Mandatory Judicial Gatekeeping: In Camera Review Before Accepting Open-Meetings Exemption Claims on Summary Judgment

Introduction

Case: Haskell v. Grand Forks Public Schools, 2026 ND 40 (N.D. Feb. 12, 2026).
Parties: Amber Haskell (plaintiff/appellant) sued Grand Forks Public School District (defendant/appellee).
Context: Haskell challenged the School Board’s closed executive session during a July 24, 2024 “level 4 grievance appeal hearing” involving teacher David Christianson, alleging a violation of North Dakota’s open meetings laws.
Core issues: (1) whether the Board waived the “attorney consultation” basis for closing the meeting by making legal-position statements in public; (2) whether statutory prerequisites for closing were met, including “adverse fiscal effect”; (3) whether due process required giving Haskell access to the executive-session transcript/recording; and (4) whether the district court could grant summary judgment without first reviewing the executive-session recording in camera.

Summary of the Opinion

The Supreme Court of North Dakota affirmed in part and reversed in part. It held: (1) the School Board did not waive its right to enter executive session merely because counsel articulated the District’s legal position publicly; (2) the Board’s motion and procedure were sufficient to enter executive session under N.D.C.C. § 44-04-19.1(5) and related provisions; (3) Haskell had no due process right to access the executive-session transcript simply to litigate whether an exemption applies; but (4) the district court abused its discretion by granting summary judgment without first reviewing the 27-minute executive-session recording in camera to verify that discussion stayed within the attorney-consultation exemption. The Court reversed the dismissal and the cost award, and remanded for in camera review and further proceedings.

Analysis

Precedents Cited

1) Open meetings framework and attorney-consultation limits: Schmitz I and Schmitz II

The Court’s reasoning is anchored in its two prior open-meetings decisions:

  • Schmitz v. N.D. State Bd. of Chiropractic Exam'rs, 2021 ND 73 (Schmitz I): The Court previously reversed a dismissal and ordered in camera review where a plaintiff alleged executive-session discussion exceeded “attorney consultation.” In Haskell, the majority treated Haskell’s allegation (“discussions beyond the attorney's advice and guidance”) as materially indistinguishable from Schmitz I, making in camera review the appropriate verification tool.
  • Schmitz v. North Dakota State Board of Chiropractic Examiners, 2022 ND 52 (Schmitz II): The Court reiterated that attorney consultation is limited, and “all other discussions beyond the attorney’s advice and guidance must be made in the open.” Critically, Schmitz II illustrated why courts must independently check claims of exemption: the Supreme Court’s own in camera review found “ten separate time segments requiring disclosure” that the district court had missed. The Haskell majority used that history to justify a “gatekeeping” duty—judicial review must not be a rubber stamp.

2) Standards of review and procedural posture

  • Axvig v. Czajkowski, 2025 ND 135 (quoting Berger v. Sellers, 2023 ND 171): Provided the de novo standard governing summary judgment—important because the district court relied on the absence of “refuting” affidavits rather than independently verifying the recording.
  • Zittleman v. Bibler, 2025 ND 87 and Overton v. Overton, 2025 ND 187: Confirmed de novo review for alleged due process violations and defined procedural due process as notice plus a meaningful opportunity to be heard.
  • Schmitz II, 2022 ND 52: The Court reiterated that a district court’s decision whether to conduct in camera review is reviewed for abuse of discretion.
  • Estate of Smith, 2021 ND 238: Supplied the abuse-of-discretion formulation (misapplication of law or decision not the product of a rational mental process).

3) North Dakota’s “openness” tradition

  • Adams County Record v. GNDA, 529 N.W.2d 830 (N.D. 1995): Open meetings laws get a “broad and expansive reading” to inform the public how business is conducted and money spent.
  • Hovet v. Hebron Pub. Sch. Dist., 419 N.W.2d 189 (N.D. 1988): Exemptions to openness must be “specific” and “may not be implied.”
  • Grand Forks Herald v. Lyons, 101 N.W.2d 543 (N.D. 1960): Reinforced the legislative purpose of giving the public “the right and the means” to understand public business.

4) In camera review as a common judicial tool in privilege/exemption disputes

  • St. Alexius Med. Ctr. v. Nesvig, 2022 ND 65: Supported in camera review as appropriate “especially when a relatively few number of documents are involved.”
  • Anne Carlsen Ctr. v. LeFevre, 2025 ND 142 and Trinity Med. Ctr., Inc. v. Holum, 544 N.W.2d 148 (N.D. 1996): Used to show courts frequently must do the verification work (reviewing unredacted materials/proposed redactions) when protections are claimed.
  • Hagen v. N.D. Ins. Rsrv. Fund, 2022 ND 53: Example of remand for in camera review to decide exemption applicability.

5) Persuasive authority on information asymmetry: Vaughn and FOIA logic

  • Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973): The majority borrowed Vaughn’s central insight: secrecy disputes are structurally asymmetric because the government alone knows what the withheld material contains; therefore, conclusory affidavits can distort adversarial testing.
  • King v. Dep't of Justice, 830 F.2d 210 (D.C. Cir. 1987): Quoted for the point that accepting inadequately supported exemption claims abandons the court’s de novo review obligation.

6) Other cited authorities shaping sub-issues (waiver and procedure)

  • N.D. Att'y Gen. Op. 2002-O-01, considered persuasive under Sorum v. Dalrymple, 2014 ND 233: Recognized that the attorney-consultation exemption can be waived when the adversary is allowed to attend or review the consultation/work product—though the Court rejected extending that logic to public articulation of a legal position.
  • N.D. Att'y Gen. Op. 2025-O-05: Cited for the procedural requirement that, before executive session, the governing body must announce topics and legal authority (N.D.C.C. § 44-04-19.2(2)(b)).
  • N.D. Att'y Gen. Op. 2015-O-13: Used to illustrate that closing loses justification where the other negotiating party is present (no continuing adverse effect on bargaining position).

7) Dissent’s threshold and presumption-of-regularity authorities

Justice Crothers (joined by Chief Justice Fair McEvers) would have affirmed, emphasizing briefing/waiver and proposing a “minimal threshold” showing before in camera review. The dissent cited: Prod. Credit Ass'n of Mandan v. Olson, 280 N.W.2d 920 (N.D. 1979) (pleading/discovery), Fisher v. Maricopa Cnty. Stadium Dist., 912 P.2d 1345 (Ariz. Ct. App. 1995) (burden shifts after facts alleged), State ex rel. Hicks v. Clermont Cnty. Bd. of Comm'rs, 219 N.E.3d 894 (Ohio 2022) (presumption executive session lawful), Linden Sch. Dist. No. 24 v. Porter, 130 N.W.2d 76 (N.D. 1964) (presumption of regularity), Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49 (2005) (plaintiff bears persuasion), and In re C.A.R., 2020 ND 209 (“may” is discretionary).

Legal Reasoning

1) No waiver from public articulation of the government’s position

The Court accepted that attorney consultation can be waived (agreeing generally with N.D. Att'y Gen. Op. 2002-O-01), but narrowed what constitutes waiver. Here, waiver did not occur because the adversary was not present in the executive session and did not receive the confidential advice. The Court rejected Haskell’s proposed rule that a lawyer’s public explanation of the entity’s legal position forfeits later private consultation, reasoning that such a rule would perversely incentivize less public explanation to avoid waiver and would effectively nullify the exemption.

2) Entering executive session: procedure and “adverse fiscal effect” construed realistically

The Board’s motion identified the topic (legal risks/strengths/weaknesses) and the authority (N.D.C.C. § 44-04-19.1(2), (5)), satisfying the procedural predicate referenced in N.D. Att'y Gen. Op. 2025-O-05 and N.D.C.C. § 44-04-19.2(2)(b).

On the “adverse fiscal effect” element, the Court rejected a “dollar-amount-is-public-so-no-confidentiality” approach. Even if the contract amount was discussed publicly, the Board could still need confidential legal guidance about litigation risk, litigation cost, settlement posture, and broader precedential effects on other disputes—matters that could worsen the public entity’s fiscal position if discussed openly.

3) Due process: no right to the transcript to argue against the exemption

The Court distinguished general due-process principles (e.g., Muraskin v. Muraskin, 336 N.W.2d 332) from exemption disputes. It held Haskell identified no authority giving a requester a constitutional right to access the very material claimed exempt in order to argue it should not be exempt—because that would “vitiate the exemption.” In camera review by the judge is an accepted mechanism for preserving fairness without destroying the confidentiality the law permits.

4) The key new rule: summary judgment requires judicial verification where only the government knows what happened

The doctrinal centerpiece is the Court’s insistence that constitutional and statutory openness commitments require more than reliance on government affidavits where the content is unknowable to the challenger. The district court denied in camera review because Haskell produced “no evidence” contradicting declarations by Board leadership/counsel. The Supreme Court deemed that approach an abuse of discretion: it created a “catch-22” in which Haskell could not allege specifics without access, yet could not obtain review without alleging specifics (and risk sanctions under N.D.R.Civ.P. 56(g)).

Drawing on Vaughn v. Rosen, the Court treated the asymmetry as a structural reason courts must actively perform a gatekeeping role. The Court also emphasized North Dakota’s constitutional presumption of openness (N.D. Const. art. XI, §§ 5–6): when government claims an exception, courts should not “automatically accept the government’s assurance.”

Importantly, the Court framed the burden as modest here: a single 27-minute recording. It did not impose an unlimited duty to review voluminous materials; it suggested tools like sampling or appointing a special master under N.D.R.Civ.P. 53 in truly burdensome cases.

Impact

  • Strengthened judicial “gatekeeping” in open-government litigation: When a plaintiff plausibly alleges an executive session exceeded the attorney-consultation exemption and the key evidence is a recording controlled by the government, district courts risk reversible error if they grant summary judgment without listening to the recording in camera.
  • Reduced strategic value of conclusory affidavits: Public bodies cannot expect exemption disputes to be resolved solely by officials’ or counsel’s assurances where independent verification is practical.
  • Clarified waiver boundaries: Government counsel can explain a legal position publicly without forfeiting the ability to consult privately under N.D.C.C. § 44-04-19.1(5), absent disclosure to the adversary of the confidential consultation itself.
  • Broadened practical understanding of “adverse fiscal effect”: The fiscal harm inquiry encompasses litigation/negotiation posture and risk analysis—not merely whether the monetary amount in dispute is publicly known.
  • Likely procedural shift in trial courts: Expect more routine in camera review of executive-session recordings in open-meetings challenges—especially where the record is short and the claim is that discussion drifted beyond legal advice.

Complex Concepts Simplified

  • “Attorney consultation” (N.D.C.C. § 44-04-19.1(5)): A limited permission to close a meeting so the governing body can receive legal advice about litigation/administrative adversarial proceedings or about legal risks that, if discussed publicly, would hurt the entity financially. Anything beyond the legal advice must generally be discussed in the open.
  • “Adverse fiscal effect”: Not just “how much money is at stake,” but whether public discussion would worsen the government’s financial position (e.g., by weakening litigation strategy, increasing settlement demands, or affecting similar claims).
  • “In camera review”: The judge privately listens to (or reads) the disputed material to decide what parts—if any—must be disclosed, without automatically revealing it to the requester.
  • Why a requester can’t demand to see the confidential material first: If the law allows secrecy for a narrow purpose, giving the requester access just to argue against secrecy defeats the purpose of having the exemption at all.

Conclusion

Haskell meaningfully tightens enforcement of North Dakota’s open-meetings regime by insisting on independent judicial verification—through in camera review—before courts accept exemption claims at summary judgment when the government alone controls the evidence of what occurred in executive session. At the same time, the Court preserved the functional value of attorney consultation by rejecting waiver-by-public-position arguments and by construing “adverse fiscal effect” to include litigation-risk analysis. The decision thus advances transparency not by eliminating executive sessions, but by requiring courts to confirm that closed discussions stay within the narrow bounds the law permits.