Friday, April 29, 2005

Supreme Court child abuse "misruling" may let Meth Head Mom walk

Lancaster County citizens were shocked when Brandy Blair’s 2 year old son Chrisitain Riefler died locked in his room without care and attention while Brandy partied for 2 days. If Brandy had treated a dog that way she should be guilty of animal cruelty. Brandy claimed to have checked on the boy the day he died, but later her roommates found the boy electrocuted, he was next to an electrical outlet with a staple stuck in it.

The Lancaster County Attorney’s office charged and the District Court jury convicted Brandy with intentional child abuse resulting in death, a Class IB felony Neb. Rev. Stat. § 28-105 (Cum. Supp. 2002). The jury deliberated for over 16 hours, “wrestling over the legal concepts of "intent" and "proximate cause." The jury rejected convicting her of less serious offense intentional child abuse. District Judge Bernard McGinn sentenced Brandy Blair to 30 to 40 years in prison.

Now Thursday’s Nebraska Supreme Court decision State v. Muro, 269 Neb. 703 (April 28, 2005) No. S-03-1399 puts the Blair verdict in danger, I think. In Muro, the Nebraska Supreme Court reversed a bench trial conviction for felony child abuse resulting in death, the identical charge in our recent Blair case because the State failed to prove beyond a reasonable doubt that the parent’s abuse/neglect proximately resulted in the childs death.

A Dawson County District Court judge in a bench trial convicted susanna Muro of child abuse resulting in death, Stat. § 28-707 (Cum. Supp. 2004) because she failed for several hours to get her unconscious child to the hospital. Doctors determined the child had suffered a skull fracture while Susanna left the child with her husband. The Suprreme Court agreed that It is clear from the record that Vivianna sustained a serious traumatic head injury inflicted by someone other than Muro.

The Supreme Court equates the statute’s penalty enhancement for “resulting” in death with abuse that “proximately caused” the death. In other words “(the) moving or effective cause or fault which, in the natural and continuous sequence, unbroken by an efficient intervening cause, produces the death and without which the death would not have occurred.’” State v. William, 231 Neb. 84, 88, 435 N.W.2d 174, 177 (1989).

Physician testimony appeared inconclusive as to whether more prompt medical care would have save the child. The Court therefore held the State failed to prove a “resulting” death that was a proximate cause of the abuse. Muro finally won a reversal for resentencing on felony child abuse, a Class IIIA felony § 28-707.

The Supreme Court failed to explain however why it equated “proximate cause” from the cited motor vehicle homicide cases, eg William, 231 Neb. 84, 88 with the child abuse law’s wording of “resulting” in death.

28-306 Motor vehicle homicide; penalty makes it unlawful to “unintentionally” cause the death of another while violating any traffic law. 28-306 further punishes an intoxicated defendant for (proximately causing ) the death of another. 28-305 Manslaughter likewise penalizes (causing) the death of another unintentionally while committing any unlawful act.

The Supreme Court will have some explaining to do when it applies the proximate cause standard to Ms. Blairs case because horrible as her conduct was, I don’t see how poor Christian’s death was the “proximate cause” of her meth-head mother.

Nebraska Supremes find contracting parites waived public works notice requirement

Gerhold Concrete Co. v. St. Paul Fire & Marine Ins., 269 Neb. 692 Filed April 28, 2005. No. S-03-1064. Concrete supplier Gerhold sued the general contractor First Dakota and St. Paul the performance bonding company when First Dakota;'s subcontractor did not pay Gerhold for material used to build a public veterans home in Norfolk. A supplier cannot sue the bonding company under Neb. Rev. Stat. § 52-118 (Reissue 1998) for most public building projects.unless the supplier gives a notice to the general contractor. But if Gehold had a direct contractual relationship, express or implied, with First Dakota it would not have to give notice (Section 52-118.01.) Gerhold wanted the Court to hold that performance following almost any kind of agreemeent between it and First Dakota would be enough to relieve it from the 52-118.01 notice requirement. St. Paul argued Gerhold and First Dakota must have a specific contract to pay for supplies; and that none existed. The Language of § 52-118.01 are the same as in the Miller Act, 40 U.S.C.A. § 3133(b) (West 2005) (formerly 40 U.S.C.A. § 270b (2000)). The Supreme Court looks to "relevant" federal cases, hear that "Frye" evidence rule fans in the Legislature? The case most broadly interpreted interpreting laws similar to § 52-118.01, in Georgia allowed relief from notice where looking at the… (entire) course of contractual dealings between the contractor and supplier there was an express or implied contractual relationship…a subcontractor would have relieve from giving actual or constructive notice of a claim despite the absence of a direct contract or promise of payment. After several paragraphs of discussing interesting cases ( a good moot court technique) the Court holds that Gerold concrete wins no matter how the Court interprets § 52-118.01 . Because Gerhold presented evidence that would allow a jury to find an express or implied contractual relationship between Gerhold and First Dakota, a jury could reasonably find that First Dakota had actual notice of the unpaid invoices and orally contracted to pay them. the district court did not err when it overruled St. Paul’s directed verdict motion. Livingston v. Metropolitan Util. Dist., ante p. 301, 692 N.W.2d 475 (2005). CROSS-APPEAL Dismissal of Contract Against First Dakota The District Court dismissed Gerhold's contract action against First Dakota, and Gerhold also won a reversal on this. Gerhold offered evidence that a representative of First Dakota, in direct response to an inquiry about Gerhold's May through July 1999 invoices, told Gerhold to “keep that concrete coming, and First Dakota, don’t worry about it, First Dakota will take care of it.” Gerhold then agreed to continue providing concrete. The court finds this was not an agreement to agree, rather the jury could find that a specific oral contract had been formed under which First Dakota would pay for four past due monthly invoices in exchange for Gerhold’s continuing to provide concrete. Viking Broadcasting Corp. v. Snell Publishing Co., 243 Neb. 92, 497 N.W.2d 383 (1993). Prejudgment Interest The Court denied Gerhold's claim for prejudgment interest as it was an unliquidated claim, that is one disputed as to the claim or amount. Davis v. Davis, 265 Neb. 790, 660 N.W.2d 162 (2003). The District Court refused to admit a Lien Waiver between Gerhold and one of First Dakota's subcontractor for $70000, according to gen. contractor First Dakota's offer of proof.. Stat. §§ 27-401 and 27-403 (Reissue 1995) . Tthe trial court’s decision will not be reversed absent an abuse of discretion. Snyder v. EMCASCO Ins. Co., 259 Neb. 621, 611 N.W.2d 409 (2000).

Wednesday, April 27, 2005

Another Blakely motion nets a Booker resentencing, but was there Chapman or Kotteakos error?

Courts are fond of applying case names as shorthand rules for the procedures or rules those cases prominently represented. Sorry I got a little carried away with epon·y·mous cites.

04/27/05 USA v. Luz Raymundo Garcia U.S. Court of Appeals Case No. 04-3016 District of Nebraska Courts are fond of applying case names as shorthand rules for the procedures or rules those cases prominently represented. Sorry I got a little carried away with epynomous cites.

The Defendant was charged with possession with intent to distribute 500 grams of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1). Recent decision Blakely v. Washington, 124 S. Ct. 2531 (2004) held Sentencing Guidelines subject to5th and 6th amendment guarantee of proof beyond a reasonable doubt for factors the State uses to sentence a criminal. Defendant timely filed his Blakely motion to hold the guidelines unconstitutional, even though he admitted the quantity of drugs the government charged him with possessing. Court holds the Defendant’s Blakely motion sufficiently preserved his Booker challenge to the guidelines, even if the Blakely motion had no constiutional merit. See United States v. Booker, 125 S. Ct. 738 (2005){federal sentencing guidelines only advisory.} Accord United States v. Haidley, No. 04-3312, 2005 WL 600358, at *1 (8th Cir. Mar. 16, 2005). The government must prove the harmlessness of the erroneous sentence when it was already at the lower end of the guideline range.

Unresolved, nice to know department: What is the proper standard for determining “harmless” error: “harmless beyond a reasonable doubt” Chapman v. California, 386 U.S. 18, 24 (1967), or less stringent “grave doubt , Kotteakos v. United States, 328 U.S. 750, 764-65 (1946) . That dispute is for another day, another appeal and another lawyer as the record supports Garcia’s position under either standard.

Disability Applicant wins insured status from social security despite poor record keeping

Robert Desselle v. Jo Anne Barnhart U.S. Court of Appeals Case No. 04-1241 Western District of Missouri

Hey, self employed people, especially you lawyers, make sure you carefully account for your self employment earnings when filing your taxes. I know its hard to pay the self employment tax when you are too stretched to make ends meet and cannot save the taxes ahead of time. In this case the self-employed handy man caught a break and even though his records were at best recklessly incomplete, he was able to reverse the Social Security Administrations decision to reject his belated tax returns he used to prove he had earnings for 1993. Robert Desselle applied for Title II social security disability benefits; trouble was he could not prove to the Social Security Administration that he had self employment earnings in 1993, a year that he needed to count to have the necessary quarters of coverage before his onset of disability. 42 U.S.C. 423(c)(1)(B)(i); 20 C.F.R. § 404.130(b)(2). Self employed workers need to prove their annual earnings exceed four times a minimum amount to receive credit for 4 quarters of coverage. 20 C.F.R. § 404.143. Mr. Desselle with his attorney-brother’s assistance attempted to reconstruct his 1993 tax return, but the Social Security Judge rejected the amendments as fraudulent under 20 C.F.R. § 404.822, finding Desselle "did not produce satisfactory evidence to warrant amending his earnings record for 1993." See 20 C.F.R. § 404.822(a). Under the Social Security Statutes the Administration may “delete or reduce the amount of any (self employment income) entry which is erroneous as a result of fraud." 42 U.S.C. § 405(c)(5)(E);

According to the regulation however, the Social Security Administration "will correct SSA records to agree with a tax return of ... self employment income" that was "filed before the end of the time limit" in § 405(c)(1)(B) "to the extent that the amount of earnings shown in the return is correct." 20 C.F.R. § 404.822(b)(2)(i) The Act permits the Social Security Administration to change such an entry only when it "is erroneous as a result of fraud." 42 U.S.C.§ 405(c)(5)(E). The regulation, however, allows the agency to refuse to enter into its records self-employment income reported on a tax return even without fraud. See 20 C.F.R. § 404.822. To the extent that the regulation thereby extends the Social Security Administration's discretion beyond the statutory limit, we hold that it is an unreasonable reading of the statute and thus unenforceable.

§ 405(c)(4)(C) and § 405(c)(5)(E) govern this case, and because the ALJ failed to find that Mr. Desselle's second amended 1993 tax return was fraudulent, we vacate the judgment of the district court and remand. The Appeals Court opinion notes that the admin law judge specifically failed to find fraud. But it is not clear from the opinion whether the Appeal s Court ruled that the SSA must count the earnings because it failed to disprove their validity or whether it was sending the case back for re-litigation of this issue.

Unicameral increases deeds filing fees

LINCOLN - State lawmakers voted Tuesday to approve a 50-cent per $1,000 tax increase on real estate sales, amounting to an extra $75 on a $150,000 home, the World Herald reports. News reported that Senator Redfield initiated the bill to replenish the "Affordable Housing Trust Fund, used to build homes for low-income Nebraskans. It also would provide rent subsidies for mentally ill Nebraskans who otherwise would be homeless or relegated to jail or mental institutions." Great another stealth tax on working people trying to own a home and to subsidize people who have not proven they can handle the responsibility to own a home. Sadly this additional burden on parties to real estate transactions sailed though without any opposition.

Tuesday, April 26, 2005

SCOTUS slaps down 9th Circks again

The US Supremes (SCOTUS) has slapped down the 9th circuit again, according to surveys the most reversed circuit court of appeals in the country. This time the ignominy comes from the unanimous decision of the Supreme Court in DURA PHARMACEUTICALS, INC. V. BROUDO (03-932) on writ of cert to the 9th Circuit Court of Appeals, 339 F.3d 933, reversed and remanded. Justice Breyer holds that while plaintiffs were not required to any specific pleading an a securities fraud action appearing to complain about inflpurchasing secuirities at inflated prices the still needed to allege something that would lead to proof of proximate causation and economic loss. The plaintiffs’ complaint failed to allege these requirements. While the Federal Rule of Civil Procedure . 8(a)(2) require only “a short and plain statement of the claim,” the “short and plain statement” must provide the defendant with “fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957). The complaint (and we asusme the Court's reasoning) failed this simple test. Allowing any pleading in a securities fraud lawsuit that does not touch upon any facts indicating a valid cause of action would lead to innumerable shake down lawsuits. "It would permit a plaintiff with a largely groundless claim to simply take up the time of a number of other people, with the right to do so representing an in terrorem increment of the settlement value, rather than a reasonably founded hope that the [discovery] process will reveal relevant evidence.” Blue Chip Stamps, 421 U.S., at 741.

Friday, April 22, 2005

2 more Worker Compensation Cases in the Supremes

Two more worker compensation cases come out of the Supreme Court today; seems like a lot of worker compensation cases go up to the appellate courts for an "administrative" system with limited benefits.

Madlock v. Square D Co., 269 Neb. 675 Filed April 22, 2005. No. S-04-758: Supreme Court held that when a scheduled foot injury that results in a whole body injury , the Court must consider the scheduled member injury's effect on whole body impairment, but cannot award both scheulded member beneifts and whole body disability for the same injury. Trouble for plaintiffs however is that some even permanent scheduled member injuries have no effect on whole body loss of earning power. Quoting Zavala v. ConAgra Beef Co., the court determines whether the scheduled member injury adversely affects the worker such that loss of earning capacity cannot be fairly and accurately assessed without considering the impact of the scheduled member injury upon the worker’s employability. If the loss of earning capacity cannot be fairly and accurately assessed without such consideration, then the court is permitted to do so. Zavala v. ConAgra Beef Co., 265 Neb. 188, 655 N.W.2d 692 (2003) Neb. Rev. Stat. § 48-121 (Reissue 2004) "When a whole body injury is the result of a scheduled member injury, the member injury should be considered in the assessment of whole body impairment. the court should not enter a separate award for the member injury in addition to the award for loss of earning capacity. To allow both awards creates an impermissible double recovery." This decision seems to be a response to frequent efforts on plaintff's part to make injuries that in reality are scheduled injuries into whole body ones. However this tactic can backfire where it might have been to the plaintiff's advantage to have a scheduled and not a whole body injury.

Davis v. Goodyear Tire & Rubber Co., 269 Neb. 683 Appellate court would not challenge expert opinion on loss of earning power that provided alternate impairment ratings depending on whether employee would return to same employer. Found that all determinatios of lost earning power are somewhat speculative because they depend on evaluating future events. Neb. Rev. Stat. § 48-121 (Reissue 2004) Note, appears that Defense firm Baylor Evnen represented the plaintiff in this case. Must not be enough defense work to go around now days.

Although Federal employees injured on the job enjoy generous Federal Employee Compensation Act benefits, they have almost no chance to appeal adverse decisions to any court. Has anyone been thinking about this in Nebraska?

Wednesday, April 20, 2005

Employment dispute shows it takes getting used to notice pleading

Blinn v. Beatrice Community Hosp. & Health Ctr., 13 Neb. App. 459 Filed April 19, 2005. No. A-04-079 shows it takes getting used to Nebraskas still new federal style "notice pleading" rules. District Court dismissed an employment contract dispute between a hospital and its fired employee on summary judgment, as employment is at will and a subsequent promise to offer work for 5 years or until retirement appeared to make the relationship a contract requiring a writing under the "statute of frauds." . Although the plaintiff's pleading alleges a five year oral contract, the affidavits and depositions both parties used on the summaryjudgment motion hint an alternative contract period for employment as fiveyears or until retirement. The Appeals Court therefore considered (plaintiff’s) pleading amended by implied consent to properly raise the allegation that Beatrice offered him employment until such time as he chose to retire because evidence on the issue not pled is offered and received by the court without objection, the issue is properly considered and the parties are considered to have impliedly consented to having the issue tried. So Federal Pleading rules that easily forgive inartful pleading and inattentive lawyers still satisfy the parties to a lawsuit's due process right to have their pleadings determine the issues for the court's resolution. Spanish Oaks v. Hy-Vee, 265 Neb. 133, 655 N.W.2d 390 (2003)

No statute of frauds problem either because retirement could take a little or a long time, because in theory, Blinn could choose to retire within 1 year, making the agreement capable of being performed within 1 year. Neb. Rev. Stat. § 36-202

Throw in a little promissory estoppel for good measure to justify throwing out yet another summary judgment motion: a binding promise is reasonably expected to induce action or forbearance on the other's or a third person's part and which does induce such action or forbearance if enforcement of promise is only way to avoid an injustice. Folgers Architects v. Kerns, 9 Neb. App. 406, 612 N.W.2d 539 (2000), reversed in part on other grounds 262 Neb. 530, 633 N.W.2d 114 (2001). See, also, Goff-Hamel v. Obstetricians & Gyns., P.C., 256 Neb. 19, 588 N.W.2d 798 (1999). Promissory estoppel requires reasonable and foreseeable reliance. Folgers Architects v. Kerns, supra.

Defendant's impatient lawyer loses speedy trial motion

State v. Reiger, 13 Neb. App. 444 Filed April 19, 2005. No. A-03-670. David W. Rieger, Jr., sought postconviction relief for alleged ineffective counsel’s failure to seek dismissal of certain criminal charges under the 180 days rule of the Interstate Agreement on Detainers (IAD 28 USC appendix) (codified at Neb. Rev. Stat. § 29-759 (Reissue 1995). Rieger claimed trial counsel had failed to offer evidence that would have shown the states violation of the 180 day rule. The court of appeals holds that a motion for withdrawal of counsel is a motion that tolls the running of the 180-day (6 month) speedy trial time( 29-1207) as well as the detainer compact law. New counsel filed a motion to dismiss the detainer 2 days early. Since a pending pretrial motion tolls both the 180 day speedy trial rules and the Interstate Detainer rules the premature motion actually worked to keep the expiring case open. Defendant claimed his attorney's premature filing of the motion to discharge by 2 days which extended the speedy trial clock, and ultimately of extending it to a date 1 day after the trial had begun was ineffective counsel? NO, because the Court cannot expect an attorney to anticipate every gray area of the law. Since the lawyer made a legal judgment in a gray area, the lawyer was not “Strickland” (Strickland v. Washington, 466 US 668 1984) ineffective. The following Timeline will help you understand the case: 7-7-95 defendant robs a store in omaha 7-10-95 douglas county charges defendant 5-31-96 Douglas County files detainer vs Defendant in Federal Pen. 7-23-96 defendant mails request for mandatory detainer disposition 7-29-96 Douglas County receives detainer demand {court holds receipt date triggers 180 days} 9-26-96 Douglas county district court information filed 10-1-96 defendant files plea in abatement 4-3-97 Court overruled plea in abatement 5-7-97 Defendant counsel files motion to withdraw du2 conflict of interest 5-12-97 douglas county amends information to add “habitual criminal” count {court notes no effect on speedy trial} 5-12-97 court allows withdrawal and anticipated appointment of new counsel trial set for 8-18-97 8-5-97 Def counsel files motion to dismiss detainer for 180 day violation 8-18-97 trial starts, convicted next day Be careful not to jump the gun for your clients, ironic most times lawyers get heat for filing documents late not too early!

Tuesday, April 19, 2005

Justices or Rubber Stamps?

Recent article on on preview of Historian David Garrow's work with Justice Blackmun's private papers. Looks like he ceded all functions to his law clerks, even on some of his "groundbreaking" opinions. Blackmuns clerks appeared to have been free to set their own agenda for the Court. Some comments on the detached relationship Blackmun had with his work and these maverick clerks: "“Will we find someday that Justice Scalia's file onBush v. Gore reflects the same partisanship among the clerks that we see in Blackmun's files in Planned Parenthood v. Casey?" Garrow asked. "I hope we don't." It was in the Casey file that some of the most stinging remarks are made by Blackmun's clerks. Clerk Stephanie Dangel, now a lawyer in Pennsylvania, referred to Justice Antonin Scalia as "evil Nino" and worried that even though Casey would preserve Blackmun's Roe v. Wade decision declaring a woman's right to an abortion, the ruling "may have the effect of removing abortion from the political agenda just long enough to ensure the re-election of President [George H.W.] Bush." Note the recent case where Dakota County Distric tCourt Judge Maurice Rdmond faced discipline because he allowed attorneys to write his rulings. Judge Redmond must have forgotten that he was NOT on the Supremes.

Monday, April 18, 2005

Imminent Bankruptcy Reform: a British View

Debtors in the United States have enjoyed until a few months from now the most favorable liquidation and reorganization laws in the developed world. The Economist in its article Morally bankrupt? (4-15-2005) reported that 5 times as many persons filed bankruptcy last year than did in 1981 in the United States, which was when the current bankruptcy code was just 3 years old. England recently relaxed its bankruptcy laws in favor of debtors, and a whopping 36,000 filings resulted in one year, still per capita Americans file 9 times as often. Congress and its lobbyist benefactors from the credit industry overwhelmingly blame relatively pain free bankruptcy filing processes for the tidal wave of bankruptcies. But other scholars have a point that at the same time Congress initially passed debtor friendly bankruptcy laws in 1978, the Supreme Court at nearly the same time held that federal credit law pre-empted most state level usury laws which had reined in the credit industry with regulated interest rates. SeeMARQUETTE NAT. BANK v. FIRST OF OMAHA CORP., 439 U.S. 299 (1978) {National Banking laws pre-empt state level usury laws'application to credit cards.} Another wrinkle only a publication devoted to free markets would have noticed about the new bankruptcy regime: the stricter laws, even though they will collar many profligate debtors will likely also stifle entrepreneurship. Economic studies report that significantly more individuals are self employed in states that have more debtor generous exemption laws (Life after debt Economist 4-15; See PERSONAL BANKRUPTCY AND THE LEVEL OF ENTREPRENEURIAL ACTIVITY Journal of Law and Economics, Fan & White, October 2003 abstract). On the other hand other studies indicate credit will be more available if laws tend to favor creditors See RAND JOURNAL OF ECONOMICS, Bankruptcy and Small Firms' Access to Credit Spring 2004 Berkowitz and Michelle J. White. Credit cards are often the lenders of last resort for budding entreprenuers who because of inexperience or bad experience are unable to obtain conventional bank financing for a new venture. Credit cards do play up on this with many advertisements for business only credit cards. Even Visa got into the Act, because in almost every episode of the Apprentice the contestants receive Visa credit cards fortheir seed money

Ironically economically stagnant Europe has looked at making debt reorganization more not less cumbersome and painful to failed businesses principals, at the same time we are headed in the other direction. When even nine out of ten well planned businesses fail, you can’t count on tighter credit always finding the deserving entrepreneur.

Saturday, April 16, 2005

Lawyers are Good for the Economy, Stupid

News flash, Lawyers are good for the economy. Well sort of. Scholars who do IQ studies theorize that the wealth of a nation, ie GDP is directly related to its "Smart fraction." "Smart fraction" means the part of society with verbal IQ scores at 106 and above. Lawyers generally exhibit high verbal IQ skills. Historian Daniel Boorstin in his three volume "The Americans" points to lawyers as largely responsible for development of industry and the westward expansion. The high IQ lawyer might breakdown a little, as far as lawyers go however if law schools keep admtting less qualified students in order to achieve ethnic diversity. The recent Stanford Law Review article by UCLA law professor Richard Sander lays out the stark details: minority law students inevitably congregate at the bottom tiers of their law school classes and also pass the bar exam at the lowest rates.

Friday, April 15, 2005

FogHorn Leg Horn forfeits match thanks to 8th Circuit

Anna Slavin made her lifes work the care and breeding of exotic gamebirds. She incidentally raised some of the baddest fighting roosters in Western Arkansas, the bluegrass country of cock fighting. The meddlesome Federal Government squelched her enterprise when Congress in 2002 added provisions to the Animal Welfare Act that prohibit the “knowing transportation of birds in interstate or foreign commerce for purposes of having the birds participate in a fighting venture, regardless whether the fight would be legal in the state where it was to occur.” 7 USC 2156.

Anna sued in Federal Court to prevent enforcement of the law, claming the law exceeded Congressional authority to regulate Interstate Commerce (United States v. Lopez, 514 U.S. 549, 558 (1995) (Congressional Commerce power extends to regulating channels, instrumentalities of interstate commerce as well as objects in interstate commerce); ; the law was unconstitutionally vague and finally an unconstitutional taking. The Eighth Circuit dismissed all claims; first crossing state lines is commerce; second the law was not vague See Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 503 (1982) (business regulation is not facially vague where law fairly warns of proscribed conduct; scienter element in regulation mitigates vagueness notice claim)

Cockfighting apparently is a legal entertainment in Louisiana and New Mexico, I am sure thousands of roosters will thank Congress for sending them to the packing plants instead of the fighting pits.

Neb Supremes reject LPS intervention in school funding suit

The Nebraska Supreme Court today rejected Lincoln Public School Districts motion to intervene in litigation the Omaha School District initiated against the State seeking to hold Nebraska's School Funding system unconstitutional. Douglas Cty. Sch. Dist. 0001 v. Johanns, 269 Neb. 664 Filed April 15, 2005. No. S-04-874. Lincoln and Omaha papers reported the decision pretty accurately. It probably is a good result to keep dozens of other districts out of the case (too many cooks spoiling the stew) but the reasoning on ground of civil procedure is flawed. “‘“[w]hen public officers are engaged in litigation to protect public rights, and their pleadings and procedure maintain the public interest, no private person is entitled to intervene.”’” Best & Co., Inc. v. City of Omaha, 149 Neb. 868, 877, 33 N.W.2d 150, 156 (1948). Accord Smithberger v. Banning, 130 Neb. 354, 265 N.W. 10 (1936). "(Other ) jurisdictions routinely hold that under the parens patriae doctrine, when a state is a party to a suit involving a matter of sovereign interest, it is presumed to represent the interests of all its citizens. See also New Jersey v. New York, 345 U.S. 369, 372-73, 73 S. Ct. 689, 97 L. Ed. 1081 (1953), {“parens patriae” necessary recognition of sovereign dignity, as well as a working rule for good judicial administration}. Trouble is this rule speaks to the intervention of every citizen on the street wearing a tin foil hat. OPS, argued that LPS did not properly plead a direct, not speculative legal interest in the litigation, as 25-328 requires. Direct interests are those that may cause the intervenor to lose or gain by the direct operation and legal effect of the judgment. Therefore, a person seeking to intervene must allege facts showing that he or she possesses the requisite legal interest in the subject matter of the action. we hold that this speculative allegation is insufficient to state a direct legal right that would allow intervention. The Court did not elaborate how the special pleading requirement it found within 25-328 trumps our new federalized notice pleading the Supreme Court adopted 2 years ago.

Bankruptcy Reform bill clears House

Omaha world herald (registration required) reports that Bankruptcy Reform has cleared the House. President will sign any day now. Massive amendments are incorporated into the current code in earlier post (March 28, 2005). I think a lot depends on how aggressively creditors and trustees across the country will enforce the new laws before everyone concludes that this will completely staunch the flood of bankruptcy filings.

Tuesday, April 12, 2005

Out of state bench warrant no good for residential drug search

State v. Ruegge (Not Designated for Permanent Publication)(April 12, 2005.) Nos. A-04-1038, A-04-1039. Police searched defendant's home who had an outstanding misdemeanor warrant from Iowa. Court held search and seizure unconstitutional because out of state warrant not valid authority to enter home, unless Police get a Nebraska warrant first. Court found failure to obtain Nebraska warrant violated state law but also against US Fourth Amendment. U.S. v. Frank, 8 F. Supp. 2d 284 (1998). Said case on Federal prosecution allowing arrest in open area based on out of state bench warrant did not apply, nor did the "good faith" exception .State v. Davidson, 260 Neb. 417, 618 N.W.2d 418 (2000)

Friday, April 08, 2005

Friday April 8 2005 result in Supreme Court

Kam v. IBP, inc., 269 Neb. 622 (2005): on petition for further review, summarily uphelp decision of court of appeals in same case 12 Neb. App. 855, 686 N.W.2d 631 (2004), essentially holding that a worker on temporary partial disability cannot by definition be totally disabled.

Hanchera v. Board of Adjustment, 269 Neb. 623 Filed April 8, 2005. No. S-03-1175: large hog lot tried to grandfather itself into Red Willow County Land before new regulations took effect. Court held this was in bad faith.

Allied Mut. Ins. Co. v. City of Lincoln, 269 Neb. 631 (4-8-2005) {appeal dismissed because it was not a final order in multi-party lawsuit, causing Allied to take to trial recovery action against City of LIncoln for >$330k}In March 1998, Sarah Cockson and her sis ter Laura Cockson were travelling on Cornhusker Highway when Jeffrey Ireland was fleeing pursuing police officers northbound on North 1st Street, in Lincoln. Jeffrey had a suspended drivers license and multiple drunk driving convictions. An exgirlfriend had killed his son about a year before from neglectful care. Laura was killed and Sarah was critically injured when they collided with Jeffrey Ireland. Allied Insurance Company and Genesis Insurance Company sued the City of Lincoln to determine who should pick up the tab for the City's liability. Incidentally Allied had loaned the City over $300k to settle the police pursuit case, while the court's litigated whether the polic pursuit case was insurable. All parties moved for summary judgment. The district court entered summary judgment in favor of Genesis because it only covered buses and denied summary judgment for Allied and the city, stating that whether an exclusion in allieds policy for intentional acts applied to the police pursuit case required a trial, and was not appropriate for summary judgment. Parties seeking to a rehearing prior to appealing an adverse summary judgment must now be careful to couch their requested relief in terms of Section 25-1912(1), Also parties must be careful to request certification under 25-1315 that the decision they seek to appeal in a multi-party case should be "final." {comparable to Federal Civil Procedure Rule 54b on notice of appeal in multi-party/claim cases, see discussion here} Allied lost its appeal however becuase the district court never found the claims against it to be final orders in a multi-party case, see § 25-1315,. Consequently, there is no final order under § 25-1315, and as a result, th appeals court did not have jursdiction over Allied's appeal.

State v. Jonusas, 269 Neb. 644; Defendant convicted of theft by unlawful taking (28-511) when he promised to broker purchase of a business but instead spent the money. The district court sentenced Jonusas for the offense of theft by deception after it had convicted him of theft by unlawful taking or disposition, but the court did not take this as plain error.

State ex rel. Counsel for Dis. v. Sutton, 269 Neb. 640; Attorney already suspended for neglecting legal matters faced further grievances but did not respond. As the Court suspected from the initial case, the lawyer might be out of it, it gave the lawyer a chance to respond, if ever, by ordering additional discipline of indefinite suspension, on top of the initial 1 year suspension. Mr Sutton forgot that the Counsel for Discipline may work on its complaints when it feels like it, open secret that some grievances remain open indefinitely until there is something else on which the Counsel for Discipline can piggy back the heretofore unimportant grievance.

Lawyers as taxpayers: come to do good; stay to do well

Two links highlight how ambivalent lawyers are to taxes. Minor controversy last summer as the 2004 Presidential election got started: VP candidate John Edwards made a tidy fortune on a number of million dollar verdicts. One year immediately prior to landing a couple huge hits for justice and truth, then private citizen attorney John Edwards converted his law practice into a subchapter S corporation, saving quite a bit in taxes. My comments from last summer are here. Recently law firms have been holding their breath to see what might come along with Social Security reform. Seems the Congress is mulling taking off the earnings cap on salaries and self employment income and also have thought about putting limited partners back on as semi employees of their law firms. covered this issue in "Lawyers, can you spare billion?"

Delayed release of todays Supreme Court decisions

The Nebraska Supreme Court announced that due to technical problems it will delay release of today's rulings, 4-8-2005. Do you guess that will disappoint all the Law Professors who gushed about the "renaissance" Supreme Court a few years ago, some sinking as far into maudlin sycophancy as to compare opening up the new decisions to getting a birthday present. ?

Thursday, April 07, 2005

Nebraska Lawyer Disciplinary sanctions: Useful or "@#!!%" ? (More Statistic padding at the ABA)

Over at law. coms' legal blog network, its latest post ABA sanctions: Useful or "@#!!%" ? has generated quite a few blogger rants. The documents are linked there. Basically the ABA report says that nationwide there over 100,000 grievances filed against attorneys in 2003, but only about 6000 lawyers actually received court imposed discipline. The Nebraska counsel for Discipline is proud of the fact that for the number of grievances it receives, it has one of the highest charging rates in the country. So more complaints against Nebraska attorneys either have more merit or the Counsel for Discipline is pushing complaints that have less merit than those from other parts of the country that result in formal disciplinary action. I wonder if the Nebraska experience is anything like what is going on in the rest of the country. If not, dont trust the lies, damn lies and statistics Disciplinary Counsel are feeding the public. You may Remember The Sorry Story from Nebraska 5 Years Ago, Concerning An Attorney Terrance Malcom Who Stole At Least 2 Million Dollars From Clients, And A Great Deal Of It While The Authorities Had Him Under Investigation For It. State ex rel. NSBA v. Malcom, 561 N.W.2d 237 (1997) There certainly are more Than case of Attorneys Who Plea Bargained For Extremely Light Discipline When They Had Prior Public Discipline On Their Records, Including Suspensions. State ex rel Counsel for Discipline of the Nebraska Supreme Court v. Conley, 686 N.W.2d 902, 268 Neb. 674 (Neb. 10/01/2004) and 365 N.W.2d 434, 219 Neb. 617 STATE OF NEBRASKA EX REL. NEBRASKA STATE BAR ASSOCIATION, RELATOR,v.PAUL M. CONLEY, RESPONDENT State ex rel Counsel for Discipline of the Nebraska Supreme Court v. James, 673 N.W.2d 214, 267 Neb. 186 (Neb. 01/09/2004) and 307 N.W.2d 524, 209 Neb. 306 1981 STATE OF NEBRASKA EX REL. NEBRASKA STATE BAR ASSOCIATION, COMPLAINANT,v.MERRITT E. JAMES, RESPONDENT State ex rel Counsel for Discipline of the Nebraska Supreme Court v. Koenig, 264 Neb. 474, 647 N.W.2d 653 (Neb. 07/26/2002) An Attorney Who "Forgot" For Nearly 18 Months To Refund To A Client From His Trust Account An Unearned Retainer Of $10,000 Who Blamed Demon Rum And Got A 90 Day Suspension For It: State ex rel Counsel for Discipline of the Nebraska Supreme Court v. O'Brien, 684 N.W.2d 46, 268 Neb. 491 (Neb. 07/30/2004) Another Attorney Was Too Busy To Defend His Client During A Phone Deposition. He Had His Secretary Stand In For Him Over The Phone For Half The Deposition And Had The Gall To Bill The Client At The Lawyer's Rate, This Attorney Received A Public Reprimand For This. No One Knew There Was An Impostor Defending The Lawyers Client During This Deposition: State ex rel Counsel for Discipline of the Nebraska Supreme Court v. Thayer, 677 N.W.2d 188, 267 Neb. 796 (Neb. 04/09/2004) Prominent Omaha personal injury attorney Ronald J. Palagi and prominent financial backer of former Governor-current US Senator Ben Nelson's elections campaigns refused to turn over client files after they had dismissed him; he also charged outsourced paralegal work as expenses in several contingent fee cases when the clients had not contracted to pay such expenses; finally in a few cases he loaned money to personal injury clients. For this "pattern of misconduct and hardly isolated instances" he received a public reprimand from the entire Supreme Court whose members owe their jobs to the good Senator Nelson. State ex rel Counsel for Discipline of Nebraska Supreme Court v. Palagi, 269 Neb. 398 (Neb. 02/25/2005) A lawyer helped his Hoe get some pin money for some much needed bling by bouncing a $10000 check from a dummy corp he set up to an unsuspecting victim intially faced felony theft charges in the Buffalo County District Court. Through a plea bargain he pled down to a misdemeanor. The Nebraska Supreme court in its crackdown on sleazy lawyers hammered this attorney-son of a deceased NEbraska District Court judge with a public reprimand. State ex rel Counsel for Discipline of the Nebraska Supreme Court v. Fritzler, 689 N.W.2d 193, 268 Neb. 899 (Neb. 12/03/2004) However the Supremes know how to snuff out those lawyers who really are a menace to the administration of justice. You know the ones who call other lawyers bad names, like Hitler? State ex rel Counsel for Discipline of the Nebraska Supreme Court v. Widtfeldt, 691 N.W.2d 531, 269 Neb. 289 (Neb. 02/04/2005) So how would esteemed Disciplinary Counsel answer such a charge? By RAISING THE BAR of course! Discipline eccentric, belligerent attorneys who lost or never gained membership to the "Order of the Kneepads." The HALT Report Card that scored the effectiveness of lawyer discipline gives No State's System Better Than A "C" ( Nebraska squeezed in a C-.) You Will Not See True Reform In The Lawyer Discipline System Anywhere Until The People Take This Gravely Important Task Away From The Courts. State Administrative Boards Discipline And Regulate Doctors, Realtors And Every Other Profession. Only Lawyers Are Investigated, Prosecuted, Disciplined And Reviewed By The Very Same Body, Their Respective State Supreme Courts. I Believe We Should Initiate Amending States' Constitutions To Put The Discipline Of Attorneys In The Hands Of The People. That Is Not Where It Is Today No Matter How Hard The Courts Try To Make Examples Out Of A Few Sore Thumb Lawyers. How Many Prosecuting Attorneys Or Police Chiefs Would Keep Their Jobs If They Were As Ineffective As The Disciplinary Counsels Around The Country, Especially If They Worked For The Courts Who Secretly Reviewed Their Plea Bargains And Contested Cases?

Tuesday, April 05, 2005

Bankrupt? NoIRA Problemo

Richard and Betty Jo Rousey of Arkansas, who took their lump-sum pension distributions from the Northrop Grumman Corp. and deposited them into two IRAs. Years later, when they filed a Chapter 7 bankruptcy petition, they sought to protect their IRAs from creditors. Read the article here (free registration) required. The case is Rousey v. Jacoway (U.S. 04/04/2005) Justice Thomas 03-1407 544 U. S. ____ (2005) Northrup Grumman? Werent they a big aircraft manufactuing firm? Do you think Richard and Betty were bought out and these IRA's contained everything left from years of employment at an old economy firm? The Chapter 7 trustee sought to liquidate the Rousey's IRA's; like most debtors they probably had no other assets and Trustees are commissioned. The local Bankruptcy Court, the BAP and the Eighth circuit agreed with tthe trustee that the IRA's were the trustees. The Court held that Sec522(d)10E allowed the Rousey's to exempt the IRAs, Subsection (E) exempts "a stock bonus, pension, profitsharing, annuity, or similar plan or contract on account of illness, disability, death, age, or length of service, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor ... ." lucky for you retired olks, the new Bankruptcy law does not amend Sec 522(d)10E!

Friday, April 01, 2005

APRIL FOOLS DAY action in the Supreme Court

Smith v. Colorado Organ Recovery Sys., 269 Neb. 578 Filed April 1, 2005. No. S-02-767. Jury verdict against patient receiving a liver transplant upheld; Jury found negligence but no proximate cause; Plaintiff failed to properly object to defense experts, as not following up motions in limine with actual objections at trial waives objection; Defense experts would have easily passed Daubert standards, and Plaintiff's expert was not even a liver doctor.

Anderson v. Wells Fargo Fin. Accept., 269 Neb. 595 Filed April 1, 2005. No. S-03-882. Car buyer's actio against bank for failing to include his name on title failed to state a claim under Rule 12(b)(6) because Declaratory judgment action under Section 25-21,150 of the Uniform Declaratory Judgments Act would not have disposed of the underlying action (21-21, 154.)

State v. McDonald, 269 Neb. 604 Filed April 1, 2005. No. S-04-516. Defendant convicted of murder in 1975 denied DNA test under § 29-4120; defendant argued "bloodstains" were actually paint, DNA would not help because tests to distinguish blood from other substances were available in the 1970's .

State v. Verling, 269 Neb. 610 Filed April 1, 2005. No. S-04-562. Traffic stop lead to search of vehicle and traffic citation. Supreme Court found reasonable suspicion for further detention and dog search yielding contraband, including the drivers' having an Illinois drivers license, a rented vehicle from Arizona, and the drivers attempts to distract the police officr. S tate v. Lee, 265 Neb. 663, 658 N.W.2d 669 (2003). Both the length of the continued detention and the investigative methods employed therein were reasonable See, U.S. v. Bloomfield, 40 F.3d 910 (8th Cir. 1994) , State v. Lee, supra. The canine sniff was initiated 10 to 15 minutes after the initial stop and approximately 1 minute after issuance of the warning citation. The duration of the extended detention was clearly reasonable, and the use of the drug detection dog during the lawful detention did not violate any constitutionally protected right. See Illinois v. Caballes, ___ U.S. ___, 125 S. Ct. 834, ___ L. Ed. 2d ___ (2005). The court did not call this a search incident to arrest, cf Knowles v. Iowa, 525 U.S. 113, 119 S. Ct. 484, 142 L. Ed. 2d 492 (1998),

State ex rel. Counsel for Dis. v. Terry, 269 Neb. 619 Filed April 1 , 2005. No. S-04-750. Attorney surrenders license after multiple acts of trust account commingling.

Norfolk Atty indicted for meth dist

The Omaha World Herald reports that the US Atty has charged Norfolk attorney Scott Freese with conspiracy to distribute methamphetamine, alon with several other defendants. The Nebraska Supreme Court had suspended Attorney Freese in 2000 for conflict of interest when he ran off with a client's wife while he represented the client in a motorcyle accident and in a divorce between the spouses. State ex rel Nebraska State Bar v. Freese, 259 Neb. 530, 611 N.W.2d 80, 611 N.W.2d 80 (Neb. 05/19/2000) ( subscription required) Interesting the case that lead to discipinary action involved a biker and his woman, with the lawyer cuckolding the biker, not a good idea.