Opinions

Voigt v. State 2008 ND 236
Docket No.: 20080157
Filing Date: 12/31/2008
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Kapsner, Carol

Highlight: A party seeking to bring a claim against the State or its employees must strictly comply with the requirements of N.D.C.C. 32-12.2-04(1).
Statements made during a legislative proceeding are absolutely privileged.

Disciplinary Board v. Karlsen (Consolidated w/ 20080295) 2008 ND 235
Docket No.: 20080294
Filing Date: 12/23/2008
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer disbarred.

Clark v. State (Cross-reference w/20030238) 2008 ND 234
Docket No.: 20080122
Filing Date: 12/18/2008
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: The law does not require that an evidentiary hearing be held on an application for post-conviction relief when the parties do not request a hearing.
New counsel on appeal inherits the strategies of prior counsel.
A court does not second-guess matters of trial strategy.

Gustafson v. Gustafson 2008 ND 233
Docket No.: 20080109
Filing Date: 12/18/2008
Case Type: Appeal - Civil - Divorce - Property
Author: Sandstrom, Dale

Highlight: When an award of spousal support is reversed, the party paying is entitled to restitution for any amount paid since entry of the district court judgment, unless it would be inequitable.
An owner of real property does not need to possess special knowledge or further qualification to testify to the property's value.

State v. Lium (cross ref with 20070135) 2008 ND 232
Docket No.: 20080100
Filing Date: 12/16/2008
Case Type: Appeal - Criminal - Assault
Author: Maring, Mary

Highlight: A defendant moving to withdraw his guilty plea before sentencing bears the burden of establishing a fair and just reason exists.
Among the factors that a district court may consider in determining whether a fair and just reason exists to withdraw a guilty plea before sentencing are: (1) the amount of time that has passed between the entry of the plea and the motion to withdraw; (2) defendant's assertion of innocence or a legally cognizable defense to the charge; (3) prejudice to the government; (4) whether the plea was knowing and voluntary; (5) whether the plea was made in compliance with Rule 11, N.D.R.Crim.P.; (6) whether adequate assistance of counsel was available to the defendant; (7) the plausibility of the reason for seeking to withdraw; (8) whether a plea withdrawal would waste judicial resources; and (9) whether the parties had reached or breached a plea agreement.

City of Minot v. Rudolph 2008 ND 231
Docket No.: 20080135
Filing Date: 12/16/2008
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Kapsner, Carol

Highlight: Home rule charters permit cities to enact certain ordinances which differ from state laws.
Within the scope of statutory authorization, a home rule city's charter and the ordinances made under the charter supersede, within the territorial limits and other jurisdiction of the city, laws of the state in conflict with the charter and ordinances and must be liberally construed for such purposes.
If the requirements to supersede state law are not met, a home rule city's powers are those bestowed by the legislature on all municipalities.

State v. Salter 2008 ND 230
Docket No.: 20080080
Filing Date: 12/16/2008
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Kapsner, Carol

Highlight: A driver's consent to chemical testing is implied if the statutory implied consent provisions have been met, and a driver must affirmatively refuse to submit to testing to withdraw the consent.

Serr v. Serr (Cross-Ref w/20070231) 2008 ND 229
Docket No.: 20080188
Filing Date: 12/16/2008
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: To determine whether parents have equal physical custody of a child for purposes of applying child support guidelines, the actual language of the judgment controls.

State v. Moos (Consolidated w/20080048) 2008 ND 228
Docket No.: 20080047
Filing Date: 12/16/2008
Case Type: Appeal - Criminal - Misc. Felony
Author: VandeWalle, Gerald

Highlight: The Blockburger "same elements" test, used to determine whether two crimes constitute the same offense for purposes of double jeopardy, is merely a canon of statutory construction and is not controlling if the legislative intent is clear from the face of the statute or the legislative history.
Multiple convictions and punishments are not permitted for the same conduct under the theft by deception, forgery or counterfeiting, and deceptive writings statutes.
Although the State has the burden of proving the appropriate amount of restitution, the defendant has the burden to raise and prove an inability to pay the restitution ordered.
A motion for a new trial based upon newly discovered evidence will be granted only if the new evidence is of such a nature that it would probably produce an acquittal upon retrial.

State v. Roth 2008 ND 227
Docket No.: 20080060
Filing Date: 12/16/2008
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Maring, Mary

Highlight: A defendant's probation can be revoked if he violates the conditions of probation while incarcerated or on parole on other charges.