EN BANC CALENDAR

Before the Minnesota Supreme Court
October 2005
SUMMARY OF ISSUES
Summaries prepared by the Supreme Court Commissioner’s Office

 
            Beth Ann Hinneberg, Appellant vs. Big Stone County Housing and Redevelopment Authority, Respondent – Case No. A04-435:  After receiving a Section 8 housing voucher from respondent Big Stone County Housing & Redevelopment Authority (HRA), appellant Beth Hinneberg requested an exemption, as a reasonable accommodation of her disability, from the policy of HRA that limits, for one year, the use of a Section 8 housing voucher by a person who was not previously a resident of the county to housing within the county.  The HRA denied the request and the denial was affirmed on an administrative appeal.  The court of appeals, on certiorari review, affirmed.  The issues on appeal are:  (1) whether the Fair Housing Amendments Act of 1988 apply to a Section 8 housing voucher program operated by a housing agency; and (2) whether the Americans with Disabilities Act requires a public housing authority to grant, as a reasonable accommodation, an exception to a policy of requiring non‑residents to use the voucher within its jurisdiction for one year.  (On appeal from Big Stone County Housing and Redevelopment Authority.)
 
            Zurich American Insurance Company, Respondent vs. Donald A. Bjelland, Appellant – Case No. A04-709:  Respondent Zurich American Insurance Company (Zurich) commenced a subrogation action seeking to recover from appellant Donald Bjelland workers’ compensation benefits it paid to the surviving spouse of an insured’s employee who was killed in an automobile accident with Bjelland.  On cross-motions for summary judgment, the district court ruled that amendments to the Workers’ Compensation Act did not automatically set the measure of damages in a subrogation action as the amount of workers’ compensation benefits paid and payable and that Zurich’s recovery is limited to the actual damages of the surviving spouse.  The court of appeals reversed, holding that the measure of recovery in a workers’ compensation subrogation action is the full amount of benefits paid and payable to the employee regardless of whether actual damages incurred by the employee were less.  The issue on appeal is whether the 2000 amendments to Minn. Stat. § 176.061 (2004) of the Workers’ Compensation Act permit an insurer to recover the full amount of benefits paid or payable without having to prove the extent of the damages actually incurred by the employee.  (On appeal from Kanabec County District Court.)
 

 
State of Minnesota, Respondent vs. Joshua Stafford Bertsch, Appellant – Case No. A04-177:  Appellant Joshua Bertsch was convicted on 19 counts of possession of child pornography and one count of dissemination of child pornography under a plea agreement that provided that sentencing would be within the discretion of the district court.  The district court imposed a sentence for each conviction, resulting in a total sentence of 78 months.  The court of appeals affirmed the convictions and sentences.  The issues on appeal are:  (1) whether Bertsch is entitled to vacation of the convictions for possession of child pornography on the ground that the possession offenses are lesser-included offenses of the conviction for dissemination of child pornography; (2) whether the offenses were part of the same behavioral incident such that the imposition of multiple sentences is not permitted; (3) whether the district court erred in its assignment of severity level VIII to the dissemination offense and severity levels IV and V to the possession offenses for purposes of determining the presumptive sentence; and (4) whether the district court abused its discretion in denying Bertsch’s request for a downward dispositional departure based on its finding that Bertsch is not amenable to probation.  (On appeal from Ramsey County District Court.)
 
State of Minnesota, Appellant vs. Orlando Manuel Bobadilla, Respondent – Case No. A03-1891:  Appellant Orlando Bobadilla was charged with first- and second-degree criminal sexual conduct.  The district court ruled that the three-year-old complainant was not competent to testify and granted the state’s motion to admit a videotape of the complainant’s interview with a child protection worker.  Bobadilla was convicted on both counts.  On appeal, the court of appeals held that the admission of the videotape violated Bobadilla’s constitutional right to confrontation under Crawford v. Washington, 541 U.S. 36 (2004), and reversed and remanded for a  new trial.  The issue on appeal is whether the complainant’s statements to the child protection worker were testimonial and therefore the videotape of the interview was not admissible under Crawford.  (On appeal from Kandiyohi County District Court.)
 

 
            Geralyn S. Engler, Appellant vs. Illinois Farmers Insurance Company, an Illinois corporation, Respondent – Case No. A04-1445:  Appellant Geralyn Engler commenced an underinsured motorist suit against her insurer seeking to recover damages for the emotional distress she suffered after witnessing her son being struck by a car that drove off the road toward her and her son.  The district court ruled that Engler’s recovery for emotional distress was limited to the damages suffered as a result of her fear for her own safety and that she could not recover damages for emotional distress suffered as a result of witnessing her son being hit.  The court of appeals affirmed.  The issue on appeal is whether a person in the zone of danger may recover damages for emotional distress suffered as a result of witnessing another person being injured.  (On appeal from Anoka County District Court.)
 

 
NOTE:  By order dated October 4, 2005, oral argument in State v. Osborne, Case No. C1-03-253, scheduled for October 6, 2005, has been canceled and will be rescheduled at a later date.  Oral argument in Cooperative Power Association v. Lundell, Case No. A04-1045, will begin at 10:00 a.m. 
 
Cooperative Power Association, A Minnesota cooperative corporation, Respondent vs. Danny O. Lundell, et al., Appellants – Case No. A04-1045:  Respondent Cooperative Power Association (CPA), which has statutory condemnation authority, filed a quick-take condemnation action against appellants Danny and Mary Lundell seeking to take property CPA was currently leasing from the Lundells on which CPA had constructed a telecommunications tower.  CPA filed its action after the parties were unsuccessful in renegotiating the terms of the current lease that could be extended, at CPA’s option, until 2030.  The district court held that the taking was necessary and for a public purpose and granted the condemnation petition and CPA’s quick-take request for immediate possession.  The court of appeals affirmed.  The issues on appeal are:  (1) whether the district court erred in finding the taking is necessary and serves a public purpose; (2) whether the district court erred in failing to require CPA to establish “good cause” to take property on which it currently held a leasehold interest; (3) whether the district court erred in failing to consider whether CPA acted in bad faith and, if so, whether this negated the necessity or public purpose of the taking; and (4) whether the district court erred in finding that CPA had established the necessity of a “quick take” of the property for immediate possession.  (On appeal from Goodhue County District Court.)
 

 
Minnesota Voyageur Houseboats, Inc., Respondent vs. Las Vegas Marine Supply, Inc., a Nevada corporation, et al., Appellants, Northern National Bank, n/k/a Wells Fargo Bank, Respondent – Case No. A04-866:  Appellant Las Vegas Marine Supply obtained a default judgment against respondent debtor Minnesota Voyageur Houseboats in 1997.  Before judgment was entered, the debtor borrowed money from respondent Northern National Bank secured by certain assets of the debtor under the terms of a promissory note that permitted the bank to enforce a right to a setoff in the event of a default, which was defined to include the entry or service of any garnishment against any of debtor’s property.  After Las Vegas Marine served a garnishment notice on the bank to garnish debtor’s bank account, the bank removed the entire balance in the account, $40,700, and applied it to the loan as a setoff.  Las Vegas Marine then commenced suit challenging the bank’s setoff.  The district court granted Las Vegas Marine summary judgment.  The court of appeals reversed, concluding that the bank was not required to declare the entire indebtedness immediately due and owing in order to exercise its rights under the note’s provision permitting a setoff in the event of a default.  The issue on appeal is whether the bank was entitled to exercise its rights under the default provision in the note where the default was technical, without first accelerating the note.  (On appeal from St. Louis County District Court.)
 
NONORAL:  Leon Perry, petitioner, Appellant vs. State of Minnesota, Respondent – Case No. A05-169:  On appeal from the denial of his petition for postconviction relief from his conviction for first-degree murder, appellant Leon Perry presents the following issues for review:  (1) whether Perry was denied effective assistance of counsel by his attorney’s failure to object to allegedly inconsistent verdicts; and (2) whether Perry’s equal protection claim based on the racial composition of the grand jury is procedurally barred on the ground it was raised on direct appeal.  (On appeal from Hennepin County District Court.)
 
NONORAL:  Kmart Corporation, Relator vs. County of Stearns, Respondent – Case No. A05-442:  Relator Kmart Corporation challenged respondent Stearns County’s 2000, 2001, and 2002 tax valuations of one of Kmart’s stores.  The county moved to dismiss based on Kmart’s failure to provide all required information within 60 days as required by Minn. Stat. § 278.05, subd. 6(a) (2004).  The Tax Court granted the motion.  The issues on appeal are:  (1) whether the Tax Court erred in finding that Kmart failed to produce all required information under Minn. Stat. § 278.05, subd. 6(a); and (2) whether the Tax Court’s interpretation of Minn. Stat. § 278.05, subd. 6(a) renders the statute unconstitutionally vague.  (On appeal from the Tax Court.)
 

 
Citizens Advocating Responsible Development, et al., Appellants vs. Kandiyohi County Board of Commissioners, Respondent, Duininck Bros., Inc., Respondent – Case Nos. A04-886 and A04-890:  Appellants, Citizens Advocating Responsibility Development and property owners, commenced a declaratory judgment action challenging respondent Kandiyohi County Board of Commissioner’s decision not to require an environmental impact statement (EIS) for proposed gravel pits.  The district court granted appellants summary judgment and ordered an EIS.  The court of appeals reversed.  The issues on appeal are:  (1) whether the board should have considered the cumulative effect of existing gravel pits and the project in determining whether an EIS was required; and (2) whether the court of appeals erred in holding that the board’s decision was supported by substantial evidence.  (On appeal from Kandiyohi County District Court.)
 
NONORAL:  James L. Wilson, Relator vs. Commissioner of Revenue, Respondent – Case No. A05-440:  After a series of appeals to the supreme court that resulted in a remand to the Tax Court, relator James L. Wilson and respondent Commissioner of Revenue entered into a settlement agreement resolving the dispute between the parties regarding the commissioner’s attempt to impose a penalty on Wilson for his alleged failure to honor the commissioner’s wage levy on an employee of a corporation owned by Wilson.  The parties agreed that Wilson owed nothing further to the commissioner and that the commissioner owed no refund to Wilson.  Wilson then moved the Tax Court for attorney fees as the prevailing party in the litigation, which the Tax Court denied.  The issue on appeal is whether the Tax Court erred in concluding that Wilson is not a prevailing party entitled to recover attorney fees under Minn. Stat. § 15.472 (2004), which permits a prevailing party in a civil action brought by or against the state to recover attorney fees.  (On appeal from the Tax Court.)
 
NONORAL:  Brad Alan Voorhees, petitioner, Appellant vs. State of Minnesota, Respondent – Case No. A05-27:  On appeal from the denial of his petition for postconviction relief from his conviction for first-degree murder, appellant Brad Voorhees presents the following issue for review:  whether the district court erred in denying the petition without an evidentiary hearing.  (On appeal from St. Louis County District Court.)