Initiative 300 could well provide a workable plan, independently enforceable, if the 26 words at issue were stricken. Corporations and syndicates would be prohibited from engaging in farming or ranching in Nebraska, with exceptions made for family-farm corporations and limited partnerships. Initiative 300 has no severance clause, however, and I cannot conclude that the residency or day-to-day-labor-and-management provisions in the family-farm exemptions were not an inducement to the passage of Initiative 300. To the contrary, based on the record before the Court, it appears that those provisions were an inducement to the passage of Initiative 300 and that it would do violence to the intent of the voters to sever those provisions. Because the unconstitutional portions are intertwined with the valid portions, Initiative 300 must be declared unconstitutional in its entirety.
Friday, December 30, 2005
Thursday, December 29, 2005
Wednesday, December 28, 2005
In Lambertus v. Buckley, 206 Neb. 440, 293 N.W.2d 110 (1980), the Nebraska Supreme Court affirmed the trial court's refusal to admit jurors' affidavits stating that they had misunderstood and misapplied the court's quotient verdict instruction. The court in Lambertus explained that the jurors' understanding of the quotient verdict instruction and details regarding the calculation of damages inhered in the verdict and did not constitute extraneous, prejudicial information.
Tuesday, December 27, 2005
"The court of appeals (cf Kaiman v. Mercy Midlands) has previously interpreted § 48-108 as limiting the compensation court's regulation and disbursements matters to those which arise between the injured worker and the attorney representing the injured worker. "Moreover) § 48-162.03(1) (Reissue 2004) allows only parties to worker compensation cases motion practice there.
the compensation court did not have jurisdiction to determine the dispute between the Rehm law firm and Shasteen over the division of the attorney fee awarded to Wells in his claim before the compensation court. Nebraska case law interprets § 48-108 as limiting the compensation court's regulation and disbursements matters to those which arise between the injured worker and the attorney representing the injured worker. The dispute in the present case arose not between Wells and Shasteen, but between the Rehm law firm and Shasteen. Further, § 48-162.03(1) grants the compensation court the authority to hear motions brought only by parties to a suit or proceeding before the court. The Rehm law firm is not a party to a proceeding before the compensation court, Accordingly, this court lacks jurisdiction to consider the merits of the present appeal and cross-appeal and must dismiss both the appeal and the cross-appeal.
Sunday, December 25, 2005
House Speaker Bruce Newcomb was happy the courts left the decision-making to the Legislature. lawmakers may first look to proposals they've passed, but never completely funded, like a plan to help districts pay some of the interest costs on their bonds. Robert Huntley, attorney for the districts who sued the state over schoolhouse funding, thinks the Legislature should pay for 30 percent of school bonds passed by voters and half the tab for maintaining school buildings. The annual price tag under Huntley's plan: $33 million to $38 million.The Supreme court found 4-1 that funding reforms from 2001 were inadequate. Idaho is the only state that provides no direct support for public school construction and still requires a two-thirds majority to approve local construction bonds. But Idaho is not the only state whose plan for funding school construction has run afoul of the courts. In the 1990s, courts ruled against the way Arizona, Wyoming and Ohio pay for school buildings, saying their systems were not equitable. Gov. Dirk Kempthorne tried in his first year in office to lower the supermajority to just 60 percent, but the Legislature wouldn't agree to the change. Many current lawmakers, though, weren't around the last time this issue was hashed out in the Statehouse. "A lot of people really haven't dealt with this," said House Democrat leader Wendy Jaquet, who was happy with the verdict that reiterated what her party has been saying for years. Idaho's lawsuit began in 1990, when a group of 22 school districts calling itself Idaho Schools for Equal Educational Opportunity banded together to sue the state over public school funding. The class-action lawsuit has bounced from court to court over 15 years, even making it to the Idaho Supreme Court. In 2001, 4th District Judge Deborah Bail ruled the state's levy system was unconstitutional, prompting the state to bring a bevy of issues on appeal to the Supreme Court. Still, the Supreme Court ruled only that there was a problem and left the method of fixing to the Legislature. Huntley said the ruling was a positive step for schoolchildren and their families.
Saturday, December 24, 2005
Nebraska will be virgin territory. “They will come to the counties where zoning lets them in,” Aiken said. “And so the battlefield will shift. In fact I think it already has shifted. It will shift from Initiative 300 to county zoning.”Only Morrill County is designated "livestock friendly" Now however most counties andthe state has not been livestockfriendly, for example The number of hogs in Nebraska has dropped to its lowest level since 1975.
it is clear that the appointment of DHHS as guardian is intended as a temporary arrangement which, insofar as possible, will be replaced by a permanent resolution, such as returning the child to his or her biological parent(s), termination of parental rights and adoption, or a new guardianship... the acknowledged permanency goal was for the foster parents to become the guardians of Priscilla and Antonio. Generally, custody of a minor ward is an incident of guardianship. See 39 Am. Jur. 2d Guardian and Ward §§ 9 and 97 (1999).Although such a guardianship does not achieve a degree of permanency equivalent to parenthood or adoption, it creates greater rights than foster parenthood and "more closely approximates a natural parent-child relationship." In re Interest of Eric O. & Shane O., 9 Neb. App. 676, 693, 617 N.W.2d 824, 836 (2000)...where a guardianship is established under the Nebraska Juvenile Code as a means of providing permanency for adjudicated children who have been in the temporary custody of DHHS, custody is necessarily transferred from DHHS to the appointed guardian(s) by operation of law.
The court awarded a total of $306,866.11 for COBRA statutory penalties and compensatory damages and$109,317.50 in attorneys’ fees and costs. Delcastillo v. Odyssey Resource Mgmt.,Inc., 320 F. Supp. 2d 889, 901 (D. Neb. 2004). The Odyssey defendants appeal. Weconclude that the Delcastillos were covered by the Reliance plan at its inception.Therefore, they may be entitled to recover unreimbursed medical expenses underERISA but are not entitled to recover statutory penalties under COBRA.While the eighth circuit agrees that the new plan is a fiduciary,it findsthat an intial COBRA notice was not required because the Plaintiffs were immediately covered by the new plan. The new plan gave proper termination notices. The Plaintiffs thus lose their verdict for cobra violations, there are none now. The Plaintiffs also lose much of their $300K verdict because the eighth circuit finds that damages are limited to lost medical bills, if the Plaintiffs can recover them. The Plaintiffs pleadings charged a breach of fiduciary duty rather than the cause of action for specific losses of benefits.
ERISA expressly provides a plan participant or beneficiary such as the Delcastillos a cause of action “to recover benefits due to him under the terms of his plan.” 29 U.S.C. § 1132(a)(1)(B). The Delcastillos asserted no claim under § 1132(a)(1)(B). Instead, they sought to recover denied benefits on the theory, as explained in their brief on appeal, that “[b]y failing to provide coverage, Odyssey violated their statutory fiduciary duty.”Therefore the Plaintiffs might have lost their case for specific losses unless on remand the District Court finds that the Defendants waived the defense of 1132a1B:
Therecord on appeal does not reveal whether Odyssey also argued to the district court thatthe Delcastillos may not recover wrongfully denied benefits under a breach of fiduciary duty theory because the remedy under § 1132(a)(1)(B) is exclusive. Thus,there may be an issue whether that defense has been waived. In addition, the districtcourt’s decision did not explain either the nature or the amount of the “specialdamages” being awarded. Accordingly, we remand to the district court for furtherconsideration of whether the Delcastillos are entitled to recover damages equal to theirunreimbursed covered medical expenses during the period from February 1, 1999, toJune 30, 2000. However, we reverse the court’s alternative award of statutorypenalties for “breach of fiduciary duty,” 320 F. Supp. 2d at 901, because “the SupremeCourt has stressed that ERISA does not create compensatory or punitive damageremedies where an administrator of a plan fails to provide the benefits due under thatplan.” Turner v. Fallon Community Health Plan, Inc., 127 F.3d 196, 198 (1st Cir.1997), cert. denied, 523 U.S. 1072 (1998), citing Massachusetts Mut. Life Ins. Co. v.Russell, 473 U.S. 134 (1985).On attorney fees the appeals court reverses the $110K award for redtermination since muchof the $300kverdict isgoing to go away: Applying our decision in Lawrence v. Westerhaus, 749 F.2d 494, 495 (8th Cir. 1984), as modifiedby our en banc decision in Martin v. Arkansas Blue Cross & Blue Shield, 299 F.3d966 (8th Cir. 2002), cert. denied, 537 U.S. 1159 (2003), the district court awardedattorney’s fees and costs in the amount of $109,317.50. We have reversed the court’sdecision on the COBRA notice claims and the bulk of the court’s damage and penalties award, and we have remanded for further consideration of whether the Delcastillos may prevail on their claim for recovery of unreimbursed covered medical expenses. Accordingly, we vacate the attorney’s fee award. On remand, if the Delcastillos prevail on their remaining claim, the district court should redetermine whether to exercise its discretion to award an attorney’s fee, bearing in mind that “[a]reduced fee award is appropriate if the relief, however significant, is limited incomparison to the scope of the litiation as a whole.” Hensley v. Eckerhart, 461 U.S.424, 440 (1983)
Thursday, December 22, 2005
the Nebraska (Ortiz) case highlights the dramatic contradictions that arise when the door is only half open. Most injured employees can collaborate with their doctors and their employers to achieve the mutually satisfying goal of returning to productive employment. The careers of illegal workers, by contrast, come to an abrupt halt as soon as comp claims are filed. Illegal immigrants are confronted with a very difficult choice: trying to prolong their disabilities as their only legitimate source of income, or disappearing into the underground economy.
Wednesday, December 21, 2005
Tuesday, December 20, 2005
(Decedent's divorced wife's) true "dispute" is recognized: whether she should include the $144,000 distribution as taxable income in the eyes of the IRS. The Form 1099 is merely a piece of paper, and its contents do not determine whether the $144,000 amount is includable in Sandra's gross income for federal income tax purposes,and thus is not a controversy. Moreover, since (1st exwife-Rena) as the personal representative has nothing at stake as to whether Sandra pays income tax on the money, Rena as the personal representative has no interest adverse to Sandra's. The real issue presented is not subject to judicial enforcement by the Douglas County Court, because the law is quite clear that state courts' pronouncements on the nature of a payment are not binding on the IRS' treatment of money under I.R.C. § 71 (2000)... the forum for such determination is not the Douglas County Court; it will be resolved in another forum
"(While the Eighth Circuit Court of Appeals found South Dakota's comparable corporate farm ban also preempted under the dormant commerce clause) I-300 has a chance to prevail because U.S. District Judge Laurie Smith Camp's analysis was "very-poorly reasoned,"Judge Smith-Camp said the law violates the Americans with Disabilities Act: does that mean a farm regardless of the ownership structure is a public entity, a governmental discrimination against the disabled of some public benefit, or an employer?. If the farm is the prospective employer who may not take on a disabled shareholder because of Initiative 300, should the disabled shareholder sue the farm instead?
Good point, if the Court points out that Initiative discriminates against a person with a disability, is that as an employee or as one seeking access to a public accomodation? The court might have sought a 14th amendment basis, say under Cleburn, where courts look at discrimination against the disabled as a constitutional matter with a "rational basis plus" standard of review
"No where does the judge tell us how a Nebraska farm is a public entity," McEowen said.
Monday, December 19, 2005
I-300 states, in part: "No corporation or syndicate shall acquire, or otherwise obtain an interest, whether legal, beneficial, or otherwise, in any title to real estate used for farming or ranching in this state, or engage in farming or ranching." It provides an exemption for a family, or a trust created for the benefit of a member of that family, as long as one is a "residing on or actively engaged in the day to day labor and management of the farm or ranch and none of whose stockholders are nonresident aliens and none of whose stockholders are corporations or partnerships. ..."
It was that wording that proved fatal in Smith-Camp's ruling."Initiative 300 could well provide a workable plan, independently enforceable, if the ... words at issue were stricken," Smith-Camp said. "I cannot conclude that the residency or day-to-day-labor-and-management provisions in the family farm exemptions were not an inducement to the passage of Initiative 300. To the contrary, based on the record before the court, it appears that those provisions were an inducement to the passage of Initiative 300 and that it would do violence to the intent of the voters to sever those provisions."
Friday, December 16, 2005
Thursday, December 15, 2005
"Because alimony, albeit nominal, was allowed in the original decree, the award is subject to modification for "good cause shown" pursuant to § 42-365. In this context, "good cause" means a material and substantive change in circumstances and depends upon the circumstances of each case. Bowers v. Lens, 264 Neb. 465, 648 N.W.2d 294 (2002);..."Although it is clear that the parties contemplated Husb's bankruptcy and the discharge of his personal indebtedness to the bank, it is likewise apparent that the parties expected that the unpaid balance of the loan would be satisfied by the bank's foreclosure and sale of the collateral. Thus, the record supports the district court's finding that the 2003 deficiency judgment against Wife was not within the contemplation of the parties at the time of trial in 2001"Husb mainly argued that the Court should not increase his alimony when it effectively repackages his discharged debts as alimony, in violation of the Chapter 7 discharge, anti-injunction provision 11 U.S.C. § 524(a)(2) (2000). 11 U.S.C. § 523(a)(15) generally prohibits a debtor from discharging debts that are in the nature of support debts. But since Wife did not ask the Bankruptcy Court to rule the vet practice loan was a support debt, she cannot end run this process with an alimony modification. The Nebraska Supreme Court rejected Husb's argument, because the court ordered him to pay alimony in the initial decree, however nominal. A substantial change in the debt burdens of the parties that result from a bankruptcy may be a "change of circumstances" to justify an alimony modification. Supreme court holding: Wife's shouldering the guarantor debt for the failed practice along with her loss of income justify modification of the alimony The record establishes thaWife's's liability for the deficiency judgment has resulted in a material and substantial change in the relative economic circumstances of the parties which was not within the reasonable contemplation of the parties at the time of the decree of dissolution. Satisfaction of the deficiency judgment over a 10-year period in her current circumstances would alter Wife's monthly cashflow from slightly positive to decidedly negative. Because the modification of the alimony award was specifically attributed to this proven change in circumstances, it is not contrary to or preempted by federal bankruptcy law. See, In re Siragusa, 27 F.3d 406 (9th Cir. 1994); Smith v. Smith, 741 So. 2d 420 (Ala. Civ. App. 1999).
"even if medical evidence establishes that a claimant's different injuries have different dates of maximum medical recovery, the legally significant date--the date of maximum medical improvement for purposes of ending a workers' compensation claimant's temporary disability--is the date upon which the claimant has attained maximum medical recovery from all of the injuries sustained in a particular compensable accident. "the court adds on a puzzling dictum however when it notes that an injured worker may have suffered one injury that will render him permanently disabled while other components of his injury may not have reached the MMI point.
" We recognize that there may be circumstances in which a claimant's permanent disability may be ascertainable even though not all of the claimant's injuries have reached maximum medical healing. For instance, where it is apparent that one injury of multiple injuries has reached maximum medical healing and will render a claimant permanently and totally disabled, it may be possible to award permanent total disability benefits even before the claimant reaches maximum medical healing with respect to all the injuries resulting from an accident. See, e.g., State, ex rel. Galion Mfg., v. Haygood, 60 Ohio St. 3d 38, 573 N.E.2d 60 (1991). "
Tuesday, December 13, 2005
Court of appeals rejects overly technical interpretation of separation of powers, especially in the juvenile justice context (I didnt know there was a division of roles there anyway):
" The phrase "by and with the assent of the court," which the Legislature elected to add to the language in Neb. Rev. Stat. § 43-285(1) (Reissue 2004), clearly gives the court the power to assent and, by implication, to dissent from the placement and other decisions of the Department of Health and Human Services, as well as of other entities to whom the court might commit the care of a minor. "
"separation of powers was not designed to achieve a complete divorce among the three branches of government, nor does it require governmental powers to be divided into rigid, mutually exclusive compartments. . . . When the legislature creates a statute that contemplates an interplay between the courts and the executive branch, court orders directing the actions of the executive agencies do not violate the doctrine of the separation of powers"citing In re K.C., 325 Ill. App. 3d 771, 759 N.E.2d 15, 259 Ill. Dec. 535 (2001) Finally the Court of Appeals decides that even if it was wrong about the separation of powers, no party brought it to its attention on time. Query Will the Courts be as cost and benefit sensitive as the State when it comes to assigning personnel to cases that the courts think will require specialized personnel?
For example the West Nodaway will become a swimmable river and then clarinda must add on disinfecting processes to the tune of $500K-$750K
" Under the proposed standards, which the state will consider adopting early next year, all perennial streams in Iowa would be given blanket designations of "fishable, swimmable" - making them safe for fish and people by removing harmful bacteria and ammonia carried in human wastewater. The new standards would add up to 14,000 miles of protected streams, said Adam Schnieders, a senior environmental specialist at the Department of Natural Resources. The agency has estimated a statewide cost that could reach $960 million to upgrade, maintain and manage all of the affected wastewater treatment facilities - a list that is more than 14 pages long."
Sierra club: "Iowa is way, way behind the curve,"
The Iowa Environmental Council estimates that 54 percent of the state's perennial streams, those that flow year-round, have been called nonperennial or intermittent streams in the past. Under the new standards, many of those streams would be relabeled perennial and given new aquatic and recreational use protection. Wastewater treatment plants that have not had stringent ammonia nitrogen limits might need to build new facilities.
Monday, December 12, 2005
"Noaker nevertheless said he would forge ahead with Duffy's sexual abuse case against Boys Town and the Rev. James Kelly.James Martin Davis, Boys Town's attorney, said the reason Noaker decided not to move forward with the repressed-memory claim was obvious. "He didn't want to lose again," Davis, of Omaha, said. A ruling against him in federal court could help establish a precedent against the claim elsewhere, Davis said.Davis said he will file a motion for summary judgment in the Duffy matter. He already has filed such a motion in the Rivers case. A hearing for that motion is scheduled for Jan. 27, he said. Summary judgment brings about a prompt disposition without a lengthy trial."
The Great Plains Environmental Law Center is asking to enter the legal battle against the proposed Market Pointe shopping center just outside Papillion. The center has provided legal representation for more than a dozen groups across the state opposing livestock confinement operations, according to Steve Virgil, the group's general counsel. Attorneys for the City of Papillion, the landowner and the shopping center's developer said in court filings that the law center showed no interest in the case while it was being briefed and argued, and therefore shouldn't be allowed to join the case now."In light of the court's unanimous opinion and the length of time which has passed since its issuance, it is difficult to see what Great Plains could add to the court's consideration," the attorneys said.
Sunday, December 11, 2005
"Make no mistake about it. Medicaid reform is mandatory. Medicaid spending in Nebraska has grown 11 percent a year since 1985. Last year it had grown to 17 percent of the entire state budget. That rate of growth simply is unsustainable. The current growth rate not only will pinch other parts of the state budget, it wonÂt leave resources to pay for Medicaid for future generations...Although some Democrats and liberal health-care advocates predict the Florida experiment will end in disaster, most observers view FloridaÂs plan as a responsible effort to put consumer choice and business competition to the test. Nebraska should waste no time implementing any ideas that prove to work. "
Saturday, December 10, 2005
" 8th Circuit case law relies on a 1932 case, Blockburger v. U.S., 284 U.S. 299, for the "same elements" test to permit multiple convictions, while other circuits apply a "unit of prosecution" test from Bell v. U.S., 349 U.S. 81 (1955). As for the conflicting government positions, the judges quote the U.S. solicitor general's Supreme Court brief in a 1991 5th Circuit case. It states that the structure and language of the statute, Section 922(g), show "Congress's clear intent not to impose cumulative punishments when the same incident violates two subdivisions of subsection (g)." That was in the case of a man convicted of both felon in possession of a gun and illegal alien in possession, based on a single incident. The solicitor general in that case confessed error and successfully asked the Supreme Court to remand. U.S. v. Munoz-Romo, 947 F.2d 170 (1991)."In the August opinion, once corrected, the 8th Circuit panel intended to impose only one punishment on the defendant for possessing thefirearm while having 2 separate prohibited qualities. Judge Gruender dissented in that opinion, noting the more recent 8th circuit precedent to allow 2 charged. the November opinion does just that and the Heaney and Melloy this time give reluctant concurrences to the case with 2 crimes from one incident of possessing a firearm.
Friday, December 09, 2005
"The process by which physicians and hospitals evaluate and discipline staff doctors is the peer review process. In furtherance of its purpose, HCQIA grants limited immunity in suits brought by disciplined physicians from liability for money damages to those who participate in professional peer review actions, as that term is defined in HCQIA. 42 U.S.C. Â§ 11111(a). Whether an entity or individual is entitled to HCQIA immunity is a question of law for the court to decide and may be resolved whenever the record becomes sufficiently developed., citing Bryan v. James E. Holmes Regional Medical Center, 33 F.3d 1318, 1321 (11th Cir. 1994) "Nebraska Supreme Court finds genuine issues of fact as to the 1st prong whether the hospital's actions were with the reasonable belief that the action was in the furtherance of quality health care,42 U.S.C. Â§ 11112(a). Justice McCormack rules that "relation back" doctrine does not apply to incidents that arise after the date of the lawsuit
"The issue presented is whether a claim can relate back to a petition which predates the action or actions giving rise to the claim. We have not previously addressed this." ...We conclude that because the alleged defamation regarding the 1995 report by Bergan to the databank occurred after the original petition was filed, the claim could not relate back to that petition. Since the claim could not relate back to the original petition, the claim with regard to the report to the databank of February 8, 1995, was first raised in the amended petition filed May 22, 2002. As such, the claim is barred by the statute of limitations. See Â§ 25-208
Thursday, December 08, 2005
"it is regrettably not uncommon for Congress to attempt to burden the future exercise of legislative power with express-reference and express-statement requirements. See, e.g., 1 U.S.C. § 109; 5 U.S.C. § 559; 25 U.S.C. § 1735(b); 42 U.S.C. §2000bb—3(b); 50 U.S.C. §1547(a)(1), 1621(b).. I think it does no favor to the Members of Congress, and to those who assist in drafting their legislation, to keep secret the fact that such express-reference provisions are ineffective. "
Finally Supreme Court rejects Tribe's equal protection argument that the tax applies only to distributors supplying tribal retail gas stations, Tribes are not"similarly situated" with other states. Dissenting, Justices Ginsburg and Kennedy would hold White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980), did apply and imposing the taxes burdened Tribe economic activity and compromised sovereignty.
" Limiting the Bracker test exclusively to on-reservation transactions between a nontribal entity and a tribe or tribal member is consistent with this Court’s unique Indian tax immunity jurisprudence, which relies “heavily on the doctrine of tribal sovereignty [giving] state law ‘no role to play’ within a tribe’s territorial boundaries,” Oklahoma Tax Comm’n v. Sac and Fox Nation, 508 U.S. 114, 123—124. The Court has taken an altogether different course, by contrast, when a State asserts its taxing authority outside of Indian Country. E.g., Chickasaw, 515 U.S. 450. " ...If a State may apply a nondiscriminatory tax to Indians who have gone beyond the reservation’s boundaries, it may also apply a nondiscriminatory tax where, as here, the tax is imposed on non-Indians as a result of an off-reservation transaction."
Wednesday, December 07, 2005
Tuesday, December 06, 2005
"clear and convincing evidence is mandatory to establish that Holly is unfit to resume the obligations imposed by the parent-child relationship. See In re Guardianship of D.J., 268 Neb. 239, 682 N.W.2d 238 (2004). Whether Holly is unfit is a determination made based on an examination of personal deficiency or incapacity that would result in detriment to Cameron's well-being. See Uhing v. Uhing, 241 Neb. 368, 488 N.W.2d 366 (1992)." " We note that the record is lacking testimony from any expert witness able to provide a medical opinion regarding Holly's condition. However, based on the testimony adduced at trial, there is a lack of sufficient evidence to buttress the court's finding that Holly's condition makes her unfit, and the evidence adduced certainly does not rebut the presumption that reunification with Holly is in Cameron's best interests. Holly's condition does not rise to the level of parental unfitness where her incapacity would prevent "'performance of a reasonable parental obligation in child rearing and . . . has caused, or probably will result in, detriment to [Cameron's] well-being.'" See Uhing v. Uhing, 241 Neb. at 375, 488 N.W.2d at 372"Big plus for Holly: her new boyfriend in as many years is taking parenting classes. Im sure he's ready to be a father.
Monday, December 05, 2005
We note initially that Alba filed his appeal in the Court of Appeals and raised excessiveness of sentences as his sole assignment of error. Alba raised no issue regarding the validity of his plea-based convictions and did not seek to have his convictions vacated. We further note that the State did not file a complimentary error proceeding pursuant to Neb. Rev. Stat. § 29-2315.01 (Cum. Supp. 2004), raising an issue as to whether a plea agreement should be vacated where it is based on the parties' mutual mistake.No, I guess the Attorney General should have been more complimentary of counsel for defendant's acuity in spotting the Douglas County Attorney's snafu in allowing a recidivist child predator to jam out in time to see the Huskers win a Big 12 title