Opinions

State v. Gill (consolidated with 20070365 & 20070366) 2008 ND 152
Docket No.: 20070364
Filing Date: 8/28/2008
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Maring, Mary

Highlight: The scope of the community caretaking function does not extend to include officers' entry into private residences.
The warrantless entry of law enforcement officers into a home presents a Fourth Amendment issue and should not be examined under the community caretaking doctrine.

Disciplinary Board v. Fisher 2008 ND 151
Docket No.: 20080198
Filing Date: 8/21/2008
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Interim suspention of lawyer ordered.

Hutchinson v. Boyle (Consolidated w/20080010) 2008 ND 150
Docket No.: 20080009
Filing Date: 7/28/2008
Case Type: Appeal - Civil - Other
Author: Sandstrom, Dale

Highlight: Disorderly conduct does not include constitutionally protected activity.
A district court must address a respondent's constitutional claims before issuing a disorderly conduct restraining order.

Strand, et al. v. Cass County, et al. (Cross-Ref. w/20050380) 2008 ND 149
Docket No.: 20070168
Filing Date: 7/25/2008
Case Type: Appeal - Civil - Other
Author: Maring, Mary

Highlight: When a party requests attorney's fees under N.D.C.C. 28-26-01(2), the court must first determine whether a claim is frivolous. If it determines the claim is frivolous, the court must then award reasonable attorney's fees to the prevailing party.
Under N.D.C.C. 28-26-31, a court is authorized to award attorney's fees for allegations and denials in any pleadings in court, made without reasonable cause and not in good faith, and found to be untrue.
Under Rule 11, N.D.R.Civ.P., a district court may award sanctions against an attorney or a represented party, or both, if they violate the rule's requirements.

Estate of Conley 2008 ND 148
Docket No.: 20070321
Filing Date: 7/23/2008
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Kapsner, Carol

Highlight: North Dakota recognizes the common law presumption that a lost or missing will is presumed to be revoked by the testator.
The party seeking to probate the lost or missing will must demonstrate, by a preponderance of the evidence, that the testator did not destroy or revoke the missing will animo revocandi.

Weigel, et al. v. Lee, et al. 2008 ND 147
Docket No.: 20070296
Filing Date: 7/21/2008
Case Type: Appeal - Civil - Malpractice
Author: Crothers, Daniel John

Highlight: A decedent's children are able to seek recovery of non-economic damages in a wrongful death action.

State v. Scholes 2008 ND 146
Docket No.: 20070316
Filing Date: 7/21/2008
Case Type: Appeal - Criminal - Sexual Offense
Author: Crothers, Daniel John

Highlight: The validity of a search warrant is reviewed using the totality-of-the-circumstances approach, considering all of the information for probable cause together and testing affidavits executed in support of a warrant in a commonsense and realistic fashion.
Suppression of evidence is not required for a violation of N.D.R.Crim.P. 41 absent a showing that the defendant was prejudiced, or that the violation was an intentional and deliberate disregard of the rule, or that the violation offends the Fourth Amendment.
To succeed on a challenge to a search warrant based on a claim that law enforcement officers omitted information in the supporting affidavit, the defendant must show: (1) that law enforcement officers omitted facts with the intent to make, or in reckless disregard of whether they thereby made, the affidavit misleading; and (2) that the affidavit, if supplemented by the omitted information, would not have been sufficient to support a finding of probable cause.

State v. Rivet (Consolidated w/ 20080011) 2008 ND 145
Docket No.: 20080008
Filing Date: 7/21/2008
Case Type: Appeal - Criminal - Homicide
Author: VandeWalle, Gerald

Highlight: Prosecutor's use of a defendant's post-arrest silence after receiving Miranda warnings to impeach a defendant's exculpatory story, told for the first time at trial, violates the defendant's right to due process.
Although the right to remain silent is a personal constitutional right, under these circumstances, the violation of defendant's right to remain silent so impacted co-defendant's right to a fair trial as to necessitate a reversal of the co-defendant's judgment as well.

Estate of Thompson 2008 ND 144
Docket No.: 20070294
Filing Date: 7/21/2008
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: VandeWalle, Gerald

Highlight: The existence of an oral contract is a question of fact.
An agreement for the sale of real property is invalid unless the agreement is in writing and subscribed by the party to be charged.
In the absence of a written agreement, a court may compel specific performance of any agreement for the sale of real property if there is part performance.
Part performance of an oral contract for the sale of land which exempts the contract from the statute of frauds and entitles a party to specific performance must be proven by evidence that it is clear and unequivocal and which leaves no doubt as to the terms, character, and existence of the contract.

Klose v. State (Cross-Ref. with 20010309 and 20050044) 2008 ND 143
Docket No.: 20070303
Filing Date: 7/21/2008
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: Summary dismissal of an application for post-conviction relief is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.
Raising an issue in a second post-conviction application that could have been raised in a prior post-conviction application or other proceeding is a misuse of process.
To show ineffective assistance of post-conviction counsel, a post-conviction applicant must show post-conviction counsel's performance fell below an objective standard of reasonableness and the deficient performance prejudiced him.
A stipulation to certain factual elements of an offense is not a guilty plea.