Opinions

Disciplinary Board v. Mertz 2006 ND 85
Docket No.: 20050360
Filing Date: 4/24/2006
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: An attorney may attempt to compromise an infraction by proposing payment for the individual's injuries and agreeing not to file a potential suit against the individual in exchange for the individual dismissing the complaint.
When representing a client, an attorney may not use means that have no substantial purpose other than to embarrass or burden a third party.

State ex rel. Stenehjem v. FreeEats.com, Inc. 2006 ND 84
Docket No.: 20050171
Filing Date: 4/21/2006
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: Preemption of state law is not favored, and the framework for analyzing a preemption claim under the Supremacy Clause begins with the basic assumption that Congress did not intend to displace state law.
A state's police power encompasses the duty to protect the privacy of its citizens, including the authority to protect the peaceful enjoyment of the home and the well-being and tranquility of the community.
The statutory language of the Telephone Consumer Protection Act of 1991 clearly expresses Congress' intent that the Act was not meant to occupy the field within its subject matter.
The Telephone Consumer Protection Act does not preempt a state law which prohibits telemarketing calls using automatic telephone dialing systems or artificial or prerecorded voice messages.

Sanderson, et al. v. Walsh Co., et al. 2006 ND 83
Docket No.: 20050303
Filing Date: 4/21/2006
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Crothers, Daniel John

Highlight: A dismissal without prejudice is not appealable except where the dismissal has the practical effect of terminating the litigation in the plaintiff's forum, e.g., a statute of limitations has run or where litigation is foreclosed in the state court.
Mailing, even by certified mail with return receipt and restricted delivery, does not constitute "delivering" for purposes of service of process on a county or the State under N.D.R.Civ.P. 4(d)(2)(E) and 4(d)(2)(F).

Interest of P.F. (CONFIDENTIAL) 2006 ND 82
Docket No.: 20050302
Filing Date: 4/19/2006
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Crothers, Daniel John

Highlight: A preliminary hearing must be held within seventy-two hours of the filing of a petition for commitment of a sexually dangerous individual. The purpose of the hearing is to determine whether there is probable cause to believe that individual is sexually dangerous.
Expert testimony is not required at the preliminary hearing.
A commitment hearing must be held within sixty days of the finding of probable cause, but the district court may grant an extension if good cause is shown.
Scheduling constraints alone do not automatically establish "good cause" for extending time before the hearing.
In determining whether a person is "sexually dangerous," the State's experts may rely on all sexual predatory conduct, not just that conduct that resulted in a successful conviction on a sexual offense.

Marchus v. Marchus 2006 ND 81
Docket No.: 20050329
Filing Date: 4/19/2006
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A modification of child support should be made effective from the date of the motion to modify, absent good reason to set some other date. The district court may set a later effective date, but its reasons for doing so should be apparent or explained.

Murphy v. State (cross-ref. w/20050428) 2006 ND 80
Docket No.: 20050456
Filing Date: 4/19/2006
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Interest of Spicer 2006 ND 79
Docket No.: 20050366
Filing Date: 4/19/2006
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: When a district court fails to specifically state its findings, its decision will not be upset when valid reasons for the decision are discernable, either by deduction or inference.
A district court's finding that a non-custodial parent consented to the custodial parent relocating out of state with the parties' child is subject to the clearly erroneous standard of review.
A district court's decision on modification of visitation is a finding of fact that will not be reversed unless clearly erroneous.

Larson v. Schuetzle 2006 ND 78
Docket No.: 20050418
Filing Date: 4/19/2006
Case Type: Original Proceeding - Civil - Writ of Certiorari
Author: VandeWalle, Gerald

Highlight: The State Penitentiary warden has authority and control over the penitentiary and its inmates.
Simply because prison inmates retain certain constitutional rights does not mean those rights are not subject to restrictions and limitations.
Maintaining institutional security, safety, and internal order may require limitation or retraction of the retained constitutional rights of convicted prisoners and pretrial detainees.
Prison administrators are entitled to deference in the adoption and execution of policies intended to preserve the security, safety, internal order, and discipline of the prison.
When a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.

State v. Genre (Cons. w/20050239,20050247& 20050248) 2006 ND 77
Docket No.: 20050238
Filing Date: 4/19/2006
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: Voluntary consent to search is an exception to the warrant requirement.
An officer is generally not required to administer the Miranda warning during a traffic stop because the person is not in custody.
Statements made to law enforcement in an effort to cooperate with the hope of receiving some benefit are not statements made during a plea discussion and are admissible.

Flanagan v. State (Cross-Ref. w/20030247) 2006 ND 76
Docket No.: 20050226
Filing Date: 4/19/2006
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Maring, Mary

Highlight: An application for post-conviction relief may be denied as res judicata if the claim is a variation of a claim that was fully and finally determined in a previous proceeding.
A defendant claiming ineffective assistance of counsel must establish counsel's representation fell below an objective standard of reasonableness and the defendant was prejudiced by counsel's deficient performance.
To establish prejudice, a defendant must establish a reasonable probability that but for counsel's errors the result of the criminal proceeding would have been different, and a reasonable probability is a probability sufficient to undermine confidence in the outcome of the criminal proceeding.