Opinions

Spectrum Care, L.L.C. v. Workforce Safety and Insurance 2004 ND 229
Docket No.: 20040171
Filing Date: 12/17/2004
Case Type: Appeal - Civil - Insurance
Author: VandeWalle, Gerald

Highlight: Section 65-04-32, N.D.C.C., applies to an employer's challenge to the classification of its employees for purposes of establishing insurance premiums payable to Workforce Safety and Insurance, and a court's review of a decision regarding those classifications is under sections 28-32-46 and 28-32-49, N.D.C.C.

State v. Steen (Consolidated w/20040052) 2004 ND 228
Docket No.: 20020343
Filing Date: 12/17/2004
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: To prevail in a post-conviction proceeding on a claim of ineffective assistance of counsel, the petitioner must show not only that trial counsel's performance fell below an objective standard of reasonableness, but must also demonstrate prejudice by establishing a reasonable probability that, but for counsel's errors, the result of the trial would have been different.

Gibb v. Sepe 2004 ND 227
Docket No.: 20040211
Filing Date: 12/17/2004
Case Type: Appeal - Civil - Divorce - Property
Author: Kapsner, Carol

Highlight: A spousal support award resulting from the parties' stipulation should be modified by the trial court only upon a showing of a material change in circumstances.
The party advocating the modification bears the burden of proving a material change occurred.
An award of attorney fees is an abuse of discretion when the prevailing party failed to show need, inability to pay, how the fees were incurred, or that the appeal was frivolous.

Foster v. Foster 2004 ND 226
Docket No.: 20040063
Filing Date: 12/14/2004
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A custody determination should be based on the best interests of the child and will not be overturned unless clearly erroneous.
Failure to allow a party 10 days to object to proposed findings of fact before a judgment is filed is harmless error because N.D.R.Ct. 7.1(b)(3) and N.D.R.Civ.P. 52(b) provide a remedy for that party.
A guardian ad litem may make a custody recommendation when advocating the best interests of the child.

Huff v. Board of Medical Examiners 2004 ND 225
Docket No.: 20040151
Filing Date: 12/14/2004
Case Type: Appeal - Civil - Administrative Proceeding
Author: Maring, Mary

Highlight: If an act is blatantly illegal or improper, or a licensee admits to a violation, a disciplinary board need not introduce expert evidence to establish the necessary standard.
In a disciplinary proceeding before a medical disciplinary board having some members who are not medical experts and physician members who are medical professionals but may not be experts in the field of medicine practiced by the physician appearing before them, expert testimony in a case in which such testimony would likely be helpful will best protect the fairness of the contested case proceedings, the integrity of the administrative record, and the right to meaningful judicial review.

State v. Linghor 2004 ND 224
Docket No.: 20030360
Filing Date: 12/14/2004
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: Probable cause to arrest an automobile passenger exists where drug paraphernalia is in plain view in the car.
The existence of an arrest is determined objectively, gauged by whether a reasonable person would conclude he was under arrest and not free to leave.
When a jury is unable to reach a verdict and a mistrial results, a subsequent retrial is not double jeopardy.
A trial judge has discretion in declaring a mistrial due to a hung jury, and while reasonable jury deliberation should be encouraged, a judge does not abuse that discretion in declaring a mistrial when the judge asks the jury for a list of divisive issues, polls the jurors to determine whether a verdict could be reached, and spends considerable time consulting both parties regarding available options.

State v. Jaster 2004 ND 223
Docket No.: 20030355
Filing Date: 12/14/2004
Case Type: Appeal - Criminal - Misc. Felony
Author: Neumann, William

Highlight: A current attorney-client relationship with the prosecutor is one of the exclusive causes of an implied bias that warrants dismissal of a juror.
A defendant must exhaust all peremptory challenges before objecting to the denial of a challenge for cause.
A party's right to exercise peremptory challenges is not violated if the party uses a peremptory challenge to exclude a juror the district court refused to excuse for cause, and no biased juror sits.
A statement is inadmissible hearsay only if it is offered to prove the truth of the matter asserted.
The pattern jury instruction on reckless endangerment erroneously omits the term "particular" from the definition of the crime.

State v. Bates 2004 ND 222
Docket No.: 20040095
Filing Date: 12/14/2004
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Conviction of gross sexual imposition is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Ernst 2004 ND 221
Docket No.: 20040117
Filing Date: 12/14/2004
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Denial of a motion to withdraw a guilty plea is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

City of Mandan v. Cordova 2004 ND 220
Docket No.: 20040147
Filing Date: 12/14/2004
Case Type: Appeal - Criminal - Violation of City Ordinance
Author: Per Curiam

Highlight: The district court's judgment affirming the prior municipal court decision finding indecent conduct is summarily affirmed under N.D.R.App.P. 35.1(a)(3).