Berger v. N.D. Dept. of Transportation

20100189 Eugene Mike Berger, Plaintiff and Appellant
v.
North Dakota Department
of Transportation, Defendant and Appellee

Appeal from: District Court, South Central Judicial District, Morton County
Judge Donald L. Jorgensen
Nature of Action: Transportation Dept.
Counsel:
Appellant: Danny Lee Herbel
Appellee: Michael Trent Pitcher , Att. General Office
Term: 11/2010   Argument: 11/30/2010  Waived
ND cite: 2011 ND 55
NW cite: 795 N.W.2d 707


Issues: Appellant's Statement of the Issues:
I. The order is not in accordance with the law, the provisions of Chapter 28-32, N.D.C.C. have not been complied with in the proceedings before the agency, and the rules or procedure of the agency have not afforded the appellant a fair hearing.
II. The order is in violation of Mr. Berger's constitutional rights because he was denied due process.

Appellee's Statement of the Issues:
On February 12, 2010, the department rescheduled Berger's March 1, 2010, 2:30 p.m. hearing to February 23, 2010. Berger's counsel appeared at the February 23rd hearing and objected to the change because Berger could not be present. The hearing officer, rather than proceeding with the hearing, discussed rescheduling. The hearing was postponed until March 1, 2010 at 8:00 a.m. after Berger's counsel indicated his client's availability. Was Berger denied a fair hearing and due process when he did not appear in person at the March 1, 2010, hearing?

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Docket entries:
106/28/2010 NOTICE OF APPEAL: 06/24/2010
207/01/2010 DISK - Administrative Transcript dated 03/01/10 (e-mailed)
307/23/2010 RECORD ON APPEAL and Separate no. 3 (Transcript of Testimony- Admin. Hearing)
407/30/2010 MOT. EXT/TIME APPELLANT BRIEF
507/30/2010 E-FILED MOTION
607/30/2010 ACTION BY CLERK. Granted: 08/13/2010
708/13/2010 APPELLANT BRIEF (e-filed) (pdf)
808/13/2010 E-FILED BRIEF (ATB)
908/13/2010 APPELLANT APPENDIX
1008/13/2010 E-FILED APPENDIX
1108/16/2010 Received $25.00 surhcharge for ATB (Receipt #19773)
1208/19/2010 Received 7 copies of ATB from Central Duplicating
1308/19/2010 Received 6 copies of ATA from Central Duplicating
1409/13/2010 APPELLEE BRIEF
1509/13/2010 DISK - aeb (e-mailed)
1610/18/2010 NOTICE OF ORAL ARGUMENT SENT
1711/29/2010 Mr. Herbel's, counsel for Appellant, letter requesting waiver of oral argument
1811/29/2010 E-FILED MOTION (Mr. Herbel's letter requesting waiver of oral argument)
1911/29/2010 ACTION BY SUPREME COURT (Mr. Herbel's request to waive oral argument). Granted
2011/29/2010 oral argument waived on behalf of Appellee under Rule 34 (a)(2) - Sua Sponte
2111/29/2010 ACTION BY SUPREME COURT (waiver of oral argument on behalf of Appellee under Rule 34(a)(2)
2211/30/2010 APPEARANCES: Waived under N.D.R.App.34(f) for Appellant and 34(a)(2) for Appellee
2311/30/2010 ARGUED: Waived under N.D.R.App.34 (f) and (a)
2403/22/2011 DISPOSITION: AFFIRMED
2503/22/2011 UNANIMOUS OPINION: Kapsner, Carol Ronning
2603/22/2011 Costs on appeal taxed in favor of Appellee
2703/23/2011 Judgment Sent to Parties
2804/15/2011 MANDATE
2904/20/2011 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

Generated from Supreme Court Docket on 04/18/2014