EN BANC CALENDAR

 
Scott D. Augustine, M.D., Appellant vs. Arizant Inc., et al., Respondent – Case No. A06-1238:  In 2004, appellant Scott D. Augustine, M.D., pleaded guilty in federal court to a single misdemeanor count of aiding and abetting Medicare fraud under 42 U.S.C. § 1320a-7b(a)(2) and agreed to pay a fine.  Dr. Augustine then sought indemnification for the fine from respondent Arizant Inc., his former employer, under Minn. Stat. § 302A.521 (2006).  Section 302A.521 requires a corporation to provide indemnification for judgments, penalties, fines, and the like, to current and former employees provided that, among other things, the employee “acted in good faith” and, in the case of a criminal proceeding, “had no reasonable cause to believe the conduct was unlawful.”  A jury found that Dr. Augustine was entitled to indemnification under section 302A.521.  On appeal, the court of appeals reversed, concluding that Dr. Augustine’s guilty plea to fraud conclusively established that he had not acted in good faith.  At issue on appeal to the supreme court is whether a guilty plea to fraud conclusively bars an employee from seeking indemnification under section 302A.521.  (Dakota County)

In re Petition for Disciplinary Action against Scott E. Selmer, a Minnesota Attorney, Registration No. 156024 – Case No. A06-2254:  An attorney discipline matter that presents the question of what discipline, if any, is appropriate under the facts of the case.
 
State of Minnesota, Respondent vs. Robert M. Hughes, Appellant – Case No. A07-144:  Appellant Robert Hughes was convicted after a jury trial of first-degree murder.  On appeal from his conviction, Hughes presents the following issues for consideration by the supreme court:  (1) whether there was sufficient evidence of premeditation to support his conviction; and (2) whether the district court committed plain error in its instructions to the jury on the elements of premeditated first-degree murder and the lesser offense of second-degree intentional murder.  Hughes raises additional issues in a pro se supplemental brief.  (Freeborn County)

In the Matter of the Welfare of the Children of:  T.R., T.M., P.P., and B.H., Parents – Case No. A07-666:  Appellant T.M. is the noncustodial father of a daughter.  In 2005, the girl and her three siblings were removed from mother’s home and placed in foster care, and the county petitioned to terminate all parental rights.  Father’s out-of-home placement plan required him, among other things, to refrain from all use of mood-altering chemicals.  After trial, father’s parental rights were terminated under Minn. Stat. § 260C.301, subd. 1(b)(4) (2006), on grounds of palpable unfitness, citing in part father’s positive tests for use of alcohol and marijuana.  A divided court of appeals affirmed, the dissent arguing that termination of parental rights for palpable unfitness requires a finding that the parent’s conduct related directly to the parent-child relationship.  On appeal to the supreme court, father asks the court to decide:  (1) whether the evidence of his palpable unfitness was clear and convincing; (2) whether the county’s efforts to reunify him with his daughter were reasonable; and (3) whether the district court erred in determining that termination of his parental rights was in the best interests of his daughter.  (Anoka County)
 
Alissa Christine Beardsley, Appellant vs. Dante’ Antonio Garcia, Jr., Respondent – Case No. A06-922:  Appellant Christine Beardsley and respondent Dante’ Garcia, Jr., signed a recognition of parentage following the birth of Beardsley’s son, but Garcia has not been otherwise adjudicated as the boy’s father.  In March 2006, Beardsley sought an order for protection against Garcia.  The district court granted the order for protection, awarded Beardsley temporary sole physical and legal custody of the boy, and granted Garcia’s oral request for parenting time.  The court of appeals affirmed the district court’s order.  The issue on appeal to the supreme court is limited to whether the district court exceeded its statutory authority under Minn. Stat. § 257.541 (2006) in granting parenting time to a respondent in an order for protection proceeding when the sole basis for granting parenting time is a recognition of parentage.  (Hennepin County)

In re Petition for Disciplinary Action against Gary K. Wood, a Minnesota Attorney, Registration No. 118722 – Case No. A07-213:  An attorney discipline matter that presents the question of what discipline, if any, is appropriate based upon the facts of the case. 

In re the Marriage of:  Wayne Alan Butt, Appellant vs. Eleanor Anna Schmidt, Respondent – Case No. A06-1015:  Appellant Wayne Butt and respondent Eleanor Schmidt were divorced in 2005.  Under the judgment and decree, the parties waived any claim to spousal maintenance beyond rehabilitative maintenance awarded to Eleanor for a period of 42 months; the issue of child support was reserved.  In a second order, the district court ordered Wayne to pay child support but declined to impute income to Eleanor based on lack of evidence or to treat spousal maintenance as income for purposes of the Hortis/Valento formula.  The court of appeals affirmed the district court on the imputation of income, ruling that Wayne had not met his initial burden to show that Eleanor was voluntarily unemployed or underemployed.  The court of appeals also agreed that the district court should have treated spousal maintenance as income under Hortis/Valento, but remanded the matter to the district court with instructions to “make any adjustment to the maintenance award deemed necessary to achieve an equitable result in this case.”  The issues on appeal to the supreme court are:  (1) whether the court of appeals erred in giving the district court discretion on remand to adjust the spousal maintenance award, given the parties’ waiver of any claim to additional maintenance and the provision in the judgment and decree divesting the district court of jurisdiction over maintenance; and (2) whether the court of appeals erred in placing the burden on Wayne to show that Eleanor was voluntarily unemployed or underemployed.  (Washington County)
 
In re Petition for Disciplinary Action against Stephen Vincent Grigsby, a Minnesota Attorney, Registration No. 291973 – Case No. A07-688:  An attorney discipline matter that presents the question of what discipline, if any, is appropriate based upon the facts of the case. 

In re Petition for Disciplinary Action against Kent Frederick Strunk, a Minnesota Attorney, Registration No. 288391 – Case No. A07-1901:  An attorney discipline matter that presents the question of what discipline, if any, is appropriate based upon the facts of the case.

EN BANC NONORAL – Michael Wayne, petitioner, Appellant vs. State of Minnesota, Respondent – Case Nos. A07-629 and A07-1687:  Appellant pro se Michael Wayne was convicted of first-degree murder in 1987; his conviction was affirmed on direct appeal.  Wayne’s fourth petition for postconviction relief was denied by the district court without an evidentiary hearing, and Wayne’s motion to amend his petition to include a claim of newly-discovered evidence was also denied.  Wayne’s petition asserted, among other things, that the district court erred in its instructions to the jury, that the district court erred in allowing the admission of certain evidence, that distances and estimated travel times now available on Mapquest® establish that Wayne could not have been at the scene when the murder was committed, and that Wayne was denied the effective assistance of counsel at trial.  The issue for the supreme court is whether the district court abused its discretion in denying Wayne’s petition for postconviction relief without an evidentiary hearing and in denying Wayne’s motion to amend his petition.  (Waseca County)