Minnesota Statutes, sec. 60C.11, subds. 3 and 7

Insurance Claim Recovery; Insolvent Insurer

MIGA v. Integra Telecom, Inc.

Minnesota Court of Appeals

June 7, 2005

Employee of appellant (Integra Telecom) filed a workers’ compensation claim. Before the claim was paid, the appellant’s insurer became insolvent. Without the permission of the appellant, who was the insured party in this case, the Minnesota Insurance Guaranty Association (MIGA) paid a stipulated award of $62,801 to the employee following an administrative hearing. MIGA is an organization created by the legislature (Minnesota Statutes, chapter 60C) to generally pay claimants who would otherwise have received compensation if the insurer had not become insolvent and, to that end, is “… deemed the insurer to the extent of its obligation on the covered claims and [has] the right to pursue and retain salvage and subrogation recoverables on covered claim obligations …” under Minnesota Statutes, section 60C.05, subdivision 1, paragraph (a). MIGA sought reimbursement from appellant under Minnesota Statutes, section 60C.11, subdivision 7, which states in pertinent part, that MIGA is entitled to “… recover the amount of any covered claim … paid, resulting from insolvencies … on behalf of an insured who has a net worth of $25,000,000 … and whose liability obligations to other persons are satisfied in whole or in part by payments made under this chapter.” Appellant refused to pay, arguing, among other things, that MIGA was exceeding the authority granted it by the legislature, citing Minnesota Statutes, section 60C.11, subdivision 3, which provides that MIGA “… has no cause of action against the insured of the insurer for any sums it has paid out except the causes of action the insurer would have had if the sums had been paid by the insurer.”

The court found that subdivisions 3 and 7 of section 60C.11 could “reasonably be interpreted” as conflicting, making the section ambiguous.

The court found that Minnesota Statutes, section 645.26, subdivision 2, stating the “… clause last in order of date or position shall prevail” to favor subdivision 7 over subdivision 3 of section 60C.11; that “While the purpose … is to protect insureds like appellant, the subsequent enactment of subdivision 7 recognizes that certain insureds have the ability to pay judgments and that MIGA’s limited funds should go to those least able to absorb the impact”; that “legislative history makes clear that subdivision 7 was intended to allow MIGA the right to recover amounts paid on behalf of a company with a net worth greater that $25 million … to ensure that MIGA’s limited funds would go to pay the claims of those insureds without substantial assets”; that providing a recoupment provision to recover claims paid to injured employees helps to accomplish the purpose of the Act; and that the legislature sought to balance the interests of claimants and policyholders by allowing MIGA to handle claims quickly and efficiently and by providing MIGA with an option to seek reimbursement from high net worth insureds ….”

The court held for MIGA stating “… the … Act permits the Minnesota Insurance Guaranty Association to negotiate a settlement and recover the amount of any covered claim paid from an insured with a net worth exceeding $25 million ….”

Minnesota Statutes, sec. 62E.11, subd. 5

Insurers Assessed by Minnesota Comprehensive Health Association

BCBSM, Inc. v. Minnesota Comprehensive Health Association

Minnesota Court of Appeals

April 12, 2006

Blue Cross Blue Shield of Minnesota (BCBSM) challenged the assessment calculation of the Minnesota Comprehensive Health Association (MCHA), which included stop-loss insurance premiums as accident-and-health insurance premiums. BCBSM claimed that stop-loss insurance is not accident-and-health insurance for the purposes of the assessment statute so that stop-loss insurance premiums should not be included in calculation of the assessment.

Generally, stop-loss insurance is insurance purchased by a self-insuring employer to protect the employer from health care costs that exceed a certain monetary amount. Minnesota Statutes, section 62E.02, subdivision 11, defines “accident and health insurance policy” as “insurance or nonprofit health service plan contracts providing benefits for hospital, surgical and medical care.” The definition also listed eight categories of insurance that are not covered by an accident and health insurance policy; stop-loss insurance was not included as a type of insurance not covered. The MCHA offers health insurance to “… Minnesota residents who have been rejected for standard insurance coverage because of high-risk health conditions ….” Health insurers are required to be members of the MCHA and to fund the costs of the MCHA as a condition of doing business in this state. The members, including BCBSM, are assessed proportionally by MCHA as calculated according to Minnesota Statutes, section 62E.11, subdivision 5, which states, in pertinent part:

Each … member … shall share the losses due to claims expenses … and shall share in the operating and administrative expenses … [of] … the association …. Claims expenses of the state plan which exceed the premium payments allocated to the payment of benefits shall be the liability of the … members. Contributing members shall share in the … expenses … equal to the ratio of the … member’s total accident and health insurance premium … as divided by the total accident and health insurance premium, received by all contributing members … as determined by the commissioner. [Emphasis added]

….

The court found the statute to be ambiguous. The court found persuasive the district court’s invocation of the rule of construction that “the expression of one thing excludes another” in reasoning that if the legislature had intended to exclude stop-loss insurance as accident and health insurance it would have expressly so stated, “as it did with other categories of insurance”; the legislature was aware of the existence of stop-loss insurance but did not include it as one of “…15 lines of insurance that can be sold in the state …” which “supports MCHA’s claim that stop-loss insurance is not a separate and distinct line of insurance but rather is a form of one of the enumerated lines, namely accident-and-health insurance …” because … “[if] this were not so, BCBSM would have no authority to sell stop-loss insurance in Minnesota”; BCBSM’s argument that stop-loss insurance covers employers and accident and health insurance covers employees is a “difference without a distinction” because both insure the costs of health care; a determination of whether state law or the federal ERISA law covers stop-loss insurance is “… irrelevant to a determination of whether stop-loss carriers were members of … [a] comprehensive health insurance association …”; and stop-loss insurance provides health and accident benefits.

The court determined “that the legislature intended that insurers who offer stop-loss insurance should be among those assessed. Consequently, we conclude that premiums for stop-loss insurance were properly included as accident-and-health-insurance premiums in calculating MCHA’s annual assessment of its members.

Minnesota Statutes, sec. 152.01, subd. 12a

Drug Offense Within One City Block of Park Zone

State v. Estrella

Minnesota Court of Appeals

July 12, 2005

The district court denied the state’s motion to amend its original complaint to include three additional charges of second-degree sale of a controlled substance for cocaine sales by Estrella in a “park zone.” Sale of a controlled substance in a park zone is a controlled substance crime in the second degree. Minnesota Statutes, section 152.022, subdivision 1, clause (6). Investigation reports alleged that Estrella sold cocaine at two trailer homes located more than 300 feet from a municipal park in Cannon River. Minnesota Statutes, section 152.01, subdivision 12a, defines, “park zone” as, in pertinent part, “an area designated as a public park … [and] includes the area within 300 feet or one city block, whichever distance is greater, of the park boundary.” Testimony in the district court showed that the city is not laid out in a grid system; in other words, is not plotted into city blocks. The court concluded that the definition of “park zone” in this context is ambiguous.

The state argued that the court should interpret “city block” as including the municipal park, the trailer home park, and all other land bounded by streets on three sides without regard to its size; respondent Estrella argued that the legislature foresaw cases such as this and included the alternative measurement of 300 feet to be used when areas were not laid out in a grid system of blocks.

The court found Estrella’s argument the more reasonable and concluded that “… under circumstances where no actual grid system is present, the term ‘one city block’ does not apply and, therefore, a drug transaction must take place within the ambit of the ‘park zone’ statute.”

Minnesota Statutes, sec. 169A.20, subd. 1, clause (5)

DWI; Alcohol Concentration Within Two Hours of Driving

State v. Banken

Minnesota Court of Appeals

December 28, 2004

Appellant was convicted of driving while impaired under Minnesota Statutes, section 169A.20, subdivision 1, which states in pertinent part:

Subdivision 1. … It is a crime for any person to drive, operate, or be in physical control of any motor vehicle … :

…

(5) when the person’s alcohol concentration at the time, or as measured within two hours of the time, of driving, operating, or being in physical control of the motor vehicle is 0.10[.]

….

A test to determine the appellant’s alcohol concentration was administered two hours and 14 minutes after the appellant had been driving, which showed a concentration of 0.17.

The court found the word “measured” to be ambiguous because it was susceptible to two reasonable interpretations:

On the one hand, “measured” could indicate the act of measuring, or taking the steps necessary to ascertain the quantity of the alcohol concentration. Using this meaning, law enforcement would have to obtain a sample and run the test for alcohol concentration within two hours. On the other hand, “measured” could indicate the quantity determined by measuring. Applying that meaning, “measured” would allow police to obtain or administer the test for the blood, urine or breath sample after two hours, as long as the quantity or measurement of alcohol concentration is accurately established as of a point in time within the two-hour limit. …. Using this second meaning, “measuring” would relate back to a specified earlier point in time by providing accurate proof that the driver’s alcohol concentration was above the legal limit within two hours of driving.

The court examined the language and history of section 169A.20 and other, related statutes to discern the legislature’s intent and held:

Although the breath sample in this case was obtained more than two hours after appellant had been driving, the appellant’s alcohol concentration in excess of the legal limit of .10 was measured as of a point within two hours of driving, and the district court properly determined that appellant was in violation of Minn. Stat. [section] 169A.20, subd. 1, [clause] (5).

Minnesota Statutes, sec. 176.061, subd. 5

Recovery Rights of Workers’ Compensation Insurer

Zurich American Ins. Co. v. Bjelland

Minnesota Supreme Court

February 2, 2006

By stipulated facts, Appellant’s negligence led to the death of insured’s employee; respondent insurer, Zurich American Insurance Company, paid benefits on behalf of the employer to the employee’s surviving dependents totaling $104,319, of which $48,336 represented damages recoverable under the Wrongful Death Act.

Zurich brought a subrogation action against appellant to recover all benefits in full, arguing that amendments to Minnesota Statutes, section 176.061, subdivision 5, by Laws of Minnesota 2000, chapter 447, section 5, allowed for full recovery. That provision states in pertinent part:

… If the …employee’s dependents …[receive] benefits … or [accept] … payment on account of the benefits, the employer … is subrogated to the rights of the employee or the employee’s dependents or has a right of indemnity against a third party regardless of whether such benefits are recoverable by the employee or the employee’s dependents at common law or by statute. [Emphasis added]

Appellant argued that Zurich was limited to the recovery of wrongful death damages and that the amendment “does not enlarge the employer’s right to recover the third-party tortfeasor but rather, it expands the definition of what types of benefits are eligible to be recovered and that his liability remained one of subrogation only.

The court found that the statute was “not clear and free from all ambiguity”; that the “legislative history provides no clear indication that the legislature intended to accomplish what Zurich asserts” so consequently “… little legislative intent can be inferred …”; that the unchanged language of section 176.061 “… continues to state that the employer is ‘subrogated to the rights of the employee’”; that any intent of the legislature “to alter the fundamental nature of the employer’s cause of action against the third party is belied by the fact that the legislature did not amend … the distribution formula that allocates a recovery from a third party paying what it would normally pay if no compensation question were involved”; and that Zurich’s interpretation, upheld by the court below, “would significantly shift the burden for the financial consequences of workplace accidents from employers onto third-party tortfeasors.”

The court concluded:

It seems to us fairly evident, then, that the 2000 amendments have not modified the measure of damages against which the employer may assert a right of recovery. In the absence of a definitive indication from the legislature that it meant to replace or otherwise enlarge the employer’s cause of action against the third party beyond that of subrogation, we reaffirm the fundamental principle that in a subrogation suit the employer has no greater rights than those of the employee.

Minnesota Statutes, sec. 204D.10, subd. 2

Elections; Primary Threshold Law

Candidacy of Independence Party Candidates v. Kiffmeyer

Minnesota Supreme Court

November 10, 2004

The Minnesota Secretary of State notified the Independence Party that the names of its candidates for elective office would not be placed on the 2004 general election ballot based on Minnesota Statutes, section 204D.10, subdivision 2, which requires that at least one candidate receive “… a number of votes equal to ten percent of the average of the votes cast at the last state general election for state officers of that major political party within the district for which the office is voted ….”

The Secretary of State and her counsel, the Minnesota Attorney General, conceded that “there is no rational state purpose served by the primary threshold law.” The court found “irrationality and arbitrariness of the … law are evident” and “supports the conclusion that the … law cannot be justified.”

The court held that “… by denying Independence Party candidates access to the general election ballot the primary threshold law violates petitioners’ constitutional rights to vote and to associate for the advancement of political beliefs under the First and Fourteenth Amendments.”

Minnesota Statutes, sec. 211B.04, para. (a)

Freedom of Speech; Election Campaign Material Disclaimer

Riley v. Jankowski

Minnesota Court of Appeals

April 26, 2006

Four days before an election, Jankowski, an attorney and son of a candidate for city office, distributed to voters campaign material, provided and prepared by at least one challenging candidate, charging that three incumbent office holders “attempted to profit illegally … or allow the profiting … from their elected positions …” of the sale of city land. The distributed material did not carry a disclaimer, but stated on the envelope, “This publication is not circulated on behalf of any candidate ….” Suit was brought and a panel of administrative law judges determined that relators had violated, among other statutes not pertinent here, Minnesota Statutes, section 211B.04, paragraph (a), which states in pertinent part:

(a) A person who participates in the preparation or dissemination of campaign material …, that does not prominently include the name and address of the person or committee causing the material to be prepared or disseminated in a disclaimer substantially in the form provided in paragraph (b) or (c) is guilty of a misdemeanor. [Paragraphs (b) and (c) set out in detail the form of the information required.]

The court reviewed McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 115 S.Ct. 1511 (1995) and Minn. Citizens Concerned for Life, Inc. v. Kelley, 291 F.Supp.2d 1052 (D.Minn.2003), aff’d in part, rev’d in part, 427 F.3d 1106 (8^th Cir.2005), concluding “… there may be circumstances in which the disclaimer requirement is violated by completely truthful anonymous statements made by individuals acting independently from any candidate and using their own resources. Respondents have not identified an overriding state interest that permits … [limiting] such political expression under the exacting scrutiny that we must apply.

The court held, “… Minn. Stat. [section] 211B.04 [, paragraph] (a)[,] directly regulates the content of pure speech in violation of the First Amendment ….”

Minnesota Statutes, sec. 216B.1691, subd. 2, paras. (a) and (b)

Renewable Energy Standards for Utilities

In re Detailing Criteria and Standards

Minnesota Court of Appeals

July 26, 2005

Environmental organizations challenged an order of the Minnesota Public Utilities Commission (PUC) setting standards for electric utilities to comply with Minnesota Statutes, section 216B.1691, subdivision 2, paragraphs (a) and (b), objectives for increasing the use of renewable energy resources.

Paragraph (a) reads, in pertinent part:

(a) Each electric utility shall make a good faith effort to generate or procure sufficient electricity generated by an eligible energy technology … so that:

(1) commencing in 2005, at least one percent of the electric utility’s total retail electric sales is generated by eligible energy technologies;

(2) the amount provided under clause (1) is increased by one percent of the utility’s total retail electric sales each year until 2015; and

(3) ten percent of the electric energy provided to retail customers in Minnesota is generated by eligible energy technologies.

The utilities argued that paragraph (a) “set a one-percent baseline for total retail electric sales from eligible energy technologies in 2005 and required an increase by one percentage point each year until sales from eligible energy technologies reach 10 percent of total retail sales in 2015.” The environmental groups argued that sales from eligible energy technologies would vary and that “once a utility established its annual percentage of retail electric sales from eligible energy technologies,” it must annually increase those sales by one percent. The PUC’s order reflected the utilities’ position and allowed preexisting generation in computing utility compliance.

The court found the statutory language ambiguous, as susceptible to more than one reasonable interpretation; that the words “at least” in paragraph (a), clause (1), must be interpreted in the context of the entire subdivision and concluded that the “statutory scheme sets a baseline objective of one percent in 2005 with annual increases of one percent so as to reach the 10-percent objective by 2015”; and that the “legislative history supports the proposition that nonmandated sources of preexisting generation are included among eligible energy technologies” and does not require annual increases through new generation.

Paragraph (b) reads in pertinent part:

(b) Of the eligible energy technology generation required under paragraph (a), clauses (1) and (2), not less than 0.5 percent of the energy must be generated by biomass energy technologies …. By 2010, one percent of the eligible technology generation required under paragraph (a), clauses (1) and (2), shall be generated by biomass energy technologies….

The environmental groups argued that the biomass requirement was a percentage of a utility’s total electric sales and the utilities argued that the biomass requirement was a percentage of all eligible energy sources.

The PUC found the statute ambiguous and concluded that “the percentages pertain to the ‘eligible energy technology generation,’ not total retail electric sales.” The court accepted the PUC’s judgment on this issue, stating that the provision’s “phrase ‘of the energy’ plainly relates back to the opening phrase of the subdivision, which refers to ‘eligible energy technology generation’ under subdivision 2 [,paragraph] (a)” and that the “only reasonable construction … is that the percentages … are applied to the amount of eligible … generation, not total retail electric sales.”

The court held:

The PUC did not commit an error law by concluding that the renewable energy objectives … direct each electric utility to make a good faith effort to ensure that 10 percent of total electric sales to retail customers is generated by eligible energy technologies by 2015, with a one-percent initial objective in 2005 and a benchmark increase of one percent annually. The PUC’s … [calculation] of electrical generation from biomass energy technologies as compared to all eligible energy technologies was not arbitrary and capricious.

[NOTE: The Minnesota Supreme Court affirmed this decision by an evenly divided court by order dated May 22, 2006.]

Minnesota Statutes, sec. 244.11, subd. 3

Separation of Powers; Defendant’s Right to Appeal Sentence

State v. Losh

Minnesota Supreme Court

September 28, 2006

Losh pleaded guilty to kidnapping and the court imposed a 120-month stayed sentence. Subsequently, at least 90 days after her sentence was pronounced, she violated the terms of her probation and the court executed her sentence. She appealed the sentence and the Supreme Court ordered supplemental briefs to address its appellate jurisdiction in light of Minnesota Statutes, section 244.11, subdivision 3, which states, in pertinent part:

(a) ….

(b) If a defendant agrees to a plea agreement and is given a stayed sentence, which is a dispositional departure …, the defendant may appeal the sentence only if the appeal is taken:

(1) within 90 days of the date sentence was pronounced; or

(2) before the date of any act committed by the defendant resulting in revocation of the stay of sentence; whichever occurs first.

(c) …

(d) ….

Losh did not meet the 90-day deadline to appeal her sentence. The court ruled that the statute is unconstitutional because it violates the separation of powers doctrine, explaining, inter alia, that “the court has previously construed statutes that set time limits for an appeal as procedural,” … “this court has ‘primary responsibility for the regulation of evidentiary matters and matters of trial and appellate procedure,’” … and “this authority over procedural matters is derived from the court’s inherent judicial powers.” [citations omitted]

The court held: “To the extent section 244.11, subd. 3, purports to limit this court’s ability to hear an appeal in certain cases, it violates the separation of powers by encroaching on this court’s power to define its appellate jurisdiction.”

Minnesota Statutes, sec. 260B.130, subd. 4, para. (b)

Equal Protection; Extended Juvenile Jurisdiction

In re Welfare of T.C.J.

Minnesota Court of Appeals

January 26, 2005

TCJ, a 17-year-old juvenile, was charged with first-degree assault, a felony if committed by an adult. After the prosecution was unsuccessful in seeking certification as an adult offender, the juvenile court granted TCJ’s motion that the proceeding be conducted as an extended juvenile jurisdiction (EJJ) case. The jury found him guilty of the charge of third-degree assault. However, it acquitted him of first-degree assault, the charged offense giving rise to the sought-after adult certification and the subsequent EJJ prosecution. The court “entered judgment on the jury’s verdict finding juvenile committed conduct which would constitute third-degree assault if committed by an adult” and imposed a stayed adult criminal sentence under Minnesota Statutes, section 260B.130, subdivision 4, paragraph (a), in addition to the juvenile disposition under section 260B.198.

TCJ argued that he should have been sentenced only to a juvenile disposition under Minnesota Statutes, section 260B.130, subdivision 4, paragraph (b), which is limited to “a child prosecuted as an extended jurisdiction juvenile after designation by the prosecutor” and found guilty of an “offense that would not, on its own, have justified an EJJ prosecution …” and “that the court’s application of the EJJ statute violated his right to equal protection under the law.

The court found that the phrase “after designation by the prosecutor in the delinquency petition” in paragraph (b) to require “a disparately more severe sentence for every EJJ conviction that results from the juvenile court’s rejection of adult certification” and that “… if the state had not sought the adult-certification process … a decision entirely within the state’s discretion and a choice which the court rejected … he would only be subject to a juvenile disposition for the third-degree assault conviction.”

The court applied the rational basis standard to determine if TCJ’s equal protection rights under the state and federal constitutions were violated and held that Minnesota Statutes, section “260B.130, subd. 4 [, paragraph] (b) is unconstitutional …” and that “the imposition of a stayed adult sentence on a juvenile defendant violates his right to equal protection, and we vacate the stayed adult sentence.”

(Note: The court cited the Minnesota Supreme Court’s equal protection analysis in State v. Garcia, 683 NW.2d 294 (Minn. 2004), reported in this office’s 2004 report, in which another provision of the EJJ statute (sec. 260B.130, subdivision 5), which denied credit for time served in a juvenile facility, was held to be unconstitutional. That provision remains the same as when Garcia was decided.)

Minnesota Statutes, sec. 299A.465, subd. 1, para. (c)

Family Health Coverage After Public Safety Officer’s Death

Schmidt v. City of Columbia Heights

Minnesota Court of Appeals

May 24, 2005

A Columbia Heights police officer was disabled in the line of duty and, afterward, he and his family continued to receive health care coverage from the city. When the officer died from causes not related to his disability, the city discontinued coverage for his surviving dependents. The dependents brought suit claiming the city had violated Minnesota Statutes, section 299A.465, subdivision 1, paragraph (c), which states, in pertinent part:

(c) The employer is responsible for the continued payment of the employer’s contribution for [health] coverage of the officer … and … the officer’s … dependents. Coverage must continue for the officer … and … the officer’s … dependents until the officer … reaches the age of 65 ….

The city argued that the statute conditions the payment of health coverage on the officer continuing to live to age 65 and contended that if the legislature had intended otherwise it could have made continued dependent coverage explicit in the statute. The court noted that other statutes cited by the city “… equally support the counterargument: if the legislature had intended the contribution requirement to expire upon the death of an officer, it could have explicitly stated so.”

The court agreed with the district court that “the statutory language may be read to ‘require coverage until the 65^th anniversary of an officer’s [birth].’” It found that to adopt the city’s interpretation would lead to an unreasonable result; that the district court’s interpretation was reasonable; that the legislature has recognized elsewhere in statutes the “special nature of [public safety officers’] sacrifice and contribution”; that to deny coverage to dependents because a disabled officer dies before reaching the age of 65 would frustrate the purpose of the statute to provide such coverage; and that legislative intent “…is best effectuated by reading this language to require contribution until the 65^th anniversary of the officer’s birth.”

The court concluded “… when an officer who is disabled in the line of duty dies prior to attaining age 65, Minn. Stat. [section] 299A.465, subd. 1 [, paragraph] ( c) …, requires the officer’s employer to continue to contribute to the health coverage of the officer’s dependents until the 65^th anniversary of the officer’s birth.

Minnesota Statutes, sec. 340A.702, clause (6)

Liquor Sales Within 1,000 Feet of County Jail

Block 25 Committee v. City of Walker

Minnesota Court of Appeals

January 4, 2005

A citizens’ group sought to prevent the city of Walker from moving its municipal liquor store to a historic building located within 1,000 feet of the county jail, arguing to do so would violate Minnesota Statutes, section 340A.702, clause (6), which reads in pertinent part:

It is a gross misdemeanor:

…

(6) to sell … intoxicating liquor within 1,000 feet of a state hospital, training school, reformatory, prison, or other institution under the supervision and control, in whole or in part, of the commissioner of human services or the commissioner of corrections[.] [Emphasis added.]

The district court granted summary judgment to the respondent citizens’ group, concluding that the county jail was an institution partially supervised or controlled by the Department of Corrections. The city appealed, arguing that the limitation only applied to state institutions.

The court of appeals found the statute ambiguous.

Based on its own examination of the statute’s legislative history, the court found that the predecessor statute specifically named the applicable institutions, that they were all state institutions, and that the present statute’s “change in wording … appears to have been designed to eliminate the need to separately list each institution and to define in a more generic manner the set of institutions covered by the statute. Retention of the adjective ‘state’ … appears to carry forward what was formerly a clear limitation of the application of the statute to state institutions.”

The court reversed the district court, holding “… the statute refers only to sales within 1,000 feet of a state institution, and the statute does not apply to prohibit liquor sales within 1,000 feet of a county jail.”

Minnesota Statutes, section 590.05

Right to Counsel for Postconviction Relief

Deegan v. State

Minnesota Supreme Court

March 23, 2006

Following a plea agreement, Deegan pleaded guilty and received a sentence of 360 months, less than the presumptive sentence. Later, Deegan requested the assistance of the Public Defender to file a postconviction petition, which was denied under Minnesota Statutes, section 590.05. The statute was amended in 2003 to include the following language:

If, however, the person pled guilty and received a presumptive sentence or a downward departure in sentence, and the state public defender reviewed the person’s case and determined that there was no basis for an appeal of the conviction or of the sentence, then the state public defender may decline to represent the person in a postconviction remedy case.

Deegan’s motion for appointment of counsel was denied by the district court and court of appeals under section 590.05 and Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990 (1987), in which the U.S. Supreme Court held there is no 14^th Amendment right to counsel for a state postconviction action.

The court accepted Deegan’s petition to review the constitutionality of the 2003 amendment. After analyzing the history and scope of postconviction remedies and the right to counsel in Minnesota and other states, and at the federal level, the court concluded “… that the 2003 amendment deprives some defendants of meaningful access to one review of a criminal conviction, in violation of their right to the assistance of counsel under Article I, section 6 of the Minnesota Constitution.”

The court held that “a defendant’s right to the assistance of counsel under … the Minnesota Constitution extends to one review of a criminal conviction, whether by direct appeal or a first review by postconviction proceeding” so that, consequently, “section 590.05, as amended by … [Laws] … 2003, [1^st Special Session] ch. 2, art. 3, [section] 2, … is unconstitutional. The court’s remedy was to sever the 2003 amendment so that section 590.05 exists “… as it existed before the 2003 amendment” and “… the version that existed prior to the 2003 amendment is revived.”

[NOTE 1: Laws 2003, First Special Session chapter 2, article 3, section 3, also added identical language to Minnesota Statutes, section 611.14.]

[NOTE 2: Minnesota Statutes 2006, section 590.05, continues to show the language declared to be unconstitutional by this case, not the “revived” pre-2003 version.]

Minnesota Statutes, secs. 609.321, subd. 12, and 609.324, subd. 2

Prostitution; Public Place

State v. White

Minnesota Court of Appeals

March 1, 2005

After negotiating with an undercover police officer, while in the officer’s car, for an exchange of oral sex for $30, the defendant was arrested and charged with prostitution under Minnesota Statutes, section 609.324, subdivision 2, which states, in pertinent part, “Whoever solicits … to engage for hire in sexual … contact while in a public place may be sentenced ….” [Emphasis added.] Minnesota Statutes, section 609.321, subdivision 12, defines “public place” as “… a public street or sidewalk, a pedestrian skyway system …, a hotel, motel, or other place of public accommodation, or a place licensed to sell intoxicating liquor, wine, nonintoxicating malt beverages, or food.”

The defendant argued the interior of the officer’s car is not a public place for purposes of the prostitution laws and the lower court agreed, dismissing the charge after finding “public place” to be ambiguous and concluding that the term “should be interpreted to refer to areas ‘where the public is likely to be present.’”

The court framed the issue as “… whether that part of the ‘public street’ occupied by the vehicle inside which White was sitting was a ‘public place.’”

After examining other cases and contexts determining the scope of “public place,” the court noted that “Had the legislature so intended, it could have defined as a gross-misdemeanor offense the solicitation of prostitution in a motor vehicle.” It affirmed the lower court and held that the term does not include the interior of a car.

TABLE OF CONTENTS

The court held: “To the extent section 244.11, subd. 3, purports to limit this court’s ability to hear an appeal in certain cases, it violates the separation of powers by encroaching on this court’s power to define its appellate jurisdiction.”