Tuesday, September 25, 2007

Judge who did not recite immigration consequences to immigrant defendant word for word did not cause manifest injustice entitling defendant to vacate his plea. State v. Molina-Navarrete, A-06-1362, 15 Neb. App. 966Can you tell the difference between what the Dawson County Judge told one of our hard working striving new arrivals to our land of promise and what the Nebraska Legislature requires judges to advise defendants on the possible immigration consequences of breaking our laws? Here's what the judge told the defendant Molina-Navarrete: "In addition, if you are not a United States citizen, any conviction of this offense may have the consequence of causing you to be removed from the United States; that is, deported or denied naturalization of the laws of the United States. Do you understand all of the penalties" YES Here's what Section 29-1819.02 requires, in bold: IF YOU ARE NOT A UNITED STATES CITIZEN, YOU ARE HEREBY ADVISED THAT CONVICTION OF THE OFFENSE FOR WHICH YOU HAVE BEEN CHARGED MAY HAVE THE CONSEQUENCES OF REMOVAL FROM THE UNITED STATES, OR DENIAL OF NATURALIZATION PURSUANT TO THE LAWS OF THE UNITED STATES. Molina-Navarette sought to vacate his guilty plea after sentencing for narcotics possession. Dawson County overruled his motion and the Nebraska Court of Appeals found no manifest injustice, the standard for vacating pleas after sentencing: "We conclude that these minor language differences are inconsequential and that Molina-Navarrete was properly advised of the immigration consequences of his plea as required by § 29-1819.02 and refusing to vacate the plea was not a manifest injustice"

Saturday, September 22, 2007

Eighth Circuit again reverses Nebraska Federal District Court Judge Bataillon, this time for Judge Bataillon's ruling that retired union members should be able to keep sucking their employer Crown Cork and Seal dry for a lifetime of gold-plated health care. International Association of Machinists, AFL-CIO v. Crown Cork &Seal 09/18/2007 U.S. Court of Appeals Case No: 06-3639 District of Nebraska - Omaha [PUBLISHED] [Bowman, Author, with Melloy and Gruender, Circuit Judges]. Retired union employees of Crown Cork and Seal filed grievances because the company put introduced unwelcome cost cutting measures to their health plans. Company sought declaratory relief that it did not have to arbitrate and could modify the health plans. District Court Bataillon ruled the company had to agree to arbitration under the company's active labor relations agreement with present employees. Eighth Circuit reverses. The retirees' health benefits did not vest before the Master Agreements expired and did not survive the expiration of those agreements. The district court erred in granting summary judgment to the union and ordering arbitration of Crown's unilateral modification of the retiree health plan. Crown's declaratory judgment action under the Labor Management Relations Act is dismissed, as the law of the case conclusively determined that retiree benefits did not vest before the Master Agreement expired.
Bankrupt used car dealer owed a $150000 federal court judgment to a former female employee due to his partner's flagrant sexual harassment of her. Eighth Circuit Court of Appeals finds the federal court employment discrimination verdict under 42 U.S.C. § 2000e-3(a) was not dischargeable as a willful and malicious injury according to 11 USC 523(a)(6). Holly Sells v. Michael Porter 09/21/2007 U.S. Court of Appeals Case No: 07-6008 and No: 07-6013 U.S. Bankruptcy Court for the Eastern District of Arkansas
The Lancaster County Court and local prosecutors do the right thing to avoid another "Jena 6" situation here. Lancaster County Judge Gayle Pokorny sentenced Earl Richardson III to six months in jail yesterday for "criminal mischief." Journal Star.com What was his crime? Richardson an Omaha resident was randomly shooting a harmless paintball gun while riding in the back of his friend's Lincoln Towncar. One of his shots found the back of a three year old girl's head, and it knocked her to the ground. He plead to two counts of "Criminal Mischief," Section 28-519. Criminal Mischief can be a Class IV felony, or Class I, II, or III misdemeanor. The article does not say whether the judge sentenced the defendant to concurrent six month terms or whether the defendant received two consecutive three month sentences. Naturally the public is outraged at the seemingly light sentence, especially since the Defendant had a rather long rap sheet, 5 pages of computer print-outs. But good Judge Pokorny and the prosecutors who watered down the charges did the right thing. After all, we don't need any Jena 6 marches or more Ernie Chambers lawsuits around here do we?

Friday, September 21, 2007

Nice recovery for the losing attorney who didn't bother to defend the summary judgment motion against his client: Plaintiff's deceased husband suffered paralyzing injuries in an ATV accident while on a work detail cutting and spraying weeds on a Natural Resources District bike trail. Weichman v. Lower Platte South NRD, A-05-1147, 15 Neb. App. 946. At the time the deceased husband was an inmate at the Lincoln Community Corrections Center. Plaintiff representing the estate continued their suit against both the Natural Resources District as a political subdivision tort claim action action and the Nebraska Department of Corrections as a state tort claim action. The Lancaster County District Court dismissed the the Department of Corrections during a summary judgment hearing that the plaintiff's attorney did not attend. The district court ruled the Nebraska State Tort Claim Act's discretionary function exception(§ 81-8,219(1)) immunized the State from responsibility for the inmate's injuries. Plaintiff appealed the Department of Corrections dismissal as a final order. Nebraska Court of Appeals, and reverses. "Even though Plaintiff’s counsel failed to appear at the summary judgment hearing and to contradict or contest DCS’ evidence, there are a number of unresolved facts—remembering that on summary judgment, we view the evidence most favorably to Weichman...(the) evidence suggests that contrary to a statement in (the correctional officer’s) affidavit, his responsibility on June 6, 2002, was not limited to “security,” and creates an issue of material fact (as to whether the discretionary function exception applied). "if the corrections officer trains instructs and supervises the inmates (on the work detail) for NR D, then whether the discretionary function or duty exception from liability applies is a material issue of fact for trial."

Wednesday, September 19, 2007

Edward Poindexter's attorney recently lost his client's latest motion for new trial; Douglas County District Judge Bowie ruled against him on every point. Poindexter's attorney also obtained ham sandwich indictments against Lincoln Police and Fire Department personnel in 1995 from Lincoln's 1994 "Rodney King" wannabe Renteria. When the cases when to trial all promptly resulted in acquittals. Does anyone see a pattern here? Poindexter's attorney Bob Bartle said it all however, when he seemed to brush off the district court loss because "it's going to the Supreme Court." Well if I were a friend or relative of the Omaha Police officers Ed Poindexter and David Rice killed or maimed, I would not assume that the meddlesome snivel liberties lawyers representing these Black Panther thugs and their lackeys on the Supreme Court are done yet.

Sunday, September 16, 2007

Speed traps in men's rooms: Did the Minneapolis Airport police set-up Senator Craig? Maybe to tap the bathroom-cruising cash cows, but not for politics. Now that Senator Craig has decided to try to fight the citations he received, officially for violating Minnesota criminal statutes titled "Interference with Privacy" and "Disorderly Conduct", did the cops set him up to unseat yet another Senator from the vulnerable Republican Party? Probably they set him up but not for that reason. The fine was pretty substantial. And most defendants caught in an airport far from home would love to avoid the embarrassment of returning to Minnesota, sitting through hours of county court sessions to fight the charges. Predictably most would waive their rights and plead guilty to reduced charges. Now with a $1000 fine and nearly $100 of court costs, that's good pay for a day's work. The airport probably pays the officer $40-45k per year, maybe to $55k with overtime. Add in 20 to 30% for deferred compensation, FICA, health insurance, etc. The $1000 fine more than covers the officer's pay for the day. Now the officer probably spent half his shift landing the Senator, and court personnel and prosecutors a few more hours, but still a nice profit from the cruising cash cows.

Sunday, September 09, 2007

US District Court habeas action was too late under Federal AEDPA because the defendant failed to appeal his original Nebraska state court conviction and obtained a direct appeal only years later to remedy his claim that his counsel was ineffective for failing to file a direct appeal on time. 063893P.pdf 09/06/2007 Keva Tyree O'Neal v. Michael Kenny U.S. Court of Appeals Case No: 06-3893 District of Nebraska - Lincoln. Something for all those goons in the joint who discover that their public defenders should have appealed the plea bargains they reach for them to think about: in federal court the merry-go-round comes to a stop. The defendant plead guilty to a few counts of first degree assault. His attorney botched the appeal because the poverty affidavit he drafted was deficient. Only much later did the Nebraska state court grant the defendant a direct appeal to remedy his counsel's ineffectiveness. Eight Circuit agrees that under Nebraska law, the direct appeal to remedy ineffective counsel is a new proceeding and not the original one. To determine whether a new direct appeal constitutes direct review within the meaning of AEDPA, we must examine the underlying state law and in State v McCracken the Nebraska Supreme Court explicitly rejected the defendant's position. "In State v. McCracken, the court held that the grant of a new direct appeal constitutes a new appellate process and does not reinstate the original appellate process. State v. McCracken, 615 N.W.2d 882, 882 (Neb. 2000); State v. McCracken, 615 N.W.2d 902 (Neb. 2000) (McCracken II)"

Saturday, September 08, 2007

Nebraska Supreme Court reverses Thomas County District Court's summary judgment ordering removal of directors of cattle feeding corporation. Neiman v. Tri R Angus, S-06-118, 274 Neb. 252. District court judge ordered corporate officers removed following dispute between shareholders and the directors. Although the defendants did not offer evidence disputing removal, the Supreme Court reverses the removal under 21-2086 proceedings. Because the statute includes grounds for fraud and because fraud requires heightened proof of intent, the Supreme Court concludes all grounds for removal of directors will require heightened proof. "Nebraska's statute on judicial removal of corporate directors, § 21-2086, is an extraordinary remedy. It is not for resolving mere differences of opinion between the shareholders and the directors regarding their exercise of business judgment. Instead, it is an unusual remedy that is to be granted only upon the shareholder’s production of sufficient evidence demonstrating that the director has engaged in “fraudulent or dishonest conduct or gross abuse of authority or discretion with respect to the corporation.” § 21-2086."
Another win for trial lawyer justice in Nebraska: Nebraska Supreme Court reverses summary judgment in suit against U-Haul by user who mishandled the truck's loading ramp. Erickson v. U-Haul International, S-05-1163, 274 Neb. 236The plaintiff's parents rented a U-Haul moving van to move from Iowa to Herman, Nebraska in Washington County. The Plaintiff tried to extend the loading ramp while her father moved the truck, but the truck jumped suddenly and pinned her leg. She sued the U-Haul Center of Omaha and also the umbrella U-Haul company. District court dismissed the case against U-Haul Center finding no duty to warn and dismissed against U-Haul parent company finding no personal jurisdiction. Even though the Nebraska Unicameral has already addressed truck leasing liability issues in 25-21,239, the Supreme Court (J Connolly) predictably reverses. So why is this worthless case going back for trial? Who is going to win a negligence case when a girl and her parents are mishandling heavy equipment? This case wont go to trial and someone will pocket a nice settlement since the Supreme Court has shut off the defendants' threat of a quick dismissal.

Sunday, September 02, 2007

Convicts who escaped from prison had Fourth Amendment rights until the enbanc Eighth Circuit Court of Appeals reinstated the totalitarian use of Nebraska Department of Corrections administrative arrest warrants Neb. Rev. Stat. § 83-173(11) . Missouri Appellate Law Blog reports the split decision U.S. v. Lucasfrom the Eighth Circuit Court of Appeals en banc that reinstated the escaped convict's charges on drugs and weapons charges arising from his apprehension while staying at his girlfriends house. The initial panel of the Eighth Circuit and the dissenters think the Department of Corrections' warrant insufficient to overcome the fourth amendment protection convicts have when absconding from incarceration. We'll think about that next time a convict escapes, takes hostages and is about to kill them and hope that defendant's lawyers won't be able to think up some creative defenses to the case.

Saturday, September 01, 2007

Eminent law prof blawgger applauds Nebraska Supreme Court's decision to maintain SNAFU status with sentencing guidelines. Sentencing Law and Policy Blog loves Nebraska's Justice League member Joe Bataillon, US District Court, and now William Connolly Nebraska Supreme Court for refusing to bow to pressure from the Legislature to introduce some sanity to sentencing decisions. Why if we had guidelines for drug dealers, then we might have to have guidelines for electrocuting murderers, Nigerian gang-bangers, and pedophile runt-rangers.
No complaint amendment to add promissory estoppel three after the plaintiff dropped it from his breach of employment contract lawsuit. Keating v. Ironwood Golf and Country Club voluntarily withdrew his promissory Bank, supra, if the district court had allowed (Not designated for permanent publication). Premier Omaha area golf club Ironwood Country Club hired Bradley Keating to be its chief operating officer in April 2001 with a five year employment contract, subject to the parties reaching within 90 days of starting employment agreement on work performance standards. Apparently Mr. Keating ran afoul of some big names, including Howard Hawks and Thomas Fitzgerald. The club terminated him after 90 days. Keating sued for breach of contract and for breached promissory estoppel. After Ironwood filed its initial demurrer to the promissory estoppel count, Keating withdrew this from his pleading. But nearly three years later in response to Ironwoods motion for a complete summary judgment he sought to reinstate it. Nebraska Court of Appeals, unpublished decision, affirms summary judgment. "Keating sought to change his lawsuit from a straightforward breach of a written contract action to a promissory estoppel cause of action only after the hearing on Ironwood’s motion for summary judgment, nearly 3 years after Keatingestoppel cause of action. Similarly to Cimino v. FirsTierKeating to amend his pleading, the basis of his lawsuit would have been significantly altered after 3 years of proceeding to defend a case based only on a breach of contract cause of action. For these reasons, the district court did not abuse its discretion in refusing to grant Keating’s motion for leave to file an amended petition to change his theory of recovery from a breach of contract claim to one of promissory estoppel."