Sunday, December 30, 2007

Eighth Circuit Court of Appeals affirms "slight" downward deviation from sentencing guidelines of 180 months prison plus 6 years supervised for methamphetamine production 21 U.S.C. § 841(a)(1), (b)(1)(C). Citing Gall v. United States, No. 06-7949 and 18 U.S.C. § 3553(a)(1), (4)(A), the Eighth Circuit finds no abuse of discretion from the sentence outside the guidelines range as the trial court considered all appropriate factors while not considering inappropriate factors.063488U.pdf 12/28/2007 USA v. Robert Jon Lucas U.S. Court of Appeals Case No: 06-3488 U.S. District Court for the Southern District of Iowa - Des Moines [UNPUBLISHED] [Per Curiam, with Murphy, Smith, and Shepherd, Circuit Judges]

Tuesday, December 25, 2007

Nebraska Supreme Court rules that Double Jeopardy Clause prevented retrial of assault defendant whose judge recused himself from the first bench trial after starting to hear testimony and declared a mistrial. State v. Jackson, S-07-084, 274 Neb. 724The State has the burden to show that it was manifestly necessary to allow a retrial after the mistrial. we cannot determine whether the judge exercised sound discretion in calling the mistrial because of the inadequacy of the record as to the underlying reasons for the decision. Because of the constitutional implications, the State bears the burden of demonstrating the manifest necessity of a mistrial declared over the objection of the defendant in a criminal case. See Arizona v. Washington, 434 U.S. 497, 98 S . Ct. 824, 54 L. E d. 2d 717 (1978){necessity for the retrial must appear in the record, although explicit findings are not required}; The State cannot meet this burden by simply requesting the court to make a general finding of manifest necessity, as it did here, without a factual record to support the finding. Where the reason for a mistrial is not clear from the record, the uncertainty with respect to manifest necessity must be resolved in favor of the defendant

Monday, December 24, 2007

Attorney's lien filing perfected his interest in receiving attorney fees from a court judgment even though he filed the lien after discharge. Equity excused the attorney from first filing a complaint of intervention (25-328) to seek a division of a divorcing spouse's property division judgment. Meister v. Meister, S-06-873, 274 Neb. 705. After trial when the court awarded the wife a money judgment for property division, the wife dismissed her attorney and other counsel represented her on appeal. Following appeal the husband paid the judgment into court. Former attorney filed his lien in court, which the district court denied was valid because wife had dismissed the attorney. Then former attorney sued for intervention which was dismissed. Nebraska Supreme Court holds, the dismissed attorney still could file a notice of attorney lien in accordance with 7-108 RRS Neb and equity excused his failure to promptly file an intervention complaint. The Supreme Court however leaves unresolved whether attorney properly attached and perfected his lien, and if so in what amount. "Attorney’s filing of the lien after his discharge did not affect the enforceability of the lien. Although intervention is the proper method of enforcing an attorney’s lien in an original action, equity excuses attorney’s failure to intervene before the trial. O n remand, we leave it to the district court to decide whether attorney attached and perfected his lien. If so, the court should then determine the amount of the lien. We reverse, and remand.
Juvenile courts may not consider the willingness of prospective parents to adopt the children of parents against whom the State seeks to terminate parental rights (Section 43-292.02). However the court's considering the adoptive parents' willingness to adopt and other testimony was harmless error and did not impair the terminated parent's due process. In re Interest of Destiny A. et al., S-06-1380, 274 Neb. 713
Nebraska Supreme Court declines to reduce father's child support obligation for social security benefits one of his disabled children receives. Gress v. Gress, S-06-607, 274 Neb. 686. One of the father's children had downs syndrome and received $564 per month social security benefits. the decision does not specify whether the social security took the form of SSI or SSDI. The father argued that in accordance with Ward v. Ward, 7 N eb. A pp. 821, 585 N .W.2d 551 (1998) he should receive a credit for some of the social security support. The Nebraska Supreme Court declines to overrule Ward, distinguishing the situation where a disabled child has additional needs that government benefits support from one where the child is otherwise normal but receives the benefits because of the death of the parent. "it not appropriate to offset child support costs where, as here, the Social Security benefits are intended to mitigate the additional costs that accompany disabilities." The Supreme Court might have discussed whether it would distinguish between Title II disability benefits, for example benefits to children of deceased or disabled workers and Title XVI benefits which are benefits to disabled children that parents' payroll contributions do not fund.
Last week's Nebraska Supreme Court decision In re Interest of Kevin K., S-06-447, 274 Neb. 678 might shed some light on Gary Lacey's crying need for more attorney help in the Lancaster County Attorney's office. The juvenile court asserted jurisdiction over the child because he was a truant (§ 43-247(3)(b)), something the Supreme Court calls a "status crime" (§ 43-245(15) (Reissue 2004)). After the child reached 16 his mother released him from attending public school. See 79-201. The juvenile court terminated jurisdiction. The State DHHS agreed with the juvenile judge's decision to close the case. The Lancaster County Attorney did the appealing. No wonder you are short handed Gary, you are trying to keep cases in the system that should be closed. The Supreme Court, J. Stephan affirms closing the case.where a juvenile is adjudicated solely on the basis of habitual truancy from school pursuant to § 43-247(3)(b), and the status of truancy is subsequently terminated by the lawful execution of a parental release authorizing discontinuation of school enrollment pursuant to § 79-201(3)(d), a juvenile court may terminate its jurisdiction without a finding that such termination is in the best interests of the juvenile.

Saturday, December 15, 2007

Nebraska Supreme Court finds personal jurisdiction proper for child's action against divorced parent who travelled to Nebraska and had his relatives do the same to take her to Canada where the parent allegedly abused the child. S.L. v. Steven L., S-06-563, 274 Neb. 646 The Lancaster County District Court dismissed the ex-wife's tort action against divorced father for allegedly abusing their child while she visited the father in Canada stating the court could not assert personal jurisdiction over the father. Nebraska Supreme Court reverses, finding for intentional injuries the pleading and other materials showed the defendants contacts to this State were sufficiently connected to Nebraska to justify personal jurisdiction over him. "one who removes a minor child from her Nebraska home under the guise of exercising a visitation right in another jurisdiction, and then intentionally subjects the child to harm before returning her to this state, could reasonably expect to be haled into a Nebraska court to answer for such conduct in a civil action brought on behalf of the child." Finally jurisdiction was appropriate in Nebraska as hearing the case here did not offend fair play and substantial justice. "Nebraska’s exercise of specific personal jurisdiction over Steven in this action would not offend notions of fair play and substantial justice.
Nebraska Supreme Court holds double jeopardy does not require reversal and dismissal of criminal charges when the defendant's counsel provides some of the evidence offered and received at trial that provided the court with evidence to avoid a directed verdict. State v. McCulloch, S-06-275, 274 Neb. 636. In a follow up to the Nebraska Court of Appeals' Mrs. Robinson case, the Nebraska Supreme Court rules that the Court of Appeals should not have reversed the defendant's conviction for sexual assault of a child younger than 13 when the defendant was older than 19 when the defendant's counsel provided some of the evidence that helped prove. State v. McCulloch, 15 N eb. A pp. 381, 727 N .W.2d 717 (2007) (McCulloch I) rehearing granted, opinion vacated and replaced with State v. McCulloch, 15 N eb. A pp. 616, 733 N.W.2d 586 (2007) (McCulloch II). The appeals court should not have ruled on direct appeal that defense counsel was ineffective for offering the crucial evidence that defendant was older than 19 at the time of the sexual assaults. Further Lockhart v. Nelson, 488 U.S. 33, 109 S. Ct. 285, 102 L. E d. 2d 265 (1988), does not confine the reviewing court's double jeopardy analysis to whether evidence the court receives solely from the State's offer was sufficient to avoid a directed verdict. "The Double Jeopardy Clause does not forbid a retrial so long as the sum of all the evidence admitted by a trial court, whether erroneously or not, would have been sufficient to sustain a guilty verdict...To the extent cases such as State v. Anderson, 258 Neb. 627, 605 N .W.2d 124 (2000) may be read as limiting Double Jeopardy consideration to only evidence offered by the State, they are disapproved.

Sunday, December 09, 2007

US District Court for the District of Nebraska erred when it gave a methampetamine defendant credit for "minimal participation" in a drug distribution scheme. Eighth Circuit Court of Appeals reverses sentence of time served at one year because the defendant actively participated in manufacturing and distributing the drugs. 063920P.pdf 12/07/2007 United States v. Scott Goodman U.S. Court of Appeals Case No: 06-3920 District of Nebraska - Omaha [PUBLISHED] [Gruender, Author, with Colloton and Beam, Circuit Judges] the court erred when it granted him a four-level minimal participant reduction under Guidelines Sec. 3B1.2(a); on remand, the court should not consider defendant's post-sentencing rehabilitation in determining his sentence.

Saturday, December 08, 2007

Nebraska Supreme Court allows Department of health and Human Services to use 1972 cost figures when allowing nursing home operator to claim depreciation reimbursement although existing operator acquired facility in 2000. Belle Terrace v. State, S-06-876, 274 Neb. 612. The Lancaster County District Court agreed with Tecumseh nursing home operator that it could use cost figures from 2000 to claim depreciation reimbursement from Medicaid for a building that was built in 1972 because the nursing home did not use the structure for its facility until 2000. Nursing home argued and the District Court agreed that the structure was not in existence before 1974, an interpretation in line with federal Medicare regulations. Nebraska Supreme Court reverses; when the Nebraska Department of Health and Human Services declines to follow federal regulations, the departments interpretation of an unambiguous term, in this case "in existence" prevailed over an interpretation the nursing home assumed applied because if this were a Medicare case, the nursing home would have won.
Nebraska motor vehicle accident guest statute § 25-21,237 (Reissue 1995) applies in action filed in district court between Nebraska residents even though accident occurred in Colorado where no guest statute applied. Heinze v. Heinze, S-06-722, 274 Neb. 595. The Nebraska Supreme Court rejects married plaintiff's contention that the district court should have allowed his action against his wife for injuries arising from an automobile accident they had in Colorado. The Supreme Court, per Justice Wright holds that Nebraska law, including Nebraska's guest statute (§ 25-21,237 (Reissue 1995)) would apply to the action husband-plaintiff filed against his wife in York County, their domicile. Justice Gerrard puts his two cents worth in,his concurring opinion, reminding the plaintiff that his attorneys should have raised one of Gerrard's pet constitutional issues, that § 25-21,237 is unconstitutional. See Le v. Lautrup, 271 Neb. 931, 716 N.W.2d 713 (2006) (Gerrard, J., dissenting). Too bad Justice Gerrard says, the plaintiff's lawyers failed to raise the constitutional issue.
Although the Nebraska Supreme Court earlier held that Neb. Rev. Stat. § 29-2281 (how to assess criminal restitution, see In re Interest of Brandon M., 273 Neb. 47, 727 N.W.2d 230 (2007) did not apply to juvenile delinquency proceedings, the Supreme Court holds that juvenile courts should use its rules for "guidance." In re Interest of Laurance S., S-06-1439, S-06-1443 , 274 Neb. 620 Nebraska Supreme Court (J. Miller-Lerman) reverses $29,000 restitution orders against two Fremont brothers who vandalized a school. Can you say "legislating from the bench?" Justice Miller-Lerman cant stand that juvenile courts don't have statutory guidelines on assessing restitution, so she helps them come up with some. $29000 was just too high a price to charge two likely career losers without considering their ability to pay. Did it occur to the supreme court that putting a little shock value into their heads might wake them up? Instead typical of her blame the victim attitude she is more concerned with the self-esteem of the delinquents. "The result of such [an order] would not be rehabilitation. Rather, it would give the [juvenile] a sense of unfairness, injustice and bitterness towards the system because the chance to reform would not be present.’”
Nebraska Supreme Court refuses to give custody to mother from Columbia who barely spoke English, felt helpless and thought social services authorities owed her something for it. Maska v. Maska, S-07-187, 274 Neb. 629 Aurora Ramirez Maska, a native of Columbia, sought custody of her two children in divorce proceedings in Buffalo County District Court. The district court awarded custody of the children to the American father during the school year with summer custody to the mother. On top of that the Court ordered the husband to pay Aurora $78 per month child support along with 46% of the kids' social security benefits, presumably from the father's disability claim. Nebraska Supreme Court affirms over Aurora's objection that the district court ruled against her because she was from Columbia, could barely speak English and felt that American welfare owed her something. Looks like a slam dunk to me that you would want 7 and 5 year old children to live with a parent who spoke English, at least during the school year. Sadly Justice Wright had to remind the parties that the Supreme Court was not ruling against her because of her nationality, rather it was in the best interests of the children to live with the American parent during the school year. Aurora’s final argument is that the district court abused its discretion by using her national origin and language as a factor against her when evaluating the best interests of the children. Her argument has no merit. The court’s decree does not state that it used Aurora’s national origin or language as a factor. (The child psychologist) recommended to the court that the primary physical custody of the children be given to Joel during the school year and to Aurora during the summer months. That is the recommendation the court adopted, and we find no abuse of discretion in the court’s decision.

Saturday, December 01, 2007

Nebraska Department of Health and Human Services' appeal of State Personnel Board decision to demote its adult protection worker instead of firing her is dismissed because it was not filed in the correct county. Nebraska Dept. of Health & Human Servs. v. Weekley, S-06-292, 274 Neb. 516Plaintiff and adult protection worker for the Department of health and Human Services faced termination because she did not timely investigate a report that a vulnerable adult was in danger. The vulnerable adult died later in a fire. the Department and the employee first attended a mini-hearing session at DHHS headquarters in Lincoln but the hearing officer recommended termination. The State Personnel Board of the DAS (Department of Administrative Services) recommended discipline short of termination. DHHS appealed the Personnel Board's decision in the Dodge County Court, where the State won reinstatement of its termination decision. Supreme Court vacates, holding that according to 84-917(2)(a), the Department should have filed its district court appeal in Lancaster County where the Department and its employee first attended the informal "mini-hearing" regarding the disciplinary action the Department sought to take against the adult protection worker, even though the formal DAS termination hearing took place in Dodge County. Notwithstanding the procedural limitations and the informal nature of the “mini hearing,” ,,we conclude that the “mini hearing” in Lancaster County was the first adjudicated hearing.DHHS filed its petition for further review in Dodge County, rather than Lancaster County, and the Dodge County District Court did not have jurisdiction."
Win for home-based business from disgruntled neighbors zoning appeal on a technicality. Small accounting and tax service business won an extension to operate from the owners home for an additional five years from the Omaha zoning board. Goodman v. City of Omaha, S-06-532, 274 Neb. 539 Neighbors appealed to the Douglas County District Court but the District Court affirmed. Neighbors first filed for a new trial and then filed their notice of appeal. Supreme court dismisses appeal, holding that when the district court functions as an intermediate appellate court, a motion for new trial or similar motion does not toll the 30 day jurisdictional time limit for appealing"Section 14-414 provides that the district court’s authority is limited to the power to reverse, modify, or affirm the decision brought before that court for review. The district court acts as ab appellate court in appeals from zoning appeals boards (Kuhlmann v. City of Omaha, 251 N eb. 176, 556 N .W.2d 15 (1996). Because the district court in this case functioned as an intermediate court of appeals, and not as a trial court, the appellants’ motion for new trial did not stop the running of the time within which to perfect an appeal."
Nebraska Supreme Court reverses Douglas County Court twice in one week again from probate cases. In re Trust Created by Isvik, S-06-420, 274 Neb. 525 In re Guardianship & Conservatorship of Cordel, S-06-591, 274 Neb. 545 Douglas County Court probate cases seem to get more than their share of reversals from the Nebraska Supreme Court. Isvik: the Supreme Court reverses the Douglas County Court's "reforming" a settlor's written revocation of a trust 2 weeks before her death to change it to a trustee replacement. Also the Supreme Court refused to dismiss the settlor's estate's appeal even though it failed to have an appropriate supersedeas undertaking on time after appealing. Cordel: Supreme Court allows parent of incapacitated adult to intervene to object to an $80000 trustee fee.
Nebraska Supreme Court affirms dismissal of Douglas County security employee who while on sick leave worked a second job, even though the disciplinary citation and a supervisor referenced a mistaken allegation that his off-duty injury that lead to the employee's taking sick leave was during outside employment. Hickey v. Civil Serv. Comm. of Douglas Cty., S-06-802, 274 Neb. 554. Plaintiff injured his had during off-duty time and he received sick leave from his employer Douglas county Nebraska. Later the county discovered he was working at a second job while drawing sick leave pay. The county moved to dismiss plaintiff and plaintiff appealed. One of the plaintiff's supervisors testified mistakenly that the county dismissed plaintiff because he was injured while working a second job and sought sick leave pay for the injury. But the disciplinary notice and other employees testified that the county dismissed plaintiff for working at outside employment while drawing sick leave. Supreme Court affirms. "the record clearly establishes, despite supervisor’s confusion, that Hickey’s employment was terminated for violating section 2(a) (against outside employment on sick leave) and that he had notice of and the opportunity to defend himself against that charge. We find no due process violation."