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 .
Crichlow v . Andrews , 2023 ND 45 . Filed 3 / 16 / 23 .
Andrews appealed a divorce judgment dividing the marital estate between his ex-wife , Crichlow , and him . The Court held the district court committed clear error by including , in the marital estate , the value of Andrews ’ financial accounts opened after the agreed-upon valuation date . The district court valued the marital estate as of August 28 , 2020 , the date Andrews was served with the summons , but included as part of the marital estate three financial accounts he opened after being served with the summons . Under N . D . C . C . § 14-05-24 ( 1 ), the valuation date for marital property and debt is the date mutually agreed upon by the parties . The Court held the district court does not have discretion to include property acquired after the valuation date in valuing the marital estate . The Court concluded there was no evidence Andrews was concealing assets , and there was no evidence Andrews opened the accounts before the valuation date . The Court held the district court ’ s inclusion of the new accounts was induced by an erroneous view of the law and reversed and remanded with instructions consistent with the Court ’ s decision .
State v . Tompkins , 2023 ND 61 . Filed 3 / 31 / 23 .
The defendant appealed his convictions for driving under the influence and actual physical control on the basis the jury instructions allowed the jury to convict the defendant without unanimously agreeing as to the singular act the defendant committed . The issue on appeal was whether the offense of being in actual physical control while under the influence of intoxicating liquor and the offense of refusing to submit to a chemical test are separate and distinct offenses . The court held they are separate offenses and the district court erred by allowing the jury to convict the defendant without unanimously agreeing to a singular criminal act . The Court remanded for a new trial .
Wrigley v . Romanick , et al ., 2023 ND 50 . Filed 3 / 24 / 23 .
The Red River Women ’ s Clinic ( RRWC ) obtained an injunction to prevent the enforcement of N . D . C . C . § 12.1-31-12 , which criminalizes abortion . The state requested a supervisory writ , arguing the preliminary injunction should be vacated . The Supreme Court found this issue was of vital concern regarding a matter of important public interest and chose to exercise its supervisory jurisdiction to review the injunction .
The Court began with the question of whether there is a fundamental right to an abortion under the state constitution . In a 2014 case , this same issue was before the Court , but the Court was unable to reach a majority on that issue or the constitutionality of N . D . C . C . § 12.1-31-12 . The Court reviewed other state ’ s cases where the state constitutions provide for a fundamental right to abortion , as well as North Dakota ’ s history , traditions , state constitution , laws before and after statehood , and early medical journals from the time of statehood . The Court found , “ after review of North Dakota ’ s history and traditions , and the plain language of article I , section 1 of the North Dakota Constitution , it is clear the citizens of North Dakota have a right to enjoy and defend life and a right to pursue and obtain safety , which necessarily includes a pregnant woman has a fundamental right to obtain an abortion to preserve her life or her health .”
Because the North Dakota Constitution provides a fundamental right to receive an abortion to preserve a pregnant woman ’ s life or health , the constitutionality of N . D . C . C . § 12.1-31-12 must be analyzed under the strict scrutiny standard . The Court found the statute was not narrowly tailored as it unnecessarily infringed on a woman ’ s fundamental right to seek an abortion to preserve her life or health and could not withstand strict scrutiny . The Court held that N . D . C . C . § 12.1-31-12 is unconstitutional and RRWC has a substantial likelihood of succeeding on the merits of its case with respect to life or health preserving abortion . The Court denied the requested relief and left the preliminary injunction in place . Justice Tufte wrote a concurrence regarding the application of self-defense law related to an abortion . Justice McEvers wrote a concurrence explaining how and why the rights protected under the North Dakota Constitution may be broader than those protected under the United States Constitution .
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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