Opinions

Judicial Conduct Commission v. Giese 2004 ND 172
Docket No.: 20040177
Filing Date: 9/2/2004
Case Type: Discipline - Judge - Original Proceeding
Author: Per Curiam

Highlight: Former municipal judge censured.

Judicial Conduct Commission v. McGuire 2004 ND 171
Docket No.: 20040073
Filing Date: 8/31/2004
Case Type: Discipline - Judge - Original Proceeding
Author: Per Curiam

Highlight: Clear and convincing evidence in a judicial disciplinary proceeding means evidence which leads to a firm belief or conviction that the allegations are true.
In judicial disciplinary proceedings, the party seeking discovery has to show a need for the information beyond mere relevance.
Extra-judicial conduct is not simply conduct arising geographically outside of the courtroom, but is conduct which arises from something outside of the events of the courtroom itself.
Suspending a judge from office without pay does not violate the constitutional directive that a judge's salary shall not be diminished during this term of office.
The purpose of discipline in judicial conduct cases is not to punish a judge, but is to preserve the integrity of the judicial system and public confidence in the system and, when necessary, safeguard the bench and public from those who are unfit.
A respondent in a judicial disciplinary proceeding is not initially responsible for payment of the cost of a hearing transcript, but if the respondent is ultimately found to have committed misconduct, the cost of the hearing transcript may be assessed against the respondent.

Interest of R.H. 2004 ND 170
Docket No.: 20040053
Filing Date: 8/31/2004
Case Type: Appeal - Civil - Child Support
Author: Neumann, William

Highlight: A party against whom a presumption is directed has the burden of proving that the nonexistence of the presumed fact is more probable than its existence.

Smith Enterprises v. In-Touch Phone Cards, et al. 2004 ND 169
Docket No.: 20040039
Filing Date: 8/31/2004
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: A determination of the terms of an oral contract is a question of fact and will be reversed on appeal only if clearly erroneous.
To prevail on a claim of unlawful interference with business, a plaintiff must prove: (1) the existence of a valid business relationship or expectancy; (2) knowledge by the interferer of the relationship or expectancy; (3) an independently tortious or otherwise unlawful act of interference by the interferer; (4) proof the interference caused the harm sustained; and (5) actual damages to the party whose relationship or expectancy was disrupted.

State v. Spidahl (Consolidated w/20030349-20030352) 2004 ND 168
Docket No.: 20030348
Filing Date: 8/31/2004
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: Probable cause to arrest does not require that commission of the offense be established with absolute certainty, or proved beyond a reasonable doubt.

Investors Real Estate Trust Properties v. Terra Pacific Midwest, et al. 2004 ND 167
Docket No.: 20030363
Filing Date: 8/31/2004
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Maring, Mary

Highlight: A plaintiff alleging negligence must present affirmative evidence that the defendant's conduct caused the injury, and may not establish causation solely by discrediting other possible causes.
A plaintiff relying upon the doctrine of res ipsa loquitur must show the defendant had exclusive control of the specific instrumentality that caused a fire, not merely control of the location or area where the fire occurred.

Grinnell Mutual Reinsurance Co. v. Lynne, et al. 2004 ND 166
Docket No.: 20030217
Filing Date: 8/31/2004
Case Type: Appeal - Civil - Insurance
Author: Kapsner, Carol

Highlight: To successfully oppose a motion for summary judgment, a party must not rely upon unsupported or conclusory allegations.
An insurance policy is not ambiguous when the plain language of the policy precludes coverage.
A causal relationship exists when damage to property arises out of the inherent nature of the work performed.
A house is real property and a fixture when the actions of the owner manifest an intention to have the house remain on the property permanently.

Horner v. Horner 2004 ND 165
Docket No.: 20030367
Filing Date: 8/31/2004
Case Type: Appeal - Civil - Divorce - Property
Author: Neumann, William

Highlight: Duration of a marriage is only one factor of the Ruff-Fischer guidelines and is not controlling in a distribution of marital property.
A party's dissipation of marital assets is a particularly relevant factor in arriving at an equitable distribution of the property.
Periodic cash payments awarded without interest need to be discounted to present value in determining whether a property distribution is equitable.
Distributing farm assets to one spouse with an offsetting monetary award to the other spouse is an acceptable method of preserving the viability of a family farm.

Dietz v. Kautzman, et al. 2004 ND 164
Docket No.: 20030362
Filing Date: 8/31/2004
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: An order or judgment awarding attorney fees and costs as a discovery sanction is ordinarily interlocutory and not appealable, but it is appealable when accompanied by a finding of contempt.
A district court has a broad spectrum of available sanctions for discovery violations, and any sanctions imposed will not be set aside on appeal unless the district court abused its discretion.

State v. Haibeck 2004 ND 163
Docket No.: 20040060
Filing Date: 8/9/2004
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Neumann, William

Highlight: Under the automobile exception to the warrant requirement of the Fourth Amendment to the U.S. Constitution, contraband goods concealed and illegally transported in an automobile or other vehicle may be searched for without a warrant where probable cause exists.
When conducting a search under the automobile exception, law enforcement does not need separate findings of probable cause to support multiple searches of a vehicle when the searches are virtually contemporaneous.
A Miranda violation does not require suppression of the physical fruits of a suspect's unwarned but voluntary statements.
The fact that an officer may have authority to arrest a suspect does not mean that a suspect is in custody for purposes of Miranda.