EN BANC CALENDAR

Before the Minnesota Supreme Court

December 2006

SUMMARY OF ISSUES

Summaries prepared by the Supreme Court Commissioner’s Office

Monday, November 27, 2006, 9:00 a.m.

Supreme Court Courtroom, State Capitol

In the Matter of GlaxoSmithKline plc – Case No. A04-2150: Appellant GlaxoSmithKline plc appeals from a decision of the court of appeals overturning a district court order that denied the state’s request to release to the public certain documents produced by appellant, subject to a confidentiality agreement, in response to the state’s civil investigative demand. At issue are: (1) whether by attaching the documents to its civil complaint against appellant, the state has made the documents “judicial records” that are presumed to be available to the public; (2) whether release of the documents would inhibit the associational privacy rights and political expression of appellant and of amicus curiae Pharmaceutical Research and Manufacturers of America; and (3) whether the confidentiality protections of the “pending investigations” clause of the Minnesota Government Data Practices Act, Minn. Stat. § 13.39, subd. 2 (2004), apply to documents after a civil suit has been filed but before the documents themselves are introduced into evidence. (Hennepin County)

State of Minnesota, Respondent vs. Scott Edward Cannady, Appellant – Case No. A05-811: On appeal from his conviction of possession of pictoral representations of minors, appellant Scott Edward Cannady presents the following issue for review: whether Minn. Stat. § 617.247, subd. 3 (2004), shifts to the defendant the burden of proof as to the age of the individuals depicted and is therefore an unconstitutional violation of due process. (Ramsey County)

Tuesday, November 28, 2006, 9:00 a.m.

Supreme Court Courtroom, State Capitol

Frank Edward Johnson, Respondent vs. Joan Fabian, Commissioner of Corrections, et al., Appellants – Case No. A05-2498 AND State of Minnesota, ex rel. John William Henderson, Appellant vs. Joan Fabian, Commissioner of Minnesota Department of Corrections, Respondent – Case No. A06-439: In each of these cases, on appeal from denials of writs of habeas corpus and consolidated for argument, the Commissioner of Corrections extended the individual’s presumptive supervised release date as a sanction for the individual’s refusal to participate in sex offender treatment. At issue in each case is whether the extension of the release date violated the individual’s Fifth Amendment privilege against self-incrimination because participation in sex offender treatment would have required the individual to admit his offenses. Also at issue is whether the Fifth Amendment privilege survives the conclusion of a direct appeal. (Hennepin County (Case No. A05-2498); Anoka County (Case No. A06-439))

State of Minnesota, Respondent vs. Jermaine Ferguson, Appellant – Case No. A06-498: On appeal from his conviction of first-degree murder and attempted first-degree murder, appellant Jermaine Ferguson presents the following issues for review: (1) whether the district court erred in limiting appellant’s cross-examination of an accomplice about the terms of her plea bargain; and (2) whether there was sufficient corroboration of the testimony of appellant’s accomplices to convict appellant. (Hennepin County)

Wednesday, November 29, 2006, 9:00 a.m.

Supreme Court Courtroom, State Capitol

Charles J. Bendorf, Appellant vs. Commissioner of Public Safety, Respondent – Case No. A05-1484: Appellant Charles Bendorf appeals from the revocation of his driver’s license under Minnesota’s implied consent law, Minn. Stat. §§ 169A.50 - .53 (2004). At issue on appeal is the appropriate remedy for the district court’s failure to hold the implied consent hearing within the period provided by statute, in light of this court’s decision in Fedziuk v. Comm’r of Pub. Safety, 696 N.W.2d 340 (Minn. 2005), and the legislative changes that followed. (Scott County)

State of Minnesota, Respondent vs. Ricky A. Osborne, Appellant – Case No. A05-988: Appellant Ricky A. Osborne appeals from the revocation of his probation. At issue is whether the record establishes that the need for appellant’s confinement outweighed the policies favoring continued probation. (Olmsted County)

Thursday, November 30, 2006, 9:00 a.m.

Supreme Court Courtroom, State Capitol

Nancy SooHoo, petitioner, Respondent vs. Marilyn Johnson, Appellant – Case No. A05-537: Appellant Marilyn Johnson appeals from a court of appeals opinion affirming the district court’s award of visitation by respondent Nancy SooHoo, her former domestic partner, with appellant’s two adopted children. At issue are: (1) whether Minn. Stat. § 257C.08, subd. 4 (2004) (authorizing the district court to grant visitation rights to a person with whom the minor child has resided for at least two years) is unconstitutional on its face because it does not allow a fit parent to control visitation between his or her children and third parties; (2) whether the district court applied section 257C.08, subd. 4, in an unconstitutional manner in this case; (3) whether in awarding visitation to respondent, the district court abused its discretion; (4) whether the district court should have conducted an evidentiary hearing before promulgating a visitation schedule; and (5) whether the district court had jurisdiction to order appellant and the children to participate in counseling or therapy. (Hennepin County)

State of Minnesota, Respondent vs. John Jason McLaughlin, Appellant – Case No. A05-2327: Appellant John Jason McLaughlin, age 15 at the time of his offenses, was certified to stand trial as an adult and was convicted after a court trial of first-degree premeditated murder and second-degree unintentional murder. The district court rejected appellant’s insanity defense under Minn. Stat. § 611.026 (2004). At issue in this direct appeal are: (1) the constitutionality of section 611.026 (also known as the “M’Naghten standard”) as applied to adolescent defendants; (2) whether the district court abused its discretion in denying appellant a continuance to present a rebuttal witness; and (3) whether the district court erred in imposing consecutive sentences. (Stearns County)

Monday, December 4, 2006, 9:00 a.m.

Courtroom 300, Minnesota Judicial Center

Brown-Wilbert, Inc., et al., Appellants (A05-340), Respondents (A05-1952) vs. Copeland Buhl & Company, P.L.L.P., et al., Respondents (A05-340), Appellants (A05-1952): These appeals are consolidated for argument. In Case No. A05-340, Brown-Wilbert, Inc., and Christopher Brown appeal from the dismissal of their claims of professional malpractice against Copeland Buhl & Company, P.L.L.P, and Lee Harren. At issue are: (1) what constitutes a demand for the affidavit of expert review required by Minn. Stat. § 544.42, subd. 2 (2004); and (2) the minimum standard for an affidavit of expert identification required by Minn. Stat. § 544.42, subd. 4 (2004), sufficient to entitle the plaintiff to notice of the affidavit’s deficiencies and the opportunity to cure those deficiencies provided by Minn. Stat. § 544.42, subd. 6 (2004). In Case No. A05-1952, Copeland Buhl and Lee Harren appeal from the reinstatement of a second lawsuit brought against them by respondents Brown-Wilbert and Christopher Brown after respondents’ first lawsuit was dismissed. At issue in this second appeal is whether a judgment of dismissal is final, for purposes of res judicata and collateral estoppel, even though the matter is on appeal. (Hennepin County)

Connie C. Reider, Respondent vs. Anoka-Hennepin School District No. 11, Self-Insured, Relator, Noran Neurological Clinic and Blaine Chiropractic Clinic, Intervenors – Case No. A06-1344: Relator Anoka-Hennepin School District No. 11 appeals from a decision of the Workers Compensation Court of Appeals. At issue is whether the decision under Minn. Stat. § 176.155, subd. 2 (2004), to order an examination of the employee by a neutral physician is always discretionary with the compensation judge regardless of the circumstances of the case. (Workers Compensation Court of Appeals)

Tuesday, December 5, 2006, 9:00 a.m.

Courtroom 300, Minnesota Judicial Center

State of Minnesota, Respondent vs. Ronald Joseph Lemmer, Appellant – Case No. A05-2481: Appellant Ronald Joseph Lemmer appeals from the reinstatement of criminal charges against him of operating a motorboat under the influence of alcohol. Appellant’s driving privileges, which had been revoked by the Commissioner of Public Safety under Minnesota’s implied consent law, were reinstated by the district court based on its conclusion that officers had no particularized and objective basis for stopping appellant’s boat. In this separate criminal proceeding, the criminal charges against appellant were then dismissed based on the district court’s previous decision in the implied consent proceedings. The court of appeals reversed the district court and reinstated the criminal charges under Minn. Stat. § 169A.53, subd. 3(g) (2004), which provides that the implied consent hearing “shall not give rise to an estoppel on any issues arising from the same set of circumstances in any criminal prosecution.” At issue is whether Minn. Stat. § 169A.53, subd. 3(g), is unconstitutional as a violation of the separation of powers. Also at issue is whether the state’s appeal in this case is an improper collateral attack on an order issued by the district court in another case permanently enjoining the state from enforcing section 169A.53, subd. 3(g). (Scott County)

Juvon De Wilson, Appellant vs. State of Minnesota, Respondent – Case No. A05-677: Appellant Juvon De Wilson appeals from the denial of his petition for postconviction relief. At issue is whether the district court erred in denying appellant a new trial or an evidentiary hearing on his petition for postconviction relief based on: (1) the recantation of testimony by a prosecution witness who had previously recanted and then reversed the recantation; (2) statements by three witnesses that appellant was not the shooter; or (3) a latent fingerprint on a bottle first identified at trial as having been held by the shooter, which fingerprint does not match appellant. At issue is also whether the district court properly treated an affidavit disputing the testimony of a prosecution expert as newly discovered evidence rather than as evidence showing the prosecution expert’s testimony to be falsified. Appellant raises additional issues in a pro se supplemental brief. (Hennepin County)