Opinions

State v. Pederson (Consolidated w/20100365) 2011 ND 155
Docket No.: 20100364
Filing Date: 8/18/2011
Case Type: Appeal - Criminal - Theft
Author: VandeWalle, Gerald

Highlight: When police have probable cause to arrest a suspect, the exclusionary rule does not bar the prosecution's use of a statement made by the defendant outside of his home, even though the statement is taken after an arrest made in the home and police unlawfully entered the home.
During an interrogation, a suspect must unambiguously invoke his right to counsel to stop the interrogation.

Brigham Oil et al. v. Lario Oil et al. (consolidated w/20110016) 2011 ND 154
Docket No.: 20100211
Filing Date: 8/15/2011
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: VandeWalle, Gerald

Highlight: Property passes upon death, not upon distribution, subject to administration of the estate.
Family settlement agreements are binding only on the parties to the agreement.
Whether intervention is sought permissively or as a matter of right, the application for intervention must be timely.
The failure to join an indispensable party or the failure to allow an indispensable party to intervene does not render a judgment void.

State v. Gefroh 2011 ND 153
Docket No.: 20100391
Filing Date: 8/15/2011
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: The automobile exception to the warrant requirement does not justify the warrantless search of a person.

Interest of K.B., a child (CONF.)(Consol. w/20110093-20110095) 2011 ND 152
Docket No.: 20110092
Filing Date: 8/11/2011
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: VandeWalle, Gerald

Highlight: "Proper parental care" means the parents' conduct in raising their children must satisfy the minimum standard of care which the community will tolerate.
The definition of a "deprived child" is broad enough to encompass a child whose parent, while never having had the opportunity to care for the child, is shown to be presently incapable of providing proper parental care for the child.
All children in a particular home environment may be found deprived, despite varying degrees of deprivation among the children. A court need not wait for the happening of tragic events to protect a child, particularly when a sibling has been found to deprived.
Abuse of one child is relevant to the care a parent will provide to other siblings.

State v. Sommer 2011 ND 151
Docket No.: 20100348
Filing Date: 8/11/2011
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: The dispositive question concerning application of the automobile exception is whether probable cause supported the search.
The recognition that vehicles are inherently mobile and that vehicles garner a lesser expectation of privacy excuses the need for a warrant.

Gustafson, et al. v. Poitra, et al. 2011 ND 150
Docket No.: 20100277
Filing Date: 8/10/2011
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: The appellate court may consider whether the district court had subject matter jurisdiction and may consider the issue sua sponte.
A state court does not have subject matter jurisdiction where a non-Indian claimant initiates an action against Indian defendants over a lease of fee land owned by the Indian defendants within the exterior boundaries of the reservation.

Makelky v. Makelky 2011 ND 149
Docket No.: 20100406
Filing Date: 7/25/2011
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: Divorce judgment summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Mertz v. City of Elgin 2011 ND 148
Docket No.: 20110054
Filing Date: 7/21/2011
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: The decision of a local governing body must be affirmed unless it acted arbitrarily, capriciously, or unreasonably, or if there is not evidence to support its decision.
The interpretation of a zoning ordinance is governed by the rules of statutory construction.
The interpretation of a zoning ordinance by a governmental entity is a quasi-judicial act, and a reviewing court should give deference to the judgment and interpretation of the governing body rather than substitute its judgment for that of the enacting body.

State v. Starke (Consolidated w/20100327) 2011 ND 147
Docket No.: 20100062
Filing Date: 7/18/2011
Case Type: Appeal - Criminal - Misc. Felony
Author: Sandstrom, Dale

Highlight: A defendant is entitled to a jury instruction on an ordinary defense for which credible evidence has been introduced. The jury must find that the State has proved the non-existence of this defense beyond a reasonable doubt in order to convict.
Under the defense of premises statute, "trespass" is not confined merely to uninvited entrants, but include the unlawful remaining in the premises of another.
The use of force in defending one's premises must be reasonable under the circumstances.

Wahl v. Northern Improvement Company, et al. 2011 ND 146
Docket No.: 20100295
Filing Date: 7/18/2011
Case Type: Appeal - Civil - Personal Injury
Author: Crothers, Daniel John

Highlight: A district court has broad discretion over the presentation of evidence and the conduct of trial.
The factors used to determine the reasonableness of attorney fees should be used as guidelines to determine whether expert witness fees are reasonable.