Opinions

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).

City of Jamestown v. Rethemeier (Consolidated w/20060100) 2006 ND 205
Docket No.: 20060099
Filing Date: 10/17/2006
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: Denial of motion to suppress and judgment of conviction is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Lee v. Buehner, et al. 2006 ND 204
Docket No.: 20060052
Filing Date: 10/17/2006
Case Type: Appeal - Civil - Personal Injury
Author: Per Curiam

Highlight: A judgment awarding damages in a personal injury action is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

Ernst v. State 2006 ND 203
Docket No.: 20060108
Filing Date: 10/17/2006
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Denial of application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(1), (6), and (7).

Thurn v. Workforce Safety and Insurance, et al. 2006 ND 202
Docket No.: 20060092
Filing Date: 10/17/2006
Case Type: Appeal - Administrative - Workers Compensation
Author: Per Curiam

Highlight: An order of Workforce Safety and Insurance denying workers compensation benefits is summarily affirmed under N.D.R.App.P. 35.1(a)(5).

State v. DeGroot 2006 ND 201
Docket No.: 20050408
Filing Date: 10/17/2006
Case Type: Appeal - Criminal - Theft
Author: Per Curiam

Highlight: Conviction of theft of property summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Jackson (cross-ref. w/940199) 2006 ND 200
Docket No.: 20060034
Filing Date: 10/17/2006
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: Conviction of driving under suspension summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).

Interest of K.S., et al. (Consolidated w/20050398) CONFIDENTIAL 2006 ND 199
Docket No.: 20050397
Filing Date: 10/17/2006
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: Order terminating parental rights summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Sandberg v. American Family Ins. 2006 ND 198
Docket No.: 20050396
Filing Date: 9/14/2006
Case Type: Appeal - Civil - Insurance
Author: Maring, Mary

Highlight: The requirements of a statute may become part of an insurance policy.
An insured's unauthorized settlement with Workforce Safety and Insurance does not adversely affect an insurer, because the settlement does not affect the insurer's right to a reduction in damages payable to the insured for uninsured motorist coverage by the amount paid or payable for workers' compensation benefits.
An amount is payable for workers' compensation benefits if it would have been paid to the workers' compensation claimant.

Stenvold v. Workforce Safety & Insurance, et al. 2006 ND 197
Docket No.: 20050344
Filing Date: 9/14/2006
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: An administrative agency generally may not consider evidence which has not been offered, admitted, and made a part of the official record of the administrative proceeding.
The district court's appellate review of an administrative agency decision is limited to the agency record filed with the court.

State v. Graf (Consolidated w/20050411-20050417) 2006 ND 196
Docket No.: 20050410
Filing Date: 9/13/2006
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Sandstrom, Dale

Highlight: Warrantless searches inside an individual's home are presumptively unreasonable, but searches inside an individual's home are not unreasonable if the search falls under one of the well-delineated exceptions to the warrant requirement.
Consent to search is an exception to the warrant requirement.
Consent to search purges the taint of prior unlawful police activity if the consent was voluntary under the totality of the circumstances and if the taint of the prior unlawful activity is purged, considering the temporal proximity between the illegal search and the consent, the presence of intervening circumstances, and the purpose and flagrancy of the official misconduct.
Consultation with an attorney may purge the taint of prior unlawful police activity.

Industrial Commission v. Noack 2006 ND 195
Docket No.: 20060067
Filing Date: 9/13/2006
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: An appellant has the duty to provide a transcript sufficient to allow a meaningful and intelligent review of the alleged errors.
To justify rescission of a contract, a mutual mistake must relate to the subject matter and essential elements of the contract, and not merely be collateral to it.
A party seeking to rescind a contract must offer to restore to the other party everything of value which the rescinding party received from the other party under the contract.

Ellis v. Disciplinary Board 2006 ND 194
Docket No.: 20060081
Filing Date: 9/13/2006
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Disciplinary proceedings against lawyers, including reinstatement proceedings, are reviewed de novo on the record.
After a lengthy suspension, a lawyer may be required to retake and pass the bar examination as a condition of reinstatement.

State v. Iverson 2006 ND 193
Docket No.: 20060097
Filing Date: 9/13/2006
Case Type: Appeal - Criminal - Homicide
Author: Kapsner, Carol

Highlight: A statute authorizing credit for time served in custody cannot be retroactively applied after a person has been finally convicted.

State v. Schmidkunz 2006 ND 192
Docket No.: 20050141
Filing Date: 9/13/2006
Case Type: Appeal - Criminal - Homicide
Author: Kapsner, Carol

Highlight: In controlling the scope of closing argument, the district court is vested with discretion, and absent a clear showing of an abuse of discretion, we will not reverse on grounds the prosecutor exceeded the scope of permissible closing argument. Unless the error is fundamental, a defendant must demonstrate a prosecutor's comments during closing argument were improper and prejudicial.
Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.
The district court has broad discretion over the conduct of a trial, including scheduling the time for jury deliberations. The court must exercise its discretion in a manner that best comports with substantial justice.

Leet, et al. v. City of Minot 2006 ND 191
Docket No.: 20060011
Filing Date: 9/13/2006
Case Type: Appeal - Civil - Personal Injury
Author: VandeWalle, Gerald

Highlight: For recreational use immunity statutes to apply, a person's presence on the landowner's property open for public recreation must be for "recreational purposes," which includes any activity engaged in for the purpose of exercise, relaxation, pleasure, or education.
A vendor's employee who was present at the City's auditorium for purposes of his employment is not engaged in any activity for the purpose of exercise, relaxation, pleasure, or education.

Strand, et al. v. Cass County, et al. 2006 ND 190
Docket No.: 20050380
Filing Date: 8/28/2006
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: Jury instructions are reviewed to determine whether, as a whole, they fairly and adequately advised the jury of the applicable law.
A local government body may only be held liable for constitutional violations which result from a policy or custom of the government body.
A district court abuses its discretion when it fails to address nonfrivolous issues presented to the court.

Tibert, et al. v. City of Minto 2006 ND 189
Docket No.: 20050393
Filing Date: 8/28/2006
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: A decision of a local governing body will be affirmed on appeal unless the local governing body acted arbitrarily, capriciously, or unreasonably, or there is not substantial evidence to support the decision.

Interest of B.L.S. (Confidential) 2006 ND 188
Docket No.: 20060216
Filing Date: 8/28/2006
Case Type: Appeal - Civil - Mental Health
Author: Kapsner, Carol

Highlight: A district court cannot allow a respondent in a mental health proceeding to waive the right to counsel without first establishing, on the record, that the respondent is competent to waive counsel and that the waiver is knowingly, intelligently, and voluntarily made.
To establish a valid waiver of counsel in a mental health proceeding, the district court must engage in a colloquy on the record that mirrors the required colloquy for the waiver of counsel in a criminal proceeding.

ACUITY v. Burd & Smith Construction, Inc., et al. 2006 ND 187
Docket No.: 20060001
Filing Date: 8/24/2006
Case Type: Appeal - Civil - Insurance
Author: Crothers, Daniel John

Highlight: A commercial general liability insurance policy excludes coverage for damage to the insured's work product and provides coverage for accidental damage to property other than the insured's work product.

Jochim v. Jochim 2006 ND 186
Docket No.: 20060038
Filing Date: 8/24/2006
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Ungar v. ND State University 2006 ND 185
Docket No.: 20050340
Filing Date: 8/24/2006
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: Crothers, Daniel John

Highlight: Res judicata, or claim preclusion, prevents the relitigation of claims that were raised, or could have been raised, in prior actions between the same parties or their privies resulting final judgment from a court of competent jurisdiction. Collateral estoppel, or issue preclusion, forecloses relitigation of issues of either fact or law in a second action based on a different claim, which were necessarily litigated, or must have been litigated, and decided in the prior action.
For the district court to have subject-matter jurisdiction over a university professor's claims against the university, the plaintiff must comply with the statutory notice of claim requirements and exhaust the internal administrative remedies.

State v. Dailey 2006 ND 184
Docket No.: 20060030
Filing Date: 8/24/2006
Case Type: Appeal - Criminal - Misc. Felony
Author: Crothers, Daniel John

Highlight: After a jury's verdict has been announced, a trial judge may explain to a jury what will occur after the trial has ended.

Peoples State Bk. of Truman v. Molstad Excavating, et al. 2006 ND 183
Docket No.: 20050444
Filing Date: 8/24/2006
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: Part of the law of the case doctrine provides that the orderly functioning of the judicial process requires that judges of coordinate jurisdiction honor one another's orders and revisit them only in special circumstances.
The law of the case is not violated and reconsideration of prior orders is proper if the initial ruling was made on an inadequate record or was designed to be preliminary or tentative.
Construction of a written contract to determine its legal effect is a question of law, and on appeal this Court will independently examine and construe the contract to determine if the trial court erred in its interpretation.
To enforce a contract between two others, a third party must have been intended by the contracting parties to be benefited by the contract.

Clark v. Clark 2006 ND 182
Docket No.: 20050436
Filing Date: 8/21/2006
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: A district court's decisions to admit expert testimony or deny a continuance will not be reversed absent an abuse of discretion.
A district court's decision whether to allow children to testify about their custody preference is reviewed under the abuse of discretion standard.
Rotating custody arrangements are in a child's best interests only if the parents are able to cooperate and set aside their differences and conflicts in their role as parents.
A district court's custody decision under the best-interest-of-the-child analysis is subject to the clearly erroneous standard of review.
Because a proper finding of net income is essential to determine the correct amount of child support under the child support guidelines, as a matter of law, a district court must clearly set forth how it arrived at the amount of income and the level of support.
A district court cannot include depreciation deductions in income when determining an obligor's child support obligation.

Hagel v. Hagel 2006 ND 181
Docket No.: 20050434
Filing Date: 8/21/2006
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: When a district court provides no indication of the evidentiary and theoretical basis for its decision, the Supreme Court is left to speculate whether factors were properly considered and the law was properly applied, leaving the Court unable to perform its appellate function.

Mountrail Bethel Home v. Lovdahl, et al. 2006 ND 180
Docket No.: 20060002
Filing Date: 8/16/2006
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: A district court must make findings on issues a party raises and presents evidence on.

State v. Woinarowicz 2006 ND 179
Docket No.: 20060032
Filing Date: 8/16/2006
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Maring, Mary

Highlight: The Sixth Amendment Confrontation Clause does not apply to the same extent at pretrial suppression hearings as it does at trial.
A district court is not bound by the Rules of Evidence at pretrial evidentiary hearings.
Constructive possession of a controlled substance may be established by showing the individual had the power and ability to exercise dominion and control over the controlled substance.
An arrestee's person and purse may be searched incident to arrest.

Heng v. Rotech Medical Corp., et al. 2006 ND 176
Docket No.: 20050311
Filing Date: 8/2/2006
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: Sandstrom, Dale

Highlight: Issues cannot be raised for the first time on appeal.
Whether an employee has established a prima facie case of retaliatory discharge is a question of law fully reviewable on appeal.
An employer's failure to follow its own policies may support an inference of pretext, but not when the departure in policy is applied to all employees.
The admission of deposition testimony under N.D.R.Civ.P. 32(a) lies within the district court's discretion.
A comparison of hours and rates charged by opposing counsel is probative of the reasonableness of a request for attorney fees by prevailing counsel.
Mediation fees may not be awarded as an allowable cost if the parties have contractually agreed to share those expenses.
Electronic legal research fees are a component of attorney fees and cannot be separately taxed as costs.

State ex rel. ND Housing Finance Agency v. Center Mutual Ins. Co. 2006 ND 175
Docket No.: 20050224
Filing Date: 8/2/2006
Case Type: Appeal - Civil - Insurance
Author: Maring, Mary

Highlight: An instrument payable to multiple payees non-alternatively may only be negotiated, discharged, or enforced by all of them.
Payment of a check by a payor bank to one joint payee over the forged endorsement of another payee does not discharge the drawer's obligation on the instrument, and the payee has an action against the drawer on the instrument.
A check containing a forged endorsement is not "properly payable" under N.D.C.C. 41-04-32(1), and the drawer has a right to reimbursement of the amount of the check to its account if its bank accepts and pays the check.

Hunt v. Banner Health System 2006 ND 174
Docket No.: 20050402
Filing Date: 7/30/2006
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: Crothers, Daniel John

Highlight: The presence of a clear, conspicuous, and unambiguous disclaimer may act as an "escape hatch" in an employee handbook, virtually undoing other implied promises made in the handbook.
The language in an employee manual simply stating it does not guarantee employment does not preclude the manual from being an employment contact.

State v. Bjerklie 2006 ND 173
Docket No.: 20050438
Filing Date: 7/27/2006
Case Type: Appeal - Criminal - Theft
Author: Crothers, Daniel John

Highlight: A court's ruling on a motion in limine is reviewed for abuse of discretion.
A court abuses its discretion in granting a motion in limine when it acts in an arbitrary, unreasonable or unconscionable manner.

Deacon's Development v. Lamb, et al. 2006 ND 172
Docket No.: 20050147
Filing Date: 7/27/2006
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: Attorney fees may be recovered if a court finds a party made a frivolous "claim for relief."
A court does not have authority to award attorney fees based on a position a party took prior to litigation.

Dvorak v. Dvorak (cross-ref. w/20040222) 2006 ND 171
Docket No.: 20050405
Filing Date: 7/27/2006
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: A custodial parent seeking to change the residence of a child to another state has the burden to prove by a preponderance of evidence that the move is in the child's best interest.
A district court's explanation for a disparity in a property distribution must be sufficient to understand the rationale of its determination.
In deciding whether to award attorney's fees for an appeal in a divorce proceeding, a district court must balance the parties' needs and ability to pay.

Weinreis, et al. v. Hill, et al. 2006 ND 170
Docket No.: 20060026
Filing Date: 7/27/2006
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: A principal is bound by acts of his agent under a merely ostensible authority to those persons only who in good faith and without ordinary negligence have incurred a liability or parted with value upon the faith thereof.
A district court's determination of negligence is a finding of fact which will not be set aside on appeal unless it is clearly erroneous.

State v. Salveson (Consolidated w/20060016) 2006 ND 169
Docket No.: 20060015
Filing Date: 7/27/2006
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Kapsner, Carol

Highlight: A trial court is allowed the widest range of discretion in criminal sentencing.
Multiple class A misdemeanor offenses may be deemed by the sentencing court to involve substantially different criminal objectives if they do not fall under one of the following three categories: (1) one offense is an included offense of the other; (2) one offense consists of a conspiracy, attempt, solicitation, or other form of preparation to commit, or facilitation of, the other; or (3) the offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.
The crimes of aggravated reckless driving and driving while under the influence constitute two crimes with substantially different criminal objectives.

State v. Campbell (Consolidated w/20050337 & 20050338) 2006 ND 168
Docket No.: 20050326
Filing Date: 7/27/2006
Case Type: Appeal - Criminal - Drugs/Contraband
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.
A defendant can waive a potential Confrontation Clause violation by failing to exercise a statutorily defined opportunity to subpoena the author of the state crime laboratory report.

The Ramsey Financial Corp. v. Haugland, et al. 2006 ND 167
Docket No.: 20050375
Filing Date: 7/26/2006
Case Type: Appeal - Civil - Corporations
Author: Kapsner, Carol

Highlight: Voluntary acquiescence in a judgment waives the right to appeal.
Absent fraud, the procedure for asserting dissenting shareholders' rights under N.D.C.C. 10-19.1-87 and 10-19.1-88 is an exclusive remedy.

Dahl, et al. v. Messmer, et al. 2006 ND 166
Docket No.: 20050426
Filing Date: 7/24/2006
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: On appeal, the substantive evidentiary standard of proof is considered when reviewing a motion for summary judgment.
Fraud is never presumed, but must be proved by evidence that is clear and convincing.
A party seeking to reform a contract must prove, by clear and convincing evidence, that the written agreement does not fully or truly state the agreement the parties intended to make.
General expressions of opinion by a seller, commending of the thing he is selling, are not actionable even though not entirely true.
Generally, statements of value and predictions of future earnings or profits fall within the class of statements whose truth or falsity cannot be precisely determined and which are not, therefore, actionable as misrepresentations of fact.

Frisk v. Frisk 2006 ND 165
Docket No.: 20050391
Filing Date: 7/21/2006
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: A domestic violence protection order may be extended upon request made prior to the order's expiration.
After a case has been remanded, the district court must cure any defects, but may do so in any manner consistent with the appellate court's opinion and conformable to law and justice.

Disciplinary Board v. Balerud 2006 ND 164
Docket No.: 20060165
Filing Date: 7/20/2006
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspension ordered.

Molitor v. Molitor 2006 ND 163
Docket No.: 20040041
Filing Date: 7/18/2006
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: A trial court's custody decision is a finding of fact that will not be set aside on appeal unless it is clearly erroneous.
A trial court's findings of fact in child custody cases should be stated with sufficient specificity to enable the appellate court to understand the factual basis for the court's decision.
The failure to raise the issue of judicial bias in the trial court precludes appellate court review on appeal.
When a party seeking modification of custody within two years of issuance of a custody order does not prove any of the grounds listed under N.D.C.C. 14-09-06.6(5) as a basis for modification, the trial court does not err in denying a motion to change custody.

Riemers v. State, et al. 2006 ND 162
Docket No.: 20050433
Filing Date: 7/18/2006
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Crothers, Daniel John

Highlight: Absent personal jurisdiction, a court is powerless to do anything beyond dismissing a case without prejudice.

Lautt v. Lautt 2006 ND 161
Docket No.: 20050373
Filing Date: 7/18/2006
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: The standard of review for child support determinations depends on the issue appealed: a de novo standard applies to questions of law; a clearly erroneous standard applies to questions of fact; and an abuse of discretion standard applies to discretionary matters.
A district court errs by failing to close the record following the hearing and to address a child support modification motion.

Witzke v. City of Bismarck 2006 ND 160
Docket No.: 20060113
Filing Date: 7/18/2006
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Kapsner, Carol

Highlight: A prosecutor is absolutely immune from liability for prosecutorial functions such as the initiation and pursuit of a criminal prosecution, the presentation of the State's case at trial, and other conduct intimately associated with the judicial process.
There is no private cause of action for perjury.

SPW Associates v. Anderson, et al. 2006 ND 159
Docket No.: 20050205
Filing Date: 7/18/2006
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: Principles of partnership law apply to a joint venture.
A joint venturer is an agent of the joint venture and has authority to grant a security interest in joint venture property.

City of Bismarck v. DePriest (Consolidated w/20060071 & 20060072) 2006 ND 158
Docket No.: 20060070
Filing Date: 7/18/2006
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: VandeWalle, Gerald

Highlight: Law enforcement officials may use persons under 21 years of age to attempt to purchase alcoholic beverages to conduct alcohol compliance checks.

Johnson v. Gehringer (cross-reference w/20010170) 2006 ND 157
Docket No.: 20050394
Filing Date: 7/18/2006
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: A district court's finding of contempt will not be overturned unless there is a clear abuse of discretion.
The interpretation of an amended judgment is a question of law which is fully reviewable on appeal.

Interest of K.H. (CONFIDENTIAL) 2006 ND 156
Docket No.: 20050305
Filing Date: 7/18/2006
Case Type: Appeal - Criminal - Juvenile Law
Author: Kapsner, Carol

Highlight: A juvenile's right to counsel can be waived even if the minor is of a young age, provided the juvenile is represented by the child's parent, guardian, or custodian.
Deference is given to a juvenile court's credibility determinations.

Spectrum Care v. Stevick, et al. 2006 ND 155
Docket No.: 20060018
Filing Date: 7/18/2006
Case Type: Appeal - Administrative - Unemployment/Job Service
Author: VandeWalle, Gerald

Highlight: A person is disqualified from receiving unemployment compensation benefits if the person is discharged for misconduct.
An employer has the burden to establish by a preponderance of the evidence that a terminated employee's actions constitute misconduct that disqualifies the employee from receiving unemployment compensation benefits.

Gietzen v. Gabel 2006 ND 153
Docket No.: 20050268
Filing Date: 7/18/2006
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: When there is credible evidence of domestic violence, it is the predominate factor in a child custody decision.
Specific findings and conclusions are required when a district court addresses whether evidence of domestic violence triggers the presumption against awarding custody of a child to a perpetrator of domestic violence.
When reciprocal domestic violence is claimed, a district court must make specific findings on the degree of violent behavior by each parent.

State v. Torkelsen 2006 ND 152
Docket No.: 20050250
Filing Date: 7/18/2006
Case Type: Appeal - Criminal - Homicide
Author: VandeWalle, Gerald

Highlight: The mere presence at or near the scene of a crime, without more, does not give rise to a reasonable suspicion of criminal activity.

Wilson v. Ibarra 2006 ND 151
Docket No.: 20050357
Filing Date: 7/18/2006
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: To justify a termination of all visitation, physical or emotional harm resulting from the visitation must be demonstrated in detail.

State v. Entzi 2006 ND 150
Docket No.: 20060066
Filing Date: 7/18/2006
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Denial of a motion to terminate probation is summarily affirmed under N.D.R.App.P. 35.1(a)(6) and (7).

Guardianship and Conservatorship of Johnson 2006 ND 149
Docket No.: 20060021
Filing Date: 7/5/2006
Case Type: Appeal - Civil - Guardian/Conservator
Author: Per Curiam

Highlight: An order appointing co-guardians and co-conservators with unlimited authority to make decisions for the ward is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

Disciplinary Board v. Korsmo 2006 ND 148
Docket No.: 20060054
Filing Date: 6/30/2006
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspension ordered.

Rekkedal v. Feist 2006 ND 147
Docket No.: 20050430
Filing Date: 6/30/2006
Case Type: Appeal - Civil - Personal Injury
Author: Crothers, Daniel John

Highlight: Dismissal of a lawsuit for failure to timely file the complaint requires that the demand to file has been served under N.D.R.Civ.P. 4(d); N.D.R.Civ.P. 5 service of the demand is not sufficient.
A party will be sanctioned for including in its appendix material not in the district court record.

Disciplinary Board v. Aakre 2006 ND 146
Docket No.: 20050382
Filing Date: 6/29/2006
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Interim suspension of lawyer ordered.

Estate of Sorenson 2006 ND 145
Docket No.: 20050350
Filing Date: 6/29/2006
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Maring, Mary

Highlight: No acknowledgment or promise is sufficient evidence of a new or continuing contract to preclude operation of the statute of limitations unless the acknowledgment or promise is contained in a writing signed by the party to be charged.
Whenever services are rendered by one family member for another, a presumption arises that the services are gratuitous and that compensation was not intended, and a claimant has the burden to rebut the presumption by proof that the services were not gratuitous, which may be established by proof that the parties expressly or impliedly agreed the claimant would be compensated.

State ex rel. Bd. of University and School Lands v. Alexander, et al. 2006 ND 144
Docket No.: 20050409
Filing Date: 6/29/2006
Case Type: Appeal - Civil - Landlord/Tenant
Author: Sandstrom, Dale

Highlight: The parties to a prior foreclosure action and their assigns are bound by a judgment in the prior action under principles of res judicata.
The Pembina Nation Little Shell Band of North America is not a federally recognized Indian tribe.

Interest of J.S. (CONFIDENTIAL) 2006 ND 143
Docket No.: 20060156
Filing Date: 6/29/2006
Case Type: Appeal - Civil - Mental Health
Author: Sandstrom, Dale

Highlight: Mentally ill persons who require treatment are entitled to the least restrictive treatment that will meet their treatment needs.
When deciding whether alternative treatment to hospitalization is adequate, the district court is required to make a two-part inquiry: (1) whether a treatment program other than hospitalization is adequate to meet the individual's treatment needs; and (2) whether an alternative treatment program is sufficient to prevent harm or injuries that an individual may inflict on himself or others.
When available alternative treatment programs are insufficient to prevent harm or injures that an individual may inflict on himself or others, less restrictive treatment cannot be ordered.

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.