IRS is cracking down on wealthy families' using "family limited partnerships" to reduce their gross estates under IRC 26 Sec 2036.Kansas City Star Business.The IRS is intensifying its scrutiny of family limited partnerships, a popular technique for reducing estate and gift taxes. “We think it’s a significant area of abuse,” said Aileen Condon, chief of the estate and gift tax program in the IRS’ small business/self-employed division. Recent cases have helped clarify what are legitimate versus illegitimate "FLPs" and helped the IRS more aggressivle audit and challenge them.Usually wealthy parents anticipating death transfer assets into a partnership formed with their children. Most of the shares in the partnership are eventually given to the children. Parents retain a small ownership stake and sometimes are the general partner, which means they can make management decisions about the assets. Because the children often receive limited partnership interests with less control, the value of their limited shares often can be discounted at least 20 percent, thereby lowering the gift tax bite. Partnership interests given to the children also may be considered out of the parents’ estate.The Fifth Circuit Court of Appeals has issued two signifcant rulings on FLP's, one favorable to them and one favorable to the government. In the Strangi Estate v. the Commissioner of Internal REvenue, the 5th Circuit found no substantial purpose other than tax avoidance for the transaction. Remand opinion here. However in the Kimbell case, the Circuit ruled for the taxpayers, finding that the decedent had left enough assets in her own name to find a legitimate reason for the partnership structure, although there were other considerations including liability for environmental exposure.

Employer owes waiting time penalties interest and attorney fees when there is no dispute as to compensability of accident even though there may be a dispute as to disability; Nebraska court of appeals, J Inbody unpublished opinion Burnham v. Pacesetter Corp. (Not Designated for Permanent Publication) Filed January 31, 2006. No. A-05-815. All medical experts related plaintiffs complaints to occupational accidents, but there was a dispute as to extent of impairment and disability. Court of Appeals agrees that trial court should have allowed penalties:

A reasonable controversy under § 48-125 may exist (1) if there is a question of law previously unanswered by the appellate courts, which question must be answered to determine a right or liability for disposition of a claim under the Nebraska Workers' Compensation Act, or (2) if the properly adduced evidence would support reasonable but opposite conclusions by the Nebraska Workers' Compensation Court concerning an aspect of an employee's claim for workers' compensation, which conclusions affect allowance or rejection of an employee's claim, in whole or in part. Milliken v. Premier Indus. 13 Neb. App. 330, 691 N.W.2d 855 (2005).

Nebraska Court of Appeals (J. Carlson) reverses Douglas County District Court and orders Famous Dave's restraunteur William Theisen's child support reduced from $15000 to $700/monthTheisen v. Theisen, 14 Neb. App. 441 January 31, 2006. No. A-05-103. The father, heir to the Godfather's founder Willy Theisen's fortune and himself an owner of several Famous Dave's restaurants initially paid child support for five children to his wife through a family trust, in the amount of $15000 per month. The $15k/month was through the spouse's separation agreement, consent decree, which did not specify reduced amounts as the chidren reached majority. The trust ended and the father sought modification. Wife wanted to keep the fifteen dimes coming every month even though by that time only one child was still under 19. The trust no longer paid the wife a straight $15k/month, but instead paid directly significant expenses for their children. The District Court denied the father's motion to modify the child support. The court of appeals reverses.

Child support orders are always subject to review and modification. Reinsch v. Reinsch, 259 Neb. 564, 611 N.W.2d 86 (2000)...it is clear that the parties included the provision allowing either party to modify upon certain conditions, not because the trust's payments were for a certain time, but because the length of the trust's payments was uncertain or speculative. The parties' agreement regarding a subsequent modification is an acknowledgement by both parties that if the trust stopped making the payments, or if the payments continued but were inadequate, a material change of circumstances had occurred...At the modification hearing, William testified that he did not have a source of income when he signed the parties' settlement agreement, but, rather, he was supporting himself by liquidating his $1 million share of the marital assets. For these reasons, we conclude that the trial court abused its discretion in finding that a material change in circumstances had not occurred. We go on to modify William's child support obligation accordingly, giving due deference to the best interests of the children.

At the time of the modification hearing the father was earning over $500k/year while at the time of the divorce he made nothing (and its tough trying to live off his liquidated share of marital property following the divorce worth a paltry $1million). The court of appeals sets child support based on maxiumum child support guideline income permonth of $10k, as when family income exceeds this, the guidelines allow a discretionary increase. But in this case the court of appeals deviates and orders only $700/month child support, the amount of money the mother states she spends out of pocket every month. Also the trust continued to pay childrens significant expenses:

Given the evidence that the trust is paying all of the major expenses of the minor children, we conclude that it is both equitable and in the children's best interests to deviate from the child support guidelines in setting William's child support obligation. The record clearly shows that ordering William to pay according to his income would be both unjust and inappropriate, given the evidence that the trust pays all of the children's expenses except some minor expenses still being incurred by Karen. Therefore, on this record we set William's child support obligation using the evidence of Karen's expenses for the children. Given that Karen incurred approximately $700 in monthly expenses for the children from December 2003 through December 2004, we order William to pay Karen child support of $700 per month. William should pay this amount until Cody reaches the age of majority under Nebraska law, becomes emancipated, becomes self-supporting, marries, or dies, or until further order of the court.

Nebraska Supreme Court affirms Trial court's disqualifying defense counsel for co-defendants when State filed intention to drop charges against one in return for giving full testimony against the other codefendantState v. Kawa, 270 Neb. 992 January 27, 2006. Nos. S-05-768, S-05-769. When prosecuting attorney filed notice that he would offer the testimony of a co defendant against the principal defendant in a mail fraud scheme he also asked the court to disqualify defense counsel. The court found an actual conflict and even though the defendants waived conflicts, the court still ordered disqualification. the Supreme Court affirms disqualifying counsel as to both defendants. A trial court must recognize a presumption in favor of a defendant's counsel of choice, but that presumption may be overcome by a demonstration of actual conflict or a showing of a serious potential for conflict. Disqualification in such cases is necessary because when a defendant is represented by an attorney who has an actual or potentially serious conflict, the defendant may be deprived of effective assistance of counsel. State v. Ehlers, 262 Neb. 247, 631 N.W.2d 471 (2001). It has generally been found to be an actual and serious conflict of interest when a lawyer represents two codefendants, one of whom pleads guilty pursuant to an agreement to testify against the other.. it is evident that the successful conclusion of a plea agreement for Flanagan will require that Flanagan offer evidence prejudicial to Kawa. This unavoidable prejudice to either one defendant or the other places defense counsel in a conflict between the interests of the two... a court is not required to accept a defendant's waiver in all circumstances. The presumption in favor of a defendant's counsel of choice may be overcome by a demonstration of actual conflict, and the trial court's conclusion that an actual conflict is present in this case is supported by the evidence and not clearly wrong. Disqualification is necessary in this case, to protect both the defendants' constitutional rights and the court's independent interest in the fairness of the proceedings and ethical standards of the profession. The defendants did not ask the court to narrow its remedy by ordering withdrawal fromrepresenting only one defendant: that the defendants have neither assigned as error nor argued in their appellate brief that defense counsel should have been permitted to withdraw from representation of one of the defendants, but continue to represent the other defendant. We therefore do not consider whether the conflict of interest present in the instant case would have been resolved by counsels' withdrawal to single representation.

Pinnacle Bank's replevin case against defaulting construction project borrower dismissed because creditor could not identify segregated funds from the banks loan check, per Nebraska Supreme Court J. Connolly Pinnacle Bank v. Darland Constr. Co., 270 Neb. 978 January 27, 2006. No. S-04-1062. courts from other jurisdictions unanimously agree that unless money is marked or otherwise labeled for identification, it is not subject to replevin because it is not specifically identifiable.

Pinnacle consistently sought a writ of replevin, stood on its pleading, and proceeded to trial solely on a theory of replevin. But the money consisted of a check that was cashed. Thus, the funds are--or were--either held as cash or in Watkins' bank account. The specific funds were not marked or set aside in a manner that would allow them to be specifically identified. Therefore, the funds were not subject to an action for replevin. Accordingly, the county court should have dismissed Pinnacle's complaint as requested by Watkins in its answer.

Ohio based Sanitation contractor that sued former employees who opened competing cleaning company for the Dakota City Tyson plant loses summary judgment appeal at the Eighth Circuit Court of Appeals (Riley, Circuit Judge) DCS Sanitation Mgt. v. Eloy Castillo051201P.pdf 01/25/06 District of Nebraska; Judge Smith Camp granted summary judgment in favor of former DCS sanitation company employees who opened up their own company to clean the Dakota City Tyson Foods plant. They were subject to non-compete agreement which purported to prevent their competing with the plaintiff for 1 year after ending employment with the plaintiff, and further that Ohio law would govern the contract. The employees opened up their own company cleaning for Tyson before their one year contract window had expired. The former employer sued in federal court for an injunction. Judge Smith Camp dismissed, granting summary judgment to the defendants, and applied Nebraska law to the non-compete agreement. The Eighth Circuit affirms, finding the district court properly concluded Nebraska law applied because of its greater material interest than Ohio and because Ohio law was contrary to Nebraska's fundamental policy to reject judicial reformation of noncompete agreements. District court also properly concluded the noncompete agreements were overbroad and unenforceable.

Because Nebraska has a greater material interest in the Agreements and application of Ohio law would violate a fundamental policy of Nebraska law, we holdthe district court correctly applied Nebraska law to the question of the validity and enforceability of the noncompete agreements. See First Nat’l Bank v. Daggett, 497 N.W.2d 358, 363 (Neb. 1993) (disregarding choice-of-law provision because the chosen state had no contacts with the transaction and the parties, and application of the chosen state’s law would offend a strong public policy in the forum state

. We conclude the district court properly held the noncompete agreements were overbroad and unenforceable. The district court recognized the noncompete agreements prohibit the former employees from, directly or indirectly, being concerned in any manner with any company in competition with DCS, and from providing contract cleaning services within one hundred miles of any entity or enterprise “having business dealings” with DCS, including attorneys, accountants, delivery services and the like. The breadth of the noncompete agreements effectively put the former employees out of the cleaning business within an extensive region. We hold the district court did not err in concluding Nebraska courts would not enforce such overly broad noncompete agreements. See Rosno, 680 N.W.2d at 186-87 (holding noncompete agreement was overly broad where the agreement prohibited the former employee from soliciting or contacting any of the former employer’s clients and where the former employer could not establish the former employee had done business with or had substantial personal contact with all of the former employer’s clients); Even if the defendants might have been in violation of a reformable noncompete, because Nebraska prohibits reformation of non compete agreements, the Plaintiff's non-compete was completely ineffective

Colorado Supreme Court allows deceptive trade practices suits against attorneysPoint of Law informs us the Colorado Supreme Court this month allowed an aggrieved client of high volume personal injury law firm Azar and Associates to add to his malpractice claim against the law firm a Colorado statutory deceptive trade practices count (Colorado Consumer Protection Act "CCPA" § 6-1-105, C.R.S. (2005). Crowe v Tull and Azar & AssociatesThe Colorado Supreme court rejected the "actual practice -entrepreneurial aspects of law"distinction that has insulated attorneys from suits under deceptive trade practices actions in other states. However, it appears that even the plaintiff's counsel came up a little short on their pleading; but the lawyers opposing Azar and Associates will also get a shot at the defendants' inside marketing practices:

Crowe’s bare bones original complaint only sketches the elements of a CCPA offense. Nonetheless, Crowe’s CCPA claim was dismissed by the trial court on improper grounds. Crowe’s amended complaint and his petition, which flesh out Crowe’s argument that the Azar firm is a "personal injury mill"using its advertising to deceive the public, show that Crowe is capable of asserting a claim that alleges the five elements of the CCPA, elucidated in Walter, and which we have held applicable to attorneys in this opinion. 969 P.2d 224. Therefore, in light of today’s decision, we direct the trial court to permit Crowe to replead his CCPA claim. We also note that in repleading, Crowe must allege facts sufficient to support the inference that Tull and Azar knowingly engaged in a deceptive trade practice which Crowe relied upon. See Martinez, 969 P.2d at 220-22 (medical doctor who misrepresented his ability to diagnose organic brain injury may have committed deceptive trade practice) . Further, if Crowe fails to allege an injury other than a private wrong caused only by the poor advice of his attorney, the injury will lack public impact and will be too narrow in scope to be covered by the CCPA. See id. at 220-23 (CCPA claim dismissed because misrepresentations were made only to patient’s insurer) . The original complaint failed to adequately set forth these elements. Finally, we direct the trial court to reconsider the protective order which shut down discovery related to the Azar firm’s advertising and marketing practices, including the production of its television, radio, and print advertisements, and certain of its operations and practices in serving past clients. These avenues for discovery were closed by the trial court after the CCPA claim was dismissed on improper grounds.

Follow up: U.S. Supreme Court denies cert on second time up for the Minnesota judicial elections case, lets Eighth Circuit's August 2005 ruling throwing out judical and attorney ethics rules prohibiting party affiliations and personal solicitations standLaw.com The Supreme Court refused Monday to decide whether states can restrict candidates for judgeships from participating in political party activities and soliciting campaign contributions, upholding the Eighth Circuit Court of Appeals enbanc decision in August to hold unconstitutional the following Minnesota Ethics rules regulating judicial elections: • Attending and speaking at political gatherings. •Seeking political party endorsements and publicize endorsements they receive. • Identifying themselves as current or past members of a political party. • Personally soliciting campaign contributions, rather than relying on surrogates to ask for money for them. This is a case of the odd-fellows as the American Bar Association teamed up with several large corporations to urge the Supreme Court to take the case up and reinstate the regulations on judicial elections

The American Bar Association and 39 of the country's largest corporations had urged the justices to take the case to ensure the credibility of judicial elections nationwide. The ABA said the lower court's ruling has thrown judicial elections in 31 states into confusion because they have similar rules to those that were invalidated. The corporations -- including Dow Chemical, General Electric, General Motors, PepsiCo and Wal-Mart -- said they don't want judicial elections to become as polarized as campaigns for other elective offices.

A little scolding from the U.S. Supreme Court on trial counsel's misstep: SCOTUS reverses Federal Circuit ruling in favor of Con Agra; SCOTUS (J. Thomas) holds that the Federal Circuit could not review District Court ruling that denied ConAgra a Rule 50(a) that ConAgra failed to renew post verdict with a Rule 50(b) or Rule 59 motion for a new trial or JNOV. UNITHERM FOOD SYSTEMS, INC. V. SWIFT-ECKRICH, INC. (04-597) 375 F.3d 1341, reversed. In antitrust action against Conagra for using patent application to monoplize market for browning method for cooked meat,Conagra filed a Rule 50(a) motion before submission of case to jury. The District Court denied Conagras Rule 50(a) motion. After the verdict went against Conagra, it did not file a post judgment Rule 50(b){JNOV or motion for new trial} nor a 59 {new trial} motion. Supreme Court Justice Thomas rules, nothwithstanding 10th Circuit rule allowing appellate review of Rule 50(a) denials without the accompanying Rule50(b) renewal motion, the Federal Circuit should not have reversed the verdict against Conagra on the basis of its unrenewed 50(a) motion. AS Wright and Miller explain:

“Even at the close of all the evidence it may be desirable to refrain from granting a motion for judgment as a matter of law despite the fact that it would be possible for the district court to do so. If judgment as a matter of law is granted and the appellate court holds that the evidence in fact was sufficient to go to the jury, an entire new trial must be had. If, on the other hand, the trial court submits the case to the jury, though it thinks the evidence insufficient, final determination of the case is expedited greatly. If the jury agrees with the court’s appraisal of the evidence, and returns a verdict for the party who moved for judgment as a matter of law, the case is at an end. If the jury brings in a different verdict, the trial court can grant a renewed motion for judgment as a matter of law. Then if the appellate court holds that the trial court was in error in is appraisal of the evidence, it can reverse and order judgment on the verdict of the jury, without any need for a new trial. For this reason the appellate courts repeatedly have said that it usually is desirable to take a verdict, and then pass on the sufficiency of the evidence on a post-verdict motion.” 9A Federal Practice §2533, at 319 (footnote omitted).Thus, the District Court’s denial of respondent’s preverdict motion cannot form the basis of respondent’s appeal, because the denial of that motion was not error. It was merely an exercise of the District Court’s discretion, in accordance with the text of the Rule and the accepted practice of permitting the jury to make an initial judgment about the sufficiency of the evidence. The only error here was counsel’s failure to file a postverdict motion pursuant to Rule 50(b)

United States Supreme Court grants cert to review scope of Title VII "anti-retaliation" provisions in case where Burlington Northern Railroad is the Defendant from Sixth Circuit Court of Appeals (Tennessee); Eighth circuit has ruled against employees on this issueJones Day Law Firm. SCOTUS has accepted cert in Burlington Northern Santa Fe Railway Co. v. White from the Sixth Circuit Court of Appeals where employee complained that unfavorable employee assignments and disciplinary actions against her followed her making a Title VII complaint against Burlington Railroad. Burlington Northern Santa Fe Railway Co. v. White, (6th Circuit cert granted ) The United States Court of Appeals for the Sixth Circuit held that Burlington Northern Santa Fe Railway Co. unlawfully retaliated (42 U.S.C. § 2000e-3(a) (section 704(a) of Title VII) against Sheila White by making "materially adverse" changes to White’s terms of employment after she complained about sexual harassment—specifically, by transferring her to a more strenuous job and by temporarily suspending her without pay while investigating an unrelated act of insubordination. Eight other federal courts of appeals, like the Sixth Circuit, define retaliation as a "materially adverse" change in terms of employment because of an employee’s complaint about discrimination. The Eighth Circuit disagreed in Montandon v. Farmland Indus., Inc. (8th Cir. 1997); Manning v. Metropolitan Life Ins. Co., Inc. (8th Cir. 1997), holding that the "ultimate employment decision" test applies to determining whether unlawful retailiation has taken place.

Caution for attorneys offering by judicial notice records of related proceedings: Supreme Court (J. McCormack) recommends referring to specific adjudicative facts in the court files for which the party requests the court take judicial noticeStrunk v. Chromy-Strunk, 270 Neb. 917 Filed January 20, 2006. No. S-04-879. In dispute whether the provision in a divorce decree requiring the spouse retaining property to pay the other spouse $75K in the event the objecting spouse argued the court could not simply admit into evidence its entire file. The Supreme Court recommends greater precision in asking Courts to take judicial notice of adjudicative facts. Cf 27-201 RRS Neb. "'[c]are should be taken by the court to identify the fact it is noticing, and its justification for doing so.'" (Quoting Colonial Leasing etc. v. Logistics Control G.I., 762 F.2d 454 (5th Cir. 1985). Thus trial courts should not simply take notice of all pleadings, adjudication, and records that were admissible in prior proceedings involving the parties before the court, especially where the record was voluminous. IN this case the court's failure to identify the adjudicated facts in the trial court file was harmless:

Here, the district court was correct in formally introducing its prior proceedings into evidence and making such evidence a part of the record. See, In re Interest of C.K., L.K., and G.K., supra; Gottsch v. Bank of Stapleton, 235 Neb. 816, 458 N.W.2d 443 (1990). It should have done so, however, by individually noticing those elements considered relevant and competent for the issues presented. Still, any error committed by the district court is clearly harmless because our review, as will be seen below, presents only questions of law. See Husen v. Husen, 241 Neb. 10, 487 N.W.2d 269 (1992). We need not decide in a de novo review whether to disregard the entire file presented in this case, because the facts contained therein are irrelevant to our analysis

.

Nebraska Supreme Court rules no double jeopardy issue when Prosecutor moved to amend DWI complaint after swearing in first witness to reflect location of offense; Supremes also decline to order DNA testing on firearm defendant used to shoot crime victim in murder case State v. Furrey, S-04-1158, 270 Neb. 965 State v. Dean, S-05-626, 270 Neb. 972 In 2 procedural criminal cases the Nebraska Supreme Court finds no double jeopardy problem in allowing the prosecutor to amend the DWI complaint to reflect the location of the offense (Furrey). In Dean the supreme court found no abuse of discretion in refusing to order DNA testing of firearm used in murder because testing would have been inconclusive. PLus, the defendant at trial had admitted using the weapon

Furrey: Here, the first complaint correctly stated all of the statutory elements of the offense. It was brought before the judge of the county in whichthe offense was allegedly committed, and it described the offense as a Class Wmisdemeanor. In fact, other than the correction that Furrey was simply within the county and not within the city limits; the setting forth that the deputy county attorney, rather than the special city attorney, was bringing forth the complaint; and the citation to § 60-6,196(2)(a) as the offense, rather than the city ordinance, the two complaints are identical. Despite the fact that Furrey never alleged that he had been prejudiced or misled by the errors of the original complaint, the county court granted Furrey a continuance and allowed him to withdraw his prior plea. Under these circumstances, it cannot be said that the amended complaint either changed the offense charged or prejudiced Furrey's substantial rights. Thus, there was no error in allowing the amended complaint, and the amendment was simply a continuation of a single trial.

Dean:

even assuming a biological sample did exist and that Dean's DNA was absent from that sample, on the record before us, it would be mere speculation to conclude that the absence of Dean's DNA on the firearm and ammunition would exclude him as being the person who fired the fatal shot. This is particularly so in view of the persuasive and undisputed trial evidence to the contrary. See State v. Lotter, 266 Neb. at 770, 669 N.W.2d at 448 (holding that "mere speculation" to conclude that absence of murder victim's blood on defendant's clothing and presence on accomplice's clothing would establish that accomplice and not defendant had fired fatal shots). We conclude that the trial court did not abuse its discretion in refusing DNA testing because even if such tests produced the result that Dean predicts, the result would not be exculpatory.

Caution for lawyers' (and judges') counting deadlines: a month is not thirty days: Nebraska Supreme Court (CJ Hendry) rules that Court of Appeals improperly equated the speedy trial law's 6 month deadline with the Detainer law (IAD's) 180 day deadline (Follow up post)State v Rieger January 20, 2006. No. S-03-670. The Defendant appealed the lower court's ruling that did not find ineffective trial counsel (cf Strickland v Washington) by failing to win a dismissal of his robbery charges under the 180 day rule of the Interstate Agreement on Detainers. The IAD is in Chapter 29, Section 759 of the Nebraska Revised StatutesNebraska IAD. The court of appeals ruled that using the Nebraska State 6 month rule and adding additional time for motions the Defendant did come to trial in time, even though defense counsel failed to offer evidence of when Nebraska had received his disposition of detainers demand. The Nebraska Supreme Court summarized the detainer issue:

Counting forward 180 days from July 29, 1996, the date the State received Rieger's request for disposition, produces an initial trial date of January 25,1997. Counting forward 6 months from July 30, 1996, and backing up 1 day,pursuant to the 6-month speedy trial rule, produces an initial trial date ofJanuary 29, 1997. This 4-day difference in initial trial dates is crucial in determining whether Rieger was timely tried. As noted, the Court of Appeals relied on article VI of the Agreement to conclude that Nebraska's 6-month speedy trial rule should be applied to determine the expiration of the 180-day time limitation for trial. Thus, the issue presented is whether the language of the Agreement supports that interpretation

. The Nebraska Supreme Court finds that treating 6 months as equal to 180 days results in a discrepancy in the time limit defendant had to come to trial. The court should not have substituted the state 6 month time for the IAD 180 days

Although article VI(a)allows the court with jurisdiction to determine whether the 180-day time period in article III has been tolled, it does not authorize a court to alter the time period from days to months. The plain language of article III(a) requires the receiving state to bring a prisoner to trial within 180 days of receiving the prisoner's proper request for final disposition. In contrast, § 29-1207 requires the State to bring a defendant to trial within 6 months. Compare State v. Jones, 208 Neb. 641, 305 N.W.2d 355 (1981) (rejecting as contrary to plain language of § 29-1207 defendant's contention that Nebraska's 6-month speedy trial rule should be calculated by counting forward 180 days plus any excludable days).

Therefore counsel's ineffective error in fighting the detainer issue resulted in Strickland prejudice

The failure of (defense counsel) to create a proper record for appeal from the denial of Rieger's motion to discharge resulted in the Court of Appeals' failure to consider when the time limitation for trial expired. As discussed, a calculation based on 180 days, as extended by the Court of Appeals' excludable time periods, results in a trial deadline of August 4, 1997, and Rieger's trial did not begin until August 18. Under article V(c), Rieger was entitled to an order dismissing the action with prejudice. Given our holding that Rieger's trial was not timely, we conclude that if (def counsel) had shown the 180-day time limitation was triggered, a reasonable probability existed that an appeal or petition for further review from the denial of Rieger's motion to discharge would have resulted in a reversal.

Mosquito bite leads to West Nile and a FELA case against Union PacificOmaha.com reports that Union Pacific train conductor Vivika A. Deviney has filed a FELA case claiming damages from catching West Nile virus from, you guessed it an unsafe mosquito at work. You see under FELA the railroad must provide a safe work environment. Consequently Union Pacific had to spray every mudhole along its thousands of miles of track to eradicate those pesky bugs. Interesting comment when even the Plaintiff's counsel realizes the case is a shakedown, the attorney will retreat into an abstract defense of the law behind his flimsy case.

Nebraska Court of Appeals (J.Sievers) throws out search warrant for drugs in a hotel room under exception to Leon good faith rule: "the warrant is based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." State v. Holguin, 14 Neb. App. 417 January 17, 2006. No. A-05-091. Scottsbluff police officers stopped a suspect for having expired plates. Police searched the vehicle and found contraband and a hotel room key. The suspect refused to allow police to search the hotel room. Another undercover officer had "intelligence"that the other occupant of the hotel room was a drug dealer, but did not obtain this information through reliable informants or his own observations. The Scottsbluff court upheld the search warrant after police found drugs and accessories. The Court of Appeals reverses, holding that even under US v Leon, explained in State v. Edmonson, 257 Neb. 468, 485-86, 598 N.W.2d 450, 463 (1999). , the police officer's affidavit of probable cause so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." because the affidavit is so clearly lacking in indicia of probable cause on its face, being what has frequently been called a "'bare bones'" affidavit in previously decided cases, see U.S. v. Koons, 300 F.3d 985, 991 (8th Cir. 2002) ("bare bones" affidavit is one which relies on uncorroborated tips or mere suspicion). Without the "intelligence" or "further information," Mendoza and Montanez are only tenuously connected by a motel room key and nothing else. While Ewing's "intelligence" or "further information" may have been such that he could reasonably believe that room No. 11 probably contained evidence of drug trafficking, the problem is that no basis for reliance on that belief is found anywhere in the record, and the standard is an objective one for a police officer with a reasonable knowledge of what the law prohibits, rather than a subjective one of what Ewing knew but did not disclose in the suppression hearing or in the affidavit. The fact that Mendoza, a cocaine dealer, has a key to a motel room does not make it probable that evidence of cocaine trafficking will be in that motel room, particularly when it is not registered to him, and the police, at least on the record before us, had no knowledge or even reason to believe--prior to the execution of the warrant--that Montanez or room No. 11 was involved with Mendoza's cocaine selling activities. For the Leon good faith exception to apply in the instant case, it must be "probable" from the totality of the circumstances that the officers objectively and reasonably believed that incriminating evidence would be found in room No. 11. In short, this case reveals a failure of proof, not "bad faith" by the officers. Therefore, the good faith exception does not apply here and the trial court erred in overruling Montanez' motion to suppress. Court remands for a new trial, because the evidence admitted even if erroneous provided enough evidence to convict. The Double Jeopardy Clause does not forbid retrial so long as the sum of the evidence offered by the State and admitted by the trial court, whether erroneously or not, would have been sufficient to sustain a guilty verdict. State v. Allen, 269 Neb. 69, 690 N.W.2d 582 (2005).

Nebraska Supreme Court scolds Douglas County Court "queen of nice" Judge Jane Prochaska for failing to conduct hearings on the competency of an elderly man subject to contested guardianship proceedings On plain error, the Nebraska Supreme Court orders the Douglas County Judge to conduct a prompt hearing on the competency of Mr. Larson who was the subject of the case. the Judge also refused to allow Mr. Larson to hire and fire his attorneys, where it appeared that the "temporary guardian" may have been involved in self-dealing and filed on MrLarson;s behalf a suit to set aside a sale of land the ward had made. In re Guardianship & Conservatorship of Larson, S-05-257, 270 Neb. 837 The supreme court found the issues actually appealed mooted but took the opportunity to chastise often controversial and public Judge Prochaska for her handling of the case: the record before us raises many concerns with regard to the manner in which the court has conducted its proceedings. Most egregious is the court's failure to hold an evidentiary hearing on Larson's competency during the approximately 8 months of proceedings which took place under a temporary guardianship and conservatorship.

While § 30-2626(d) does provide that the 90-day temporary guardianship period may be extended for good cause shown, it is hard to imagine what "good cause" could justify a delay of 8 months. Regardless, it cannot be said that the court's summary conclusions as to good cause and its orders extending the temporary guardianship and conservatorship until further court order qualify as a showing of good cause sufficient to circumvent the alleged incapacitated person's right to a speedy resolution of whether, in fact, a need exists to restrict his or her independence to the extent exercised by a temporary guardianship or conservatorship. Here, Larson has clearly asserted that he is not incapacitated, at least not to the extent asserted by the petition for the appointment of a guardian and conservator. Yet the court, under the advice primarily of the GAL, appears to treat Larson's complete incompetence as a foregone conclusion. Without giving Larson the benefit of an evidentiary hearing to determine competency, the court ignored Larson's expressed wishes regarding Looby's not being his guardian and conservator. The court ignored Larson's expressed wishes as to who his attorneys of record should be. The court refused to allow Larson to dismiss Wilson, despite the fact that Wilson had long since ceased to advocate for her client's expressed desires or to pursue Larson's right to an evidentiary hearing. Instead, the court allowed Looby, for an extended period of time, almost unlimited powers as temporary guardian and conservator over Larson's personal liberty and his financial affairs.

It is clear that the failure of the court to follow the statutory mandates with regard to the limited nature of the powers and duties of the temporary guardian and conservator, as well as its failure to follow the mandate of a timely evidentiary hearing on competency, constitutes plain error.

Nebraska Supreme Court rejects terminated parents' claims that allowing the State to terminate parental rights by "clear and convincing" evidence unlawfully discriminates against them when Nebraska requires the criminal "proof beyond a reasonable doubt" standard when considering the parental rights of IndiansIn re Interest of Jagger L., S-05-153, 270 Neb. 828 In re Interest of Phoenix L., S-05-536, S-05-537, 270 Neb. 870. In these companion termination of parental rights cases, the mother (Phoenix L) argued that since parents of Indian children are entitled to proof beyond a reasonable doubt before losing their children, parents of non-Indians suffer unlawful discrimination under the Equal Protection Clause because their standard of proof is "clear and convincing." Sonya argues that because the burden of proof required to terminate parental rights to non-Indian children under § 43-279.01(3), to which she was subject, is a lesser standard of proof than that required to terminate parental rights to Indian children under the NICWA, § 43-1505(6), parents subject to § 43-279.01(3) are discriminated against on the basis of race. We conclude that Sonya has failed to establish § 43-279.01(3) violates equal protection guarantees and further conclude that the juvenile court did not err when it rejected Sonya's constitutional challenge to § 43-279.01(3). Congress enacted the Indian Child Welfare Act of 1978 (ICWA)to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture.25 U.S.C. § 1902 (2000) § 43-1502, states: The purpose of the [NICWA] is to clarify state policies and procedures regarding the implementation by the State of Nebraska of the federal Indian Child Welfare Act, 25 U.S.C. 1901 et seq. It shall be the policy of this state to cooperate fully with Indian tribes in Nebraska in order to ensure that the intent and provisions of the [ICWA] are enforced. The difference in the statutes implicated in this case between the parents of non-Indian as distinguished from Indian children is attributable not to race but is attributable to and is an incident of the historical sovereignty of Indian tribes. Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 8 L. Ed. 483 (1832) Morton v. Mancari 417 U.S. 535, 554, 94 S. Ct. 2474, 41 L. Ed. 2d 290 (1974) Nebraska legislation that differentiates between the parents of Indian and non-Indian children relative to the burden of proof for termination of parental rights is not due to racial discrimination. Given the United States' history in dealing with Indians and the U.S. Supreme Court's decisions with regard to legislation pertaining thereto, we conclude as a matter of law that the lower standard of proof under § 43-279.01(3) for the termination of parental rights to non-Indian children, as opposed to the higher standard of proof under the NICWA, does not violate the equal protection rights of parents of non-Indian children. In the fathers case (Jagger L) the Supreme Court found clear and convincing proof that the children were properly under court jurisdiction; that the child had been in out of home placement for at least 15 months out of the past 22 and that their best interests required termination of parental rights, notwithstanding the fathers minimal efforts to support them.

Nebraska Court of Appeals (J.Cassel) affirms summary judgment against Omaha firefighters who sought automatic pay raises when City merged Millard Fire Department with the Omaha Fire DepartmentMcKenzie v. City of Omaha, 14 Neb. App. 398 January 10, 2006. No. A-04-1134. Omaha firefighters who had more time in service sought backpay following the Omaha Fire Department's absorbing the Millard Fire Department's personnel in 1998. Under Omaha Municipal Ordinance 23-148, less senior members in grade may not make more than members with higher seniority. Court of Appeals rules that the ordinance command that seniority command higher pay applies to the "paramilitary" nature of fire and police departments structures, and did not apply between members of the fire department who had the same rank, but having different time in service. The Court of Appeals went to dismiss firefighters' contention that the merger enabling ordinance, Ordinance No. 34398 was merely a resolution and thus could not conflict with the supposedly clear command from 23-148 that more senior in time officers get paid more than the newly absorbed officers. Courts holding on meaning of seniority in 23-148:

the Firefighters equate the words "such member's senior" with someone who has greater seniority in length of service. Second, the Firefighters treat the phrase as comparing individuals of the same rank, grade, or class. We consider both of these readings to be inconsistent with the plain meaning of OMC § 23-148. Correctly interpreted, "such member's senior in rank, grade or class" refers to an officer who has a greater or higher rank, grade, or class than the "uniformed member" being compared. See id. This interpretation naturally flows from the paramilitary nature of police and fire organizations. By its terms, OMC § 23-148 applies to the City's police department as well as its fire department. The purpose can be readily understood and easily demonstrated in the more familiar ranks of a typical police department. The ordinance simply contemplates the possibility that for some unspecified reason, a lower ranking officer such as a sergeant might be paid more than a higher ranking officer such as a lieutenant. In that situation, OMC § 23-148 operates to resolve the disparity between rank and pay by increasing the pay of the higher ranking officer. That purpose is completely absent in the instant case. The legislative history for OMC § 23-148--which consists of a very brief letter from an assistant city attorney to the Omaha City Council--paraphrases the language of the ordinance and does not affect our interpretation of the ordinance's plain language.

Why ordinance 34398 was not a mere resolution:

The crucial test for determining that which is legislative (ordinance) from that which is administrative or executive (resolution) is whether the action taken was one making a law, or executing or administering a law already in existence.

Kubicek v. City of Lincoln, 265 Neb. 521, 529-30, 658 N.W.2d 291, 298 (2003). See, also, Smith v. City of Papillion, 270 Neb. 607, 705 N.W.2d 584 (2005)

Regardless of whether ordinance No. 34398 is a resolution, we find no authority which would forestall us from considering an ordinance conjunctively with a resolution for the purpose of interpreting the ordinance. We consider OMC § 23-148 and ordinance No. 34398 in pari materia and proceed to interpret OMC § 23-148 accordingly.

Nebraska court of appeals upholds pedophile's harsher sentence on appeal after it vacated first sentence for first judge's inappropriate use of bible passages during sentencing State v. Bruna (Bruna II), 14 Neb. App. 408 Filed January 10, 2006. No. A-05-529. The Appeals Court vacated this defendants sentence the first time because the Sarpy County District court alluded during sentencing to his religious beliefs and other personal experiences. Bruna I The Court vacated the defendants 15-50 year sentence. On remand a different judge from Douglas County upped the defendant's sentence to 20-50. The Court of Appeals finds no North Carolina v Pearce presumption of vindictiveness because the judges changed. Further defendant had no other proof of actual vidictiveness on re-sentencing. North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), overruled on other grounds, Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989) holds that a presumption of vindictiveness arises when a defendant receives a harsher sentence after successfully appealing his case.

whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.

Texas v. McCullough, 475 U.S. 134, 106 S. Ct. 976, 89 L. Ed. 2d 104 (1986),suggests that no Pearce presumption of vidictiveness arises when different factfinders impose punishment on remand: The presumption is also inapplicable because different sentencers assessed the varying sentences that [the defendant] received. In such circumstances, a sentence "increase" cannot truly be said to have taken place. .

In the case before us, the procedural history does not support Bruna's position that his successful appeal was the motivation for the greater sentence. The second judge did not have a personal stake in the first sentence or a personal motive for vindication, and like the U.S. Supreme Court in Texas v. McCullough, 475 U.S. 134, 106 S. Ct. 976, 89 L. Ed. 2d 104 (1986), we decline to base the presumption on speculations of judicial vindictiveness.

Finally on plain error review the Court finds no actual vindictiveness on resentencing. The offending Bible passages that the same District Judge had cited in State v Pattno, another sexual offense case the judge had handled and had the Supreme Court reverse were: Romans 1:21-23: "Ever since the creation of the world his invisible nature, namely, his external power and deity, has been clearly perceived in the things that have been made. So they are without excuse; for although they knew God they did not honor him as God or give thanks to him as God, but they became futile in their thinking and their senseless minds were darkened. Claiming to be wise, they became fools, and exchanged the glory of the immortal God for images resembling mortal man or birds or animals or reptiles. Romans 1:26: "Therefore God gave them up in the lusts of their hearts to impurity, to the dishonoring of their bodies among themselves, because they exchanged the truth about God for a lie and worshiped and served the creature rather than the Creator, who is blessed for ever [sic]. Amen. Romans 1:26: "For this reason God gave them up to dishonorable passions. Their women exchanged natural relations for unnatural, and the men likewise gave up natural relations with women and were consumed with passion for one another, men committing shameless acts with men and receiving in their own persons the due penalty for their error."

Sopranos star Lorraine Bracco recovered nicely from her 1999 bankruptcy filing Stick with real estate is her current investment adivce. KUSA.com She owed over $2million in debts plus $500K in back taxes.

Paper Cattle rustlers lose cert to united states xupreme court 2 Missouri cattle brokers convicted of livestock ponzi scheme Omaha.com George Young, of Grant City, and Kathleen McConnell, of Kansas City appealed their 9year and 7 year respective sentences to the eighth circuit court of appeals and lost in 2005. when their cattle brokerage United Livestock Services went out of business on Aug. 10, 2001, company records showed the company had 343,937 cattle on hand worth $175 million. But the company actually had only 16,946 cattle, worth about $9.2 million. Total public losses exceeded $160million dollars. Today the US Supreme Court denied their petition for cert. from the eighth circuit court of appeals that had upheld the district court's enhancing the defendant's sentences for jeopardizing financial institutions and for violating prior administrative orders from Packers and Stockyards Act violations. The eighth circuit opinion relates that the Banks of Elkhorn and Madison had to raise emergency capital to stay solvent after the losses came to light.

"The prosecutor's misrepresentations struck a foul blow." Nebraska Supreme Court reverses domestic violence conviction when prosecutor mischaracterized defense counsel's argument (or lack of one)Bonus: a lesson in 17th century literature too! State v. Beeder, 270 Neb. 799 Filed January 6, 2006. Nos. S-03-1205, S-04-1115 In a case of a prosecutor's possibly excessive zeal to convict a wife/girlfriend abuser, the Nebraska Supreme Court reverses convictions for 3rd degree assault false imprisonment and habitual offender where prosecutor repeatedly mischaracterized defense counsel's closing argument. Defense counsel asked jury on closing argument to consider the evidence but did not offer anything like an argument against conviction on the assault charge. The prosecutor finished her closing argument, and the defense moved for a mistrial. Then the prosecutor repeated the prejudical statements on rebuttal, when the Defendant could not respond. Also Court restricts evidence from physician examining the victim to prevent hearsay identification of the defendant through medical statements Waxing poetic, but noting a 1962 case Justice Connolly emphasizes the courts displeasure with the prosecutor's performance in this trial: When a prosecutor persists after the court advises that an action is not permitted, the prosecutor commits misconduct. See State v. Lotter, 255 Neb. 456, 586 N.W.2d 591 (1998) (repeating improper question even though court sustained defendant's objection). Here, not once, but twice, the prosecutor said that Beeder's counsel agreed that the evidence clearly showed he was guilty of third degree assault. Although the court ..told the jurors they could make up their own minds, This emboldened the prosecutor, who repeated the misrepresentation. .. The prosecutor's repeated misrepresentation misled the jury..Further, the trial court's admonition left the jurors to ponder why they were free to make up their minds about the first statement, but not the second. .. "'If we treat violations indulgently, we shall soon -- in the words of [Alexander] Pope -- "first endure, then pity, then embrace."'" Pierce v. State, 173 Neb. 319, 330, 113 N.W.2d 333, 341 (1962). Supreme Court rules that on retrial, State may not use physicians hearsay to identify the defendant as the perpetrator, as Def's identity is not pertintent to medical care, 27-803(3)

Because the State provided no reason why the defendant's identity would be reasonably pertinent to Deidre's diagnosis and treatment and because Settje suggested that it was not, we conclude that Settje's recitation contained inadmissible hearsay. If this testimony is introduced on retrial, it should be excluded as hearsay, not within an exception, unless the defendant's identity is redacted or the State demonstrates that the defendant's identity is reasonably pertinent to Deidre's diagnosis and treatment.

Case reversed for a new trial on all counts.

Follow up: Nebraska Supreme Court tells the Bar and lower courts to look it up in their Wright and Miller next time they question our federalized civil procedure rules. Rule of Pleading 15(b) {amendment of pleadings after additional issues tried by implied consent} requires more than allowing evidence pertinent to both the pleaded and unpleaded issues; evidence admitted must relate solely to unpleaded issues for amendment by consent to arise; Court of Appeals ruling from April reversed; J. Gerrard agrees trial is necessary on Plaintiff's promissory estoppel claim, J. Stephan and Connolly dissenting in part Blinn v. Beatrice Community Hosp. & Health Ctr., 270 Neb. 809 January 6, 2006. No. S-04-079 Plaintiff sued his former employer the hospital for breach of contract and detrimental reliance when the hospital dimissed him. Trial court agreed there was no issue of fact as to the contract issue or promissory estoppel issueand entered summary judgment. Court of appeals reversed because it found deposition testimony offered on summary judgment presented question of whether the parties had modified their at will employment contract, even though this was beyond the scope of the pleadings. The Court of Appeals found that the admission of evidence beyond the pleadings amounted to implied amendment. Supreme Court reverses: The key inquiry of rule 15(b) for "express or implied consent" is whether the parties recognized that an issue not presented by the pleadings entered the case at trial. Missouri Housing Development Com'n v. Brice, 919 F.2d 1306 (8th Cir. 1990):

To satisfy rule 15(b), evidence to which no objection is raised must be directed solely at the unpleaded issue, in order to provide a clear indication that the opposing party would or should have recognized that a new issue was being injected into the case. The record here simply fails to satisfy that standard. The Court of Appeals erred in concluding that the pleadings in this case had been constructively amended by implied consent pursuant to rule 15(b).

Because the Supreme Court upholds summary judgment for the Hospital on the breach of contract claim it finds the issue of the statute of frauds moot, although it notes the defendant could have made it an issue if its attorneys had done their home work:

Beatrice conceded, in its appellate brief, that in light of the district court's conclusion that no oral contract existed, the statute of frauds issue was moot. Beatrice has not suggested that the statute of frauds defense applies to a promissory estoppel cause of action where there is no otherwise valid contract. Compare, Rosnick, supra; Farmland Service Coop, Inc. v. Klein, 196 Neb. 538, 244 N.W.2d 86 (1976) (where otherwise binding contract is barred by statute of frauds, promissory estoppel will not lie to circumvent statute of frauds).

Supreme Court leaves the door open however to turn many employment at will relationships into promissory estoppel suits: the Nebraska Supreme Court rejects the Restatement rule that promissory estoppel requires a promise sufficiently definite to form a contract if accepted. there is no requirement of "definiteness" in an action based upon promissory estoppel. Rosnick v. Dinsmore, 235 Neb. 738, 457 N.W.2d 793 (1990).the law in Nebraska is that a promissory estoppel action may be based on an alleged promise that is insufficiently definite to form a contract, but upon which the promisee's reliance is reasonable and foreseeable.Whorley v. First Westside Bank, 240 Neb. 975, 485 N.W.2d 578 (1992) Dissenting Justice Stephan, with Connolly argue that opening the door to promissory estoppel claims in employment cases will turn every adverse employment action into a lawsuit J. Stephan, dissenting in Goff-Hamel v. Obstetricians & Gyns., P.C., 256 Neb. 19, 588 N.W.2d 798 (1999)argues that when an employer hires and employee at will, a court should not utilize the principle of promissory estoppel to impose the subjective expectations of either party upon the other. Justices Stephan dn Connolly would affirm the judgment of the district court dismissing the case entirely.

Follow up: after several incidents nationwide where antiwar and antigay activists have protested at military funerals, Nebraska State Senator Friend introduces bill to restrict funeral protestsLB773, 2006 Session. Amends 28-1317 RRS Neb. to add:

(it is unlawful to Picket) within one hundred feet of the premises of any location where a funeral is being conducted. For purposes of this section, funeral means the ceremonies, processions, and memorial services held in connection with the burial or cremation of the dead. (2) Unlawful picketing is a Class III misdemeanor. Each 11 violation shall constitute a separate offense

Lincoln Nebraska based Nelnet is the major player in the 9.5% subsidized student loan marketWashinton Post.com Nelnet Inc., a for-profit lender based in Lincoln, Neb., is a leader in (student loans). The company holds roughly $3.5 billion in student loans that qualify for a government-guaranteed 9.5 percent interest rate. Although Congress eliminated the 9.5% interest subsidy in 1993, federal government payments on subsidized loans went up last year The total federal payout in the first nine months of 2005 was more than $600 million, Education Department data show. Nelnet reported $77 million in profit during that time as a result of the subsidy. In 1993, Congress decided to end the 9.5 percent guarantee for loans financed with new tax-exempt bonds. The law enacted that year created an exception for loans financed with previously issued bonds. It was widely assumed that the subsidy payouts would dwindle and in time disappear. But a September 2004 Government Accountability Office report found that the opposite had occurred: The total value of loans qualifying for the 9.5 subsidy rose from about $11 billion in 1995 to more than $17 billion in 2004. In 2004 Congress eliminated some loopholes lenders used to keep drawing the 9.5% vig (CBO Report):

Public Law 108-409, which took effect October 30, 2004, prohibits lenders from using refunding and transferring as methods to increase the volume of student loans receiving the 9.5 percent guaranteed yield, but it allows lenders to continue to recycle repayments of existing 9.5 percent loans into new 9.5 percent loans. Those new restrictions are in effect through December 2005

President Bush proposed to eliminate the loopholes in 2006, in other words no new sweet subsidized deals. Administration critics, quick to find greased palms in this mess argue the Educatio nDepartment could have closed loopholes with regulations, however the Department responds that its hands were tied, and Congress was better able to close the loopholes (GAO 2004 Report, page 6-7).

Nice props Nebraska Supreme Court gives the Worker Compensation court for its efforts to work around an erroneous aspect of the Supreme Court decision Dawes v. Wittrock Sandblasting 266 Neb. 526, 667 N.W.2d 167 (Neb. 08/01/2003. Justice Gerrard says "My bad!" Kimminau v. Uribe Refuse Serv., 270 Neb. 682 December 2, 2005. No. S-05-012. In Kimminau the Supreme Court finds its ruling in Dawes v Wittrock Sandblasting a little unworkable to the extent the earlier opinion suggested that the worker compensation court could never order the comp carrier to reimburse a health insurer directly.

We take this opportunity to comment on the Workers' Compensation Court's response to the situation presented by this case. The single judge and majority of the review panel, while noting the provisions of § 48-120(8), nonetheless reasoned that Dawes was controlling. The dissenting member of the review panel, while respectfully acknowledging Dawes, concluded that § 48-120(8) governed the issue. The principled but candid decisions of the single judge and majority of the review panel, and the respectful disagreement of the review panel dissenter, are fine examples of the judicial system working at its best--with civility, collegiality, and professionalism.

State of Colorado reaps $133million in cigarette taxes after hike to 84 cents/pack, but consumption drops 22%Rocky Mountain News.Com. Cigarette sales in Colorado fell 22 percent this year after the state increased the tobacco tax by 64 cents a pack. But even with the drop in sales, the new tax is bringing in nearly $133 million in additional revenue this year, according to the state Department of Revenue. From January through November of this year, nearly 4.2 billion cigarettes were sold in Colorado, the Revenue Department says, down from more than 5.3 billion during the same period in 2004. The state cigarette tax, which now totals 84 cents a pack, helps fund Medicaid for disabled children, along with other health programs, including clinics serving uninsured patients, tobacco education, and research grants for treating breast and cervical cancer. the national average tax per pack is 84 cents, Colorado at 84 cents makes it 22nd in the Country for cigarette taxes. Nebraska is 64 cents; Wyoming is 60; New mexico is 90. See smokefree.org Overall federal and state government revenue from tobacco grew from $5.1billion (federal) in 1991 to $8.2billion (federal) 2002.State govt revenue from tobacco grew from 6.1billion .(state) 1991 to $8.5billiion (state) 2002. But cigarette consumption dollars as a percent of national income grew slightly from 0.096 to 0.099 (1993 to 2003).