Thursday, June 30, 2005

Follow up: CALSCT upholds domestic partner law

While Nebraska Attorney General seeks to appeal the Federal District Court ruling striking down Nebraska's gay marriage constitutional amendment, the unanimous California Supreme Court has summarily upheld a lower appeals court opinion that the State's domestic partnership law (Family Code section 297.5) stands against opponents' contention that the measure conflicted with a voter-approved initiative defining marriage as a union between a man and a woman. While the domestic partnership law does not say gays may "marry", the law gives gay couples many benefits married enjoy. Proposition 22(Family Code section 308.5) make marriage solely between a man and a woman. Ironic that the California appeals court uses the Nebraska constitutional amendment (Article 1 Sec 29) against both gay marriage and hybrid partnership arrangements to limit the California marriage voter initiative to only marriage, and to have no effect on hybrid relationships. "Supporters of Proposition 22 could have easily barred the Legislature from enacting or extending domestic partnership laws by using language similar to that in other states—in Nebraska, for example, an initiative defining marriage as between a man and a woman also stated that domestic partnerships or civil unions between same sex couples would not be valid," the appeals court noted. The Appeals Court does not raise the objections the Nebraska Federal District Court had to Nebraska's marriage amendment.

Justice Janice Rogers Brown, who leaves Thursday to join the U.S. Court of Appeals for the District of Columbia, did not vote.

The domestic partners case is Knight v. Superior Court, S133961, summarily affirmed in the Supreme Court.

Business tax incentive suits spreading across the nation

Suits challenging various state business tax incentives legislation are spreading across the country, late in Washington that sought incentives for home enterprise Boeing. States and cities spend roughly $50 billion each year on subsidies and incentives. Good Jobs First. The sixth circuit court of appeals held an Ohio tax incentives law violated the dormant commerce clause. Similar suits are pending in Nebraska, Minnesota, and North Carolina,

Plattsmouth 10 Commandments Case up for 8th Circ rehearing

The Plattsmouth 10 Commandments case still is up for rehearing to the full 8th Circuit Court of Appeals. See World Herald timeline. Comments from both sides of the case indicate strong disagreement whether the Texas display (permissible) or the Kentucky display (not permissible) will sway the 8th Circuit. Justice Thomas suggests that he would overrule all cases holding the Establishment Clause incorporated into the 14th amendment, applicable to the states. Even if the Establishment Clause applies to the States, current Supreme Court rulings provide no consistent guideposts for local governments: "This Court’s precedent elevates the trivial to the proverbial “federal case,” by making benign signs and postings subject to challenge. Yet even as it does so, the Court’s precedent attempts to avoid declaring all religious symbols and words of longstanding tradition unconstitutional, by counterfactually declaring them of little religious significance. Even when the Court’s cases recognize that such symbols have religious meaning, they adopt an unhappy compromise that fails fully to account for either the adherent’s or the nonadherent’s beliefs, and provides no principled way to choose between them. Even worse, the incoherence of the Court’s decisions in this area renders the Establishment Clause impenetrable and incapable of consistent application. All told, this Court’s jurisprudence leaves courts, governments, and believers and nonbelievers alike confused–an observation that is hardly new."

Wednesday, June 29, 2005

Colorado Supreme Court to rule on juror questioning

Colorado's Supreme Court will decide soon whether to continue to allow jurors to submit questions to witnesses in criminal trials. The case is State of Colorado v Yvonne Medina. the National Center of State Courts notes that The Nebraska Supreme Court did not permit jurors to ask questions during the trial. State v Zima 468 N.W.2d 377, 380 (Neb. 1991) {versus registration required}

Appeal from Juvenile Court withstands dismissal

In re Interest of Kayla F. et al., 13 Neb. App. 679 June 28, 2005. No. A-05-442.

Mother in contested juvenile court proceedings against father filed notice of appeal from Hall County Court. Father sought to dismiss appeal because Mother did not deposit cost bond. Court holds that filing notice of appeal with docket fee satisfies appeals court jurisdiction, however mother has 14 days to deposit the cost bond. 25-1914. The court has discretion to dismiss an appeal on motion and notice “if no bond has been given and certified in the transcript or within such additional time as may be fixed by the appellate court for good cause shown.” Our statutory law states, and our case law holds, that to perfect an appeal from a juvenile court to an appellate court, the appealing party must, within 30 days after the rendition of such judgment, (1) file a notice of appeal with the juvenile court and (2) deposit with the clerk of the juvenile court the docket fee required by law. 25-1912. In re Interest of T.W. et al., 234 Neb. 966, 453 N.W.2d 436 (1990). In juvenile cases, the cost bond is required and may subject the appeal to dismissal, but is not jurisdictional. The Court orders the mother post the bond within 14 days.

Monday, June 27, 2005

Federal Judges pleading poverty

The Economist reports how how Federal Judges have are by their own description becoming the poor-whites of the legal profession. Apparently their pay since 1969 has declined 24% in purchasing power; its hard to get by on $150K per year and with only $24k allowed for outside income. The Federal Courts news letter claims that over half of this purchasing power loss occurred in just the last seven years. To add insult to injury, top flight young law graduates make almost as much,; never mind that the average lawyer income in the United States is still only $82,000 (as of 1999). The supposed consequences of this miserly pay is an exodus of older judges and the influx of younger judges. For my money, having to wait years to find out whether you are in after nomination might have more to do with keeping private sector attorneys away from the federal bench than the low pay. The Economists comparisons of judges' pay to Congressional Staffers however is a little misleading as Congressional Staffers must work in Washington with a high costs of living, while the judge's $150K makes a pretty comfortable living in say North Dakota. Nebraska State Judges dont need to worry as the Legislature as steadily kept up judicial pay raises at a 3% annual clip, with generous funding infusions through increased filing fees for their retirement fund.

Saturday, June 25, 2005

Blurry fax copy of real estate contract sends land dispute back to Lincoln County Dist Court

Ondrak v. Matis, 270 Neb. 46 June 24, 2005. No. S-04-764.

The Supremes send back to Lincoln County District Court this action for specific performance of a land contract action largely because the copy of the contract in the record is a blurry fax. Parties disputed whether certain items the defendant had removed from the property before sale should have remained with the property. Court holds that lis pendens statute 25-531 applies to real property title actions and whether fixtures apply to the lis pendens shall depend on the parties' intent.

Accountants disciplinary action reversed on plain error

Zwygart v. State, 270 Neb. 41 June 24, 2005. No. S-04-598.In accountant's disciplinary action, the Supreme Court reverses District Court for plain error in not reviewing record of accountants' board denovo. § 84-917(5)(a).

Unicameral standards for county diversion programs OK under Sep-Powers

Polikov v. Neth, 270 Neb. 29 June 24, 2005. No. S-04-081. State standards the Unicameral imposed upon county diversion programs did not violate the Nebraska Separation of Powers doctrine of State Constitution.Neb. Const. art. II, § 1. The court concludes that for formal diversion programs the power to design a formal pretrial diversion program is a legislative function and that thus, §§ 29-3601 through 29-3609 do not violate the separation of powers clause. When a county attorney prosecutes crimes and traffic offenses, the prosecutor acts on behalf of the State of Nebraska and not just his county. Prosecutors have discretion whether to charge anyone with a crime, therefore the court holds that the formal diversion procedures do not close out continued use of informal diversion on a case by case basis. Sarpy county was well known for allowing diversion for a wide range of traffic offenses including DWI, in part to patronize non-profit organizations that conducted the traffic programs. It appears that although the programs will have to scale back, they still may be under the table.

Friday, June 24, 2005

Defendant resentence for possessing firearms while subject to a protection order

United States v. Borer 03-2903 6-22-05 Shane Borer pled guilty to possession of firearms while subject to one or more domestic-violence protection orders, in violation of 18 U.S.C. § 922(g)(8).The court sentenced Borer to 24 months imprisonment and three years of supervised release. On rehearingthe government asserted that Borer was ineligible for a threelevel reduction under the Federal Sentencing Guidelines, namely § 3E1.1(b), because under the amended PROTECT ACT guidelines(Pub.L.No. 108-21, § 401(g), 117 Stat. 650, 671-72 (effective date April 30, 2003) SECTION 401, the third level reduction is available only upon motion of the government, which the government did not file for Borer's sentencing hearing, The 8th Circuit agreed with the Defendant that retrospective application of the new motion requirement would violate the Ex Post Facto Clause of the Constitution, as the PROTECT Act amendment made it materially more difficult for Borer to earn a reduction for acceptance of responsibility by adding a requirement that the government authorize the court to grant a third level reduction. As a result, the statute was "retrospective and more onerous than the law in effect on the date of the offense." Weaver v. Graham, 450 U.S. 24, 30-31 (1981). The 8th Circuit further held that Borer's prior conviction for Criminal mischief,Neb. Rev. Stat. § 28-519(1).was an offense that would increase the defendant's criminal history level by one point, as the crime involves an intent to cause property damage, in this case a cheap cell phone. Conviction signifies that a defendant has done "more than merely disturb the public order."Accord United States v. May, 343F.3d 1, 10 (1st Cir. 2003).Because this case must be remanded for resentencing due to an incorrect application of theguidelines, we conclude that the district court also should resentence Borer in light of Booker. See United States v. Huber, 404 F.3d 1047, 1064 (8th Cir. 2005).

Follow up: VA AttyGen seeks full 4th Cir review of partial birth case

The Virginia's attorney general has requested the full 4th U.S. Circuit Court of Appeals rehear the constitutional challenge to a state law that would have banned a type of late-term abortion.See earlier post Stenberg v Carhart, inyour face? The District Court displayed a high level of impartiality in the case from the beginning, calling it a "no-brain case."

Supremes decline to automatically follow Fed Circs on ERISA and Lawrence case

The Nebraska Supreme Court today twice discussed whether it must accept federal appeals courts' rulings on federal law as binding on them and rules that it need only follow explicit US Supreme Court precedent, the US Constitution and US Code. Strong v. Omaha Constr. Indus. Pension Plan, 270 Neb. 1 June 24, 2005. No. S-03-1403. holds that the Nebraska Supreme Court will adopt the "waiver" rule to determine that a divorced spouse could not claim death benefits from a former spouse's ERISA controlled death benefit policy because she had waived her claim to any pension beneifts through the divorce decree. 29 U.S.C. § 1104(a)(1)(D) which purports to require a plan administrator to pay whoever was a listed beneficiary did not override an explicit waiver of benefits in a divorce decree, following a majority of circuit courts in the United States. Quoting Justice Thomas concurring opinion in Lockhart v. Fretwell, 506 U.S. 364, 113 S. Ct. 838, 122 L. Ed. 2d 180 (1993)"neither federal supremacy nor any other principle of federal law requires that a state court’s interpretation of federal law give way to a (lower) federal court’s interpretation"

State v. Senters, 270 Neb. 19 June 24, 2005. No. S-03-945. the Supremes upheld the defendant's conviction for videotaping consensual sex with a 17 year old teenager in violation of § 28-1463.03(1).despite his desperate attempt to raise Lawrence v Texas as a defense to the conviction. Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003) Under § 28-319(1)(c), the female student was legally capable of consenting to the sex act which they videotaped. The supremes ruled they are not bound to follow Eighth Circuit precedent on federal questions but still found the 8th cir case U.S. v. Bach, 400 F.3d 622 (8th Cir. 2005) persuasive that the comparable federal child porn law did not limit protected to children to those under the age of consent which the supreme court today determines is stil the province of the states subject only to "rational basis" review.

Thursday, June 23, 2005

Visitation order in Juvenile case vacated due to Court's exparte commo

In re Interest of Elizabeth S., 13 Neb. App. 673 Filed June 21, 2005. Nos. A-04-1413, A-05-276. Judge's ruling allowing juvenile subject to parental rights termination proceeding to have visitation with parent vacated because Judge based decision in part on exparte contacts with child psychologist. NCA further orders judge to recuse himself from the case. See Neb. Code of Jud. Cond., Canon 3 (rev. 2000), and State ex rel. Grape v. Zach, 247 Neb. 29, 524 N.W.2d 788 (1994).

State false statement law does not pre-empt Lincoln ordinance

In re Interest of Genevieve C., 13 Neb. App. 665June 21, 2005. No. A-04-111 Juvenile's delinquency adjudication for giving a false statement to a police officer where prosecutor charged violation of Lincoln Ordinance Lincoln Mun. Code § 9.08.040 (1990) upheld against challenge that Ordinance conflicted with false reporting statute § 28-907(1)(a); Ordinance prohibited giving knowing false statements concerning an investigation and statute prohibited false statements on material facts. Although crimes are distinct they are not incompatible. Compare with State v. Loyd, 265 Neb. 232, 655 N.W.2d 703 (2003) where Supreme Court held ordinance that provided different punishment for 2nd offense dwi from state law was invalid.

Tuesday, June 21, 2005

PFR's to NESCT will cost you $50

The Nebraska Supreme Court has added a $50 filing fee for all PFR's to the NESCT effective July 1, 2005, LB 348Sec6. Filing fees have been increasing the past few years primarily to make up for short falls in the Nebraska Judge's Retirement system. Dale Gribble wonders whether having to pay a filing fee to PFR to the Supremes will lead to more transfer requests from the Appeals Court and fewer cases pulled from NCA's to the Supremes to "regulate" their dockets?

"Corporate Farm" lawsuits proceed without State of Nebraska

The Nebraska Federal District Court has dismissed the State of Nebraska from 2 lawsuits challenging the Nebraska "Initiative 300" corporate farming ban in the State Constitution, on 11th amendment grounds. However the Attorney General and Secretary of State will remain parties to the case. Challengers to the corporate farming ban lost about 15 years ago on due process grounds,MSMFarms Inc. v. Spire, 927 F.2d 330 (8th Cir. 02/27/1991)( by subscription) but this time have raised the "dormant commerce" clause and the Americans with Disabilities Act as grounds to invalidate the law. South Dakota's corporate farm ban went down last year on "dormant commerce clause" grounds in the 8th circuit court of appeals. The 8th Circuit in that case held the court should not have considered the ADA claim because the court earlier dismissed the ADA issue. The challengers to the corporate farm constitutional amendment should try to get in fron to Judge Joe Battailon however so they can try the gayctivists successful argument that the constitutional amendment against them deprived them of equal protection under Romer v Evans.

Friday, June 17, 2005

NESCT throws out Housing Authority lawsuit and worker comp appeal

NESCT throws out a premises negligence lawsuit against the Omaha Housing Authority on statute of limitations grounds and a worker compensation appeal for failing to preserve claimed errors for appeal. Harris v. Omaha Housing Auth., S-04-555, 269 Neb. 981 the plainitff filed a negligence lawsuit outside the 2 year limitation period for political subdivision tort claims (13-901 RRS seq), even though the Legislature specifically added housing authorities as entities subject to the political subdivision tort claim act after the accident occurred. 71-1553 RRS Neb. repealed 1999. Before the statute's amendment, a special tort claim procedure and claim period applied to housing authorities. Housing Authority won a 12b6 motion to dismiss which the NESCT upheld, finding the Plaintiff had taken an unreasonable time, over one year to react to the 2 year statute upon its effective date (13-919 RRS NEb.). Finally the Court held that the "discretionary function", "snow-ice", and Housing Authority insurance exceptions to the Political Subdivision Tort Claim Act, 13-910, functioned as sovereign immunity defenses and not exceptions to the application of the PSTCA limited waiver of sovereign immunity. Dietz v. Yellow Freight Sys., S-04-1078, 269 Neb. 990, the Plainitff failed to allege error in the worker compensation trial's courts awarding interest on the total award under 48-125(2), to the review panel, waiving any appeal on this issue to the Supreme Court. Neb. Rev. Stat. § 48-179 (Reissue 2004) and Workers’ Comp. Ct. R. of Proc. 12 (2004) {error not claimed on application for review are waived}.

NESCT refuses Schuyler's annexation near Excel Plant

NESCT denies the City of Schuyler its attempted annexation of land on the eastern side of the Excel Meat Plant west of the city. The Supreme Court holds that since county zoned industrial land, the Excel plant stands between the existing corporate limits of Schuyler, a city may ordinarily annex only land that is contiguous with existing city limits. Cornhusker Pub. Power Dist. v. City of Schuyler, S-04-367, 269 Neb. 972. Supremes held " Section 16-117 requires that annexed land be contiguous or adjacent to a city’s corporate limits; it does not provide an exception to that requirement if a city’s growth is boxed in by a county industrial area, unless one of the conditions set forth in § 13-1115 is met" The effect of the annexation would have caused the Power District a substantial drop in revenue from the Excel plant.

Another foreign lawyer admitted to the NSBA

In re Application of Gluckselig: 269 Neb. 995 June 17, 2005. No. S-34-050001.Graduate of law schol in Czech Republic admitted ot NSBA as he took "core" law school classes from the University of Michigan and passed with high scores both the Multistate Bar and ethics exams. Following the denial of an application and a hearing before the Nebraska State Bar Commission, the Nebraska Supreme Court will consider a waiver of Neb. Ct. R. for Adm. of Attys. 5C (rev. 2005) in cases where a strict application of that rule would result in denying admission to a qualified graduate of a foreign law school for arbitrary reasons unrelated to the essential purpose of rule 5C." Even though Gluckselig did not take every class prescribed in In re Appeal of Dundee, supra, his education as a whole is equivalent to that of an ABA-approved school.

Thursday, June 16, 2005

"Insidious Wiles of Foreign Law:" a British View

The Economist gives headline treatment to the brewing controversy in the United States regarding how much and how far foreign law should control American legal processes. Americans have found treaties affect far more than foreign policy, they can influence state criminal courts, as we found out in the Medellin v Dretke case, where Mexicans claimed a treaty prevented their exectutions for murder and in the recent case where the Supreme Court referred to foreign laws to forbid imposing the death penalty on juveniles Roper v Simmons. Foreign law cuts both ways however as aggressive Federal Prosecutors have sought to put on trial foreign white collar defendants for using american internet servers to conduct wire fraud and importers who brought products into the United States that violated technical rules of the exporting country. The Nebraska Surpeme Court even had a case where a Canadian lawyer sought admission to the NebraskaBar claiming that the North American Free Trade Agreement required the Nebraska State Bar Association to admit her. In re Application of Collins-Bazant, 254 Neb. 614, 578 N.W.2d 38 (Neb. 05/15/1998) . The Economist ignores however that those on the Supreme Court who are most receptive to adopting foreign standards on the death penalty likely also are those who would allow the United States Government a wide berth on prosecuting foreign defendants for white collar and computer crimes.

Wednesday, June 15, 2005

Nigerian involved in 2000 Americruise crash will not be deported

Waadah free after winning deportation case; Lincoln Journal Star ever in search of sympathetic stories of immigrants finds that Anthony Waadah who sped down O Street during the 2000 Americruise, jumped 2 curbs, hit a tree and fatally injured a spectator by flattening her will not be deported, thanks to a 2004 SCOTUS ruling that nonviolent crimes do not qualify for deportation. Leocal v. Ashcroft. Waadah was bench tried on manslaughter and was convicted but sentenced to 1-3 years. State v Waadah (unpublished 2003). The authorities called this extremely careless driver negligent but not violent, which I think is a stretch.

Tuesday, June 14, 2005

New lawsuit seeks injunction against NRD construction of Sarpy County lakes

Five Washington County couples have sued the Papio-Missouri River Natural Resources District, claiming that the district is unlawfully building two dams in the 430-acre project at 72nd Street and Schram Road. The Washington County residents complain that the NRD should not build dams for the primary benefit of private parties.

Adjudications against kids with home-made bombs reversed

Nebraska Court of Appeals reversed adjudications against two Lancaster County juveniles today In re Interest of Joseph S., A-04-989, A-04-1177, 13 Neb. App. 636 and In re Interest of Anthony P., A-04-1178, 13 Neb. App. 659 of possession of a destructive device as defined in Neb. Rev. Stat. § 28-1213(7) (Cum. Supp. 2004), in violation of Neb. Rev. Stat. §§ 28-201 (Cum. Supp. 2004) and 28-1220(1) (Reissue 1995). Although dry ice bombs and medicine bottles filled with firecracker powder were explosive devices, the Court of Appeals found no proof the juveniles intended the explosive devices to be weapons. Anthony P however was also convicted of disturbing the peace, so the court affirmed the adjudication on that ground.

Friday, June 10, 2005

Nebraska Supreme Court will adopt Professional Conduct Model Rules, Sept 2005

Nebraska Supreme court finally adopts Model rules of Professional conduct, after several revsions with comment periods. Effective date will be September.

Hyannis Ed. Assn. v. Grant Cty. Sch. Dist. No. 38-0011, 269 Neb. 956 June 10, 2005. No. S-04-133.

Industrial Relations Commission did not have to resolve moot dispute between teachers association and Class IV school district about fringe benefits for school year already past. Commission however must resolve dispute about whether District contract's deviation clause would apply even though there was no clause present from disputed contract year. The Industrial Commission should employ"prevalence" analysis in determining the deviation dispute. finally the Court upholds Commissions referring to comparable school districts salaries of the same class and kind geographic area.

Follow up: Feds tap Madison County Atty's phones

The Omaha world herald, reveals that the Feds had been tapping the phones of Madison County Attorney Joe Smith. Last winter, the US Attorney for Nebraska indicted several persons in the Norfolk are for conspiracy to distribute methamphetamine. One of the defendants is an attorney. Accoriding to Smith's personal counselJames Martin Davis, nothing turned up, it was just a disgruntled defendant seeking a deal, although Smith had illegally taken cable tv about 12 years ago.

Follow up: Neb. AG appealing gay marriage ruling

Last month US District Court Judge Joe Bataillon ruled against the Nebraska "gay marriage" constitutional amendment. Nebraska Attorney General Bruning seeks review of the injunction against the gay marriage law from the 8th Circuit court of appeals. Both sides anticipate ending up at the US Supreme Court, which might be what they would like, because more rulings like this one sure are grist for the mills of the "Federal Gay marriage" amendment advocates. By the way under Bataillon's reasoning couldn't anyone who gets a little State Constitution rain on their parade challenge their forced exile from the democratic process, say corporate farmers and gamblers?

Thursday, June 09, 2005

"Exhaustion of remedies" requires petition for further review

Samar Akins v. Michael L. Kenney (Akins II) U.S. Court of Appeals Case No. 02-1913 District of Nebraska; initial opinion Akins v. Kenney, 341 F.3d 681 (8th Cir.2003)(Akins I) Remanded opinion: Rhines v. Weber U.S. Court of Appeals Case No. 02-2990 District of South Dakota8th circuit holds on remand from United States Supreme Court in Rhines v. Weber, 125 S. Ct. 1528 (2005) that "exhaustion of remedies" rule (Rose v. Lundy, 455 U.S. 509, 510 (1982)requires habeas applicant to seek further review to Nebraska Supreme Court. The Supreme Court wishes to discourage routine stay orders from the Federal District Courts where prisoners have presented to Federal Court unexhausted post-conviction claims. the 8th Circ remands to the District Court to determine whether Akins unexhausted claims meet narrow stay standards of merit, good cause for not exhausting claims, and that the filing is not abusive. Rhines faces a smilar ruling before the South Dakota Federal District Court., whether there is good cause to have allowed the Judge to put his federal habeas petiotio n on hold rather than dismissing it. He was sentenced to death for murdering a co-worker in a doghnut shop in 1992.

8th Circ dismisses State Farm uninsured suit on amount in controversy

Brent E. Rasmussen v. State Farm MutualU.S. Court of Appeals Case No. 04-2491District of Nebraska Beam, Author, with Wollman and Gruender, Circuit Judges] Plaintiff injured in accident with unidentified uninsured motorist settled first with his own State Farm auto policy for the maximum $100k coverage. the Pl then sought to stack the stuck vehicle's Michigan State Farm uninsured policy for an additional $100k. The parties disputed whether the Plaintiff could stack the 2 policies, but the court dismissed as the amount in controversy did not exceed $75K, see 28 USC 1332. Even if the Court deemed the 1st policy's money split evenly between the pL and his wife, See RRS Neb. Neb. Rev. Stat. § 30-2722(b) (it is presumed that monies deposited in a joint marital account are contributed in equal amounts by both parties, at most the Plaintiff may claim as the amount in controversy is $50k. Prospective attorney fees didnt count either.

Stenberg v Carhart: In your face? SCOTUS to decide

The SCOTUS last issued an abortion ruling five years ago in Stenberg v Carhart, regarding Nebraska's attempt to criminalize certain late term abortions. Stenberg marked liberals' restoration of stricter "per se" scrutiny of anti-abortion laws from the Casey "undue burden" test for Roe v Wade rights which left libertarian abortion rights at the mercy of case by case reviews of the reasonableness of all abortion regulations states sought. Recently SCOTUS accepted for cert. review a New Hampshire law that purports to restrict minors' abortions occurring without parental notification Ayotte v. Planned Parenthood of Northern New England. In Ayotte the 1st Circuit found New Hampshire's parental notification law unconstitutional per se because it found the law neglected the health of the pregnant minor. Likewise the 4th Circuit Court of Appeals struck down a Virginia law restricting partial birth abortions that lead to a live child birth because it found no rights preserving procedures necessary for the mothers health. Richmond Medical Center for Women, et al., v. Hick The 4th Circuit majority in the 2-1 decision found Stenberg laying down a “per se” constitutional rule that any state restrictions on "partial-birth" abortion procedures must always contain an exception to protect the health of the pregnant woman when her doctor decides the method is medically necessary for her. Put another way, the 4th Circuit found such a restriction it found lacking a "mother's health" exception "facially unconstitutional," a test usually reserved for First Amendment cases.See Chicago v. Morales, Scalia dissenting {criticizes expanding facial challenges to laws beyond First Amendment issues.} Ever since Salerno v. United States, the Supreme Court discouraged free ranging facial challenges for every injustice under the sun, as “A facial challenge... is...most mount ...since (one) must establish that no set of circumstances exists under which (a law) would be valid. We have not recognized an ‘overbreadth’ doctrine outside the limited context of the First Amendment.” Chicago v. Morales, Scalia dissenting. The 1st Circuits Ayotte case will challenge whether the parental notification exceptions take care of the supreme court's health concerns and whether the Stenberg perse rule is appropriate for an abortion rights case. The expected retirement of one or more Supreme Court Justices may produce quite a few fireworks for Roe advocates because a more conservative court may very well fall back to Casey's nominal abortion rights endorsement while allowing the appropriate standard of review, "undue burden" for this liberty which hardly counts as a First Amendment right.

Tuesday, June 07, 2005

Appeals Court reverses Douglas County termination order

In re Interest of Dylan Z., 13 Neb. App. 586 Filed June 7, 2005. No. A-04-722. Termination of parental rights judgment is reversed for failure to meet "clear and convincing:" evidence standard required for termination of parental rights. Evidence disclosed that the father did not know he had this child, so abandonment did not apply. Further an incident involving another child and the father 's pit bull not enough to terminate parental rights. In order to terminate parental rights, the State must prove by clear and convincing evidence that one of the statutory grounds enumerated in Neb. Rev. Stat. § 43-292 (Reissue 2004) exists and that termination is in the childÂ’s best interests, while to adjudicate a minor as requiring court supervision requires only a preponderance of the evidence under § 43-247 (Cum. Supp. 2002). The child however will remain under the court's jurisdiction. Omaha .com noted that Health and Human Services has instituted more thorough procedures to contact missing fathers before taking termination or adoption actions.

Notable decisions of Justice Dale Fahrnbruch

Notable decisions of Judge Fahrnbruch, Nebraska Supreme Court civil cases Former Nebraska Surpeme Court Associate Justice Dale Fahrnbruch passed away last week. He was on the Supreme Court from 1987 through early 1997. While he primarily handled criminal appeals, he authored several signifcant opinions in civil cases: Workers Compensation: DOROTHY SCHLUP v. AUBURN NEEDLEWORKS 479 N.W.2d 440, 239 Neb. 854 Decision established that cumulative trauma cases are compensable work accidents under the Nebraska worker compensation law and also held the “odd lot” worker doctrine would allow some injured workers to win permanent compensation benefits even though they were not technically totally disabled. Negligence: JOHN J. MCVANEY v. BAIRD Holm et al 466 N.W.2d 499, 237 Neb. 451 (1991) Attorney malpractice decision, holds that attorney client relationship that establishes duty of attorney to act may be implied from conduct of the parties; there is no strict liability against a gas supplier for explosions, rather the res ipsa loquitur doctrine is inapplicable if specific acts of negligence are alleged or there is direct evidence of the precise cause of the accident. PATTERSON, v.SWARR, MAY, SMITH & ANDERSON 473 N.W.2d 94, 238 Neb. 911(1991) Attorney malpractice action for alleged mishandling of a farm bankruptcy resulted in $1.5 million verdict against bankruptcy attorneys, reversed for no proof of proximate cause. Insurance, Torts: BRAESCH, v.UNION INSURANCE COMPANY 464 N.W.2d 769, 237 Neb. 44 (1991) Establishes possibility in appropriate cases of “first party” bad faith claim against a plaintiff’s own insurance company. Attorneys” SCHREMPP AND SALERNO, v. GROSS, JR et al 529 N.W.2d 764, 247 Neb. 685 (1995) When law partnership dissolved, attorney who completed ongoing personal injury files had to distribute fees in accordance with the partnership’s agreement Premises Negligence: PAMELA CLOONAN v. FOOD-4-LESS 529 N.W.2d 759, 247 Neb. 677 (1995) Slip and Fall negligence lawsuits will fail unless the Plaintiff is able to prove a defendant had constructive notice of a condition, that is visible and apparent and existing for a sufficient length of time to permit a defendant or the defendant's employees to discover and remedy it. Knocks out almost all slip and fall lawsuits unless the Plaintiff can prove the Defendants’ “creating” the dangerous condition

Sunday, June 05, 2005

Sandhills Water fight up to the Supremes again

Nebraska has come to an impasse over competing uses of scarce water especially out west. Nebraska is one of the most heavily irrigated states in the nation. The showdowns are coming in the courts, despite the extensive regulatory involvement of the State Department of Natural Resources and the Local Irrigation Districts. Earlier this year, the Nebraska Supreme Court held that Spear T Ranch could sue a neighboring ground water user for unreasonably excessive pumping of water that depletes a creek the ranch was using. (Spear T Ranch v. Knaub, 269 Neb. 177, 1-21-2005, Spear T I). Water Law expert commentary on the Spear T Ranch case in the Nebraska Lawyer described this years ruling as one of the most significant for the Nebraska Supreme Court ever as the Supreme Court held that it would adopt the Restatement of Torts rule on water disputes to those between ground and surface users.Restatement (Second) of Torts Section 858 (1)(c) at 258 (1979) The Restatement will require courts to employ a multi-factored analysis in each case where a ground-surface water dispute arises. The Supreme Court addressed the passage of LB962 last year which provided additional authority for the State natural Resources Department to control surface water, but held those regulations are prospective only and provide no remedy for aggrieved surface water users. The passage of lb962last year allowed Roger Patterson of the Department of Natural Resources, in consultation with natural resource districts, to declare river basins in the state either fully appropriated or over-appropriated. But new authority under LB 962 will not guarantee an end to the water fights. Currently the Nebraska Water Department is defending a $4million tort claim that Spear T seeks against the State for allowing ground water depletion. See also cornhusker Economics for farmers and ranchers analysis of the Spear T I decision.

Still no guidance from the Supreme Court on subsequent children and Child Support Guidelines

Wilkins v. Wilkins, 269 Neb. 937 Filed June 3, 2005. No. S-04-252. Wife petitioned to modify child support against attorney ex-husband. While the matter was pending ex-husband had another child from his remarriage. The Supreme Court held as it did in Emery v Moffett, that how precisely to handle additional children of the parents subject to the support guidelines is up to the Court’s discretion, as long as any resulting deviation does not disadvantage one family over the other. The Support Guidelines do not promote precision on how to calculate subsequent children as they are somewhat circular because the guidelines do not instruct the court whether to count the court ordered supported children first or the subsequent children.