Opinions

State v. Driscoll 2005 ND 105
Docket No.: 20040292
Filing Date: 6/2/2005
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: A magistrate's probable-cause decision is reviewed using a totality-of-the-circumstances test. A substantial basis for the magistrate's conclusion must exist.
To establish probable cause for a search, there must be a nexus between the place to be searched and the contraband sought, and circumstantial evidence can establish this nexus.
Unsupported and conclusory statements are alone insufficient to establish probable cause.
If an accepted, reasonable theory of probable cause subsequently proves to be untrue or unfounded, it does not retroactively undermine a previously correct conclusion that probable cause to search existed, invalidate a properly issued search warrant, or release a criminal actor from culpability for crimes uncovered during the execution of the search warrant.
In executing a valid search warrant, police may inspect and open any item that could reasonably contain the objects of the search, regardless of whether these items are personal or private or specifically particularized in the search warrant.

People to Save the Sheyenne River v. ND Dept.of Health (CON. w/20040377) 2005 ND 104
Docket No.: 20040376
Filing Date: 6/2/2005
Case Type: Appeal - Civil - Administrative Proceeding
Author: VandeWalle, Gerald

Highlight: In the absence of an adjudicative proceeding and findings of fact, appellate review of an administrative agency decision to issue a Pollutant Discharge Elimination System permit is to determine whether the decision is arbitrary, capricious, or unreasonable.

City of Grand Forks v. Lamb 2005 ND 103
Docket No.: 20040196
Filing Date: 6/2/2005
Case Type: Appeal - Criminal - Violation of City Ordinance
Author: VandeWalle, Gerald

Highlight: When a defendant appeals to the district court from a conviction in municipal court, the district court does not review the record and decision of the municipal court, but holds a new trial and independently determines whether the defendant has violated the ordinance.
A notice of appeal filed after the municipal court has announced its decision, but before the entry of the judgment or order, is treated as filed on the date of and after the entry.
When a city has the authority to regulate a certain subject, an ordinance is presumed valid and the burden is upon the party challenging the ordinance to demonstrate how the city exceeded its authority.

Interest of R.F. (CONFIDENTIAL) (cross-ref. w/20030288) 2005 ND 102
Docket No.: 20050148
Filing Date: 6/2/2005
Case Type: Appeal - Civil - Mental Health
Author: Kapsner, Carol

Highlight: In some situations it may be reasonable for a doctor to conclude that less restrictive alternatives to hospitalization do not exist.
The State Hospital or treatment facility is not required to look outside North Dakota for treatment options other than hospitalization.

Rolette Co. Social Service Bd., et al. v. B.E. (CONFIDENTIAL) 2005 ND 101
Docket No.: 20040357
Filing Date: 6/2/2005
Case Type: Appeal - Civil - Paternity
Author: Kapsner, Carol

Highlight: A dismissal of an action without prejudice may be final and appealable if it has the practical effect of terminating the litigation in the plaintiff's chosen forum.
The state courts have concurrent subject-matter jurisdiction with the tribal courts to determine a support obligation against an enrolled Indian where parentage is not at issue and the parent against whom support is sought is not residing on the Indian reservation.

R.R. v. G.H. (CONFIDENTIAL) (Cross-ref. w/20040139 & 20040288) 2005 ND 100
Docket No.: 20040325
Filing Date: 6/2/2005
Case Type: Appeal - Civil - Contempt of Court
Author: Per Curiam

Highlight: District court orders denying a motion to change venue, finding a party in contempt, and awarding $300 paid in bond as reimbursement for costs and expenses are summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Oliver-Mercer Electric Coop. v. Davis, et al. (Consol. w/20040308)(see Memo) 2005 ND 99
Docket No.: 20040307
Filing Date: 5/25/2005
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: When a secured creditor who fails to give proper notice seeks a deficiency judgment, the fair market value of the collateral is presumed to be equal to the debt.
A secured creditor who fails to properly notify the debtor of a sale of collateral must provide credible evidence from which the trial court can determine the fair market value of the collateral.
A secured creditor's failure to provide credible evidence bars recovery of a deficiency judgment.

ND Human Rights Coalition, et al. v. Bertsch 2005 ND 98
Docket No.: 20040297
Filing Date: 5/17/2005
Case Type: Original Proceeding - Civil - Writ of Mandamus
Author: Sandstrom, Dale

Highlight: A trial court's decision to certify a class action will not be overturned on appeal unless the court abused its discretion.
A trial court's explanation of its decision to grant a class action certification must be sufficient to enable a reviewing court to understand the basis for the court's decision.

Anderson v. Director, N.D. Dept. of Transportation 2005 ND 97
Docket No.: 20040337
Filing Date: 5/17/2005
Case Type: Appeal - Administrative - Department of Transportation
Author: Maring, Mary

Highlight: An investigative stop of a vehicle requires the officer have a reasonable and articulable suspicion that a motorist has violated or is violating the law.
Information from a tip may provide the factual basis for a stop.
In evaluating the factual basis for a stop, the totality of the circumstances is considered, including the quantity, or content, and quality, or degree of reliability, of the information available to the officer.
When reasonable and articulable suspicion arises from an informant's tip, there is an inverse relationship between quantity and quality, and the information must be analyzed generally according to the type of tip and its reliability.
A caller-informant must provide at least some specific and articulable facts to support the bare allegations of criminal activity for a stop to be justified based on the call.

Negaard v. Negaard (Consol. w/20040312) (Cross-Ref. w/20010251 & 20030174) 2005 ND 96
Docket No.: 20040140
Filing Date: 5/17/2005
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: An order or judgment finding a person guilty of contempt is a final order or judgment for purposes of appeal.
An appeal of a contempt finding must be made within "60 days after entry of the judgment or order being appealed."
When imposing contempt under N.D.C.C. ch. 27-10, a court must first consider whether a remedial or punitive sanction is applicable and then apply the appropriate procedures for imposing the sanction.
In a custody, support, or visitation proceeding, a trial court may, in its discretion and on its own initiative, appoint a guardian ad litem for a minor child when the court has reason or special concern as to future welfare of the child.
Under Section 28-26-01(2), N.D.C.C., a court may award reasonable actual and statutory costs, including reasonable attorney fees, for defending a frivolous claim.