Fall 2018 Gavel Gavel Fall 2018 | Page 23

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