Opinions

Disciplinary Board v. Kellington 2011 ND 241
Docket No.: 20110261
Filing Date: 12/20/2011
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer discipline ordered.

Richard v. Washburn Public Schools 2011 ND 240
Docket No.: 20110045
Filing Date: 12/15/2011
Case Type: Appeal - Civil - Personal Injury
Author: Crothers, Daniel John

Highlight: In a tort action by an employee to recover damages for a work-related injury, the employer has the burden of establishing by a preponderance of the evidence the defense that the employer is immune from suit under the exclusive remedy provisions of the workers compensation act.
North Dakota does not allow compensation for what are known within the parlance of workers compensation law as "mental-mental" injuries.
The North Dakota Human Rights Act does not preclude the filing of a claim in district court for damages based on sexual harassment.

Van Berkom, et al. v. Cordonnier, et al. 2011 ND 239
Docket No.: 20110085
Filing Date: 12/13/2011
Case Type: Appeal - Civil - Real Property
Author: Maring, Mary

Highlight: Clear and convincing evidence is necessary to reform a deed, and there is a presumption an instrument correctly expresses the intention of the parties.
To preserve an alleged error regarding the admission of evidence for review, a substantial right of the complaining party must be affected, and an objection stating the specific ground for the objection must be made.

State v. Schmidt 2011 ND 238
Docket No.: 20110082
Filing Date: 12/13/2011
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: Entrapment is an affirmative defense.
A law enforcement agent perpetrates an entrapment if, for the purpose of obtaining evidence of the commission of a crime, the law enforcement agent induces or encourages and, as a direct result, causes another person to engage in conduct constituting such a crime by employing methods of persuasion or inducement which create a substantial risk that such crime will be committed by a person other than one who is ready to commit it.
Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.
In reviewing a challenge to a factual conclusion that entrapment did not occur, this Court does not weigh conflicting evidence, nor judge the credibility of witnesses; instead, the Court looks only to the evidence and its reasonable inferences most favorable to the verdict to see if substantial evidence exists to warrant a conviction.

State v. Humann 2011 ND 237
Docket No.: 20110185
Filing Date: 12/13/2011
Case Type: Appeal - Criminal - Sexual Offense
Author: Crothers, Daniel John

Highlight: Under N.D.C.C. 12.1-32-15(2)(a), the district court must require felonious sexual offenders to register unless the offender was guilty of specified juvenile offenses.

State v. Aguilar (Consolidated w/ 20110124 - 20110126) 2011 ND 236
Docket No.: 20110123
Filing Date: 12/13/2011
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: A sniff by a drug detection dog is not a Fourth Amendment search.
A defendant who was lawfully arrested for a traffic violation was not illegally seized during a sniff of the exterior of his vehicle.
A defendant who was not detained was not subject to a Fourth Amendment seizure.

Engstrom v. N.D. Dep't. of Transportation 2011 ND 235
Docket No.: 20110166
Filing Date: 12/13/2011
Case Type: Appeal - Administrative - Department of Transportation
Author: Kapsner, Carol

Highlight: Observations of bloodshot eyes and slurred speech, along with a police officer's inferences and deductions which may elude a layperson, are sufficient for establishing reasonable and articulable suspicion.
An individual's own words and failing performance of field sobriety tests are relevant factors in determining probable cause for an arrest, but a failing result on a field sobriety test is not required to establish probable cause.

State v. Jones 2011 ND 234
Docket No.: 20110128
Filing Date: 12/13/2011
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: VandeWalle, Gerald

Highlight: The purposes a lawyer can serve and the assistance he or she can provide at the particular stage of the proceedings in question are relevant in determining the type of warnings and procedures required before a waiver of the right to counsel will be recognized.
A swift change of heart after a guilty plea is not necessarily grounds to permit withdrawal of the plea.
Some degree of mental disorder does not necessarily establish a defendant is incompetent or that his or her plea is not voluntary and knowing.

State v. Trevino 2011 ND 232
Docket No.: 20100416
Filing Date: 12/13/2011
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Maring, Mary

Highlight: Rule 11(a)(2), N.D.R.Crim.P., permits a defendant to enter a conditional guilty plea, reserving in writing the right to appeal an adverse determination of specified pretrial motions, including motions in limine.
The lack of a writing under Rule 11(a)(2) may be excused when the transcript is clear that defendant's plea was conditional, the government consented to the conditional plea, and the district court approved the conditional plea.
A person is guilty of reckless driving if the person drives a vehicle either "recklessly" in disregard of the rights or safety of others; or without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or the property of another.
A person engages in conduct "recklessly" if the person engages in the conduct in conscious and clearly unjustifiable disregard of a substantial likelihood of the existence of the relevant facts or risks, such disregard involving a gross deviation from acceptable standards of conduct.

Matter of J.T.N. (CONFIDENTIAL) 2011 ND 231
Docket No.: 20110067
Filing Date: 12/13/2011
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Crothers, Daniel John

Highlight: A finder of fact need not believe the greater number of witnesses.
Claims that the district court improperly relied on the opinion of one expert instead of another challenge the weight the evidence was assigned, not the sufficiency of the evidence.
Because evaluation of credibility is solely a trial court function, this Court will not reweigh expert testimony.
To determine whether an individual is likely to engage in further acts of sexually predatory conduct and has serious difficulty in controlling behavior, experts and courts may consider all relevant evidence.