Opinions

State v. Olson (Consolidated w/20060183) 2007 ND 40
Docket No.: 20060182
Filing Date: 3/22/2007
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: VandeWalle, Gerald

Highlight: Permissible types of law enforcement-citizen encounters include: (1) arrests, which must be supported by probable cause; (2) Terry stops, seizures which must be supported by a reasonable and articulable suspicion of criminal activity; and (3) community caretaking encounters, which are not Fourth Amendment seizures.
Under Terry, police may, in appropriate circumstances and in an appropriate manner, detain an individual for investigative purposes when there is no probable cause to make an arrest if a reasonable and articulable suspicion exists that criminal activity is afoot.
The "lateness of the hour" is another factor that may raise the level of suspicion sufficient to justify an investigative stop.

State v. Brossart 2007 ND 39
Docket No.: 20060242
Filing Date: 3/22/2007
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Crothers, Daniel John

Highlight: A conviction rests upon insufficient evidence only when no rational factfinder could have found the defendant guilty beyond a reasonable doubt after viewing the evidence in a light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor
The proper remedy for addressing claims of unlawful police conduct is allowing the defendant to raise the issue to the factfinder and offer his resistance as a justification defense to the preventing-arrest charge.

State v. Altru Health Systems 2007 ND 38
Docket No.: 20060107
Filing Date: 3/8/2007
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: The district court's inquiry in proceedings for enforcing an administrative subpoena is limited to whether: (1) the subpoena is within the statutory authority of the agency; (2) the information sought is reasonably relevant to the inquiry of the administrative proceeding; (3) the subpoena is reasonably specific; and (4) the subpoena is not unduly broad or burdensome.
A court's decision to issue a protective order imposing restrictions on an administrative subpoena is reviewed for an abuse of discretion.

Interest of R.W.S. (CONFIDENTIAL) 2007 ND 37
Docket No.: 20060167
Filing Date: 3/5/2007
Case Type: Appeal - Criminal - Juvenile Law
Author: Maring, Mary

Highlight: When deciding a question of the violation of a federal constitutional right, courts look to federal courts for guidance. Decisions of federal courts other than the United States Supreme Court, interpreting the United States Constitution are considered for guidance.
Juveniles have the same rights as adult defendants to be free from physical restraints. The right to remain free from physical restraints is based on considerations beyond the potential for jury prejudice, including inhibition of free consultation with counsel. Extending the right to remain free from physical restraints during juvenile proceedings is consonant with the rehabilitative purposes of the juvenile justice system.
The constitutional requirement to be free from physical restraints is not absolute. The court may take into account special considerations that call for restraints.
The factors a juvenile court should consider when deciding whether to place a juvenile in physical restraints are: the accused's record, temperament, and the desperateness of his situation; the security situation at the courtroom and courthouse; the accused's physical condition; and whether there was an adequate means of providing security that was less prejudicial.
The burden is on the beneficiary of a constitutional error to prove the error is harmless beyond a reasonable doubt.
The admissibility of an in-court identification that is not preceded by a pretrial identification is to be determined by considering whether the in-court identification procedure is unnecessarily suggestive and susceptible to a substantial likelihood of irreparable misidentification.
Any suggestiveness of an in-court identification can be reduced by the juvenile's opportunity to cross-examine the witnesses and his ability to raise doubts about the accuracy of the identifications.

Riverwood Commercial Park, et al. v. Standard Oil Company, et al. 2007 ND 36
Docket No.: 20060122
Filing Date: 3/5/2007
Case Type: Appeal - Civil - Real Property
Author: Maring, Mary

Highlight: The law of the case doctrine applies only in the immediate case, and does not apply to bar claims or issues in a subsequent, separate action.
Res judicata claim preclusion applies to whole claims, whether litigated or not, whereas collateral estoppel issue preclusion applies to particular issues that have been actually contested and litigated in a prior action.
Res judicata claim preclusion does not bar claims that could not have been brought in the prior action.
Collateral estoppel issue preclusion applies only if determination of the issue in the prior action was necessary and essential to support the judgment.
A finding of fact that is not ruled upon on appeal because it was not necessary for the appellate court's decision is not conclusive between the parties in a subsequent action.
Dismissal of an action for failure to join an indispensable party under N.D.R.Civ.P. 19 is not an adjudication on the merits and cannot be granted with prejudice.

Estate of Carlson 2007 ND 35
Docket No.: 20060204
Filing Date: 3/5/2007
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Crothers, Daniel John

Highlight: A North Dakota court has no subject matter jurisdiction to grant or deny a motion to substitute a party in an action or proceeding in another state.
Under the Uniform Probate Code, no presentation of claim is required in regard to matters claimed in proceedings against a decedent that were pending at the time of death.
Under the Uniform Probate Code, a judgment in a proceeding in another court against a personal representative to enforce a claim against a decedent's estate is an allowance of the claim in a North Dakota probate proceeding.

Gonzales v. Witzke 2007 ND 34
Docket No.: 20060277
Filing Date: 3/5/2007
Case Type: Appeal - Civil - Other
Author: Per Curiam

Highlight: A disorderly conduct restraining order is summarily affirmed under N.D.R.App.P. 35.1(a)(1).

Wagner v. Wagner 2007 ND 33
Docket No.: 20060124
Filing Date: 3/2/2007
Case Type: Appeal - Civil - Divorce
Author: Crothers, Daniel John

Highlight: A spousal support determination will not be reversed on appeal unless it is clearly erroneous.
Rehabilitative spousal support is awarded to equalize the burdens of divorce or to restore an economically disadvantaged spouse to independent status by providing the spouse with the opportunity to acquire an education, training, work skills, or experience to become self-supporting.

Whitecalfe v. ND Dept. of Transportation (CONSOLIDATED W/20060269) 2007 ND 32
Docket No.: 20060202
Filing Date: 2/28/2007
Case Type: Appeal - Administrative - Department of Transportation
Author: VandeWalle, Gerald

Highlight: The Department of Transportation must meet the basic and mandatory provisions of the statute to have authority to revoke driving privileges.
When a licensee is arrested for driving under the influence and receives an initial notice of revocation of driving privileges, the licensee is not denied due process simply because the initial notice does not include a statement of the arresting officer's probable cause.

State v. Duchene 2007 ND 31
Docket No.: 20060164
Filing Date: 2/28/2007
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Sandstrom, Dale

Highlight: Issues not briefed by an appellant are abandoned, and become the law of the case and will not be considered on appeal.