North Dakota Supreme Court Highlights
By Michael J . Morley
Authors ’ s Note and Caveat : The following cases of interest were recently decided by the North Dakota Supreme Court . Because the following contain the editor ’ s summary of the decisions , the reader is encouraged to read the entire published decision to determine its precedential value , if any , in a given case .
Disciplinary Board v . Ward , 2016 ND 115 , 881 N . W . 2d 226
In an application for disciplinary action against a lawyer , the North Dakota Supreme Court declined to adopt the hearing panel ’ s recommendation for discipline and dismissed the petition for discipline because the attorney ’ s conduct constituted nothing more than an isolated instance of ordinary negligence . Thus , there was not clear and convincing evidence of a violation by the attorney of North Dakota Rules of Professional Conduct 1.1 and 1.3 ( the Rules requiring lawyer competency and diligence , respectively ). The Supreme Court agreed with the observation of the Arizona Supreme Court that recognized the distinction between conduct by an attorney that is simply negligent ( for which a malpractice action may lie ) and conduct that arises to the level of an ethical violation when that same neglect is also accompanied by some other violation , such as an impermissible conflict of interest or repeated acts of negligence .
Frith v . The Park District of the City of Fargo , 2016 ND 213 , 886 N . W . 2d 836
In this case , the North Dakota Supreme Court stated that a park district of a municipality is a political subdivision . A tort claim for bodily injuries against a political subdivision must be commenced within three ( 3 ) years after the cause of action accrues , pursuant to N . D . C . C . § 32-12.1-10 . The statute of limitations generally begins to run from the commission of the wrongful act giving rise to the cause of action unless an exception , such as the “ discovery rule ,” applies . A civil action is commenced by the service of a Summons . Valid service of process is necessary for a court to acquire personal jurisdiction over a defendant . A party must strictly comply with the requirements for service of process . Mere filing of a Summons and Complaint is not proper commencement of an action , allowing a court to acquire personal jurisdiction over the defendant . Even if the action is filed within the statute of limitation period , when the Summons and Complaint were not properly served until after the expiration of the statute of limitations , the commencement of the action was untimely and had to be dismissed . The Court also held that Rule 6 ( b ), N . D . R . Civ . P ., which allows a court to extend the time
Michael J . Morley received his juris doctor with distinction and was admitted to the Order of the Coif upon graduation from the University of North Dakota School of Law in 1979 . That same year , he was admitted to practice law in North Dakota State Courts and the United States District Courts for the District of North Dakota . In 1981 , he was admitted in the Minnesota State Courts and the United State District Court for the District of Minnesota , as well as the United States Court of Appeals for the Eighth Circuit . He is a member of the State Bar Associations of North Dakota and Minnesota and is currently president and shareholder of Morley Law Firm , Ltd ., in Grand Forks . for an act if good cause is shown for the need for an extension , does not apply to periods of time which are definitely fixed by statute . Therefore , a District Court does not have authority under Rule 6 ( b ) to extend a statute of limitation .
State v . Clayton , 2016 ND 131 , 881 N . W . 2d 239
This was a case where the defendant was involved in a fight with his father . Defendant pled guilty to a reduced charge of simple assault and was ordered to pay restitution of almost $ 25,000 for medical expenses of the victim . Defendant objected to the restitution award , arguing that the State did not meet its burden of proof , i . e ., that the assault directly resulted in the injuries for which the medical expenses were ordered . The North Dakota Supreme Court noted that restitution is limited to those damages “ directly related to the criminal offense and expenses actually incurred as a direct result of the defendant ’ s criminal action .” ( internal citation omitted ). This direct relationship requires “ an immediate and intimate causal connection between the criminal conduct and the damages or expenses for which restitution is ordered .” ( internal citation omitted ). The State has the burden in a restitution hearing only to prove the amount of restitution by a preponderance of the evidence and the appellate standard of review of a District Court ’ s restitution order is similar to an abuse of discretion standard . The restitution order was affirmed .
State v . Adan , 2016 ND 215 , 886 N . W . 2d 841
In this interesting and somewhat factually complex case , a police officer observed a vehicle weaving on an interstate highway and noticed it was from out of state . After turning around to follow it , the officer noted the vehicle slowed down . From several car lengths behind , the officer saw the driver reach into the backseat of the vehicle and appeared to place a blanket or jacket over something in the backseat . The officer pulled alongside the vehicle and observed the driver and occupant . However , not seeing any traffic infractions , the officer stopped following the vehicle . Although not seeing any traffic infractions , the officer called a fellow officer and relayed his suspicions and told him to be on the lookout for this vehicle . The second officer located the suspicious vehicle , observed it speeding and following too close behind the vehicle in front of it and because of those traffic violations , pulled it over and initiated a traffic stop . During the traffic stop , the second officer noted that the driver was nervous and evasive , touched his face , licked his lips , and his shoulders quivered . The vehicle was a rental vehicle and , even though the driver indicated he was traveling a lengthy route , the officer did not observe any luggage in the vehicle . The driver was also inconsistent about his travel plans . Through a records check , the second officer discovered that the driver was recently placed on probation for possession of meth . The driver denied the presence of any illegal drugs in the vehicle . After the traffic stop , the officer issued the driver a warning and requested his consent to search
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