stated a case for retaliatory discharge requires the employee to show
he engaged in protected activity, the employer took adverse action
against the employee, and the existence of a causal connection
between the employee’s protected activity and the employer’s adverse
action. In this case, plaintiff failed to identify any law or regulation
allegedly violated by Walmart, that he complained of, only that, in
his view, the action of Walmart was “unfair.” The court said “unfair”
conduct is not synonymous with “illegal” conduct and, therefore, the
plaintiff was not engaging in protected activity that resulted in his
dismissal. The district court order was affirmed.
WSI v. Beaulieu, 2018 ND 213
The plaintiff appealed from a district court judgment reversing an
order of an administrative law judge (ALJ), which had awarded
plaintiff WSI benefits. The Supreme Court concluded the ALJ’s
order, finding Beaulieu had a 50 percent permanent partial
impairment rating and awarding permanent partial impairment
and permanent total disability benefits, was not in accordance with
the law and not supported by the evidence. The Supreme Court
concluded, because the evidence in the case was insufficient to
establish that the report of Beaulieu’s doctor assigning him a “50
percent permanent total disability” was conducted and based upon
the 6th Edition of the “American Medical Association Guides to
Permanent Impairment,” the ALJ award to Beaulieu, based upon
that report and findings, was not sustainable. The Supreme Court
affirmed the district court judgment that reversed the ALJ order
awarding WSI benefits to Beaulieu.
State v. Hussein, 2018 ND 209
The defendant appealed a district court judgment entered on a
jury verdict finding him guilty of simple assault on a peace officer.
On appeal, defendant challenged the sufficiency of the evidence to
support the jury verdict, arguing the state did not present evidence
that the peace officer was “impaired of physical condition” because
of the assault. In summarily affirming the district court judgment,
the Supreme Court concluded that pain is a qualifying, but not
necessary, circumstance of bodily impairment under the criminal
statute defendant was charged under, thus affirming the district court
judgment.
State v. Vanberkom, 2018 ND 167,
913 N.W.2d 764
The defendant appealed from a criminal judgment entered after
the district court found him guilty of reckless driving. The Supreme
Court affirmed because there was sufficient evidence of reckless
driving to support the conviction and double jeopardy did not bar the
prosecution.
The defendant argued jeopardy attached when he was convicted of
care required (in the operation of a motor vehicle) in violation of
N.D.C.C. § 39-09-0.1 and a subsequent charge of reckless driving
for the same conduct violated his constitutional rights against double
jeopardy. The Supreme Court rejected this argument because the
care required conviction, under its statute, carried a penalty of only
a $30 administrative fee and is not classified as a criminal offense,
nor does it resemble one in terms of severity. The Supreme Court
stated a modest, non-punitive administrative fee imposed for a
moving violation is not a basis for a double jeopardy claim. Thus, the
constitutional protection against double jeopardy was not applicable
in the case and did not prevent the defendant from being charged
and convicted of reckless driving even though the latter criminal
prosecution was premised on the same conduct as was the non-
criminal moving violation of care required.
McDonald Honored
by North Dakota
Broadcasters Association
The North Dakota Broadcasters Association (NDBA)
presented Jack McDonald with the 2018 Pioneer Award on
Aug. 22 at the NDBA annual leadership conference awards
luncheon in Bismarck. The Pioneer Award is presented to an
individual who is an icon and leader in the broadcast industry
throughout North Dakota. McDonald, a Bismarck native,
has served as a champion for North Dakota broadcasters,
representing radio and television stations across the state
through his legal and lobbying efforts.
McDonald is currently a senior partner at the Wheeler Wolf
Law Firm and splits his time between first amendment and
communication law, lobbying, and corporate bankruptcy law.
He graduated from the University of North Dakota (UND)
with a bachelor of arts degree in journalism in 1962, a master
of arts degree in journalism from the American University of
Washington, D.C., in 1967, and a juris doctor degree from the
UND School of Law in 1970. He has worked for a number
of North Dakota newspapers, radio, and television stations, as
well as the Associated Press in Sioux Fall, S.D., and United
Press International
in Fargo. He
started working
in private practice
in 1977 and has
been a lobbyist
for 40 years for
numerous groups
and associations.
McDonald has
also served on
many boards,
including serving
as president
of both the
SBAND Board of
Directors and the
Bar Association
Foundation.
FALL 2018
23