Sunday, July 31, 2005

NESCT tosses tort suit for county jail inmates assault

Johnson v. State, 270 Neb. 316 Filed July 29, 2005. No. S-03-1362.Inmate at Douglas County Correctional Institution alleged a sexual assault by a guard occurred and caused her emotional damages. In this case, she sued under the State Tort Claims act and the Court dismissed. the Supreme Court upholds immunity under the State Tort Claims Act: "Where the plaintiff’s tort claim is based on the mere fact of government employment (such as a respondeat superior claim) or on the employment relationship between the intentional tort-feasor and the government (such as a negligent supervision or negligent hiring claim), the exception in § 81-8,219(4) applies and the State is immune from suit. See Sheridan v. United States, 487 U.S. 392, 406-07, 108 S. Ct. 2449, 101 L. Ed. 2d 352 (1988) (Kennedy, J., concurring in judgment).. The plaintiff’s causes of action against the defendants fall squarely within the second of the two enumerated instances; each are based upon the employment relationship between Johnson’s alleged assailant and the defendants. Thus, the intentional tort exception of § 81-8,219(4) applies and bars Johnson’s action against the defendants.

Divided Supreme Court reverses verdict in non-compete dispute

Gary's Implement v. Bridgeport Tractor Parts, 270 Neb. 286 Filed July 29, 2005. Nos. S-03-941, S-03-1242. Seller of an auto and machinery salvage business sued the purchaser after the purchaser stopped making installment payments to seller. Purchaser answered and counterclaimed alleging breach of their non-compete agreement. The Court determined that certain passages of the parties non-compete agreement were ambiguous Big River Constr. Co. v. L & H Properties, 268 Neb. 207, 681 N.W.2d 751 (2004).but then supplied additional meaning to the ambiguous wording; "However, once the district court determined that the Non-Competition Agreement was ambiguous, and given the record as we read it, the meaning of the ambiguous contract became a question of fact for the fact finder. See Dammann v. Litty, 234 Neb. 664, 452 N.W.2d 522 (1990). Because it was the role of the jury and not the court to determine the meaning of the ambiguous contract from all the facts and circumstances, the district court erred in instructing the jury as it did in instruction No. 9. See Luschen Bldg. Assn. v. Fleming Cos., 226 Neb. 840, 415 N.W.2d 453 (1987).the Supreme Court majority reverses because although the court correctly determined the contract was ambiguous, interpretation is up to the jury. Dissenting Justice Gerrard would abandon the rigid "four corners" rule of contract interpretation and adopt the more flexible Restatement approach of contract interpreation, as in § 212(1) at 125 (1981) which states : “[t]he interpretation of an integrated agreement is directed to the meaning of the terms of the writing or writings in the light of the circumstances." J Gerrard finds this test for contract ambiguity more sensible and practical. "Just as significantly, I believe this process accurately reflects what courts are actually doing when determining the meaning of contracts, even if not permitted to acknowledge it.... the dubious procedural posture of this case demonstrates the impracticality of the “four corners” rule for determining whether a contract is ambiguous." Because the trial court's supplying clarifying terms to the ambiguous contract, which the evidence supported fit the Restatement's expectations, J. Gerrard would have upheld the trial court's judgements. Nebraska Courts may well see Judge Gerrard's dissents become majority holdings, eg Phillips v Industrial machine 257 Neb. 256, 597 N.W.2d 377 (1999) , as it took several years of his dissents to make Daubert(Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).the standard for expert testimony before the entire Supreme Court agreed with him Schafersman v. Agland Coop, 262 Neb. 215 (2001). No. S-98-623.

Saturday, July 30, 2005

NESCT reverses SJ in patent law malpractice case

Supreme Court found material issues of fact remained between competing products on "doctrine of equivalents" New Tek Mfg. v. Beehner, 270 Neb. 264 Filed July 29, 2005. No. S-03-457. Neb Supremes reverse Defs' summary judgment in patent law malpractice case against lawyers estate and his law firm for allowing a patent on a guide device for tractor combines to lapse. While the attorney tried to revive the patent it was not able to expand the patent to cover competitors' designs that closely matched the client's patent. The patent owner filed the malpractice case in Douglas County District Court,(nearly ten years ago!, so long that the principal attorney defendant has died) requiring the trial court and state supreme court to wade through the complexities of federal patent law ; State courts have jurisdiction over patent claims that are incidental to non-patent actions such as an attorney malpractice claim. 28 U.S.C. § 1338(a) (2000).The trial court entered summary judgment for the law firm basically because it found the competing tractor combine guide design would not have infringed on the Plaintiff's patent. The Supreme Court notes that the Defendants objected to the trial courts rejection of other positions it took in favor of summary judgment, but the defendants did not properly raise these issues in its cross-appeal: "the defendant did not comply with the requirements of Neb. Ct. R. of Prac. 9D(4) (rev. 2001). A cross-appeal must be properly designated under rule 9D(4) if affirmative relief is to be obtained. Gourley v. Nebraska Methodist Health Sys., 265 Neb. 918, 663 N.W.2d 43 (2003). An appellee’s argument that a lower court’s decision should be upheld on grounds specifically rejected below constitutes a request for affirmative relief, and the appellee must cross-appeal in order for that argument to be considered. Wasikowski v. Nebraska Quality Jobs Bd., 264 Neb. 403, 648 N.W.2d 756 (2002)." The Supreme Court rejected the Plaintiff-patent owner's contention that the designs were identical under patent law structure and function tests, but ultimately ruled that unresolved issues of material fact existed to require reversal for a trial under patent law's "doctrine of equivalents." The Supreme Court determined that the trial court in its ruling for SJ in favor of defendants disregarded material facts as to whether the accused device and the patented device were equivalent. " we conclude that the record fails to establish the defendant’s prima facie case for summary judgment on this issue. On a motion for summary judgment, the question is not how a factual issue is to be decided, but whether any real issue of material fact exists. Range v. Abbott Sports Complex, 269 Neb. 281, 691 N.W.2d 525 (2005)"Determination of infringement, both literal and under the doctrine of equivalents, is a question of fact. Lockheed Martin Corp. v. Space Systems/Loral, Inc., 324 F.3d 1308 (Fed. Cir. 2003), determined by the standard of "one of ordinary skill in the relevant art." Lighting World, Inc. v. Birchwood Lighting, Inc., 382 F.3d 1354 (Fed. Cir. 2004). Justice Gerrard determined the evidence for equivalency from the competing firms sales man and the plaintiff's patent law expert was not sufficient to demonstrate that no factual issue existed. "aside from the Plaintiff's expert attorney witness' admittedly conclusory testimony, there is no evidence that would permit a trier of fact to conclude, one way or the other, whether one of ordinary skill in the pertinent art would consider the differences between (the competing structures) to be substantial, or whether the different structure of the (accused) device is merely an insubstantial change which adds nothing of significance to the patented structure. The Supreme Court has a well deserved reputation for hostility to summary dispositions of contested matters that this case only buttresses. Along with dressing down the defendants who won summary judgment at trial for not properly asserting their cross appeal, the Court seems to be saying that complex cases should go to trial from now on. On the other hand defense counsel may be well aware of the Surpeme Court's hostility to summary dispositions of cases, and press ahead anyway, especially in malpractice cases. The worst that can happen is the case goes back to trial, against contingent fee plaintiffs' counsel and with less insurance coverage, since most malpractice claims-made policies take defense costs out of the gross coverage available.

Thursday, July 28, 2005

New Social Security Procedures will speed up disability claims

ABC News reports on New Regulations to speed up disability reviews. New regulations from the Social Security Adminstration could allow clearly disabled individuals to gain approval of their disability claims within 20 days, effective Spring 2006. Roughly 2 million people who seek disability benefits each year can expect to spend less time working through the process for appealing decisions when benefits are denied.The proposed regulations note that "Since the beginning of the disability programs, the percentage of claims involving allegations of mental impairments has increased dramatically, particularly in the SSI program." More than 11 million people, including some family members of disabled workers, receive benefits. New rules elimiante the second state level reconsideration review and replace it with a federal panel reivew. State review rarely overturns a decision and is really a rubber stamp denial. The Administration plans to publish proposed regulations for public comment on Wednesday and issue final regulations by the end of the year. The administration expects it will take a couple years to implement the new system throughout the country.

Friday, July 22, 2005

Jul 22 rulings from NE SCT

Vets Disciplined for positive drug tests in race hourses Brunk, etal v. Nebraska State Racing al,270 Neb. 186 Filed July 22, 2005. Nos. S-03-698, S-03-699. State horse racing commission disciplined 2 Grand Island veterinarians for having patient-horses test positive for substances banned within a short time before the horses race. The Supreme Court agrees with the District Court that the Commission could discipline the vets for periods extending beyond their licensure period; the commission's evidence failed to prove that the doctors actually administered the drugs within the prohibited period, since the scientific evidence was disputed, and by rule only the trainers guarantee the health status of their horses. The Commission was right to discipline the vets for poor record keeping and for Dr Brunk's failure to cooperate with the Commission investigation.In a related matter, Van Horn and Brunk have sued racing commissioners Janell Beveridge, Bob Volk and Dennis P. Lee and the commission's executive secretary, Dennis Oelschlager. State Patrol has authority to discipline intrastate motor carrier if there is evidence of intrastate safety regulations Caspers Constr. Co. v. Nebraska State Patrol,270 Neb. 205 July 22, 2005. No. S-03-1277. Nebraska State Patrol penalites assessed against carrier for various safety regulations upheld as Patrol presented sufficient evidence that the carrier was an intrastate carrier See Neb. Rev. Stat. § 75-363 (Cum. Supp. 2002).and its intrastate business was in the State of NEbraska. Neb. Rev. Stat. § 75-302(11) (Reissue 2003) defines “intrastate commerce” as “commerce between any place in this state and any other place in this state and not in part through any other state.” The Court upheld the penalties based upon federal insectors conclusions that the carrier was intrastate, as well as admissions from the trucking company's principal that the violations occurred in intrastate commerce, by implication Nebraskas. Unemployment benefits remanded to determine whether claimant's "inkind" reimbursement or renumeration counted as earnings Lecuona v. McCord, S-03-1464, 270 Neb. 213 Claimant for unemployment benefits did not count reimbursement and inkind benefits from corporation she created as earnings against her weekl unemployment . Supreme Court orders remand to determine who much these benefits should count as earnings against unemployment, within the meaning of § 48-602(29) and, if so, the amount of those benefits. The reasonable cash value of noncash remuneration is to be determined under rules and regulations prescribed by the Commissioner of Labor. § 48-602(29). No reduction of sex offender risk level for subsequently expunged convictions McCray v. Nebraska State Patrol,270 Neb. 225July 22, 2005. No. S-04-395. Individual subject to registration under Nebraska Sex Offender Act received a Level III status. Sex Offender Registration Act (SORA), Neb. Rev. Stat. § 29-4001 et seq. (Cum. Supp. 2004). Subsequently some other misdemeanor convictions on his record the court expunged under § 29-2264. The court holds that since 29-2264 operates to remove prospectively disabilities from a criminal conviction, the registrant could not ask to have his risk level re-scored. Damage caps in Nebraska Political Subdivision Tort Claims Act prevent Plaintiff from claiming excess liability from Police Department's insurer. Molina v. American Alternative Ins. Corp., 270 Neb. 218 July 22, 2005. No. S-04-389. Plaintiff received serious injuries in accident with police vehicle and though his damages exceeded $4 million, the Political subdivision tort claim act limits damages to $1 million. Supremes upheld this cap, notwithstanding local government's acquiring excess insurance in the statutory limits set forth in § 13-926(1); the NESCT held that the maximum liability of a political subdivision was set by the act, “and not by the limit of any liability policy purchased by the political subdivision.” Salazar v. Scotts Bluff Cty., 266 Neb. 444, 450, 665 N.W.2d 659, 665 (2003). NESCT now upholds rule 12b dismissal of third party contract beneficiary action against same insurer. "(third-party beneficiaries) may not recover on any contract (unless), it (appears) by express stipulation or by reasonable intendment that the rights and interests of such unnamed parties were contemplated and that provision was being made for them. Properties Inv. Group v. Applied Communications, 242 Neb. 464, 495 N.W.2d 483 (1993); The fact that AAIC provided liability insurance coverage for that portion of the county’s potential liability for a single occurrence which exceeded its legal liability to a single claimant cannot be viewed as creating any rights on the part of injured persons such as Salazar to recover more from the insurer than its insured was legally obligated to pay." Supremes order partition action to proceed under referee supervision in estate dispute even though one heir holds "first opportunity to purchase clauseChanner v. Cumming, 270 Neb. 231 Filed July 22, 2005. Nos. S-04-478, S-04-489. Co tenants inherited farmground in Boone and Platte counties with one heir entitled in the will the right of first opportunity to purchase the property. The cotenants disputed whether to allow a tenant to lease some of the property and 2 cotenants sued the others forpartition. The District courts dismissed the partition actions holding the first opportunity clause pre-empted a partition action.NESCT reverses and order partition action to proceed under supervision of appointed referees, subject to right of heir with designated "first opportunity" clause to purchase property: "Under Nebraska’s partition statutes, the partition of the subject property may take one of two forms: (1) partition in kind, where the property is physically divided, or (2) partition in sale, where the property is sold and the sale proceeds are divided. See, also, 59A Am. Jur. 2d Partition § 2 (2003). § 25-2170 et seq."If the referee or referees so appointed determine that the subject property cannot be divided and should be sold, then, as provided under Nebraska’s partition statutes, a partition sale can be ordered by the district courts; .. Such sale would trigger Lonnie’s first right to buy the subject property, and therefore, upon the happening of a partition by sale, Lonnie must be given the first right to buy the subject property." Ameritrade CEO buys Mayor Fahey's house and sues builders; Supreme Court refuses to recognize "implied warranty of habitability" action in suit by subsequent home purchasers against home builders and subcontractors Moglia v. McNeil Co., 270 Neb. 241 July 22, 2005. No. S-04-554. The contractor who built a $1.6 million house for Omaha Mayor Mike Fahey and his former wife can be sued by the home's current owners for shoddy workmanship, the Nebraska Supreme Court ruled Friday, while the court declined to allow actions for negligence and "implied warranty of habitability"."the implied warranty of workmanlike performance should (apply) to subsequent home purchasers as against general contractors only to latent defects which manifest themselves after the subsequent purchase and are not discoverable by the subsequent purchaser’s reasonably prudent inspection at the time of the subsequent purchase.The subsequent purchaser Joseph Moglia is chief executive officer of Ameritrade, an Omaha online brokerage. The limitation period of Neb. Rev. Stat. § 25-223 (Reissue 1995) applies to these warranty claims. The subsequent owner has the burden, inter alia, of proving a latent defect which is attributable to the actions or inactions of the builder, and the builder retains the traditional defenses, affirmative and otherwise. Supremes decline to adopt action for "implied warranty of habitability" as defects plaintiffs alleged did not affect habitability. Finally the Supremes deny the subsequent purchasers their negligence claim because there were no allegations which would impose a legal duty on the contractors and subcontractors, and the "accepted work doctrine" immunizes the defendants for all but latent hazards." Injured worker's dr bills to diagnose stomach complaints not compensable medical expenses; Court must rule on all submitted bills; silence on bills is not a denial of payment.Vega v. Iowa Beef Processors,270 Neb. 255 July 22, 2005. No. S-04-118; Claimants back injury was compensable despite same dr's conflicting opinions to plaintiff and defense counsel. Medical bills used to diagnose whether gastro intestinal complaints were related to work injury were not compensable as symptoms had nothing to do with injuries. Several medical bills the WC judge did not make any ruling, and these were remanded to the trial court for resolution.

NESCT approves equal division of Railroad Tier II benefits

Shearer v. Shearer, 270 Neb. 178 July 22, 2005. No. S-03-680. NESCT upholds trial judge's equal division of divorced husbands Railroad Retirement Tier II benefits, 45 U.S.C. § 231m(b)(2) (2000); 20 C.F.R. § 295.1 (2005), nothwithstanding his contention that it was non-marital property or that the Tier II benefits should go solely to the husband. Since the husband and wife already stipulated to a division of their other property, the husband could not ask the court to consider the effect of the stipulated property division on the contested division of the Tier II benefits. The husband failed topresent evidence that the Tier II benefits were non-marital, nor did the husband present contrary evidence for a more favorable property division. finall the court may consider the relative incomes of the spouses in dividing property. Section 42-365

Wednesday, July 20, 2005

Follow up: 8th Circ rules SOL ran on Seward Church School abuse case

Earlier this month the Nebraska Court of Appeals heard Plaintiffs' appeal in a sex abuse case against The Lutheran School of Seward Nebraska and an individual teacher. Now the 8th Circuit in a companion case has ruled in favor of the defendants agreeing that it was too late for an adult who alleged a school teacher abused him while he was a teenager. The Plaintiff turned 21, the date damage actions limitation periods begin to run for most torts against minors, in 1985 but did not file suit until 2002. "Nebraska law applies to this diversity suit. Nebraska's four-year statute of limitations for tort actions, see Neb. Rev. Stat. § 25-207(3), is tolled for minors until they reach the age of 21, see Neb. Rev. Stat. § 25-213; Brown v. Kindred, 608 N.W.2d 577, 580 (Neb. 2000). " Federal District Court Judge Laure Smith Camp said while she did not discount the seriousness of Kraft's mental condition, it was disingenuous for Kraft to claim he experienced an "epiphany" connecting his problems with the alleged abuse beginning on May 16, 2002. The 8th Circ made very clear that this was not a case of truly repressed memory that would have prevented a plaintiff from ascertaining his injuries, rather, "Kraft has always retained an awareness of the facts of the claimed abuse," said Circuit Judge Hansen; moreover, " (undisputedly) Kraft drew a direct connection between the abuse and his negative behaviors in 1990, when he disclosed the abuse to his wife and parents as an explanation for his marital discord and homosexual activity." Equitable tolling did not apply because the Plaintiff was well aware of his injury and his mental disorders did not prevent him from asserting his legal right to recovery if any.

Tuesday, July 19, 2005

Cornhusker State felons regain voting rights in Sept 05

Ex felons will regain voting rights in Nebraska starting in September of this year, and voting minded civic groups are gearing up to register them.LB53, 2005 Session, Veto overried 3-10-2005. "The League of Women Voters of Nebraska and the Nebraska Voting Rights Coalition, which is made up of 12 groups, will soon launch an education campaign to get the estimated 59,000 felons in the state registered to vote in time for the 2006 primary," according to this linked Associated Press Story. I wonder why the League of Women Voters would take such interest in registering ex felons to vote, since a great number probably were abusive to their wives and girlfriends. A recent US Justice Department Study on Family Violence Statistics from this year reports that 15% of 1/2 million incarcerated for a violent crime nationwide committed them against against a family member. "Also driving efforts to roll back disenfranchisement laws is the nation's swelling prison population. Though crime rates have fallen, the prison population soared to 2.1 million by June 2004, according to figures compiled by the U.S. Justice Department. In 1970, that number was about 200,000. Associated Press.

Sunday, July 17, 2005

High Court hairsplitting and state religion

George Will notes in his column following the 2 recent SCOTUS decisions to allow an outside ten commandments monument but to disallow an inside a courthouse 10 commandments display that even with Jefferson's 'watery deism' the early American government promoted quite a bit of religion without knowing it was "establishing" a religion, against the 1st amendment: " So why is today's court preoccupied with the supposed problem of mere displays of the Commandments? Because beginning about 25 years ago the court evidently decided that the Establishment Clause's historical context, and the Framers' intentions regarding it, are irrelevant." Will notes that famous liberal but realist Daniel Patrick Moynihan remarked at the growing list of result oriented establishment clause cases from the Supreme Court, if a local government should not provide books to religious schools, but could provide maps, what about atlases, or books with maps?" Will notes Nebraska's previous encounter with god-0-phobes when Ernie chambers took his case against the Legislature's hiring a chaplainto the Supreme Court: "The three-pronged test (secular purpose, neutral as to religion, unnecessarily entangling between govt and religion, Lemon v Kurtzman 403 US 602 1971) produced a comic moment when the court, flinching from forbidding the Nebraska Legislature to have a chaplain, implicitly said that the good cleric did not advance religion. 463 U.S. 783 Marsh v. Chambers . The Nebraska chaplain had solved part of the problem by omitting Jesus Christ from his prayers. Enough already.

Saturday, July 16, 2005

DNA "Sweeps" ineffective: UNO Study

Mass DNA sweeps through large populations to identify suspects in criminal investigations raise your paranoia level and make you think Minority Report is real life, but a UNO report last year concluded from studying the known instances of mass dna testing that it has been ineffective. The murder of Christa Worthington in Jan 2002 in a Cape Cod Massachusetts community brought not only salacious scandal but also national attention to law enforcements decision to test men in the small community there. The suspect the police eventually arrested had given his sample shortly after the crime, a year before the authorities initiated the mass sweep of dna samples. Collecting large dna databases certainly will deter future behaviour but also could chill "rebellious" behavior. After all we live in an open society and interact with many other people in our daily lives. Who is to say that even the parson's dna could somehow end up on or in the rape and murder victim? Those with prior records will be particularly singled out and browbeaten solely because some dna appeared near a crime scene.

NESCT throws out 2 admin license suspensions

Hahn v. Neth, S-04-560, 270 Neb. 164 Arndt v. Department of Motor Vehicles, S-04-584, 270 Neb. 172 July 15, 2005 The NESCT throws out 2 administrative drivers' license suspensions Friday July 15, 2005. Seems the Nebraska Supreme court has been somewhat hostile to the drivers license suspension system directed at getting drunk drivers off the road since the Legislature implemented the system 12 years ago, cf State v Smith 248 Neb. 360(1995). In Hahn, NESCT agrees with the district court that the failure of the arresting officer to properly complete the license suspension form deprived the Department of MotorVehicles of jurisdiction over the suspension action. The arresting officer in Hahn failed to note that he requested the suspect take the test and also failed to indicate whether the test was of breath or urine, required by § 60-6,205(3)(transferred to 60-498.01). The Court stated its test to determine whether an omission from the officers sworn report that initiates the administrative license suspension action is "notwithstanding the omission, the sworn report conveys the information required by the applicable statute...the report must, at a minimum, contain the information specified in the applicable statute, § 60-6,205(3), in order to confer jurisdiction." The Supremes further overrule earlier cases that suggested officers could cure defective reports with additional testimony at the admin hearing: "To the extent language in Morrissey v. Department of Motor Vehicles, 264 Neb. 456, 647 N.W.2d 644 (2002), and McPherrin v. Conrad, 248 Neb. 561, 537 N.W.2d 498 (1995), suggests that a sworn report which does not include information required by statute may be supplemented by evidence offered at a subsequent hearing, it is disapproved." The drunk driver in Arndt kept his license because the police officer who filled out the suspension form had not actually been present when police arrested the drunk driver on Cornhuser Road in Sarpy County. The district court held that the failure of Sarpy county law enforcement to submit an arresting officers report lead to a failure of producing a prima facie case: “Due to the fact that the sworn report was not completed by the arresting officer pursuant to the requirements of § 60-498.01, ( the Director's suspension order) was not supported by the evidence and the revocation is reversed.” The Supreme Court agrees, holding "because the report submitted by Reed was not sufficient to confer authority upon the director of the Department to revoke Arndt’s operator’s license, the district court properly reversed the order of revocation."

Friday, July 15, 2005

NESCT dismisses appeal against School District merger

Nicholson v. Red Willow Sch. Dist. No. 0170, 270 Neb. 140 Filed July 15, 2005. No. S-03-1296.The Plaintiff challenged the constitutionality( VIII, § 4) of bond issues that 2 mergin School Districts passed as part of their reorganization and also enabling legislation § 79-422(1). Successful reorganization of the 2 Red Willow County School Districts would result in an additional $7million dollars of bond debt for the combined district, with property owners in the Plaintiff's existing district shouldering a far greater debt burden The trial court dismissed the action and the plaintiff appealed. The Supreme Court dodges the Plaintiff's constitutional questions and holds the Plaintiff should have appealed the decision of the county superintendant to contest the merger, overruling Kosmicki v. Kowalski, 184 Neb. 639, 642-43, 171 N.W.2d 172, 174 (1969) which had approved of proceedings to collaterally attack a merger decision. An action for declaratory judgment does not lie where another equally serviceable remedy is available. Galyen v. Balka, 253 Neb. 270, 570 N.W.2d 519 (1997).

Tuesday, July 12, 2005

Farmer husbands' misconduct in divorce trial justified splitting family farm

Anderson v. Anderson (Not Designated for Permanent Publication) Filed July 12, 2005. No. A-04-770. divorce case had been up to the court of appeals 2 years ago and the Court reversed holding the trial judge's refusal to allow the pro se husband to offer any evidence at trail denied the husband due process. On retrial husband farmer got an attorney and received about a 50/50 division of property. Based upon husbands continued misconduct in not filing accurate tax returns and refusing to disclose financial records to assist the trial court the appeals court approves splitting the couples farm ground, citing its lack of confidence that husband would bother paying the wife any money for the property.

Post conviction motion reversed for lack of details

State v. Weiler (Not Designated for Permanent Publication) Filed July 12, 2005. No. A-04-775. Appeal from the District Court for Lancaster County: Steven D. Burns This was yet another convict trying to allege after the fact that the defendant's counsel should have filed an appeal, even in this case where the defendant plead guilty and received a sentence well within an appropriate sentencing range. After a hearing of he said she said the trial court overruled the post conviction motion for not filing the appeal, but made no findings of fact. On plain error, the appeals court reverses for the trial court to make appropriate findings on whether the attorney's failing to appeal was ineffective counsel. Nebraska's higher courts, appeals and Supremes appear to be sending the message that ALL criminal cases should be appealed, just on the off chance they will find an interesting case to handle, even if the defendant admitted everything, waived a trial and received a standard sentence.

Follow up: Carhart v Gonzales may have SCOTUS review

The 8th circs ruling striking down the Federal partial birth abortion law may head to the Supreme Court as Roe v Wade's legacy might not be whether the case will remain the law of the land, but rather whether and how much the Supreme Court will allow States and Federal Government to regulate it. The following NyTimes analysis concludes that without Justice OConnor on the Supreme Court, many abortion restrictions would stand. With a more conservative Justice, O Connor's policy of striking down "unduly burdensome". NY Time believes the basic right to abortion, declared in Roe v. Wade in 1973, will survive regardless of who replaces Justice O'Connor, given that the current majority for Roe is 6 to 3. Chief Justice William H. Rehnquist was one of the two original dissenters from the Roe decision; if he retires, as has been widely speculated, President Bush would presumably replace him with a similar conservative, so that would not change the balance on Roe.Gadsden Times. Not only did Roe v Wade find within a constitutional right to privacy, it also found that women have a constitutional right to necessary medical treatment to preserve their health. "Abortion opponents assert that such health exceptions (in later pregnancies) give doctors who perform abortions too much discretion to circumvent restrictions by invoking the woman's health, even if it involves emotional and nonphysical issues. Essentially, they say, "health" is so broadly interpreted that it renders many laws meaningless.The Stenberg v. Carhart decision in 2000, the Court 5-to-4 with Justice O'Connor in the majority, invalidated laws restricting late term abortions when it struck down a Nebraska ban on two grounds: proscribed procedures might be safer for some women; therefore, the court said, the law must have an exception allowing its use to preserve the woman's health. The Stenberg court also held that the procedure being outlawed was so vaguely defined that it could be viewed as applying to other, more common abortion procedures - and thus amounted to an undue burden on women. The latest ruling from the 8th Circuit struck down the federal partial birth abortion law on health exception grounds, ruling that "the constitutional requirement of a health exception applies to all abortion statutes, without regard to precisely how the statute regulates abortion." But, the appeals court went on, a single doctor's opinion does not suffice, rather "substantial medical authority" will override the Legislatures judgment that a procedure is not beneficial to the mother in some instances. The 8th Circuit court ruled, "a health exception is constitutionally required. SCOTUS accepted for arguments in its next term Ayotte v. Planned Parenthood, concerning the New Hampshire parental-notification law. The two legal questionsfor review are: the first is whether such laws must also contain an exception for pregnant minors whose health is at risk. The second issue is what standard courts must use in evaluating challenges to abortion laws that have not yet taken effect. In ordinary constitutional challenges plaintiffs pursuing a facial challenge to a law must prove that there is "no set of circumstances" under which the law would be valid. Again the Supremes have tipped their hat to the feminist lobby and relaxed the standards for facial challenges in the abortion setting; an abortion regulation may in some settings, may be facially unconstitutional if only "a large fraction" of women directly affected would suffer an "undue burden" in obtaining an abortion. The state of New Hampshire is challenging that approach." Reversing any of the partial birth abortion cases in the lower federal courts or the Ayotte case will have far reaching consequences for Roe and Casey: instead of the near exalted status the Supreme Court has given abortion and contraception, Roe privacy and health rights may very well recede to the status of private property, cf Kelo or States rights, cf Raich v. Ashcroft.

Sunday, July 10, 2005

Carhart v. Gonzalez U.S. Court of Appeals Case No. 04-3379 District of Nebraska 8th Circ Judge Kenneth Bye affirms Nebraska District Judge Richard Kopf's ruling that the federal partial birth abortion law federal Partial-Birth Abortion Ban Act of 2003, Pub. L. No. 108-105, 117 Stat. 1201 (codified at 18 U.S.C. § 1531).is unconstitutional. Kopf's ruling followed decisions overturning the law by federal judges in New York and San Francisco. Those decisions also have been appealed and are expected by many legal experts to eventually reach the U.S. Supreme Court. The 8th U.S. Circuit Court of Appeals in St. Louis agreed that the ban, while containing an exception to save the life of the mother, is unconstitutional because it makes no such exception for the health of the woman. "We agree with the Fourth Circuit that Stenberg establishes a per se constitutional rule in that the constitutional requirement of a health exception applies to all abortion statutes, without regard to precisely how the statute regulates abortion.Stenberg emphasized that a health exception is required where “substantial medical authority” supports the medical necessity of a procedure. Id. at 938. we conclude Stenberg requires the inclusion of a health exception whenever “substantial medical authority” supports the medical necessity of the prohibited procedure.

NESCT denies Douglas County Jail workers free speech complaint

Fraternal Order of Police v. County of Douglas, S-04-611, 270 Neb. 118 NESCT denies Douglas County jail wokers union members free speech complaint against Douglas County. County changed policy to require union members to visit County Board members only on vacation time. Court holds no first amendment violation by restricting union workers meeting times in this matter, citing Connick v Myers 461 U.S. 138; complaints about working conditions were not matters of public concern. Further the court found changing rules for county board meetings was not an "adverse" employment action to implicate freedom of association rights.

Saturday, July 09, 2005

Western Waterfight III: Spear T v. Neb. DNR

Spear T Ranch v. Nebraska Dept. of Nat. Resources, S-04-639, 270 Neb. 130 7-8-05 In the 3rd installment of the various Spear T Ranch waterfights (against ground water appropriators Knaub, Central Public Power District's complaint, and against the Department of Natural Resources) the Supreme Court holds that the suface water user Spear T may not sue the Nebraska Department of Natural Resources for failing to prevent ground water users from taking its water. The Court holds that Spear T has neither conventional tort claims under the State Tort Claims Act,Neb. Rev. Stat. § 81-8,209 et seq. (Reissue 2003) nor inverse condmenation claims under the State and Federal Constitutions Neb. Const. art. I, § 21 and 5th Amendment, US Constitution """We conclude that the Department has no common-law or statutory duty to regulate the use of ground water in order to protect Spear T’s surface water appropriations. See In re Complaint of Central Neb. Pub. Power, supra (holding that Department had no independent authority to regulate ground water users or administer ground water rights for benefit of surface water appropriators). In the absence of independent authority to regulate the use of ground water, the Department has no legal duty to resolve conflicts between surface water appropriators and ground water users. If there is no legal duty, there is no actionable negligence. Fuhrman v. State, 265 Neb. 176, 655 N.W.2d 866 (2003). One cannot be negligent in failing to perform an act which it did not in the first instance have a duty or obligation to perform. Travelers Indemnity Co. v. Center Bank, 202 Neb. 294, 275 N.W.2d 73 (1979).. Further Because Spear T had no property that was damaged or taken by the Department, Spear T could not assert a cause of action for inverse condemnation. It was not error for the district court to dismiss Spear T’s cause of action for inverse condemnation.""

Friday, July 08, 2005

Follow up: Colorado Supreme Court approves of jurors' questioning witnesses

The Colorado Supreme Court upheld a pilot program it started in 2000 to allow jurors to question witnesses during trials last week. State v Median & State v Moses (consolidated cases). The Court found that a properly controlled process to allow jurors to question witnesses would provide adequate due process to defendants. Earlier news reports compared this experimental process to the relatively few states like Nebraska which dont allow jurors to ask questions during the trial. Interestingly the Colorado Supreme Court decision cites Nebraska's State v Zima, 468 N.W.2d at 378, 79 where the defendant had initiated a discussion with a juror about breath tests in dwi cases. Although juror questions in this case was improper, the defendant could not appeal an issue he invited. Medina, slip op at 26, note 14. In these Colorado cases, the questions may have been improper but the errors were harmless. Arizona v Fulminante 499 US 279. Colorado will therefore allow juror questions in trials subject to court screening and procedural safeguards including appeal review under Chapman "harmless(trial) error" rules Chapman v California 386 US 18

Thursday, July 07, 2005

Nebraska leading establishment of internet sales tax compact

Nebraska has joined with 17 other states to begin nudging online retailers to collect taxes on items purchased over the Web. The Streamlined Sales Tax Project (SSTP), comprising state tax officials, met recently in Chicagoto encourage retailers to collect sales taxes. States Pushing For Web Sales-Tax Collection, 12 states plan to begin a pilot voluntary program this fall. Some Congressmen are ready to back the states' efforts to tax internet sales. State and Local governments have their eyes on the $15billion in lost sales tax revenue they believe they are "losing" from internet sales. The U.S. Supreme Court 13 years ago, declared a moratorium on remote sales tax collections across state lines Quill Corp v North Dakota 504 US 298; Congressional action is necessary to reverse it. The SSTP attempts to do this by making sales tax collection more unifrom and streamlined. Nebraska has joined this group LB46 2004. Other states have tried to collect sales taxes from internet merchants who also have physical presences in the collecting states, the "brick and click" or "entity isolation rule." California ordered Borders to pay back taxes to the state, because customers who purchased book from returned books in the company's bricks-and-mortar locations. Ohio, Pennsylvania and Connecticut however have held entity isolation still exempts the merchant from paying state sales taxes. The U.S. Supreme Court denied review of the Pennsylvania and Connecticut cases without comments on merit

Discrepancy between Omaha and State DUI penalties allows drunk drivers to walk

Repeat offender Drink Drivers' attorneys are taking advantage of a loophole thanks to the Nebraska Supreme Court that lets them walk with greatly reduced sentences for multiple convictions. KETV NewsWatch 7 followed a drunk driving defendant who had multiple convictions for drunk driving and the last time seriously injured other mototiests but received probation instead of jail time. Thanks to the Nebraska Supreme Court decision in State v Loyd, 265 Neb. 232 (Neb 2003) Prosecutors may not charge drunk driving defendants as repeat offenders if the prior offenses occurred between 1999 and 2003 and the City of Omaha charged them for violating the City's drunk driving ordinance (Omaha Mun. Code, ch. 36, art. III, § 36-115 (1998). The City ordinance penalty provisions for second offense drunk driving varied from the State law prescribed punishment (Neb. Rev. Stat. § 60-6,196 (Cum. Supp. 2000). In Loyd, the Supreme Court held because of this discrepancy, no City conviction is valid. The news report states several cases are up on appeal regarding this issue.

Wednesday, July 06, 2005

NCA hears sex-abuse case

The Nebraska Court of Appeals heard arguments Thursday in a civil case in which a former student at St. John Lutheran School in Seward is seeking more than $2 million in damages. Journal Star Online The District Court ruled against the female plaintiff on statute of limitations grounds. Federal court in Lincoln had dismissed a former male student's suit on similar grounds, but the plaintiff has a pending appeal to the 8th Circuit. The current plaintiff's attorney argued that a continuous pattern of abuse and repression from coming forward earlier continued as the girl later worked for the Lutheran School, similar to the concept of the continuing treatment exception to the statute of limitations in professional malpractice cases. Casey v. Levine, 261 Neb. 1 (2001)

What are "extraordinary circumstances" for filibuster? Sen Nelson's view

Senate pact shapes high-court fight When "moderate" senators from both parties last month made a deal to end the filibusters agaisnt Circuit courts of appeals appointments of Janice rogers Brown, Priscilla Owen and William Pryor, the democrats promised not to filibuster again except for extraordinary circumstances. What does that mean? According to Senator Nelson (news, bio, voting record) (D) of Nebraska, "I'm leaving open my judgment as to what 'extraordinary circumstances' involves." He says there will be "no surprises," and that members of the Gang of 14 have ongoing discussions on this point.

FCC Rescinds Approval of Nebraska Broadcast Deal

Morrison Foersterlaw firm FCC news bulletin reports an unusual move from the FCC Media Bureau, it rescinded its approval of a deal between two Nebraska broadcasters, in which Lincoln Broadcasting sought to transfer control of its permit for KOWH-TV from World Investments to CFM Communications. After initially approving the transfer, the Bureau found information in a filing regarding an unrelated matter, specifically in a deposition of Carol Miller, principal of CFM, that "raise[s] serious questions regarding the truthfulness of representations made" in CFM’s transfer of control application.

NCA scolds Judge Murphy for rushing through divorce trial

Gohl v. Gohl, 13 Neb. App. 685 July 5, 2005. No. A-03-1102. Appeal from Red Willow County John P. Murphy, Judge In this divorce case involving very complex details regarding the parties' marital assets and disputed valuations, the Court entered a dissolution decree from which both parties appealed. The Court of Appeals comments about the conduct of trial judge John Murphy are most telling:

"We must note that this surprising lack of detail, given the complexity of the case, infects the entire record—an apparent result of time limitations imposed on trial counsel by the court. While the record reveals that the trial started at 8:30 a.m. on June 18, 2003, it also shows that when Jerry’s counsel began his evidentiary presentation and inquired of the court about how much time he had, the court informed him, “At 12:10 I walk out the door.” In response to our questions during oral argument on appeal, counsel for both parties indicated that they had been under a strict time limit of 2 hours per side, and Jerry’s counsel asserted that there was no time for Jerry to testify—thus explaining the curious absence of any testimony from him, though neither party assigns error to how the trial was conducted" The Appeals court further found the judge improperly accepted a marital assets valuation that did not account for a patent infringement judgment against Walmart for nearly $500K, because it was too old. Further the Appeals court found insufficient detail to review other property valuation matters: " the lack of detail materially impacts our ability to conduct effective appellate review." "We find ourselves in the position of not having a sufficient record to decide the case on our own"Even though neither party requested on the record more time to present his case, nor does the court explain on the record why it set such strict time limits, nonetheless, we are dutybound to ensure a fair and reasonable property division, and we have no confidence after an exhaustive review of this record that such a division occurred in the trial court or that we could achieve such on this record. The appeals court must ensure that the parties have a fair hearing and a reasoned decision, which in our opinion did not occur. Arbitrary time limits can easily become the enemy of justice in our adversarial system. See Robison v. Madsen, 246 Neb. 22, 516 N.W.2d 594 (1994)

Saturday, July 02, 2005

Nebraska will oppose Muni broadband access

The debate over whether localities can treat Internet access like telephone service and cable TV has reached the Hill, where two bills -- one backing cities' efforts to provide WiFi, the other protecting the telecom industry's interests -- are set on a collision course. Some municipalities across the country have moved to make broadband internet access available to all citizens. Large telecom companies have opposed these efforts. The Wall Street Journal noted that the telecom industry is relying on old-fashioned "lobbying muscle" to oppose municipal access. The industry effort is meeting with some success. In June 2005 the governors of Colorado and Nebraska signed into law bills that restrict government telecom initiatives.LB645, 2005 In NEBRASKA P UBLIC S ERVICE C OMMISSION, V. N EBRASKA P UBLIC P OWER D ISTRICT, ET AL., INTERVENORS-APPELLEES. ___N.W.2d___ Filed March 19, 1999. No. S-97-1367. The Nebraska Supreme Court held that the Public Service Commission did not have jurisdiction over the Power District's providing internet connections through its electric lines.

Appeal in road defect lawsuit against CornState dismissed

Malolepszy v. State, 270 Neb. 100 July 1, 2005. No. S-04-667.

An Elkhorn man injured near the spot of the 2001 Seward bus crash on West Dodge Road in Omaha has lost his appeal against the state for filing it prematurely. Motorists injured in highway construction zone sued the Neb.Dept of Roads, which then impleaded construction contractor on highway project. Trial court gave State summary judgment and plaintiffs appealed. NESCT holds that although the plaintiffs initiated their suit only against the § 25-1315(1) (Cum. Supp. 2004) requires, in cases with multiple claims or parties, an explicit adjudication with respect to all claims or parties or, failing such explicit adjudication of all claims or parties, an express determination that there is no just reason for delay of an appeal of an order disposing of less than all claims or parties and an express direction for the entry of judgment as to those adjudicated claims or parties. 28-1315 is comparable to Federal Civil Procedure Rule 54b on notice of appeal in multi-party/claim cases, see discussion here}

Follow up: DNR has no jurisdiction to resolve surface/ground water users dispute

In re Complaint of Central Neb. Pub. Power, 270 Neb. 108 Filed July 1, 2005. No. S-04-836.

Western Nebraska water fights went another round in the NESCT, that court holding that the State Department of Natural Resources(DNR) had no jurisdiction to resolve complaint that Platte River irrigators were unlawfully diverting water from the Central Nebraska Public Power District, which operates Lake McConaughy. Central Public Power argued upstream groundwater pumping prevents about 100,000 acre-feet of water from reaching McConaughy each year. That represents about 15 percent of water currently in the reservoir. The DNR denied it had jurisdiction to step into the dispute. Although Spear T Ranch v. Knaub, 269 Neb. 177, 691 N.W.2d 116 (2005), held that surface water appropriators might have claims against unreasonable interference from ground water users, the Department’s jurisdiction to hear disputes between surface water appropriators and ground water users was not presented. DNR regulates surface water appropriators, see § 61-201 et seq., and the the NRDs through the Nebraska Ground Water Management and Protection Act, see Neb. Rev. Stat. § 46-701 et seq. (Reissue 2004) regulate ground water users. Moreover the Nebraska Constitution does not address the use of ground water, see XV, § 4 (“water . . . declared to be a natural want”), but was not included in article XV, § 5 (“the water of every natural stream”)..NESCT holds DNR has no independent authority to regulate ground water users or administer ground water rights for the benefit of surface water appropriators. The court does not rule on any relief the NRD might get by § 46-701 et seq. Both Gov. Dave Heineman and Attorney General Jon Bruning supported the decision.

Friday, July 01, 2005

NESCT upholds $275K legal malpractice verdict

Paulette Genthon, Special Administrator of the Estate of Victoria Muldrew, v. Michael B. Kratville, Terry & Kratville, appellant. Genthon v. Kratville, 270 Neb. 74 Filed July 1, 2005. No. S-04-350. Plaintiff in wrongful death Petition or complaint defectively filed because the deceased's estate's personal representative or special administrator was not the named plaintiff (30-810) should have the opportunity to amend to designate the personal representative as the party plaintiff. Clients retained attorney to pursue wrongful death case arising from nursing home negligence. Attorney sent decline letter about 6 weeks before 2 year wrongful death statute of limitations would run. Clients filed defective pro se wrongful death suit, but did not open an estate for the deceased nor did they obtain service of process. A few days before the 6 month deadline to accomplish service of process( Section 25-217) the clients went back to attorney to resume representation. The trial court held the attorney negligent for not opening up an estate and further not accomplishing service of process in the 2 or 3 days attorney had to get service on the nursing home defendants. The Supreme Court holds the wrongful death petition (now called complaint) could have been amended to name the estate's personal rep or special administrator, under Section 25-852 (repealed 2002). The real problem with the pro se filing however was that the "real party in interest" had not initially filed the suit. The legislature in 1999 clarified section 25-301 to permit substitution of proper parties to the case: "an action shall not be dismissed on the ground that it is not prosecuted in the name of the real party ininterest until a reasonable time has been allowed after objection for joinder or substitution of the real party in interest." In 1996 this issue may have been up in the air, although Rice v. Adam, 254 Neb. 219, 575 N.W.2d 399 (Neb. 03/13/1998) held that after a court grants summary judgment for the real party in interest's failure to bring the suit, the court give the plaintiff a chance to substitute parties, before 25-301 was amended. Russell v. New Amsterdam Casualty Company, 303 F.2d 674 (8th Cir. 1962) however should not provide the precedent to the Supreme court to allow a substitution of parties and relation back as Federal Civil Procedure rules had always been more liberal on substitution than the State Procedure Code had been

NESCT reverses SJ for city in Recreational Land Liability Act

Iodence v. City of Alliance, 270 Neb. 59 Filed July 1, 2005. No. S-03-528.

Plaintiff brought suit against City of Alliance Nebraska for injuries she sustained when she ran over an obscured tree stump in park. Plaintiff went to park to view son's baseball game. The City won summary judgment because Court said the Recreational Land Liability Act applied, §§ 37-729 to 37-736 (Reissue 2004). The Supreme Court reversed the trial court holding that entering the park to watch a baseball game was not a “recreational purpose” as § 37-729(3) defines them. Accord Dykes v. Scotts Bluff Cty. Ag. Socy., 260 Neb. 375, 617 N.W.2d 817 (2000) {viewing of livestock exhibits at a county fair not a recreational purpose}. Chief Justice Hendry concurs but argues the Recreational Land Liability Act never should have applied to political subdivisions, as Watson v. City of Omaha, 209 Neb. 835, 312 N.W.2d 256 (1981) held. Justices Stephan and Miller-Lerman dissent arguing that the liability limitations of the Recreational Land Liability Act should apply to all recreational activities. .

HuskerBlawgs nominates Edith Jones to SCOTUS

HuskerBlawgs nominates Edith Jones of the 5th Circuit Court of Appeals to replace Sandra Day OConnor to SCOTUS, for the reasons stated in