December 2003
December 29, 2003

Saefke v. Stenehjem, 2003 ND 202
An action by a private party against the attorney general to challenge the correctness of an attorney general's opinion does not present a justiciable controversy.
A petitioner is not entitled to a writ of mandamus to compel a state's attorney to institute proceedings because the petitioner has a plain, speedy, and adequate remedy available under N.D.C.C. 11-16-06.
An order refusing to appoint a private attorney to initiate proceedings under N.D.C.C. 11-16-06 is not appealable.
The Supreme Court's jurisdiction to issue a supervisory writ is discretionary.

December 23, 2003

DuPaul v. N.D. Dept. of Transportation, 2003 ND 201
A motorist may not appeal an administrative decision by the Department of Transportation to the district court and simultaneously petition for reconsideration of the Department's denial. If the motorist files a petition for reconsideration, the motorist may appeal the order on reconsideration to the district court.
Gratech Co., Ltd. v. Wold Engineering, P.C., 2003 ND 200
Contracts for the construction and repair of a highway can include contracts for engineering and other professional services needed to complete the construction or repair.
Controversies between a contractor and a third party arising out of any contract for the construction or repair of highways entered into by the director of the department of transportation must be submitted to arbitration, and the arbitrators shall determine all controversies growing out of the contract.

December 19, 2003

Benson v. Workforce Safety and Insurance, 2003 ND 193
If an appellant fails to serve the notice of appeal from an administrative order to the district court as required by the Administrative Agencies Practice Act, the district court lacks subject matter jurisdiction and the appeal must be dismissed.
Eberhardt v. Eberhardt, 2003 ND 199
A sufficient foundation can be established for the admission of medical bills into evidence by the claimant's testimony the bills were incurred.
The question of whether evidence should be excluded for lack of authentication is primarily within the sound discretion of the trial court.
A trial court's determination on visitation is a finding of fact that will not be reversed unless it is clearly erroneous.
Judicial Vacancy in District Judgeship No. 1, Northeast Central Judicial Dist., 2003 ND 189
Judgeship retained at Grand Forks.
Judicial Vacancy in District Judgeship No. 4, East Central Judicial District, 2003 ND 190
Judgeship retained at Fargo.
Linser v. Office of Attorney General, 2003 ND 195
An applicant for Medicaid benefits must prove eligibility.
Assets in a support trust are deemed to be available to the applicant and considered to be part of the applicant's assets in determining Medicaid eligibility. However, assets in a discretionary trust are considered available only to the extent amounts are actually distributed to the beneficiary.
An asset to which an applicant has a legal entitlement is not unavailable simply because the applicant must initiate legal proceedings to access the asset.
N.D. Dept. of Human Services v. Ryan, 2003 ND 196
Related administrative regulations are construed together and in conjunction with enabling legislation to harmonize and give meaning to each provision.
An individual who has been terminated through a reduction-in-force may appeal the hiring authority's decision not to reemploy the individual if no more than one year has elapsed since the individual lost employment due to the reduction-in-force.
In deciding whether to reemploy an individual who has been terminated within one year under a reduction-in force, a hiring authority may conduct personal interviews to determine the minimum qualifications established for the particular position.
State v. Parizek, 2003 ND 192
Conviction of possession of drug paraphernalia is summarily affirmed under N.D.R.App.P. 35.1(a)(4).
State v. Sabinash, 2003 ND 191
Conviction of drug offenses and an order denying motion to suppress summarily affirmed under N.D.R.App.P. 35.1(a)(3).
State v. Waltz, 2003 ND 197
Probable cause to arrest exists when an officer has knowledge that would give a prudent person reasonable grounds to believe an offense has been or is being committed.
After making a lawful custodial arrest of the occupant of an automobile, the police may, as a contemporaneous incident of that arrest, search the passenger compartment of the automobile, including any containers found therein.
The tentative elimination of alcohol as the cause of a defendant's impairment may result in a reasonable suspicion that the defendant is under the influence of drugs.
VND, LLC v. Leevers, 2003 ND 198
The right to the possession of real estate is the only fact that can be litigated in a summary eviction action unless damages or rent is claimed.
When the right to possession depends on whether or not rent was paid or whether there are material breaches, evidence can be presented to determine those issues.
Charges classified as additional rents and defined as such under a lease are considered rents for the purpose of summary eviction.
Failure to pay rent when a credit is due cannot justify summary eviction.
When a lessee is required to purchase insurance of an "all risk" form under a lease to "protect against any loss, damage and/or destruction to the building or any other insurable portion of the demised premises," the language does not also obligate the lessee to provide for liability insurance.
Custom and usage need not be considered when the language of the lease is not ambiguous.
Laches and waiver do not apply when a party is not trying to assert a right or bring a claim.
Zander v. Workforce Safety and Insurance, 2003 ND 194
Clear and convincing evidence means evidence which leads to a firm belief or conviction that the allegations are true.

December 2, 2003

Bay v. State, 2003 ND 183
Issues not raised to the trial court cannot be raised for the first time on appeal.
A nonbinding recommendation of sentence and a binding plea agreement under N.D.R.Crim.P. 11(d) are significantly different.
The State fulfills its obligation in a nonbinding recommendation when it makes the recommendation, and the trial court may impose a harsher sentence without allowing the defendant to withdraw the guilty plea.
Defendants who voluntarily plead guilty waive the right to challenge nonjurisdictional defects occurring before entry of the guilty plea.
Christianson v. Christianson, 2003 ND 186
No North Dakota statute or case law provides for the imputation of income in spousal support cases.
Equalization of income is not a goal or a measure of spousal support although it is a factor which may be considered.
Crane Johnson Lumber Co. v. City of Fargo, 2003 ND 181
Property lying outside the limits of a special improvement district created by a municipality's governing body is not subject to assessment by the special assessment commission.
Fish v. Dockter, 2003 ND 185
To be defamatory, a statement must be false, but there is no liability for defamatory statements that are privileged.
There is a qualified privilege for communications made, without malice, to an interested person by one who is also interested so as to afford a reasonable ground for supposing the motive for the communication innocent.
There is an absolute privilege for communications made incident to and during administrative proceedings.
Interest of L.D., 2003 ND 182
A petition for involuntary treatment must be supported by clear and convincing evidence.
The trial court's determination of clear and convincing evidence that a person requires treatment is a finding of fact subject to a more probing, clearly erroneous standard of review.
If other evidence presented at a treatment hearing supports the underlying allegations of the petition, the petitioner does not have to be present to testify regarding all the allegations in the petition.
Kamara v. State, 2003 ND 179
To establish ineffective assistance of counsel, a person must show counsel's performance fell below an objective standard of reasonableness and the deficient performance prejudiced him.
The standard of review for a claim of ineffective assistance of counsel is a mixed question of law and fact, but the trial court's findings of fact are subject to a clearly erroneous standard of review.
The credibility of witnesses is left to the trial court to determine.
Negaard v. Negaard, 2003 ND 178
Post-judgment divorce order granting costs and attorney's fees summarily affirmed under N.D.R.App.P. 35.1(a)(4), (7).
Paul v. Workforce Safety and Insurance, 2003 ND 188
The vocational rehabilitation statutes are designed to return an injured employee to substantial gainful employment as quickly and with as little retraining as possible.
Workforce Safety and Insurance's decision to terminate rehabilitation benefits must be based upon evidence that jobs exist which provide the applicant a reasonable opportunity for employment and not on a burden-shifting presumption that such jobs exist.
State v. Backlund, 2003 ND 184
An adult is guilty of luring a minor by computer when (1) the adult knows the character and content of a communication that, in whole or in part, implicitly or explicitly discusses or depicts actual or simulated nudity, sexual acts, sexual contact, sadomasochistic abuse, or other sexual performances, (2) the adult willfully uses the computer communication system to initiate or engage in such communication with a person the adult believes to be a minor, and (3) by means of that communication, the adult willfully importunes, invites, or induces the person the adult believes to be a minor to engage in sexual acts or have sexual contact with the adult, or to engage in a sexual performance, obscene sexual performance, or sexual conduct for the adult's benefit, satisfaction, lust, passions, or sexual desires.
North Dakota has jurisdiction to prosecute a defendant who solicits a person believed to be a minor to engage in sexual acts from a computer in Minnesota, where the communication is received in North Dakota and the defendant travels to and is arrested in North Dakota.
North Dakota's luring-a-minor-by-computer law does not violate the Commerce Clause or the First Amendment.
The registration and notification provisions for sexual offenders do not violate procedural due process or double jeopardy.
State v. Dodson, 2003 ND 187
There must be a nexus between the place to be searched and the contraband sought to establish probable cause to issue a search warrant.
State courts apply the good faith exception to the exclusionary rule in a manner that is consistent with United States Supreme Court precedent when evaluating whether evidence should be excluded due to a violation of the Fourth Amendment.
Under the good faith exception to the exclusionary rule, exclusion of evidence is not the proper remedy when an officer has acted upon objectively reasonable reliance that a warrant was properly issued by a neutral and detached magistrate.
State v. Knowels, 2003 ND 180
North Dakota law does not require a chemical test to convict a person of driving while under the influence of alcohol.
A conviction may be sustained when evidence of defendant's intoxication is shown through witness testimony of defendant's intoxication, based on their observations of defendant.