Opinions

State v. Buchholz 2005 ND 30
Docket No.: 20040118
Filing Date: 2/16/2005
Case Type: Appeal - Criminal - Other
Author: Neumann, William

Highlight: Statutory construction is a question of law, fully reviewable on appeal. Statutes are not interpreted in a manner that would render part of the statute mere surplusage.
Mistake of law is an affirmative defense that must be proved by a preponderance of the evidence at trial. It cannot be used to overcome a charged offense at a preliminary hearing.

Guardianship of Topp 2005 ND 29
Docket No.: 20040185
Filing Date: 2/16/2005
Case Type: Appeal - Civil - Guardian/Conservator
Author: Per Curiam

Highlight: A trial court's order on incapacitation and guardianship is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Interest of T.C.R. (CONFIDENTIAL) 2005 ND 28
Docket No.: 20040217
Filing Date: 2/16/2005
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: An order modifying child support to conform to the child support guidelines is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Clifford v. O'Donnell 2005 ND 27
Docket No.: 20040221
Filing Date: 2/16/2005
Case Type: Original Proceeding - Criminal - Writ of Prohibition
Author: Per Curiam

Highlight: An appeal from dismissal of a petition for a writ of prohibition is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Riverside Park Condominiums Unit Owners Association v. Lucas 2005 ND 26
Docket No.: 20040014
Filing Date: 1/25/2005
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: Actions of a condominium's board of directors are reviewed under the business-judgment rule.
The power of a condominium's governing body to make rules, regulations, or amendments to the declaration or bylaws is limited by a determination of whether the action is unreasonable, arbitrary, capricious, or discriminatory.
The reasonableness of a condominium use restriction is determined by reference to the common interest development as a whole.
A trial court's decision to grant or deny a request for a declaratory judgment will not be set aside unless the court has abused its discretion.
The district court has broad discretion in imposing sanctions for discovery violations, and its decision will be reversed only upon a showing of an abuse of discretion.
The trial court may impose an appropriate sanction for filing a motion for an improper purpose.
A party waives an issue by not providing supporting argument, and without supportive reasoning or citations to relevant authorities, an argument is without merit.

State v. Tupa (Consolidated w/20040132) 2005 ND 25
Docket No.: 20040106
Filing Date: 1/24/2005
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: VandeWalle, Gerald

Highlight: A criminal restitution award can be based on replacement costs where, for example, a victim must replace an item not readily or desirably found in a secondary market.
Fair market value or cost to repair are appropriate measures of criminal restitution if they make a victim whole, such as where a damaged or destroyed item can be cost-effectively repaired or where a viable and appropriate secondary market exists.
A trial court has wide discretion in setting the amount of restitution, and the trial judge does not abuse this discretion by awarding restitution that is within the range of reasonableness.
North Dakota law does not limit criminal restitution to those amounts that would be recoverable in a corresponding civil tort action.
Restitution payments are based on what a defendant can or will be able to pay, and the trial court does not abuse its discretion, or threaten a victim's reimbursement, by ordering payments that are within the defendant's capabilities, even if the obligation may necessitate a change in the defendant's lifestyle.

City of Grand Forks v. Scialdone 2005 ND 24
Docket No.: 20040119
Filing Date: 1/19/2005
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Maring, Mary

Highlight: Evidence about calibration checks when an Intoxilyzer has been moved is not a foundational requirement for showing an Intoxilyzer test was administered in accordance with the approved method for conducting the test or for admission of the test result into evidence.
If a defendant rebuts the prosecution's prima facie showing of fair administration of a blood-alcohol test for admission into evidence, the prosecution may present testimony to show fair administration despite defendant's rebuttal.
A judgment will not ordinarily be reversed on appeal for surprise when no request is made for a continuance at the time and there is no showing of inability to meet the situation.

Kiecker v. ND Dept. of Transportation 2005 ND 23
Docket No.: 20040150
Filing Date: 1/19/2005
Case Type: Appeal - Administrative - Department of Transportation
Author: Sandstrom, Dale

Highlight: The results of a blood-alcohol test must be received in evidence when it is shown that the sample was properly obtained and the test was fairy administered, and if the test is shown to have been performed according to methods and with devices approved by the State Toxicologist.
A document is not part of the approved method unless the State Toxicologist expressly includes it in the approved method and makes it a foundational requirement for fair administration.
The installation and repair checkout form is not part of the approved method.

Jones v. ND State Board of Medical Examiners 2005 ND 22
Docket No.: 20040161
Filing Date: 1/19/2005
Case Type: Appeal - Civil - Administrative Proceeding
Author: Sandstrom, Dale

Highlight: A physician has no statutory or due process right to appear personally before the State Board of Medical Examiners when the Board deliberates whether to accept or reject an administrative law judge's recommendations.
The Board's conclusions of law and order must sufficiently explain its rationale for not adopting an administrative law judge's recommended sanction.

State v. Smith (Consolidated w/20040115) 2005 ND 21
Docket No.: 20040114
Filing Date: 1/19/2005
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Sandstrom, Dale

Highlight: The information obtained by a police officer from an anonymous informant cannot alone establish probable cause if the tip provides virtually nothing from which a person might conclude the informant is honest or his information is reliable, or if the information gives absolutely no indication of the basis for identifying the criminal activities.
A police officer needs at least one reasonable and articulable factor to stop a seemingly innocent car.