How Much Worse Will Trump Become, and How Quickly?

NEIL H. BUCHANAN

Neil H. Buchanan, law professor and economist at UF Levin College of Law, contemplates the world in which we are likely to live if President Trump is reelected. Focusing in this column on the effects on government employees and contractors, Buchanan predicts that our society will be almost unimaginably worse a year from today and thereafter.

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Letting His Hair Down: Why a School District in Texas Is Wrong to Deprive a Male Student of an Education Because of the Length of His Hair

JOANNA L. GROSSMAN, KATHARINE BARTLETT

SMU Dedman School of Law professor Joanna L. Grossman and Duke law professor Katharine T. Bartlett explain why a public school district in Texas violated both the federal Constitution and Title IX by having (and enforcing) a hair-length policy for boys but not for girls. Grossman and Bartlett describe the facts of the case and the legal landscape for sex-specific dress and appearance policies before concluding that the school district’s decision to enforce the policy was not only poor judgment but illegal.

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Hustle Proof, et al. v. Matthews, et al.

Citation: 2020 ND 32

Opinion Date: February 12, 2020

Judge: Jon J. Jensen

Areas of Law: Civil Procedure, Contracts

Zachary Beck appealed the denial of his request for relief from a judgment awarding damages to Hustle Proof Corporation and Chinedu Ilogu (Hustle Proof). Hustle Proof sued Beck and his manager, Ryan Matthews, alleging a breach of the parties’ contract for a joint concert tour. Beck and Matthews were personally served with the summons and complaint. According to Beck, he was told by Matthews that Matthews would handle the lawsuit. Matthews apparently initiated email contact with Hustle Proof’s attorney regarding the lawsuit, but neither Beck nor Matthews answered the complaint. Hustle Proof moved for the entry of a default judgment. Notice of the default proceedings was sent by registered mail to Beck and Matthews at the address of Matthews’ limited liability company in Florida. Neither Matthews nor Beck appeared at the hearing on the motion for default judgment. Hustle Proof sought the entry of a judgment in the amount of $252,740 consisting primarily of the profit Hustle Proof claimed it would have made had Matthews and Beck not breached the parties’ contract. The district court refused to enter a default judgment for a sum greater than the $3,000 guaranteed payment included in the parties’ contract and offered Hustle Proof the option of the entry of a default judgment in the amount of $3,000 or proceeding to trial. Hustle Proof elected to proceed to trial. A jury trial was held on January 30, 2018. Neither Matthews nor Beck appeared at the jury trial. Hustle Proof presented its evidence to the jury and the jury returned a verdict in favor of Hustle Proof in the amount of $192,500 plus interest. A judgment, including costs and interest, was entered in the amount of $227,790. Beck argued to the North Dakota Supreme Court that the district court abused its discretion in denying his request for relief from the judgment pursuant to N.D.R.Civ.P. 60(b)(6) because he was not properly served with notice of the default judgment proceedings and the facts and circumstances of this case compelled relief from the judgment. Finding no reversible error, the Supreme Court affirmed.

Reese v. Reese-Young

Citation: 2020 ND 35

Opinion Date: February 12, 2020

Judge: Gerald W. VandeWalle

Areas of Law: Civil Procedure, Energy, Oil & Gas Law, Real Estate & Property Law

Cheryl Reese appealed an amended judgment entered after the district court granted summary judgment deciding ownership of certain mineral interests and the right to receive the mineral royalties and bonus payments. In 2005, Dennis Reese and Tia Reese-Young, who both owned an interest in the minerals at the time, entered into an oil and gas lease for the property. After several conveyances, Dennis and Cheryl Reese owned a 12.5% interest in the minerals as joint tenants, and Reese-Young owned a 12.5% interest in the minerals as a tenant in common with Dennis and Cheryl. In July 2008, Dennis and Cheryl conveyed their 12.5% interest to Reese-Young by quit claim deed and reserved a life estate interest in the minerals. Dennis died in September 2008. In 2017, Cheryl sued Tia Reese-Young to quiet title and for declaratory judgment determining that Cheryl was the sole remaining life tenant in the property and that she was entitled to all of the proceeds to be derived from the minerals during her lifetime. Reese-Young argued the deed creating the life estate in Cheryl Reese did not explicitly reserve to Cheryl Reese an interest in the royalties, the deed was unambiguous, there were no disputed issues of material fact, and Tia Reese-Young is entitled to all of the income derived from the oil and gas production as a matter of law. Cheryl argued the unambiguous language of the deed established she reserved a life estate in the minerals and she was entitled to receive the royalty payments under the open mines doctrine because an oil and gas lease had been executed and oil and gas were being produced before the life estate was created. When the district court ruled in favor of Reese-Young, Cheryl appealed. After review, the North Dakota Supreme Court concluded as a matter of law, Cheryl was entitled to the proceeds from the oil and gas production, including the royalties and bonus payments, and she was not required to hold the proceeds in trust for Reese-Young. Judgment was reversed.

City of West Fargo v. Ekstrom

Citation: 2020 ND 37

Opinion Date: February 12, 2020

Judge: Lisa K. Fair McEvers

Areas of Law: Constitutional Law, Criminal Law

Mandie Le Ekstrom appealed after a jury found her guilty of driving under the influence. After review, the North Dakota Supreme Court concluded the district court did not err in denying her motion to dismiss on state and federal constitutional double jeopardy grounds. However, the Court found the court erred in sentencing her because the jury did not find her chemical breath test result was .16 or greater. Therefore, conviction was affirmed, but the sentence was vacated and the matter was remanded for resentencing.

North Dakota v. Gratton

Citation: 2020 ND 41

Opinion Date: February 12, 2020

Judge: Lisa K. Fair McEvers

Areas of Law: Constitutional Law, Criminal Law

The State charged Nicholas Gratton after an incident occurred in December 2018. He was charged with simple assault–domestic violence, terrorizing–domestic violence, theft of property, and unlawful possession of drug paraphernalia. After considering the complaint and testimony presented, the district court dismissed the class C felony theft of property count, finding the charge lacked probable cause. The State appealed. The North Dakota Supreme Court found, after a review of the trial court record, the State produced sufficient evidence to establish probable cause for a charge of class C felony theft. The Supreme Court therefore reversed and remanded for further proceedings.

North Dakota v. Jensen

Citation: 2020 ND 31

Opinion Date: February 12, 2020

Judge: Jerod E. Tufte

Areas of Law: Constitutional Law, Criminal Law

Randy Jensen appealed a district court order denying his motion to correct an illegal sentence. Because the North Dakota Supreme Court determined Jensen was not given seven days to respond to the State’s answer brief under N.D.R.Ct. 3.2(a)(2), it reversed the district court order and remanded for an opportunity to respond.

North Dakota v. Lyon

Citation: 2020 ND 34

Opinion Date: February 12, 2020

Judge: Gerald W. VandeWalle

Areas of Law: Constitutional Law, Criminal Law

Branden Lyon appealed from an amended criminal judgment sentencing him to life imprisonment with the possibility of parole. In October 2015, Lyon was charged with attempted murder, terrorizing, terrorizing-domestic violence, and illegal possession of a firearm. These charges stemmed from a 2015 incident during which Lyon barricaded himself in a home and had an extended encounter with police officers. At one point during the encounter, Lyon shot at the police officers who had surrounded the home. A jury found Lyon guilty on all counts. On appeal, Lyon argued there was insufficient evidence to sustain his convictions, and the district court erred by not adequately considering the sentencing factors set forth in statute. Finding no reversible error, the North Dakota Supreme Court affirmed.

North Dakota v. Pagenkopf

Citation: 2020 ND 33

Opinion Date: February 12, 2020

Judge: Gerald W. VandeWalle

Areas of Law: Constitutional Law, Criminal Law

Mark Pagenkopf appealed a district court’s amended criminal judgment awarding restitution. In March 2019, Pagenkopf pleaded guilty to unlawful entry into a vehicle and theft of property under $500. In October 2018, Pagenkopf broke into the victim’s 2005 Chrysler Sebring and damaged the radio, speedometer glass, and HVAC controls. He also stole $400 worth of property from the trunk of the car. The State sought restitution for the damages caused by Pagenkopf. Before the restitution hearing was held, the victim was involved in a car accident. As a result, the victim’s car was totaled, and the victim was paid $2,000 from insurance. The damages to the victim’s car caused by Pagenkopf had not been repaired before the accident. On appeal, Pagenkopf argued the district court abused its discretion in awarding restitution because the victim did not incur any actual expenses because she did not repair the damages and because her car was subsequently totaled. Pagenkopf further argued the court erred in determining N.D. Const. art. I, section 25 prohibited it from considering that the victim’s car was totaled subsequent to the damages caused by Pagenkopf. The North Dakota Supreme Court concluded the district court did not abuse its discretion by declining to consider the subsequent accident and awarding $2,314.35 in restitution.

North Dakota v. Sah

Citation: 2020 ND 38

Opinion Date: February 12, 2020

Judge: Lisa K. Fair McEvers

Areas of Law: Constitutional Law, Criminal Law

Lansana Sah appealed after a jury found him guilty of gross sexual imposition and child abuse following denial of a motion for new trial. In 2017, an eleven year old middle school student disclosed to a counselor she and her siblings had been abused by their mother and stepfather, Sah. Sah was tried in 2019. Sah moved for a new trial, arguing his motion under N.D.R.Crim.P. 29 should have been granted because the instances of abuse other than the “peppering” were inadmissible. The motion was denied. He appealed to the North Dakota Supreme Court, arguing the district court abused its discretion by admitting evidence of abuse other than the peppering, because these incidents were "prior bad acts," and the court did not give a cautionary instruction to the jury. The North Dakota Supreme Court determined these arguments went beyond the scope of those argued in the motion for a new trial. That motion "did not state with particularity how or why the evidence was inadmissible, and did not city to any legal authority." Sah's conclusory arguments that evidence was not admissible did not preserve the issue he raised before the Supreme Court on appeal.

North Dakota v. Thomas

Citation: 2020 ND 30

Opinion Date: February 12, 2020

Judge: Jerod E. Tufte

Areas of Law: Constitutional Law, Criminal Law

Ross Thomas appealed after a jury found him guilty of felonious restraint. In February 2017, the State charged Thomas with aggravated assault, felonious restraint, terrorizing, and reckless endangerment. The case proceeded to trial in March 2018. A jury convicted Thomas of terrorizing, and acquitted him of aggravated assault and reckless endangerment. It did not reach a verdict on the felonious restraint charge. Soon thereafter, the State gave notice of its intent to retry Thomas for felonious restraint. Thomas’s second trial was continued and ultimately was held in April 2019. Thomas argued the district court abused its discretion in granting the State’s request for a continuance because the State did not move for a continuance and there was no good cause for a continuance. The North Dakota Supreme Court found no abuse of the district court's discretion, and no other reversible error. Therefore, it affirmed his conviction.

Ouradnik v. N.D. Dept. of Transportation

Citation: 2020 ND 39

Opinion Date: February 12, 2020

Judge: Jon J. Jensen

Areas of Law: Criminal Law, Government & Administrative Law

The North Dakota Department of Transportation (NDDOT) appealed a district court judgment reversing an administrative hearing officer’s decision to revoke Kyle Ouradnik’s driving privileges for a period of 91 days. The NDDOT argued the district court erred in reversing the administrative decision by ruling on an issue Ouradnik failed to preserve for appeal during his administrative hearing. The North Dakota Supreme Court concurred, reversed the district court and reinstated the administrative hearing officer’s decision.

Carlson v. Carlson

Citation: 2020 ND 36

Opinion Date: February 12, 2020

Judge: Gerald W. VandeWalle

Areas of Law: Family Law

Jill Carlson appealed a district court judgment awarding Royce Carlson primary residential responsibility and decision-making authority over daycare/afterschool provider decisions and non-emergency medical decisions of the parties’ minor children. Jill argue the district court’s findings on best interest factors a, b, d, e, f, h, j, k, and l under N.D.C.C. 14-09-06.2 were clearly erroneous. The North Dakota Supreme Court found the record in this case included evidence implicating the presence of domestic violence: "[t]he incident in which Royce shot a gun into the air during the squabble between Jill and J.R.C. and the testimony that Royce repeatedly used corporal punishment as a form of discipline is evidence that domestic violence may exist. The use of corporal punishment, however, does not alone establish evidence of domestic violence, but may be considered as evidence of domestic violence if excessive or unreasonable, or if it gives rise to the presumption under factor j." The Supreme Court remanded the case for further findings on whether a presumption of domestic violence applied. If not, the Court mandated an explanation of why evidence of domestic violence did not change its award of primary residential responsibility. In light of the Supreme Court's opinion, the district court also had to determine on remand whether its findings on factor j affected its findings on the other best interest factors and its decision awarding Royce primary residential responsibility and decisionmaking authority. Because the case was remanded for further findings, Jill's remaining arguments were not considered.

Stevenson v. Biffert

Citation: 2020 ND 42

Opinion Date: February 12, 2020

Judge: Jerod E. Tufte

Areas of Law: Family Law

Jason Stevenson appeals a district court judgment awarding Rhonda Biffert primary residential responsibility of the parties’ minor child. The judgment also ordered a sale of the parties’ house and ordered Stevenson to pay Biffert $13,000 for a loan and a vehicle. The North Dakota Supreme Court concluded the court’s award of primary residential responsibility to Biffert was not clearly erroneous. The Court determined the trial court’s findings had support in the record, and it was "not left with a definite and firm conviction a mistake has been made."

Vetter v. Vetter

Citation: 2020 ND 40

Opinion Date: February 12, 2020

Judge: Gerald W. VandeWalle

Areas of Law: Family Law

Kyle Vetter appealed from a district court judgment awarding primary residential responsibility of the parties’ minor daughter, B.L.V., to Michelle Vetter and dividing the parties’ assets and debts. On appeal, Kyle argued the district court erred in awarding primary residential responsibility to Michelle Vetter because its findings on factors c, d, and e under N.D.C.C. 14-09-06.2(1) were clearly erroneous and because the court’s findings on factor j should have been afforded greater weight. Finding no reversible error, the North Dakota Supreme Court affirmed the district court's judgment.