Saturday, July 31, 2010

Senelle deliberates and will vote no for Elton Kagan

Volokh conspiracy poster notes that sennelle is the first Rat to announce opposition to putting Harv Dean Elton Kagan on the. Supremes Didn't you know he listens to the concerns of Nebraskans about hour liberal track record? Those angry citizen townhalls last summer showed we were up in arms about the extreme expansion of fed preemption the overruling of Bowers vs Lawrence and the troubling judicial repeal of sentencing guidelines?
Sent from my Verizon Wireless BlackBerry

Sunday, January 03, 2010

Nebraska Court of Appeals, unpublished decision, affirms Hall County District Court conviction for child abuse,Class III felony (28-707(5)). Defendant objected to doctor's testimony that referred to the child's foster care because that evidence was cumulative of other evidence and harmless error. State v. Aguirre, A-09-117. Defendant appeals her conviction and sentence on a charge of felony child abuse. On appeal, Defendant asserts that the district court erred in overruling objections to testimony from Dr. Douglas Boon and in imposing an excessive sentence. We find the assertions on appeal to be without merit, and we affirm.
Nebraska Court of Appeals in an unpublished decision reduces Lancaster County Court small claims judgment from $2700 to about $150, the cost a veterinarian's bill homeowners incurred while caring for friends pet chihuahua dog she "bailed" to them for several months. Derr v. Linville, A-09-310This case involves the saga of Lola, the “left behind, but apparently much loved,” Chihuahua dog that the parties have litigated through three levels of our judicial system. Heather Linville (Heather) appeals from the decision of the district court for Lancaster County entering judgment in favor of Travis Derr (Travis) and Natasha Combs (Natasha) for $2,700, which the lower courts assessed against Heather because she left her dog, Lola, in the care and safekeeping of Travis and Natasha for nearly a year...the district court was clearly wrong in awarding judgment in the amount of $2,700, because under the applicable law, Travis and Natasha are only entitled to be reimbursed for actual expenses they incurred while caring for Lola, and the only proof of such was one vet bill. Therefore, Travis and Natasha are entitled to be reimbursed $152.98 for the July 2 vet visit. Thus, we affirm the judgment in favor of Travis and Natasha but modify such to the sum of $152.98.
Nebraska Court of Appeals in unpublished decision affirms bench trial judgment in favor of photographer at a middle school volleyball game for $50000 after she fell from a three-legged referee's stool during a game. #
  • Linner v. Wilcox-Hildreth Pub. Sch., A-09-257
Wilcox-Hildreth Public Schools (the School) appeals a judgment entered by the district court after a bench trial in this negligence action brought by Tammy S. Linner after she fell from a three-legged volleyball stand provided by the School for her use while photographing a junior high school volleyball team. On appeal, the School asserts that the judgment was contrary to the law and evidence and challenges the court’s ruling on an objection to Linner’s proffer of a deposition. We find no merit to the assignments of error.

Friday, January 01, 2010

Nebraska Supreme Court to hear appeal of Fremont municipal illegal immigration petition drive. What are the chances the Nelson court will kick this can down the road and off a cliff? Nebraska Judicial Branch Case Summaries Thursday January 7, 2010 subject to call at 900AM. S-09-0448, City of Fremont (Appellant) v. Wanda Kotas, Jerry Hart and John Weigert Dodge County, Judge John E. Samson Attorneys: J.L. Spray, Stephen D. Mossman (Mattson Ricketts Davies Stewart & Calkins) and Dean Skokan (Fremont City Attorney) (Appellant) --- Kris W. Kobach (Immigration Reform Law Institute, University of Missouri—Kansas City School of Law) Civil: Declaratory Judgment Action; City Initiative Petition Proceedings below: The district court determined it lacked subject matter jurisdiction over the issues raised in the First Cause of Action in the City’s Amended Complaint; granted the Petitioners’ Motion to Dismiss the First Cause of Action and granted summary judgment on the Second Cause of Action in the City ‘s Amended Complaint. The City filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court. Issues: The district court erred in (1) finding it lacked subject matter jurisdiction over the issues raised in the First Cause of Action in the City’s Amended Complaint; (2) failing to find that Neb. Rev. Stat. § 18-2538 provided the necessary statutory framework to determine the issues raised in the First Cause of Action in the City’s Amended Complaint; (3) granting Petitioners’ motion to dismiss the First Cause of Action in the City’s Amended Complaint; (4) failing to find the City Initiative Petition circulated and filed by Petitioners contained multiple subjects; (5) failing to find the City Initiative Petition was invalid for violating the “single subject rule”; (6) granting summary judgment on the Second Cause of Action in the City’s Amended Complaint.
Nebraska Supreme Court reverses Court of Appeals decision that gave father of a child who was in his wife's words a "trick's baby" a second chance to keep parental rights. African-American Husband and his white wife were separated when wife gave birth to a baby who was white, blue eyed and had red hair. Husband was living in Kentucky and wife was in California when she gave birth. Wife was a drug addict and prostitute, so Husband had his suspicions. Nebraska Supreme Court upholds Douglas County Juvenile Court ruling however terminating black father's parental rights based on abandonment. In re Interest of Chance J., S-08-962, 279 Neb. 81 (12-31-2009) reversing In re Interest of Chance J.17 Neb. App. 645 - Neb: Court of Appeals, 2009 - Google Scholar. "Based on our de novo review of the record, that Andrew has intentionally withheld from Chance, without just cause or excuse, his presence, care, love, protection, maintenance, and opportunity for the display of parental affection. Furthermore, the physical appearance of a child or suspicions of infidelity are not just cause or excuse for abandoning a child born into wedlock. The Court of Appeals erred in concluding that Andrew did not abandon Chance. Because we have concluded that Andrew abandoned Chance within the meaning of § 43-292(1), we need not address Andrew’s conduct under § 43-292(9).Reasonable efforts to preserve and reunify a family are required when the State seeks to terminate parental rights under § 43-292(6). But in IN INTEREST OF HOPE278 Neb. 869 - Neb: Supreme Court, 2009 - Google Scholar L. et al., we recently reaffirmed our holding that reasonable efforts to reunify the family are required under the juvenile code only when termination is sought under § 43-292(6), not when termination is based on other grounds. Here, termination was not sought under § 43-292(6); it was sought under § 43-292(1), (2), and (9), and we have affirmed the court’s finding of abandonment under § 43-292(1). Therefore, after a proper finding of abandonment, it was not necessary for the State to make reasonable efforts to reunify this father and child."

Thursday, December 10, 2009

Nebraska Court of Appeals allows injured worker who was illegal alien to collect temporary total disability from worker compensation case. But because there was "no evidence the plaintiff intended to remain in the country as an unauthorized alien" the trial court's ruling that the plaintiff would be ineligible for vocational rehabilitation services was premature. Visoso v. Cargill Meat Solutions, A-09-339, 18 Neb. App. 202. The injured worker's work status is not involved in the definition of “alien.”

Sunday, December 06, 2009

Order of the Kneepads Update: Nebraska Supreme Court in reciprocal discipline case from California imposes 90 day suspension on attorney the California Bar who was engaged in improper data mining. State ex rel. Counsel for Dis. v. Loftus, S-08-1330, 278 Neb. 1015. Loftus will not be eligible for reinstatement until 90 days after he has paid all delinquent dues and assessments owed to the Nebraska State Bar Association and has shown that he has successfully completed California’s State Bar Ethics School, taken and passed the Multistate Professional Responsibility Examination, and shown that he has complied and is complying with his term of probation and other conditions imposed by California
Nebraska Supreme Court denies murder defendant's claim for post-conviction relief alleging ineffective trial and appellate counsel where defendant claimed that counsel's failure to object to reports of Crimestoppers calls about the defendant was because of trial and appellate counsels' errors. State v. Duncan, S-08-1308, 278 Neb. 1006. any failure of Duncan’s trial counsel to object to Henthorn’s testimony was not prejudicial. The evidence supports Duncan’s convictions and renders the court’s erroneous admission of Henthorn’s testimony harmless.Duncan has not assigned that the postconviction court erred in failing to find that his appellate counsel provided ineffective assistance. When claims of a trial counsel’s performance are procedurally barred, we examine claims regarding trial counsel’s performance only if the defendant assigns as error that appellate counsel was ineffective for failing to raise trial counsel’s performance.
Nebraska Supreme Court affirms dismissal against purchaser of commercial property who claimed seller negligently misrepresented condition of building's roof when Supreme Court found plaintiff must show it used ordinary prudence when it relied on the neglient misrepresentations. Lucky 7 v. THT Realty, S-08-1290, 278 Neb. 997in both negligent and fraudulent misrepresentation cases, whether the plaintiff exercised ordinary prudence is relevant to whether the plaintiff justifiably relied on the misrepresentation when the means of discovering the truth was in the plaintiff’s hands..justifiable reliance must be decided on a case-by-case basis..Ordinary prudence is a factor in determining whether a plaintiff is justified in relying upon a defendant’s representations. The district court did not err as a matter of law in applying an ordinary prudence standard to Lucky 7’s negligent misrepresentation claim. We also conclude the court’s factual findings were not clearly wrong.
Nebraska Supreme Court reverses District Court ruling in favor of Bankruptcy Chapter 7 trustee that had garnished a contractors bank account. Although judgment debtor had an account balance when the judgment creditor filed its garnishment, the judgment debtor already was in default to the Bank who had a perfected lien on its accounts. Myers v. Christensen, S-08-1212, 278 Neb. 989 The trustee is the judgment creditor, or garnishor; Gencon is the judgment debtor; and Charter West is the garnishee. The case turns on the question of whether, on the date the garnishment summons was served, Gencon had a right to the deposit account which was superior to that of Charter West. Only if that were so could Charter West have been “indebted to” or holding “property or credits of” Gencon within the meaning of the garnishment statutes and therefore liable as a garnishee § 25-1030.02. Due to the existence of Charter West’s perfected security interest, Gencon had no enforceable right to the proceeds of the deposit account on the date that the garnishment summons was served and therefore, the trustee could have no such right. In other words, the trustee could not acquire a claim by garnishment which was superior to the claim of Charter West arising from its perfected security interest. Because of Bank's perfected security interest in the deposit account, which was far exceeded by the amount of Gencon’s indebtedness then in default, Charter West was not “indebted to” or holding “property or credits of” Gencon at the time of service of the garnishment summons.
Nebraska Supreme Court holds that employer's appeal of worker compensation court judge's assessment of interest and waiting time penalties did not divest the trial court of jurisdiction over the benefits award itself. The Supreme Court upholds worker compensation court review panel's decision that delinquent interest accrues from the date each weekly benefit became due. Russell v. Kerry Inc., S-08-146, 278 Neb. 981 "the Court of Appeals incorrectly determined that the workers’ compensation trial judge did not have jurisdiction to entertain Russell’s second enforcement motion while Kerry’s appeal from the judge’s first enforcement order was pending before the review panel. We reverse that part of the Court of Appeals’ decision. But we affirm the Court of Appeals’ determination that under § 48-125(3), the review panel correctly assessed interest on Russell’s final award from the date that each installment of benefits became due to the date of Kerry’s payment."

Thursday, November 26, 2009

Nebraska Supreme Court denies post-conviction relief to defendant who challenged his conviction of manslaughter and use of a weapon to commit a felony as inconsistent counts. Court rules that the underlying intentional felony was the armed assault that resulted in a manslaughter conviction. State v. Sepulveda, S-08-1291, 278 Neb. 972. the act of firing the gun at Geiger which resulted in Geiger’s death was an intentional and unlawful assault and was the predicate offense of use of a firearm to commit a felony. Intentional assault rather than manslaughter was the predicate felony to use of a firearm to commit a felony; therefore, convictions for both manslaughter and use of a firearm to commit a felony were not inconsistent. Sepulveda’s trial counsel’s failure to raise the issue was not deficient performance and did not result in ineffective assistance of counsel. Because Sepulveda’s trial counsel did not render ineffective assistance of counsel, Sepulveda’s appellate counsel was not ineffective for failing to address the issue on appeal.
Nebraska Supreme Court affirms defendant's conviction for driving while intoxicated, fourth offense, over his objection that records of two prior convictions were invalid because the records the State offered to prove the prior offenses lacked file stamp dates. State v. Macek, S-08-1196, 278 Neb. 967 Mark A. Macek appeals his guilty plea and conviction in the Lancaster County District Court for driving under the influence of alcohol, fourth offense, 60-6,197.03 (7). Macek claims that two of his three prior convictions were improperly used to enhance his sentence because they were not final, appealable orders. We affirm the decision of the district court. Macek is making an impermissible collateral attack on his prior DUI convictions and that those prior convictions were properly used for enhancement purposes.
Nebraska Supreme Court upholds juvenile's confession to a shooting homicide and declines to modify the "totality of circumstances" test for special considerations for juveniles, as the American Bar Association has recommended; also the police officers' characterization of the shooting as an accident did not mislead the defendant into thinking he was confessing to a negligent homicide. State v. Goodwin, S-08-1159, 278 Neb. 945 "While the minority of an accused is a factor to consider in determining the voluntariness of a confession, it is not determinative. Because the age, education, and intelligence of an accused are included within the totality of circumstances (test) of whether there has been a knowing and voluntary waiver of Miranda rights prior to a custodial interrogation, a court necessarily exercises "special caution" with respect to juveniles. Accordingly, we decline to modify the totality of the circumstances test for determining the voluntariness of Miranda waivers by minors we conclude that no implied promise of leniency can reasonably be inferred from the questioning techniques utilized by the detectives. There was no suggestion of any definite benefit which Goodwin could expect to receive in exchange for his statement. The references to lack of intent and a "tragic accident" were made in the context of the detectives’ efforts to persuade Goodwin to truthfully explain his involvement in the shooting. "

Sunday, November 22, 2009

Nebraska Supreme Court upholds bench trial conviction for unintentional manslaughter Neb. Rev. Stat. § 28-305 (Reissue 2008) while also finding the Defendant guilty of intentional use of a weapon to commit a felony (section 28-1205 RRS Neb). State v. Tucker, S-08-623, 278 Neb. 935 . Defendant was charged with first degree murder, use of a deadly weapon to commit a felony, and possession of a deadly weapon by a felon. Defendant waived a jury trial. The court found Defendant guilty of the lesser-included offense of manslaughter "by unintentionally causing the death of . . . victim while in the commission of an unlawful act. the court explained that the predicate felony to that offense was "assault and/or a terroristic threat. By acquitting Defendant of first and second degree murder, the trial court made the implicit finding that Defendant lacked the specific intent to kill and that he also lacked the specific intent to commit any of the listed felonies for felony murder. By finding Defendant guilty of unintentional manslaughter, the court found that Defendant did not intend to kill victim, but that he did kill victim during the intentional commission of an unlawful act. based on the predicate offense of intentional assault, the evidence was sufficient to support the trial court’s judgment that Defendant was guilty of use of a weapon to commit a felony
Nebraska Supreme Court allows testimony of police officer who was certified as a "drug recognition expert" (DRE) that defendant was too impaired from marijuana to drive over defendants Daubert objection. State v. Daly, S-08-192, 278 Neb. 903. "Although (research on the validity of DRE evaluations has) not always published in (peer-reviewed journals) per se, DRE research has been the subject of considerable scientific scrutiny..(the) use of the protocol and its various elements has certainly not been kept a secret nor is there evidence that its proponents have attempted to avoid the limelight..(the) risk of a false positive is low. Any risk is mitigated further by the fact that identifying the specific drug that caused a driver’s impairment is inessential—the DUI statute only requires proof that the defendant was under the influence of "any drug" and does not require the drug to be identified by the arresting officer (§ 60-6,196 )."