Opinions

Disciplinary Board v. Overboe 2009 ND 40
Docket No.: 20080219
Filing Date: 4/2/2009
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: A final determination of lawyer misconduct by another jurisdiction conclusively establishes misconduct for a disciplinary proceeding in North Dakota and requires the imposition of identical discipline unless the lawyer demonstrates and it clearly appears: (1) the procedure in the other jurisdiction was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; (2) there was such an infirmity of proof establishing the misconduct in the other jurisdiction that the decision from the other jurisdiction cannot be accepted; (3) the imposition of the same discipline would result in a grave injustice; or (4) the misconduct warrants substantially different discipline in this state.

Sturn v. Director, N.D. Dept of Transportation 2009 ND 39
Docket No.: 20080199
Filing Date: 4/2/2009
Case Type: Appeal - Administrative - Department of Transportation
Author: VandeWalle, Gerald

Highlight: Radar is prima facie evidence of vehicle speed. The foundational requirements for conviction using radar are not the same as the requirement for reasonable suspicion.
An officer's testimony that a vehicle was "traveling rather quickly" and that he verified that it was speeding by using radar is sufficient for reasonable suspicion even if not accompanied by all the foundational elements necessary for conviction of speeding.

State v. Leingang 2009 ND 38
Docket No.: 20080168
Filing Date: 4/2/2009
Case Type: Appeal - Civil - Contempt of Court
Author: VandeWalle, Gerald

Highlight: Contempt is not available when sums of money may be collected through the process of execution.
A litigant may have a court decide the merits of a dispute only after demonstrating standing to litigate the issue before the court.
To establish standing, a litigant must have suffered some threatened or actual injury resulting from the putatively illegal action.

State v. Holbach (consolidated w/20080003) 2009 ND 37
Docket No.: 20080002
Filing Date: 4/2/2009
Case Type: Appeal - Criminal - Misc. Felony
Author: Crothers, Daniel John

Highlight: When an individual's constitutional right to travel has been restricted by a judicial order, any conduct in violation of that judicial order is not a constitutionally protected activity for purposes of the stalking statute.
Violence and other activities that harm another person are not constitutionally protected.
To have standing to raise a vagueness challenge, a litigant must almost always demonstrate that the statute in question is vague as applied to his own conduct, without regard to its potentially vague application in other circumstances.

State v. Geiser 2009 ND 36
Docket No.: 20080120
Filing Date: 4/2/2009
Case Type: Appeal - Criminal - Misc. Felony
Author: Kapsner, Carol

Highlight: The definition of "child" in N.D.C.C. 19-03.1-22.2(1)(b) does not include unborn children; therefore, the crime of "endangerment of a child or vulnerable adult" does not apply to an unborn child.

Verhey v. McKenzie 2009 ND 35
Docket No.: 20070234
Filing Date: 4/2/2009
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: When a child support obligor is unemployed or underemployed, the child support guidelines permit a court to impute income to the obligor.
The district court errs as a matter of law, however, if the court fails to comply with the child support guidelines in determining an obligor's child support obligation.

State v. Curtis 2009 ND 34
Docket No.: 20080007
Filing Date: 4/2/2009
Case Type: Appeal - Criminal - Assault
Author: Crothers, Daniel John

Highlight: A criminal defendant has a constitutional right to compulsory process to secure the attendance of witnesses who will provide testimony that is both favorable and material to a defense.
A subpoena must be served within a reasonable time before a witness's scheduled appearance, and whether service is within a reasonable time depends on the circumstances of each case.
A criminal defendant has a right to self-representation if the defendant knowingly and intelligently elects to do so.
A criminal defendant has a statutory right to require all communications with jurors after a case has been submitted to them to be made in open court and in the presence of the defendant.
A criminal defendant's statutory right to be present during the entire trial is of constitutional dimension, and the State must establish that a violation of a defendant's right to be present was harmless beyond a reasonable doubt.

Bragg, et al. v. Burlington Resources Oil & Gas Co. 2009 ND 33
Docket No.: 20080129
Filing Date: 4/2/2009
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: An entity taking an interest in real property subject to a lis pendens--a written notice of a pending suit involving real property--is bound by all proceedings taken after the filing of the notice of lis pendens to the same extent as if that entity were a party to the underlying action, including a settlement of the underlying action.

Gunia v. Gunia 2009 ND 32
Docket No.: 20080055
Filing Date: 4/2/2009
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: A party seeking to modify a child support obligation within one year of the decision setting the obligation must show a material change in circumstances.
A material change in circumstances is a change that was neither contemplated nor foreseen at the time of the earlier support order.
In determining a child support obligation, a district court must clearly set forth how it arrived at the obligor's net income and the level of support.
Income and expenses from a solely owned Subchapter S corporation are attributable to the obligor for child support purposes.

Koropatnicki v. State 2009 ND 31
Docket No.: 20080235
Filing Date: 4/2/2009
Case Type: Appeal - Civil - Post-Conviction Relief
Author:

Highlight: Order denying an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Steen (Consolidated w/20080244 thru 20080247) 2009 ND 30
Docket No.: 20080243
Filing Date: 4/2/2009
Case Type: Appeal - Criminal - Drugs/Contraband
Author:

Highlight: A district court order denying defendant's motions for credit for time spent in custody is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Delzer, et al. v. Anderson 2009 ND 29
Docket No.: 20080206
Filing Date: 4/2/2009
Case Type: Appeal - Civil - Contracts
Author:

Highlight: Civil money judgment relating to assigned divorce debt summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (6).

State v. Isom (Consolidated w/20080311-20080314) 2009 ND 28
Docket No.: 20080310
Filing Date: 4/2/2009
Case Type: Appeal - Criminal - Drugs/Contraband
Author:

Highlight: The district court's order denying defendant's motion for credit for time served is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Reciprocal Discipline of Swensen 2009 ND 27
Docket No.: 20090095
Filing Date: 4/2/2009
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer disbarred.

Reciprocal Discipline of Hellerud 2009 ND 26
Docket No.: 20090097
Filing Date: 3/27/2009
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Suspension of lawyer ordered.

Interest of R.M. (CONFIDENTIAL) 2009 ND 25
Docket No.: 20090084
Filing Date: 3/20/2009
Case Type: Appeal - Civil - Mental Health
Author:

Highlight: Mental health commitment and involuntary medication order summarily reversed under N.D.R.App.P. 35.1(b).

Collection Specialist Int'l v. McLaughlin Const. Co. (Cons. w/20080242) 2009 ND 24
Docket No.: 20080241
Filing Date: 2/9/2009
Case Type: Appeal - Civil - Contracts
Author:

Highlight: District court judgment in favor of McLaughlin Construction Co. in a contract case is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Bruder v. WSI, et al. 2009 ND 23
Docket No.: 20080078
Filing Date: 2/6/2009
Case Type: Appeal - Administrative - Workers Compensation
Author: Sandstrom, Dale

Highlight: When there are conflicting expert medical opinions about the cause of a workers compensation claimant's medical condition, Workforce Safety and Insurance has the responsibility to weigh credibility and resolve conflicts in the evidence.

Midthun v. Workforce Safety and Insurance, et al. 2009 ND 22
Docket No.: 20080137
Filing Date: 2/5/2009
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: A party appealing a hearing officer's decision must file reasonably specific specifications of error detailing which matters are at issue, so as to alert the agency, other parties, and the court of the particular errors claimed.
The use of the word "may" in a statutory scheme is ordinarily understood as permissive rather than mandatory and operates to confer discretion.
Under N.D.C.C. 65-05-10(2), Workforce Safety and Insurance has discretion over whether to waive the five-year limitation on partial disability benefits, even where a claimant has met one of the statutory exemptions.

Adoption of J.D.F. (Confidential) 2009 ND 21
Docket No.: 20080152
Filing Date: 2/5/2009
Case Type: Appeal - Civil - Adoption
Author: Maring, Mary

Highlight: A district court must advise parents that they are entitled to representation by counsel, provided by the State if necessary, throughout any proceedings to terminate the parent-child relationship against their will.

Kelly v. Kelly 2009 ND 20
Docket No.: 20080103
Filing Date: 2/3/2009
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Adoption of H.G.C. (confidential) 2009 ND 19
Docket No.: 20080096
Filing Date: 2/3/2009
Case Type: Appeal - Civil - Adoption
Author: Sandstrom, Dale

Highlight: A parent's parental rights, including the right to withhold consent to an adoption, may be terminated if the parent has abandoned the minor child.
A court must consider the parent's contact and communication with the child, the parent's love, care and affection toward the child, the parent's acceptance of parental obligations, whether the parent has negligently failed to perform his parental duties, and the parent's intent in deciding whether the parent has abandoned the child.

Ulsaker v. White 2009 ND 18
Docket No.: 20080093
Filing Date: 2/3/2009
Case Type: Appeal - Civil - Divorce - Property
Author: Crothers, Daniel John

Highlight: A long-term marriage supports an equal distribution of marital property.
A party's dissipation of marital assets is a relevant factor for the district court to consider when dividing the marital estate.
A district court should consider tax consequences when determining divorce transactions, but phantom tax consequences are not a relevant basis on which to divide marital property.

Reinholdt v. ND Dept. of Human Services 2009 ND 17
Docket No.: 20080210
Filing Date: 2/3/2009
Case Type: Appeal - Civil - Administrative Proceeding
Author: Kapsner, Carol

Highlight: If a Medicaid applicant has a legal ability to obtain an asset, it is considered an actually available resource. In determining whether an asset is actually available, the focus is on the Medicaid applicant's actual and practical ability to obtain the asset as a matter of fact, not of legal fiction.

Hendrickson v. Olson 2009 ND 16
Docket No.: 20080164
Filing Date: 2/3/2009
Case Type: Appeal - Civil - Administrative Proceeding
Author: Kapsner, Carol

Highlight: The admissibility of evidence in any adjudicative proceeding before an administrative agency is determined under the rules of evidence unless there is a specific waiver stated orally or in writing before or at the hearing.
To be eligible for Medicaid benefits as an incapacitated parent of a child receiving Medicaid benefits, a parent must have a physical or mental defect of such a debilitating nature as to reduce substantially or eliminate the parent's capacity either to earn a livelihood or to discharge the parent's responsibilities as a homemaker and provider of child care for 30 days or more.

City of Fargo v. Salsman 2009 ND 15
Docket No.: 20080162
Filing Date: 2/3/2009
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Sandstrom, Dale

Highlight: A municipality has the authority to bring a nuisance abatement action.
Whether a nuisance exists is a mixed question of fact and law.
The state nuisance law and Fargo's nuisance ordinances are not void for vagueness or unconstitutionally overbroad.

Hector, et al. v. City of Fargo 2009 ND 14
Docket No.: 20080177
Filing Date: 2/3/2009
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: The decision of a local governing body on whether to amend the city zoning map and growth plan will be affirmed unless the local body acted arbitrarily, capriciously or unreasonably, or if there is not sufficient evidence supporting the decision.
A city must adopt a comprehensive plan governing zoning regulations, and must follow certain statutory procedures when adopting the plan.
A local governing body does not engage in contract zoning simply by speaking with landowners about concerns over the details of proposed zoning amendments.

Myers v. State (cross-reference 20050368) 2009 ND 13
Docket No.: 20080186
Filing Date: 2/3/2009
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: The failure to file a pretrial suppression motion alone is not enough to meet the burden of proving ineffective assistance of counsel; the petitioner must show actual prejudice.

Citibank v. Reikowski 2009 ND 12
Docket No.: 20080218
Filing Date: 2/3/2009
Case Type: Appeal - Civil - Debtor/Creditor
Author: Crothers, Daniel John

Highlight: Any action or proceeding involving an issue subject to arbitration shall be stayed if an application for stay has been made.

Slorby v. Slorby 2009 ND 11
Docket No.: 20080105
Filing Date: 2/3/2009
Case Type: Appeal - Civil - Divorce - Property
Author: Crothers, Daniel John

Highlight: If the language of a judgment is unambiguous and plain, neither construction nor interpretation is allowed, and the effect of the language must be based on the language's literal meaning.
When interpreting a judgment, the language of the judgment should be construed as to give effect to each and every part of it, and bring all different parts into harmony as far as this can be done by fair and reasonable interpretation.

Doepke v. Doepke 2009 ND 10
Docket No.: 20080142
Filing Date: 2/3/2009
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: A court errs as a matter of law if it does not comply with the requirements of the child support guidelines when it determines a child support obligation.
Under the child support guidelines, a self-employed individual's child support obligation is generally calculated using an average of the individual's income for the most recent five-year period.
An issue may not be addressed if it is not included in the statement of the issues.

City of Fargo v. Lunday 2009 ND 9
Docket No.: 20080127
Filing Date: 2/3/2009
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: Under N.D.R.Crim.P. 29(a), a defendant in a criminal jury trial must still make a motion for judgment of acquittal to preserve the issue of the sufficiency of the evidence for appeal.

State v. Scutchings 2009 ND 8
Docket No.: 20080125
Filing Date: 2/3/2009
Case Type: Appeal - Criminal - Misc. Felony
Author: VandeWalle, Gerald

Highlight: A prosecutor's comment during closing arguments that the government's evidence is uncontradicted or unrebutted is improper if the only person who could have rebutted the evidence was the defendant testifying on his or her own behalf, and the defendant has chosen not to testify at the trial.

State v. Walstad (Consolidated w/20080272 & 20080273) 2009 ND 7
Docket No.: 20080271
Filing Date: 2/3/2009
Case Type: Appeal - Criminal - Drugs/Contraband
Author:

Highlight: The district court's order denying defendant's motion for credit for time spent in custody is summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (2).

State v. Vick 2009 ND 6
Docket No.: 20080176
Filing Date: 2/3/2009
Case Type: Appeal - Criminal - Theft
Author: Per Curiam

Highlight: The district court's second amended judgment denying defendant's motion for additional credit for time spent in custody is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Geray v. Bertsch 2009 ND 5
Docket No.: 20060173
Filing Date: 2/3/2009
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: The district court's memorandum opinion and order denying defendant's motion to vacate is summarily affirmed under N.D.R.App.P. 35.1(a)(4), and plaintiff's request for attorney's fees on appeal is denied under N.D.R.App.P. 38.

Pribyl v. State 2009 ND 4
Docket No.: 20080185
Filing Date: 2/3/2009
Case Type: Appeal - Civil - Post-Conviction Relief
Author:

Highlight: Order denying an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Huffling 2009 ND 3
Docket No.: 20080151
Filing Date: 2/3/2009
Case Type: Appeal - Criminal - Theft
Author: Per Curiam

Highlight: If a sentence imposed by a trial court is within the range authorized by statute, this Court does not have the power to review the discretion of the sentencing court.

State v. Cahoon 2009 ND 2
Docket No.: 20080173
Filing Date: 2/3/2009
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author:

Highlight: Judgment entered upon a jury verdict finding appellant guilty of violating a disorderly conduct restraining order is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Adoption of E.H.L. (CONFIDENTIAL) 2009 ND 1
Docket No.: 20080167
Filing Date: 2/2/2009
Case Type: Appeal - Civil - Adoption
Author:

Highlight: Judgment terminating father's parental rights and granting grandparents' petition to adopt the child is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Voigt v. State 2008 ND 236
Docket No.: 20080157
Filing Date: 12/31/2008
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Kapsner, Carol

Highlight: A party seeking to bring a claim against the State or its employees must strictly comply with the requirements of N.D.C.C. 32-12.2-04(1).
Statements made during a legislative proceeding are absolutely privileged.

Disciplinary Board v. Karlsen (Consolidated w/ 20080295) 2008 ND 235
Docket No.: 20080294
Filing Date: 12/23/2008
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer disbarred.

Clark v. State (Cross-reference w/20030238) 2008 ND 234
Docket No.: 20080122
Filing Date: 12/18/2008
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: The law does not require that an evidentiary hearing be held on an application for post-conviction relief when the parties do not request a hearing.
New counsel on appeal inherits the strategies of prior counsel.
A court does not second-guess matters of trial strategy.

Gustafson v. Gustafson 2008 ND 233
Docket No.: 20080109
Filing Date: 12/18/2008
Case Type: Appeal - Civil - Divorce - Property
Author: Sandstrom, Dale

Highlight: When an award of spousal support is reversed, the party paying is entitled to restitution for any amount paid since entry of the district court judgment, unless it would be inequitable.
An owner of real property does not need to possess special knowledge or further qualification to testify to the property's value.

State v. Lium (cross ref with 20070135) 2008 ND 232
Docket No.: 20080100
Filing Date: 12/16/2008
Case Type: Appeal - Criminal - Assault
Author: Maring, Mary

Highlight: A defendant moving to withdraw his guilty plea before sentencing bears the burden of establishing a fair and just reason exists.
Among the factors that a district court may consider in determining whether a fair and just reason exists to withdraw a guilty plea before sentencing are: (1) the amount of time that has passed between the entry of the plea and the motion to withdraw; (2) defendant's assertion of innocence or a legally cognizable defense to the charge; (3) prejudice to the government; (4) whether the plea was knowing and voluntary; (5) whether the plea was made in compliance with Rule 11, N.D.R.Crim.P.; (6) whether adequate assistance of counsel was available to the defendant; (7) the plausibility of the reason for seeking to withdraw; (8) whether a plea withdrawal would waste judicial resources; and (9) whether the parties had reached or breached a plea agreement.

City of Minot v. Rudolph 2008 ND 231
Docket No.: 20080135
Filing Date: 12/16/2008
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Kapsner, Carol

Highlight: Home rule charters permit cities to enact certain ordinances which differ from state laws.
Within the scope of statutory authorization, a home rule city's charter and the ordinances made under the charter supersede, within the territorial limits and other jurisdiction of the city, laws of the state in conflict with the charter and ordinances and must be liberally construed for such purposes.
If the requirements to supersede state law are not met, a home rule city's powers are those bestowed by the legislature on all municipalities.

State v. Salter 2008 ND 230
Docket No.: 20080080
Filing Date: 12/16/2008
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Kapsner, Carol

Highlight: A driver's consent to chemical testing is implied if the statutory implied consent provisions have been met, and a driver must affirmatively refuse to submit to testing to withdraw the consent.

Serr v. Serr (Cross-Ref w/20070231) 2008 ND 229
Docket No.: 20080188
Filing Date: 12/16/2008
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: To determine whether parents have equal physical custody of a child for purposes of applying child support guidelines, the actual language of the judgment controls.

State v. Moos (Consolidated w/20080048) 2008 ND 228
Docket No.: 20080047
Filing Date: 12/16/2008
Case Type: Appeal - Criminal - Misc. Felony
Author: VandeWalle, Gerald

Highlight: The Blockburger "same elements" test, used to determine whether two crimes constitute the same offense for purposes of double jeopardy, is merely a canon of statutory construction and is not controlling if the legislative intent is clear from the face of the statute or the legislative history.
Multiple convictions and punishments are not permitted for the same conduct under the theft by deception, forgery or counterfeiting, and deceptive writings statutes.
Although the State has the burden of proving the appropriate amount of restitution, the defendant has the burden to raise and prove an inability to pay the restitution ordered.
A motion for a new trial based upon newly discovered evidence will be granted only if the new evidence is of such a nature that it would probably produce an acquittal upon retrial.

State v. Roth 2008 ND 227
Docket No.: 20080060
Filing Date: 12/16/2008
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Maring, Mary

Highlight: A defendant's probation can be revoked if he violates the conditions of probation while incarcerated or on parole on other charges.