Opinions

Davis v. State (cross-reference w/20080331 & 20090093) 2013 ND 34
Docket No.: 20120272
Filing Date: 2/26/2013
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: Discovery in the post-conviction context requires good cause and may be used only to the extent and in the manner the district court has ordered.
To obtain discovery under the statutory good cause standard: (1) the evidence sought to be discovered, if established, must allow the applicant to obtain post-conviction relief, and (2) contain specific and particularized allegations.
Post-conviction relief may be granted when evidence, not previously presented and heard, exists requiring vacation of the conviction or sentence in the interest of justice.
Post-conviction relief under N.D.C.C. 29-32.1-01(1)(e) is similar to a N.D.R.Crim.P. 33 request for new trial based on newly discovered evidence, and 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.

Bakken, et al. v. Duchscher, et al. 2013 ND 33
Docket No.: 20120232
Filing Date: 2/26/2013
Case Type: Appeal - Civil - Real Property
Author: Maring, Mary

Highlight: Extrinsic evidence may not be used to vary or contradict the terms of an unambiguous agreement or to create an ambiguity.
The party invoking laches has the burden of proving he was prejudiced because his position has become so changed during the delay that he cannot be restored to the status quo.

Interest of S.R.L. 2013 ND 32
Docket No.: 20120282
Filing Date: 2/26/2013
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: An award of joint residential responsibility will be affirmed if supported by sufficient findings of fact consistent with the children's best interests.
Uncooperative parents may be awarded joint residential responsibility when it is in the child's best interests.

Guardianship of J.S.L.F. 2013 ND 31
Docket No.: 20120162
Filing Date: 2/26/2013
Case Type: Appeal - Civil - Guardian/Conservator
Author: VandeWalle, Gerald

Highlight: A guardianship proceeding is an inappropriate method for testing the fitness of a parent.
To prove a parent's rights to his or her child have been suspended by circumstances due to abandonment, the petitioner must satisfy the same standards to prove abandonment required in the Uniform Juvenile Court Act and the Revised Uniform Adoption Act.

Riemers v. Jaeger 2013 ND 30
Docket No.: 20120353
Filing Date: 2/26/2013
Case Type: Original Proceeding - Civil - Writ of Mandamus
Author: Crothers, Daniel John

Highlight: A party seeking writs of mandamus, prohibition, or injunction must demonstrate a clear legal right to the relief requested.
Injunctive relief must state its terms specifically and describe in reasonable detail the acts restrained or required.
A state official is not required to request an attorney general's written opinion for all legal questions that may arise during the course of the official's discharge of public duties.

Hageman v. Hageman 2013 ND 29
Docket No.: 20120183
Filing Date: 2/26/2013
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: A district court's decision to modify primary residential responsibility is a finding of fact, subject to the clearly erroneous standard of review.
Strong public policy favors prompt and peaceful resolution of divorce disputes and generates a judicial bias in favor of the adoption of a stipulated agreement of the parties.

Morrow v. Ziegler 2013 ND 28
Docket No.: 20120323
Filing Date: 2/26/2013
Case Type: Appeal - Administrative - Department of Transportation
Author: VandeWalle, Gerald

Highlight: The requirement that an officer include his or her observation that a driver's body contained alcohol on the report and notice is basic and mandatory for the Department of Transportation to have authority to suspend the driver's license for refusal to submit to an onsite screening test.
Allowing the Department to infer elements that are basic and mandatory without any factual basis on the report to support the inference slants the law too much toward the Department's convenience.

Burgard v. Burgard 2013 ND 27
Docket No.: 20120285
Filing Date: 2/26/2013
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: A motion made under N.D.R.Civ.P. 60(b) is the exclusive remedial procedure to set aside a default judgment.
On direct appeal from a default judgment granted under N.D.R.Civ.P. 55, the standard of review is limited to whether "irregularities appear on the face of the judgment roll."

Matter of J.G. (CONFIDENTIAL) (cross-ref. w/20100366) 2013 ND 26
Docket No.: 20120199
Filing Date: 2/26/2013
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Sandstrom, Dale

Highlight: Whether an individual engaged in sexually predatory conduct is barred by res judicata from being relitigated on a petition for discharge.

Dahl v. State (Consolidated w/20120211)(Cross-reference w/20090262) 2013 ND 25
Docket No.: 20120209
Filing Date: 2/26/2013
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: The district court has discretion in deciding whether to grant a defendant's request for a bifurcated trial in a case in which there is an issue of lack of criminal responsibility.
When the issue of lack of criminal responsibility is submitted to the trier of fact, N.D.C.C. 12.1-04.1-18 provides for the appropriate form of the verdict or finding and requires the trier of fact to find the defendant not guilty by lack of criminal responsibility if the trier of fact finds the defendant committed the offense but was not criminally responsible.