EN BANC CALENDAR

Before the Minnesota Supreme Court
May 2013
SUMMARY OF ISSUES
Summaries prepared by the Supreme Court Commissioner’s Office

            Marshall Helmberger, Respondent vs. Johnson Controls, Inc., Appellant, Office of Administrative Hearings, Respondent, Architectural Resources, Inc., Appellant – Case No. A12-0327:  Appellant Johnson Controls, Inc. (JCI) had contracts with a school district that related to the construction and renovation of schools. JCI subcontracted with appellant Architectural Resources, Inc. (ARI) to perform architectural services related to those contracts. Respondent Marshall Helmberger made a request under the Minnesota Government Data Practices Act (MGDPA), Minn. Stat. §§ 13.01-.90 (2012), for a copy of the subcontract. After JCI declined to provide a copy of the subcontract, Helmberger filed a complaint with the Office of Administrative Hearings. An administrative law judge dismissed the complaint, concluding in part that the subcontract did not involve the performance of a government function within the meaning of Minn. Stat. § 13.05, subd. 11(a). The court of appeals reversed.

On appeal to the supreme court, the following issues are presented: (1) whether a private contractor is subject to the same requirements of the MGDPA as a government entity when its contract with a government entity does not contain the statutorily required contractual notice; (2) whether a private contractor is subject to the same requirements of the MGDPA as a government entity when its contract with a government entity promotes “the general public welfare;” and (3) whether a private entity who contracts with a government entity must be performing a governmental function in order to be subject to the requirements of the MGDPA.  (Office of Administrative Hearings)    

State of Minnesota, Appellant vs. Daniel James Rick, Respondent – Case No. A12-0058:  Appellant the State of Minnesota charged respondent Daniel Rick with attempted first-degree assault under the knowing-transfer-of-communicable-disease statute, Minn. Stat. § 609.2241 (2012). Subdivision 2(1) of this statute makes it a crime for a person who knowingly harbors an infectious disease to engage in “sexual penetration with another person without having first informed the other person that the person has a communicable disease.” Subdivision 2(2) makes it a crime for a person who knowingly harbors an infectious disease to “transfer . . . blood, sperm, organs, or tissue, except as deemed necessary for medical research or if disclosed on donor screening forms.” 

At trial, the complainant testified that he engaged in sexual activity with Rick on three occasions and that Rick did not tell him he was HIV positive. Rick, however, testified that he informed the complainant that he was HIV position before they engaged in sexual activity. 

The jury acquitted Rick of violating subdivision 2(1), but it found him guilty of violating subdivision 2(2). A divided court of appeals panel reversed Rick’s conviction.

On appeal to the supreme court, the following issues are presented: (1) whether a defendant can violate Minn. Stat. § 609.2241, subd. 2(2), by having consensual sex with another person after disclosing that the defendant is HIV positive; (2) whether Minn. Stat. § 609.2241 is unconstitutionally vague; and (3) whether Minn. Stat. § 609.2241 violates the constitutional right to privacy. (Hennepin County)

            In re Petition for Disciplinary Action against Terry M. Fitzpatrick Walcott, a Minnesota Attorney, Registration No. 213688 – Case No. A11-0224:  An attorney discipline case that presents the question of what discipline, if any, is appropriate based on the facts of the matter. 

State of Minnesota, Respondent vs. Mark Myrl Burrell, Appellant – Case No. A11-1517:  A jury found appellant Mark Burrell guilty of two counts of aggravated forgery, and the district court imposed concurrent sentences. On appeal, Burrell challenged his convictions and sentences. While his appeal was pending before the court of appeals, Burrell died. Relying on the doctrine of abatement ab initio, which provides that death pending direct review of a criminal conviction abates the appeal and all proceedings in the prosecution from its beginning, defense counsel filed a motion to abate Burrell’s convictions. The court of appeals denied the motion and dismissed the appeal.

On appeal to the supreme court, the issue presented is whether Minnesota should adopt the doctrine of abatement ab initio in the context of a defendant who dies while an appeal of right is pending. (Mower County). 

            Safety Signs, LLC, Appellant vs. Niles-Wiese Construction Co., Inc., Defendant, Westfield Insurance Company, Respondent – Case No. A12-0370:  When appellant Safety Signs, LLC did not get paid for work on a public project, Safety Signs mailed notice of a payment-bond claim to the primary business address of the general contractor, rather than the address listed on the payment bond, as stated in Minn. Stat.     § 574.31, subd. 2(a) (2012). Respondent Westfield Insurance Company, which issued the payment bond, refused to pay the claim. The district court granted summary judgment to Safety Signs on its action to recover under the subcontract. The court of appeals reversed, concluding that “strict compliance with the notice requirements of the bond statute is a condition precedent to a payment-bond claim.”

On appeal to the supreme court, the following issues are presented: (1) whether the notice of a payment-bond claim was sufficient under Minn. Stat. § 574.31 (2012); (2) whether the court of appeals erred when it determined that the surety and general contractor could not waive or modify the address on the payment bond by their actions; and (3) whether a surety has standing to challenge service of a payment-bond notice on a contractor. (Steele County)

            TC/American Monorail, Inc., Respondent vs. Custom Conveyor Corporation, Appellant – Case No. A11-2119:  Appellant Custom Conveyor Corporation contracted with respondent TC/American Monorail, Inc. to provide equipment for a wastewater treatment plant in Nevada. TC sued Custom Conveyor, seeking payment of invoices for the wastewater project, as well as unpaid invoices for two other projects on which Custom Conveyor had contracted with TC. Custom Conveyor counterclaimed for breach of contract.

            Three months after the discovery deadline, Custom Conveyer filed a motion seeking commissions that would ask a court in Nevada to issue subpoenas to allow it to depose two non-party witnesses who resided in Nevada. Custom Conveyer contended that these depositions were needed to preserve the testimony of these witnesses for trial. The district court denied Custom Conveyer’s motion. 

            A jury subsequently found that both Custom Conveyor and TC had breached the contract and that TC was entitled to damages totaling $205,553. The court of appeals affirmed the district court’s order denying Custom Conveyor’s motion to conduct the out-of-state depositions.

            On appeal to the supreme court, the issue presented is whether the trial court abused its discretion when it denied Custom Conveyor’s request to take the depositions of two out-of-state witnesses in order to preserve their testimony for trial when that request was made after the discovery deadline. (Sherburne County)

State of Minnesota, Respondent vs. William Francis Melchert-Dinkel, Appellant – A11-0987:  The State charged appellant William Melchert-Dinkel with intentionally advising, encouraging or assisting suicide in violation of Minn. Stat. § 609.215, subd. 1 (2012). Before trial, appellant moved to dismiss the complaint, arguing that section 609.215 is overbroad and vague under the First Amendment of the United States Constitution. The district court denied appellant’s motion. Following a stipulated-facts trial, appellant was found guilty, convicted and sentenced. The court of appeals affirmed appellant’s conviction.

On appeal to the supreme court, the following issues are presented: (1) whether appellant’s communications are protected under the First Amendment; and (2) whether Minn. Stat. § 629.215 is overbroad or vague under the First Amendment. (Rice County). 

            In re Petition for Disciplinary Action against Lori Mae Michael, a Minnesota Attorney, Registration No. 312149 – Case No. A12-1101:  An attorney discipline case that presents the question of what discipline, if any, is appropriate based on the facts of the matter. 

State of Minnesota, Appellant vs. Brett David Borg, Respondent – Case No. A09-1912:  A jury found respondent Brett Borg guilty of third-degree criminal sexual conduct. Following sentencing, the district court ordered Borg to pay a specific amount of restitution. Borg requested a restitution hearing, and the district court granted that request. After a hearing, the district court issued an amended restitution order, awarding all of the restitution requested by the State, except the amount that had been requested to cover expenses for the victim’s family to attend trial.

            The State appealed the amended restitution order. The court of appeals dismissed the appeal, concluding that the State could not appeal the amended restitution order.

            On appeal to the supreme court, the issue presented is whether the State may appeal a restitution order that is filed more than 90 days after the original sentence is imposed. (Mille Lacs County)

Nonoral:       Demetrius Devell Dobbins, Sr., petitioner, Appellant vs. State of Minnesota, Respondent – Case No. A12-0678:  Following a jury trial, appellant Demetrius Dobbins was convicted of first-degree murder. The supreme court affirmed his conviction. In 2009, Dobbins filed a petition for postconviction relief, which was denied without a hearing. The supreme court affirmed the district court in part but concluded that Dobbins was entitled to a hearing on his claim that a witness had testified falsely at trial. The matter was remanded to the district court to hold an evidentiary hearing to address whether Dobbins was entitled to postconviction relief on the basis of his false testimony claim.

On remand, the district court held an evidentiary hearing. Following the hearing, the district court concluded that Dobbins was not entitled to a new trial because of false trial testimony, and it denied the postconviction petition.

On appeal to the supreme court, the following issues are presented: (1) whether the district court erroneously determined that Dobbins had not established that he was entitled to a new trial because of false trial testimony; and (2) whether the district court erroneously denied Dobbins’ request for advisory counsel at the postconviction hearing.  (Anoka County)         

            In re Petition for Disciplinary Action against Lynn M. Taplin, a Minnesota Attorney, Registration No. 173708 – Case No. A12-2002:  An attorney discipline case that presents the question of what discipline, if any, is appropriate based on the facts of the matter. 

            Nonoral:       Jana Karl, et al., Appellants vs. Uptown Drink, LLC, et al., Respondents – Case No. A12-0166:  Appellants Jana Karl, et al., were employed by respondents Uptown Drink, LLC, et al., as servers, bartenders, and security guards.  Among other claims, appellants alleged that respondents violated Minn. Stat. § 181.79 (2012), which prohibits an employer from making deductions from an employee’s “wages” for lost or stolen property.  Following a jury trial, the district court denied appellants’ motion for judgment as a matter of law on this claim, ruling that “wages” excludes gratuities and there was no evidence that deductions for losses had been taken from anything other than gratuities.  The court of appeals affirmed.  

            On appeal to the supreme court, the issue presented is whether Minn. Stat. § 181.79 makes it unlawful for an employer to make a deduction from an employee’s wages for lost or stolen property, even if the deduction comes from an employee’s gratuities and does not drop an employee below the minimum wage. (Hennepin County)