Nebraska Supreme Court finds that meatpackers' payments to cleaning companies were subject to sales taxes, reverses Lancaster County District Court that hand found Department of Revenue regulations that required packers to pay the sales taxes went beyond revenue statute § 77-2701.16(4)(a). Swift & Co. v. Nebraska Dept. of Rev., S-08-1095 through S-08-1099, 278 Neb. 763 Specialized cleaning services for meatpackers cleaned all the equipment fixtures, areas of the plants and the packers paid sale taxes on the services. Packers sought refunds and sued in Lancaster County District Court when the Department of Revenue denied their refund claims. The District Court Judge found Reg. 1-098.03A unlawfully expands the definition of services covered by § 77-2701.16(4)(a). Supreme Court, CJ Heavican reverses: "the Department did not exceed the scope of its rule making authority. Although other sections of the statute specifically mention personal property, those situations are distinguishable... also Reg. 1-098.03A contemplates that the cleaning of tangible personal property must be incidental to cleaning the building. As pointed out by the Department, most cleaning contracts contemplate at least some cleaning of personal property located within the building...Therefore..Reg. 1-098.03A did not exceed the Department’s rule making authority and that the taxpayers are not entitled to a refund ."

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.

Eighth Circuit Court of Appeals affirms without comment Nebraska convict's civil rights complaint against requiring him to register as a sex offender for pandering a minor. 081629U.pdf 08/21/2009 Richard Hansen v. John Doe U.S. Court of Appeals Case No: 08-1629 District of Nebraska - Lincoln [UNPUBLISHED] [Per Curiam - Before Loken, Chief Judge, and Hansen and Colloton, Circuit Judges] Civil case - civil rights. Order dismissing suit claiming issuance of a citation for violation of SORNA's (Neb. Rev. Stat. §§ 29-4001-14.) reporting requirements violated plaintiff's civil rights affirmed without comment.

In mandamus action former physician who was a defendant in a medical malpractice lawsuit sought to prohibit the Dawes County District Court from allowing plaintiff to review materials the Nebraska Attorney General had obtained in its disciplinary action against him. The doctor had surrendered his license for sexual misconduct while the malpractice suit stemmed from an allegedly botched diagnosis of a spinal cord injury. The plaintiff argued that discovery was necessary because she may have been injured because the pervert doctor might have been turned on too much to give her good care. The Nebraska Supreme Court denies the doctors writ of mandamus and allows discovery of the disciplinary investigation to proceed. Stetson v. Silverman, S-09-209, 278 Neb. 389 "We conclude that the relators (the defendant doctor) have failed to meet their burden of showing clearly and convincingly that they are entitled to quash discovery of information regarding defendant's surrender of his license. In addition, they do not have standing to quash a subpoena directed at the Department to obtain its records. We therefore deny their request for a peremptory writ of mandamus ordering the district judge to vacate his discovery order."

Thanks Licensing Board: From Dan Ullman, President of Nebraska Psychological Association his letter to the editor in the Journalstar on August 5, 2009:

The Nebraska Psychological Association expresses its appreciation on the part of the licensing boards for psychology and mental health practice in resisting an attempt to discriminate against vulnerable clients in providing mental health services or referrals for services. The focus of this attempt to prevent clinical services includes sexual orientation, religion, gender identity or other reasons based on any provider's claim of a "moral and religious conviction."

Most disturbing is the continuing attempt by the Department of Health and Human Services to coerce licensing boards to establish this discrimination regulation by placing on hold for 18 months needed changes approved by the boards ("Agency urges compromise," July 19, LJS).

Newspaper articles have emphasized Health and Human Services' attempt to discriminate against services to homosexuals. Not mentioned is the proposed discrimination policy against other clients on the basis of a provider's claim of a "moral or religious conviction."

The Nebraska Psychological Association's Code of Ethics protects the rights, welfare and safety of all clients, not just those who belong to any particular personal orientation. The code mandate is "Do No Harm;" it is not to protect the prejudices of providers.

Under the current Code of Ethics, if a mental health provider is unable to provide services, the provider must refer services in the terms of behavioral health needs of clients, not the needs or prejudices of a provider.

Dan Ullman, president, Nebraska Psychological Association

I couldnt agree more but I dont think Dr Ullman goes far enough so I sent the NPA my suggestions to elminate all homophobia from the psychological profession: How commendable of Dr Ullman for putting homosexual patients ahead of the "conscience" of those psychological professionals who would refuse to treat them. As you know "conscience" for these fanatic religious practitioners really means their freedom to be fearful, ignorant and hateful. However I am afraid that merely removing "conscience" rules from professional licensing standards does not go far enough to ensure the highest professional standards in your field. No, you have to also eliminate the hate from the profession. After all how to do ensure that some psychologists who harbor bigoted thoughts about homosexuality would not take on homosexuals' cases with the intention of harming them, or horrors trying to convert them to heterosexuality? I urge the Nebraska Psychological Association if you have not already, to recommend the following rules: 1. licensed psychologists must sign affidavits when applying for a license or renewing one that they fully embrace homosexuality as a healthy and in some respects a superior lifestyle to traditional marriage. They should encourage youngsters to discover their sexuality as early as possible. 2. psychologists must register which churches they attend and allow licensing boards to review the teachings of those churches to identify any latent or obvious homophobic messages. 3. In cases when homosexuals allege , they could discover from the professionals computers, diaries, notes and writings anything that questions homosexuality. 4. Psychologists who might harbor bigoted and outdated views on homosexuality or traditional marriage would have to undergo graduated probationary educational programs to purge themselves of these views. In case when the professional refuses to distance himself from actual homophobic views or churches that preach this hate, they should face discipline. Again thank you for your efforts to eliminate hate from our society. After all we can learn a lot from brave leaders like Hitler and Mao. They knew you had to go after the educated professions first before enslaving the masses

Nebraska Court of Appeals reverses administrative license revocation when police officer did not make statement in sworn report that defendant was operating a vehicle while intoxicated. Defendant was outside vehicle after 1 car accident. "the arresting officer did not make a traffic stop and failed to include sufficient factual allegations in the Sworn Report to indicate an allowable inference that Barnett, of the people on the scene at the time of the officer’s arrival, was the one who had been driving the vehicle. As such, the Sworn Report in the present case was insufficient to confer jurisdiction on the Department "Barnett v. Department of Motor Vehicles, A-08-211, 17 Neb. App. 795

Nebraska Supreme Court rules for property owners who lost condemnation action against Douglas County finding their failure to serve notice on the County and to file affidavits of notice in the same manner that a plaintiff would serve a defendant with a new lawsuit were directory and not jurisdictional. Wooden v. County of Douglas, S-06-1163, 275 Neb. 971 "we conclude the district court did not lack jurisdiction as a result of the Woodens’ failure to timely file an affidavit of proof of service.when §§ 76-715, 76-715.01, and 76-717 are considered in light of each other, it is clear that the act which confers jurisdiction on the district court, and which is therefore mandatory, is the filing of the notice of appeal and, by extension, service of this notice. Moreover, we note that two distinct acts occurring days apart cannot both be jurisdictional. And because the act which is mandatory and jurisdictional is the filing of the notice of appeal, we conclude that the Woodens’ failure to timely file an affidavit of proof of service could not and did not divest the district court of jurisdiction. Instead, the timely filing of such an affidavit is directory. We find persuasive the reasoning of the Neumeyer court, which held that the filing of an appeal bond was directory rather than mandatory and that “to hold [that such was mandatory] would convert clear, brief language into a jurisdictional maze.”12 The Court of Appeals erred in concluding that the district court lacked jurisdiction due to the Woodens’ failure to file a timely affidavit of proof of service.the petition on appeal filed by the Woodens was not the commencement of a new action, but simply a continuation of the condemnation action filed by the County. The continuation of this action, and of the petition on appeal itself required by § 76-717, is therefore governed by the statutory scheme relating to condemnation actions.

Nebraska Court of Appeals reverses teacher's dismissal when it found the Millard School Board violated the Nebraska Open Meetings Law when it made its decision in a closed session. Rominger Legal.Com. The case involves the 2006 firing of Tanya Bligh, who was a teacher at Russell Middle School. Following four days of hearings, the board determined that Bligh was an incompetent teacher and failed to meet Millard's performance standards, according to co rt records. But in terminating Bligh's contract, the board voted in closed session, the appeals court found. Bligh v. Douglas Cty. Sch. Dist. No. 0017, A-07-283, A-07-284the Board held its vote on Bligh’s contract in closed session. The Board announced the decision in open session, but failed to actually hold the vote in open session. Neb. Rev. Stat. § 79-829 (Reissue 2003) specifically provides that a teacher’s contract shall be deemed continuing and remain in full force unless the school board “by a vote of the majority of its members” determines that the contract should be terminated. We can think of no more “formal action” with respect to the termination of a teacher’s contract than the actual vote of the school board. In this case, the Board failed to comply with § 79-832 because the Board failed to take its “formal action” in open session. As such, we conclude that the district court’s orders in both appeals should be reversed, and we need not address the remaining errors alleged by Bligh.

Nebraska Supreme Court orders new arguments in State Trooper's case. Omaha.com The Nebraska Supreme Court has ordered a second round of oral arguments in the case of a Nebraska State Patrol trooper who was fired for joining a group affiliated with the Ku Klux Klan. In its order, the court told attorneys in the case of Robert E. Henderson to submit additional legal briefs by Aug. 1 and to be ready for a new hearing in September. The court said the attorneys should address four questions in their arguments: collective bargaining agreements, constitutional rights, binding arbitration and legal precedent. Henderson's attorney, Vincent Valentino, said the court's order is not routine but is not unprecedented. He said the four questions give little indication of the court's leanings. A spokeswoman for the Attorney General's Office said only that state lawyers would provide the information the court requested. The case began when the State Patrol fired Henderson, of Omaha, for joining the Knights Party, which describes itself as the oldest, largest and most-active Klan organization in the United States. An internal investigation confirmed that Henderson had joined the party and posted messages to an online discussion group for party members. He said he joined as a way to vent his frustrations over his wife leaving him for a Hispanic man. Henderson appealed his firing to an independent arbitrator in 2006, as allowed by the collective bargaining agreement covering state troopers. The arbitrator ruled in his favor, saying that Henderson's firing violated his First Amendment and due process rights. Attorney General Jon Bruning appealed the arbitrator's ruling, arguing that Nebraska's public policy against racism should bar Henderson from being reinstated. Lancaster County District Judge Jeffre Cheuvront upheld Henderson's firing.

Kearney liquor store loses its license after selling alcohol to a minor who later died as a passenger in automobile accident. Nebraska Supreme Court affirms liquor license revocation because the defendant liquor store failed to prove that the minor's Canadian identification card that he had presented in the past to purchase alcohol was a valid identification card. Although the Commission permitted a community activist to speak to urge the Commission to revoke the store's license the District Court judge cured any error because she did not consider the citizen's comments when reviewing the Commission's revocation ruling. JCB Enters. v. Nebraska Liq. Cont. Comm., S-06-1373, 275 Neb. 797 When the district court conducts its review of a final decision of the Commission, it is required to make independent factual determinations. In its proceedings for review of a final decision of the Commission, the district court shall conduct the review de novo on the record of the agency. Id. In this case, the district court stated in its order that when it conducted its de novo review, it “specifically ha[d] not considered any evidence which was not received at the actual hearing in this matter which took place before the Commission.” T hus, any irregularities before the Commission were cured when the district court ignored R iibe’s comments in its de novo review of the record in the instant case.

Case summary: Omaha dentist appeals license revocation. The Nebraska Supreme Court in 2001 had disciplined the dentist who was also a member of the Bar for narcotics abuse. Nebraska Judicial Branch. S-07-0588, Shaun O. Parker, D.D.S., Appellant v. State of Nebraska, Appellee Lancaster County, Judge Jeffre CheuvrontAttorneys: Jerry Katskee (Appellant); Jon Bruning and Lisa Anderson (Attorney General’s Office). Civil: Revocation of professional license Proceedings Below: Parker filed a petition for review with the district court seeking to review the decision by the Chief Medical Officer/Director (CMO) for the Department of Health and Human Services Regulation and Licensure (DHHS), which decision revoked his license to practice dentistry. The district court affirmed the agency's findings of fact, conclusions of law, and order, which order revoked Parker's license to practice dentistry in Nebraska. Issues: On appeal, Parker argues: (1) Whether Parker was denied procedural due process by DHHS in the crucial stages of the proceedings against him, to wit: (a) the investigation of the complaint derived from a confidential informant; (b) the presence of the attorney general at the closed session investigation; (c) the subsequent recommendations by the CMO; (2) whether the punishment meted out to Parker, viz., the revocation of license to practice his profession, fit the nature of the alleged infraction; (3) whether the district court erred in not considering the impact of the failure of the hearing officer to consider the arguments of Parker on constitutional issues by remanding the case to the CMO for further proceedings as permitted by Neb. Rev. Stat. § 84-917(5)(b)(i); (4) whether the district court erred in its order by holding that its de novo review presented clear and convincing evidence that Parker engaged in unprofessional conduct and that the discipline imposed was appropriate under the circumstances; (5) whether the entire administrative procedure is flawed and grants arbitrary and dictatorial powers to the CMO; (6) whether the findings of fact and conclusions of law of the CMO were arbitrary, capricious, and unreasonable; and (7) whether the district court erred in its order by not finding the administrative findings of fact and conclusions of law were arbitrary, capricious, and unreasonable.

County employee Douglas County fired for dropping ice wins reinstatement. Pierce v. Douglas Cty. Civil Serv. Comm., S-07-252, 275 Neb. 722 Douglas County facilities engineer and International Union of Operating Engineers, Local 571 member Nathan Pierce could not go unescorted near a co-worker at the Douglas County Hospital because he had angry confrontation with her before. Later as he went through her area he dropped a cup of ice near her nurse's station. Douglas County terminated him. Nebraska Supreme Court reverses the termination ruling and orders him reinstated because the District Court had jurisdiction to rule on Pierce's claim that the county board breached the collective bargaining agreement with the union. Also the violation if any was not serious enough to merit termination. "the district court had jurisdiction over Pierce’s claims that the Department breached the collectiver bargaining agreement (CBA) as far as those allegations were relevant to Pierce’s termination. However, we need not reach the merits of Pierce’s claims under the CBA. We conclude that the evidence shows the Department did not consider Pierce’s alleged conduct to be a serious violation of the Commission’s personnel manual, warranting termination. We therefore reverse the district court’s order affirming Pierce’s termination "

Nebraska Supreme Court denies Goodyear's claim that the Nebraska Department of Revenue should have created regulations to define what sales tax credits Goodyear could receive for property purchases before the Revenue Department could deny credits to Goodyear under the LB775 business tax incentive programs. Goodyear Tire & Rubber Co. v. State, S-06-1103, 275 Neb. 594The Nebraska Supreme Court denied Goodyear's appeal that it was entitled to credits for sales taxes on some equipment and parts purchases. Goodyear also appealed because the Nebraska Department of Revenue did have have regulations to interpret the disputed sections of the law. The Supreme Court held the Revenue Department did not need the regulations. "In the present case, § 77-4111 requires the Commissioner to adopt and promulgate those rules and regulations, but only those rules that are necessary for carrying out the purposes of L.B. 775. The purpose of L.B. 775 is to “accomplish economic revitalization of Nebraska” and to “encourage new businesses to relocate to Nebraska, retain existing businesses and aid in their expansion, promote the creation and retention of new jobs in Nebraska, and attract and retain investment capital in the State of Nebraska.”We conclude that promulgating rules and regulations regarding interpretation of qualified property is not necessary for carrying out those purposes."

Nebraska Supreme Court reverses the Platte County District Court and allows the Department of Motor Vehicles to seek to enhance a driver's license suspension if the driver had a prior alcohol-related license suspension. Stenger v. Department of Motor Vehicles, S-06-1176, 274 Neb. 819 § 60-498.01 permits the hearing officer at the Administrative License Revocation hearing (ALR) the receive evidence for enhancement at a revocation hearing. A lthough 60-498.01 limits the issues under dispute, it does not prohibit evidence pertinent to the ultimate disposition of a case after those issues have been resolved. Whether a person’s driver’s license has previously been revoked is relevant evidence in determining the length of the revocation under § 60-498.02(1)(b). Therefore, § 60-498.01 allows receiving the driving abstract to enhance a revocation, and we hold that a driving abstract may be admitted in an A LR proceeding for that purpose. A party still may contest the accuracy of the abstract as to whether the party did in fact have a prior revocation. S ection 60-498.02(1)(b) explicitly provides that if a driving abstract shows that the driver had a revocation in the prior 12 years, the revocation can be enhanced to 1 year. T herefore, the Legislature clearly intended for the Department to consider such matter in the ALR proceedings

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 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 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."

UNL Law College student expelled for plagiarism appealed to the Lancaster County District Court. District Court and Nebraska Court of Appeals dismiss case, holding that the Dean and Honor Committee of the law school are not "agencies" subject to the Administrative Procedures Act, nor was their expulsion decision a "contested" case.Kerr v. Board of Regents et al. ___N.W.2d___ Filed August 28, 2007. No. A-05-953. Law student Michael Kerr got caught plagiarizing three papers and then submitting the identical plagiarized material to different professors. A law school Honor Committee voted 4 to 1 to expel him and the Dean approved. Kerr alleged disparate treatment due to his race and national origin (guess) so that must have swayed the one dissenter on the committee. He then appealed to the District Court, lost and appealed to the Court of Appeals. Appeal dismissed."An “agency” is each board, commission, department, officer, division, or other administrative office or unit of the state government “authorized by law to make rules and regulations.” § 84-901(1). We have found no basis to conclude that the Honor Committee or Dean Willborn is “authorized by law to make rules and regulations,” Nor was Kerr's expulsion the result of a contested case as "there is no law requiring that the question of whether Kerr remains a College of Law student be determined by an agency (as defined by § 84-901(1)) and, in any event, as said, the Honor Committee and the dean are not agencies under such statute.

Driver’s license applicant had been involved in a couple drunken driving incidents in Nebraska and also several other traffic incidents in Missouri while holding a Missouri drivers license. Missouri revoked the applicant’s license for 1 year and additionally imposed an additional five year ineligibility to obtain a license on the applicant. § 302.060(10) RS Mo. After the 1 year but before Missouri issued a new driver’s license he applied for a Nebraska permit. Nebraska Supreme Court agrees that he was not eligible for a Nebraska driver’s license because he was a revoked Missouri driver until the State issued a new license. Wilczewski v. Neth, S-05-1378, 273 Neb. 324 “Although Wilczewski’s 1 year revocation (from Missouri) has ended, he is still ineligible under Missouri law to renew or restore his prior Missouri driver’s license. We conclude that for purposes of the motor Vehicle Operator’s License Act, Wilczewski’s current period of ineligibility in Missouri constitutes a revocation as it is defined by § 60-476.01. Under Nebraska law, an individual may not be licensed to operate a motor vehicle in Nebraska if he has a Driver’s license that is currently revoked in another state. §60-486 RRS Neb. Because Wilczewski’s Missouri driver’s license is currently revoked for purposes of Nebraska law, Wilczewski may not be licensed to drive in this state until his 5year period of ineligibility to drive in Missouri has ended.”