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 .
Energy Transfer LP , et . al . v . ND Private Investigative and Security Board , 2022 ND 84 . Filed 4 / 28 / 22
TigerSwan contracted with Energy Transfer to provide services related to the Dakota Access pipeline . The North Dakota Private Investigative and Security Board commenced administrative proceedings against TigerSwan alleging it provided services in North Dakota without a license . As part of those proceedings , TigerSwan was compelled to disclose documents to the board . Energy Transfer commenced an action seeking an injunction to keep certain documents confidential . Eventually , the district court granted partial summary judgment finding the documents were open records .
Energy Transfer challenged the district court ’ s determination the disputed documents constituted “ records ” because it claimed information must be relevant to public business and used by a public entity to be considered a government record . The Supreme Court disagreed and held the definition of a record does not require a public entity to use the information in a specific way for it to constitute a record . Energy Transfer also argued the board did not receive the documents in connection with “ official ” or “ public ” business . The Supreme Court again disagreed and held that gathering information is a step in the decision-making process of the board and is considered public business .
In the Matter of the Rose Henderson Peterson Mineral trust dated March 26 , 1987 , 2022 ND 92 . Filed 5 / 12 / 22 .
The subject trust consisted of approximately 1,000 mineral acres . The trust had 13 beneficiaries , two of whom also served as the trustees . Between 2011 to 2013 , the trustees paid themselves compensation amounting to either 5 % or 8 % of the trust income . This equated to compensation ranging from roughly $ 46,000 to $ 75,000 , respectively . In 2011 , one of the beneficiaries filed a petition requesting the return of the trustees ’ compensation . In 2013 , the court concluded the trustee ’ s compensation was reasonable under the circumstances .
Thereafter , in the years 2014 to 2019 , the trustees continued to pay themselves compensation of 5 % of the trust ’ s income . However , this equated to compensation ranging from roughly $ 100,000 to more than $ 300,000 . In 2019 , the petitioners brought an action alleging the trustees breached their fiduciary duties by paying themselves unreasonable compensation . The district court found the trustees had breached their fiduciary duties by paying themselves over one million dollars over a six-year period . The trustees appealed , arguing the district court erred by not applying the law of the case doctrine and res judicata . The Supreme Court disagreed and held the law of the case doctrine does not apply in separate actions . As for res judicata , the Supreme Court held the 2013 order did not set out a permanent compensation rate regardless of the circumstances but rather was limited to the circumstances that existed under 2011 to 2013 . However , the Supreme Court did remand for further findings on separate issues .
State v . Yellow Hammer , 2022 ND 106 . Filed 5 / 26 / 22 .
In a case of first impression , the Supreme Court ruled future medical expenses may be awarded as restitution to a crime victim if the amount can be ascertained from the evidence presented at the restitution hearing . The Supreme Court reviewed N . D . C . C . § 12.1-32-08 , as well as the “ Marsy ’ s Law ” constitutional amendment , which guarantees to victims “ the right to full and timely restitution […] for all losses suffered by the victim as a result of the criminal or delinquent conduct .” The Court found the victim ’ s actual losses included anticipated future medical expenses , even if the medical costs had not yet been incurred . The Court also found the district court did not err in accepting a note from the victim ’ s physician stating the future medical costs would be “ approximately $ 95,000 .” The Court noted while the informal nature of the physician ’ s note may not satisfy the evidentiary requirements to be admitted in a trial , the Rules of Evidence did not apply to sentencing proceedings , so the note could be accepted as evidence of the future medical expenses .
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 .
24 THE GAVEL