Opinions

Interest of Wedmore 2023 ND 232
Docket No.: 20230150
Filing Date: 12/15/2023
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Crothers, Daniel John

Highlight: An appeal to determine if a person remains a sexually dangerous individual must be taken within 30 days of an entry of an order denying discharge.

State v. Bearce 2023 ND 231
Docket No.: 20230120
Filing Date: 12/15/2023
Case Type: Appeal - Criminal - Misc. Felony
Author: Jensen, Jon J.

Highlight: A district court does not err when reducing a defendant’s sentence within the 120-day period mandated by Rule 35(b), N.D.R.Crim.P.

It is mandatory under Rule 35(b), N.D.R.Crim.P., that the sentencing judge, whenever reducing a sentence as permitted by Rule 35, give his reasons for the reduction.

This Court’s power on appeal is limited by N.D.C.C. § 29-28-35. When the State appeals, this Court cannot reverse an order of the district court if doing so would increase the defendant’s sentence.

Neither the district court nor the State may invoke section 25 rights on behalf of a victim and when no individual exercises the victim’s right to participate in any post-judgment processes and procedures, a court does not err when it issues an order on a post-judgment without the victim’s consideration.

Sargent Cty. Water Resource District v. Beck, et al. 2023 ND 230
Docket No.: 20220357
Filing Date: 12/15/2023
Case Type: Appeal - Civil - Real Property
Author: McEvers, Lisa K. Fair

Highlight: Res judicata prevents relitigation of claims that were raised, or could have been raised, in prior actions between the same parties or their privies. Collateral estoppel precludes litigation of issues actually litigated and necessary to the outcome of the prior case, even if such issues are subsequently presented as part of a different claim. Collateral estoppel requires a final judgment on the merits.

An aggrieved party must appeal a local governing body’s decision rather than seek injunctive or declaratory relief against the enforcement of the decision. Landowners are not foreclosed from challenging whether a drain improvement project is authorized by law in defending against an eminent domain action.

A water resource district may not accumulate a fund exceeding the six-year maximum maintenance levy or obligate the district for costs beyond the maximum maintenance levy without the approval of the majority of the landowners.

Before property can be taken it must appear that the use to which it is to be applied is a use authorized by law. The public uses authorized by N.D.C.C. § 32-15-02(3) carry the additional requirement that the mode of apportioning and collecting the costs of such improvement shall be such as may be provided in the statutes by which the same may be authorized.

Sargent Cty. Water Resource District v. Beck, et al. 2023 ND 230
Docket No.: 20220357
Filing Date: 12/15/2023
Case Type: Appeal - Civil - Real Property
Author: McEvers, Lisa K. Fair

Matter of Overboe (CONFIDENTIAL) 2023 ND 229
Docket No.: 20230352
Filing Date: 12/1/2023
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer transferred to Incapacity to Practice Law Status

Holm v. Holm 2023 ND 228
Docket No.: 20230128
Filing Date: 12/1/2023
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: The petitioner for a disorderly conduct restraining order bears the burden of demonstrating how a respondent’s conduct affected the petitioner’s safety, security, or privacy. Section 12.1-31.2-01, N.D.C.C., requires the district court to make specific findings concerning the respondent’s intent.

State v. Haney (consolidated w/20220367) 2023 ND 227
Docket No.: 20220366
Filing Date: 12/1/2023
Case Type: Appeal - Criminal - Assault
Author: Bahr, Douglas Alan

Highlight: To successfully challenge the sufficiency of the evidence on appeal, the defendant must show the evidence, when viewed in the light most favorable to the verdict, permits no reasonable inference of guilt.

In considering a defendant’s claim on appeal that his right to a public trial was violated, this Court first considers whether the claim of error was preserved at trial and then considers the threshold question of whether there was a closure implicating the public trial right.

The appellant bears the burden to demonstrate the public was excluded from a proceeding to which the public had a right to be present.

A party pursuing a constitutional claim must make a strong case supported by both fact and law or forgo the claim.

State v. Haney (consolidated w/20220367) 2023 ND 227
Docket No.: 20220366
Filing Date: 12/1/2023
Case Type: Appeal - Criminal - Assault
Author: Bahr, Douglas Alan

Kisi v. State 2023 ND 226
Docket No.: 20230074
Filing Date: 12/1/2023
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Tufte, Jerod E.

Highlight: To be convicted of accomplice to attempted murder, the accused must have intended to aid in killing. Accomplice to attempted “knowing” murder under N.D.C.C. §§ 12.1-03-01 and 12.1-16-01(1)(a) is a non-cognizable offense.

The error was harmless if we are convinced the error did not contribute to the verdict.

Our determination of whether an error was harmless looks at the effect of the error on this jury, rather than speculating whether a hypothetical jury would convict the defendant absent the error. When no rational jury could find that the defendant committed the relevant criminal act but did not intend to cause injury and the erroneous instruction was not argued to the jury, the error was harmless to that particular jury.

Pagel, et al. v. Weikum 2023 ND 224
Docket No.: 20230156
Filing Date: 11/24/2023
Case Type: Appeal - Civil - Contracts
Author: Tufte, Jerod E.

Highlight: A district court order and judgment are reversed, and the case is remanded for entry of an order compelling arbitration. 

In construing arbitration clauses, courts have categorized arbitration clauses as either broad or narrow. A broad arbitration provision covers all disputes arising out of a contract to arbitrate; a narrow provision limits arbitration to specific types of disputes.

If the arbitration clause is broad in scope, the court will defer to arbitration on any issues that touch on contract rights or contract performance.