Opinions

Riemers v. Mahar 2008 ND 95
Docket No.: 20070232
Filing Date: 5/15/2008
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Crothers, Daniel John

Highlight: A public figure is prohibited from recovering damages for defamatory criticism unless there is clear and convincing evidence that the statements were made with actual malice.
Summary judgment is appropriate against a party who fails to establish the existence of a factual dispute on an essential element of his claim and on which he will bear the burden at trial.

State v. Schwab (Consolidated w/20070277) 2008 ND 94
Docket No.: 20070276
Filing Date: 5/15/2008
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: Once a blood alcohol test report is admitted into evidence, a court abuses its discretion by refusing to permit a DUI defendant to examine the analyst who performed the chemical testing, if the analyst is present at court.

State v. Curtis (cross ref. 20070250 & 20070333) 2008 ND 93
Docket No.: 20070249
Filing Date: 5/15/2008
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Crothers, Daniel John

Highlight: A criminal conviction will be reversed for insufficient evidence only when, after viewing the evidence and all reasonable evidentiary inferences in the light most favorable to the verdict, no rational factfinder could have found the defendant guilty beyond a reasonable doubt.
Threats are statements by which the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.

Walberg v. Walberg, et al. 2008 ND 92
Docket No.: 20070259
Filing Date: 5/15/2008
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: Statutes are construed to harmonize them and avoid an unreasonable result or unjust consequence.
An agreement purporting to waive past-due child support is void and may not be enforced unless the child support obligee and any assignee of the obligee have consented to the agreement in writing and the agreement has been approved by a court of competent jurisdiction.

Voisine v. State 2008 ND 91
Docket No.: 20070313
Filing Date: 5/15/2008
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: Conditions of probation are strictly construed in favor of the offender; however, the conditions are construed as mandatory because of the duty to regulate a probationer's activities to help in his or her rehabilitation and at the same time to guard against continued criminal behavior.
A probation condition is not violated during incarceration if the condition unambiguously is not effective until release.

Krueger v. Krueger 2008 ND 90
Docket No.: 20070196
Filing Date: 5/15/2008
Case Type: Appeal - Civil - Divorce - Property
Author: Maring, Mary

Highlight: A spousal support award must consider a disadvantaged spouse's needs and a supporting spouse's ability to pay.
Permanent spousal support is appropriate when an economically disadvantaged spouse cannot be equitably rehabilitated to make up for opportunities lost during the course of a marriage, while rehabilitative spousal support is appropriate when it is possible to restore an economically disadvantaged spouse to independent economic status, or to equalize the burden of a divorce by increasing the disadvantaged spouse's earning capacity.
Voluntary retirement by a supporting spouse that results in a material change in circumstances may be a valid basis for modification of spousal support.

Interest of I.B.A. and C.B.A. (CONFIDENTIAL)(Consolidated w/20070334) 2008 ND 89
Docket No.: 20070328
Filing Date: 5/15/2008
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: VandeWalle, Gerald

Highlight: While there is no constitutional right to appear at the hearing, a parent must be represented by counsel at a hearing to terminate parental rights, absent a valid waiver of counsel.
A district court should make in-depth individual findings regarding each parent, rather than combining the parents together in its analysis of whether the children are deprived and whether deprivation is likely to continue.

Teigen, et al. v. State 2008 ND 88
Docket No.: 20070134
Filing Date: 5/15/2008
Case Type: Appeal - Civil - Constitutional Law
Author: Kapsner, Carol

Highlight: A court can decide constitutional issues if at least one plaintiff has standing.
All regularly enacted statutes carry a strong presumption of constitutionality, which is conclusive unless the party challenging the statute clearly demonstrates it contravenes the state or federal constitution.
The justice, wisdom, necessity, utility and expediency of legislation are questions for the legislative, and not for judicial determination.
Statutes are construed as a whole and harmonized to give meaning to related provisions and are construed to avoid constitutional infirmities.
A statute requiring the wheat commission to expend two mills of a wheat tax for contracts with no more than two trade associations incorporated in North Dakota that have as their primary purpose the representation of wheat producers does not violate state constitutional provisions prohibiting special laws, special privileges and immunities, and gifts.

Hoover v. Director, N.D. Dept. of Transportation 2008 ND 87
Docket No.: 20070258
Filing Date: 5/15/2008
Case Type: Appeal - Administrative - Department of Transportation
Author: Crothers, Daniel John

Highlight: Eyewitness testimony is not necessary to establish reasonable grounds to believe a person was driving under the influence; circumstantial evidence is sufficient.
If a police officer has probable cause to arrest a suspect, the officer has the right to accompany and monitor the movements of the suspect.

Interest of T.E. (Confidential) 2008 ND 86
Docket No.: 20080034
Filing Date: 5/15/2008
Case Type: Appeal - Civil - Mental Health
Author: Kapsner, Carol

Highlight: A district court must to make all four factual findings in an involuntary medication order, whether the involuntary medication order is included as part of the larger commitment order or when a medication order is issued separately.