The Selfie Coup: How to Tell If Your Government Is Plotting to Overthrow Itself

DEAN FALVY

Dean Falvy, a lecturer at the University of Washington School of Law in Seattle, describes how to tell whether a government is plotting to overthrow itself—a phenomenon he calles a “Selfie Coup.” Falvy explains the difference between a Selfie Coup and creeping authoritarianism by providing examples of both and argues that the more aware civil society is of the possibility of a Selfie Coup, the more likely it can prepare its defenses in time to prevent it.

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McCormick, et al. v. Fredericks

Citation: 2020 ND 161

Opinion Date: July 22, 2020

Judge: Daniel J. Crothers

Areas of Law: Business Law, Civil Procedure

Terrance Fredericks appealed a district court judgment ordering him to pay more than $1,000,000 in damages to McCormick, Inc.; Native Energy Construction, LLC; and Northern Improvement Company. McCormick and Northern Improvement cross-appealed a judgment denying their motion for a judicially supervised winding up of Native Energy. In 2010, McCormick and Fredericks created Native Energy Construction to engage in construction operations related to oil production. McCormick and Fredericks executed a purchase agreement in April 2014 for Fredericks’ purchase of McCormick’s interest in Native Energy. Fredericks was unable to complete the purchase. The parties did not wind up Native Energy and the business was involuntarily dissolved by the North Dakota secretary of state in May 2015. In 2016, McCormick and Northern Improvement sued Fredericks, alleging he breached contractual and fiduciary duties owed to Native Energy, McCormick and Northern Improvement. McCormick alleged Fredericks took distributions from Native Energy without making a corresponding distribution to McCormick, wrongfully converted Native Energy’s assets for his own use, made improper payments to his wife and performed other business activities on behalf of Native Energy without McCormick’s authorization. Fredericks counterclaimed, alleging McCormick breached a fiduciary duty by taking the 5% management fee from Native Energy’s gross revenues. Fredericks requested the judicially-supervised winding up of Native Energy. The North Dakota Supreme Court affirmed in part and reversed in part. The portion of the final judgment ordering Fredericks to pay McCormick $49,795.76 was reversed and remanded for further proceedings. The remainder of the final judgment was affirmed. The judgment denying McCormick’s motion for a judicially supervised winding up of Native Energy was reversed and remanded for further proceedings.

Varty v. Varty

Citation: 2020 ND 165

Opinion Date: July 22, 2020

Judge: Daniel J. Crothers

Areas of Law: Civil Procedure, Family Law

Kathleen and Thomas Varty divorced in 2011. In August 2017, Thomas moved to terminate spousal support to Kathleen. The district court reduced his obligation and Kathleen appealed. The North Dakota Supreme Court affirmed. Kathleen moved under Rule 60(b) of the North Dakota Rules of Civil Procedure for relief from judgment, alleging that during the marriage Thomas obtained shares in a “phantom” stock plan from a former employer. She claimed she was entitled to half of the $72,400 sale proceeds received by Thomas in February 2016. Thomas opposed the motion, arguing the stock had no value on the date of the divorce and did not become vested until after the divorce. After a hearing, the district court granted Kathleen relief from judgment and awarded her half of the net proceeds Thomas received. On appeal, Thomas argued the district court abused its discretion when considering Kathleen's untimely filed reply brief, when it granted Kathleen's untimely request for oral arguments, and when it found it was unconscionable for Thomas to exclusively enjoy the benefits from the stock accrued during the marriage. Further, he claimed it was clearly erroneous for the court to order Thomas to pay Kathleen one-half of the net proceeds from the stock, and the court erred as a matter of law and abused its discretion when it did not set aside the entire 2011 judgment. The North Dakota Supreme Court found that the district court concluded the agreement was free from fraud and that it would be unconscionable not to give Kathleen half of the stock. The Supreme Court found the district court did not explain the terms of the marital termination agreement and how not receiving 50% of the stock made the stipulation and resulting judgment as a whole so one-sided and created such hardship that it was unconscionable. Therefore, the district court abused its discretion by misinterpreting or misapplying the law; judgment was reversed and the matter remanded for further proceedings.

Fredericks, et al. v. Vogel Law Firm, et al.

Citation: 2020 ND 171

Opinion Date: July 22, 2020

Judge: Gerald W. VandeWalle

Areas of Law: Civil Procedure, Legal Ethics

Terrance Fredericks appealed a district court order dismissing his lawsuit against the Vogel Law Firm and its attorneys Monte Rogneby and Maurice McCormick, McCormick Inc., and Northern Improvement Company. In the earlier (2016) lawsuit Northern Improvement and McCormick, individually and on behalf of Native Energy, sued Fredericks for breaching contractual and fiduciary duties. Fredericks counterclaimed, alleging McCormick breached fiduciary duties. The jury found that McCormick and Northern Improvement did not breach duties owed to Native Energy or Fredericks. Vogel represented McCormick and Northern Improvement in the 2016 lawsuit. Fredericks sought to disqualify Vogel after testimony revealed Vogel may have indirectly provided services to Native Energy in 2010 and 2011 when it reviewed certain agreements that were later executed by Native Energy and third-party oil companies. The district court declared a mistrial and disqualified Vogel from representing McCormick. McCormick moved for reconsideration of the court’s decision to disqualify Vogel. After a hearing, the court did not disqualify Vogel, ruling it had not represented Native Energy by reviewing the agreements. In December 2017, Fredericks moved to add Vogel as a third-party defendant, claiming it committed legal malpractice by breaching fiduciary duties owed to Native Energy and Fredericks. Fredericks’ motion also sought to amend his counterclaims against McCormick and Northern Improvement. In April 2018, the district court allowed Fredericks to amend his claims against McCormick and Northern Improvement, but denied his motion to join Vogel as a third-party defendant. In February 2019, Fredericks, individually and derivatively on behalf of Native Energy Construction, filed the instant lawsuit against Vogel, McCormick, and Northern Improvement. Fredericks’ complaint alleged that Vogel had a conflict of interest because it had provided legal services to Native Energy in 2010 and 2011, and its current representation of McCormick was adverse to Native Energy and Fredericks. Fredericks alleged Vogel committed legal malpractice by disclosing Native Energy’s and Fredericks’ confidential information to McCormick. Fredericks also alleged McCormick and Northern Improvement breached fiduciary duties owed to Native Energy and Fredericks. The district court concluded res judicata barred Fredericks’ claims. Finding no reversible error in that decision, the North Dakota Supreme Court affirmed.

City of Fargo v. Wieland

Citation: 2020 ND 170

Opinion Date: July 22, 2020

Judge: Jon J. Jensen

Areas of Law: Civil Procedure, Real Estate & Property Law, Zoning, Planning & Land Use

In 2019, the district court entered a judgment awarding Karen Wieland $850,000 as just compensation for the taking of her property. The following day, the City of Fargo deposited $850,000 with the Cass County Clerk of Court. In March 2019, the district court amended the judgment to include an additional $89,044.32 for attorney fees and costs. That same day, the City deposited an additional $89,044.32 with the Cass County Clerk of Court. Wieland appealed the amended judgment. In her prior appeal, Wieland argued the eminent domain action should have been dismissed because the City failed to pay or deposit post-judgment interest subsequent to the City depositing the full amount of the judgment in court. The North Dakota Supreme Court concluded there was no authority that required dismissal of an eminent domain action upon a political subdivision’s failure to pay or deposit post-judgment interest subsequent to the deposit of the full amount of the judgment in court. The Supreme Court affirmed the district court’s amended judgment awarding Wieland $939,044.32 for just compensation and attorney’s fees in the eminent domain action; the decision was limited to Wieland's request dismiss the proceedings in their entirety. In that prior appeal, the Supreme Court noted a potential issue of whether a landowner who appeals a judgment in eminent domain proceedings, without accepting or withdrawing deposited funds, was entitled to post-judgment interest subsequent to the deposit of the full amount of the judgment in court. Wieland did not raise that issue in her appeal, so the Supreme Court declined to opine on it. Following the issuance of the Supreme Court's mandate, Wieland moved for payment of the original amended judgment that had been deposited by the City in court, plus any accrued post-judgment interest. The district court denied the request for post-judgment interest after determining the accrual of interest was suspended once the City deposited the original amended judgment amount with the court and that it did not have the authority to further amend the judgment after the Supreme Court’s affirmance of the original amended judgment without remand on the prior appeal. Wieland appealed the denial of her request, and raised the issue the Supreme Court left unaddressed in the prior appeal. The Supreme Court determined that absent a absent a statutory provision to the contrary, the accrual of interest was suspended by the City’s deposit of the judgment amount. Therefore, the district court's order denying Wieland's request for post-judgment interest was affirmed.

Laufer v. Doe

Citation: 2020 ND 159

Opinion Date: July 22, 2020

Judge: Daniel J. Crothers

Areas of Law: Civil Procedure, Real Estate & Property Law

Dustin Laufer appealed the dismissal of his complaint alleging property damage caused by Warren Doe’s agricultural chemical application. In November 2018, Laufer sued Doe, alleging Laufer’s crops were damaged when Doe sprayed a neighboring field with herbicide and the herbicide drifted onto Laufer’s land. Laufer argued the district court misapplied the law by dismissing his claim for failing to comply with statutory notice requirements. The North Dakota Supreme Court affirmed, concluding Laufer was required to strictly comply with the notice requirements and the district court did not err by dismissing Laufer’s complaint.

Interest of K.V.

Citation: 2020 ND 169

Opinion Date: July 22, 2020

Judge: Lisa K. Fair McEvers

Areas of Law: Constitutional Law, Criminal Law, Juvenile Law

In early 2019, Devils Lake Police Officer Gilbertson was dispatched on a report of a possibly impaired driver. Gilbertson pulled the vehicle over and as he reached the back of the vehicle, the vehicle fled the scene. Gilbertson pursued; another officer attempted to deploy road spikes. The vehicle avoided the spikes and zig-zagged through a field until it became stuck in the snow. When the occupants did not leave the vehicle, Gilbertson approached the vehicle, reached in, put it in park, smelling a strong odor of marijuana. After removing and arresting the driver, officers removed passenger, K.V. Another responding officer, Officer Engen, Engen did a pat down search of K.V. and found drug paraphernalia, a bong, and a bag of meth in K.V.’s jacket. Engen averred he patted down K.V. to search for weapons as a safety issue and to look for illegal drugs. K.V. was alleged to be a delinquent child, charged with possession of a controlled substance and possession of drug paraphernalia. K.V. filed a motion to suppress, contending there was no exception for the warrantless search and the search was prohibited by the Fourth Amendment. The juvenile court denied the motion to suppress on the record, finding: “There was marijuana in the vehicle. You were in the vehicle [K.V.]. Once [the officers] establish that they had the smell of marijuana in the vehicle, they had the right to search you and they found the methamphetamine in the coat pocket that you were wearing.” The court denied K.V.’s renewed motion to suppress at the adjudication hearing. K.V. was adjudicated a delinquent child for possession of methamphetamine and possession of drug paraphernalia. Although the juvenile court court received testimony about the officers’ concern for their safety and the smell of marijuana, the North Dakota Supreme Court found the juvenile court did not make specific findings on the reasonableness of the pat down or subsequent search. "It did not identify which exception to the warrant requirement justified the search in its conclusions of law. We are unable to understand the court’s reasoning for its decision and are left to speculate as to the law and facts the court relied on in denying the motion to suppress." Judgment was reversed and the matter remanded for reconsideration of the suppression order.

Interest of Skorick

Citation: 2020 ND 162

Opinion Date: July 22, 2020

Judge: Gerald W. VandeWalle

Areas of Law: Constitutional Law, Criminal Law

Edward Skorick appealed from a district court order civilly committing him as a sexually dangerous individual. In September 2018, the State petitioned to have Skorick civilly committed. Two experts, Dr. Richard Travis and Dr. Stacey Benson, submitted reports and each opined that Skorick met the criteria of a sexually dangerous individual and recommended that Skorick be committed as a sexually dangerous individual. Skorick argued the court erroneously considered the experts’ reports in making its decision. The North Dakota Supreme Court found the district court indeed relied on Dr. Benson’s and Dr. Travis’ reports in making its decision. The district court’s memorandum decision and order stated that although Dr. Benson did not testify at the hearing, the court “received and reviewed her report.” The court’s order also stated, “The [report] of each psychologist was reviewed extensively by the court in preparation for the hearing and again following the hearing. The findings that follow are based upon a weighing of the testimony and credibility of each psychologist in light of their respective evaluative findings.” The State conceded the district court may have erroneously considered Dr. Benson’s report. The State did not offer the report into evidence at the commitment hearing; however, it argued any error in considering the report was harmless. The Supreme Court found the court’s order specifically mentioned Dr. Benson’s report seven times in its findings of fact. To the extent the court relied on Dr. Benson’s report in making its decision, the Supreme Court could not conclude its reliance on the report was harmless, therefore finding the court abused its discretion in considering Dr. Benson’s report. With regard to Dr. Travis’ report, the State did not offer it into evidence, and the district court’s order was silent on whether it was part of the hearing record. Because the Supreme Court was uncertain whether Dr. Travis’ report was admitted at the hearing, it reversed and remanded for a determination of whether the report was part of the hearing record. If not, the court had to make findings on whether Skorick was a sexually dangerous individual on the basis of Dr. Travis’ testimony at the hearing.

North Dakota v. Helm

Citation: 2020 ND 155

Opinion Date: July 22, 2020

Judge: Daniel J. Crothers

Areas of Law: Constitutional Law, Criminal Law

Steven Helm appealed after he was found guilty of driving under the influence, a fourth offense in fifteen years. He argued the State failed to present evidence on the second essential element that he was under the influence. Because Helm failed to preserve the issue he argued on appeal, the North Dakota Supreme Court affirmed.

North Dakota v. Scott

Citation: 2020 ND 160

Opinion Date: July 22, 2020

Judge: Lisa K. Fair McEvers

Areas of Law: Constitutional Law, Criminal Law

Richard Scott was convicted by jury of solicitation of a minor and child neglect. Scott argued the district court erred when it did not instruct the jury on the defense of double jeopardy. He also argues the court erred when it did not conduct a hearing concerning the trustworthiness of the child-victim’s out-of-court statements under N.D.R.Ev. 803(24). Finding no reversible error, the North Dakota Supreme Court affirmed.

Norby v. Hinesley, et al.

Citation: 2020 ND 153

Opinion Date: July 22, 2020

Judge: Daniel J. Crothers

Areas of Law: Family Law

Aimee Norby and Robert Hinesley were the parents of a child born in 2012. In 2014, Norby filed and served a complaint seeking primary residential responsibility over the child. Norby was awarded primary residential responsibility, and Hinesley was awarded parenting time. In March 2019, Norby married Lyle Anderson. Anderson worked as a diesel mechanic in the Williston, North Dakota, area. Anderson grew up in Smithville, Missouri, and owned a home there. Smithville was a town of approximately 10,000 people about twenty minutes north of Kansas City, Missouri. Norby and Anderson resided in Williston with the Norby’s and Hinesley’s child. Hinesley also lived in Williston. Norby filed a motion to relocate to Smithville with the child. Hinesley opposed Norby’s motion and filed a motion to change primary residential responsibility or modify parenting time. The district court denied Norby’s motion to relocate. On appeal, Norby argued the district court erred in denying her motion, that the district court’s findings under the two Stout-Hawkinson factors were clearly erroneous. She argued the evidence demonstrated an out of state move had prospective advantages that would improve her and the child’s quality of life. The North Dakota Supreme Court concluded sufficient evidence supported the district court’s finding on factor one. Norby also argued the district court’s findings were clearly erroneous because there was no indication the move was premised upon an effort to limit Hinesley’s parenting time. The Supreme Court concluded sufficient evidence supported the district court’s finding on factor two. The Court thus affirmed denial fo Norby's motion to relocate.

Schroeder, et al. v. North Dakota

Citation: 2020 ND 167

Opinion Date: July 22, 2020

Judge: Jerod E. Tufte

Areas of Law: Government & Administrative Law, Personal Injury

Duane and Lynae Schroeder, parents of Brooke Schroeder, and Lynae Schroeder, as personal representative of the Estate of Brooke Schroeder, appealed the grant of summary judgment dismissing their action against the State of North Dakota related to a car accident, which resulted in their daughter’s death. In January 2017, Brooke was driving a vehicle eastbound on Interstate 94 in Barnes County. Before crossing an overpass at 109th Avenue Southeast, the vehicle drifted out of the eastbound passing lane, hit a snowbank adjacent to the guardrail on the overpass, and vaulted over the guardrail. Brooke was injured in the accident and died. The Schroeders sued the State for economic and non-economic damages, alleging the State’s negligence or gross negligence in performing its winter road maintenance and snow removal obligations caused the accident, Brooke's injuries, and ultimately her death. They claimed the snowbank adjacent to the guardrail eliminated any safety or protection provided by the guardrail and created an unreasonably dangerous condition. On appeal, the Schroeders argued the district court erred in granting summary judgment and determining their claims were precluded because the State was immune from liability under statutory public duty and snow and ice immunities. The North Dakota Supreme Court concluded the district court properly determined statutory immunity precluded the Schroeders’ claims.

Beam v. WSI et. al.

Citation: 2020 ND 168

Opinion Date: July 22, 2020

Judge: Gerald W. VandeWalle

Areas of Law: Labor & Employment Law, Personal Injury

North Dakota Workforce Safety and Insurance (WSI) appealed a district court judgment reversing an administrative law judge’s (ALJ) decision terminating Gregory Beam’s benefits. Beam was injured in 2016 while working for his employer, Gagnon, Inc. (Gagnon), installing sheets of metal. At the time Beam applied for workers compensation benefits, Gagnon submitted a job description for machinist as Beam’s position with the company at the time of his injuries. A Functional Capacity Evaluation identified Beam could occasionally climb ladders and kneel, but was unable to crouch or crawl. After completion of the evaluation, WSI identified Beam’s transferable skills and physical capabilities. WSI determined Beam’s pre-injury occupation was that of a sheet metal worker, not a machinist as submitted by Gagnon. WSI forwarded a list of job descriptions to Beam’s treating physician, Dr. Kelly, for approval. The description for the physical requirements of a machinist stated the position required “[o]ccasional stooping, kneeling and crouching;” the description for a sheet metal worker were "“[f]requent stooping, handling and reaching & occasional fingering.” Dr. Kelly did not approve Beam returning to work as a machinist, stating, “I don’t think the knee will tolerate the potential kneeling.” Dr. Kelly did approve Beam returning to work as a sheet metal worker. Based on Dr. Kelly’s approval for Beam to return to work as a sheet metal worker, WSI determined Beam could return to work in the same occupation, any employer, and discontinued Beam’s benefits. The ALJ found the job description of a machinist did not match Beam’s pre-injury profession. The ALJ found the preponderance of the evidence established Beam could return to the occupation of sheet metal worker, but could not return to his pre-injury position with Gagnon. The district court determined the ALJ’s findings of fact were not supported by a preponderance of the evidence and reversed. Applying its deferential standard of review, the North Dakota Supreme Court concluded there was evidence in the record from which a reasoning mind could have reasonably concluded WSI’s rehabilitation plan would return Beam to substantial gainful employment. It therefore reversed the district court and reinstated the ALJ's decision.