Opinions

Dickinson Education Association v. Dickinson Public School District 2014 ND 157
Docket No.: 20130350
Filing Date: 7/19/2014
Case Type: Original Proceeding - Civil - Writ of Mandamus
Author: VandeWalle, Gerald

Highlight: A petitioner seeking a writ of mandamus must show a clear legal right to performance of the particular act sought to be compelled by the writ. Whether to issue a writ of mandamus is left to the district court's sound discretion.
A school district may unilaterally issue a last-offer contract, but the last-offer contract is limited to contractual provisions for only the one school year under negotiation and may not contain provisions applicable to future school years.

State v. Ratliff (consolidated w/ 20130341 & 20130346) 2014 ND 156
Docket No.: 20130332
Filing Date: 7/17/2014
Case Type: Appeal - Criminal - Theft
Author: VandeWalle, Gerald

Highlight: Denial of a motion for new trial is reviewed under the abuse of discretion standard.
Although a motion for new trial is not necessary for appellate review, when a new trial is sought, the party making the motion is limited on appeal to the grounds presented to the trial court in the motion for a new trial.

Gullickson v. State 2014 ND 155
Docket No.: 20130397
Filing Date: 7/17/2014
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: Ineffective assistance of counsel is a mixed question of fact and law, which is fully reviewable on appeal.
Courts need not address both elements of the ineffective assistance of counsel test, and if a court can dispose of the case by addressing only one element, it imay do so.
Whether the failure to notify a client that a charge was improperly entered constitutes prejudice is subject to a fact-specific analysis of what happened.
An attorney's not filing a motion to suppress evidence discovered upon execution of a search warrant is ineffective assistance of counsel only if the attorney's representation fell below an objective standard of reasonableness constituting prejudice.

State v. Boehm 2014 ND 154
Docket No.: 20140045
Filing Date: 7/19/2014
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: McEvers, Lisa K. Fair

Highlight: The statutory requirements to request a preliminary breath test are: (1) a traffic violation has occurred; and (2) in conjunction with the violation, the officer, on the basis of observation, formulates an opinion the driver's body contains alcohol.
Probable cause to arrest an individual for DUI exists when the officer smells an odor of alcohol coming from the vehicle; observes the individual's red, bloodshot, watery eyes; the individual admits to consuming alcoholic beverages; and the individual fails a sobriety test.
The voluntariness of consent is a finding of fact.
Consent is not coerced because a law enforcement officer advised an individual of the implied consent law.
A blood test is not unreasonable because it was conducted in a place other than a hospital.

State v. Rahier (Consolidated w/ 20140041) 2014 ND 153
Docket No.: 20140004
Filing Date: 7/17/2014
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: McEvers, Lisa K. Fair

Highlight: A law enforcement officer may have reasonable and articulable suspicion for investigatory stop when observing a vehicle circling an area coupled with an additional factor that indicates criminal activity is afoot.

State v. Smith 2014 ND 152
Docket No.: 20130398
Filing Date: 7/17/2014
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: McEvers, Lisa K. Fair

Highlight: Consent is an exception to the warrant requirement.
The voluntariness of consent is determined under the totality of the circumstances.
An advisory, provided by a law enforcement officer, that informs an individual of the implied consent law, including the consequences of refusal, does not constitute per se coercion.

Baatz v. State (cross-reference w/20130066) 2014 ND 151
Docket No.: 20140018
Filing Date: 7/17/2014
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: In the absence of a specific instruction by the Supreme Court, an individual applying for postconviction relief is not entitled to an additional evidentiary hearing when the case is remanded to the district court.
A defendant has the burden of establishing he qualifies for appointment of counsel.
Issues not before the district court on remand will not be considered on appeal.

Dakota Heritage Bank v. Pankonin, et al. (cross-reference w/20120335) 2014 ND 150
Docket No.: 20140016
Filing Date: 7/17/2014
Case Type: Appeal - Civil - Foreclosure
Author: Crothers, Daniel John

Highlight: Notice of entry of judgment that is not properly served does not start the period for filing an appeal.
A judgment is not enforceable until notice of entry of judgment is properly served or the party it is being enforced against has actual knowledge of entry of the judgment.

Shae v. Shae 2014 ND 149
Docket No.: 20130282
Filing Date: 7/17/2014
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: A district court may deviate upward from the presumptively correct child support guidline amount when an obligor that earns more than $12,500 per month.
The presumptively correct amount of child support is rebutted if a preponderance of the evidence establishes that a deviation from the guidelines is in the best interest of the supported children. Findings must support the specific upward deviation, rather than applying a straight percentage of the obligor's monthly income.
Net income received by an obligor from all sources must be considered in the determination of available money for child support before the appropriate upward deviation may be determined.
Net income is calculated by determining an obligor's gross income and then allowing for deductions. Gross income includes income from any source, in any form.

Rustad v. Rustad (cross-reference w/20130105) 2014 ND 148
Docket No.: 20140014
Filing Date: 7/17/2014
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Highlight: A district court's decision on primary residential responsibility is a finding of fact, which will not be reversed on appeal unless it is clearly erroneous.
A party may not present issues in a second appeal which were resolved in the first appeal or which would have been resolved had they been presented in the first appeal.