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.
Gonzalez v. State, 2025 ND 109. Filed on 6 / 5 / 25.
In 2004, Gonzalez pled guilty to two counts of gross sexual imposition and was sentenced. In 2005, the court revoked Gonzalez’ s probation and resentenced him to five years on each count, concurrently, with all but 30 months suspended with five years of probation. In 2014, his probation was revoked and he was resentenced to 20 years on each count, to be served concurrently. In 2023, he was resentenced to five years on each count, to be served consecutively. In 2024, he was resentenced to five years on each count, concurrently, with credit for time served of six years, six months, and 153 day. On appeal, Gonzalez argued his 2005 sentence was illegal. He did not challenge the underlying conviction, only that the sentence was illegal.
The Court found that Gonzalez’ s 2005 sentence had been previously revoked and therefore is no longer in effect. The only sentence against him was the 2024 sentence. The Court determined Gonzalez had completed his term of imprisonment under the 2024 sentence and that sentence did not include a term of probation. Generally, attacking an expired sentence is moot, unless some sort of collateral consequence remains. Gonzalez argued he still suffered from collateral consequences, including to his employment prospects and housing options. The Court disagreed and found Gonzalez’ s conviction, rather than his sentence, likely has collateral consequences. Further, as he is currently serving a Federal sentence, any alleged collateral consequences are remote and speculative. The Court also dismissed Gonzalez’ s argument his credit for time served was inaccurately calculated. Because the term of imprisonment was completed, the calculation for time served was academic and irrelevant. The Court concluded without an actual case or controversy, this appeal presented a request for an advisory opinion. The Court concluded the appeal was therefore moot and dismissed the appeal.
Liquid Hospitality v Bd. of City Commissioners of the City of Fargo, 2025 ND 136. Filed on 7 / 31 / 2025.
Liquid Hospitality operates a liquor establishment in Fargo under a city-issued liquor license subject to Fargo Municipal Code §
25-1509.2. The ordinance prohibits serving, selling, or allowing the consumption of alcoholic beverages by any person who is, or has become, intoxicated or impaired.
On August 18, 2023, staff at the bar removed an intoxicated patron from the premises. Shortly after leaving, the patron drove away and was involved in an accident. Her blood-alcohol concentration was 0.291. Following the incident, the Fargo Police Department investigated whether the bar had overserved the patron. Reviewing surveillance footage, officers observed the patron consumed at least five drinks, danced in an exaggerated and slower manner, rested her head on the stage, appeared to pass out at a table, and ultimately needed assistance to walk out of the building.
Based on this evidence, the Fargo Liquor Control Board determined the bar had violated § 25-1509.2 by serving an obviously intoxicated patron. The board recommended a $ 500 administrative penalty. The bar appealed to the Fargo City Commission. After a hearing, the city commission unanimously upheld the Liquor Control Board’ s finding, concluding the establishment had served alcohol to a person who had become“ overly intoxicated” in violation of the ordinance. The bar then appealed to the district court.
Following a hearing, the district court sua sponte requested additional briefing on the constitutional question regarding whether § 25- 1509.2 was void for vagueness. The court concluded the ordinance failed to define the terms“ intoxicated” or“ impaired” clearly enough to provide fair notice of prohibited conduct, and it reversed the city commission’ s decision.
On appeal, the North Dakota Supreme Court reversed the district court. The Court held that because the ordinance imposes only civil penalties and does not implicate fundamental constitutional rights, it is subject to a less stringent vagueness standard. Applying that test, the Court concluded § 25-1509.2 clearly prohibits serving alcohol to persons who are intoxicated or impaired and provides objective indicators for determining when a person is“ obviously intoxicated or impaired.” A reasonable person, the Court explained, can readily understand and apply those standards. Accordingly, the ordinance was not unconstitutionally vague.
The Supreme Court also found the city commission’ s decision was
Scott O. Diamond is a judicial referee for the East Central Judicial District of North Dakota.
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.
22 THE GAVEL