Opinions

Peltier v. State (consolidated w/20130010) 2013 ND 246
Docket No.: 20120447
Filing Date: 12/19/2013
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: A clerical error correctable under N.D.R.Crim.P. 36 includes a failure to accurately record action taken by the court, but the rule does not extend to correction of errors of substance.
Resentencing under N.D.R.Crim.P. 35 is proper in order to correct an illegal sentence.
Probationary sentences for conviction of the crime of failure to register as a sexual offender are imposed under N.D.C.C. 12.1-32-15(9), not N.D.C.C. 12.1-32-06.1(3).

Krueger v. Krueger (Cross-reference w/20070196) 2013 ND 245
Docket No.: 20130129
Filing Date: 12/19/2013
Case Type: Appeal - Civil - Divorce - Property
Author: Maring, Mary

Highlight: A party seeking a contempt sanction must clearly and satisfactorily prove the alleged contempt was committed. An inability to comply with an order is a defense to contempt proceedings, but the alleged contemnor has the burden to prove the defense.

Stensland v. Disciplinary Board 2013 ND 244
Docket No.: 20130008
Filing Date: 12/19/2013
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: A suspended lawyer has the burden of establishing by clear and convincing evidence the requisite honesty and integrity to be reinstated to the practice of law.
A suspended lawyer who is engaging in the unauthorized practice of law and who makes false claims to the Supreme Court has failed to satisfy his burden for reinstatement.

Rath v. Rath (cross reference w/20130327 & 20130025) 2013 ND 243
Docket No.: 20130184
Filing Date: 12/19/2013
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: Technical violations of a court order do not necessarily require a finding of contempt.
A district court's decision on a motion for recusal is reviewed under the abuse of discretion standard.

State, et al. v. B.B., et al. (confidential) 2013 ND 242
Docket No.: 20130178
Filing Date: 12/13/2013
Case Type: Appeal - Civil - Paternity
Author: Sandstrom, Dale

Highlight: A paternity and support claim can be bifurcated from a related custody action.
A state district court has jurisdiction over a paternity and support action against a non-Indian.

Dahm v. Stark County Board of County Commissioners 2013 ND 241
Docket No.: 20130238
Filing Date: 12/19/2013
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: The decision of a board of county commissioners on whether to approve an application for a zoning change and plat approval will be affirmed unless the board acted arbitrarily or unreasonably, or if there is not substantial evidence supporting the decision.
On appeal from a decision of a county board, a reconsideration of the evidence is limited to the extent that such evidence was presented to the county board, and the burden is on the moving party to show that the decision of the county board was arbitrary, capricious, or unreasonable.
The moving party cannot turn an appeal from a denial of a change in zoning request into an inverse condemnation action.

Bahtiraj v. State 2013 ND 240
Docket No.: 20130113
Filing Date: 12/19/2013
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Maring, Mary

Highlight: Without more, the second Strickland prong is not satisfied by a self-serving statement that the petitioner would have insisted on going to trial. Factors to consider when determining the rationality of rejecting a guilty plea and insisting on going to trial include immigration consequences, strength of the case against the petitioner, and rational defenses to the charged crime.

State v. Otto 2013 ND 239
Docket No.: 20130096
Filing Date: 12/19/2013
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Sandstrom, Dale

Highlight: The automobile exception to the Fourth Amendment's warrant requirement applies to a readily mobile camper that is not in a place regularly used for residential purposes.

Kinsella v. State 2013 ND 238
Docket No.: 20130150
Filing Date: 12/19/2013
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: Failure to move pretrial to suppress evidence, by itself, does not equate to ineffective assistance of counsel. Where evidence allegedly seized in violation of the Fourth Amendment, but where counsel has no reason to question the search and seizure, failure to file a motion to suppress does not render the representation ineffective.

Morton County Social Service Board, et al. v. Houim 2013 ND 237
Docket No.: 20130095
Filing Date: 12/19/2013
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: When a party moves to modify primary residential responsibility of a child, the district court must consider only the party's motion on briefs, affidavits, and other supporting documents to determine whether the moving party established a prima facie case and is entitled to an evidentiary hearing.
Evidence that the child's present environment may endanger the child's health or evidence of a parent's suicide attempt constitute material changes of circumstance that may justify a modification of primary residential responsibility and establish a prima facie case.