Opinions

North Dakota Private Investigative and Security Board v. TigerSwan, LLC, et al. 2019 ND 219
Docket No.: 20180338
Filing Date: 8/22/2019
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

Highlight: A district court’s denial of a request for additional time for discovery will not be overturned on appeal unless the court abused its discretion.
The granting of injunctive relief is equitable in nature and rests in the sound discretion of the district court, and we will not reverse a court’s ruling on injunctive relief unless that discretion has been abused.
Words in a statute are given their plain, ordinary and commonly understood meaning.
A claim for relief is frivolous if there is such a complete absence of facts or law a reasonable person could not have expected a court would render a judgment in that person’s favor.

State v. Kenny 2019 ND 218
Docket No.: 20190030
Filing Date: 8/22/2019
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Crothers, Daniel John

Highlight: The constitutionality of a statute is a question of law, and the statute will be upheld unless its challenger can demonstrate the statute’s unconstitutionality. The doctrine of overbreadth prohibits a law from criminalizing constitutionally protected activity.
A temporary restraining order, which may be issued ex parte without a hearing, is a species of injunction, typically brief in duration, that has as its purpose maintaining the status quo until a determination can be made on the temporary injunction issue.
A conviction rests upon insufficient evidence only when no rational fact finder could have found the defendant guilty beyond a reasonable doubt after viewing the evidence in a light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor.

In re Anderson 2019 ND 217
Docket No.: 20180424
Filing Date: 8/22/2019
Case Type: Certified Question - Civil - Civil
Author: Crothers, Daniel John

Highlight: The Court answers a certified question from the Federal Bankruptcy Court regarding the application of the homestead exemption as applied to property held in joint tenancy by debtor and nondebtor spouse.

State v. Casson 2019 ND 216
Docket No.: 20190028
Filing Date: 8/22/2019
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Jensen, Jon J.

Highlight: Although a law enforcement officer’s encounter with the occupant of a vehicle and indication that a K-9 unit would be called to “sniff” the vehicle was a seizure, the intrusion of the occupant’s Fourth Amendment rights was warranted and scope of the intrusion was reasonably related to the circumstances which justified the intrusion.

State v. Poulor 2019 ND 215
Docket No.: 20190017
Filing Date: 8/22/2019
Case Type: Appeal - Criminal - Sexual Offense
Author: McEvers, Lisa K. Fair

Highlight: The admission into evidence of a witness’s out-of-court testimonial statements does not violate the Confrontation Clause if a defendant has an opportunity to cross-examine a witness at trial.

Rule 803(24), N.D.R.Ev., provides an exception to the rule against hearsay for a child’s statement about sexual abuse, regardless of whether the declarant is available as a witness.

A conviction will be reversed on appeal on the ground of insufficient evidence only if, after viewing the evidence and all reasonable inferences in the light most favorable to the verdict, no rational factfinder could have found the defendant guilty beyond a reasonable doubt.

Chase v. State 2019 ND 214
Docket No.: 20190023
Filing Date: 8/22/2019
Case Type: Appeal - Civil - Post-Conviction Relief
Author: McEvers, Lisa K. Fair

Highlight: Applicant alleging ineffective assistance of post-conviction counsel cannot circumvent the Uniform Postconviction Procedure Act’s bar on challenging post-conviction counsel’s representation by making his allegations in a motion rather than an application for post-conviction relief.

A N.D.R.Civ.P. 60(b)(3) motion alleging fraud by prior post-conviction counsel is without merit because an attorney representing a party is not adverse to the party.

Applicant for post-conviction relief is entitled to notice that his application may be summarily dismissed.

Disciplinary Board v. Bolinske (consolidated with 20190110) 2019 ND 213
Docket No.: 20190109
Filing Date: 8/19/2019
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: A lawyer is publicly reprimanded, ordered to pay partial costs of the disciplinary proceedings, and ordered to refund money to a client for violating N.D.R. Prof. Conduct 1.16(e).
Fee agreement including both a contingent fee and a non-refundable fee is not per se unreasonable under N.D.R. Prof. Conduct 1.5(a).
Rule 1.15(e), N.D.R. Prof. Conduct, requires a lawyer in possession of property in which two or more persons claim an interest to keep the disputed property separate until the dispute is resolved. The lawyer does not violate the Rule if there is no evidence he had possession of the property when he became aware of the dispute.
A lawyer is required to refund any advanced payment of fees not earned.

Chambering New District Judgeship in the SCJD 2019 ND 212
Docket No.: 20190210
Filing Date: 8/7/2019
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: New judgeship No. 10 in the South Centeral Judicial District is chambered in Mandan.

Zuo v. Wang 2019 ND 211
Docket No.: 20180403
Filing Date: 8/6/2019
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Highlight: A district court has wide discretion to admit or exclude evidence at trial.

Under the clearly erroneous standard of review, this Court does not reweigh the evidence or reassess the credibility of witnesses.

A district court has discretion to award past child support and its decision to award past child support will not be reversed unless the court abuses its discretion.

Kovalevich v. State (Consolidated w/ 20190025) 2019 ND 210
Docket No.: 20190024
Filing Date: 8/5/2019
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: To prevail on a motion for a new trial on the grounds of newly discovered evidence, a defendant must show: (1) the evidence was discovered after trial, (2) the failure to learn about the evidence at the time of trial was not the result of the defendant’s lack of diligence, (3) the newly discovered evidence is material to the issues at trial, and (4) the weight and quality of the newly discovered evidence would likely result in an acquittal.