Opinions

State v. Proell 2007 ND 17
Docket No.: 20060222
Filing Date: 2/1/2007
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: North Dakota is a sovereign, separate from the federal government, and the state's power to prosecute crimes is derived from its inherent sovereignty, not from the federal government.
As a result of inherent state sovereignty, state court proceedings are not ancillary to federal proceedings and state courts are not in privity with or bound by a federal court decision on a motion to suppress evidence.
Contraband found in a search incident to a valid arrest is admissible unless the search is invalidated on another basis.

State v. Loughead 2007 ND 16
Docket No.: 20060160
Filing Date: 2/1/2007
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Kapsner, Carol

Highlight: A person does not have a constitutional right to confront a mere informer who does not testify against him.
There is a presumption of regularity in prosecutorial conduct, and in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.
In the ordinary case, so long as the prosecutor has probable cause to believe the accused committed an offense, the decision whether to prosecute and what charges to file generally rests within the prosecutor's discretion.
The government may not base its decision to prosecute on a constitutionally unjustifiable standard such as race, religion, or other arbitrary classification.
The government, upon the defendant's request, must disclose statements of the defendant, the defendant's previous record, documents and objects, any reports of examinations and tests, and information concerning expert witnesses within the government's possession, custody, or control.

State v. Bates 2007 ND 15
Docket No.: 20060179
Filing Date: 2/1/2007
Case Type: Appeal - Criminal - Sexual Offense
Author: Kapsner, Carol

Highlight: After a guilty plea is accepted, but before sentencing, the defendant may withdraw a guilty plea if necessary to correct a manifest injustice, or, if allowed in the court's discretion, for any "fair and just" reason unless the prosecution has been prejudiced by reliance on the plea.
A factual basis is a statement of facts to assure the defendant is guilty of the crime charged.
A court may determine a sufficient factual basis in one of three ways: (1) the court could inquire directly of the defendant concerning the performance of the acts which constituted the crime; (2) the court could allow the defendant to describe to the court in his own words what had occurred and then the court could question the defendant; and (3) the court could have the prosecutor make an offer of proof concerning the factual basis for the charge.
When a claim for ineffective assistance of counsel is argued on direct appeal, we review the record to decide if the assistance of counsel is plainly defective. Unless the record affirmatively shows ineffectiveness of constitutional dimensions, the complaining party must show some evidence in the record to support the claim.

Leftbear v. State 2007 ND 14
Docket No.: 20060244
Filing Date: 2/1/2007
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: The time limit for filing a notice of appeal is jurisdictional.
The time limit for filing a notice of appeal may be extended only upon a showing of excusable neglect.
Excusable neglect is a fluid concept, encompassing both simple, faultless omissions to act and, more commonly, omissions caused by carelessness.
Ignorance of the rules, or mistakes construing the rules, are insufficient to establish excusable neglect.

Klimple v. Bahl 2007 ND 13
Docket No.: 20060195
Filing Date: 2/1/2007
Case Type: Appeal - Civil - Personal Injury
Author: Crothers, Daniel John

Highlight: Although there generally is no requirement in ordinary negligence cases for expert testimony to establish the elements of the tort, expert testimony is required if the issue is beyond the area of common knowledge or lay comprehension.
Although hypertechnical words are not necessary for admission of expert medical testimony, the test for admissibility is whether the expert's testimony demonstrates the expert is expressing a medical opinion that is more probable, or more likely than not.
A doctor's testimony that a certain thing is "possible" is no evidence at all.

B.J. Kadrmas, Inc. v. Oxbow Energy 2007 ND 12
Docket No.: 20060137
Filing Date: 2/1/2007
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: The existence of a contract is a question of fact for the trier of fact, and appellate review is governed by the "clearly erroneous" standard.
In a bench trial, the court determines credibility, which is not second-guessed on appeal. The trial court's choice between two permissible views of the evidence is not clearly erroneous.
A contract is either express or implied. An express contract is one the terms of which are stated in words. An implied contract is one the existence and terms of which are manifested by conduct.
Under contracts implied in fact, the court merely attempts to determine from the surrounding circumstances what the parties actually intended.
When the parties have agreed on the essential terms of a contract, the fact they contemplated a further writing memorializing the agreement does not prevent enforcement of the contract. The intent of the parties controls, and a binding agreement is created unless the parties intended there be no agreement until a writing was signed.
When the relations between parties justify the offerer expecting a reply, or when the offeree has come under a duty to communicate either a rejection or acceptance, the failure to communicate rejection or to perform this duty may result in a legal assent to the terms of the offer.

State v. Ernst (Consolidated w/20060251) 2007 ND 11
Docket No.: 20060250
Filing Date: 2/1/2007
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: District court order denying a motion to correct a sentence is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

Ehrhardt v. N.D. Dept. of Transportation 2007 ND 10
Docket No.: 20060255
Filing Date: 2/1/2007
Case Type: Appeal - Administrative - Department of Transportation
Author: Per Curiam

Highlight: Suspension of driver's license summarily affirmed under N.D.R.App.P. 35.1(a)(5).

ND State Board of Medical Examiners v. Hsu 2007 ND 9
Docket No.: 20060134
Filing Date: 1/23/2007
Case Type: Appeal - Civil - Administrative Proceeding
Author: VandeWalle, Gerald

Highlight: The preponderance of evidence standard of proof for administrative disciplinary proceedings against a physician does not violate due process or equal protection.
A party to an administrative proceeding is not denied due process because the agency performs all three functions of investigation, prosecution, and adjudication.
The determination of the appropriate sanction to be imposed by the Board of Medical Examiners in a disciplinary proceeding is a matter of discretion.
A petitioner for writ of mandamus must demonstrate a clear legal right to the act sought to be compelled and no other plain, speedy, and adequate remedy in the ordinary course of law.
Mandamus may not be issued to compel an official's discretionary acts.

Disciplinary Board v. Buresh 2007 ND 8
Docket No.: 20060230
Filing Date: 1/16/2007
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Disbarment is appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client; when a lawyer knowingly deceives a client with the intent to benefit the lawyer and causes serious or potentially serious injury to a client; and when a lawyer engages in serious conduct a necessary element of which includes misrepresentation, extortion, misappropriation, or theft.
Under the North Dakota Standards Imposing Lawyer Sanctions, disbarment is allowed for one instance of stealing from a client or lying to a client for the lawyer's benefit.
A lawyer's conversion of a client's funds to his own use is impossible to condone and is one of the least excusable acts of misconduct for which a lawyer can be disciplined.
A lawyer may be disciplined for committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer. A criminal conviction is not a condition precedent to a discipline proceeding when the facts themselves warrant discipline.