Unified Judicial System Clerks Are Not “Civil Officers” Required to Take and File Constitutional Oaths; Baseless Oath Challenges May Be Frivolous

Commentary on Sanderson v. Demers, 2026 ND 113 (N.D. June 4, 2026)

1. Introduction

In Sanderson v. Demers, a self-represented plaintiff sued the Walsh County Clerk of Court and Deputy Clerk of Court, alleging they violated North Dakota law by failing to “take and file an oath of office.” He sought extreme remedies—bond forfeiture payable to him, removal from office, invalidation of all clerk actions in his cases, and damages (including punitive and emotional distress damages).

The defendants moved to dismiss under N.D.R.Civ.P. 12(b)(6) and sought attorney’s fees, arguing the suit was frivolous. The district court dismissed with prejudice and awarded fees. The Supreme Court of North Dakota affirmed, issuing a clarifying, practice-significant interpretation: unified judicial system clerk employees are not “civil officers” required to take and file the constitutional/statutory oath invoked by the plaintiff, and facially inapplicable oath statutes cannot support a viable claim.

2. Summary of the Opinion

  • Dismissal affirmed: The complaint failed to state a claim because the constitutional and statutory oath provisions cited do not apply to unelected, unappointed employees of the unified judicial system serving as district court clerks.
  • Fees affirmed: The attorney’s fee award under N.D.C.C. § 28-26-01(2) was upheld because the claim had a “complete absence of actual facts or law” such that no reasonable person could expect to prevail.
Core holding (practical rule): District court clerks who are employees of the unified judicial system—not elected officials, not appointees of elected officials, and not “ex officio clerks”—are not required by N.D. Const. art. XI, § 4 or N.D.C.C. § 44-01-05 to take and file the constitutional oath of office. Claims premised on otherwise inapplicable oath statutes may be dismissed at the pleading stage and may warrant frivolous-claim fee shifting.

3. Analysis

3.1 Precedents Cited

Schmitz v. N.D. State Bd. of Chiropractic Exam'rs, 2021 ND 73, ¶ 6, 958 N.W.2d 496

This case supplied the court’s baseline appellate standard for Rule 12(b)(6) review: the complaint is construed favorably to the plaintiff, well-pleaded facts are accepted as true, and dismissal is affirmed if there is no “potential for proof” to support relief. The citation framed the analysis as a purely legal sufficiency inquiry—critical here because Sanderson’s theory failed on statutory coverage, not on disputed facts.

Trade 'N Post, L.L.C. v. World Duty Free Americas, Inc., 2001 ND 116, ¶ 20, 628 N.W.2d 707

This decision was cited for the interpretive maxim expressio unius est exclusio alterius (mention of one thing implies exclusion of another). It materially influenced the oath analysis: N.D.C.C. § 44-01-05 defines “civil officer” to “include” elected officials and individuals appointed by elected officials, and requires the oath be attached to a commission, appointment, or election certificate—documents that presuppose elected/appointed status. The court used the maxim to treat the statute’s express inclusions and structural assumptions as excluding ordinary judicial-branch employees like unified judicial system clerks.

State v. First State Bank of Jud, 202 N.W. 391, 396 (N.D. 1924)

The court relied on this historical statement to show that the constitutional oath requirement clearly applies to “each judge” as a “condition precedent” to official acts, but it has not been extended to all judicial-branch employees. The precedent was used not to broaden oath coverage but to illustrate the more limited, office-holder-focused understanding of “members” within the judicial department context.

Sanderson v. Walsh County, 2006 ND 83, ¶ 16, 712 N.W.2d 842

Cited for statutory construction principles emphasizing text, context, and deliberate omissions (“the law is what is said, not what is unsaid,” and the mention of one thing implies exclusion of another). This supported the court’s conclusion that the Legislature, by defining oath obligations in terms of elected/appointee “civil officers,” implicitly exempted other “inferior officers” or employees referenced in the constitutional clause.

Zuraff v. Reiger, 2018 ND 143, ¶ 20, 911 N.W.2d 887

This case clarified what N.D.C.C. § 44-05-01 does: it authorizes specified officials (including clerks) to administer oaths. The citation was used to reject Sanderson’s attempt to convert an “administering oaths” statute into a “must take an oath” requirement. In short, authority to administer does not create a duty to take or file.

State v. Stuart, 544 N.W.2d 158, 160 n.3 (N.D. 1996)

Sanderson leaned on a footnote stating “a district court clerk is required to take an oath of office, see NDCC 11-10-09 and 11-10-13.” The court distinguished it as context-specific: those statutes apply to “county officer[s]” and “deputy county officer[s].” Thus, Stuart was treated as addressing county-employed clerks, not unified judicial system employees. The decision sharply cabins the reach of Stuart when modern clerk services are provided through the unified judicial system rather than county office-holding.

Bolinske v. Sandstrom, 2024 ND 163, ¶¶ 16-17, 20, 10 N.W.3d 770

This precedent supplied the standards for frivolous-claim fee shifting under N.D.C.C. § 28-26-01(2) and the abuse-of-discretion review for fee awards. The court applied Bolinske to affirm that, once a claim is found frivolous, the district court “must” award reasonable costs and attorney’s fees, and that a claim is frivolous when no reasonable person could expect to prevail due to a complete lack of law or facts.

3.2 Legal Reasoning

(a) The court’s threshold: a purely legal coverage problem

Although Sanderson alleged a failure to take and file an oath, the dispositive question was legal: Do any cited constitutional/statutory provisions impose that oath duty on these defendants? Because the defendants were undisputedly unified judicial system employees, the court treated applicability as a matter of law suitable for Rule 12(b)(6) resolution.

(b) “Civil officer” under N.D.C.C. § 44-01-05: elected/appointee status is the dividing line

Sanderson invoked N.D. Const. art. XI, § 4 and N.D.C.C. § 44-01-05. The court’s reasoning turns on statutory structure:

  • Express inclusions: “civil officer includes every elected official and any individual appointed by such elected official.”
  • Filing mechanics: the oath must be attached to a “commission, appointment, or certificate of election,” documents that, in ordinary government practice, belong to office holders, not employees.
  • Employment status: defendants were not elected and “have not been appointed by an elected official” and thus fit neither the express inclusions nor the statutory mechanics.

The court therefore held “as a matter of law” these unified judicial system clerks are not “civil officers,” and Sanderson presented no authority that “members” of the judicial branch in art. XI, § 4 extends to such employees.

(c) Constitutional context: “members” does not mean all employees

To address Sanderson’s broader constitutional framing (“members of the … judicial branches”), the court examined context and history:

  • For the Legislature, “members” clearly means elected legislators, not staff.
  • First State Bank of Jud confirms judges are covered, but does not extend oath requirements to all judicial employees.

This contextual approach supported the conclusion that art. XI, § 4, as implemented by § 44-01-05, targets office-holders, with the Legislature having effectively exempted other categories (“inferior officers”/employees) from the oath requirement.

(d) The “other statutes” fail because they address different actors or different functions

The court then walked through Sanderson’s additional statutory citations and rejected each as inapplicable:

  • N.D.C.C. § 44-05-01: who may administer oaths, not who must take/file them.
  • N.D.C.C. § 27-05.2-07: applies to “ex officio clerk[s] of the district court” (as defined through N.D.C.C. § 27-05.2-02), not unified judicial system employees. Sanderson did not allege the county-election/contracting scenarios that create ex officio status.
  • N.D.C.C. § 27-03-02: applies to the “clerk of the supreme court” and the clerk’s “deputy,” not district court clerks.
  • State v. Stuart / N.D.C.C. §§ 11-10-09, 11-10-13: apply to county officers and deputy county officers; the defendants were not county officers.

Given this mismatch between cited law and defendants’ status, the complaint lacked any viable legal foundation and was properly dismissed.

(e) Frivolousness and fee shifting: facial inapplicability can meet the statutory standard

Applying N.D.C.C. § 28-26-01(2) (and the Bolinske gloss), the court affirmed the “frivolous” finding because:

  • Sanderson’s own allegations placed defendants within the unified judicial system employment structure.
  • The cited statutes, “on their face,” did not apply to such employees.
  • There was no good-faith argument for extension or modification recognized by the court on this record.

The decision thus underscores that persistent reliance on plainly inapplicable provisions—particularly when the plaintiff pleads the disqualifying facts—can support a frivolous-claim fee award.

3.3 Impact

(a) Clarifies oath obligations for modern North Dakota clerk structures

North Dakota’s clerk-of-court services can be delivered through different governance models (county-based, ex officio arrangements, or unified judicial system employment). This opinion provides a clear doctrinal sorting rule: oath duties attach where the law designates an office (elected/appointee “civil officer,” county officer, ex officio clerk, or the specific supreme court clerk/deputy), not where the person is merely an employee of the unified judicial system.

(b) Limits the practical reach of State v. Stuart’s oath footnote

Litigants sometimes cite Stuart broadly to challenge clerk authority. Sanderson v. Demers narrows that move by tying Stuart to the county-officer statutes it cited, reducing the likelihood that oath-based collateral attacks will succeed against unified judicial system clerks.

(c) Deterrence via fee shifting for legally baseless “oath” litigation

By affirming attorney’s fees, the court sends a cautionary signal: oath-based lawsuits against court personnel must be grounded in statutes that actually govern the defendant’s status. Otherwise, plaintiffs risk not only dismissal with prejudice but also paying the government’s attorney’s fees under N.D.C.C. § 28-26-01(2).

4. Complex Concepts Simplified

Rule 12(b)(6) (failure to state a claim)

A Rule 12(b)(6) motion argues: “Even if everything the complaint says is true, the law still provides no remedy.” Here, even accepting that the clerks did not take/file an oath, the cited laws did not impose that duty on unified judicial system employees.

De novo review

The Supreme Court reviewed the dismissal “de novo,” meaning it independently evaluated the legal sufficiency without deferring to the district court’s legal conclusions.

“Civil officer” vs. employee

A “civil officer” generally implies an office-holder (elected or appointed) with formal commissioning/appointment/election documentation. The defendants were employees within the unified judicial system, not office-holders under the cited oath statute.

Expressio unius est exclusio alterius

When a statute specifies certain categories, courts may infer the Legislature meant to exclude others not listed—especially when the statute’s mechanics (like attaching an oath to a commission/appointment/election certificate) fit only the listed categories.

“Ex officio clerk of the district court”

This is a specific statutory role created under N.D.C.C. § 27-05.2-02 when a county designates or contracts for clerk services. It is not synonymous with all clerks who work in district court.

Frivolous claim and fee shifting (N.D.C.C. § 28-26-01(2))

A claim is frivolous when it has such a complete lack of law or facts that no reasonable person could expect to win. If the court finds frivolousness (and the prevailing party properly alleged it), it must award reasonable attorney’s fees and costs.

Abuse of discretion (fees)

The Supreme Court defers to the district court on the fee decision unless it was arbitrary, unreasonable, or based on a legal error. Here, the legal mismatch between the statutes and defendants’ status supported the fee award.

5. Conclusion

Sanderson v. Demers establishes a clear boundary for oath-of-office litigation in North Dakota: unified judicial system district court clerks are not automatically subject to the constitutional/statutory oath requirements applicable to elected officials, their appointees, county officers, or specifically defined clerk offices (such as ex officio clerks or the supreme court clerk and deputy). The opinion also reinforces that when a plaintiff’s own pleaded facts show the cited statutes do not apply, dismissal under Rule 12(b)(6) is appropriate—and pursuing such plainly inapplicable theories may expose the plaintiff to attorney’s fees for a frivolous claim.