North Dakota Supreme Court Highlights
By Scott O . Diamond , Joshua A . Swanson , and Ian McLean
Authors ’ Note and Caveat : The following cases of interest were recently decided by the North Dakota Supreme Court . Because the following contains the authors ’ summary of the decisions , the reader is encouraged to read the entire published decision to determine its precedential value , if any , in any given case .
Rekow v . Durheim , 2022 ND 177 . Filed 10 / 4 / 22 .
The Supreme Court reversed a disorderly conduct restraining after finding the district court abused its discretion in granting the order . For purposes of this order , the Court defined disorderly conduct as “ intrusive or unwanted acts , words , or gestures that are intended to adversely affect the safety , security , or privacy of another person .” The Court noted it is not enough “ that the petitioner wants the other person out of the petitioner ’ s life .” Instead , the petitioner must show the specific unwanted acts that are intended to affect the safety , security , or privacy of the petitioner . The Court also noted the district court is required to find the facts specially and state its conclusions of law separately , under N . D . R . Civ . P . 52 . The Court found the district court failed to make any specific findings concerning Durheim ’ s intent . The Court found the district court ’ s finding that Rekow asked Durheim two or three times to leave the property may constitute a trespass , but did not explain how Durheim ’ s conduct affected Rekow ’ s safety , security , or privacy or that the conduct was intended to do so . As a result , the Supreme Court concluded the district court abused its discretion when it issued the disorderly conduct restraining order and reversed .
James Hendrix , et al . v . Alvin A . Jaeger , 2022 ND 168 . Filed 9 / 7 / 22 .
The Secretary of State rejected more than 29,000 signatures on circulated petitions for a term limits initiative , which would impose term limits on the governor and members of the legislative assembly , and concluded the initiative did not qualify for placement on the November 2022 general election ballot . The chairman of the sponsoring committee filed a petition for a writ of mandamus requiring the Secretary of State to place the term limits initiative on the November 2022 ballot .
The initiative required 31,164 signatures to be placed on the November 2022 ballot . The Secretary of State received 1,441 petition packets containing 43,366 signatures . The Secretary of State then found that 29,101 of the signatures were invalid and , as a result , the initiative failed to reach the required number of valid signatures . The Secretary of State determined that 751 of the petitions notarized by one person contained 21,684 signatures , 5,944 of which were deficient for other reasons and 15,740 of which were otherwise “ valid ” but were disqualified solely on the basis of the person notarizing the affidavit . Effectively , the Secretary of State imputed fraud from several inconsistent signatures of circulators on several affidavits sworn to before the notary public , and as a result , disqualified all 15,740 signatures notarized by the individual notary public .
The Supreme Court granted the committee ’ s petition and issued a writ of mandamus requiring the Secretary of State to place the Term Limits Initiative on the November 2022 ballot . The Supreme Court concluded the Secretary of State misapplied the law by excluding signatures on the basis of a determination that a pattern of likely notary violations on some petitions permitted the invalidation of all signatures on all petitions sworn before the same notary . The Supreme Court stated it could find no precedent supporting invalidation of a class of documents notarized by an individual notary on the basis of imputing fraud relating to some of the documents .
Newfield Expl . Co . v . State ex rel . N . Dakota Bd . of Univ . & Sch . Lands , 2022 ND 166 . Filed 9 / 1 / 2022 .
The State of North Dakota , through the Board of University and School Lands , appealed the district court ’ s judgment dismissing its claim against Newfield Exploration Company for the underpayment of gas royalties . The Court reversed and remanded the case to the district court , holding the district court improperly dismissed the state ’ s claim because the existence of a contract with the operator was not an element of any claim made by the state related to Newfield ’ s underpaying royalties under N . D . C . C . § 47-16-39.1 .
The Court had previously reversed the district court in the same case – in Newfield Expl . Co . v . State ex rel . N . Dakota Bd . of Univ . & Sch . Lands , 2019 ND 193 , 931 N . W . 2d 478 – holding the district court erred in granting Newfield ’ s motion for summary judgment as to whether the operator was allowed to deduct certain post-production
Scott O . Diamond is the owner of Diamond Law Firm in Fargo where he practices municipal law , criminal law , and general litigation .
Joshua A . Swanson is a shareholder at Vogel Law Firm in Fargo where he practices energy law , construction and property law , and general litigation .
Ian McLean is a shareholder at Serkland Law Firm in Fargo where he practices in commercial litigation , municipal and education law , and criminal law .
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