EN BANC CALENDAR

Before the Minnesota Supreme Court
January 2010
SUMMARY OF ISSUES
Summaries prepared by the Supreme Court Commissioner’s Office

EN BANC NONORAL – Michael Calvin Francis, petitioner, Appellant vs. State of Minnesota, Respondent – Case No. A09-1466:  Appellant Michael Francis was convicted after a jury trial of first-degree murder and sentenced to life in prison.  Francis appealed his conviction to the Minnesota Supreme Court alleging, among other things, ineffective assistance of counsel at trial.  After his initial brief to the supreme court was filed, Francis terminated representation by his court-appointed counsel.  In 2006, while his direct appeal was pending, Francis filed a pro se petition for postconviction relief that also alleged ineffective assistance of counsel  The petition was denied without an evidentiary hearing, and Francis appealed.  In 2007, the supreme court affirmed both the conviction and the denial of postconviction relief.  Francis v. State, 729 N.W.2d 584 (Minn. 2007).  In 2008, Francis (now represented by counsel) filed a second petition for postconviction relief alleging ineffective assistance of counsel at trial, which was also denied without an evidentiary hearing.  The question for the supreme court is whether the district court erred in denying Francis’s second postconviction petition without an evidentiary hearing.  (Hennepin County)

EN BANC NONORAL – Jermaine Ferguson, petitioner, Appellant vs. State of Minnesota, Respondent – Case No. A09-1483:  Pro se appellant Jermaine Ferguson was convicted after a jury trial of first-degree murder.  In support of his first petition for postconviction relief, Ferguson presented a memorandum from counsel indicating that a witness who had placed Ferguson at the scene of the murder had recanted his testimony.  Ferguson’s first petition for postconviction relief was denied by the district court; the supreme court affirmed the denial but without prejudice, allowing Ferguson to file a new petition with “a more satisfactory showing of a genuine recantation of trial testimony.”  State v. Ferguson, 742 N.W.2d 651, 660 (Minn. 2007).  Ferguson filed a second petition for postconviction relief that included a notarized statement from the witness; this second petition was denied without an evidentiary hearing.  On appeal to the supreme court, the issue is whether the district court erred in denying postconviction relief without an evidentiary hearing.  (Hennepin County)

State of Minnesota, Respondent vs. Andy William Prtine, Appellant – Case No. A09-702:  Appellant Andy Prtine was convicted after a jury trial of first-degree felony murder and sentenced to life in prison.  On appeal from that conviction, Prtine raises the following issues for consideration by the supreme court:  (1) whether Prtine is entitled to a new trial because the district court refused to strike for cause a juror who stated that she would give greater credence to testimony of a police officer than other witnesses, requiring the defense to use one of its preemptory challenges; (2) whether Prtine is entitled to a new trial because the district court allowed the medical examiner to testify that the victim’s wounds demonstrated an intent on the part of the assailant to injure or kill; (3) whether Prtine was denied a fair trial by the introduction of inadmissible evidence and by misstatements of the evidence during the prosecution’s closing argument; (4) whether the district court’s instructions to the jury were plain error; and (5) whether Prtine is entitled to a new trial because there is no evidence that he consented to or acquiesced in his counsel’s decision to concede during closing argument that Prtine committed an intentional killing.  (St. Louis County)

Elen Bahr, Respondent vs. Capella University, Appellant – Case No. A08-1367:  Respondent Elen Bahr sued her former employer, appellant Capella University, under the Minnesota Human Rights Act, Minn. Stat. § 363A.15 (2008), alleging that the university improperly terminated her employment in retaliation for Bahr’s refusal to engage in practices that Bahr believed were discriminatory.  The district court dismissed Bahr’s complaint for failure to state a claim upon which relief could be granted.  The court of appeals reversed and reinstated the litigation.  On the university’s appeal, three issues are before the supreme court:  (1) whether Minn. Stat. § 363A.15 protects from reprisal an employee who opposes a practice that is not forbidden by the Minnesota Human Rights Act if the employee alleges that she believed it was forbidden; (2) whether Minnesota should apply an objective standard to the profession of a belief that a practice is illegal; and (3) whether as a matter of law Bahr could not reasonably have believed that the university’s practice was forbidden by the Minnesota Human Rights Act.  (Hennepin County)

Eagan Economic Development Authority, Appellant vs. U-Haul Company of Minnesota a/k/a U-Haul Co. of Minnesota, et al., Respondents, Randall J. Quam, et al., respondents, Larson Training Services, Inc. d/b/a Larson’s Automotive Repair Services, Respondents vs. Minnesota’s Credit Union, et al., Respondents Below, Irma L. Parranto, et al., Respondents, Jamal D. Ansari, et al., Respondents Below – Case No. A08-767:  Respondents Larson Training Services, Inc., Competition Engines, Inc., and U-Haul Company of Minnesota owned commercial property in the Cedar Grove Redevelopment District in the City of Eagan.  In 2001, the city established Cedar Grove as a tax increment financing district and adopted a redevelopment plan for the district.  That redevelopment plan provided that before formal consideration of the acquisition of any property, the city would require a binding development agreement.  In 2007, after negotiations to purchase the properties stalled, appellant Eagan Economic Development Authority took the properties by eminent domain.  The district court granted the condemnation petitions; the court of appeals reversed, concluding that the economic development authority exceeded the scope of its condemnation authority by attempting to condemn the properties without a binding development agreement in place.  Four issues are before the supreme court:  (1) whether an economic development authority derives its eminent domain power from a city or from a statute; (2) whether the court of appeals erred by applying to the Eagan Economic Development Authority, Minn. Stat. § 469.094, subd. 2 (2008), which provides that an economic development authority may exercise “all of the powers that the governmental unit establishing the project could exercise with respect to the project”; (3) whether a city can modify the resolution establishing an economic development authority without complying with Minn. Stat. § 469.092 (2008), which requires written resolution after notice and a public hearing; and (4) whether the particular redevelopment plan for Cedar Grove limited the authority’s power of eminent domain with respect to the project.  (Dakota County)

Cargill, Incorporated, et al., Appellants vs. Ace American Insurance Company, et al, Respondents, Liberty Mutual Insurance Company, Respondent, St. Paul Fire and Marine Insurance Company, et al., Respondents – Case No. A08-1082:  In 2005, the State of Oklahoma sued appellants Cargill, Inc., and Cargill Turkey Production, Inc., for damages arising out of Cargill’s poultry waste disposal practices in the state.  In addition, Cargill was sued in Arkansas, plaintiffs alleging that contaminants found in chicken waste produced at Cargill’s facilities caused them physical harm.  More than 50 companies insured Cargill during the relevant time period.  In 2007, Cargill sought declaratory judgment with respect to its insurers’ duty to defend and indemnify it.  The district court hearing Cargill’s declaratory judgment action certified for appellate review as important and doubtful the question:  “Can a court order primary insurers, who insure the same insured for the same risks, and whose policies are triggered for defense purposes, to be equally liable for the costs of defense where there is otherwise no privity between the insurers?”  The court of appeals answered the certified question in the affirmative.  On appeal, the supreme court will also consider the certified question. 

In addition, the court is asked to consider whether the rule it announced in Iowa National Mutual Insurance Co. v. Universal Underwriters Insurance Co., 276 Minn. 362, 367, 150 N.W.2d 233, 236-37 (1967), applies to the circumstances of the case.  Under the Iowa National rule, each insurer’s duty to defend is independent of the duty of another insurer, such that an insurer that provides a defense is not entitled to recovery of costs from the insurers that did not provide a defense.  (Hennepin County)

State of Minnesota, Respondent vs. Shane Scott Stone, Appellant – Case No. A08-769:  Appellant Shane Stone was charged with first-degree aggravated robbery.  During the trial, one of the victims testified that he had not gotten a good look at the intruder’s face and did not recognize anyone in the courtroom as the assailant.  The prosecution then played for the jury an audio recording of the victim’s police interview, in which the victim stated that he had gotten a good look at the intruder and gave a partial description.  Minnesota Rule of Evidence 803(5) permits the introduction of a “memorandum or record concerning a matter about which a witness once had knowledge, but now has insufficient recollection to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly.”  Stone was convicted; his conviction was affirmed by the court of appeals.  Before the supreme court, the issue is whether the district court erred in allowing the audio recording to be played for the jury.  (Beltrami County)

Patrick Brian Stewart, Respondent vs. Christopher Michael Koenig, et al., Appellants – Case No. A08-1209:  While riding his bicycle on the Douglas Trail, a state recreational trail managed by the Minnesota Department of Natural Resources, respondent Patrick Stewart collided with a car driven by appellant Christopher Koenig.  Koenig’s car was on a private driveway that crosses the Douglas Trail.  Minnesota Rule 6100.3400, subp. 6(D) (2009) requires a “trail user” about to enter or cross a trail to yield the right of way to any trail user already on the trail.  The district court declined to instruct the jury that because driver Koenig was about to cross a trail and bicyclist Stewart was already on the trail, Koenig was negligent per se.  The jury found that Stewart was negligent in the operation of his bicycle and Koenig was not negligent in the operation of his car.  The court of appeals reversed and ordered a new trial.  On appeal to the supreme court, the issue is whether driver Koenig was a “trail user” within the meaning of the rule.  (Olmstead County) 

In the Matter of the Welfare of the Children of:  J.B. and R.P.; S.K.J. and J.N.T.; S.L.A.J. and B.J.T., Parents – Case No. A09-1146:  In July 2008, the Minnesota Board of Public Defense informed the Chief Justice of the Minnesota Supreme Court that due to a budget shortfall, public defenders would no longer represent indigent parents in child protection matters.  Between August and October 2008, the Crow Wing County District Court appointed attorneys in private practice to represent parents in each of the three child protection cases consolidated here and ordered the county to pay the parents’ legal fees.  In each case, the county refused to pay the fees of appointed counsel in full and was held in civil contempt by the district court.  The supreme court granted the county’s petition for accelerated review.  Two issues are before the court:  (1) whether the district court’s appointment of counsel to represent parents in child protection matters at county expense violates the constitutional separation of powers; and (2) whether public defenders are obligated under state law to represent indigent parties in juvenile matters.  (Crow Wing County)

In the Matter of the Welfare of the Children of:  S.L.J., Parent – Case No. A09-80:  In July 2008, the Minnesota Board of Public Defense informed the Chief Justice of the Minnesota Supreme Court that due to a budget shortfall, public defenders would no longer represent indigent parents in child protection matters.  In September 2008, the district court appointed a lawyer in private practice to represent S.L.J. in termination-of-parental-rights proceedings brought by Rice County and ordered the county to pay the lawyer’s fees.  When the county refused to pay, the district court issued a writ of mandamus requiring the county to pay the lawyer’s past-due and future invoices, citing Minn. Stat. § 260C.331, subd. 3(4) (2008).  The court further ordered the county to implement a system for payment of lawyers appointed in future child-protection cases.  The court of appeals affirmed the requirement that the county pay the lawyer’s fees in this case but reversed the requirement that the county implement a system for payment of lawyers appointed in future cases.  Two questions are before the supreme court on the county’s appeal:  (1) whether the district court erred by appointing private counsel, rather than a public defender, to represent the parent; and (2) whether the district court erred by construing Minn. Stat. § 260C.331, subd. 3(4), to require the county to pay the fees of the parent’s counsel.  (Rice County)

In the Matter of the Application of Anthony E. Sampair and Laurie K. Sampair to register title to the following described real estate situated in Washington County, Minnesota, namely:  Lots 1 and 2, Block 1, Lakewood Park third Division, applicants, Respondents vs. Village of Birchwood, et al., Defendants, Jeffrey Lutz, et al., Appellants, Josephine Berg Simes, et al., Appellants – Case Nos. A08-1494 and A08-1505:  The appellants in this case all own property near White Bear Lake with access to the lake, as a result of deeds executed in the early 1900s, across property owned by respondents Anthony and Laurie Sampair.  In 2006, the Sampairs’ predecessors in interest applied to register the property under the Torrens statute and, as part of the registration process, sought to extinguish appellants’ easements under the Minnesota Marketable Title Act, Minn. Stat. § 541.023 (2008).  The Marketable Title Act generally bars actions affecting possession of or title to real estate based on an instrument more than 40 years old unless, within 40 years after the execution of the instrument, notice of the claim was filed with the county recorder.  No notice of any of the appellants’ easements was recorded within the time provided by the statute; however, the notice requirement does not apply to those “in possession.”  Id., subd. 6.  The district court extinguished the easements because the appellants did not present evidence of continuous use of the easements during the 40 years after the execution of the deeds originally establishing the easements.  The court of appeals affirmed.  Several issues are presented for the supreme court’s review:  (1) whether the court of appeals properly interpreted the possession exception to the Marketable Title Act; (2) whether the district court misinterpreted subdivision 6 of the Act by requiring appellants to prove possession of the easement rather than requiring the Sampairs to prove that appellants conclusively abandoned the easement; (3) whether the court of appeals’ opinion overruled Wichelman v. Messner, 250 Minn. 88, 102, 83 N.W.2d 800, 814 (1957), in which the supreme court stated that “right-of-way easements which are manifested by actual use or ‘occupancy’ (consistent with the nature of the easement created) are protected even if the requirement of filing notice is not met”; and (4) whether appellant Josephine Berg Simes improperly contradicted her own affidavit by attaching to it a letter from her attorney.  (Washington County)

John Kennedy, Respondent vs. Pepin Township of Wabasha County, Appellant – Case No. A08-1921:  Respondent John Kennedy owns an undeveloped tract of land in Pepin Township.  Approximately five acres of the property lies on top of a bluff and is relatively level but has no access to a public road.  The remainder of the property consists of the bluff itself and an area below the bluff abutting Highway 61 that is generally unsuitable for building.  In 2004, Kennedy petitioned the township under Minn. Stat. §§ 164.07 and 164.08 (2008) for the establishment of a cartway across the adjacent Pepin Heights Orchards to access the portion of the property on the top of the bluff.  After a public hearing, the township selected a route for the cartway that gave Kennedy access to the lower portion of his property but not the portion on the top of the bluff.  The court of appeals reversed, remanding for establishment of a cartway giving access to the usable portion of the property.  The issue before the supreme court is whether the township’s determination to select an alternative route for the cartway was supported by the evidence, based on a sound theory of law, and in the public interest.  (Wabasha County)

Loren J. Zutz, et al., Appellants vs. John Nelson, et al., Respondents – Case No. A08-1764:  Appellants Loren Zutz and Elden Elseth and respondents John Nelson and Arlyn Stroble were all members of the board of the Middle Snake Tamarac Rivers Watershed District.  In August 2007, Zutz and Elseth sued Nelson and Stroble for defamation for statements allegedly made by Nelson and Stroble during a meeting of the watershed district board.  The district court dismissed the complaint on grounds of the absolute privilege afforded to participants in legislative proceedings.  The court of appeals affirmed.  The issue before the supreme court is whether statements made by members of a subordinate public body, such as a municipal council or a watershed district board, are absolutely privileged.  (Otter Tail County)

In re Petition for Disciplinary Action against Thomas John Lyons, Jr., a Minnesota Attorney, Registration No. 249646 – Case No. A09-472:  A lawyer discipline case that presents the question of what discipline, if any, is appropriate under the facts of the matter.