Monday, September 28, 2009

Nebraska Supreme Court affirms Court of Industrial Relations decision to award back pay to former Dakota County School District speech teacher whom the District had improperly classified as a long term substitute teacher. South Sioux City Ed. Assn. v. Dakota Cty. Sch. Dist., S-08-1307, 278 Neb. 572. The District unilaterally decided to end (speech teacher’s) employment in December after she taught nearly every day of the first semester. authority of the Association and its rights would be undermined if the District were allowed to unilaterally designate probationary teachers as long-term substitutes. The District’s designation of speech teacher as a long-term substitute had the effect of unilaterally removing her from the bargaining unit. he CIR correctly concluded that speech teacher was not a long-term substitute, but performed as a probationary certificated employee and was therefore a member of the bargaining unit. The act of unilaterally paying speech teacher on a basis other than as provided in the Agreement and without bargaining with the Association about such a change was a violation of § 48-824.

Saturday, September 19, 2009

Ex-trooper with KKK ties may lose Nebraska law enforcement certificate. The Nebraska Police Standards Advisory Council is recommending that law enforcement certification be revoked for Robert Henderson, who was fired by the state patrol for his ties to the Ku Klux Klan. Henderson asked the council on Wednesday to let him keep his certification so he can work as a law officer elsewhere in Nebraska. But the council voted to revoke his certification, citing his neglect of duty and his emotional incapacity. The decision goes to the Nebraska Crime Commission for approval. Henderson was dismissed in 2006 after it was discovered he had joined a racist group. He told an investigator he joined the Knights Party in June 2004. Henderson appealed his dismissal to the Nebraska Supreme Court, State v. Henderson, 277 Neb. 240 (2009) which upheld the firing. I didn't know that practicing your first amendment rights off duty adversely affected your attention to duties and emotional capacity.
Petition for further review to the Nebraska Supreme Court sustained in No. S-08-959: State v. Simnick, 17 Neb. App. 766 (2009). Petition of appellant for further review sustained on September 16, 2009 {the finding that Defendant committed an aggravated offense for the purpose of lifetime community supervision should have been submitted to a jury, but the error was harmless }.
Nebraska Supreme Court affirms Seward County District Court's dismissal of landowner's suit for lacking standing against the Nebraska Game and Parks Commission in which plaintiff tried to force the Game and Parks Commission to halt power line construction over the Twin Lakes Recreation Area. State ex rel. Reed v. State, S-08-1261, 278 Neb. 564. A proposed power line project over the Twin Lakes area would allegedly disturb the livelihood of the the Western Prairie Fringed Orchid, which has been identified as a "threatened and/or endangered species" by the U.S. Department of the Interior and the State of Nebraska. Plaintiff sought to impose upon NGPC his opinions regarding the administration of the state’s wildlife management areas. By law, NGPC is charged with this responsibility. See § 37-336. Plaintiff's claim that NGPC has breached its duties does not give Plaintiff the right to seek relief in the courts. Such concerns are better left to the policy decisions of the legislative and executive branches. Certainly, the public has a right to influence NGPC’s policies regarding the administration of the state’s wildlife management areas. However, the mechanism for doing so is through our representative form of government, and not through the courts. See Ritchhart v. Daub, 256 Neb. 801, 594 N.W.2d 288 (1999). Plaintiff has not shown that he has standing to bring the action."
Nebraska Supreme Court allows sentencing court to correct mistaken calculation of time served after sentencing. State v. Clark, S-08-735, 278 Neb. 557 The Lancaster County District Court judge gave an defendant more credit for time served than he actually served and the court attempted to correct the sentence for Class I misdemeanor sexual assault by noting the appropriate amount of credit. On May 19, 2008, the district court attempted to sentence defendant to 360 days in jail but incorrectly credited Defendant with 361 days’ time served. On June 12, the court entered a written sentencing order granting Defendant credit for 61 days’ time served, the amount of time actually served and reflected by the record. Defendant appealed, and the Nebraska Court of Appeals affirmed. We granted Defendant’s petition for further review. For different reasons, we affirm. A sentencing court must under Neb. Rev. Stat. § 47-503 (Reissue 2004), separately determine, state, and grant credit for time served, and must the court must set form those times as a part of the sentence, State v. Torres, 256 Neb. 380, 590 N.W.2d 184 (1999). The judge was without discretion to award Defendant more credit for time served than he actually served. Accordingly the district court had authority to correct the erroneous portion of its sentencing pronouncement by giving Defendant the accurate amount of credit for time served as reflected by the record.
Nebraska Supreme Court affirms summary judgment in favor of heating repair business's liability and umbrella insurer against personal representative of decedents who died of carbon monoxide poisoning from allegedly faulty heating repairs. Harleysville Ins. Group v. Omaha Gas Appliance Co., S-07-1235, 278 Neb. 547 . The Douglas County District Court ruled in favor of insurer Harleysville did not owe liability and umbrella coverage for carbon monoxide poisoning that resulted from faulty heating repairs. The estate appealed. While the Supreme Court agrees that the estate could intervene in the action and did not expand the issues therein, it agrees that the policy "pollution" exception covered injuries from carbon monoxide poisoning. "(Personal Representative had) standing to bring this appeal and to present the arguments that she makes. PR was a proper party defendant to Harleysville’s declaratory judgment action alleging that it had no duty in relation to the alleged incident that killed the decedents. While PR presented somewhat different assertions as to why the policy should cover the incident, those did not interject any factual or legal questions extraneous to the action. As to whether the CO2 poisoning would be covered, the Court states "we need not engage in PR’s extensive semantic discussion of whether the isolated phrase referring to "liability caused by pollutants" refers solely to legal obligations stemming from the pollutants themselves without any human causal element The umbrella policy, like the general liability policy, excluded coverage for liability occasioned by the release of pollutants—regardless of what level of human culpability was involved"(emphasis supplied).

Friday, September 11, 2009

Nebraska Supreme Court declines to allow pain and suffering damages for intentional or negligent misrepresentation. Estate had sued nurses for misrepresenting decedent's suffering while under its hospice care. While the trial court erred when it excluded the plaintiff's expert witness who would testify that improper medications led to the decedent's increased pain, the error was harmless. Tolliver v. Visiting Nurse Assn., S-08-357, 278 Neb. 532 The estate asks this court to adopt the Restatement (Second) of Torts § 557A. It contends that adopting § 557A would allow a party who is physically harmed by a defendant’s misrepresentation to recover non-economic damages. In addition, the estate claims that the trial court erred in excluding the testimony of one of its medical experts. We decline to adopt § 557A because the damages the estate seeks were available under its negligence theory. We further conclude that the excluded expert testimony was cumulative to other experts’ testimony. We affirm.
Senator Nelson must have been thinking about his buddies at the trap shooting range when he voted against scholarly totalitarian Cass Sunstein for his regulatory sinecure at the Office of Management and Budget. Good job Benator.
Why are the members of the Nebraska Pardons Board having to take countless pardon applications for minor crimes? Simple, the Nebraska Supreme Court said so. See also State v. Bainbridge, 249 Neb. 260, 543 N.W.2d 154 (1996). Board of parole; members; powers; reprieves; proceedings; power to pardon; limitations "The Governor, Attorney General and Secretary of State, sitting as a board, shall have power to remit fines and forfeitures and to grant respites, reprieves, pardons, or commutations in all cases of conviction for offenses against the laws of the state, except treason and cases of impeachment. The Board of Parole may advise the Governor, Attorney General and Secretary of State on the merits of any application for remission, respite, reprieve, pardon or commutation but such advice shall not be binding on them."

Sunday, September 06, 2009

Follow up: the Eighth Circuit Court of Appeals amended its decision on October 21, 2009 but did not change its ruling, its amended holding states: "substantial evidence supports the district court’s conclusion that Graske breached a duty of reasonable care if Doyle was seated on the bow cushion when the boat came on plane." Nebraskan vacationers went fishing in the Grand Cayman Islands. The defendant's boat had an air cushion hull and when defendant accelerated the steering failed, causing the boat to turn sharply left. Plaintiff flew off the boat and suffered severe head trauma when the boat struck him. Defendant removed case to federal district court under admiralty jurisdiction and after taking consideration of plaintiff's 10% contributory negligence awarded plaintiff over $3 million plus $750, 000 loss of consortium damages. Eighth Circuit Court of Appeals affirms damage verdict but noting ambiguous law and precendents from other circuits reverses loss of consortium award.Daniel Doyle v. Leland Graske U.S. Court of Appeals Case No: 08-3144 District of Nebraska - Omaha 083144P.pdf 09/02/2009 . "Substantial evidence supported the district court's determination that defendant breached a duty of reasonable care to plaintiff by bringing his boat to planing speed when plaintiff was in a position of danger; neither did the court err in finding that defendant's negligence in operating the boat was a proximate and substantial cause of plaintiff's injuries; there is no well-settled admiralty rule authorizing loss-of-consortium damages for spouses of non-seafarers negligently injured beyond the territorial waters of the U.S., and the district court erred in awarding plaintiff's spouse damages for loss of consortium"

Saturday, September 05, 2009

Order of the Kneepads Update: Nebraska Supreme Court suspends Iowa attorney for filing pleadings while her Nebraska license was inactive, for failing to respond to the disciplinary counsel's grievances, and on reciprocal discipline for 90 days with one year probation. State ex rel. Counsel for Dis. v. Frye, S-09-139, 278 Neb. 527 "respondent should be and hereby is suspended from the practice of law for a period of 90 days, effective 30 days after the filing of this opinion, after which time respondent may apply for reinstatement. Should respondent apply for reinstatement, her reinstatement shall be conditioned on respondent’s being on probation for a period of 1 year following reinstatement, subject to the terms agreed to by respondent and outlined above. "
Neighboring property owners in rural Douglas County win reversal of their injunction action against dog groomers who wanted to open a dog kennel. Conley v. Brazer, S-08-974, 278 Neb. 508 Supreme Court reverses the District Court's summary judgment in favor of the dog kennel owners. "Section 23-168.02(1) states that "[a]n appeal to the board of adjustment may be taken by any person or persons aggrieved . . . by any decision of an administrative officer or planning commission ..§ 23-114.05 establishes that an appeal to a board of adjustment is not the exclusive remedy for challenging a land use alleged to be in violation of zoning regulations. an aggrieved party may use § 23-114.05 to seek injunction of land use in violation of regulations. The kennel's neighbors were authorized to sue by § 23-114.05 independent of the remedies offered by §§ 23-168.01 to 23-168.04 . We conclude that the Conleys were entitled to seek injunctive relief without first resorting to the appeal procedure set forth in §§ 23-168.01 to 23-168.04. We further conclude that the district court erred in granting summary judgment to the Brazers, Paradise Pet Suites, Douglas County, the City of Omaha, and the other named defendants because there are genuine issues of material fact pertaining to the Conleys’ requests for injunctive and declaratory relief
Deceased's nephew loses appeal in Nebraska Supreme Court of will contract complaint in Madison County District Court. Uncle had turned over his estate to female friend who was a very good financial advisor about two years before his death. Nephew could not prove any will or writing existed in which the uncle would have promised not to disinherit him. Johnson v. Anderson, S-08-811, 278 Neb. 500 Section 30-2351 specifically states that the only way to prove the existence of a contract to make a will or not to revoke a will or devise is by satisfying one of the three subsections. Considering the evidence in the light most favorable to Roger, there is no will or signed writing that satisfies § 30-2351. Conclusions based on guess, speculation, conjecture, or a choice of possibilities do not create material issues of fact for purposes of summary judgment. Recio v. Evers, ante p. 405, ___ N.W.2d ___ (2009); Marksmeier v. McGregor Corp., 272 Neb. 401, 722 N.W.2d 65 (2006). Therefore, the evidence did not warrant the imposition of a constructive trust on Aner’s estate
Nebraska Supreme Court rules against sign company that challenged city ordinances that prohibited displaying company's signs once its leases terminated with land owners. Larmar Co. v. City of Fremont, S-08-590, 278 Neb. 485. But the sign company beat a claim for frivolous case penalties because its attorneys were well prepared. "The district court properly concluded that when Lamar’s leases were terminated by their terms, Lamar’s rights with respect to the nonconforming use of the signs were extinguished and remained with the current landowner. Furthermore, Lamar lacked standing to raise its "as applied" and facial challenges to ordinance No. 4032 and the district court was not in error in granting summary judgment in favor of appellees on Lamar’s remaining claims. Further, the district court did not err in denying the cross-appellants’ request for attorney fees."
Defendant convicted of murder in "Boys Don't Cry" case loses appeal from post-conviction proceedings in which he requested new trial based on co-defendant's perjury at trial. State v. Lotter, S-08-449 through S-08-451, 278 Neb. 466. Defendant was too late in brining to motion for new trial based on Nissen's perjury; fear of the death sentence is not enough to show prosecutorial coercion. Unlike postconviction relief, relief under Neb. Rev. Stat. § 29-2103 (Reissue 2008) {motion for new trial based on newly discovered evidence} is not strictly limited to constitutional claims. A motion for postconviction relief cannot be used to obtain, outside of the 3-year time limitation under Neb. Rev. Stat. § 29-2103 (Reissue 2008), what is essentially a new trial based on newly discovered evidence. Once a defendant has been afforded a fair trial and convicted of the offense for which the defendant was charged, the presumption of innocence disappears. Even if a defendant has not actually killed a victim, substantial participation in the felony Constitutional Law: Criminal Law: Witnesses: Death Penalty. A witness’ testimony is not the result of unconstitutional coercion simply because it is motivated by a legitimate fear of a death sentence

Tuesday, September 01, 2009

What do the students who do best on the LSAT major in during college? The Volokh Conspiracy cites research that shows Economics and Philosophy do best: "Economics majors still perform at or near the top of all majors taking the test. Economics majors (LSAT score of 157.4) are tied for first (with Philosophy) of the 12 largest disciplines (those with more than 1,900 students entering law school). Economics is tied for second (with Philosophy/Religion (157.4)) behind Physics/Math (160.0) in a set of 29 discipline groupings that are created to yield at least 450 students with similar majors. " Pre-law students fare less well on the test, but I'm sure they can make up for it with greater opportunities for "community organizing" projects that can make up a lot of ground on their intellectual betters.
Follow up: Former aide to Senator Exon files qui tam lawsuit in Virginia federal court against Nelnet. "Jon Oberg, a University of Nebraska-Lincoln graduate and former aide to former U.S. Sen. Jim Exon, filed the suit in U.S. District Court for the Eastern District of Virginia. Nelnet is the lead defendant, but since the Lincoln student loan company settled its differences with the federal government more than two years ago, its spokesman said Nelnet considers the matter closed. "Without having seen the litigation there's nothing to comment upon," said Nelnet spokesman Ben Kiser. The suit seeks the return of about $1 billion in "special allowance" payments wrongfully obtained under a federal subsidy program. The subsidy guaranteed a 9.5 percent return on a limited class of student loans. It was created in the 1980s to ensure low-cost student loans at a time when the economy was souring and interest rates were high. It was largely phased out in 1993, but companies found a loophole that allowed them to actually expand the amount of loans receiving the subsidy by recycling older loans and packaging them with newer ones."