Opinions

State v. Keller 2005 ND 86
Docket No.: 20040059
Filing Date: 5/10/2005
Case Type: Appeal - Criminal - Misc. Felony
Author: Sandstrom, Dale

Highlight: The right to a lesser-included-offense instruction requires that the offense be a lesser included offense of the greater, that the evidence be such that a jury could rationally find the defendant not guilty of the greater offense and guilty of the lesser, and generally, that the instruction be requested.
North Dakota's current lesser-included-offense law has its origin in the North Dakota Rules of Criminal Procedure, not N.D.C.C. 12.1-01-04(15).
For an offense to be a lesser included offense, it must be impossible to commit the greater offense without committing the lesser offense.
Criminal facilitation is not a lesser included offense of conspiracy to commit murder.
Criminal facilitation is not a lesser included offense of attempted murder.
Reckless endangerment is not a lesser included offense of attempted murder.

Eberts, et al. v. Billings Co. Board of Commissioners 2005 ND 85
Docket No.: 20040309
Filing Date: 5/3/2005
Case Type: Appeal - Civil - Other
Author: Maring, Mary

Highlight: A board of county commissioners may condemn land for a road under quick take procedures in N.D.C.C. 24-05-09 through 24-05-15.

Cusey v. Nagel 2005 ND 84
Docket No.: 20040241
Filing Date: 5/3/2005
Case Type: Appeal - Civil - Other
Author: Maring, Mary

Highlight: A person who petitions for a disorderly conduct restraining order must allege specific facts or threats.

Sorlie v. Workforce Safety and Insurance, et al. 2005 ND 83
Docket No.: 20040250
Filing Date: 4/29/2005
Case Type: Appeal - Administrative - Workers Compensation
Author: Sandstrom, Dale

Highlight: The pretermination due process procedures for terminating disability benefits do not apply to a lump-sum award.
Claimants reapplying for disability benefits must show both a significant change in their medical condition and an actual wage loss caused by the significant change in their compensable medical condition.

Hanson v. Hanson 2005 ND 82
Docket No.: 20040275
Filing Date: 4/26/2005
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: A district court may modify a prior custody order after a two-year period following the date of entry of an order establishing custody if the court finds that a material change in circumstances has occurred and that the modification is necessary to serve the best interest of the child. A party seeking to modify a custody order bears the burden of showing that a change of custody is required.
A district court must first calculate the presumptively correct child support amount before it can depart from the Child Support Guidelines.

Aker v. ND Department of Transportation 2005 ND 81
Docket No.: 20040366
Filing Date: 4/26/2005
Case Type: Appeal - Administrative - Department of Transportation
Author: Per Curiam

Highlight: A judgment reversing an administrative agency decision suspending driving privileges is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Jorgensen v. ND Dept. of Transportation 2005 ND 80
Docket No.: 20040338
Filing Date: 4/26/2005
Case Type: Appeal - Administrative - Department of Transportation
Author: Sandstrom, Dale

Highlight: Inclusion of chemical test results in an officer's certified report to the Director of the North Dakota Department of Transportation under N.D.C.C. 39-20-03.1(3) is a basic and mandatory provision without which the department may not suspend a person's driving privileges.

Edinger v. Governing Authority of Stutsman Co. Correctional Center 2005 ND 79
Docket No.: 20040233
Filing Date: 4/26/2005
Case Type: Original Proceeding - Civil - Writ of Mandamus
Author: Sandstrom, Dale

Highlight: When the information available to a governing body suggests a reasonable probability of future litigation or adversarial administrative proceedings, the governing body may close a portion of a public meeting and meet in executive session to receive and discuss the advice of its attorney.

Interest of B.M., et al. (CONFIDENTIAL) 2005 ND 78
Docket No.: 20040205
Filing Date: 4/26/2005
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: A judgment terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

State v. Bleibaum 2005 ND 77
Docket No.: 20040333
Filing Date: 4/26/2005
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: A criminal judgment following a jury conviction for aggravated assault, a class C felony, is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).