Bench & Bar of Minnesota

CRIMINAL LAW
JUDICIAL LAW

• Sentence: Multiple Offenses Required One Conviction Only. Following a jury verdict, the appellant was convicted of first-degree murder, intentional second-degree murder, and first-degree aggravated robbery. The trial court judge imposed the mandatory life sentence for first-degree murder. Specifically, the district court “received” the jury verdict and sentenced the appellant without stating on which offenses the court was entering formal adjudications of conviction. The official records of the court show that formal adjudications were entered on all three guilty verdicts. This was error under Minn. Stat. §609.04, which prohibits convictions for multiple offenses arising from the same behavioral incident. Under such a scenario, guilty verdicts for the lesser-included offenses are not, by themselves, convictions. The Supreme Court vacates the convictions for the lesser included offenses of intentional second-degree murder and aggravated robbery, which is an offense “necessarily proved,” when a felony murder is proved. Joseph T. Spann v. State of Minnesota, A06-1474 (Minn. 11/01/07). www.lawlibrary.state.mn.us/archive/supct/0711/OPA061474-1101.htm

• Discovery: State May Intervene in Parallel Civil Proceeding to Terminate Discovery. Respondent was charged with criminal sexual conduct and was also a party to a dissolution proceeding. In August 2006, the county attorney filed criminal charges against the respondent for acts of criminal sexual conduct against one of his children. In October 2006, the respondent’s wife initiated a marriage dissolution proceeding against the defendant. The same judge presided over both matters. In the dissolution proceeding, both parties sought custody of a child other than the alleged victim in the criminal sexual conduct complaint. In the dissolution proceeding, the respondent sought to depose the alleged victim, another child, and his wife. The Traverse County Attorney, on behalf of the state, filed a petition to permissibly intervene in the marriage dissolution proceeding under Minn.R.Civ.P. 24.02, for the limited purpose of preventing the respondent from taking all depositions. The district court denied the petition, and the Court of Appeals refused to grant a writ of prohibition.

Upon a petition for review, the Minnesota Supreme Court holds that a criminal defendant may be prevented from deposing potential criminal witnesses in a civil proceeding while a parallel criminal matter is pending. Applying a rule that encourages intervention “wherever possible” under Minn.R.Civ.P. 24.02, the Minnesota Supreme Court holds that the state has a strong interest in staying discovery in a civil proceeding when it shares overlapping evidentiary material with a pending criminal proceeding. The court abused its discretion when it denied the state’s request to permissibly intervene. Furthermore, when a defendant uses depositions in a parallel civil proceeding, a protective order staying civil discovery under Minn.R.Civ.P. 26.03 may be necessary to prevent circumvention of the rules of criminal procedure which limit criminal discovery.

The Court reverses the Court of Appeals, and grants the writ of prohibition. State v. Ryan S. Deal, A07-278 (Minn. 11/01/07. www.lawlibrary.state.mn.us/archive/supct/0711/OPA070278-1101.htm

• Criminal Sexual Conduct: Clergy Misconduct; Use of Religious Testimony. Appellant was charged and convicted for having sexual relations with two parishioners during the time that he was priest, and both parishioners were seeking pastoral services on religious, martial and grief issues. During trial, the state introduced evidence from church officials regarding Catholic dogma, the powers of priests, its investigation of the appellant, and in specific, the appellant’s misbehavior through an investigation and, ultimately, a determination by the Catholic Church that the appellant had violated his priestly authority.

Held, the appellant must be reversed, because the state improperly allowed the admission of evidence concerning doctrine of the Catholic Church which became entangled with the criteria set out in the clergy sexual contact statute for determining criminality. The jury’s verdict was undoubtedly based on this evidence, and the error resulting from this entanglement was not harmless.

The Supreme Court is equally divided on the issue of whether the clergy statute facially violates the establishment clause of the United States Constitution. Because of this division, the decision of the Court of Appeals is affirmed that the statute does not facially violate the establishment clause. A majority of the Court, however, believes that the statute, as applied to this particular defendant, did, in fact, violate the establishment clause by improperly entangling religious doctrine into the state’s case. State of Minnesota v. John Joseph Bussman, A05-1782 (Minn. 11/01/07). www.lawlibrary.state.mn.us/archive/supct/0711/OPA051782-1101.htm

• Search and Seizure: DNA Sampling and Subsequent Database Searches. Appellant was on probation for a 2003 aggravated robbery, for which he was required by Minn. Stat. §609.117 to provide a biological specimen for DNA analysis. In August 2000, the victim, “A.C.” was raped. Using periodic database searches in 2004, the BCA matched the appellant’s DNA to the DNA from the forensic sample taken in the A.C. assault in 2000. In 2005, a first-degree criminal sexual conduct charge against appellant was filed. Later than that year, police obtained another DNA sample from the appellant’s saliva, which confirmed the initial database match.

Held, Minn. Stat. §609.117, which requires the taking of a biological specimen, to be used in the BCA database, and the confirmatory saliva sample, did not violate the appellant’s constitutional protection against unreasonable searches and seizures. Following the 8th Circuit, and using its totality of the circumstances approach, the Court of Appeals concludes that requiring a biological specimen from a person on felony probation is not unreasonable under either the state or federal 4th amendments. While the Court of Appeals agrees that the initial requirement of a DNA biological sample is a warrantless search, herein found to be constitutional, the Court of Appeals does not agree with the defense position that the subsequent “match” should be suppressed as a suspicionless search. State v. Jimmie D. Jackson, A06-1330 (Minn. App. 11/13/07). www.lawlibrary.state.mn.us/archive/ctappub/0711/opa061330-1113.htm

• Child Pornography: Statute Requires Minimal Scienter Regarding Age of Actors. Minn. Stat. §617.247, subd. 4(a) criminalizes the possession of child pornography where the possessor knows or has reason to know its content and character. The Court of Appeals construed “reason to know” to require that a child pornography possessor be “in some manner aware” of facts which lead him to believe that the performer in the pornographic work is a child.

The Supreme Court rejects the appellant’s claim that the statute is unconstitutional (by arguably eliminating the scienter requirement), but finds that the statute is ambiguous. In construing the statute to preserve its constitutionality, the Supreme Court interprets “reason to know” to include the lowest level of awareness permitted by the 1st Amendment: the recklessness standard. The Supreme Court appears to be saying that this new standard of awareness is something less than the “in some manner aware” standard used by the Court of Appeals.

The case was remanded to district court, where a bench trial was held, for the original trial court judge to determine whether its findings of fact permit a conclusion, by proof beyond a reasonable doubt, that the appellant had “reason to know” under the new standard articulated in this case. State of Minnesota v. Helmut Mauer, A05-460 (Minn. 11/15/07). www.lawlibrary.state.mn.us/archive/supct/0711/OPA050460-1115.htm

• Search and Seizure: No Violation to Enter Intersection on Yellow Light. Appellant appeals from a DWI conviction pursuant to a Lothenbach trial. The facts are undisputed: At 2:12 A.M., a police officer watched the appellant’s car enter an intersection while the light for travel in his direction was displaying a steady yellow. Subsequent to the stop, the officer developed probable cause for DWI. The parties stipulate that the sole driving conduct was the appellant’s entry into the intersection on the steady yellow. The police officer also testified that it was his [mistaken] understanding of the law that it required a motorist to not enter the intersection on a steady yellow. The Court of Appeals notes, however, that the Supreme Court has held that a police officer’s mistaken interpretation of a statute may not form the particularized and objective basis for suspecting criminal activity to justify a stop. State v. Anderson, 683 N.W.2d 818, 823-24 (Minn. 2004).

The statute on which the district court based its decision is §169.06, subd. 5(a)(2)(i)(Supp.) 2005. The current version of the yellow light statute contains no provision against entering an intersection on a yellow light. Hence, the conviction of the appellant is reversed. State v. Justin Allen Kilmer, A06-2052 (Minn. App. 11/20/07). www.lawlibrary.state.mn.us/archive/ctappub/0711/opa062052-1120.htm

• Firearms: Lifetime Prohibition Upheld. In February 2005, the appellant was sentenced for second-degree criminal sexual conduct, a crime of violence. Minn. Stat. §624.713, subd. 1 (2004), provides that the lifetime prohibition against possessing firearms applies “only to offenders who are discharged from sentence or court supervision for a crime of violence on or after August 1, 2004.” Respondent relied on this provision to argue that since he was not discharged from court supervision for his February 2005 conviction when a shotgun was found on his person in August 2005, the lifetime prohibition did not yet apply to him, and he was entitled to a jury instruction to that effect.

Reversing the district court, the Court of Appeals finds that the interpretation of both the respondent and the district court yields a result that is “absurd.” The legislative intent of the statute was to limit the ex post facto application of the statute, and it was added to accommodate those individuals who were discharged from their sentence prior to August 1, 1993. State v. Mark Robert Weber, A07-1218 (Minn. App. 11/20/07). www.lawlibrary.state.mn.us/archive/ctappub/0711/opa071218-1120.htm

• Forfeiture: Conviction Not Necessary for DWI Forfeiture. Appellant had a prior DWI in 2000, and was again charged, in 2006, with second-degree refusal to test. The two aggravating factors were the refusal and the prior conviction. Appellant received a notice of seizure and intent to forfeit, in response to which he filed a petition for judicial review. Subsequently, appellant pleaded guilty to third-degree DWI and the state dismissed the charge of second-degree DWI based on the refusal. Held, the statute does not require that a driver be convicted of a designated offense for the vehicle to be forfeited. “Commission” of a designated offense is sufficient, and here it is undisputed that the appellant committed a designated offense. District courts have been divided on this issue. While Minn. Stat. §169A.63, subd. 7(a)(1) states that a vehicle is presumed subject to forfeiture if the driver is convicted of a designated offense, the statute merely creates a presumption of forfeiture, while Minn. Stat. §169A.63 does not require such a conviction. The new statute does not require a conviction, but merely civil proof of commission of a designated offense. Chad Scott Mastakoski v. 2003 Dodge Durango, A06-2396 (Minn. App. 09/11/07). www.lawlibrary.state.mn.us/archive/ctappub/0709/opa062396-0911.htm

• Vacating Defendant’s Guilty Plea Over His Objection. Appellant pleaded to first-degree aggravated robbery and second-degree assault, and accepted an agreed-upon 60-month sentence, which was an upward durational departure from the presumptive range of 48 to 52 months. In turn, the state agreed not to charge him with first-degree assault and to dismiss an additional count of aggravated robbery. The court accepted the agreement, and imposed a 60-month executed sentence. The appellant then filed a post-conviction addition, arguing that his sentence violated Blakely, and should be modified to reflect a presumptive 48 to 52 months. The state proposed impaneling a sentencing jury.

At the post-conviction hearing, the district court sua sponte withdrew appellant’s guilty plea over his objection, stating that the defendant repudiated the plea agreement and the court could, therefore, withdraw approval. The matter was returned for a new trial on initial complaint. Appellant moved to dismiss for double jeopardy, which was denied. Appellant then entered into a Lothenbach stipulation to a bench trial and reserved his right to appeal the denial of his motion to dismiss. Appellant was convicted after the new trial and sentenced to 44 months. The appeal followed.

In this case of first impression, the Court of Appeals holds that a district court may not revoke guilty pleas on its own initiative. The court further notes that “due consideration should be given to whether subsequent criminal proceedings would implicate double jeopardy concerns,” noting other jurisdictions have so held. However, the Court of Appeals declines to address the double jeopardy issue, electing instead to vacate the conviction for the second proceeding, and restore the status of the case at the time of the post-conviction petition. State v. Dennis James Spraggins, A06-1694 (Minn. App. 12/04/07). www.lawlibrary.state.mn.us/archive/
ctappub/0712/opa061994-2104.htm

• Driver’s License: Violation of Restricted License Statute. The appellant was driving a tractor, and had been seen leaving a bar. The arresting officer recognized the driver and knew that his license was canceled due to past alcohol violations. At the time of the stop, the appellant’s license was canceled as inimical to public safety; however, the deputy also found that a restriction on his canceled license persisted which stated that any use of alcohol or drugs would violate the license. Appellant was charged with driving after cancellation and driving in violation of a restricted license in violation of Minn. Stat. §179.09, subd. 1(b)(1)(2004).
Held, a person cannot be convicted of violating the restricted license statute unless he or she actually has a driver’s license. In this case, the appellant’s license was canceled, and the Court of Appeals declines to extend the statute to the abstract concept of “privileges.” State v. John Albert Adickes, A06-1558 (Minn. App. 12/04/07). www.lawlibrary.state.mn.us/archive/ctappub/0712/opa061558-1204.htm

• Sentencing: Predicate Offenses or Collective Offense as Basis. Appellant was convicted of four counts of felony violations of an order for protection (OFP), and one count of engaging in a pattern of harassing conduct, using the four other counts as predicates. Had the judge used the collective offense, the sentence would have been 23 months, while sentencing for the predicate offenses resulted in 51 months. The court exercised sound discretion in electing to sentence each of the four predicate offenses, rather than the one collective offense. Additionally, the court correctly concluded that the four OFP predicate offenses were “crimes against the person,” for the purpose of imposing permissive consecutive sentences. The court notes that Sentencing Guidelines IV were amended to include a list of offenses eligible for permissive consecutive sentences subsequent to the law of this case. However, the court made an appropriate independent determination that violation of an OFP is a crime against the person. State v. Christian F. Franks, A06-1242 (Minn. App. 12/04/07). www.lawlibrary.state.mn.us/archive/ctappub/0712/opa061242-1204.htm

• Sentencing: Criminal Sexual Conduct. Appellant was accused of sexually assaulting his adopted daughter three times per week, every week of the year, from the time the child was about seven years old until she moved from his home after she turned 18. The incidents included vaginal penetration, oral sex, and sexual fondling, and it occurred in every room of the house. By the victim’s account, there were 832 separate assaults against the child. The prosecutor charged the appellant with two counts of first-degree criminal sexual conduct and one count of third-degree criminal sexual conduct. The first two counts covered the “extended periods” of when the child was approximately 8 through 14, and 14 through 15. Count III, criminal sexual conduct, covered the period of when the child was ages 16 and 17. Each of the statutes involved criminalizes multiple acts of sex abuse occurring over “an extended period of time” with a minor.

Affirming the conviction and sentences, the Court of Appeals holds that the state is authorized to prosecute a person for multiple counts of criminal sexual conduct against a victim for any discretionary “extended period,” even if those individual periods, when added together, might collectively constitute a single, but longer “extended period.” Because each statute does not define “extended period,” the phrase is accepted as meaning what its general and plain terms imply. The court will not interfere with prosecutorial discretion except in cases where an injustice results because the prosecutor has clearly abused his or her discretion in exercising the charging function. Here, no such abuse occurred, because the prosecution has broad charging discretion in which the courts generally do not interfere.

Finally, the Court of Appeals rejects the appellant’s argument that his behavior constituted a single behavioral incident, because it occurred essentially continuously from the child’s seventh birthday through age 17. The Court of Appeals finds that this would be an absurd result, and would have the effect of rewarding sex offenders who are particularly active and persistent. State v. Michael John Suhon, A06-1240 (Minn App. 12/04/07). www.lawlibrary.state.mn.us/archive/ctappub/0712/opa061240-1204.htm

• Accomplice Testimony in Bench Trial; Adjudication of Delinquency. Police responded to a broken windshield, interviewed a 16-year-old child, “C.F.,” who was hanging out of a nearby window, and asked him to come down. C.F. told the officer that appellant S.H.H. had fired a BB gun out of his apartment window, damaging the truck. C.F. owned the gun and was on probation for its previous use. C.F.’s testimony was that he had supplied the gun to S.H.H. and had encouraged its use to shoot at the vehicle. The appellant and his brother both testified that S.H.H. never shot the BB gun.

Held, the conviction must be reversed. C.F. qualified as an accomplice, and the conviction was based entirely upon his testimony. C.F. gave the only testimony indicating the appellant shot the BB through the truck window. No other testimony places the gun in the appellant’s hand or at the apartment at the time of the incident.

In this case of first impression, the Court of Appeals rules that when confronted with accomplice testimony, even absent an objection or request for instruction, the district court has an independent obligation to caution jurors about the nature of accomplice testimony. The court notes that Minn. Stat. §634.034 applies to both criminal and juvenile proceedings. In the Matter of S.H.H., A06-2098 (Minn. App. 12/04/07). www.lawlibrary.state.mn.us/archive/ctappub/0712/opa062098-1204.htm

• Police Jurisdiction: State Troopers. The trooper in question was on County Road 7 in Cook County when he noticed traffic violations. The respondent was subsequently arrested and charged with DWI. At the implied consent hearing, the trial court ordered the proceedings dismissed for “lack of jurisdiction,” because he felt that “there is no authority … for troopers to take it upon themselves to decide when and under what circumstances to patrol city streets, county or township roads, or, indeed, which streets or roads to patrol beyond state trunk highways.”

On appeal by the commissioner of public safety, the Court of Appeals holds that Minn. Stat. §299D.03, subd. 1(b)(12) is unambiguous. This statute provides that Minnesota State Patrol troopers shall have the authority and power “as peace officers to make arrests for public offenses committed in their presence anywhere in the state.” While earlier subdivisions within the same statute authorize state troopers to enforce the provisions of the law related to protection and use of “trunk highways,” nothing in the subsequent subdivision limits or makes duplicative the various subdivisions. Hence, the matter is reversed and remanded. Thomas William Westby v. Commissioner of Public Safety, A07-0914 (Minn. App. 12/04/07). www.lawlibrary.state.mn.us/archive/ctappub/0712/opa070914-1204.htm

• Search and Seizure: Invalid Nighttime Warrant. In applying for a warrant of a home concerning alleged drug activity, police presented a judge with an application for a warrant, requesting nighttime authorization with the summary statement that “this investigation has led your affiant into the nighttime scope of search warrant.” (sic) No further information to support a nighttime search was warranted. Both the district court and the Court of Appeals found the warrant to be invalid, because it violated Minn. Stat. §626.14 by not providing factual substantiation to support the nighttime search. However, both lower courts found the violation to be “merely technical,” and not to require suppression.

Held, this violation of the nighttime search warrant requirement requires suppression under both the statute and the constitution. The Supreme Court distinguishes State v. Lien, 265 N.W.2d 833 (Minn. 1978) because the warrant was executed at a reasonable hour, and the police had observed people coming and going from the residence, indicating that the “period of repose” had not begun. On the contrary, this warrant was executed at 9:25 p.m. on December 11th, a time when it had been dark for several hours, and the police had no information as to whether or not the appellant was in the “period of repose.” Quoting historical underpinnings to the Commonwealth countries’ “aversion to nighttime intrusions into the home,” the Supreme Court finds this to be a serious transgression, and not a technical violation. For these reasons, the Supreme Court concludes that the district court erred when it failed to suppress the evidence, under the statutory violation, derived from the invalid nighttime search of the appellant’s home.

The Supreme Court then undertakes a constitutional analysis of the violation, and concludes that the 4th Amendment provides a separate and independent basis from Minn. Stat. §626.14, also requiring suppression of the evidence seized during the warrant. The Court notes that Commonwealth countries have historically found nighttime searches to be unreasonable and observes that as such, they clearly implicate the 4th Amendment. State v. Susan Ranae Jackson, A05-247 (Minn. 12/06/07). www.lawlibrary.state.mn.us/archive/supct/0712/OPA050247-1206.htm

• Search and Seizure: Nighttime Warrant Invalid. On December 11, 2004, at approximately 4:30 a.m., law enforcement presented a search warrant application to a judge. The judge found probable cause, and authorized both a no-knock warrant, and nighttime entry. At approximately 6:00 a.m., deputies executed the warrant. There were no lights inside the home, several people were present and asleep in their nightclothes, but the defendant was not at the home. Deputies kicked opened the defendant’s locked bedroom door and found drugs and cash. The district court suppressed. The Court of Appeals reversed, reasoning that because defendant was not present, policy concerns about individuals being “roused out of bed” were not raised.

The Supreme Court reversed the Court of Appeals, and found that the presence or absence of the person raising the claim, in this case, the appellant, is not determinative. The night-capped warrant was found to be invalid, because it contained no specific information to support the nighttime entry, in violation of Minn. Stat. §624.14. The state concedes as much. The appellant has grounds to request suppression because a homeowner has a constitutional right to be secure in his house, which may include the right to provide a secure place, free and clear from unauthorized intrusions, for his family and guests. Hence, the inquiry is not one technically of standing, but whether the disputed search has infringed on the privacy interest of the homeowner that the 4th Amendment was designed to protect. Following Jackson, supra, the Supreme Court requires suppression. State v. Robert Joseph Jordan, A06-1445 (Minn. 12/06/07). www.lawlibrary.state.mn.us/archive/supct/0712/OPA061445-1206.htm

• DWI/Implied Consent: Refusal Charge Violated Due Process. Appellant was arrested for DWI, and read the implied consent advisory. She then invoked her right to counsel, and the attorney she spoke with advised her to take the test stating, “Whatever you do, do not refuse the test. It’s way worse than coming up with a positive.” Appellant agreed to take the test, but was unable to deliver an adequate sample, making 19 attempts in a period of three minutes and 30 seconds, at which time the officer terminated the tests. The arresting officer felt that the appellant was playing games, and he considered her test performance to be a refusal, noting that the Intoxilyzer “deemed” her deficient samples to be a refusal. The appellant repeatedly insisted that she was not refusing, and asked to be given additional opportunities to blow into the Intoxilyzer, and also requested that she be permitted to submit a blood or urine sample. All of these requests were refused. The appellant managed to hire an independent tester, who obtained a urine sample which showed an alcohol concentration of .03 percent. Appellant testified that she had difficulty breathing under stress, and repeatedly denied that it was her intent to refuse to take the test.

Held, “…A thorough review of the record convinces us that defendant was denied the guarantees of procedural due process.” As a preliminary matter, however, the Court of Appeals rejects the defendant’s argument that the refusal law is unconstitutional because a state-created privilege (driving) cannot be made to depend upon the surrender of a right created and guaranteed by the Constitution (search of body or bodily fluid). While a warrantless search is unreasonable per se, consent is an exception. However, because an individual does not have the right to say no to a chemical test, the consent in the implied consent proceeding is insufficiently voluntary for 4th Amendment purposes.

“Exigent circumstances” is also an exception that can justify an otherwise unreasonable search when probable cause is also present. This case appears to squarely hold, for the first time, that the “evanescent quality” of alcohol presents exigent circumstances sufficient to justify an otherwise unreasonable search. “Since the [4]th Amendment does not grant the right to refuse a search supported by probable cause and authorized by exigent circumstances, the implied consent law does not require a driver to surrender the right to be free from unreasonable searches.” Finally, the court notes that the refusal law does not criminalize withholding consent; rather it criminalizes “refusal to submit” to a search, supported by probable cause, in which exigent circumstances are a factor. Hence, the refusal statute is not unreasonable.

The court holds that fundamental fairness prohibits a person from being criminally liable for test refusal unless he or she has been afforded a fair opportunity to submit to chemical testing but has freely indicated an unwillingness to do so. Here, the appellant continually attempted to blow into the Intoxilyzer, and requested additional opportunity and alternative testing.

Because the appellant was not given a meaningful opportunity to demonstrate her willingness to submit to a chemical test, the Court of Appeals holds that the conviction for refusal was obtained in violation of due process. State v. Jakklyn M. Netland, A06-1511 (Minn. App. 12/11/07). www.lawlibrary.state.mn.us/archive/ctappub/0712/opa061511-1211.htm

• Burglary: Defendant with Right to Possess Home. Appellant and the victim cohabited for over ten years, and jointly owned the home in question. In 2004, the couple split, but the appellant continued to visit the children at the home, provided for them financially, and made house mortgage payments. On April 26, 2004, the couple argued, resulting in an assault, and the victim obtained an order for protection which she later withdrew. Appellant later moved into an apartment one block from the home. Subsequent to the split of the couple, the appellant was alleged to have entered the home and assaulted the victim, resulting in two counts of first-degree burglary, and a gross misdemeanor domestic assault charge.

Held, appellant may not have been charged with burglarizing his home. “The question in this case is whether appellant’s tacit agreement with A.S.” to vacate the home and other facts indicating that she was in sole possession of the home at the time of the offense, without more, are sufficient to show that the appellant was not in lawful possession of the home at the time he entered it and assaulted A.S. The facts in this case demonstrate that the defendant was not dispossessed of his lawful right to enter the home, and, as such, the burglary conviction is vacated. State v. Paul P. Spence, A06-1541 (Minn. App. 12/11/07). www.lawlibrary.state.mn.us/archive/ctappub/0712/opa061541-1211.htm

• Blakely: Retroactivity; Restitution Underdetermined at Time of Decision. The appellant attempted to apply Blakely to his sentence, arguing that his case was not final at the time Blakely was decided because restitution had been reserved. Held, for purposes of applying retroactivity rules, a criminal conviction is deemed final when judgment of conviction is entered, even if the precise amount of restitution, which is part of the sentence, was reserved and not determined as of the date of the entry of that judgment. “The touchstone of finality is the date of the entry of the judgment of conviction” for purposes of applying the retroactivity rule, and the reservation of restitution does not extend the date of finality. State v. Edgar Randolph Hughes, Jr., A07-37 (Minn. App. 12/18/07). www.lawlibrary.state.mn.us/archive/ctappub/0712/opa070037-1218.htm

• Domestic Abuse Murder Prosecution: Admitting Order for Protection. Appellant was charged with first-degree domestic abuse murder under Minn. Stat. §609.185(a)(6). This statute does not require proof of various domestic abuse convictions, only that the state prove, beyond a reasonable doubt, a past pattern of domestic abuse. The individual acts needs not be established by proof beyond a reasonable doubt. Over the defendant’s objection, the court admitted an order for protection (OFP) issued under Minn. Stat. §518B.01 to prove a past pattern of domestic abuse. In this case, the OFP petitioner was not the victim, and was available to testify at trial. Here, the victim in that OFP did testify at trial about the acts of domestic abuse underlying the OFP. The defendant vigorously objected to the admission of the order itself at trial. Held, it was error to admit the order itself. The Court of Appeals notes that the order itself contained none of the allegations which the victim made in her affidavit, and contained no findings that domestic abuse occurred. The evidentiary value of the order was weak, and the potential for the jury to be improperly influenced by the order was high. State v. Dirk Lionel Goelz, A06-2424 (Minn. 12/27/07). www.lawlibrary.state.mn.us/archive/supct/0712/OPA062424-1227.htm

• Alford Plea: Withdrawal; Invalid Factual Basis and Acknowledgment. Appellant was originally charged with counts of second- and fourth-degree criminal sexual conduct, all felonies. On the morning of the trial, the appellant agreed to enter an Alford plea to an amended charge of gross misdemeanor fifth-degree criminal sexual conduct, in exchange for dismissal of the felony charges and an agreement that there be no executed jail time. In support of the Alford plea, the appellant answered the question posed by his attorney that there would be a “risk” that he would be found guilty of fifth-degree criminal sexual conduct if he went to trial, and that the state had certain Spreigl evidence. The prosecutor asked the appellant whether he read the statute, which he admitted.

Held, this was an invalid Alford plea, and the district court should have allowed the appellant to withdraw his guilty plea prior to sentencing as “fair and just.” The record does not contain an adequate factual basis concerning the allegations, nor a strong enough acknowledgment by the appellant that he would almost certainly be convicted.

The Supreme Court pronounces guiding principles for the valid entry of an Alford plea. First, it is the better practice for the factual basis to be based on evidence discussed with the defendant on the record at the plea hearing. This discussion may include interrogation about the underlying conduct and evidence likely to be admitted; it may include witness statements and other documents, or the presentation of abbreviated testimony from actual witnesses likely to testify at trial. Second, the court must be able to determine that the defendant, despite maintaining his innocence, agrees that the state is likely to offer evidence at trial sufficient to convict, applying a reasonable doubt standard.

In this case, the factual basis was deficient, and there was no acknowledgment of the likelihood of conviction using the reasonable doubt standard. Because the plea was not valid under the Alford rules, a manifest injustice exists supporting a motion to withdraw the plea. State v. Joel David Theis, A06-662 (Minn. 12/27/07). www.lawlibrary.state.mn.us/archive/supct/0712/OPA060662-1227.htm

—Frederic Bruno
Frederic Bruno & Associates

EMPLOYMENT & LABOR LAW
JUDICIAL LAW

• Disability Discrimination; Failure to Reveal Limitations of Condition.The 8th Circuit Court of Appeals, in a case from Minnesota, recently held that a patient care technician, who was fired due to poor attendance and prior discipline, could not pursue an ADA claim. Because she did not tell the employer about specific limitations caused by her depression, she was not qualified to perform the essential duties of her job, which barred her claims under the ADA and parallel provisions of the Minnesota Disability Discrimination Human Rights Act. The employer was not required to “accommodate” the series of unexcused absences by the employee, without being aware that she needed time off to deal with her depression. Rask v. Fresenius Medical Care North America, 2007 WL 4258620 (8th Cir. 12/06/07).

• Age Discrimination. A quality manager for a paper manufacturing plant failed in an age discrimination claim under the Federal Age Discrimination in Employment Act (ADEA) after he was terminated as part of a reduction in force. The claimant failed to establish a prima facie case by showing that age was a factor in his termination. Ward v. International Paper Company, 2007 WL 4245678 (8th Cir. 12/05/07).

• Sexual Harassment; Effectiveness of Remedial Action. An employee’s suit for sexual harassment and discrimination was allowed to proceed because there were genuine issues of material fact regarding the conduct of a school district employee who had previously been disciplined and warned about sexual harassment which created a hostile work environment. The employee was suspended without pay after two coworkers complained of harassment, and he was then warned that he might be terminated if any future complaints arose. But the school district did not fire him after complaints were subsequently received. An employee’s claim of sexual harassment due to his misconduct was deemed actionable because the claimant raised triable issue whether the school district’s remedial action was effective to curb a hostile work environment. Engel v. Rapid CitySchool District, 506 F.3d 1118 (8th Cir. 2007).

• Disability Benefits; Heart Disease. A police officer who suffered a coronary disease was entitled to a rehearing of his claim for duty-related disability benefits in an unpublished decision of the Minnesota Court of Appeals. The appellate court remanded the proceeding to the Public Employees Retirement Agency (PERA) to consider “relevant evidence” submitted by the claimant’s doctor regarding the relationship of his coronary disease to the “strain” from his job. Kunze v. Public Employees Retirement Association of Minnesota, 2007 WL 4384439 (Minn. App12/18/07) (unpublished). www.lawlibrary.state.mn.us/archive/ctapun/0712/opa062077-1218.htm

• Disability Benefits; Health Insurance Premiums. A firefighter who was forced to retire because of injuries suffered in a cave rescue was entitled to have his former employer, the city of St. Paul, pay his ongoing health insurance benefits. The cave rescue was part of the normal duties and responsibilities of the firefighter, which entitled him to be eligible for employer-provided health insurance premiums. In re Benefits by Scott Sletten, 2007 WL 4472476 (Minn. App. 12/24/07). www.lawlibrary.state.mn.us/archive/ctappub/0712/opa062263-1224.htm

• Workers Compensation; Period of Claim. A determination by a workers compensation judge that an employee’s deteriorating knee condition was not work-related was remanded for reconsideration under the Gillette doctrine when the period of work covered by his claim was determined to be in question. The Supreme Court held that the employee’s work-related injury claim under the Gillette principle could be construed as covering a two-decade period of time when he was working as an appliance repairman and incurred a knee injury, rather than limited to a subsequent five-year period when he had a desk job and the knee injury was resolved. Therefore, the compensation judge’s determination that the deteriorated condition of the knee was not work-related was remanded for reconsideration in light of Gillette. Petrus v. Minnegasco, Inc., 741 N.W.2d 600 (Minn. 2007). www.lawlibrary.state.mn.us/archive/supct/0712/ORA071534-1121.htm

• Whistleblower; Complaint Did Not Implicate Violation of Law. Continuing a trend of adverse results for whistleblowers in Minnesota, a parts worker at an automobile dealership lost his whistleblower case when the Court of Appeals determined that his complaints did not implicate an actual or suspected violation of law. The employee discovered a mistaken data entry regarding his personal vehicle and attempted to correct it in the dealership’s data base. The claimant was later fired for insubordination, about nine months after he complained to the Attorney’s General Office and the Better Business Bureau. Upholding summary judgment, the Court of Appeals held that his whistleblower claim was not actionable because the complaints he made did not implicate an actual or suspected violation of law and, therefore, were not protected under the Whistleblower Statute, Minn. Stat. §181.932. French v. Brookdale Motor Sales, Inc., 2007 WL 4303715 (Minn. App. 12/11/07) (unpublished). www.lawlibrary.state.mn.us/archive/ctapun/0712/opa062252-1211.htm

• Unemployment Compensation; Untimely Appeal. A request for reconsideration of a denial of unemployment compensation benefits submitted one day late was ruled untimely. The “unambiguous” postmark date of the request for reconsideration was 31 days after the notice of denial and thus beyond the 30-day appeal period, regardless of any “mitigating circumstances” claimed by the employee. Schuna v. Reynolds and Reynolds Partnership, 2007 WL 4394638 (Minn. App. 2007) (unpublished). www.lawlibrary.state.mn.us/archive/ctapun/0712/opa062287-1218.htm

• Unemployment Compensation; Untimely Appeal. Another untimely employee lost her claim for unemployment compensation benefits when she filed an appeal of the initial denial of benefits after the 30-day deadline had expired. She claimed this was justifiable because she was not aware that she needed to file an appeal since she had only worked at her most recent employer for one week. The court ruled there was no “jurisdiction” to review her untimely appeal and her benefits were denied. Stewart v. Executive Affiliates, Inc., 2007 WL 4570255 (Minn. App. 2007) (unpublished). www.lawlibrary.state.mn.us/archive/ctapun/0712/opa062467-1224.htm

• Unemployment Compensation; Misconduct. An employee who had “chronic” lateness problems at work was properly denied unemployment compensation benefits on grounds of “misconduct.” Because the employee was “warned about the tardiness and told that it could be grounds for dismissal,” his continued lateness for work warranted his disqualification for unemployment compensation benefits. Czerniak v. ATK Ordinance & Ground Systems, 2007 WL 4394456 (Minn. App. 2007)(unpublished). www.lawlibrary.state.mn.us/archive/ctapun/0712/opa062221-1218.htm

—Marshall H. Tanick
Mansfield Tanick & Cohen, PA

February 2008 In this month's "Notes & Trends: Bankruptcy Criminal Law Employment & Labor Law Environmental Law Federal Practice Intellectual Property Juvenile Law Real Property Tax	BANKRUPTCY JUDICIAL LAW • Failure to Explain Loss of Assets. The United States Trustee commenced an adversary proceeding to deny debtor a discharge based on her concealment of prepetition credit purchases, inadequate financial records, false oaths, and failure to satisfactorily explain asset loss. Debtor claimed the prepetition debt run up was due to a gambling addiction episode she suffered. Trustee claimed that she, alone or with others, engaged in a “credit burst out” of the credit facilities, pocketing the cash and hiding the assets prior to a bad faith bankruptcy filing. The court found there was not sufficient evidence to support either theory and disregarded the allegations surrounding the prepetition credit purchases. The court went on to note that the financial records were adequate; the issue was what conclusions could be drawn from them in light of other evidence. The court commented on debtor’s legal representation and fined debtor’s attorney for failing to appear at an examination on debtor’s behalf. The court ultimately denied debtor a discharge based on her failure to satisfactorily explain asset loss. Debtor simply failed to meet her burden of proof to provide corroborating evidence of gambling losses. Based on the court’s comments, it appears debtor could have met this burden by producing evidence acceptable to the IRS for gambling gains/losses. *Fokkena v. Huynh (In re Huynh), __ B.R. __, 2008 WL 53264 (Bankr.D.Minn. 01/03/08). ADMINISTRATIVE ACTION • New Rules Effective December 1, 2007. Numerous changes (not all mentioned below) to the Federal Rules of Bankruptcy Procedure became effective December 1, 2007. Rule 3007, which governs proofs of claim, was amended to allow an omnibus objection of up to 100 claims, provided the claims are of a certain type. Rule 4001 was amended to change the notice requirements for motions to approve use of cash collateral, obtaining credit, and agreements relating to relief from the automatic stay. Rule 6006 regarding the assumption, rejection, and assignment of executory contracts and unexpired leases was revised to permit the combining of up to 100 of these contracts and leases into a single omnibus motion seeking to assume or assign the executory contracts or unexpired leases. Rule 9037, which addresses privacy rights, permits the filer of documents to include only the last four digits of social security numbers, only the year of birth (as opposed to the full birth date), only the initials of minors, and only the last four digits of account numbers. —Drew Moratzka* Mackall Crounse & Moore PLC
February 2008 In this month's "Notes & Trends: Bankruptcy Criminal Law Employment & Labor Law Environmental Law Federal Practice Intellectual Property Juvenile Law Real Property Tax	CRIMINAL LAW JUDICIAL LAW • Sentence: Multiple Offenses Required One Conviction Only. Following a jury verdict, the appellant was convicted of first-degree murder, intentional second-degree murder, and first-degree aggravated robbery. The trial court judge imposed the mandatory life sentence for first-degree murder. Specifically, the district court “received” the jury verdict and sentenced the appellant without stating on which offenses the court was entering formal adjudications of conviction. The official records of the court show that formal adjudications were entered on all three guilty verdicts. This was error under Minn. Stat. §609.04, which prohibits convictions for multiple offenses arising from the same behavioral incident. Under such a scenario, guilty verdicts for the lesser-included offenses are not, by themselves, convictions. The Supreme Court vacates the convictions for the lesser included offenses of intentional second-degree murder and aggravated robbery, which is an offense “necessarily proved,” when a felony murder is proved. *Joseph T. Spann v. State of* *Minnesota, A06-1474 (Minn. 11/01/07). www.lawlibrary.state.mn.us/archive/supct/0711/OPA061474-1101.htm* • Discovery: State May Intervene in Parallel Civil Proceeding to Terminate Discovery. Respondent was charged with criminal sexual conduct and was also a party to a dissolution proceeding. In August 2006, the county attorney filed criminal charges against the respondent for acts of criminal sexual conduct against one of his children. In October 2006, the respondent’s wife initiated a marriage dissolution proceeding against the defendant. The same judge presided over both matters. In the dissolution proceeding, both parties sought custody of a child other than the alleged victim in the criminal sexual conduct complaint. In the dissolution proceeding, the respondent sought to depose the alleged victim, another child, and his wife. The Traverse County Attorney, on behalf of the state, filed a petition to permissibly intervene in the marriage dissolution proceeding under Minn.R.Civ.P. 24.02, for the limited purpose of preventing the respondent from taking all depositions. The district court denied the petition, and the Court of Appeals refused to grant a writ of prohibition. Upon a petition for review, the Minnesota Supreme Court holds that a criminal defendant may be prevented from deposing potential criminal witnesses in a civil proceeding while a parallel criminal matter is pending. Applying a rule that encourages intervention “wherever possible” under Minn.R.Civ.P. 24.02, the Minnesota Supreme Court holds that the state has a strong interest in staying discovery in a civil proceeding when it shares overlapping evidentiary material with a pending criminal proceeding. The court abused its discretion when it denied the state’s request to permissibly intervene. Furthermore, when a defendant uses depositions in a parallel civil proceeding, a protective order staying civil discovery under Minn.R.Civ.P. 26.03 may be necessary to prevent circumvention of the rules of criminal procedure which limit criminal discovery. The Court reverses the Court of Appeals, and grants the writ of prohibition. State v. Ryan S. Deal, A07-278 (Minn. 11/01/07. www.lawlibrary.state.mn.us/archive/supct/0711/OPA070278-1101.htm • Criminal Sexual Conduct: Clergy Misconduct; Use of Religious Testimony. Appellant was charged and convicted for having sexual relations with two parishioners during the time that he was priest, and both parishioners were seeking pastoral services on religious, martial and grief issues. During trial, the state introduced evidence from church officials regarding Catholic dogma, the powers of priests, its investigation of the appellant, and in specific, the appellant’s misbehavior through an investigation and, ultimately, a determination by the Catholic Church that the appellant had violated his priestly authority. Held, the appellant must be reversed, because the state improperly allowed the admission of evidence concerning doctrine of the Catholic Church which became entangled with the criteria set out in the clergy sexual contact statute for determining criminality. The jury’s verdict was undoubtedly based on this evidence, and the error resulting from this entanglement was not harmless. The Supreme Court is equally divided on the issue of whether the clergy statute facially violates the establishment clause of the United States Constitution. Because of this division, the decision of the Court of Appeals is affirmed that the statute does not facially violate the establishment clause. A majority of the Court, however, believes that the statute, as applied to this particular defendant, did, in fact, violate the establishment clause by improperly entangling religious doctrine into the state’s case. *State of* *Minnesota* *v. John Joseph Bussman, A05-1782 (Minn. 11/01/07). www.lawlibrary.state.mn.us/archive/supct/0711/OPA051782-1101.htm* • Search and Seizure: DNA Sampling and Subsequent Database Searches. Appellant was on probation for a 2003 aggravated robbery, for which he was required by Minn. Stat. §609.117 to provide a biological specimen for DNA analysis. In August 2000, the victim, “A.C.” was raped. Using periodic database searches in 2004, the BCA matched the appellant’s DNA to the DNA from the forensic sample taken in the A.C. assault in 2000. In 2005, a first-degree criminal sexual conduct charge against appellant was filed. Later than that year, police obtained another DNA sample from the appellant’s saliva, which confirmed the initial database match. Held, Minn. Stat. §609.117, which requires the taking of a biological specimen, to be used in the BCA database, and the confirmatory saliva sample, did not violate the appellant’s constitutional protection against unreasonable searches and seizures. Following the 8th Circuit, and using its totality of the circumstances approach, the Court of Appeals concludes that requiring a biological specimen from a person on felony probation is not unreasonable under either the state or federal 4th amendments. While the Court of Appeals agrees that the initial requirement of a DNA biological sample is a warrantless search, herein found to be constitutional, the Court of Appeals does not agree with the defense position that the subsequent “match” should be suppressed as a suspicionless search. State v. Jimmie D. Jackson, A06-1330 (Minn. App. 11/13/07). www.lawlibrary.state.mn.us/archive/ctappub/0711/opa061330-1113.htm • Child Pornography: Statute Requires Minimal Scienter Regarding Age of Actors. Minn. Stat. §617.247, subd. 4(a) criminalizes the possession of child pornography where the possessor knows or has reason to know its content and character. The Court of Appeals construed “reason to know” to require that a child pornography possessor be “in some manner aware” of facts which lead him to believe that the performer in the pornographic work is a child. The Supreme Court rejects the appellant’s claim that the statute is unconstitutional (by arguably eliminating the scienter requirement), but finds that the statute is ambiguous. In construing the statute to preserve its constitutionality, the Supreme Court interprets “reason to know” to include the lowest level of awareness permitted by the 1st Amendment: the recklessness standard. The Supreme Court appears to be saying that this new standard of awareness is something less than the “in some manner aware” standard used by the Court of Appeals. The case was remanded to district court, where a bench trial was held, for the original trial court judge to determine whether its findings of fact permit a conclusion, by proof beyond a reasonable doubt, that the appellant had “reason to know” under the new standard articulated in this case. *State of* *Minnesota* *v. Helmut Mauer, A05-460 (Minn. 11/15/07). www.lawlibrary.state.mn.us/archive/supct/0711/OPA050460-1115.htm* • Search and Seizure: No Violation to Enter Intersection on Yellow Light. Appellant appeals from a DWI conviction pursuant to a Lothenbach trial. The facts are undisputed: At 2:12 A.M., a police officer watched the appellant’s car enter an intersection while the light for travel in his direction was displaying a steady yellow. Subsequent to the stop, the officer developed probable cause for DWI. The parties stipulate that the sole driving conduct was the appellant’s entry into the intersection on the steady yellow. The police officer also testified that it was his [mistaken] understanding of the law that it required a motorist to not enter the intersection on a steady yellow. The Court of Appeals notes, however, that the Supreme Court has held that a police officer’s mistaken interpretation of a statute may not form the particularized and objective basis for suspecting criminal activity to justify a stop. State v. Anderson, 683 N.W.2d 818, 823-24 (Minn. 2004). The statute on which the district court based its decision is §169.06, subd. 5(a)(2)(i)(Supp.) 2005. The current version of the yellow light statute contains no provision against entering an intersection on a yellow light. Hence, the conviction of the appellant is reversed. State v. Justin Allen Kilmer, A06-2052 (Minn. App. 11/20/07). www.lawlibrary.state.mn.us/archive/ctappub/0711/opa062052-1120.htm • Firearms: Lifetime Prohibition Upheld. In February 2005, the appellant was sentenced for second-degree criminal sexual conduct, a crime of violence. Minn. Stat. §624.713, subd. 1 (2004), provides that the lifetime prohibition against possessing firearms applies “only to offenders who are discharged from sentence or court supervision for a crime of violence on or after August 1, 2004.” Respondent relied on this provision to argue that since he was not discharged from court supervision for his February 2005 conviction when a shotgun was found on his person in August 2005, the lifetime prohibition did not yet apply to him, and he was entitled to a jury instruction to that effect. Reversing the district court, the Court of Appeals finds that the interpretation of both the respondent and the district court yields a result that is “absurd.” The legislative intent of the statute was to limit the ex post facto application of the statute, and it was added to accommodate those individuals who were discharged from their sentence prior to August 1, 1993. *State v. Mark Robert Weber, A07-1218 (Minn. App. 11/20/07). www.lawlibrary.state.mn.us/archive/ctappub/0711/opa071218-1120.htm* • Forfeiture: Conviction Not Necessary for DWI Forfeiture. Appellant had a prior DWI in 2000, and was again charged, in 2006, with second-degree refusal to test. The two aggravating factors were the refusal and the prior conviction. Appellant received a notice of seizure and intent to forfeit, in response to which he filed a petition for judicial review. Subsequently, appellant pleaded guilty to third-degree DWI and the state dismissed the charge of second-degree DWI based on the refusal. Held, the statute does not require that a driver be convicted of a designated offense for the vehicle to be forfeited. “Commission” of a designated offense is sufficient, and here it is undisputed that the appellant committed a designated offense. District courts have been divided on this issue. While Minn. Stat. §169A.63, subd. 7(a)(1) states that a vehicle is presumed subject to forfeiture if the driver is convicted of a designated offense, the statute merely creates a presumption of forfeiture, while Minn. Stat. §169A.63 does not require such a conviction. The new statute does not require a conviction, but merely civil proof of commission of a designated offense. *Chad* *Scott Mastakoski v. 2003 Dodge* *Durango, A06-2396 (Minn. App. 09/11/07). www.lawlibrary.state.mn.us/archive/ctappub/0709/opa062396-0911.htm* • Vacating Defendant’s Guilty Plea Over His Objection. Appellant pleaded to first-degree aggravated robbery and second-degree assault, and accepted an agreed-upon 60-month sentence, which was an upward durational departure from the presumptive range of 48 to 52 months. In turn, the state agreed not to charge him with first-degree assault and to dismiss an additional count of aggravated robbery. The court accepted the agreement, and imposed a 60-month executed sentence. The appellant then filed a post-conviction addition, arguing that his sentence violated Blakely, and should be modified to reflect a presumptive 48 to 52 months. The state proposed impaneling a sentencing jury. At the post-conviction hearing, the district court sua sponte withdrew appellant’s guilty plea over his objection, stating that the defendant repudiated the plea agreement and the court could, therefore, withdraw approval. The matter was returned for a new trial on initial complaint. Appellant moved to dismiss for double jeopardy, which was denied. Appellant then entered into a Lothenbach stipulation to a bench trial and reserved his right to appeal the denial of his motion to dismiss. Appellant was convicted after the new trial and sentenced to 44 months. The appeal followed. In this case of first impression, the Court of Appeals holds that a district court may not revoke guilty pleas on its own initiative. The court further notes that “due consideration should be given to whether subsequent criminal proceedings would implicate double jeopardy concerns,” noting other jurisdictions have so held. However, the Court of Appeals declines to address the double jeopardy issue, electing instead to vacate the conviction for the second proceeding, and restore the status of the case at the time of the post-conviction petition. *State v. Dennis James Spraggins, A06-1694 (Minn. App. 12/04/07). www.lawlibrary.state.mn.us/archive/* ctappub/0712/opa061994-2104.htm • Driver’s License: Violation of Restricted License Statute. The appellant was driving a tractor, and had been seen leaving a bar. The arresting officer recognized the driver and knew that his license was canceled due to past alcohol violations. At the time of the stop, the appellant’s license was canceled as inimical to public safety; however, the deputy also found that a restriction on his canceled license persisted which stated that any use of alcohol or drugs would violate the license. Appellant was charged with driving after cancellation and driving in violation of a restricted license in violation of Minn. Stat. §179.09, subd. 1(b)(1)(2004). Held, a person cannot be convicted of violating the restricted license statute unless he or she actually has a driver’s license. In this case, the appellant’s license was canceled, and the Court of Appeals declines to extend the statute to the abstract concept of “privileges.” *State v. John Albert Adickes, A06-1558 (Minn. App. 12/04/07). www.lawlibrary.state.mn.us/archive/ctappub/0712/opa061558-1204.htm* • Sentencing: Predicate Offenses or Collective Offense as Basis. Appellant was convicted of four counts of felony violations of an order for protection (OFP), and one count of engaging in a pattern of harassing conduct, using the four other counts as predicates. Had the judge used the collective offense, the sentence would have been 23 months, while sentencing for the predicate offenses resulted in 51 months. The court exercised sound discretion in electing to sentence each of the four predicate offenses, rather than the one collective offense. Additionally, the court correctly concluded that the four OFP predicate offenses were “crimes against the person,” for the purpose of imposing permissive consecutive sentences. The court notes that Sentencing Guidelines IV were amended to include a list of offenses eligible for permissive consecutive sentences subsequent to the law of this case. However, the court made an appropriate independent determination that violation of an OFP is a crime against the person. *State v. Christian F. Franks, A06-1242 (Minn. App. 12/04/07). www.lawlibrary.state.mn.us/archive/ctappub/0712/opa061242-1204.htm* • Sentencing: Criminal Sexual Conduct. Appellant was accused of sexually assaulting his adopted daughter three times per week, every week of the year, from the time the child was about seven years old until she moved from his home after she turned 18. The incidents included vaginal penetration, oral sex, and sexual fondling, and it occurred in every room of the house. By the victim’s account, there were 832 separate assaults against the child. The prosecutor charged the appellant with two counts of first-degree criminal sexual conduct and one count of third-degree criminal sexual conduct. The first two counts covered the “extended periods” of when the child was approximately 8 through 14, and 14 through 15. Count III, criminal sexual conduct, covered the period of when the child was ages 16 and 17. Each of the statutes involved criminalizes multiple acts of sex abuse occurring over “an extended period of time” with a minor. Affirming the conviction and sentences, the Court of Appeals holds that the state is authorized to prosecute a person for multiple counts of criminal sexual conduct against a victim for any discretionary “extended period,” even if those individual periods, when added together, might collectively constitute a single, but longer “extended period.” Because each statute does not define “extended period,” the phrase is accepted as meaning what its general and plain terms imply. The court will not interfere with prosecutorial discretion except in cases where an injustice results because the prosecutor has clearly abused his or her discretion in exercising the charging function. Here, no such abuse occurred, because the prosecution has broad charging discretion in which the courts generally do not interfere. Finally, the Court of Appeals rejects the appellant’s argument that his behavior constituted a single behavioral incident, because it occurred essentially continuously from the child’s seventh birthday through age 17. The Court of Appeals finds that this would be an absurd result, and would have the effect of rewarding sex offenders who are particularly active and persistent. *State v. Michael John Suhon, A06-1240 (Minn App. 12/04/07). www.lawlibrary.state.mn.us/archive/ctappub/0712/opa061240-1204.htm* • Accomplice Testimony in Bench Trial; Adjudication of Delinquency. Police responded to a broken windshield, interviewed a 16-year-old child, “C.F.,” who was hanging out of a nearby window, and asked him to come down. C.F. told the officer that appellant S.H.H. had fired a BB gun out of his apartment window, damaging the truck. C.F. owned the gun and was on probation for its previous use. C.F.’s testimony was that he had supplied the gun to S.H.H. and had encouraged its use to shoot at the vehicle. The appellant and his brother both testified that S.H.H. never shot the BB gun. Held, the conviction must be reversed. C.F. qualified as an accomplice, and the conviction was based entirely upon his testimony. C.F. gave the only testimony indicating the appellant shot the BB through the truck window. No other testimony places the gun in the appellant’s hand or at the apartment at the time of the incident. In this case of first impression, the Court of Appeals rules that when confronted with accomplice testimony, even absent an objection or request for instruction, the district court has an independent obligation to caution jurors about the nature of accomplice testimony. The court notes that Minn. Stat. §634.034 applies to both criminal and juvenile proceedings. *In the* *Matter of S.H.H**., A06-2098 (Minn. App. 12/04/07). www.lawlibrary.state.mn.us/archive/ctappub/0712/opa062098-1204.htm* • Police Jurisdiction: State Troopers. The trooper in question was on County Road 7 in Cook County when he noticed traffic violations. The respondent was subsequently arrested and charged with DWI. At the implied consent hearing, the trial court ordered the proceedings dismissed for “lack of jurisdiction,” because he felt that “there is no authority … for troopers to take it upon themselves to decide when and under what circumstances to patrol city streets, county or township roads, or, indeed, which streets or roads to patrol beyond state trunk highways.” On appeal by the commissioner of public safety, the Court of Appeals holds that Minn. Stat. §299D.03, subd. 1(b)(12) is unambiguous. This statute provides that Minnesota State Patrol troopers shall have the authority and power “as peace officers to make arrests for public offenses committed in their presence anywhere in the state.” While earlier subdivisions within the same statute authorize state troopers to enforce the provisions of the law related to protection and use of “trunk highways,” nothing in the subsequent subdivision limits or makes duplicative the various subdivisions. Hence, the matter is reversed and remanded. *Thomas William Westby v. Commissioner of Public Safety, A07-0914 (Minn. App. 12/04/07). www.lawlibrary.state.mn.us/archive/ctappub/0712/opa070914-1204.htm* • Search and Seizure: Invalid Nighttime Warrant. In applying for a warrant of a home concerning alleged drug activity, police presented a judge with an application for a warrant, requesting nighttime authorization with the summary statement that “this investigation has led your affiant into the nighttime scope of search warrant.” (sic) No further information to support a nighttime search was warranted. Both the district court and the Court of Appeals found the warrant to be invalid, because it violated Minn. Stat. §626.14 by not providing factual substantiation to support the nighttime search. However, both lower courts found the violation to be “merely technical,” and not to require suppression. Held, this violation of the nighttime search warrant requirement requires suppression under both the statute and the constitution. The Supreme Court distinguishes State v. Lien, 265 N.W.2d 833 (Minn. 1978) because the warrant was executed at a reasonable hour, and the police had observed people coming and going from the residence, indicating that the “period of repose” had not begun. On the contrary, this warrant was executed at 9:25 p.m. on December 11th, a time when it had been dark for several hours, and the police had no information as to whether or not the appellant was in the “period of repose.” Quoting historical underpinnings to the Commonwealth countries’ “aversion to nighttime intrusions into the home,” the Supreme Court finds this to be a serious transgression, and not a technical violation. For these reasons, the Supreme Court concludes that the district court erred when it failed to suppress the evidence, under the statutory violation, derived from the invalid nighttime search of the appellant’s home. The Supreme Court then undertakes a constitutional analysis of the violation, and concludes that the 4th Amendment provides a separate and independent basis from Minn. Stat. §626.14, also requiring suppression of the evidence seized during the warrant. The Court notes that Commonwealth countries have historically found nighttime searches to be unreasonable and observes that as such, they clearly implicate the 4th Amendment. *State v. Susan Ranae Jackson, A05-247 (Minn. 12/06/07). www.lawlibrary.state.mn.us/archive/supct/0712/OPA050247-1206.htm* • Search and Seizure: Nighttime Warrant Invalid. On December 11, 2004, at approximately 4:30 a.m., law enforcement presented a search warrant application to a judge. The judge found probable cause, and authorized both a no-knock warrant, and nighttime entry. At approximately 6:00 a.m., deputies executed the warrant. There were no lights inside the home, several people were present and asleep in their nightclothes, but the defendant was not at the home. Deputies kicked opened the defendant’s locked bedroom door and found drugs and cash. The district court suppressed. The Court of Appeals reversed, reasoning that because defendant was not present, policy concerns about individuals being “roused out of bed” were not raised. The Supreme Court reversed the Court of Appeals, and found that the presence or absence of the person raising the claim, in this case, the appellant, is not determinative. The night-capped warrant was found to be invalid, because it contained no specific information to support the nighttime entry, in violation of Minn. Stat. §624.14. The state concedes as much. The appellant has grounds to request suppression because a homeowner has a constitutional right to be secure in his house, which may include the right to provide a secure place, free and clear from unauthorized intrusions, for his family and guests. Hence, the inquiry is not one technically of standing, but whether the disputed search has infringed on the privacy interest of the homeowner that the 4th Amendment was designed to protect. Following Jackson, supra, the Supreme Court requires suppression. *State v. Robert Joseph Jordan, A06-1445 (Minn. 12/06/07). www.lawlibrary.state.mn.us/archive/supct/0712/OPA061445-1206.htm* • DWI/Implied Consent: Refusal Charge Violated Due Process. Appellant was arrested for DWI, and read the implied consent advisory. She then invoked her right to counsel, and the attorney she spoke with advised her to take the test stating, “Whatever you do, do not refuse the test. It’s way worse than coming up with a positive.” Appellant agreed to take the test, but was unable to deliver an adequate sample, making 19 attempts in a period of three minutes and 30 seconds, at which time the officer terminated the tests. The arresting officer felt that the appellant was playing games, and he considered her test performance to be a refusal, noting that the Intoxilyzer “deemed” her deficient samples to be a refusal. The appellant repeatedly insisted that she was not refusing, and asked to be given additional opportunities to blow into the Intoxilyzer, and also requested that she be permitted to submit a blood or urine sample. All of these requests were refused. The appellant managed to hire an independent tester, who obtained a urine sample which showed an alcohol concentration of .03 percent. Appellant testified that she had difficulty breathing under stress, and repeatedly denied that it was her intent to refuse to take the test. Held, “…A thorough review of the record convinces us that defendant was denied the guarantees of procedural due process.” As a preliminary matter, however, the Court of Appeals rejects the defendant’s argument that the refusal law is unconstitutional because a state-created privilege (driving) cannot be made to depend upon the surrender of a right created and guaranteed by the Constitution (search of body or bodily fluid). While a warrantless search is unreasonable per se, consent is an exception. However, because an individual does not have the right to say no to a chemical test, the consent in the implied consent proceeding is insufficiently voluntary for 4th Amendment purposes. “Exigent circumstances” is also an exception that can justify an otherwise unreasonable search when probable cause is also present. This case appears to squarely hold, for the first time, that the “evanescent quality” of alcohol presents exigent circumstances sufficient to justify an otherwise unreasonable search. “Since the [4]th Amendment does not grant the right to refuse a search supported by probable cause and authorized by exigent circumstances, the implied consent law does not require a driver to surrender the right to be free from unreasonable searches.” Finally, the court notes that the refusal law does not criminalize withholding consent; rather it criminalizes “refusal to submit” to a search, supported by probable cause, in which exigent circumstances are a factor. Hence, the refusal statute is not unreasonable. The court holds that fundamental fairness prohibits a person from being criminally liable for test refusal unless he or she has been afforded a fair opportunity to submit to chemical testing but has freely indicated an unwillingness to do so. Here, the appellant continually attempted to blow into the Intoxilyzer, and requested additional opportunity and alternative testing. Because the appellant was not given a meaningful opportunity to demonstrate her willingness to submit to a chemical test, the Court of Appeals holds that the conviction for refusal was obtained in violation of due process. *State v. Jakklyn M. Netland, A06-1511 (Minn. App. 12/11/07). www.lawlibrary.state.mn.us/archive/ctappub/0712/opa061511-1211.htm* • Burglary: Defendant with Right to Possess Home. Appellant and the victim cohabited for over ten years, and jointly owned the home in question. In 2004, the couple split, but the appellant continued to visit the children at the home, provided for them financially, and made house mortgage payments. On April 26, 2004, the couple argued, resulting in an assault, and the victim obtained an order for protection which she later withdrew. Appellant later moved into an apartment one block from the home. Subsequent to the split of the couple, the appellant was alleged to have entered the home and assaulted the victim, resulting in two counts of first-degree burglary, and a gross misdemeanor domestic assault charge. Held, appellant may not have been charged with burglarizing his home. “The question in this case is whether appellant’s tacit agreement with A.S.” to vacate the home and other facts indicating that she was in sole possession of the home at the time of the offense, without more, are sufficient to show that the appellant was not in lawful possession of the home at the time he entered it and assaulted A.S. The facts in this case demonstrate that the defendant was not dispossessed of his lawful right to enter the home, and, as such, the burglary conviction is vacated. *State v. Paul P. Spence, A06-1541 (Minn. App. 12/11/07). www.lawlibrary.state.mn.us/archive/ctappub/0712/opa061541-1211.htm* • Blakely: Retroactivity; Restitution Underdetermined at Time of Decision. The appellant attempted to apply Blakely to his sentence, arguing that his case was not final at the time Blakely was decided because restitution had been reserved. Held, for purposes of applying retroactivity rules, a criminal conviction is deemed final when judgment of conviction is entered, even if the precise amount of restitution, which is part of the sentence, was reserved and not determined as of the date of the entry of that judgment. “The touchstone of finality is the date of the entry of the judgment of conviction” for purposes of applying the retroactivity rule, and the reservation of restitution does not extend the date of finality. *State v. Edgar Randolph Hughes, Jr., A07-37 (Minn. App. 12/18/07). www.lawlibrary.state.mn.us/archive/ctappub/0712/opa070037-1218.htm* • Domestic Abuse Murder Prosecution: Admitting Order for Protection. Appellant was charged with first-degree domestic abuse murder under Minn. Stat. §609.185(a)(6). This statute does not require proof of various domestic abuse convictions, only that the state prove, beyond a reasonable doubt, a past pattern of domestic abuse. The individual acts needs not be established by proof beyond a reasonable doubt. Over the defendant’s objection, the court admitted an order for protection (OFP) issued under Minn. Stat. §518B.01 to prove a past pattern of domestic abuse. In this case, the OFP petitioner was not the victim, and was available to testify at trial. Here, the victim in that OFP did testify at trial about the acts of domestic abuse underlying the OFP. The defendant vigorously objected to the admission of the order itself at trial. Held, it was error to admit the order itself. The Court of Appeals notes that the order itself contained none of the allegations which the victim made in her affidavit, and contained no findings that domestic abuse occurred. The evidentiary value of the order was weak, and the potential for the jury to be improperly influenced by the order was high. *State v. Dirk Lionel Goelz, A06-2424 (Minn. 12/27/07). www.lawlibrary.state.mn.us/archive/supct/0712/OPA062424-1227.htm* • Alford Plea: Withdrawal; Invalid Factual Basis and Acknowledgment. Appellant was originally charged with counts of second- and fourth-degree criminal sexual conduct, all felonies. On the morning of the trial, the appellant agreed to enter an Alford plea to an amended charge of gross misdemeanor fifth-degree criminal sexual conduct, in exchange for dismissal of the felony charges and an agreement that there be no executed jail time. In support of the Alford plea, the appellant answered the question posed by his attorney that there would be a “risk” that he would be found guilty of fifth-degree criminal sexual conduct if he went to trial, and that the state had certain Spreigl evidence. The prosecutor asked the appellant whether he read the statute, which he admitted. Held, this was an invalid Alford plea, and the district court should have allowed the appellant to withdraw his guilty plea prior to sentencing as “fair and just.” The record does not contain an adequate factual basis concerning the allegations, nor a strong enough acknowledgment by the appellant that he would almost certainly be convicted. The Supreme Court pronounces guiding principles for the valid entry of an Alford plea. First, it is the better practice for the factual basis to be based on evidence discussed with the defendant on the record at the plea hearing. This discussion may include interrogation about the underlying conduct and evidence likely to be admitted; it may include witness statements and other documents, or the presentation of abbreviated testimony from actual witnesses likely to testify at trial. Second, the court must be able to determine that the defendant, despite maintaining his innocence, agrees that the state is likely to offer evidence at trial sufficient to convict, applying a reasonable doubt standard. In this case, the factual basis was deficient, and there was no acknowledgment of the likelihood of conviction using the reasonable doubt standard. Because the plea was not valid under the Alford rules, a manifest injustice exists supporting a motion to withdraw the plea. *State v. Joel David Theis, A06-662 (Minn. 12/27/07). www.lawlibrary.state.mn.us/archive/supct/0712/OPA060662-1227.htm* —Frederic Bruno Frederic Bruno & Associates
February 2008 In this month's "Notes & Trends: Bankruptcy Criminal Law Employment & Labor Law Environmental Law Federal Practice Intellectual Property Juvenile Law Real Property Tax	EMPLOYMENT & LABOR LAW JUDICIAL LAW • Disability Discrimination; Failure to Reveal Limitations of Condition.The 8th Circuit Court of Appeals, in a case from Minnesota, recently held that a patient care technician, who was fired due to poor attendance and prior discipline, could not pursue an ADA claim. Because she did not tell the employer about specific limitations caused by her depression, she was not qualified to perform the essential duties of her job, which barred her claims under the ADA and parallel provisions of the Minnesota Disability Discrimination Human Rights Act. The employer was not required to “accommodate” the series of unexcused absences by the employee, without being aware that she needed time off to deal with her depression. *Rask v. Fresenius Medical Care North America, 2007 WL 4258620 (8th Cir. 12/06/07). • Age Discrimination. A quality manager for a paper manufacturing plant failed in an age discrimination claim under the Federal Age Discrimination in Employment Act (ADEA) after he was terminated as part of a reduction in force. The claimant failed to establish a prima facie case by showing that age was a factor in his termination. Ward v. International Paper Company, 2007 WL 4245678 (8th Cir. 12/05/07). • Sexual Harassment; Effectiveness of Remedial Action. An employee’s suit for sexual harassment and discrimination was allowed to proceed because there were genuine issues of material fact regarding the conduct of a school district employee who had previously been disciplined and warned about sexual harassment which created a hostile work environment. The employee was suspended without pay after two coworkers complained of harassment, and he was then warned that he might be terminated if any future complaints arose. But the school district did not fire him after complaints were subsequently received. An employee’s claim of sexual harassment due to his misconduct was deemed actionable because the claimant raised triable issue whether the school district’s remedial action was effective to curb a hostile work environment. Engel v. Rapid CitySchool District, 506 F.3d 1118 (8th Cir. 2007). • Disability Benefits; Heart Disease. A police officer who suffered a coronary disease was entitled to a rehearing of his claim for duty-related disability benefits in an unpublished decision of the Minnesota Court of Appeals. The appellate court remanded the proceeding to the Public Employees Retirement Agency (PERA) to consider “relevant evidence” submitted by the claimant’s doctor regarding the relationship of his coronary disease to the “strain” from his job. Kunze v. Public Employees Retirement Association of Minnesota,* 2007 WL 4384439 (Minn. App12/18/07) (unpublished). www.lawlibrary.state.mn.us/archive/ctapun/0712/opa062077-1218.htm • Disability Benefits; Health Insurance Premiums. A firefighter who was forced to retire because of injuries suffered in a cave rescue was entitled to have his former employer, the city of St. Paul, pay his ongoing health insurance benefits. The cave rescue was part of the normal duties and responsibilities of the firefighter, which entitled him to be eligible for employer-provided health insurance premiums. *In re Benefits by Scott Sletten, 2007 WL 4472476 (Minn. App. 12/24/07). www.lawlibrary.state.mn.us/archive/ctappub/0712/opa062263-1224.htm* • Workers Compensation; Period of Claim. A determination by a workers compensation judge that an employee’s deteriorating knee condition was not work-related was remanded for reconsideration under the Gillette doctrine when the period of work covered by his claim was determined to be in question. The Supreme Court held that the employee’s work-related injury claim under the Gillette principle could be construed as covering a two-decade period of time when he was working as an appliance repairman and incurred a knee injury, rather than limited to a subsequent five-year period when he had a desk job and the knee injury was resolved. Therefore, the compensation judge’s determination that the deteriorated condition of the knee was not work-related was remanded for reconsideration in light of Gillette. *Petrus v. Minnegasco, Inc., 741 N.W.2d 600 (Minn. 2007). www.lawlibrary.state.mn.us/archive/supct/0712/ORA071534-1121.htm* • Whistleblower; Complaint Did Not Implicate Violation of Law. Continuing a trend of adverse results for whistleblowers in Minnesota, a parts worker at an automobile dealership lost his whistleblower case when the Court of Appeals determined that his complaints did not implicate an actual or suspected violation of law. The employee discovered a mistaken data entry regarding his personal vehicle and attempted to correct it in the dealership’s data base. The claimant was later fired for insubordination, about nine months after he complained to the Attorney’s General Office and the Better Business Bureau. Upholding summary judgment, the Court of Appeals held that his whistleblower claim was not actionable because the complaints he made did not implicate an actual or suspected violation of law and, therefore, were not protected under the Whistleblower Statute, Minn. Stat. §181.932. *French v. Brookdale Motor Sales, Inc.,* 2007 WL 4303715 (Minn. App. 12/11/07) (unpublished). www.lawlibrary.state.mn.us/archive/ctapun/0712/opa062252-1211.htm • Unemployment Compensation; Untimely Appeal. A request for reconsideration of a denial of unemployment compensation benefits submitted one day late was ruled untimely. The “unambiguous” postmark date of the request for reconsideration was 31 days after the notice of denial and thus beyond the 30-day appeal period, regardless of any “mitigating circumstances” claimed by the employee. *Schuna v. Reynolds and Reynolds Partnership,* 2007 WL 4394638 (Minn. App. 2007) (unpublished). www.lawlibrary.state.mn.us/archive/ctapun/0712/opa062287-1218.htm • Unemployment Compensation; Untimely Appeal. Another untimely employee lost her claim for unemployment compensation benefits when she filed an appeal of the initial denial of benefits after the 30-day deadline had expired. She claimed this was justifiable because she was not aware that she needed to file an appeal since she had only worked at her most recent employer for one week. The court ruled there was no “jurisdiction” to review her untimely appeal and her benefits were denied. *Stewart v. Executive Affiliates, Inc., 2007 WL 4570255 (Minn. App. 2007) (unpublished). www.lawlibrary.state.mn.us/archive/ctapun/0712/opa062467-1224.htm* • Unemployment Compensation; Misconduct. An employee who had “chronic” lateness problems at work was properly denied unemployment compensation benefits on grounds of “misconduct.” Because the employee was “warned about the tardiness and told that it could be grounds for dismissal,” his continued lateness for work warranted his disqualification for unemployment compensation benefits. *Czerniak v. ATK Ordinance & Ground Systems, 2007 WL 4394456 (Minn. App. 2007)(unpublished). www.lawlibrary.state.mn.us/archive/ctapun/0712/opa062221-1218.htm* —Marshall H. Tanick Mansfield Tanick & Cohen, PA
February 2008 In this month's "Notes & Trends: Bankruptcy Criminal Law Employment & Labor Law Environmental Law Federal Practice Intellectual Property Juvenile Law Real Property Tax	ENVIRONMENTAL LAW ADMINISTRATIVE ACTION • MPCA Approves New Water Quality Standards. The Minnesota Pollution Control Agency (“MPCA”) Citizens’ Board voted on December 18, 2007 to adopt a number of changes to the MPCA’s rules governing water quality. Among other things, the Board ordered that current Minn. R. Ch. 7050 be split into two separate chapters. The revised chapter 7050 will include beneficial use classifications, numeric and narrative water-quality standards, nondegradation guidelines, methods for determination of site-specific criteria, and other provisions related to ambient water quality standards. Newly created chapter 7053 will contain treatment requirements for discharges of sewage, industrial wastes and other wastes, effluent limits, requirements for aquaculture facilities, and related provisions. Other significant aspects of the new rules include the establishment of new ecoregion-based eutrophication standards; the creation of a 1 mg/L phosphorous treatment and removal standard for municipal and industrial wastewater treatment facilities that expand or are built new after May 1, 2008 and that discharge more than 1,800 pounds of phosphorous per year; the adoption of water quality standards for two herbicides, acetochlor and metochlor; and the reclassification of certain water use classes within Classes 1, 2, 3 and 7. Finally, the Board’s order repealed Minn. R. 7056.0010 - .0040 and Minn. R. 7065.0010 - .0260. The new rules are not effective, however, until the U.S. Environmental Protection Agency reviews and approves them. —Bill Hefner The Environmental Law Group
February 2008 In this month's "Notes & Trends: Bankruptcy Criminal Law Employment & Labor Law Environmental Law Federal Practice Intellectual Property Juvenile Law Real Property Tax	FEDERAL PRACTICE JUDICIAL LAW • Rule 68; Offer of Judgment; Putative Class Action. Judge Schiltz rejected an attempt by the defendants to “pick off” the claims of named plaintiffs through the use of a Fed. R. Civ. P. 68 offer of judgment in a putative class action, finding that plaintiffs’ claims were not mooted because the offer of judgment provided no relief to the putative class. *Harris v. Messerli & Kramer, P.A., 06-CV-4961 (PJS/JJG) (D. Minn. 01/02/08). • Effect of Protective Order. Chief Judge Rosenbaum rejected plaintiffs’ suggestion that the protective orders in place might limit their ability to plead their claims with the necessary level of particularity, finding that parties could provide any necessary information to the court “without fear of sanction.” In Re Mirapex Prod. Liab. Lit., ___ F.R.D. ___ (D. Minn. 2007). • Requests for Attorney Fees. Judge Kyle awarded the prevailing plaintiff in a Section 1983 excessive force action almost $459,000 in attorney fees and costs, approving hourly rates as high as $400 per hour. Hixon v. City of* *Golden Valley, 2007 WL 4373111 (D. Minn. 12/13/07). Affirming a decision by Judge Davis, the 8th Circuit held that the entry of a preliminary injunction did not make the plaintiff a “prevailing party” entitled to attorney fees under 42 U.S.C. §1988. Advantage Media, L.L.C. v. City of* *Hopkins, ___ F.3d ___ (8th Cir. 2008). Judge Frank denied previously disqualified counsel’s request for more than $1.1 million in attorney fees and expenses, finding that counsel’s “egregious ethical lapse” and “unethical conduct” precluded any fee award, and that counsel also had failed to establish that its work advanced the plaintiffs’ claims. Arnold v. Cargill, Inc., 2007 WL 4287677 (D. Minn. 12/04/07). • Sanctions Motions. After sanctioning the defendant previously, Judge Davis entered a default judgment as a sanction for the defendant’s repeated violations of court orders. Global Traffic Technologies, LLC v. Tomar Electronics, Inc., 2007 WL 4591297 (D. Minn. 12/27/07). Judge Frank denied without prejudice defendants’ motion for sanctions premised on alleged inaccuracies in certain testimony as “premature,” but invited defendants to raise the issue in the course of their pretrial motions. Kia Motors America, Inc. v. Autoworks Distrib.,* 2007 WL 4372954 (D. Minn. 12/07/07). Judge Montgomery denied defendant’s request for sanctions under 28 U.S.C. §1927 and/or Fed. R. Civ. P. 37(c)(2), finding an absence of the “culpability” required for Section 1927 sanctions, and that defendant’s failure to comply with Local Rule 37.2 barred any award of sanctions under Rule 37(c)(2). *Schwarz Pharma, Inc. v. Paddock Labs., Inc., 2007 WL 4436875 (D. Minn. 12/18/07). The 8th Circuit found no abuse of discretion in a district court’s decision not to sanction one defendant for spoliation of evidence. Bakhtiari v. Lutz, 507 F.3d 1132 (8th Cir. 2007). • Removal and Remand. Judge Doty remanded an action sua sponte, finding that even though the complaint sought more than $75,000, plaintiffs’ Fed. R. Civ. 26(a)(1) disclosures claimed damages far less than the jurisdictional threshold. Cason v. Morisseau, 2008 WL 60418 (D. Minn. 01/02/08). Judge Doty granted plaintiffs’ motion to remand, finding that plaintiffs’ various claims for less than $75,000 could not be aggregated to meet the jurisdictional minimum. Tiffany v.* *Northwestern Mut. Life Ins. Co.*, 2007 WL 4372945 (D. Minn. 12/07/07). Judge Kyle rejected defendants’ complete preemption argument and granted plaintiffs’ motion to remand, but denied plaintiffs’ motion for attorney fees under 28 U.S.C. §1447(c), finding that the defendants had “an objectively reasonable basis for seeking removal.” Hunter v. Canadian Pacific Ry. Ltd.*, 2007 WL 4118936 (D. Minn. 11/16/07). —Josh Jacobson* Law Office of Josh Jacobson
February 2008 In this month's "Notes & Trends: Bankruptcy Criminal Law Employment & Labor Law Environmental Law Federal Practice Intellectual Property Juvenile Law Real Property Tax	INTELLECTUAL PROPERTY JUDICIAL LAW • Patent Infringement; “Fluid Seals.” Judge Montgomery denied summary judgment because leaky o-rings were enough to create an issue of fact in this patent infringement case. 3M sued Clorox, Brita, and Sears for infringing a patent related to water filters having connections “free of interruption by fluid seals.” Defendants argued that their filters do not infringe because the connections are interrupted by o-ring seals. The Court interpreted the term “fluid seal” as “a structure that operates as a tight or complete closure against the passage of a fluid.” 3M defeated the summary judgment motion by submitting test results showing that the defendants’ filters, despite having an o-ring, leaked fluid, i.e., did not operate as a tight or complete closure against the passage of a fluid. *3M Innovative Properties Co. v. Clorox Co., No. 06-cv-3540, 2007 U.S. Dist. LEXIS 92483 (D. Minn. 12/17/07). • Patent Infringement; Limitations of Summary of Invention. Judge Schiltz did not limit a patent phrase based on the Summary of the Invention. WIMCO sued Lang for infringing a patent covering drain filters. Lang’s drain filter does not include a standpipe. Lang argued that the patent claim phrase “filtered drain” should be defined to include a standpipe because the patent’s “Summary of the Invention” and preferred embodiments all describe the “filter” as having a standpipe. Judge Schiltz disagreed because the Summary of the Invention and the preferred embodiments did not expressly limit* the invention to a drain filter having a standpipe. Further, some claims specifically required the filter to include a standpipe, but others did not—suggesting that the latter claims were broader in scope than the former. *Wimco, LLC v. Lange Indus., No. 06-cv-3565, 2007 U.S. Dist. LEXIS 92502 (D. Minn. 12/14/07). • Patent Claim Construction; “Consisting Essentially Of.” In another patent claim construction, Judge Ericksen defined the phrase “consisting essentially of” to include the components listed in the claim and other unlisted ingredients that do not materially affect the basic and novel properties of the patent claim. Biopolymer Engineering sued Immunocorp over patents related to glucan compositions. Immunocorp argued that the phrase “consisting essentially of,” a phrase having special meaning in patent law, includes the listed components, but no others. The court disagreed and held that Immunocorp’s definition conflicted with Federal Circuit law, which had previously interpreted the same claim phrase. The court adopted the Federal Circuit’s definition. Biopolymer Eng’g, Inc. v. Immunocorp, No. 05-cv-2972, 2007 U.S. Dist. LEXIS 94207 (D. Minn. 12/21/07). —Tony Zeuli* —Tom Leach Merchant & Gould
February 2008 In this month's "Notes & Trends: Bankruptcy Criminal Law Employment & Labor Law Environmental Law Federal Practice Intellectual Property Juvenile Law Real Property Tax	JUVENILE LAW JUDICIAL LAW • Termination of Parental Rights; Petition Amended on Day of Trial. In an unpublished case of the Court of Appeals, a father challenged the district court’s order terminating his parental rights to his daughter. The dispute arose out of a situation where, on the day of trial, the county moved to amend its petition to add abandonment and palpable unfitness as statutory bases to terminate the father’s parental rights. The father’s attorney objected, but the district court granted the motion to amend the petition without allowing the father a continuance to prepare a defense. The Court of Appeals reversed the district court, stating that because the father was given virtually no notice of the county’s amendment and had no time to modify his defense, the county’s amendment to the petition should not have been allowed. Also, the court went on to hold that because the county made no effort to reunify the father and daughter, the record lacked clear and convincing evidence supporting the termination of the father’s parental rights. On those bases, the Court of Appeals reversed the district court. *In the* *Matter of the Welfare of the Child of: N.H. and R.G., Parents**, A07-1106 (Minn. App. 12/04/07). www.lawlibrary.state.mn.us/archive/ctapun/0712/opa071106-1204.htm* • Assisted Reproduction; Gestational Surrogacy Agreement. In an unpublished case which appears to be the first significant decision by an appellate court in the state of Minnesota regarding assisted reproductive technology, the Court of Appeals affirmed the trial court’s enforcement of a gestational surrogacy agreement. In this arrangement, a man entered into a gestational surrogacy agreement, governed by Illinois law, with his niece, who resided in the state of Minnesota. Medical specialists fertilized an egg from an anonymous donor with the intended father’s sperm and implanted the fertilized egg into the niece. After the child was born, the niece did not tell the man of the child’s birth or whereabouts, and the subsequent litigation was then commenced by the intended father in Minnesota. The district court, after a lengthy trial, concluded that the parties’ agreement was legally enforceable under Minnesota law and ordered placement of the child with the intended father and sperm donor. Despite Minnesota having no laws addressing such agreements, the trial court found such an agreement did not violate any articulated public policy of this state. The Court of Appeals affirmed that analysis of the district court, holding that there was no fraud or undue influence in the formation of the contract. *In Re the Paternity and Custody of: Baby Boy A, A07-452 (Minn. App. 12/11/07). www.lawlibrary.state.mn.us/archive/ctapun/0712/opa070452-1211.htm* • Child Abuse; Duty of Homeowner. The Minnesota Supreme Court addressed the issue of whether a homeowner has a duty to protect a child invitee from sexual abuse by another adult resident in the home and whether the child has the legal capacity to assume the risk of that abuse. In this case, a minor teenager resided on a horse farm owned by the appellant. During that time, the minor entered into a sexual relationship with the owner’s adult live-in male friend who was subsequently convicted of criminal sexual conduct stemming from that relationship. The minor brought a negligence action, asserting that the adult owner of the home failed to protect her from the sexual abuse. The district court granted partial summary judgment, dismissing the negligence claims against the owner, holding that the owner had no duty to protect the minor and that the minor assumption of the risk of sexual abuse by the minor barred her claims against the owner. The Court of Appeals reversed that decision, and the Supreme Court granted the petition for review. The Supreme Court affirmed the Court of Appeals, but on slightly different grounds. The Supreme Court held that a homeowner’s provision of room, board, and a stable home environment to a child for an entire summer gave rise to a special relationship that imposed a duty to protect the child from foreseeable sexual abuse by a resident adult. The primary-assumption-of-the-risk theory was held not to apply to a claim that a homeowner negligently failed to protect a resident child from sexual abuse by a resident adult. *Bjerke v. Johnson and Bohlman,* A06-117 (Minn. 12/27/07). www.lawlibrary.state.mn.us/archive/supct/0712/OPA060117-1227.htm • Adoption; Contact Agreement. In an unpublished Court of Appeals decision, that court reviewed a district court decision to vacate a contact agreement entered into between a birth father and the adoptive parents of his biological child. The child’s biological mother and the biological father entered into an arrangement with a private adoption agency to place their child with the adoptive parents. The biological parents’ rights were terminated and the adoptive parents then legally adopted the child. Approximately one month before the parental rights were terminated, the biological father entered into a contact agreement with the adoptive parents pursuant to Minn. Stat. §259.58. This agreement provided that after the respondents adopted the child, the biological father could continue to have limited contact with the child under the terms of this agreement. The contact agreement placed certain duties upon each of the parties. The adoptive parents were required to keep the birth father informed of important events in the child’s life, allow the child to visit every third weekend, and allow him to take the child to visit his family in Panama. Within months of the signing of the agreement, a conflict arose between the adoptive parents and the father regarding his contact with the child. This resulted in the parties agreeing to amend the contact agreement. Disagreement between the parties continued, however, culminating when the birth father moved in district court to enforce his rights under the contact agreement. In response, the adoptive parents requested termination of the contact agreement. The district court granted the adoptive parents’ request, and the Court of Appeals affirmed. The Court of Appeals found sufficient support in the record to affirm the district court actions. The birth father was found to have made threats to disrupt the adoption; he failed to comply with and abide by the contingencies in the contact agreement such as abstaining from consumption of alcohol, failed to attend substance abuse support group meetings, failed to submit requested random breath analysis, and refused to allow the adoptive parents to inspect and approve his living environment. He also failed to attend the required adoption class or obtain adoption counseling in order to learn more about the process of adoption. He also was found to have made verbal threats to disrupt the adoption, including the threat to go to the adoptive parents’ home and remove the child. The Court of Appeals concluded that the record supported the vast majority of the district court’s findings that the biological parent violated multiple provisions of the contact agreement. *C.O. v. John Doe, A07-0826 (Minn. App. 11/20/07). www.lawlibrary.state.mn.us/archive/ctapun/0711/opa070826-1120.htm* —Gary A. Debele Walling, Berg & Debele PA
February 2008 In this month's "Notes & Trends: Bankruptcy Criminal Law Employment & Labor Law Environmental Law Federal Practice Intellectual Property Juvenile Law Real Property Tax	REAL PROPERTY JUDICIAL LAW • Judicial Lien; Marital Lien; Priority of Liens. A dissolution decree conveyed the marital homestead to the husband in exchange for a settlement payment obligation to the wife secured by the homestead. The husband later refinanced the prime mortgage on the homestead with a new mortgage. After the loan closed, but before the new mortgage was recorded, the wife informed the bank of her marital lien on the property and issued a quit-claim deed to the husband, which reserved her marital lien. The dissolution decree and the quit-claim deed were recorded before the new mortgage. The bank later took a second mortgage on the property from the husband. The wife brought a declaratory judgment action against the bank asserting priority of her martial lien over the bank’s second mortgage. The district court held that the dissolution decree created a valid lien on the property for the wife with priority over the bank’s second mortgage. On appeal, the bank argued that the wife was required to subordinate her marital lien to the bank’s second mortgage pursuant to the dissolution. The Court of Appeals rejected this argument because the dissolution decree required the wife to satisfy the martial lien only on payment of the settlement obligation. Because the settlement obligation was not satisfied, the wife had no obligation to satisfy her lien. The Court of Appeals affirmed that a court order that expressly secures a monetary award with an interest in real property establishes a valid lien on the property. The Court of Appeals affirmed that a marital lien has priority over a security interest later recorded by creditor with notice of the marital lien. The court held that the bank had constructive and actual notice of the wife’s marital lien before it obtained the second mortgage, and therefore the marital lien had priority over the bank’s second mortgage. *Simons v. Shiltz, 741 N.W.2d 907 (Minn. App. 2007). www.lawlibrary.state.mn.us/archive/ctappub/0712/opa061999-1204.htm* • Right of Access; Inverse Condemnation. A property owner sought to construct a gas station on a platted outlot abutting a County State Aid Highway (CSAH) with a preexisting driveway between the outlot and the CSAH. The city issued a conditional use permit allowing driveway access to the CSAH. The owner received a building permit from the city for a gas station on the outlot, including language that the outlot was “on proposed street off [the CSAH].” The owner commenced construction and paved the existing driveway from the lot to the CSAH. However, the county did not approve the driveway access and demanded that the unauthorized driveway be removed. The owner brought suit against the county seeking injunctive relief and damages for unlawful taking without compensation. The district court ruled that: (1) the county lacked the ability to regulate the CSAH outside of the statutory authority provided in Minn. Stat. §160.18; (2) §160.18 is not self-executing and requires adoption of an ordinance to regulate public roads; (3) regulation of road access pursuant to §160.18 is an “official control” as defined by Minn. Stat. §394.22; (4) as an “official control,” the county’s failure to follow public-notice hearing procedures and failure to adopt an ordinance resulted in a taking of the property owner’s rights without compensation. The Court of Appeals reversed and held that the county was exercising its legitimate and valid police power for public safety when it denied driveway access to conform to MNDOT requirements. The Court of Appeals also ruled that §160.18 does not require an enabling ordinance to be adopted for road-access regulation to be effective. The Court of Appeals also held that regulation of access to the CSAH was not an “official control” under Minn. Stat. §394.22, subd. 6 and §394.26 because the road-access regulation was not for the purpose of fulfilling the general objectives of a comprehensive plan. The Court of Appeals reasoned that if the Legislature had intended public-road access to be a part of a comprehensive plan, it would have used those words in the statute, but the Legislature did not. Finally, the Court of Appeals held that because the property abuts a public road, the property owner is entitled to compensation if it has been deprived of reasonable access to that road. The Court of Appeals remanded to the district court for a determination of whether the property owner has other reasonable access to the CSAH. *C and R Stacy, LLC v.* *County* of *Chisago, 2007 WL 4303760 (Minn. App. 2007). www.lawlibrary.state.mn.us/archive/ctappub/0712/opa062302-1211.htm* • Cancellation of Purchase Agreement; Slander of Title. Seller and buyer entered a purchase agreement for the sale of commercial property for development. Under the purchase agreement, buyer had 120 days to secure the necessary government approvals for construction with closing to take place within 60 days after the 120-day period. Seller notified buyer of its obligation to close under the deadline in the purchase agreement, but no closing occurred. Seller served a notice of cancellation under Minn. Stat. §559.21, but the buyer did not close and took no action to oppose the cancellation. On the last day to close under the cancellation, buyer assigned its rights under the purchase agreement to a third party. Seller later entered into a purchase agreement with a new buyer. Buyer’s assignee recorded an adverse claim against the property 11 months after the purchase agreement was canceled. Seller and the new buyer agreed to split the costs of quieting title to remove the adverse claim. The district court held that the purchase agreement was properly canceled and that buyer’s assignee slandered seller’s title by recording the adverse claim. The district court awarded the seller costs and attorney fees against the buyer’s assignee and appointed a special master to determine the specific amount. The Court of Appeals affirmed the district court’s determination that the purchase agreement was properly canceled because the buyer waived its right to oppose cancellation by failing to take action within the time allowed by §559.21. The Court of Appeals also affirmed the district court’s holding that buyer’s assignee slandered seller’s title because the assignee knew the purchase agreement had been canceled when the buyer’s assignee recorded the adverse claim. The court noted that costs and attorney fees were incurred because of the slander of title and are considered special damages. The assignee asserted that seller failed to show malice by the assignee because the assignee consulted with an attorney before recording the adverse claim. The Court of Appeals held that the mere assertion of reliance on attorney’s advice without disclosure of the basis for that reliance or facts supporting the attorney’s advice is insufficient to rebut the deliberate recording of a false statement. The assignee provided no evidence of the information he provided to the attorney or that the assignee fully informed the attorney about the assignee’s claimed interest in the property and the cancellation of the purchase agreement. However, the Court of Appeals reduced district court’s order for attorney fees by 50 percent because the seller contracted with a third party to assume 50 percent of the costs and fees for bringing the quiet title action. *Brickner v. One Land Development Co., 2007 WL 4472288 (Minn. App. 2007). www.lawlibrary.state.mn.us/archive/ctappub/0712/opa061940-1224.htm* • Right of First Refusal; Statute of Limitations. A real property owner with two adjacent parcels sold one parcel and a right of first refusal on the remaining parcel. Both the deed and the right of first refusal were recorded. The right of first refusal was twice assigned. The grantor of the right of first refusal subsequently conveyed the remaining parcel, by warranty deed, along with a statement that the right of first refusal had lapsed and the grantor could not locate the original right-holder. The grantor did not provide notice of the sale to the original holder of the right of first refusal or his assigns. The holder of the right of first refusal did not discover the sale until more than 11 years after the property was sold. Upon discovery of the sale, the holder of the right of first refusal brought a breach of contract and declaratory judgment action against the grantor and the current owner of the property. The district court granted summary judgment in favor of grantor and the current owner holding that the breach of contract claim failed as a matter of law as time-barred under the six-year statute of limitations in Minn. Stat. §541.05, subd. 1. The Court of Appeals affirmed that the breach of contract action was time-barred by the statute of limitations. The court reasoned that when the property was sold, the holder of the right of first refusal could have initiated a breach of contract action and the action would have survived a motion to dismiss. Therefore, the claim expired six years after the sale. The holder of the right of first refusal argued that the court should apply the “discovery rule” to toll the statute of limitations until the right-holder knew or reasonably should have known that the property had been sold. The court rejected the “discovery rule” in favor of the “damage rule” which states that ignorance of the damage does not toll the statute of limitations unless the action involved a continuing negligence, trespass, or fraud by the defendant. The court also rejected the right-holder’s argument that the Marketable Title Act (MTA) provides the appropriate statute of limitations of 40 years because the MTA applies only against a claim of title based upon a source of title. The court held that a right of first refusal is a contractual right, and even when that right ripens into an option to purchase, it is only a right in personam and does not convey title. Therefore, the court concluded the MTA does not apply because a right of first refusal is not based on a source of title. The Court of Appeals reversed the district court’s denial of a declaratory judgment for the holder of the right of first refusal because the breach of contract adjudication based on the statute of limitations does not determine whether the right-holder can exercise the right of first refusal. The court reasoned that a declaratory judgment would clarify uncertainty between two inconsistent documents; the right of first refusal and the document recorded with the deed stating that the right of first refusal had lapsed. *Hempel v. Creek House Trust2007 WL 4564140 (Minn. App. 2007). www.lawlibrary.state.mn.us/archive/ctappub/0712/opa062473-1231.htm* —Michael Kreun Beisel & Dunlevy
February 2008 In this month's "Notes & Trends: Bankruptcy Criminal Law Employment & Labor Law Environmental Law Federal Practice Intellectual Property Juvenile Law Real Property Tax	TAX JUDICIAL LAW • Income Tax: Intent to Change Domicile. The Minnesota Tax Court held that a retired physician, who owned homes and vehicles in both Minnesota and Florida, was a domiciliary of Minnesota subject to payment of personal income taxes as a Minnesota resident because he failed to prove his intent to change his domicile to Florida. This conclusion was based on multiple nonexclusive statutory factors, including the taxpayer’s application for homestead status on a lake in Minnesota, the maintenance of the taxpayer’s medical license, the taxpayer’s possession of Minnesota hunting and fishing licenses for the time period in question, and the evidence that the majority of the taxpayer’s financial activities took place in Minnesota. *Dreyling v. Commissioner of Revenue, No. 7721-R, 2007 WL 408814 (Minn. T. Ct. 11/15/07). • Income Taxes: Classifying Undistributed Earnings of S Corporation. The Minnesota Court of Appeals held that undistributed earnings of a Subchapter S Corporation that was retained for a business purpose was not income to a minority shareholder for the purpose of establishing his child-support obligation; however, the minority shareholder had the burden of showing that the earnings were retained for a business purpose. HubbardCounty* Health and Human Services, Beth A. Hadrava v. Zacher*, A06-2228, 2007 WL 4303704 (Minn. App. 12/11/07). www.lawlibrary.state.mn.us/archive/ctappub/0712/opa062228-1211.htm* • Real Property: Public Charity Exemption; Daycare Facility. The Minnesota Supreme Court held that a daycare facility owned by Rainbow Childcare Center was not exempt from real property taxation as an institution of purely public charity under Minn. Stat. §272.02, subd. 7. The Supreme Court held that whether the recipients of the “charity” are required to pay for the assistance received was critical and any taxpayer claiming the exemption had to show compliance with factor 3 of the decision in North Star Research Institution v. County of Hennepin, 236 N.W.2d 754, 757 (Minn. 1975) or be ineligible for exemption. Therefore, a taxpayer requesting exemption must provide goods or services free or at considerably reduced rates to qualify as a “purely public charity” exempt from property taxes. If the entity charges close to market rates for services, that may be evidence it is not giving anything away, “a value fundamental to the concept of charity.” Writing for three dissenters, Justice Hanson wrote, “By focusing only on the fact that a charity charges a fee, the majority dilutes the goal of tax exemption. That goal is to encourage charitable services … .” The dissent pointed out that Rainbow “has operated at a loss for its entire existence.” *Under the Rainbow Childcare Center, Inc. v.* *County* of *Goodhue, A07-468, 741 N.W.2d 880 (Minn. 12/06/07). www.lawlibrary.state.mn.us/archive/supct/0712/OPA070468-1206.htm* • Real Property: Public Charity Exemption; Nonprofit Publishing House. The Minnesota Supreme Court reversed the Tax Court and granted Afton Historical Press an exemption from property taxes for years payable 2004, 2005, and 2006. In reversing Afton Historical Society Press v. County of Washington, C5-04-2979, C4-05-3521, and C8-06-1961, 2006 Minn. Tax LEXIS 21 (Minn. T. Ct. 07/19/06), the Supreme Court indicated that the factors set forth in Northstar Research Institute v. County of Hennepin, 736 N.W.2d 754, 757 (Minn. 1975) were not applicable in every case on property tax exemptions. Rather, the test to be applied when there is commercial use of otherwise exempt property is whether the commercial use is incidental to the charitable use. Because Afton’s use of its real property for commercial purposes was incidental to its use for charitable purposes, the Court concluded that the property qualified for exemption during the years at issue. *Afton* *Historical Society Press v.* *County* of *Washington, A07-3, 2007 WL 4340873 (Minn. 12/13/07). www.lawlibrary.state.mn.us/archive/supct/0712/OPA070003-1213.htm* • Procedure: Untimely Appeal. The Minnesota Tax Court dismissed the taxpayer’s Petition for Lien and Levy Action and their Final Notice and Demand for Payment as being untimely and therefore the court lacked subject matter jurisdiction. The court reiterated that a levy or collection action or subsequent administrative actions by the commissioner, such as correspondence, telephone calls and meetings with the taxpayer, neither constitute appealable orders nor operate to extend the time of limitations for filing an appeal. See Wierschke v. Commissioner of Revenue, No. 4600, 1986 WL 9379 (Minn. T. Ct. 10/09/86). Under the facts, the taxpayer did not appeal his order but fully paid the levy and collection notice and then attempted to appeal after the appeal time had expired. *Jeremy & Crolyn Gjovik, f/k/a Premier Detail, Inc. v. Commissioner of Revenue, No. 7940-R, 2007 WL 4088172 (Minn. T. Ct. 11/14/07). • Procedure: Amendment of Real Property Petition; Constitutional Claims. The Minnesota Tax Court allowed American Crystal Sugar Company to amend its petition to include constitutional claims such as equal protection but bifurcated the trial on valuation and discrimination into two separate and distinct parts. The constitutional claims will be considered after the valuation controversy is resolved to allow the county adequate time to conduct the trial on valuation and respond to discovery on the constitutional claims. American Crystal Sugar Company v. County of Polk, C1-05-574, C3-05-575, CX-06-373, and C4-06-367, 2007 WL 4531027 (Minn. T .Ct. 11/28/07). • Individual Income Tax: Untimely Appeal; Summary Judgment for Commissioner. The Minnesota Tax Court dismissed the taxpayer’s appeal for 2002 as being untimely made since it was filed 11 months after the date of the order. The court also granted the commissioner’s motion for summary judgment and rejected the taxpayer’s contentions that (1) the Internal Revenue Code does not define the word “income”; (2) the U.S. Supreme Court defines income under federal law only as it applies to corporations; and (3) she has no “known legal duty” to pay taxes. Further, the court denied the taxpayer’s due process claim for failure of support on a legal or factual basis; and indicated the Fair Debt Collections Act did not apply to Minnesota in its collection of taxes. See* 16 U.S.C. §1692a(6)(B). *Mariann Zanardo v. Commissioner of Revenue, No. 7871R (Minn. T.Ct. 10/08/07). • Real Property Tax: 60-Day Rule. The Minnesota Tax Court dismissed the taxpayer’s property tax petition for the year 2006 for failure to provide financial information required under Minn. Stat. §278.05, subd. 6(a) (“60-Day Rule”). The court rejected the taxpayer’s contentions that the 60-Day Rule did not apply to an exemption challenge even though the property was income-producing. Additionally, the fact that the attorney was unfamiliar with the 60-Day Rule did not excuse the taxpayer, since the statute requires proof of the petitioner’s lack of familiarity with the rule, not that of the petitioner’s attorney. Croixdale, Inc. v.* *County* of *Washington, C7-07-2870, 2007 WL 2820284 (Minn. T. Ct. 09/25/07). • Procedure: “Erie Transfer” Requirement; Preservation of Email Records. The Minnesota Tax Court denied summary judgment on an unconstitutional determination issue since the jurisdictional “Erie Transfer” under Erie Mining Co. v. Commissioner of Revenue, 343 N.W.2d 261 (Minn. 1984) had not been done. Further, the court warned the parties about not deleting any emails when a property tax petition is pending, even though they may be able to show adequate paper records contained the pertinent information. Here, the county was unable to determine whether the paper records were adequate, complete, or correct because the underlying data had been deleted from the taxpayer’s computers, if it ever existed. Minnesota* *Sports Federation v.* *County* of *Anoka, CX-05-4138 and C5-06-4090, 2007 WL 2820417 (Minn. T. Ct. 09/25/07). • Procedure: Costs and Disbursements. The Minnesota Tax Court granted the motion for costs and disbursements of the county, awarding statutory costs of $200 and expert witness fee of $2,187.50 for 8.75 hours of testimony at a rate of $250 per hour. Sears, Roebuck & Co. v.* *County* of *Dakota, C4-04-7619 and C8-05-7374, 2007 WL 4089352 (Minn. T. Ct. 11/16/07). • Income and Other Taxes: Standing; JOBZ Program. The Minnesota Court of Appeals affirmed a Ramsey County District Court decision that taxpayers challenging the JOBZ program lacked standing to challenge the constitutionality of the program since they could not show “actual injury-in-fact.” To establish standing, a taxpayer must have a sufficient personal stake in the controversy, which exists if the taxpayer has suffered an “injury-in-fact.” That is, taxpayer suits in the public interest are generally dismissed unless the taxpayers can show some damage or injury to the individual bringing the action which is special or peculiar and different from damage or injury sustained by the general public. Here the taxpayers challenged the JOBZ Program solely on their status as taxpayers. They had neither applied for nor been rejected in the program. Taxpayers without personal or direct injury may still have standing, but only to maintain an action that restrains the “unlawful disbursements of public money or illegal action on the part of public officials.” However, a party seeking to challenge a law on the basis of its status as a taxpayer must show more than a disagreement with the discretionary decision in order to invoke standing where the taxpayer perceives to be an illegal expenditure or waste of tax monies. Rather, the proper party to challenge an exemption on behalf of the public and in the public’s interest is a governmental official, not a private citizen. Alec G. Olson v. State of* *Minnesota, et al.**, A06-2324, 2007 WL 4394853 (Minn. App. 12/18/07). www.lawlibrary.state.mn.us/archive/ctappub/0712/opa062324-1218.htm* • Sales Tax: Fuel Used by Pipeline Company. The Ramsey County District Court held that the taxpayer pipeline company was not exempt from sales and use taxes on shipper’s gas which was diverted from the pipeline and consumed in taxpayer’s compressor engines in Minnesota and did not qualify for the industrial production exemption or the capital equipment refund. First, the court concluded that the consumption of gas as compressor fuel met the three statutory requirements for imposing a use tax under Minn. Stat. §297A.14, subd. 1 (now Minn. Stat. §297A.63, subd. 1 (2006)). That is, the court concluded that the gas was “used,” that the pipeline company purchased the compressor fuel, and that the purchase was for consumption in the compressors located in Minnesota. Second, the court held that the Commerce Clause was not limited to an interpretation that was frozen as of 1967 but rather the constitutional exemption referred to the federal law (and the current U.S. Supreme Court’s interpretation of the Commerce Clause). See Minn. Stat. §297A.67, subd. 24 (2006). Third, the imposition of a use tax upon the compressor fuel did not violate the Commerce Clause since there was no risk of double taxation, no facts to demonstrate discrimination against interstate commerce, the tax was fairly apportioned, no other state could tax the same gas and therefore, there was no unfair apportionment, and there was a fair relationship between the tax and the benefits that Minnesota confers on the pipeline company. Fourth, the court held that there was no discrimination under the Equal Protection Clause, although electrical utilities were exempt and pipelines were not, since there was a rational basis for the dividing line. Fifth, there was no Supremacy Clause violation since there was no conflict between the FERC and state laws. Sixth, the court denied the pipeline’s claims for the capital equipment refund since the equipment was not used “primarily” for the refining of the gas and thus did not qualify as “capital equipment” pursuant to Minn. Stat. §297A.68, subd. 5 (2006). *Great Lakes Transmission Limited Partnership v. Commissioner of Revenue, C7-06-012756 (Ramsey D.Ct. 12/13/07). • Real Property: Valuation of Personal Residence. The Minnesota Tax Court reduced the assessor’s estimated market value for the residential property as of January 2, 2006 from $43,400 to $29,600 for taxes payable in 2007. The pro se taxpayer did not present an appraisal but was a former assessor who testified that the property was purchased for $20,000 in 2005, 85 percent of the property was unusable wetlands, and the purchase was at arm’s length. In the court’s determination, the assessor introduced no evidence refuting the taxpayer’s claims. Thomas J. Wottreng v.* *County* of *Todd, No. 77-CV-07-647, 2007 WL ___ (Minn. T. Ct. 12/19/07). • Real Property Tax: 60-Day Rule. The Minnesota Tax Court dismissed the taxpayer’s petition because it failed to provide the net rentable area for the property even though it had provided a lease. The taxpayer did not provide a 2000 amended lease for an addition of 22,000 square feet until the filing of the motions in June of 2007. Moreover, the court dismissed the taxpayer’s claim that the 60-Day Rule was unconstitutionally vague. A plain reading of the statute requires a taxpayer to provide the net rentable area, i.e., the square footage of the property subject to dispute. Kohl’s Department Stores, Inc. v. County of Stearns, No. 73-CO-06-2028, 2007 WL ____ (Minn. T. Ct. 12/18/07). • Social Security “No-Match Letters.” The court enjoined the Social Security Administration’s (“SSA”) proposed language in its “no-match letters” to be issued in 2007, which mentioned possible liability under federal immigration laws. The SSA also planned to send employers receiving “no-match letters” a general letter from the Homeland Security Department explaining the possible federal immigration law liability as well as describing a “safe harbor provision” meant to protect employers who attempted to rectify the social security number no-match problem. The revised “no-match letters” were the result of a new rule adopted by the SSA. The court granted a preliminary injunction to prevent implementation of the rule, citing the alleged problems with the accuracy of the SSA’s databases used to conduct the social security number matching process and the potential cost to employers, particularly in the small business sector, of complying with the new rule. The government subsequently filed an appeal and the lower court also granted a four-month stay for the agencies to develop or amend the regulations on employer notifications to the company “no-match letters” annually sent to employers. AFL-CIO v. Chertoff*, No. 3:07-cv-4472-CRB (D.C. Cal. 10/10/07). • Estate Tax Value of Holding Company Stock. Reversing the U.S. Tax Court, in a case of first impression for it, the 11th Circuit, over a strong dissent, held that in determining the estate tax value of holding company stock, the company’s value (C corporation) is reduced by the entire built-in capital gain as of the date of death, as the estate had contended. The dissent essentially adopted the view of the Tax Court, which had agreed with IRS that the built-in capital gain tax liability should be discounted to reflect when it is only “reasonably” expected to be incurred. Estate of Frazier Jelke III, 100 AFTR 2d 2007-5475 (11th Cir 2007). • Business of Gambling. The U.S. Tax Court, in a summary opinion, held that a woman who ran a trucking business and also devoted significant time and energy to playing slot machines was in the business of gambling. As a result, she could deduct over $1.4 million in gambling losses above-the-line rather than as an itemized deduction. This prevented her from being liable for any deficiency of over $5,000. Linda M. Meyers, TC Summary Opinion 2007-194 (2007). • Disparate Treatment Claim. A district court held that a business could not challenge the IRS’s unfavorable treatment of transactions on disparate-treatment grounds based on the issuance of a taxpayer-favorable Field Service Advice memorandum relating to another business. Schering-Plough Corporation v. U.S., 100 AFTR 2d 2007-5522 (D.C. N.Y. 2007). • Railroads’ Challenge to State Property Valuation Methods. The U.S. Supreme Court held that the Federal Railroad Revitalization and Regulatory Reform Act of 1976 (“4-R Act”) allows railroads to challenge state methods for determining the value of railroad property, as well as how those methods are applied. The decision resolves a disagreement among the federal appellate courts on whether a railroad may challenge a state’s valuation methodology. CSX Transportation, Inc. v. Georgia State Board of Equalization, No. 06-1287, ___ U.S. ___ (12/04/07). • Recoupment of “Erroneous Refund”; Statute of Limitations. The Court of Federal Claims held that a suit challenging the IRS’s use of levy and garnishment to recoup an erroneous refund was an “illegal exaction” claim, rather than a refund claim for payment of taxes under IRC §7422, and was therefore subject to the six-year statute of limitations for Tucker Act cases. Lawrence D. Pennoni v. United States, 100 AFTR 2d 2007 – 6882 (Fed. Cl. 2007). !BULLET!Environmental Damage Cleanup Costs; Claim-of-Right Doctrine. The Court of Appeals for the 3rd Circuit has held that the IRC §1341 claim-of-right rules did not apply to a manufacturer’s government-ordered cleanup of prior years’ environmental contamination. There was no substantive nexus between the environmental cleanup expenses the manufacturer did not incur in the earlier years and its clean-up expenses required by later-enacted legislation. Alcoa, Inc., and Affiliated Corporations, f/k/a Aluminum Company of America v. IRS*, 100 AFTR 2d ¶2007-5506 (3rd Cir. 2007). • IRS Resisting Privilege Claims. The IRS recently revealed that it is taking a tough stance on the assertion of various privileges. The IRS will not acquiesce to U.S. v. Roxworthy, 457 F.3d 590 (6th Cir. 2006), a decision refusing to enforce an IRS summons on a corporate taxpayer’s vice president for memoranda prepared by the company’s outside audit/consulting firm. The appeals court found that the memoranda were prepared in anticipation of litigation and were protected by the work-product doctrine. The IRS disagreed with that conclusion and stated that a document prepared in anticipation of an audit is not prepared in anticipation of litigation. AOD 2007-004 (10/01/07). ADMINISTRATIVE ACTION • Sales and Use Taxes: Revocation of Exempt Status. In a recent notice the commissioner discusses what happens when the property tax exemption is lost and its implications for continued sales tax exemption. An organization may have its Minnesota sales and use tax exempt status revoked if there has been a final judicial determination that the nonprofit does not qualify as a charitable organization for property tax purposes. Minnesota courts have established an identical test to determine whether an organization qualifies as charitable for sales and use tax and property tax purposes. Therefore, an organization that does not qualify as a charitable organization for Minnesota property tax purposes also does not qualify for exemption as a charitable organization for Minnesota sales and use tax purposes. Minnesota Department of Revenue Notice 07-12* (10/15/07). • Excise Tax: MinnesotaCare Tax Treatment of Patient Services. A modified notice reflects changes to MinnesotaCare tax treatment of patient services. Goods and services provided by staff model health plan companies and ambulance services that are required to be licensed are treated as taxable patient services. Independent medical exams, reviews of patient treatment, and reviews of cases for malpractice litigation are removed from the list of examples of taxable patient services. *Modified Revenue Notice No. 94-03* (10/22/07). • Excise Tax: MinnesotaCare Tax on Social Work Services. A modified notice reflects changes to the MinnesotaCare tax treatment of social work services. Assessment and intervention through direct contact with clients, and counseling and crisis intervention services given to private patients are examples of social work services that are subject to MinnesotaCare tax. Testing for jobs involving public safety; certain employment-related psychological examinations under the Americans with Disabilities Act; return-to-duty fitness evaluations involving mental health issues; reviews of mental health information for third parties; and clinical psychotherapeutic services provided by a social worker for a homeless shelter are removed from the list of examples of social work services subject to MinnesotaCare tax. *Modified Revenue Notice No. 97-10*, (10/22/07). • Procedure: Employment/Payroll Taxes. The 2008 Minnesota state unemployment insurance (“SUI”) tax rates continue to range from 0.556 percent to 10.702 percent. The total rate assigned to new employers for 2008 is 2.3572 percent, with the exception of new employers considered to be in high-experience rating industries (generally construction). These new high-experience employers are assigned a total rate of 9.676 percent for 2008. The taxable wage base for 2008 increases to $25,000, up from $24,000 for 2007. Experience-rated employers whose accounts have been charged with unemployment benefits, and have no past due amounts pending on their accounts, may make a voluntary contribution (referred to by the Minnesota DEED as a “tax rate buydown”) to pay all or a part of the benefits charged against their accounts back to the state and reduce their assigned tax rate. A 25 percent surcharge must be included in the voluntary contribution amount. A voluntary contribution may be made any time between January 1, 2008 and April 29, 2008. • Wage Base for Social Security. The wage based for computing the social security tax in 2008 rises to $102,000 from $97,500 in 2007, an increase of about 4.6 percent. • 2008 Mileage Rates. The IRS issued the 2008 standard mileage rates for calculating the deductible costs of operating an automobile for various purposes. Beginning January 1, 2008, the standard mileage rates for the use of a car (including vans, pickups or panel trucks) for 2008 are as follows: business miles—50.5 cents; medical and moving miles—19 cents; charitable miles—14 cents. IR-2007–192 and Rev. Proc. 2007-70, 2007-50IRB. • Self-Prescribed Diagnostic Tests Deductible. In the context of three distinct factual situations, the IRS determined that amounts paid by healthy individuals for self-initiated diagnostic and similar procedures qualify as deductible medical expenses under IRC §213(a). Rev Rul 2007-72, 2007-50 IRB 1154. • Change in Method of Accounting. Under the proposed new standard consent process, most changes would be automatic. Eliminating the mandatory requirement to obtain advance consent of the IRS for a method of accounting change generally places accounting method changes on par with most other tax return positions for which taxpayers may, but are not required to, seek an advance ruling. Notice 2007-88, 2007-46 IRBXXX. • Federal Revised Living Expense Standards. Allowable living standards, also known as collection financial standards, are used to determine the ability of a taxpayer to pay a delinquent tax liability. The latest federal standards have been redesigned to incorporate a number of new features, including a new category for out-of-pocket health expenses; the elimination of income ranges for national standards