EN BANC CALENDAR

 
Gary J. Milner, et al., Respondents vs. Farmers Insurance Exchange, Appellant - Case No. A06-178:  Respondent Gary Milner and the other respondents sued their employer, Farmers Insurance Exchange, claiming that they were owed compensation for overtime under the Minnesota Fair Labor Standards Act, Minn. Stat. ch. 177 (2006).  Farmers Insurance defended on the basis that respondents fit within the statute’s exemption for employees in executive, administrative, or professional positions.  A jury found that respondents’ primary duties were not managerial, but declined to award respondents monetary damages.  After the jury’s verdict, the district court granted respondents’ motion for an injunction requiring Farmers Insurance to reclassify respondents as nonexempt employees.  The court awarded civil penalties of $500 per person per pay period to those respondents who had been classified as exempt.  The district court also awarded respondents their attorney fees and costs, increased by a 50 percent multiplier based on the results obtained.  The court of appeals affirmed, but required the civil penalties to be paid to the state rather than to the individual respondents and eliminated the multiplier from the attorney fees award.  The following issues are presented to the supreme court:  (1) whether the district court erred by awarding civil penalties and equitable relief for violations of Minn. Stat. §§ 177.23 and .30 (2006) and Minn. R. 5200.0100 (2005), where the complaint did not allege a violation of section 177.30 and the complaint did not seek civil penalties; (2) whether the district court erred by imposing an injunction and awarding civil penalties under section 177.27 against an employer who is not held liable to employees for unpaid compensation; (3) whether the district court erred in its award of respondents’ attorney fees and costs; (4) whether the court of appeals erred in ordering that civil penalties be paid to the state, rather than to the individual respondents; and (5) whether the court of appeals erred by eliminating the multiplier from the district court’s award of respondents’ attorney fees.  (Hennepin County)

State of Minnesota, Respondent vs. Joshua Lawrence Johnson, Appellant – Case No. A06-131:  While civilly committed to the state hospital at St. Peter, Minnesota, appellant Joshua Johnson assaulted a staff member and made terroristic threats toward her and others.  Johnson was arrested and transferred to the secure facility at Moose Lake.  Johnson later pleaded guilty to one count of making terroristic threats and was sentenced to five years of imprisonment, with execution stayed, and was ordered to serve 60 days in the county jail.  A defendant is entitled to jail credit for “all time spent in custody in connection with the offense or behavioral incident for which sentence is imposed.”  Minn. R. Crim. P. 27.03, subd. 4(B).  At issue is whether Johnson is entitled to custody credit for the time spent at the Moose Lake secure facility between his arrest and sentencing.  (Nicollet County)
 
Mark Alan Stutelberg, petitioner, Appellant vs. State of Minnesota, Respondent – Case No. A07-383:  Appellant Mark Stutelberg was convicted in 1994 of first-degree murder.  In this appeal from the denial of a petition for postconviction relief, Stutelberg presents the following issues for consideration:  (1) whether the district court erred in denying his petition for postconviction relief without an evidentiary hearing; (2) whether the case was properly tried in Hennepin County, given that the victim’s body was found in Goodhue County; (3) whether he is entitled to a new trial because he did not receive the effective assistance of counsel at trial; (4) whether he knowingly and voluntarily waived the right to testify in his own defense; (5) whether he is entitled to a new trial because of prosecutorial misconduct or the erroneous admission of hearsay statements; (6) whether he is entitled to a new trial based on newly discovered evidence; and (7) whether the newly discovered evidence establishes his actual innocence.  (Hennepin County)

In the Matter of the Civil Commitment of:  Terrance John Giem – Case No. A06-1588:  On October 20, 2005, Ramsey County filed a petition for the civil commitment of Terrance Giem, who was about to be released from the Moose Lake Correctional Facility, as a sexual psychopathic personality and/or a sexually dangerous person.  Minnesota Statutes § 253B.08 (2006) requires a hearing on a petition for commitment as a sexual psychopathic personality and/or a sexually dangerous person within 90 days from the date of the filing of the petition, and allows the district court to extend the time of the hearing for up to an additional 30 days.  The statute also provides that the proceeding shall be dismissed if the hearing is not held within the allowed time, allows the proposed patient to demand at any time that the hearing be held immediately, and provides that the petition “shall be automatically discharged” if the hearing is not held within five days of the demand (within fifteen days of the demand with good cause shown).  In February 2006, Giem filed a motion for dismissal of the petition or, in the alternative, that the matter be set for trial immediately.  The district court denied Giem’s motion and set the matter for trial in July 2006; the court of appeals affirmed.  The issues before the supreme court are:  (1) whether the district court had jurisdiction to hear the county’s petition for civil commitment once Giem demanded an immediate hearing on the petition and the hearing was not immediately held; and (2) whether the district court erred in determining that Giem had waived his statutory right to an immediate hearing.  (Ramsey County)
 
Aja Bjerke, Respondent vs. Suzette E. Johnson, Appellant, Kenneth D. Bohlman, Defendant – Case No. A06-117:  Respondent Aja Bjerke, then a minor, was a periodic guest at a horse farm owned by appellant Suzette Johnson, where Bjerke received room and board and riding lessons in return for work around the farm.  While staying at the farm, Bjerke was sexually assaulted by defendant Kenneth Bohlman, who also lived on the farm.  After Bohlman was criminally charged, Bjerke sued Johnson for negligence; the complaint against Johnson was dismissed by the district court but reinstated by the court of appeals.  Before the supreme court are two issues:  (1) whether Johnson had a duty to protect Bjerke from sexual assault because there was a “special relationship” between Johnson and Bjerke and the assault was foreseeable; and (2) whether the doctrines of comparative fault and primary assumption of the risk are proper defenses in a civil suit by a minor victim of sexual assault against someone who is alleged to have allowed the assault to occur.  (Hennepin County)
 
State of Minnesota, Respondent vs. Michael James Martin, Appellant – Case No. A06-2460:  Appellant Michael Martin was charged with fifth-degree possession of a controlled substance.  At his first appearance, the district court set bail at $1 million.  When Martin protested that bail was too high, the district court reduced bail to $50,000 bond or $5,000 cash or, in the alternative, a base-line drug test and random drug testing before trial.  The court of appeals affirmed in an order opinion.  Two issues are before the supreme court: (1) whether the district court is prohibited under Rule 6.02 of the Minnesota Rules of Criminal Procedure from ordering bail or other conditions of release unless the court reasonably finds that such conditions are necessary to assure the defendant’s appearance as ordered; and (2) whether the district court is prohibited from ordering bail as a means to require the defendant to submit to other pretrial release conditions.  (Carver County)

EN BANC NONORAL:  Voice Stream Minneapolis, Inc., d/b/a T-Mobile, a Delaware corporation, Respondent vs. RPC Properties, Inc., Appellant – Case No. A06-394:  Appellant RPC Properties, Inc., and respondent Voice Stream Minneapolis, Inc., reached a settlement agreement under which Voice Stream agreed to remove its antennas from the roof of RPC Properties’ office building in Roseville, which RPC Properties alleged were causing leaks in the roof, and to make certain repairs.  When Voice Stream had not removed its antennas or made repairs four months later, RPC Properties moved to enforce the settlement agreement and sought attorney fees and costs and an evidentiary hearing on monetary damages for the delay.  The district court awarded RPC Properties costs and disbursements, but its order was silent on RPC Properties’ request for a hearing on monetary damages.  The court of appeals affirmed, determining that the district court’s silence on the issue should be deemed a denial of the request.  The issue before the supreme court is whether a district court has an obligation to make an affirmative determination on an issue expressly raised by a party in its motion papers.  (Ramsey County) 
 
State of Minnesota, Respondent vs. Joel David Theis, Appellant – Case No. A06‑662:  Appellant Joel Theis entered an Alford-type plea to one count of fifth-degree criminal sexual conduct; nine days later Theis sought to withdraw his guilty plea.  Theis’s motion was denied and the court of appeals affirmed the denial.  The issue before the supreme court is whether Theis should have been permitted to withdraw his plea.  (Scott County)

EN BANC NONORAL:  Deanna L. Byers, Relator vs. Commissioner of Revenue, Respondent – Case No. A07-615:  The Commissioner of Revenue assessed relator Deanna Byers Minnesota individual income taxes, penalties, and interest for the years 1996, 1997, and 1998, and Byers appealed the assessments to the Minnesota Tax Court.  Byers raises the following issues on appeal:  (1) whether the tax court was required to transfer constitutional issues to the district court for determination before holding a trial on the merits; (2) whether Minn. Stat. § 289A.37 (2006), which places the burden of proof on the taxpayer who challenges a tax assessment, deprives the taxpayer of due process; (3) whether Minn. Stat. § 270.0603, subd. 3 (2004) (now Minn. Stat. § 270C.33, subd. 2(b) (2006)), invalidates a tax assessment that is not accompanied by a notice of the taxpayer’s rights; and (4) whether the evidence before the tax court was sufficient to support its determination of Byers’s income for the years in question.  (Tax Court)
 
State of Minnesota, Respondent vs. Tony M. Caine, Appellant – Case No. A07-176:  On appeal from his conviction of first-degree murder, appellant Tony M. Caine presents the following issues for review:  (1) whether the district court’s admission of the transcript of a guilty plea of a witness who claimed he could no longer remember the guilty plea was reversible error because Caine could not cross-examine the witness about the plea and because portions of the plea were vague, irrelevant, or were not based on the witness’s personal knowledge; (2) whether Caine acted under duress in firing the gun that killed the victim; (3) whether the district court’s instructions to the jury on the defense of duress were erroneous; and (4) whether Caine is entitled to a new trial because of prosecutorial misconduct.  (Hennepin County)
 
In re Petition for Disciplinary Action against James L. Berg, a Minnesota Attorney, Registration No. 139105 – Case No. A07-563:  An attorney discipline case that presents the question of what discipline, if any, is appropriate under the facts of the matter.

In re Petition for Disciplinary Action against Michael F. Swensen, a Minnesota Attorney, Registration No. 216847 – Case No. A07-1131:  An attorney discipline case that presents the question of what discipline, if any, is appropriate under the facts of the matter.