EN BANC CALENDAR

Before the Minnesota Supreme Court

November 2023

SUMMARY OF ISSUES

Summaries prepared by the Supreme Court Commissioner’s Office

Monday, October 30, 2023

Supreme Court Courtroom, State Capitol Building, Second Floor

State of Minnesota, Respondent, vs. Ayyoob Dawood Abdus-Salam, Appellant – Case Nos. A22-1551, A22-1552: In two cases, Respondent State of Minnesota charged Appellant Ayyoob Abdus-Salam with one count of second-degree rioting. The charges involved street takeovers of intersections. During these takeovers, traffic was prevented from entering the intersection. While people stood in the intersection watching, cars drove in circles with passengers hanging outside open car windows. The State alleged that Abdus-Salam organized the takeovers and that, in doing so, he knew other participants would be armed with a dangerous weapon—specifically, a car. “Dangerous weapon” is defined, in pertinent part, as “any . . . other device or instrumentality that, in the manner it is used or intended to be used, is calculated or likely to produce death or great bodily harm.” Minn. Stat. § 609.02, subd. 6 (2022). Abdus-Salam filed a motion to dismiss for lack of probable cause in each case. He claimed that cars are not dangerous weapons because there was no probable cause that the drivers were operating them in a manner calculated or likely to produce death or great bodily harm. The district court granted the motions to dismiss the charges for lack of probable cause. The court of appeals reversed.

The supreme court granted review on the following issues: (1) whether the court of appeals erred in finding sufficient probable cause exists to support second-degree riot charges against Abdus-Salam; and (2) whether the court of appeals erred in finding that a person can be “armed with” a car within the meaning of the second-degree riot statute. (Hennepin County)
 

State of Minnesota, Respondent, vs. John Ishmael Bradley, III, Appellant – Case No. A22-0960: Respondent State of Minnesota charged Appellant John Bradley with second-degree assault and felony domestic assault for an incident involving his girlfriend. A person commits second-degree assault if they “assault[] another with a dangerous weapon.” Minn. Stat. § 609.222, subd. 1 (2022). “Dangerous weapon” is defined, in pertinent part, as “any ... other device or instrumentality that, in the manner it is used or intended to be used, is calculated or likely to produce death or great bodily harm.” Minn. Stat. § 609.02, subd. 6 (2022). The case proceeded to a jury trial. The State’s evidence established that Bradley hit his girlfriend on the head with a wooden broomstick. The handle of the broomstick was about 1 inch in diameter, and the blow caused a laceration on the girlfriend’s head. She went to the hospital and received seven stitches to close the laceration. The jury found Bradley guilty of both charges. The court of appeals affirmed Bradley’s convictions.

The supreme court granted review on the following issues: (1) whether the manner-of-use definition of dangerous weapon includes a knowledge element with respect to potential harms and, if so, whether it demands application of the circumstantial evidence standard of review; and (2) whether Minn. Stat. § 609.04 (2022) unambiguously permits two convictions for a single assault merely because one of the charging statutes is not assigned a numerical “degree.” (St. Louis County).
 

Tuesday, October 31, 2023

Minor Doe 601, a minor, by and through his mother and natural guardian, Mother Doe 601, Appellants, vs. Best Academy, a/k/a and d/b/a Harvest Best Academy, et al., Respondents, Aaron James Hjermstad, et al., Defendants – Case No. A22‑1236: Appellant Minor Doe 601, a minor, by and through his mother and natural guardian, alleges that he was sexually abused by a charter school teacher who also served as a coach in a charter school basketball program. The appellant brought several claims against the charter schools, including a negligent hiring claim. The district court granted summary judgment on the negligent hiring claim, ruling that the charter schools are entitled to statutory discretionary immunity under the Municipal Tort Claims Act. See Minn. Stat. § 466.03, subd. 6 (2022) (providing that a municipality is immune from liability for “[a]ny claim based upon the performance or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused”). The Act defines “municipality” to include charter schools. See Minn. Stat. § 466.01, subd. 1 (2022) (defining “municipality” to include a school district); Minn. Stat. § 124E.03, subd. 2(d) (2022) (“A charter school is a district for the purposes of tort liability under chapter 466.”). The court of appeals affirmed, concluding that the hiring decision facially involved the balancing of policy objectives.

The supreme court granted review on the following issue: does a school have to show it weighed social, political, and economic considerations to fulfill its burden of proof on statutory discretionary immunity from a negligent hiring decision, or is a school always immune for any hiring decision? (Hennepin County)
 

State of Minnesota, Respondent, vs. Sheldon James Thompson, Appellant – Case No. A22-1277: Respondent State of Minnesota charged Appellant Sheldon James Thompson with several offenses, including first-degree premeditated murder. During the jury trial, the State presented evidence related to the deaths of J.D., her son, and her unborn child. Without objection, the prosecutor made several statements during the closing argument regarding Thompson’s alleged motive and activities before, during, and after the alleged murders. The jury found Thompson guilty of all charges.

On direct appeal to the supreme court, Thompson raises the following issues: (1) whether the prosecutor committed prejudicial misconduct by speculating in closing argument about events occurring at the time of the killings, events before and after the killings, and Thompson’s motive, without a factual basis in the evidence; and (2) whether this court should exercise its supervisory powers and reverse Thompson’s convictions in the interests of justice. (Carlton County) 
 

Wednesday, November 1, 2023

State of Minnesota, Respondent, vs. Gregory Paul Ulrich, Appellant – Case No. A22-1340: A grand jury indicted Appellant Gregory Paul Ulrich with first-degree murder, attempted first-degree murder, second-degree murder, and discharging an explosive device after he entered a medical clinic, shot several people, and set off two pipe bombs. One person died and four others were injured. Respondent State of Minnesota amended the indictment to add charges for second-degree felony murder, first-degree assault, and second-degree assault. A jury found Ulrich guilty of all charges.

On direct appeal to the supreme court, the issues listed in appellant’s brief are as follows: (1) whether the district court deprived Ulrich of a fair trial before an impartial jury by denying his motion to strike for cause a juror whose statements that he thought he could put aside what he had learned from news stories and would try his best but it would be a struggle demonstrated actual bias; (2) whether the district court prejudicially erred by denying Ulrich’s motion to change venue where the extensive and prejudicial publicity about the mass shooting in a health clinic, which included sensational opinion coverage and details about Ulrich’s confession, mental health, and prior police contacts, denied him the right to a fair trial before an impartial jury in Wright County; and (3) whether Ulrich’s convictions for first-degree premediated murder, both completed and attempted, must be reversed because the circumstantial evidence, including that he called 911, reported that people were injured and surrendered at the scene, failed to rule out the rational hypothesis that he did not intend to kill or act with premeditation. (Wright County)
 

Tokvan Ly, Respondent, vs. Jodi Harpstead, Minnesota Commissioner of Human Services, Appellant – Case No. A22-1826: Respondent Tokvan Ly was civilly committed to the care of appellant the Commissioner of Human Services after he was found incompetent to participate in certain criminal proceedings against him. Under Minn. Stat. § 253B.10, subd. 1(b) (2022) (“priority admission statute”), Ly was required to be admitted to a state-operated treatment program “within 48 hours.” Ly was not transferred to a treatment facility within 48 hours of his commitment. He filed a petition for (a) a writ of mandamus compelling the Commissioner to immediately admit him, as well as damages for the delay, and (b) a writ of habeas corpus. The district court issued an alternative writ of mandamus, directing the Commissioner to immediately admit Ly to a treatment facility, show cause why he had not been admitted, or file a demurrer. In response, the Commissioner moved to dismiss the mandamus petition.

The district court issued an order denying the Commissioner’s motion. In the order, the court issued a peremptory writ of mandamus directing the Commissioner to immediately admit Ly to a treatment facility and also directing the Commissioner to provide the district court with 30-day reports on all cases in the State of Minnesota to which the priority admission statute applies. The district court reserved further action on the habeas petition, set a date for a review hearing on the Commissioner’s compliance with the peremptory writ, and stated that the issue of damages would be set for trial. Subsequently, Ly was transferred by the Commissioner to a hospital setting, treated, and discharged to his home. Meanwhile, the Commissioner appealed the order that granted the peremptory writ. After questioning its jurisdiction, the court of appeals dismissed the appeal as premature. It “acknowledge[d] that early case law held that an order issuing a peremptory writ of mandamus was independently appealable,” but concluded based on other precedent that “the proper appeal is from a judgment entered pursuant to [the mandamus] order.”

On appeal to the supreme court, the issues include: (1) whether the appeal is moot because of events occurring after the district court issued its order, including the transfer of Ly to a hospital setting; and (2) whether a district court’s peremptory writ of mandamus, requiring the executive branch to take immediate action, is immediately appealable as of right, where the district court’s order grants the primary relief sought by the plaintiff, even if one issue is reserved for further determination. (Scott County)

Thursday, November 2, 2023

Courtroom 300, Minnesota Judicial Center

Joan Growe, et al., Petitioners vs. Steve Simon, Minnesota Secretary of State, Respondent – Case No. A23-1354: This matter involves an election dispute brought directly before the supreme court under Minn. Stat. § 204B.44 (2022). Petitioners, a group of Minnesota voters, filed a petition asking for an order declaring that Donald J. Trump, who served as President of the United States and has filed federal paperwork as a candidate for President in the 2024 election, is disqualified from holding the office of President of the United States by Section 3 of the Fourteenth Amendment to the United States Constitution. The petition also seeks an order directing respondent the Secretary of State to exclude Donald J. Trump from the ballot for the March 5, 2024, presidential nomination primary and from the ballot for the November 5, 2024, general election as a candidate for the office of President of the United States.

The supreme court asked for briefing on the following issues: (1) justiciability, including standing and ripeness; and (2) the legal construction of Section 3 of the Fourteenth Amendment, including but not limited to (a) whether Section 3 of the Fourteenth Amendment is self-executing; (b) whether Section 3 of the Fourteenth Amendment operates to preclude a person from being President of the United States; and (c) whether Section 3 of the Fourteenth Amendment applies to a person who has previously taken an oath as President of the United States. (Original Jurisdiction)
 

Monday, November 6, 2023

State of Minnesota, Respondent, vs. Timothy Lee Heller, Appellant – Case No. A22-1803: Respondent State of Minnesota charged Appellant Timothy Lee Heller with first-degree domestic abuse homicide and second-degree felony murder. At the jury trial, the State presented evidence related to the death of L.K. The State also presented evidence regarding past assaults by Heller and the lethality factors. The district court excluded some of the evidence Heller offered to support his alternative perpetrator claim. In instructing the jury, the district court gave instructions on the venue and a past pattern of domestic abuse.

On appeal to the supreme court, Heller raises the following issues: (1) whether the district court committed reversible error by instructing the jury the State needed to prove only that the crime was set in operation and/or triggered in Hennepin County; (2) whether the district court committed reversible plain error by instructing the jury it could convict Heller of domestic abuse homicide if he had engaged in a past pattern of domestic abuse against L.K. and/or other persons who qualify as defendant’s family or household members (3) whether the district court committed reversible error by allowing the State to introduce evidence that decades before L.K.’s death Heller physically and sexually assaulted J.L.; (4) whether the district court committed reversible error by allowing a police sergeant to testify as an expert about lethality factors that purportedly predict who will commit a future murder; (5) whether the district court committed reversible error by excluding evidence that was crucial to Heller’s alternative perpetrator defense; and (6) whether the district court’s exclusion of evidence crucial to Heller’s alternative perpetrator defense deprived Heller of his federal constitutional rights to a fair trial and to present a complete defense. (Hennepin County)
 

Nonoral: Juan Guzman Morales, Respondent, vs. Installed Building Products, Inc., and Old Republic Insurance Co., administered by Helmsman Management Services, Relators – Case No. A23-0601: Respondent Juan Morales was employed as a full-time insulation installer for Relator Installed Building Products when he was injured in a work-related vehicle accident on February 2, 2021, and sustained significant injuries. Morales was subsequently terminated from employment with Installed Building Products. Morales filed a claim petition, and a compensation judge ordered the relators to pay Morales temporary total disability benefits from February 2, 2021, to March 22, 2022. The Workers’ Compensation Court of Appeals (WCCA) affirmed.

On appeal to the supreme court, the relators’ brief presents the following issues: (1) whether the WCCA committed an error of law in affirming the compensation judge’s determination that the claimant sustained a compensable injury; (2) whether the WCCA committed an error of law in relying on and accepting as credible and founded the opinions of Dr. B. as persuasive given his lack of expertise as a practicing medical professional and practicing toxicologist; (3) whether the determination that the employee is entitled to temporary total disability from February 2, 2021, through March 3, 2022, is manifestly contrary to the evidence, (4) whether the determination that the employee conducted a reasonable and diligent job search and cooperated with vocational rehabilitee assistance is manifestly contrary to the evidence; (5) whether the WCCA committed errors of law and fact in affirming the determination that the employee was not terminated for misconduct and further err in making this determination when the compensation judge did not make a specific finding regarding the misconduct defense; (6) whether the order to pay for and reimburse medical bills and intervention claims is manifestly contrary to the evidence, and (7) whether the determination that the employee is entitled to a vocational consultation and vocational services is manifestly contrary to the evidence. (Workers’ Compensation Court of Appeals)
 

Tuesday, November 7, 2023

State of Minnesota, Respondent, vs. Melissa Madelyne Zielinski, Appellant – Case Nos. A22-0710, A23-0588: A grand jury indicted Appellant Melissa Madelyn Zielinski with first-degree felony murder and second-degree intentional murder based on allegations that she and her brother shot and killed K.H. Respondent State of Minnesota amended the indictment to add a charge of second-degree felony murder. A jury found Zielinski guilty. Zielinski filed a postconviction petition asserting an ineffective assistance of counsel claim. The district court denied the petition without an evidentiary hearing.

On direct appeal to the supreme court, the issues listed in appellant’s brief are as follows: (1) whether Zielinski received ineffective assistance of counsel because her attorneys did not make a timely challenge to the first search warrant and did not challenge the second search warrant; (2) whether the district court violated Zielinski’s confrontation rights by prohibiting her from cross-examining her brother concerning his statements concerning that he agreed to testify against her because he was afraid that he would receive a life sentence if he did not do so; (3) whether the seizure of Zielinski was unconstitutional requiring its fruits to be suppressed; (4) whether the errors, taken cumulatively, require a new trial; and (5) whether the district court erred by convicting Zielinski of both first-degree and second-degree murder. (Anoka County)
 

Nonoral: Ronald Lewis Greer, Appellant, vs. State of Minnesota, Respondent, – Case No. A23-0915: In 1998, a jury found Appellant Ronald Lewis Greer guilty of first-degree and second-degree murder. On direct appeal, the supreme court remanded the case to the district court for a Schwartz hearing. On remand, the district court denied Greer’s request for a new trial and the supreme court affirmed.

In 2023, Greer filed his third postconviction petition asserting that his first-degree murder conviction should be vacated, and he should be resentenced on the second-degree murder offense. The district court denied the petition.

On direct appeal to the supreme court, the issues listed in the appellant’s brief are as follows: (1) whether the district court abuse its discretion when it found the claims raised in the petition were procedurally barred by Knaffla; (2) whether the district court erred when it found the claims raised in the petition were time-barred; (3) whether Greer is entitled to be convicted and sentenced for second-degree murder, and (4) whether Greer is entitled to have the standard of review most favorable applied to his claims in the petition. (Hennepin County)
 

Wednesday, November 8, 2023

Thomas Robert Tichich, Appellant, vs. State of Minnesota, Respondent – Case No. A22-1063: Respondent State of Minnesota charged Appellant Thomas Robert Tichich with attempted third-degree criminal sexual conduct and third-degree criminal sexual conduct. The State alleged that an eyewitness saw Tichich thrusting his hips toward the face of the complainant. Tichich was naked and the complainant was completely passed out. At trial, a nurse testified that she did not touch the complainant’s lips while collecting DNA samples because lips do not yield useful evidence, and a forensic scientist testified that DNA may be transferred from one person’s skin to another person’s skin. The jury found Tichich guilty of both charges. His convictions were affirmed on direct appeal.

In 2022, Tichich filed a postconviction petition, which was summarily denied. The court of appeals affirmed the summary denial of postconviction relief. It rejected Tichich’s argument that Minnesota caselaw, including State v. Noggle, 881 N.W.2d 545 (Minn. 2016), adds a tacit third element to the offense of attempt—that the underlying substantive crime is not completed. The court of appeals also rejected Tichich’s argument that the affidavit filed by his postconviction expert, who challenged the testimony of the nurse and forensic scientist, satisfied the false testimony prong of the Larrison test.

The supreme court granted review on the following issues: (1) whether the rule articulated in Noggle means that the crimes of attempt and completion are mutually exclusive such that guilty verdicts for attempted (uncompleted) third-degree criminal sexual conduct and completed third-degree criminal sexual conduct are legally inconsistent; and (2) whether a court, consistent with its obligation in postconviction proceedings “to extend a broad review,” Butala v. State, 664 N.W.2d 333, 338 (Minn. 2003), may ignore the majority of the evidence proffered to satisfy Larrison prong one, instead consider only one expert report to conclude the testimony was not false under Gilbert v. State, 982 N.W.2d 763 (Minn. App. 2022), rev. granted (Feb. 22, 2023), and deny an evidentiary hearing, when that false testimony was the evidentiary link in this circumstantial-evidence case. (Hennepin County)