Opinions

State v. Bovkoon 2007 ND 47
Docket No.: 20060312
Filing Date: 4/10/2007
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: Conviction for livestock running at large is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Gratech Co., Ltd. v. Wold Engineering, P.C. (Cross-Ref. w/20030181) 2007 ND 46
Docket No.: 20060272
Filing Date: 3/27/2007
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: An arbitration award is vacated only if it is completely irrational, in that the decision is either mistaken on its face or so mistaken as to result in real injustice or constructive fraud. An arbitrator's mistake as to fact or law is not a sufficient ground for overturning an arbitration award.
A successful litigant is not entitled to attorney's fees unless they are expressly authorized by statute or by agreement of the parties.
When no evidence is introduced and when the district court makes no specific findings of fact to support its determination on attorney's fees, it is impossible for the Supreme Court on appeal to appropriately review the decision of the district court.

State v. Frohlich 2007 ND 45
Docket No.: 20060178
Filing Date: 3/22/2007
Case Type: Appeal - Criminal - Homicide
Author: Sandstrom, Dale

Highlight: Motions for continuance will be granted only for good cause shown, either by affidavit or otherwise.
The denial of a continuance will be reversed only if it is an abuse of discretion.
When a continuance is sought to retain or replace counsel, the right to select counsel must be carefully balanced against the public's interest in the orderly administration of justice. In exercising its discretion, the district court may consider the time required for trial preparation and the diligence of the moving party.
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice or needless presentation of cumulative evidence.
Cumulative evidence is additional evidence of the same character as existing evidence and that supports a fact established by the existing evidence.

City of Belfield v. Kilkenny 2007 ND 44
Docket No.: 20060176
Filing Date: 3/22/2007
Case Type: Appeal - Criminal - Violation of City Ordinance
Author: Sandstrom, Dale

Highlight: All laws must meet two requirements to survive a void-for-vagueness challenge: the law must create minimum guidelines for the reasonable police officer, judge, or jury charged with enforcement of the statute; and the law must provide a reasonable person with adequate and fair warning of the proscribed conduct.

State v. Mulske 2007 ND 43
Docket No.: 20060184
Filing Date: 3/22/2007
Case Type: Appeal - Criminal - Theft
Author: Sandstrom, Dale

Highlight: If an accused desires to exercise his constitutional right to testify, the accused must act affirmatively and express to the court his desire to do so at the appropriate time or a knowing and voluntary waiver of the right is deemed to have occurred.
Unlike other constitutional rights that can be waived only after the court makes a formal inquiry, the court does not have a duty to verify that the defendant who is not testifying has waived his or her right voluntarily. Instead, the court is entitled to presume the attorney and the client discussed the right, and the defendant voluntarily agreed upon the final decision.

State v. Bachmeier 2007 ND 42
Docket No.: 20060235
Filing Date: 3/22/2007
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Kapsner, Carol

Highlight: Observed traffic violations provide law enforcement officers with the basis for a stop.
The exclusionary rule is only designed to safeguard an individual's rights through its deterrent effect, and it is not a personal constitutional right of the party aggrieved.
North Dakota law authorizes law enforcement personnel operating a class A emergency vehicle to exceed the posted speed limit to pursue a suspected violator, so long as it can be done without danger to life or property.

Jelsing v. Peterson 2007 ND 41
Docket No.: 20060112
Filing Date: 3/22/2007
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: An initial award of custody must be made to one parent before a court may decide whether to allow a custodial parent to relocate with a child to another state.

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.

State v. Austin (CONSOLIDATED W/ 20060194) 2007 ND 30
Docket No.: 20060022
Filing Date: 2/28/2007
Case Type: Appeal - Criminal - Sexual Offense
Author: Sandstrom, Dale

Highlight: Expert testimony is admissible when specialized knowledge will assist the trier of fact in understanding the evidence or determining a fact in issue. Whether expert testimony is useful falls within the district court's discretion, and the decision whether to allow the testimony will not be reversed on appeal unless the district court has abused its discretion.
A defendant claiming ineffective assistance of counsel must prove that the counsel's representation fell below an objective standard of reasonableness and that the defendant was prejudiced by counsel's deficient performance.

Holden v. Holden 2007 ND 29
Docket No.: 20060212
Filing Date: 2/28/2007
Case Type: Appeal - Civil - Divorce - Property
Author: Kapsner, Carol

Highlight: North Dakota law does not mandate a set formula or method to determine how marital property is to be divided after a divorce; rather, the property division is based on the particular circumstances of each case.
Property need not be liquidated for a distribution to be equitable.

McCrothers Corp., et al. v. City of Mandan 2007 ND 28
Docket No.: 20060127
Filing Date: 2/28/2007
Case Type: Appeal - Civil - Constitutional Law
Author: VandeWalle, Gerald

Highlight: Nude or semi-nude dancing is expressive conduct protected by the First Amendment.
Content-neutral time, place, and manner regulations are not subject to strict scrutiny.
A state has power to prohibit the sale of alcoholic beverages in inappropriate locations through its inherent police powers.
The First Amendment does not entitle an alcoholic beverage establishment, its dancers, or its patrons to have alcohol available during a presentation of nude or semi-nude dancing.
A city's interest in curbing the secondary effects associated with adult entertainment establishments is substantial.
Overly broad statutes are those that restrict constitutionally protected expression as well as expression that is unprotected, and an overbreadth challenge may be brought even though the challenger's rights may not have been violated under the circumstances.
Whether there has been a taking of private property for public use is a question of law which is fully reviewable on appeal.

Stockman Bank of Montana v. AGSCO, Inc., et al. 2007 ND 27
Docket No.: 20060119
Filing Date: 2/28/2007
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: An agricultural supplier's lien is a statutory lien and cannot be obtained or enforced unless there is substantial compliance with the statute.
The producer's actual knowledge is substantial compliance with requirement for notice to the producer before filing the lien.

Stockman Bank of Montana v. AGSCO, Inc., et al. (Cross Ref w/20070357) 2007 ND 26
Docket No.: 20060174
Filing Date: 2/28/2007
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: A principal and its duly authorized agent may file an agricultural supplier's lien for agricultural supplies furnished to an agricultural producer.
An agricultural supplier's lien filed as a security interest created by contract to secure money advanced or loaned for any purposes is not effective to secure a priority over crop liens.
An agricultural supplier's lien cannot be obtained or enforced unless there has been substantial compliance with the statutory requirements for the lien.
An agricultural supplier may be entitled to a lien on crops if the agricultural supplier furnishes supplies to the producer within 120 days before the lien was filed and if the supplies were applied to crops in North Dakota.

State v. Streeper 2007 ND 25
Docket No.: 20060162
Filing Date: 2/28/2007
Case Type: Appeal - Criminal - Homicide
Author: Sandstrom, Dale

Highlight: When a person puts another in danger, such as by unlawfully injecting her with drugs, and then does nothing to aid her in the resulting medical crisis, the failure to take appropriate action may be considered as a continuation of criminal conduct.
The use and admission of photographs in criminal trials is largely within the discretion of the district court.
A statement of a criminal defendant is admissible even though the defendant intended it to be exculpatory when made.
In controlling the scope of closing argument, the district court is vested with discretion, and absent a clear showing of an abuse of discretion, the conviction will not be reversed on grounds the prosecutor exceeded the scope of permissible closing argument.

Rothberg v. Rothberg (Cross-Ref w/20050198) 2007 ND 24
Docket No.: 20060191
Filing Date: 2/28/2007
Case Type: Appeal - Civil - Divorce - Property
Author: Maring, Mary

Highlight: A change in an obligor's financial circumstances that does not affect the obligor's ability to pay is not a "material" change in circumstances warranting a reduction in spousal support.

Fettig v. Workforce Safety and Insurance 2007 ND 23
Docket No.: 20060105
Filing Date: 2/28/2007
Case Type: Appeal - Administrative - Workers Compensation
Author: Crothers, Daniel John

Highlight: To trigger the civil penalties for making a false statement in connection with a claim for WSI benefits, WSI must prove: (1) there is a false claim or statement; (2) the false claim or statement is willfully made; and (3) the false claim or statement is made in connection with any claim or application for benefits.
Based upon the civil penalty sought, there are two tests to determine the "materiality of a false statement." If WSI seeks reimbursement for benefits paid, the level of materiality required is proof by WSI that the false claim or false statement caused the benefits to be paid in error. If WSI seeks only forfeiture of future benefits, however, no such causal connection is required.

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.

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.

State v. Moore 2007 ND 7
Docket No.: 20060131
Filing Date: 1/11/2007
Case Type: Appeal - Criminal - Theft
Author: Maring, Mary

Highlight: An appellate court will not reverse a finding of good cause for a grant of additional time unless the trial court abused its discretion. Factors considered when deciding whether good cause exists to grant additional time are the length of delay, the reason for delay, defendant's assertion of his right, and prejudice to the defendant.
Section 29-33-03, N.D.C.C., provides an exception to the requirement that an order be written and signed before it is final. It allows the trial court to rule on a request for additional time in open court.

State v. Stensaker (consolidated w/20050454) 2007 ND 6
Docket No.: 20050453
Filing Date: 1/11/2007
Case Type: Appeal - Criminal - Misc. Felony
Author: Sandstrom, Dale

Highlight: On appeal, jury instructions are fully reviewable.
Jury instructions are reviewed as a whole and must correctly and adequately inform the jury of the applicable law even though part of the instructions when standing alone may be insufficient or misleading.
The intentional gathering and preparation of ingredients, whose purchase, possession, or transportation is regulated by state law, with the intent to manufacture methamphetamine provides sufficient evidence for criminal attempt to manufacture methamphetamine.

Donlin v. Donlin 2007 ND 5
Docket No.: 20060128
Filing Date: 1/11/2007
Case Type: Appeal - Civil - Divorce - Property
Author: Crothers, Daniel John

Highlight: Property division need not be equal to be equitable, but a substantial disparity must be explained. A long-term marriage supports an equal distribution of property.
Property division and spousal support are interrelated and intertwined and often must be considered together. In making a spousal support determination, the district court must consider the relevant factors under the Ruff-Fischer guidelines.

State v. Goebel 2007 ND 4
Docket No.: 20060147
Filing Date: 1/11/2007
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

Highlight: Prosecutions for the sexual abuse of child victims are subject to a particular statute of limitations and tolling provision contained in the North Dakota Century Code.
If the victim is under the age of fifteen at the time of the sexual abuse, the statute of limitations does not begin to run until the victim reaches the age of fifteen, which extends the initial seven-year limitation period until the victim reaches the age of twenty-two.
If the victim does not report the sexual abuse to law enforcement authorities within the seven-year period, but reports the offense sometime later, the limitation period runs for three years from the date the offense is reported.

Lucier v. Lucier 2007 ND 3
Docket No.: 20060060
Filing Date: 1/11/2007
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A spousal support obligation may be modified if the district court finds there is a material change in circumstances after examining the reasons for the changes in income and the extent to which the changes were contemplated.
A contemplated change in circumstances is not a change that justifies modifying spousal support.
When modifying a spousal support award, the district court must adequately explain its rationale in determining the new support amount.

State v. Zahn (CONSOLIDATED W/20060046 & 20060047) 2007 ND 2
Docket No.: 20060045
Filing Date: 1/11/2007
Case Type: Appeal - Criminal - Misc. Felony
Author: Kapsner, Carol

Highlight: A party charged with violating a protection order cannot challenge the validity of the protection order without first presenting the argument to the court issuing the order.
A court order must be obeyed until stayed, modified, or reversed by orderly review.
To convict a defendant of violating a protection order, the State need only prove it served a protection order on the defendant and the defendant's conduct violated the order.

Interest of J.H. (CONFIDENTIAL) 2007 ND 1
Docket No.: 20060373
Filing Date: 1/11/2007
Case Type: Appeal - Civil - Mental Health
Author:

Highlight: Mental health orders summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Interest of R.F. (CONFIDENTIAL) 2006 ND 258
Docket No.: 20060362
Filing Date: 12/20/2006
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

Highlight: Mental health appeal summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Lawrence v. Delkamp 2006 ND 257
Docket No.: 20060136
Filing Date: 12/18/2006
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: A person may waive the rights and privileges to which that person is legally entitled, whether secured by contract, conferred by statute, or guaranteed by the constitution.
Waiver occurs when a person voluntarily and intentionally relinquishes a known right or privilege.

State v. Wardner 2006 ND 256
Docket No.: 20060014
Filing Date: 12/18/2006
Case Type: Appeal - Criminal - Sexual Offense
Author: Sandstrom, Dale

Highlight: A presentence investigation must be conducted before sentencing for gross sexual imposition, but an additional presentence investigation is not required for imposition of a previously suspended sentence after revocation of probation.
Conditions of probation are interpreted as mandatory.

Griggs v. Fisher, et al. 2006 ND 255
Docket No.: 20060180
Filing Date: 12/13/2006
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: Before addressing the issue of sufficiency of the evidence to support a jury verdict, a losing party must move for judgment as a matter of law under N.D.R.Civ.P. 50 or for a new trial under N.D.R.Civ.P. 59.

Aga v. Workforce Safety and Insurance, et al. 2006 ND 254
Docket No.: 20060185
Filing Date: 12/13/2006
Case Type: Appeal - Administrative - Workers Compensation
Author: Maring, Mary

Highlight: Claimants reapplying for disability benefits have the burden of showing a significant change in their compensable medical condition and an actual wage loss caused by the significant change in their condition.

Interest of R.S. (Confidential) 2006 ND 253
Docket No.: 20060318
Filing Date: 12/13/2006
Case Type: Appeal - Civil - Mental Health
Author: Crothers, Daniel John

Highlight: For mental health commitment, the law allows a court to act on warnings and does not require actual violence or expressed threats.
A mentally ill person, convinced that snipers are out to get him, who, armed with a gun, walks directly into a police station without stopping at the front reception desk may pose a serious risk of harm to others.

Interest of C.L. (Confidential) 2006 ND 252
Docket No.: 20060339
Filing Date: 12/13/2006
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

Highlight: Mental health continuing treatment order summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Disciplinary Board v. Stensland 2006 ND 251
Docket No.: 20060299
Filing Date: 12/12/2006
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspension ordered.

Petition of Edison 2006 ND 250
Docket No.: 20060091
Filing Date: 12/5/2006
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: An attorney may be disciplined for knowingly serving an answer on behalf of a deceased client.
A knowing act does not require an evil intent or bad purpose, and an act may be done knowingly if it was done in the exercise of the performer's free will and not under coercion.

Disciplinary Board v. Overboe 2006 ND 249
Docket No.: 20060301
Filing Date: 12/4/2006
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Interim suspension of lawyer ordered.

State v. Johnson 2006 ND 248
Docket No.: 20060133
Filing Date: 11/28/2006
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: A police officer's belief that many people violate the thirty-day temporary registration law does not give rise to reasonable suspicion that an automobile is not lawfully registered.

Dunnuck v. Dunnuck 2006 ND 247
Docket No.: 20060126
Filing Date: 11/28/2006
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: An order denying a motion to modify child support that is intended to be the final order of the court is appealable.
The party requesting a change in child support must show a material change of circumstances if the motion to amend is brought within one year of the entry of the order sought to be amended.
A district court's decision not to modify a child support obligation because there has been no material change in circumstances is a finding of fact that will not be reversed unless it is clearly erroneous.

State v. Jacob 2006 ND 246
Docket No.: 20060103
Filing Date: 11/28/2006
Case Type: Appeal - Criminal - Homicide
Author: Sandstrom, Dale

Highlight: For negligent homicide, a person must act negligently, causing death. For leaving the scene involving death, a person need only negligently leave an accident scene and fail to render aid where a death occurred.
It is legally and factually possible for a jury to find a person not guilty beyond a reasonable doubt of negligent homicide and guilty beyond a reasonable doubt of leaving the scene of an accident involving death.

Harshberger v. Harshberger 2006 ND 245
Docket No.: 20060039
Filing Date: 11/28/2006
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: The Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA") establishes the criteria for deciding which state's courts have subject matter jurisdiction to make a child custody decisions involving interstate custody disputes, and subject matter jurisdiction under the UCCJEA cannot be conferred by agreement, consent, or waiver.
The UCCJEA applies to paternity actions only when custody or visitation is an issue.
A subsequent motion in a pending paternity action that implicates the jurisdictional requirements of the UCCJEA does not relate back to the beginning of the original paternity action that did not raise custody or visitation as an issue.
A judgment entered without subject matter jurisdiction is void.

Ibach v. Zacher 2006 ND 244
Docket No.: 20060129
Filing Date: 11/28/2006
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: For child visitation, a district court's finding of no material change in circumstances may be reversed as a matter of law on appeal when the custodial parent and child have moved a significant distance and the non-custodial parent has developed a medical condition requiring treatment that conflicts with the existing visitation schedule.

Allard v. Johnson 2006 ND 243
Docket No.: 20060080
Filing Date: 11/28/2006
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: Whether a presumption applies is a question of law, which is fully reviewable on appeal.
A durable power of attorney agreement creates a confidential relationship and fiduciary duties owed to the beneficiary by the attorney-in-fact.
Under a durable power of attorney agreement, the attorney-in-fact must act with the highest good faith toward the beneficiary and may not obtain any advantage over the beneficiary.
All transactions between an attorney-in-fact and a beneficiary by which the attorney-in-fact obtains any advantage is presumed to be entered into without sufficient consideration and under undue influence.

State v. Myers 2006 ND 242
Docket No.: 20050368
Filing Date: 11/28/2006
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: A fundamental principle of constitutional law is that a prosecutor may not comment on a defendant's failure to testify in a criminal case.
When there is an adjournment of proceedings in a jury trial, the district court must admonish a jury that it is their duty not to converse among themselves nor with anyone else on any subject connected with the trial, nor to form or express any opinion thereon, until the case is finally submitted to them.

State v. Oliver (Consolidated w/20060083, 20060084 & 20060085) 2006 ND 241
Docket No.: 20060082
Filing Date: 11/28/2006
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: A faded temporary registration certificate with no visible printing is indicative of a temporary certificate that is more than thirty days old and provides an objective fact giving an officer a right to stop a vehicle to check its validity.

Eifert v. Eifert 2006 ND 240
Docket No.: 20060069
Filing Date: 11/28/2006
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: In deciding custody, a district court may consider the child's interaction and interrelationships with a party's extended family and others who may significantly affect the child's best interests.

State v. Doohen 2006 ND 239
Docket No.: 20060089
Filing Date: 11/28/2006
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Maring, Mary

Highlight: A warrantless search is unreasonable unless it falls within a recognized exception to the warrant requirement.
Under the automobile exception, law enforcement may search for illegal contraband without a warrant when probable cause exists.
A police officer may draw inferences based on his own experience in deciding whether probable cause exists.
Probable cause demands not that an officer be sure or certain but only that the facts available to a reasonably cautious individual would warrant a belief that certain items may be contraband or useful as evidence of a crime.

Glasser v. Glasser 2006 ND 238
Docket No.: 20060159
Filing Date: 11/28/2006
Case Type: Appeal - Civil - Divorce
Author: Maring, Mary

Highlight: An order dismissing an order to show cause why a party should not be held in contempt of court is appealable.
Interpretation of a judgment is a question of law, and an unambiguous judgment may not be modified, enlarged, restricted, or diminished. The question whether a judgment is ambiguous is a question of law. There is an ambiguity when language can be reasonably construed as having at least two alternative meanings.
If the language used in a judgment is ambiguous, there is room for construction, but if the language is unambiguous and plain, neither construction nor interpretation is allowed, and the effect of the language must be based on the language's literal meaning.

Genter v. Workforce Safety & Ins. Fund, et al. 2006 ND 237
Docket No.: 20060145
Filing Date: 11/28/2006
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: Workforce Safety and Insurance must determine whether a medical assessment team is required in a particular case based on the nature of the claimed injury.
If a medical assessment team is required to evaluate an injury, Workforce Safety and Insurance has the discretion to determine the composition of the team on a case-by-case basis.

Klein v. Larson 2006 ND 236
Docket No.: 20060062
Filing Date: 11/28/2006
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: In an initial custody decision, the trial court must award custody to the parent who will better promote the best interests and welfare of the child.
A parent's numerous prior criminal offenses, although not involving crimes of moral turpitude, are relevant evidence of the parent's moral fitness.

Silbernagel, et al. v. Silbernagel, et al. 2006 ND 235
Docket No.: 20060201
Filing Date: 11/28/2006
Case Type: Appeal - Civil - Real Property
Author: Per Curiam

Highlight: Summary judgment in a quiet title action is summarily affirmed under N.D.R.App.P. 35.1(a)(6).

State v. Morrell 2006 ND 234
Docket No.: 20060078
Filing Date: 11/28/2006
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: A criminal judgment entered upon a conditional guilty plea to the offense of carrying a loaded firearm in a motor vehicle is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Otto v. State (Cross-Ref. w/20030368) 2006 ND 233
Docket No.: 20060093
Filing Date: 11/28/2006
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Denial of post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Wishek v. Kaseman 2006 ND 232
Docket No.: 20060192
Filing Date: 11/15/2006
Case Type: Appeal - Criminal - Violation of City Ordinance
Author: Per Curiam

Highlight: A judgment granting summary judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(6).

Trinity Hospitals v. Mattson, et al. 2006 ND 231
Docket No.: 20060121
Filing Date: 11/14/2006
Case Type: Original Proceeding - Civil - Writ of Supervision
Author: Crothers, Daniel John

Highlight: The Supreme Court's authority to issue a supervisory writ is a discretionary power exercised rarely, cautiously, and only in extraordinary cases to rectify errors and to prevent injustice when no adequate alternative remedy exists.
A contributing employer is immune from suit under the exclusive remedy provisions of workers' compensation law, and Workforce Safety and Insurance's determination that two affiliated corporations are encompassed under the same premium is a salient factor in determining a contributing employer.

Disciplinary Board v. Aakre 2006 ND 230
Docket No.: 20060260
Filing Date: 11/14/2006
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Suspension of lawyer ordered.

Tverberg v. Workforce Safety & Insurance, et al. 2006 ND 229
Docket No.: 20060064
Filing Date: 11/13/2006
Case Type: Appeal - Administrative - Workers Compensation
Author: Sandstrom, Dale

Highlight: The rehabilitation provisions of workers compensation law are intended to return injured workers to substantial gainful employment with a minium of retraining as soon as possible after a work injury, but those provisions do not require complete rehabilitation to preinjury earning capacity.
Section 65-05.1-01(6), N.D.C.C., applies if a vocational consultant determines that none of the priority options under N.D.C.C. 65-05.1-01(4) are viable and will not return the employee to the lesser of two-thirds of the average weekly wage or ninety percent of the employee's preinjury earnings.
Partial disability benefits are to be awarded based on a calculation for retained earnings capacity, and WSI may use a statewide job pool to calculate the employee's retained earnings capacity.

Disciplinary Board v. Bullis 2006 ND 228
Docket No.: 20060132
Filing Date: 11/13/2006
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Attorney suspended from practice of law for 90 days, ordered to complete six hours of non-self-study continuing legal education courses on conflicts of interest within the next two years in addition to the mandatory CLE requirements, and ordered to pay costs and expenses of proceedings.
When a lawyer has conflicting responsibilities as the lawyer for various clients, those loyalties owed to the client are impaired.
An attorney representing multiple clients cannot by subjective or secret analysis eliminate one as a current client and decide that he is only representing another current client on a particular transaction.
Business transactions between an attorney and client are fraught with pitfalls and traps, and an attorney, with his superior knowledge and education, engages in business transactions with a client at the attorney's peril and is held to the highest standards.

State v. Buchholz (Consol. w/20060061) (Cross-ref. w/20040118) 2006 ND 227
Docket No.: 20060044
Filing Date: 11/7/2007
Case Type: Appeal - Criminal - Other
Author: VandeWalle, Gerald

Highlight: A mistake of law defense generally is not an available defense for strict liability offenses.
A sentence may be illegal if it is contrary to statute, fails to comply with a promise of a plea bargain, or is inconsistent with the oral pronouncement of the sentence.

Unterseher v. Ziegler 2006 ND 226
Docket No.: 20060181
Filing Date: 11/7/2006
Case Type: Appeal - Administrative - Department of Transportation
Author: Per Curiam

Highlight: Suspension of driving privileges is summarily affirmed under N.D.R.App.P. 35.1(a)(5).

State v. Just 2006 ND 225
Docket No.: 20060146
Filing Date: 11/7/2006
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Kapsner, Carol

Highlight: An information or complaint must contain a plain, concise, and definite written statement of the essential facts and elements of the offense.
The omission of statutory language from an information or complaint may be harmless if the defendant was not substantially prejudiced and the document is sufficiently specific to enable the defendant to prepare a defense.

Riemers v. City of Grand Forks 2006 ND 224
Docket No.: 20060057
Filing Date: 11/7/2006
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: A party opposing summary judgment may not merely rely upon the pleadings or unsupported, conclusory allegations.
A party waives an issue by not providing supporting arguments, reasoning, or citations to relevant legal authority.
An Attorney General's opinion is "highly persuasive" if it is consistent with the district court's independent analysis of the issues presented.
Under the open records law, a public entity need not disclose a record that is not in its possession or custody at the time of the request.
The "criminal intelligence and investigative information exception," which exempts active criminal investigation material from disclosure under the open records law, is temporary in nature and terminates upon the completion of the criminal prosecution.

Sambursky v. State (Consol. w/20050331-20050335) 2006 ND 223
Docket No.: 20050330
Filing Date: 11/7/2006
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: A district court may summarily dismiss an application for post-conviction relief if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
If the petitioner raises an issue of material fact in resisting summary dismissal of an application for post-conviction relief, the petitioner is entitled to an evidentiary hearing on the matter.
In a post-conviction relief proceeding alleging the ineffective assistance of counsel with respect to a guilty plea, counsel is ineffective if a claimant can show that counsel's performance fell below an objective standard of reasonableness and there is a reasonable probability that, but for counsel's errors, the petitioner would not have pleaded guilty and would have insisted on going to trial.

State v. Davis 2006 ND 222
Docket No.: 20060033
Filing Date: 11/7/2006
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Convictions for carrying a concealed firearm and possessing a short-barreled shotgun are summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Rojas v. Workforce Safety and Ins., et al. (Cross-ref. w/20040352) 2006 ND 221
Docket No.: 20060087
Filing Date: 10/23/2006
Case Type: Appeal - Administrative - Workers Compensation
Author: Maring, Mary

Highlight: An injured employee is entitled to an award of reasonable attorney's fees when Workforce Safety and Insurance acts without substantial justification in reducing or denying the employee's benefits.

Hasper v. Center Mutual Ins. Co. 2006 ND 220
Docket No.: 20050316
Filing Date: 10/23/2006
Case Type: Appeal - Civil - Insurance
Author: Kapsner, Carol

Highlight: An insurer which seeks to deny underinsured motorist coverage based upon the insured's failure to notify the insurer of a proposed settlement with the tortfeasor must demonstrate that it suffered actual prejudice resulting from the lack of notice.
The determination whether an insurer has been prejudiced by an unauthorized settlement is a question of fact that is generally inappropriate for summary judgment.
In determining whether an insurer has suffered actual prejudice from an unauthorized settlement, relevant factors include the amount of the tortfeasor's assets, the likelihood of recovery via subrogation, the extent of the insured's damages, and the expenses and risks of litigating the insured's cause of action.

Guardianship/Conservatorship of Thomas 2006 ND 219
Docket No.: 20050370
Filing Date: 10/20/2006
Case Type: Appeal - Civil - Guardian/Conservator
Author: Maring, Mary

Highlight: The Supreme Court applies the abuse of discretion standard when reviewing a trial court's selection of a guardian and conservator.
Concern over the appearance of undue influence can establish "good cause," justifying the appointment of a neutral and detached person as guardian and conservator over others with higher priority who have a financial interest in the protected person's assets.
The Supreme Court applies the abuse of discretion standard of review to the district court's ultimate decision whether to approve payment of a claim against a protected person's estate and the clearly erroneous standard of review to the court's underlying findings of fact.

Interest of B.L.S. (Confidential) 2006 ND 218
Docket No.: 20060234
Filing Date: 10/20/2006
Case Type: Appeal - Civil - Mental Health
Author: Kapsner, Carol

Highlight: After a request to treat with medication has been made, an independent physician or psychiatrist must certify that the proposed treatment is clinically appropriate and necessary, that the patient was offered the treatment and refused it, that the prescribed medication is the least restrictive form necessary to meet the patient's needs, and that the benefits of treatment outweigh the known risks.
Mental health respondents are entitled to adequate notice and the opportunity to prepare to address the involuntary treatment with medication.
A district court cannot order medications which have not been noticed in the request to treat with medication and have not been certified as clinically appropriate and necessary by a second physician or psychiatrist.
The involuntary treatment with medication is not limited to psychotropic medications used to treat mental illness.

Hild, et al. v. Johnson, et al. 2006 ND 217
Docket No.: 20060056
Filing Date: 10/20/2006
Case Type: Appeal - Civil - Real Property
Author: Kapsner, Carol

Highlight: An undivided mineral interest conveyed or reserved in a deed may be expressed as a percentage, as a fraction, or as a specified number of mineral acres.
A grantee of a specified number of mineral acres in a described tract of land acquires that number of acres, and does not gain or lose if the tract contains more or less acreage than contemplated by the parties.
A grantee of an undivided mineral interest expressed as a percentage or fraction acquires that quantum in the entire described tract of land, and may gain or lose if the tract contains more or less acreage than contemplated by the parties.
When there is a discrepancy in a deed between the specific description of the property conveyed and an expression of the quantity conveyed, the specific description is controlling.
Quantity is the least certain of all elements of description in a deed, and all other elements of description must be ambiguous and uncertain before a recital of quantity will be considered.

Rummer v. State (Cross-reference w/19950324) 2006 ND 216
Docket No.: 20050341
Filing Date: 10/17/2006
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Maring, Mary

Highlight: The petitioner has the burden of establishing grounds for post-conviction relief.
In order to prevail on a post-conviction claim for ineffective assistance of counsel, the petitioner has the heavy burden of proving: (1) counsel's representation fell below an objective standard of reasonableness, and (2) the defendant was prejudiced by counsel's deficient performance.
To establish a Brady violation, the defendant must prove: (1) the government possessed evidence favorable to the defendant; (2) the defendant did not possess the evidence and could not have obtained it with reasonable diligence; (3) the prosecution suppressed the evidence; and (4) a reasonable probability exists that the outcome of the proceedings would have been different if the evidence had been disclosed.
A foreign-national criminal defendant may waive any right to consular notification by failing to timely raise the issue.

Livinggood v. Balsdon 2006 ND 215
Docket No.: 20060130
Filing Date: 10/17/2006
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: On remand, a district court may, unless otherwise specified, make its decision on the basis of the evidence already before it or may take additional evidence. The decision on taking additional evidence will be reversed only if the district court abuses its discretion.
Forcible ejectment or exclusion from real property is a conclusion of law fully reviewable on appeal.
Forcible ejectment from real property does not require the actual application of physical force; rather, it is enough if it is present and threatened, and is justly to be feared. This standard requires only that the plaintiff had reason to believe that he would be put out by the application of physical force if he did not obey.
The appropriate standard of review in an appeal challenging a district court's award of damages in a bench trial is whether the district court's findings of fact on damages are clearly erroneous.
A district court must award treble damages if it concludes that one person forcibly ejected or excluded another from real property.

Eichhorn v. The Waldo Township Bd. of Supervisors, et al. 2006 ND 214
Docket No.: 20050295
Filing Date: 10/17/2006
Case Type: Original Proceeding - Civil - Writ of Mandamus
Author: Sandstrom, Dale

Highlight: Intervention is appropriate when the intervenor claims an interest relating to the property or transaction that is the subject of the action and that the disposition of the action may as a practical matter impair or impede the intervenor's ability to protect that interest, unless the interest is adequately represented by existing parties.
A party seeking a writ of mandamus must show that there is a "clear legal right" to performance of the particular act sought to be compelled by the writ and that there is no other plain, speedy, and adequate remedy in the ordinary course of law.
North Dakota statutes envision cooperation between townships and water resource district boards.

Witzke v. Gonzales 2006 ND 213
Docket No.: 20060155
Filing Date: 10/17/2006
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Maring, Mary

Highlight: A civil action is commenced by the service of a summons.
Absent personal jurisdiction, the court is powerless to do anything beyond dismissing without prejudice.

State v. Ebel (Consolidated w/20050441-20050443) 2006 ND 212
Docket No.: 20050440
Filing Date: 10/17/2006
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: The Court looks at the "totality of the circumstances" on appeal, giving deference to the district court's findings, to determine whether a search warrant was supported by probable cause.
An evidentiary hearing on whether false statements were provided to support the issuance of a search warrant is only required where: (1) a defendant makes a substantial preliminary showing, accompanied by an offer of proof, that false statements were made in support of a search warrant, either knowingly and intentionally or with reckless disregard for the truth, and (2) the allegedly false statements are necessary to a finding of probable cause.

State v. Sevigny 2006 ND 211
Docket No.: 20050315
Filing Date: 10/17/2006
Case Type: Appeal - Criminal - Sexual Offense
Author: Kapsner, Carol

Highlight: Evidence of an alibi defense may be excluded if a defendant fails to give sufficient notice of his intent to present evidence of an alibi.
A defendant has a right to give testimony about an alibi, even if the defendant fails to give notice of the defense and all alibi evidence is excluded.
A district court must make sufficient findings of fact when admitting or excluding testimony about a child's out-of-court statements about sexual abuse.
A district court has wide discretion over the mode and order of interrogating witnesses and presenting evidence.
Intentional disobedience of a court order constitutes contempt.

Interest of T.A., et al. (CONFIDENTIAL) 2006 ND 210
Docket No.: 20060063
Filing Date: 10/17/2006
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Maring, Mary

Highlight: To terminate parental rights, the petitioner must prove three elements by clear and convincing evidence: (1) the child is a deprived child, (2) the conditions and causes of the deprivation are likely to continue or will not be remedied, and (3) that by reason thereof the child is suffering or will probably suffer serious physical, mental, moral, or emotional harm.
To prove deprivation is likely to continue or will not be remedied, the petitioner cannot rely on past deprivation alone, but must provide prognostic evidence, demonstrating the deprivation will continue.

State v. Odom 2006 ND 209
Docket No.: 20060106
Filing Date: 10/17/2006
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Maring, Mary

Highlight: Warrantless searches are unreasonable unless they fall within a recognized exception to the warrant requirement. Consent is an exception to the warrant requirement. The scope of an individual's consent is determined by considering what an objectively reasonable person would have understood the consent to include. The scope of a search is generally defined by its expressed object.
When general consent is given to search a room, no limitations are placed on the consent, the consent is not withdrawn, and the expressed object of the search is known, a police officer can reasonably search locked or closed containers within the room without a warrant.

Forbes v. Workforce Safety & Ins., et al. 2006 ND 208
Docket No.: 20050431
Filing Date: 10/17/2006
Case Type: Appeal - Administrative - Workers Compensation
Author: Maring, Mary

Highlight: In an administrative appeal, the Court determines only whether a reasoning mind reasonably could have determined that the factual conclusions reached were proved by the weight of the evidence from the entire record.
To trigger the civil penalties for making a false statement in connection with a claim for WSI benefits, WSI must prove: (1) there is a false claim or statement; (2) the false claim or statement is willfully made; and (3) the false claim or statement is made in connection with any claim or application for benefits.
Based upon the civil penalty sought, there are two tests to determine the "materiality of a false statement." If WSI seeks reimbursement for benefits paid, the level of materiality required is proof by WSI that the false claim or false statement caused the benefits to be paid in error. If WSI seeks only forfeiture of future benefits, however, no such causal connection is required.

City of Bismarck v. Perusquia 2006 ND 207
Docket No.: 20060048
Filing Date: 10/17/2006
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: A conviction for driving under the influence is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Jangula v. Jangula (Cross-Ref. w/20050070) 2006 ND 206
Docket No.: 20060168
Filing Date: 10/17/2006
Case Type: Appeal - Civil - Divorce - Property
Author: Per Curiam

Highlight: A district court's property division in a divorce is summarily affirmed under N.D.R.App.P. 35.1(a)(2).