EN BANC CALENDAR

 
State of Minnesota, Respondent vs. William Losh, Appellant – Case No. A06-1910:  Appellant William Losh was charged with driving a motor vehicle after an earlier license revocation for driving while impaired.  Losh is a member of the Mille Lacs Band of the Chippewa Tribe, but was arrested on the reservation of the Leech Lake Band of the Chippewa Tribe.  Federal law (18 U.S.C. § 1162 (2000), known as “Public Law 280”) gives the states broad criminal jurisdiction, but only limited civil jurisdiction, over acts committed on Indian lands.  Losh challenged the state’s jurisdiction to prosecute him, arguing that because the offense of driving after license revocation is civil/regulatory in nature, he could be prosecuted only in Leech Lake Tribal Court.  After the district court denied Losh’s motion to transfer the case to the tribal court, Losh pleaded guilty to the charge.  The court of appeals affirmed his conviction.  Two issues are before the supreme court:  (1) whether the misdemeanor offense of driving after revocation under Minn. Stat. § 171.24, subd. 2 (2006), is a civil/regulatory or a criminal/prohibitory offense when the driver’s license has been revoked for an alcohol-related driving offense; and (2) whether the state has jurisdiction to prosecute a member of the Mille Lacs Band for conduct occurring on the reservation of the Leech Lake Band, given that both Bands are part of the Chippewa Tribe.  (Itasca County)

EN BANC NONORAL – Moises Vidal Robledo-Kinney, petitioner, Appellant vs. State of Minnesota, Respondent – Case No. A07-2244:  Appellant Moises Vidal Robledo-Kinney was convicted of first-degree murder; his conviction was affirmed on direct appeal.  State v. Robledo-Kinney, 615 N.W.2d 25 (Minn. 2000).  Robledo-Kinney then petitioned for postconviction relief, claiming ineffective assistance of trial counsel.  The petition was denied, and the district court’s denial of the petition was affirmed on appeal.  Robledo-Kinney v. State, 637 N.W.2d 581 (Minn. 2002).  In 2007, Robledo-Kinney filed a second postconviction petition, alleging ineffective assistance of appellate counsel in both his direct appeal and his previous petition for postconviction relief.  The district court denied the request for postconviction relief without an evidentiary hearing.  The issue for the supreme court is whether, in denying Robledo-Kinney’s petition for postconviction relief without an evidentiary hearing, the district court abused its discretion.  (Ramsey County)
 
Shamrock Development, Inc., Respondent vs. Randall N. Smith, Appellant, Denison E. Smith, Defendant, Dakota Turkey Farms, Limited Partnership, Defendant – Case No. A06-1647:  In 1996, Farm Credit Leasing obtained a judgment against appellant Randall Smith and others.  In 2006, as the judgment was expiring, respondent Shamrock Development, Inc. (to whom the judgment had been assigned) sought to renew it.  Unable to locate Smith in Minnesota, Shamrock served Smith by publication with notice of its action to renew the judgment.  Rule 4.04(a)(1) of the Minnesota Rules of Civil Procedure allows the district court to assert personal jurisdiction, on the basis of publication of the summons rather than personal service, when the defendant is “a resident individual domiciliary having departed from the state with intent to defraud creditors, or to avoid service, or remains concealed therein with the like intent.”  Shamrock filed with the district court an affidavit of its attorney attesting that Smith “is a resident individual domiciliary who has departed from the State of Minnesota with intent to defraud creditors, or to avoid service, or remains concealed within with the like intent.”  Shamrock then published a copy of the summons in Finance and Commerce, a weekly newspaper published in Minneapolis, on three occasions in March and April 2006.  By special appearance in the district court, Smith moved to dismiss the complaint for renewal of the judgment on grounds that he has never been a resident of Minnesota and has never been domiciled in Minnesota.  The district court denied Smith’s motion to dismiss; the court of appeals affirmed.  The supreme court is asked to decide:  (1) whether it is sufficient to allow service by publication to merely allege the requisite jurisdictional facts, or whether the jurisdictional facts must actually exist; and (2) whether the district court properly asserted personal jurisdiction over Smith based on service by publication in a local Minnesota newspaper, where Smith never resided in and was never domiciled in Minnesota.  (Hennepin County)

State of Minnesota, Respondent vs. S.L.H., Appellant – Case No. A06-1750:  Appellant S.L.H. petitioned the Hennepin County District Court to expunge records of a 1992 nonviolent criminal conviction.  The district court granted the petition as to records within the judicial branch but concluded it lacked authority to expunge records outside the judicial branch, particularly records of the Minnesota Bureau of Criminal Apprehension, in the absence of any infringement of a petitioner’s constitutional rights.  A divided court of appeals affirmed.  At issue on appeal to the supreme court is whether courts have inherent authority to expunge conviction records held by other branches of government.  (Hennepin County)
 
In re UnitedHealth Group Incorporated Shareholder Derivative Litigation and In re UnitedHealth Group Incorporated PSLRA Litigation – Case No. A08-114:  In 2006, several shareholder derivative actions were filed in state and federal court in Minnesota against certain officers and directors of UnitedHealth Group, in connection with allegations that stock options issued to the officers and directors had been improperly issued.  The UnitedHealth board of directors appointed a special litigation committee to investigate the shareholders’ claims.  In December 2007, the special litigation committee recommended that certain of the shareholders’ claims in both the federal and state court derivative litigations be settled and that others be voluntarily dismissed.  Based on the committee’s recommendation, the parties asked the federal district court to dissolve an earlier injunction that froze certain assets of Dr. William McGuire, the former chief executive officer of UnitedHealth.  Some of the shareholders who had filed securities litigation against UnitedHealth’s officers and directors objected to dissolution of the injunction on grounds that it could impair their ability to collect on any judgment they may obtain.  Pursuant to Minn. Stat. § 480.062, subd. 3 (2006), federal district court certified, and the supreme court has agreed to decide, the following question (as reformulated by order filed on February 1, 2008):  To what extent does the business judgment rule as recognized in Minnesota law require a court, in deciding whether to approve a proposed settlement of a shareholder derivative action, to defer to the decision of a Special Litigation Committee duly constituted under Minn. Stat. § 302A.241, subd. 1 (2006), that the derivative action should be settled on specific terms?  (Certified question from United States District Court for the District of Minnesota)

Michael Bolen, et al, Respondents vs. Todd Glass, Appellant, City of Duluth, Respondent – Case Nos. A06-1422 and A06-1440**:  Appellant Todd Glass, respondents Michael and Debra Bolen, and respondent Joseph Zajac all own property adjoining 40th Street in Duluth.  40th Street was dedicated as part of the plat of the Oatka Beach Addition but, except for a stop sign and curb cuts on the intersecting Minnesota Avenue, was never constructed.  In 2005, Glass obtained from the City of Duluth a permit to construct a driveway on 40th Street to access a garage on his property.  At the request of Zajac and the Bolens, the district court ordered Glass to remove the driveway.  The court of appeals affirmed.  At issue before the supreme court are the following questions:  (1) whether 40th Street was “open” to public use; (2) whether the owner of property abutting a platted and dedicated street has a right of reasonable access to that street; (3) whether the owner of a lot within a plat has a right to use a street that was dedicated as part of the same plat; and (4) whether the city had the authority to grant Glass a permit to construct the driveway.  (St. Louis County)

** Rescheduled from April 1, 2008 calendar.

EN BANC NONORAL – Kevin T. Hannon, petitioner, Appellant vs. State of Minnesota, Respondent – Case No. A07-1784:  Appellant Kevin Hannon was convicted in 2000 of first-degree murder.  Hannon’s conviction was reversed on appeal.  State v. Hannon, 636 N.W.2d 796 (Minn. 2001).  On retrial, Hannon was again convicted; his conviction was affirmed on appeal.  State v. Hannon, 703 N.W.2d 498 (Minn. 2005).  Hannon filed a petition for postconviction relief, claiming among other things:  (1) that in the second trial his counsel had improperly denied him the right to testify in his own defense; (2) that the grand jury indictment was improperly based on inadmissible evidence; and (3) prosecutorial misconduct.  After an evidentiary hearing limited to the question of whether Hannon’s trial counsel improperly denied him the right to testify in his own defense, the district court denied the petition.  The issue for the supreme court is whether, in denying Hannon postconviction relief, the district court abused its discretion.  (Stearns County)
 
State of Minnesota, Respondent vs. Franklin Alan Miller, Appellant – Case Nos. A05-2519 and A07-2195:  Appellant Franklin Miller was convicted of kidnapping and first-degree murder; the case is before the supreme court on a combined direct appeal from the conviction and appeal from the denial, after an evidentiary hearing, of postconviction relief.  At issue is whether Miller’s convictions should be reversed and he should be granted a new trial because:  (1) the district court should have dismissed Miller’s grand jury indictment because the grand jury was not informed of the full extent of the legal responsibility of certain witnesses for the victim’s disappearance and death, or of certain inducements that some witnesses had received for their testimony; (2) the district court improperly excluded evidence of bad acts committed by others who may have committed the crimes for which Miller was charged; (3) the district court’s admission of statements made by the victim before his death deprived Miller of a fair trial; (4) the prosecution’s failure to disclose, in advance of trial, certain evidence arguably favorable to the defense deprived Miller of a fair trial; and (5) Miller did not receive the effective assistance of counsel at trial.  (St. Louis County)
 
Calm Waters, LLC, Respondent vs. Kanabec County Board of Commissioners, et al., Appellants – Case Nos. A06-2019 and A06-2361:  In July 2006, respondent Calm Waters, LLC, submitted a preliminary plat application to the Kanabec County Environmental Services Department.  The application was returned as incomplete because it lacked a letter from the pertinent township approving the preliminary plat.  After Calm Waters resubmitted the application in August 2006 without the township approval letter, the county’s environmental services director extended by 60 days the time for the county planning commission to consider the application.  In September 2006, Calm Waters petitioned the district court under Minn. Stat. § 15.99 (2006) for a writ of mandamus compelling approval of the plat as a matter of law.  Minnesota Statutes § 15.99, subdivision 2(a) (2006), provides that the failure of an agency to deny a written request relating to zoning within 60 days “is approval of the request.”  The district court denied Calm Waters’ request for a writ of mandamus; in October 2006, the county planning commission denied approval of the preliminary plat application.  Calm Waters appealed both the district court’s denial of the writ of mandamus and the commission’s denial of the plat application.  The court of appeals reversed the district court and ordered that the preliminary plat application be deemed approved by operation of law under Minn. Stat. § 15.99.  Four questions are before the supreme court:  (1) whether Minn. Stat. § 15.99 applies to subdivision applications; (2) whether Kanabec County delegated authority to the planning commission to both approve and deny preliminary plats; (3) whether the county properly required approval from the township as part of the application for approval of the subdivision; and (4) whether the county’s environmental services director had authority under section 15.99 to extend the timeline for the commission’s decision.  (Kanabec County)

EN BANC NONORAL – Rene Julian McKenzie, petitioner, Appellant vs. State of Minnesota, Respondent – Case No. A08-167:  Appellant Rene Julian McKenzie was convicted in 1992 of first degree murder; his conviction was affirmed on appeal.  State v. McKenzie, 511 N.W.2d 14 (Minn. 1994).  In 2007, McKenzie petitioned the district court for postconviction relief, claiming ineffective assistance of trial counsel and claiming the district court wrongly instructed the jury that it was required to accept the law as it given to it.  The district court denied McKenzie’s petition without conducting an evidentiary hearing.  On appeal, the question for the supreme court is whether, in denying the petition for postconviction relief, the district court abused its discretion.  (Hennepin County)

EN BANC NONORAL – Otha Townsend, petitioner, Appellant vs. State of Minnesota, Respondent – Case No. A07-2196:  

Case stricken from calendar and transferred to Court of Appeals jurisdiction.
 
Troels Botler, Relator vs. Wagner Greenhouses and One Beacon Insurance Company, Respondents – Case No. A08-55:  Relator Troels Botler, an employee of Wagner Greenhouses, was permanently and totally disabled in a work-related accident, and his wife was appointed by the district court as his legal guardian and conservator pursuant to Minn. Stat. § 176.092, subd. 1 (2006).  After Botler and his wife were divorced, the district court appointed Lutheran Social Services (LSS), a corporate fiduciary, as Botler’s new guardian and conservator.  A workers’ compensation judge ordered Botler’s former employer and its workers’ compensation insurer (respondent One Beacon Insurance Company) to pay the court costs and legal fees associated with LSS’s appointment as guardian and conservator, but denied Botler’s request that his employer and its insurer be ordered to pay LSS’s ongoing charges and the costs of preparing LSS’s annual accounting to the district court, as provided by the probate code, Minn. Stat. § 524.5-502 (2006).  The Workers’ Compensation Court of Appeals affirmed the workers’ compensation judge’s decision with respect to LSS’s ongoing charges and annual accounting costs, and vacated the compensation judge’s order requiring Botler’s former employer to pay the costs associated with LSS’s appointment as guardian and conservator.  Two issues are before the supreme court:  (1) whether it is the workers’ compensation court or the district court that has subject matter jurisdiction over LSS’s claim for reimbursement; and (2) whether Minnesota’s workers’ compensation statutes, and specifically Minn. Stat. § 176.092 (2006), requires a workers’ compensation insurer to pay the ongoing costs of maintaining a conservatorship for a disabled employee.  (Workers’ Compensation Court of Appeals)

In re Petition for Disciplinary Action against Nuro Bedhaso Dedefo, a Minnesota Attorney, Registration No. 309989 – Case No. A07-573:  An attorney discipline case that presents the question of what discipline, if any, is appropriate under the facts of the matter.
 
EN BANC NONORAL – Adl El-Shabazz, f/k/a A.C. Ford, petitioner, Appellant vs. State of Minnesota, Respondent – Case No. A07-2205:  Appellant Adl El-Shabazz (formerly known as A.C. Ford) was convicted of first-degree murder; his conviction was affirmed on appeal.  State v. Ford, 539 N.W.2d 214 (Minn. 1995).  In affirming the conviction, the supreme court found that the admission of the testimony of a particular witness was error, but that the error was harmless.  Id. at 227.  In 2007, El‑Shabazz petitioned for postconviction relief, again asserting the district court’s error in admitting the witness’s testimony.  El-Shabazz argued that his petition was not procedurally barred under State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737 (1976), because the supreme court’s interpretation of the harmless error doctrine changed after his direct appeal became final.  The district court denied postconviction relief without an evidentiary hearing.  The issue for the supreme court is whether, in denying postconviction relief, the district court abused its discretion.  Appellant raises additional issues in a pro se supplemental brief.  (Hennepin County)

EN BANC NONORAL – Gilberto Arredondo, petitioner, Appellant vs. State of Minnesota, Respondent – Case No. A07-1983:  Appellant Gilberto Arredondo was convicted of first-degree felony murder, second-degree intentional murder, second-degree unintentional felony murder, and first-degree manslaughter, but was acquitted of first‑degree premeditated murder; his convictions were affirmed on appeal.  State v. Arredondo, 431 N.W.2d 841 (Minn. 1995).  In 2007, Arredondo petitioned for postconviction relief.  Arredondo argued that the verdicts against him (specifically, intentional murder and misdemeanor manslaughter) were inconsistent; that as a Mexican national he was wrongly denied the right to assistance from the Mexican Consulate; that the district court erred in its admission of certain evidence; and that he was denied the effective assistance of counsel at trial and on direct appeal.  The district court denied Arredondo’s petition without an evidentiary hearing.  The supreme court is asked to decide whether, in denying Arredondo’s petition, the district court abused its discretion.  (Lyon County)