Opinions

Fischer, et al. v. Berger, et al. 2006 ND 48
Docket No.: 20050182
Filing Date: 2/28/2006
Case Type: Appeal - Civil - Real Property
Author: Maring, Mary

Highlight: A use of land creates an easement by prescription if the use is adverse, continuous and uninterrupted, and for the 20-year period of prescription.
The doctrine of acquiescence does not apply to a claim for an easement by prescription for a road across another's property.

Interest of F.F., et al. (CONFIDENTIAL) 2006 ND 47
Docket No.: 20050210
Filing Date: 2/28/2006
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Maring, Mary

Highlight: A court may terminate parental rights on finding the child (1) is deprived and (2) has been in foster care for at least four hundred fifty of the previous six hundred sixty nights.

Berge v. Berge 2006 ND 46
Docket No.: 20050124
Filing Date: 2/23/2006
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: When a trial court does not clearly state how it calculated the amount of child support, the Supreme Court will reverse and remand for an explanation even if the record contains adequate evidence for the trial court to make a precise finding.
Nonrecurrent payments are includable in an obligor's income for determining child support.
It is improper to calculate an obligor's annual employment income based on a mid- year pay stub when the obligor's employment income is reflected on the obligor's prior year's tax return.
If an obligor's most recent annual earnings are a more reliable indicator of future circumstances, the most recent annual earnings may be used to calculate a child support obligation.

State v. Bergstrom 2006 ND 45
Docket No.: 20050110
Filing Date: 2/23/2006
Case Type: Appeal - Civil - Other
Author: Sandstrom, Dale

Highlight: In a civil forfeiture action, the State must show probable cause exists to bring the forfeiture action, and then the claimant must prove, by a preponderance of the evidence, the property is not subject to forfeiture.
Because forfeiture is a civil proceeding, apart from an underlying criminal proceeding, the burden of each party does not change when the defendant is acquitted of the criminal charge.
A district court may not rely on a prior probable cause determination, made when a search warrant was issued, to conclude there was probable cause to bring a civil forfeiture action.
Findings of fact are adequate if they provide this Court with an understanding of the district court's factual basis used in reaching its determination.
A court must balance four factors when deciding if a delay in bringing a forfeiture action has violated the claimant's due process rights: length of delay, the reason for the delay, the claimant's assertion of his right, and prejudice to the claimant.

State v. Anderson (CONSOLIDATED W/ 20050229) 2006 ND 44
Docket No.: 20050202
Filing Date: 2/23/2006
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Crothers, Daniel John

Highlight: Information from an informant may provide the factual basis to establish reasonable suspicion for an investigatory stop.
Circumstances of a case must be evaluated in determining whether actions taken by law enforcement officers during an investigatory stop are reasonable and do not amount to a defacto arrest.
The public safety exception to Miranda allows admission of statements a suspect makes in answering questions about whether the suspect has a weapon.
Law enforcement officers may conduct a warrantless search of a vehicle for weapons or additional occupants under the public safety exception to the warrant requirement.

Causer v. State (cross-ref. w/20030124) 2006 ND 43
Docket No.: 20050389
Filing Date: 2/23/2006
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) and (7).

Ward County Farm Bureau, et al. v. Poolman 2006 ND 42
Docket No.: 20050170
Filing Date: 2/23/2006
Case Type: Original Proceeding - Civil - Writ of Mandamus
Author: Maring, Mary

Highlight: A petitioner for a writ of mandamus must first demonstrate a clear legal right to performance of the particular act sought to be compelled by the writ.

State v. Ernst 2006 ND 41
Docket No.: 20050395
Filing Date: 2/23/2006
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Kapsner, Carol

Highlight: The writ of audita querela has been abolished in North Dakota.
Opposite-sex surveillance of male inmates is constitutionally permissible because minimal intrusions on prisoner's privacy were outweighed by institutional concerns for safety and equal employment opportunity.

Ficklin v. Ficklin (CONFIDENTIAL) 2006 ND 40
Docket No.: 20050364
Filing Date: 2/23/2006
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: Before a court may enter a protection order, there must be a showing of actual or imminent domestic violence.
Past abusive behavior is a relevant factor to consider in determining whether domestic violence is actual or imminent.
Where a person might live after the issuance of a domestic violence protection order is not relevant to the issuance of a domestic violence protection order.
The use of a standardized form does not excuse a court's duty to make findings that support the issuance of the order and allow for an intelligible review of a case on appeal.

State v. Stewart (Consolidated w/20050080 thru 20050086) 2006 ND 39
Docket No.: 20050079
Filing Date: 2/23/2006
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.
A search warrant must describe with particularity the places to be searched and items to be seized to avoid "exploratory rummaging" in its execution.
The State must provide actual notice of its intention to admit prior bad acts testimony.