Opinions

State v. Fischer (Cross-reference w/ 20060140) 2007 ND 22
Docket No.: 20060153
Filing Date: 2/28/2007
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: An order denying an extension of time to file the notice of appeal terminates the appeal, and thus it is reviewed more closely than an order granting an extension.
The district court must find that either excusable neglect or good cause exists before granting an extension of the time for appeal.
The district court has likely abused its discretion if it does not provide an explanation for the decision to grant or deny an extension.

State v. Halvorson 2007 ND 21
Docket No.: 20060219
Filing Date: 2/28/2007
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Conviction of felony reckless endangerment is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Hanson v. Boeder 2007 ND 20
Docket No.: 20060114
Filing Date: 2/6/2007
Case Type: Appeal - Civil - Real Property
Author: Maring, Mary

Highlight: A breaching party cannot retract an anticipatory repudiation after an injured party sues for enforcement or damages, and an injured party is not required to accept the retraction to mitigate damages.
Issues not raised in the district court will not be considered on appeal.

Hentz v. Elma Township Board 2007 ND 19
Docket No.: 20060198
Filing Date: 2/5/2007
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: A township board's decision must be affirmed unless the board acted arbitrarily, capriciously, or unreasonably, or there is not substantial evidence supporting the decision.
Interpretation of an ordinance is fully reviewable on appeal, and failure to correctly interpret and apply the ordinances constitutes arbitrary, capricious, and unreasonable conduct.
Ordinances are interpreted like any statute.

Meier v. Said 2007 ND 18
Docket No.: 20060248
Filing Date: 2/1/2007
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

Highlight: A petitioner seeking a disorderly conduct restraining order may not raise new allegations through hearing testimony without notice to the respondent.
A petitioner is not required to bolster testimony by presenting corroborating evidence, such as eyewitnesses or official reports, although such corroborating evidence may be useful to the district court.

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.