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State Digest



Criminal Opinions

Traffic Stop

Officer’s Observations Together with Citizen’s Tip

Where a police officer, after receiving a police radio dispatch relaying a motorist’s

report that a motor vehicle was being driven erratically, observed the same vehicle

cross and recross the fog line, the officer possessed an objective basis for reasonable

suspicion warranting an investigative stop.

Reversed and remanded.


Minnesota v. Richardson (Court of Appeals) (Minnesota Lawyer No. SC-60-01)


Court Administration

Committee on Gender Fairness

Paula M. Schaefer, Director of Planning for Female Offenders, Department of

Corrections, is appointed as a member of the Committee on Gender Fairness to

complete the term of a member who has resigned.


In Re Appointment to the Standing Committee to Implement Recommendations of

the Minnesota Task Force on Gender Fairness in the Courts (Minnesota Lawyer

No. SC-61-01)

Court Administration

State Board of Public Defense

Nancy Brostrom Vollertsen is reappointed, as a Supreme Court Representative,

to serve as a lawyer member of the State Board of Public Defense.


In Re Appointment to the State Board of Public Defense (Minnesota Lawyer No.


Court of


Published Civil



and Trusts

Funds Placed in Another’s Account

Funds placed by a decedent during her lifetime into a bank account under the

exclusive control of another are presumptively the property of the account holder

and that presumption governs in the absence of a legally supported finding of

fraud, theft, conversion or other wrongful act.

Thus, where decedent and Bienfang resided together with the decedent’s minor son and lived as a family; decedent and Bienfang commingled funds to pay for mutual expenses in Bienfang’s individual checking account; and decedent remained mentally competent in the year prior to her death during which time she made substantial transfers to Bienfang’s checking account and arranged that Bienfang would have custody of the minor child after her impending death; the presumption relieves Bienfang of the burden to prove the decedent’s intent to make a gift and the presumption was not rebutted by the evidence.



In e: Estate of Whish v. Bienfang (Hennepin County) (Minnesota Lawyer No. CA-272-01)

Governmental Immunities

City’s Maintenance of Sewer System

A municipality’s decision not to make major capital improvements to an existing

sewer system is immune from tort liability as a discretionary function.

Thus, even though homeowners who lived in a low-lying area experienced the flooding of their basement with raw sewage following a heavy storm, the District Court erred in identifying the conduct at issue as the city’s knowledge of the amount of sewage in the city system and denying the city’s statutory immunity defense where the conduct at issue is the manner in which the city maintained its sewer system and the city’s decision not to remedy a defect in its sewer system was of a policy-making nature.



Christopherson v. City of Albert Lea (Freeborn County) (Minnesota Lawyer No.



Civil Opinions

Civil Procedure

Corporation’s Removal to Conciliation Court

Where a corporation demanded removal from conciliation court to District Court

through its non-attorney vice-president, the District Court did not err by dismissing

the action for lack of jurisdiction because a corporation must be represented

by counsel to file a notice of removal.



Quantum Restoration, a/k/a Quantum Construction, Inc., et al. v. Oakes (Hennepin

County) (Minnesota Lawyer No. CA-274-01)

Debtor / Creditor

Judicial Involvement Mandated for Levy

Where the assignee of a shooting victim’s interest in a judgment caused the

county sheriff to levy on business property of a company believed to be the

“alter ego” of the judgment debtor, the District Court did not err by holding

the levies improper because there was no judicial determination of an “alter

ego” or fraudulent transfer, as is required by statute.

We reject other claims of error.



Jazzville, Inc. v. C&L Asset Group, Ltd. (Ramsey County) (Minnesota Lawyer

No. CA-275-01)

Driving and Alcohol

Evidence of Improper Stop Admitted

Even though the court in the driver’s implied consent case suppressed the

evidence of the driver’s alcohol use because it was obtained from an improper

stop, the District Court did not err by admitting the evidence in a hearing

regarding whether the driver’s license should be canceled because he is inimical

to public safety. Applying the exclusionary rule to this type of public safety

hearing would not deter future unlawful police conduct to any significant degree.



Anderson v. Commissioner of Public Safety (Meeker County) (Minnesota Lawyer

No. CA-276-01)

Domestic Relations

Child Support Determined without Obligor’s Appearance

Where father failed to appear at a continued child support hearing and had

consistently refused to disclose information regarding income or employment,

and the District Court received evidence of father’s income in the form of employment

records and the child support officer’s testimony, the District Court reasonably

determined father’s income, his child support obligation under the guidelines,

and his obligation to reimburse the county.

In addition, the District Court did not err by denying a continuance and allowing the hearing to proceed by default.



Abfalter v. Williams (Wright County) (Minnesota Lawyer No. CA-277-01)

Domestic Relations

Child Support: Obligor’s Income; Deviation

Where (1) the magistrate’s findings regarding father’s average net monthly

income cannot be tied to the record, (2) the magistrate’s conclusion that father

was not voluntarily underemployed did not address the statutory factors and

is not supported by the record, which shows a change to new employment at a

reduced wage, and (3) the magistrate deviated from the child support guidelines

without applying the statutory factors or the proper legal standard, and without

considering father’s other resources from his mother, we reverse and remand

for findings consistent with the record and the law.

Reversed and remanded.


Countryman, n/k/a Schroeder v. Countryman (Anoka County) (Minnesota Lawyer No.


Domestic Relations

CHIPS Adjudication Reversed; Spanking

Even though father spanks his children with a wooden lath, the District Court

erred by adjudicating the children in need of protection or services (CHIPS)

where there is no evidence that father spanks his children for reasons other

than discipline and there is no evidence of physical injury to the children.

“Minn. Stat. sec. 260C.007 must be broadly interpreted as requiring evidence of physical injury before a child will be found a victim of physical abuse.”



In the Matter of the Welfare of the Minor Children of: J.B.B. and N.F. (Watonwan

County) (Minnesota Lawyer No. CA-279-01)


Teacher Waived Seniority Challenge

Where the parties’ collective bargaining agreement addresses seniority, and

the teacher had failed to grieve his placement on a seniority list according

to the procedures set forth in the collective bargaining agreement, the teacher

waived his right to challenge the seniority dispute at a hearing concerning

his placement on an unrequested leave of absence.



Abeln v. School Board of Independent School District No. 276 Minnetonka (Independent

School District No. 276) (Minnesota Lawyer No. CA-280-01)

Mechanic’s Lien

Evidence Supports Enforcement

Where a civil engineer sought enforcement of a mechanic’s lien for work performed

surveying and platting lots in a housing development; the engineer presented

evidence that two lots had to be replatted because the owner changed the floor

plans; and the owner presented evidence that the replatting resulted from errors

by the engineer; we defer to the District Court’s credibility determinations

and affirm its enforcement of the mechanic’s lien.



Brandt, d/b/a Brandt Engineering & Surveying v. Johnson-Reiland Construction,

Inc. (Dakota County) (Minnesota Lawyer No. CA-281-01)

Products Liability

Evidence re Inoculation System is Insufficient

Where plaintiff claims to have suffered injury from administration of a flu

shot with the Biojector needle-free injection system but (1) plaintiff has not

identified any design defect in the injection system or any evidence that the

Biojector used to inoculate her was defective, and (2) the mere fact that plaintiff’s

arm was injured after she received a shot with a Biojector is insufficient to

establish causation, the District Court properly granted summary judgment in

favor of the Biojector manufacturer on plaintiff’s product liability claim.

Summary judgment against plaintiff was also proper on plaintiff’s failure-to-warn claim against the manufacturer and her malpractice claims against the nurse administering the injection because the expert affidavit failed to detail the standard of care and causation.



Donovan v. Bioject, Inc., d/b/a Bioject Medical Technology, Inc. (Dakota County)

(Minnesota Lawyer No. CA-282-01)

Public Law

Violation of Sign Ordinance; Res Judicata Rejected

Where a bookstore erected signs without a conditional use permit required by

zoning ordinances, the township sought removal of the signs and a permanent

injunction on the ground that the bookstore had violated the ordinances, the

bookstore bought an action in federal court challenging the ordinances on constitutional

grounds, and the federal court found the ordinances constitutional, we conclude

that (1) the township was not required to bring its claim that the bookstore

had violated the ordinances as a compulsory counterclaim in the federal case

and (2) res judicata does not bar the township’s claim because the federal and

state cases involved different causes of action.

In addition, this case is not moot or barred under the doctrine of laches.



Mankato Township v. Malcolm, Inc. (Blue Earth County) (Minnesota Lawyer No.



Trucker Hitting Overpass Fails on Negligence Claim

Where a truck owner-operator contracted with a freight-hauling service to

haul cargo; the trucker received inaccurate information as to the height of

the cargo and failed to measure the height of the total load after the cargo

was loaded; and the actual height exceeded that allowed on the route that the

trucker selected and his truck struck a railroad overpass; the District Court

did not err in granting summary judgment against the trucker because, pursuant

to the terms of the parties’ contract, Minnesota statutes and regulations, and

the parties’ course of dealing, no duty of care was owed by the freight-hauling

service to the trucker.

In addition, neither the customer, which ordered the delivery and provided an inaccurate height for the cargo, or the manufacturer, which loaded the cargo, had a duty to measure the height of the load.



Bohman v. Trimodal (Hennepin County) (Minnesota Lawyer No. CA-284-01)


Criminal Opinions

Investigatory Stop

Preventing Occurrence of Wrongdoing; Intoxilyzer Rule

1. Stops to investigate suspected criminal activity include those aimed at

preventing the occurrence
of criminal wrongdoing. Thus, where a driver was suspected

of having engaged in harassing behavior, resulting in a call to police; and

the driver and his vehicle were specifically identified; the stop of the driver’s

vehicle was lawful because the officer had a particular and objective basis

to suspect that the driver had acted wrongfully and that the conduct might be

repeated if the officer did not deter a future occurrence.

2. Where the commissioner originally approved the Intoxilyzer 5000 by rule in 1985; and in 1999 the commissioner issued an order clarifying that the rule approving the original machine extended to the Intoxilyzer 5000, Series 68; we defer to the commissioner’s construction of the original rule and the commissioner’s approval of the Series 68 machine without formal rulemaking.



Schuster v. Commissioner of Public Safety (Freeborn County) (Minnesota Lawyer

No. CA-285-01)


Criminal Opinions

Criminal Procedure

Speedy Bench Trial Despite Delay in Court’s Decision

Even though the District Court did not issue its decision for

68 days following defendant’s trial on first degree assault and malicious punishment

of a child, defendant’s right to a speedy trial was not violated where defendant

voluntarily waived her right to a jury trial; the pain and anxiety suffered by

defendant are not serious enough to prejudice a party for speedy trial purposes;

and the District Court issued 100 pages of detailed findings due to the exhaustive

amount of evidence presented.

Although the Court committed plain error when it admitted entire learned treatises

relied on by experts, the error was not prejudicial given the weight of evidence

against defendant.



Minnesota v. Reed (Anoka County) (Minnesota Lawyer No. CA-286-01)

Criminal Sexual Conduct

Friend’s Father in Position of Authority

Where the 17-year old victim was spending the night at the home of her friend

and had often stayed overnight there, defendant was the friend’s father and

had been the victim’s coach over the years, and the victim alleged that defendant

sexually abused her while she was sleeping on the couch, the evidence was sufficient

to convict defendant of fourth-degree criminal sexual conduct because defendant

was in a “position of authority” over the victim.

The District Court did not err by not submitting fifth-degree criminal sexual

conduct to the jury as a lesser-included offense.



Minnesota v. DeLong (Hennepin County) (Minnesota Lawyer No. CA-287-01)

Driving and Alcohol

Open Bottle Confession; Violating Driving Restrictions

Where a driver who was stopped for speeding admitted to the officer that he

had consumed alcohol and thrown his open beer can out the window when he saw

the officer, we find adequate evidence to show the trustworthiness of defendant’s

confession and we affirm his open-bottle conviction because, even though the

officer did not see the beer can or retrieve it, the officer testified that

defendant smelled of alcohol, the preliminary breath test confirmed that defendant

had been drinking, and defendant had unopened beer cans in the car.

However, because intent is an element of the offense of violating driving

restrictions, we reverse defendant’s conviction for that offense where defendant’s

driver’s license did not state the restriction, there is no evidence that defendant

ever saw his driving record which contained the restrictions, and the “Statement

Attesting to Abstinence From Alcohol and Controlled Substances” purportedly

signed by defendant was not properly authenticated.

Affirmed in part, reversed in part.

J. Kalitowski, concurring in part, dissenting in part. The evidence is sufficient

to establish that defendant had notice of the restrictions on his driver’s license

where the District Court inferred that defendant had notice because his defendant’s

driving record clearly forbids any use of alcohol, and this inference was directly

supported by the “Statement Attesting to Abstinence From Alcohol and Controlled

Substances” purportedly signed and initialed in four places by defendant.


Minnesota v. Schmitt (Nobles County) (Minnesota Lawyer No. CA-288-01)

Driving and Alcohol

Officer’s Comments on Consequences of Not Taking Test

Where (1) during the time the driver was waiting for a return call regarding

his attorney, an officer told him that test refusal and test failure were crimes,

and that an attorney cannot counsel a client to engage in criminal conduct,

and (2) after 30 minutes, the driver’s refusal to take a breath test without

speaking to his attorney was interpreted as a refusal, we conclude that the

driver was not denied his right to counsel and that he did not refuse to test

because the officer provoked the refusal. The driver’s testimony does not support

a claim that the officer’s statements caused him to believe that it would be

useless to contact an attorney.



Neck v. Commissioner of Public Safety (Hennepin County) (Minnesota Lawyer No.


Obstructing a Highway

Obstruction of Future Route Not Sufficient

Even though defendants obstructed the unbuilt, future route of Highway 55,

they could not be convicted of petty-misdemeanor obstruction of a highway because

our reading of the statutes and related Constitutional provision convinces us

that the statute applies to trunk highways but not the unbuilt, future route

of a trunk highway.



Minnesota v. Avery (Hennepin County) (Minnesota Lawyer No. CA-290-01)

Traffic Stop

Stop Deemed Pretextual Based on Driver’s Testimony

Even though an officer testified that he observed the driver’s minivan traveling

at 50 miles an hour on a city street, the District Court did not err in concluding

that the stop was pretextual where (1) both the driver and his passenger testified

that the driver had not exceeded the speed limit and that speeding was impossible

because the minivan was incapable of rapid acceleration and they were required

to stop at every traffic light, and (2)
the District Court’s findings are not

clearly erroneous.



Minnesota v. Spraggins (Hennepin County) (Minnesota Lawyer No. CA-291-01)

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