EN BANC CALENDAR

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

General Casualty Company of Wisconsin, Plaintiff vs. Wozniak Travel, Inc., d/b/a Hobbit Travel, Defendant, The Saul Zaentz Company, d/b/a Tolkien Enterprises, Defendant – Case No. A08-321:  The Saul Zaentz Company, doing business as Tolkien Enterprises, holds various trademarks associated with J.R.R. Tolkien’s The Hobbit and The Lord of the Rings trilogy.  In 2007, Tolkien Enterprises sued Wozniak Travel, Inc., which does business as Hobbit Travel, in federal court in California for trademark infringement, unfair competition, and trademark dilution.  Wozniak Travel tendered the complaint to General Casualty Company of Wisconsin, its insurer under commercial general liability (CGL) and commercial umbrella liability (CUL) policies.  General Casualty then filed in federal district court in Minnesota an action for declaratory judgment as to its obligation to defend and indemnify Wozniak Travel in the California litigation.  The federal district court in Minnesota has certified the following questions to the Minnesota Supreme Court:  (1) does trademark infringement fall within the scope of “misappropriation of advertising ideas or style of doing business” or constitute “infringement of copyright, title or slogan” as set forth in the CGL policy; and (2) is a trademark an “advertising idea” or does trademark infringement constitute “infringing upon another’s copyright, trade dress or slogan” as set forth in the CUL policy.  (Certified question from the United States District Court for the District of Minnesota)

Stephen Danforth, Appellant vs. State of Minnesota, Respondent – Case No. A04-1993:  Appellant Stephen Danforth was convicted in 1996 of first-degree criminal sexual conduct for abusing a 6-year-old boy.  The boy was found incompetent to testify at trial, but a videotaped interview with the boy was shown to the jury.  Danforth argued that admission of the videotape in lieu of the boy’s testimony in open court violated Danforth’s rights under the Confrontation Clause.  Danforth’s conviction was affirmed on direct appeal, as was the denial of his petition for postconviction relief.  State v. Danforth, 573 N.W.2d 369, 371 (Minn. App. 1997) (affirming the conviction by remanding for resentencing), rev. denied (Minn. Feb. 19, 1998); Danforth v. State, No. C6-00-699, 2000 WL 1780244 at *5 (Minn. App. Dec. 5, 2000) (affirming the denial of posconviction relief), rev. denied (Minn. Feb. 13, 2001).
 
After the United States Supreme Court issued its decision in Crawford v. Washington, 541 U.S. 36 (2004) (holding that testimonial hearsay is inadmissible unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant), Danforth again petitioned for postconviction relief.  Danforth’s petition was denied on grounds that Crawford did not apply retroactively to Danforth’s case, which was final when the Crawford decision was announced.  The court of appeals affirmed.  Danforth v. State, 700 N.W.2d 530, 532 (Minn. App. 2005).  The Minnesota Supreme Court affirmed on grounds that it was required to apply the rule of retroactivity announced by the United States Supreme Court in Teague v. Lane, 489 U.S. 288 (1989).  Danforth v. State, 718 N.W.2d 451, 455 (Minn. 2006).  Under Teague, a “new” rule of federal constitutional criminal procedure generally will not be applied to cases that became final before the “new” rule is announced.  489 U.S. at 310. 
 
The United States Supreme Court granted certiorari and in 2008 ruled that state courts may “give broader effect to new rules of criminal procedure than is required” by Teague.  Danforth v. Minnesota, 552 U.S. ___, 128 S. Ct. 1029, 1033 (2008).  The Supreme Court reversed and remanded the matter to the Minnesota Supreme Court for further proceedings.  Id. at ___, 128 S. Ct. at 1047.  On remand, the issue is what standard Minnesota should adopt in determining the retroactivity of Crawford v. Washington.  (Hennepin County)

 
State of Minnesota, Respondent vs. Steven Van Keuren, Appellant – Case No. A07-1842:  On direct appeal from his convictions of two counts of first-degree murder, appellant Steven Van Keuren presents the following issues on review:  (1) whether his grand jury indictment must be dismissed because it was obtained by two assistant county attorneys, rather than by the county attorney himself; (2) whether the district court committed reversible error by refusing to instruct the jury on the lesser-included offense of first-degree manslaughter (heat of passion); (3) whether the prosecutor committed misconduct in closing argument that requires reversal of the convictions; and (4) whether the district court committed reversible error by denying his motion for change of venue.  (Washington County)

State of Minnesota, Respondent vs. Christian N. Franks, Appellant – Case No. A06-1242:  Appellant Christian Franks was convicted in 2005 of four felony counts of violating an order for protection and one felony count of engaging in a pattern of harassing conduct.  The district court sentenced Franks to the presumptive sentences for violating an order for protection and ordered that the four sentences be served consecutively.  The Minnesota Sentencing Guidelines permit consecutive sentences for multiple felony convictions for “crimes against persons,” Minn. Sent. Guidelines II.F., but at the time the Guidelines did not define “crime against a person.”  The district court did not impose a sentence on the pattern-of-harassing-conduct charge.  The court of appeals affirmed.  There are five issues before the supreme court:  (1) whether the evidence was sufficient to convict Franks of engaging in a pattern of harassing conduct; (2) whether the district court erred in imposing consecutive sentences for the four convictions of violating an order for protection; (3) whether the district court’s decision to impose consecutive sentences violated Franks’ right to a jury trial under Blakely v. Washington, 542 U.S. 296 (2004); (4) whether the district court’s decision to impose consecutive sentences unduly exaggerated the criminality of Franks’ conduct; and (5) whether the district court erred in sentencing Franks on the convictions for violating an order for protection, rather than on the conviction for engaging in a pattern of harassing conduct, because the latter is the more serious offense.  (Olmsted County)

Jewelean Jackson, Ethylon Brown, William Brown, Brenda Doane, and David Williams, on behalf of themselves and all others similarly situated, Plaintiffs vs. Mortgage Electronic Registration Systems, Inc., and Richard W. Stanek, in his official capacity as Sheriff of Hennepin County, Defendants – Case No. A08-397:  Minnesota permits non-judicial foreclosure of a mortgage, sometimes called “foreclosure by advertisement,” provided that certain statutory requirements are met.  Minn. Stat. § 580.02 (2006).  Among those requirements is that “the mortgage has been recorded and, if it has been assigned, that all assignments thereof have been recorded; provided, that, if the mortgage is upon registered land, it shall be sufficient if the mortgage and all assignments thereof have been duly registered.”  Id.  In addition, under Minn. Stat. § 580.04 (2006), the published notice of a mortgage foreclosure by advertisement must include the name of “each assignee of the mortgage, if any.”
 
In January 2008, plaintiffs Jewelean Jackson, Ethylon Brown, William Brown, Brenda Doane, and David Williams filed suit in federal court in Minnesota against defendant Mortgage Electronic Registration Systems, Inc. (MERS).  MERS is a national registry system that tracks changes in servicing rights and various beneficial ownership interests in mortgage loans.  The complaint alleges that MERS violates section 580.02 because it fails to record all assignments of the mortgage being foreclosed and fails to list all assignments of the mortgage on the published notice of mortgage foreclosure sale. 

Plaintiffs sought a temporary restraining order to prevent MERS from foreclosing on mortgages registered with it during the pendency of the proceedings.  In response, MERS denied that any of the mortgages for any of the loans of the named plaintiffs (as opposed to the promissory notes secured by the mortgages) have been assigned.  The federal district court denied plaintiffs’ request for a temporary restraining order, but certified to the Minnesota Supreme Court the following question (as reformulated by the Minnesota Supreme Court):  where an entity, such as Defendant MERS, serves as mortgagee of record as nominee for a lender and that lender’s successors and assigns and there has been no assignment of the mortgage itself, is an assignment of the ownership of the underlying indebtedness for which the mortgage serves as security an assignment that must be recorded prior to the commencement of a mortgage foreclosure by advertisement under Minn. Stat. ch. 580.  (Certified question from the United States District Court for the District of Minnesota)

State of Minnesota, Appellant vs. Jakklyn M. Netland, Respondent – Case No. A06-1511:  Respondent Jakklyn Netland was arrested for driving while intoxicated and agreed to take a breath test.  After three unsuccessful attempts to provide an adequate breath sample, the arresting officer declined to allow Netland to provide a blood or urine sample instead.  After a jury trial, Netland was found not guilty of driving while intoxicated but was convicted of second degree test refusal.  The court of appeals reversed the conviction of test refusal.  On appeal to the supreme court, the issues are (1) whether the arresting officer’s refusal to allow Netland to take an alternate test violated her due process rights and (2) whether Minn. Stat. § 169A.20, subd. 2 (2006), which makes it a crime to refuse to submit to chemical testing, constitutes an unreasonable search or seizure.  (Hennepin County)

State of Minnesota, Respondent vs. Edgar Randolph Hughes, Jr., Appellant – Case No. A07-37:  Appellant Edgar Hughes, Jr., pleaded guilty to aggravated robbery.  After imposing sentence, the district court informed Hughes that “[i]f there is any restitution, it may be determined by Community Corrections, and you have a right to a hearing on that matter.”  Ninety-five days later, the district court ordered Hughes to pay restitution of $634.99.  Two days after that, the United States Supreme Court issued its opinion in Blakely v. Washington, 542 U.S. 296 (2004).  Hughes petitioned for postconviction relief on grounds that under Blakely he was entitled to a jury trial on the question of restitution.  The district court granted the petition for postconviction relief, but the court of appeals reversed.  The supreme court has agreed to decide two questions:  (1) whether Hughes’ case was “pending on direct review or not yet final” on the date that the United States Supreme Court’s decision in Blakely was issued because the question of restitution had not been determined; and (2) if not, whether Minnesota should nevertheless give Hughes the benefit of the holding in Blakely under state law principles of retroactivity.  (Dakota County)

Stewart Title Guaranty Company, Relator vs. Commissioner of Revenue, Respondent – Case No. A08-429:  Minnesota imposes a tax on insurance companies “equal to two percent of all gross premiums less return premiums on all direct business received by the insurer or agents of the insurer in Minnesota, in cash or otherwise.”  Minn. Stat. § 297I.05, subd. 1 (2006).  Minnesota Statutes § 297I.01, subd. 9 (2006), provides the following definition of “gross premiums” of a title insurance company beginning with the 2001 tax year:  “the charge for title insurance made by a title insurance company or its agents according to the company’s rate filing approved by the commissioner of commerce without a deduction for commissions paid to or retained by the agent.”  For the years at issue (2000 – 2002), relator Stewart Title Guaranty Company computed gross premium tax on only the amount it received from its agents, and not on the total amount collected by its agents.  The Commissioner of Revenue audited Stewart Title and assessed additional taxes by including in taxable gross premiums the amounts retained by the agents.  The Minnesota Tax Court affirmed.  Three issues are before the supreme court on Stewart Title’s appeal:  (1) whether funds retained by title insurance agents for services performed for a title insurer before the insurer enters into an insurance contract are includable in gross premiums subject to taxation under the insurance gross premiums tax; (2) whether the funds retained by Stewart Title’s agents constitute “commissions” under Minn. Stat. § 297I.01, subd. 9 (2006); and (3) whether the legislature intended to impose the gross premiums tax on funds that were never received by the insurer itself.  (Minnesota Tax Court)

State of Minnesota, Appellant vs. Paul P. Spence, Respondent – Case No. A06-1541:  Respondent Paul Spence and his girlfriend, A.S., purchased a house together.  In 2004, the couple separated but Spence’s name remained on the title to the house and he continued to pay the mortgage.  In 2005, A.S. told police that Spence had assaulted her in the home.  Spence was charged with first-degree burglary and domestic assault and, after a jury trial, was convicted.  The court of appeals affirmed the conviction of domestic assault but reversed the burglary conviction.  Under Minn. Stat. § 609.582, subd. 1 (2006), first-degree burglary occurs when a person “enters a building without consent and with intent to commit a crime, or enters a building without consent and commits a crime while in the building.”  Minnesota Statutes § 609.581, subd. 4 (2006), defines the phrase “enters a building without consent” to mean, among other things, “to enter a building without the consent of the person in lawful possession.”  On appeal to the supreme court, the question is whether a person who has moved out of a home he owns with another maintains lawful possession of the home, such that he cannot be guilty of burglarizing it.  (Jackson County)