Opinions

Disciplinary Board v. Chinquist 2006 ND 107
Docket No.: 20050359
Filing Date: 5/16/2006
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspended from practice of law for six months and one day and ordered to pay costs and expenses of proceeding for violating N.D.R. Prof. Conduct 1.5(a) and (b), 1.7(a), 1.8(a), and 1.15(a) and (f).
Having consensual sexual relations with a domestic relations client serves the attorney's own interests and creates an inherent conflict with the proper representation of the client.

Roth v. State 2006 ND 106
Docket No.: 20050227
Filing Date: 5/11/2006
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Maring, Mary

Highlight: Claiming ineffective assistance of trial and appellate counsel for the first time in the first post-conviction relief application is not misuse of process.

Disciplinary Board v. Hellerud 2006 ND 105
Docket No.: 20050354
Filing Date: 5/11/2006
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Charging an unreasonable fee can subject an attorney to discipline.
Failing to communicate the basis, rate, and amount of fee within a reasonable time period can subject an attorney to discipline.
What attorneys charge for their services is generally a matter of agreement between the lawyer and the client.
A client's failure to complain does not prevent the Disciplinary Board from hearing a complaint. Nor does it prevent the Supreme Court from imposing sanctions.

Interest of C.S. 2006 ND 104
Docket No.: 20060116
Filing Date: 5/11/2006
Case Type: Appeal - Civil - Mental Health
Author: Maring, Mary

Highlight: A respondent in an involuntary commitment proceeding has a due process right to counsel.
A respondent's waiver of counsel in a mental health proceeding must be knowing, intelligent, and voluntary.
In an involuntary commitment proceeding, the trial court must determine the competence of the respondent to make a knowing and intelligent waiver of the right to counsel before permitting the respondent to proceed without counsel.
A presumption of incompetence does not arise simply due to the fact that mental health proceedings are being undertaken against the respondent.
For the record to disclose a valid waiver of right to counsel in a mental health proceeding, it must mirror the record of a valid waiver in a criminal proceeding.
In a mental health proceeding where the respondent wishes to represent himself, the trial court must make the respondent aware of the dangers and disadvantages of self-representation.
The trial court must assess the validity of a waiver of counsel and competence to make that waiver before each proceeding during which the respondent wishes to represent himself.
Courts should indulge every reasonable presumption against a waiver of counsel.

Interest of K.L. (Confidential) 2006 ND 103
Docket No.: 20060115
Filing Date: 5/11/2006
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.
While family involvement may be crucial in the recovery of mentally ill persons, it alone cannot defeat a district court finding that a person is dangerous and requires hospitalization if the record supports that finding.

State v. Grager (Consolidated w/20050281-20050292) 2006 ND 102
Docket No.: 20050280
Filing Date: 5/11/2006
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Sandstrom, Dale

Highlight: A prosecutor does not have the right to appeal an order dismissing a case when the proseuctor requested the dismissal.
The prosecution may not appeal an order suppressing evidence after the case has been dismissed at its request.

Lausen v. Hertz 2006 ND 101
Docket No.: 20050371
Filing Date: 5/11/2006
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A court may, without an evidentiary hearing, deny a motion seeking modification of custody, unless the court finds the moving party has established a prima facie case justifying modification.
An unappealed judgment authorizing the custodial parent to remove the child from the state is res judicata.

State v. Haibeck (Cross-Ref. w/20040060) 2006 ND 100
Docket No.: 20050367
Filing Date: 5/11/2006
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Maring, Mary

Highlight: Unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.
An argument that is not adequately articulated, supported, and briefed will not be considered on appeal.
A motion for acquittal may not be granted before the prosecution has the opportunity to present its evidence.

Ziesch v. Workforce Safety & Insurance, et al. 2006 ND 99
Docket No.: 20050256
Filing Date: 5/11/2006
Case Type: Appeal - Administrative - Workers Compensation
Author: Maring, Mary

Highlight: Workforce Safety and Insurance's practice of awarding lump sum disability benefits for a closed, limited time and simultaneously issuing a retroactive notice of intention to discontinue benefits does not violate due process if the claimant was not receiving ongoing disability benefits at the time of WSI's decision.
The purpose of administrative res judicata is to preserve resources and avoid wasteful expense and delay.

State v. Pace 2006 ND 98
Docket No.: 20050342
Filing Date: 5/11/2006
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: A driving-under-the-influence arrestee being asked to submit to a chemical test is, upon request, entitled to a reasonable opportunity to contact a lawyer before deciding whether to take the test.
The reasonableness of the opportunity to consult with a lawyer before taking a chemical test for DUI is evaluated under the totality of the circumstances.
A law enforcement officer need not offer other suggestions to a DUI arrestee who is unable to reach his lawyer and makes no further requests.