Opinions

Oyloe v. ND Department of Human Services 2008 ND 67
Docket No.: 20070251
Filing Date: 4/17/2008
Case Type: Appeal - Civil - Administrative Proceeding
Author: Maring, Mary

Highlight: A Medicaid-qualifying trust is considered an available asset for Medicaid eligibility purposes.
A resulting trust in favor of the settlor arises not only where an intended trust fails altogether but also where it fails in part, and where the trust fails in part, there is a resulting trust of so much of the property as is not appropriated to the part of the trust that does not fail.
Public policy will not allow the social safety net for persons who are old, poor, and unfortunate to be exploited by those who are affluent.

State v. Hidanovic 2008 ND 66
Docket No.: 20070130
Filing Date: 4/17/2008
Case Type: Appeal - Criminal - Misc. Felony
Author: Sandstrom, Dale

Highlight: In considering whether to grant a new trial on the ground of juror misconduct, a district court must decide whether there was misconduct and, if so, whether the misconduct could have affected the verdict of a hypothetical average juror.
A juror generally may not testify about matters or statements occurring during the course of the jury's deliberations, but may testify regarding the receipt of extraneous prejudicial information or improper outside influence.
If evidence of possible extraneous prejudicial information or outside influence is discovered, the proper procedure is to cease investigation to reduce the possibility of juror taint from extrajudicial pressures and to notify the court so it can conduct appropriate questioning.
The rule excluding juror testimony about statements during deliberations does not preclude evidence to show a juror lied during voir dire.
To prevail on a motion for new trial on the ground of newly discovered evidence, a defendant must show the evidence was discovered after trial, the failure to learn about the evidence at the time of trial was not the result of the defendant's lack of diligence, the newly discovered evidence is material to issues at trial, and the weight and quality of the newly discovered evidence would likely result in an acquittal.
In ruling on the relevancy of evidence, a district court has broad discretion to balance the probative value of the evidence against the risk of unfair prejudice.
Determining the admissibility of an out-of-court photographic identification of a defendant involves a two-step inquiry to determine whether the photographic identification procedure was suggestive, and whether the identification was, under the totality of the circumstances, reliable.

State v. Kieper 2008 ND 65
Docket No.: 20070100
Filing Date: 4/17/2007
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Maring, Mary

Highlight: Mere suspicion that criminal activity is taking place, which may warrant further investigation, does not rise to the level of probable cause to support issuance of a search warrant.
Issues not raised before the district court will not be considered for the first time on appeal.

City of Fargo v. Levine 2008 ND 64
Docket No.: 20070098
Filing Date: 4/17/2008
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: The government will be ordered to produce source code for the Intoxilyzer only if the defendant establishes that the code is material and that the code is within the possession, custody, or control of the government.

State v. Herbel 2008 ND 63
Docket No.: 20070344
Filing Date: 4/17/2008
Case Type: Appeal - Criminal - Drugs/Contraband
Author:

Highlight: Conviction of possession of marijuana by a driver is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Wessman v. Wessman 2008 ND 62
Docket No.: 20070069
Filing Date: 3/31/2008
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: A district court's award of custody is treated as a finding of fact and, on appeal, will not be reversed unless it is clearly erroneous.
Under N.D.C.C. 14-09-06.1, a district court must award custody of a child to the person who will promote the best interests and welfare of the child.
When there is credible evidence of domestic violence, it dominates the hierarchy of "best interest" factors to be considered.
When a district court addresses whether evidence of domestic violence triggers the presumption under N.D.C.C. 14-09-06.2(1)(j), we require specific findings and conclusions regarding the presumption so we are not left guessing as to the court's rationale regarding the application of the presumption.

Stanhope v. Phillips-Stanhope 2008 ND 61
Docket No.: 20070137
Filing Date: 3/27/2008
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: To constitute a material change in circumstances for a change of custody, improvements in the noncustodial parent's situation must be accompanied by a decline in the condition of the children with the custodial parent over the same period of time.

Sauby v. City of Fargo 2008 ND 60
Docket No.: 20070202
Filing Date: 3/25/2008
Case Type: Certified Question - Civil - Civil
Author: Sandstrom, Dale

Highlight: A home rule city may not impose fees for noncriminal traffic offenses that exceed the limits set forth for equivalent violations under state law.
General language in judicial opinions must be read in the context of the issues before a court.
A court will not follow opinions of the Attorney General if they are inconsistent with the statutory interpretation that the court deems reasonable.

Olson v. Workforce Safety and Insurance 2008 ND 59
Docket No.: 20070094
Filing Date: 3/25/2008
Case Type: Appeal - Administrative - Workers Compensation
Author: Maring, Mary

Highlight: Under the 2003 version of N.D.C.C. 65-01-02(5)(b), the calculation of a self-employed worker's average weekly wage was based upon the net profit shown on Schedule C of his preceding year's tax return.

Hitz v. Hitz 2008 ND 58
Docket No.: 20070211
Filing Date: 3/24/2008
Case Type: Appeal - Civil - Divorce - Property
Author: Kapsner, Carol

Highlight: A trial court must start with a presumption that all property held by either party, whether held jointly or individually, is to be considered marital property. The trial court must then determine the total value of the marital estate in order to make an equitable division of property.
After a fair evaluation of the property is made, the entire marital estate must then be equitably divided between the parties under the Ruff-Fischer guidelines.
A trial court, having the opportunity to observe demeanor and credibility, is in a far better position than an appellate court in ascertaining the true facts regarding property value, and a marital property valuation within the range of the evidence presented to the district court is not clearly erroneous.