GOP-Packed Appeals Court Splits Hairs to Give Florida GOP a Victory Over Florida Voters

MICHAEL C. DORF

Cornell law professor Michael C. Dorf comments on a recent decision by the Eleventh Circuit sitting en banc, in which the court upheld Florida’s Section 0751, by which the Republican-controlled state legislature gutted a voter referendum that would have restored the right to vote to ex-felons in the state who had served their time. Dorf points out that the court’s vote was split based on the party of the President who appointed them and argues that the majority exhibited an attitude of “petty sticklerism,” invoking formalistic and reality-denying reasons to rule as it did.

Read More

North Dakota v. Edwards

Citation: 2020 ND 200

Opinion Date: September 15, 2020

Judge: Daniel J. Crothers

Areas of Law: Civil Procedure, Criminal Law

A jury convicted Coby Edwards of gross sexual imposition, a class AA felony. Prior to trial, Edwards retained a psychologist to testify about the accuracy of the child victim’s memories. Trial was held on July 16-18, 2019. Shortly before Edwards began presenting his case, his attorney informed the district court his expert would not be testifying because “He could not make it today.” Additionally, during cross-examination of a police detective by Edwards’ counsel, the detective made a statement regarding Edwards’ post-arrest silence. The statement received no objection, nor was a motion made to strike the statement as non-responsive. On appeal, Edwards argued it was reversible error when his retained expert did not testify. Furthermore, he argued the district court obviously erred by failing to require that his retained expert witness testify at trial. The North Dakota Supreme Court found no error: At trial, Edwards’ counsel first informed the district court the expert witness would testify, and the next day told the court the expert would not be testifying. No offer of proof was made to establish what the expert would state during testimony. Edwards did not otherwise discuss the issue at trial. Thus, the Court affirmed the judgment of conviction.

Environmental Law & Policy Center, et al. v. N.D. Public Svc. Commission, et al.

Citation: 2020 ND 192

Opinion Date: September 15, 2020

Judge: Jerod E. Tufte

Areas of Law: Civil Procedure, Energy, Oil & Gas Law, Environmental Law, Government & Administrative Law

Environmental Law and Policy Center and Dakota Resource Council (“Appellants”) appealed from a district court judgment affirming the Public Service Commission’s order dismissing Appellants’ formal complaint on the basis of a lack of subject matter jurisdiction. This appeal arose from Meridian Energy Group, Inc.’s construction of a new oil refinery (“Davis Refinery”) in Billings County, North Dakota. In June 2018, Appellants filed a formal complaint with the Commission, alleging: Meridian was required to obtain a certificate of site compatibility from the Commission under N.D.C.C. ch. 49-22.1; and Meridian’s planned facility would have a capacity of refining 50,000 or more barrels per day (bpd). Appellants filed their complaint after the North Dakota Department of Health, now Department of Environmental Quality, granted Meridian a construction permit for a “55,000 bpd” oil refinery. The complaint sought a declaration that Meridian’s refinery was subject to N.D.C.C. ch. 49-22.1 and to the statutory siting process. The Commission determined the complaint stated a “prima facie case” under its pleading rule, and the Commission formally served the complaint on Meridian. Meridian asserted it was constructing a refinery with a capacity of 49,500 bpd, falling outside the Commission’s statutory jurisdictional threshold of 50,000 bpd. Meridian argued, as a result, the Commission did not have jurisdiction over this matter and the complaint must be dismissed. After review, the North Dakota Supreme Court concluded the Commission did not err when it dismissed Appellants’ complaint. The Court affirmed the district court’s judgment and the Commission’s order of dismissal.

Cass County Joint Water Resource District v. Aaland, et al.

Citation: 2020 ND 196

Opinion Date: September 15, 2020

Judge: Jerod E. Tufte

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

Cash Aaland, Larry Bakko, and Penny Cirks (the “Landowners”) moved to stay, pending appeal, district court orders granting the Cass County Joint Water Resource District (the “District”) a right of entry onto their properties. In September and December 2019, the District contacted the Landowners seeking easements on their properties to conduct long-term monitoring for the Fargo-Moorhead Flood Diversion Project (the “Project”). After the District failed to obtain these easements, it applied for a permit to enter the Landowners’ properties to monitor environmental impacts in connection with the Project through December 2021. The application provided that access to the Landowners’ properties was necessary to conduct examinations, surveys, and mapping, including geomorphic examinations requiring installation of survey monuments on certain properties. The Landowners opposed the District’s application. To the North Dakota Supreme Court, the Landowners argued that without a stay, they would suffer irreparable injury. Finding the Landowners would not suffer irreparable injury, the Court denied the motion to stay the district court orders.

Sadek, et al. v. Weber, et al.

Citation: 2020 ND 194

Opinion Date: September 15, 2020

Judge: Daniel J. Crothers

Areas of Law: Civil Procedure, Personal Injury

John and Tammy Sadek, the surviving parents of Andrew Sadek ("Andrew"), appealed the district court’s grant of summary judgment to Jason Weber and Richland County, North Dakota. Defendant Jason Weber was a deputy with the Richland County Sheriff’s Office and a member of the South East Multi-County Agency Narcotics Task Force (“SEMCA”). Richland County was Weber’s employer and a participating agency in SEMCA. In 2013 Andrew Sadek was a student at the North Dakota State College of Science. In April 2013, two confidential informants purchased small quantities of marijuana from Andrew on two occasions. On November 21, 2013, officers searched Andrew's dorm room and found a marijuana grinder. At the time of the search, Weber informed Andrew about the felony charges he could face for the two April 2013 marijuana deliveries, and told him he could either take the charges or sign up to work as a confidential informant. Weber stated “a lot of this could go away” in exchange for his work as a confidential informant. Andrew agreed to work as a confidential informant, signing a Cooperating Individual Agreement. Weber told Andrew it was important for him not to tell anyone, including other law enforcement, that he was working as an informant. By January 2014, Andrew did three controlled buys of marijuana from two people, but subsequently lost contact with Weber. In April 2014, Weber told Andrew he would pursue the felony charges unless Andrew was able to line up additional controlled buys. Weber gave Andrew a deadline of May 1, 2014, to get the next deal done. On that day, Andrew was reported missing. His remains were found over a month later in the Red River; his backpack was tied to him and was full of rocks. The coroner determined Sadek died of a gunshot wound to the head, but the range of fire was not determined. No determination was made whether the cause of death was homicide, suicide or accidental. Andrew's parents sued Weber and Richland County, asserting claims of deceit and negligence. They alleged his death was directly related to his role as a confidential informant. The North Dakota Supreme Court determined that due to the lack of available evidence to suggest how, when, or even where Andrew died, a conclusion that his death was proximately caused by Defendants’ acts or omissions would be based on speculation. Therefore, summary judgment was appropriate and the district court did not err.

Jorgenson v. NDDOT

Citation: 2020 ND 193

Opinion Date: September 15, 2020

Judge: Jerod E. Tufte

Areas of Law: Criminal Law, Government & Administrative Law

The North Dakota Department of Transportation appealed a district court judgment reversing a hearing officer’s decision suspending Brandon Jorgenson’s driving privileges for 180 days. The Department argued the court erred in determining that, regardless of whether Jorgenson raised a proper objection at the administrative hearing regarding the omission of the phrase “directed by the law enforcement officer” from the implied consent advisory, the court could reverse the hearing officer’s decision if its findings of fact were not supported by the preponderance of evidence. The North Dakota Supreme Court found it was undisputed in this case that the deputy omitted the phrase “directed by the law enforcement officer” from the implied consent advisory. Section 39-20-01(3)(b), N.D.C.C., stated, “A test administered under this section is not admissible in any criminal or administrative proceeding to determine a violation of section 39-08-01 or this chapter if the law enforcement officer fails to inform the individual charged as required under [N.D.C.C. § 39-20-01(3)(a)].” In Vagts, 932 N.W.2d 523 (2019), the Supreme Court concluded that “the officer’s omission of the phrase 'directed by the law enforcement officer’ was a substantive omission and did not comply with the statutory requirements for the implied consent advisory.” Therefore, the Court concluded the district court properly reversed the hearing officer's decision.

Woelfel v. Gifford

Citation: 2020 ND 197

Opinion Date: September 15, 2020

Judge: Daniel J. Crothers

Areas of Law: Family Law

Abbey Gifford appealed a judgment granting her and Brian Woelfel equal residential responsibility for their minor child and determining child support. After review, the North Dakota Supreme Court concluded the district court erred by including an “automatic” change of custody provision that purported to modify the original residential responsibility decision without consideration of the child’s best interests at the time of a potential move. Judgment was reversed and the matter remanded for further proceedings.