Opinions

Christianson v. Christianson 2003 ND 186
Docket No.: 20030123
Filing Date: 12/2/2003
Case Type: Appeal - Civil - Divorce - Property
Author: Sandstrom, Dale

Highlight: No North Dakota statute or case law provides for the imputation of income in spousal support cases.
Equalization of income is not a goal or a measure of spousal support although it is a factor which may be considered.

Fish v. Dockter 2003 ND 185
Docket No.: 20030080
Filing Date: 12/2/2003
Case Type: Appeal - Civil - Personal Injury
Author: Sandstrom, Dale

Highlight: To be defamatory, a statement must be false, but there is no liability for defamatory statements that are privileged.
There is a qualified privilege for communications made, without malice, to an interested person by one who is also interested so as to afford a reasonable ground for supposing the motive for the communication innocent.
There is an absolute privilege for communications made incident to and during administrative proceedings.

State v. Backlund 2003 ND 184
Docket No.: 20030044
Filing Date: 12/2/2003
Case Type: Appeal - Criminal - Sexual Offense
Author: Kapsner, Carol

Highlight: An adult is guilty of luring a minor by computer when (1) the adult knows the character and content of a communication that, in whole or in part, implicitly or explicitly discusses or depicts actual or simulated nudity, sexual acts, sexual contact, sadomasochistic abuse, or other sexual performances, (2) the adult willfully uses the computer communication system to initiate or engage in such communication with a person the adult believes to be a minor, and (3) by means of that communication, the adult willfully importunes, invites, or induces the person the adult believes to be a minor to engage in sexual acts or have sexual contact with the adult, or to engage in a sexual performance, obscene sexual performance, or sexual conduct for the adult's benefit, satisfaction, lust, passions, or sexual desires.
North Dakota has jurisdiction to prosecute a defendant who solicits a person believed to be a minor to engage in sexual acts from a computer in Minnesota, where the communication is received in North Dakota and the defendant travels to and is arrested in North Dakota.
North Dakota's luring-a-minor-by-computer law does not violate the Commerce Clause or the First Amendment.
The registration and notification provisions for sexual offenders do not violate procedural due process or double jeopardy.

Bay v. State 2003 ND 183
Docket No.: 20030145
Filing Date: 12/2/2003
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Maring, Mary

Highlight: Issues not raised to the trial court cannot be raised for the first time on appeal.
A nonbinding recommendation of sentence and a binding plea agreement under N.D.R.Crim.P. 11(d) are significantly different.
The State fulfills its obligation in a nonbinding recommendation when it makes the recommendation, and the trial court may impose a harsher sentence without allowing the defendant to withdraw the guilty plea.
Defendants who voluntarily plead guilty waive the right to challenge nonjurisdictional defects occurring before entry of the guilty plea.

Interest of L.D. 2003 ND 182
Docket No.: 20030305
Filing Date: 12/2/2003
Case Type: Appeal - Civil - Mental Health
Author: VandeWalle, Gerald

Highlight: A petition for involuntary treatment must be supported by clear and convincing evidence.
The trial court's determination of clear and convincing evidence that a person requires treatment is a finding of fact subject to a more probing, clearly erroneous standard of review.
If other evidence presented at a treatment hearing supports the underlying allegations of the petition, the petitioner does not have to be present to testify regarding all the allegations in the petition.

Crane Johnson Lumber Co., et al. v. City of Fargo 2003 ND 181
Docket No.: 20030146
Filing Date: 12/2/2003
Case Type: Appeal - Civil - Real Property
Author: Neumann, William

Highlight: Property lying outside the limits of a special improvement district created by a municipality's governing body is not subject to assessment by the special assessment commission.

State v. Knowels (cross-ref. w/20010147) 2003 ND 180
Docket No.: 20030093
Filing Date: 12/2/2003
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Neumann, William

Highlight: North Dakota law does not require a chemical test to convict a person of driving while under the influence of alcohol. A conviction may be sustained when evidence of defendant's intoxication is shown through witness testimony of defendant's intoxication, based on their observations of defendant.

Kamara v. State 2003 ND 179
Docket No.: 20030180
Filing Date: 12/2/2003
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: To establish ineffective assistance of counsel, a person must show counsel's performance fell below an objective standard of reasonableness and the deficient performance prejudiced him.
The standard of review for a claim of ineffective assistance of counsel is a mixed question of law and fact, but the trial court's findings of fact are subject to a clearly erroneous standard of review.
The credibility of witnesses is left to the trial court to determine.

Negaard v. Negaard (cross-ref. w/20010251) 2003 ND 178
Docket No.: 20030174
Filing Date: 12/2/2003
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: Post-judgment divorce order granting costs and attorney's fees summarily affirmed under N.D.R.App.P. 35.1(a)(4), (7).

Elshaug v. Workforce Safety and Insurance, et al. (cross-reference 990286) 2003 ND 177
Docket No.: 20030100
Filing Date: 11/18/2003
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: A claimant has the burden of proving a right to receive workers compensation benefits or to continued benefits if they are terminated after liability for a claim has been accepted.
A claimant must establish by a preponderance of the evidence that the medical condition for which benefits are sought is causally related to a work injury.