EN BANC CALENDAR

Before the Minnesota Supreme Court
November 2008
SUMMARY OF ISSUES
Summaries prepared by the Supreme Court Commissioner’s Office

Metropolitan Airports Commission, Respondent vs. Thomas W. Noble, Respondent, Speedway SuperAmerica LLC, a Delaware corporation, Appellant, Northern States Power Company, n/k/a Xcel Energy, Respondent, State of Minnesota, Respondent, County of Hennepin, Respondent, City of Bloomington, Respondent – Case No. A06-2400:  Respondent Thomas Noble owned property in Bloomington that was leased to appellant Speedway SuperAmerica, LLC, for a gas station and convenience store.  In 2004, respondent Metropolitan Airports Commission acquired the property by eminent domain under Minn. Stat. § 117.042 (2006) for runway expansion at the Minneapolis-St. Paul International Airport.  In addition to damages awarded to respondent Noble for the value of the land and improvements, the district court awarded $360,000 to appellant Speedway SuperAmerica for the value of immovable fixtures.  A divided court of appeals reversed the award to Speedway SuperAmerica on grounds that a lessee is not entitled to share in an award for taking damages where, as in this case, the lease agreement provides that the lease terminates upon condemnation.  Two issues are before the supreme court:  (1) whether a condemnation clause in a lease deprives the tenant of any right to eminent domain damages where the lease also includes an express reservation by the tenant for recovery of damages from the taking of fixtures; and (2) whether eminent domain damages must be “separately awarded” to entitle the tenant to recover damages for the taking of fixtures where the lease allows recovery of such damages by the tenant “provided a separate award is permitted by the taking authority directly to tenant.”  (Hennepin County)

Jeffrey C. Morris, Appellant vs. State of Minnesota, Respondent – Case No. A06-2101:  Appellant Jeffrey Morris, after waiving his right to counsel, pleaded guilty in 1999 to two counts of misdemeanor theft.  He did not appeal.  In 2005, while incarcerated for other offenses, Morris filed for postconviction relief from his 1999 convictions, contending that at the time of his guilty pleas he was suffering from bipolar disorder and delusions.  Morris sought to withdraw his guilty pleas and asked the district court to appoint counsel for him.  The state public defender declined to represent Morris, citing Minn. Stat. § 611.14(2) (2006).  Section 611.14(2) provides that a defendant convicted of a felony or gross misdemeanor is entitled to representation on appeal by a public defender, but makes no mention of a defendant convicted of a misdemeanor.  Morris then filed a motion seeking to declare section 611.14(2) unconstitutional under Article I, § 6 of the Minnesota Constitution, which provides that “[t]he accused shall . . .  have the assistance of counsel in his defense.”  The district court declined to invalidate Morris’s guilty pleas or to declare section 611.14(2) unconstitutional and appoint counsel.  The court of appeals affirmed.  The issue in the supreme court is whether section 611.14(2) is unconstitutional under Article I, § 6 of the Minnesota Constitution insofar as it purports to withhold the right to appointed counsel from persons challenging misdemeanor convictions in a first review by postconviction proceeding.  (Hennepin County)

Irene Hoffman, et al., Appellants vs. Northern States Power Company, d/b/a Xcel Energy, Respondent – Case No. A06-2275:  Appellants Irene Hoffman, David Hoffman, Jerry Ustanko, and Mulugeta Endayehu all take electrical service from respondent Northern States Power Company in either Minnesota, North Dakota, or South Dakota, pursuant to the terms of tariffs filed with the public utilities commissions of those states.  Appellants are named plaintiffs in this putative class action lawsuit filed against NSP, alleging that NSP breached its obligation under the tariffs to inspect and maintain the “points of connection” between NSP’s transmission lines and the wiring in customers’ homes.  Appellants sought (1) an injunction requiring NSP to inspect and maintain these “points of connection” in the future and (2) monetary damages equal to the fair market value of the inspection and maintenance services that appellants contend NSP failed to provide in the past.  The district court denied NSP’s motion for judgment on the pleadings, but certified to the court of appeals as important and doubtful two questions:  (1) does the filed rate doctrine, which bars judicial challenges to the reasonableness of rates approved by regulatory agencies, bar appellants’ claims; and (2) does the primary jurisdiction doctrine, which requires a court to defer to the responsible agency on issues within the agency’s special expertise, require the court to defer resolution of the services required by the applicable tariffs to the applicable public utilities commissions.  The court of appeals held that the claims of the Hoffmans, who are Minnesota residents, are precluded by the filed rate doctrine.  The court declined to address the claims of appellants Ustanko and Endayehu, residents of North and South Dakota respectively, so as not to invade the province of the courts and regulatory agencies of those states to decide novel issues under those states’ laws.  Therefore, the court of appeals did not reach the second certified question concerning the applicability of the doctrine of primary jurisdiction.  On appeal to the supreme court, the issues are:  (1) whether the appellants’ claims are barred by the filed rate doctrine; and (2) whether the primary jurisdiction doctrine required the district court to defer to the responsible administrative agencies, namely, the state public utilities commissions.  (Hennepin County)

State of Minnesota, Respondent vs. Steven Douglas Stanke, Appellant – Case Nos. A07-95 and A07-132:  After a high-speed car chase that resulted in the death of a police officer and injuries to a motorist, appellant Steven Douglas Stanke pled guilty to one count of fleeing a peace officer resulting in death and one count of fleeing a police officer resulting in great bodily harm.  Stanke agreed that there were aggravating circumstances justifying a double upward departure in sentencing.  Stanke waived his right to a sentencing jury and the sentencing factors were heard by the court.  The district court sentenced Stanke to the statutory maximum sentence, more than a double upward departure.  The court found nine aggravating factors and cited as a “severe aggravating circumstance to justify more than the double departure” the fact that the officer was “particularly vulnerable.”  The court of appeals held that the officer was not “particularly vulnerable” simply because he was performing an official duty at the time of his death.  But the court of appeals nevertheless affirmed the total sentence, noting that Stanke’s conduct “clearly represented remarkable egregiousness and greater than normal danger to the safety of other people.”  On appeal to the supreme court, the question is whether an appellate court can affirm a greater-than-double departure from the presumptive sentence using its own rationale for the departure after finding the district court’s sole reason for imposing the departure invalid.  (Anoka County)

State of Minnesota, Respondent vs. Jeffrey Brian Alphonse Stein, Appellant – Case No. A06-1848:  Appellant Jeffrey Stein was convicted of three burglaries committed during the early morning hours of June 3, 2005, on the basis of conflicting circumstantial evidence.  The court of appeals affirmed.  The issue before the supreme court is the standard of review to be applied in appeals of convictions based on circumstantial evidence.  (Hennepin County)

The Big Lake Association, Appellant vs. Saint Louis County Planning Commission, et al, Respondents, Big Lake Properties, LLC, John A. Swenson, Sheryl L. Swenson, and George P. Nall, Respondents – Case No. A06-2305:  Respondents John Swenson and George Nall own Big Lake Properties, LLC.  In 2006, John and Sheryl Swenson, Nall, and Big Lake Properties filed for a conditional use permit to expand and develop the existing Big Lake Wilderness Lodge in rural St. Louis County.  Respondents planned, among other things, to construct additional cabins on the property to be sold to individual owners who would receive rental income and time at the resort in exchange.  The County issued the permit, over the objections of neighbors, as a commercial planned unit development.  Appellant Big Lake Association appealed the issuance of the permit to the court of appeals, arguing that the resort conversion was actually a residential planned unit development and was therefore subject to different density requirements than a commercial planned unit development.  In affirming the issuance of the permit, the court of appeals declined to address the association’s argument that the planned resort did not conform to residential planned unit development requirements such as minimum lot size and width because the issue was not raised “as now framed” to the planning commission.  On appeal to the supreme court, the questions are:  (1) whether the association preserved its legal objections to the planned resort on grounds that it was a residential, rather than a commercial, planned unit development; and (2) whether the county abused its discretion in granting the conditional use permit.  (St. Louis County)

Auto Owners Insurance Co., Respondent vs. Star Windshield Repair, Inc., as Intended Assignee of A & E Construction Supply, Inc., et al., Appellant – Case No. A07-972 AND Star Windshield Repair, Inc., as Assignee for Aaron Helget, Appellant vs. Western National Insurance Co., Respondent – Case No. A07-216 AND The Glass Network, Claimant, Auto Glass Express, as assignee for Kathy Heglos, claimant, Appellant vs. Austin Mutual Insurance Company, Respondent – Case No. A07-217 AND State Farm Mutual Automobile Insurance Company, Respondent vs. Archer Auto Glass, as assignee for Ronald Hornberg, Appellant – Case No. A07-830:  There are four cases consolidated in this appeal.  In each case, a vehicle’s windshield or window was damaged.  The vehicle’s owner arranged to have the damaged glass replaced, and the glass repair shop accepted as payment an assignment of the insurance proceeds due to the owner.  The glass repair shop billed the owner’s insurance company directly, but the insurance company failed to pay the full amount of the invoice.  In three of the four cases, the glass company obtained an award against the insurer in arbitration; in the fourth case, the insurer sought a temporary restraining order to prevent the arbitration from going forward.  The insurers then moved, with varying degrees of success, to vacate the arbitration awards, citing policy provisions that bar assignment of the insured’s rights and duties under the policy.  The court of appeals agreed that anti-assignment provisions in the respective insurance policies prohibited post-loss assignments of rights under the policies.  The issue before the supreme court is whether the post-loss assignment of insurance proceeds due as a result of a broken windshield or window is valid under Minnesota law, notwithstanding a provision in the insurance policy to the effect that “[n]o interest in this policy may be assigned without [the insurer’s] written consent.” 

In re Petition for Disciplinary Action against John T. Anderson, Jr., a Minnesota Attorney, Registration No. 2549 – Case No. A07-2126:  An attorney discipline case that presents the question of what discipline, if any, is appropriate under the facts of the matter. 

State of Minnesota, Respondent vs. Elton Perez Vance, Appellant – Case No. A06-2130:  Appellant Elton Vance was convicted of second-degree assault and first-degree criminal sexual conduct and sentenced to 288 months in prison, a double upward durational departure.  Vance’s sentence was based in part on the sentencing jury’s determination that Vance committed the offenses in the presence of the victim’s children, who were in other parts of the apartment during the lengthy assault.  Vance’s sentence was affirmed on appeal to the court of appeals.  Vance asks the supreme court to decide whether the district court correctly instructed the sentencing jury that to prove that Vance committed the assault in the presence of children, the state need only prove that a child could have heard or observed the assault or that the victim was less inclined to flee because of the children.  (Dakota County)

State of Minnesota, Respondent vs. Russell John Hurd, Appellant – Case No. A08-539:  In 1993, appellant Russell Hurd was convicted after a jury trial of first-degree murder.  Hurd’s counsel filed a notice of appeal from the conviction; in June 1994 the supreme court stayed appellate proceedings in order to allow Hurd, then acting pro se, to seek post-conviction relief from the district court.  Hurd’s petition for post-conviction relief was denied in 1996, but Hurd neither appealed from the denial nor moved to reinstate the direct appeal of his conviction.  In 2007, now represented by counsel, Hurd filed a second petition for post-conviction relief.  The district court denied six of the seven claims made in the petition on grounds that they were either raised and decided in the first post-conviction petition or were known to Hurd when he filed the first post-conviction petition.  After an evidentiary hearing on the seventh claim, that of newly discovered evidence, the district court denied that claim as well.  Hurd’s appeal from the denial of post-conviction relief presents the following issues:  (1) whether the district court erred in ruling that all but one of the claims raised in Hurd’s second petition for post-conviction relief are barred under State v. Knaffla; and (2) whether the district court abused its discretion in denying Hurd a new trial based on newly discovered evidence.  Hurd raises additional issues in a pro se supplemental brief.  (Washington County)

David Charles Foss, Appellant vs. Jeremy Kincade, et al., Respondents vs. Peggy Foss, Respondent – Case No. A07-313:  While visiting the home of respondents Jeremy and Stephanie Kincade with his mother, 3-year-old David Foss, Jr., was injured by a falling bookcase.  Appellant David Foss, the boy’s father, sued the Kincades on behalf of his son for negligence; the Kincades brought a third-party action against respondent Peggy Foss, the boy’s mother.  The district court dismissed the complaint against the Kincades, holding that the Kincades had no duty to protect against an unexpected act by the child while under his mother’s care, and had no duty to warn Peggy Foss of the condition presented by the bookcase.  The court of appeals affirmed.  The issue before the supreme court is whether a property owner owes a duty of care to a young child invited onto the premises with a parent.  (Rice County)

In the Matter of the Risk Level Determination of J.M.T. – Case No. A08-365:  In April 2007, an end-of-confinement review committee (ECRC) assigned J.M.T., then confined to the Clay County Jail awaiting trial for gross misdemeanor prostitution, a risk level of 2, requiring notice to such entities as educational institutions and day care establishments of J.M.T.’s release from custody.  J.M.T. requested a hearing on the assigned risk level.  The administrative law judge’s findings of fact and conclusions of law affirming the risk level determination by the ECRC were issued on January 23, 2008, and received by the Minnesota Public Defender’s Office the next day.  Under Minn. Stat. § 14.63 (2006), a party can obtain judicial review of a final decision in a contested case by filing a petition for writ of certiorari with the court of appeals and serving the agency not more than 30 days after receiving the final decision and order.  Minnesota Statutes § 14.64 (2006) provides that proceedings for review of a final decision in a contested case “shall be instituted by serving a petition for writ of certiorari personally or by certified mail upon the agency . . . .”  On Monday, February 25, the first business day following expiration of the 30-day period, J.M.T.’s public defender served a petition and proposed writ of certiorari on counsel for the Commissioner of the Department of Corrections by regular mail.  The court of appeals dismissed J.M.T’s appeal on grounds that under Minn. Stat. § 14.64 (2006), a petition is timely served only if served by certified mail or if actually received by the respondent within the 30-day appeal period.  On appeal to the supreme court, the issue is whether service of a petition for writ of certiorari under Minn. Stat. § 14.63 by U.S. mail within the appeal period constitutes timely service, although the petition is not received by opposing counsel within the appeal period.  (Clay County)