Opinions

DeMers v. DeMers 2006 ND 142
Docket No.: 20050184
Filing Date: 6/29/2006
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: The statutory presumption against awarding custody to the perpetrator of domestic violence applies when the district court finds there is credible evidence of domestic violence and at least one incident of domestic violence resulted in serious bodily injury or involved the use of a dangerous weapon, or there is a pattern of domestic violence within a reasonable proximity to the proceeding.
A party waives the right to appeal a divorce judgment if she unconditionally, voluntarily, and consciously accepts the benefits of the judgment.
The district court must adequately explain a substantial disparity in a property distribution.

Farmers Insurance Exchange, et al. v. Schirado 2006 ND 141
Docket No.: 20050221
Filing Date: 6/29/2006
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: A plaintiff may establish the elements of a claim by circumstantial evidence.
Direct evidence of causation is not required if other evidence is sufficient to permit an inference that the defendant's conduct caused the plaintiff's damages.

State v. Ehli (Consolidated w/20060042) 2006 ND 140
Docket No.: 20060041
Filing Date: 6/29/2006
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Maring, Mary

Highlight: State's appeal of order suppressing evidence will be dismissed as moot when the underlying cases had been dismissed on a motion by the State.

State v. Hansen 2006 ND 139
Docket No.: 20050387
Filing Date: 6/29/2006
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: An appellate court does not render advisory opinions and will dismiss an appeal if the issues have become moot or so academic that no actual controversy is left to be decided.
When a district court fails to follow established procedures and orderly process in declaring a law unconstitutional, supervisory jurisdiction may be used to vacate the district court's order.

State v. Oien 2006 ND 138
Docket No.: 20050451
Filing Date: 6/29/2006
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: An individual trespassing is not entitled to the protections of the Fourth Amendment because he does not have a reasonable expectation of privacy.

Johnson v. Sprynczynatyk 2006 ND 137
Docket No.: 20050449
Filing Date: 6/29/2006
Case Type: Appeal - Administrative - Department of Transportation
Author: VandeWalle, Gerald

Highlight: Traveling at a slower than usual speed, with no further evidence of illegal activity, does not alone create a reasonable and articulable suspicion justifying a traffic stop.

Kenmare Education Assn. v. Kenmare Public School Dist. #28 2006 ND 136
Docket No.: 20050422
Filing Date: 6/29/2006
Case Type: Original Proceeding - Civil - Writ of Mandamus
Author: Kapsner, Carol

Highlight: A school district must negotiate in good faith with the representative organization before last-offer contracts are made.
After the North Dakota Education Fact Finding Commission has issued a recommendation and the parties are still at an impasse, a School District may issue last-offer contracts limited to the current period of negotiations.

State v. Gresz 2006 ND 135
Docket No.: 20050401
Filing Date: 6/29/2006
Case Type: Appeal - Criminal - Other
Author: Kapsner, Carol

Highlight: In the absence of physical action upon another person, the failure to include a self-defense jury instruction on a charge of disorderly conduct is not obvious error.

State v. Blue 2006 ND 134
Docket No.: 20050187
Filing Date: 6/29/2006
Case Type: Appeal - Criminal - Sexual Offense
Author: Kapsner, Carol

Highlight: Under Crawford v. Washington, 541 U.S. 36 (2004), the admission of out-of-court testimonial statements in criminal cases is precluded, unless the witness is unavailable to testify and the accused has had an opportunity to cross-examine the declarant.
Videotape recording of child's statement to forensic interviewer that included government involvement is a testimonial statement and if the child is available to testify, and the playing of the videotape without the opportunity to cross-examine the witness violates defendant's constitutional right to confront his accuser.
The "reliability and trustworthiness" factors are still to be used for non-testimonial statements. But when testimonial statements are at issue, the constitutional right to confrontation cannot be superseded by reliability and trustworthiness.

Ulsaker v. White 2006 ND 133
Docket No.: 20050207
Filing Date: 6/29/2006
Case Type: Appeal - Civil - Divorce - Property
Author: Kapsner, Carol

Highlight: All assets regardless of source, whether separately obtained or inherited property, are to be considered part of the marital estate.
A district court misapplies the law when it determines property individually held is not included in the marital estate.
A property division need not be equal, but a substantial disparity must be explained.
Questions of property division and spousal support ordinarily must be examined and dealt with together.