42 Bench&Bar of Minnesota s May/June 2014 www.mnbar.org
applies retroactively.” Tony Allen Roman Nose v. State, A13-1483 (Minn.
04/16/2014). Slip op. at http://mn.gov/
n Restitution: No Set-Off for Victim’s
“Contributory” Fault. The victim in
this case, D.S., confronted respondent,
followed him, and instigated the fight
in respondent’s chiropractor’s office, first
punching respondent in the head. During the fight, respondent stabbed D.S.
in the leg and stomach. Respondent was
convicted of second-degree assault and
terroristic threats. Respondent pleaded
to the latter charge.
At sentencing, respondent
requested a restitution hearing separate
from sentencing. At that hearing,
respondent agreed to pay almost all
of the medical expenses, but only half
of the employment-related expenses,
based on the fact that D.S. was the
initial aggressor. The district court
agreed. Held, it was abuse of discretion
for the court to reduce the amount of
restitution based on the contributory
“fault” of the victim, under Minn.
Stat. §611A.045, subd. 1(a). Under
that statute, the court’s discretion is
delineated and held to be limited to
certain statutory factors including: the
amount of economic losses sustained
by the victim and the income resources
and obligations of the defendant. The
district court erred by considering the
aggressive role of D.S., and applying
a set-off. State v. Brandon Wayne
Riggs, A13-1189 (Minn. App.
n Search & Seizure: State Patrol
Inspector; Limited Authority. Appellant
was waved over for a roadside spot
check by a Minnesota State Patrol
employee, who was a commercial
vehicle inspector, but not a licensed
peace officer. The inspector testified
that he randomly decided to stop
appellant’s vehicle. In doing so, he
waved down the vehicle, turned on
his vehicle lights, exited, and directed
the driver to the side of the road. The
inspector found appellant’s privileges
had been canceled as inimical to public
safety, and after a full inspection, found
five truck violations.
Held, the inspector does not have
statutory authority as a commercial
vehicle inspector to stop anyone for
a roadside spot check. The various
statutes put forth by the state in this
opinion do not provide such employees
with law enforcement authority
to enforce §169.771, spot check
inspections. Therefore, the inspector’s
random stop of appellant was unlawful,
and the charges must be dismissed.
State v. Kevin Ervin Stall, A13-1041
(Minn. App. 04/14/2014). http://mn.gov/
n Controlled Substance: Passing Off to
Conceal Equals “Selling.” Appellant
purchased cocaine in Rochester, and
while returning home, noted police
officers about to stop his vehicle. He
then gave some of the cocaine to his
wife, telling her to hide it, which she
did inside her bra. Nonetheless, law
enforcement discovered the cocaine,
and charged appellant with three counts
of controlled substance crime, including
third-degree “sale” in violation of Minn.
Stat. §152.023, subd. 1( 1).
In this appeal of a postconviction
denial, appellant argues that he should
be allowed to withdraw his guilty plea
because his conduct with his wife concerning the cocaine did not meet the
statutory definition of “sale.” Finding
the joint constructive possession analysis of State v. Carithers, 490 N.W.2d 620
(Minn. 1992) inapposite, because the
couple in that case had jointly acquired
the drugs, the court of appeals concludes
that the act of appellant in this case did
constitute a sale, as that act is defined
by Minn. Stat. §152.01, subd. 15a( 1).
Abshir Abtidon Barrow v. State, A13-
1520 (Minn. App. 04/21/2014). http://
& LABOR LAW
n Defamation; Supervisor Remarks
Actionable. Negative remarks made
by a former supervisor in a background
check for a police officer position are
actionable defamation. The Minnesota
Supreme Court, affirming a ruling of
the court of appeals, rejected a claim
of absolute immunity, holding that the
lesser standard of qualified immunity
may apply which may be overcome
by showing malice. Minke v. City of
Minneapolis, A12-2272, 2014 WL
1385347 (Minn. 04/09/2014). Slip op. at
n Defamation: Union Personnel State-
ments at Union Meeting. Defamatory
statements made by union personnel
about the reasons for the discharge of
a grieving union member at a union
meeting are actionable. Reversing
the U.S. District Court in Minne-
sota, the 8th Circuit Court of Appeals
reinstated the lawsuit brought by the
discharged union worker. Thomas v.
United Steelworkers Local 1938, 743
F.3d 1134 (8th Cir. 2014), reh’g denied
n Unemployment Compensation: “Good
Reason to Quit.” The breach by an
employer of an agreement to allow an
employee to work from home one day
per week justifies quitting and eligibility for unemployment compensation.
The Minnesota Court of Appeals held
that because the employee had “good
reason to quit” due to the breach, he
was entitled to benefits. Phelps v.
TransX, Ltd., A13-1063, 2014 WL
684692 (Minn. App. 02/24/2014)
(unpublished). Slip op. at http://mn.gov/
n Labor Agreement; Outsourcing Claim.
A claim that an employer breached an
outsourcing agreement was rejected.
The 8th Circuit held that the employer
did not fail to require a subordinate to
comply with the old collective bargaining agreement; a new labor agreement
overrode the old one. Allied Sales
Drivers & Warehousemen v. Sara Lee
Bakery Group, 2014 WL 1057292 (8th
n Labor Law; Reinstatement Required.
An arbitration award reinstating an
employee to work as a record keeper for
animal health care was upheld by the
8th Circuit. The employer’s argument,
that restoring the employee to work despite alleged falsification of records was
contrary to “public policy,” was rejected.
Boehringer Ingelheim Vetmedica v.
UFC Workers, 739 F.3d 1136, 1138
(8th Cir. 2014).
n USERRA; Omitted Employee Car
Service Claim. An employee who was
on military leave in Iraq when his name
was left off a list forwarded by the employer to a new purchaser of the business can pursue a claim for violation of
his rights under the Uniformed Services
Employment and Reemployment Act