Latest 16 Cases: Command Center v. Renewable Resources, et al. (Business Law), Somerset Court, et al. v. Burgum, et al. (Civil Procedure), Pioneer ...

Oprah Interview as Truth Commission – Part II: What Counts as Success?

LESLEY WEXLER

In this second of a series of columns, Illinois Law professor Lesley C. Wexler continues analogizing Oprah’s interview with Meghan and Harry to a truth commission and describes some goals against which we might measure the success of a truth commission. Professor Wexler proposes such measures as (1) whether the commission finishes its mandate and widely disseminates its findings, (2) whether it establishes a definitive narrative of the relevant abuses, and (3) whether it serves as catharsis for individual victims. She suggests that although some initial facts on the ground are negative, reform and reconciliation are still possible.

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Supreme Court Rules that Claims of Nazi-Era Expropriation of Jewish Property Are Barred by Germany’s Sovereign Immunity

SAMUEL ESTREICHER, JULIAN KU

NYU Law professor Samuel Estreicher and Hofstra Law professor Julian G. Ku comment on a recent decision by the U.S. Supreme Court, holding that the doctrine of sovereign immunity bars claims based on Nazi-era expropriation of Jewish property. Professors Estreicher and Ku argue that the unanimous decision in that case, Germany v. Philipp reflects a now-solid trend of Roberts Court decisions limiting the reach of U.S. law and jurisdiction to stay within the territory of the United States while also avoiding controversial and unsettled interpretations of international law.

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Command Center v. Renewable Resources, et al.

Citation: 2021 ND 59

Opinion Date: March 24, 2021

Judge: Gerald W. VandeWalle

Areas of Law: Business Law, Civil Procedure, Contracts

Shawn Kluver and Little Knife Disposal, LLC (“Little Knife”), appealed an amended judgment entered after a bench trial that awarded Command Center, Inc., monetary damages, interest, attorney’s fees and costs against Renewable Resources, LLC, and Kluver, jointly and severally. The amended judgment also awarded Renewable Resources damages and interest against Kluver and Little Knife, jointly and severally, and ordered them to indemnify Renewable Resources for all damages, interest, attorney’s fees, and costs awarded to Command Center. Command Center provided temporary labor services. Command Center sued Renewable Resources in small claims court, claiming unpaid amounts totaling $14,631.20, relating to temporary labor services that Command Center provided under agreements with Renewable Resources. Renewable Resources removed the case to district court. Command Center obtained leave of court to file an amended complaint, naming Kluver and Little Knife as additional defendants. Kluver had been the manager of Renewable Resources. Although Renewable Resources was billed and had paid Command Center $20,000 for the temporary labor services, Renewable Resources alleged that the temporary labor services were provided for the benefit of Little Knife, and that Kluver did not have authority to contract on behalf of Renewable Resources for the temporary labor services that benefited Little Knife. On review, the North Dakota Supreme Court concluded that evidence presented at trial supported the district court’s findings of fact and, further, that Kluver and Little Knife were rearguing the evidence and challenging the district court’s weight and credibility determinations. "We will not second-guess the district court’s clear findings on appeal. On this record, we conclude the district court’s findings are not clearly erroneous."

Somerset Court, et al. v. Burgum, et al.

Citation: 2021 ND 58

Opinion Date: March 24, 2021

Judge: Lisa K. Fair McEvers

Areas of Law: Civil Procedure, Constitutional Law, Government & Administrative Law

Appellants Somerset Court, LLC, and Kari Riggin appealed a district court judgment dismissing their action seeking a declaratory judgment regarding the validity of the North Dakota Governor’s executive orders. This case began as a challenge to the Governor’s statutory powers in issuing executive orders during the COVID-19 pandemic relating to the operations of certain North Dakota businesses. In April 2020, Somerset, an assisted living facility with an in-house salon, and Riggin, a licensed cosmetologist operating the salon as an independent contractor, claimed the executive orders prohibited Somerset and Riggin from engaging in their business and profession, and placed limitations as to their business and profession. Appellants argued the executive orders were beyond the Governor’s statutory powers; the executive orders involved fundamental rights requiring the application of the strict scrutiny standard of review; and that a declaratory judgment should have been issued as a matter of law and enforced by an appropriate writ. Because Appellants failed to adequately challenge the district court’s conclusion the case was moot, the North Dakota Supreme Court affirmed.

Pioneer State Mutual Insurance Co. v. Bear Creek Gravel, et al.

Citation: 2021 ND 53

Opinion Date: March 24, 2021

Judge: Daniel J. Crothers

Areas of Law: Civil Procedure, Insurance Law

Pioneer State Mutual Insurance Company appealed a declaratory judgment that found the automobile policy issued by Pioneer to Ty Kirby provided insurance coverage. In 2017, Kirby was involved in a motor vehicle accident with Mary Miller. Kirby was driving a 2002 Dodge Ram owned by his employer, Bear Creek Gravel, Inc. One of Kirby’s co-workers had forgotten his lunch and Kirby instructed him to meet him at the intersection of two nearby highways where Kirby would bring him a sandwich. After purchasing the sandwich, filling the 2002 Dodge Ram with fuel, and delivering the sandwich to his co-worker, Kirby began crossing the intersection. Kirby proceeded through the intersection and collided with Miller, who died as a result of the collision. Kirby purchased an automobile insurance policy from Pioneer effective from April 1, 2017 to October 1, 2017. The policy covered Kirby even if he was driving a vehicle he did not own. However, the policy excluded coverage for any vehicle “furnished or available for [Kirby’s] regular use.” The regular use exclusion was the basis for Pioneer’s denial of liability coverage for the accident. The district court concluded the 2002 Dodge Ram was not furnished for Kirby’s regular use because several restrictions existed for Kirby’s use of the vehicle. The North Dakota Supreme Court concluded evidence and inferences about restrictions on Kirby's use of the vehicle supported the district court's decision the regular use exclusion did not apply. Therefore, the district court's judgment was affirmed.

Ryberg, et al. v. Landsiedel

Citation: 2021 ND 56

Opinion Date: March 24, 2021

Judge: Daniel J. Crothers

Areas of Law: Civil Procedure, Insurance Law

Jason Ryberg appealed the dismissal of his complaint with prejudice after the district court granted Defendant Darren Landsiedel’s motion to enforce a settlement agreement. Nodak Insurance Company (“Nodak”) appealed the court’s order denying its motion to intervene in the case. In November 2016, Ryberg’s wife, Heather Ryberg, was killed when Landsiedel’s vehicle hit her on a rural Burleigh County highway in the early morning hours. In March 2018, Ryberg sued Landsiedel for the wrongful death of his wife. Landsiedel was insured by Allstate Insurance Company and had liability policy limits of $25,000. Ryberg was insured by Nodak, with “substantial” underinsured motorist (“UIM”) limits. Allstate offered Ryberg policy limits to settle his wrongful death claim. Ryberg notified Nodak of Allstate’s offer of the policy limits for “full and final settlement” of the wrongful death claim. Nodak agreed to advance payment of $25,000 to Ryberg to maintain its reimbursement or subrogation rights under N.D.C.C. 26.1-40-15.5. A week before the scheduled trial on Ryberg’s wrongful death action against Landsiedel, Nodak and Ryberg agreed to settle Ryberg’s UIM claim for $100,000, in addition to the $25,000 Nodak already paid under the statute. After being notified, Landsiedel’s counsel filed a notice of settlement with the district court, and the case was taken off the calendar. Because no closing documents were filed, the court set a status conference for February 27, 2020. On the day of the status conference, Nodak moved to intervene in the action, seeking to preserve its right of reimbursement or subrogation. Landsiedel filed a substitution of counsel, moved for an extension of time, and subsequently opposed the motion to intervene. The court denied Nodak’s motion to intervene, finding it was untimely. In June 2020, Landsiedel filed a motion to enforce a settlement agreement. Ryberg opposed the motion and requested oral argument. The district court granted Landsiedel’s motion. Judgment was entered dismissing the case with prejudice. The North Dakota Supreme Court found no evidence established the terms by which the parties intended to settle Ryberg’s action, thus, the district court erred in granting Landsiedel’s motion seeking to enforce a settlement agreement. The Court vacated the order denying intervention and reversed the judgment of dismissal.

Solberg v. McKennett

Citation: 2021 ND 44

Opinion Date: March 24, 2021

Judge: Gerald W. VandeWalle

Areas of Law: Civil Procedure, Trusts & Estates

Glenn Solberg appealed a district court judgment dismissing his complaint against Richard McKennett. This action was related to Solberg’s litigation involving the Estate of Lyle Nelson. Lyle Nelson was married to Solberg’s mother Lillian (Solberg) Nelson, who died in 2003. Lyle died in 2012, and McKennett was the attorney for the personal representative of Lyle's estate. In June 2013, Solberg filed a petition for allowance of claim against Lyle's estate, asserting that under his mother’s 1985 will and 1997 codicil he was entitled to 100 mineral acres and had an option to purchase certain property. The district court dismissed Solberg’s claim, concluding the 100 mineral acres and the option property were never held by the estate, and were never under the control of or owned by Lyle Nelson. The North Dakota Supreme Court affirmed the dismissal of Solberg’s claim. In April 2020, Solberg sued McKennett for fraud and injury to person. Solberg alleged McKennett committed fraud by misleading him during the probate of Lyle Nelson’s estate and by dismissing his claim against Nelson’s estate. Solberg requested $400,000 in damages. McKennett moved to dismiss the lawsuit, claiming Solberg’s complaint did not specify the circumstances constituting fraud, and on statute of limitations grounds. The district court concluded Solberg's claims were time-barred because Solberg was aware of McKennett's alleged wrongdoing before April 2014. The North Dakota Supreme Court concurred Solberg's claims against McKennett were time barred, thus the district court did not err in granting McKennett's motion to dismiss.

North Dakota v. Bee

Citation: 2021 ND 61

Opinion Date: March 24, 2021

Judge: Jerod E. Tufte

Areas of Law: Constitutional Law, Criminal Law, Family Law, Government & Administrative Law

Dakota Bee appealed a criminal judgment entered on a conditional plea of guilty, reserving the right to appeal a district court order denying her motion to suppress evidence. Burleigh County Social Services (BCSS) contacted the Bismarck Police Department requesting assistance in removing a child from Bee’s care. Officers accompanied BCSS social workers to Bee’s residence and informed her that they were there to remove her child. Bee refused, backing up into the home, picking up the child, and then running towards the rear of the home. Officers pursued Bee through the home and out the back door. Fleeing out the back, Bee fell while holding the child, and officers separated her from the child. After Bee had been detained outside the residence, a social worker entered the residence to obtain personal belongings for the child, and an officer followed. Once the officer was inside, the social worker pointed out a glass smoking pipe. Bee was subsequently charged with Child Neglect; Possession of Methamphetamine; Possession of Drug Paraphernalia; and Refusal to Halt. The district court found that the officers entered “the residence with BCSS to retrieve personal belongings for the child” after Bee had been detained and the child was in BCSS’s custody. The court further found that the officers observed the glass smoking device on a shelf in plain view. The court concluded the officers’ actions did not violate Bee’s Fourth Amendment rights. On appeal, Bee argued the court erred in concluding that her Fourth Amendment rights were not violated when the officers entered her home. The North Dakota Supreme Court found that during the first entry to the residence, the officers observed nothing that Bee sought to suppress. The second entry of the residence was justified only by a need to collect clothing and other personal items needed by the child. Because the search was concededly warrantless and no exception applies, the Court concluded Bee was entitled to claim the protection of the exclusionary rule. The district court erred by denying Bee’s motion to suppress the results of the warrantless search. Judgment was reversed and the matter remanded to allow Bee to withdraw her guilty plea.

Campbell v. North Dakota

Citation: 2021 ND 45

Opinion Date: March 24, 2021

Judge: Gerald W. VandeWalle

Areas of Law: Constitutional Law, Criminal Law

Anthony Campbell appealed after the district court summarily dismissed his application for post-conviction relief. In 2016, a jury found Campbell guilty of murder, a class AA felony. His conviction was affirmed on appeal. In November 2017, Campbell filed an application for post-conviction relief alleging ineffective assistance of counsel. The State opposed the application and moved for summary disposition. In December 2017, Campbell amended his application. By the time of a January 2019 status conference, Campbell’s attorney informed the district court that he wanted to have a blood sample tested. The court gave him 30 days to submit information with regard to the testing; nothing was submitted. In April 2019, the State renewed its motion. At an October 2019 hearing on an order to show cause, Campbell’s attorney represented that the private lab would accept the blood sample only if the State submitted it. In March 2020, the court ordered the State to cooperate with the lab and the production of a DNA profile. At a June 2020 status conference, Campbell was unable to attend because of restrictions on transporting inmates due to the COVID-19 pandemic. Campbell’s counsel was present and acknowledged taking no action on the order to cooperate. The State renewed its motion at the hearing. The court held Campbell failed to meet his burden and granted the summary dismissal. The court requested the State to draft the order dismissing the application. On appeal, Campbell argued his application was dismissed because the district court agreed with the State that his post-conviction counsel did not submit evidence to support the application or respond to the State’s motion. He argued, however, there was a reasonable inference that blood present at the crime scene, if properly tested, would exonerate him. He further contended issues not related to blood testing regarding his trial counsel’s ineffective performance were viable and supported, and that summary disposition had already been denied on those claims. He argued that an evidentiary hearing as to those issues should have been held. The North Dakota Supreme Court concluded the district court’s order and judgment summarily dismissing the application was conclusory: in summarily dismissing, the court did not address the specific claims of Campbell’s amended application alleging ineffective assistance of trial counsel; did not undertake any analysis under Strickland; and did not adequately explain why an evidentiary hearing on the application, which had originally been ordered in September 2018, was no longer necessary. The judgment was reversed, and the case remanded for further proceedings.

North Dakota v. Borland

Citation: 2021 ND 52

Opinion Date: March 24, 2021

Judge: Jon J. Jensen

Areas of Law: Constitutional Law, Criminal Law

Jordan Borland was convicted by jury of criminal vehicular homicide at the conclusion of a third jury trial on the charge. Borland argued: double jeopardy barred his retrial; the district court erred by denying his requested jury instruction and special verdict form seeking a jury finding on double jeopardy; and he was denied the right to a speedy trial. Finding no reversible error, the North Dakota Supreme Court affirmed his conviction.

North Dakota v. Glasser

Citation: 2021 ND 60

Opinion Date: March 24, 2021

Judge: Jerod E. Tufte

Areas of Law: Constitutional Law, Criminal Law

Andrew Glasser appealed a district court’s corrected, amended criminal judgment modifying his sentence for conviction of gross sexual imposition and from an amended criminal judgment for conviction of possession of certain materials prohibited. On appeal, Glasser contended the court lost jurisdiction upon announcement of his original sentence, and thus had no authority to amend his judgments. After review, the North Dakota Supreme Court concluded the district court did not have jurisdiction to amend the criminal judgments to modify Glasser’s sentences. The Court reversed and remanded for entry of judgments reinstating Glasser’s original sentences.

North Dakota v. Martinez

Citation: 2021 ND 42

Opinion Date: March 24, 2021

Judge: Jerod E. Tufte

Areas of Law: Constitutional Law, Criminal Law

The North Dakota Supreme Court consolidated two criminal cases because both involved whether a defendant may waive his Sixth Amendment right to a public trial. Former school teacher Everest Moore appealed three criminal judgments after a jury found him guilty of eight counts of gross sexual imposition with respect eight of his students. Moore argued the district court closed two pretrial hearings and parts of his trial without the pre-closure analysis required by Waller v. Georgia, 467 U.S. 39, 48 (1984), thus violating his public trial right guaranteed by the Sixth Amendment. Juan Martinez appealed after a jury found him guilty of continuous sexual abuse of a child. The victim was thirteen or fourteen at the time; there had been no public disclosures of her identity, the allegations were very personal, involving multiple penetrative sexual acts. During a hearing on the State’s motion, Martinez’s attorney stated that he did not oppose the motion to close the courtroom for the victim’s testimony. A representative from the Williston Herald newspaper expressed opposition to the motion. The court stated the public, including the media, had an interest in the motion and it would wait to decide the motion to give the media an opportunity to file an objection. Martinez argued the district court erred by ultimately closing the courtroom to the public during the testimony of the minor victim and the victim’s counselor. With respect to Moore, the Supreme Court concluded the exclusion of the public without a knowing, intelligent, and voluntary waiver or Waller findings articulated on the record before the closures negatively affected the fairness, integrity, and public reputation of the criminal justice system. With respect to Martinez, the Court found the district court's findings in support of a second closure were clearly erroneous: "the court simply accepted the asserted interest without articulating how it overrides the defendant’s and public’s right to open proceedings. Both judgments were reversed and the matters remanded for new trials.

North Dakota v. Richter

Citation: 2021 ND 55

Opinion Date: March 24, 2021

Judge: Gerald W. VandeWalle

Areas of Law: Constitutional Law, Criminal Law

Tyler Richter appealed a criminal judgment entered after he pled guilty to the charge of luring minors by computers, and conditionally pled guilty to the charge of attempted promotion of obscenity to minors. Richter reserved the right to appeal the district court’s denial of his motion to dismiss the charge of attempted promotion of obscenity to minors. He argued attempted promotion of obscenity to minors was not a cognizable offense. Specifically, Richter argued there was an inconsistency in the elements of the criminal attempt and promotion of obscenity to minors offenses which was impossible to rectify. He claimed attempt required the actor have an intent to complete the commission of the underlying crime, promoting obscenity only requires the actor to act recklessly which did not require an intent to commit a particular objective, and a person cannot intend to commit an offense that can be committed without any intent. The State opposed Richter’s motion. After review, the North Dakota Supreme Court concurred that the attempted promotion of obscenity to minors was not a cognizable offense, and the district court erred in denying Richter's motion to dismiss. Judgment convicting Richter of attempted promotion of obscenity to minors was reversed, and the matter remanded to allow Richter to withdraw his guilty plea to the attempt offense and dismiss the attempt charge.

North Dakota v. Stands

Citation: 2021 ND 46

Opinion Date: March 24, 2021

Judge: Gerald W. VandeWalle

Areas of Law: Constitutional Law, Criminal Law

Michael Lee Stands appealed a judgment and an order denying his motion to suppress evidence after entering a conditional plea of guilty to possession with intent to manufacture or deliver methamphetamine and unlawful possession of drug paraphernalia. On appeal, Stands argued he did not consent to the search of his person. He also argued the traffic stop was unlawfully extended when police asked if he had anything on him, if she could search him, and subsequently searched him. Additionally, Stands argued the stop was unlawfully extended when officers detained him and waited for a drug dog to arrive on the scene. Finding no reversible error, the North Dakota Supreme Court affirmed judgment and the trial court's order denying Stands' motion to suppress.

North Dakota v. Walbert

Citation: 2021 ND 49

Opinion Date: March 24, 2021

Judge: Daniel J. Crothers

Areas of Law: Constitutional Law, Criminal Law

Russell Walbert appealed an amended criminal judgment after a jury found him guilty of gross sexual imposition. At a pretrial conference, the State moved to stop people from entering and exiting the courtroom while the victim testified during trial. The State made clear it was “not asking for the courtroom to be closed, just that we don’t have those interruptions while she’s testifying, if there’s no objection to that. Whoever is in, stays in. Whoever is out, stays out.” Walbert agreed to the State’s request. The court did not enter a written order and did not analyze its decision under the four-factor test found in Waller v. Georgia, 467 U.S. 39 (1984). Walbert argued the district court created a structural error by denying his constitutional right to a public trial. He claimed the court was required to engage in a Waller analysis before closing the courtroom, and the court’s failure to do so requires reversal. The North Dakota Supreme Court found judges possessed broad power to control their courtrooms, minimize disruptive behavior, and maintain security, and here, the district court's actions did not constitute a closure. Judgment was thus affirmed.

Breeze v. NDDOT

Citation: 2021 ND 43

Opinion Date: March 24, 2021

Judge: Jerod E. Tufte

Areas of Law: Criminal Law, Government & Administrative Law

Joshua Breeze appeals a district court judgment affirming the North Dakota Department of Transportation’s suspension of his driving privileges based on a conviction for driving under the influence. On appeal, Breeze argued that Waltz, a UND police officer, was outside of his jurisdiction when he stopped Breeze, and therefore had no authority for the stop or the subsequent chemical test. The Department argued that Waltz was in “hot pursuit” and therefore had authority for the stop. After review of the trial court record, the North Dakota Supreme Court determined Waltz did not have authority to arrest Breeze: "a reasoning mind could not have reasonably concluded the preponderance of the evidence supports that Waltz was in 'hot pursuit,' as defined by section 15-10-17(2)(d), N.D.C.C., when he continued beyond his jurisdictional boundary to arrest Breeze." The Department's order suspending Breeze's driving privileges, and the district court's judgment affirming the Department's order were reversed.

Gerving v. Gerving

Citation: 2021 ND 50

Opinion Date: March 24, 2021

Judge: Daniel J. Crothers

Areas of Law: Family Law

Ben Gerving appealed an amended divorce judgment and parenting plan. He argued the district court’s distribution of marital assets and debts was clearly erroneous. Janet Gerving argued the appeal was frivolous and she was entitled to costs and attorney’s fees. The North Dakota Supreme Court affirmed the amended divorce judgment and parenting plan, and determined Ben Gerving's arguments on appeal were "not so groundless or devoid of merit that they were frivolous." Janet's request for fees was thus denied.

Cass County Joint Water Resource District v. Aaland, et al.

Citations: 2020 ND 196, 2021 ND 57

Opinion Date: March 24, 2021

Judge: Jerod E. Tufte

Areas of Law: Government & Administrative Law, Real Estate & Property Law, Zoning, Planning & Land Use

Landowners Cash Aaland, Larry Bakko, and Penny Cirks, appealed orders granting the Cass County Joint Water Resource District (the “District”) a right of entry onto their properties to conduct surveys and examinations related to the Fargo-Moorhead Flood Diversion Project. The Landowners argued these surveys and examinations are beyond the scope of N.D.C.C. 32-15-06. After review, the North Dakota Supreme Court reversed, concluding the District’s right of entry exceeded the limited testing permitted under the statute. The matter was remanded for a determination on attorney’s fees and costs.