North Dakota Supreme Court Highlights
By Michael J. Morley
Authors’ s Note and Caveat: The following cases of interest were recently decided by the North Dakota Supreme Court. Because the following contain the editor’ s summary of the decisions, the reader is encouraged to read the entire published decision to determine its precedential value, if any, in a given case.
Disciplinary Board v. Ward, 2016 ND 115, 881 N. W. 2d 226
In an application for disciplinary action against a lawyer, the North Dakota Supreme Court declined to adopt the hearing panel’ s recommendation for discipline and dismissed the petition for discipline because the attorney’ s conduct constituted nothing more than an isolated instance of ordinary negligence. Thus, there was not clear and convincing evidence of a violation by the attorney of North Dakota Rules of Professional Conduct 1.1 and 1.3( the Rules requiring lawyer competency and diligence, respectively). The Supreme Court agreed with the observation of the Arizona Supreme Court that recognized the distinction between conduct by an attorney that is simply negligent( for which a malpractice action may lie) and conduct that arises to the level of an ethical violation when that same neglect is also accompanied by some other violation, such as an impermissible conflict of interest or repeated acts of negligence.
Frith v. The Park District of the City of Fargo, 2016 ND 213, 886 N. W. 2d 836
In this case, the North Dakota Supreme Court stated that a park district of a municipality is a political subdivision. A tort claim for bodily injuries against a political subdivision must be commenced within three( 3) years after the cause of action accrues, pursuant to N. D. C. C. § 32-12.1-10. The statute of limitations generally begins to run from the commission of the wrongful act giving rise to the cause of action unless an exception, such as the“ discovery rule,” applies. A civil action is commenced by the service of a Summons. Valid service of process is necessary for a court to acquire personal jurisdiction over a defendant. A party must strictly comply with the requirements for service of process. Mere filing of a Summons and Complaint is not proper commencement of an action, allowing a court to acquire personal jurisdiction over the defendant. Even if the action is filed within the statute of limitation period, when the Summons and Complaint were not properly served until after the expiration of the statute of limitations, the commencement of the action was untimely and had to be dismissed. The Court also held that Rule 6( b), N. D. R. Civ. P., which allows a court to extend the time
Michael J. Morley received his juris doctor with distinction and was admitted to the Order of the Coif upon graduation from the University of North Dakota School of Law in 1979. That same year, he was admitted to practice law in North Dakota State Courts and the United States District Courts for the District of North Dakota. In 1981, he was admitted in the Minnesota State Courts and the United State District Court for the District of Minnesota, as well as the United States Court of Appeals for the Eighth Circuit. He is a member of the State Bar Associations of North Dakota and Minnesota and is currently president and shareholder of Morley Law Firm, Ltd., in Grand Forks. for an act if good cause is shown for the need for an extension, does not apply to periods of time which are definitely fixed by statute. Therefore, a District Court does not have authority under Rule 6( b) to extend a statute of limitation.
State v. Clayton, 2016 ND 131, 881 N. W. 2d 239
This was a case where the defendant was involved in a fight with his father. Defendant pled guilty to a reduced charge of simple assault and was ordered to pay restitution of almost $ 25,000 for medical expenses of the victim. Defendant objected to the restitution award, arguing that the State did not meet its burden of proof, i. e., that the assault directly resulted in the injuries for which the medical expenses were ordered. The North Dakota Supreme Court noted that restitution is limited to those damages“ directly related to the criminal offense and expenses actually incurred as a direct result of the defendant’ s criminal action.”( internal citation omitted). This direct relationship requires“ an immediate and intimate causal connection between the criminal conduct and the damages or expenses for which restitution is ordered.”( internal citation omitted). The State has the burden in a restitution hearing only to prove the amount of restitution by a preponderance of the evidence and the appellate standard of review of a District Court’ s restitution order is similar to an abuse of discretion standard. The restitution order was affirmed.
State v. Adan, 2016 ND 215, 886 N. W. 2d 841
In this interesting and somewhat factually complex case, a police officer observed a vehicle weaving on an interstate highway and noticed it was from out of state. After turning around to follow it, the officer noted the vehicle slowed down. From several car lengths behind, the officer saw the driver reach into the backseat of the vehicle and appeared to place a blanket or jacket over something in the backseat. The officer pulled alongside the vehicle and observed the driver and occupant. However, not seeing any traffic infractions, the officer stopped following the vehicle. Although not seeing any traffic infractions, the officer called a fellow officer and relayed his suspicions and told him to be on the lookout for this vehicle. The second officer located the suspicious vehicle, observed it speeding and following too close behind the vehicle in front of it and because of those traffic violations, pulled it over and initiated a traffic stop. During the traffic stop, the second officer noted that the driver was nervous and evasive, touched his face, licked his lips, and his shoulders quivered. The vehicle was a rental vehicle and, even though the driver indicated he was traveling a lengthy route, the officer did not observe any luggage in the vehicle. The driver was also inconsistent about his travel plans. Through a records check, the second officer discovered that the driver was recently placed on probation for possession of meth. The driver denied the presence of any illegal drugs in the vehicle. After the traffic stop, the officer issued the driver a warning and requested his consent to search
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