Wednesday, February 28, 2007

Post conviction counsel who argues trial counsel was ineffective should be effective. A Hall County District Court jury convicted the defendant of a drug possession crime and the Court sentenced her to prison. While on an appeal bond, the Defendants attorney failed to appeal. New defense counsel and the county attorney stipulated that defendant's former counsel was ineffective for not filing the appeal. The district court allowed the defendant to appeal based solely on the parties' stipulation. Court of Appeals dismisses appeal because the District court did not find that counsel had been ineffective by failing to appeal. State v. Murphy, A-05-1210, 15 Neb. App. 398 Under § 29-3001, the jurisdiction for post conviction relief depends upon the existence of circumstances whereby “there was such a denial or infringement of the rights of the prisoner as to render the judgment void or voidable under the Constitution of this state or the Constitution of the United States.” The same post conviction statute requires the district court to “make findings of fact and conclusions oflaw with respect thereto.” Id. In this case there were no allegations of fact, no stipulations of fact, and no findings of fact showing any such denial or infringement of Murphy’s constitutional rights. The stipulation sets forth only the bare conclusory agreement that “an Appeal” be allowed, and the district court’s order merely implements that stipulation...Appeal dismissed.
Here's another Political Subdivision Tort Claims Act dismissal for the Nebraska Supreme Court to reverse. Amanda was a back set passenger in a stolen Lincoln sedan when its driver went off an embankment while fleeing the police, killing her. Nebraska court of appeals holds that backseat passenger in stolen automobile was not an innocent third party and so could not make a claim under the Nebraska Political Subdivision Tort Claim Act vehicular pursuit law 13-911. Jura v. City of Omaha, A-05-165, 15 Neb. App. 390. Although Amanda may not have known the Lincoln was stolen, although perhaps she should have, any passenger in a stolen vehicle counts as one the police seek to apprehend, for purposes of 13-911 RRS Neb.

Saturday, February 24, 2007

Is adjoining synonymous with adjacent or contiguous? While Nebraska Supreme Court allowed Omaha PacMan style to annex Elkhorn when both did not share a common boundary, it sides with Sarpy county and against Gretna when that town sought to annex additional stretches of Highways 31 and 370. County of Sarpy v. City of Gretna, S-05-748, 273 Neb. 92 Gretna sought to annex stretches of highways 31 and 370 leading out of the city. Sarpy county objected, although by the existing map of Gretna's corporate limits there are several narrow stretches of city, and further there was no larger area at the far end of the stretch that Gretna sought to incorporate, unlike in Omaha's situation with Elkhorn.See City of Elkhorn v. City of Omaha, S-05-1006, 272 Neb. 867 The court reverses Gretna's annexation under § 17-405.01 finding the stips were not contiguous or adjacent. Omaha got by the Supreme Court reasoned because as a metropolitan class city under Section 14-117 it could annex towns that because of Omaha's annexations of contiguous or ajacent territory became adjoined to the metropolitan city limits. Fortunately for Omaha, its lobbyists in 1998 had slipped into the law concerning metropolitan class cities' annexation powers, the ability to annex adjacent/contiguous land and adjoining cities by consequence of the annexation : the invalidity of a strip annexation is not based uponthe existence of a larger tract at the distal end of the strip, but,rather,upon thelack of substantial adjacency where the proximal end meets the corpo-rate limits of thecity. Here, as in Johnson, the connecting point consists merely of the width of the highway right-of-way where itmeets the municipal boundary. While the shape of a tract does not determine whether it can be lawfully annexed, the lack of substantial adjacency to an existing corporate boundary precludes annexation under § 17-405.01.It is apparent from the record that Gretna attempted these annexations for the purpose of controlling future growth by enlarging its zoning jurisdiction, which by law extends 1 mile beyond its corporate limits. see neb.rev. stat. § 17-1001 (Cum.supp. 2006).While a city may have legitimate reasons forusing its annexation power to achieve planning and land use control objec-tives, it must nevertheless exercise that powerin strict compliance with the statute by which it is conferred

Wednesday, February 21, 2007

Follow up: Federal District Court in Kansas allows class action suit to proceed against Tyson despite earlier 1994 settlement to the contrary. Last week the US District Court for Kansas denied summary judgment to Tyson Foods in its Holcomb Kansas workers' class action suit that seeks millions of dollars in back pay for overtime to put on special protective gear in the plant. Tyson alleged the 10th Circuit decision in 1994 settled the matter and even though the US Supreme Court reversed the law on that case it was still final. See Reich v. IBP, Inc., 38 F.3d 1123 (10th Cir. 1994). The recent case is Garcia et al v. Tyson Foods. USDC KS 06-2198-JWL In 1994, the 10th U.S. Circuit Court of Appeals held that donning and doffing of standard protective gear was not “work” within the meaning of the federal wage and hour laws and therefore was not compensable. But in 2005, the Supreme Court in IBP, INC. V. ALVAREZ (03-1238) held that any activity that is “integral and indispensable” to a “principal activity” performed by production workers is compensable under the Fair Labor Standards Act.The case before Lungstrum was filed last May by 262 current and former workers at the Tyson Fresh Meats Inc. plant in Holcomb. The number of plaintiffs has since grown to 823. The workers claimed they did not receive wages and overtime pay for the time spent putting on and removing protective clothing and walking to and from work stations. The suit seeks certification as a class action on behalf of all overtime-eligible Tyson employees who have worked at the 2,500-employee plant in the past five years. Lungstrum’s ruling came after Tyson sought summary judgment in the case. The company argued that the 10th Circuit’s 1994 decision was still applicable law in Kansas. In denying Tyson’s motion, Lungstrum found that whether standard protective clothing is “integral and indispensable” to the Tyson employees’ work is a factual question for a jury to decide. Tyson also argued that a settlement of the 1994 case, which was brought against meatpacker IBP by the Department of Labor, barred the workers’ additional request for compensation for time in excess of four minutes spent by employees donning and doffing specialized — as opposed to standard — protective clothing. The settlement required IBP, which was later acquired by Tyson, to compensate those employees an additional four minutes per shift for the time they spent putting on and removing specialized protective gear such as Kevlar gloves and sleeves, rubber gloves, plastic arm guards and mesh aprons. Lungstrum found that although the settlement used a “reasonable time” method to arrive at the back pay awarded to the workers, “it did not absolve defendants, on a prospective basis, from recording and compensating employees for actual time spent donning and doffing specialized clothing and gear.” Kansas City lawyer George Hanson, who represents the Tyson workers, said he was pleased with the decision and hoped that Tyson “will finally realize it is obligated to reform its compensation policies in order to comply with the law
Follow up: Legal ethics experts point out the Nebraska Supreme Court's lax policy of disciplining attorneys who can blame demon booze or dope. Legal Profession Blog. "The attorney was found to have made substantial progress in his recovery and will be required to show continued rehabilitation in order to be reinstated. If reinstated, the attorney's recovery will be monitored for two years"

Monday, February 19, 2007

Follow up: SCOTUS Justice Alito denies Nebraska Attorney General's stay request from the Eighth Circuit's ruling against the Family Farm Amendment Initiative 300. Jones v Gale. SCOTUSBlog. Supreme Court Justice Samuel A. Alito, Jr., denied a request by Nebraska officials to delay a federal appeals court ruling against the state constitutional provision seeking to preserve family ownership of farms and ranches in the state after receiving the farmers' response.

Saturday, February 17, 2007

Nebraska Supreme Court continues to chip away at the Political Subdivision Tort Claims Act: Supreme Court reverses 12(b)(6) that Omaha Public School District won against victim of alleged sexual assault. Doe v. Omaha Pub. Sch. Dist., S-05-794, 273 Neb. 79 Whether it was a rule 12(b)(6) ruling or one for summary judgment, the Supreme Court rules that the plaintiff could take to trial her claim that the School was negligent in not handling better a rogue student who assaulted her. Though the political subdivision tort claims act excludes incidents "arising" out of assaults (13-910(7) RRS Neb), the Supreme Court finds a way around the statute by finding the possible negligence occurred before the assault. See Sheridan v. United States, 487 u.S. 392, 401, 108 S. Ct. 2449, 101 L. ed. 2d 352 (1988) {naval personnel failed to restrain or apprehend armed drunken sailor who shot several bystanders near Bethesda Hospital, Federal Tort claims act exclusion did not apply} Further the acts of the school principal were not clearly discretionary functions13-910(2) RRS Neb). The supreme court failed to address however whether the act's additional loophole that the subdivision's purchase of liability insurance for otherwise immune incidents that wipes out the 13-910 immunity, See 13-916 , still means that Nebraska must adopt cookie cutter fashion all federal interpretations of the Federal Tort Claims Act.

Thursday, February 15, 2007

Defendant in a Mrs Robinson situation found guilty of statutory rape. Nebraska court of appeals affirms conviction because circumstantial evidence of defendant's age was sufficient to convict. State v. McCulloch, A-06-275, 15 Neb. App. 381 Defendant who was convicted of sexual assault on a child under 15 while he was older than 19 filed for post conviction relief after his trial counsel did not appeal. The district court allowed a direct appeal. On appeal the defendant alleged ineffective counsel because there was insufficient evidence of his age. Nebraska court of appeals affirms, inpart because the state showed that the defendant had a sexual relationship with the victim's mother at least four years before. when the State is required to prove the age of a defendant, as in a prosecution under § 28-319(1)(c), the jury may consider the defendant’s physical appearance in determining whether the State has proven the defendant’s age. The defendant’s physical appearance must be combined with some other circumstantial evidence, and the combination of the physical appearance and other circumstantial evidence must be such that the jury can reasonably infer, beyond a reasonable doubt, that the defendant’s age is above the age required by statute.

Sunday, February 11, 2007

Another Erie exam question brought to you by the Eighth Circuit:: Parties contract for installation of a pizza machine. Parties dispute installation. Pizza company sues manufacturer in Minnesota and wins judgment of $500K plus prejudgment interest. Defendant claims Wisconsin law applied according to their agreement, and Wisconsin would not have allowed prejudgment interest. Who wins? Schwan's Sales v. SIG Pack, Inc. U.S. Court of Appeals Case No: 061571P.pdf 02/09/2007 U.S. District Court for the District of Minnesota Plaintiff wins Minnesota prejudgment interest. Although interest is an Erie (304 U.S. 64, 78 (1938)) substantive issue (Emmenegger v. Bull Moose Tube Co., 324 F.3d 616, 624 (8th Cir. 2003)), so are conflicts of laws issues Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). Here Minnesota conflicts applied because the parties contract limited application of Wisconsin law to performance and interpretation. Minnesota made judgment interest procedural, therefore for the forum state to apply. Plaintiff claiming forum state prejudgment interest wins over party claiming Wisconsin contract interpretation but not procedural enforcement.the issue of prejudgment interest--a matter of substantive law for Erie purposes--is a procedural matter for conflict-of-laws purposes under Minnesota law. Therefore, we also agree that Minnesota's prejudgment interest statute applies in the absence of an choice-of-law provision that expressly governs procedural matters.

Friday, February 09, 2007

In a local Anna Nicole Smith scenario, second wife who was POD beneficiary on deceased husband's bank account could not stop payment on $10000 check he wrote to his first wife just days before his death. In re Trust of Rosenberg (Rosenberg II), S-05-757, 273 Neb. 59 Nebraska Supreme Court on 2nd appeal See In re Trust of Rosenberg, 269 Neb.310, 693 N.W.2d 500 (2005) (Rosenberg I). between the deceased's second wife and his children over disputed estate assets finds that Wife2 was not allowed to stop payment on the $10k check deceased husband wrote to Wife1 just days before his death, even though Wife2 was a POD on the account. The estate documents also did not clearly identify whether various assets of the deceased would become trust or personal assets of Wife2 following his death, so the Nebraska Supreme Court finds they would become wife2's assets. Finally Wife2 whom the county court removed as trustee in a final order could not present a bank's trust officer as her expert witness on her management abilities. Sounds like Wife2 did pretty well for herself after all.

Wednesday, February 07, 2007

Nebraska Medical Officer in charge of determining how to discipline doctors enjoys absolute immunity from Section 1983 actions Kerrey Buser, M.D. v. Richard Raymond etc. 061655P.pdf 02/07/2007 Lexington area physician sued in federal court challenging disciplinary sanctions the Department of Health imposed on him, including a $5000 fine and practice restrictions. Disciplined physician appealed the Chief Medical Officer’s final ruling to the District Court of Lancaster County but the County District Court affirmed. Physician sued in federal court and the US District Court found absolute immunity for Dr Raymond, the Chief Medical Officer. Eighth Circuit Court of Appeals affirms, with some reservations from Judge Beam. “Applying the absolute immunity factors to the present case, we conclude that Dr. Raymond is entitled to absolute immunity; {such protection is necessary so that the Chief Medical Officer can perform his functions without harassment or intimidation; the Chief Medical Officer's absence at the hearing does not deprive plaintiff of due process because the disciplinary procedures used contain adequate safeguards, especially the CMO plays no part in initiating the investigation and instead possesses the judicial powers of administering oaths and issuing subpoenas for witness testimony and document production. Neb. Rev. Stat. § 75-155(1). Therefore, DiBlasio v. Novello, 344 F.3d 292 (2d Cir. 2003) is inapposite to the instant case as Nebraska procedures afford the doctor adequate procedural safeguard. Judge Beam, concurring is concerned that the Nebraska procedures for disciplining doctors is close to the near summary methods in New York that the 2nd Circuit had found lacking in DiBlasio v. Novello, 344 F.3d 292 (2d Cir. 2003) (holding that New York medical officials were not entitled to absolute immunity from radiologist'sdue process claims arising from summary suspension of medical license:)Judge Beam comments: “review is limited to litigants in theNebraska (medical disciplinary) system. Review at the county district court under the Administrative Procedures Act is an extremely limited re-examination based on the agency record. See Neb. Rev. Stat. § 84-917. Nebraska should consider how it carries out its medical licensing revocation procedure, without undue reliance on the narrow review available in state district court, to ensure that the actions of Nebraska's CMO are well within the protections of absolute immunity and that all litigants are afforded ample due process. In this regard, it would appear to me to be more constitutionally sound for the hearing officer, who sees and hears the witnesses, views their demeanor, and is better able to judge their credibility, to make the necessary findings of fact, subject to a record review by the CMO.”

Monday, February 05, 2007

Nebraska Supreme Court reaffirms the "American Rule" against collecting attorney fees in judicial actions Plaintiffs who sought attorney fees could resist Defendants pleading for attorney fees in its counterclaim. Stewart v. Bennett, S-05-1100, 273 Neb. 17. In Parkert v. Lindquist, S-04-089, 269 Neb. 394 (February 25, 2005) the Nebraska Supreme Court ruled that provisions for collecting attorney fees in judicial actions were against state public policy unless the Legislature or exceptions to the "American rule" allowed it. In Stewart plaintiff tenants sought to establish a holdover tenancy to the Defendant's farm ground. Although the Plaintiffs sought attorney fees they denied they would owe attorney fees from the Defendant landowners counterclaim. Nebraska Supreme Court agrees that the Defendant's request for attorney fees from its counterclaim was void even though the Plaintiffs had asked for the same relief. The doctrine of judicial estoppel does not apply in this case because the district court never accepted the claim that the attorney fee provision was applicable. “‘absent judicial acceptance of the inconsistent position, application of the rule is unwarranted because no risk of inconsistent results exists.’” Vowers & Sons, Inc. v. Strasheim, Neb neb. at 514, 576 n.W.2d at 824

Saturday, February 03, 2007

Lawsuits against the State of Nebraska under the Tort Claims Act are not "special proceedings" so the District Court's preliminary finding that the plaintiff had complied with procedural requirements of the tort claims act was not an appealable order. Pfeil v. State, S-05-896, 273 Neb. 12 Plaintiff County road worker was injured in an accident with a state road plow. Nearly two years after the accident, the plaintiff hired a new lawyer who wanted to lookinto a tort claim against the state. He could not determine whether the Plaintiff had filed a tort claim before then. Four days before the 2nd anniversary of the accident the plaintiff's new counsel filed simultaneously a state tort claim and a suit in douglas county district court against the state. See 81-8227 RRS Neb. Six months later the plaintiff withdrew his administrative tort claim and also amended his complaint to reflect this action. See 81-8213. The State argued that the Plaintiff's initial filing constituted a withdrawal of his tort claim, thus it was not timely. The district court agreed with the plaintiff during a separate trial. The State appealed and the Nebraska Supreme Court dismisses the appeal. According to § 25-1902 special proceeding includes every special statutory remedy which is not in itself an action. Webb v. American Employers Group, 268 neb. 473, 684 n.W.2d 33 (2004). a judgment rendered by the district court that is merely a step or proceeding within the overall action is not a special proceeding. Id. a special proceeding which affects a substantial right is, by deinition, not part of an action. Id. Generally, a “special proceeding,” within the meaning of § 25-1902, entails civil statutory remedies not encompassed in chapter 25 of the Keef v. State, supra. examples of nebraska revised statutes.however, that a reading of the act as a whole indicates that once suit is instituted, an action against the state is intended for the most part to be treated as any other negligence action. this intent is expressed in § 81-8,216, which provides that the district courts shall follow the rules of civil procedure applicable to private litigants in actions against the state.
Follow up: no worker compensation suicidal State Patrolman's relatives Zach v. Nebraska State Patrol, S-05-449, 273 Neb. 1. Nebraska Supreme Court reverses court of appeals ruling that called for the patrolmans family to have a chance to prove their case at trial. When the family alleged that the patrolman suffered solely a mental stimulus from learning that he had stopped a bank robber and let him go, resulting in suicide the stimulus was neither an accident nor an occupational disease. See 48-151(4) and 48-101 /RRS Neb. it is speciically alleged that the changes to Zach’s brain were caused by “being advised of the con-sequences of an injury caused by a mental stimulus does not meet the requirement in §48-151(4) that a compensable accidental injury involve “violence to the physical structure of the body.” accordingly, the court of appeals and the review panel of the Workers’ compensation court erred in concluding that the operative petition stated a claim for accidental injury arising out of and in the course and scope of Zach’s employment with the nebraska state patrol error,” which is clearly a mental stimulus. based upon principles articulated in Bekelski and subsequent cases, under current nebraska law, a compensable injury caused by an occupational disease must involve some physical stimulus constituting violence to the physical structure of the body. because the injury in this case is alleged to have resulted entirely from a mental stimulus, no claim is stated for injury caused by occupational disease.