Friday, December 30, 2005

Follow up: US District Judge Smith-Camp's opinion finding Initiative 300 violates the ADA and dormant commerce clause is onlineJones v Gale et al # 8:04CV645 Judge Smith Camp found the law violated the ADA, dormant commerce clause but not the Equal protection and "privileges and immunities" clauses of the US Constitution. Also the unconstitutional exception for only in-state family farmers was intertwined with the law text, making the bad provisions impossible to sever.
Initiative 300 could well provide a workable plan, independently enforceable, if the 26 words at issue were stricken. Corporations and syndicates would be prohibited from engaging in farming or ranching in Nebraska, with exceptions made for family-farm corporations and limited partnerships. Initiative 300 has no severance clause, however, and I cannot conclude that the residency or day-to-day-labor-and-management provisions in the family-farm exemptions were not an inducement to the passage of Initiative 300. To the contrary, based on the record before the Court, it appears that those provisions were an inducement to the passage of Initiative 300 and that it would do violence to the intent of the voters to sever those provisions. Because the unconstitutional portions are intertwined with the valid portions, Initiative 300 must be declared unconstitutional in its entirety.

Thursday, December 29, 2005

Eighth Circuit Court of Appeals affirms sexual abuse and assault convictions; on plain error review trial court properly admitted child victims' prior inconsistent statements to investigators; victim's brothers out of court statements were not testimonial in nature cf Crawford v. Washington, 541 U.S. 36 (2004) to trigger the Confrontation clause 044165P.pdf 12/29/05 United States v. Sherman T. Peneaux District of South Dakota Court finds on plain error analysis that various out of court victim's statements are admissible under Rule 807 (residual hearsay) Def failed to properly object to these hearsay statements. Plain error applies. We conclude that the admission of T.P.'s prior out of court statements complied with Rule 807. The government provided the requisite notice and the statements were trustworthy, material, and more probative than T.P.'s hesitant trial testimony. Admission of the evidence was also consistent with the structure and purpose of the Federal Rules of Evidence. While the residual exception should be rarely used, child abuse cases are appropriate to rely on the exception. Court finds that victim's statements to pediatrician were statements for purpose of medical treatment allowed under medical treatment hearsay exception, even if a child cannot have a motive to seek medical care we have consistently found that "a statement by a child abuse victim that the abuser is a member of the victim'simmediate household presents a sufficiently different case from that envisaged by thedrafters of Rule 803(4) that it should not fall under the general rule" and that suchstatements "are reasonably pertinent" to treatment or diagnosis. Renville, 779 F.2d at436-37; see also United States v. Gabe, 237 F.3d 954, 958 (8th Cir. 2001); Court finds no Crawford violation for admitting various out of court statements from victim and her brother, finding they were not testimonial Testimonial statements, triggering confrontation clause rights are "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Crawford. Statements made to a physician seeking to give medical aid in the form of diagnosis or treatment, are presumptively nontestimonial. See State v. Vaught, 682 N.W.2d 284, 326 (Neb. 2004). Further victim's brothers statements to foster parents also were non-testimonial according to Crawford because foster parents are not agents of the State. See White v. Chambliss, 112 F.3d 731, 739 (4th Cir. 1997) (state has no affirmative duty for children placed in foster care); The eighth circuit did hold a child victim's out of court statements to police investigators in a sex abuse case inadmissible under Crawford in United States v. Bordeaux, 400 F.3d 548 (8th Cir.2005); however in that case the declarant was giving statements to the police and was not available to testify at trial.

Wednesday, December 28, 2005

Qwest executive Weisberg pleads to one count of wire fraud for taking stock in Qwest vendors without company The US Attorney accused Weisberg of improperly earning $2.9 million for himself, family members and friends from 1999 to 2001 by demanding that vendors offer them shares in other companies in return for doing business with Qwest, the telephone provider for 14 mostly Western states. In a plea agreement filed with a federal judge, Weisberg admitted to buying stock in a California company in March 2000 and failing to report the deal to Qwest. He sold the stock in 2001 at a loss of about $529,000, the document said. The Weisberg deal appears as asideshow to the governments main target former executive Nacchio, whom the government accuse of llegally selling off $101 million in stock over five months in 2001 after learning the company might not meet its financial goals and keeping that information from stockholders. Qwest had to restate over $2billion of earnings for 2001, 2000 and paid $400million to shareholders and $250million totheSEC. Weisberg expects minimal jail time and only a fine instead of disgorging his millions in profits.
Prominent Lincoln eye surgeon loses appeal for new trial in slip and fall case against Bryan LGH Med CenterAnis v. BryanLGH Health System, 14 Neb. App. 372 December 27, 2005. No. A-04-661. Dr. Anis Aziz sued Bryan LGH Medical Center for injuries after he slipped and fell on ice in a hospital parking garage. The jury found for the defendant. The jury appeared to disagree over the doctor's comparative negligence. The jury sent written questions that showed the judge some of their opinions as to comparative fault, but at best some jurors thought the accident was a 50/50 deal. Court denies Doctor's contention that the jurors reached an impermissible "quotient verdict." Because the burden of proof is clear and convincing evidence ( Richardson v. Ames Avenue Corp., 247 Neb. 128, 525 N.W.2d 212 (1995)), the doctor has only provided an explanation for the jurors disagreement over the degree of fault, and quotient verdicts are illegal only when jurors agree in advance to follow one. The test to be applied in determining the validity of a verdict which is attacked as a quotient verdict is whether the jury agreed beforehand to be bound by the result reached . . . ." Spreitzer v. State, 155 Neb. 70, 76, 50 N.W.2d 516, 522 (1951) Moreover, the court finds no prejudice even if the jurors adhered to an improper quotient verdict, because the best percentage of fault in favor of Dr Anis was 50% and then he still loses. It is extra hard to prove a jury gave a quotient verdict since jurors after the trial cant tell the court what they were thinking:
In Lambertus v. Buckley, 206 Neb. 440, 293 N.W.2d 110 (1980), the Nebraska Supreme Court affirmed the trial court's refusal to admit jurors' affidavits stating that they had misunderstood and misapplied the court's quotient verdict instruction. The court in Lambertus explained that the jurors' understanding of the quotient verdict instruction and details regarding the calculation of damages inhered in the verdict and did not constitute extraneous, prejudicial information.

Tuesday, December 27, 2005

Nebraska Court of Appeals (J. Moore) sidesteps disputed fee between attorneys handling a worker compensation case, holding that the Nebraska Worker Compensation did not have subject matter jurisdiction to divide attorney fee between current and terminated counsel Wells v. Goodyear Tire & Rubber Co., 14 Neb. App. 384 Filed December 27, 2005. No. A-05-202. Plaintiff filed a worker compensation court claim nearly 6 years after his accident against employer. Plaintiff fired counsel and retained new counsel whose exhibits were nearly all the ones former counsel had obtained. Shortly after termination the trial judge ordered that former counsel would have a lien in a to be determined amount. The case went to trial resulting in a fee to the succeeding counsel of $6100. Former counsel and current counsel could not agree to a fee so former counsel asked for a portion of the $6100 fee. The trial judge made a 'guesstimate' that former counsel was entitled to about a fourth of the fee. The review panel reversed, holding that under Baker v Zikas, the fired counsel gets only the value of his work, ie time x hourly rate plus expenses. A second time the trial court awarded the identical amount to fired counsel. Again the review panel reversed. This time however Plaintiff's current counsel appealed to the court of appeals and former counsel cross-appealed. Current counsel argued former counsel gets nothing because he failed to prove the value, reasonableness and necessity of his work. Former counsel cross appealed arguing the 1/4 amount of $6100 was correct Court of Appeals dismisses the action in its entired and orders the former counsel's motiong to grab a portion of the overall attorney fee dismissed as well:
"The court of appeals (cf Kaiman v. Mercy Midlands) has previously interpreted § 48-108 as limiting the compensation court's regulation and disbursements matters to those which arise between the injured worker and the attorney representing the injured worker. "
Moreover) § 48-162.03(1) (Reissue 2004) allows only parties to worker compensation cases motion practice there.
the compensation court did not have jurisdiction to determine the dispute between the Rehm law firm and Shasteen over the division of the attorney fee awarded to Wells in his claim before the compensation court. Nebraska case law interprets § 48-108 as limiting the compensation court's regulation and disbursements matters to those which arise between the injured worker and the attorney representing the injured worker. The dispute in the present case arose not between Wells and Shasteen, but between the Rehm law firm and Shasteen. Further, § 48-162.03(1) grants the compensation court the authority to hear motions brought only by parties to a suit or proceeding before the court. The Rehm law firm is not a party to a proceeding before the compensation court, Accordingly, this court lacks jurisdiction to consider the merits of the present appeal and cross-appeal and must dismiss both the appeal and the cross-appeal.

Sunday, December 25, 2005

Canola Wars: Federal judge in Oregon vacates patent infringement verdict that was in favor of Cargill and against Dow over disputed speciality canola oil products My ID Access Reports. Cargill plans to appeal a federal judge’s ruling that prevents the company from enforcing Specialty Canola Oil patents previously found to be valid by a federal court jury, the company said today. Cargill had asked a federal court here to find that that Dow’s Natreon canola cooking oil infringes on four patents secured by Cargill for its Clear Valley high oleic canola oils. The court found that Dow infringed on two of the four Cargill patents and the jury awarded Cargill $2 million in damages following its verdict that the patents were valid. However, in a post-trial ruling this week, the judge granted Dow’s motion to declare Cargill’s patents unenforceable on the grounds that not all the testing data had been submitted to the U.S. Patent Office.
Idaho Supreme Court rules that state system of 100% local financing of school construction projects with a 2/3 majority required to pass bond issues violates Idaho State's Constitution,but court stops short of ordering particular steps the Idaho Legislature should take. Did Idaho take its cue from the Kansas fiasco? The Idaho Statesman Last week the Idaho Supreme Court ruled that local funding with supermajorities required for successful bond issues was unconstiutional. December 21, 2005 – Idaho Schools for Equal Educational Opportunity, et al. v. The State of Idaho – Declaratory judgment - News Release
House Speaker Bruce Newcomb was happy the courts left the decision-making to the Legislature. lawmakers may first look to proposals they've passed, but never completely funded, like a plan to help districts pay some of the interest costs on their bonds. Robert Huntley, attorney for the districts who sued the state over schoolhouse funding, thinks the Legislature should pay for 30 percent of school bonds passed by voters and half the tab for maintaining school buildings. The annual price tag under Huntley's plan: $33 million to $38 million.The Supreme court found 4-1 that funding reforms from 2001 were inadequate. Idaho is the only state that provides no direct support for public school construction and still requires a two-thirds majority to approve local construction bonds. But Idaho is not the only state whose plan for funding school construction has run afoul of the courts. In the 1990s, courts ruled against the way Arizona, Wyoming and Ohio pay for school buildings, saying their systems were not equitable. Gov. Dirk Kempthorne tried in his first year in office to lower the supermajority to just 60 percent, but the Legislature wouldn't agree to the change. Many current lawmakers, though, weren't around the last time this issue was hashed out in the Statehouse. "A lot of people really haven't dealt with this," said House Democrat leader Wendy Jaquet, who was happy with the verdict that reiterated what her party has been saying for years. Idaho's lawsuit began in 1990, when a group of 22 school districts calling itself Idaho Schools for Equal Educational Opportunity banded together to sue the state over public school funding. The class-action lawsuit has bounced from court to court over 15 years, even making it to the Idaho Supreme Court. In 2001, 4th District Judge Deborah Bail ruled the state's levy system was unconstitutional, prompting the state to bring a bevy of issues on appeal to the Supreme Court. Still, the Supreme Court ruled only that there was a problem and left the method of fixing to the Legislature. Huntley said the ruling was a positive step for schoolchildren and their families.
Election data services a Washington DC think tank that helps Congress assign congressional seats to the states every ten years projects losses of seats to Missouri, Iowa, Illinois and Minnesota as of 2010; Article does not speculate on the fate of Nebraska's 3rd District, although how long Nebraska will be able to keep a third congressional district is clearly on the minds of the relatively young candidates there seeking to take Tom Osborne's slot Election Data Services Dec 22 press release "Based upon these (pre-Katrina) projections: the biggest GAINERS are: Florida, up 3 to 28; and Texas, up 3 to 35 seats. based upon these numbers, a new big gainer would be Arizona, up 2 to 10 seats. The other gainers are: Nevada, up 1 to 4; Utah, up 1 to 4; and Georgia, up 1 to 14. the biggest LOSERS are: New York, down 2 to 27; and Ohio, down 2 to 16. the other losers are: Massachusetts, down 1 to 9; Pennsylvania, down 1 to 18; Michigan, down 1 to 14, ; Illinois, down 1 to 18; Minnesota, down 1 to 7; Iowa, down 1 to 4; and Missouri, down 1 to 8."

Saturday, December 24, 2005

Experts are divided on impact of Federal Court Judge Smith-Camp's ruling last week that the Nebraska Corporate Farm prohibition will have on livestock production and on whether the Eighth Circuit Court of Appeals will uphold Judge Smith Camp's decision Law Professor David Aiken predicts the eighth Circuit will uphold the ruling, Iowa State professor Roger McEowen already has predicted the case will be reversed. Professor Aiken is right that the battle will probably shift to the ruralcounties and their struggles to approve or disapprove of large feed lots and hog confinement facilities:
Nebraska will be virgin territory. “They will come to the counties where zoning lets them in,” Aiken said. “And so the battlefield will shift. In fact I think it already has shifted. It will shift from Initiative 300 to county zoning.”
Only Morrill County is designated "livestock friendly" Now however most counties andthe state has not been livestockfriendly, for example The number of hogs in Nebraska has dropped to its lowest level since 1975.
Foster children the Nebraska Department of Health and Human Services who become permanent wards of their foster parents are unable to get Medicaid and free college tuition on the State's dimeThe Nebraska Supreme Court ruled Friday Dec 23, 2005 that the foster children who wanted to become permanent wards of the guardians could not continue under a technical "custody" ofthe State. In re Interest of Antonio S. & Priscilla S., 270 Neb. 792 december 23, 2005. No. S-05-262 (J. Stephan) reported that wards of the state are eligible to receive college tuition and medicaid past reaching majority age, under the $40000 "former ward" program. Currently, 176 young people are eligible for the former ward program, which costs about $40,000 a year, said Jeanne Atkinson, a spokeswoman for the Nebraska Health and Human Services System. The program provides young people up to $352 per month, depending on their resources and assets, as long as they are attending a school, college or vocational or technical training school designed to prepare them for employment. former wards who end up in permanent guardianships are eligible for a less generous voucher and health insurance program. Justice Stephan states the purpose ofthe foster care system is to place children in permanent homes,and not have them indefinitely under state custody:
it is clear that the appointment of DHHS as guardian is intended as a temporary arrangement which, insofar as possible, will be replaced by a permanent resolution, such as returning the child to his or her biological parent(s), termination of parental rights and adoption, or a new guardianship... the acknowledged permanency goal was for the foster parents to become the guardians of Priscilla and Antonio. Generally, custody of a minor ward is an incident of guardianship. See 39 Am. Jur. 2d Guardian and Ward §§ 9 and 97 (1999).Although such a guardianship does not achieve a degree of permanency equivalent to parenthood or adoption, it creates greater rights than foster parenthood and "more closely approximates a natural parent-child relationship." In re Interest of Eric O. & Shane O., 9 Neb. App. 676, 693, 617 N.W.2d 824, 836 (2000)...where a guardianship is established under the Nebraska Juvenile Code as a means of providing permanency for adjudicated children who have been in the temporary custody of DHHS, custody is necessarily transferred from DHHS to the appointed guardian(s) by operation of law.
Eighth Circuit Court of Appeals reverses $300K verdict for breach of ERISA fiduciary duty and $110K attorney fee award from U.S.district Court Nebraska; it looks like the lion's share of this verdict is at risk for the Plaintiffs and their counsel 043676P.pdf 12/23/05 John Delcastillo v. Odyssey Resource Case No. 04-3676 District of Nebraska See the Thompson publication for background on the District Court decision last year. The Plaintiffs were an injured employee and his wife who received health benefits from a coemployerorganization Odyssey. After the disabling accident another company bought out the plaintiff's employer and switched health plans,no doubt with an eye toward getting rid of costly health plan beneficiaries, like the plaintiffs. The eighth circuit decision mentions that the husband had a severe work accident, but nothing more about whether the employer's worker comp continued to pay work related medical expenses, hope he and his lawyers didnt lump out too quickly! The new health plan gave the Plaintiffs notice that it was terminating coverage. The article on the District Court case mentions that the succeeding health plan tried to "buy out"the terminated plaintiffs with retroactive coverage whichthey refused. The sympathetic district court found that the new plan violated the Plaintiff's fiduciary duty rights and COBRA rights because it failed tonotify the Plaintiffs that they were under a new plan. Then the distrct court awarded penalties for breach of fiduciary duty, failure to comply with COBRA and failure to pay covered medical expenses. The Eighth circuit basically reverses the entire damage verdict and remands for what is likely to be a substantially lower award.
The court awarded a total of $306,866.11 for COBRA statutory penalties and compensatory damages and$109,317.50 in attorneys’ fees and costs. Delcastillo v. Odyssey Resource Mgmt.,Inc., 320 F. Supp. 2d 889, 901 (D. Neb. 2004). The Odyssey defendants appeal. Weconclude that the Delcastillos were covered by the Reliance plan at its inception.Therefore, they may be entitled to recover unreimbursed medical expenses underERISA but are not entitled to recover statutory penalties under COBRA.
While the eighth circuit agrees that the new plan is a fiduciary,it findsthat an intial COBRA notice was not required because the Plaintiffs were immediately covered by the new plan. The new plan gave proper termination notices. The Plaintiffs thus lose their verdict for cobra violations, there are none now. The Plaintiffs also lose much of their $300K verdict because the eighth circuit finds that damages are limited to lost medical bills, if the Plaintiffs can recover them. The Plaintiffs pleadings charged a breach of fiduciary duty rather than the cause of action for specific losses of benefits.
ERISA expressly provides a plan participant or beneficiary such as the Delcastillos a cause of action “to recover benefits due to him under the terms of his plan.” 29 U.S.C. § 1132(a)(1)(B). The Delcastillos asserted no claim under § 1132(a)(1)(B). Instead, they sought to recover denied benefits on the theory, as explained in their brief on appeal, that “[b]y failing to provide coverage, Odyssey violated their statutory fiduciary duty.”
Therefore the Plaintiffs might have lost their case for specific losses unless on remand the District Court finds that the Defendants waived the defense of 1132a1B:
Therecord on appeal does not reveal whether Odyssey also argued to the district court thatthe Delcastillos may not recover wrongfully denied benefits under a breach of fiduciary duty theory because the remedy under § 1132(a)(1)(B) is exclusive. Thus,there may be an issue whether that defense has been waived. In addition, the districtcourt’s decision did not explain either the nature or the amount of the “specialdamages” being awarded. Accordingly, we remand to the district court for furtherconsideration of whether the Delcastillos are entitled to recover damages equal to theirunreimbursed covered medical expenses during the period from February 1, 1999, toJune 30, 2000. However, we reverse the court’s alternative award of statutorypenalties for “breach of fiduciary duty,” 320 F. Supp. 2d at 901, because “the SupremeCourt has stressed that ERISA does not create compensatory or punitive damageremedies where an administrator of a plan fails to provide the benefits due under thatplan.” Turner v. Fallon Community Health Plan, Inc., 127 F.3d 196, 198 (1st Cir.1997), cert. denied, 523 U.S. 1072 (1998), citing Massachusetts Mut. Life Ins. Co. v.Russell, 473 U.S. 134 (1985).
On attorney fees the appeals court reverses the $110K award for redtermination since muchof the $300kverdict isgoing to go away: Applying our decision in Lawrence v. Westerhaus, 749 F.2d 494, 495 (8th Cir. 1984), as modifiedby our en banc decision in Martin v. Arkansas Blue Cross & Blue Shield, 299 F.3d966 (8th Cir. 2002), cert. denied, 537 U.S. 1159 (2003), the district court awardedattorney’s fees and costs in the amount of $109,317.50. We have reversed the court’sdecision on the COBRA notice claims and the bulk of the court’s damage and penalties award, and we have remanded for further consideration of whether the Delcastillos may prevail on their claim for recovery of unreimbursed covered medical expenses. Accordingly, we vacate the attorney’s fee award. On remand, if the Delcastillos prevail on their remaining claim, the district court should redetermine whether to exercise its discretion to award an attorney’s fee, bearing in mind that “[a]reduced fee award is appropriate if the relief, however significant, is limited incomparison to the scope of the litiation as a whole.” Hensley v. Eckerhart, 461 U.S.424, 440 (1983)

Thursday, December 22, 2005

More comments on last week's Supreme Court decision in Ortiz v Cement Products; what do you do with injured illegals who probably are unemployable now due to their injuries Worker Comp Insider While denying voc rehab to illegals is the legal result, what will happen to them here? It does not appear returning to their home countries is a practical result .
the Nebraska (Ortiz) case highlights the dramatic contradictions that arise when the door is only half open. Most injured employees can collaborate with their doctors and their employers to achieve the mutually satisfying goal of returning to productive employment. The careers of illegal workers, by contrast, come to an abrupt halt as soon as comp claims are filed. Illegal immigrants are confronted with a very difficult choice: trying to prolong their disabilities as their only legitimate source of income, or disappearing into the underground economy.

Wednesday, December 21, 2005

Nebraska Court of Appeals (J Sievers) awards custody to ex wife, even though state of decree was Wyoming but no one still lived there; Former child jurisdiction act applied; court reverses child support order for lack of jurisdictionLamb v. Lamb, 14 Neb. App. 337 December 20, 2005. No. A-05-044. Nebraska Court of Appeals (J. Sievers) rules that ex husband's motion to vacate ex wife's exparte custody order is a "proceeding" requiring the Court to sue the former Nebraska Child Custody Jurisdiction Act (NCCJA, Neb. Rev. Stat. §§ 43-1201 through 43-1225 (Reissue 1998) repealed 2003) instead of the Nebraska Uniform Child Custody Jurisdiction Act ( Neb. Rev. Stat. §§ 43-1226 through 43-1266 (Reissue 2004), operative January 1, 2004.); Nebraska Courts do not have to defer to Wyoming decree where none of the parties or children lived there; Court of appeals rules Nebraska had jurisdiction § 43-1203(1), where it is the home state ( § 43-1202(5) ) for child when he was on extended stay with mother; court awards mother custody where father was abusive, involved in alcohol, and his financial and family affairs were unstable. Too bad for us the Court said it would not discuss certain "salacious" details relevant to the case. However Court refuses to order child support where no one registered the Wyoming decree in Custer county Substantial compliance with the registration requirements is expected.Section 42-737 . There is no evidence before us that the Wyoming child support order, issued as part of the 1995 modification decree, has been registered in Nebraska pursuant to § 42-737 or that Debbi has even sought registration of such order.

Tuesday, December 20, 2005

Nebraska Court of Appeals Judge Sievers insight into tax law: "An IRS Form 1099 is just a piece of paper." Court of Appeals holds that Douglas County Court had no jurisdiction to order a personal representative to cancel out a 1099 form it had issuedIn re Estate of Tizzard, 14 Neb. App. 326 December 20, 2005. No. A-04-618. Divorced spouse of decedent filed a claim for unpaid alimony and through a settlement she received some of the decedent's life insurance. Personal representative issued the ex spouse a 1099, maybe out of spite (PR was the first wife). Ex did not want to have to claim insurance money as income to the IRS so she didnt want to have a 1099 on her record.

(Decedent's divorced wife's) true "dispute" is recognized: whether she should include the $144,000 distribution as taxable income in the eyes of the IRS. The Form 1099 is merely a piece of paper, and its contents do not determine whether the $144,000 amount is includable in Sandra's gross income for federal income tax purposes,and thus is not a controversy. Moreover, since (1st exwife-Rena) as the personal representative has nothing at stake as to whether Sandra pays income tax on the money, Rena as the personal representative has no interest adverse to Sandra's. The real issue presented is not subject to judicial enforcement by the Douglas County Court, because the law is quite clear that state courts' pronouncements on the nature of a payment are not binding on the IRS' treatment of money under I.R.C. § 71 (2000)... the forum for such determination is not the Douglas County Court; it will be resolved in another forum

Iowa State agricultural policy professor is no fan of Judge Smith-Camps Initiative 300 ruling Oregon Wheat Growers News Iowa State professor Roger McEowen is no fan of Judge Smith-Camps legal work in finding Nebraska's "Initiative 300" to be against the Americans with Disabilities Act. It would help if the news outlets would post the decision online.
"(While the Eighth Circuit Court of Appeals found South Dakota's comparable corporate farm ban also preempted under the dormant commerce clause) I-300 has a chance to prevail because U.S. District Judge Laurie Smith Camp's analysis was "very-poorly reasoned,"
Judge Smith-Camp said the law violates the Americans with Disabilities Act: does that mean a farm regardless of the ownership structure is a public entity, a governmental discrimination against the disabled of some public benefit, or an employer?. If the farm is the prospective employer who may not take on a disabled shareholder because of Initiative 300, should the disabled shareholder sue the farm instead?

"No where does the judge tell us how a Nebraska farm is a public entity," McEowen said.

Good point, if the Court points out that Initiative discriminates against a person with a disability, is that as an employee or as one seeking access to a public accomodation? The court might have sought a 14th amendment basis, say under Cleburn, where courts look at discrimination against the disabled as a constitutional matter with a "rational basis plus" standard of review

Monday, December 19, 2005

Follow up: US District Court Nebraska Judge Smith-Camp rules Nebraska's corporate farm ban "Initiative 300"( Neb. Const. art. XII, § 8) violates Americans with Disabilities Act (42 USC Chapter 126)and Dormant Commerce Clause,( U.S. Const. art. I, § 8, cl.3. ) after dismissing the State of Nebaska and the Decamp lawsuit from the case Associated Press; Judge Smith-Camp focused on the exemptions of the law for family farms who have a principal laboring AND managing the farm. Seems to exclude the severely disabled, who could do book work, etc but maybe not cow milking. Also language of the law prevents "nonresident" aliens from having an ownership interest in an otherwise exempted farm corporation. Judge Smith-Camp however declined to sever this discriminatory language from the rest of the constitutional amendment

I-300 states, in part: "No corporation or syndicate shall acquire, or otherwise obtain an interest, whether legal, beneficial, or otherwise, in any title to real estate used for farming or ranching in this state, or engage in farming or ranching." It provides an exemption for a family, or a trust created for the benefit of a member of that family, as long as one is a "residing on or actively engaged in the day to day labor and management of the farm or ranch and none of whose stockholders are nonresident aliens and none of whose stockholders are corporations or partnerships. ..."

It was that wording that proved fatal in Smith-Camp's ruling."Initiative 300 could well provide a workable plan, independently enforceable, if the ... words at issue were stricken," Smith-Camp said. "I cannot conclude that the residency or day-to-day-labor-and-management provisions in the family farm exemptions were not an inducement to the passage of Initiative 300. To the contrary, based on the record before the court, it appears that those provisions were an inducement to the passage of Initiative 300 and that it would do violence to the intent of the voters to sever those provisions."

Friday, December 16, 2005

Nebraska Supreme Court denies worker compensation vocational rehabilitation services to an illegal immigrant and denies motion to vacate death sentence for multiple murderer State v. Dunster, 270 Neb. 773 December 16, 2005. No. S-05-021: Defendant moved to vacate his death sentence in proceeding that was neither a direct appeal nor a post conviction motion, pursuant to Neb. Rev. Stat. § 29-3001 (Reissue 1995). " We decline to recognize a new special procedure for raising the issue of a void sentence. Because the issue was not raised in a recognized proceeding, the district court lacked jurisdiction over the claim. Thus, we also lack jurisdiction. " Ortiz v. Cement Products, 270 Neb. 787 December 16, 2005. No. S-05-437.Plaintiff requested vocational rehabilitatio services under worker compensation law. The Supreme Court denies illegal immigrant voc rehab, "Under Neb. Rev. Stat. § 48-162.01(3) (Cum. Supp. 2002), an employee is entitled to vocational rehabilitation services when he or she is unable to perform suitable work for which he or she has previous training or experience..However Plaintiff testified that he will not be returning to Mexico, but, rather, intended to remain in this country, where he may not be lawfully employed because of his illegal status. See 8 U.S.C. § 1324a (2000). Awarding Ortiz vocational rehabilitation services in light of his avowed intent to remain an unauthorized worker in this country would be contrary to the statutory purpose of returning Ortiz to suitable employment. Therefore, we hold that based upon the facts of this case, Ortiz is not entitled to vocational rehabilitation services.

Thursday, December 15, 2005

Win for the ex-wive's club: Nebraska Supreme Court (J. Stephan)allows alimony modification in divorce decree from $1/year to $950/month when Husband's bankruptcy discharged large debt for his closed Veterinarian's practice, and shifted the debt to the wife who was the loan guarantor; Smart move for wife to lock in a nominal alimony that she could later modify Collett v. Collett, 270 Neb. 722 December 9, 2005. No. S-04-850. (ex Husband) appeals from an order of the Box Butte County district court which modified the alimony award included in a decree dissolving his marriage to (exwife). The Court increased the alimony which Husb. was required to pay Wife from $1 per year to $950 per month for 123 months and required Shan to maintain insurance on his life, with Kimberly as the named beneficiary, until the alimony is paid in full. Supreme Court affirms. While Husb's bankruptcy was pending at the time of the divorce, Supreme Court still agrees that Wife's responsibility for the debt was not a circumstance the parties contemplated at the time of the decree
"Because alimony, albeit nominal, was allowed in the original decree, the award is subject to modification for "good cause shown" pursuant to § 42-365. In this context, "good cause" means a material and substantive change in circumstances and depends upon the circumstances of each case. Bowers v. Lens, 264 Neb. 465, 648 N.W.2d 294 (2002);..."Although it is clear that the parties contemplated Husb's bankruptcy and the discharge of his personal indebtedness to the bank, it is likewise apparent that the parties expected that the unpaid balance of the loan would be satisfied by the bank's foreclosure and sale of the collateral. Thus, the record supports the district court's finding that the 2003 deficiency judgment against Wife was not within the contemplation of the parties at the time of trial in 2001"
Husb mainly argued that the Court should not increase his alimony when it effectively repackages his discharged debts as alimony, in violation of the Chapter 7 discharge, anti-injunction provision 11 U.S.C. § 524(a)(2) (2000). 11 U.S.C. § 523(a)(15) generally prohibits a debtor from discharging debts that are in the nature of support debts. But since Wife did not ask the Bankruptcy Court to rule the vet practice loan was a support debt, she cannot end run this process with an alimony modification. The Nebraska Supreme Court rejected Husb's argument, because the court ordered him to pay alimony in the initial decree, however nominal. A substantial change in the debt burdens of the parties that result from a bankruptcy may be a "change of circumstances" to justify an alimony modification. Supreme court holding: Wife's shouldering the guarantor debt for the failed practice along with her loss of income justify modification of the alimony The record establishes thaWife's's liability for the deficiency judgment has resulted in a material and substantial change in the relative economic circumstances of the parties which was not within the reasonable contemplation of the parties at the time of the decree of dissolution. Satisfaction of the deficiency judgment over a 10-year period in her current circumstances would alter Wife's monthly cashflow from slightly positive to decidedly negative. Because the modification of the alimony award was specifically attributed to this proven change in circumstances, it is not contrary to or preempted by federal bankruptcy law. See, In re Siragusa, 27 F.3d 406 (9th Cir. 1994); Smith v. Smith, 741 So. 2d 420 (Ala. Civ. App. 1999).
Nebraska Supreme Court (J. Gerrard) rules that there may be only one date at a time for reaching maximum medical improvement from multiple injuries arising from one accidentSupremes overrule Nebraska worker compensation court judge's decision assigning separate dates for maximum medical improvement for discrete injuries arising from one industrial accident. Rodriguez v. Hirschbach Motor Lines, 270 Neb. 757 Filed December 9, 2005. No. S-05-141. Rodriguez, suffered injuries to his neck, shoulder, knees, and back, in addition to severe depression, from a work accident. The trial court found he reached maximum medical improvement with respect to all of those injuries except his knees. Supreme Court issue: did the worker comp court err in concluding that Rodriguez had reached maximum medical improvement with respect to some but not all of his injuries, and denying permanent disability benefits for those injuries, instead of waiting until all his injuries could be considered together in assessing Rodriguez' loss of earning power. The worker compensation review panel approved of the separated MMI dates for the scheduled (knees) and the unscheduled (head neck, back, depression) injuries, reasoning that the holding of Zavala v Conagra Beef 265 Neb. 188, 655 N.W.2d 692 (2003) {court may consider effect of scheduled injuries (limbs etc) on loss of earning capacity arising from a whole body injury}permitted but did not require the Court to determine MMI when the worker reached for all injuries. the Supreme Court holds:
"even if medical evidence establishes that a claimant's different injuries have different dates of maximum medical recovery, the legally significant date--the date of maximum medical improvement for purposes of ending a workers' compensation claimant's temporary disability--is the date upon which the claimant has attained maximum medical recovery from all of the injuries sustained in a particular compensable accident. "
the court adds on a puzzling dictum however when it notes that an injured worker may have suffered one injury that will render him permanently disabled while other components of his injury may not have reached the MMI point.
" We recognize that there may be circumstances in which a claimant's permanent disability may be ascertainable even though not all of the claimant's injuries have reached maximum medical healing. For instance, where it is apparent that one injury of multiple injuries has reached maximum medical healing and will render a claimant permanently and totally disabled, it may be possible to award permanent total disability benefits even before the claimant reaches maximum medical healing with respect to all the injuries resulting from an accident. See, e.g., State, ex rel. Galion Mfg., v. Haygood, 60 Ohio St. 3d 38, 573 N.E.2d 60 (1991). "

Tuesday, December 13, 2005

Nebraska Court of Appeals rules that courts hearing juvenile cases have authority to control juveniles' placement with social service agencies, including personnel assignments; Court dismisses State's contention that court "micromanagement" violated state constitution separation of powers In re Interest of Veronica H., 14 Neb. App. 316 Filed December 13, 2005. No. A-05-425 Nebraska Court of Appeals (J. Inbody) rules that Juvenile court has authority to control support personnel who handle state wards, citing recent statutory amendment purporting to allow it, in this case ordering the State to assign a social service worker who was more experienced handling incest victims:

" The phrase "by and with the assent of the court," which the Legislature elected to add to the language in Neb. Rev. Stat. § 43-285(1) (Reissue 2004), clearly gives the court the power to assent and, by implication, to dissent from the placement and other decisions of the Department of Health and Human Services, as well as of other entities to whom the court might commit the care of a minor. "

Court of appeals rejects overly technical interpretation of separation of powers, especially in the juvenile justice context (I didnt know there was a division of roles there anyway):
"separation of powers was not designed to achieve a complete divorce among the three branches of government, nor does it require governmental powers to be divided into rigid, mutually exclusive compartments. . . . When the legislature creates a statute that contemplates an interplay between the courts and the executive branch, court orders directing the actions of the executive agencies do not violate the doctrine of the separation of powers"
citing In re K.C., 325 Ill. App. 3d 771, 759 N.E.2d 15, 259 Ill. Dec. 535 (2001) Finally the Court of Appeals decides that even if it was wrong about the separation of powers, no party brought it to its attention on time. Query Will the Courts be as cost and benefit sensitive as the State when it comes to assigning personnel to cases that the courts think will require specialized personnel?
Follow up: Iowa getting into the act to expand number of "fishable/swimmable" streams next year; its that or face the music from the EPA and various professional environmental plaintiffs Would you go swimming in the West Nodaway River? State of Iowa estimates a $1billion bill; Sierra club disputes that, but whats a few hundred million? Governor Vilsack promises exemptions and assistance for cash strapped small communities who will struggle to meet the standards.

" Under the proposed standards, which the state will consider adopting early next year, all perennial streams in Iowa would be given blanket designations of "fishable, swimmable" - making them safe for fish and people by removing harmful bacteria and ammonia carried in human wastewater. The new standards would add up to 14,000 miles of protected streams, said Adam Schnieders, a senior environmental specialist at the Department of Natural Resources. The agency has estimated a statewide cost that could reach $960 million to upgrade, maintain and manage all of the affected wastewater treatment facilities - a list that is more than 14 pages long."

Sierra club: "Iowa is way, way behind the curve,"

The Iowa Environmental Council estimates that 54 percent of the state's perennial streams, those that flow year-round, have been called nonperennial or intermittent streams in the past. Under the new standards, many of those streams would be relabeled perennial and given new aquatic and recreational use protection. Wastewater treatment plants that have not had stringent ammonia nitrogen limits might need to build new facilities.

For example the West Nodaway will become a swimmable river and then clarinda must add on disinfecting processes to the tune of $500K-$750K

Monday, December 12, 2005

Follow up: Plaintiffs alleging sexual abuse was so bad they forgot about it now are dropping repressed memories pleadings from their case in Federal Court. Why? "Because they didnt want to lose." Boys Town counsel James Martin Davis. Query are the stakes higher just because you're in the big courtroom now, and the Douglas county case was a trial balloon? Plaintiffs counsel dropped his repressed memories excuse for filing so long after the abuse from his Federal Court lawsuit. US District Judge Smith-Camp was to consider the matter on Dec 21. (Plaintiff's counsel) said he expected the same result from the federal court hearing as came from Rivers' hearing before Douglas County Judge Dougherty, who last month threw out Plaintiffs' repressed memory allegations.
"Noaker nevertheless said he would forge ahead with Duffy's sexual abuse case against Boys Town and the Rev. James Kelly.James Martin Davis, Boys Town's attorney, said the reason Noaker decided not to move forward with the repressed-memory claim was obvious. "He didn't want to lose again," Davis, of Omaha, said. A ruling against him in federal court could help establish a precedent against the claim elsewhere, Davis said.Davis said he will file a motion for summary judgment in the Duffy matter. He already has filed such a motion in the Rivers case. A hearing for that motion is scheduled for Jan. 27, he said. Summary judgment brings about a prompt disposition without a lengthy trial."
Follow up: full time legal resource protest/advocacy center that was busy putting hog farms out of business now has time to try jumping into the Papillion Wal-Mart case at the last second; Protesting landowners have requested rehearing in the Nebraska Supreme Court, though they concede its a long shot
The Great Plains Environmental Law Center is asking to enter the legal battle against the proposed Market Pointe shopping center just outside Papillion. The center has provided legal representation for more than a dozen groups across the state opposing livestock confinement operations, according to Steve Virgil, the group's general counsel. Attorneys for the City of Papillion, the landowner and the shopping center's developer said in court filings that the law center showed no interest in the case while it was being briefed and argued, and therefore shouldn't be allowed to join the case now."In light of the court's unanimous opinion and the length of time which has passed since its issuance, it is difficult to see what Great Plains could add to the court's consideration," the attorneys said.

Sunday, December 11, 2005

Recent developments in the Nebraska Medicaid SystemLong term proposals from task force under consideration, Journal Star editorial endorses moving to a Florida type defined benefits system. Kaiser Medical News. Nebraska Medicaid officials on Thursday 12-8-05 finalized a report outlining immediate changes to Medicaid that could save as much as $72 million in the first year it is implemented. Immediate changes include moving more elderly to home-assisted living possibly saving $31million/year. A welcome concession to reality from the journal-star:
"Make no mistake about it. Medicaid reform is mandatory. Medicaid spending in Nebraska has grown 11 percent a year since 1985. Last year it had grown to 17 percent of the entire state budget. That rate of growth simply is unsustainable. The current growth rate not only will pinch other parts of the state budget, it wonÂ’t leave resources to pay for Medicaid for future generations...Although some Democrats and liberal health-care advocates predict the Florida experiment will end in disaster, most observers view FloridaÂ’s plan as a responsible effort to put consumer choice and business competition to the test. Nebraska should waste no time implementing any ideas that prove to work. "

Saturday, December 10, 2005

But why does the US Justice Department have to be consistent? After withdrawing 2 prior opinions the Eighth circuit court of appeals upholds convictions for defendant's simultaneously being a felon and adrug addiction in possession of a single handgun; 2 judges giving backhanded concurrences note that eighth circuit court of appeals is the only circuit in the country not to follow the "unit of prosecution theory" when considering the federal criminal firearms lawsUnited States v Richardson superseding the Courts August opinion. Judges Ask 8th Circuit to Reconsider Its Gun Stance Multiple convictions are permitted for a single act of possession Law.comOnly the 8th U.S. Circuit Court of Appeals permits multiple convictions for a single act of illegal firearms possession, but now two appellate judges have called for the full court to reconsider its position as an outlier among the circuits. Judges Melloy and Heaney, who both sit on the 8th Circuit, also took the government to task for arguing conflicting positions from circuit to circuit on this issue.
" 8th Circuit case law relies on a 1932 case, Blockburger v. U.S., 284 U.S. 299, for the "same elements" test to permit multiple convictions, while other circuits apply a "unit of prosecution" test from Bell v. U.S., 349 U.S. 81 (1955). As for the conflicting government positions, the judges quote the U.S. solicitor general's Supreme Court brief in a 1991 5th Circuit case. It states that the structure and language of the statute, Section 922(g), show "Congress's clear intent not to impose cumulative punishments when the same incident violates two subdivisions of subsection (g)." That was in the case of a man convicted of both felon in possession of a gun and illegal alien in possession, based on a single incident. The solicitor general in that case confessed error and successfully asked the Supreme Court to remand. U.S. v. Munoz-Romo, 947 F.2d 170 (1991)."
In the August opinion, once corrected, the 8th Circuit panel intended to impose only one punishment on the defendant for possessing thefirearm while having 2 separate prohibited qualities. Judge Gruender dissented in that opinion, noting the more recent 8th circuit precedent to allow 2 charged. the November opinion does just that and the Heaney and Melloy this time give reluctant concurrences to the case with 2 crimes from one incident of possessing a firearm.
Follow up: In November US District Court-Nebraska Magistrate denies Norfolk attorney's motion to sever his trial from co-defendants in meth distribution ring and also to suppress transcripts of wiretapped phone conversations U.S. v. FREESE, 8:05CR131. (D.Neb. 11/09/2005) Magistrate Judge Thalken 3 co defendants have plead guilty and 3 remain for trial including Freese. Freese moved for severing his trial from the remaining defendants because he claims he was at best associated with the defendants and no evidence show his actual participation in distributing meth. Court denies Fed rule of criminal procedure 19 motion to sever; case not unduly complex, not otherwise confusing to the jury and he is not presenting a defense theory that would be defense is irreconcilable with that of a co-defendant. United States v. Nichols, 416 F.3d 811, 816 (8th Cir. 2005). However, "[m]utually antagonistic defenses are not prejudicial per se."Zafiro v. United States, 506 U.S. 534, 537 (1993). In other words a liars contest among co defendants does not count Magistrate overrules motion to suppress phone calls, notwithstanding attorney client relationship "Freese contends that although the attorney-client privilege belongs to the client, he is duty bound to protect the privileged conversations. " The Government contested the suppression because Freese cant assert the privilege, the statements were not for legal advice orrepresentation or even if they were, the attorney and the co defendant-client were engaged in a crime or fraud, thus excepting the evidence from privilege. Freese's objection to admitting the calls comes from 18 U.S.C. § 2518(10)(a) (i) that the communication was unlawfully intercepted. Court finds the government sufficiently minimized its surveillance activities and in drug conspiracy cases, it is entitled to listen longer tophone calls and the "2 minute" rule really doesnt apply, surveillance for up to five minutes the 2nd circuit approved in United States v. Hinton, 543 F.2d 1002, 1012 (2d Cir. 1976)(The commonly used two-minute standard is not absolute, and courts occasionally allow longer periods of uninterrupted interception.) "Freese argues only that the interceptions relate to privileged communications because they were between an attorney and his client. However, communications between attorney and client are not per se privileged. " the Magistrate found many calls too short to minimize, some were not related to legal work, and finally subject to the crime fraud exception.

Friday, December 09, 2005

Nebraska Supreme Court (J.McCormack) partially reverses Defendant-Bergan Mercy Hospital's summary judgment in former surgeon's suit against the hospital peer review committee; Plaintiff's witnesses' depositions overcame peer review committee's presumption of immunity under the Health Care Quality Improvements Act of 1986; case of first impression whether subsequent claim may relate back to filing date of complaint McLeay v. Bergan Mercy Health Sys., 270 Neb. 693 Filed December 9, 2005. No. S-04-117. Former surgeon with admitting privileges at Bergan Mercy Hospital sued hospital for defamation from negative reports its peer review committee made about some of doctor's cases. Doctors earlier breach of contract verdict against the hospital had been reversed. Supreme Court found that genuine issues of fact remained as to whether the hospital could rely on immunity in the federal peer review reporting law, (Health Care Quality Improvements Act, HCQIA), 42 U.S.C. § 11101 et seq. (2000)Becausee the plaintiff doctor produced deposition statements from other doctors that the committees conduct was unreasonable.
"The process by which physicians and hospitals evaluate and discipline staff doctors is the peer review process. In furtherance of its purpose, HCQIA grants limited immunity in suits brought by disciplined physicians from liability for money damages to those who participate in professional peer review actions, as that term is defined in HCQIA. 42 U.S.C. § 11111(a). Whether an entity or individual is entitled to HCQIA immunity is a question of law for the court to decide and may be resolved whenever the record becomes sufficiently developed., citing Bryan v. James E. Holmes Regional Medical Center, 33 F.3d 1318, 1321 (11th Cir. 1994) "
Nebraska Supreme Court finds genuine issues of fact as to the 1st prong whether the hospital's actions were with the reasonable belief that the action was in the furtherance of quality health care,42 U.S.C. § 11112(a). Justice McCormack rules that "relation back" doctrine does not apply to incidents that arise after the date of the lawsuit
"The issue presented is whether a claim can relate back to a petition which predates the action or actions giving rise to the claim. We have not previously addressed this." ...We conclude that because the alleged defamation regarding the 1995 report by Bergan to the databank occurred after the original petition was filed, the claim could not relate back to that petition. Since the claim could not relate back to the original petition, the claim with regard to the report to the databank of February 8, 1995, was first raised in the amended petition filed May 22, 2002. As such, the claim is barred by the statute of limitations. See § 25-208

Thursday, December 08, 2005

Follow up: Scotus (J. O'Connor) rules against social security recipient who fought benefits offset for student loan that had defaulted many years ago, Government may offset social security benefits to collect the student loans, overruling Lee v. Paige, 376 F.3d 1179 (CA8 2004) LOCKHART v. UNITED STATES No. 04—881 76 F.3d 1027 (9th Circuit) affirmed. The Government may forever collect old defaulted student loan debts from social security recipients, a unanimous United States Supreme Court rules (J. Scalia concurring). While generally Social Security recipients' benefits are exempt from collection, 1996 amendments to expressly authorized the Federal government to offset social security payments. In 1991 the government had eliminated the 10 year collection period for student loans. Because Congress expressly authorized Soc Sec offsets and it had eliminated the collection limitations period, it could offset. Justice Scalia, concurring was bothered by language sometimes in the US Code that appears to prevent future amendment of laws, in this case by the Social Security Act's requirement that amendments to the anti-offset rules expressly reference that provision. Legislation is not perfect and inserting "specific reference" provisions into bills, especially when the Supreme Court will not be inclined to enforce them.
"it is regrettably not uncommon for Congress to attempt to burden the future exercise of legislative power with express-reference and express-statement requirements. See, e.g., 1 U.S.C. § 109; 5 U.S.C. § 559; 25 U.S.C. § 1735(b); 42 U.S.C. §2000bb—3(b); 50 U.S.C. §1547(a)(1), 1621(b).. I think it does no favor to the Members of Congress, and to those who assist in drafting their legislation, to keep secret the fact that such express-reference provisions are ineffective. "
Follow up: Scotus (J. Thomas) rules against Potawatomi Indian Tribe on Kansas taxes on its off reservation fuel distributors WAGNON V. PRAIRIE BAND POTAWATOMI NATION (04-631) 379 F.3d 979, reversed. Supreme court rules that the Bracker balancing test to weight State interests against Indian sovereignty did not apply because the taxed transaction occurred off the reservation. Supreme Court rejects Tribe's argument that the 10th Circuit accepted that Bracker test applies to effects of off reservation transactions:

" Limiting the Bracker test exclusively to on-reservation transactions between a nontribal entity and a tribe or tribal member is consistent with this Court’s unique Indian tax immunity jurisprudence, which relies “heavily on the doctrine of tribal sovereignty [giving] state law ‘no role to play’ within a tribe’s territorial boundaries,” Oklahoma Tax Comm’n v. Sac and Fox Nation, 508 U.S. 114, 123—124. The Court has taken an altogether different course, by contrast, when a State asserts its taxing authority outside of Indian Country. E.g., Chickasaw, 515 U.S. 450. " ...If a State may apply a nondiscriminatory tax to Indians who have gone beyond the reservation’s boundaries, it may also apply a nondiscriminatory tax where, as here, the tax is imposed on non-Indians as a result of an off-reservation transaction."

Finally Supreme Court rejects Tribe's equal protection argument that the tax applies only to distributors supplying tribal retail gas stations, Tribes are not"similarly situated" with other states. Dissenting, Justices Ginsburg and Kennedy would hold White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980), did apply and imposing the taxes burdened Tribe economic activity and compromised sovereignty.

Wednesday, December 07, 2005

Eighth circuit court of appeals upholds North Dakota charitable telemarketing do not call list law that restricted paid contract telemarketers 033848P.pdf 12/07/05 Fraternal Order of Police et al v. Wayne Stenehjem U.S. Court of Appeals Case No. 03-3848 and No. 04-1620 and No. 04-1619 District of North Dakota District of North Dakota Allowing employeee or volunteer solicitors and not allowing outside paid callers was content neutral; Allowing outside agencies to advocate but not solicit funds also content neutral; Do not call regulations met Ward v. Rock Against Racism, 491 U.S. 781 (1989) test as Eighth Circut Court had earlier applied to to phone solicitations regulations, following the Supreme Court case Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 636 (1980) and Nat’l Fed’n of the Blind of Arkansas, Inc. v. Pryor, 258 F.3d 851, 855 n.3 (8th Cir. 2001) The test appropriate for regulation of professional charitable solicitation is derived from Village of Schaumburg 444 U.S. 620, 636 (1980). This is an intermediate level test, according to Nat’l Fed’n of the Blind of Arkansas, Inc. v. Pryor, 258 F.3d 851, 855 n.3 (8th Cir. 2001). Court finds significant interest in protecting home privacy from unwanted solicitation calls. "The overall problem is the intrusion on residential privacy caused by unwanted telephone solicitation. We are satisfied that the Act furthers the state’s interest in preserving residential privacy." ...Because the Act prohibits only calls to unwilling residents in their homes, we hold that the Act is narrowly tailored to serve the government’s substantial interest in protecting residential privacy. Because this narrowly drawn, content neutral statute does not entirely foreclose any means of communication, we are satisfied that the Act is sufficiently tailored to pass constitutional muster. Although the Act restricts charitable solicitation, it leaves open several alternative channels of communication. Accordingly, we conclude that the Act does not substantially limit charitable solicitation. Eighth Circut adds on comment to telemarketers' complaint that the law is overbroad When North Dakota citizens register on the do-not-call list, they choose to exclude telephone solicitation from their homes. The registrants have decided that the Act’s banned phone calls intrude on their residential privacy. Further, unknown charities will be treated the same as the appellees. Dissenting Judge Heany, applies a discrimination analysis to conclude law does not satisfy its own objectives and merely singles out paid callers: First, the Act is overly restrictive...The regulation prevents potentially willing listeners from engaging in discourse about charitable contributions....the Act is underinclusive. A law is underinclusive, and therefore not narrowly tailored, when it discriminates against some speakers but not others without a legitimate neutral justification for doing so. See City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 429-30 (1993). It remains unclear, then, why the government has restricted the charitable speech of an unknown percentage of callers that invade residential privacy when so many other groups may intrude upon that privacy, thus diminishing the credibility of the government’s rationale for restricting telefunders’ speech. ...North Dakota has failed to demonstrate that its ban on telefunders’ calls will restore, or even significantly improve, residential privacy. Therefore, (Judge Heaney) would affirm the district court and hold that North Dakota’s direct and substantial limitation on charitable speech cannot be sustained because, although it serves a sufficiently strong, subordinating interest that the state is entitled to protect, it is not narrowly drawn to serve the interest.
Report from England on its child support collection efforts, not a passing gradeThe Economist (sub required) The Economist reports that England did not set up a centralized child support collection system until 1993. 30% of its cases resulted in no collections at all last year and almost £ 1 billion has been written off total, £ 9.2 million last year alone. For every £ 1.86 collected administrative costs are £ 1. Report notes that Australia collects $8 for every $1 of admin costs. Cost effectiveness ratios were 3.22 for Nebraska, 4.95 for Missouri, and 5.52 for Iowa for fiscal year 2003. The Economist notes more punitive efforts in America to collect child support including public information efforts to malign "deadbeat dads." A more concrete proposal calls for England's IRS to coordinate with the child support officials to intercept tax refunds.

Tuesday, December 06, 2005

Nebraska Court of Appeals starts up another welfare mother in business of raising children on her own In re Guardianship of Cameron D., 14 Neb. App. 276 Filed December 6, 2005. No. A-05-189. 21 year old mother who did not appeal emergency guardianship petition her parents took to take guardianship of girls child regains custody from the Appeals Court. Girl got pregnant in high school, left child with her parents while she attended college in 2 distant cities; was hospitalized for an overdose of anti-depressants and now is on her (minimum) 3rd sexual relationship with a man to whom she is not married. Still county court applied wrong test to terminating guardianship, as preference is for parental rights.
"clear and convincing evidence is mandatory to establish that Holly is unfit to resume the obligations imposed by the parent-child relationship. See In re Guardianship of D.J., 268 Neb. 239, 682 N.W.2d 238 (2004). Whether Holly is unfit is a determination made based on an examination of personal deficiency or incapacity that would result in detriment to Cameron's well-being. See Uhing v. Uhing, 241 Neb. 368, 488 N.W.2d 366 (1992)." " We note that the record is lacking testimony from any expert witness able to provide a medical opinion regarding Holly's condition. However, based on the testimony adduced at trial, there is a lack of sufficient evidence to buttress the court's finding that Holly's condition makes her unfit, and the evidence adduced certainly does not rebut the presumption that reunification with Holly is in Cameron's best interests. Holly's condition does not rise to the level of parental unfitness where her incapacity would prevent "'performance of a reasonable parental obligation in child rearing and . . . has caused, or probably will result in, detriment to [Cameron's] well-being.'" See Uhing v. Uhing, 241 Neb. at 375, 488 N.W.2d at 372"
Big plus for Holly: her new boyfriend in as many years is taking parenting classes. Im sure he's ready to be a father.

Monday, December 05, 2005

Prosecutor lines up Qwest executives against "Scarface" Nacchio The Denver Post reports that Federal prosecutors have now lined up former Qwest Pres/CEO Afshin Mohebbi to testify against former company executive Joe Nacchio. Sources do not expect Mohebbi to face any criminal charges. Former CFO Robin Szeliga pleaded guilty in July to insider trading and is also cooperating with the government
Word of the day Department: Solecism Dear Justice Lindsey-Wellesley-Columbia-Miller-Lerman; look up complimentary and complementary State v. Alba, 270 Neb. 656 December 2, 2005. No. S-04-1125. You should run this decision through your grammar check again:
We note initially that Alba filed his appeal in the Court of Appeals and raised excessiveness of sentences as his sole assignment of error. Alba raised no issue regarding the validity of his plea-based convictions and did not seek to have his convictions vacated. We further note that the State did not file a complimentary error proceeding pursuant to Neb. Rev. Stat. § 29-2315.01 (Cum. Supp. 2004), raising an issue as to whether a plea agreement should be vacated where it is based on the parties' mutual mistake.
No, I guess the Attorney General should have been more complimentary of counsel for defendant's acuity in spotting the Douglas County Attorney's snafu in allowing a recidivist child predator to jam out in time to see the Huskers win a Big 12 title

Saturday, December 03, 2005

Nebraska Supreme Court (CJ Hendry) upholds habitual offender conviction following remand from first appeal; Certified copies of New Mexico conviction showing that Defendant had counsel at all critical stages were admissible and satisifed "preponderance of the evidence" standard for sentencing enhancement for prior offensesState v. Hall, 270 Neb. 669 Filed December 2, 2005. No. S-04-1478. (Hall II)This is Gregory G. Hall's second direct appeal from his sentencing as a habitual criminal, following this court's remand for a new enhancement hearing. See State v. Hall, 268 Neb. 91, 679 N.W.2d 760 (2004)(Hall I) Nebraska's habitual criminal statutes provide for enhanced mandatory minimum and maximum sentences for a convicted defendant who "has been twice convicted of a crime, sentenced, and committed to prison, in this or any other state . . . for terms of not less than one year." Neb. Rev. Stat. § 29-2221(1) (Reissue 1995); State v. Thomas, 268 Neb. 570, 685 N.W.2d 69 (2004). In a proceeding to enhance a punishment because of prior convictions, the State has the burden to prove the fact of prior convictions by a preponderance of the evidence, and the trial court determines the fact of prior convictions based upon the preponderance of the evidence standard. State v. Hurbenca, 266 Neb. 853, 669 N.W.2d 668 (2003). an official record is "duly authenticated" by standards of Neb. Evid. R. 902, Neb. Rev. Stat. § 27-902 (Reissue 1995) In State v. Munn, 212 Neb. 265, 322 N.W.2d 429 (1982), this court rejected the defendant's contention that a copy of an out-of-state court record required a judge's certification of an attestation by a deputy clerk and court seal. Neb. Rev. Stat. § 25-1285 (Reissue 1995) provides that judicial records of Nebraska and federal courts can be proved by the clerk or custodian's certification, accompanied by the official seal of office. In contrast, to prove judicial records from other states, former Neb. Rev. Stat. § 25-1286 (Reissue 1979) then imposed an additional requirement that a judge or magistrate certify that the clerk's attestation and court seal were in due form of law.

Friday, December 02, 2005

Nebraska Supreme Court (J.Wright) affirms conviction for sales tax evasion Court could receive evidence of Department of Revenue tax regulations and recite them in the jurors' instructionsState v. Grosshans, 270 Neb. 660 December 2, 2005. No. S-04-1370 Grosshans was charged by information in York County with two counts of willfully attempting to avoid sales tax, a Class IV felony, in violation of Neb. Rev. Stat. § 77-2713(1) (Reissue 1996). The first count related to a motorcycle purchased in 2003, and the second count related to a Chevrolet Corvette purchased in 2001. The jury found Grosshans guilty of count I and not guilty of count II. Defendant contends the court should not receive the regulations over his hearsay, confrontation objections, and it appears a "bill of attainder" objectionGrosshans claims the district court erred in admitting into evidence a certified copy of 316 Neb. Admin. Code, ch. 1, § 020 (1998), the sales and use tax regulations of the Department of Revenue. Although the regulations were received in evidence and used as the basis for some of the jury instructions, they were not given to the jury during its deliberation. The regulations were certified by Nebraska's Secretary of State as having been adopted by the Department of Revenue and approved by the offices of the Attorney General and the Governor. Agency regulations properly adopted and filed with the Secretary of State of Nebraska have the effect of statutory law. Lariat Club v. Nebraska Liquor Control Comm., 267 Neb. 179, 673 N.W.2d 29 (2004) Neb. Rev. Stat. § 77-369 (Reissue 2003).We conclude there was no abuse of discretion in the district court's receiving the regulations into evidence. Def also contended the evidence was insufficient to convict him of sale tax evasion§ 77-2713(1) The regulations and instructions incorporating them were proper evidence. The district court did not err by instructing the jury as to the content of the regulations. In an appeal based on a claim of an erroneous jury instruction, the appellant has the burden to show that the questioned instruction was prejudicial or otherwise adversely affected a substantial right of the appellant. State v. Anderson, 269 Neb. 365, 693 N.W.2d 267 (2005). Grosshans has not demonstrated that he was prejudiced because of the instruction given by the court.
Follow up: Nebraska Supreme Court (J. Lerman) upholds reduced sentence for first degree sexual assault, 2 counts, when at time Defendant committed the crimes these crimes were Class IV felonies, even though defendant thought he was pleading to 2 Class II felonies State v. Alba, 270 Neb. 656 Filed December 2, 2005. No. S-04-1125. Court of Appeals held that trial court had to sentence defendant to 2 class IV felonies even though State charged him with 2 class II felonies, but State had forgotten that at time ofthe crimes the offences were Class IV felonies. Supreme Court holds that when the Defendant was the appellant alleging an excessive sentence, the court of appeals had no power to consider the State's requested remedy of withdrawing the Defendant's guilty pleas "Alba presented his appeal as one limited to the issue of the proper sentences which may be imposed upon a defendant who stands convicted of sexual assault of a child, first offense. Because the cause is on appeal only with regard to the issue of excessive sentences, the questions raised and the relief requested by the State cannot be afforded in this appeal, and the scope of appellate analysis is limited to excessiveness of sentences." "the only issue before the Court of Appeals was Alba's claim of excessive sentences and that the relief requested by the State was outside the proper scope of the appeal and need not have been considered by the Court of Appeals. However, we agree with the Court of Appeals' conclusion that the sentences imposed exceeded the statutory limits for the crimes to which Alba pled and was found guilty"
Nebraska Supreme Court (J. Lerman) holds Lancaster County Separate Juvenile Court acquired jurisdiction over parent for disposition upon adjudicating the child as under the Court's jurisdiction § 43-247(5) In re Interest of Devin W. et al., 270 Neb. 640 December 2, 2005. No. S-04-250. Lancaster County Juvenile Court adjudicated child to be under the court's jurisdiction because of mother's neglect. ON disposition the court ordered child into foster care, but the child was then residing with his father. The father appealed challenging the right of the court to take child away from him when the allegations of neglect were against the mother. The court of appeals reversed, finding the Juvenile Court lacked jurisdiction over the father. In re Interest of Devin W. et al., 13 Neb. App. 392, 693 N.W.2d 901 (2005) The Supreme Court reverses on petition for further review "We conclude that the juvenile court acquired subject matter jurisdiction over Jesse upon his adjudication as a child described in § 43-247(3)(a); that such jurisdiction extended to Jesse's custodial parent, Lerry, pursuant to § 43-247(5); and that, therefore, the Court of Appeals erred as a matter of law when it concluded that the juvenile court lacked jurisdiction." "§ 43-247(3)(a) "gives a juvenile court exclusive, original jurisdiction over '[a]ny juvenile . . . who lacks proper parental care by reason of the fault or habits of his or her parent.'" In re Interest of Sabrina K., 262 Neb. 871, 875, 635 N.W.2d 727, 731 (2001)" subject matter jurisdiction is vested in the juvenile court by an adjudication that a child is a juvenile described in § 43-247. In re Interest of J.T.B. and H.J.T., 245 Neb. 624, 514 N.W.2d 635 (1994). the juvenile court's jurisdiction is extended to parents who have custody of any juvenile who has been found to be a child described in § 43-247. Thus, in the instant case, the juvenile court acquired jurisdiction over Jesse and his custodial father, Lerry, when it found conditions that fit § 43-247(3)(a) and adjudicated Jesse as a juvenile within the meaning of § 43-247(3)(a). See In re Interest of Sabrina K.,supra. Supreme Court remands case to Court of Appeals to resolve parent's other objections to disposition of the child.

Thursday, December 01, 2005

Follow up: as in Missouri, the EPA requires states to designate streams that the public is likely to use for recreation; get out the rafts and innertube and head out to the ole' swimming hole. I cant wait to go rafting on the Salt Creek between Hickman branch and Beal Slough; check for a creek in your area. The Federal Environmental ProtectionAgency requires Nebraska state environmental regulators to study all of Nebraska's waterways and determined which ones people are likely to use for recreation. The EPA requires higher water quality standards on those streams . The Nebraska Department of Environmental Quality is proposing to add 3,200 miles of waterways to the existing list, including a portion of Salt Creek near Lincoln. The changes will expand the mileage of protected streams by about 70 percent. The proposed list, if approved Friday by the Nebraska Environmental Quality Council, would mean that regulators believe 49 percent of the state's waterways are likely to be used by people. Sections of some of the state's most notable rivers and creeks have been added to the list for stricter water quality standards: the Papillion Creeks in the Omaha area, the South Platte River, the Niobrara and Republican Rivers.In addition to Wayne, communities such as Seward, Paxton and Ogallala will have to make changes to their sewage treatment facilities. The City of Wayne NE plans to spend $90,000 adding ultraviolet disinfection.treated wastewater is run through pipes illuminated by ultraviolet light, which kills bacteria. John Bender of the Department of Environmental Quality also sees the proposed rule as a significant change for the better. While it doesn't address the problem of livestock runoff, it will reduce the amount of bacteria entering the state's waterways from human waste, he said. Nebraska will give the 47 communities affected by this new rule at least five years to comply, Bender said.The statewide cost of compliance for those communities is expected to be about $2.6 million. Or they'll be able to store the treated wastewater during warm months and discharge it into creeks in winter when people typically wouldn't be in creeks. The EPA threatened to take control of stream designations unless the State acted, of course with prodding from private environmental advocacy organizations More Nebraska communities could have been facing these additional costs if the state hadn't acted. Bender said the EPA had threatened to give Nebraska a blanket designation if the state hadn't made its own determination. That would have almost doubled the cost of compliance. John DeLashmit of the Kansas City, Mo., office of the EPA said the agency risks being sued if it doesn't push states to implement clean water rules. The Clean Water Act was passed in 1972, and this is one of a number of key provisions that have not been fully implemented. The regional EPA office lost a lawsuit in Kansas over this issue and faced a suit in Missouri. In Iowa, environmentalists have been pressing for compliance, and the state is coming up with its list Duane Hovorka of the Nebraska Wildlife Federation said the change is welcome but overdue. More work, though, is needed to address water quality.