Monday, July 31, 2006

Court permit and may even require trial and pledings of the underlying cause along with the declaratory judgment action HEIMBOUCH, v.VICTORIO INSURANCE SERVICE, INC 369 N.W.2d 620, 220 Neb. 279 [4] June 28, 1985 In a declaratory judgment action on a contract, the court may not only construe the contract but it is authorized to enter judgment for the amount due thereunder in the light of the interpretation made. The district court clearly has power to retain jurisdiction and grant further relief where it has entered a declaratory judgment declaring the rights of the parties under a contract. n its second assignment of error the defendant contends that the trial court erred in entering a present judgment for future installment payments of termination compensation. Pursuant to Neb. Rev. Stat. §§ 25-21,149 et seq. (Reissue 1979), an action for declaratory judgment determines the rights of the parties in a justiciable controversy and is binding on any further adjudication between the parties as to the rights so declared. Russell v. First York Sav. Co., 218 Neb. 112, 352 N.W.2d 871 (1984). Furthermore, this court has said: "'In a declaratory judgment action on a contract, the court may not only construe the contract but it is authorized to enter judgment for the amount due thereunder in the light of the interpretation made.'" Dixon v. O'Connor, 180 Neb. 427, 433, 143 N.W.2d 364, 368 (1966); Richardson v. Waterite Co., 169 Neb. 263, 99 N.W.2d 265 (1959). In the case at bar the district court properly entered a judgment for the amount of principal and interest due at the time of trial. See Richardson, supra. Although the trial court specifically found when and in what amounts the remaining payments were payable, no judgment was entered in that regard. Rather, the court said: "Plaintiff is granted a declaratory judgment that the defendant is obligated to pay to the plaintiff the sum of $17,182.02 in annual installments of principal and interest in accordance with the parties' contract." [36] This case is distinguishable from First Nat. Bank v. Omaha Nat. Bank, 191 Neb. 249, 214 N.W.2d 483 (1974), cited by the defendant. In First Nat. Bank the judgment ordered that certain unmatured installments of rent, taxes, and insurance were to be paid as they fell due, that the court would retain jurisdiction, and that the judgment "'shall mature and become effective as to each unmatured installment . . . on the day after said installment or payments are due and execution may then issue . . . .'" Id. at 251, 214 N.W.2d at 485. We vacated that part of the judgment relating to future installments and the issuance of execution as to any unmatured installments of rent, taxes, and insurance. We stated, however: "The District Court clearly has power to retain jurisdiction and grant further relief where it has entered a declaratory judgment declaring the right of the parties under a contract." Id. at 252, 214 N.W.2d at 485. The specific findings concerning future amounts payable made in the case at bar were not determined from such indefinite and variable subject matter, nor was any provision made regarding the entry of judgment and the issuance of execution. [5] DANIEL HOIENGS, ON BEHALF OF HIMSELF AND ALL OTHER PERSONS SIMILARLY SITUATED, APPELLANT,v. COUNTY OF ADAMS ET AL., APPELLEES. 516 N.W.2d 223, 245 Neb. 877May 13, 1994 It is true that Hoiengs asks for more than a declaration as to the contributions the retirement act requires of the counties, he also asks that the counties be required to pay the system the difference between the contributions they have made and those they should have made. The fact is, however, that a court may, among other things, grant a money judgment as consequential relief in a declaratory judgment action. Heimbouch v. Victorio Ins. Serv., Inc., 220 Neb. 279, 369 N.W.2d 620 (1985) (court in declaratory judgment action may not only construe contract, but is authorized to enter judgment for amount due thereunder); Dixon v. O'Connor, 180 Neb. 427, 143 N.W.2d 364 (1966) (where in declaratory judgment action court found relationship of parties to be that of landlord and tenant, granting of accounting was within equitable jurisdiction of court). [147] Thus, the fact that Hoiengs asks for relief which may include a money judgment does not mean he has failed to state a cause of action for declaratory relief. Federal courts held that the comparable federal rule in 28 usc 2202 allowing for the court's discretion to conduct further proceedings did not relieve a party from filing a counterclaim to a declaratory judgment action when it would be mandatroy under frcp 13 United States Court of Appeals for the Federal Circuit 03-1176 347 F.3d 935, 938 (Fed. Cir. 2003 POLYMER INDUSTRIAL PRODUCTS COMPANYand POLYMER ENTERPRISES CORPORATION,Plaintiffs-Appellants,v.BRIDGESTONE/FIRESTONE, INC., ..II,,PIPCO challenges the district court's dismissal of its claim under Fed. R. Civ. P. 12(b)(6), arguing that the Declaratory Judgment Act's "further relief" section, 28 U.S.C. § 2202, allows PIPCO to now seek further relief of damages based on the declaratory judgment of infringement in the previous litigation. ...The district court held that PIPCO's present infringement claim was a compulsory counterclaim to Bridgestone's declaratory judgment claim of noninfringement in the prior litigation. Consequently, having failed to bring it then, PIPCO is forever barred from revisiting the issue. In arriving at this conclusion, the district court relied on Fed. R. Civ. P. 13(a). The district court held that PIPCO's present infringement claim was a compulsory counterclaim to Bridgestone's declaratory judgment claim of noninfringement in the prior litigation. Consequently, having failed to bring it then, PIPCO is forever barred from revisiting the issue. In arriving at this conclusion, the district court relied on Fed. R. Civ. P. 13(a). § 2202. Further relief Further necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against any adverse party whose rights have been determined by such judgment. 28 U.S.C. § 2202 (2000). This court addressed the Declaratory Judgment Act in B. Braun Medical, Inc. v. Abbott Laboratories, 124 F.3d 1419 (Fed. Cir. 1997). In particular, this court noted: [T]he [Declaratory Judgment] Act is a procedural device that provides a new, noncoercive remedy (a declaratory judgment) in cases involving an actual controversy that has not reached the stage at which either party may seek a coercive remedy (such as an injunction or damages award) and in cases in which a party who could sue for coercive relief has not yet done so. Id. at 1428. PIPCO relies on this statement to support the proposition that § 2202 serves as an exception to the compulsory counterclaim doctrine of Rule 13(a). To the contrary, the language in Braun simply explains that a declaratory judgment is appropriate in cases in which a party who could sue for coercive relief has not yet done so. That proposition has no bearing on the application of Rule 13(a) after a declaratory judgment action. Under Rule 13(a), a party who has waived a compulsory counterclaim has no right to sue for relief in a separate and later case. Braun simply does not address the effect of a compulsory counterclaim. Finally, in Braun, unlike the case at bar, the court authorized further relief in a separate trial conducted in the same case. Id. Braun did not deal with further relief in a case brought after final judgment in the initial declaratory judgment case. In Braun, Braun sued Abbott for patent infringement; Abbott filed a declaratory judgment counterclaim for, inter alia, noninfringement. The jury returned a verdict in favor of Abbott, finding no infringement and further concluding that Braun had misused the patent. After this verdict, the district court held a separate eight-day trial to determine whether Braun's patent misuse had caused any damages to Abbott. The district court based this trial on § 2202 of the Declaratory Judgment Act. PIPCO does not cite a case from any circuit that has applied § 2202 of the Declaratory Judgment Act to allow a claim for patent infringement damages in a new action based upon a declaratory judgment ruling in a previous action. In sum, this court discerns no authority for the notion that § 2202 operates as an exception to Rule 13(a). Indeed, § 2202 merely states that further relief based on a declaratory judgment "may be granted." 28 U.S.C. § 2202 (2000). This section creates no statutory right to relief. If Rule 13(a) does not operate as a bar, § 2202 may acknowledge that a party may obtain further relief in a subsequent and separate action. See, e.g., Horn & Hardart Co. v. Nat'l Rail Passenger Corp., 843 F.2d 546, 549 (D.C. Cir. 1988) (A separate action for further relief under § 2202 was not barred where "Rule 13(a)'s compulsory counterclaim requirement never became relevant."). In this case, however, PIPCO could have requested the further relief it now seeks in the previous action following the jury verdict. PIPCO admits that it chose not to do so. PIPCO's choice has consequences, one of which flows from Rule 13(a). Nothing in § 2202 authorizes a party to seek further relief based on a declaratory judgment without regard for other established rules of procedure. Accordingly, this court holds that § 2202 of the Declaratory Judgment Act does not permit a party to assert an infringement claim, which was a compulsory counterclaim to a declaratory judgment action in a prior litigation. The district court's judgment of dismissal is, therefore, affirmed.

Sunday, July 30, 2006

Follow up: although some DUI prosecutions from the City of Omaha between 1999 and 2003 were invalid according to the NEbraska supreme Court ( State v Loyd, 265 Neb. 232 (Neb 2003)), the State may still use final judgments from that time to enhance penalties for later DUI offensesState v. Keen, 272 Neb. 123 Filed July 28, 2006. No. S-05-945. The Nebraska Supreme Court seems to have tamed its Loyd, which appeared to let drunk drivers loose on the streets because hundreds of drunk drivers were prosecuted under the City Code's invalid version of Nebraska's drunk driving law. State v Keen however forecloses any worse consequences from Loyd as the Supreme Court upholds the use of those possibly invalid convictions to enhance subsequent DUI prosecutions. The Supreme Court rules that Keen's prior convictions under Omaha's 1995 DUI law is res judicata, and thus any challenge to the conviction during enhancement proceedings in subsequent cases amounts to an illegal collateral attack on a final judgment. Keen maintains that to use the 1998 conviction for enhancement purposes, the State must prove he was convicted under an ordinance which was enacted "in conformance with" the DUI statute. See § 60-6,197.02(1)(a). He bases his position on State v Loyd, 265 Neb. 232, 655 N.W.2d 703 (2003), in which this court held on a direct appeal by the State that § 36-115 (1998) of the Omaha Municipal Code was unenforceable because the penalty provisions therein were inconsistent with those in § 60-6,196 (Cum. Supp. 2000).. we assume that the DUI ordinance under which Keen was convicted in 1998 would be unenforceable under Loyd and that if Keen had pled not guilty and raised the issue of the ordinance's invalidity when he was prosecuted in 1998, the ordinance would have been invalidated. When a judgment is attacked in a manner other than by a proceeding in the original action to have it vacated, reversed, or modified, or by a proceeding in equity to prevent its enforcement, the attack is a collateral attack. State v. Smith, 269 Neb. 773, 696 N.W.2d 871 (2005). When the court has jurisdiction over the person and subject matter, a party to the proceeding will be bound by the judgment in the case when collaterally attacking it, even though the judgment was irregularly or erroneously entered. See, Mayfield v. Hartmann, 221 Neb. 122, 375 N.W.2d 146 (1985); State ex rel. Ritthaler v. Knox, 217 Neb. 766, 351 N.W.2d 77 (1984). Until such judgment is rendered void in a proper proceeding and set aside, it remains "'"'valid and binding for all purposes and cannot be collaterally attacked.'"'" Mayfield, 221 Neb. at 124, 375 N.W.2d at 148. This court has recognized that a judgment is an adjudication of all the matters that are essential to support it, and every proposition assumed or decided by the court leading up to the final conclusion and on which such conclusion is based is as effectually passed upon as the ultimate question which is finally resolved. Norlanco, Inc. v. County of Madison, 186 Neb. 100, 181 N.W.2d 119 (1970) The doctrine of res judicata, precluding subsequent litigation of the same cause of action,"is much broader in its application than a determination of the questions involved in the prior action; the conclusiveness of the judgment in such case extends not only to matters actually determined, but also to other matters which could properly have been raised and determined therein. The rule applies to every question relevant to and falling within the purview of the original action, in respect to matters of both claim or grounds of recovery, and defense, which could have been presented by the exercise of diligence." Id. at 106, 181 N.W.2d at 123. Inherent in Keen's 1998 conviction was a determination that the Omaha DUI ordinance to which he pled no contest and under which he was convicted was enforceable, and inherent in that determination was a finding that the city ordinance under which he was convicted was "in conformance with" the state statute. See § 60-6,197.02(1)(a). Thus, Keen could have and should have raised these issues in the 1998 prosecution.

Collateral attacks on previous proceedings are impermissible unless the attack is grounded upon the court's lack of jurisdiction over the parties or subject matter. State v. Smith, 269 Neb. 773, 696 N.W.2d 871 (2005). Only a void judgment is subject to collateral attack. Mayfield v. Hartmann, 221 Neb. 122, 375 N.W.2d 146 (1985). Although Keen's 1998 DUI conviction may have been voidable and subject to reversal upon appeal, it was not void.

We conclude that Keen's 1998 DUI conviction was valid for the purpose of sentence enhancement and that Keen is attempting to collaterally attack that conviction. Therefore, we affirm the judgment of the district court on this issue.

Saturday, July 29, 2006

Interesting comments on Nebraska 12b6 motion practice from the supreme court: The district court may rely on judicially noticeable facts when ruling on a defendant's Rule 12b6 motion without converting it into a motion for summary judgment; Nebraska supreme court further holds that action against law firm for improper registration of securities (Neb. U.C.C. § 8-404(a)(1) and 8-407) is not a professional negligence action. Plaintiffs brought derivative claims on behalf of Aaron Ferer & Sons Co. (AFSC) against the Erickson & Sederstrom (E&S) law firm and the corporation to recover for the law firms allegedly negligent representation of the corporation. Plaintiff brought an individual action against the same defendants to recover for the alleged wrongful registration of his AFSC shares of common stock. The district court granted law firm's Rule 12b6 motion to dismiss. The district court treated the plaintiff's 8-404 claim as one for professional malpractice and concluded that E&S, who served as corporate counsel and transfer agent for AFSC, did not owe a duty to the plaintiff. With regard to the appellants' derivative claims, the district court found that the appellants did not fairly and adequately represent the shareholders of AFSC. Supreme Court agrees with the District court on its dismissing the derivative action but reverses the District Court on the registration claim under Neb. U.C.C. § 8-404(a)(1) (Reissue 2001). 8-407 claim was not a malpractice claim E&S was not acting as legal counsel with respect to the allegedly wrongful registration of Aaron's stock. Rather, it was alleged to be acting as transfer agent for AFSC.E&S was alleged to be acting in its capacity as transfer agent for AFSC, not in its capacity as legal counsel, when it transferred Aaron's shares of AFSC stock. Hence, E&S may potentially be held liable under § 8-407 for wrongful registration.Aaron has alleged in his operative complaint that E&S transferred his shares of AFSC to Harvey Ferer and then to Matthew Ferer and Whitney Ferer, despite his failure to endorse the stock certificate or authorize the transfer. If Aaron's allegations are true, which we must assume for purposes of a motion to dismiss, see Carruth v. State, 271 Neb. 433, 712 N.W.2d 575 (2006), E&S would be liable under § 8-407 because of the alleged ineffective endorsement. We therefore conclude that Aaron has stated a claim for wrongful registration, and the district court erred in concluding otherwise. Court when ruling on a Rule 12b6 motion to dismiss may look at publicly known facts12(b)(6) motions test the legal sufficiency of the complaint, not the claim's substantive merits. A court may typically look only at the face of the complaint to decide a motion to dismiss. See Van Buskirk v. Cable News Network, Inc., 284 F.3d 977 (9th Cir. 2002). However a court considering a rule 12b6 motion may take judicial notice of "'matters of public record'" without converting a rule 12(b)(6) motion to dismiss into a motion for summary judgment. Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001); Neb. Rev. Stat. § 27-201(6) (Reissue 1995) judicialicial notice may be taken at any stage of the proceeding"). See, also, Watterson v. Page, 987 F.2d 1 (1st Cir. 1993). Thus, the district court may, and in this case did, consider the other lawsuits filed by the appellants in determining whether the district court erred in granting E&S' rule 12(b)(6) motion. conclusionAaron has stated a claim against E&S for wrongful registration under § 8-407. We therefore reverse the district court's dismissal of Aaron's individual claim against E&S. We affirm, however, the court's dismissal of the appellants' derivative claims against E&S for the reason that they do not fairly and adequately represent AFSC.
Nebraska supreme court resolves boundary line dispute between homeowners in subdivision ex-Governor Kerrey once owned. Huffman v. Peterson, S-04-941, 272 Neb. 62 (2006) Adjacent homeowners disputed their boundary line when newer homeowner sought to put in a detached garage. The homeowners there longer refused and the newer homeowner sued to quiet title. The complaining homeowners counterclaimed for ejectment. Supreme Court notes that the Plaintiff filed the wrong type of action to litigate the boundary dispute, but the defendant didnt object. Supreme Court holds that a common grantor had conveyed both properties and thus the parties understanding of the common grantor's boundary line controls. Boundary disputes are not to be determined in a quiet title action. Rather, boundary disputes are properly brought as an action in ejectment or pursuant to Neb. Rev. Stat. § 34-301 (Reissue 2004). Rush Creek Land & Live Stock Co. v. Chain, 255 Neb. 347, 586 N.W.2d 284 (1998). But when parties pursue a boundary dispute as a quiet title action without objection, the mode of procedure is no longer in question. Id. The common grantor rule provides that where conveyances from a common grantor to adjoining landowners describe the premises conveyed by lot numbers, but adjoining owners purchase with reference to a boundary line then marked on the ground, the boundary line, as marked on the ground by the common grantor, is binding upon such adjoining landowners and all persons claiming under them irrespective of the length of time which has elapsed thereafter. See Phillippe v. Horns, 188 Neb. 304, 196 N.W.2d 382 (1972). This equitable rule is designed to ascertain the intention of the parties with respect to the location of premises described by lot number in a conveyance which is executed by a grantor who conveys only part of an area of land owned by him. Kraus v. Mueller, 12 Wis. 2d 430, 107 N.W.2d 467 (1961).

Sunday, July 23, 2006

Auf Widersehen Justice HendryWhat an fine example of a Chief Justice we have in the Cornhusker State. Chief Justice Hendry only 57 years old announces his retirement, effective before Democrat candidate David Hahn takes back the governors mansion (old school Democrat pipe dream.) Justice Hendry was above the political fray, yessiree. EBen put him up on the supremes because Karen Flowers was pro-choice and we know the EBen needs to earn his Nebraska Right to Life endorsement every election cycle. The Nelson court overruled misguided second degree murder rulings which allowed many killers to walk or receive reduced sentences. Justice Hendry was not to "legislate" from the bench, but that didn't stop him from trying to throw out our Medical malpractice law and succeeding in throwing out an elected official not for what he did in office but for what he did to get elected. Now to you cynical pols and inside political baseball types, resigning to "spend more time with your family" means you are cutting your losses or leaving under pressure. Not here in America's heartland where such smokescreens are unheard of. Well if there were any slightly inappropriate shenanigans, they happened too long ago to matter and are not fresh, such as how Hendry's law firm defended the Nebraska Investment Finance Authority from shareholder class action lawsuits after the failure of the Executive Life Insurance Company in 1991. Executive Life remember offered much better investments for those hard earned dollars that flowed into NIFA. And then Justice Hendry's law firm zealously defendant jilted UNISYS employees who lost nearly everything in the Executive life failure helping them to win a claim from the state insurance Guaranty associations assets. The good Justice Hendry recused himself from considering the appeal in the Supreme Court even though by then he had been out of the firm for 9 years.
Nebraska Supreme Court upholds a summary judgment for once: Ash Grove cement quarry complied with Federal Mine Safety Rules so Federal OSHA rules did not apply in 3rd party workers injury action against cement plantDidier v. Ash Grove Cement Co., 272 Neb. 28 Filed July 21, 2006. No. S-03-924. We conclude that because the Mine Safety Health Act (MSHA) (preemption provision 29 U.S.C. § 653(b)(1)) had exercised jurisdiction, the Court of Appeals erred as a matter of law in concluding that there was a genuine issue of material fact as to whether MSHA or the Occupation Safety and Health Act (OSHA )(preemption provision 29 U.S.C. § 653(b)(1) (2000)) should have jurisdiction, and we further conclude that the district court did not err when it found that there was no evidence that Ash Grove had breached any relevant MSHA regulation.
Nebraska Supreme Court adopts Green v. McDonnel Douglas structure for retaliatory discharge claims related to worker compensation cases. Reverses summary judgment that was in favor of the Employer Riesen v. Irwin Indus. Tool Co., 272 Neb. 41 Filed July 21, 2006. No. S-05-208.The Nebraska Supreme Court reverses summary judgment that was infavor of the employer after Plaintiff after the employer discharged him for making a worker compensation claim. The Supreme Court finds issues of fact existed as to the Plaintiff's prima facie case and the whetherthe employer's reasons for discharging him were pre-textual. The Supreme Court recognized the worker comp retaliatory discharge issue in Jackson v. Morris Communications Corp., 265 Neb. 423, 657 N.W.2d 634 (2003), but without any authority from the Legislature. In cases involving claims of employment discrimination, albeit not involving workers' compensation claims, this court has recognized the burden-shifting analysis which originated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). See, e.g., Billingsley v. BFM Liquor Mgmt., 264 Neb. 56, 645 N.W.2d 791 (2002) (age discrimination) As clarified in St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993), "'McDonnell Douglas Corp. allocates the burden of production and the order for the presentation of the evidence; the ultimate burden of persuasion, however, rests on the plaintiff.'" Billingsley, 264 Neb. at 70, 645 N.W.2d at 803. The Plaintiff has the burden is a burden of production, not of persuasion. See Lincoln County Sheriff's Office v. Horne, 228 Neb. 473, 423 N.W.2d 412 (1988). The employer need only explain what has been done or produce evidence of a legitimate, nondiscriminatory reason for the decision. Id. It is sufficient if the employer's evidence raises a genuine issue of fact as to whether it discriminated against the employee. Id. "'"If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted" . . . and "drops from the case . . . ."'" (Citation omitted.) Agnew, 256 Neb. at 402, 590 N.W.2d at 694, quoting St. Mary's Honor Center, supra. Third, assuming the employer establishes an articulated nondiscriminatory reason for disparate treatment of an employee, the employee maintains the burden of proving that the stated reason was pretextual and not the true reason for the employer's decision; i.e., that the disparate treatment would not have occurred but for the employer's discriminatory reasons. Lincoln County Sheriff's Office, supra. Most jurisdictions apply the above-described analysis to workers' compensation retaliatory discharge cases. Like the trial court in the present case, we will apply the burden-shifting analysis this court has utilized in employment discrimination actions to this case involving retaliatory discharge for filing a workers' compensation claim. Our conclusion, however, differs from that of the trial court. the employment application completed by Riesen instructed applicants to list "all present and past employment" and to "[u]se a separate sheet of paper if necessary," but the application left room to list only three previous employers. Riesen listed only three previous employers on his application (although Riesen suggests that a separate page might have been lost from his personnel file). The record before us includes copies of other employees' job applications. Most of those applications include a listing of only three prior employers, with no addition of a separate page. Such evidence, Riesen claims, supports an inference that "Irwin [Industrial] itself does not consider the inclusion of all employers essential and material and thus, jumped at the first pretextual low-grade reason to terminate [him]." Brief for appellant at 22.

Sunday, July 16, 2006

Laid off Goodyear employee loses claim for additonal unemployment benefits from Federal Foreign Trade Adjustment legislation even though Nebraska Departmentof Worforce Development "overlooked" informing her of those benefits.Reed v Nebraska Department of workforce Development 272 Neb. 8 July 14, 2006. No. S-05-1473. Appellant was eligible to apply for trade readjustment allowance (TRA) benefits under 19 U.S.C. § 2291 (2000 & Supp. II 2002) of the Trade Act of 1974 (Trade Act), additional federal unemployment benefits available for workers who were laid off because of foreign trade competition. Workforce Development failed to notify Appellant of her rights so she missed the deadline to apply; Workforce Development denied her benefits application as untimely. Appellant sought review to the Supreme Court arguing that the plain language of the statute does not support the state Department of Labor's interpretation of the deadline and that even if it does, Workforce Development is equitably estopped from enforcing the deadline against her. SUPREME COURT AFFIRMS: Congress, when adopting the new deadlines, rejected the interpretation which Reed advocates that the regulations allow flexibility in applying for benefits.In § 2291(b)(2), Congress excepted certain workers from the training requirements of § 2291(a)(5). But the enumerated exception in § 2291(b)(2) does not track with the retroactive/proactive distinction in 20 C.F.R. § 617.10. Instead, § 2291(b)(2) fails to mention the retroactive/proactive distinction recognized by the regulations. When Congress provides exceptions in a statute, it does not follow that courts have authority to create others. United States v. Johnson, 529 U.S. 53, 120 S. Ct. 1114, 146 L. Ed. 2d 39 (2000). The proper inference is that Congress considered the issue of exceptions and, in the end, limited the statute to the ones set forth. See id. We infer from the language of § 2291(b)(2) that Congress opted not to adopt the eligibility requirements as interpreted by the regulations. Further, legislative history for the 2002 Trade Act supports this reading.
Nebraska supreme court allows new trial for realtor injured when he fell off a wooden walkway leading from a home under constructionPachunka v. Rogers Constr., S-04-1470, 271 Neb. 950HTML The Plaintiff entered a partially constructed model home to inspect it before show it to buyers. He fell off the wooden ramp when exiting. The trial court allowed the contractor's attorneys to submit an assumption of risk instruction. The jury gave a general defense verdict without considering comparative negligence or assumption of risk. Supreme Court reverses: Assumption of risk requires plaintiff (1) knew of the specific danger, (2) understood the danger, and (3) voluntarily exposed himself or herself to the danger that proximately caused the damage. Pleiss v. Barnes, 260 Neb. 770, 619 N.W.2d 825 (2000). See, also, Neb. Rev. Stat. § 25-21,185.12 (Reissue 1995). The defendant must plead and prove assumption of the risk. Everts v. Hardcopf-Bickley, 257 Neb. 151, 595 N.W.2d 911 (1999). "Pachunka asserts that Rogers Construction failed to establish that his use of the ramp was voluntary because he was given no reasonable alternative course to using the ramp. We agree." QUERY: Is the absence of safe alternatives to the risky pathway also something the party relying on the assumption of risk defense must prove? Also the assumption of risk instruction was not harmless error, because the jury verdict directing forms did not include that considered the issue. By returning the third verdict form (finding no liability for the Defendant), it is clear that the jury never reached the issue of contributory negligence. However, the same cannot be said with regard to the issue of assumption of risk. Because the jury was not presented with a separate verdict form addressing the issue of assumption of risk, it is impossible for us to tell whether or not the jury reached that issue.
Flashback for Nebraska attorney David Domina; he lost the impeachment case against Attorney General Paul Douglas but manages to take down Regent David HergertNebraska Legislature on behalf of the State v. Hergert, S-06-425, 271 Neb. 976HTML Anti-Hergert pundits, in this case almost the entire establishment media in Nebraska are lauding the Legislature's counsel David Domina's role in removing elected regent David Hergert after the unanimous Nebraska supreme Court decision last week. But Domina was quite familiar with impeachment when he was the Unicameral's counsel for the commonwealth investigation in 1984. It appears that his possibly youthful mistakes and lack of aggressiveness allowed the more cunning Attorney General Paul Douglas to get off the hook for his role in the commonwealth failure in November 1983: State of Nebraska STATE OF NEBRASKA, PLAINTIFF, v. PAUL L. DOUGLAS, ATTORNEY GENERAL OF THE STATE OF NEBRASKA, DEFENDANT 349 N.W.2d 870, 217 Neb. 199 (1984) "
Complaint is made that Douglas never provided access to his tax returns. Yet, during questioning of Douglas, copies of Douglas' federal income tax returns were at hand. (Commonwealth Committee attorneys Miller and Domina) asked, "Could (we) have copies of those returns, please?" and he answered, "I think you indicated that you wanted to see it and I have no problem in showing you this." The questioner replied, "All right. That's fine." Commonwealth Committee counsel Miller testified: "neither I nor David ever had physical possession of those returns. They never left the possession of Paul Douglas. "We cannot conclude from this that Douglas withheld pertinent information on his tax returns in a procedure agreed to by his questioner. Finally, according to Douglas in his statement to the legislative committee, introduced into evidence by the State, he had by that time turned over his "entire income tax returns from '75 through '82" to the committee's special counsel."
Still taking down a grain mill elevator owner is probably easier than an accomplished attorney and attorney general of the state.

Friday, July 14, 2006

It's getting hard to find good law clerks for activist judges department: Eighth Circuit points out citation error in Judge Bataillon's Citizen for Equal Protection v Bruning decision while reversing this laughingstock of a juristCitizens for Equal Protection v. John Bruning 052604P.pdf 07/14/06 The good for gays and the victims of tyrannical sentencing judges the Honorable Joe Bataillon in throwing everything at the Nebraska marriage protection amendment(Art1 Section 29 ) but the kitchen sink appears to have incorrectly cited the constitutions bill of attainder provision, as the fundamentalist right wing Eighth Circuit Court of Appeals noted: "The district court also concluded “that Section 29 violates the Bill of Attainder( Art. I, § 9, cl. 3) Clause by singling out gays and lesbians for legislative punishment.” 368 F. Supp. 2d at 1005.4." Footnote 4: (District Judge Bataillon) cited Art. I, § 9, cl. 3, of the Constitution, a section that applies only to Congress. We assume the court meant to cite Art. I, § 10, which bars the Statesfrom passing bills of attainder. The two provisions are construed identically. See Crain v. City of Mountain Home, 611 F.2d 726, 728-29 (8th Cir. 1979); Kerr-McGee Chem. Corp. v. Edgar, 837 F. Supp. 927, 934 n.6 (N.D. Ill. 1993).

Thursday, July 13, 2006

Tougher penalties for DWI and related crimes go into effect Friday '>New DUI penalties aim at worst cases The Nebraska Legislature last session significantly increased the potential punishment for drunken drivers. The penalties for driving drunk, and driving really drunk, increase when the law goes into effect Friday ( LB925 toughens penalties for leaving the scene of an accident; causing an injury accident while intoxicated and for those caught driving at over .15% BAC. Also the statute enhances penalties for defendants who get caught again for DWI while they had pending cases. Sec28-306(3)(b): If the proximate cause of the death of another is the operation of a motor vehicle in violation of section 60-6,196 or 60-6,197.06, motor vehicle homicide is a Class III felony. 28-306(3)(c) If the proximate cause of the death of another is the operation of a motor vehicle in violation of section 60-6,196 or 60-6,197.06, motor vehicle homicide is a Class II felony if the defendant has a prior conviction for a violation of section 60-6,196 or 60-6,197.06, under a city or village ordinance enacted in conformance with section 60-6,196, or under a law of another state if, at the time of the conviction under the law of such other state, the offense for which the defendant was convicted would have been a violation of section 60-6,196. 60-6,197.03 Any person convicted of a violation of section 60-6,196 or 60-6,197 shall be punished as follows: (2) If such person has not had a prior conviction and, as part of the current violation, had a concentration of fifteen-hundredths of one gram or more by weight of alcohol per one hundred milliliters of his or her blood or fifteen-hundredths of one gram or more by weight of alcohol per two hundred ten liters of his or her breath, such person shall be guilty of a Class W misdemeanor, and the court shall, as part of the judgment of conviction, revoke the operator’s license of such person for a period of one year from the date ordered by the court. Such revocation shall be administered upon sentencing, upon final judgment of any appeal or review, or upon the date that any probation is revoked. If the court places such person on probation or suspends the sentence for any reason, the court shall, as one of the conditions of probation or sentence suspension, order that the operator’s license of such person be revoked or impounded for a period of one year from the date ordered by the court unless otherwise authorized by an order issued pursuant to section 60-6,211.05, and such order of probation or sentence suspension shall also include, as conditions, the payment of a five-hundred-dollar fine and either confinement in the city or county jail for two days or the imposition of not less than one hundred twenty hours of community service; 60-6,197.08 Sec. 14. Notwithstanding the provisions of section 60-498.02 or 60-6,197.03, a person who commits a violation punishable under subdivision (3)(b) or (c) of section 28-306 or a violation of section 60-6,196, 60-6,197, or 60-6,198 while participating in criminal proceedings for a violation of section 60-6,196, 60-6,197, or 60-6,198, or a city or village ordinance enacted in accordance with section 60-6,196 or 60-6,197, or a law of another state if, at the time of the violation under the law of such other state, the offense for which the person was charged would have been a violation of section 60-6,197, shall not be eligible to receive a sentence of probation, a suspended sentence, or an employment driving permit authorized under subsection (2) of section 60-498.02 for either violation committed in this state.

Saturday, July 08, 2006

Nebraska motor vehicle guest statute limiting liability for related guest passengers is (barely) constitutional: Nebraska Supreme CourtLe v Lautrup 271 Neb. 931 Filed July 7, 2006. No. S-04-743. Granddaughter sued grandfather for motor vehicle accident in which she was a passenger. The Nebraska Supreme Court, J. Miller Lerman for the majority rejected the plaintiff's challenge to the constitutionality of § 25-21,237 sustaining the defendant's district court demurrer based on simple negligence. The action went to trial on the sole remaining theory of gross negligence, resulting in a defense verdict. "We conclude that the district court did not err in rejecting the Les' challenge to the constitutionality of § 25-21,237." Dissenting Justices Gerrard, McCormack and CJ Hendry argued that § 25-21,237 is not rationally related to a legitimate purpose because "persons who are of a mindset to engage in collusion are unlikely find the guest statute discouraging. Justice Gerrard also might have mentioned that § 25-21,237 does not apply to relatives involved in accidents when they are not passengers in the same automobile. to lie. Thus, Justice Gerrard finds the "collusion prevention" rationale is hardly a rational basis for a blanket provision barring passengers from bringing general negligence claims against drivers to whom they are related. Maybe Justice Gerrard doesn't read the news around the country or doesn't "google" the armchair legislator concepts he cooks up. If the good Justice Gerrard, our own Roscoe Pound had bothered he might have found these gems on family members' involvement in staged auto accidents: Virginia: " Organized insurance crime rings, for example, operate widely in the state’s expanding urban areas. Many rings specialize in staging auto accidents that scam large sums of insurance money, for example. These rings are hard to crack because they’re complex, well-hidden, and often run by family members who closely protect each other’s identities." Albany, New York: "A boxing champion and six members of his family have been indicted on charges of enterprise corruption stemming from what Albany County prosecutors say is a scheme in which they staged dozens of automobile accidents and collected thousands of dollars from false insurance claims." Now maybe Justice Gerrard is on to something: many of these staged accident rings involve immigrants whose loyalty to family supersedes the law. We couldn't legislate against immigrants could we? So we discriminate against citizens who might deserve recourse in a case like Friday's.

Sunday, July 02, 2006

Sarpy county district court erred when it reduced 3rd offense dwi defendant's jail time from 90 to 10 days as part of her probation order but Defendant still only needs to serve 10 days because State appealed under 23-2315.01 which allows appellate court to make prospective rulings of law applicable to future casesState v. Vasquez, S-05-1019, 271 Neb. 906 HTML Sarpy County Court sentenced 3rd offense drunk driving defendant to probation but added on 90 days in jail, according to § 60--6,197.03(3) (Reissue 2004. The District Court modified the sentence to 10 days in jail. The State took exception under 29-2315.01. § 29-2262(2)(b) (Cum. Supp. 2002 allows the court to sentence a probationer to additional jail time for up to 90 days. 60-6,197.03(3) provides a floor on the jail time a defendant on probation will get for 3rd offense dwi. The supreme court agrees that the District court was wrong to reduce the defendant's sentence to 10 days, it says no one is able to reinstate the stiffer sentence because the State did not appeal the sentence as excessively lenient; the state may only appeal felony sentences. Since the Defendant had been placed in jeopardy, § 29-2316 (Cum. Supp. 2004) this excessively lenient sentence for a problem drinker stands but future drunks wont havethe same opportunities to walk.