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.
ND Indoor RV Park v. State, 2025 ND 92. Filed on 5 / 8 / 25.
In June 2020, the North Dakota Department of Health inspected the ND Indoor RV Park and identified several health, safety, and fire code violations. The state informed the park that its operating license would be revoked unless the code violations were fixed. The park informed the state it did not intend to fix the violations, which resulted in the state beginning a license revocation process. The park also requested a renewal of license for 2021. The state denied the request for a 2021 license.
In April 2021, the park filed an administrative complaint on the decision to not renew its 2021 license. A hearing was scheduled for August 2021, but the park then filed a notice of withdrawal of request for hearing and the state dismissed the renewal application and closed the case with prejudice. The park then sold the property to a neighboring landowner. In February 2022, the park filed a complaint against the state alleging a taking, deprivation of substantive and procedural process, and other claims. The state filed a motion for judgment on the pleadings, claiming qualified immunity for the state’ s employees on the due process claims and claiming failure to exhaust remedies on the takings claim. The district court converted the motion for judgment on the pleadings into a summary judgment motion. The district court denied summary judgment on the due process and takings claim but granted summary judgment on the other claims. The state then appealed and, in the alternative, sought a supervisory writ arguing the district court should have dismissed all claims.
The Supreme Court held that the order denying summary judgment was not appealable but that the supervisory writ was appropriate. The Supreme Court held that qualified immunity is immunity from suit rather than a mere defense and should be resolved at the earliest possible stage of litigation. Therefore, it was appropriate to exercise supervisory jurisdiction. The Supreme Court held the state’ s employees were protected by qualified immunity unless the park could show that the official violated a statutory or constitutional right and that the right was clearly established at the time of the challenged conduct. The Court held the substantive due process claim failed because the alleged behavior, even if true, did not present a genuine issue of material fact that it was arbitrary use of power that shocked the conscience. The substantive due process claim was dismissed because the park was given notice and opportunity to be heard in regard to both the revocation of its 2020 license and decision not to renew its 2021 license and therefore the employees were entitled to qualified immunity.
The Supreme Court also exercised its supervisory jurisdiction to dismiss the park’ s taking claims for failure to exhaust its remedies. The park received notice of its right to a hearing and requested said hearing. Instead of having a hearing where a final decision would have been made, the park voluntarily withdrew its hearing request and therefore failed to exhaust its administrative remedies.
Knell v. Kinden, 2025 ND 68. Filed on 4 / 10 / 25.
In their 2020 divorce proceeding, the parties stipulated to equal residential responsibility of the minor children. In 2024, Knell filed a motion seeking primary residential responsibility. Kinden objected and also filed a motion asking for primary residential responsibility. After a contested hearing, the district court awarded Kinden primary residential responsibility of the children.
On appeal, the Court considered whether N. D. C. C. § 14-09-06.6 applied to this case. N. D. C. C. § 14-09-06.6 governs modifications of primary residential responsibility and is intended to prevent parties from filing multiple, consecutive motions to relitigate primary residential responsibility. The statute requires the moving party to serve and file a motion and supporting affidavits and requires the Court to make an initial determination whether the moving party has established a prima facie case justifying a modification before granting an evidentiary hearing. The statute also requires a heightened standard for motions made within two years of a prior judgment establishing primary residential responsibility.
The Court considered the plain language of N. D. C. C. § 14-09- 06.6, which specifically refers to modifications of primary residential responsibility. The Court determined the plain language of N. D. C. C. § 14-09-06.6 states that it only applies to a modification of primary residential responsibility. The Court concluded, in this case, there was no order establishing primary residential responsibility, because the parties shared equal residential responsibility. The Court held that when a party moves to modify a prior order awarding equal
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.
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