*1 they something long show that wit- as

ness describe and are material could

some relevant issue. jury at 74. Such exhibits allow the

Id. the ex- visualize the crime scene and

better victim, type of

tent and harm the which premedi-

material to intent However, relevant evidence

tation. if probative

be excluded its value is substan- by

tially outweighed danger unfair

prejudice under Minn.R.Evid. 403. photographs.

This ease involved photograph

The trial reviewed each it, admitting explanation an

before proba-

from the medical examiner as to the questionable photograph,

tive value each explicitly probative balanced its value potential creating preju-

against its unfair Thus, engaged in the

dice. re-

quired balancing test under Minn.R.Evid. and did not its discretion ad- abuse

mitting photographs into evidence.

The defendant received a fair trial and was

properly guilty degree of first murder.

Affirmed. BANK, STATE

CAMBRIDGE al., Respondents,

et Commissioner, JAMES, P.

John Revenue,

Department of State Minnesota, Appellant. DULUTH,

NORWEST BANK NATIONAL (formerly

ASSOCIATION First National Duluth), Respondent,

Bank of JAMES, capacity

John P. in his Revenue, and The

Commissioner of Minnesota, Appellant.

State of

No. C0-89-2097.

Supreme Court of Minnesota.

April

Rehearing May Denied

566 1987)1 us on from

pealed is before remand Supreme Court for recon United States light of the Court’s decision sideration Taxation, Virginia Department v. — U.S. -, 2510, 125 74 L.Ed.2d 113 S.Ct. McClung, Duluth (1993). Norwest Bank v. — U.S. -, 3026, L.Ed.2d 113 S.Ct. 125 order). (remand (1993) consid We have 714 previous this in two decisions. ered matter Gen., Huwe, Barry Atty. Gregory P. Asst. August began in of 1984 when The lawsuit Greller, Gen., Litiga- Atty. Tax Sp. R. Asst. refund 140 banks filed a consolidated over Paul, Div., appellant. tion St. for the tax action district 1979-83, pursuant to the Dietzen, Hoffman, Larkin, Christopher J. (recodi- (1984) 290.50, § 2 subd. Minn.Stat. McCarthy, P. Lau- Daly Lindgren, & James 289A.50, (1992)).2 § at Minn.Stat. subd. 7 fied Vennum, Waldoch, Lindquist R. & rence bank alleged excise Bank, et Minneapolis, for State Borrowing Supremacy violated al. Constitution, as well Clauses U.S. Schnell, Pickhardt, Robert L. Walter A. (1982), exempted § 3124 because it 31 U.S.C. Benson, Jr., Faegre Minneapolis, for Nor- & taxation income from certain from the banks’ Bank Duluth. west obligations it taxed from while income obligations.3 The their federal banks based claim on the Court’s decision U.S. Garner, Memphis Trust Co. Bank & 459 GARDEBRING, Justice. 692, 392, 103 74 562 L.Ed.2d U.S. (1983) im which held that a similar Tennessee challenge to the bank excise tax This (re (1984) by § tax was unconstitutional.4 posed 290.361 Minn.Stat. 1967, 4, University System); May Act of ch. As we in our first decision in this case: State stated 12, 297, (codified § 1967 Minn.Laws 465 doing Minnesota Banks business in State of (1978)) (industrial develop- § period required Minn.Stat. 474.12 relevant bonds). hy pay a net income. tax measured their ment 290.361, § tax was Minn.Stat. subd. 1. That provisions governed by the of Minn.Stat. case, applies 31 3. The federal statute that to this §§ § 290.02 and 290.02. Id. Both Minn.Stat. (1982) (formerly § at 31 U.S.C. codified 290.361 to an "excise" tax measured referred 742), provides: § U.S.C. 290.08, § by taxable net income. Minn.Stat. (a) (1984) 1987) obligations exempted any Stocks States (repealed the United subd. 8 exempt by or State from interest on either United States Government are taxation earned obligations gross income. political of Minnesota from State or subdivision a State. The exclusion, however, applicable to That was not exemption applies to each form of taxation "corporations under or taxable section 290.02 require obligation, the interest on added). Consequent- (emphasis 290.361." both, obligation, or to be considered in doing ly, Minnesota, for banks business in the state tax, computing except —(cid:127) obli- interest earned on federal tax, (1) nondiscriminatory im- franchise * * gations was included in taxable net income posed corporation *. compute figure chapter ex- used to Court has stated cise tax. statutory prohibition longstanding prin- codified Roemer, Cambridge 716, Bank v. State ciples preclude the of constitutional law which taxing from federal securities and income states by Society Savings generated them. See limitations, applicable

2. Due to the statute of Bowers, 143, 144, 607, 608, period claims were to the banks’ refund limited L.Ed. 950 filing. the date of The Minnesota from legislature, provisions as had enacted legislature repealed exemp- 4. The Minnesota early overriding the tax and as 1957 bank excise obligations in for income on certain state tions exempting earned on bonds. certain state 1957, response Memphis 2, Act 1983 in Bank case. § April See Act ch. (codified May § ch. Minn.Laws Minn.Laws 753 Minn.Stat. 136.32 (1978)) (revenue bonds issued liability- al The trial was bifurcated into bars to the otherwise retroactive application phase phase. Memphis Pursuant to a and a Bank and that the stipulation by parties, “acceptance-of-benefits” the court heard estoppel doctrine regarding procedural evidence four banks the 1979 was one such bar. *3 year. parties agreed

tax The that the trial We also our holding affirmed that severance liability con- of exemptions court’s conclusion the for income on state obli gations tax and all appropriate remedy, clusive as to all at issue of was an citing n plaintiff the The trial Beam holding banks. court the that the remedial decision is Memphis governed by unconstitutional under Bank. state law origi when the case The trial found the liable for nates in state state court. Id. at 653-54. We again refunds of taxes the on inter- the banks concluded the of sever obligations, est on the amount to ance federal with was “sufficient to cure the discriminato during phase ry be determined the of tax.” Id. at 655. remedy phase,

the trial. the close of At the Supreme The again granted U.S. Court liability the court the for assessed certiorari, Cambridge vacated our II judg $285,750.00 refunds at a total of for the four ment, again and remanded the case to us for year. test banks the test reconsideration, light this time in of its deci review, agreed On we the trial court sion in v. Harper Virginia Department — Taxation, U.S. -, discriminatory 2510, that the tax was under Mem- 113 S.Ct. 125 Bank, (1993). phis further held that the banks L.Ed.2d Supreme but 74 The Court’s estopped challenging summary from the statute’s reconsideration leaves order the they Cambridge because benefitted II decision force or without ef exemptions 393, from the bond fect. Hershberger, state income State v. which 395 Supreme made unconstitutional. Cam- The Court’s or Roemer, bridge State Bank v. 457 der N.W.2d indicates that the Court has found the (Minn.1990) ”). 716, (“Cambridge intervening precedent “sufficiently 720 I analogous As to and, remedy, Memphis perhaps, we concluded that Bank compel decisive to re-examina only, applied Henry City should be tion of and the case.” v. Rock prospectively Hill, 776, 777, 1042, exemptions 1043, the severance 84 S.Ct. (1964). obligations 12 appro- income from state was an L.Ed.2d 79 priate remedy. Id. at 721-22. Virginia In Harper, Supreme Court Supreme granted

The Court U.S. certiora- invalidated a state statute which taxed feder I, judgment, ri in Cambridge exempting vacated the and al retirees’ benefits while from remanded the case for reconsideration in taxation of state local benefits and retirees. Taxation, light of in Harper Virginia Dept. its decision James B. Beam Dis v. 241 — (1991), tilling Georgia, 111 Co. v. 501 Va. 401 rev’d U.S. S.Ct. S.E.2d 870 2439, 115 (1991). -, 481 Norwest L.Ed.2d Bank U.S. 125 L.Ed.2d 74 — James, -, (1993). Virginia court, Duluth 111 gave U.S. S.Ct. The (1991). only prospective 115 L.Ed.2d 1047 Beam effect to held its decision Supreme applied that when “has Court was unconstitutional. Id. 401 S.E.2d at litigants Supreme rule of in case it 873. law to one must After the U.S. Court vacated respect do so with to all others barred the decision and remanded it for reconsidera Beam, procedural requirements judicata.” light Virginia res tion in or —Beam, at -, respects. 111 in U.S. S.Ct. reaffirmed its decision all See Taxation, reconsideration, Upon Harper Dept. Virginia we held we were compelled by apply Memphis Beam to Va. Bank 410 S.E.2d certiorari, retroactively, again Supreme again granted but denied Court re remanded, grounds. addressing refunds on several versed and both retro- — (Minn. James, activity Harper, State Bank v. N.W.2d and remedial issues. 1992) ”). First, U.S. -, (“Cambridge Thus, analysis II our we reaffirm S.Ct. estoppel holding, concluding application Harper ed our turns on procedur Beam allowed states to raise instant matter. objec- payment present analysis of withhold remedial Court’s pro- tions defenses in a tax enforcement ruling Harper affects our If at 2250. ceeding. finding the tax issue 5 After II. proce- Virginia opts postdeprivation for a unconstitutional, Su dure, however, provide it must one to order refunds had declined

preme Court following “clear and certain” remedies: Harper, 401 retirees. See federal exacted, unlawfully a retroac- 874; refund of taxes at 632. As we S.E.2d S.E.2d taxpayers, or tive tax on benefitted the U.S. noted partial partial inquiry combination of that the remedial has held to create “in hind- retroactive assessment governed by state law where the case one *4 II, sight nondiseriminatory Id. at Cambridge scheme.” court. 480 originates in state — Beam, 39-41, at (citing 2251-52. at 110 S.Ct. at 653 U.S. N.W.2d 2443). -, Harper, In 111 at howev S.Ct. evaluating procedures, In the Florida’s er, Virginia the court and the Court reversed had Court concluded that because Florida with the directive that remanded the decision summary various and established “sanctions provided the relief the state court measure encourage payment to of taxes remedies” against by the remedial scheme feder state’s disputes over the tax’s prior to resolution of — Harper, process principles. U.S. al due validity, provide state did not a “mean- the ” at -, at 2520. The Court cited 113 S.Ct. ingful predeprivation relief opportunity for in process principles set out McKes the due provide therefore a “clear and cer- and must Corp. Beverages, Alcoholic son v. Division of remedy” any tain for unlawful exaction 17 110 110 L.Ed.2d 496 U.S. S.Ct. through process. its postdeprivation taxes (1990) controlling precedent. A as closer 38-39, 110 2251. Id. at S.Ct. at The Court at is therefore instructive. look McKesson rejected equitable argument consid- that erations, good faith reli- such the state’s McKesson, the Court considered presumptively could ance on a valid obligation provide scope of to tax- a state’s requirement the constitutional override payment payers retrospective relief for of an 44-49, relief. at 110 retrospective Id. S.Ct. Supreme tax. Florida unconstitutional at The Court further held that 2254-57. liquor that excise Court had found its stability in financial could state’s and tax scheme violated commerce clause relief, to its justify provide a refusal but that enjoined preferential of a future enforcement avoiding costs interest in administrative and products, tax rate but declined to could a role play economic dislocation serious order a or other form relief choosing fine-tuning in and to be relief already paid taxes under the unconstitutional at provided. 110 S.Ct. at 2256-58. Beverages statute. Division Alcoholic McKesson, 524 So.2d 1000 and Tobacco v. previous We reconciled our decisions rev’d, (Fla.1988), 110 S.Ct. U.S. analysis inapplicable or found McKesson its The U.S. L.Ed.2d case several reasons. reversed, holding First, that unlawful distinguished McKesson it we because deprivation property case, is a exaction of taxes an was a commerce clause rather than process immunity clause for which a intergovernmental under the due tax case like I, procedural protections. provide Cambridge. Cambridge at state must N.W.2d 721; McKesson, II, at at S.Ct. 2250. 480 N.W.2d at 653-54. that that at issue in The Court held states choose We reasoned the tax McKes- postde- groups competi provide predeprivation or a son harmed one of two either tors, here; in privation procedure. predeprivation pro- A and that harm was absent tax taxpayers enjoin Cambridge to sue to all of the banks the same cedure must allow any competitive prior payment none eco imposition of the tax or to thus suffered Union, AFL-CIO, Harper's major subsequent effect cases is Workers Int’l Local No. 150-A on NLRB, (D.C.Cir.1993). holding application 1 F.3d This the Court's its of a rule given holding Cam in has little effect on our decision in of federal law shall retroactive effect II, U.S. at -, applied Memphis Harper, bridge - as we all future cases. retroactively at decision decision. 2513. See United Food Commercial Bank I, disadvantage. Cambridge place 457 in year nomic in Minnesota 721; Cambridge process 480 N.W.2d at issue which satisfied the federal due N.W.2d at set out in Harper that the standards McKesson. clarifies predicated II 480 controlling prece N.W.2d 651-52. We our Court considers McKesson purely prospective conclusions that the immunity relief intergovernmental dent tax well, obligation adequate severance was and that making the cases as estopped claiming banks were from refunds provide retrospective applicable relief — part under a state law doctrine in on the fact Harper, Cambridge. See U.S. at - predeprivation procedure that a existed in -, 2519-20. After Minnesota the time taxes these were as longer distinguish can no McKesson sessed. ground applies only it to commerce provided taxpayers Minnesota op with the clause cases. portunity challenge the tax statute Further, Harper the exis holds that paying court without first the taxes at remedy which tence of a Respondent banks, however, issue.7 argue meets set out in the tests McKesson procedure available preliminary question which determines in 1980 when the banks filed 1979 remedy required for an unlawful tax under *5 meaningful tax opportu returns was not the the Due Clause of consti Process the federal nity predeprivation required by relief — at -, Harper, tution. n clarification that Harper McKesson. Given Department at 2519. Both the Minnesota of directly case, McKesson this controls we respondent agree Revenue and the banks carefully prede- must reconsider whether a meaning that the after existence of a privation remedy which satisfies McKesson n remedy necessary pre ful predeprivation is a requirements existed in at the denying remedy a condition to retroactive on time the the tax. theory. If state law there a mean was 1980, litigants challenging In taxes in ingful procedure predeprivation in Minnesota Minnesota were able to tax file for refunds in paid, at tax the time the was then we have court, pay district but were to the denying backward-looking option the relief 290.50, § tax first. See Minn.Stat. subds. 1-2 state law bars relief come into (1980). 1977 the has also Since had an play. procedures If exist or those did not jurisdiction tax administrative court with “meaningful” design were not then we must a questions arising the over all under “clear backward-looking and certain” tax laws. Minn.Stat. ch. 271 Soon hindsight which creates in a nondiscriminato creation, however, tax after the court’s we ry tax scheme.6 jurisdiction questioned its decide constitu II We concluded upheld tional issues.8 the constitutionali case, if apply ty even McKesson did this of the administrative tax court itself in 1979, of predeprivation procedure saving there was a form cited as the but feature the 6. The standard constitutional set out in McKes for which refunds are claimed. require son is rooted in Due Process Clause 480 N.W.2d 651. We examined "1979-80 given hearing years” year ment that an individual a tax and concluded “in each before deprived being finally provided property. of his McKes issue” Minnesota a rem- son, 36-37, edy. parties always 496 U.S. at 110 S.Ct. at 2250-51. confined Id. have many policy arguments year; noted con to the 1979 tax we are bound support opinions allowing analyze parties stipulation siderations its states to and thus deny hearing paid. year parties stipulated until after a tax Id. at would is which control 37-38, year 2250-51. The Court in the outcome for each at issue. simply held McKesson that if a state chooses that course, Revenue, provide retrospective upon it must relief 8.In Harris Commissioner (Minn. 1977) subsequent upheld determination that the was un a tax tax N.W.2d we court lawfully ruling exacted. Id. at S.Ct. at we but jurisdiction noted that court's hear a challenge statutes constitutional to state had not ambiguity challenged by parly. is II There some in our been 569 n. 1. either opinion regarding holding whether our was for We clarified that our decision intended no com year only tax or for tax all of the ment on issue. pay the court, whether to If the banks decided tax creating the statutory scheme September of challenge it after tax or option to elect taxpayers had the fact that tax court did held that the when McCannel by filing in district court. judicial remedy jurisdiction over constitutional is not have Appeals, 288 N.W.2d v. Tax Court of Wulff sues, meaningful predepri- (Minn.1979). existence of 221, 224-25 questionable. more is even vation tax held that the September of would still argues that the banks The state original jurisdiction over did not have have their case heard been able to have issues, that the tax but constitutional stating prepayment, court without claims first constitutional could consider continued to the tax court after McCannel from district court.9 Matter transferred raising constitutional issues cases consider (Minn.1980); McCannel, 301 N.W.2d in tax court before were filed which Reve- also Commissioner see Guilliams was released. The McCannel decision (Minn.1980). nue, 139 n. cases from 1981 and 1982. cites two such the constitution- Finally, in 1984we affirmed case, also cites a 1981 The state whereby the tax court ality procedure aof Revenue, No. v. Commissioner Fussard jurisdiction constitutional over could obtain (Minn.Tax *6 Ct. 1981 WL by transferring the case to the district 1981), court ruled that cases in which the tax transfer having the district court court and validity directly questioning the of a state Mining to the tax court. Erie the case back per would be dismissed or referred statute se Revenue, 343 N.W.2d v.Co. Commissioner of type precisely That district court. 261, 264 issue; challenge thus the banks’ of ease at mind, history in the existence of With likely dismissed or have been either challenging before some avenue *6 to district court. Dismissal of referred early can taxes in to mid-1980 paying 1979 hardly meaningful predeprivation lawsuit is a asserted, only hindsight. Given but with remedy. in Harris had called that our 1977 decision procedure argues also that the The state jurisdiction over question into the tax court’s raising constitutional for transfer of cases issues, and that the issue re- constitutional from tax court to district court unsettled, think this mech- we do not mained practiced immedi- back to the tax court was “meaningful opportunity” provided anism ately decision. There after the McCannel contrast, In a called for McKesson. problems argument. are two clearly postdeprivation ex- scheme for review First, not affirm the we did early in the banks would isted when in procedure until 1984 the Erie of that challenging the constitu- have filed a lawsuit v. Com- ease.10 See Soo Line Railroad Co. tionality provided A of the tax. state statute Revenue, 377 N.W.2d missioner of court to for refund actions in district recover (Minn.1985). Second, the state has not n. 1 unlawfully collected. Minn.Stat. taxes fol- procedure that such a could be shown light uncertainty § 290.50 In upon paying without the tax transfer lowed juris- tax court’s regarding the reach of the to district court. availability of the statu- diction and the clear conclusion, during part of the latter tory procedure, we cannot assert that refund applicability proceed- tax court meaningful predeprivation remedy 1980 the of a re- issue, per early ing type of case at a se quired by in to mid- McKesson existed challenge to a was doubtful state Revenue, us, upon Commissioner the record before the test banks 9. Based apparently Nagaraja McCannel was filed their taxes before case itself was filed The arguments parties released. As the have raised paid. were as a refund action after taxes 1980, however, dealing with the remainder of copy counsel submitted a state's banks' available have evaluated the remedies showing Nagaraja itself brief in year. entire jurisdiction argued that the Tax Court lacked challenge. a constitutional hear can cite one action in which The state Erie, Nagaraja procedure prior was followed Having our decision in McCannel. Other un- after concluded Minnesota did provide also call meaningful predeprivation remedy certainties after McCannel into a a in adequacy proceed- tax court question design McKesson commands that we ing predeprivation remedy. It a remedy is un- clear and certain in which creates clear, example, hindsight nondiscriminatory whether scheme. McKesson, 39-40, the suit have dismissed or used would 496 U.S. S.Ct. spelled procedure transfer that we later out 2251-52. We have three choices: a and, procedure, in Erie if it transfer taxes obligation income, used the on federal required exempted the banks would have been retroactive tax obligation whether on pay the tax incident to the transfer income or ap a combination of the two 40-41, 110 prepayment proaches. prereq- district where is a S.Ct. at 2252-53. qr Beam, litigation. Nothing uisite to Thus our conclusion that in pre McKesson meaningful predeprivation remedy considering equitable no existed cludes us from factors in designing holds all of 1980. appropriate remedy. Such may considerations not result in a denial of existence of the refund statute in meaningful backward-looking remedy, provides support further for our but we in consider administrative costs rely To decision. on the banks’ use of the the selection fine-tuning of the relief. deny refund statute to now them a McKesson effectively deny meaning- the banks a hearing adequate ful without notice. Prior to decision, taxpayers the McKesson had no We have considered each of the pos- three they notice that were to take advan- sible remedies and choose to affirm the trial tage procedures predeprivation plaintiff or- court’s conclusion that all banks are qualify der to for a Even if refund. there entitled to refunds of the unconstitutional tax obligations was on federal earned they banks did not know chose all tax question. when between noted Cam- filing for a filing bridge refund in court and I Department district that the Minnesota court, choosing action, stipulated in tax that in a refund Revenue that it will not collect they foreclosing right exempted recov- retroactive tax on income from *7 Moreover, I, ery.11 obligations. Cambridge the tax refund statute did 457 N.W.2d requirement not have a that the tax be 721. While we stand our conclusion protest taxpayer attempt Department’s stipulation under or that the that Revenue power ap- first take his or her claim to tax court. could not limit See our to fashion an propriate remedy, stipulation Trust and Sav. Co. v. one Brinkerhoff-Faris Hill, possible 74 L.Ed. difficulties inherent in collect- (1930) (finding process ing Furthermore, tax. due violation a retroactive Supreme spoken when Missouri Court denied United States Court reme- has dy taxpayer by holding clearly taxpayer regard advantage of problems failed to take retroactive administrative tax.12 These are also previously remedy; remedies when court had found inherent in a such a combination power necessarily agency type lacked to hear the would include a case retroac- issue). recognize tive tax. While we that this refund beyond temporal point 11. This issue did not arise in McKesson some itself retroactive imposition significant may be taxpayers of a tax burden because the Court there did transgress oppressive “so harsh and meaningful remedy, not have a limitation," depending constitutional on “the regardless thus a was due of whether it it nature of the tax and circumstances in which was under tax refund Florida's statute. is laid.” 496 U.S. at 40 n. 110 S.Ct. at 2252 n. McKesson, noted 12. the Court it had (citations omitted). language We cited previously held Cambridge that it II and concluded impose the retroactive assessment of a tax in- collect a curative tax on the unfair and necessarily deny process crease does not due banks in this case. increased, though to those are 654. whose taxes state, on the burden place a serious will DOBLE, Relator, Anthony collected the has D. the state

also note many years for which tax for unconstitutional to the statute due will not recover the banks tax refund actions. limitations on JESCO, and Crum & Forster INC. Companies, Insurance from the court’s order affirm the trial Respondents. trial, including the phase of the

remedial expense deduc- to all conclusions as court’s No. CX-94-16. interest. entitlement to at issue and the tions the amount of determined The trial court of Minnesota. banks for the to each of the test refund owed remand, trial court year. April 1979 tax On the test refund owed to calculate the should 4,May Rehearing Denied remaining years and to the banks for the years at remaining plaintiff for all tax equita- Having given consideration

issue. remedy, fine-tuning this refund

ble factors in finan- administrative and

we believe that the justify allowing the

cial burden on the state period pay refund over the same

state to collected. Given in which the tax was

of time period of collected over a

that the tax was trial court allow years, we order that the

four a four- to administer its refund over

the state

year period as well. to the trial court

Affirmed and remanded refund schedule con-

for the calculation of a opinion.

sistent with this

PAGE, (concurring specially). Justice the result the court

I would have reached analysis today through

reaches its elaborate I II and rele simply Supreme Court decisions more

vant directly. statute in existence The refund paid, Minn.Stat.

at the time the taxes *8 5(b) (1978), 290.50, provides:

§ “Not subd.

withstanding any provision other of law any overpayment contrary, in the case of n * * bal the commissioner shall * * * if dollar ance of more than one language of

taxpayer request.” shall so ambiguity and free from

this statute is clear Having determined

and should be followed. taxpayers

that the here taxes excess years legally due for the tax

of the amount compli

question, simply require we should

ance with the statute. Edina,

Sally Spector, for relator. S.