the probationer was incarcerated for aggravated assault, the parolee’s
conditions of parole included a search clause, and law enforcement
officers had reasonable suspicion that the parolee’s cell phone
contained communications between the parolee and a victim of his
aggravated assault. The Court further stated conditions of parole may
apply when a person is incarcerated and until such time as parole is
terminated or revoked.
Rustad v. Baumgartner,
2020 ND 126. Filed 6-2-20.
In this child custody and support action, the Supreme Court held
that upon remand to district court, by the appellate court, the
mandate rule is a more specific application of the law of the case
doctrine, and requires the trial court to follow the pronouncement of
an appellate court, in subsequent legal proceedings of the case in the
district court, and to scrupulously and expressly carry the appellate
court’s mandate into effect according to its terms. In this writer’s
opinion, that means the district court is not permitted to consider or
decide issues other than those expressly contained in the appellate
court’s Order of Remand.
Dale Exploration, et. al. v. Hiepler, et. al.,
2020 ND 140. Filed 6-29-20.
In this oil and gas case, the Supreme Court stated that under the
“law of the case doctrine,” a party cannot relitigate issues in a second
appeal which were resolved in the first appeal or which would have
been resolved had they been properly presented in the first appeal.
This writer notes this is not the sole application of the “law of the
case doctrine” in North Dakota. The doctrine can also apply to
preclude review in the first appeal in an action, of an issue that is
not raised and preserved for review, during the trial of the action.
Moreover, the doctrine is also used to limit application of a ruling or
action of a trial court, to only that particular case, and not as binding
legal precedent for other actions, particularly when the ruling in the
case is not consistent with established state, common, or statutory
law.
appeal to the district court, the individual did not argue the implied
consent advisory was incorrect for that reason, rather, he argued the
implied consent was incorrect because it omitted the phrase “directed
by the law enforcement officer.”
The Supreme Court held that the NDDOT properly admitted the
toxicology report into evidence and because the individual did not
raise the same issue on appeal to the district court that he did at the
administrative hearing level, that issue was precluded from review by
the district court. Therefore, the Supreme Court reversed the decision
of the district court and reinstated the NDDOT license suspension.
Wisnewski v. Wisnewski,
2020 ND 148. Filed 6-29-20.
In this domestic relations case, the North Dakota Supreme Court
stated that N.D.C.C. § 14-09-29(2), which provides that if a
parent who does not have residential responsibility of a child has
perpetrated domestic abuse and there exists one incident of domestic
violence which resulted in serious bodily injury or involved the use
of a dangerous weapon or a pattern of domestic violence, the Court
shall only allow supervised parenting time with the abusing parent
unless there is a showing by clear and convincing evidence that
unsupervised parenting time would not endanger the child’s physical
or emotional health. In concluding the district court erred in finding
the presumption (against unsupervised parenting time) was rebutted
by the parent who did not have residential responsibility, the Supreme
Court stated the absence of physical abuse of a child, non-use of
substances at the time of a domestic violence incident, or subsequent
treatment for the substance use does not rebut the presumption nor
does the passage of time alone rebut the presumption. Therefore, the
Supreme Court stated the district court clearly erred in awarding
unsupervised parenting time to the parent without residential
responsibility who committed the domestic violence. The Supreme
Court reversed and remanded for the district court to establish a
parenting plan that incorporates supervised parenting for that parent.
Grove v. NDDOT,
2020 ND 146. Filed 6-29-20.
In this case involving the suspension of an
individual’s driving license privileges by the
North Dakota Department of Transportation
(NDDOT), the NDDOT appealed from
a district court judgment reversing the
administrative hearing officer’s decision
suspending the person’s driver’s license,
because the district court based its decision on
an issue that the individual failed to preserve
for appeal. At the administrative hearing,
the individual argued the implied consent
advisory read to him was incorrect because
the stated North Dakota law required him
to submit to a chemical breath or urine test
rather than a chemical test. However, on
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