation of West Fargo city ordinance 11-0103. A police officer also signed a second complaint for an unlicensed-animal infraction in violation of West Fargo city ordinance 11-0204.

[¶ 4] Monty Mertz subsequently sent Hanson a letter informing Hanson that Mertz was representing his daughter. The letter accused Hanson of lying under oath when he signed the vicious animal at large complaint and included a draft of a defamation complaint that Mertz said he planned to file against Hanson depending upon “how reasonable or unreasonable” Hanson chose to be. The draft of the defamation complaint alleged Hanson “intentionally and maliciously made false and defamatory statements, orally and in writing, about Meagan N. Mertz, stating falsely, among other things, that she committed the public offense of owning a ‘vicious dog,’ which is defamation per se.” The defamation complaint accused Hanson of making defamatory statements to the news media, law enforcement, and the West Fargo Municipal Court. Mertz’s letter stated, “If you wish to minimize the consequences to you for your dishonesty, then you will agree to the dismissal of the charge you signed.”

[¶ 5] Monty Mertz’s letter also offered Hanson a settlement. Mertz asked Hanson to dismiss the vicious dog claim, and in exchange, his daughter would admit to the unlicensed dog charge and pay any reasonable out of pocket expenses Hanson incurred as a result of the bite. The letter gave Hanson a deadline for the settlement and required Hanson to respond by that date or Monty Mertz would file the defamation action.

[¶ 6] A hearing panel concluded Mertz violated N.D.R. Prof. Conduct 3.4(a) and 4.4 and recommended Mertz be suspended from the practice of law for one month and pay $2,966.96 in costs and expenses for the disciplinary proceeding.

II

[¶ 7] This Court reviews disciplinary proceedings de novo on the record, and disciplinary counsel must prove each alleged violation of the disciplinary rule by clear and convincing evidence. Disciplinary Bd. v. Leier, 1997 ND 79, ¶ 3, 562 N.W.2d 741. We give due weight to the findings, conclusions, and recommendations of the hearing panel, but do not rubber stamp the report. Id. We review each case upon its own facts to determine what discipline is warranted. Id. The purpose of the disciplinary proceeding is “not to punish an attorney but to determine, in the public interest, if the attorney should be permitted to practice law.” Matter of Application of Kraemer, 411 N.W.2d 71, 74 (N.D.1987).

A

[¶ 8] Mertz argues he did not violate N.D.R. Prof. Conduct 3.4(a) by unlawfully obstructing another party’s access to evidence, nor did he attempt to dissuade Hanson from providing truthful information or from testifying in court. Mertz argues his letter requests Hanson discontinue making false statements regarding Mertz’s client and her dogs. Mertz also argues the request for dismissal of the vicious dog infraction was part of an offer of settlement and was appropriate.

[¶ 9] Rule 3.4(a), N.D.R. Prof. Conduct, states that a lawyer shall not “unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other matérial having potential evidentiary value.” The hearing panel concluded Mertz violated this rule when he attempted to intimidate Hanson for the purpose of dissuading him from providing evidence or information to the court by demanding Hanson agree to a dismissal of the vicious dog infraction or he would be sued for defamation for the privileged statements Hanson made to the West Fargo Municipal Court and law enforcement.

[¶ 10] A lawyer violates Rule 3.4(a) when the lawyer threatens a witness with a defamation action for statements the witness made and cannot be held liable for, in an attempt to dissuade the witness from giving evidence to the court, because it attempts to unlawfully obstruct another party’s access to evidence. Disciplinary Action Against Dvorak, 2000 ND 98, ¶ 13, 611 N.W.2d 147. In Dvorak, the attorney sent a letter to a witness threatening a defamation lawsuit based on the witness’s privileged communications in answer to a guardian ad litem’s questionnaire. Id. at ¶ 12. The letter required the witness to “correct” her statements in the questionnaire, or the attorney’s client would “pursue all remedies available to him.” Id. at ¶ 3. This Court concluded the attorney’s letter requesting the witness “correct” her privileged statements was an unlawful attempt to dissuade the witness from providing information to the court. Id. at ¶ 13. This Court held the attorney violated Rule 3.4 when she threatened the witness with a defamation action based upon the witness’s privileged statements. Id.

[¶ 11] The situation in Dvorak differs significantly from this case. In Dvorak, the attorney’s action had no legitimacy and served no purpose other than to coerce a witness to change or withhold privileged information from the court. Dvorak, 2000 ND 98, ¶ 13, 611 N.W.2d 147. In this case, Mertz had a potentially valid defamation claim for the statements Hanson made to the media, because those statements were not privileged and Hanson could be held liable for them in a defamation suit. Likewise, it is also possible Hanson could be held liable for the statements he made to law enforcement, if they were made with malice, because statements to law enforcement are only qualifiedly privileged. Richmond v. Nodland, 552 N.W.2d 586, 589 (N.D.1996).

[¶ 12] Section 29-01-16, N.D.C.C., allows for compromise of an offense that is an infraction, when the person injured by the offense has a remedy by a civil action. The proceedings against the defendant are terminated if the defendant and the injured party reach a compromise and the injured party receives satisfaction for the injury. N.D.C.C. § 29-01-17. We conclude Mertz’s proposed compromise was permissible, under N.D.C.C. §§ 29-01-16 and 29-01-17, to the extent that it proposed payment for Hanson’s medical expenses and agreed not to file the defamation action for the statements to police and the news media, if Hanson agreed to dismiss the vicious animal at large complaint.

[¶ 13] We agree with the hearing panel that statements Hanson made to the West Fargo Municipal Court in the vicious dog complaint are absolutely privileged, because they are statements made in a judicial proceeding, and therefore, Hanson cannot be held liable for them. N.D.C.C. § 14-02-05(2); See Rykowsky v. Dickinson Pub. Sch. Dist. No. 1, 508 N.W.2d 348, 351 (N.D.1993). Threatening Hanson with a lawsuit based on absolutely privileged statements Hanson made to the West Fargo Municipal Court was impermissible and clearly an error of judgment. Although Mertz’s letter included one impermissible threat, we conclude there is not clear and convincing evidence Mertz violated Rule 3.4(a) because his letter was legitimate in many respects and served a purpose other than to coerce Hanson into changing or withhold information from the court.

B

[¶ 14] Disciplinary Counsel argues, and the hearing panel concluded, Mertz used inappropriate language in the letter to Hanson, which violated N.D.R. Prof. Conduct 4.4. by burdening, embarrassing, and attempting to intimidate Hanson from giving evidence and requesting he agree to the dismissal of the vicious dog infraction pending against Meagan Mertz. We agree.

[¶ 15] Rule 4.4, N.D.R. Prof. Conduct, provides, “[i]n representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.” The comment to Rule 4.4 states, “a lawyer shall not ... act on a client’s behalf only to harass or maliciously injure another.”

[¶ 16] Mertz argues the key language in Rule 4.4 is that the lawyer’s actions must have “no substantial purpose” other than to embarrass a third person. He argues there were many valid purposes for the letter, including stopping Hanson from lying, stopping Meagan Mertz’s suffering, and compromising the pending infraction and reimbursing Hanson’s medical expenses.

[¶ 17] We agree with Mertz that those are all valid purposes for the letter. An attorney can encourage a third party not to lie and remind them they are required to testify truthfully. Likewise, an attorney can attempt to compromise an infraction under N.D.C.C. §§ 29-01-16 and 29-01-17.

[¶ 18] However, we conclude the portion of the letter calling Hanson an animal hater and abuser and the statements suggesting Hanson was sneaking up on Meagan Mertz in the dark do not support the suggested valid purposes and were inappropriate and in violation of Rule 4.4. See Dvorak, 2000 ND 98, ¶ 14, 611 N.W.2d 147. Mertz’s letter states:

You would never have been bitten by [Meagan’s dog] had you not attacked her. You must be either an animal hater or ignorant of animals, or both, to conduct yourself the way you did. ■
The other issue here is that my daughter was alone, on a dark, windy, rainy evening. A reasonable argument can be made that you snuck up on her and the dogs ... The unreasonable, ridiculous, angry, aggressive actions you took were very threatening to [Meagan’s dog] and Meagan ... In an atmosphere where Alfonso Rodriguez is facing the death penalty for abducting a young woman just my daughter’s age, one should be very careful about sneaking up on a young woman in the dark. If you do, you should be willing to accept the consequences.

[¶ 19] We conclude these statements did not serve the legitimate purposes of Mertz’s letter and no substantial purpose existed for these statements other than to embarrass or burden Hanson. We conclude Disciplinary Counsel has proven by clear and convincing evidence that Mertz violated Rule 4.4.

Ill

[¶ 20] Disciplinary Counsel objected to the hearing panel’s report, arguing Mertz also violated N.D.R. Lawyer Discipl. 1.2(A)(2), through a violation of N.D.C.C. § 12.1-09-01(1)(a) and (b)(1); N.D.R. Prof. Conduct 8.4(d); and N.D.C.C. §§ 27-14-02(1) or 27-14-02(7) through a violation of N.D.C.C. §§ 12.1-09-01(l)(a) and (b)(1). Citing State v. Howe, 247 N.W.2d 647 (N.D.1976), in support of its position, Disciplinary Counsel argues Mertz’s conduct constituted the criminal offense of tampering with a witness under N.D.C.C. § 12.1-09-01. Although Mertz has not been charged with the criminal offense of tampering with a witness under N.D.C.C. § 12.1-09-01, Disciplinary Counsel contends a conviction is not necessary to find that Mertz’s conduct constituted a criminal act and a violation of the disciplinary rules.

[¶ 21] Howe does not control in this case, because the only issue before this Court in Howe was whether the information was sufficient to charge the defendant with witness tampering under N.D.C.C. § 12.1-09-01. Howe, 247 N.W.2d at 655.

[¶ 22] We conclude it is unnecessary to determine whether Mertz’s conduct constituted a violation of N.D.R. Lawyer Discipl. 1.2(A)(2), N.D.R. Prof. Conduct 8.4(d), and N.D.C.C. § 27-14-02. Although criminal acts may be the basis of a disciplinary proceeding, Mertz has not been charged or convicted of any criminal offense for his conduct in this case, and we decline disciplinary counsel’s invitation to decide whether he committed a criminal offense.

TV

[¶23] The hearing panel recommended Mertz be suspended from the practice of law for one month and pay $2,966.96 in costs and expenses for the disciplinary proceeding. Mertz argues the hearing panel failed to address several mitigating factors, and the recommended sanction is not supported by clear and convincing evidence. Disciplinary Counsel argues Mertz should be suspended from the practice of law for six months and one day.

[¶ 24] Reprimand is appropriate for a violation of duties owed to the profession when “a lawyer negligently engages in conduct that is a violation of a duty owed to the profession and causes injury or potential injury to a client, the public, or the legal system.” N.D. Stds. Imposing Lawyer Sanctions 7.3.

[¶ 25] When determining the appropriate sanction for a violation we should consider any aggravating or mitigating factors. N.D. Stds. Imposing Lawyer Sanctions 3.0. The hearing panel found the aggravating factors included two pri- or disciplinary offenses, refusal to acknowledge the wrongful nature of the conduct, and substantial experience in the practice of law. The hearing panel also concluded a portion of the letter may have been an appropriate attempt to compromise the infraction and was a mitigating factor. We conclude the circumstances of this case are exceptional and unlikely to reoccur, and we conclude Mertz does not pose a danger to the public. Although there are aggravating factors, in this case those factors do not warrant an increase in the degree of discipline imposed. We conclude a public reprimand is appropriate.

V

[¶ 26] We conclude Mertz violated N.D.R. Prof. Conduct 4.4, and we order that he be publicly reprimanded and pay $2,966.96 in costs and expenses for the disciplinary proceeding.

[¶ 27] GERALD W. VANDE WALLE, C.J., CAROL RONNING KAPSNER, DALE V. SANDSTROM, and DANIEL J. CROTHERS, JJ„ and EVERETT NELS OLSON, Surrogate Judge, concur.

[¶ 28] The Honorable EVERETT NELS OLSON, Surrogate Judge, sitting in place of

MARING, J., disqualified.