# City of Fairgo v. Thompson

> North Dakota Supreme Court · August 24, 1994 · 520 N.W.2d 578

URL: https://www.frixlaw.com/law-library/cases/9670698

## Case

- **Full name:** CITY OF FAIRGO, Plaintiff and Appellant, v. William Noble THOMPSON, Defendant and Appellee. CITY OF FARGO, Plaintiff and Appellant, v. Timothy Duane DORNHEIM, Defendant and Appellee. CITY OF FARGO, Plaintiff and Appellant, v. Charles Herman BOMMERSBACH, Defendant and Appellee. CITY OF FARGO, Plaintiff and Appellant, v. Christopher Michael FRANEK, Defendant and Appellee
- **Court:** North Dakota Supreme Court
- **Decided:** August 24, 1994
- **Citations:** 520 N.W.2d 578
- **Precedential status:** Published
- **Opinion:** Concurrence by Levine
- **Judges:** Sandstrom, Vande Walle, Meschke, Neumann, Levine
- **Cited by:** 88 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9670698

## How later opinions describe it (automated extraction)

- stating results of a blood-alcohol test are not necessary to sustain a driving under the influence or an actual physical control conviction

## Opinion text

LEVINE, Justice,
concurring and dissenting.
I would affirm all of the trial court’s orders of dismissal and therefore, I dissent from the reversal of the orders dismissing Domheim’s and Franek’s cases and concur in the affir-mance of the other dismissals.
In City of Fargo v. Stutlien, 505 N.W.2d 738, 746-47 (N.D.1993), I dissented from the holding that illegally incarcerated defendants had to show actual prejudice arising from their illegal imprisonment. I believed then, as I do now, that a system of justice that not only condones illegal incarcerations but then, adding raw insult to grievous injury, puts the victims to their proof that their illegal incarceration did them damage, is a system that is “broke” and in need of serious fixing. I also suggested that, at the very least, the State, having committed the wrongdoing, should have the burden to show that its misconduct held no reasonable possibility of prejudice to the victims of the illegal imprisonment.
Furthermore, in the context of due process, the issue of prejudice is not confined to whether a defendant can adequately present a defense. Fuentes v. Shevin, 407 U.S. 67 , 92 S.Ct. 1983 , 32 L.Ed.2d 556 (1972). Due process not only guarantees fair play, “ ‘[i]ts purpose, more particularly, is to protect [a person’s] use and possession of property from arbitrary encroachment — to minimize substantively unfair or mistaken deprivations of property.’ ” United States v. James Daniel Good Real Property, — U.S.-,-(1993), 114 S.Ct. 492 , 501, 126 L.Ed.2d 490 (quoting Fuentes, 407 U.S. at 80-81 , 92 S.Ct. at 1994 ). Can it be that one’s due process right to liberty without “arbitrary encroachment” or “unfair or mistaken deprivations” is less protected than one’s right to the use and possession of property?
This case heralds an unhappy, and unprecedented, additional burden on unfortunate defendants illegally deprived of their liberty. Not only must they prove actual prejudice while the guilty party remains passive, they must prove it to this court. The majority’s de novo review of the facts and inferences turns our customary deferential standard of review of facts on its head. The trial judge is abler than we to weigh the facts. That is his business and we should let him do it. In my view, he made no clear error and so I would affirm.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9670698. Public record. Not legal advice.