New opinions: June 29
State v. Harstad 2020 ND 151 Docket No.: 20190400 Filing Date: 6/29/2020 Case Type: THEFT Author: Jensen, Jon J.
Highlight: A district court abused its discretion awarding restitution for damages that were not directly related to the criminal conduct.
Zundel v. Zundel, et al. 2020 ND 150 Docket No.: 20190334 Filing Date: 6/29/2020 Case Type: OTHER (Civil) Author: Crothers, Daniel John
Highlight: A district court judgment finding a bill of transfer is void as a result of undue influence is not clearly erroneous.
The court did not abuse its discretion by quashing a post-trial subpoena.
Issues raised for the first time on appeal will not be considered.
State v. Kuntz 2020 ND 149 Docket No.: 20190365 Filing Date: 6/29/2020 Case Type: MISC. STATUTORY OFFENSE (FELONY) Author: Per Curiam
Highlight: A district court’s order for restitution is summarily affirmed under N.D.R.App.P. 35.1(a)(4).
Wisnewski v. Wisnewski 2020 ND 148 Docket No.: 20190209 Filing Date: 6/29/2020 Case Type: CHILD CUST & SUPPORT (Div.\Other) Author: McEvers, Lisa K. Fair
Lavallie v. Jay, et al. 2020 ND 147 Docket No.: 20190402 Filing Date: 6/29/2020 Case Type: PERSONAL INJURY Author: VandeWalle, Gerald W.
Highlight: Issues related to subject matter jurisdiction can be raised at any time and cannot be waived. As a general rule, it is presumed that North Dakota district courts have subject matter jurisdiction, and the party challenging the district court’s subject matter jurisdiction bears the burden of proving the district court lacks subject matter jurisdiction.
Grove v. NDDOT 2020 ND 146 Docket No.: 20200016 Filing Date: 6/29/2020 Case Type: TRANSPORTATION DEPT. Author: VandeWalle, Gerald W.
Highlight: When a party fails to raise an issue at an administrative hearing, the issue is normally precluded from review on appeal. We will reverse a district court’s decision when the basis of the decision was not raised in the administrative hearing. A Report and Notice form containing the results of an on-site screening test or tests may be admitted into evidence at an administrative hearing for the purpose of establishing probable cause.
Highlight: An agency’s reasonable interpretation of a regulation is entitled to deference, and an agency’s decision in complex or technical matters involving agency expertise is entitled to appreciable deference.
The legislature is presumed to be aware of judicial construction of a statute, and from its failure to amend a particular statutory provision, it is presumed the legislature acquiesces in that construction.
An agency’s permitting decision is entitled to greater deference than a decision after an adjudicative proceeding, and the final permitting decision is reviewed on appeal to determine whether it is arbitrary, capricious or unreasonable.
A decision is arbitrary, capricious, or unreasonable if it is not the product of a rational mental process by which the facts and the law relied upon are considered together for the purpose of achieving a reasoned and reasonable interpretation.
State v. Pouliot 2020 ND 144 Docket No.: 20200060 Filing Date: 6/29/2020 Case Type: DUI/DUS Author: Jensen, Jon J.
Highlight: The 2019 amendment to N.D.C.C. § 39-20-01(3)(b) limits the scope of the exclusion of evidence “to proof of refusals” in an “administrative proceeding.”
A district court’s judgment denying a motion to exclude the chemical test results in a criminal proceeding is affirmed.
Franciere v City of Mandan 2020 ND 143 Docket No.: 20200018 Filing Date: 6/29/2020 Case Type: OTHER (Civil) Author: Crothers, Daniel John
Highlight: A judgment granting dismissal based on lack of personal jurisdiction due to insufficient service is modified to dismiss without prejudice, and affirmed as modified.
The district court did not abuse its discretion when it denied a motion to compel discovery when the discovery requests were not related to the issue of personal jurisdiction.
Issues raised for the first time on appeal normally will not be addressed.
Truelove v. State 2020 ND 142 Docket No.: 20190388 Filing Date: 6/29/2020 Case Type: POST-CONVICTION RELIEF Author: Jensen, Jon J.
Highlight: A district court’s order denying an application for post-conviction relief after finding that counsel’s representation was not ineffective was not clearly erroneous.
Kalmio v. State 2020 ND 141 Docket No.: 20200011 Filing Date: 6/29/2020 Case Type: POST-CONVICTION RELIEF Author: Per Curiam
Highlight: Orders denying postconviction relief and a motion to reconsider are summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).
Highlight: Under the law of the case doctrine, a party cannot relitigate issues on a second appeal which were resolved in the first appeal or which would have been resolved if they had been properly presented in the first appeal.
A successor trustee may be substituted as a party in an action after the death of the trustee.
The death of the settlor and trustee of a revocable trust does not preclude a district court from ordering specific performance from trust property.
State v. Blake 2020 ND 139 Docket No.: 20190394 Filing Date: 6/29/2020 Case Type: MISC. STATUTORY OFFENSE (FELONY) Author: Per Curiam
Highlight: A criminal judgment entered after a jury verdict is summarily affirmed under N.D.R.App.P. 35.1(a)(3).
Poole v. State 2020 ND 138 Docket No.: 20200012 Filing Date: 6/29/2020 Case Type: POST-CONVICTION RELIEF Author: Per Curiam
Highlight: A district court’s order dismissing an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(4).
Highlight: A district court judgment affirming an administrative law judge’s order is summarily affirmed under N.D.R.App.P. 35.1(a)(5).
State v. James 2020 ND 136 Docket No.: 20190223 Filing Date: 6/29/2020 Case Type: DRUGS/CONTRABAND Author: Jensen, Jon J.
Highlight: The deprivation of the right to counsel is a structural error. This Court reviews an alleged denial of a defendant’s right to counsel de novo.
Rule 11 (b)(1)(C) of the North Dakota Rules of Criminal Procedure does not extend beyond the procedure for accepting a plea of guilty.
Rule 11(b)(1)(C) of the North Dakota Rules of Criminal Procedure does not impose a duty on the court to inform non-indigent defendant that the court may appoint an attorney to represent him at his own expense if he was unable to retain his own attorney.
Rule 44(a)(3) of the North Dakota Rules of Criminal Procedure permits the court to appoint an attorney to represent a non-indigent defendant at their own expense if they are unable to retain their own attorney.
A defendant knowingly and intelligently waives their right to counsel when they are informed that they will be held to the same standards as an attorney.
Objections to a search warrant cannot be raised for the first time on appeal.
When an issue is not raised in the trial court, even a constitutional issue involving a defendant’s right to confront witnesses, this Court will not address the issue on appeal unless the alleged error rises to the level of obvious error.
Oien v. State 2020 ND 134 Docket No.: 20200030 Filing Date: 6/29/2020 Case Type: POST-CONVICTION RELIEF Author: Per Curiam
Highlight: The denial of a defendant’s application for post-conviction relief for misuse of process is affirmed pursuant to N.D.R.App.P. 35.1(a)(2) and (7).
State v. Bethancorth 2020 ND 133 Docket No.: 20200020 Filing Date: 6/29/2020 Case Type: MISC. STATUTORY OFFENSE (FELONY) Author: Per Curiam
Highlight: A criminal judgment for criminal trespass entered after a jury verdict is summarily affirmed under N.D.R.App.P. 35.1(a)(4).
Kremer v. State 2020 ND 132 Docket No.: 20190408 Filing Date: 6/29/2020 Case Type: POST-CONVICTION RELIEF Author: VandeWalle, Gerald W.
Highlight: To establish prejudice under Strickland in a plea bargain situation, the petitioner must allege facts that, if proven, would support a conclusion that rejection of the plea bargain would have been rational because valid defenses existed, a suppression motion could have undermined the prosecution’s case, or there was a realistic potential for a lower sentence. A defendant’s subjective, self-serving statement that, with competent advice, he would have insisted on going to trial is insufficient to establish prejudice under Strickland in a plea bargain situation. The provisions of N.D.R.Crim.P. 11 are mandatory, and substantial compliance is required to ensure a defendant knowingly and voluntarily enters a guilty plea. Although N.D.R.Crim.P. 11 does not require ritualistic compliance, a court must substantially comply with the rule’s procedural requirements to ensure a defendant is entering a voluntary and intelligent guilty plea.
Avery v. Boysen 2020 ND 131 Docket No.: 20190199 Filing Date: 6/29/2020 Case Type: OTHER (Civil) Author: VandeWalle, Gerald W.
Highlight: A party seeking relief in motions for reconsideration and for new trial has the burden to affirmatively establish the district court abused its discretion denying the motions. The district court has broad discretion over the presentation of evidence and conduct of a trial, in addition to whether to grant a motion for a continuance, and the court’s decision will not be reversed on appeal absent an abuse of discretion.
Brown v. Brown 2020 ND 135 Docket No.: 20190390 Filing Date: 6/29/2020 Case Type: OTHER (Civil) Author: Tufte, Jerod E.
Highlight: A “full hearing” under N.D.C.C. § 14-07.1-02(4) requires a petitioner to prove his or her petition through testimony, rather than affidavits alone.
