EN BANC CALENDAR

Before the Minnesota Supreme Court
September 2011
SUMMARY OF ISSUES
Summaries prepared by the Supreme Court Commissioner’s Office

            Inquiry into the Conduct of the Honorable Gregory G. Galler – Case No. A11-0149:  The Board on Judicial Standards filed a complaint against Judge Gregory Galler alleging that he violated the Code of Judicial Conduct.  After a hearing, the hearing panel dismissed the complaint because the Board had not proven any violation by clear and convincing evidence.  The issues before the supreme court are whether the hearing panel erred in dismissing the complaint and whether the panel had authority impose Rule 11 sanctions against the Board.

Arlyn A. Hamann, M.D., Respondent v. Park Nicollet Clinic, Appellant – Case No. A10-0658:  Dr. Arlyn Hamann has worked for Park Nicollet Clinic.  In 1995, Park Nicollet began exempting certain doctors who were at least 60 years old from night-call duty.  In 2004, Hamann told Park Nicollet that when he turned 60 later that year, he wished to be exempt from night-call duty.  Park Nicollet asked that Hamann continue to take night-calls until April 2005, and Hamann agreed.  In April 2005, Hamann again asked to be relieved from night-call duty.  Park Nicollet told Hamann that the policy no longer existed and that if Hamann did not take night-call duty, his pay would be docked.  Hamann continued to take night calls until February 2008; when he stopped doing so, Park Nicollet reduced his pay. 

            Hamann filed suit against Park Nicollet in October 2009, alleging, in part, claims for breach of contract and promissory estoppel.  The district court dismissed Hamann’s claims as time-barred under Minn. Stat. § 541.07(5) (2010), which requires a claim for unpaid wages to be brought within two years, or within three years if the refusal to pay is willful.  The court of appeals reversed the district court’s dismissal of Hamann’s breach of contract and promissory estoppel claims.

            On appeal to the supreme court, the issues presented are:  (1) whether Hamann’s claims accrued when Park Nicollet informed him in April 2005 that the policy to relieve certain doctors from night-call duty was no longer in existence; and (2) whether a new cause of action for recovery of lost wages or benefits accrues each pay period in which wages or benefits are due but not paid.   (Hennepin County)

STRICKEN FROM CALENDAR; TO BE RESCHEDULED.  David and Melynda Quade, Respondents v. Secura Insurance, Appellant– Case No. A10-0714:  In July 2008, a storm with high winds caused extensive damage to buildings on the farm of respondents David and Melynda Quade.  The Quades were insured by appellant Secura Insurance under a Farmowners Protector Policy for direct physical loss to property caused by windstorms.  The policy excludes damage caused by faulty or inadequate maintenance of the property.  An appraisal clause in the policy provides that if the parties fail to agree on “the amount of loss,” either may demand “an appraisal of the loss.” 

The Quades submitted a claim to Secura for storm damage to several buildings.  Secura determined that damage to the roofs of three buildings resulted from continual deterioration over a period of time rather than a specific storm occurrence.  Consequently, Secura denied the claim for damage to the roofs based on the exclusion for damage caused by inadequate maintenance. 

The Quades initiated a breach-of-contract action against Secura.  The district court granted summary judgment to Secura.  The court concluded that determining the amount of loss under the appraisal clause includes a causation element.  Therefore, the court ordered the parties to participate in the appraisal process.  The Quades appealed, and the court of appeals reversed the district court’s grant of summary judgment. 

On appeal to the supreme court, the issue presented is whether a provision in a property casualty insurance policy providing that the parties are to engage in an appraisal process when they fail to agree on “the amount of the loss” requires the parties to submit a dispute to the appraisal process when they disagree on what caused the loss.  (Dakota County)

State of Minnesota, Respondent v. Mitchell Ray Gerold, Appellant – Case No. A10-1545:  Respondent State of Minnesota charged appellant Mitchell Ray Gerold with first-degree criminal sexual conduct, Minn. Stat. § 609.342, subd. 1(e)(1) (2010), and third-degree criminal sexual conduct, Minn. Stat. § 609.344, subd. 1(c) (2010).  The State alleged that Gerold forcefully inserted his fingers into the vagina of the complainant without her consent.  During the investigation of the alleged offense, the underwear that the complainant was wearing on the night of the incident was tested for DNA.  This testing revealed that the underwear contained semen and that the semen did not come from Gerold.

Before trial, Gerold filed a motion to admit at trial the DNA evidence obtained from the complainant’s underwear.  Gerold argued that because the charge of first-degree criminal sexual conduct required the State to prove that he caused injury to the complainant, the DNA evidence was relevant to show that the complainant likely engaged in sexual conduct before the alleged assault and that the previous sexual conduct may explain her injuries.  The district court granted Gerold’s motion to admit the DNA evidence, concluding that the “evidence is admissible and relevant as to the injury element alleged in the first-degree criminal sexual conduct” charge.  The State filed a pretrial appeal of the district court’s order, and the court of appeals reversed the district court.

On appeal to the supreme court, the two issues presented are: (1) whether the district court’s ruling to allow the admission of evidence of the complainant’s prior sexual conduct will have a critical impact on the State’s ability to prosecute Gerold for criminal sexual conduct; and (2) whether the district court abused its discretion when it ruled that Gerold could offer evidence of the complainant’s prior sexual conduct.  (Isanti County)

Carol J. LaMont, Appellant v. Independent School District #728, Respondent – Case No. A10-0543:  Appellant Carol LaMont was part of a five-person custodial team at Elk River High School.  In April 2009, LaMont filed suit against the school district, alleging, in part, a claim for sexual harassment.  LaMont contended that she was subject to harassment because of her gender based upon the conduct of the head custodian, who treated the female custodial staff differently than the male staff and made derogatory comments about women. 

The district court dismissed LaMont’s sexual harassment claim on summary judgment.  The district court concluded that even if LaMont’s allegations were true, they did not amount to sexual harassment without a showing that the harassment “is related to human sexuality” or “involve[ed] sexual behavior or communication.”  The court also concluded that LaMont had not established a prima facie case of a hostile work environment because the head custodian’s comments, even if inappropriate, were not severe or pervasive enough.  The court of appeals affirmed the dismissal of LaMont’s sexual harassment claim.  

On appeal to the supreme court, the issues presented are:  (1) whether the Minnesota Human Rights Act prohibits a hostile work environment based on gender when the harassment is not of a sexual nature; and (2) whether the district court erred by concluding that the harassment LaMont suffered was not sufficiently severe or pervasive to be actionable under the Minnesota Human Rights Act.  (Sherburne County)

In re Petition for Disciplinary Action against William D. Paul, a Minnesota Attorney, Registration No. 164811 – Case No. A09-2166:  An attorney discipline case that presents the question of what discipline, if any, is appropriate based upon the facts of the matter.

NONORAL:  In re Petition for Disciplinary Action against Joseph D. O’Brien, Jr., a Minnesota Attorney, Registration No. 184810 – Case No. A10-1467:  An attorney discipline case that presents the question of what discipline, if any, is appropriate based upon the facts of the matter.

Gregory Curtis, et al., individually and on behalf of all others similarly situated, Respondents v. Phillip Morris, Inc., Appellant – Case No. A10-0215:   In the 1990s, the Minnesota Attorney General sought damages and injunctive relief against Philip Morris on behalf of the State of Minnesota for the increased cost of medical care caused by smoking.  The case settled in 1998. 

Appellant Phillip Morris, Inc. marketed Marlboro Lights cigarettes as having less tar and nicotine than regular Marlboro cigarettes.  In 2001, respondents Gregory Curtis, et al., sued Philip Morris in connection with the marketing and sale of Marlboro Lights.  For purposes of this appeal to the supreme court, only respondents claims under Minn. Stat. § 8.31, subd. 3a (2010), are relevant.  Pursuant to Minn. Stat. § 8.31, subd. 3a, which is referred to as the private attorney general statute, respondents alleged that Phillip Morris had violated several Minnesota consumer protection statutes by falsely implying that light and low tar cigarettes deliver less tar and nicotine and thus are safer than regular cigarettes.  Respondents eventually sought damages only in the form of disgorgement of profits, restitution, attorney fees, interest, and costs.

The district court initially denied class certification, but on reconsideration certified the class in November 2004.  The district court determined that, because the injury claimed is economic and not physical, all class members have been similarly injured by the alleged conduct of Philip Morris.

In October 2009, the district court dismissed the respondents’ claims under Minn. Stat. § 8.31, subd. 3a, concluding that the respondents cannot establish that their action creates a public benefit due to (a) the prior lawsuit by the State and (b) the enactment of federal legislation that effectively bans the marketing of light and low tar cigarettes.  In the alternative, the district court concluded that the claims under Minn. Stat. § 8.31, subd. 3a, are barred by the 1998 Tobacco Settlement with the Minnesota Attorney General.  The court of appeals reversed the dismissal of respondents’ claims under Minn. Stat.       § 8.31, subd. 3a, and it affirmed the district court order certifying the class.

On appeal to the supreme court, three issues are presented: (1) whether respondents may sue under Minn. Stat. § 8.31, subd. 3a, because their case involves the required public benefit;  (2)  whether the 1998 Tobacco Settlement between Phillip Morris and the Minnesota Attorney General bars respondents’ claims; and (3) whether the district court abused its discretion in certifying a class action for respondents’ claims brought under Minn. Stat. § 8.31, subd. 3a. (Hennepin County)

NONORAL:  Gary L. Roby, Appellant v. State of Minnesota, Respondent – Case No. A11-0450:  In 1998, appellant Gary Roby was convicted of first-degree murder and sentenced to life in prison.  His conviction was affirmed on direct appeal to the Minnesota Supreme Court.  In March 2009, Roby filed his third petition for postconviction relief.  The district court summarily denied this petition, concluding that it was time barred the by the two-year time limitations in Minn. Stat. § 590.01, subd. 4 (2010).  The Minnesota Supreme Court reversed the district court, concluding that Roby’s third postconviction petition sufficiently invoked two statutory exceptions to the two-year time limitation found in Minn. Stat. § 590.01, subd. 4(b).  On remand, the district court again denied Roby’s third postconviction petition without an evidentiary hearing. 

On appeal of the district court order denying Ruby’s third petition for postconviction relief, the following issues presented are:  (1)  whether the two-year time limitations for filing a postconviction petition may be equitably tolled to allow consideration of Roby’s untimely newly-discovered-evidence claims in the interests of justice; (2) whether Roby’s newly-discovered-evidence claims are not time barred  because extraordinary circumstances and objective factors beyond Roby’s control prevented him from complying with the two-year time limitation in Minn. Stat. § 590.01, subd. 4; (3) whether Roby is entitled to a new trial because the State failed to timely disclose favorable and material evidence; (4) whether Roby is entitled to a new trial because the prosecutor committed misconduct; and (5) whether the district court erred by dismissing Roby’s third postconviction petition without holding an evidentiary hearing.  (Ramsey County)