Opinions

Sailer, et al. v. Sailer, et al. 2022 ND 151
Docket No.: 20220050
Filing Date: 8/4/2022
Case Type: Appeal - Civil - Child Support
Author: Tufte, Jerod E.

Highlight: A court’s determination that a nonparent did not establish a prima facie case to support an award of nonparent visitation is reviewed de novo.

If the nonparent fails to plead a prima facie case that the nonparent “[i]s a consistent caretaker; or . . . [h]as a substantial relationship with the child and denial of custody or visitation would result in harm to the child,” a court shall dismiss the petition for nonparent visitation.

Sailer, et al. v. Sailer, et al. 2022 ND 151
Docket No.: 20220050
Filing Date: 8/4/2022
Case Type: Appeal - Civil - Child Support
Author: Tufte, Jerod E.

Northwest Landowners Association v. State, et al. 2022 ND 150
Docket No.: 20210148
Filing Date: 8/4/2022
Case Type: Appeal - Civil - Constitutional Law
Author: Tufte, Jerod E.

Highlight: To resolve a facial challenge, we need only interpret the challenged legislation and the relevant constitutional provisions to determine whether there is a conflict.

North Dakota law has long established that surface owners have a property interest in pore space.

Surface owners have a right to compensation for the use of their pore space for disposal and storage operations.

Government-authorized physical invasions of property constitute the “clearest sort of taking” and therefore are a per se taking.

A statute that strips surface owners of their right to possess, use, and exclude others from pore space within their lands and assigns that right to oil and gas operators without surface owners’ consent or compensation is a per se taking.

It is a fundamental principle that a statute may be constitutional in one part and unconstitutional in another part and that if the valid part is severable from the rest, the portion which is constitutional may stand.

42 U.S.C. § 1988 authorizes attorney’s fees to a prevailing challenger of a federal constitutional claim in state court against the state or a state official sued in his or her official capacity regardless of whether §§ 1983 and 1988 are expressly pled in the complaint.

Northwest Landowners Association v. State, et al. 2022 ND 150
Docket No.: 20210148
Filing Date: 8/4/2022
Case Type: Appeal - Civil - Constitutional Law
Author: Tufte, Jerod E.

State v. Pendleton 2022 ND 149
Docket No.: 20210287
Filing Date: 8/4/2022
Case Type: Appeal - Criminal - Homicide
Author: Tufte, Jerod E.

Highlight: Brief sidebars or bench conferences conducted during trial to address routine evidentiary or administrative issues outside the hearing of the jury ordinarily will not implicate the public trial right.

Non-public exchanges between counsel and the court on such technical legal issues and routine administrative problems do not hinder the objectives which the Court in Waller observed were fostered by public trials.

If it would be unreasonable to conclude the defendant’s absence had any effect on the proceedings or the result, such an error is harmless and does not warrant a reversal.

We consider jury instructions as a whole, and determine whether they correctly and adequately inform the jury of the applicable law, even though part of the instructions when standing alone may be insufficient or erroneous.

If juror misconduct is noticed and the criminal defendant does not object or request a mistrial, reversal requires obvious error. We exercise our power to consider obvious error cautiously and only in exceptional situations where the defendant has suffered serious injustice.

This Court has carved out a narrow exception to the general rule that statutes are not retroactive unless expressly declared so by the Legislature when the statute in question involves an ameliorating penal amendment to a criminal statute.

State v. Pendleton 2022 ND 149
Docket No.: 20210287
Filing Date: 8/4/2022
Case Type: Appeal - Criminal - Homicide
Author: Tufte, Jerod E.

Bolinske v. Sandstrom, et al. 2022 ND 148
Docket No.: 20220016
Filing Date: 7/27/2022
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.

Highlight: A person bringing a claim against the state or a state employee for an injury shall present to the director of the office of management and budget within 180 days after the alleged injury is discovered or reasonably should have been discovered a written notice of claim as provided by statute. The district court lacks subject matter jurisdiction absent a timely filing of a notice of claim.

Because a court’s dismissal of claims without prejudice for lack of subject matter jurisdiction is not an adjudication on the merits, the doctrines of claim and issue preclusion do not foreclose a subsequent action to adjudicate those claims. However, claim preclusion prohibits the relitigation of claims or issues that were raised or could have been raised in a prior action between the same parties or their privies and which was resolved by a final judgment on the merits.

Under N.D.R. Lawyer Discipl. 6.5, no lawsuit may be instituted against any complainant or witness in a lawyer disciplinary matter based on their communications to the board and its secretary, district inquiry committees, hearing panels, or counsel relating to lawyer misconduct or disability.

The affirmative defense that the statute of limitations has run must be pled by answer.

An appellate court is a court of review, not of first view.

If a party opposing a summary judgment motion shows by declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) deny the motion; (2) order a continuance to enable declarations to be obtained, depositions to be taken, or other discovery to be undertaken; or (3) issue any other just order.

In civil actions, the court shall award reasonable attorney’s fees to the prevailing party if it finds a claim for relief was frivolous.

Bolinske v. Sandstrom, et al. 2022 ND 148
Docket No.: 20220016
Filing Date: 7/27/2022
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.

Bridges v. State (consolidated w/20220078, 20220079 & 20220086) 2022 ND 147
Docket No.: 20220077
Filing Date: 7/21/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: McEvers, Lisa K. Fair

Highlight: A district court may summarily dispose of an application for postconviction relief if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.

On an application for postconviction relief from a guilty plea claiming an exception to the statute of limitations under N.D.C.C. § 29-32.1-01(3) based on newly discovered evidence, the district court should consider whether the evidence was discovered after the guilty plea, whether the failure to learn about the evidence before the plea was not the result of the defendant’s lack of diligence, and whether the newly discovered evidence is material to what would have been the issues at trial. The court should also determine whether, if proved and reviewed in light of the evidence as a whole, the newly discovered evidence would establish that the petitioner did not engage in the criminal conduct for which the petitioner was convicted.

An application for postconviction relief asserting a new interpretation of law must establish the interpretation is retroactively applicable and must be filed within two years of the date the decision announcing the new interpretation is published.

Bridges v. State (consolidated w/20220078, 20220079 & 20220086) 2022 ND 147
Docket No.: 20220077
Filing Date: 7/21/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: McEvers, Lisa K. Fair