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Lawrence v. North Dakota Workers Compensation Bureau3/23/2000
ates, 179 Ct.Cl. 520, 375 F.2d 777 (Ct.Cl. 1967), the court held an agency decision was invalid where the attorney representing the agency communicated with the decision maker, advised him to reject the recommendation of a grievance committee, and participated in preparing the final decision.
The court reasoned:
ne of the fundamental premises inherent in the concept of an adversary hearing, particularly if it is of the evidentiary type, is that neither adversary be permitted to engage in an ex parte communication concerning the merits of the case with those responsible for the decision. . . . It is difficult to imagine a more serious incursion on fairness than to permit the representative of one of the parties to privately communicate his recommendations to the decision makers. To allow such activity would be to render the hearing virtually meaningless. Camero, 375 F.2d at 780-81 (citations omitted); see also, e.g., Sullivan v. Department of the Navy, 720 F.2d 1266, 1271 (Fed. Cir. 1983); Koster v. United States, 231 Ct.Cl. 301, 685 F.2d 407, 412 (Ct. Cl. 1982); Ryder v. United States, 218 Ct.Cl. 289, 585 F.2d 482, 487 (Ct. Cl. 1978); New York State Inspection, Security and Law Enforcement Employees v. New York State Public Employment Relations Board, 629 F.Supp. 33, 44-45 (N.D.N.Y. 1984); Louisiana Pacific Corp. v. Koons, 816 P.2d 1379, 1382 (Alaska 1991); 4 Jacob A. Stein et al., Administrative Law § 32.01 (1998).
[ ] In Scott, 1998 ND 221, 13, 587 N.W.2d 153, we also decided N.D.C.C. § 65-01-16(8), was not applicable to that case, because the injured worker 's claim was filed before July 31, 1997. In Scott, we were not asked to construe N.D.C.C. § 65-01-16(8); rather, we referred to the Bureau's characterization of the statute, and we rejected the Bureau's argument the legislative history should be considered to support its position the provision was intended to clarify existing law to allow the ex parte contacts in that case. Scott, at 14.
[ ] Here, Lawrence's claim was filed after the effective date of N.D.C.C. § 65-01-16(8), and that provision applies to his claim. In support of his motion to supplement the record in the district court, Lawrence argued "nothing in [N.D.C.C. § 65-01-16(8)] allows the consultations to be ex parte or exempts the bureau from N.D.C.C. ch. 28- 32 certified record filing requirement." In denying Lawrence's motion, the district court cited our decision in Scott and effectively construed N.D.C.C. § 65-01-16(8) to authorize ex parte contacts between the Bureau and its outside counsel about a pending ALJ recommendation. Although the Bureau now argues there is no claim it deviated from the statutory mandates in N.D.C.C. § 65-01-16(8) or N.D.C.C. ch. 28-32, the district court effectively construed N.D.C.C. § 65-01-16(8) to allow ex parte contacts in this situation, and our analysis begins with the interpretation of that statute.
[ ] Our primary objective in construing statutes is to ascertain the legislature's intent, and we look first at the words used in the statute, giving them their plain, ordinary, and commonly understood meaning. Witcher v. North Dakota Workers Comp. Bur., 1999 ND 225, 11, 602 N.W.2d 704. If the plain language of a statute is clear and unambiguous, the letter of the statute cannot be disregarded under the pretext of pursuing its spirit because the legislative intent is presumed clear from the face of the statute. County of Stutsman v. State Hist. Soc., 371 N.W.2d 321, 325 (N.D. 1985). See N.D.C.C. § 1-02- 05. We construe related statutes as a whole to harmonize and give meaning to each word and phrase. Witcher, at 11. We construe statutes to avoid constitutional infirmities. State ex rel. Sprynczy
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