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.
State v. Martinez, 2025 ND 204. Filed on 12 / 4 / 25.
Joshua Martinez was charged with a number of crimes, including two counts of attempted murder. The district court commenced a jury trial and empaneled a jury of 12 jurors and two alternates. After the first day of trial, the state observed Juror 9 greet, talk to, and hug a member of the gallery, named Jacob Martinez. The state learned that Jacob Martinez was a relative of the defendant, Joshua Martinez. On the second day of trial, the state brought the issue to the court’ s attention. The judge brought in Juror 9 and questioned him about the interaction. Juror 9 explained he knew Jacob Martinez from work, but was not aware that Jacob Martinez was related to Joshua Martinez until that day. When asked by the judge, Juror 9 stated he could be fair and impartial. The state asked the court to strike Juror 9. Martinez objected. The judge stated he believed Juror 9 did not know Jacob Martinez was related to the defendant prior to the interaction, but ultimately dismissed Juror 9. The case proceeded with one of the alternates and Joshua Martinez was convicted.
On appeal, Martinez argued the trial court’ s actions violated the Double Jeopardy Clause. Martinez argued that jeopardy attached to this case because the jury had been empaneled and by substituting an empaneled juror, without any misconduct by the juror, the district court exceeded N. D. R. Crim. P. 24 and violated his due process rights. The Supreme Court determined the Double Jeopardy Clause only applies if there has been an event that terminates the original jeopardy. A court replacing a juror with an alternate juror during the trial does not implicate double jeopardy because it does not terminate the original jeopardy. Under N. D. R. Crim. P. 24, the district court may only replace jurors who are unable to perform or who are disqualified from performing their duties. Although the district court did not make an explicit determination that Juror 9 was disqualified, the Supreme Court understood the rationale for the decision and held the district court did not abuse its discretion in dismissing Juror 9. The criminal judgment was affirmed.
Access Independent Health Services, Inc., et. al. v. Wrigley, et al., 2025 ND 199. Filed on 11 / 21 / 25.
This appeal involved a constitutional challenge to N. D. C. C. ch. 12.1-19.1, a criminal abortion statute with various exceptions. A healthcare clinic and several physicians argued the statute violated due process because it is unconstitutionally vague and also infringes pregnant women’ s right to obtain life and health preserving care under the North Dakota Constitution. The statute makes it a class C felony for any person other than the pregnant woman to perform an abortion, subject to specified exceptions. The district court granted summary judgment for plaintiffs and declared the law unconstitutional and void.
Plaintiffs advanced two primary constitutional theories. First, they argued the statute is void for vagueness under Article I, § 12, because it fails to give adequate notice of what conduct is prohibited and leaves too much room for arbitrary enforcement. Second, they argued the statute conflicts with rights protected under Article I, § 1, including the right to defend life and obtain safety, by restricting access to medically necessary life and health preserving care. The district court agreed and found the law to be unconstitutional.
On appeal, three justices of the Court concluded the statute is unconstitutional due to vagueness. Two justices disagreed. However, under North Dakota law, four justices must concur to declare a statute unconstitutional. Because the Court did not reach four votes, the statute was not invalidated, and the district court’ s judgment was reversed.
Three justices would have held the statute void for vagueness. A threshold question was whether plaintiffs could bring a facial vagueness challenge outside the First Amendment context. The state argued facial vagueness challenges generally fail if a statute has any clear application and contended plaintiffs relied too heavily on
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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