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 author’ 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.
Interest of K. S. D. and J. S. D., 2017 ND 289
The plaintiff appealed from a Juvenile Court Order terminating his parental rights to his two children. The Supreme Court stated when Indian children are involved in a termination proceeding such as this, state and federal law create a dual burden of proof for the party seeking termination of parental rights. The Court stated, in addition to proving deprivation under state law by clear and convincing evidence, the state must also prove beyond a reasonable doubt, pursuant to federal law, the continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child. 25 U. S. C. § 1921( f).
The Court stated that on the record before it, clear and convincing evidence existed to support the Juvenile Court’ s termination of parental rights under North Dakota state law. However, because the children were Indian children, federal law provided no parental rights may be terminated in a proceeding involving Indian children in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, the continued custody of the child by the parent or Indian custodian was likely to result in serious emotional or physical damage to the child. The Supreme Court also stated, under federal law governed by the Federal Indian Child Welfare Act(“ ICWA”), the county or state social worker regularly assigned to the Indian child’ s case may not serve as a qualified expert witness in the termination proceedings concerning that child and give the testimony required by the ICWA for termination of parental rights.
Accordingly, the Supreme Court remanded the action to the District Court for a hearing only on the ICWA requirement of proof beyond a reasonable doubt from a qualified expert witness. The Court ordered a different District Court judge decide the ICWA issue on remand. The Supreme Court retained jurisdiction.
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.
Forsman v. Blues, Brews & Bar-B-Ques, Inc., 2017 ND 266, 903 N. W. 2d 524
This case involved a stipulated Miller-Shugart Agreement and judgment establishing the defendant ' s bar’ s liability on a garnishment proceeding against its insurer. The Supreme Court stated an insured defendant may agree to a settlement of a plaintiff’ s claims against it and stipulate the judgment entered on the settlement be collected only from the proceeds of any insurance policy of the defendant, with no personal liability to the defendant. However, the Court stated stipulated judgment is not conclusive on the defendant’ s insurer and the plaintiff judgment creditor( the assignee of the stipulated judgment) still has the burden of proof to show the settlement was reasonable and prudent in the proceeding to collect the proceeds of the stipulated judgment from the defendant’ s insurer.
The Supreme Court stated, while the Miller-Shugart judgment settles the issue of the underlying defendant’ s liability to the plaintiff judgment creditor, it does not resolve the question of whether the defendant’ s insurance policy provides coverage for that liability. If there is found to be no coverage for the Miller-Shugart judgment, that ends the matter against the defendant’ s insurer.
Apparently the District Court granted summary judgment to the insurer on the issue of coverage for the plaintiff’ s negligence claim against its insured. However, because the Supreme Court concluded that genuine issues of material fact existed in the record as to whether or not the plaintiff’ s injuries resulted from events excluded by the policy( i. e., an assault by another patron or from providing alcohol to an intoxicated patron), or from any event not excluded by the policy, the Supreme Court reversed the District Court’ s summary judgment in favor of the insurer that its policy did not provide coverage to the plaintiff.
Moreover, the Supreme Court reiterated the long-standing principle that if there is a possibility any of the claims against the insured may be covered by the policy, doubt is to be resolved in favor of the insured and the insurer is required to defend the insured.
Accordingly, the Supreme Court reversed the District Court grant of summary judgment that the insurer had no obligation to cover or indemnify its insured, and affirmed the District Court’ s Order that the insurer was obligated to defend its insured for the suit against it by the injured patron.
State v. Myers, 2017 ND 265, 903 N. W. 2d 520
In 2012, the defendant pleaded guilty to the Class C felony charge of aggravated assault. The defendant received a sentence of five years incarceration, with all five years suspended with supervised probation.
20 THE GAVEL