Lapp v. N.D. Dep't of Transportation, 2001 ND 140 In determining whether an officer had a reasonable and articulable suspicion to justify an investigatory stop, the test is whether a reasonable person in the officer's position would be justified by some objective manifestation in suspecting potential criminal activity. Community caretaking justifies law enforcement contact without reasonable suspicion of unlawful conduct.
July 23, 2001
Rodenburg v. Fargo-Moorhead Y.M.C.A., 2001 ND 139 In reviewing a jury's findings, the evidence is viewed in the light most favorable to the verdict and the court determines only if substantial evidence supports it. A motion for a new trial is addressed to the sound discretion of the trial court. If nonresidents purposely direct their activities toward North Dakota, a North Dakota court may be justified in exercising personal jurisdiction over them. Under North Dakota's comparative fault law, "fault" includes negligent and intentional conduct; a negligent tortfeasor's conduct is compared with an intentional tortfeasor's conduct, and their liability is several, not joint, with each being liable only for the amount of damages attributable to that party.
July 20, 2001
Interest of R.O., 2001 ND 137 In a parental-rights-termination proceeding alleging reports of child abuse or neglect, N.D.C.C. 50-25.1-10 abrogates the physician-patient and psychotherapist-patient privilege in N.D.R.Ev. 503. Constitutional issues may not be raised for the first time on appeal. Under federal law, upon a finding of good cause, a trial court may order disclosure of information about a person's alcohol or drug treatment at a federally assisted facility, but the court must restrict disclosure to essential matters. Kraft v. N.D. State Board of Nursing, 2001 ND 131 An agency's findings of fact are reviewed to determine if a reasoning mind reasonably could have determined the findings were proven by the weight of the evidence from the entire record. A registered nurse's refusal to submit to chemical testing, as required by employer policy, violates nursing standards. A registered nurse's conviction for simple assault, without evidence of rehabilitation, violates nursing standards and relates adversely to the practice of nursing. After participating in an adjudicative hearing in a position adversarial to the claimant, an agency's counsel improperly communicates with the agency if the communications regarding an issue in the proceeding are without notice and opportunity for all parties to participate. Selzler v. Selzler, 2001 ND 138 A court, for good cause, may excuse a custody investigator from attending the entire proceedings, but only if the court makes reasonable accommodations to preserve the parties' right to examine the investigator in light of all of the testimony given. The credibility of witnesses, including expert witnesses, and the weight to be given their testimony are questions of fact subject to the clearly erroneous standard of review. A presumption against awarding custody to a parent who has sexually abused a child arises if the abuse resulted in serious bodily injury, involved the use of a dangerous weapon, or constituted a pattern within a reasonable time proximate to the proceeding. State v. Heitzmann, 2001 ND 136 There is no automatic-search rule for companions of an arrestee. If an outside clothing pat-down search reveals the presence of an object of a size and density that reasonably suggests the object might be a weapon, the searching officer is entitled to continue the search to the inner garments where the object is located in order to determine whether the object is in fact a weapon. A more intrusive Terry search may be constitutionally permissible when the detainee attempts to prevent an officer from performing an effective pat-down. Officers are entitled to use the forcible means reasonably necessary to effectuate the detentive goals of investigation, maintenance of the status quo, or officer safety. State v. Holte, 2001 ND 133 It is an affirmative defense to the strict liability crime of violating a domestic violence protection order that the defendant's acts were innocent or mistaken. State v. Kelly, 2001 ND 135 Inmate disciplinary proceedings and the resulting consequences are civil in nature. Erroneously admitted evidence that is cumulative to other properly admitted evidence is not prejudicial, does not affect substantial rights of the parties, and is harmless error. State v. Miller, 2001 ND 132 A trial court does not abuse its discretion or violate the defendant's right to present a defense when it excludes hearsay evidence about a dream the child-victim had about another male relative. A trial court does not abuse its discretion when it excludes evidence which would have been merely cumulative of abundant other evidence establishing a fact. As long as the defendant and witness are present in the courtroom and their view of each other is not physically obstructed, the Confrontation Clause is not violated by allowing the witness to testify while facing away from the defendant.
July 13, 2001
Interest of P.M., 2001 ND 129 Juvenile court's order terminating parental rights summarily affirmed under N.D.R.App.P. 35.1(a)(7). Matrix v. TAG Investments, 2001 ND 128 Post-judgment orders summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (7), and double costs awarded under N.D.R.App.P. 38 and 39. US Bank v. Arnold, 2001 ND 130 Whether a telephone call is an appearance entitling a defendant to eight days' notice before a hearing on an application for default judgment is generally a question of law, fully reviewable on appeal. When the nature, content, and purpose of the call is disputed, underlying factual questions are reviewed for clear error. Relief from default judgment is extraordinary; a party seeking to disturb the finality of default judgment bears a heavy burden of proving the district court abused its discretion. To vacate default judgment, the moving party must present evidence connecting allegations of a medical condition, a busy schedule, or familial illness with excusable neglect.
July 10, 2001
Anderson v. Meyer Broadcasting Co., 2001 ND 125 An employee alleging age discrimination under the North Dakota Human Rights Act must establish she is at least forty years old and persons under forty years old were treated more favorably. An employee alleging disparate treatment sex discrimination under the Human Rights Act must identify specific instances in which persons situated similarly in all relevant aspects were treated differently. An employee alleging retaliatory discharge bears the burden of showing she engaged in protected activity, her employer took adverse action against her, and there was a causal connection between her protected activity and the employer's adverse action. Berg v. Dakota Boys Ranch Ass'n, 2001 ND 122 If summary judgment is denied, the proper procedure is to move for judgment as a matter of law at the close of the evidence, and the denial of that motion may be reviewed on appeal. A party raising an argument in a summary judgment motion but abandoning the argument at trial has not preserved the issue for appellate review. A trial court does not err in admitting a release into evidence if the release was offered for a purpose other than proving liability or the amount of the claim. Braunagel v. City of Devils Lake, 2001 ND 118 Although declaratory and injunctive relief are available to challenge a city's failure to comply with the statutory requirements for annexation of property, they may not be used to test the wisdom of the annexation decision. Government regulation of land use constitutes a "taking" for public use only when the owner has been deprived of all or substantially all reasonable uses of the property. Flattum-Riemers v. Peters-Riemers, 2001 ND 121 A request for district court review of a judicial referee's findings and order need not specifically recite every issue raised before the referee to preserve those issues for appellate review. A trial court may allow the filing of affidavits and documents less than 24 hours before a hearing. Denial of a continuance because of the absence of a material witness is proper when the moving party does not show what the witness would testify to if present, or that the facts desired cannot be proven by other available witnesses, and when there is no showing of diligence to secure the testimony of the witness by deposition or personal appearance at trial. Heyen v. State, 2001 ND 126 An application for post-conviction relief is denied if the same claims have been fully and finally determined in a previous post-conviction proceeding. It is a misuse of process to raise issues in a subsequent post-conviction application which could have been raised in the initial application. Hoverson v. Hoverson, 2001 ND 124 Economic misconduct requires misconduct which results in waste of marital assets or reduction of the net marital estate. A trial court must provide sufficient explanation for its property distribution to permit a reviewing court to determine the basis for its distribution. In calculating an obligor's deduction from net income for tax obligations, a hypothetical federal income tax obligation specified in the child support guidelines must be used.. Interest of T.K., 2001 ND 127 Parents' fundamental and natural rights to their children are of constitutional dimension, but they are not absolute, and parents must at least provide care to their children that satisfies the minimum community standards. When the mental and physical health of a child are the concerns, it is not enough that a mother indicates a desire to improve, and her failure to cooperate with social service assistance programs is a relevant factor in terminating parental rights. Myer v. Rygg, 2001 ND 123 A trial court's decision on qualification of a witness as an expert will not be reversed on appeal unless it was an abuse of discretion. If an expert's knowledge, training, education, and experience will assist the trier of fact, the expert need not be a specialist in a highly particularized field or have a formal title or particular license. The trial court has wide discretion to determine an appropriate sanction for violation of discovery rules. State v. Jensen, 2001 ND 117 Criminal convictions for driving under revocation, driving under the influence, and false report to law enforcement summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4). State v. Schneeweiss, 2001 ND 120 Defendants have the right to court-appointed counsel at public expense in all felony cases and in all non-felony cases, unless the sentence upon conviction will not include imprisonment, only if they are eligible under the guidelines governing indigency. Non-indigent defendants also have the right to court-appointed counsel, at their own expense, if they are unable to secure the assistance of counsel. A trial court has discretion to substitute appointed counsel if a defendant shows good cause for the substitution. A trial court has discretion to determine whether to grant a continuance of trial to change counsel and may consider the time required for trial preparation and the diligence of the moving party. Defendants may voluntarily waive their right to counsel, or their conduct may be the functional equivalent of a voluntary waiver, but the waiver must be made knowingly and intelligently. Tweit v. Erickson, 2001 ND 119 Amended divorce judgment summarily affirmed under N.D.R.App. 35.1(a)(2) and (4).