Saturday, March 31, 2007

Aren't we lucky we have a State Senator who can think on her feet while soused? ? Although it looked bad for Senator Danielle Nantkes to refuse to take any alcohol tests after she collided with a snowplow truck last month, she can at least avoid much jail time, if any. Lancaster County district court judge Cheuvront sentenced Russell Kyle to four concurrent four to twelve year terms for multiple counts of felony drunk driving fourth offense. Reporter Butch Mabin noted the prosecutor's complaint that she could not charge the defendant with more serious crimes because during some of the defendant's prior arrests, he refused chemical tests. Under the new Nebraska drunk driving law that took effect last summer (LB925; 60-6,197.03) Drunk drivers with priors face stiffer punishment if they test over .15 during their current cases. Senator Nantkes has a prior from 1997, so if he shad blown and tested over .15 she cold have faced a one to fifteen year license revocation and 90 days in jail. Since she refused however, even if she is convicted she is unlikely to face jail time.

Friday, March 30, 2007

If you’re hurt on the job don’t have your employer also be your doctor: Hospital employee injured in scope and course of employment who claims additional injuries from negligent medical care from the hospital may not sue for malpractice because of the exclusive remedy provision of the Nebraska Worker compensation law Bennett v. Saint Elizabeth Health Sys., S-05-1306, 273 Neb. 300 “Plaintiff argues that because the second injury to her shoulder occurred while she was a patient receiving medical treatment from Saint Elizabeth Hospital, we should permit her to sue the hospital for additional negligence damages. Saint Elizabeth urged the Supreme Court to affirm, arguing that Plaintiff’s injuries were covered by the Workers’ Compensation act and the acts exclusive remedy provisions (48-101, 48-111, 48-112, 48-148 RRS Neb). “We agree with Saint Elizabeth and conclude that the district court did not err when it concluded that Bennett’s medical malpractice action was barred by the exclusivity provisions of the Workers’ Compensation act, granted summary judgment in favor of Saint Elizabeth, and dismissed the action. Because the consequential injury is covered, plaintiff’s exclusive remedy for this injury is under the Workers’ Compensation act, and recovery is not available in a medical malpractice action against Saint Elizabeth. Despite the “covered” nature of her injury, Bennett accordingly, we affirm.”

Thursday, March 29, 2007

Missouri State Patrol raided Chillicothe car dealership-brokerage as part of car title fraud investigation that included disputed sales of Hummer sport trucks from the Huber dealership in Omaha Nebraska. Missouri dealers attorneys filed motion to suppress search and seizure calling them a "fishing expedition." Omaha.Com Missouri State Patrol investigators raided the car dealership-brokerage belonging to Patrice and Ed Robertson in Chillicothe on March 7. The MSP was searching for evidence of a possible car title fraud ring that involved sales of Hummer sport trucks from the Huber dealership in Omaha nebraska. The State Patrol suspected that someone made up fake purchasers for the Hummers which were then sold overseas while General Motors paid out about $500,000 in sales rewards for more than 200 Hummers. The Robertsons' attorneys claim the MSP misled a judge of the Livingston County Court to get his approval for the search warrant The lawyers contend that investigators misrepresented what three employees of the Huber Cadillac, Hummer and Saab dealership in west Omaha told the Nebraska State Patrol last fall. The lawyers called the March 7 search was a "fishing expedition with a huge but closely woven net," Falsifying vehicle titles is a felony in Nebraska. Sales for export and sales outside the Huber dealership's territory should not have been eligible for GM incentives

Sunday, March 25, 2007

Nebraska Supreme Court refuses to require wholesale disruption of criminal prosecutions although the some courts have suggested that the cases Crawford v Washington and Davis v Washington required the in court testimony of technical witnesses to give the necessary foundation testimony for breath tests and speed detecting radar guns. State v. Jacobson, S-06-195, 273 Neb. 289, and State v. Fischer, 272 Neb. 963 (2007) In two traffic related appeals this year the Nebraska Supreme Court overruled defendants' objections that the technicians who certified the intoxication and speed detection devices should have appeared to testify that the devices were working properly. Fisher lost when the Supreme Court ruled that the technician's certification of the intoxication devices were not testimonial because the certifications were routine administrative tasks and too attenuated from the prosecution of the charges against Fischer for the statements to be ‘testimonial’ in the sense required under Crawford (Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)), Davis (Davis v. Washington, ___ U.S. ___, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006)), The Defendant Jacobsen lost when the Supreme Court agreed with the District Court that the technicians report authenticating the tuning forks and workings of the radar gun were also not testimonial. Fischer is analogous to the Jacobsen's case. Applying the reasoning of statements in the document certifying the accuracy of the tuning forks were nontestimonial. The “Certificate of Calibration and Accuracy” was prepared in the course of the State patrol technician’s routine duties to ensure that the tuning forks used to calibrate and test the radar unit oscillated at the proper speeds. Certification was required annually, whether or not the certification document would eventually be used in a criminal prosecution. The statements contained in the certification document did not pertain to any particular defendant. They were made over 6 months before Jacobson was cited for speeding. Thus, the statements “were too attenuated from the prosecution of the [speedingcharge] against [Jacobson] for the statements to be ‘testimonial.’” Fischer, 272 Neb. at 972, 726 N.W.2d at 183

Send this one on to your malpractice insurer: Plaintiffs law firm filed her Political Subdivision tort claim against York County apparently on time, but then filed her notice to withdraw the claim exactly six months after her initial filing date. Nebraska Supreme Court finds the plaintiff's claim withdrawal date was one day too early, but does not discuss whether the plaintiff's filing suit more than six months after the claim corrected the premature withdrawal. Geddes v. York County, S-05-1359, 273 Neb. 271. Plaintiff alleged York County's negligent act occurred on June 10, 2002. The Plaintiff's attorney filed her tort claim with York County on April 21, 2003. The county board considered the claim but did not act. Plaintiff's attorney filed notice withdrawing the tort claim on either October 20 or 21, 2003. Plaintiff filed suit on May 7, 2004. Plaintiff's representative took over the case on April 6, 2005 as plaintiff had died. District court granted York County's motion for summary judgment finding that the Plaintiff failed to comply with § 13-906, Nebraska Political Subdivision Tort Claim Act, because she withdrew her claim filed with York County before 6 months had passed from the date of filing when the county had not yet made final disposition. Nebraska Supreme Court affirms. Section § 25-2221 (Cum. Supp. 2006) provides the method to calculate the "within" six months waiting time period from § 13-906. Using 25-2221, "within six months" in 13-906 would extend through October 21. So even if the parties dispute when the plaintiff filed the withdrawal, the plaintiff prematurely withdrew the suit. The supreme court however did not discuss whether the plaintiff's suit filing corrected her premature withdrawal, as Nebraska Supreme Court held in Malzahn v. Transit Authority, 244 Neb. 425, 507 N.W.2d 289 (1993), that absent any consideration of the statute of limitations, filing suit is substantial compliance with the terms of § 13-906 and equates with notice of withdrawal of a claim from consideration. See also Big Crow v. City of Rushville, 11 Neb.App. 498, 654 N.W.2d 383 (Neb.App. 12/10/2002) affirmed 266 Neb. 750, 669 N.W.2d 63 (Neb. 09/26/2003){suit filed too early but city failed to plead defense} "Using the time computation method specified in § 25-2221, we exclude April 21, 2003, the date on which Schirber filed her claim, so that the 6-month period began on April 22, 2003. Unless the context shows otherwise, the word “month” used in a Nebraska statute means “calendar month.” A calendar month is a period terminating with the day of the succeeding month, numerically corresponding to the day of its beginning, less one. Applying §§ 25-2221 and 49-801(13), we conclude that the district court correctly determined October 21, 2003, to be the last day of the 6-month period that commenced when Schirmer filed her claim with the county clerk. The district court had further found the statute of limitations had run on the plaintiff's cause of action and even though that finding may have been wrong, the plaintiff did not allege error. The Supreme Court refuses to consider this as a plain error.

Saturday, March 24, 2007

Nebraska Supreme Court opens the door to class action suits against state government while overruling precedent from just 12 year ago: The court still denied retired state patrolmen extra pension benefits from sick leave the patrolmen claimed should have increased their pension annuities, the Supreme Court rules that complaining state government retirees may file class claims in district court without presenting them either to the State retirement board or to the State claims board. Livengood v. Nebraska State Patrol Ret. Sys. S-05-710, 273 Neb. 247

The Supreme Court strikes a blow to the State treasury but hey it's more work for lawyers. The court agrees that the patrolmen or other complaining state employees may use the class action method to win large settlements of retirement benefits, and hey just in time for large numbers of baby boomer retirees to come to the trough. The court finds the legislation that enables Neb. Const. art. V, § 22, waiving sovereign immunity, Neb. Rev. Stat. § 25-21,206 (Reissue 1995) encompasses class actions State law limited only tax refund suits from class status § 25-21,206 does not limit the procedure for contract claims against the State so that only individual actions are per Boersma v. Karnes, 227 Neb. 329, 332, 417 N.W.2d 341, 344 (1988) is limited to tax refund cases.

The Supreme Court further excuses the retirees from the presuit filing requirements of Neb. Rev. Stat. § 81-1170.01 as neither § 84-1503 nor the regulaions

Require an aggrieved party to present his claim to the board before suing in court. Justice Connolly implicitly overrules the courts 1994 precedent Hoiengs v. County of Adams, 245 Neb. 877, 516 N.W.2d 223 (1994) that suggested all state retirees had to present claims, although in that case county employees did not have to follow procedures required for state employees. Justice Connolly rewrites Hoiengs now to recognize that the procedure at issue is also inapplicable for a different reason that § 81-1170.01 does not apply to retirement disputes under our statutory scheme. "We hold that the presuit filing requirement under§ 81-1170.01, is inapplicable in retirement benefits controversies. "

Thursday, March 22, 2007

US Supreme Court overrules Ninth Circuit decision that restricted creditors' attorney fee claims in Bankruptcy Court.TRAVELERS CASUALTY & SURETY CO. v. PACIFIC GAS AND ELECTRIC CO.No. 05-1429. SCOTUS slaps the Ninth Circuit again like a red headed step child. Chapter 11 debtor Pacific Gas & Electric insured itself for California worker compensation claims and acquired a bond through Travelers to make sure Pacific could cover worker compensation claims. When Pacific Gas filed chapter 11 Travelers requested additional security and sought provisions for additional attorney fees through the claim proceedings. The federal district court and the Ninth Circuit agreed that the attorney fees provision was not allowed citing Ninth Circuit precedent In re Fobian, 951 F. 2d 1149 (CA9 1991) Supreme court reverses, finding that the bankruptcy code does not prohibit categorically attorney fees that arise solely from bankruptcy issues. The Fobian rule finds no support in the Bankruptcy Code, either in §502 or elsewhere. In Fobian, the court did not identify any provision of the Bankruptcy Code as providing support for the new rule. Congress, of course, has the power to amend the Bankruptcy Code by adding a provision expressly disallowing claims for attorney’s fees incurred by creditors in the litigation of bankruptcy issues. But because no such provision exists, the Bankruptcy Code provides no basis for disallowing Travelers’ claim on the grounds stated by the Ninth Circuit. Justice Alito declined to consider Travelers' belated argument that 506 which considers secured claims somehow limits unsecured attorney fee claims.
Nebraska Supreme Court nixes requirement that medical experts invoke "magic words" when stating their opinions, affirms child abuse case from Madison county. Blog 702. From Daubert on the Web: do physician experts really "balk" at stating their opinions under oath as "with a reasonable degree of medical certainty?" Perhaps they shouldnt since most experts are used to testifying. Supreme Court affirms child abuse conviction against day care provider when an 18 month old child in her care suffers severe head injury, and according to the physician from shaken baby syndrome. "some experts have been known to balk, despite a high level of confidence in their opinions, because to their understanding, "certainty" connotes indubitability and does not come in "degrees." See State v. Kuehn, No. S-05-888 (Neb. Mar. 16, 2007).

Wednesday, March 21, 2007

Lesbian from Uganda wins rehearing of asylum petition in Eighth Circuit Oliva Nabulwala v. Alberto Gonzales U.S. Court of Appeals Case 054128P.pdf 03/21/2007 Immigration & Naturalization Service Ugandan citizen discovered she was a lesbian in high school. Family members beat her and forced her to attend a coed school. When the schooling assignment failed to straighten her out, the family forced to have sex with a man. She joined a gay rights organization that the Ugandan government disbanded. When her visa expired she sought refugee status. The immigration judge denied her application because she could not prove government oppression. She petitions for review denial of asylum, withholding or removal and Convention against Torture relief. Eighth Circuit Court of Appeals holds that homosexuality is a "particular social group" that could qualify the applicant for asylum. The Immigration judges failed to determine if the Ugandan government was unable or unwilling to control persons who had harmed petitioner, and Board made impermissible fact finding of the foreign governments efforts. Eighth Circuit grants petition for review and remands for additional proceedings. Persecution may be "a harm to be inflicted either by the Government of a country or by persons or an organization that the government was Unable or unwilling to control." See Suprun v. Gonzales, 442 F.3d 1078, 1080 (8th Cir. 2006)(emphasis added); see also Valioukevitch v. INS, 251 F.3d 747, 749 (8th Cir. 2001) ("the harm [petitioner] endured must have been inflicted either by the government of Belarus or by persons or an organization that the government was unwilling or unable to control"); Menjivar, 416 F.3d at 921; Miranda v. INS, 139 F.3d 624, 627 (8th Cir. 1998). The IJ made no finding as to whether the government was unable or unwilling to control persons who had harmed, or would harm, Nabulwala. Therefore, as to the government's inability or unwillingness, there were no findings of fact determined by the immigration judge To the extent that the BIA is finding facts about the government's unwillingness, such fact finding is not authorized. 8 C.F.R. § 1003.1(d)(3)(iv)

Saturday, March 17, 2007

Partners' stated in their agreement that once a partner sought to exit the partnership, another partner could within 90 days buy out the exiting partner. Nebraska Supreme Court rules that the 90 day time period started when the exiting partner served his complaint from an earlier case he brought to dissolve the partnership. Mogensen v. Mogensen, S-05-879, 273 Neb. 208 Partners had also acquired property and titled it in the mothers name. The partners provided the downpayment and the mother financed it. The partners did not pay rent to their mother for eight years but made improvements on the property. Supreme court agrees that the property although in the mothers name is presumed partnership land, and the mother did not overcome this presumption. "service of the complaint on keith, rather than either the summary judgment order or the filing of the lawsuit, provided notice of steven’s intent to withdraw and dispose of his interest The mother's property is partnership property because although some evidence does indicate an ownership interest in opal, it is not enough to overcome the presumption in § 67-412(3). We conclude that the brothers purchased the property for the partnership. the most convincing proof of their intent is that brian, keith, and steven decided they wanted the property and then decided to put it in opal’s name to take advantage of a government program. the brothers essentially controlled the transaction in obtaining the land, including using partnership funds to pay for the property. the facts that the partnership developed the land, paid the real estate taxes, and improved the farm for the first 8 years without paying rent further bolster our conclusion

Thursday, March 15, 2007

Is pregnancy a disease? Even though some feminists and college boys might think so, the Eighth Circuit court of appeals declines to decide this issue, but agrees with Union Pacific that it did not have to cover contraceptive prescriptions that were not related to medical conditions. Plans did not violate Title VII or the Pregnancy Discrimination Act Standridge v. Union Pacific 061706P.pdf 03/15/2007 U.S. Court of Appeals Case No: 06-1706 District of Nebraska - Omaha Female plaintiffs sued their employer Union Pacific Railroad Company (“Union Pacific”) for sexual discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., as amended by the Pregnancy Discrimination Act of 1978 (“PDA”), 42 U.S.C. § 2000e(k). The district court granted plaintiffs partial summary judgment. Union Pacific appealed and the Eighth Circuit reverses: because the Union Pacific health plan excluded both male and female contraception unless they were necessary for other medical conditions, the railroad did not discriminate against the female employees. The district court held that Union Pacific violated Title VII, as amended by the PDA, because “it treats medical care women need to prevent pregnancy less favorably than it treats medical care needed to prevent other medical conditions that are no greater threat to employees’ health than is pregnancy.” The Eighth Circuit earlier held that a health plan could exclude infertility treatments for men because “infertility is outside of the PDA’s protection because it is not pregnancy, childbirth, or a related medical condition.” Krauel v. Iowa Methodist Medical Center, 95 F.3d 674 (8th Cir. 1996 Judge Bye, dissenting” Women are uniquely and specifically disadvantaged by Union Pacific’s failure to cover prescription contraception. Because I believe such a policy violates Title VII, as amended by the PDA, I respectfully dissent. Although the district court’s decision might appear to grant women benefits above and beyond those of men, the PDA requires such benefits be included in an otherwise comprehensive health care plan.

Saturday, March 10, 2007

Omaha attorney loses his appeal from a one year license revocation for refusing an alcohol test even though the Douglas county court eventually acquitted him of refusing to take a breath test. Betterman v. Department of Motor Vehicles, S-05-638, S-06-823 , 273 Neb. 178 . the appellant is pro se and an attorney who brings many issues up on this license appeal, all of which he loses. Still someone liked him because he was acquitted of the same charges in county court; only the administrative revocation stuck. Appellant wanted to challenge on appeal the partiality of the administrative hearing officer who would be an employee of the DMV. Attorney failed to challenge this at the hearing but sought to offer judicial notice of the hearing officer's status at the District Court. Supreme Court agrees that even with notice of adjudicative facts, the appellant may not supplement the record at District court if he did not offer it at the administrative hearing. Further the appellants acquittal, even if this would be newly discovered evidence against his revocation does not affect the administrative license revocation for refusing to test. "Assuming that the court could take judicial notice of the hearing officer's employment as an adjudicative fact, (the supreme court) would not take judicial notice of it. See Wolgamott v. Abramson, 253 Neb. 350, 570 N.W.2d 818 (1997): in a contested case under the APA, a court may not take judicial notice of an adjudicative fact that was not presented to the agency, because the taking of such evidence would impermissibly expand the court’s statutory scope of review de novo on the record of the agency. The APA does not authorize a district court reviewing the decision of an administrative agency to receive additional evidence, whether by judicial notice or other mean. To the extent Vinci v. Nebraska Dept. of Corr. Servs., 253 Neb. 423, 437, 571 N.W.2d 53, 62 (1997). See, also, Slack Nsg. Home v. Department of Soc. Servs., 247 Neb. 452, 528 N.W.2d 285 (1995) suggested otherwise, the court disapproves of them. In the present case, even if evidence of Betterman’s acquittal in the criminal case were to be admitted in a new ALR hearing, its admission would not affect the outcome. Therefore, the district court did not err in refusing to reverse the director’s order.
Nebraska Supreme Court affirms physician's defense verdict from diabetic mother's appeal for brain injured son; criticizes the Plaintiff's abbreviated bill of exceptions and refuses to recognize plain error in alleged evidence spoliation. Worth v. Kolbeck, S-05-269, 273 Neb. 163 Plaintiff brain injured child brought suit against obstetrician because following his birth he developed hypoxicischemic encephalopathy, directly related to his diabetic mother's ketoacidosis that she experienced shortly before delivery. The child suffered lack of oxygen that caused his perinatal brain injury. Defendant doctor answered that the sole proximate cause of the plaintiff's brain injury was the mothers diabetic ketoacidosis and further that delayed cesarean delivery made no difference to the outcome. During the trial the Defendants read into evidence pediatric neurologist Stephen Glass' deposition who testified that the defendant was not negligent nor were his actions the cause of the boy's injuries. Plaintiff objected because his current attorneys were not his counsel when the defendant took this deposition. Plaintiff objected also to the trial court's instruction that allowed the jury to consider whether the mother was herself negligent in managing her pregnancy. Finally the Plaintiff urged that it was plain error for the court to fail to give a spoliation of evidence instruction, even though the Plaintiff did not provide relevant parts of the record to review this in his bill of exceptions the Supreme Court allows the Defendant's proximate cause instruction which asked the jury to consider whether the mother was a proximate cause of his injuries, even though the defendant may not impute the parents negligence to the child: " the third person’s (diabetic mother) negligence is not imputed to an innocent plaintiff by a sole proximate cause instruction. “The concept of sole proximate cause ‘rests on the notion that some third party or other independent event was the sole cause of the plaintiff’s injuries... taken as a whole, the jury instructions were sufficient to ensure that mothers’s negligence did not operate to prevent child’s recovery of damages if the jury concluded that Defendant's negligence was a concurring or contributing proximate cause of Son’s injuries. the Supreme Court went on to criticize the Plaintiff's appellate preparation, noting that The bill of exceptions does not include most of the trial. It is limited to the arguments regarding the admissibility and the reading into evidence of deposition testimony from Sonja’s medical expert, Dr. Stephen Glass; two jury instruction conferences; and the testimony of an expert document examiner, Marlin Rauscher. Finally not a good start the court denies plain error on top of admitting the deposition, stating Sonja’s argument requires a factual inquiry into this record, which is wholly insufficient for this court to evaluate whether the absence of an adverse inference instruction prejudiced Sonja’s case or led to a miscarriage of justice. It is incumbent on the party appealing to present a record which supports the errors assigned, and absent such a record, the decision of the lower court will be affirmed.36 Because we cannot determine that the court’s failure to give this instruction was error, the district court’s ruling is affirmed.

Wednesday, March 07, 2007

Eighth Circuit Court of Appeals reverses convictions against North Dakota simulcast horseracing operator but cautions that all off track betting that takes place by phone or online may be illegal. 053688P.pdf 03/06/2007 United States v. Susan Bala No: 05-3688 05-3691,05-3690 District of North Dakota - Fargo [Loken, Author, with Smith and Gruender, Circuit Judges The defendants contracted with the State of North Dakota to provide charitable off track horse betting operators with signals and betting systems. Later the defendants lobbied the State of North Dakota to gain approval for off track account wagering. The defendants won the contract but failed to remit any proceeds to charities as the law required. The federal district court convicted the defendants of violating 18 USC 1955. 1084(a), 1084(b), along with wire fraud, money laundering charges. In addition the court ordered the defendants forfeit gambling proceeds. Eighth Circuit reverses, ruling that the Government failed to prove the defendants were illegal gambling businesses violating the relevant federal gambling statutes because the government failed to prove the defendants violated the North Dakota simulcasting statutes. Although an account wagering site in North Dakota had to transmit some gambling proceeds to charities, the law was never clear how much, when or how that would occur. The Eight Circuit cautions however although the government did not charge the defendants with illegal conducting wagering through wire facilities, it could have and any off track betting organization taking phone or online bets could be violating the law even though its home State might have authorized its operations: There is an aspect of this issue unnoticed by the parties that could have serious implications for the future of interstate account wagering. The prohibition in§ 1084(a) encompasses bets and wagers as well as information assisting bets and wagers, whereas the exception in § 1084(b) is limited to information assisting bets and wagers. Thus, the plain language suggests that Congress intended to prohibit all interstate wagering by wire, whether or not legal in the States between which the bets are transmitted…North Dakota passed the 2001 account wagering statute in an attempt to attract interstate electronic betting. If the reach of § 1084 is as broad as its legislative history suggests, the attempt if successful will violate federal law. We leave that issue to another day.

Sunday, March 04, 2007

Eighth Circuit slaps down Judge Bataillon again: this time the appeals court reverses Bataillon's order granting a new trial for a crack dealer. 061240P.pdf 02/28/2007 USA v. Jerome BassDistrict of Nebraska - Omaha[Arnold, author, with Murphy and Benton, Circuit Judges]While a cooperating prosecution witness lied several times during pretrial hearings and in an additional affidavit, the District court should d not have assumed that the witness lied during the trial, much less that the US Attorney knowingly presented perjured testimony. The witness who lied in earlier hearings claimed he lied because his aunt pressured him, he was mad he didn't get a lighter sentence. According to Giglio v. United States, 405 U.S. 150, 153 (1972), United States v. Funchess, 422 F.3d 698, 701 (8th Cir. 2005) the government did not violate defendant's due process rights were not violated. Again the Eighth Circuit has a hard time figuring out Judge Bataillon's ruling, but assuming he granted a new trial because the verdict was against the weight of the evidence, the district court abused its discretion because the government presented several corroborating witnesses to prove the defendant guilty.

Saturday, March 03, 2007

It takes the smartest brightest judges of all time to determine that "closed" doesn't mean "closed." Nebraska Supreme Court Justice Gerrard rules that Natural Resources District defendant could not close off discovery of litigation strategy meetings it conducted in accordance with the Nebraska Open Meetings Law84-1408 et seq. ). State ex rel. Upper Republican NRD v. District Judges, S-06-549, 273 Neb. 148 Organization of independent irrigators sued this natural resources district and sought discovery of what its members discussed during closed sessions. The district court agreed with the independent irrigators that the records of closed sessions were not absolutely privileged even if the sessions qualified as closed under the Open Meetings Law, § 84-1410(1).RRS Neb. The Supreme Court Justice Gerrard approves of the district court and holds that the district court should review the closed sessions to determine if any parts of the meetings The old Supreme Court must have been wrong in Maresh v State 489 N.W.2d 298, 241 Neb. 496 (1992) when it said court rules, such as Discovery Rule 26 cannot trump statutes, such as the Open Meetings Law. Also the legislature is supposed to tell the court that lawyers cant get the information, such as specifying that meetings are privileged, as in the Peer Review law§ 71-7903 (Reissue 2003).
Nebraska Supreme Court makes sure lawyers have enough work to do with administrative appeals; Parties to the Public Service Commission may appeal the Commission's failure to issue rules. Chase 3000, Inc. v. Nebraska Pub. Serv. Comm., S-05-935, 273 Neb. 133 Independent internet service providers sought rules from the Public Service Commission to require Qwest to make its networks more accessible to them. The PSC declined to issue the rules and the service providers appealed to District Court, the district court reversed the PSC decision not to act. The PSC challenged the District Court's assumption of jurisdiction, arguing that its decision not to make a rule was not appealable to the District Court. Although the Supreme Court rules in favor of the PSC and Qwest, it agrees that in the future parties who sought rules but did not get them will be able to appeal to district court. Add on top of that since 2003(§ 75-136, as amended by L.B. 187, effective date August 31, 2003) the appeals would go first to District Court instead of straight to the court of appeals. More layers of work, more lawyers, more fun.
Ah country life: the Nebraska Supreme Court affirms that even families living in the country are entitled to have their air floating over(head) free from noxious and unnatural impurities , a right as absolute as the right to the soil itself. Johnson v. Knox Cty. Partnership, S-05-853, 273 Neb. 123 Although the defendants' Knox county feedlot complied with zoning requirements, the Nebraska Supreme Court permits a nuisance suit against the feed lot from neighboring residents, who themselves raised livestock. Heres another environmental activist suit that will help drive agricultural businesses out of the state. we conclude that there are genuine issues of material fact as to whether the cattle confinement facility caused a substantial invasion of or interfer- ence with the Johnsons’ private use and enjoyment of their prop- erty. Accordingly, the Partnership and Feeders were not entitled to summary judgment with respect to the private nuisance claim.