Latest 20 Cases: Grand Prairie Agriculture v. Pelican Township Board of Supervisors (Agriculture Law), Davis v. Davis, et al. (Civil Procedure), ...

The Upside-Down Treatment of Religious Exceptions Cases in the Supreme Court

MICHAEL C. DORF

Cornell law professor Michael C. Dorf comments on the U.S. Supreme Court’s decision last week to reject an emergency application from the State of Alabama to lift a stay on the execution of Willie B. Smith III. Professor Dorf observes the Court’s unusual alignment of votes in the decision and argues that, particularly as reflected by the recent COVID-19 decisions, the liberal and conservative Justices have essentially swapped places from the seminal 1990 case Employment Division v. Smith, which established that the First Amendment does not guarantee a right to exceptions from neutral laws of general applicability.

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Grand Prairie Agriculture v. Pelican Township Board of Supervisors

Citation: 2021 ND 29

Opinion Date: February 18, 2021

Judge: Jerod E. Tufte

Areas of Law: Agriculture Law, Government & Administrative Law, Zoning, Planning & Land Use

Grand Prairie Agriculture, LLP, appealed a district court order affirming a decision of the Pelican Township Board of Supervisors to deny Grand Prairie’s petition for approval of the site of a proposed animal feeding operation (“AFO”). The North Dakota Supreme Court concluded the Township misinterpreted and misapplied the law in applying setback requirements. The district court’s order was reversed and the matter remanded to the Township for further proceedings.

Davis v. Davis, et al.

Citation: 2021 ND 24

Opinion Date: February 18, 2021

Judge: Daniel J. Crothers

Areas of Law: Civil Procedure, Family Law

Cory Davis appealed a district court order denying his motion for Rule 60(b), N.D.R.Civ.P., relief from a judgment. In September of 2019 Tracy Davis served Cory with a summons and complaint for divorce. Cory did not prepare or serve a formal answer. On October 14, 2019, the district court issued an order for mediation. The parties attended mediation without final resolution of their case. After a mediation closing form was filed the court issued a scheduling order and notice of bench trial for January 23, 2020. On December 13, 2019, Tracy filed a motion for default judgment. That same day she served Cory with the motion by mail. On December 23, 2019, the district court issued an order granting default judgment, along with judgment by default. On January 8, 2020, Cory filed an answer and counterclaim, notice of motion for relief from judgment, and brief in support of motion for Rule 60 relief, arguing he did not receive the time required under N.D.R.Ct. 3.2 to respond to Tracy's motion for default. On appeal of the denial of relief, Cory argued the court erred in denying his motion because the judgment was entered prior to the expiration of his time to respond under N.D.R.Ct. 3.2(a). After review, the North Dakota Supreme Court reversed and remanded with instructions to vacate the default judgment and provide Cory an opportunity to respond consistent with N.D.R.Ct. 3.2(a)(2).

WSI v. Cherokee Services Group, et al.

Citation: 2021 ND 36

Opinion Date: February 18, 2021

Judge: Gerald W. VandeWalle

Areas of Law: Civil Procedure, Government & Administrative Law, Insurance Law, Labor & Employment Law, Native American Law

Cherokee Services Group, LLC; Cherokee Nation Government Solutions, LLC; Cherokee Medical Services, LLC; Cherokee Nation Technologies, LLC (collectively referred to as the “Cherokee Entities”); Steven Bilby; and Hudson Insurance Company (“Hudson Insurance”) appealed district court orders and a judgment reversing an administrative law judge’s (“ALJ”) order. The ALJ’s order concluded the Cherokee Entities and Bilby were protected by tribal sovereign immunity and Workforce Safety and Insurance (“WSI”) had no authority to issue a cease and desist order to Hudson Insurance. The district court reversed the ALJ’s determination. The Cherokee Entities were wholly owned by the Cherokee Nation; Bilby served as executive general manager of the Cherokee Entities. Hudson Insurance provided worldwide workers’ compensation coverage to Cherokee Nation, and the Cherokee Entities were named insureds on the policy. WSI initiated an administrative proceeding against the Cherokee Entities, Bilby, and Hudson Insurance. WSI determined the Cherokee Entities were employers subject to North Dakota’s workers’ compensation laws and were liable for unpaid workers’ compensation premiums. WSI also ruled that Bilby, as executive general manager, was personally liable for unpaid premiums. WSI ordered the Cherokee Entities to pay the unpaid premiums, and ordered Hudson Insurance to cease and desist from writing workers’ compensation coverage in North Dakota. The Cherokee Nation had no sovereign land in North Dakota, and the Cherokee Entities were operating within the state but not on any tribal lands. The North Dakota Supreme Court reversed the district court judgment, and reinstated and affirmed the ALJ’s order related to the cease and desist power of WSI, but the matter was remanded to the ALJ for further proceedings on the issue of sovereign immunity.

Oden v. Minot Builders Supply, et al.

Citation: 2021 ND 30

Opinion Date: February 18, 2021

Judge: Jon J. Jensen

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

Chris Oden appealed a district court order vacating a transcribed Missouri foreign judgment. Oden argued: (1) vacating the transcribed Missouri judgment violated the Full Faith and Credit Clause of the United States Constitution; (2) the court erred in relying on a decision issued between the parties in prior litigation because that decision was barred by administrative res judicata as the result of Oden’s Missouri workers compensation claim; and (3) the court erred by affording a prior judgment res judicata effect while that case was pending on appeal. In May 2010, Oden was injured in Missouri while employed by Minot Builders Supply. North Dakota Workforce Safety and Insurance (“WSI”) accepted the claim and awarded benefits for Oden’s injuries. In May 2013, Oden filed a claim for compensation in Missouri for the same work-related injury. In October 2013, WSI suspended payment of further benefits on Oden’s claim after Oden claimed benefits Missouri. Subsequent to Oden settling his Missouri workers compensation claim, WSI sent Oden notice that the prior North Dakota workers compensation award was being reversed because Oden’s receipt of benefits in Missouri. WSI provided notice to Oden his workers compensation benefits were being denied, informed Oden he would need to reimburse WSI, and informed Oden he had thirty days to request reconsideration. Oden did not request reconsideration of WSI’s decision. In July 2018, WSI commenced an action in North Dakota against Oden seeking reimbursement for previous payments made to Oden. The district court in the Burleigh County case granted summary judgment in favor of WSI and awarded WSI the full amount paid to Oden, plus accruing interest, costs, and disbursements. Oden argued in the North Dakota case that WSI was bound by the Missouri workers compensation settlement because the settlement agreement included a signature of an attorney purportedly acting on behalf of WSI. The court determined WSI could not be bound by the Missouri agreement because WSI was not a party to the settlement, and there was no evidence to support a finding that the attorney who purportedly signed on behalf of WSI had any authority to represent WSI or act as WSI’s agent. Finding no reversible error, the North Dakota Supreme Court affirmed the district court.

Burr v. N.D. State Board of Dental Examiners

Citation: 2021 ND 31

Opinion Date: February 18, 2021

Judge: Jerod E. Tufte

Areas of Law: Civil Procedure, Government & Administrative Law, Professional Malpractice & Ethics

Rebecca Burr appealed a district court judgment dismissing her complaint against the North Dakota Board of Dental Examiners. In mid-2019, Burr filed a complaint with the North Dakota Board of Dental Examiners alleging a dentist previously licensed by the Board committed aggravated assault and permanently maimed her in 1989. Her original complaint to the Board stated she had reached out to the Board in 1996 by sending a letter outlining some of the same complaints that were in the 2019 formal complaint. The Board responded to Burr’s complaint with a formal letter stating that it had determined “there is not a reasonable basis to believe that a violation of NDCC 43-28-18 or the rules promulgated by the Board occurred” and that the matter was dismissed without any action having been taken. In January 2020, Burr served the Office of Management and Budget (“OMB”) a notice of claim in the amount of $250,000, alleging that the Board failed to satisfy its legal obligation to investigate her claim “and that the failure to do so caused Ms. Burr further harm, pain and suffering.” In February 2020, OMB notified Burr by letter that her claim had been denied. Burr did not pursue an administrative appeal of that decision. She then commenced this action by serving the Board and OMB with a summons and complaint in May 2020. The district court granted the Board’s motion to dismiss, finding it lacked jurisdiction, and concluding that the Board was entitled to both quasi-judicial immunity and discretionary immunity. On appeal, Burr argued the district court erred in concluding that the Board was entitled to discretionary immunity and in dismissing her complaint for failure to state a claim upon which relief can be granted. Finding no reversible error, the North Dakota Supreme Court affirmed.

Johnson v. Menard, Inc.

Citation: 2021 ND 19

Opinion Date: February 18, 2021

Judge: Gerald W. VandeWalle

Areas of Law: Civil Procedure, Personal Injury

Menard, Inc. (“Menards”) appealed an order denying a motion for summary judgment, an order denying a motion for judgment as a matter of law, an order granting attorney’s fees, an order as to the amount of attorney’s fees recoverable and entry of judgment, and a judgment. In 2013, Darlene Johnson visited a Menards store in Minot to exchange an item. A Menards employee directed Johnson to find the exchange in the store and return to the service counter. Johnson turned toward her right and started walking away. Almost immediately, Johnson tripped over a flatbed cart. The cart was one Menards offers its customers to use while in the store. As a result of the trip and fall, Johnson cracked seven teeth. 2017, Johnson filed a negligence action against Menards in small claims court seeking damages in the amount of $14,818.00. Menards removed the case to district court. Johnson then amended her claim with the consent of Menards. In the amended complaint, Johnson sought a jury trial and “a reasonable amount but not less than $50,000” in damages. Before trial, Menards moved for summary judgment contesting whether sufficient facts created a duty of care it owed to Johnson. The court denied the motion. At trial, Menards moved for judgment as a matter of law at the close of Johnson’s case. Menards again claimed insufficient evidence existed to require a duty of care Menards owed Johnson. Alternatively, Menards argued it had met any duty it owed Johnson. The court denied the motion. Menards did not renew its motion for judgment as a matter of law at the close of its case or after the jury returned the verdict. After review, the North Dakota Supreme Court affirmed the trial court, but remanded for consideration of Johnson's attorney's fees for this appeal.

AE2S Construction v. Hellervik Oilfield Technologies, et al.

Citation: 2021 ND 35

Opinion Date: February 18, 2021

Judge: Gerald W. VandeWalle

Areas of Law: Civil Procedure

Hellervik Oilfield Technologies LLC (“Hellervik”) appealed an order denying its motion to vacate a default judgment. AE2S Construction, LLC (“AE2S”) sued Hellervik and Whiting Oil and Gas, Corporation, for nonpayment of its labor, materials, and services in the construction of a mobile gas capture plant in western North Dakota. Hellervik’s registered agent, Gary Minard, received the summons and complaint on September 9, 2019. Hellervik conceded it was properly served. Hellervik did not answer or otherwise respond to the complaint within twenty- one days, as required by N.D.R.Civ.P. 12(a)(1)(A). AE2S applied for default judgment against Hellervik, without serving notice of the application on Hellervik. The district court granted the application, and judgment was entered in favor of AE2S against Hellervik. In November 2019, Hellervik moved to vacate the judgment, arguing, in part, AE2S was required to serve notice of the application for default judgment on it because it made an appearance through counsel. Prior to suit, in June and July 2019, AE2S’s attorney corresponded with Hellervik’s attorney via email. Hellervik argued this correspondence constituted an appearance. Hellervik argued the district court erred by concluding it did not make an appearance for purposes of N.D.R.Civ.P. 55(a), and abused its discretion by denying it relief under N.D.R.Civ.P. 60(b)(1) and 60(b)(6). Finding no reversible error, the North Dakota Supreme Court affirmed.

Atkins v. North Dakota

Citation: 2021 ND 34

Opinion Date: February 18, 2021

Judge: Daniel J. Crothers

Areas of Law: Constitutional Law, Criminal Law

Cody Atkins appealed district court orders denying his application for post-conviction relief and his motion to reconsider. Atkins pleaded guilty to gross sexual imposition in 2015. The North Dakota Supreme Court affirmed Atkins’s criminal judgment, and upon review of his motion for post-conviction relief, found he did not timely appeal the trial court's order denying relief. Furthermore, the Court found Atkins' motion to reconsider was another application for post-conviction relief, and the district court did not err in denying that request either.

North Dakota v. Spillum

Citation: 2021 ND 25

Opinion Date: February 18, 2021

Judge: Jon J. Jensen

Areas of Law: Constitutional Law, Criminal Law

Sean Spillum was convicted by jury of possession of certain materials prohibited. Spillum was under criminal investigation for uploading suspected child pornography to a cloud storage service. Officers interviewed Spillum on three separate occasions regarding electronic devices that were seized from Spillum’s home and the explicit material discovered on the devices. A day before his third interview, a warrant had been issued for Spillum’s arrest. Officers did not notify Spillum of the existence of the arrest warrant before or during the interview. At the beginning of the interview, the officers told Spillum he was not under arrest. Spillum was informed he was not required to speak with law enforcement or answer their questions. The officers offered to assist Spillum obtain an attorney at his request. Spillum did not request an attorney, and he answered the officers’ questions. At the end of the interview, officers informed Spillum he was not permitted to leave and placed him under arrest. Spillum argued on appeal that the State failed to establish the offense was committed within Ward County, North Dakota. Spillum also argued the district court erred in denying his motion to suppress because he was subject to a custodial interrogation and entitled to Miranda warnings after an arrest warrant had been issued. Finding no reversible error, the North Dakota Supreme Court affirmed Spillum's conviction.

North Dakota v. Watson

Citation: 2021 ND 18

Opinion Date: February 18, 2021

Judge: Gerald W. VandeWalle

Areas of Law: Constitutional Law, Criminal Law

James Watson appealed the denial of his motion to withdraw his guilty plea to continuous sexual abuse of a child. Watson argued the district court failed to properly analyze his understanding of the terms of the plea agreement, and the court did not make factual findings or legal conclusions to support its decision. Finding no reversible error, the North Dakota Supreme Court affirmed Watson's conviction.

North Dakota v. Youngbird

Citation: 2021 ND 21

Opinion Date: February 18, 2021

Judge: Jerod E. Tufte

Areas of Law: Constitutional Law, Criminal Law

Shalee Youngbird appealed an amended judgment to include restitution. Youngbird pled guilty to theft of property, reckless endangerment, and duty in accident involving death or personal injury. At the change of plea hearing, Youngbird pled guilty and the State presented the factual basis for Youngbird’s guilty plea. Youngbird agreed to this factual basis and the State provided a sentencing recommendation, which included restitution. The district court then sentenced Youngbird, informing the parties on the record that restitution would be left open for 90 days. Two months later, the State moved to amend the criminal judgment, requesting the court amend it to include restitution. Neither party requested a hearing on the motion, nor was a restitution hearing held. An order amending judgment to include restitution was filed, and a subsequent order amending judgment to include restitution, attributing the restitution to two of the counts, was filed a month later. Youngbird argued the district court lost jurisdiction to order restitution, erred in ordering restitution and erred in the amount of restitution, and erred by failing to hold a hearing on restitution. The North Dakota Supreme Court reversed the amended criminal judgment and remanded for a hearing on restitution.

Whetsel v. North Dakota

Citation: 2021 ND 28

Opinion Date: February 18, 2021

Judge: Jon J. Jensen

Areas of Law: Constitutional Law, Criminal Law

Byron Whetsel appealed an order denying his petition for post-conviction relief. Because the district court summarily dismissed Whetsel’s application subsequent to the State filing a response to the application without allowing Whetsel an opportunity to reply to the State’s assertions, and in the absence of a pending motion by the State, the North Dakota Supreme Court reversed and remanded.

Matter of Hehn

Citations: 2020 ND 226, 2021 ND 20

Opinion Date: February 18, 2021

Judge: Lisa K. Fair McEvers

Areas of Law: Criminal Law, Government & Administrative Law

Darl Hehn appealed a district court order denying his petition for discharge from civil commitment as a sexually dangerous individual. The North Dakota Supreme Court the case to the district court for further findings and retained jurisdiction under N.D.R.App.P. 35(a)(3). Upon return, the Supreme Court concluded the trial court did not err in holding the State proved Hehn remained a sexually dangerous individual. The Court affirmed the trial court’s order as supplemented by its order entered on remand.

McClintock v. NDDOT

Citation: 2021 ND 26

Opinion Date: February 18, 2021

Judge: Lisa K. Fair McEvers

Areas of Law: Criminal Law, Government & Administrative Law

The North Dakota Department of Transportation appealed a district court judgment reversing a Department hearing officer’s decision suspending James McClintock’s driving privileges for a period of 91 days. The Department argued the court erred in reversing because the greater weight of the evidence showed the Intoxilyzer 8000 was installed by a field inspector before its use. To this the North Dakota Supreme Court concurred, reversed the judgment and reinstated the hearing officer’s decision.

Orwig v. Orwig

Citation: 2021 ND 33

Opinion Date: February 18, 2021

Judge: Gerald W. VandeWalle

Areas of Law: Family Law

Mary Orwig appealed and Steven Orwig cross-appealed a divorce judgment distributing the parties’ property and awarding Mary spousal support. Mary argued the district court erred in determining the value of certain property, distributing the parties’ assets, and failing to award her permanent spousal support. Steven argued the court erred by ordering him to pay Mary's attorney’s fees. The North Dakota Supreme Court affirmed the district court’s property division and spousal support award, but reversed its attorney’s fees award. The matter was remanded for reconsideration of fees.

Paulson v. Paulson

Citation: 2021 ND 32

Opinion Date: February 18, 2021

Judge: Lisa K. Fair McEvers

Areas of Law: Family Law

Shannon Belgarde appealed an order denying her motion to vacate a divorce judgment, which was entered pursuant to a stipulation. Shannon Belgarde (formerly Paulson) and Kristofor Paulson married in 2013. They divorced on December 4, 2019 based on a stipulated settlement agreement signed by both parties and filed with the district court on November 12, 2019. Neither party was represented by counsel during the drafting or execution of the settlement agreement. Belgarde moved to vacate the divorce judgment under N.D.R.Civ.P. 60(b), arguing the judgment should be vacated on the grounds of duress, newly discovered evidence, fraud, misrepresentation, misconduct, and because the divorce stipulation was so one-sided as to be unconscionable. Belgarde argued she relied on Paulson’s statements regarding future reconciliation when she signed the settlement agreement. She stated she did not realize these statements were false until she discovered evidence of an alleged affair. Belgarde also argued the divorce stipulation was so one-sided as to be unconscionable. Belgarde submitted affidavits and several exhibits in support of her motion. Finding no reversible error in the district court's judgment, the North Dakota Supreme Court affirmed.

Stoddard v. Singer

Citation: 2021 ND 23

Opinion Date: February 18, 2021

Judge: Daniel J. Crothers

Areas of Law: Family Law

Daniel Stoddard appealed a district court order and judgment amending the parenting plan between Stoddard and Christina Singer for their minor child, M.S.S. Stoddard presented twelve issues, contending the district court erred in its determination a change in primary residential responsibility was unwarranted. The North Dakota Supreme Court reduced Stoddard’s issues to the four arguments addressed in its opinion, and ultimately affirmed the district court’s order and judgment . Stoddard did not meet his burden of proof regarding: primary residential responsibility; not appointing a parenting investigator; and delaying the emergency hearing. The Court reversed the district court’s order preventing Stoddard from proceeding on a psychological parent claim related Singer's child from a previous relationship, J.B.G.

Willprecht v. Willprecht

Citation: 2021 ND 17

Opinion Date: February 18, 2021

Judge: Daniel J. Crothers

Areas of Law: Family Law

Kevin Willprecht appealed an amended judgment altering his child support and spousal support obligations. Kevin argued the district court erred in awarding spousal support without reconsidering the Ruff-Fischer guidelines, by failing to analyze Wendy Willprecht’s spousal need as reflected by her living expenses, and because the spousal support award exceeded Kevin's ability to pay. After review, the North Dakota Supreme Court reversed and remanded the district court’s spousal support award for further proceedings: "Although the district court concluded a new income disparity arose because of step-down provisions being added to the child support obligation, it failed to adequately assess Kevin Willprecht’s ability to meet the new obligation for spousal support."

Thompson-Widmer v. Larson, et al.

Citation: 2021 ND 27

Opinion Date: February 18, 2021

Judge: Lisa K. Fair McEvers

Areas of Law: Government & Administrative Law, Labor & Employment Law, Legal Ethics, Professional Malpractice & Ethics

Carrie Thompson-Widmer appealed the dismissal of her claims of defamation and tortious interference with a business relationship against Kimberly Larson, Wells County, Eddy County, and Foster County. In January 2017, Larson filed a formal complaint with the State Board of Social Work Examiners against Thompson-Widmer on the basis of Thompson-Widmer’s actions in two child protection services cases. Larson alleged Thompson-Widmer misrepresented information about a child’s home environment in one case, and altered a report about methamphetamine in an infant’s meconium in the other case. Larson also met with a state’s attorney about Thompson-Widmer’s actions. The attorney referred the matter to a special prosecutor for consideration of potential criminal charges. Because the complaint to the State Board was filed while Thompson-Widmer was a Tri-County employee, Larson placed the complaint and the supporting documents in Thompson-Widmer’s employee personnel file. After the criminal investigation into Thompson-Widmer’s action was suspended, she became employed with Catholic Charities in April 2017. Tri-County worked with Catholic Charities on adoption placement cases. Larson’s staff informed her they did not feel comfortable working with Thompson- Widmer. Larson notified Catholic Charities that Tri-County would rather work with someone other than Thompson-Widmer. Catholic Charities submitted an open records request for Thompson-Widmer’s personnel file, and Larson fulfilled the request on Tri-County’s behalf. In May 2017, after receiving the personnel file, which included Larson’s complaint against Thompson-Widmer, Thompson-Widmer was terminated because she was not forthcoming about her issues while employed by Tri-County. After review, the North Dakota Supreme Court affirmed, concluding Larson’s communications were privileged and therefore not subject to liability for defamation.

Estate of Johnson

Citation: 2021 ND 22

Opinion Date: February 18, 2021

Judge: Jon J. Jensen

Areas of Law: Trusts & Estates

Neil Olson appealed a district court order dismissing his second petition requesting formal probate proceedings for the Estate of his great-uncle, Neil Johnson. The court found Neil Olson was estopped from challenging the court’s prior finding that he was not an interested person under N.D.C.C. 30.1-01-06(26) and therefore lacked standing to assert his claims. To this, the North Dakota Supreme Court concurred and affirmed the dismissal of Olson’s second petition.