Sunday, October 30, 2005

8th & 9th Circuit split on whether government may offset social security benefits for student loans defaulted more than 10 years ago. SCOTUS agrees to hear the case news. Dee Ella Lee a social secuirty beneficiary from kansas City beat the governement in the 8th Circuit Court of appeals when it sought to garnish her social security checks for a loan default from the early 1980's. The 8th circuit ruled that the Federal Debt Collection Act limitation on garnishing social secuity checks for debts older than 10 years overrode the federal student loan law revision from 1991 that eliminated any limitation of action on collecting defaulted student loans 20 U.S.C. § 1091a(a)(2).. James Lockhart was surviving on $874 a month in Social Security disability payments plus $10 in food stamps when his student loans from nearly 20 years earlier caught up with him.He was told his Social Security checks would be cut by 15 percent, an offset to pay more than $80,000 in delinquent student loans. The next day, he started legal action that has led to a hearing Wednesday before the U.S. Supreme Court. The case is compelling because many other people are potentially in the same position as Lockhart, at or near retirement age with 20-year-old student loans still unpaid, said Deepak Gupta, an attorney working on his appeal. The government brief on the case said there is nearly $7 billion in delinquent student loan debt, with about half of that amount over 10 years old. The case hinges on a pair of laws that send mixed messages about whether Social Security payments are shielded from the government's collection efforts: the Debt Collection Act and the Higher Education Act, or HEA. According to Public Citizen Litigation Group, which is representing Lockhart, one federal appeals court has ruled in another case that the government is barred by the Social Security Act and the Debt Collection Act from offsetting Social Security payments to repay student loans that are more than 10 years old. The 9th U.S. Circuit Court of Appeals, however, ruled in Lockhart's case that the HEA eliminated that bar, Public Citizen says. Lockhart, now 67 and receiving old age benefits instead of disability payments, wouldn't comment. Speaking by phone from his home in Seattle, he explained that his attorneys advised him not to talk about the case until it has been settled. Gupta, an attorney with Public Citizen, the public interest law firm founded by Ralph Nader, described Lockhart as an old, disabled man living in public housing and barely getting by on his Social Security payments. He has significant medical expenses following double-bypass heart surgery — including six different prescriptions — and because of diabetes. Gupta said Lockhart had more or less given up on his case before the call from Public Citizen. "We told him 'You have nothing to lose. They're not going to take away more money from you,'" he said. The Supreme Court probably agreed to hear Lockhart's appeal because of the conflicting ruling by the 8th U.S. Circuit Court of Appeals in a nearly identical case. The appeal of the 8th Circuit case is on hold until the Supreme Court rules on Lockhart's case. From 2000 through 2003, the Department of Education collected about $400 million a year in delinquent student loan debt through the offset program. In a government brief to the Supreme Court, Solicitor General Paul D. Clement wrote that it is essential to eliminate the 10-year limit on collections through Social Security because offset typically only occurs because the student debtor has successfully evaded collection by lenders and collection agencies for many years. The 8th Circuit case involves Dee Ella Lee of Kansas City, Mo., who took out two government loans to fund her studies. She defaulted in 1984 on more than $4,000, and in 2001 the federal government began offsetting her Social Security benefits, reducing her payment from $814 to $750 a month. The 8th Circuit ruled that the 10-year limit on Social Security offsets applied and her benefits should not be cut."the Debt Collection Improvement Act, which authorizes federal agencies to recover money owed on delinquent student loans (as well as some otherdebts) by offsetting a debtor's social security benefits. See 31 U.S.C. § 3716(c)(3)(A)(i)." However the original Debt Collection Act's limitation on the right of offset, under which government agencies are not allowed to use the remedy of administrative offset on claims that have been outstanding in excess of ten years. See 31 U.S.C. § 3716(e)(1).

Friday, October 28, 2005

Immigrant from Turkey shot his former girlfriend from behind in the head and Douglas County District Court jury convicted him of first degree murder. Immigrant gave confession in English and had lived in US for 20 years, but post conviction counsel advised to answer all deposition questions in his native language. Post conviction hearing judge denied post conviction relief. The Nebraska Supreme Court affirms; finds no prejudice from only speculative prediction that counsel's failure to suppress ostensibly voluntary confession and consent to search automobile prejudiced his case; Defendant also claimed counsel was ineffective for not properly arguing that the crime occurred under circumstances to make the def. guilty of no worse than manslaugher. While counsel appeared toargue crime arose out of impulsivness, a defense Nebraska does not allow, the Supremes find the counsel's arguments were close enough for government work. State v. Canbaz, 270 Neb. 559 Filed October 28, 2005. No. S-04-970. Nebraska Supreme Court definition of the Strickland v Washington ineffectiveness of counsel standard Under Strickland, to establish a right to relief because of a claim of ineffective counsel at trial or on direct appeal, the defendant has the burden first to show that counsel's performance was deficient; that is, counsel's performance did not equal that of a lawyer with ordinary training and skill in criminal law in the area. The defendant must also show that counsel's deficient performance prejudiced the defense in his or her case. To prove prejudice, the defendant must show that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. When a defendant challenges a conviction, the question is whether there is a reasonable probability that absent the errors, the fact finder would have had a reasonable doubt concerning guilt. See State v. Cook, 266 Neb. 465, 667 N.W.2d 201 (2003). Defendant claimed that counsel's heavy use of "impulsiveness" theory during trial deprived him of chance to walk on "sudden quarrel" diminished capacity situation Canbaz next asserts that trial counsel was ineffective by repeatedly making reference to the theory of "irresistible impulse," which is a defense not recognized in Nebraska. See State v. Vosler, 216 Neb. 461, 345 N.W.2d 806 (1984). Canbaz claims that each reference in trial counsel's closing argument to impulsive behavior was objected to by the prosecution. Canbaz asserts that rather than asking Gutnik questions about whether Canbaz acted impulsively, trial counsel should have asked Gutnik whether Canbaz suffered from diminished mental capacity when Peralta was shot. Citing State v. Urbano, 256 Neb. 194, 589 N.W.2d 144 (1999), Canbaz states that diminished mental capacity is a defense recognized in Nebraska and that it "would have been fodder for a closing argument consistent with the medical diagnosis of defendant's expert." Brief for appellant at 14. Canbaz concludes: "The continued use of the impulsive theory shows that counsel was not familiar with the state of Nebraska law at the time of the trial." Id. ...trial counsel did in fact argue diminished mental capacity insofar as that related to premeditation and sudden quarrel. We need not decide whether every characterization of the law by trial counsel was legally correct so long as Canbaz was not prejudiced as a result. Certainly, it was an abundantly reasonable tactical decision not to go further and, as Canbaz suggests, argue that prescription antidepressants and drinking alcohol the night before the killing, combined with his depressive disorder and the stress of the situation, made him incapable of forming the requisite intent. Canbaz has failed to prove that trial counsel was ineffective in its defensive strategy. ... Defendant argued that counsel's admitted shooting was "intentional" deprived him ofa fair trial; court finds he waived this arguement we need not decide whether trial counsel was deficient in making the statement that the shooting was "an intentional act" or whether any such deficiency was prejudicial, because Canbaz failed to raise this argument in his brief on appeal. To be considered by an appellate court, an error must be assigned and discussed in the brief of the one claiming that prejudicial error has occurred. Lange v. Crouse Cartage Co., 253 Neb. 718, 572 N.W.2d 351 (1998) Any misuse of unavailable "impulse" defense that might have clouded defendant's shot at manslaughter through sudden quarrel moot because jury convicted on first degree murder and thus no erroneous step instructions The jury in Canbaz' trial was instructed under a step instruction for first degree murder. We have stated that a defendant convicted of first degree murder could not have been prejudiced by error in the instructions on second degree murder and manslaughter because under a step instruction, the jury would not have reached the issues of second degree murder and manslaughter. State v. Benzel, 269 Neb. 1, 689 N.W.2d 852 (2004). See, also, State v. Mowell, 267 Neb. 83, 672 N.W.2d 389 (2003) (where jury was adequately instructed on element of intent with respect to second degree murder, any alleged failure to further define term "sudden quarrel" at earlier stage of step instruction would not constitute plain error). It likewise follows that a misstatement of an element of manslaughter during closing arguments could not have prejudiced the defendant where the jury, under a step instruction, convicted the defendant of first degree murder and therefore would not have reached the issues of second degree murder and manslaughter. The jury, having found Canbaz guilty of first degree murder, would never have considered whether the shooting arose out of a "sudden quarrel."
Neb Supreme Court reverses "Patients' bill of rights" $25K verdict from Douglas County District Court; Court finds no "bad faith" where health insurer had "arguable" basis to deny medical necessity of plaintiff's hysterectomy when Plaintiffs demanded treatment certification; Reviewable as matter of lawLeRette v. American Med. Security, 270 Neb. 545 October 28, 2005. No. S-04-724. LeRettes filed a petition against American Medical Security, Inc., and United Wisconsin Life Insurance Company in Douglas County District Court for for breach of an insurance contract, and bad faith. Verdict was for Defendants on the contract and for the Plaintiffs for $25K on the bad faith claim. United Wisconsin filed a motion to set aside the verdict or, in the alternative, for new trial or entry of an altered or amended judgment. The court also denied LeRettes' § 44-359 (Reissue 2004)attorney fee claim. United Wisconsin appeals, and the LeRettes cross-appeal. The Supreme Court reversed the bad faith verdict with directions to dismiss the action. Pl's attorney fees cross appeal mooted. The plaintiffs had exhausted all appeals and even a special appeal panel within the Insurance company; at best some of the doctors requested more tests, so out of cost concerns the Ins co approved the procedure, months later; Plaintiffs did not cross appeal the defense contract verdict Dr. Cameron (insurance doctor) recommended that precertification be granted because further testing followed by an eventual hysterectomy would be more costly. The (insurance) appeal panel considered Dr. Cameron's recommendation with regard to the hysterectomy precertification issue and accepted his recommendation in favor of the insured's position. On September 11, 2001, United Wisconsin reversed its denial and granted Mary's request for precertification. Further, upon completion of the medical history review on September 18, United Wisconsin informed the LeRettes and their medical service providers that it was lifting the hold it had placed on payment of medical bills, and United Wisconsin thereafter paid such bills. Mary had the hysterectomy surgery on October 12, 4 months after her initial request for precertification. ... Braesch v. Union Ins. Co., 237 Neb. 44, 464 N.W.2d 769 (1991), disapproved on other grounds, Wortman v. Unger, 254 Neb. 544, 578 N.W.2d 413 (1998), recognizes the tort of bad faith refusal to "settle" a claim with an insured policyholder...a claim for bad faith, a plaintiff must show an absence of a reasonable basis for denying the benefits of the insurance policy and the insurer's knowledge or reckless disregard of the lack of a reasonable basis for denying the claim. Williams v. Allstate Indemnity Co., 266 Neb. 794, 669 N.W.2d 455 (2003); Radecki v. Mutual of Omaha Ins. Co., 255 Neb. 224, 583 N.W.2d 320 (1998). ...Supreme Court holds that breach of contract cause of action need not precede bad faith tort claim the LeRettes were not required to prevail on their breach of contract cause of action relating to untimely paid and unpaid bills as a prerequisite to prevailing on the bad faith cause of action relating to initial denials in connection with Mary's hysterectomy. ... Ultimate Payment of Benefit Does Not Defeat Bad Faith Claim Best Place, Inc. v. Penn America Ins. Co., 82 Haw. 120, 920 P.2d 334 (1996) (tort of bad faith allows an insured to recover even if insurer performs express covenant to pay claims); Rawlings v. Apodaca, 151 Ariz. 149, 726 P.2d 565 (1986) (insurer's eventual performance of express covenant by paying claim does not release it from liability for bad faith; implied duty of good faith and fair dealing is breached when insurance company's conduct damages very protection or security which insured sought to gain by buying insurance). ... Bad or Good faith test determined at time of the ins co's denial' if an arguable basis exists, as a matter of law there is no bad faith Radecki v. Mutual of Omaha Ins. Co., 255 Neb. 224, 583 N.W.2d 320 (1998)"if a lawful basis for denial actually exists, the insurer, as a matter of law, cannot be held liable in an action based on the tort of bad faith." 255 Neb. at 229, 583 N.W.2d at 325. "(If) at the time of each denial, [the insurer] had an arguable basis on which to deny the claim" bad faith cause of action fails as a matter of law regardless of the manner in which an investigation was or was not conducted." 255 Neb. at 230, 583 N.W.2d at 326. "Whether a claim is fairly debatable is..a matter of law . . . and such a determination is based on the information available to the insurance company at the time the demand is presented." Id. Because United Wisconsin had an arguable basis on which to initially deny precertification at the time of each such denial, the LeRettes' bad faith claim as to Mary's hysterectomy fails as a matter of law.
Fed Court suit in Iowa challenges prison-faith based intiativeLawsuit targets prison ministry DES MOINES (AP) - A Christian prison program subsidized by the state is discriminatory, giving preferential treatment to inmates who enroll, a lawyer for an advocacy group argued Monday. Inmates pray for a newcomer to the InnerChange program at the Newton Correctional Facility in Newton, Iowa.Opening arguments were held in U.S. District Court in a lawsuit filed by Americans United for the Separation of Church and State, challenging state funding of the "InnerChange Freedom Initiative," a program meant to reduce recidivism. Iowa prison officials hired Reston, Va.-based Prison Fellowship Ministries, a group founded by former Nixon aide Chuck Colson, to offer the program at the Newton Correctional Facility. The Bible-based program, which also operates in Kansas, Minnesota and Texas, has been praised by President Bush, but lawyers for Americans United have said it calls into question the president's faith-based initiative. "InnerChange has taken over an entire unit of a state prison and turned it into an evangelical church," said Americans United lawyer Alex Luchenitser. However, "most who enroll do so not to be closer to God, but to take advantage of the special benefits," he said. Participants live in a special unit that is more like a college dorm than a prison, with separate bathrooms and doors that are unlocked by keys given to inmates, Luchenitser said. They get special visits from family members and are guaranteed jobs and access to computers, benefits other inmates may not have access to. InnerChange inmates receive classes required for early parole while inmates not enrolled in the program have to wait to take the classes, Luchenitser said. They receive in-house discipline, which Luchenitser said "makes misconduct invisible to the Board of Parole." Inmates who don't subscribe to the "evangelical teachings" of InnerChange "are treated badly" and expelled from the program, he said. John Hammers, a convicted sex offender who testified that he was an InnerChange graduate, said he asked to transfer from the Fort Dodge prison to Newton because of the InnerChange program and to escape prison overcrowding at Fort Dodge. "You're going to an honor dorm," Hammers said of the unit where InnerChange inmates are housed. Hammers, who testified via the state's video conferencing system, identified himself as a Christian, but said inmates were not required to convert to enroll. He also testified that participating in the program did not reduce his sentence. Two other inmates who testified from the Iowa State Penitentiary at Fort Madison said information they received about InnerChange prompted them to file grievances with the Department of Corrections. "I would have to believe what they believe to get into that program," said Jerry Ashburn, serving a life sentence for first-degree murder. Bobby Shelton, serving a sentence on theft and drug charges, said he is Muslim and information about the program indicated he would have to say prayers that identify Jesus as the son of God. "There is no possible way for me as a Sunni Muslim to participate without blaspheming my faith - blaspheming my God," he said. Anthony Troy, a lawyer for Prison Fellowship Ministries, said prisoners "enter into the program with eyes wide open." "There is no evidence of inmates being threatened with punishment or privileges being taken away," he said. "There is no evidence of coercion. "The purported niceties . . . are not used as an incentive," Troy said. Luchenitser said the state has spent more than $1 million on supplies and wages of InnerChange employees, who are called "Biblical counselors." Discrimination spreads to the employees, who must sign an agreement saying they will subscribe to the teachings of InnerChange, he said.
Envrionmental activists who opposed Sand Livestock System's starting large hog farms in Furnas County will test effect of Section 25-21,243 Nebraska's anti-SLAPP law {Stratgeic lawsuit against Public Participation}(and this time the big bad company is out of business WORLD-HERALD OGALLALA, Neb. - A jury will decide whether two citizens and their attorney exercised their free-speech rights or defamed what once was one of the nation's largest hog producers. A trial that opened here Tuesday pits Furnas County Farms and Sand Livestock Systems and their corporate heads, Chuck Sand and Tim Cumberland, against Hayes County farmers Char Hamilton and Duane Fortkamp and their attorney, Amy Svoboda.The case is seen as an important test of constitutional rights. It is the first trial involving a Section 25-21,243"the 1994 Nebraska anTI- SLAPP law that protects people who comment on controversial issues from being quieted by harassing lawsuits. Section 25-21,243 {Defendant in action involving public petition and participation; action authorized; costs, attorney's fees, and damages; authorized; waiver; section, how construed.} The law allows citizens to countersue companies that sue them to recover their legal expenses and damages, which happened in this case. The hog firms recently offered to settle the lawsuit for $45,000, an offer that was rejected by the main defendants as inadequate to cover five years of legal bills and other damages. In their countersuit, the citizens and their attorneys - which include lawyers from Georgia and Kansas City, Mo., and help from the firm of environmental activist Robert F. Kennedy Jr. - ask for damages of up to $5 million. The lead attorney for the defendants, Richard Middleton of Savannah, Ga., said his clients have suffered health and financial problems. They have had to live "with a cloud over their head" because of what he called "a frivolous lawsuit." Middleton told the jury of seven women and five men in his opening statement: "This is an attack on the First Amendment. The purpose was to stop, to shut up, to harass and intimidate Amy Svoboda and these citizens."The lead attorney for the hog firms, John Recknor of Lincoln, told jurors that the case is a "simple" slander case. "Somebody defamed us," he said. "We asked them to stop it, they didn't, so we sued them."Among the slanderous comments, Recknor said, were that the hog firms were responsible for a methane asphyxiation death at a Michigan hog site and that they had ignored regulations and operated without proper permits. Chuck Sand of Columbus, the principal owner of the firms, said the matter came to a head when he got telephone death threats at his home over what he considered to be false statements about the companies. The case involves a proposal by the companies in 2000 to build a 44,000-head swine facility in Hayes County in southwest Nebraska. The proposal came at the height of controversies over the environmental impact of large livestock confinement operations and at a time when many counties - including Hayes - were passing zoning regulations to try to minimize odors. A group of local citizens, led by Hamilton and Fortkamp, formed Area Citizens for Resources and Environmental Concerns to oppose the facility. Their attorney, Svoboda, spoke at several public meetings on the proposed facility. She submitted a letter to the Nebraska Department of Environmental Quality listing several reasons why it should deny a permit for the operation. Svoboda's attorney said all the comments can be verified and were backed up by Sand employees in depositions taken before the trial. Recknor, in turn, said some of the statements were "demonstrably false." Svoboda, he said, was sent a letter asking her to retract the statements. He said a Sand representative told her that her comments were "not quite right," but she persisted. Middleton, however, said the hog companies consulted with a Colorado law firm about how to silence Svoboda several weeks before filing their slander suit. When Svoboda was asked to retract her statements, he said, she offered to sit down with Sand and hear any evidence that showed the statements were incorrect. The firms' response was a lawsuit, not a meeting. Furnas County Farms declared bankruptcy a year ago and was sold. At the time, it was considered to be the nation's 15th-largest hog producer, turning out 1 million hogs a year. Although the company won state approval for the facility in Hayes County, the site was never built because it didn't meet county setback provisions. Sand Livestock Systems also is not operating, said Chuck Sand, but it still has assets. The trial is being held in Keith County because that is where Svoboda lives, although the lawsuit was filed in Platte County, the home of Sand Livestock.
Lincoln Mayor Seng calls for ordinances to restrict where sex offenders may live within city; small towns object that these ordinances will driver the pervs out to the country, as Iowa's strict laws have driven its sex perps to Nebraska; Sen Howard proposes state wide solution Offender limits gain steam WORLD-HERALD It's even more critical that Nebraska enact statewide law limiting where sex offenders may live, now that the City of Lincoln is considering such restrictions, State Sen. Gwen Howard said Tuesday.The Omaha senator's comments came after Lincoln Mayor Coleen Seng said she had asked the city's staff to draft a proposed ordinance that would restrict where sex offenders could live. If approved, it would add Lincoln to a rapidly growing list of cities and states that prohibit sex offenders from living in large areas within their boundaries. Such a law took effect in Iowa in September. South Sioux City and Dakota City, Neb., both just across the Missouri River from Sioux City, Iowa, have since enacted ordinances. Some members of the Omaha City Council have expressed interest in an ordinance, and the Sarpy County cities of Papillion, Springfield and Gretna also are considering them. "I am concerned that if Lincoln does not act, we could see a migration of sex offenders who have been affected by the laws of other communities," Seng said. "We need to do what we can to protect our children." Howard praised Lincoln for "getting on the bandwagon." But the senator said the ordinances ought not be enacted in a patchwork fashion. "It needs to be statewide, not just in urban areas and large cities. This happens in rural communities, too," she said. Howard said she would introduce a bill when the legislative session starts in January. Some other lawmakers said they thought residency restrictions are an ineffectual way to deal with sex offenders. State Sen. Carol Hudkins of Malcolm said a Lincoln ordinance most likely would push sex offenders from there into the small neighboring towns in her district. But she said she didn't think such a law would prevent predatory behavior or that one could pass the Legislature. State Sen. Ernie Chambers of Omaha said he would oppose residency restrictions. He said such laws make pariahs of people who have paid their penalty under the law. Communities will be no safer if offenders are pushed underground. The laws "are an overreaction, politically motivated and counterproductive," Chambers said. "They do not protect children; they have nothing to do with protecting children." Lincoln's mayor agreed that questions remain about such a law, including which offenders should be covered and what places should be protected. Iowa's law bars anyone convicted of a sexual offense against a minor from living within 2,000 feet of schools or child care centers. Some communities also are banning offenders from areas near parks, libraries and playgrounds. Lincoln Police Chief Tom Casady said the proposed ordinance needs to be thought through so it doesn't lead to unintended consequences. Among factors to consider are the potential for state action, the effects of Lincoln restrictions on the rest of Lancaster County and the effects of restrictions on sex offenders living in group homes or treatment facilities in the city. Casady said that if he had his way, there would be no sex offenders living in Lincoln. The city has 426 registered sex offenders in residence, including 197 offenders classified as Level 3, the most dangerous. Casady said 57 sex offenders are at the Lincoln Regional Center, which has the state's only treatment program for adult sex offenders.

Wednesday, October 26, 2005

Small school supporters take case to court; successful petition effort still would not reverse school consolidation measure until after November 06 election and the damage will have occurred by then Lincoln Journal Star Wednesday, October 26, 2005 If Nebraska voters are to have a real choice on school consolidation, the courts must intervene, according to supporters of small schools. Class I’s United, a group representing small elementary-only school districts, filed a lawsuit Tuesday in Lancaster County District Court to stop mandated school consolidations until after a November 2006 statewide vote on the issue, said Mike Nolles, one of several dozen supporters at a news conference Tuesday. A hearing on the first step — a temporary injunction halting the merger process — is scheduled for Monday in Lancaster County District Court, said Don Stenberg, an attorney representing the group. Class I supporters gathered enough signatures to force a statewide election on a new law that requires all elementary-only districts to merge with K-12 districts. But the merger process will be finished by June 15, 2006, almost five months before the vote. Class I supporters were not able to gather enough signatures to automatically stop the process, but they argue the courts must intervene in this “unique situation.” The temporary injunction would stop the process while the case for a permanent injunction winds through the courts. Supporters are using four arguments to support their case, Stenberg said: The new law, LB126, eliminates all Class 1 districts before the election and thus hinders voters from deciding the referendum issue — whether Class I schools should continue to exist. The state Supreme Court has repeatedly said legislation hindering or obstructing the referendum process is unconstitutional, Stenberg said. Finishing the mergers before the vote violates state and U.S. constitutional rights guaranteeing the right to cast an effective vote. Nebraskans cannot have a statewide ballot issue that is an advisory vote. And in practical terms, the November vote would be advisory because the mergers will have occurred, Stenberg said. The Supreme Court should reconsider a past decision that required successful ballot measures to be signed by 5 percent or 10 percent of registered voters, rather than the same percentages of the number of people who voted in the last governor’s election, a smaller number. If the lower number were used, Class I supporters would have enough petition signatures to automatically stop the law from taking effect until after the election.
David Dominator hits McGrath North with $1.6 million verdict; LaVista Keno operator lost constructive trust/fiduciary duty case in Supreme Court in 2003 due to McGrath's bad legal advice Lincoln Journal Star. The state’s second-largest law firm, McGrath North, has been slammed with a $1.6 million judgment for legal malpractice. On Monday, a Douglas County jury voted 11 to 1 against McGrath North Mullin & Kratz, ruling that the firm must pay $1.6 million to Richard T. Bellino, a La Vista keno operator. The jury ruled that attorneys James D. Wegner, William F. Hargens and the firm did not fulfill their duties to properly advise Bellino about how to separate from his business partner before opening another business. John R. Douglas, an attorney hired to defend the firm, said he will ask the judge to set aside the verdict. If the judge doesn’t, he will appeal. He said his clients are very good lawyers who did not commit malpractice. Bellino’s attorney, David Domina of Omaha, said McGrath North should have advised Bellino to make a clean break with a partner before he bid on a keno contract. Bellino partnered with Robert Anderson in 1989 in La Vista Lottery but later wanted to sever their partnership and open his own business. The attorneys at McGrath North advised him to maintain 50 percent of his share with La Vista Lottery and open the competing La Vista Keno at the same time. Anderson sued Bellino after La Vista Keno won a contract over La Vista Lottery to provide keno to La Vista. The suit was based on a 1913 Nebraska Supreme Court ruling that an officer-shareholder “owes a duty of absolute loyalty” to his company and “may not harm it.” Nebraska Power Co. v. Koenig, 93 Neb. 68, 78, 139 N.W. 839, 843 (1913). Anderson won the initial ruling in 2003, and Bellino sued his attorneys soon after. The Nebraska Supreme Court upheld the Cass County District Court ruling that upon accounting for the constructive trust Bellino owed the former company, Bellino owed it $645K. “One of the most elementary purposes for civil law is to get people out of unwanted relationships,” Domina said. “Bellino went to these lawyers with a basic, simple, everyday legal problem: ’I want out of this business.’ “I had no doubt that (McGrath North) gives high-quality advice every day,” Domina said. “They just didn’t do it in this case.”
Neb App reverses parental rights termination where father's Navy court martial conviction for child sexual offense was not yet final, due to pending appeals In re Interest of Kayla F. et al. (Not Designated for Permanent Publication) October 25, 2005. No. A-05-442. Kristina F. and the natural mother of the minor children herein, filed a complaint requesting termination of the parental rights of the children's father, Richard F. She now appeals from the order of the county court for Hall County, sitting as a juvenile court, which found the evidence to be insufficient and dismissed her complaint. Because (1) Kristina relied solely upon Richard's court-martial convictions rather than providing other relevant evidence to establish grounds for termination and (2) Richard has been granted leave to appeal his convictions and thus such convictions are not final for collateral estoppel purposes, we find the evidence to be insufficient and therefore affirm the order of the juvenile court. Court maritals are akin to criminal convictions and thus must be final before a civil court will apply collateral estoppel with them In the present case, Richard's convictions arise out of a general court-martial. See 10 U.S.C. § 816(1) (2000). A judgment of a court-martial is to be accorded the same finality and conclusiveness as to the issues involved as a judgment of a civilian court. United States v. Price, 258 F.2d 918 (3d. Cir. 1958). As the U.S. Supreme Court recognized, "General and special courts-martial resemble judicial proceedings, nearly always presided over by lawyer judges with lawyer counsel for both the prosecution and the defense. General courts-martial are authorized to award any lawful sentence, including death." Middendorf v. Henry, 425 U.S. 25, 31, 96 S. Ct. 1281, 47 L. Ed. 2d 556 (1976). The United States had the burden to establish Richard's guilt beyond a reasonable doubt. See 10 U.S.C. § 851(c)(4) (2000). Further, Nebraska has allowed a court-martial conviction to be used to enhance a criminal defendant's sentence. See State v. Hernandez, 259 Neb. 948, 613 N.W.2d 455 (2000). Under these circumstances, the court-martial at issue appears to be more akin to a criminal proceeding. We conclude that the pendency of the appeal prevents the convictions from having collateral estoppel effect for the purpose of the instant termination proceeding. ...Because Kristina relied solely upon the nonfinal convictions, which cannot be accorded any issue preclusive effect, Kristina failed to produce sufficient evidence to establish that Richard was unfit by reason of debauchery, lewd and lascivious behavior, and conduct seriously detrimental to the health, morals, or well-being of the children. Kristina's testimony vaguely referenced a disclosure of "sexual abuse" of Kayla and that the "instances of abuse" occurred on more than one occasion, but she offered no evidence regarding the facts or circumstances of this "sexual abuse." Further, nothing in Kristina's testimony suggests that she had any personal knowledge of the alleged events; rather, her testimony refers to the convictions, which are not final. Kristina had also alleged as grounds for termination that the children had been abandoned by Richard because he has had no contact with them since the summer of 2000 and that Richard had substantially and continuously neglected to care for the children. ... Because Richard has appealed his court-martial convictions, we conclude that such convictions are not final for collateral estoppel purposes. Upon our de novo review of the evidence, we find the same to be insufficient to establish grounds for termination of Richard's parental rights.
NCA affirms assault conviction over appeal that cause for nighttime search warrant (Section 29-814.04) unfounded and that State improperly allowed to withdraw its rest to present final witness; Court rules no-suppression ruling was proper, and even so, Court finds no objection to testimony allowed following overruled motion to suppress; with murky record as to why court allowed state to withdraw rest, with no explicit defense objection, it would not reverse for an improper rest-withdrawal State v. Nunez (Not Designated for Permanent Publication)October 25, 2005. No. A-04-1041.William J. Nunez appeals from his first degree assault conviction following a jury trial in the district court for Douglas County. The district court sentenced Nunez to a term of imprisonment for a period of 10 to 15 years. On appeal, Nunez assigns as error the district court's overruling of his motion to suppress and allowing the State to reopen its case after resting. Nunez also asserts that certain remarks of the prosecutor during the State's opening statement and closing argument were improper and that he received ineffective assistance of counsel in various regards. For the reasons set forth herein, we affirm. the Nebraska Supreme Court in State v. Paul determined that a separate statement of facts showing why the public interest required a search at night was not necessary in an affidavit in support of a nighttime search warrant. Rather, the court concluded that if an "'affidavit, read in a common sense manner and as a whole reasonably supports the inference that the interests of justice are best served by the authorization of nighttime service [of a search warrant], provision for such service in the warrant is proper.'" 225 Neb. at 435, 405 N.W.2d at 610, quoting People v. Mardian, 47 Cal. App. 3d 16, 121 Cal. Rptr. 269 (1975). The court determined that sufficient facts had been stated to justify a nighttime search because the affidavit stated that the officer smelled the odor of marijuana coming from the residence approximately 2 hours prior to when the search warrant was issued. The court reasoned that the odor detected by the officer justified an inference that the marijuana was being consumed and destroyed and that preventing destruction of such evidence of criminal activity was in the public interest. ... In State v. Fitch, 255 Neb. 108, 582 N.W.2d 342 (1998), the Nebraska Supreme Court concluded that no factual basis existed for the issuance of a warrant for a nighttime search. The search warrant in that case was issued on April 12, 1996. The affidavit in support of the warrant stated that within the previous 30 days, individuals with known arrests for drug violations had been frequenting the defendant's residence. The affidavit also stated that some evidence supporting a suspicion of drug activity had been found in the defendant's trash bags on March 21, 28, and April 11. However, the affidavit contained no facts supporting an inference that contraband was being removed or disposed of such that a nighttime search was required. The Nebraska Supreme Court concluded that if § 29-814.04 was to have any meaning relevant to nighttime searches, more must be shown than was provided in that case. The court further held that a factual basis supporting a nighttime search is required as a prerequisite to the issuance of a warrant authorizing a nighttime search under § 29-814.04... Murky record on State's withdrawn restThe record does not reveal why the court allowed the State to reopen its case; nor does it reflect any objections by Nunez' counsel to this procedure. There is nothing in the record to indicate any discussion between the court and the parties' counsel concerning the withdrawal of the State's rest. Following McCowen's testimony, the State again rested. Nunez did not renew his motion to dismiss. ...The record does not reflect that Nunez objected, in closing arguments or otherwise, to the State's being allowed to withdraw its rest and calling McCowen as a witness. During the State's closing argument, the prosecutor referred to Nunez' claim to Ryan that he was sitting in the passenger seat of Zoucha's vehicle. The prosecutor then referred to McCowen's having "showed us the passenger seat of . . . Zoucha's car." The prosecutor then urged the jury to "take a close look" at the exhibits showing Zoucha's car with "blood spatters all over." At this point, Nunez' counsel objected: "There was no testimony that that was blood in the car. There was no witness that was called to testify that what . . . McCowen saw was blood. It was never tested. There's never -- a lab tech, he admitted on cross-examination that he didn't test it." This objection was overruled by the district court and, contrary to Nunez' assertion in his brief, does not reflect an objection to the State's withdrawal of its rest. The failure to make a timely objection waives the right to assert prejudicial error on appeal. State v. Anderson, 269 Neb. 365, 693 N.W.2d 267 (2005). One may not waive an error, gamble on a favorable result, and, upon obtaining an unfavorable result, assert the previously waived error. State v. Hudson, 268 Neb. 151, 680 N.W.2d 603 (2004). Nunez has waived this assignment of error, and we need not consider it further. ... Having found Nunez' assignments of error to be without merit, we affirm

Tuesday, October 25, 2005

Chapter 11 debtor Mesaba Airline's pilots question usefulness of their parent company's executives; are they just a "sponge" for revenues? KARE 11 News The bankruptcy of regional carrier Mesaba Airlines is shining a spotlight on its parent company, MAIR Holdings. MAIR has avoided bankruptcy, even though Mesaba is responsible for 97 percent of MAIR's revenue and all of its profits. The two maintain separate corporate headquarters.MAIR President and CEO Paul Foley's $700,000 salary and bonus in the year that ended in March topped that of Doug Steenland, who was president and later chief executive of Northwest Airlines Corp. during the same period. Northwest is Mesaba's only customer. Foley's four-year employment contract with MAIR signed last fall included a $500,000 signing bonus.Minnesota Twins owner Carl Pohlad is MAIR's chairman and is paid $300,000 a year."MAIR fundamentally acts as a vacuum cleaner taking cash from the right pocket of Mesaba," said Tom Wychor, a 16-year Mesaba pilot and chairman of the airline's pilots union, and uses some of that money to "fund a separate suite of executives.""I don't know of anybody who can tell me what Paul Foley does on a day-to-day basis at MAIR Holdings," Wychor said.MAIR board member Pierson (Sandy) Grieve, described Foley as "a very effective operating executive and a good communicator." He credited Foley with helping make Mesaba safe and efficient.MAIR spokesman Jon Austin said on Monday that MAIR is offering Mesaba up to $35 million in financing in bankruptcy, and that MAIR gave Mesaba $31.7 million as Mesaba prepared to fly new regional jets.Foley joined Mesaba in 1999 as chief executive. In late 2002, Foley hailed the $3.2 million acquisition of Big Sky Airlines, a small carrier based in Billings, Mont., as "a good example of the type of opportunity we are seeking." But Big Sky has failed to become a growth vehicle, instead piling up almost $11 million in pretax operating losses in three years. "The pilots very clearly see MAIR Holdings and Paul Foley as an expense that we can't afford at this time," Wychor said. Mesaba must "restructure ourselves out of being the only airline supporting two management teams (MAIR and Mesaba) and another carrier's losses." Austin said Big Sky is operating under restrictions demanded by Mesaba pilots. The restrictions, which include limits on where Big Sky can fly, are "certainly a significant factor in how Big Sky has performed," Austin said.

Monday, October 24, 2005

Nebraska Supreme Court denied Irrigation District right to charge rent to lake tenants; Now Court without comment upholds Dist Judge Murphy's ruling that Power District cannnot even terminate the leases; Power district loses bid to end leases at Jeffrey Lake The Associated Press The Central Nebraska Public Power and Irrigation District has lost its bid to charge rent for its property around Jeffrey Lake. The Nebraska Supreme Court, without comment, on Friday upheld an injunction issued earlier by Lincoln County District Judge John Murphy preventing the district from terminating the leases on the lots where 115 homes have been built. “The court, in effect, has deeded this property to the homeowners,” said district spokesman Tim Anderson. The case involved the land around Jeffrey Lake south of Brady. Homeowners originally signed the leases, which require 30 years’ notice to cancel, decades ago. The district owns the land and leases home sites to Jeffrey Lake Development Inc., which in turn subleases to homeowners. In 2001, the high court ruled that Jeffrey Lake homeowners did not have to pay rent for their lots. That ruling upheld a lower court decision that the homeowners have paid the equivalent of rent to the district by maintaining and improving the land. The 2001 high court decision upheld a ruling by Murphy, who said that the homeowners’ maintenance of the lake, cooperation with the state Game and Parks Commission, shore stabilization projects and lot improvements have benefited the power district and that those improvements meet the lease obligations. Murphy noted that the district contributed materials, funds, expertise and labor to help the homeowners, and that it made no sense for the district to claim that the homeowners had been “violating the public policy of the state while continually participating in the maintenance and enhancement of the facilities.” In the 2001 high court ruling, Judge Michael McCormack said that even if state law required rent to be collected on the properties, “such rent would not necessarily have to be cash rent. Because consideration as given in exchange for the leasehold interests, we find that the leases are not gifts.” Anderson said homeowners at the district’s Johnson Lake and Lake McConaughy are charged annual rent equal to 5 percent of the appraised value of their lot. He estimated that charging rent for the Jeffrey Lake lots could generate about $1,000 a lot, or $115,000 a year. “We think it’s a fairness issue,” he said. Gothenburg attorney Steve Windrum, who represented the cabin owners, was not in his office Friday and could not be reached to comment. Irrigation districts are political subdivisions of the state and are organized under a 1933 law aimed at developing irrigation and electric power systems.

Saturday, October 22, 2005

Supreme Court: Mortgage loan clearinghouse company that held titles as nominee was not a "morgage banker" subject to Nebraska mortgage banker licensing and regulation. Mortgage Elec. Reg. Sys. v. Nebraska Dept. of Banking, 270 Neb. 529 October 21, 2005. No. S-04-786. Mortgage Electronic Registration Systems, Inc. (MERS), appealed an order of the Department of Banking and Finance (the Department), declaring that MERS is a "mortgage banker" under Neb. Rev. Stat. § 45-702 (Reissue 2004) and therefore subject to the license and registration requirements of the Mortgage Bankers Registration and Licensing Act (the Act), Neb. Rev. Stat. § 45-701 et seq. (Reissue 2004). The district court affirmed the order, and MERS appealed. For the reasons that follow, we conclude that MERS is not a mortgage banker as defined by the Act and, therefore, reverse the judgment of the district court. The MERS system was created to facilitate the transfer of ownership interests and servicing rights in mortgage loans. Under the System, MERS serves as mortgagee of record for participating members through assignment of the members' interests to MERS. Mortgage lenders participate in the MERS System as members upon completion of a membership application. ...we conclude that such services are not equivalent to acquiring mortgage loans, as defined by the Act. In other words, through its services to its members as characterized by the district court, MERS does not acquire "any loan or extension of credit secured by a lien on real property." MERS does not itself extend credit or acquire rights to receive payments on mortgage loans. Rather, the lenders retain the promissory notes and servicing rights to the mortgage, while MERS acquires legal title to the mortgage for recordation purposes. MERS serves as legal title holder in a nominee capacity, permitting lenders to sell their interests in the notes and servicing rights to investors without recording each transaction. But, simply stated, MERS has no independent right to collect on any debt because MERS itself has not extended credit, and none of the mortgage debtors owe MERS any money. Based on the foregoing, we conclude that MERS does not acquire mortgage loans, as defined in § 45-702(8), and therefore, MERS is not subject to the requirements of the Act.
NE Supreme Court slap at LB775 participant: interest still due on taxes the State eventually refunded to IBP because IBP did not initially pay taxes on time; NDR lacks discretion to waive interest WORLD-HERALD BUREAU Tyson Fresh Meats v. State, 270 Neb. 535 Filed October 21, 2005. No. S-04-1294. The Nebraska Supreme Court ordered the former IBP Inc. to pay more than $400,000 in interest on back taxes, even though 75 percent of the delinquent amount later was refunded to the company. Now part of Tyson Fresh Meats Inc., IBP qualified for sales and use tax refunds under Nebraska's economic development incentive law, commonly known as LB 775 for its 1987 legislative bill number. An audit by the Revenue Department discovered that IBP had not paid more than $916,266 in use taxes on equipment purchased out of state between Sept. 1, 1993, and Aug. 31, 1996. The use tax is the tax purchasers are required to self-report and pay when the seller does not collect Nebraska sales tax. The Revenue Department ordered Tyson to pay $1.4 million - the owed taxes plus $401,284 in interest and $91,627 in penalties. The company then was refunded $670,280 under LB 775. The company's lawyer argued that IBP should not have to pay interest on the refunded amount. The high court disagreed in a six-page ruling issued Friday and written by Chief Justice John Hendry. "We conclude that IBP's argument is without merit. The State argues, and we agree, that with respect to the statutory framework set forth in §§ 77-2708 and 77-2709, there can be no "overpayment" to offset against an "underpayment" unless payment was made when due. Though the use tax in this case was eventually paid, that is not the relevant inquiry. The pertinent question is when the tax was paid, and in this case, it is undisputed that the tax was not paid when due." "IBP failed to pay the use tax owed when due," he wrote. "The tax was eventually paid and refunded, but it was not paid more than once and there was no error or illegality in the collection or computation of the tax." The Supreme court further disagreed with the District Court that had said the NDR could have waived interest, "§ 77-2711(11)provides that "[t]he Tax Commissioner in his or her discretion may waive all or part of any penalties provided by the provisions of such act, but may not waive the minimum interest on delinquent taxes . . . except interest on use taxes voluntarily reported by an individual. ...Under the plain terms of § 77-2711(11), the Department was precluded from waiving the assessment of interest. Furthermore, the one exception, "interest on use taxes voluntarily reported," does not apply in this case. IBP's use tax was not "voluntarily reported," but assessed after an audit which resulted in a deficiency determination.We therefore agree with the State on its cross-appeal and conclude that the district court erred in finding the Department had the discretion to waive the assessment of interest. Although we disagree with the district court's reasoning, where the record demonstrates that the decision of the trial court is ultimately correct, although such correctness is based on a ground or reason different from that assigned by the trial court, an appellate court will affirm. See Semler v. Sears, Roebuck & Co., 268 Neb. 857, 689 N.W.2d 327 (2004). "

Friday, October 21, 2005

Atty General Op: Vets' panel can close its hearings; Judicial functions exempt from Neb. Open Meetings law WORLD-HERALD Nebraska open meetings law does not apply to the Nebraska Veterans' Advisory Commission when it considers appeals from veterans who have been turned down for assistance from the Nebraska Veterans" Aid fund, the Attorney General's Office said Thursday.Assistant Attorney General Leslie Donley said the commission is acting in a judicial capacity, not as a policy-maker, when it considers the appeals. Bodies conducting judicial proceedings are exempted from the open meetings law. Nebraska Veterans Affairs Director John Hilgert said he sought the attorney general's opinion after an observer questioned whether the appeals proceedings were being improperly closed to the public. The open meetings law declares that "the formation of public policy is public business and may not be conducted in secret." It requires advance notice and agendas for meetings, and the public must be allowed to attend and to speak, subject to reasonable rules and regulations. The law also forbids public bodies from holding closed sessions except under limited circumstances, such as discussing personnel matters, litigation and criminal investigations. A public body must vote before going into closed session, and it cannot vote on a matter while in closed session. Hilgert said the veterans' appeals are rare - there have been four during his four years with the Department of Veterans' Affairs. He said he was concerned about appeals conducted in public because they often require veterans to give potentially embarrassing information about their financial status, medical conditions and family obligations. Hilgert said veterans would be allowed to invite people to attend the hearings, but the commission won't publish notice to those who have nothing to do with the case.
FBI closes probe with no charges from allegations that Kiewit unit performed faulty construction of California highway bridgeWORLD-HERALD The FBI has closed its eight-month investigation into allegations that a joint venture led by Peter Kiewit Sons' Inc. produced hundreds of faulty welds in a $1.5 billion California bridge. "There was insufficient evidence that there were faulty welds and that they would compromise the integrity of the bridge," said LaRae Quy, FBI spokeswoman for Northern California. Criminal charges would have required proof of criminal intent and evidence that the welds were inferior. Most of the evidence - thousands of welds sealed in tons of concrete - is not accessible without tearing the bridge apart. Several independent investigations remain open, including those by California Attorney General Bill Lockyer and the Federal Highway Administration. Officials at the venture led by Omaha-based Kiewit, known as the KFM Joint Venture, declined to comment, referring questions to the bridge owner, CalTrans. Officials there did not return calls. In April, a number of welders claimed that Kiewit officials forced them to rush construction and cover up faulty work on the Bay Bridge "Skyway" project. In May, independent tests of two welds showed that the workmanship met or exceeded design specifications.
Omaha Bookeeper bilked over 20 clients in recent years; previously put on diversion for embezzling money from rescue squad WORLD-HERALD Don Brown and at least 22 other people can tell a similar story about how they lost tens of thousands of dollars to Douglas C. Johnson, their mild-mannered accountant.The cases of those 23 people collectively have led to civil judgments against Johnson exceeding $1 million and a criminal investigation spanning three years. But Johnson still is open for business.Brown, a 62-year-old mechanic, owns Don's Automotive in Council Bluffs. For more than 20 years, Douglas C. Johnson did the body shop's books and taxes, Brown said. Johnson, 49, would stop by regularly to chat about grandkids or business or whatever, Brown said. He considered Johnson a friend, almost family."You'd think he was one of the nicest people you ever met," Brown said. "It took an awful lot for me to even say anything bad about him."Brown said he trusted Johnson enough to loan him a total of $111,800 over a four-month period. The money was supposed to be used to finance a truck company and to buy inventory for a bike company owned by Johnson's wife, Brown said.For each loan - there were three - Johnson provided a promissory note, Brown said. The sloppy, page-long documents look like Johnson pounded them out on a typewriter.The promissory notes said the loan was backed by the businesses and Johnson's personal guarantee, court records show. They promised to pay a handsome interest rate - usually between 9 percent and 13 percent - and said that Brown could get his money back anytime with three days' notice.Brown said he received post-dated checks to cash when the notes came due, but they all bounced."I would tell myself he got himself in a pickle and he's trying to get out of it," Brown said. "I'd make excuses for him." Johnson also made excuses, citing health concerns and family problems when reneging on appointments to discuss the loans, Brown said. "He was really working your conscience." But after two years of delays and defensive explanations, Brown said, he decided to do something. In 23 separate cases, judges have ordered Johnson to pay more than $1.3 million to former clients, court records show. Judges have ruled against Johnson in Douglas County in Nebraska and Pottawattamie and Mills Counties in Iowa. More cases are pending. Johnson has declined to comment and referred questions to his Omaha attorney, Alan Stoler. Johnson, who is not a certified public accountant, continues to operate his bookkeeping business, Osberg-Johnson & Co., out of an office near 56th and F Streets. Stoler said the money Johnson borrowed from clients "was used for investment purposes" in other businesses Johnson worked with. He said Johnson is trying to pay the court judgments. The first case was filed in August 2000 and the first judgment granted in October of that year. But according to court records, almost all the judgments remain unpaid. Now Johnson's former friends and business associates don't know to whom they should - or can - turn for help. Some of his former clients, hoping for an investigation, brought their cases to the attention of county attorneys, police officers, the Nebraska Attorney General, the Nebraska Department of Banking and Finance, the Iowa Superintendent of Securities and the U.S. Postal Inspector Service. The Postal Inspectors and Department of Banking and Finance have been working together on the case for three years, said Tom Sindelar, the department's enforcement manager. The departments are "still compiling information." "We made a decision at some point to work with other agencies and - instead of attempting to do something piecemeal - to attempt to encompass everything," he said In 2002, after the courts already had ordered Johnson to repay more than $300,000, Nebraska and Iowa banking regulators ordered Johnson to stop writing promissory notes, which is illegal unless the issuer registers with the state. There is no evidence that Johnson has written promissory notes since then. But a week after Nebraska regulators issued the order, Johnson started operating an "investment club," according to documents he gave to one of the investors, Don Dohse. Dohse said he grew concerned about his money after Johnson changed offices, moving from a building with a well-kept lawn to his current office in a building hidden by unkempt landscaping. Dohse, a 78-year-old retiree in Omaha, said he demanded that Johnson return the $30,000 he put into Johnson's investment club. Dohse said he has received only an interest payment. Dohse said he gave Sindelar copies of the documents Johnson provided when the investments were made. Like Johnson's promissory notes, they promised a good profit. The Nebraska Department of Banking and Finance only investigates cases, Sindelar said. County prosecutors then determine whether they want to bring a case based on the evidence Sindelar's department generates. "The scope of this thing wasn't known and wasn't anticipated," Sindelar said. The rulings against Johnson have been civil judgments, and civil cases have a lower burden of proof than criminal cases. White-collar crimes are harder to prove, so it's common for county prosecutors to spend most of their time dealing with violent crimes. "These cases can be technical," Sindelar said. "Eventually Johnson will be confronted. The venue where that occurs remains to be seen." Leigh Ann Retelsdorf, a deputy Douglas County attorney, said Douglas County has no cases pending against Johnson. Douglas County charged Johnson with theft by deception for allegedly taking $160,000 from Omaha Ambulance Service accounts in 2001. Johnson did bookkeeping for the company at the time. Those charges were dismissed after Johnson agreed to attend a diversion program. In a deposition Johnson gave in March 2003, he said he repaid the money "through funds I was able to borrow from people or acquire."

Wednesday, October 19, 2005

Eppley managers protected themselves from airline bankruptcies when they negotiated month to month leases with Northwest and Mesaba(Northwest airlink); demand for landing and gate leases is strong. Carrier's bankruptcy doesn't worry Eppley WORLD-HERALD The Chapter 11 bankruptcy filing by a regional carrier for the also-bankrupt Northwest Airlines isn't expected to affect service at Eppley Airfield.Mesaba Airlines, which flies under the Northwest Airlink name, filed for bankruptcy last week. Pinnacle Airlines also provides regional flights for Northwest."I would expect (Mesaba) to continue services, as the other carriers have," said Don Smithey, executive director of the Omaha Airport Authority. He briefed the authority's board members during their regular monthly meeting Tuesday. "Bankruptcy seems to be just part of the business plan anymore," Smithey said of the latest filing in the troubled airline industry. Smithey said the authority's finances are not strained by the bankruptcies. Airlines are allowed only month-to-month leases on Eppley ticket counters and gates, and the authority keeps balances owed low, Smithey said. So an airline entering bankruptcy doesn't have a large debt to Eppley. Mesaba's balance, for instance, is about $30,000 in landing fees. After a bankruptcy filing, an airline must remain current on its rent or the authority can terminate the lease, Smithey said. "Everyone is paying their bills," he said. "We don't have a problem." If a bankrupt airline were to dissolve, Smithey said, another airline likely would take its place because demand is strong. "The market is strong enough to support larger planes" than the 70-seat regional jets that Mesaba uses, he said. American Airlines, in fact, has added another Omaha-Chicago flight, this one using a 150-seat MD-80 jet. The airline plans to use another MD-80 on Omaha-Chicago flights beginning Oct. 30. Smithey said he did not know yet whether that flight would be an addition to American's schedule or would replace a flight that now uses a regional jet. Board member Pat McNeil noted the movement by airlines away from regional jets. "Two years ago, the trend was the RJ's," he said. "That didn't last long." Smithey said airlines are responding to demand. "People do appreciate the larger airplanes," he said. A member of the Huron (S.D.) Airport board attended Tuesday's meeting. Larry Picek and his wife, Beth, flew Tuesday from Huron to Omaha on Mesa Airlines to pick up a car in Omaha they were buying. Picek said the commercial air service is important to Huron's business development, and Eppley's low-fare carriers are a draw for passengers from eastern South Dakota.

Tuesday, October 18, 2005

DV for KwikShop reversed where Pl. fell in snow packed parking lotIn unpublished opinion Neb App reverses directed verdict for Kwik Shop where Plaintiff fell in snow packed parking lot. Court finds sufficient evidence to present to jury that Defendant owed a duty of reasonable care to the Plaintiff and that it may have breached it. Court does not address issue of assumption of risk or contributory negligence. Court also finds sufficient evidence of notice. Burrell v. Kwik Shop (Not Designated for Permanent Publication)October 18, 2005. No. A-04-513.Appeal from the District Court for Douglas County: Patricia A. Lamberty, Judge. Reversed and remanded for a new trial. whether Kwik Shop should have expected that Burrell either (a) would not discover or realize the danger or (b) would fail to protect herself against the danger. The danger of walking across a snow-packed parking lot is obvious, and thus, the question here is whether Burrell would fail to protect herself against the danger. The court in Burns v. Veterans of Foreign Wars, 231 Neb. 844, 855, 438 N.W.2d 485, 492 (1989), stated: "[R]eason to expect harm to the visitor from known or obvious dangers may arise, for example, where the possessor has reason to expect that the invitee's attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it. Such reason may also arise where the possessor has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk. In such cases the fact that the danger is known, or is obvious, is important in determining whether the invitee is to be charged with contributory negligence, or assumption of risk. . . . It is not, however, conclusive in determining the duty of the possessor, or whether he has acted reasonably under the circumstances." Quoting Restatement (Second) of Torts, § 343 A, comment f. (1965). Here, there was evidence that the only customer entrance was the double doors through which Burrell entered. Burrell testified that the entire parking lot was snow packed and that there was nothing to hold on to as she walked toward the store. She testified that she was being "very cautious and careful and walking slowly" as she walked across the parking lot. She testified that she entered the Kwik Shop store to make sure that she paid and to get a receipt, because she had attempted to pay with a credit card at the pump but the machine did not issue a receipt. There was evidence here that Kwik Shop could expect that after filling the car with gas, a customer may enter the store to pay for the gas, buy additional items, use the facilities, or merely obtain a receipt when one is not issued by the machine, and fail to protect herself from the danger of walking across the icy parking lot.
1 year sentence for cruelty and neglect of horses affirmed; Court of Appeals affirms lower court on finding no 4th Amendment violation for warrantless seizure of horses in open field Defendant leased. § 28-1012(1) (Cum. Supp. 2004) which allows law enforcement to seek warrant to seize animals is not required in all instances, but subject to 4th Amendment guidelines. IN this case, "plain fields" exception applies and there is no privacy expectation; Trial court had jurisdiction to enter nunc pro tunc order on reimbursement amount even though defendant has appealed. State v. Ziemann, 14 Neb. App. 117 October 18, 2005. No. A-04-1483. Appeal from the District Court for Thurston County, Darvid D. Quist, Judge, on appeal thereto from the County Court for Thurston County, Douglas Luebe, Judge. Judgment of District Court affirmed in part, and in part remanded for further proceedings. NO expectation of privacy in open field, giving Defendant benefit of the doubt that leased field gives her 4th amendment standingCheryl does not own or reside at the farmstead where her two horses were seized. Cheryl bases her claim of a "legitimate expectation of privacy in the premises" on the fact that she leased the grass area on the farmstead for a dollar--although she did not establish whether this was per day, week, month, or year. And, the only evidence that any such lease existed is Cheryl's testimony. But, assuming there was such a lease, Cheryl was leasing only open land, which is subject to the open fields exception to the warrant requirement. Under the open fields doctrine, "'[o]pen fields do not provide the setting for those intimate activities that the [Fourth] Amendment is intended to shelter from government interference or surveillance.'" State v. Cody, 248 Neb. 683, 695, 539 N.W.2d 18, 26 (1995), quoting Oliver v. United States, 466 U.S. 170, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984). The boarding of two horses at an abandoned farmstead for a dollar clearly is not the sort of intimate activity sheltered by the Fourth Amendment. To put it another way, the search is not unreasonable and does not require a warrant. Therefore, Cheryl did not have standing to challenge the search of the farmstead. Neb. Rev. Stat. § 28-1012(1) (Cum. Supp. 2004), which states: "Any law enforcement officer who has reason to believe that an animal has been abandoned or is being cruelly neglected or cruelly mistreated may seek a warrant authorizing entry upon private property to inspect, care for, or impound the animal." is discretionary However, the statute only says "may" seek a warrant, and Cheryl cites no authority that this statute either imposes a higher standard on law enforcement officers than is otherwise established by longstanding principles of search and seizure or makes it mandatory that a warrant be secured. And, we can think of no reason why the statute would do so. Thus, we read "may seek" as purely discretionary and as not effecting other doctrines of search and seizure, such as the plain view doctrine. The Nebraska Supreme Court stated the "plain view doctrine" in State v. Keup, 265 Neb. 96, 655 N.W.2d 25 (2003) as if (1) a law enforcement officer has a legal right to be in the place from which the object subject to the seizure could be plainly viewed, (2) the seized object's incriminating nature is immediately apparent, and (3) the officer has a lawful right of access to the seized object itself. Case remanded to re-determine restitutionWe find that the district court committed plain error when it vacated the county court's order nunc pro tunc dated July 15, 2004, since the county court did have jurisdiction to enter such order. However, remembering that the county court has ordered three different amounts of reimbursement and that the presentence investigation report and sentencing hearing are insufficient to establish what the reimbursement by Cheryl really should be, we remand the cause to the district court with directions for it to remand the matter to the county court to hold such proceedings as are necessary as to make an accurate determination of the amount of reimbursement owed by Cheryl to Siouxland Rescue and Lown and to enter the corresponding order.

MedMal rankings out for 2003

Cornhuskers break into the top 20: for med mal claims paid per 1000 non-federal licensed physicians, Nebraska ranks 18th in the nation; overall claims were 83 Kaiser State Health FactsTotal claim payments for '03 were $16million +, with an average payment of just under $200K. That put us down in the 30's.

Monday, October 17, 2005

When the Plaintiff loses, it was just to have her day in court; Red Willow County District Judge Battershell dismisses dental malpractice suit after he strikes Plaintiff's expert's testimony. North Platte Bulletin The jury trial against a North Platte dentist for negligence ended suddenly Oct. 12 after a Red Willow County district judge dismissed it. Dentist Gerald Thalken was accused of negligence by a former patient, Tracy A. Mavigliano. She said Thalken put caps on her teeth that were uneven and that the procedure was so bad she suffered pain and couldn’t even eat afterward. The trial began Oct. 11 after a Lincoln County jury was selected. But it ended suddenly early Oct. 12 after Thalken’s defense attorney, Kyle Wallor of Omaha, made a motion to strike the testimony of former North Platte dentist William Hull. Hull, who said Thalken’s treatment of Mavigliano’s teeth was poor and charged her $24,987 to repair them, appeared as an expert witness for Mavigliano. Hull admitted on the stand that he never reviewed Mavigliano’s dental records from either Thalken or Dr. James States of North Platte. Wallor argued that the a witness couldn’t be deemed an expert witness without reviewing the medical records first, a standard he said was set by the Nebraska Supreme Court. Red Willow County District Judge John Battershell threw out Hull’s testimony, then dismissed the case for a lack of evidence. P. Steven Potter, Mavigliano’s attorney, said the case was an uphill battle. He said it was difficult to differentiate the damage done to his client’s teeth by decay from the treatment she received from Thalken. “But it was never about the money to her,” Potter said. “It was her hope to bring an awareness so that others wouldn’t have the same problems. “She felt like a woman raped. She couldn’t have lived with herself if she didn’t do something.” “We accomplished what we wanted to,” Mavigliano said. In her lawsuit, Mavigliano said Thalken capped her teeth without repairing the decay on them first. She said she had to pay former North Platte dentist William Hull to have her teeth re-aligned and recapped. “This case is not about decay,” Potter said in opening statements Oct. 11. “It’s about the treatment Dr. Thalken gave Tracy.” Potter said X-rays would show that Thalken didn’t repair Mavigliano’s teeth before capping them and didn’t seal them properly. “She was in horrible pain,” Potter said. “She went into a depression and didn’t get help for her teeth until her mom and dad stepped in.” Potter said another dentist promised not to pull one of Mavigliano’s teeth right up until the moment he did when she was a child, which caused an unnatural fear of dentists in her. Mavigliano’s suit says the cost of the extensive and unexpected dental work done by the Hull was the “direct and proximate result of the negligence” of Thalken. The suit says Thalken failed to take an impression of Mavigliano’s her teeth prior to performing the procedure, placed low-grade metal caps on her teeth that subsequently had to be replaced, and failed to test her bite at the end of the procedure to ensure it was correct. Mavigliano said she lost $891.75 in wages and more than $24,987 in dental fees. She is asking for $25,878 in damages. Kyle Waller, Thalken’s attorney, said the case was about tooth decay “because of the nature and extent of decay” in Mavigliano’s mouth. “Of the 28 teeth in her mouth, 22 had decay,” Waller said. He said Thalken talked her out of having her teeth pulled and replaced with dentures or implants and began treatment, which he said was to be extensive. Waller said Mavigliano stopped the treatment after only three visits and three hours. He said she returned twice but only for maintenance on her fillings and did not continue treatment. Waller said William Hull formed his opinions on Mavigliano’s teeth without reviewing the records or X-rays of either Thalken or Dr. James States, another dentist she saw. Waller also said Mavigliano never complained to Thalken about pain or uneven teeth. William Hull charged nearly $30,000 to repair the teeth and an additional $7,000 to be deposed for the lawsuit, file an affidavit and travel to North Platte to testify, according to Waller. The defense intended to call Henry St. Germain, a dentist and professor at the University of Nebraska, according to Waller. Waller said St. Germain would testify that Thalken did provide the correct standard of care and that photos revealed scar marks on the caps that prove Mavigliano was able to chew. Battershell reprimanded Thalken during Hull’s during testimony Tuesday afternoon for making faces and shaking his head. Battershell asked him to stop demonstrating his disagreement by his body language. Battershell must have been satisfied because he did not repeat his request.

Sunday, October 16, 2005

The U.S. Supreme Court agreed last week to consider restricting the government's authority to regulate wetlands, scheduling the first major environmental law test for new Chief Justice John G. Roberts Jr. Washington Times The justices said they will hear arguments from two sets of Michigan property owners seeking to build on land designated as wetlands. A federal appeals court said the U.S. Army Corps of Engineers could block the projects to protect water quality and wildlife.a Michigan man, John A. Rapanos, was convicted of violating the Clean Water Act for filling his wetlands with sand to make the land ready for development. He also lost a civil suit, which is at issue in his appeal. Justice Roberts may have played a central role in the decision to get involved. Under his predecessor, the late William H. Rehnquist, the court last year rejected a similar appeal by John Rapanos, one of the landowners involved. "What has changed here is we have a new judge on the court," said Mr. Rapanos' attorney, M. Reed Hopper, a lawyer with the Pacific Legal Foundation in Sacramento, Calif. "This does suggest that Judge Roberts is as fair-minded as we hoped." The cases ask whether the Clean Water Act, which gives permitting authority to the corps, covers wetlands that aren't adjacent to a river or other navigable waterway. The justices also will consider whether Congress has power under the Constitution's Commerce Clause to regulate those wetlands. The disputes are follow-ups to a 2001 decision that struck down a corps rule designed to protect migratory bird habitats on local ponds. The Supreme Court in that case said the rule lacked a "significant nexus" to the "navigable waterways" that are covered under the Clean Water Act. The justices also agreed to hear a separate case from Maine that asks whether the Clean Water Act applies when water passes through a dam. The question is whether that process constitutes a "discharge" subject to the environmental law. Environmentalists have been worried about how Roberts will vote in such cases. As an appeals court judge, he suggested in 2003 that federal power is limited. He had urged the appeals court to reconsider its decision restricting a San Diego area construction project because it encroached on the habitat of the rare arroyo southwestern toad. But in the first major oral argument he heard, Roberts chided a lawyer for Oregon who was there to try to protect that state's physician-assisted suicide law from being made secondary to the federal Controlled Substances Act. In the Supreme Court cases involving wetlands, Bush administration lawyer Paul Clement, the solicitor general, said the government has long-standing power to protect waterways, even if that means limits on pollution on nearby land.In a second case, justices will decide if the Army Corps of Engineers had the authority to restrict the development of a condominium in MacComb County, Mich. The government contends the work could pollute Lake St. Clair, which connects Lake Huron and Lake Erie. Justices also agreed to hear a third case involving the same law, the 1972 Clean Water Act. It was filed by the owner of hydroelectric dam projects in Maine which provide electricity for the company's paper mill. Lawyers for S.D. Warren Co. argue that the company should not be required to get permits for some of its operations. The cases are Rapanos v. United States, 04-1034, Carabell v. Army Corps of Engineers, 04-1384, and S.D. Warren Co. v. ME Board of Environmental Protection, 04-1527.

Friday, October 14, 2005

Interstate child custody dispute: Tug of war between Wyoming and Nebraska courts continues in custody dispute for son of deaf parents; Aunt&Uncle in Hastings suing to keep custody; Wyoming court rules Hastings County could not extend temporary guardianship order there beyond six months and orders child may stay with Wyoming parents Lincoln Journal Star Friday, October 14, 2005 Matthew Neuman had just finished lunch after a morning at kindergarten when his mom got the good news. A Wyoming court had decided Matthew, 6, will stay in Cheyenne with his parents rather than go to live with his aunt and uncle in Nebraska. “WE WON OUR CASE” said an e-mail from Matthew’s parents, Eric and Vicki Neuman, about the ruling. The Neumans have been battling to regain custody of Matthew since the Nebraska couple were awarded temporary guardianship of the boy in July 2003. It’s unclear how the Wyoming decision will affect the court cases in Nebraska. The couple, Ron and Dena Hohlen of Hastings, are Matthew’s maternal aunt and uncle. They contend the Neumans, who are deaf, did not provide a safe home for Matthew, who can hear. The Nebraska court battle dragged on for two years and Matthew lived with his aunt and uncle in Nebraska. His parents were allowed supervised weekend visits in Nebraska. But in July, the Neumans took Matthew back to their home in Wyoming, a violation of the Nebraska court order. In late July, a Wyoming court approved a different guardianship arrangement, allowing Matthew to live with his parents in Wyoming with supervision by another Wyoming couple. The Hohlens fought that arrangement in Wyoming courts. Last week the Wyoming District Court ruled the Nebraska guardianship is not valid because Nebraska state law allows a temporary guardianship for only six months. Section 30-2611 RRS Neb. The court dismissed the Hohlens’ case. “After careful review of all filings in the case the court notes that Nebraska statute places a six-month limit on temporary guardianship. It is clear from this record that the six-month guardianship … has expired,” said the judge in the order. The Hohlens’ attorney in Wyoming said she did not know whether the district court decision would be appealed to the state Supreme Court. The Neumans’ Nebraska attorney, Tom Lieske, had raised Nebraska’s six-month limit on temporary guardianship with the Nebraska court in seeking to dismiss the temporary guardianship a year ago. But Adams County Judge Robert Ide continued the temporary guardianship. Lieske said he is studying the Wyoming decision but has not determined how he might use it in the Nebraska case. Hearings on the Nebraska guardianship issue have been set for Oct. 26, 27 and 28. The Neumans have also been charged with violation of custody, a criminal misdemeanor charge for taking Matthew out of Nebraska without court permission. 28-316 RRS Neb. A hearing on that criminal charge is scheduled for Oct. 26. Steven and Leslie Shelton, a Cheyenne couple, are Matthew’s legal guardians in Wyoming, but the court has agreed the boy can live with his parents, said Dameione Cameron, a Wyoming attorney representing the couple. The Wyoming court does oversee the guardianship, requiring a report from the guardians every six months, Cameron said. The Wyoming court decision shows the temporary guardianship in Nebraska is not valid, said Leslie Shelton. “We are hoping that the Wyoming decision will be used in the Nebraska cases. We hope it will make them go away. That is our dream,” she said.
Supremes reverse directed verdict against Conagra Monfort plant employee's third party suit against Qwest Communications. "Accepted work doctrine" did not apply where phone company maintained control over strip of ground where cable lay.Washington v. Qwest Communications Corp., 270 Neb. 520 October 14, 2005. No. S-04-677. ConAgra employee Washington was injured when he tripped over a wire lying on the ground between a telephone terminal box and a utility pole located on a utility easement. Qwest Communications Corporation (Qwest) had installed the wire several days earlier in order to provide telephone service to a construction trailer owned by Addison Construction Co. (Addison). The district court granted Addison's motion for directed verdict, and a jury entered a verdict in favor of Qwest. Washington appeals. (ConAgra was joined as a party for the purpose of workers' compensation subrogation. See Neb. Rev. Stat. § 48-118 (Reissue 2004).) Parker v. Lancaster County School District, 254 Neb. 754, 757, 579 N.W.2d 526, 528 (1998), states the "accepted work doctrine" as "generally a construction contractor is not liable for injuries or damage to a third person with whom he is not in contractual relation resulting from the negligent performance of his duty under his contract with the contractee where the injury or damage is sustained after the work is completed and accepted by the owner." See also Moglia v. McNeil, 270 Neb. 241 (2005) Supreme Court holding"We conclude that the accepted work doctrine did not apply because Qwest was still in control of the premises where the work was performed and the injury had occurred. In this case, the evidence showed that Qwest maintained control of the premises at all times because of the utility easement and that Qwest had control of the placement of the wire...Qwest maintained control over the site of Washington's accident, which occurred on a utility easement. Therefore, the accepted work doctrine was not applicable to the facts of this case. It was error for the trial court to instruct the jury that the accepted work doctrine could be relied upon as a defense in this case." Defendant entitled to new trial because he presented evidence to establish at least Qwest's legal duty of care: Washington adduced evidence which, if believed by the trier of fact, would establish that Qwest had a duty to protect him from injury, that it did not discharge that duty, and that he was injured as a result. Therefore, Washington is entitled to a new trial as to Qwest's liability.
No cert 2nd time up to the Supremes; on remand 8th Circuit found even if the intitial police questioning post indictment violated Miranda's 6th Amendment prong,the violation had no effect on trial; As a consolation prize though, Defendant wins a Booker resentencing. Supreme Court refuses to hear drug conviction of Lincoln man The Associated Press The U.S. Supreme Court has refused to hear the appeal of a Nebraska man convicted on drug charges, although last year it ruled unanimously for him, saying police should have informed him of his rights before questioning him. The high court on Tuesday refused without comment to hear the appeal of John Fellers, who was sentenced to more than 12 years in prison but sought to have his conviction overturned after the Supreme Court’s ruling last year. In 2000, Fellers, of Lincoln, freely spoke of his drug problem to police when they arrived at his home to tell him he had been indicted by a grand jury for conspiracy to distribute methamphetamine. He was informed of his so-called Miranda rights, which include the right to remain silent and seek counsel, only after he was taken to jail. With Fellers arguing his case to the Supreme Court, the panel ruled last year that the statements he made violated his Sixth Amendment right to counsel. The panel sent his case to a federal appeals court to determine whether to suppress statements he later made in jail. In May, the 8th U.S. Circuit Court of Appeals upheld his conviction, saying there was no indication the incriminating statements he later made were prompted by what he said at his home. "We conclude that the exclusionary rule is inapplicable in Fellers’s case because, as with the Fifth Amendment in Elstad, the use of the exclusionary rule in this case would serve neither deterrence nor any other goal of the Sixth Amendment.there is no indication that the interrogating officers made any reference to Fellers’s prior uncounseled statementsin order to prompt him into making new incriminating statements. In addition,because Fellers’s initial statements related to persons already named in the indictment and to his own personal use of methamphetamine (the drug he was accused ofconspiring to distribute and to possess with intent to distribute), the officers would have had a basis for the questions asked during the jailhouse interrogation even if Fellers had said nothing at all at his home." "Even if Fellers’s jailhouse statements should have been suppressed, any error in admitting those statements at trial was harmless beyond a reasonable doubt. Although a defendant’s own confession is “a particularly potent piece of evidence,” its erroneous introduction is harmless where the other evidence against him is so substantial that it “assured beyond a reasonable doubt that the jury would have returned a conviction even absent the confession.” But the panel did order that Fellers be resentenced because of a recent decision by the Supreme Court on sentencing guidelines, which said juries, not judges, should determine whether to dole out punishments stronger than ones in sentencing guidelines. "The jury in Fellers’s case specifically found that Fellers was responsible for between 50 and 500 grams ofmethamphetamine and specifically rejected an alternative verdict stating that Fellerswas responsible for more than 500 grams of methamphetamine, the district court’sdecision to enhance Fellers’s sentence based upon the latter figure was in error.Because Fellers raised this issue at sentencing, he is entitled to a new sentencinghearing.Fellers’s conviction is affirmed, but his case is remanded for resentencing in accordance with Booker. Fellers was sentenced to more than 12 years in prison for conspiring to distribute and possess with intent to distribute between 50 and 500 grams of methamphetamine. The case is Fellers v. United States, 04-1552.

Thursday, October 13, 2005

Sprint unit sues Nebraska Public Service Commission in US District Court-Nebraska; alleges that PSC is stonewalling Sprint-TimeWarner Cable venture to provide phone service to Southeast Nebraska area on pretext that local phone carriers dont have to deal with the cable company. Thu, Oct. 13,The Associated Press Sprint Communications Co. is accusing the Nebraska Public Service Commission of hampering its efforts to provide local phone service in the state. In a lawsuit filed in U.S. District Court, Sprint Communications, a subsidiary of Sprint Nextel Corp., alleges that the Public Service Commission is violating the federal telecommunications Act of 1996, which was meant to foster competition in the industry and give consumers more choices. Sprint Communications, based in Overland Park, teamed with Time Warner Cable to provide local telephone service in Lincoln and other cities using Time Warner’s cable wires. To do that, Sprint must reach agreements with local phone companies to handle telephone calls to their customers. But Sprint could not strike a deal with the Southeast Nebraska Telephone Co., or Sentco, to offer local service in Falls City. Sentco argued that because Time Warner, not Sprint, would actually be the company directly offering phone service, it was not obligated under federal law to negotiate with Sprint. The Public Service Commission ruled in September that Sprint did not meet the definition of a telephone common carrier under Federal Communications Commission regulations and did not qualify to negotiate agreements with local telephone companies. Sprint wants the court to declare it a telecommunications carrier, require local phone companies to negotiate interconnection agreements, and issue a permanent injunction prohibiting the Public Service Commission from enforcing its order. Sprint said phone service in urban areas had expanded through innovation in technology, but rural areas of Nebraska “currently lack any meaningful choice regarding their provider of local wireline telecommunications services.” “Although the purpose of the 1996 act was to open up local monopolies to competition, the … PSC’s rewrite of the statutory definition preserves Sentco’s local monopoly and deprives rural subscribers of the new options and innovation that other customers around the nation enjoy,” the lawsuit says. One key issue behind the lawsuit is how local telephone companies are paid for phone calls they receive from other carriers that complete in their exchange area. With digital technology, it is difficult to determine where a call originates, making it difficult for a local exchange to determine how much to charge for the call. Meanwhile, the FCC is looking at reforming the process that carriers use to charge each other for terminating phone calls. One idea is to come up with a uniform charge for all calls. Sprint spokeswoman Debra Peterson said the company believes consumers should have choices when it comes to their local telephone service provider. “We’re simply trying to make that happen,” she said. First glance ■ Sprint Communications Co. claims in a lawsuit that a state agency is hampering it from providing local phone service in Nebraska.