Opinions

Judicial Vacancy in Judgeship No. 6, East Central Judicial District 2010 ND 21
Docket No.: 20100020
Filing Date: 2/17/2010
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgeship retained at Fargo.

Halberg v. Halberg 2010 ND 20
Docket No.: 20090168
Filing Date: 1/26/2010
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: A proper finding of net income is essential to determine the correct amount of child support under the child support guidelines.
A court must determine an obligor's gross income before determining whether the obligor is underemployed.
For purposes of determining a child support obligation, an individual's gross income includes net income from self-employment, the value of in-kind income received on a regular basis, and employee benefits.

State v. Stridiron (consolidated w/20090093) 2010 ND 19
Docket No.: 20080285
Filing Date: 1/26/2010
Case Type: Appeal - Criminal - Homicide
Author: Maring, Mary

Highlight: A district court's decision to consolidate offenses or its refusal to grant a separate trial will not be set aside on appeal unless the defendant establishes a clear abuse of discretion.
A district court should generally wait until voir dire to determine whether it is possible to select a fair and impartial jury.
A district court's findings in resolving a challenge based on Batson v. Kentucky, 476 U.S. 79 (1986), during jury selection will not be overturned on appeal unless they are clearly erroneous.
In determining "corroborating circumstances" under N.D.R.Ev. 804(b)(3), the district court may analyze both the credibility of the in-court witness and the reliability of the out-of-court declarant.
The Supreme Court does not sit as a "thirteenth juror" to make independent determinations of credibility of witnesses or other evidentiary weight.

Isaacson v. Isaacson 2010 ND 18
Docket No.: 20090114
Filing Date: 1/26/2010
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: Courts determine actual controversies and will not act in an advisory capacity to decide mooted questions or abstract propositions.
Litigants in civil nonjury cases have a right to make a final argument. This right can be waived by the parties or narrowed by the courts, but it cannot be unilaterally denied.
Rule 8.3 property and debt listings filed in divorce proceedings inform the court what value the parties assign to marital property. The assigned values are suggestions that are not binding on the court.
Items not recognized as marital assets are not included in the marital estate absent argument demonstrating the propriety of inclusion.
Continuance is the proper remedy for a party claiming surprise, and a judgment will not ordinarily be reversed without a request for a continuance or a showing of inability to meet the surprising situation.

Matter of Voisine 2010 ND 17
Docket No.: 20090182
Filing Date: 1/26/2010
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Crothers, Daniel John

Highlight: A person can be committed as a sexually dangerous individual when the State demonstrates by clear and convincing evidence that the three-prong commitment analysis has been satisfied. The first prong requires a showing that the individual has engaged in sexually predatory conduct. The second prong requires a showing that the individual has a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction. The third prong requires a showing that the individual is likely to engage in further acts of sexually predatory conduct and that the individual has serious difficulty controlling his behavior.
Only sexually predatory conduct can be considered in determining whether an individual satisfies the first prong of the sexually dangerous individual commitment analysis. All conduct of a sexually predatory nature can be considered in determining the second prong. All relevant conduct can be considered in determining the third prong.
Incest between consenting adults is not sexually predatory conduct as defined by N.D.C.C. 25-03.3-01(9).

Rakowski v. City of Fargo 2010 ND 16
Docket No.: 20090155
Filing Date: 1/26/2010
Case Type: Appeal - Civil - Administrative Proceeding
Author: Maring, Mary

Highlight: When a party fails to file a timely appeal from an adverse decision of a local zoning board, the decision is final and the party may not collaterally attack the decision in a different proceeding.

City v. Bullinger 2010 ND 15
Docket No.: 20090308
Filing Date: 1/26/2010
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: VandeWalle, Gerald

Highlight: A driver need not consent to the location where a blood draw for purposes of testing blood alcohol content will be conducted.
A driver must suffer the consequences of an officer's reasonable interpretation of the driver's conditional response to a request to submit to chemical testing.

Cartier, et al. v. Northwestern Electric, Inc. 2010 ND 14
Docket No.: 20090045
Filing Date: 1/25/2010
Case Type: Appeal - Civil - Personal Injury
Author: Sandstrom, Dale

Highlight: A denial of a motion for new trial is reviewed under the abuse-of-discretion standard.
When a district court has chosen a specific jury instruction, a reviewing court should not be quick to second-guess its choice if there is evidence or inferences from the evidence to support the instruction. Only scant evidence may be needed to support a jury instruction.
Under North Dakota law, counsel must object specifically to a contested jury instruction.
When a motion for a new trial is made, the party making the motion is limited on appeal to a review of the grounds presented to the lower court.

Shotbolt v. N.D. Workforce Safety and Insurance 2010 ND 13
Docket No.: 20090120
Filing Date: 1/15/2010
Case Type: Appeal - Administrative - Workers Compensation
Author: Maring, Mary

Highlight: The clear intent of N.D.C.C. ch. 65-05.1 is to rehabilitate an injured worker so the worker may return to substantial gainful employment, meaning actual rehabilitation with a realistic opportunity to return to work.
A rehabilitation plan is appropriate when it meets the requirements of N.D.C.C. ch. 65-05.1 and gives the claimant a reasonable opportunity to obtain employment.
WSI must take a claimant's preexisting functional limitations into account when determining whether certain employment options present an opportunity for substantial gainful employment.

Reciprocal Discipline of Varriano (cross ref. 20090258) 2010 ND 12
Docket No.: 20090385
Filing Date: 1/14/2010
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Suspension of lawyer ordered.