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 .
Hagen v . North Dakota Insurance Reserve Fund , 2022 ND 53 . Filed 3-17-22 .
The North Dakota Insurance Reserve Fund ( NDIRF ) appealed from a judgment and orders granting Hagen ’ s amended petition for a writ of mandamus requiring NDIRF to disclose documents under open records law . On appeal , NDIRF argued , in part , it was not a public entity subject to open records law .
In a 3-2 decision , the Supreme Court held that NDIRF , which is a nonprofit corporation organized as a government self-insurance pool , constituted a public entity for purposes of open records laws . The Supreme Court reasoned , in part , that NDIRF and its insureds enter into a relationship created by law or contract whereby oneparty delegates the transaction of some lawful business to another and , under N . D . C . C . 44-04-17.1 ( 13 )( b ), NDIRF is an agency of its participating political subdivisions . Justices Crothers and McEvers dissented on the conclusion NDIRF was a public entity for purposes of open records law . The dissent argued NDIRF is not an agency of any political subdivision , but instead , is a nonprofit corporation created under the authority of statute to provide pooled insurance coverage to member governmental entities . Additionally , the dissent argued NDIRF was not created to exercise public authority or perform governmental functions but instead exists to provide insurance coverage .
City of Jamestown v . Kastet , 2022 ND 40 . Filed 2-18-22 .
Kastet was charged with simple assault . During the trial , Kastet testified the victim approached him in a bar and they agreed to go outside to fight . Kastet testified , he felt intimidated and punched the victim , because he didn ’ t want to be punched first . The district court denied Kastet ’ s request for a consent jury instruction , finding consent does not apply when the assault occurs in a public space and violates the public peace . The Supreme Court reversed , holding even if the crime is an offense against the public , a defendant may assert a legal defense if there is evidence to support it . Because the legislature has not prohibited the use of the consent defense for offenses against the public or which violate the public peace and the facts support the defense , it should have been given .
The district court also denied Kastet ’ s request for a self-defense instruction , finding Kastet could have walked away and his subjective belief that striking the victim first was unreasonable . The Supreme Court held if there is evidence to support a self-defense claim , a defendant is entitled to an instruction on it . This is a subjective standard of reasonableness , meaning the fact-finder must view the circumstances from the standpoint of the defendant to determine if they are sufficient to create , in the defendant ’ s mind , an honest and reasonable belief the use of force is necessary to protect himself from imminent harm .
State v . Samaniego , 2022 ND 38 . Filed 2-18-22 .
For years , some district courts have included the county in which the crime is alleged to have occurred as one of the essential elements of the crime . This practice led to debates about whether the county in which the crime occurred is actually an element of the offense . See State v . Spillum , 2021 ND 25 . Samaniego seems to end this question , holding that although the district court instructed the jury to determine if the offense occurred in Cass County , the location of the conduct is not an essential element of the offense . The location of the crime relates to the appropriate venue for the trial of the offense but is not an element that State needs to prove .
State v . Davis , 2022 ND 30 . Filed 2-18-22 .
The Confrontation Clause bars the admission of out of court testimonial statements against a criminal defendant unless the witness is unavailable and the defendant has had a prior opportunity to examine the witness . Although codified in N . D . R . Ev . 804 ( b ) ( 6 ), this case is the first time the Supreme Court addressed an exception to the confrontation right under the doctrine of forfeiture by wrongdoing . The defendant may forfeit both constitutional and hearsay objections if the defendant ’ s conduct caused the declarant ’ s unavailability . The forfeiture by wrongdoing doctrine applies when : ( 1 ) the declarant is unavailable ; ( 2 ) the defendant engaged in wrongful conduct ; ( 3 ) the wrongful conduct procured the unavailability of the witness ; and ( 4 ) the defendant intended to procure the unavailability of the witness .
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 .
20 THE GAVEL