Opinions

State v. Lee, et al. 2025 ND 148
Docket No.: 20250136
Filing Date: 9/11/2025
Case Type: Original Proceeding - Criminal - Writ of Supervision
Author: McEvers, Lisa K. Fair

Highlight: The Court exercises its authority to issue supervisory writs rarely and cautiously, and only to rectify errors and prevent injustice in extraordinary cases when no adequate alternative remedy exists.

A party's notice of withdrawal of a motion after an order ruling on the merits of the motion has no effect on the duly issued order.

Unless an exception applies, when a defendant is charged with a misdemeanor or infraction, and the injured party receives satisfaction for the injury, the court may terminate the criminal proceedings. Compromise between a defendant and injured party is one way in which a prosecution may be terminated; voluntary dismissal by the prosecuting attorney under N.D.R.Crim.P. 48(a) is another way. While the court has discretion in both instances, the compromise statutes do not prevent the State from moving for dismissal under N.D.R.Crim.P. 48(a).

Under N.D.R.Crim.P. 48(a), the prosecuting attorney may not dismiss an indictment, information or complaint except on motion and with the court's approval. The prosecutor should be denied a dismissal, if the court is satisfied that the prosecutor is acting in bad faith, contrary to public interest, or intentionally harassing the defendant. The public interest exception does not allow the court to deny dismissal because it has the potential to undermine some broader societal concern. The court abuses its discretion by denying the State's unopposed motion to dismiss when the State acts in good faith and there has been no indication it has abdicated its prosecutorial duties.

State v. Lee, et al. 2025 ND 148
Docket No.: 20250137
Filing Date: 9/11/2025
Case Type: Original Proceeding - Criminal - Writ of Supervision
Author: McEvers, Lisa K. Fair

Highlight: The Court exercises its authority to issue supervisory writs rarely and cautiously, and only to rectify errors and prevent injustice in extraordinary cases when no adequate alternative remedy exists.

A party's notice of withdrawal of a motion after an order ruling on the merits of the motion has no effect on the duly issued order.

Unless an exception applies, when a defendant is charged with a misdemeanor or infraction, and the injured party receives satisfaction for the injury, the court may terminate the criminal proceedings. Compromise between a defendant and injured party is one way in which a prosecution may be terminated; voluntary dismissal by the prosecuting attorney under N.D.R.Crim.P. 48(a) is another way. While the court has discretion in both instances, the compromise statutes do not prevent the State from moving for dismissal under N.D.R.Crim.P. 48(a).

Under N.D.R.Crim.P. 48(a), the prosecuting attorney may not dismiss an indictment, information or complaint except on motion and with the court's approval. The prosecutor should be denied a dismissal, if the court is satisfied that the prosecutor is acting in bad faith, contrary to public interest, or intentionally harassing the defendant. The public interest exception does not allow the court to deny dismissal because it has the potential to undermine some broader societal concern. The court abuses its discretion by denying the State's unopposed motion to dismiss when the State acts in good faith and there has been no indication it has abdicated its prosecutorial duties.

Northwest Landowners Association, et al. v. State, et al. 2025 ND 147
Docket No.: 20240298
Filing Date: 8/28/2025
Case Type: Appeal - Civil - Constitutional Law
Author: Crothers, Daniel John

Highlight: There is a difference between a claim asserting a law is facially unconstitutional and a claim asserting an unconstitutional facial taking occurred. An ordinary facial challenge requires a plaintiff to prove the legislature exceeded a constitutional limitation when it enacted a law, and consequently the law on its face violates the constitution. A facial taking claim, on the other hand, is a specific type of facial challenge that asserts the mere enactment of a statute constitutes a taking.

Whether a claim is a facial or as-applied challenge is not of great import when deciding whether it has accrued for purposes of a statute of limitation. The accrual date of a facial or as- applied challenge is identical to the accrual date of other substantive claims—the date upon which the plaintiff's injury occurred and the cause of action became complete. A case alleging facial unconstitutionality is ripe not simply when the law is passed but, just like an asapplied challenge, when the government acts pursuant to that law and adversely
affects the plaintiff's rights.

Regulatory takings are different than physical takings. An important distinction between physical and regulatory takings claims is the accrual date. In a regulatory taking, it is passage of the ordinance that injures a property's value or usefulness. But a physical taking causes injury when the property itself is taken.

Garaas, et al. v. Continental Resources, et al. 2025 ND 146
Docket No.: 20250046
Filing Date: 8/28/2025
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Bahr, Douglas Alan

Highlight: Deeds are interpreted in the same manner as contracts. In construing a deed, the primary purpose is to ascertain and effectuate the grantor's intent.

A grantor's intent must be ascertained from the writing alone, if possible. When a deed is unambiguous, the parties' intent is determined from the instrument itself.

The "safe harbor" provision in N.D.C.C. § 47-16-39.1(1) applies when there is a dispute of title that would affect distribution of royalty payments.

Determining who is a prevailing party for an award of disbursements is a question of law, subject to de novo review, while the question of the amount allowed for disbursements and costs is one of fact, subject to an abuse of discretion standard.

Adoption of A.B.G.R. 2025 ND 145
Docket No.: 20250232
Filing Date: 8/28/2025
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: An order terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Adoption of A.R.G.-R. 2025 ND 145
Docket No.: 20250233
Filing Date: 8/28/2025
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: An order terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Vacancy in Judgeship No. 4, NEJD 2025 ND 144
Docket No.: 20250227
Filing Date: 8/18/2025
Case Type: Judicial Administration - Vacancy - Vacancy
Author: Per Curiam

Highlight: Judgeship retained at Devils Lake

State v. Hendricks 2025 ND 143
Docket No.: 20240304
Filing Date: 8/14/2025
Case Type: Appeal - Criminal - Other
Author: Bahr, Douglas Alan

Highlight: If a motion for judgment of acquittal was made at trial on different grounds from the claim asserted on appeal, the issue was not preserved for review.

Section 14-09-22.1, N.D.C.C., does not limit the offense of child neglect to passive conduct. A "willful" failure to provide proper parental care may encompass the deliberate choice to act or to refrain from acting.

It is the responsibility of the party, not the district court, to object to evidence the party believes is inadmissible.

Anne Carlsen Center v. LeFevre, et al. 2025 ND 142
Docket No.: 20250168
Filing Date: 7/31/2025
Case Type: Original Proceeding - Civil - Writ of Supervision
Author: Tufte, Jerod E.

Highlight: A petition for supervisory writ is granted.

In ruling on a motion to compel, the district court must state the reasons for its conclusions with sufficient specificity to afford a clear understanding of its decision and allow for meaningful review.

The withholding party's burden to prove an asserted privilege or protection applies presumes a burden to submit the disputed documents for in-camera review in a form that is readily intelligible to the district court. If the district court is unable to discern the content of a document, it may require the withholding party to assist the court, including by providing a readable copy.

Section 50-25.1-11, N.D.C.C., designates as confidential a "report made under this chapter, as well as any other information obtained." Although "report made" and "information obtained" lack a subject, in context it is clear that the statute refers to reports made to the Department of Health and Human Services. Even if information in a document is later included in a report subject to N.D.C.C. ch. 50-25.1, it is the report and the other information obtained by the Department in association with that report that is confidential.

Documents do not become confidential or privileged by attaching them to a confidential report or privileged email. The lawyer-client privilege protects confidential communications themselves and not necessarily the facts underlying the communications.

A party asserting work-product privilege may not rely on "in anticipation of litigation" as magic words that automatically protect a disputed document from disclosure. The inchoate possibility, or even the likely chance of litigation, does not give rise to work product. To justify work product protection, the threat of litigation must be real and imminent.

Tamm v. Gatzke, et al. 2025 ND 141
Docket No.: 20250062
Filing Date: 7/31/2025
Case Type: Appeal - Civil - Other
Author: McEvers, Lisa K. Fair

Highlight: An easement implied from pre-existing use requires unity of title of the dominant and servient tenement and a subsequent severance; apparent, permanent, and continuous use; and, the easement must be important or necessary for the enjoyment of the dominant tenement.

An easement by necessity arises where there is a conveyance of a part of a tract of land of such nature and extent that either the part conveyed or the part retained is shut off from access to a road to the outer world by the land from which it is severed or by this land and the land of strangers.

A motion for judgment on the pleadings should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

A motion for summary judgment is not an opportunity to conduct a mini-trial, and summary judgment is inappropriate if the court must draw inferences and make findings on disputed facts to support the judgment.

A party seeking an implied easement has the burden of proving the existence of the easement by clear and convincing evidence.