AFTER
AFTER OPPORTUNITY TO DO SO HERE . WE'VE MOVED
WITH DISPATCH, YOU KNOW,
IN ORDER TO TO BRING THIS
TO USED TO BE HEARD AGAIN.
>> ALL RIGHT. ALL RIGHT.
WITH REGARD TO THE STATE'S
MOTION TO REINSTATE THE COURT IS
GOING TO GRANT THE MOTION
TO REINSTATE AND I WANT TO GO
A LITTLE BIT AT LENGTH
ADDRESSING IN READING OBVIOUSLY
THE OPINION CAME OUT AND IT WAS
VERY CLEAR THAT I DISAGREED
WITH IT AND SAID SO DENY
THE MOTION. AND JUST BECAUSE
OF MY DISAGREEMENT BUT NOT
WITHOUT FIRST CHECKING TO SEE IF
I WAS DUTY BOUND TO FOLLOW IT AS
PRECEDENT. AND IT IS NOW BASED
THE DEFENDANT'S APPEAL. THIS
COURT OF APPEALS HAS MADE IT
VERY CLEAR, YES, I WAS BOUND
FROM THE MOMENT THE OPINION WAS
FILED AND EXCEPT THAT I EVEN
AGREE WITH THE DECISION IN STATE
VS. KERKHOVEN THAT THEIR
OPINIONS HAVE PRECEDENTIAL VALUE
IMMEDIATELY. I WANT TO EXPLAIN
WHY BECAUSE I DID NOT BELIEVE SO
BEFORE.
BEFORE.
BEFORE. >> MY CONCERN IS HOW THE COURT
OF APPEALS GOT TO THAT POSITION.
>> THEY STATED IN THEIR ANALYSIS
THAT THE PLAIN LANGUAGE,
THE RULE SAYS THAT PRECEDENTIAL
OPINIONS TAKE IMMEDIATE EFFECT.
THAT IMPLIES THAT THIS COURT
DISREGARD DID PLAIN LANGUAGE
IN THE RULES OR AT WORST WAS TOO
LAZY TO LOOK UP THE RULES.
NEITHER IS THE CASE. UPON
READING THE OPINION, REALIZING
ITS APPLICATION TO THIS CASE,
THIS COURT IMMEDIATELY TURNED
TO THE RULES TO LOOK FOR PLAIN
LANGUAGE AS TO WHEN OPINIONS
THAT ARE MARKED AS PRECEDENTIAL
HAVE IN FACT THAT PRESIDENTIAL
EFFECT.
EFFECT.
EFFECT. >> WE FOUND SILENCE, NOT PLAIN
LANGUAGE. I THINK THE COURT
OF APPEALS REACHES TOO FAR BY
SAYING THERE'S PLAIN LANGUAGE
IN THE RULES.
>> THERE IS SILENCE. THERE IS
NOT LANGUAGE PROHIBITING OR
SAYING THAT IT IS ENTERED
A JUDGMENT OR THAT IT TAKES
EFFECT IMMEDIATELY. BUT IT IS
SILENCE. AND I THINK WHAT
THE COURT OF APPEALS HAS
INFERRED FROM THE SILENCE IS
THAT OPINIONS TAKE IMMEDIATE
EFFECT WHEN FILED. I ACCEPT
THAT BECAUSE OF MY SECOND
REASON, DESPITE MY DISAGREEING
WITH THEM, THAT THE PLAIN
LANGUAGE IS THERE.
>> IT IS MY BELIEF AND ANALYSIS
THAT COURTS HAVE INHERENT
JUDICIAL AUTHORITY TO SAY WHEN
THEIR OPINIONS HAVE EFFECT. IF
THE COURT OF APPEALS BELIEVES
THAT THEIR PRECEDENT
PRECEDENTIAL OPINIONS, THEY GET
TO DECIDE WHEN THEY'RE GOING
TO FILE, HOW THEY'RE GOING
TO FILE IT, WHETHER IT'S AN
ORDER, OPINION OR MORE
EXTENSIVE, THAT IS ENTIRELY
THAT IS IN THE RULES. THERE IS
PLAIN LANGUAGE ABOUT THAT .
>> BUT CLEARLY EVERY COURT HAS
AN INHERENT JUDICIAL AUTHORITY
TO DECIDE WHEN THEIR OPINIONS
WILL BE EFFECTIVE BECAUSE
THE RULES WERE SILENT IN THIS
COURT'S VIEW. OUR NEXT STEP IS
TO LOOK FOR CASE LAW AND WE
FOUND COLLINS.
FOUND COLLINS. >> WE SAID IT DOES NOT HAVE
PRECEDENTIAL VALUE UNTIL
JUDGMENT IS ENTERED. THE STATE
HAS SUCCESSFUL FULLY ARGUED
TO THE COURT OF APPEALS
THAT THAT WAS DICTUM IN COLLINS
AND DID NOT ESTABLISH
THE PRINCIPLE THAT THE OPINIONS
ARE HATAKE PRESIDENTIAL EFFECT
IMMEDIATELY. AND I ACCEPT
THAT THAT IS THEIR RULING.
AND BASED ON THAT, I THINK
THE INHERENT JUDICIAL AUTHORITY
THEY MADE THERE IS
THAT AUTHORITY TO MAKE
THAT DECISION AND TO SAY WHEN
WE FILE A PRESIDENTIAL OPINION,
IT HAS IMMEDIATE EFFECT.
I ACCEPT THAT NOW AS A RULE
OF LAW PROMULGATED BY THE COURT
OF APPEALS DUE TO ITS INHERENT
JUDICIAL AUTHORITY TO MAKE SUCH
PRONOUNCEMENTS BECAUSE NO
PRONOUNCEMENT WAS MADE TO SUCH
EFFECT BY ANY COURT THAT I WAS
ABLE TO FIND BEFORE
THE KERKHOVEN OPINION WAS FILED.
THAT IS WHY I SAID THAT THE
PRESIDENTIAL VALUE DID NOT
ATTACH OTTERTAIL JUDGMENT
BECAUSE THAT'S WHAT COLIN SAID.
DISTRICT COURTS, I THINK
ARE MORE AT RISK
TO START CALLING SUPREME COURT
PRONOUNCEMENTS DICTUM
PRONOUNCEMENTS DICTUM AND REFUSING TO FOLLOW.
>> BECAUSE OF THAT, I AM
GRANTING THE MOTION BECAUSE
ALTHOUGH THESE CASES
ARE FACTUALLY DIFFERENT, THAT IS
NEWER AND THE CASE BEFORE US,
I DON'T THINK IT'S A FACTUAL
DIFFERENCE THAT WEIGHS IN FAVOR
OF DENYING THE THE MOTION
TO REINSTATE BECAUSE OF THE
LANGUAGE. NOR NOR IS VERY CLEAR
WHEN INTENT IS DIRECTED AT
A SINGLE PERSON. THIS IS A LEGAL
PRINCIPLE THAT THEY'VE
ESTABLISHED NOW AS PRECEDENT.
THEN THIRD DEGREE MAY APPLY
SINGLE ACTS DIRECTED AT A SINGLE
PERSON FALL WITHIN THE GAMUT,
BUT OF MURDER IN THE THIRD
DEGREE. AND THEN HE SAID
THAT WAS PART THEY'RE HOLDING.
IT IS NOT DICTUM ACCORDINGLY.
I AM BOUND BY THAT I HAVE
TO APPLY THE RULE EVEN THOUGH
THEY ARE FACTUALLY DIFFERENT.
I HAVE TO FOLLOW THE RULE
THAT THE COURT OF APPEALS HAS
PUT IN PLACE SPECIFIC
THAT MURDER IN THE THIRD DEGREE
APPLIES EVEN IF THE PERSON'S
INTENT AND ACTS ARE DIRECTED AT
A SINGLE PERSON. I DISAGREE
WITH THE STATE THAT THE DEFENSE
HAS FORFEITED ANY OTHER GROUNDS
AND SO THAT'S WHY I'M PERMITTING
THE OTHER GROUNDS TO BE ARGUED.
BUT I DID NOT FIND THEM AVAILING
HERE FIRST OF ALL, THE EX POST
FACTO THE STATUTE HAS NOT
CHANGED. IT HAS REMAINED
THE SAME FOR YEARS, WAS THE SAME
AS IT IS TODAY AS IT WAS ON MAY
25TH OF TWENTY TWENTY.
AND FINALLY, DISCRETION. IT IS
AN ABUSE OF DISCRETION STANDARD
,BUT DISCRETION CAN BE ABUSED.
AND I THINK WHEN THE MY RULING
BOTH IN THE FALL AND LATELY
IN DENYING THE MOTION
TO REINSTATE WAS BASED ON A
LEGAL PRINCIPLE ALONE, NOT
ON THE FACTS OF THE CASE. IT WAS
THE FACTS OF THE CASE THAT THIS
APPEARED TO BE AN ACT DIRECTED
TOWARDS A SINGLE PERSON. AND ON
THAT LEGAL PRINCIPLE OF SINGLE
PERSON RULE, THIS COURT GRANTED
A MOTION TO DISMISS FOR PROBABLE
CAUSE, DENIED THE MOTION
TO REINSTATE. BUT NOW THAT THE
SUPREME COURT OR THE SUPREME
COURT, THE COURT OF APPEALS HAS
SAID IN A PRESIDENTIAL OPINION
SPECIFYING A SINGLE PERSON RULE
APPLIES TO THIRD DEGREE MURDER,
I FEEL BOUND BY THAT AND I FEEL
IT WOULD BE AN ABUSE
OF DISCRETION NOT TO GRANT
THE MOTION AS A LAST COMMENT.
>> THERE ARE CASES.
>> IN FACT, I HAVE MYSELF I
THINK IT WAS TRIAL BEFORE LAST
ON A CRIMINAL SEXUAL CONTACT
CASE. THE STATE CAME IN ON
THE DAY OF TRIAL OF ASKING
TO ADD AN ASSAULT IN THE FIRST
DEGREE CHARGE AND IT CAME OUT
OF LEFT FIELD. THERE'S REALLY NO
NOTICE THAT THAT WAS GOING TO BE
IMPORTANT. AND SINCE IT WAS AN
ASSAULT AND A CRIMINAL SEXUAL
KIND OF CASE, WE WERE TALKING
ABOUT DIFFERENT INTENSE,
DIFFERENT FOR FOCI ON THE ACTS
THAT WERE COMMITTED. AND I
DENIED THE MOTION TO AMEND
BECAUSE I THOUGHT IT DID. IT
CAME OUT OF LEFT FIELD
BASICALLY. AND THIS CASE IS
DIFFERENT. THIS CHARGE HAS NOT
COME OUT OF LEFT FIELD. IT WAS
ORIGINALLY CHARGED. I THINK
THE DEFENSE HAS BEEN AWARE
THAT THE STATE WILL TAKE EVERY
OPPORTUNITY TO TRY AND ADD IT
BACK. THE REMEDY IS NOT TO