Thursday, May 31, 2007

Default disbarment for attorney who did not respond to grievance nor to the formal charges. Legal Profession Blog. The Nebraska Supreme Court disbarred the attorney by default after the accused attorney failed to respond to any inquiries. But of course not responding avoids a costly fight in the disciplinary action.

Saturday, May 26, 2007

Defendant convicted of first degree sexual assault on his 6 year old stepdaughter loses appeal to the Nebraska Supreme Court. Supreme Court upholds the constitutionality of Nebraska's incest statute § 28-703(1) because defendant did not have standing to raise his vagueness challenge to the law. State v. Archie, S-05-1145 David Archie was convicted in Lancaster County District Court of sexually assaulting his 6 yr old stepdaughter. The Supreme Court takes the case but affirms the conviction and 25-30 year sentence for the sexual assault, 28-319 (pre 2006 version) and of incest (§ 28-703(1) (Reissue 1995). Supreme court affirms the constitutionality of the state incest statute, even though in the earlier case State v. Johnson, 269 Neb. 507, 695 N .W.2d 165 (2005).several Justices would have held it unconstitutional. I guess the law wasn't vague enough to allow a child rapist to get away with it. The Supreme Court also finds a child abuse investigators testimony as to the credibility of the child victim was harmless error because it occurred on redirect testimony. On the small matter of Lancaster County's punctilious judge's error in mixing up his verdict forms, the Supreme Court let it go because no one complained about it. Finally although the defendant claimed his sentence was excessive, the legislature greatly increased the penalties for child sexual assaults with LB 1199 last year {28-319.01, class IB felony and 15 year minimum} so he's pretty lucky he got caught when he did.

Friday, May 25, 2007

Nebraska Supreme Court dismisses appeal of profligate relatives who challenged revival of decedent's asset recovery action against them after probate estate administrator took over case from his conservatorship. Supreme Court overrules several older cases that held revival orders were appealable. Platte Valley Nat. Bank v. Lasen, S-05-1073 Decedent came under court ordered conservatorship several years ago and local bank sued the defendants to recover assets for the protected person. Later he died and his estate personal representative revived the action. The defendants objected to revival and appealed the county court's order. Supreme Court dismisses the appeal, holding that whether the court revives the action under 25-322 or 25-1403-1420 it is a non-final order. We now hold that an order reviving an action, whether the order was entered in proceedings under § 25-322 or under §§ 25-1403 to 25-1420, is not a final order from which an appeal may immediately be taken. the order may be reviewed after final judgment in the case. to the extent that Willis v. Rose, 223 Neb. 49, 388 n.W.2d 101 (1986); Keefe v. Grace, 142 Neb. 330, 6 n.W.2d 59 (1942); Levin v. Muser, 107 neb. 230, 185 n.W. 431 (1921); Missouri P. R. Co. v. Fox, 56 Neb. 746, 77 n.W.130 (1898); and Hendrix v. Rieman, 6 Neb. 516 (1877), hold otherwise, they are disapproved.

Thursday, May 24, 2007

Dhimmitude update: Grand Island Swift plant "accomodates" Somali workers prayer time demands. About 70 Somali meatpacking workers returned to work Wednesday at a Swift & Co. plant in Grand Island after Omaha community representatives intervened to help narrow a culture gap. Mohamed Rage, chairman of the Omaha Somali-American Community Organization, met with company and union officials Tuesday to explain how union contracts and company policy conflict with Islamic prayer requirements." Management was cordial and understanding," Rage said. The company agreed to allow a normal bathroom break to be used for prayer time. Workers agreed to limit their prayer time to the time availableabout 120 Somali workers resigned last week. By Wednesday afternoon, he said, about 70 had returned to work

Saturday, May 19, 2007

Follow up on Dallas in the Panhandle: the defendants could have avoided the whole thing with more careful document drafting. Avoiding Arguments Over Whether Singular Also Means PluralLegal documents drafting experts didn't think much of the document preparation that led to the Dallas in the Panhandle dust up between oil drilling joint venturers. Although the partner who wanted out eventually won, "today’s case from the drafting hall of shame is a case recently decided by the Nebraska Supreme Court, Coral Production Corp. v. Central Resources, Inc., 273 Neb. 379 (Neb. 2007). To the trained agreement drafting expert, make sure singular and plural really mean what they say. Also you can "drive a truck through the caveat “Unless the context otherwise clearly indicates.”
Follow up: Nebraska supreme court to review malpractice verdict against McGrath North law firm. WOWT. The Douglas County District Court reduced the plaintiff's verdict from $1.6million to $229k. The Plaintiff appeals reducing the verdict, while the Defendant cross appeals to have the case dismissed. S-06-0130, Bellino et al v. McGrath North Mullin & Kratz, PC,et al. The defendant attorneys have included in their appeal that the plaintiff missed the statute of limitations because he was aware of the alleged malpractice more than two years before suing the attorneys and the continuous representation rule would not apply

Friday, May 18, 2007

Defendant sought to dismiss her criminal case for abusing a vulnerable adult on speedy trial grounds, see 29-1207 and Constitutional provisions, US Constitution Amendment 6, Nebraska Constitution Article 1 Section 11. State v. Sommer, S-06-832 Defendant claimed that a continuance the court initiated took her trial date outside the 6 month deadline in 29-1207 and the State did not have good cause to have the case continued. See 29-1207(4)(f). The court of appeals remanded for the district court to determine if good cause existed for the continuance. The district court noted that there was a pending double murder case near the same time, but made no further findings. Supreme Court reverses and orders the case dismissed. The State must prove by a substantial preponderance of the evidence that good cause exists for a continuance outside the Defendant's six month speedy trial right. Here the district court did not establish good cause by this standard. The court produced a certified copy of three journal entries from a pending murder case in that court. The journal entries reveal that the defendant in that case waived his right to a jury trial and that a trial to the court was scheduled on July 18 and 19, 2005. Also on July 13, the defendant in that case entered guilty pleas and sentencing was deferred to September 9. This simply does not indicate that this defendant's case could not have been tried prior to July 24, the final trial date for speedy trial purposes.
Grandpa put bond money for the defendant's child abuse case, which started at $150000 but ended up at $10% of $50000. The defendant assigned the bond proceeds to grandpa. The county attorney also sought to garnish the bond fund for past due child support. The Lancaster County District Court denied the county attorney's request to intercept the bond money and ordered it paid to grandfather and the County Attorney appealed. Nebraska Supreme Court dismisses appeal for lack of jurisdiction, finding the State was not authorized to appeal this garnishment type action from a criminal case. State v. Merrill, S-06-081 We do not find such statutes (garnishment provisions of §25-1301 [(Cum. supp. 2006)] and §25-1911] authorize the (county attorney's) appeal in this case. the state’s remedy is in the civil case. regardless of the status of that civil proceeding, the state has no specific statutory authorization to appeal the December 15, 2005, order entered in this criminal case directing the clerk to return the posted bond money to Andersen.
The IRS audited the former owner of a construction company and the targeted principal alleges he ultimately won the audits, however he alleged that his former partner and the Bennington Bank had conspired to submit false business records to the IRS in order to harm him. The audited partner sued the bank and his former partner but the district Court dismissed on Rule 12b6. Nebraska Supreme court affirms 12b6 dismissal because the Plaintiff's complaint fraud, misrepresentation, and conspiracy apply only when the defendants make the misrepresentations to the Plaintiff and not to third parties. Supreme Court however does not charge the Plaintiff attorney fees because his theory of recovery was "plausible." Brummels v. Tomasek, S-05-1548 brumes set forth four separate claims for relief entitled “Fraud,” “negligent Misrepresentation,” “Fraudulent Concealment,” and “Conspiracy.” brumes alleged, inter alia, that appellees had prepared and submitted false information to the Internal revenue service (IRS), allegedly involving Plaintiff’s misappropriation of funds and unreported income, and that appellees concealed exonerating information from the IRS. Supreme Court concludes that the district court did not err in sustaining appellees’ rule 12(b)(6) motions to dismiss and in dismissing Brummels’ complaint. We further conclude that the district court did not abuse its discretion in denying Tomasek and MJr’s motion for attorney fees. the decisions of the district court are affirmed
Extreme Makeover, Nebraska Supreme Court style: Nebraska Supreme Court hears duplex owners' appeal of Omaha Housing Authority's building code citations: the Metropolitan Utilities District has exclusive control over gas appliances; The city could not cite the owners for sloppy painting, tuck pointing and stucco repairs that were not themselves repairs the owners took to remedy code violations. McNally v. City of Omaha, S-05-1022 The City cited the owners for various code violations on a duplex they owned. Some of the citations were for painting over windows, failing to paint stucco exteriors and poor tuck pointing of masonry. Also the MUD had inspected a gas furnace but the City had not given its ok. Supreme Court holds that poor or sloppy repairs are not violations unless they are to repair cited problems. Also the MUD was the right agency to inspect specifically gas powered appliances. " 48-15 states: “repairs, maintenance work, alterations or installations which are caused directly or indirectly by the enforcement of this code shall be executed and installed in a workmanlike manner and installed in accordance with the manufacturer’s installation instructions.” Whether or not the unattractiveness of the repairs could fall under this definition of “workmanlike,” the Mcnallys argue that § 48-15 is inapplicable. the window trim painting, the stucco, and the tuck-pointing were repairs which the Mcnallys conducted on their own accord. We agree that § 48-15 is inapplicable in this case because the ordinance clearly limits the “workmanlike” mandate to situations where the work is conducted pursuant to enforcement of the Code."

Friday, May 11, 2007

Since the Supreme court's plate is pretty full halting the death penalty, it avoids complete chaos and decides not to step into one of the school funding lawsuits. Nebraska Coalition for Ed. Equity v. Heineman, S-05-1357, 273 Neb. 531Justice Connolly backs off a little and a unanimous Nebraska Supreme Court agrees that whether the State is funding education equitably is a problem for the Unicameral and school districts, not the Courts. Still it's hard to keep this crusading Justice who is used to righting every wrong down. Note his peculiar lament in the concluding paragraph of his opinion: "The Nebraska Constitution (says education is the) Legislature's (job) and fails to provide judicially discernible and manageable standards for determining what level of public education the Legislature must provide (emphasis supplied.) This court could not make that determination without deciding matters of educational policy in disregard of the policy and fiscal choices that the Legislature has already made. Nor could we impose a constitutional standard of a “quality” education without ignoring the people’s clear rejection of that standard in 1996. We conclude, as the district court did, that the claims therefore present nonjusticiable political questions." The Omaha Schools funding lawsuit will proceed on equal protection grounds.
Worker Compensation revisions in LB 588 on final reading: the Legislature, tries to cut back on high hospitalization costs by pegging worker comp medical fees to Medicare guidelines. Still the lawyers can keep the MRI mills going because they are exempt for now from the tougher guidelines. The Unicameral also throws in a consolation earmark to the trial lawyers with Senator Nantkes amendment expanding the kinds of injuries that might qualify for loss of earnings capacity awards (but it is still optional if the functional award is greater.) Unicameral Update Online Workers' comp hospital fee schedule moves forwardLB 588 makes three major changes to the hospital fee system, exempts diagnostic providers and expands injuries eligible for loss of earning power awards. First, the bill would establish a prospective payment system for in-patient hospital services. The intent of the new system would be to provide consistency and produce savings for employers and payors. The proposed fee schedule would be based on the payment method used by Medicare. The bill would account for differences between individual hospitals by incorporating hospital-specific Medicare rates into the fee schedule and then increasing those amounts by 40 percent. Second, the bill would establish a "prompt payment" provision with the intent of reimbursing hospitals in a timelier manner. Finally, the bill would incorporate provisions from LB 77, a bill originally introduced by Lincoln Sen. Danielle Nantkes. The bill would provide that certain injured employees could be reimbursed according to their loss of earnings capacity, rather than according to the schedule set in statute. According to Cornett, the provision would ensure that at least a portion of the savings created by the new hospital fee schedule would be passed along to the injured worker. Omaha Sen. Steve Lathrop offered an amendment, adopted 28-0 that would exempt diagnostic related groups for traumatic injuries from the new proposed inpatient hospital fee schedule until 2010.”

Thursday, May 10, 2007

Follow up: Unicameral bows to pressure of agitated skate boarders and reverses Nebraska Supreme Court ruling that had eliminated landowner protections for political subdivisions arising from recreational activities But will such an unjust law stand up in the supreme court? I see that the legislature goes into mind numbing detail as to types of recreational activities, specifies conditions for skateboard parks and their design, and even as a bone to Senator Chambers requires localities post signs that skateboarding is inherently dangerous. Do they skateboard in the hood? State lawmakers voted 48-0 Thursday to give final passage to a bill that will protect cities and other government entities from liability for injuries at parks, playgrounds and other recreational facilities open free to the public.The bill now heads to Gov. Dave Heineman's desk, and he's expected to sign it in a formal ceremony to be scheduled next week, said spokeswoman Jen Rae Hein. It takes effect immediately upon his signature.Legislative Bill 564 was introduced, by State Sen. Mike Friend of Omaha after a Nebraska Supreme Court ruling last year said public entities could be found liable for injuries that occur at public recreational facilities
Plaintiff's attorney waited 5 months and 3 weeks to serve his doubtfully meritorious malpractice suit on the defendant physician. The Douglas County Sheriff apparently served the wrong defendant or misidentified him. According to 25-217, the bad service lead to automatic dismissal of the case, and in this instance the statute of limitations ran. Plaintiff now is blaming the Sheriff for the improper service. Journal Plaintiff claimed the late service occurred as part of his trial strategy in (scrambling) to obtain a favorable expert's opinion before serving the doctor.In Nebraska, an attorney has six months to have the defendant served with papers after filing a lawsuit. Blakeman asked that the physician be served in January 2006, just days before the six-month time limit expired.Blakeman said he received noticed that the papers were served.“At that point, I’m figuring my client is protected,” Blakeman said.But the physician claimed in a court hearing that he was never served. Records showed that the physician was out of his office on the day the server claimed to have given him the papers, and Judge Patricia Lamberty ruled in his favor.By then, it was too late for Blakeman to have the lawsuit served again.Blakeman filed the lawsuit against Douglas County last week.The physician may have to testify in the case against the county.“He has nothing to lose financially,” Blakeman said, “but he might want to defend his practice.”
Follow up: Lets call this "Danielle's Law." Legislature moves to eliminate loophole for repeat drunk drivers who refuse alcohol tests to avoid enhanced penalties. Last year the Legislature created stiffer penalties for repeat drunken driving offenders with very high blood alcohol content levels. But senators didn’t make changes to the penalties for refusal to take the test. So repeat offenders who refuse to take the test cannot be charged with the stricter high-BAC charge, but face the lower penalty. Senators gave first-round approval Wednesday to a measure (LB578) that treats repeat offenders who refuse to take the test that measures the level of alcohol in the blood the same as those who take the BAC and have a high blood alcohol content

Tuesday, May 08, 2007

  • Follow up: The slap on the wrist Lancaster County Court gave Senator Danielle Nantkes wasnt hard enough to hurt her pool and dart teams' chances at Brewsky's: Nantkes pleads to 1st offense drunk driving other charges dropped, probation and license impoundment for 60 days. Nanktes gets probation the day she pleads to reduced charges. How many other dui defendants get paper the day they plead without going through the county court probation office purgatory?

Friday, May 04, 2007

No wonder the government wants to get into the “guest worker” permit racket. Eighth Circuit court of appeals affirms conviction of illegal immigrant smuggler who made $900,000 in just 15 months delivering illegal Mexican workers to North Dakota oriental restaurants. Bismarck Tribune. A federal appeals court has upheld the sentence of man convicted in a human smuggling case in which authorities said thousands of illegal immigrants were brought to work at Oriental restaurants at North Dakota and other states. 061273P.pdf 05/02/2007 United States v. Shan Wei Yu The district court had sentenced Shan Wei Yu, of McKinney, Texas, to nine years for illegal immigrant trafficking and money laundering. The government alleged that Yu and his company, Great Texas Employment Agency, brought at least 1,000 illegal immigrants into the United States. But “At trial, the defendant said he delivered over 6,000 aliens to different restaurants and he claimed all of them were legal," the federal prosecutor said. Defendant's girlfriend, Ya Cao, was sentenced to 21 months in prison for helping recruit illegal workers. The girlfriend claimed the defendant coerced her into assisting his scheme because she needed help seeking political asylum. The defendant disputed his higher sentence because although the guidelines allow for a harsher sentence if the defendant transported “substantially more than 100 aliens,” (USSG § 2L1.1, comment. (n.4) (2005)) he disagreed that 1000 was that. The eighth circuit agrees that 1000 is a substantially greater number. The Ninth circuit put that at only 400! United States v. Nagra, 147 F.3d 875, 886 (9th Cir. 1998) We conclude that there is ample evidence supporting the district court's conclusion that over 1,000 illegal aliens were transported and that the court did not abuse its discretion by departing upward.
Follow up from the Deep Thoughts Department: ultra liberal and super genius Nebraska Supreme Court Justice Jack Handy, er Gerrard takes it upon himself to protect a death row inmate from himself. Just think where we would be without Justice Gerrard, the conscience of the Supreme Court? Who would stick up for lesbians who want to adopt kids? Who would give sappy inspirational speeches to his kids’ law student peers with mush in their heads? Who would be there to protect death row inmates from their own instructions not to proceed with any more appeals? Read this gem: If we were to conclude that electrocution was cruel and unusual after Moore had been electrocuted (Were going to hide behind the bench for a while on this one and drag this out some more), “our citizens’ (Brother Ernie only why pass it off on the 90% who want the death penalty carried out?) confidence in this court and the rest of the judicial branch as a bastion of civil rights might suffer irreparable harm.” (That’s sure more important than looking erratic and playing chicken s*** with the Department of Corrections and the Attorney General) Death row inmates especially need protection from themselves, and to serve a higher purpose! Moore (must) cede control of his defense to protect the public’s interest in the integrity and fairness of capital proceedings (his umpteen appeals don’t matter, with some of the best defense counsel helping him along the way) Although we respect the defendant’s autonomy (hey remember Roe v Wade?), the solemn business of executing a human being cannot be subordinated to the caprice (caprice, that’s after committing these grisly murders nearly 30 years ago) of the accused. We must adhere to our heightened (opinions of ourselves) obligation to ensure the lawful and constitutional administration of the death penalty, regardless of the wishes of the defendant in any one case.