Department of Justice Once Again Proves Its Loyalty to the President, Not the Rule of Law

AUSTIN SARAT

Austin Sarat—Associate Provost, Associate Dean of the Faculty, and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College—comments on the recent news that the Justice Department will seek dismissal of charges against Michael Flynn. Sarat suggests that because the decision does not seem to advance the fair administration of justice in this case, the court should take the unusual step of refusing to grant the prosecutor’s motion to dismiss.

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Shadow Industries, LLP v. Hoffman, et al.

Citation: 2020 ND 83

Opinion Date: May 7, 2020

Judge: Jon J. Jensen

Areas of Law: Agriculture Law, Civil Procedure, Contracts, Landlord - Tenant

Shadow Industries, LLP, appealed a district court judgment dismissing its eviction action and holding the tenants David and Chris Hoffman had timely exercised their option to extend the term of the parties’ lease agreement. Shadow argued the district court erred in finding the parties’ lease agreement to be ambiguous, finding the option to extend the lease expired on February 1, 2019, and finding the Hoffmans timely exercised their option to extend the lease. The North Dakota Supreme Court found the district court’s interpretation of the lease as having ambiguity as to when the lease terminated was premised upon the court’s observation that “[w]hen 'crop years’ end and begin is undefined.” To this, the Supreme Court disagreed that the lease was ambiguous and failed to define the end of the lease. The Supreme Court found the lease terminated at the end of the 2018 crop year. "While determining when the end of the 2018 crop year occurred may be a question of fact, the term is not ambiguous simply because it requires a future event or contingency." There was testimony that the crop year ended no later than October 2018; following the harvesting of their crops and still in 2018, the Hoffmans deep ripped the land, tilled to create fall bedding, and applied fertilizer to prepare for the 2019 crop year. "On the basis of these facts, and the absence of any contrary facts in the record, we conclude as a matter of law the 2018 crop year ended and the lease terminated in 2018." Because the facts of this case compelled a finding the 2018 crop year ended in 2018 and the lease terminated at the end of the 2018 crop year, the Court found the exercise of the option in January 2019 was not timely and the lease terminated. It therefore reversed judgment and remanded for further proceedings.

Arnold, et al. v. Trident Resources, et al.

Citation: 2020 ND 104

Opinion Date: May 7, 2020

Judge: Jon J. Jensen

Areas of Law: Business Law, Civil Procedure, Contracts, Energy, Oil & Gas Law

Thomas Lockhart appealed an order finding him in contempt, imposing a sanction requiring the forfeiture of $300,000 to Douglas Arnold and Thomas Arnold, and divesting him of any management rights in Trident Resources, LLC. In 2013, Lockhart and the Arnolds entered into business capturing and compressing natural gas. The parties formed Trident Resources, with Lockhart owning a 70% interest and each of the Arnolds owning a 15% interest. Trident Resources owned two well processing units (WPUs), each purchased for $300,000. In 2015, the Arnolds initiated this action seeking reformation of the Trident Resources’ member control and operating agreement to clarify the parties’ respective ownership interests. Following a bench trial, the court ordered the entry of a judgment confirming Lockhart’s ownership of a 70% interest and each of the Arnold’s 15% ownership interest in Trident Resources. Before the entry of the judgment, Lockhart informed the Arnolds he had received an offer from Black Butte Resources to purchase one of the WPUs for $300,000. The Arnolds consented to the sale, provided the proceeds were deposited into their attorney’s trust account. When it appeared Lockhart had failed to deposit the funds into the trust account, the Arnolds filed a motion seeking to discover the location of the WPU and the sale proceeds. Before the hearing on the Arnolds’ motion, Lockhart deposited $100,000 into the account. The trial court ordered Lockhart to provide information regarding the WPU sold and the date the remaining $200,000 would be deposited. Lockhart eventually deposited $200,000 into the trust account and filed an affidavit stating Black Butte had purchased the WPU and the WPU had been transferred to Black Butte. Subsequent to Lockhart filing his affidavit, the Arnolds learned the WPU had not been sold to Black Butte for $300,000, but had instead been sold to another party for $500,000. The Arnolds filed a motion requesting the court to find Lockhart in contempt and for the imposition of appropriate sanctions. At the hearing on the motion, Lockhart conceded his affidavit was false and stipulated to the entry of a finding of contempt. On appeal, Lockhart argued the district court’s order improperly imposed a punitive sanction for his contempt. The North Dakota Supreme Court concluded the circumstances necessary for the imposition of a punitive sanction were not present prior to the imposition of the sanction in this case. The Court was left with an insufficient record to review the appropriateness of the imposition of a remedial sanction in the amount ordered by the trial court. reverse and remand this case to the district court for further findings in support of the sanction imposed for Lockhart’s contempt. The trial court judgment was reversed and the matter remanded for further findings.

Johnson v. City of Burlington

Citation: 2020 ND 81

Opinion Date: May 7, 2020

Judge: Lisa K. Fair McEvers

Areas of Law: Business Law, Civil Procedure, Government & Administrative Law, Zoning, Planning & Land Use

Alton Johnson appealed a judgment denying his variance application. In the 1970s Johnson purchased land in Burlington, ND, and in 1973, opened an auto body shop. The auto body shop was zoned as a C-1 residential sometime after the shop was built. In 1989, a fire damaged the building. After building repairs in 1991, Johnson leased part of the property. Johnson began to use another location for his auto body business. In 2012, Johnson sold his business at the second location. Property owners neighboring the property raised concerns about the use of the property. In May 2013, the city attorney issued an opinion regarding the body shop, stating it “was a non-conforming use when the zoning ordinance was initially passed, so it was essentially 'grandfathered in’” and when the auto body shop’s use was discontinued, and the current renters went into the building, the auto body shop was no longer “grandfathered in” and would need approval by the planning commission. Johnson operated the auto body shop at the location of the property at issue subsequent to the sale of the second location. In October 2013, Johnson moved for a temporary injunction and ex parte restraining order to allow him to continue to use his auto body shop, which was granted by the district court. In October 2016, Johnson requested a variance from the City. When it was denied, he appealed, arguing the City’s findings were arbitrary, capricious, unreasonable, and not supported by substantial evidence. The North Dakota Supreme Court concluded after review it was not arbitrary, capricious, or unreasonable for the City to deny Johnson’s variance application and there was substantial evidence to support the City’s decision. Accordingly, the Court affirmed judgment.

Brossart, et al. v. Janke, et al.

Citation: 2020 ND 98

Opinion Date: May 7, 2020

Judge: Gerald W. VandeWalle

Areas of Law: Civil Procedure, Civil Rights, Constitutional Law

In June 2014, Rodney, Thomas, and Susan Brossart, as plaintiffs, filed a lawsuit in North Dakota federal district court against Nelson County, North Dakota, and the sheriff and a deputy sheriff of Nelson County, as defendants. The Brossarts alleged claims under 42 U.S.C. 1983 and state law. The federal district court granted summary judgment for the defendants. The court subsequently entered judgment against the Brossarts awarding defendants $8,153.08 in costs. The Brossarts did not appeal the judgment awarding costs to the Eighth Circuit Court of Appeals. Defendants thereafter filed the federal judgment to the Nelson County clerk's office. Defendants' attorney served three sets of interrogatories in aid of execution of judgment, one for each of the three named plaintiffs, on the Brossarts’ attorney. Each set of interrogatories contained 73 identical questions. Subparts to the main questions contained in the interrogatories were separately numbered. The Brossarts’ were not personally served the interrogatories. However, on appeal the Brossarts acknowledge they were informed of the filing of the federal judgment. Because they believed the federal judgment was procedurally and substantively defective, the Brossarts refused to respond to the interrogatories. Additionally, there is nothing in the record indicating the Brossarts’ attorney represented them in the state court action prior to February 19. After the Brossarts’ attorney sent the February 19 letter, the parties’ attorneys continued to communicate regarding the interrogatories. Defendants moved to compel answers, but the Brossarts moved for relief from judgment, arguing the federal judgment was invalid and unenforceable because they were not provided proper notice the federal judgment had been filed. The North Dakota Supreme Court concluded that the federal judgment was entitled to full faith and credit, and the Brossarts did not raise any viable defense as to why the federal judgment was invalid or unenforceable. The Brossarts correctly asserted they were not initially provided notice of the filing of the foreign judgment pursuant to N.D.C.C. 28-20.1-03(2), but the Court found their justification for refusing to answer the interrogatories and their basis for their motion for relief from judgment were completely without merit. The district court did not abuse its discretion in finding the Brossarts’ claims were frivolous and awarding attorney’s fees.

Jacobs-Raak v. Raak, et al.

Citation: 2020 ND 107

Opinion Date: May 7, 2020

Judge: Daniel J. Crothers

Areas of Law: Civil Procedure, Family Law

Daniel Raak appealed a district court order: (1) denying his post-judgment motion to redistribute property and request for an evidentiary hearing; and (2) finding him in contempt and from a third amended judgment modifying his child support obligation. After review, the North Dakota Supreme Court dismissed as untimely Raak’s appeal of the order denying his motion to redistribute property and request for a hearing. The Supreme Court concluded the district court did not abuse its discretion by finding him in contempt, but erred in determining the parties’ child support obligations. The Supreme Court therefore reversed and remanded to the district court for further proceedings to recalculate child support based on the parties’ monthly net income, the number of children eligible for support and the child support guidelines. Because the Supreme Court remanded, the district court in its discretion could reopen the record to address the issues Raak raised on appeal regarding its child support determination.

WSI v. Avila, et al.

Citation: 2020 ND 90

Opinion Date: May 7, 2020

Judge: Daniel J. Crothers

Areas of Law: Civil Procedure, Government & Administrative Law, Labor & Employment Law, Personal Injury

Workforce Safety & Insurance (WSI) appealed a district court judgment affirming the administrative law judge’s (ALJ) order concluding Isai Avila was entitled to both the scheduled permanent partial impairment award for vision loss and whole body permanent partial impairment award for additional injuries to his cervical spine, facial bone, acoustic nerve, and brain. In 2015, Avila fell on ice carrying a railroad tie while employed by SM Fencing & Energy Services, Inc., and sustained injuries. WSI issued an order awarding permanent impairment benefits of $34,000 to Avila. Avila requested a hearing. During a second review Avila underwent a permanent impairment evaluation. The evaluation determined Avila had 29% whole body permanent partial impairment which included 16% whole body impairment for vision loss of Avila’s left eye. WSI concluded under N.D.C.C. 65-05-12.2(11) that Avila was entitled to the greater of either the scheduled impairment award or the whole body impairment award, but not both. WSI issued a notice of decision confirming no additional award of permanent impairment benefits was due. Avila again requested a hearing after reconsideration. The sole issue at the administrative hearing was interpretation of the portion of N.D.C.C. 65-05-12.2(11). and whether the statute applied to the same work-related injury or condition, and not impairments for the same work-related incident. Since Avila’s loss of vision in his left eye was the same work-related injury or condition for which Avila received a 100 permanent impairment multiplier (PIM) scheduled injury award, the “loss of vision in left eye” component of the 29% whole body impairment must be subtracted from the award to determine Avila’s additional permanent impairment benefits. The ALJ concluded the additional injuries were not the same work-related injury or condition as the vision loss, and N.D.C.C. 65-05-12.2(11) was not applicable. Therefore, the ALJ determined Avila was entitled to both the scheduled impairment award for vision loss and the whole body impairment award for his additional injuries. The North Dakota Supreme Court found that because Avila had an injury set out in N.D.C.C. 65-05-12.2(11), he was entitled to the greater of the combined rating for all accepted impairments under the AMA Guides or the injury schedule. Here, N.D.C.C. 65-05-12.2(11) provided the greater PIM. Accordingly, WSI correctly determined Avila’s award. The ALJ judgment was not in accordance with the law. The Supreme Court therefore reversed the district court’s judgment and remanded to the ALJ for further proceedings.

Feltman, et al. v. Gaustad, et al.

Citation: 2020 ND 89

Opinion Date: May 7, 2020

Judge: Daniel J. Crothers

Areas of Law: Civil Procedure, Legal Ethics

Roger Feltman and TRRP LLC (Feltman) appeal a district court judgment dismissing their malpractice lawsuit against attorney Daniel Gaustad and the Pearson, Christensen & Clapp law firm (Gaustad). The court concluded summary judgment was appropriate because Feltman failed to establish a factual dispute as to the elements of legal malpractice. Finding no reversible error in that decision, the North Dakota Supreme Court affirmed judgment.

Albrecht v. Albrecht, et al.

Citation: 2020 ND 105

Opinion Date: May 7, 2020

Judge: Lisa K. Fair McEvers

Areas of Law: Civil Procedure, Trusts & Estates

Alan Albrecht appeals from a district court judgment dismissing his complaint against Mark Albrecht with prejudice. The background for this case stemmed from prior litigation in the divorce proceedings of Glen and Sharleen Albrecht (Alan and Mark's parents), and continuing in the probate of Sharleen Albrecht’s estate. Alan named his brother Mark and Mark's wife as defendants in a complaint alleging contempt of court and unjust enrichment. He alleged that, while Glen and Sharleen's divorce was pending and restraining provisions were in effect, their late-mother Sharleen Albrecht changed the beneficiary designation on an investment account owned by her, removing Alan as one of the beneficiaries and naming only Mark as the transfer-on-death beneficiary. He further alleged that, in contravention of the divorce summons and interim order’s restraining provisions, Sharleen liquidated the investment account and the proceeds from the liquidated account were subsequently transferred to Mark after Sharleen's death. The North Dakota Supreme Court concluded Alan lacked standing to bring the action, so it affirmed dismissal.

Schwindt v. Sorel

Citation: 2020 ND 92

Opinion Date: May 7, 2020

Judge: Lisa K. Fair McEvers

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

Gregory Schwindt appealed a district court judgment affirming a Department of Transportation hearing officer’s revocation of his driving privileges for 180 days. Schwindt argued North Dakota’s implied consent and refusal laws were unconstitutional, the hearing officer erred by considering the results of the horizontal gaze nystagmus (HGN) test, and the hearing officer erred in finding he refused to take a chemical test. After review, the North Dakota Supreme Court concluded the hearing officer’s findings of fact were supported by a preponderance of the evidence, the conclusions of law were sustained by the findings of fact, and the decision to revoke Schwindt’s driving privileges was in accordance with the law.

Dodge v. North Dakota

Citation: 2020 ND 100

Opinion Date: May 7, 2020

Judge: Gerald W. VandeWalle

Areas of Law: Constitutional Law, Criminal Law

Richard Dodge appealed from a district court order denying his application for post-conviction relief. Dodge was charged with five felonies and a misdemeanor in December 2015. Dodge was appointed counsel. In April 2016, Dodge’s counsel moved the court to withdraw because the attorney-client relationship was “irreparably broken and rendered unreasonably difficult.” The court granted the motion, and Dodge was appointed substitute counsel in May 2016. In July 2016, Dodge himself filed a “motion to dismiss counsel.” The court denied Dodge’s motion. Five months after the deadline for motions and plea agreements, Dodge's counsel sought to have Dodge submit to a psychiatric examination. This request was denied, the trial court found no evidence, and the the court itself made no observations, that Dodge was incompetent to stand trial. After this denial, Dodge himself again moved to dismiss his trial counsel, and due to the allegations Dodge made in his motion, counsel moved to withdraw. The trial court denied both motions, and instead, required the attorney to appear as standby counsel and assist Dodge during trial if requested, but relieved him of any further obligations to consult with Dodge. The case proceeded to trial. At the beginning of trial, the court gave Dodge the option of representing himself or having his attorney represent him. Dodge chose to have his attorney represent him. Because his attorney had not prepared for trial and had no communication with Dodge since he moved to withdraw, Dodge’s attorney asked for a brief recess to consult with Dodge. During the recess, a settlement was reached. Dodge agreed to enter Alford pleas on all counts, waived a presentence investigation, and agreed to be sentenced immediately after entering his pleas. Dodge was immediately sentenced following his guilty pleas, and thereafter sought post-conviction relief on grounds he was not competent to enter his pleas, and that he received ineffective assistance of trial counsel. After review, the North Dakota Supreme Court concluded the district court’s finding that Dodge was competent when he entered his pleas was not clearly erroneous, and disposed of his claim of ineffective assistance of counsel.

North Dakota v. Dahl

Citation: 2020 ND 87

Opinion Date: May 7, 2020

Judge: Jerod E. Tufte

Areas of Law: Constitutional Law, Criminal Law

The State of North Dakota appealed a district court order denying its motion to resume prosecution against Matthew Dahl and dismissing the case. In December 2014, the State charged Dahl with two counts of theft. Dahl did not appear on the charges until he was arrested on a bench warrant in February 2017. In mid-April 2017, the State mailed Dahl a pretrial diversion agreement. Dahl signed and returned the notarized agreement dated May 3, 2017. On May 9, 2017, the state’s attorney signed and filed the agreement with the district court, and the court approved the agreement the same day. Under the agreement, the State agreed to suspend prosecution for “two years from the date of execution” conditioned on Dahl’s timely payment of restitution. Dahl failed to make minimum monthly restitution payments. On June 6, 2019, the State moved to resume prosecution, alleging Dahl violated the pretrial diversion agreement by his non-payment. The district court held a hearing on the State’s motion in August 2019. The court concluded the pretrial agreement was executed when Dahl signed it on May 3, 2017. The court then denied the State’s motion to resume prosecution as untimely under N.D.R.Crim.P. 32.2(d)(2), and dismissed the complaint against Dahl. After review, the North Dakota Supreme Court reversed, concluding the district court erred in determining the State’s motion was untimely, and remanded for further proceedings.

North Dakota v. Foster

Citation: 2020 ND 85

Opinion Date: May 7, 2020

Judge: Jon J. Jensen

Areas of Law: Constitutional Law, Criminal Law

Akeem Foster was convicted by jury of Terrorizing and Carrying a Concealed Weapon. Foster contended on appeal he was denied a fair trial because he was asked during cross-examination if other witnesses were lying and because the prosecutor expressed personal beliefs about the evidence during closing arguments. Foster also argued there was insufficient evidence to convict him of either charge. After review, the North Dakota Supreme Court affirmed Foster’s conviction for Carrying a Concealed Weapon, but reversed his conviction for Terrorizing. The Court found Foster was improperly asked to provide an opinion on the veracity and credibility of the State’s witnesses. The improper questioning was prejudicial and denied Foster a fair trial on the terrorizing charge.

North Dakota v. Kolstad

Citation: 2020 ND 97

Opinion Date: May 7, 2020

Judge: Gerald W. VandeWalle

Areas of Law: Constitutional Law, Criminal Law

In December 2018, Officer Nelson of the University of North Dakota Police Department conducted a traffic stop of Stanley Kolstad for suspicion of driving under the influence. Kolstad performed field sobriety tests and a preliminary breath test (PBT). Prior to performing the PBT, Kolstad informed Nelson that he had asthma. Nelson testified he was unable to obtain a PBT result because Kolstad was filling his cheeks with air while performing the test. Kolstad was arrested for DUI and refusing to submit to a chemical test. Kolstad was transported to the UND police station to be given an Intoxilyzer breath test. Prior to the Intoxilyzer test, Nelson read Kolstad the implied consent advisory. But, because Nelson was not a certified operator of the Intoxilyzer machine, Officer Waltz conducted the test. Prior to the test, Kolstad informed Waltz he had asthma. The Intoxilyzer test results were deficient. Waltz testified Kolstad was not providing enough air for the test machine to provide a valid result. Kolstad was charged with driving under the influence and refusing to submit to a chemical test. Kolstad’s counsel made a discovery request to the State seeking copies of any audio or video recordings taken by police officers. Kolstad’s counsel also requested the State inform him whether any sound or video recordings taken of Kolstad were subsequently “altered, edited, destroyed, or discarded.” The State provided Kolstad’s counsel with dash camera footage from Nelson’s police car that had been taken at the scene of the arrest, but the State did not provide any body camera footage from either Nelson or Waltz. Upon learning that Waltz’s body camera footage was successfully uploaded to UND servers, Kolstad’s counsel moved to dismiss the case because the State did not provide any body camera footage in discovery as requested. The district court ultimately dismissed the refusal to submit to a chemical breath test charge as a sanction for failing to provide the body camera footage. The State appealed, arguing the alleged discovery violation did not rise to a constitutional violation of Kolstad’s due process rights, and the district court abused its discretion in dismissing the refusal charge. Kolstad argued the district court’s order dismissing the refusal charge was not appealable, and if it was, the court did not abuse its discretion in dismissing the charge. The North Dakota Supreme Court concluded there was nothing in the record to indicate the district court adequately considered an alternative or less severe sanction to dismissal, and by not considering a less severe sanction, the trial court erred. The district court’s order dismissing the refusal charge was reversed, and the matter remanded for further proceedings.

North Dakota v. Michel

Citation: 2020 ND 101

Opinion Date: May 7, 2020

Judge: Jerod E. Tufte

Areas of Law: Constitutional Law, Criminal Law

Kevin Michel was convicted by jury of knowingly receiving stolen property. Jamestown Police began investigating theft of tires from Northwest Tire in October 2017. About ten months later, Thomas Melland and Andrew Heckelsmiller became suspects in the investigation. Heckelsmiller told police he had sold stolen tires to Michel. In August 2018, Detective LeRoy Gross spoke with Michel about the stolen tires. Michel acknowledged he had bought tires from Heckelsmiller and Melland. Michel also told Detective Gross he stopped buying tires from Heckelsmiller and Melland after seeing a Facebook post from Northwest Tire offering a $500 reward for information regarding stolen tires. Detective Gross told Michel, “There’s going to be a lot of restitution these two boys are going to have to come up with unless we can get some tires back.” Michel said he had sold several of the tires but still had some of them. Michel turned over seven new tires to Detective Gross. Representatives from Northwest Tire and J&L Service identified the tires as some of those stolen from their shops. During the jury’s deliberations, the jury submitted a note with written questions to the court. Michel argued on appeal the district court erred by not specifically answering the jury’s questions and instead referring them to the existing jury instructions. After review, the North Dakota Supreme Court affirmed the criminal judgment, except as to the award of restitution. The award was reversed because the district court awarded more than what was required to make the victims whole. The matter was remanded for a redetermination of restitution.

North Dakota v. Wayland

Citation: 2020 ND 106

Opinion Date: May 7, 2020

Judge: Jon J. Jensen

Areas of Law: Constitutional Law, Criminal Law

Joey Wayland appealed after he was convicted by jury of Theft of Property and Possession of Drug Paraphernalia. Wayland contended his case should have been dismissed because his right to a speedy trial was violated by a continuance of his trial from March 11, 2019 to April 8, 2019. Wayland also contended the district court violated his right to remain silent by ordering him to submit to a mental health evaluation. Finding no reversible error, the North Dakota Supreme Court affirmed.

Hewitt v. NDDOT

Citation: 2020 ND 102

Opinion Date: May 7, 2020

Judge: Lisa K. Fair McEvers

Areas of Law: Criminal Law, Government & Administrative Law

Larry Hewitt appealed a district court judgment affirming the North Dakota Department of Transportation’s revocation of his driving privileges. Hewitt claimed the Department’s hearing file was improperly admitted at the administrative hearing. After review, the North Dakota Supreme Court affirmed, concluding the hearing file was properly admitted as a self-authenticating copy of an official record.

Kastet v. NDDOT

Citation: 2020 ND 91

Opinion Date: May 7, 2020

Judge: Daniel J. Crothers

Areas of Law: Criminal Law, Government & Administrative Law

The North Dakota Department of Transportation (Department) appealed the district court's reversing a hearing officer’s decision suspending Holden Kastet’s driving privileges for 365 days. The Department argued the hearing officer did not abuse his discretion in admitting the chemical breath test, and State Highway Patrol Trooper King scrupulously complied with the approved method for testing Kastet’s breath on the Intoxilyzer 8000. After review, the North Dakota Supreme Court concurred with the Department and reversed the district court judgment. The matter was remanded with instructions to reinstate the hearing officer’s decision.