EN BANC CALENDAR

Before the Minnesota Supreme Court
February 2009
SUMMARY OF ISSUES
Summaries prepared by the Supreme Court Commissioner’s Office

Brian F. Kidwell, Appellant vs. Sybaritic, Inc., Respondent – Case No. A07-584:  After appellant Brian Kidwell was fired as general counsel of respondent Sybaritic, Inc., he sued for, among other things, violation of Minn. Stat. § 181.932 (2008), the Minnesota Whistleblower Act.  The Whistleblower Act bars an employer from discharging an employee because the employee, in good faith, reports a violation or suspected violation of federal or state law or rule.  A jury awarded Kidwell damages for lost past and future wages and emotional distress.  The court of appeals reversed the jury award, holding that Kidwell’s report of alleged wrongdoing at Sybaritic was made to fulfill Kidwell’s duties as general counsel and therefore was not within the scope of the Whistleblower Act.  Two issues are before the supreme court on appeal from the court of appeals’ decision:  (1) does an employee engage in conduct protected by the Minnesota Whistleblower Act when the employee makes a good faith report of a violation or suspected violation of the law, while also fulfilling the employee’s job duties; and (2) whether, under the rule articulated by the court of appeals, an in-house attorney can be protected under the Whistleblower Act.  (Hennepin County)

State of Minnesota, Respondent vs. Eugene Erick Fort, Appellant – Case No. A08-27:  Appellant Eugene Fort was convicted after a jury trial of first-degree murder and first-degree felony murder.  On direct appeal of his convictions, Fort presents the following issues:  (1) whether the district court erred by not suppressing evidence seized during a second search of Fort’s home; (2) whether the evidence was sufficient to prove premeditation beyond a reasonable doubt; (3) whether the district court erred in instructing the jury that a conviction could be based on finding the predicate felony offense of assault; (4) whether the district court should have granted Fort a new trial based on evidence that another person had confessed to committing the crime; and (5) whether the district court erred in adjudicating and sentencing Fort on both counts of first-degree murder when the convictions resulted from a single criminal act against a single victim.  Fort raises additional issues in a pro se supplemental brief.  (Hennepin County)

Sergey Oganov, Appellant vs. American Family Insurance Group, Respondent – Case No. A07-929:  In January 1999, appellant Sergey Oganov was injured when the car he was driving was struck by a snowplow owned by Bob Ryan Oldsmobile and operated by a Ryan Oldsmobile employee.  At the time, Ryan Oldsmobile was insured by Legion Insurance Company; Oganov was insured by American Family Insurance, including uninsured motorist coverage.  In October 2001, Oganov made a settlement demand on the claims administrator for Legion Insurance; the claims administrator denied liability.  In April 2002, Legion Insurance was placed into rehabilitation by the Pennsylvania courts and all negotiations and litigation were stayed.  Legion Insurance was declared insolvent on July 25, 2003.  In June 2005, Oganov made a demand on American Family for uninsured motorist coverage.  After negotiations failed to reach a settlement, Oganov sued American Family in August 2006.  The district court dismissed Oganov’s claims on grounds that they were time-barred; the court of appeals affirmed, holding that Oganov’s uninsured motorist claim arose on the date of the accident.  The question before the supreme court is when Oganov’s uninsured motorist claim accrued and the statute of limitations on his claim began to run.  (Hennepin County)

Dario George Bonga, petitioner, Appellant vs. State of Minnesota, Respondent – Case No. A08-1135:  In 1999, appellant Dario Bonga was charged with two counts of first-degree murder.  Bonga discharged his court-appointed counsel and confessed to the crime.  After confessing, Bonga attempted suicide.  The next morning, Bonga pleaded guilty to a single count of first-degree murder and was sentenced to life in prison.  Two years later, Bonga filed a pro se motion to vacate his sentence, which the district court treated as a petition for postconviction relief and denied without a hearing and without appointing counsel for Bonga.  In 2007, with the assistance of counsel, Bonga filed a petition for postconviction for relief, seeking to withdraw his guilty plea.  The district court dismissed the petition without an evidentiary hearing.  The following questions are before the supreme court:  (1) whether the district court erred by dismissing Bonga’s petition, given that counsel was not appointed for Bonga in connection with his 2001 motion; and (2) whether the district court erred by refusing to allow Bonga to withdraw his guilty plea.  Bonga raises additional issues in a pro se supplemental brief.  (Carlton County)

State of Minnesota, Respondent vs. Danny Ortega, Appellant – Case No. A07-22:  In August 2004, a state trooper stopped the car in which appellant Danny Ortega was riding for speeding and for failure to display a front license plate.  Based on a faint odor of marijuana coming from the car, the officer obtained consent from the driver to search the car.  During a protective pat-down search of passenger Ortega, the officer found a small amount of marijuana.  The officer searched the car with the assistance of his canine partner, finding a rolled-up dollar bill that field-tested positive for cocaine.  The officer then searched Ortega a second time and found a folded dollar bill, containing cocaine, in Ortega’s pocket.  Ortega was charged with fifth-degree controlled-substance crime; his motion to suppress the cocaine evidence was denied.  Ortega was convicted after a court trial on stipulated facts; his conviction was affirmed by the court of appeals.  Before the supreme court, the issue is whether the district court erred in not suppressing the evidence obtained during the second search of Ortega.   (Blue Earth County)

In re Petition for Disciplinary Action against Kenneth M. Holker, a Minnesota Attorney, Registration No. 46267, Case No. A06-896:  An attorney discipline case that presents the question of whether the petitioner, suspended from the practice of law in 2007, should should be reinstated to the practice of law. 

Al Franken, Petitioner vs. Timothy Pawlenty, et al., Respondents – Case No. A09-64:  This is an action brought directly in the supreme court under Minn. Stat. § 204B.44 (2008) by Al Franken seeking an order requiring Governor Timothy Pawlenty and Secretary of State Mark Ritchie to prepare and countersign, respectively, a certificate of election for Franken as the successful candidate in the November 4, 2008 election for United States Senator.  The issue before the supreme court is whether state and/or federal law require the respondent state officials to issue a certificate of election based on the results of the administrative recount, despite the fact that an election contest is pending in district court.   

EN BANC NONORAL – In the Matter of the Welfare of:  H.A.D., Child – Case No. A07-1341:  In January 2006, H.A.D. pleaded guilty to fifth-degree assault of a teenage girl and was placed on probation for a period of up to one year.  Four days before the expiration of probation, the county requested continuation of the probation in order to review a request for restitution on behalf of the assaulted girl.  One day after H.A.D.’s probation expired, the district court signed an order extending H.A.D.’s probation until September 2007.  The district court ordered H.A.D. to pay approximately $5,800 in restitution.  H.A.D. appealed to the court of appeals, challenging the district court’s authority to extend probation and to order payment of restitution.  The court of appeals affirmed the district court’s order for restitution, on grounds that the request for restitution had been filed within the original probationary period.  The issue before the supreme court is whether the district court had authority to order H.A.D. to pay restitution after the original term of probation expired.  (Rice County)

EN BANC NONORAL – Eric Maurice Wright, petitioner, Appellant vs. State of Minnesota, Respondent – Case No. A08-1666:  Appellant Eric Wright was convicted after a jury trial of first-degree murder; his conviction was affirmed on direct appeal.  State v. Wright, 719 N.W.2d 910 (Minn. 2006).  In 2008, Wright filed a pro se petition for postconviction relief, alleging prosecutorial misconduct, that one of the jurors was biased against him, that the evidence was insufficient to convict him, and that he was denied effective assistance of counsel at trial and on direct appeal.  The district court denied the petition without an evidentiary hearing.  The question before the supreme court is whether Wright’s petition, together with the files and proceedings in the case, conclusively show that Wright is not entitled to relief.  (Stearns County)