Opinions

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.

State v. Garten 2006 ND 38
Docket No.: 20050208
Filing Date: 2/23/2006
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Denials of a motion to suppress, motion to sever the counts against the defendant, and a motion for new trial are summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

State v. Klein 2006 ND 37
Docket No.: 20050293
Filing Date: 2/23/2006
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: Conviction for driving while under the influence of alcohol summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (3).

Maynard v. McNett 2006 ND 36
Docket No.: 20050090
Filing Date: 2/8/2006
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: When divorced parents share custody, the designation of a single custodian is not required, each parent can be declared a custodian, and both parents have all the legal rights designated to a custodial parent.
A parent with joint legal and physical custody may not be granted permission to move with the divorced parents' child, unless the district court first determines the best interests of the child require a change in primary custody to that parent.
A parent with joint physical and legal custody who wishes to relocate with the child must make two motions before the parent may be given permission to relocate: one for a change of custody and one to relocate with the child.
When a parent with joint legal and physical custody moves for change of custody and permission to relocate, the statutory best-interests-of-the-child factors must be applied rather than the Stout-Hawkinson factors, because the Stout-Hawkinson factors were designed to address the best interests of the child when a primary custodian has already been designated.

Preference Personnel, Inc. v. Peterson 2006 ND 35
Docket No.: 20050255
Filing Date: 2/8/2006
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: The Department of Labor may not issue retroactive licenses for employment agencies.
If public policy considerations require employment agencies to undergo extensive licensing requirements before being allowed to legally conduct business in this State, it follows that it is against the public policy of this State to enforce a contract between an individual and an unlicensed employment agency.

Stein v. Workforce Safety and Ins., et al. 2006 ND 34
Docket No.: 20050196
Filing Date: 2/6/2006
Case Type: Appeal - Administrative - Workers Compensation
Author: Kapsner, Carol

Highlight: A court cannot ignore the clear language of a statute under the guise of liberal construction.
A recalculation of average weekly wage under N.D.C.C. § 65-05-09(1) is authorized only if the employee is able to return to employment for twelve consecutive months or more before the recurrence of the disability that is the subject of the recalculation.

MBNA v. Hart 2006 ND 33
Docket No.: 20050179
Filing Date: 2/3/2006
Case Type: Appeal - Civil - Debtor/Creditor
Author: Crothers, Daniel John

Highlight: A court must confirm an arbitration award upon application of any party to the award unless a party has filed a motion with the court to vacate, modify, or correct the award within 90 days after delivery of a copy of the award, or within 90 days after grounds are known or should have been known to the injured party if the motion to vacate is based on corruption, fraud, or other undue means.

Davis v. Killu, et al. 2006 ND 32
Docket No.: 20040301
Filing Date: 2/2/2006
Case Type: Appeal - Civil - Malpractice
Author: Crothers, Daniel John

Highlight: An expert's testimony may not be used merely as a conduit to place otherwise inadmissible evidence before a jury.
Parties are required to create a record that will permit informed appellate review.
Nonprejudical mistakes by the trial court constitute harmless error and are not grounds for reversal.
A failure to object acts as a waiver of the claim of error.