Abernathey v. Department of Transportation

20080336 Dean Allan Abernathey, Petitioner and Appellant
v.
Department of Transportation, Respondent and Appellee


Appeal from: District Court, Northeast Judicial District, Bottineau County
Judge Michael G. Sturdevant
Nature of Action: Transportation Dept.
Counsel:
Appellant: Troy Robert Morley
Appellee: Douglas Bruce Anderson , Att. General Office
Term: 04/2009   Argument: 04/28/2009  2:45pm
ND cite: 2009 ND 122
NW cite: 768 N.W.2d 485

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
1. The hearing officer incorrectly labeled the encounter between Deputy Keesler and Mr. Abernathey as a welfare check. The decision must therefore be overturned.
2. Deputy Keeler had no reasonable suspicion or probable cause to approach the vehicle. The encounter was therefore a violation of Abernathey's 4th amendment rights.

Appellee's Statement of the Issues:
I. Whether the hearing officer labeled the encounter between Deputy Keesler and Abernathey as a welfare check or a community caretaker function, and if so, whether such a characterization of the encounter warrants reversal of the hearing officer's decision.
II. Whether Deputy Keesler's approach of Abernathey's vehicle violated his Fourth Amendment rights.

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Docket entries:
112/15/2008 NOTICE OF APPEAL: 12/11/2008
212/31/2008 DISK of Transcript of Administrative Hearing dated 7-7-08
301/09/2009 RECORD ON APPEAL & Transcript of Administrative Hearing dated 7-7-08
401/20/2009 MOT. EXT/TIME APPELLANT BRIEF & Affidavit in Support (faxed)
501/20/2009 E-FILED MOTION (Mot/Ext/ATB)
601/20/2009 ACTION BY CLERK (MAT). Granted: 01/27/2009
701/27/2009 APPELLANT BRIEF (e-filed)
801/27/2009 E-FILED BRIEF - ATB
901/27/2009 APPELLANT APPENDIX (e-filed)
1001/27/2009 E-FILED APPENDIX - ATA
1101/30/2009 Received $25 surcharge for ATB (Receipt #18705)
1201/30/2009 Received 7 copies of ATB from Central Duplicating
1301/30/2009 Received 6 copies of ATA from Central Duplicating
1402/25/2009 MOT. EXT/TIME APPELLEE BRIEF (e-filed letter from Douglas Anderson dated 2-25-09)
1502/25/2009 E-FILED MOTION (MAE)
1602/25/2009 ACTION BY CLERK. Granted: 03/03/2009
1703/03/2009 APPELLEE BRIEF
1803/03/2009 APPELLEE APPENDIX
1903/03/2009 DISK - AEB (e-mailed)
2004/28/2009 APPEARANCES: Troy R. Morley/Douglas B. Anderson, Asst. Attny. General
2104/28/2009 ARGUED: Morley/Anderson
2204/28/2009 ORAL ARGUMENT WEBCAST
2307/09/2009 DISPOSITION: AFFIRMED
2407/09/2009 UNANIMOUS OPINION: Kapsner, Carol Ronning
2507/09/2009 Costs on appeal taxed in favor of Appellee
2607/10/2009 Judgment e-mailed to Parties
2708/05/2009 MANDATE
2808/13/2009 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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