Wednesday, November 30, 2005

SCOTUS allows ADEA Plaintiffs to pursue "disparate impact" claims; however Court will allow employers the easier to meet "reasonable factors other than age"defense from Wards Cove United States: Supreme Court Allows Disparate Impact Claims Under ADEA Vedder Price Law Firm U.S. Supreme Court decided on March 30, 2005 that a claimant may establish liability under the federal Age Discrimination in Employment Act (ADEA) even if there is no intent to discriminate. Smith v. City of Jackson, Mississippi, No, 03-1160. "Although Title VII has been construed to prohibit facially neutral employment policies that have a disparate impact on minorities and women, the federal courts have been divided on whether the ADEA permits these type of claims. In 1993, the Supreme Court held that an employee who was discharged shortly before his pension would have vested did not state a cause of action under the ADEA. Hazen Paper v Biggins. Many federal courts interpreted that decision as disapproving of disparate impact liability under the ADEA." "The ADEA contains a provision not in Title VII which states that "any action otherwise prohibited [under ADEA]" is lawful "where the differentiation is based on reasonable factors other than age discrimination" (RFOA). The Court concluded that this provision could not be referring to intentional discrimination claims so it must be referring to disparate impact claims." 42 USC 2000-e-2(a)(2)and (k) "the Court decided that an employer can justify a policy that has a disproportionate adverse effect on older employees by showing the policy is based on "reasonable" non-age factors...thus handing the ADEA disparate impact plaintiffs a "Pyrrhic victory."

Tuesday, November 29, 2005

Michael Moore has inspired not just gun control activists: Lancaster County District Judge Karen Flowers acquits Malcom high school kid who wanted to stage a "Bowling for Columbine" attack on insanity groundsWORLD-HERALD A Malcolm, Neb., teenager, who authorities said planned a Columbine-style attack at his high school, was ruled not responsible by reason of insanity Tuesday. Lancaster County District Judge Karen Flowers ruled that Joshua Magee, now 18, could not distinguish between right and wrong due to mental illness when he drove a car with a trunk full of weapons to Malcolm High School on March 16, 2004. During an August trial, a psychiatrist testified that Magee believed voices from God had ordered the attack, which he abandoned after opening the trunk of his car, which was loaded with homemade explosives and a bolt-action rifle. He was arrested at school that day, dressed in a black trench coat and camouflage pants. Magee was charged with attempted first-degree murder, use of a weapon to commit a felony and using explosives to commit a felony. Magee, dressed in a blue jail jumpsuit, did not speak during the brief hearing today. ... Magee's lawyer, Deputy Lancaster County Public Defender Scott Helvie, said the ruling was consistent with the expert testimony presented at the trial. "All the doctors agreed, including the state's doctor, that he suffered from a major psychiatric disorder that caused him to be psychotic," Helvie said. While a doctor called by the prosecution testified that Magee knew the consequences of his actions, the defense needed to prove only by the preponderance of the evidence that Magee was not responsible due to insanity. Flowers ordered Magee to undergo an evaluation at the Lincoln Regional Center to determine if he is dangerous to himself or others and if he should be incarcerated there for the protection of himself and the public. The evaluation must be completed within 90 days. Both the prosecution and defense can ask for additional evaluations. Lancaster County Attorney Gary Lacey said the ruling was not a surprise. But he said his office would seek another examination if the Regional Center finds that Magee is not dangerous. Court documents stated that Magee suffered from bipolar disorder. At school, he was the subject of taunts and called "Moss" by classmates; he also talked frequently of guns and the documentary film about the Columbine massacre, "Bowling for Columbine."
Douglas County prosecutors appeal sentence District Judge Spethman handed down for shooting into building, killing a child, where judge sentences defendant to prison time concurrent to an existing federal crack dealing sentence WORLD-HERALD Douglas County prosecutors on Monday appealed the sentence given to an Omaha man who killed a 4-month-old baby. County Attorney Stu Dornan said that his office will argue that Judge Richard Spethman was excessively lenient when he ordered Terron Brown to serve his prison term at the same time(concurrent to) a federal drug sentence. In effect, Spethman's order meant that Brown will not serve any more time for killing Deandre Robinson Jr. than the 20 years he is serving for dealing crack cocaine. The sentence outraged the dead child's family - including his mother, Rolisha Easter - and prompted prosecutors to immediately promise an appeal. "There were two separate crimes involved here," Dornan said. "We will be urging the appellate courts to impose a consecutive sentence." Under state law, judges have wide discretion in sentencing matters. Spethman could have sentenced Brown, who pleaded guilty to second-degree murder, to anywhere from 20 years to life in prison for little Deandre's death. Spethman sentenced Brown to 30 to 40 years in prison - which computes to 15 to 20 years. Under state law, defendants must serve half the lower term before they are eligible for parole and half the upper term before they are released. To get Spethman's sentence overturned, prosecutors must show that the judge abused his discretion. Dornan said prosecutors will argue that the sentence should have been stiffer - and it should have been served after the drug term. Prosecutors have noted that the killing of Deandre Robinson Jr. had nothing to do with the drug trafficking that landed Brown in prison. Police said Brown targeted Deandre Robinson Sr. because the two men - and members of their rival gangs - had been involved in a fight at a high-school basketball game. At sentencing, Spethman noted that Brown didn't mean to kill the child but still decried the loss of this "totally, completely beautiful, innocent child." He called it "the worst case I've ever had." The judge, who is retiring next month, actually had a somewhat similar case a couple of years ago. In August 2002, Demetrius Nelson, 23, fired a shot into a crowd because he believed he had seen a rival gang member. Nelson instead killed 2-year-old Curtavius "C.J." Boykins and hit a woman who was holding Boykins' hand at a birthday party. Nelson was convicted of second-degree murder and weapon use. Spethman sentenced him to 32 to 37 years. The cases had distinct differences, though: • Nelson fired one shot into a crowd; Brown fired at least 11, at point-blank range, into the picture window of Deandre Robinson Sr.'s small house. • Nelson told Boykins' family that he was sorry. And his attorney said Nelson was haunted by nightmares of the shooting. Brown, who had been charged in another murder until prosecutors dropped the case, expressed no remorse in court. Twice asked by Spethman if he wanted to speak, Brown said, "No, sir." In addition, Nelson wasn't already serving time for another crime, so the judge could not combine the sentences for the separate crimes. The appeal could take about a year.
Douglas County District Court Judge throws out expert testimony on plaintiff's repressed memories; Boys Town counsel James Martin Davis comments: "This is daytime talk-show science." WORLD-HERALD STAFF WRITER On Monday, Judge Sandra Dougherty ruled that Todd Rivers of Omaha could not present expert testimony that he had repressed memories of abuse while at Boys Town in the 1980's. She said Rivers' expert had not proved that such a diagnosis is scientifically valid. But even if repressed memories do exist, Dougherty said, she questions whether such a diagnosis applied to Rivers. ...Rivers said he didn't remember the incident until he "recovered" the memory in a dream in 2002 - nearly 20 years after the alleged abuse. Dougherty is the first Nebraska judge and just the sixth judge nationally to rule on repressed memories, an issue that is critical to some of the claims of people alleging sexual abuse. Otherwise barred by statutes of limitations, many sexual assault victims take one of two paths when they file claims years after alleged abuse. They say a disability, such as a mental illness, precluded them from taking action. Or they assert that they suffered from a repressed memory. Of the five other rulings on the issue, two federal judges and a Louisiana judge have recognized repressed memory as an acceptable diagnosis. But two state courts have rejected the idea as unscientific. Massachusetts Federal Court: yes (Shahzade v. Gregory 1996) NewHampshire State Court: no (based on statutes regulating repressed memory evidence) Dougherty joined the fray. But her decision might not be the final say. U.S. District Judge Laurie Smith Camp of Nebraska is expected to decide the same issue after a hearing next month in another man's lawsuit against Kelly and Boys Town. Rivers' attorney, Patrick Noaker of St. Paul, Minn., said Rivers was "very disappointed" in Dougherty's order. "Todd knows what happened and he stands by (his account)," Noaker said. "He has made it very clear that we've got to make sure this decision doesn't deter others from coming forward and getting help." James Martin Davis, an attorney for Girls and Boys Town, said he will ask Dougherty to dismiss Rivers' case, arguing that, without being able to claim a repressed memory, the statute of limitations has passed. Davis said the judge was correct in scrutinizing the medical community's stance on whether the repressed memory notion is scientific or speculative. "This is daytime talk-show science," Davis said. "It's not bona fide psychological or psychiatric theory." Dougherty noted that the psychiatric community is sharply divided on whether repressed memory exists. Some doctors swear by it; others classify it as unsupported. In her 25-page order, Dougherty detailed the views of psychiatric and medical groups. The American Medical Association, for example, "considers recovered memories of childhood sexual abuse to be of uncertain authenticity, which should be subject to external verification," she wrote. The American Psychiatric Association, Dougherty noted, said that some abuse survivors' "coping mechanisms result in a lack of conscious awareness of the abuse for varying periods of time. . . . The only way to prove the accuracy of a recovered memory report is to produce corroborating evidence." Noaker said Rivers has corroboration. ...But Dougherty noted that an investigator working on one of those students' cases called Rivers to question him about possible abuse. Only after that call, Dougherty said, did Rivers first tell his wife of his "recovered" memories. The judge ruled that there was no evidence as to when Rivers repressed the alleged molestation. She noted that Rivers stopped going to confession after the incident. "So it is clear that for some period of time Rivers remembered the incident," she wrote. Even if Rivers' mind produced a buried memory, Dougherty questioned how anyone could attest to the veracity of his account. "The fact that there is approximately 20 years between the alleged events and the 'recovered' memories increases the unreliability of the memory," she wrote.
No decisions today from the Nebraska Court of Appeals

Sunday, November 27, 2005

School Districts and retirement systems better beware of discriminating against older teachers and faculty: 8th Circuit finds that Des Moines' School early retirement plan violated ADEA because it arbitrarily denied some early retirement beneifts to those 65 years of age or older; the ADEA exemption for bona fide retirement plans did not save the systemBoone County Iowa News Republican Early retirement plans have become a problem for school districts around Iowa after the 8th Circuit Court of Appeals held that age limitations on when a person can qualify for early retirement are illegal. The current policy of Boone Schools states that to qualify for early retirement, a person must be between the ages of 55 and 62. Also, to qualify, they must meet the "rule of 74." This stipulates that the years of the employee's service when added with their age must equal 74. Seitz went on to explain that a recent court decision holds such requirements are illegal, even though 29 U.S.C. § 623(f)(2)(B)(ii) purports to exempt bona fide retirement plans from ADEA if they do not defeat the purpose of the Age Discrimination law. In an Eighth Circuit Court of Appeals case, Jankovitz v. Des Moines Ind. Comm. School District, the 8th Circs decided that an early retirement plan that sets a maximum age for receipt of a monetary stipend violates the Age Discrimination Employment Act (ADEA). Enacted in 1967, the ADEA makes it unlawful to discriminate against a person age 40 or older because of their age in respect to any term, condition or privilege of employment. Therefore the Jankovitz case, decided on Aug. 29, accorded that it was discriminatory to bar anyone age 40 or older from being able to qualify for early retirement. The salary of school teachers is based on seniority. A teacher in their 60s with 20 years of service under their belt is paid substantially more than a teacher fresh out of college with little experience. Early retirement has been a way of encouraging that highly paid, experienced teacher to choose to leave. If they did not, they would miss out on this incentive. But now the law must allow more teachers - those age 40 to 55 - to participate in early retirement. That holding may make the program too expensive to continue. Seitz says that there are boards that are completely doing away with early retirement for this reason. Iowa law states that levy funds pay for early retirement for retirees between the ages of 55 and 65. Any retiree whose age falls outside that range has to be compensated through the general fund. General fund money goes toward teachers' salaries, school supplies and so on. That budget is tight as it is. If those funds must be used to pay for early retirement for a number of people, the staff may have to be reduced to foot the bill. Currently, this concern is not bearing down on the Boone School with any kind of urgency since the district has no teachers over the age of 65. They have at least one more year to consider the issue before deciding it. "They are not going to get hit with it, at least not immediately," Seitz said. In Nebraska the State runs the school retirement plan for all districts except Omaha's. The Nebraska system employs a "rule of 85" for retirement and allows early retirement apparently though with out arbitrary age cutoffs that the Iowa districts employed.
8th Circuit affirms 51 month sentence for pirated software defendant sold on Ebay; on Booker resentencing retail value of Ebay sales was $220K and counts for sentencing purposes USA v. Susel (8th Circuit, District of Minnesota)

Friday, November 25, 2005

Nebraska Supreme Court CJ Hendry overrules Senate candidate and former Attorney General Stenberg's request to issue a temp.restraining order in School Merger Case; Presently Judge Merrit's temp injunction is in effect until end ofthis month when he promised a final ruling Associated Press -- The Nebraska Supreme Court refused Tuesday to enter the fight over a new law meant to force the small schools to merge with larger, K-12 districts. The court was replying to a request by former Attorney General Don Stenberg, lawyer for the small schools,. He wanted to ask the court for a temporary restraining order to block the law from taking effect Dec. 1.The order, signed by Chief Justice John Hendry, said the high court can't yet take jurisdiction in the case, which is still pending in Lancaster County District Court. Meanwhile, Lancaster County District Judge Paul Merritt Jr. listened Tuesday to arguments from lawyers on both sides of the issue, which many expect to eventually end up before the high court. Merritt issued a temporary injunction in the case last week and is pondering whether to issue a permanent injunction blocking the law. He said he would rule by Nov. 30 -- the day before the law takes effect. State lawmakers passed a bill (LB126) last session requiring the elementary-only districts to merge with larger districts. But supporters of the elementary-only, or Class I schools, circulated petitions and gathered enough signatures to ask voters to overturn the law in the November 2006 election. The law requires the small districts to be dissolved in June, nearly five months before the vote. In issuing the temporary injunction, Merritt said that, should the law be allowed to go into effect, the November 2006 vote would then "represent a meaningless exercise in futility." Although lawyers for both sides raised other technical issues Tuesday, Merritt said at the end of the hearing that "nothing has really changed my mind" since his earlier decision. Representing the small schools, Stenberg said he fears the state will use the courts to circumvent the vote. Under state law, a temporary injunction cannot be appealed. Stenberg said that if Merritt issues a permanent injunction, the attorney general's office plans to appeal the ruling to the Supreme Court, which would set aside the injunction while it considers the case. Sec 25-21,216 RRS. The State Committee for the Reorganization of School Districts would then move to dissolve the small schools, Stenberg said. "So we have a race," Stenberg said Tuesday. "I don't think that's a good way to administer justice." Chairman Kendall Moseley said his State Committee for the Reorganization of School Districts would also just be doing its job if Merritt grants the permanent injunction and it were appealed before Dec. 1 -- the date the law takes effect. While enough signatures were gathered to put the question on the ballot, petition circulators fell about 26,000 short of the required total to have automatically suspended the law without legal action. The attorney general's office argued that because petitioners had the ability to automatically suspend the law but failed to do so, the temporary injunction should not be granted. There are 206 elementary-only schools in Nebraska, many of which are in the most rural parts of the state. Supporters of the schools say they should be able to determine their own fates and not be forced to merge. Law proponents argue that having K-12 districts statewide will save money and provide a more equitable education to all students.
Follow up: After Supreme Court sends back PolSub tort claim case for trial, Plaintiff wins $1 million from Omaha and of course that is not enough The Associated Press A woman who was struck by a pickup in 1999 as she traversed a mistimed Omaha crosswalk has won $1 million from the city. Georgett Tadros, 61, of Omaha was awarded the $1 million by Douglas County District Judge Gary Randall on Wednesday. In March, the Nebraska Supreme Court rejected an early ruling that held the city only 40 percent responsible for her extensive injuries. Tadros should have gotten more, one of her attorneys said. "If ever a case cried out for an examination of the tort case cap (of $1 million), this is the one," said attorney Matthew G. Miller on Wednesday. "Our client is completely and totally disabled. She is in constant and chronic pain." City Attorney Paul Kratz said no decision has been made on whether the city will appeal. Court documents say the crosswalk she was struck in had a pedestrian signal that took 11 seconds to change when, according to state standards, it should have taken 19.5 seconds to change for a pedestrian covering the 78 feet of roadway. One car yielded to her as she sought to complete her crossing, but then she was struck by the pickup. Judge Randall gave 50 percent of the accident blame to the city, 30 percent to the pickup driver and 20 percent to Tadros. She and the pickup driver settled a lawsuit before it went to court.
"A rough record in a complicated divorce case sometimes means that "rough justice" is the best that can be done."; NebApp mostly upholds divorce marital property decree where husband and wife commingled personal accounts with childrens' trust accounts. Appeals court modfies decree to increase judgment husband owes for property settlement and his child supportHughes v. Hughes, 14 Neb. App. 229 November 22, 2005. No. A-04-939. Divorce involved sorting out marital property from separate gifted and inherited property. Also the the parties children inherited trust funds that the parents as custodians commingled with theirs. Mary Beth Hughes appeals the order of the Garfield County District Court, which dissolved her marriage to Gary Dean Hughes. The case is complicated by the fact that assets from Gary's deceased mother's trust have been improperly transferred and are now part of property which must be dealt with in this dissolution action, and the evidence does not allow accurate tracing of such trust assets. Nebraska Court of appeals denies husband as separate property money he put into an investment property because he failed to prove how his investments in property increased its value. "proof merely that money was spent on real estate does not establish that the real estate's value has been enhanced. Gary did not prove his entitlement to a set-aside as nonmarital property for expenditures from Emma's trust on Trapper's Creek. " The Wife claimed that Husband could not claim as his separate property funds placed into an investment account because funds came from children's accounts. further wife objected to the court's refusing to count her $25K life insurance proceeds. However the money was gone and the appeals court counted $25k anyway by how it calculated the husband's equalizing judgment in wife's favor. Court noted that while it might be improper for the parents to move around the kids'money that is usually a matter for another day: While it was possible for other persons or entities to have sought intervention in this action to assert claims against assets in the hands of Gary and Mary, no such relief was sought. See Yelkin v. Yelkin, 193 Neb. 789, 229 N.W.2d 59 (1975) (right of third parties to intervene in divorce proceedings is very limited, but may be permitted where it is necessary to procure justice for third persons whose property interest may be adversely affected in dissolution action). No potential claims of the various trusts and no claims of Jason and Kaycee are before us, and in any event, the record is inadequate to resolve any such claim. Compare Parker v. Parker, 1 Neb. App. 187, 492 N.W.2d 50 (1992) (district court erred in divorce action in attempting to mandate disposition of account under Nebraska Uniform Gifts to Minors Act, where parties' son was no longer minor).

Wednesday, November 23, 2005

NCA Judge Cassel upholds trespassing conviction ( § 28-520(1) RRS Neb) against divorced husband who was frequenting couple's home after trial court had awarded home to wife but case was on appeal; Court rejects Def. Husband's affirmative defense that he had an "ownership interest" in the property, further Court refuses to entertain plain error appeal that trial court used a "negligence" mens rea standard to convict husband of knowingly entering property State v. Anderson, 14 Neb. App. 253 November 22, 2005. No. A-04-1298. Larry Anderson appeals from an order of the district court which affirmed his county court conviction on the charge of trespassing in what was formerly his marital home. Regardless of whether Anderson had an ownership interest in the home, we conclude that the State adduced sufficient evidence to show that Anderson knowingly entered the home without license or privilege. We therefore affirm. Wife filed for divorce in 2000. Court in 2001 Temp. orders had given wife exclusive possession of home. The court awarded home to wife in 2002 decree. The county court hearing the trespass case also had evidence that there was a "bond" or some kind of protection order in place. On June 17, 2003 court of appeals reversed divorce decree. Husb was cited for entering property on JUly 7, 2003 (after NCA had reversed divorce but before any it would have issued a mandate to the Antelope County Court). Def raises affirm. defense that he had an "ownership interest" in the property, especially since the court of appeals had reversed the divorce. NCA notes that this was not a specified affirmative defense under 28-520 ( § 28-522 RRs Neb). the court also noted that a "bond" prohibited def's entering the property. " According to the evidence, at one point, a bond prohibited Anderson from being at the former marital home. Carol had the locks changed several times, and Anderson did not have a key. Carol testified that she would not have given Anderson a license or privilege to enter the home for any reason, and Anderson admitted that Carol had not given him permission to be in the house. Viewing the evidence in the light most favorable to the State, a rational trier of fact could have found beyond a reasonable doubt that Anderson entered the home knowing that he was not licensed or privileged to do so. " Court will not recognize plain error where def sought on appeal to raise trial court's purported improper use of a negligence standard to convict def Anderson argues that the county court erred in using a negligence standard, based upon that court's oral statement, "But I think the bottom line is that on July 7th, 2003 you knew or should have known based on all of the circumstances that you weren't authorized to be in that property." But " the argument that the county court erroneously applied a negligence standard was not assigned to or considered by the district court. " When the District court acts as the immediate appeals court the appeals court will not recognize errors that the District Court did not consider because the appellant did not raise it there. In re Estate of Trew, 244 Neb. 490, 498, 507 N.W.2d 478, 483 (1993) Defendants sentence of probation and a suspended 90 day jail sentence affirmed

Monday, November 21, 2005

Is this Son of Lawrence or his boy-toy? Sioux Falls SD authorities charge teenage boy with "inappropriate activity between him and the mannequin." Sounds like a job for the American Snivel Liberties UnionDrudge Report Sioux Falls South Dakota law enforcement has charged a teenager with indecent exposure after they caught the boy trying to have sex with a female mannequin on display at an arts centre. Security guards found the boy, 18, sprawled with the dummy on the floor with his trousers and pants down. Police spokeswoman said: "There was inappropriate activity between him and the mannequin. "That's the only way I know how to put it." Guards said they had noticed several times before that the dummy's clothes had been removed at the centre in Sioux Falls, South Dakota, US. If convicted, the Defendant may be registered as a sex offender. A Prosecutors' spokeswoman said "People might say it's relatively harmless. But I certainly would want to know if this person was my neighbour."
Regency Homeowners' Association has sued resident Jeff Shrier for putting an asphalt roof on his subdivision home, in violation of Homeowners' restrictive covenant; Court of Appeals ruled in favor of another homeowner association earlier this fall on identical issue The Regency Homes Association is serious about shingles. The Regency Homes Association has sued homeowner Jeff Schrier for putting asphalt composite shingles on his house in Eastern Regency. The association maintains in the lawsuit, filed last week in Douglas County District Court, that installing asphalt composite shingles violates the area's covenants - its rules and regulations. The association amended the covenants in 2002. They state that as of that date, roof improvement projects should use "wood shakes or wood shingles, tile or slate, or other approved materials. Asphalt and woodruff products are specifically prohibited." Schrier, a longtime owner of Omaha-area car dealerships, said that he never received the covenants after taking ownership of the house and that an association office staffer admitted having failed to send them to him. According to the lawsuit, Schrier's parents deeded the house to their son in April 2005. He had lived there at least seven months before that, the lawsuit says. The roof work was done around December 2004, the lawsuit says, through an agreement made by Schrier and his father, Stanley. Jeff Schrier said he had no desire to upset his neighbors. Nevertheless, he said, he is willing to go to trial over the matter because he was not informed. The lawsuit says the association notified the Schriers of the problem in December 2004 and February 2005. The shingles have not been removed, despite "frequent and repeated demands," the lawsuit says. Bruce Brodkey, an association attorney and board member, said the association seeks uniformity in roof materials to protect the neighborhood's property values. Values of homes in Regency start at $300,000, and many homes are worth far more. The subdivision is northwest of 96th and Pacific Streets. The covenants were on file when the house was conveyed to Jeff Schrier, Brodkey said, and notice of the existence of such covenants is on title insurance documents. He said it is incumbent on a homeowner to familiarize himself with neighborhood covenants. The association's board approved filing the lawsuit, he said. "It's nothing that we took lightly." This year the Nebraska Court of Appeals upheld summary judgment in favor of the Windridge Estates subdivision against a resident, Victor Ajlouny, who had placed asphalt shingles on his roof, also contrary to that association's rules. See Hoff v. Ajlouny, 14 Neb. App. 23 September 20, 2005. No. A-04-204. The Court of Appeals found summary judgment proper where the Defendant had no evidence of prior acquiescence to coventant violations and further recording of the covenant established notice to the defendantof the restrictions on roofing materials the association would allow
USA Patriot Act to require Insurance Companies to report suspicious activities regarding cash value type insurance products; United States: New Anti-Money Laundering Requirements For Insurance Companies sutherland Asbill Brennan. The government is basically requiring the Insurance Industry to report suspicious uses of insurance products that have cash or surrender value. In other words if a customer is buying large amounts of non-term life insurance he might be laundering money or preparing a terrorist act. Whats a suspicious indicator: purchasing life insurance products that dont make sense for the customer. Hope that doesnt snare a lot of gullible life insurance customers who bought from salesmen out for the high commissions from whole life. Query: apparently the Justice Department does not think property/casualty insurance transactions pose enough risk for coverage; havent they heard about all the staged accidents and vehicle thefts some immigrant groups pull off?
SCOTUS takes up whether unpaid worker compensation premiums are a priority debt against the debtors' estates, See 11 USC 507(a)(4); 4th circuit recently ruled premiums were priority debts, while in 1995 8th Circuit held they were not priority debtsUnited States: Bankruptcy: Priorities - Claim for Unpaid Workers’ Compensation Insurance Premiums (Supreme Court Docket Report – November 7, 2005)Mayer Brown & Platt Recently, the Supreme Court granted certiorari in one case of interest to the business community. Amicus briefs in support of the petitioner will be due on December 22, 2005, and amicus briefs in support of the respondent will be due on January 26, 2006. The case is Howard Delivery Service, Inc. v. Zurich American Insurance Co., No. 05-128 from the 4th Circuit. 8th Circuit case fromMinnesota in 1995 reached opposite conclusion: worker comp premiums are not priority debts, Employers Insurance of Wausau v HLM (In re HLM). For such a critical issue, the Congress apparently did not address the issue in the 2005 Bankruptcy Reform Act, because it did not amend directly 507(a) Mayer Brown Platt comments: "The Supreme Court’s decision in this case will obviously be of great interest to all insurance companies that provide workers’ compensation policies to employers, as the decision will establish whether priority under Section 507(a)(4) will be given to claims for unpaid workers’ compensation premiums. More generally this case is important to the business community at large, as it will affect the priority given to all unsecured debts of employers."

Friday, November 18, 2005

The "sadder" the case, the better chance you have for paperSarpy County District Judge Zastera lets former OPS elementary school teacher- meth user and her husband get paper for possession even though police had ample evidence of constant drug activity around their home. A judge sentenced a former Omaha schoolteacher to probation today, calling her meth-related case "one of the saddest cases I've ever seen." Sarpy County District Judge William Zastera sentenced Lynn Weibel, 45, of Bellevue to two years probation for misdemeanor attempted possession of a controlled substance. Zastera also sentenced her husband, Michael Weibel, 49, of Bellevue to 30 months probation for the more serious felony charge of attempted possession of a controlled substance with the intent to deliver. Weibel was a fourth-grade teacher at Wakonda Elementary School in north Omaha. She resigned after her arrest in June, said Luanne Nelson, school district spokeswoman. Just last Spring, police arrested an Omaha magnet school teacher also dealing drugs, she "needed the money." So thats why OPS needs to merge districts, to dilute their sad underpaid pool of educator talent?
No opinions from the Nebraska Supreme Court today. Follow up: Douglas County Court Judge Swartz rejects discovery requests for computer operating codes for DWI testing equipment, avoiding "chaos" in the County Courts; no doubt this is the kind of case the Supremes like to get for the limelight. Omaha.comProsecutors can breathe easier: A Douglas County judge refused Thursday to throw out the breath tests against three drunken-driving suspects, ruling that prosecutors don't have to turn over the computer codes that make the breath-test devices tick. Judge Stephen Swartz's decision preserves the breath tests and the drunken-driving cases against the three men. More important, City Prosecutor Marty Conboy said, it reinforces police officers' use of the devices in arresting people they suspect of driving drunk. "It means business as usual," Conboy said. A decision to toss the breath-test results could have thrown the courts into chaos - and hundreds of drunken-driving cases into a year or more of legal limbo. Prosecutors rely on the breath tests as their primary evidence against 5,000 drunken drivers a year in Douglas County and about 14,000 in the state. The tests came into question last month when Omaha defense attorney Steve Lefler, following a Florida trend, requested access to the breath-test device's source codes, saying he needed them to ensure the machines' accuracy. A few judges in Florida have thrown out hundreds of breath tests after prosecutors there refused to turn over the source codes. Judge Swartz agreed, ruling that, under state and federal law, he couldn't order prosecutors to turn over information they don't have. a training specialist with the Department of Motor Vehicles, noted that there never has been any evidence - studies, reviews, trends - to suggest that the machines are skewing results. In fact, Koperski said, it's quite the opposite: Agencies test the machines either weekly or monthly and are required to record the results. If the machine is slightly off, it is taken out of service and repaired. Further, the state tests the machines every six months by sending agencies a solution with an alcoholic content known only by the state. If the machine misses that mark, it must be repaired.
Neb App upholds loss of earning power award even though court's award took account of completed vocational rehabilitation plan that followed worker's MMI date and reduced worker's earning power loss from 40% to 30%, distinguishing NESCT case Gibson v. Kurt Mfr. [255 Neb. 255, 583 N.W.2d 767 (1998) Grandt v. Douglas County, 14 Neb. App. 219 November 15, 2005. No. A-05-114.
Nep App: Daubert standards for expert testimony do not apply in parental rights termination cases; admission of expert testimony subject to due process standard In re Interest of Kindra S., 14 Neb. App. 202 November 15, 2005. No. A-04-1443. NebApp rules that standard rules of evidence donot apply in parental rights termination case; Mother objected to psychological testimony regarding her fitness as a parent and her efforts to rehabilitate herselft. Court holds that Daubert standards will not apply in parental rights terminationcases. While a party in any proceeding has a due process right to present and challenge evidence, NEbApp finds the mother had adequate opportunity to be heard and to challenge the testimony. In re Interest of Rebecka P., 266 Neb. 869, 669 N.W.2d 658 (2003). Mother's attorney who wanted to exclude dr's deposition failed to object to offering the testimony, although he filed a motion in limine and stated objections during the deposition, he did not object at trial. On the other hand mother offered a handwritten note from a treatment center counselor inher favor but the court excluded it as cumulative.

Wednesday, November 16, 2005

Survivors of State Patrolman who committed suicide 3 years ago after learning that he had stopped and then inadvertently allowed the Norfolk bank robbers to go free argue to the Nebraska Court of Appeals that the suicide was the result of a compensable "occupational disease" under the Nebraska Worker Compensation law; is this what they mean by "hard cases=bad law?" The survivors of a Nebraska State trooper who killed himself deserve state worker compensation benefits because his death was prompted by a job-related "occupational disease," an attorney told the Nebraska Court of Appeals on Tuesday. Nebraska State Patrol trooper Mark Zach, shown in an August 2002 photo, committed suicide on Sept. 27, 2002, just outside of Norfolk, Neb. Trooper Mark Zach shot himself a day after five people were killed inside a U.S. Bank branch in Norfolk in 2002. He died with the apparent belief that he could have prevented the slayings. Two weeks before the bank shootings, Zach had stopped a car that held two of the men who later committed the bank slayings. Due to a miscommunication in checking the serial number on a stolen gun found with one of the men, no one was arrested for possession of a stolen weapon. Zach, 35, learned of the mistake just prior to taking his own life. He left seven surviving children, a wife and an ex-wife. His survivors' request for state workers' compensation benefits was initially rejected by a State Workers' Compensation Court judge, but that ruling was reversed by a three-judge panel from that court. On Tuesday, the State Court of Appeals, sitting in Omaha, heard oral arguments. Terry Anderson, who represented the Zach family, said a key issue in the case is whether mental stress alone is sufficient to qualify for coverage. The Nebraska Attorney General's Office, which represented the state, argued that evidence of a physical injury prior to a suicide must be shown to obtain workers' compensation coverage. Zach failed to show such a physical injury, the state argued. The state also argued, in a brief, that stress is common in a wide array of occupations, and not unique to law enforcement. Anderson said that if a trial on the issues is ordered, he has several medical experts who will testify that Zach's brain underwent a physical change due to the stress caused by learning about the mistake. Anderson, who is a law professor at Creighton University, said he also is arguing that the extreme stress experienced by Zach caused an "occupational disease" that led to the suicide. Several other states, the attorney said, recognize such diseases in allowing worker benefits. The State Appeals Court can either order a trial on the issues in the Workers Compensation Court, or dismiss the case. Either order could be appealed to the Nebraska Supreme Court.
Class I's win injunction from District Judge Merritt, staying enforcement of the LB 126 forced school consolidation law, even though petition backers did not have enough signatures to win an automatic suspension of the law's taking effect Associated Press A state law requiring all elementary-only schools to merge with larger districts was put on hold by Lancaster County District Judge Paul Merritt Monday, keeping alive hopes that voters next year will overturn the the consolidation law. Even if voters don't repeal the law, at the very least the Legislature will have to rewrite it to set new deadlines, said Sen. Ron Raikes of Lincoln, the chief backer of the law. "I'm just very disappointed," Raikes said. If the schools are dissolved as current law requires in June 2006, "a fair opportunity to vote in a meaningful manner will not be available," Lancaster County District Judge Paul Merritt Jr. ruled. Merritt's granting of a temporary injunction means that the law is suspended and the mergers cannot move ahead. Unless his decision is overturned, the schools can remain open at least until voters get a chance in November 2006 to decide whether to throw out the merger law. "There's no doubt in my mind that we'll win at the ballot box," said Mike Nolles, president of Class I's United, a group that supports the elementary-only schools. A petition drive is putting the issue on the ballot, and supporters of the elementary-only, or Class I schools, sought the injunction to have the law suspended in case voters repeal it in the November 2006 election. The law requires the districts to be dissolved in June, 4 1/2 months before the vote. Should the law be allowed to continue, the November vote would then "represent a meaningless exercise in futility," Merritt said in his 10-page ruling. Small-school backers will now seek a permanent injunction and, if granted, that decision could then be appealed to the state Supreme Court. Attorney General Jon Bruning's spokeswoman Regan Anson had no comment on the judge's ruling, but said the office will continue to defend the law in court. Don Stenberg, a candidate for the U.S. Senate and a former three-term state attorney general who represented the small schools, said he was confident Merritt's ruling would stand. "The important central facts are not in dispute," Stenberg said. The ruling was hailed by small-school backers. "There's going to be a lot of Class I parents who sigh a big sigh of relief," Nolles said. The injunction request was brought by 10 schools and three individuals. "Obviously we're happy about the decision but also feel it's fair," said Matt Nessetti with Nebraskans for Local Schools, a group that spearheaded the drive to repeal the law. "Our whole goal initially was to give the people a voice about this." While enough signatures to put the question of repealing the law on the ballot, petition circulators fell about 26,000 short of enough to have automatically suspended the law without legal action. The state attorney general's office argued that because petitioners had the ability to automatically suspend the law but failed to do so, the injunction should not be granted. But the judge agreed with arguments made by Stenberg. He said that because a vote to repeal the law would be meaningless unless the law were suspended, the court would be justified in issuing the injunction. "This decision is a great victory for every Nebraska voter," Stenberg said. "The judge is absolutely right. The constitution guarantees the people a fair opportunity to vote in a meaningful manner." The school consolidation law, passed by the Legislature earlier this year, calls for orders merging the schools to be entered by Dec. 1, with the mergers taking effect June 15, 2006. The school reorganization committee has a two-day meeting planned for next week, during which it was to issue the orders. Department of Education spokeswoman Betty VanDeventer said the judge's ruling and its impact on that meeting were being reviewed Monday. The June merger deadline "impedes and hampers, or renders ineffective, the ability of the people to complete their exercise of the referendum power in a meaningful manner," the judge said in his ruling. This year there are 206 elementary-only schools in Nebraska, many of which are in the most rural parts of the state. Supporters of the schools fought the law, saying they should be able to determine their own fate and not be forced to merge. Law proponents argue that having K-12 districts statewide will save money and provide a more equitable education to all students.

Tuesday, November 15, 2005

DWI cases blowing in the wind; Following some Florida cases, Omaha attorneys are filing discovery motions against the City and County prosecutors to force disclosure of internal software operations of breath analysis devices For more than 25 years, police and prosecutors have relied on breath-test devices to determine whether a driver is drunk. But now, local defense attorneys are following a Florida trend and challenging the machines. They're asking judges to order prosecutors to reveal how the machines operate, including the computer code that makes them tick. This month County Court Judges in Sarasota Florida ordered disclosure of source codes for the Intoxilyzer 5000, order (pdf). If they don't get the information, the attorneys say, they will ask judges to throw out the breath tests - an action that would doom hundreds of drunken-driving prosecutions. The question is: Are the attorneys' requests simply hot air, a weightless attempt to get clients off on a technicality? Or, as defense attorneys ask, are the breath-test devices "mystery machines" that are unworthy of the weight they have been given in court? Both sides have squared off in a courthouse battle that has DWI attorneys salivating, prosecutors scrambling and judges pondering how they will rule. Following the lead of Omaha attorney Steve Lefler, several attorneys have asked, or will ask, judges to order prosecutors to turn over the breath-test devices' source code - a computer program that basically tells the machine how to operate. So far, two judges have ordered prosecutors to do so - or explain why they can't. But prosecutors have said they won't turn it over, in part because they don't have it. The source code, they say, is proprietary to the machine's maker. The issue is expected to come to a head Thursday, when Lefler will ask Douglas County Judge Stephen Swartz to throw out breath-test results in two cases. But both sides believe the issue will go to a high court because of the high stakes: Nearly 14,000 Nebraska drivers - about 5,000 in Douglas County alone - were arrested for driving while intoxicated in 2004. The vast majority were arrested after a breath test. "This machine has been treated as if it's the machine behind the Wizard of Oz's curtains," Lefler said. "We ought to be able to ensure that it's accurate." But Omaha City Prosecutor Marty Conboy said the state already has ensured the machines' accuracy. Under state law, the Nebraska Health and Human Services System is charged with licensing and regulating the machines. HHS holds public hearings on the devices and routinely tests them using a solution with a known alcoholic content. Any machine that doesn't measure the alcohol within a narrow range must be repaired. Now, Conboy said, Lefler and other attorneys want judges to play the role of scientists - and determine the reliability of a machine that is thoroughly tested and nationally accepted. Not only is that imprudent, Conboy said, it's impractical. Conboy said he would have to spend thousands of taxpayer dollars to bring in an expert to vouch for the machines. "You get a judge to make this kind of a decision, it's like lighting gasoline on fire," he said. The gasoline - or, perhaps, the alcohol - is ablaze in a few Florida counties. In one, judges have thrown out more than 700 cases because prosecutors didn't turn over the source code. An appellate court in another county held that: "An instrument or machine that, if believed, establishes the guilt of an accused subjecting them to fines, loss of driving privileges and loss of freedom should be made available to the defense for open inspection." See Florida v. Bjorklund, etal, Sarasota County Criminal Division 11-2-05. Lefler said he brought the issue to Nebraska after reading about those challenges - and contacting Florida attorneys. "I've kicked myself in the butt several times," said Lefler, who has represented dozens of drunken drivers in his 28 years as a lawyer. "You just wonder, 'Why didn't I think of this before?'" Others are just glad Lefler read about it. Attorneys James Schaefer and Glenn Shapiro said they are in line to file "Lefler motions" on 30 cases. "If those machines have real problems and (the maker) has been hiding it from us," Shapiro said, "then it's our duty to blow the whistle on this." Conboy said prosecutors have given defense attorneys owners' manuals and repair records for the machines. He dismissed efforts to obtain the source codes as "lawyering by blog." Many other Florida judges, he noted, have refused to compel prosecutors to disclose the source codes. In his career, Conboy said he has overseen the prosecution of more than 100,000 drunken drivers using breath tests. The tests, he said, were buttressed by an officer's observation of the motorist's erratic driving. "I have confidence that in every single one of those cases, the person was guilty," he said. Lefler doesn't have similar confidence - especially, he said, if he can't see the machine's makeup. The machines employ a decades-old process called infrared spectrophotometry to measure someone's breath for alcoholic content. Lefler compared the devices to a personal computer - one that he can count on to have glitches. But Conboy said they are as simple as a bathroom scale. Just how will judges weigh in on the issue? Whatever they decide, Lefler said, he would like the county's 12 judges to rule uniformly. "How do you say to someone, 'You had the bad luck of getting a judge who feels that the source code doesn't have to be turned over,'" he said. "Meanwhile, his buddy is acquitted because another judge ruled that the state cannot use the breath-test results." A consensus appears far from likely. After two judges ordered prosecutors to turn over the source code - or explain why they couldn't - a third, Judge Lyn White, peppered Lefler with questions about why she should. She has yet to rule. "You can always find a judge somewhere who will make a radical ruling," Conboy said. "But it isn't the way you review science."
So much for the idea of having cameras handle traffic cop duties; Pennsylvania and New Jersey have been mistakenly ticketing Nebraska motorists for toll violations even though many have not been near there Journal A mix-up involving license plate numbers has Nebraskans erroneously getting tickets for traffic violations in New Jersey and Pennsylvania, among other states. For the past 18 months, about 20 to 30 tickets from other states have been issued each week to Nebraskans for skipping tolls and other violations, said Beverly Neth, director of the Nebraska Department of Motor Vehicles. The problem is that the Nebraskans were not in the other states, Neth said. "It's just a mix-up, plain and simple," Neth said. The problem is how Nebraska issues numbers. The state's numbering system allows for sequences to be repeated in both commercial and personal vehicles. In fact, up to 13 different vehicles, which could be farm trucks, commercial pickups or standard automobiles, could have the same sequence of numbers, Neth said. Neth said in most cases the culprit appears to be a tractor-trailer from Nebraska, which is supposed to be allowed through the tolls without stopping. But it still has its picture taken by a camera at the booth. The problem, Neth said, is that some private companies hired to track toll skippers had Nebraska's standard automobile registration information but they did not purchase the state's commercial vehicle information. What it adds up to is regular Nebraska motorists getting tickets for about $30 for not paying tolls, Neth said. Neth said the problem only affects Nebraskans from counties that are still designated with a number on their license plates, which would be any county except for Douglas, Lancaster and Sarpy. Starting in September, Mildred and Gene Stava of Hay Springs, which is 335 miles northwest of Lincoln, received more than 20 tickets from the New Jersey Turnpike Authority. On some of the tickets was a picture of a Nebraska license plate with the number 61380. Mildred Stava said the vehicle pictured was obviously a tractor-trailer. The license plate number on the Stava's 1994 Ford pickup is 61-380. "We haven't been on the New Jersey Turnpike in 40 years," Stava said. "I don't think I want to go back." After several weeks of talking to turnpike officials, the tickets have stopped coming, Stava said. The New Jersey Turnpike Authority also sent the Stavas a letter of apology. But getting the tickets at all was disconcerting, she said. "I became more and more angry because it couldn't get resolved," said Stava, 75. "I began to feel like we were being harassed." A call to the New Jersey Turnpike Authority was not immediately returned Monday. While there still may be some tickets getting issued erroneously, Pennsylvania's problem with Nebraska plates was worse a couple of years ago, said Ed Capone, communications director with the Pennsylvania Turnpike Authority. Nebraska's policy of having more than one set of plates with the same number sequence took some getting used to for Pennsylvania officials, but Capone said, most of the kinks have been worked out. The problem in New Jersey should decrease because the companies that look for toll violations now have access to Nebraska's entire vehicle registration database, Neth said. Also, New Jersey recently started letting the Nebraska DMV review citation information before notices are sent, Neth said. Neth said Nebraskans who believe they are being ticketed erroneously should contact the DMV. Simply ignoring the tickets could be dangerous, Neth said, because if they go unresolved they could damage a driver's record and even result in revocations. "It's never really good to ignore a ticket of any kind," Neth said.
Yet another lawsuit that the Omaha Public School District is threatening (or blackmailing?); could they spend any of that money going to lawyers on education? Journal The Omaha Public School District is threatening the Legislature with a discrimination suit this time if it does not get what it wants from the Unicameral, this time the forced merger of suburban school districts with the Omaha Public Schools. Dont know how a discrimination suit is going to work, first since the US Supreme Court held that the government could not order district wide desegregation when it had not proven intentional systemwide discrimination. SCHOOL DISTRICT OF OMAHA v. UNITED STATES, 433 U.S. 667 (1977) 433 U.S. 667. The Douglas County Attorney had already rejected OPS contention that State law required "one city-one school district" for Metropolitan Class Cities and their school districts. Plus at least for Ralston and Millard Schools how could OPS attribute their existence to purposeful discrimination when they were once independent communities while Omaha suburbs did not go out that far? The Omaha Public School District said if the Legislature doesn't support its bid to take over several area schools, the district would consider filing a discrimination suit against the state. District Superintendent John Mackiel said he is hoping the Legislature will act on the issue according to the district's plan in the coming session. But if lawmakers decide not to approve OPS' plan to move into the suburbs, that would constitute government-imposed segregation, OPS says. If that happens, the district should find out why it was treated differently, Mackiel said. "If we don't come together in one unified school district in the city of Omaha, that will stick out like a sore thumb from a civil rights perspective," said David Pedersen, attorney for OPS. The suit may happen and the district thinks it could win, Mackiel said in response to a question in a recent Omaha teachers union newsletter. "It may yet happen and it will come from this direction: Do we believe we could use the judicial system? Yes. Do we believe we would prevail? Yes," Mackiel wrote. "But, the Legislature has the authority to manage this and it is better for the OPS board to take this position prior to the legislative session." The Board of Education would have to decide whether to file a discrimination lawsuit, Mackiel said, though he and Pedersen said other groups might consider filing suits too. In June, OPS announced its "one city, one school district" plan, under which it would take over 21 Millard schools and four Ralston schools. The district says the plan is mandated by state law. Westside Community Schools, Elkhorn and Bennington Schools have joined with Millard and Ralston in protest. The approved plan would mean Millard could lose half of its district. It said in a statement that OPS' claim about government-imposed segregation is based on a false premise because "one city, one school district" is not the law in Omaha. The district said other large cities throughout the country have multiple school districts. "The Nebraska Legislature should adopt the model it believes would best serve the educational interests of Nebraska's children," the statement said, "and not be swayed by personal attacks and labels of racism by OPS and its superintendent." The Legislature could craft a solution that differs from OPS' plan and is not discriminatory, said State Sen. Ron Raikes of Lincoln, chairman of the Education Committee. Raikes said he doubted that the OPS plan accomplishes Omaha's goals, because the district would keep the same number of high-needs students and the total number of school districts wouldn't change. Raikes said he does not see district boundaries changing for the time being, but the suburban districts need to accept substantial changes. "It seems to me that there is not one solution," Raikes said. OPS would be open to considering other proposals, such as having a countywide or Douglas-Sarpy County district, Pedersen said. But the suburban districts' proposal for stable boundaries and interdistrict student transfers is unacceptable, he said. OPS, with the state's highest proportion of minority and poor students, is concerned that it could be prevented from expanding as other districts do, Pedersen said. The district is also concerned about the state's option enrollment law, which allows students to choose to attend other districts. Mackiel said the law promotes segregation by giving white students a way to leave the district. Discrimination cases are harder to prove now than they were a quarter-century ago, said Michael Fenner, a constitutional law professor at Creighton University. If government-sponsored segregation exists, it is much more subtle, he said. "The whole issue is a bit more nuanced these days," Fenner said. "The results aren't so clear."

Monday, November 14, 2005

State of Nebraska claims immunity from suit against it for overall mismanagement of foster care system The State of Nebraska has answered claims that it harms the children in its foster care system by saying the state is protected against such lawsuits. Attorneys for the state asked the U.S. District Court on Thursday to dismiss a lawsuit filed in September that is seeking an overhaul of Nebraska's child welfare system. Milo Mumgaard, one of the attorneys who brought the lawsuit, called the state's response "not unexpected." He said other states have used many of the same defense in response to similar child welfare lawsuits. Such legal defenses mean the two sides will spend time and money disputing legal issues, rather than getting to the merits of the case or talking about possible settlements, he said. "It doesn't have to be that way," Mumgaard said. "We hope we can start negotiating sooner rather than later." Mumgaard is executive director of the Nebraska Appleseed Center for Law in the Public Interest, which filed the lawsuit jointly with Children's Rights, a child welfare group based in New York City (Things are bad; This advocacy organization had 16 suits pending against jurisdictions across the country). New York advocacy organization has its complaint here, pdf. Five foster children were named as plaintiffs in the Nebraska suit. Gov. Dave Heineman and five top officials of the Nebraska Health and Human Services System are named as defendants. The suit alleges that Nebraska deprives foster children of the chance for a safe, stable childhood. It also claims the state fails to protect foster children and provide them with basic care and services. In its response, the state denies virtually all of the claims made in the lawsuit. The state argues that the plaintiffs lack standing, the court lacks jurisdiction and the case cannot be pursued as a class action. It also argues that the U.S. and Nebraska Constitutions protect the state from the kinds of claims made in the suit. 2 years ago the State lost an 11th amendment defense to a suit against it claiming the foster care administrators discriminated against a child who was HIV positive. Doe et al v State of Nebraska, 8th Circuit 02-2014NE The response was filed on behalf of the state by attorneys from the Lincoln law firm of Harding Schultz and Downs. Attorney General Jon Bruning declined to comment on Thursday's filing, according to his spokeswoman, Regan Anson. A Health and Human Services spokeswoman has declined to comment on pending litigation. However, she said the state has made progress in many areas of an improvement program in which the goals are safety, permanence and well-being for children. Nebraska's child welfare system has been under intense scrutiny since reports of nearly 30 children dying from abuse and neglect prompted then-Gov. Mike Johanns to convene a special task force in 2003.
Users of Republican River water in Nebraska have overused their allocation under multistate compact of 1943 and Kansas' recent settlement of suit against Nebraska; irrigators face possible irrigation shut off Omaha.Com ALMA, Neb. - Anger, exasperation and fear in Nelson Trambly's voice exposed the anxiety rising across the Republican River like a spring gully washer. "The people here have agreed to nothing. We're doing our part," he declared, defying the notion of lowering water allocations to south-central Nebraska irrigators to help Nebraska comply with a Republican River water compact with Colorado and Kansas."Give us total power over groundwater. It's our only hope," Trambly said. "The pain will be deep here. . . . We shouldn't be holding the sack for the whole state." Trambly, a Campbell, Neb., farmer, was the chairman at a meeting last week of the Lower Republican Natural Resources District. Seated across the room with a few farmers and others was Trambly's primary audience: State Sen. Ed Schrock of Elm Creek, co-chairman of the Governor's Water Policy Task Force and an architect of Nebraska's new water law.Trambly's impassioned appeals came a day after The World-Herald reported the state's first public acknowledgment of projections that it overused its 2005 allocation of Republican River water.The state must comply with an agreement to give Kansas its full share of water by the end of 2006 or face possible penalties - shutting down irrigation wells or paying millions of dollars in damages. Schrock had no definite answers for Trambly but said he was confident that the Legislature and governor would offer financial and political help. Nebraska Department of Natural Resources officials plan to meet Thursday with basin NRD managers and others in Holdrege to discuss possible resolutions. Ann Bleed, the department's acting director, said all options would be considered. That includes short-term solutions, such as restricting irrigation or buying water held in reservoirs to release to Kansas, to try to reach compliance. The 1943 river compact allocates 49 percent of the river's water to Nebraska, 40 percent to Kansas and 11 percent to Colorado. Kansas sued in 1998, claiming that Nebraska was using more than its share. An out-of-court settlement in 2002 upheld the compact, but Nebraska was required to account for stream-flow depletions caused by groundwater wells. Final settlement document the States sent to the US Supreme court is in pdf. There are 13,100 registered irrigation wells in the Nebraska stretch of the basin. Farmers in the area added at least 792 wells and more than 100,000 irrigated acres since Kansas sued. The biggest spike in wells came in 2002, the worst summer of the drought and the year that farmers were aware of pending moratoriums on well-drilling as state water officials warned basin farmers of the need to stop expanding their irrigated land. Bleed said she understands the frustration being vented across the region. "I know that irrigators have worked very hard across the basin to cut back on their use of water," she said. Steve Smith of Imperial, Neb., founder of WaterClaim, an aquifer irrigators advocacy group, said he hopes that state officials release all relevant information on projected stream flows and depletions caused by irrigation. "If I'm Ed Schrock, how do I make reasonable policy when I've been given bad information?" Smith asked. Smith said he is concerned that if Nebraska remains out of compliance next year, the federal courts will take control of managing the basin's water from local and state regulators. "That would be painful," he said. Don Adams, executive director of the Lincoln-based Nebraskans First irrigation advocates, said that if Nebraska imposes more restrictions on irrigators, it is evidence that the state's compact lawsuit negotiators "got beat by their Kansas counterparts about as bad as the Kansas football team beat Nebraska" a week ago. Adams said if the state requires farmers to retire irrigated land to comply with the compact, then the Legislature must fairly compensate them for lost income and devalued property. "Irrigators trusted the State Department of Natural Resources," Adams said, "and over the decades invested millions of dollars in wells, pumps and center-pivots to enhance their productivity." The issue is causing consternation in the neighboring natural resources districts. "The basic problem is that there may not be any effective way to remedy the situation," said Dan Smith, manager of the Middle Republican NRD. "If increased regulations do no good, why do it?" Jasper Fanning, manager of the Upper Republican NRD, said his irrigators used less than their 13.5-inch per acre allocation this year. "The producers here have lived up to what was asked of them," he said. "But it's a hot potato at Lincoln (in state government). Nobody wants to touch it and seriously address the issue." The Middle Republican board reviewed a number of alternatives last week and found none practical. The toughest hurdle was how to pay for a solution. The three NRDs in the basin have such a limited tax base that their collective taxing ability would collect a total of less than $500,000. "We would need millions of dollars," Dan Smith said. Options considered by the Middle Republican NRD board include: lowering irrigators' allocations from the average annual 13-inch per acre allowance, transferring water from the Platte River basin and buying river water from surface-water irrigators. An off-the-wall option is pumping water into the river from groundwater wells. None is a viable short-term solution, he said. Middle Republican irrigators, according to preliminary reports, used slightly more than 9 inches of water on average this year, down from 14.4 inches last year. Reducing allocations won't squeeze out enough water fast enough to trickle into the river. Using water from the Platte basin - proposed by WaterClaim - would require willing sellers and cost millions, he said. "Nobody's going to give it to you," Smith said. Buying surface water and letting it flow to Kansas is flawed: with surface-water reservoirs and canals left virtually dry by the drought, any water released into the river from far upstream would soak into the ground before it crossed the state line, he said. Trambly at the Lower Republican NRD was pessimistic. "Everybody knows the problem," he said, "but nobody knows the answer."
8th Circuit's in Hollywood; Jenson et al v. Eveleth Taconite No. 97-1147 1997 was the real life case that inspired "North Country.; however back to reality 8th Circ also decided case involving the bad guys' Chapter 11 Heroic story of female mine workers taking on the unyielding and uncaring mining company made it to the 8th Circuit Court of Appeals, which upheld the MInnesota District Court's finding a class action could proceed against the mine. The district court had appointed a special master who "just didnt get it" to Judge Lay's liking, who reversed the special master becaus he should have ordered more damages for emotional distress and find a larger class period because isolated incidents could qualify for continuing violations. Also Judge Lay disliked the defendants' use of "irrelevant" outside factors in considering the plaintiffs' damages. Daubert technicalities should not have stood in the way, as Judge Lay thought the psychological experts should be able to testify for the plaintiffs overruling any Daubert applications. Eventually the bad mine got its comeback, it ended up in Chapter 11 and the 8th Circuit bankruptcy review panel held that it would abstain from State tax dispute proceedings. In re Eveleth Mines No. 04-6045/04-6048 MN; Fine point Volokh pointed out; scene in film shows Anita Hill-Clarence Thomas Hearings on TV, the lawsuit started 6 years before the Thomas confirmation hearing. Nutshell quote from Judge Lay"we find that by whatever synergistic reasoning utilized, the Special Master did not apply proper principles of causation to plaintiffs’ claims ofemotional harm. We believe the Special Master’s erroneous approach played a significant and unfortunate role in limiting plaintiffs’ damages. Moreover, as we nowdiscuss, we find the court unduly limited the testimony and opinion evidence of" Judge Lay save much scorn for the bar, chastising them for dragging out the case, aggravating a bad situation as he saw it with short staffed courts: Responsibility also lies with the bar whose members are officers of the court. The lawyers in this case delayed its resolution by exercising senseless and irrelevant discovery, and by making endless objections at trial. But “the buck stops here;” thejudicial system allowed the lawyers to do what they did. If our goal is to persuade the American people to utilize our courts as little as possible, we have furthered that objectivein this case. If justice be our quest, citizens must receive better treatment. The judiciarymust somehow afford more efficacious monitoring of delayed cases.

Friday, November 11, 2005

First published decision under Chief Justice Roberts, unanimous Scotus rules that time Tyson meat packing workers take to walk to their work stations after putting on uniforms and safety equipment will count against the 40 hour workweek of the Fair Labor Standards Act, however waiting for uniforms while in the locker room will not count IBP, INC. V. ALVAREZ (03-1238) The issue for the Tyson case and its companion case Barber v Tum Foods was whether the time employees spend walking between the changing area and the production area is compensable under the FLSA. The second question, which is presented only in No. 04—66 (Barber v Tum Foods), is whether the time employees spend waiting to put on the protective gear is compensable under the statute. . Scotus Justice Stevens holds as to time between putting on equipment until reaching workstations counts as work time because any activity that is “integral and indispensable” to a “principal activity” is itself a “principal activity” under §4(a) of the Portal-to-Portal Act. Moreover, during a continuous workday, any walking time that occurs after the beginning of the employee’s first principal activity and before the end of the employee’s last principal activity is excluded from the scope of that provision, and as a result is covered by the FLSA ..However as to waiting in line to get equipment to put on, time will not count: "The time spent waiting to don–time that elapses before the principal activity of donning integral and indispensable gear–presents the quite different question whether it should have the effect of advancing the time when the workday begins...unlike the donning of certain types of protective gear, which is always essential if the worker is to do his job, the waiting may or may not be necessary in particular situations or for every employee. It is certainly not “integral and indispensable” in the same sense that the donning is. It does, however, always comfortably qualify as a “preliminary” activity. Because Congress with the "portal to portal" act amendment to FLSA had emphatically stated walking time would not count {legislatively overruling Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 1946,}, the Supreme court will not consider the preliminary waiting time to put on uniforms
IRS allows limited deduction for out of pocket medical expenses, however the out-of-pocket is quite high before the deduction kicks in (7.5% of Adjusted Gross Income); if you properly document however, mileage to medical visits also may count The Washington TimesThe Internal Revenue Service severely limits tax relief for medical expenses. To begin with, these expenditures are deductible only if you forego the standard deduction and itemize on Schedule A of Form 1040. See IRS Publication 502.Another requirement for any write-off is that your payments are for bills that are not covered by insurance, reimbursed by your employer or otherwise satisfied. The big hurdle is that the expenses must be sizable. Payments are allowable only to the extent that their total in any one year exceeds 7.5 percent of AGI, short for adjusted gross income. AGI is the amount listed after all reportable income is offset by certain deductions like alimony payments and money moved into retirement plans, but before taking the standard deduction or itemizing for expenditures like real estate taxes and charitable contributions. So an AGI of $100,000 means no deduction for the first $7,500 of medical expenses. Assuming you incur costs that surpass the 7.5 percent threshold, an often-overlooked outlay begins as soon as you leave home. Your deductibles include travel for medical reasons to and from doctors, clinics, hospitals and the like. When you travel to and from your treatments by plane, train, bus or taxi, just make sure to keep track of your fares and claim them as medical expenses. If you use your own auto, you have two options on handling the expenses. Either claim actual costs of gas and oil (but not depreciation on your vehicle) or use a standard mileage rate, with a separate deduction for parking fees and bridge or highway tolls. The standard rate is 15 cents a mile for the first eight months of tax year 2005, up from 14 cents a mile for tax year 2004. In recognition of the spike in gas prices caused by Hurricane Katrina, the IRS announced a September increase in the standard rate to 22 cents a mile for the final four months of 2005. If your medical mileage tends to be small, you probably prefer the standard rate for convenience. An example: To obtain medical care during 2005, you drive 800 miles during the first eight months and 400 miles during the final four months and pay $50 for parking charges and bridge tolls. Your allowable deduction: $258 (800 miles times 15 cents equals $120 and 400 miles times 22 cents equals $88, plus $50 parking). It is advisable, in the event the IRS questions your medical travel, to be able to substantiate your deductions with a glove compartment diary in which you note why and how far you went, as well as what you spent on parking. There is no requirement that you use the same car each time. If you rent an auto and drive it just for medical travel, include the entire rental charge with your other medical expenses. Drive within the speed limit. The IRS refuses to go along with a medical deduction for a traffic ticket, even if you were rushing your pregnant wife to the hospital.
Bankruptcy Reform legislation, effective last month requires that debtors obtain credit counseling before filing bankruptcy and in some circumstances before completing repayment plans; The US Trustee currently has approved only one agency in Nebraska to provide these services Another bankruptcy circus may be coming to town. Nebraska and Iowa reported a record number of bankruptcy filings in the days before a new, stricter federal law took effect Oct. 17. Now credit counseling firms are bracing for a similar rush on their offices. Credit counselors hold the new hoop that debtors must jump through before filing bankruptcy papers: mandatory credit counseling sessions. The problem - at least for now - is that few approved credit counselors operate in the Midlands. The Department of Justice's Trustee Program approves the firms that can do credit counseling. The department has approved about 80 agencies nationwide so far, and about 200 more have submitted requests for approval. However, Nebraska and Iowa each have only one firm that fulfills the requirement. The Nebraska counseling firm is in Omaha. The Iowa firm is in Waterloo. Other firms can provide counseling services over the phone or the Internet, but they are based in places like California, Georgia and Texas. "Everybody should have an in-person option," said Travis Plunkett, legislative director of the Consumer Federation of America in Washington, D.C. "The concern we have is that people will not have a choice. Vast swaths of the country are being served by national telephone agencies." Some credit counselors have checkered records, preying on vulnerable debtors and charging excessive fees, Plunkett said. The Department of Justice has done a good job of winnowing out those operators that might abuse the system, he said, which is probably why there are so few approved counselors. The Department of Justice requires that all counseling companies be in good standing with the community, charge "reasonable" fees and maintain nonprofit status. The firms also must have been in business for at least two years. The requirements prevent fly-by-night operators from taking advantage of the system, but they also mean certified counselors and startup companies will not be able to meet rising demand. New federal requirements for credit counseling so far have not caused problems or bottlenecks, but that's probably because of a sharp drop in filings following last month's unprecedented rush. Since Oct. 17, the Nebraska bankruptcy court has handled about 20 new filings. By contrast, the Nebraska Bankruptcy Court handled 3,553 chapter 7 and chapter 13 bankruptcies last month, almost all of which were submitted during the first two weeks of October. Diane Zech, clerk of the Nebraska Bankruptcy Court, anticipates a lull as the courts gradually process last month's backlog. "Some of the attorneys had to turn clients away," she said. "We still have a lot of aftermath to deal with." In the meantime, Nebraska's only locally approved counselor, Consumer Credit Counseling Service of Nebraska Inc., plans to bring on more help to meet what will surely be growing demand, said Betsy Downey, director of education. "We'll have to expand our (work force)," Downey said. "It's a lot better to do (counseling) face to face, and that's what we're aiming for." In the counseling sessions, a counselor will analyze debtors' finances and outline alternatives to filing for bankruptcy protection, such as negotiating a new repayment schedule. "Most people have very hazy ideas at best about what bankruptcy will do and what it won't do," Downey said. For example, she said, many people are unaware that some debts, such as student loans, may not be discharged in bankruptcy except under extraordinary circumstances. Also, few know that bankruptcy will affect their credit rating for at least seven years. Nathalie Martin, resident scholar at the American Bankruptcy Institute, said that while counseling sessions prior to bankruptcy probably will be "perfunctory," financial management courses required after bankruptcy will require more interaction to be useful. "My fear is that if we don't get more approved agencies out there," Martin said, "there's going to be difficulty providing those services." Sam Hohman, chief executive officer of Omaha's Credit Advisors Foundation, said her firm has yet to gain approval to do bankruptcy counseling, although it hopes to begin offering such services soon. She said long-distance counseling can be hard for debtors to access, especially if they have no credit cards and their bank accounts are closed. "Trying to pay for that service becomes nearly impossible," she said. "With only one local approved counselor, it's not enough."