Opinions

State v. Studhorse 2024 ND 110
Docket No.: 20230247
Filing Date: 5/30/2024
Case Type: Appeal - Criminal - Sexual Offense
Author: Tufte, Jerod E.

Highlight: A district court's discussion, impressing upon a witness that she had a duty to tell the truth, is not obvious error under N.D.R.Ev. 603.
A comment on the defendant's post-arrest silence is an improper comment on the right to remain silent in violation of the Fifth and Fourteenth Amendments of the United States Constitution. But, the error is harmless if the State proves beyond a reasonable doubt that the comments did not contribute to the verdict and the error was harmless.
A non-cognizable offense is created by a logical inconsistency, not a lack of specificity in jury instructions.
A party waives an error when the party is given the opportunity to address it and intentionally relinquishes the opportunity.
Proof beyond a reasonable doubt of a "sexual act" as defined by statute is not satisfied by inference based on one interpretation of a vague term. The count requires a showing of contact between the victim's vulva, not just the victim's "body," and the defendant's mouth. A conviction based on insufficient evidence implicates constitutional due process and clearly affects substantial rights and the fairness, reputation, and integrity of the court system. An obvious error occurs when a defendant is convicted on insufficient evidence.
Under sufficiency of the evidence review, the uncorroborated testimony of a child may be sufficient to sustain a gross sexual imposition conviction.
When the defendant is charged with multiple counts of the same offense, the State has the burden to prove the defendant committed each offense. Each element requires proof of a different fact or element to distinguish the act as a separate punishable act. If a defendant is convicted of multiple counts on the same facts, then the second conviction, even if it results in no greater sentence, is an impermissible punishment. An obvious error occurs when a defendant is convicted of the same crime in two counts.

SCS Carbon Transport v. Malloy, et al. (consol. w/ 20230162-20230176) 2024 ND 109
Docket No.: 20230149
Filing Date: 5/30/2024
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Tufte, Jerod E.

Highlight: Judgment confirming right of entry for pre-condemnation examination and survey was not equivalent to a perpetual easement, because the authorized purposes all had a definite end point.

To establish a violation under either takings provision, challengers must demonstrate they have a property interest that is constitutionally protected.

Statute permitting pre-condemnation entry for survey and examination illustrates a longstanding background principle of state property law and reflects the original public meaning of state constitution's takings provision.

The entry statute limits the entry to the authorized purpose or mission of determining the location and necessary scope of private property taken to serve the greatest public benefit at the lowest cost in terms of private injury.

SCS Carbon Transport v. Erickson (consol w/ 20230149, 20230163-20230176) 2024 ND 109
Docket No.: 20230162
Filing Date: 5/30/2024
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Tufte, Jerod E.

Highlight: Judgment confirming right of entry for pre-condemnation examination and survey was not equivalent to a perpetual easement, because the authorized purposes all had a definite end point.

To establish a violation under either takings provision, challengers must demonstrate they have a property interest that is constitutionally protected.

Statute permitting pre-condemnation entry for survey and examination illustrates a longstanding background principle of state property law and reflects the original public meaning of state constitution's takings provision.

The entry statute limits the entry to the authorized purpose or mission of determining the location and necessary scope of private property taken to serve the greatest public benefit at the lowest cost in terms of private injury.

SCS Carbon Transport v. Hoge (consol w/ 20230149, 20230162, 20230164-20230176) 2024 ND 109
Docket No.: 20230163
Filing Date: 5/30/2024
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Tufte, Jerod E.

Highlight: Judgment confirming right of entry for pre-condemnation examination and survey was not equivalent to a perpetual easement, because the authorized purposes all had a definite end point.

To establish a violation under either takings provision, challengers must demonstrate they have a property interest that is constitutionally protected.

Statute permitting pre-condemnation entry for survey and examination illustrates a longstanding background principle of state property law and reflects the original public meaning of state constitution's takings provision.

The entry statute limits the entry to the authorized purpose or mission of determining the location and necessary scope of private property taken to serve the greatest public benefit at the lowest cost in terms of private injury.

SCS Carbon Transport v. Twardowski (cons. w/20230149, 162, 163 & 165-176) 2024 ND 109
Docket No.: 20230164
Filing Date: 5/30/2024
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Tufte, Jerod E.

Highlight: Judgment confirming right of entry for pre-condemnation examination and survey was not equivalent to a perpetual easement, because the authorized purposes all had a definite end point.

To establish a violation under either takings provision, challengers must demonstrate they have a property interest that is constitutionally protected.

Statute permitting pre-condemnation entry for survey and examination illustrates a longstanding background principle of state property law and reflects the original public meaning of state constitution's takings provision.

The entry statute limits the entry to the authorized purpose or mission of determining the location and necessary scope of private property taken to serve the greatest public benefit at the lowest cost in terms of private injury.

SCS Carbon Transport v. BRH (cons. w/20230149, 162-164 & 166-176) 2024 ND 109
Docket No.: 20230165
Filing Date: 5/30/2024
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Tufte, Jerod E.

Highlight: Judgment confirming right of entry for pre-condemnation examination and survey was not equivalent to a perpetual easement, because the authorized purposes all had a definite end point.

To establish a violation under either takings provision, challengers must demonstrate they have a property interest that is constitutionally protected.

Statute permitting pre-condemnation entry for survey and examination illustrates a longstanding background principle of state property law and reflects the original public meaning of state constitution's takings provision.

The entry statute limits the entry to the authorized purpose or mission of determining the location and necessary scope of private property taken to serve the greatest public benefit at the lowest cost in terms of private injury.

SCS Carbon Transport v. 8N2E Properties (cons. w/20230149, 162-165 & 167-176) 2024 ND 109
Docket No.: 20230166
Filing Date: 5/30/2024
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Tufte, Jerod E.

Highlight: Judgment confirming right of entry for pre-condemnation examination and survey was not equivalent to a perpetual easement, because the authorized purposes all had a definite end point.

To establish a violation under either takings provision, challengers must demonstrate they have a property interest that is constitutionally protected.

Statute permitting pre-condemnation entry for survey and examination illustrates a longstanding background principle of state property law and reflects the original public meaning of state constitution's takings provision.

The entry statute limits the entry to the authorized purpose or mission of determining the location and necessary scope of private property taken to serve the greatest public benefit at the lowest cost in terms of private injury.

SCS Carbon Transport v. Kuetemeyer (cons. w/20230149, 162-166 & 168-176) 2024 ND 109
Docket No.: 20230167
Filing Date: 5/30/2024
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Tufte, Jerod E.

Highlight: Judgment confirming right of entry for pre-condemnation examination and survey was not equivalent to a perpetual easement, because the authorized purposes all had a definite end point.

To establish a violation under either takings provision, challengers must demonstrate they have a property interest that is constitutionally protected.

Statute permitting pre-condemnation entry for survey and examination illustrates a longstanding background principle of state property law and reflects the original public meaning of state constitution's takings provision.

The entry statute limits the entry to the authorized purpose or mission of determining the location and necessary scope of private property taken to serve the greatest public benefit at the lowest cost in terms of private injury.

SCS Carbon Transport v. Hoge Farm (cons. w/20230149, 162-167 & 169-176) 2024 ND 109
Docket No.: 20230168
Filing Date: 5/30/2024
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Tufte, Jerod E.

Highlight: Judgment confirming right of entry for pre-condemnation examination and survey was not equivalent to a perpetual easement, because the authorized purposes all had a definite end point.

To establish a violation under either takings provision, challengers must demonstrate they have a property interest that is constitutionally protected.

Statute permitting pre-condemnation entry for survey and examination illustrates a longstanding background principle of state property law and reflects the original public meaning of state constitution's takings provision.

The entry statute limits the entry to the authorized purpose or mission of determining the location and necessary scope of private property taken to serve the greatest public benefit at the lowest cost in terms of private injury.

SCS Carbon Transport v. Hoge (cons. w/20230149, 162-168 & 170-176) 2024 ND 109
Docket No.: 20230169
Filing Date: 5/30/2024
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Tufte, Jerod E.

Highlight: Judgment confirming right of entry for pre-condemnation examination and survey was not equivalent to a perpetual easement, because the authorized purposes all had a definite end point.

To establish a violation under either takings provision, challengers must demonstrate they have a property interest that is constitutionally protected.

Statute permitting pre-condemnation entry for survey and examination illustrates a longstanding background principle of state property law and reflects the original public meaning of state constitution's takings provision.

The entry statute limits the entry to the authorized purpose or mission of determining the location and necessary scope of private property taken to serve the greatest public benefit at the lowest cost in terms of private injury.