Tuesday, September 26, 2006
In the wake of the City Council's decision to seek TIF bonds for development near North 56th Street and Interstate 80, the developers must have taken their cues from Cabela's successful exploitation of TIF's to open stores in TexasReason Magazine earlier this year chided Fort Worth municipal officials for giving away millions of development funds to Cabela's so it could build a spanking new sporting goods store that would out-do the Alamo as a draw. Apparently another Cabela's 120 miles away was going to do just as well.
Posted by stan_sipple at 3:52 PM
Friday, September 22, 2006
Please reassign me to defending terrorist suspects: Military appeals court disqualifies Senator Lindsey Graham from service as an appeals judgeSCOTUSBlog: The highest court in the military judiciary, the U.S. Court of Appeals for the Armed Forces, on Wednesday barred a U.S. senator from sitting on a military appeals court that decides criminal cases. By a vote of 4-1, the Court found unconstitutional the dual role of Lindsey O. Graham as a senator (Republican from South Carolina) and as a reserve officer sitting on the Air Force Court of Criminal Appeals. The decision is Lane v. U.S. (CAAF docket 05-260)
Posted by stan_sipple at 4:16 PM
Nebraska Supreme Court allows parental rights termination appeal to proceed after court of appeals had dismissed the appellants notice of appeal because he signed his poverty affidavit in Utah before a Utah licensed notaryIn re Interest of Fedalina G., 272 Neb. 314 September 22, 2006. No. S-06-235. § 25-1245 and rule 28(b) (Nebraska rules of discovery) provide that an affidavit may be used in support of a motion in a court of this state if the affidavit is made and authenticated, out of state, before a person authorized to administer oaths in the place where the affidavit is made. A notary public is authorized to administer oaths. A notary public of the State of Utah is authorized to administer oaths in Utah. See Utah Code Ann. § 46-1-6(4) (Supp. 2006). Because the affidavit in this case was duly authenticated in Utah by a person authorized to administer oaths in the State of Utah, it may be submitted in support of a motion made in a Nebraska court. The Court of Appeals erred in concluding otherwise.
Posted by stan_sipple at 4:05 PM
Taking that old time religion is a good strategy sometimes. Follow up: Supreme Court took case on further review, but affirms without comment the trial court's harsher resentencing after the Defendant won a reversal of his first sentence because the judge quoted bible verses to him. State v. Bruna, S-05-529, 272 Neb. 313 Sept 22 2006. Having reviewed the briefs and record and having heard oral arguments, we conclude on further review that the decision of the Nebraska Court of Appeals in State v. Bruna, 14 Neb. App. 408, 710 N.W.2d 329 (2006), is correct and accordingly affirm the decision of the Court of Appeals.
Posted by stan_sipple at 3:43 PM
Tuesday, September 19, 2006
Maxwell T's father went back to prison on parole violations and his mother checked herself into alcohol treatment because she drank over a quart of vodka a day; The Nebraska court of Appeals holds that the Sarpy County Juvenile Court properly exercised emergency jurisdiction over the child even though the father had custody through a South Dakota divorce decreeIn re Interest of Maxwell T., 15 Neb. App. 47 September 19, 2006. No. A-05-1477.The juvenile court properly exercised temporary emergency jurisdiction in this case, but that the court must immediately communicate with the South Dakota court as required by the UCCJEA before proceeding further with this matter. Further, the juvenile court is without jurisdiction to render a permanent custody order unless the South Dakota court affirmatively declines jurisdiction or fails to take appropriate action. the applicable statutory scheme is the UCCJEA, Neb. Rev. Stat. §§ 43-1226 through 43-1266 (Reissue 2004), rather than the Nebraska Child Custody Jurisdiction Act (NCCJA), because the first petition in this child custody proceeding was made in January 2005, well after the date the UCCJEA became operative, January 1, 2004. See §§ 43-1226(Supp. 2003; LB148 2003-2004)...the juvenile court, unaware of the South Dakota divorce decree, initially assumed original jurisdiction under Neb. Rev. Stat. §43-248 (Reissue 2004) when it granted the January 21, 2005, order for temporary custody. The court later adjudicated Maxwell under § 43-247J, with respect to Marsha, on May 4. It was not until June 27 that the court was informed of the prior out-of-state custody determination. Maxwell was subsequently adjudicated with respect to Lloyd on November 3...the juvenile court properly exercised jurisdiction under § 43-1241 at the time of the filing and adjudication of the supplemental petition. This holding is subject to the jurisdictional limitation set forth below...Because the South Dakota court has entered a child custody decree and Lloyd still lives in South Dakota, the South Dakota court retains continuing jurisdiction to make any permanent changes in custody. The juvenile court must immediately communicate with the South Dakota court as required by § 43-1241(d). Further, the juvenile court is without jurisdiction to render a permanent custody order unless the South Dakota court affirmatively declines jurisdiction or fails to take appropriate action.
Posted by stan_sipple at 9:21 AM
Friday, September 15, 2006
"Essentially the same" is not "substantially the same": the Nebraska Supreme Court denies efforts of casino gambling promoters to place new casino constitutional initiative on the 2006 ballot because it would be "essentially" the same as the defeated 2004 initiative, and so contrary to the Nebraska Constitution "resubmission" clauseState ex rel. Lemon v. Gale, S-06-909, 272 Neb. 295. The resubmission clause, "Article III sec 2 states: "The same measure, either in form or in essential substance, shall not be submitted to the people by initiative petition, either affirmatively or negatively, more often than once in three years" The Nebraska Supreme Court finds that barring constitutional initiatives that are "essentially" the same for three years meant that the 2006 casino initiative to introduce one casion per congressional district was essentially the same as the 2004 defeated initiative that would have permitted the legislature to introduce gambling legislation. The district court had erroneously equated "esentially" with "substantially." New Jersey had permitted successive ballot initiatives in the 1970s to reintroduce casino gambling because the second measure was not "substantially " the same as the earlier defeated one. Young v. Byrne, 144 N.J. Super. 10, 364 A.2d 47 (1976). We conclude that the essential substance of the 3 Casinos Initiative submitted for 2006 and Initiative 417 submitted to the electorate in 2004 is the same: amending the constitution to authorize enactments permitting the operation of games of chance. We therefore determine that the district court erred in ruling that inclusion of the 3 Casinos Initiative on the 2006 general election ballot would not violate the resubmission clause and in ordering Gale to proceed with signature verification and to submit the measure to the Attorney General for ballot title preparation.
Posted by stan_sipple at 3:38 PM
Lets outsource all the lawyers! The american legal profession may catch the next wave of professional services' outsourcingLegal Business Development Blog: The recent Business Week article “Let’s offshore the lawyers?” (9/18/06, p. 42) notes that corporate pioneer in lawyer cost cutting Dupont has started sending legal research to Asia. Business Week argues, “few industries seem more ripe for radical restructuring than legal services...DuPont’s hiring of 30 Filipino lawyers and 50 staff to digitize, index, and analyze documents from a number of cases. "it is inevitable that some percentage of US legal work will go offshore. The only question is what percent. Business Week quotes an estimate from consulting firm Hildebrandt International that US firms “can save 25% to 35% by farming legal work to Asia.”
Posted by stan_sipple at 1:41 PM
Sunday, September 10, 2006
Kenny is no fan of the peoples seldom used right to recall judges who go their own way and not theirs; never mind that in Nebraska it happened once and hasn't since. Still its an undignified assault on judicial "independence/"Kenny's Blog. Justice Lanphier was the first and only victim of a successful judicial retention election against a sitting supreme Court justice. Those who tried to bring him down hardly ambushed him. As it turns out each side spent roughly equal amounts of money on the campaign. Although the Nebraska accountability and disclosure commission unsuccessfully sought to compel the anti lamprey forces to comply with the elections regulations act, now they must according to legislative amendments. 49-1405 REARS The People also defeated a constitutional amendment to require supreme court retention elections take place statewide. 1998. The other measures to remove a judge from office are Iimpeachment and a decision from Nebraska Judicial Qualifications Commission. That is hardly a sign that the independence of judges is at stake, assuming we must endure independent judges.
Posted by stan_sipple at 9:11 PM
Friday, September 08, 2006
Norfolk bank robbers death penalty appeal of finding him smart enough for execution is not a final order State v. Vela, S-06-595, 272 Neb. 287 The Nebraska Supreme Court dismisses Eric Vela's appeal from the Court's ruling that he was smart enough to face execution for participating in the 2002 Norfolk bank robbery. The right at issue in the instant case is both statutory and constitutional. See, § 28-105.01(2); Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002). However, both the statutory mandate and constitutional rule are based on the determination that "mentally retarded persons who meet the law's requirements for criminal responsibility should be tried and punished when they commit crimes," but "[b]ecause of their disabilities in areas of reasoning, judgment, and control of their impulses . . . they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct." Atkins, 526 U.S. at 306. See, also, Introducer's Statement of Intent, L.B. 1266, Judiciary Committee, 95th Leg., 2d Sess. (Feb. 13, 1998).Because it neither affected a substantial right nor was made in a special proceeding, the court's order overruling the defendant's motion to preclude imposition of the death sentence because of mental retardation was not a final, appealable order. For an appellate court to acquire jurisdiction of an appeal, there must be a final order entered by the tribunal from which the appeal is taken. In re Guardianship of Sophia M., 271 Neb. 133, 710 N.W.2d 312 (2006). When an appellate court is without jurisdiction to act, the appeal must be dismissed. State v. Dunlap, 271 Neb. 314, 710 N.W.2d 873 (2006).
Posted by stan_sipple at 3:36 PM
Thursday, September 07, 2006
Eighth Circuit denies appeal of drug conviction where suspect resisted arrest and tried to flee; police had independent grounds to arrest search and seize contraband from suspect even if no probable cause existed for intial pat downUS v Sledge aka Fowler. Parties disputed whether police had probable cause to search suspect stopped for active broadcasts and presence in car where suspected minor inpossession transaction took place. Suspect did run from police and when apprehended the police seized crack and $229. Eighth Circuit affirms. Resistance to an illegal arrest can furnish grounds for a second, legitimate arrest.” United States v. Schmidt, 403 F.3d 1009, 1016 (8th Cir. 2005);“When a defendant commits a new and distinct crime during an unlawful detention, the Fourth Amendment’s exclusionary rule does not bar evidence of the new crime.” United States v. Hunt, 372 F.3d 1010, 1012, (8th Cir. 2004). Neb. Rev. Stat. § 28-906(1). The mere act of running away from law enforcement officers constitutes physical interference or obstacle within the meaning of this provision. In re Interest of Richter, 415 N.W.2d 476, 478 (Neb. 1987)
Posted by stan_sipple at 3:19 PM
Sunday, September 03, 2006
Nebraska Departmentof banking seeks to revoke provisional license for check cashing business that allowed customers to rollover their loansOmaha.com Fast Money, a payday lender from Lincoln, is no longer able to offer new "delayed deposit" services because its license has expired, the Nebraska Department of Banking and Finance said Friday. An attorney for JHK Inc., which operates Fast Money at 1101 Arapahoe St., disputed the department's actions. Payday lenders loan money to people and hold on to their repayment checks until their paychecks are deposited in their bank accounts. Last year the department ordered Fast Money to show why its license should not be revoked. The action stemmed from "illegal rollovers of checks" by Fast Money, the department said, meaning that the company allowed customers to pay only a fee rather than requiring them to pay off their loans within the period set by law. The law limits the loan period so that people do not go too far into debt or pay excessive fees. In January, the department said in a press release, Fast Money agreed, without admitting wrongdoing, to pay a $10,000 fine and seek new ownership, and agreed that JHK President Jim Kyles would not participate in a delayed deposit business for five years. The department said it issued a provisional license while Fast Money's application for new ownership was being processed. In July the department denied the sale, saying the proposed purchaser, MDRC Investments Inc., was not qualified and was not familiar with Nebraska law. The department said it gave the company 30 days to find another buyer, but when that didn't happen the license expired at noon Thursday. Fast Money can collect on earlier loans but not enter new ones, the department said. A man who answered Fast Money's telephone referred questions to attorney Terry Barber, who said the department exceeded its authority by calling the license provisional and by taking other actions. Barber said the law gives the department authority only to issue annual license renewals, not provisional licenses, and Fast Money's license was issued about May 1. He said the department sent notice of a hearing in October, so it is unclear why the license would expire now. He said the rejection of the new ownership is being appealed. Mike Cameron, legal counsel for the banking department, said that the department has a practice of issuing provisional licenses in some instances, and that because the license has expired the only issue for the October hearing is whether to impose a fine based on the company's actions. He said the department has not received notice of an appeal of the sale rejection.
Posted by stan_sipple at 3:48 PM
It must be some kind of message: more developments in the Johnny gosch caseMother of boy kidnapped in 1982 finds old photographs someone deposited at her home. Police said Friday that Iowa crime experts were examining photographs to determine if they depict Johnny Gosch, a newspaper carrier who disappeared 24 years ago. Noreen Gosch, Johnny's mother, said she found the photos Sunday at her front door. Johnny Gosch disappeared on Sept. 5, 1982, while delivering newspapers in West Des Moines. Lt. Jeff Miller, a spokesman for the West Des Moines Police Department, said the photos were given to the computer crime task force of the Iowa Division of Criminal Investigation. Miller said police have not positively identified the boy in the photographs as Johnny Gosch. He also said it was not immediately known when the photos were taken. "That's one of the reasons we're going to the DCI and let the experts take a look at them," Miller said. Noreen Gosch gave the photos to police on Tuesday. It wasn't clear why she didn't immediately turn over the photos to police. Though police said they have not positively identified the boy in the photo as Johnny Gosch, his mother had no such doubts. She said one photo shows a boy wearing sweat pants like the pants her son wore when he disappeared. In the photo, the youth's mouth is gagged and his hands and feet are bound. Gosch said the other photo shows the same boy with two other boys. All three are bound and gagged. Miller would say only that the photos were of boys whose ages he estimated at between 10 and 14. Finding the photos raises questions and memories, Noreen Gosch told the Associated Press on Thursday. "It's like reliving it," she said. "But the bigger picture is, why are they doing this? "Whoever had these photos had them for 24 years," she said. "I don't understand why they would do this now. It must be some kind of message." Johnny Gosch's disappearance triggered nationwide concern over abducted children. His was one of the first faces of missing or abducted children to appear on milk cartons across the country. His newspaper wagon was discovered near his West Des Moines home. Few clues have been discovered since then, but his disappearance has led to several theories. Noreen Gosch believes her son was taken by child pornographers. She has told authorities her son briefly contacted her in 1997 but feared for his life and declined to give details about where or how he could be contacted.
Posted by stan_sipple at 3:26 PM