Tuesday, May 31, 2005

Court interpreters Nebraska's $538K Tower of Babel

Lincoln Journal Star reports that the Nebraska State Court Administrator spent $538,000 on court interpreters last year. The State has picked up the tab for court interpreters since 1999. $538,000 is a bargain of course since supposedly Americans wont do jobs immigrants who need the interpreters do, and compared to the overall state judiciary budget of $66 million, it isn't too bad. Illegal immigrants cost $10billion per year. The journal Star didn't go into how much of interpreter budget goes to assist illegal immigrants in court. But the increased cost of interpreters can only exacerbate the overall tight budget situation all state court systems face today. As many state court systems face cuts first when state budgets need cutting.

Monday, May 30, 2005

Exclusionary rule inapplicable to 4th amendment violations in civil cases

Chase v. Neth, 269 Neb. 882 May 27, 2005. No. S-04-501.

In re Interest of Corey P. et al., 269 Neb. 925 May 27, 2005. Nos. S-04-1079, S-04-1100.

These 2 cases hold that the Fourth Amendment generally does not apply to civil proceedings; in these cases to administrative drivers license revocations for refusing to submit to breath tests and to termination of parental rights cases. In the case of Chase, the legislature had in2003 removed the arrest validity as an issue in reviewing administrative license suspensions for test refusals. 60-498.01(6)(c)(i). Also 60-498.02 allows for dismissing the administrative license suspension if there is no prosecution for dwi or if the driver is acquitted, but not for refusals. Even though the driver whom the State accused of refusing a breath test could not contest the validity of her arrest and might not even face criminal prosecution, the Supreme Court holds that the Fourth Amendment does not exclude evidence obtained in violation of its rule. The majority view which the Nebraska Supreme Court will follow holds that the Fourth Amendment exclusionary rule is inapplicable to ALR proceedings, except as it may apply indirectly through §60-498.02(4)(a). See Hass v. Neth, 265 Neb. 321, 657 N.W.2d 11 (2003). See also Jacobs v. Director of Motor Vehicles 149 N.H. 502, 823 A.2d 752 (2003). Unlike Hass, which operated as a form of statutory exclusionary rule, the Legislature did not provide that an ALR for refusal to submit to a chemical test was dependent upon a successful criminal prosecution for that offense. In Corey P. the parents alleged evidence obtained against them to terminate their parental rights violated the Fourth Amendment as the authorities obtained evidence from a warrantless entry into their home. The Court holds that the Fourth Amendment exclusionary rule did not apply to parental rights termination cases.

The New Hampshire Jacobs case dissenters pointed out however that under their state's administrative license suspension system the penalties could exceed those from the accompanying criminal conviction, implicating the fourth amendment protections according to the United States Supreme Court in Plymouth Sedan v. Pennsylvania, 380 U.S. 693 (1965)

Sunday, May 29, 2005

Supremes uphold garbage taxes against "dormant commerce clause" challenge

Waste Connections of Neb. v. City of Lincoln, 269 Neb. 855 Filed May 27, 2005. No. S-03-1356.

Lincoln City Ordinances that reduced "tipping" fees from $17/ton to $10/ton, eliminated a $100 per vehicle occupation tax and replaced these measures with a $7/per ton fee for collecting garbage and a $10 per ton "tipping" fee discriminated against a garbage hauler that wanted to dump trash in Butler County but did not violate equal protection or the Federal "dormant" commerce clause. The $7/ton collection fee did not apply to garbage headed out of the state. The Supreme Court holds that at most this collection fee-occupation tax structure discriminates against in-state commerce but does not affect interstate commerce. The Nebraska Supreme Court did not mention whether the City's owning the landfill affected its analysis, but it could have as it was affecting interstate commerce as a market place participant. The Supreme Court states "(the) occupation tax of $7 per ton(applies to) all haulers operating within the(Lincoln) city limits without regard to a hauler’s locality. Thus, a hauler from another state pays the same tax as a hauler from Nebraska if waste collected within the city limits is destined for deposit within Nebraska. Similarly, if the waste is destined for deposit outside Nebraska, neither a hauler from Nebraska nor a hauler from any other state is required to pay the tax. This equal treatment of in-state and out-of-state haulers under an ordinance is not a burden on interstate commerce; rather, it is a burden on intrastate commerce, which is not protected under the dormant Commerce Clause." US Supreme Court Justice Thomas' proposes to scrap the dormant commerce clause altogether. Camps Newfound/Owatonna, Inc. v. Town of Harrison (94-1988), 520 U.S. 564 (1997).(Thomas Dissenting)

Nice idea it would eliminate a particularly troublesome area of constitutional law final exams.

Saturday, May 28, 2005

The Checkoff its whats for dinner

The United States Supreme Court sustained the USDA mandatory checkoff that forces cattlemen to contribute $1 for every head of cattle they sell to the "Beef its whats for dinner" campaign. Although the Supreme Court has in the past refused to allow mandatory government funding of government speech and government compelled messages, this time the court allows the checkoff to proceed against the protests of mostly smaller cattlemen. Mainstream cattle producer organizations support the ruling. Blogs have analysed the decision as one getting away from a point of view that the speech was just a part of a larger government regulatory scheme as in the "fruit and nut trees" case Glickman v. Wileman Bros. &Elliott, Inc., 521 U.S. 457 (1997) to one where the Court will allow government to speak and political accountability takes care of any problems with targeted funding. This overrules the 8th Circuit decision that analyzed the case as one forcing market partcipants to fund objectionable speech (Livestock Marketing Association v. USDA Nos. 02-2769/2832 Jul 8 2003) which found the Beef checkoff closer to the impermissible checkoff system the USDA required from mushroom producers United States v. United Foods, Inc., 533 U.S. 405, 413 (2001). The case originated from the South Dakota Federal Court, Livestock Marketing Ass’n v. United States Dep’t of Agric., 207 F. Supp. 2d 992 (D.S.D. 2002) (LMA II) and Livestock Marketing Ass’n v. United States Dep’t of Agric., 132 F. Supp. 2d 817 (D.S.D. 2001) (LMA I) where you would expect the Court to show less sympathy for the Plaintiffs who urged that their grain fed animals were better than grass fed and imported cattle. Interestingly, the United States is now a net importer of cattle (4-1-05 blog entry) so the check off obviously benefits some free riders. The Beef ruling probably came down the way it did more on results and process than the law. The public knows the subsidized message best as "Beef its whats for dinner." This generic lowest common denominator message couldnt offend any meat consumer or producer could it? Mushrooms seem a quite a bit more esoteric to me and so the diffuculty in coming up with a consensus message lead the Court in United Foods to conclude there was no such message it could allow the USDA to impose on behalf of all producers. Promoting beef is as American as apple and the interests of those who dispute that the product is pretty much all the same are not as important as getting out the broader message. In this light the "Beef for Dinner" campaign is just like Radio Free America promoting democracy in the Middle East, the interests of the speaker, the government are more important that the interest of dissenters. The Beef case majority was nearly shouting that if it struck down the Beef checkoff, next would be lawsuits against funding any government speech. On the other hand the Court willingly struck down mandatory funding of Bar Association lobbying (Keller v State Bar of California 496 US 1 , 1990)and restrictions on the kinds of cases federally subsidized legal services clinics could take (Legal Services Corporation v. Velazquez, ___ US ___ 2001) because in the view of the Court at least, the work of attorneys and the legal system is so diverse and complex that the Government cannot practicably impose its views on the system without doing damage to the legal process. The interest of dissenters in not supporting contrary messages outweighs the governments interests in its policy. The public will lose confidence in a legal system whose advocates the government unduly hamstrings by shutting off controversial cases from them and by making them pay for lobbying on policies they oppose. The Supreme Court employs case specific balancing tests in other matters. I dont see why such an approach would not work in these cases of subsidized and de-subsidized speech.

Wednesday, May 25, 2005

"Pro-Life" Senator Nelson sell-out

"Moderate" Democrat Senator Ben Nelson of Nebraska, whom the President had courted for Secretary of Agriculture avoided having to pay his "Nebraska Right to Life" piper by helping to broker the US Senate compromise to end the Democrats filibuster against a couple of President Bush's appellate court nominations. Senator Nelson showed his gratitude to Nebraska's pro life voters by voting against Priscilla Owen for the 5th Circuit Court of Appeals.

Tuesday, May 24, 2005

2 "Bad faith" Plaintiffs lose in Neb Appeals Court

Stumbaugh v. Allstate Ins. Co. (Not Designated for Permanent Publication) May 24, 2005. No. A-03-956.

Klasi v. Gallagher Bassett Servs. Not Designated for Permanent Publication) May 24, 2005. No. A-04-107.

Two "Bad Faith" Plaintiffs lose in the Court of Appeals today. Stumbaugh brings a "bad faith" settlement claim against Allstate, th ePlaintiff's uninsured motorist insurer and Klasi sues the worker compensation administrator for his work injury. Klasi narrowly avoids attorney fee sanctions for bringing a frivolous suit and Stumbaugh loses on summary judgment.

Monday, May 23, 2005

Omaha Police raided meth dealer 5 times before arresting him

United States v. Jerry Urkevich   
U.S. Court of Appeals Case No. 04-2244
District of Nebraska  5-20-2005 

The 8th Circuit Court of Appeals affirmed the 895-month sentence for meth dealer Jerry Urkevich whose home Omaha police had raided five times before finally arresting him for narcotics and firearms offenses. Each time police found illegal narcotics, mostly methamphetamine, and firearms. When the US Attorney finally charged Urkevich, he was charged with five counts of narcotics and illegal firearms charges. Urkevich lost his appeal on whether he was only “possessing” or “using” a firearm in the course of narcotics dealing. Urkevich also lost his Booker claim; the Court said it was likely he would have been sentenced this long no matter what so there was no plain error.

Sunday, May 22, 2005

Omaha City Attorney wins domestic assault conviction without victim’s testimony

State v. Hembertt, 269 Neb. 840 Filed May 20, 2005. No. S-04-1124.

The Douglas County Court convicted David Hembertt of municipal assault and battery, sentencing him to 90 days jail (Omaha Mun. Code, ch. 20, art. IV, § 20-61 (1980). The principal evidence against him was the “excited utterances” from the alleged victim who 3-5 minutes after another citizen made a police call told the police where the defendant was and what had happened. According to the Nebraska Supreme Court opinion:

(The Omaha Police officer) testified at trial that the woman was, “crying hysterical, trembling. She began to identify herself as the — as the residence — resident there and that she had — that she had been assaulted.” The woman went directly to the man who had made the emergency call, “crying and pointing to the house saying . . . he’s inside. He’s upstairs.” The officer testified that he observed bruises on the woman’s face and body.

The Officer testified that before police asked any questions, the woman “began to explain the story that he had been attacking her, head butting her and that he had threatened her with a knife.” The woman explained, “they had gotten into an argument. That he was somewhat accusing her of sleeping with another man. And as a result he started to beat her, head butted her I believe she said, threw her across a counter and up against the wall and threatened her with a knife.” The woman said the incident had happened “[m]oments prior to [the officers’] arrival.”

The Nebraska Supreme Court ultimately holds that the above victim statements qualified as “excited utterances” according to § 27-803(1) (Cum. Supp. 2004). 27-803(1) provides that an available declarant’s hearsay statements may be admissible when they “(relate) to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” The Defendant DID NOT contest that the statements qualified as 27-803(1) excited utterances.

The Defendant challenged admission of the statements as violating his confrontation clause rights under US Constitution Amendment VI and Nebraska Constitution, Article 1 Section 11. Although our state constitution words the confrontation clause differently from the Federal Constitution, the State’s is nevertheless co-extensive with the Federal’s.

Under the reformulated confrontation clause rule from Crawford v. Washington 541 U.S. 36, 2004, otherwise admissible out of court statements may be admitted only when they are not “testimonial” in nature. The Supreme Court holds the statements described above met this standard. The University of Denver Law School created this helpful table on Crawford-hearsay hypothetical resolutions. You are treading into dangerous territory however when you start excusing the presence of victims in court for domestic situations, as there are two sides to every story.

Saturday, May 21, 2005

Punctilious Judge costs Lancaster County Attorney's Office

State v. Gass, 269 Neb. 834 Filed May 20, 2005. No. S-04-1105.

Chronically punctilious Judge Paul Merritt cost the Lancaster County Attorney's Office a life sentence last week. The Nebraska Supreme Court nixed his belated attempt to alter his sentencing Kenny Gass a indeterminate life sentence with an automatic 20 year minimum to a straight life sentence. Kenny Gass plead no contest to 2nd degree murder in what appeared to be a truck stop robbery. 2nd degree murder is a Class IB felony.When a maximum limit of life is imposed by the court for a Class IB felony, the minimum limit may be any term of years not less than the statutory mandatory minimum 83-1,105.01 State v. Schnabel, 260 Neb. 618, 618 N.W.2d 699 (2000), the case involving the murder of a popular Saunders County volleyball coach and arson to conceal the crime, held when a flat sentence of “life imprisonment” is imposed and no minimum sentence is stated, by operation of law, the minimum sentence is the minimum imposed by law under the statute. Only limited circumstances permit the judge to alter his sentence "nunc pro tunc:" only when it is clear that the defendant has not yet left the courtroom; it is obvious that the judge, in correcting his or her language, the judge did not change in any manner the sentence originally intended; and no written notation of the inadvertently mispronounced sentence was made in the records of the court. State v. Foster, 239 Neb. 598, 476 N.W.2d 923 (1991). Schnabel, supra 260 Neb. at 623, 618 N.W.2d at 703. No doubt Judge Merritt will return to his imperious style and make up for this costly error by dismissing more uncontested divorces on technicalities.

Thursday, May 19, 2005

Lawyers "the virus ate my homework" defense no excuse

05/19/05 Widtfeldt v. United States et al U.S. Court of Appeals Case No. 04-3393 District of Nebraska Attorney James Widtfeldt claimed he was having a bad day with his computer that caused him to miss a briefing deadline in his pro se lawsuit against the USDA. The District Court sent out email notifications of his deadlines and dismissed the case when James failed to meet them. The Appeals Court did not believe in blaming a computer virus because he never logged on in the first place, and since his regular email was working, the 8th Circuit did not believe the virus ate my homework story. More trouble for James as the Nebraska Supreme Court had indefinitely suspended him earlier in February this year for calling a neighboring attorney a Hitler look-alike.

Tuesday, May 17, 2005

8th Circuit requires statistical evidence to prove damages

Nebraska Plastics v. Holland Colors et al. 8th Circuit #No. 04-2035/04-2180 District of Nebraska 05/13/05 The 8th Circuit Court of appeals last Friday May 13, 2005 required Plaintiff Nebraska Plastics to present more detailed statistical evidence to prove its future damages claim against Holland Colors Americas, Inc. Nebraska Plastics had sued Holland and another company OMYA for causing its plastic fencing products to rapidly lose its colored coating and to "chalk up.” Nebraska Plastics’ $1,500,000 verdict went down to barely $220,000 after the District Court set aside the future damage portion of the verdict, allowed the Defendant Holland Colors to take a credit for payments the 2nd defendant OMYA paid the Plaintiff and on its own $50000 counterclaim against the Plaintiff. In the future when a commercial Plaintiff claims future damages claim for prospective warranty claims, it will have to provide a basis for determining the amount of warranty claims, in other words an historical warranty claims analysis. This would be a matter for expert testimony to provide analysis to the jury. The District Judge excluded the Plaintiff's damage expert and also set aside the future damage verdict because the expert did not address these statistical issues, nor did other non-expert evidence much help the jury. The 8th Circuit also approved Hollands motion to take credit against its judgment for OMYA's settlement with the Plaintiff and for its own counterclaim against Plaintiff. While the Appeals court found this an unsettled issue of Nebraska law, it decided that the Defendant should be able to take credit against its judgment for the settling party's payment. See Jameson v. Liquid Controls Corp., 618 N.W.2d 637 (Neb. 2000) {protanto settlement rule applied to product liability judgment defendant} with Royal Indem. Co. v. Aetna Casualty & Surety Co., 229 N.W.2d 183, 189 (Neb. 1975){no contribution for intentional tortfeasors}. As the court found that the defendant did not seek to mislead the Plaintiff until after it started selling the coatings, the appeals court likely determined this case is closer to a product liability action, and thus one allowing the Defendant the benefit of the protanto settlement rule.

Supreme Court reverses bankruptcy malpractice verdict

The Nebraska supreme Court about 2 weeks ago in an unpublished opinion reversed a $640,000 malpractice verdict against Lincoln attorney Bill Chapin, which was related to his handling a Hall County farm's bankruptcy. The Court did not explain why it did not publish the decision but the Court ordered the case on remand to Lancaster County District Court Judge Jeffre Cheuvront to be completely dismissed. Also if the case did not merit a published opinion, why did the Supremes take the case in the first place? Through much of the case in District Court the Plaintiff, an elderly woman, represented herself and handwrote her pleadings. Suing your bankruptcy lawyer is hard to do, as in PATTERSON v.SWARR, MAY, SMITH & ANDERSON, 473 N.W.2d 94, 238 Neb. 911 (1991). (http://versuslaw.com/ registration required). The Supreme Court reversed over a $1million verdict against attorneys who improperly advised debtor clients to spend cash collateral on operating expenses, which lead to bank repossession of ther livestock and quick liquidation of their bankruptcy. The debtors experts could not prove that the debtors would have completed the more orderly liquidation plan. The Supreme Court ordered the $1million case dismissed on remand.

Douglas County Court reverses $100 fee cap, for now

Douglas Court Presiding Judge Thomas McQuade has apparently reversed the decision a few days ago to impose a $100 flat fee per appointed criminal case and reinstated the hourly rate. It didnt hurt county court appointed attorneys to have Sen. chambers on their side, too.

Sunday, May 15, 2005

8th Circuit reinstates Palmer death sentence despite Nebraska Supreme Court missteps

Palmer v. Clarke The 8th Circuit Friday corrected numerous errors our friend Federal District Court Judge Bataillon committed while he was bending over backwards to reverse Chales Jess Palmer’s death sentence. At the same time the yeoman 8th Circuit had to carry the mistake-prone Nebraska Supreme Court on its back. News reports focused on the 8th Circuits dismissing Palmer’s electrocution as cruel and unusual punishment, but did not mention that Federal District Court Judge Bataillon was making up reasons to release Palmer from death row. Nor did newspapers report a glaring mistake the Nebraska Supreme Court made in companion 4th Palmer Nebraska Supreme Court decision that might have caused a more activist Appeals Court to throw out his death sentence. The 8th Circuit notes in its footnote 9 that the Nebraska Supreme Court inaccurately states the rule on whether a defendant would have notice that “exceptional depravity” would amount to an aggravating factor in sentencing if that law was in effect at the time of sentencing. See footnote 9: It appears that the Nebraska Supreme Court misquoted its own governing standard. Compare {State v. Palmer, 600 N.W.2d 756 (Neb. 1999) (Palmer IV) , 771 (citing State v. Moore, 553 N.W.2d 120 (Neb. 1996)) with State v. Moore, 553 N.W.2d at 134. Notice applied applied at time of sentencing misstates the due process rule.See Bouie v. City of Columbia, 378 U.S. 347, 354 (1964).

Friday, May 13, 2005

Romering what your sow; Lawrencing the bed you make

Nebraska is back in the title hunt for most outrageous judicial opinion, this time on Federal Judge Joe Bataillon's Court decision striking down the Nebraska Defense of Marriage constitutional amendment. The 30% or so of Nebraskans who opposed the amendment five years ago now feel vindicated because their own lawsuit proved their point, hardly a unbiased evaluation of the original law. Volokh Conspiracy sees this decision, while wildly off base, as the poisoned fruit of the 1996 US Supreme Court decision Romer v. Evans {ruling Colorado State Constitutional amendment that prohibited municipalities from enacting anti-discrimination laws to protect sexual orientation. It is ironic that the gay favoring Judge Bataillon agrees with Justice Kennedy in his Romer majority decision that the gay-exclusion constitutional amendment present impermissible restrictions on their right to seek change in the laws (Judge Bataillon decision page 29) when gay activists know their best shot lies in challenging legal barriers inhibiting them in court. See Judge Bataillon decision note 10 page 29 {heightened scrutiny of laws that restrict political processes ordinarily expected to repeal of undesirable legislation, citing United States v. Carolene Products, 304 U.S. 144, 152 n.4 (1938)}. Justice Scalia's Romer dissent prophesies exactly what has resulted in Lawrence v Texas and Judge Bataillon's insolent ruling: the prestige of (the Supreme Court) strongly (endorses) the proposition that being anti-homosexual is as reprehensible as being a racial or religious bigot. "(The Supreme Court) has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that "animosity" toward homosexuality.. is evil." Scalia in his Lawrence dissent anticipates exactly Judge Bataillons wholesale destruction of the Nebraska amendment since the Lawrence majority's reasoning striking down sodomy laws "leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples." Judge Bataillon and his ilk wont come out and say he wants gay marriage, rather he merely wants a level playing field for this disadvantaged group, as did the sodomist in Lawrence. There is little to stop the freight train of judicial precedent that justifies its decisions with the ends of increasing freedom for homosexuals. How much to incorporate freedom of action for homosexuals is best left to the people. Because "(they) may feel (enough) disapprobation of homosexual conduct to disallow homosexual marriage, but (also) to (de)-criminalize private homosexual acts–(through appropriate legislation)..(Courts may )pretend that they also possess (the) freedom (to draw boundaries of action. If you fear gay marriage, believe it that it is a lawsuit away from reality, witness Canada and Massachusetts.

Reinstated appeal, child care subsidies, DNA tests and property-casualty insurance disputes in Supremes

State v. Smith; Proper remedy for appeal dismissed due to Court clerk mistakes: Defendant's first motion for post conviction relief was dismissed. The court dismissed this appeal because there was no poverty affidavit with the notice of appeal. The Defendant filed a 2nd motion for post conviction reelief alleging that he did attach the poverty affidavit to the notice of appeal. the Court agreed and reinstated the appeal to Defendant's first pcr motion. The Supreme Court agreed, stating that when an appellant alleges and proves that his appeal was dismissed due to court personnel mistakes, the proper remedy on motion is to reinstate the appeal. Ineffective counsel motion denied in Supreme court because although identification procedures through varyng size and type of photographs was suggestive, the suggestiveness was not overwhelming and the victim identified the defendant in trial, without the benefit of the photo line up. Also failing to name the victim in the charging documents was not prejudicial

Johnsen v. State, 269 Neb. 790 May 13, 2005. No. S-03-1319. Appeal from denial of child care subsidies enacted during 2002 state budget cutting sessions. Supreme Court held that Regulations purporting to reduce the income level making parents eligible for subsidized child care by 30% was a valid regulation under the constitutional separation of powers. Regulation reducing income eligible for child care also did not contradict Federal Regulations that placed a ceiling on income triggering child care eligibility (fed reg said not over 270% of poverty level, proposed reg stated eligibility at not over 120% of poverty level. Finally giving notice that a regulation would go into effect did not deny child care subsidy recipient of due process because no benefit reductions occurred until regs went into effect.

State v. El-Tabech, 269 Neb. 810 May 13, 2005. No. S-04-527: Appeal from overruled motion to new trial under DNA testing statute. Court holds that DNA tests that only provide some exculpatory evidence do not merit a new trial unless the newly discovered exculpatory DNA evidencetprobably would have produced a substantially different result if it had been offered and admitted at the former trial . See, §§ 29-4123(3) and 29-2101(6); State v. Bronson, 267 Neb. 103, 672 N.W.2d 244 2003. The "newly discovered evidence" standard, see eg. State v. Boppre, 243 Neb. 908, 924 1993 {probability of a substantially different result if newly discovered evidence had been offered and admitted at trial}applies to DNA tests, rather than the "ineffective counsel" Strickland v. Washington, 466 U.S. 668 standard {reasonable probability of a different result at trial but for unprofessional errors}

Olson v. Le Mars Mut. Ins. Co., 269 Neb. 800 Filed May 13, 2005. No. S-04-045. Property valued at $200,000 was partially damaged in fire. Hail policy provided for lesser of repair costs or lost value. Repair cost was $95000 and Insurance sought to reduce claim by claimed depreciation in property. Court held that when compensating for repairs to partially damaged property, the insurance company may not consider depreciation and must pay the full cost of repairing the property. Insurance company might have won if the property insured for an actual cash value determined solely on the basis of replacement costwere a complete loss

Thursday, May 12, 2005

Invalid expost facto sentence reversed but State must allow Defendant to plead to bargained charges

State v. Alba, 13 Neb. App. 519 May 10, 2005. No. A-04-1125.

Defendant thought he was taking a plea to 2 counts of sexual assault on a child, purportedly Class II felonies {Class II’s range from 1-50 years}. Actually the crimes charged in the amended information were class IV felonies {zero to five years}. The Prosecuting Attorney wanted a “do-over” in other words he wanted to discard the plea bargain. The Court holds the defendant is entitled to plead to the crimes he agreed, with a re-sentencing. Defendant first plead to two class II felonies for crimes occurring in 1997 and the Court sentenced him to consecutive sentences of 5-10 and 10-15 years respectively.

Trouble was that the Prosecutor, defense counsel and the Court did not realize that § 28-320.01 {first-offense sexual assault of a child} was a Class IV felony when the defendant committed these crimes {Unicameral changed first-offense sexual assault of a child to a Class IIIA felony. See 1997 Neb. Laws, L.B. 364 (operative date July 1, 1998). Because the crimes set forth in the information were alleged to have occurred on or about January 1, 1997, the version of § 28-320.01 classifying first-offense sexual assault as a Class IV felony controls here. The Appeals Court agreed, holding that the penalties for violating 28-320.01 at the time of the crimes control, as to impose a harsher sentence afterward would violate the ex post facto clause. See State v. Gray, 259 Neb. 897, 612 N.W.2d 507 (2000) (law which creates or enhances penalties that did not exist when offense was committed is unenforceable ex post facto law).

While the Prosecuting Attorney, defense lawyer and judge were all mistaken, the appeals court majority holds that the Prosecutor bears the risk of its own but collective mistake. The State made the agreement with Alba that he would plead no contest to reduced charges, and a particular sentence was not part of the agreement. The State’s expectations regarding sentencing were inherently unreasonable, as said earlier, and thus form no basis for rescission of the agreement. Alba is entitled to a lawful sentence based on the charges of which he and the State agreed that he would stand convicted.

Judge Irwin dissents on the majority’s remedy, stating that an invalid conviction following a plea bargain means the parties start from scratch, and not with the defendant facing no more than 10 years as compared to 100 years in prison. A Pennsylvania Federal Judge has held that if a court must vacate a plea bargain because of a mutual mistake of fact, that it is up to the State Court to fashion a remedy.

Douglas County Court slashes court-appointment fees

Omaha world herald on line (free registration required) reports that Douglas County Court will slash court appointment fees to $100 flat rate per case. Change does not affect District Court appointments. While appointed attorneys could probably handle a majority of county court cases for a C-note, I see a lot less agressive defense of litigated cases resulting, including felony preliminary hearings, dwis and assaults.

Tuesday, May 10, 2005

Nebraska Courts still unwilling to punish frivolous lawsuits with attorney fee sanctions

Nebraska courts are still unwilling to punish frivolous lawsuit or frivolous defenses with attorney fee awards. Harrington v. Farmers Union Co-Op. Ins. Co., 13 Neb. App. 484 Filed May 10, 2005. No. A-03-958. A party who lost property in a fire brought suit against the insurer when it denied the claim for arson. The jury found in the insurance company’s favor and answered special verdict interrogatories to hammer home the jury’s prevailing opinion that the suit was fraudulent and frivolous. The Court of Appeals denied Farmers’ Union Insurance Company’s contention that Nebraska Civil Procedure law required an attorney fee award in its favor. “The purpose of § 25-824 is ostensibly to discourage claims and defenses that are frivolous or made in bad faith. In light of this § 25-824 in pari materia with § 25-824.01, “shall” in § 25-824(2) (has a) directory rather than a mandatory meaning.” “Therefore… the trial court should exercise its sound discretion in determining whether to award attorney fees, and whether a claim or defense was made in bad faith is but one factor to be considered by the trial court. § 25-824.01” Even the jury’s special findings that the case was fraudulent did not take away from the trial court its discretion to award attorney fees under § 25-824(2). “[To] award attorney fees on [an] outcome basis in fraud or misrepresentation cases, or in situations in which the defendant prevails on an affirmative defense, would be tantamount to allowing any party who prevails in litigation to obtain attorney fees from the opposing party.” After reviewing “the totality of the evidence” presented at trial, the trial court concluded that Harrington’s claims and defenses were neither frivolous nor made in bad faith. Probably the sounder method to obtain attorney fees would have the party alleging a frivolous case or defense to make a counter or cross claim for such fees.

Friday, May 06, 2005

Right decision 2 years late, State v Faust

The Nebraska Supreme Court makes the right decision finally 2 years late, revisting State v Faust (Faust II). The Court reversed her double murder verdict because the jury should not have heard the truth that she was a psychobitch. Her defense counsel was ineffective for letting it in. This time the Court sees the writing on the wall and affirms. She had even less to go on this time, getting down to tainted identifications, a very difficult hurdle to leap.

Supremes rule Nebraska insurers must pay underinsured motorist claims, but dismiss "nofault" and "med-pay" claims in Colorado accident

Gregory F. Johnson, appellant, v. United States Fidelity and Guaranty Company, nka St. Paul Fire and Marine Insurance Company, and Employers Mutual Casualty Company, (Johnson v. Unites States Fidelity & Guar. Co.) 269 Neb. 731 May 6, 2005. No. S-03-748.

Nebraska resident with Nebraska auto insurance coverage was rear ended while a passenger in a Colorado vehicle in the Denver area. When the accident occurred in 1993 Colorado law capped underinsured motorist payments to “gap” between the maximum UIM coverage available less any payments the plaintiff had already received from liability insurance and other UIM policies. Nebraska’s underinsured motorist law was similar until 1991. Then Nebraska made underinsured motorist coverage more beneficial to Plaintiffs when it required UIM to make up for the shortfall of liability insurance in compensating for a plaintiff’s injuries. Currently underinsured motorist will pay on top of liability insurance payments, up to the maximum coverage available under any applicable policy.

“Personal Injury Protection” or PIP functioned as immediate compensation available to persons injured in Colorado auto accidents. Recently Colorado phased out its no fault auto insurance law and has reverted to a fault based system.

The Nebraska Supreme Court held that Nebraska law applied to the Colorado accident with regard to the underinsured motorist coverage. The Nebraska resident would get a second helping of PIP coverage from his Nebraska insurer under either state’s systems. The Court noted that the Brown vehicles insurance USFG already paid PIP to him. Colorado law determined that only that Colorado insurance policies required PIP benefits and the Nebraska policies would provide any coverage “required of out-of-state vehicles by the jurisdiction where the covered ‘auto’ is being used.” Maybe if the Plaintiff had been a passenger in his own automobile in Colorado when the accident occurred he would have had a shot at two PIP policies.

Wednesday, May 04, 2005

Obtuse Opinion Writing Department: State v. Washington, 269 Neb. 728 (2005)

State v. Washington, 269 Neb. 728 (April 28, 2005). No. S-04-868. Appeal from the District Court for Douglas County: J. Patrick Mullen, Judge. Exception sustained. Opinion by Justice McCormack. Language in this case is not a model of clarity, but its convoluted double negative syntax sounds good for a moot court brief. Adrian C. Washington was charged with second degree assault by information filed December 4, 2003. The next day, Washington waived his right to physically appear for his arraignment and also filed a motion for discovery. That motion was not disposed of until May 27, 2004, when the district court ordered mutual and reciprocal discovery. The Defendant sought discharge under the Nebraska Speedy Trial Act, 29-1207; the trial court agreed and dismissed the charged. The State successfully appealed to the Supreme Court. “ (In) computing the 6-month period for statutory speedy trial purposes, § 29-1207(4)(a) excludes the “period of delay resulting from other proceedings concerning the defendant, including but not limited to . . . the time from filing until final disposition of pretrial motions of the defendant….the issue is far from unsettled.”

Lawyers create Govt regulations but dont always want regs to apply to them

The American Bar Association and some other lawyer associations are fighting the Federal Trade Commission on the FTC's applying the Gramm--Leach financial privacy law to law firms and attorneys (Link to rules and statutes). Attorneys have in the past resisted application or perceived application of Fair debt collection laws and race/gender/disability public accomodation laws to their practices. Doesnt the Bible say "live by the sword, die by the sword?"