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New opinions: August 4 Thursday, August 4, 2022

The Supreme Court has issued 11 new opinions.

The summaries are below.

To see an opinion, click on the "View Opinion" button. Opinions display in a printable format. Hyperlinks to all North Dakota opinions and rules cited in an opinion are included in the text: hover over the citation and click to follow the hyperlink.

See other Supreme Court opinions at:

Procive v. WSI 2022 ND 159
Docket No.: 20220067
Filing Date: 8/4/2022
Author: VandeWalle, Gerald W.

Highlight: Under N.D.C.C. § 65-10-01, a claimant may appeal from a final action of Workforce Safety and Insurance to the district court of the county where the injury was inflicted or of the county in which they reside, and the claimant has the burden to show the district court has jurisdiction.

Puklich v. Puklich, et al. 2022 ND 158
Docket No.: 20220062
Filing Date: 8/4/2022
Case Type: OTHER (Civil)
Author: McEvers, Lisa K. Fair

Highlight: The doctrine of issue preclusion bars relitigation of issues decided in a prior action.

To bring a derivative action on behalf of a partnership, a litigant must be a partner at the time the action is commenced.

State v. Pulkrabek 2022 ND 157
Docket No.: 20220010
Filing Date: 8/4/2022
Case Type: DUI/DUS
Author: Crothers, Daniel John

Highlight: The Uniform Mandatory Disposition of Detainers Act applies to instances where a detainer has been filed against a person imprisoned in a correctional institution in the state of North Dakota.

The Detainers Act requires trial to take place within 90 days of filing a request for disposition of pending charges subject to exceptions.

Counsel can waive trial within 90 days under the Detainers Act.

Criminal defendants are entitled to counsel at all critical stages of prosecution.

A critical stage of prosecution is a time in which counsel’s absence might derogate from the criminal defendant’s right to a fair trial.

Great Plains Royalty Corp. v. Earl Schwartz Co., et al. 2022 ND 156
Docket No.: 20220052
Filing Date: 8/4/2022
Author: Crothers, Daniel John

Highlight: Subject matter jurisdiction refers to the court’s power to hear and determine the general subject involved in the action.

The United States Bankruptcy Code vested the bankruptcy trustee with title to the bankrupt’s assets.

Upon an appeal from a civil judgment, this Court may modify the judgment to correct an error.

Section 28-26-06(2), N.D.C.C., requires disbursements to the prevailing party for procuring evidence in preparation or use at trial.

State, et al. v. Faber 2022 ND 155
Docket No.: 20210358
Filing Date: 8/4/2022
Case Type: CHILD CUST & SUPPORT (Div.\Other)
Author: Crothers, Daniel John

Highlight: A district court may allow a child who is of sufficient maturity to testify about his or her preferences relating to residential responsibility.

A district court generally cannot delegate to anyone the power to decide questions of residential responsibility.

A district court may not rely solely on a child’s wishes when deciding residential responsibility.

Hamburger v. Hamburger 2022 ND 154
Docket No.: 20220051
Filing Date: 8/4/2022
Case Type: CHILD CUST & SUPPORT (Div.\Other)
Author: Tufte, Jerod E.

Highlight: A vested child support obligation cannot be retroactively modified.

The child support guidelines contemplate child support payments by the parent without primary residential responsibility to the parent with primary residential responsibility.

Parties generally bear their own attorney’s fees unless the fees are expressly authorized by statute.

State v. Netterville 2022 ND 153
Docket No.: 20220017
Filing Date: 8/4/2022
Author: Tufte, Jerod E.

Highlight: An amended judgment entered after revocation must total up all time served for the offense, including time served on the original sentence and time served prior to the revocation hearing, to ensure a defendant does not serve more than the maximum possible sentence for the offense.

B.C. v. NDDHS 2022 ND 152
Docket No.: 20220100
Filing Date: 8/4/2022
Author: VandeWalle, Gerald W.

Highlight: Deference is given to an administrative agency’s reasonable interpretation of its own regulations.

Administrative regulation for excluding autism voucher program funding as a parental responsibility did not involve complex and technical matters calling for agency expertise, and the Department of Human Services’ interpretation was not entitled to appreciable deference.

Sailer, et al. v. Sailer, et al. 2022 ND 151
Docket No.: 20220050
Filing Date: 8/4/2022
Case Type: CHILD CUST & SUPPORT (Div.\Other)
Author: Tufte, Jerod E.

Highlight: A court’s determination that a nonparent did not establish a prima facie case to support an award of nonparent visitation is reviewed de novo.

If the nonparent fails to plead a prima facie case that the nonparent “[i]s a consistent caretaker; or . . . [h]as a substantial relationship with the child and denial of custody or visitation would result in harm to the child,” a court shall dismiss the petition for nonparent visitation.

Northwest Landowners Association v. State, et al. 2022 ND 150
Docket No.: 20210148
Filing Date: 8/4/2022
Author: Tufte, Jerod E.

Highlight: To resolve a facial challenge, we need only interpret the challenged legislation and the relevant constitutional provisions to determine whether there is a conflict.

North Dakota law has long established that surface owners have a property interest in pore space.

Surface owners have a right to compensation for the use of their pore space for disposal and storage operations.

Government-authorized physical invasions of property constitute the “clearest sort of taking” and therefore are a per se taking.

A statute that strips surface owners of their right to possess, use, and exclude others from pore space within their lands and assigns that right to oil and gas operators without surface owners’ consent or compensation is a per se taking.

It is a fundamental principle that a statute may be constitutional in one part and unconstitutional in another part and that if the valid part is severable from the rest, the portion which is constitutional may stand.

42 U.S.C. § 1988 authorizes attorney’s fees to a prevailing challenger of a federal constitutional claim in state court against the state or a state official sued in his or her official capacity regardless of whether §§ 1983 and 1988 are expressly pled in the complaint.

State v. Pendleton 2022 ND 149
Docket No.: 20210287
Filing Date: 8/4/2022
Author: Tufte, Jerod E.

Highlight: Brief sidebars or bench conferences conducted during trial to address routine evidentiary or administrative issues outside the hearing of the jury ordinarily will not implicate the public trial right.

Non-public exchanges between counsel and the court on such technical legal issues and routine administrative problems do not hinder the objectives which the Court in Waller observed were fostered by public trials.

If it would be unreasonable to conclude the defendant’s absence had any effect on the proceedings or the result, such an error is harmless and does not warrant a reversal.

We consider jury instructions as a whole, and determine whether they correctly and adequately inform the jury of the applicable law, even though part of the instructions when standing alone may be insufficient or erroneous.

If juror misconduct is noticed and the criminal defendant does not object or request a mistrial, reversal requires obvious error. We exercise our power to consider obvious error cautiously and only in exceptional situations where the defendant has suffered serious injustice.

This Court has carved out a narrow exception to the general rule that statutes are not retroactive unless expressly declared so by the Legislature when the statute in question involves an ameliorating penal amendment to a criminal statute.