Opinions

Brekhus v. N.D. Dep't of Transportation 2018 ND 86
Docket No.: 20170296
Filing Date: 4/10/2018
Case Type: Appeal - Administrative - Department of Transportation
Author: Per Curiam

Highlight: Warrantless, limited entry by a police officer into an open garage does not violate a defendant's federal or state constitutional rights under the hot pursuit exception to the warrant requirement.

Grasser v. Grasser 2018 ND 85
Docket No.: 20170188
Filing Date: 3/29/2018
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Highlight: A motion for recusal and a demand for a change of judge are two separate motions. Unlike a demand under N.D.C.C. 29-15-21, a district court judge is not immediately divested of authority upon the filing of a motion to recuse. While a judge has a duty to recuse when required by the Code of Judicial Conduct, a judge also has an equally strong duty not to recuse when the facts do not require recusal.
An order finding a person guilty of contempt is a final order for purposes of appeal under N.D.C.C. 27-10-01.3(3). A district court's decision to impose sanctions under N.D.R.Civ.P. 11 rests within the sound discretion of the court and it will not be overturned on appeal unless the court has abused its discretion.
A district court's decisions on child custody, including an initial award of custody, are treated as findings of fact and will not be set aside on appeal unless clearly erroneous. This Court will not reweigh the evidence or reassess the credibility of witnesses, and we will not retry a custody case or substitute our judgment for a district court's initial custody decision merely because we might have reached a different result.
It is well-established that a property distribution does not need to be equal to be equitable, but a substantial disparity must be explained so as to provide some indication of the rationale of the district court in distributing the property.

City of Bismarck v. Brekhus (consolidated w/20170166 & 20170167) 2018 ND 84
Docket No.: 20170165
Filing Date: 3/22/2018
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Tufte, Jerod E.

Highlight: A police officer's warrantless, limited entry into a defendant's open garage while in "hot pursuit" does not violate the defendant's rights under either the federal or state constitutions.

J.B., et al. v. R.B. 2018 ND 83
Docket No.: 20180018
Filing Date: 3/22/2018
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.

Solwey v. Solwey 2018 ND 82
Docket No.: 20170379
Filing Date: 3/22/2018
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: The effective date for a modification of child support depends upon the facts of each case. The modification generally should be made effective from the date of the motion to modify, absent good reason to set some other date.
If the court finds by clear and convincing evidence that a child is of sufficient maturity to make a sound judgment, the court may give substantial weight to the preference of the mature child. The maturity of the child is a factually driven issue and will depend on the facts and circumstances of the case.

Carlson v. State 2018 ND 81
Docket No.: 20170252
Filing Date: 3/22/2018
Case Type: Appeal - Civil - Post-Conviction Relief
Author: McEvers, Lisa K. Fair

Highlight: An application for post-conviction relief must be filed within two years of the date the conviction becomes final under N.D.C.C. 29-32.1-01(2).
There are three exceptions to the two-year limitation for an application for post-conviction relief: (1) newly discovered evidence, (2) petitioner establishes that the petitioner suffered from a physical disability or mental disease that precluded timely assertion of the application for relief, and (3) petitioner asserts a new interpretation of federal or state constitutional or statutory law that is retroactively applicable to the petitioner's case. See N.D.C.C. 29-32.1-01(3)(b).

Arnegard, et al. v. Arnegard Township 2018 ND 80
Docket No.: 20170242
Filing Date: 3/22/2018
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: Zoning ordinances and amendments are valid if a township follows the statutory procedures. A conditional use permit does not by itself create a contract between a township and a landowner.
A township has no duty to disclose validly enacted zoning ordinances or amendments beyond the notice and filing procedures provided by statute.Zoning ordinances and amendments are valid if a township follows the statutory procedures. A conditional use permit does not by itself create a contract between a township and a landowner. A township has no duty to disclose validly enacted zoning ordinances or amendments beyond the notice and filing procedures provided by statute. A claim of constitutional due process violation first requires a protected property interest created by an independent source of law.Zoning ordinances and amendments are valid if a township follows the statutory procedures. A conditional use permit does not by itself create a contract between a township and a landowner. A township has no duty to disclose validly enacted zoning ordinances or amendments beyond the notice and filing procedures provided by statute. A claim of constitutional due process violation first requires a protected property interest created by an independent source of law.Zoning ordinances and amendments are valid if a township follows the statutory procedures. A conditional use permit does not by itself create a contract between a township and a landowner. A township has no duty to disclose validly enacted zoning ordinances or amendments beyond the notice and filing procedures provided by statute.Zoning ordinances and amendments are valid if a township follows the statutory procedures. A conditional use permit does not by itself create a contract between a township and a landowner. A township has no duty to disclose validly enacted zoning ordinances or amendments beyond the notice and filing procedures provided by statute.
A claim of constitutional due process violation first requires a protected property interest created by an independent source of law.
A claim of constitutional due process violation first requires a protected property interest created by an independent source of law. A claim of constitutional due process violation first requires a protected property interest created by an independent source of law.

Berg v. Berg 2018 ND 79
Docket No.: 20170336
Filing Date: 3/22/2018
Case Type: Appeal - Civil - Divorce - Property
Author: Jensen, Jon J.

Highlight: A district court does not clearly err in dividing property and awarding spousal support when it considers the Ruff-Fischer factors and adequately explains its findings regarding property division and spousal support.

State v. Terrill 2018 ND 78
Docket No.: 20170309
Filing Date: 3/22/2018
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: Constructive possession of drug paraphernalia is sufficient probable cause to arrest. Constructive possession can be inferred from the totality of the circumstances including (1) an accused's presence in the place where a controlled substance is found; (2) his proximity to the place where it is found; and (3) the fact the controlled substance was found in plain view.
A search incident to arrest applies where an officer has probable cause prior to conducting the search, and the arrest is substantially contemporaneous to the search.

Chatman v. State 2018 ND 77
Docket No.: 20170384
Filing Date: 3/22/2018
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: An application for post-conviction relief based on newly discovered evidence must be supported by competent, admissible evidence.
An applicant must move for leave and show good cause to use the discovery process in post-conviction relief proceedings.
An application for post-conviction relief generally may not raise claims that could have been addressed in earlier proceedings.