Opinions

State v. Schweitzer 2021 ND 109
Docket No.: 20200348
Filing Date: 6/24/2021
Case Type: Appeal - Criminal - Assault
Author: VandeWalle, Gerald

Highlight: To claim a violation of his or her due process rights, a defendant must show the State acted in bad faith when it failed to preserve evidence.

Sufficient evidence existed to convict a defendant of aggravated assault.

Johnshoy v. Johnshoy 2021 ND 108
Docket No.: 20200263
Filing Date: 6/24/2021
Case Type: Appeal - Civil - Child Support
Author: Tufte, Jerod E.

Highlight: A prima facie case consists of factual allegations sufficient to support a finding of a material change in circumstances and that a change is necessary to serve the best interests of the child. A “material change” is an important new fact that was unknown at the time of the prior custody decision. To establish a prima facie case that modification is necessary to serve the best interests of the children requires more than the improved circumstances of the party moving to modify primary residential responsibility.

The preference of a mature child may be particularly significant to the trial court, both in determining whether there has been a significant change of circumstances and in determining the best interests of the child. The maturity of the child is a factually driven issue and will depend on the facts and circumstances of the case. The court should consider a mature child’s preference only if there are persuasive reasons for that preference.

Comes v. State 2021 ND 107
Docket No.: 20210005
Filing Date: 6/24/2021
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Jensen, Jon J.

Highlight: The statutory remedy of post-conviction relief pursuant to N.D.C.C. ch. 29-32.1 is not available to provide relief for disciplinary measures, custodial treatment, or other violations of civil rights of a convicted person occurring after the imposition of sentence.

Interest of K.B. (CONFIDENTIAL) (CONSOLIDATED W/20210110) 2021 ND 106
Docket No.: 20210109
Filing Date: 9/9/2021
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Tufte, Jerod E.

Highlight: In addition to state law requirements for parental termination, the requirements of the Indian Child Welfare Act, 25 U.S.C. § 1912, must be met in cases involving an Indian child as defined by the Act.

Because children are entitled to permanency and because ICWA presents an opportunity for collateral attack of a state court judgment if its requirements are not met, we will not strain to infer findings from a vague reference to the requirement. The juvenile court must make detailed findings sufficient to satisfy ICWA. A qualified expert witness’s expressed preference to deny termination of parental rights does not preclude the court from making findings sufficient to satisfy ICWA and ordering termination.

Interest of K.B. (CONFIDENTIAL) (CONSOLIDATED W/20210110) 2021 ND 106
Docket No.: 20210109
Filing Date: 6/24/2021
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Tufte, Jerod E.

Pennington, et al. v. Continental Resources 2021 ND 105
Docket No.: 20200318
Filing Date: 6/10/2021
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: McEvers, Lisa K. Fair

Highlight: Under the law of the case doctrine, a party cannot in a second appeal relitigate issues which were resolved in the first appeal or which would have been resolved had they been properly presented in the first appeal.

The mandate rule requires the district court to follow an appellate court’s pronouncements on legal issues in subsequent proceedings in the case and to carry the appellate court’s mandate into effect according to its terms.

Guardianship and Conservatorship of S.M.H. 2021 ND 104
Docket No.: 20200239
Filing Date: 6/3/2021
Case Type: Appeal - Civil - Guardian/Conservator
Author: Jensen, Jon J.

Highlight: Only judgments and decrees which constitute a final judgment of the rights of the parties and certain orders enumerated by statute are appealable.

Under N.D.R.Ct. 3.2(a)(3), a court may decide routine motions on briefs without holding a formal hearing, unless a party requests one.

An estate in real property, other than an estate at will or for a term not exceeding one year, can be transferred only by operation of law or by an instrument in writing, subscribed by the party disposing of the same or by the party’s agent thereunto authorized by writing.

Under N.D.R.Civ.P. 12(f), the district court has discretion to strike an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter in a pleading.

A court’s award of attorney’s fees and costs under N.D.C.C. § 28-26-31 is discretionary but must be based on evidence that the pleadings were made without reasonable cause and not in good faith, and are found to be untrue.

State v. Black 2021 ND 103
Docket No.: 20200256
Filing Date: 6/3/2021
Case Type: Appeal - Criminal - Misc. Felony
Author: Jensen, Jon J.

Highlight: When reviewing a district court’s finding of exigent circumstances, the findings of fact are reviewed giving due weight to the inferences drawn from those facts by judges and law enforcement. A de novo review is applied to the ultimate determination of whether the facts constitute exigent circumstances.

Issues which are not raised before the district court, including constitutional issues, will not be considered for the first time on appeal.

Probable cause to search exists if the facts and circumstances relied on by the magistrate would warrant a person of reasonable caution to believe the contraband or evidence sought probably will be found in the place to be searched.

When a defendant alleges false or misleading statements have been made in the application for a search warrant, the issue is addressed under the standard set forth in Franks v. Delaware, 438 U.S. 154 (1978).

State v. Coleman 2021 ND 102
Docket No.: 20210040
Filing Date: 6/3/2021
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: An order deferring imposition of sentence entered after a jury verdict is affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Howard (consolidated w/ 20200301) 2021 ND 101
Docket No.: 20200300
Filing Date: 6/3/2021
Case Type: Appeal - Criminal - Misc. Felony
Author: VandeWalle, Gerald

Highlight: An order dismissing a complaint, information, indictment, or any count thereof, with or without prejudice, is appealable under N.D.C.C. § 29-28-07(1).

Timing may be used as evidence of a link between a defendant and an act.