Opinions

Tarnavsky v. Rankin 2009 ND 149
Docket No.: 20090085
Filing Date: 8/18/2009
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Kapsner, Carol

Highlight: A party resisting a motion for summary judgment must present competent admissible evidence to establish a genuine issue of material fact on the party's claims.
A party resisting a summary judgment motion must explain the connection between factual assertions and legal theories in the case and cannot leave to the court the chore of divining what facts are relevant or why facts are relevant let alone material to a claim for relief.

Abdullah v. State, et al. 2009 ND 148
Docket No.: 20080254
Filing Date: 7/29/2009
Case Type: Appeal - Civil - Other
Author: Maring, Mary

Highlight: A public educational institution's decision whether to dismiss a student for academic reasons is entitled to deference.
Tort of unlawful interference with a business relationship requires an independently tortious or otherwise unlawful act of interference by the interferer.
A state employee may not be held liable for claims based upon a discretionary function, regardless of whether the discretion is abused, and a state employee cannot be held liable for a decision resulting from a quasi-judicial act.
A student does not have a substantive due process right to graduate from a public school.
A party resisting a motion for summary judgment must explain the connection between factual assertions and legal theories and cannot leave to the court the chore of divining what facts are relevant or why facts are relevant, let alone material, to a claim for relief.

State v. Sorenson (Consolidated w/20080134) 2009 ND 147
Docket No.: 20080132
Filing Date: 7/21/2009
Case Type: Appeal - Criminal - Homicide
Author: Crothers, Daniel John

Highlight: Statements made during a jail phone call to friends and relatives are not testimonial statements, and Sixth Amendment confrontation rights do not apply.
Extreme emotional disturbance is a mitigating circumstance and not a defense to the crime of murder.
A warrantless trash search violates an individual's Fourth Amendment rights if there is a subjective expectation of privacy in the trash that society accepts as objectively reasonable.
An individual is denied due process when defects in procedure might lead to a denial of justice.
Insufficient evidence to support a conviction exists only when, after reviewing the evidence in the light most favorable to the verdict and giving the benefit of all inferences reasonably to be drawn in favor of the verdict, no rational fact finder could find the defendant guilty beyond a reasonable doubt.

State v. Beane (Consolidated w/20090012 - 20090015) 2009 ND 146
Docket No.: 20090011
Filing Date: 7/21/2009
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Sandstrom, Dale

Highlight: The Fourth Amendment is not implicated by police entry upon private land to knock on a citizen's door for legitimate police purposes unconnected with a search of the premises.
Placing a suspect in handcuffs before conducting a pat-down search for weapons is constitutionally permissible when the action is based on officer safety.
When an outside clothing pat-down search reveals the presence of an object of a size and density that reasonably suggests the object might be a weapon, the searching officer is entitled to continue the search to the inner garments where the object is located in order to determine whether the object is, in fact, a weapon.
Generally, when an object recovered from a suspect during a pat-down search is a closed container, the officer may not open the container to examine its contents unless the officer can point to specific and articulable facts supporting a reasonable suspicion that the closed container poses a danger to the officer or others nearby.

Schaaf v. N.D. Department of Transportation 2009 ND 145
Docket No.: 20090025
Filing Date: 7/21/2009
Case Type: Appeal - Administrative - Department of Transportation
Author: Sandstrom, Dale

Highlight: If a general provision in a statute is in conflict with a special provision in the same or in another statute, the two must be construed, if possible, so that effect may be given to both provisions, but if the conflict between the two provisions is irreconcilable, the special provision must be construed to control over the general provision.
Due process requires notice and an opportunity for a hearing appropriate to the case.

State v. Blurton 2009 ND 144
Docket No.: 20090009
Filing Date: 7/21/2009
Case Type: Appeal - Criminal - Sexual Offense
Author: Kapsner, Carol

Highlight: A guilty plea must be knowingly, intelligently, and voluntarily made to be valid.
Any error that does not affect a defendant's substantial rights is harmless and must be disregarded.
Generally, ineffective assistance of counsel claims should be raised in a post-conviction proceeding to allow the parties to fully develop a record of counsel's performance and its impact on the defendant.

State v. Demarais (Consolidated w/20080182) 2009 ND 143
Docket No.: 20080181
Filing Date: 7/21/2009
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: A jury may find a defendant guilty even though evidence exists which, if believed, could lead to a not guilty verdict.
In nearly all possession of drug paraphernalia cases, the State will be forced to prove by circumstantial evidence the intent to use the paraphernalia for the purpose of ingesting, preparing, or storing a controlled substance.
A verdict based upon circumstantial evidence carries the same presumption of correctness as other verdicts.

Shull v. Walcker, et al. 2009 ND 142
Docket No.: 20090021
Filing Date: 7/21/2009
Case Type: Appeal - Civil - Constitutional Law
Author: VandeWalle, Gerald

Highlight: A motion for relief from judgment should not be used to relieve a party from free, calculated and deliberate choices he or she has made, and relief should be granted only in exceptional circumstances.
The failure of a condition precedent is an affirmative defense which must be pled in the answer to a filed complaint.
The decision of a respondent to not answer a complaint, to not file a response to a motion for default judgment, and to disregard the court's recommendations that he seek counsel until after default judgment has been entered against him does not constitute exceptional circumstances to justify relief under N.D.R.Civ.P. 60(b).
Whether an earnest money clause in a purchase agreement limits a seller's remedies to the earnest money itself is a matter of contractual interpretation.

State v. Myers (Consolidated w/20090004) 2009 ND 141
Docket No.: 20080104
Filing Date: 7/21/2009
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Crothers, Daniel John

Highlight: When a problem arises during a trial, the party affected must bring the irregularity to the court's attention and seek appropriate remedial action.
If juror misconduct is noticed and the criminal defendant does not object or request a mistrial, reversal requires obvious error.
Because the court took steps to ensure the defendant had a fair trial, the defendant's right to a fair trial was not violated and obvious error did not exist when a juror allegedly slept during the arresting officer's testimony.
If it is easier to dispose of an ineffective assistance of counsel claim on the ground of lack of sufficient prejudice, that course should be followed.

Grager v. Schudar, et al. 2009 ND 140
Docket No.: 20080302
Filing Date: 7/21/2009
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Kapsner, Carol

Highlight: An appellant assumes the consequences and the risks for failing to provide a complete transcript of proceedings in the trial court, and if the record on appeal does not provide for a meaningful and intelligent review of an issue, the supreme court may decline to review the issue.
On appeal, jury instructions must be viewed as a whole, and if they correctly advise the jury of the law, they are sufficient although parts of them, standing alone, may be erroneous and insufficient.
Generally, one who consents to conduct that would otherwise be an intentional tort cannot recover damages for that conduct.
An adult prisoner's apparent consent to sexual conduct with a jailer imposes neither absolute liability on the jailer nor a complete bar to recovery in the prisoner's civil action premised upon the sexual conduct.