Opinions

Weaver v. State 2003 ND 47
Docket No.: 20020312
Filing Date: 3/26/2003
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Neumann, William

Highlight: A trial court properly grants summary disposition of an application for post-conviction relief when the State's motion for summary disposition meets the initial burden of showing the application does not raise a genuine issue of material fact.

Steinbach v. State 2003 ND 46
Docket No.: 20020322
Filing Date: 3/26/2003
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: A trial court can summarily dispose of a post-conviction relief application for misuse of process. Process is misused when the defendant: (1) inexcusably fails to raise an issue on direct appeal and now seeks review in an application for post-conviction relief; (2) inexcusably fails to pursue an issue on appeal which was raised at the trial court; (3) inexcusably fails to raise an issue in an initial post-conviction relief application.
Although a party seeking a summary disposition bears the initial burden of showing there is no genuine issue of material fact, that burden may be shifted to the nonmoving party once the moving party points out to the district court there is an absence of evidence to support the nonmoving party's case.

Morris v. Job Service 2003 ND 45
Docket No.: 20020258
Filing Date: 3/26/2003
Case Type: Appeal - Administrative - Unemployment/Job Service
Author: Sandstrom, Dale

Highlight: A claimant for unemployment benefits has the burden of establishing the claimant, rather than the claimant's employers, contributed to a pension fund, to avoid the pension offset provisions of N.D.C.C. 52-06-02(15).
The pension offset provisions of N.D.C.C. 52-06-02(15) do not distinguish between amounts contributed to a pension fund by an employer and amounts contributed to a pension fund by an employer under the directives of a collective bargaining agreement.

Koehler v. County of Grand Forks, et al. 2003 ND 44
Docket No.: 20020188
Filing Date: 3/26/2003
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: Kapsner, Carol

Highlight: A plaintiff alleging a failure-to-promote discrimination claim under the North Dakota Human Rights Act must show: (1) she was a member of a protected group; (2) she was qualified and applied for a promotion to an available position; (3) she was rejected; and (4) a similarly qualified employee who was not part of a protected group was promoted instead.
An ongoing personality conflict does not transform into an actionable disability claim merely because one party becomes disabled.

American Ntl. Fire Ins. Co. v. Hughes 2003 ND 43
Docket No.: 20020207
Filing Date: 3/26/2003
Case Type: Appeal - Civil - Insurance
Author: Kapsner, Carol

Highlight: An insurer is precluded from obtaining subrogation from its insured.
For purposes of subrogation, a closely held corporation's officers and employees may be implied co-insureds under a policy insuring the corporation's property.

Gronfur v. Workers Comp., et al. 2003 ND 42
Docket No.: 20020250
Filing Date: 3/26/2003
Case Type: Appeal - Administrative - Workers Compensation
Author: Kapsner, Carol

Highlight: When reapplying to resume discontinued disability benefits, a claimant must prove an actual wage loss caused by a significant change in the compensable medical condition.
For an actual wage loss, a claimant must have been earning wages from employment when the change in medical condition occurred causing at least a partial loss of those wages.

City of Grand Forks v. Ramstad 2003 ND 41
Docket No.: 20020120
Filing Date: 3/26/2003
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: VandeWalle, Gerald

Highlight: To establish a Brady violation, the defendant must show the prosecution withheld evidence which was favorable to him.
A defendant alleging a Brady violation must show he could not have obtained the undisclosed evidence with reasonable diligence.
Under N.D.R.Crim.P. 16, the prosecution has a duty to provide documents in the possession of the State Toxicologist's office, even if the defendant could have otherwise obtained the documents himself.

Wilson v. State 2003 ND 40
Docket No.: 20020353
Filing Date: 3/26/2003
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: A judgment summarily denying an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (6).

Murchison v. State 2003 ND 38
Docket No.: 20020273
Filing Date: 3/5/2003
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Maring, Mary

Highlight: A court may deny a post-conviction application on the grounds of misuse of process when a defendant inexcusably fails to pursue an issue leading to judgment of conviction, inexcusably fails to pursue an issue on appeal having raised the issue in the trial court, or inexcusably fails to raise an issue in an initial post-conviction proceeding.
A court may deny a post-conviction application on the grounds of res judicata if the same claims have been fully and finally determined in a previous proceeding.

Hegland v. McKechnie 2003 ND 37
Docket No.: 20020199
Filing Date: 3/5/2003
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: The details of prior private discipline should not be alleged in a petition for public discipline.
Expert testimony about whether or not a rule of professional conduct has been violated is inappropriate in disciplinary proceedings.