Nebraska Supreme Court to hear appeal of Fremont municipal illegal immigration petition drive. What are the chances the Nelson court will kick this can down the road and off a cliff? Nebraska Judicial Branch Case Summaries Thursday January 7, 2010 subject to call at 900AM. S-09-0448, City of Fremont (Appellant) v. Wanda Kotas, Jerry Hart and John Weigert Dodge County, Judge John E. Samson Attorneys: J.L. Spray, Stephen D. Mossman (Mattson Ricketts Davies Stewart & Calkins) and Dean Skokan (Fremont City Attorney) (Appellant) --- Kris W. Kobach (Immigration Reform Law Institute, University of Missouri—Kansas City School of Law) Civil: Declaratory Judgment Action; City Initiative Petition Proceedings below: The district court determined it lacked subject matter jurisdiction over the issues raised in the First Cause of Action in the City’s Amended Complaint; granted the Petitioners’ Motion to Dismiss the First Cause of Action and granted summary judgment on the Second Cause of Action in the City ‘s Amended Complaint. The City filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court. Issues: The district court erred in (1) finding it lacked subject matter jurisdiction over the issues raised in the First Cause of Action in the City’s Amended Complaint; (2) failing to find that Neb. Rev. Stat. § 18-2538 provided the necessary statutory framework to determine the issues raised in the First Cause of Action in the City’s Amended Complaint; (3) granting Petitioners’ motion to dismiss the First Cause of Action in the City’s Amended Complaint; (4) failing to find the City Initiative Petition circulated and filed by Petitioners contained multiple subjects; (5) failing to find the City Initiative Petition was invalid for violating the “single subject rule”; (6) granting summary judgment on the Second Cause of Action in the City’s Amended Complaint.

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

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 holds that hog confinement lot operator who appealed Madison County's refusal to grant him a variance used the denovo appeal procedure to the District Court. In re Application of Olmer, S-07-247, 275 Neb. 852 When a decision regarding a conditional use or special exception permit is appealed under § 23-114.01(5) RRS Neb (Cum. Supp. 2006) and a trial is held de novo under § 25-1937 (Reissue 1995) RRS Neb, the findings of the district court shall have the effect of a jury verdict and the court’s judgment will not be set aside by an appellate court unless the court’s factual findings are clearly erroneous or the court erred in its application of the law. The district court found that the Board, in denying O lmer’s conditional use permit, acted as a tribunal exercising judicial functions and that therefore, Olmer’s appeal should be treated as a petition in error. Because Olmer’s appeal was treated as a petition in error, the court explained that Olmer was not entitled to a trial de novo, nor could the court receive additional evidence that was not offered at the hearing before the B oard. A ccordingly, the court stated that, in making its decision, it did not consider any exhibits that were not offered and received by the Board. the B oard in the present case, in denying O lmer’s application, was exercising judicial functions which decisions are generally reviewed through the filing of a petition in error.15 B ut § 23-114.01(5)clearly provides for a right of appeal to the district court from the B oard’s decision, without setting forth any procedure for prosecuting the appeal. Therefore, the appeal procedure in § 25-1937 is also implicated.16 A nd there is nothing in§ 23-114.01(5), nor in § 25-1937, that purports to remove the right to proceed in error under § 25-1901. T us, we conclude that under the circumstances presented here, O lmer had the option of filing either a petition in error under § 25-1901 or an appeal under § 25-1937

Residents of the Ponca Hills area in Omaha appealed the Douglas County Board Equalization's decision to exempt residential properties an Omaha Catholic Diocese there used for lay ministry. Nebraska Supreme Court dismisses their appeal finding that the neighbors did not have standing to appeal the County's decision to exempt real estate from taxation with a petition in error to the Douglas County District Court. McClellan v. Board of Equal. of Douglas Cty., S-06-1072, 275 Neb. 581 "The Legislature’s stated purpose in the Tax Equalization and Review Commission Act (TERC) (Neb. Rev. Stat. § 77-5007) was to create an efficient mode of review by a single body which would provide a more consistent review of tax exemption and equalization decisions made by a board of equalization. The language of § 77-202.04 very specifically lists who may appeal from exemption decisions. The Legislature did not see fit to allow every indirectly affected taxpayer to appeal from the exemption status of someone else’s property. Instead, the Legislature determined that giving standing to the county assessor to appeal the grant of an exemption was sufficient to protect the public’s general interest in what properties are included on the tax rolls."

Nebraska Supreme Court allows Otoe County to require mutual impact easements when real estate developers seek permits to build houses close to existing hog confinement facilities. Coffey v. County of Otoe, S-06-921, 274 Neb. 796A property developer and a purchaser of one of his lots sought to build a house that was close to an existing hog confinement facility. Otoe County required in its zoning regulations that homeowners and livestock producers file mutual impact easements before it would allow the building to continue. When the livestock producer refused to grant the easement and Otoe County refused to allow a variance, the developer and his customer sued. The Otoe County District Court reversed finding the mutual impact easement requirement was an unconstitutional delegation of legislative power. Nebraska Supreme Court reverses, the zoning regulations were proper exercises of zoning power. "If the consent is used for no other purpose than to waive or modify a restriction which the governing body has lawfully created and has provided for such a waiver or modification by those most affected, then the consent is regarded as being within constitutional limitations," Cusack Co. v. City of Chicago, 242 U.S. 526, 37 S . Ct. 190, 61 L. E d. 472 (1917).we conclude that the mutual impact easement language in Otoe County’s zoning regulations is not an unconstitutional delegation of legislative authority, and the district court erred in concluding otherwise

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.

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."

Nebraska Supreme Court allows district courts to dictate work schedules of public safety employees. Hogelin v. City of Columbus, S-06-641, 274 Neb. 453. The Chief of the Columbus Fire Department required firefighters to attend extra safety training that the US Department of Homeland Security funded but the training schedule would put the firefighters over the maximum work hours that Section Section 35-302 allowed (no more than 60 hours per week, given 24 hour schedules). The head of the union complained that the evening training schedules interfered with his visitation schedule and another firefighter received a reprimand for failing to attend a training session when the fire department had already approved his trip out of town to attend a wedding in North Carolina. The firefighters right to the maximum hours restrictions in 35-302 was so important that the firefighters' collective bargaining agreement allowing the City to set work schedules did not set aside the requirements of the statute. Finally the court finds an injunction was appropriate. Remember that next time a government agency in Lincoln decides to impose extra training requirements on a small town's fire or police department.

Justice William Connolly again hands a victory to bigger government units over smaller ones. This time he allows the reorganized Lyons-Decatur School District to bait and switch Decatur residents into believing they would have a say in whether the school district would keep their local school open. Citizens for Equal Education v. Lyons-Decatur Sch. Dist., S-06-159, 274 Neb. 278. Justice Connolly just cant help himself from finding "absurd results" from the plain meaning of statutes. This time he finds that an agreement between the residents of Decatur and Lyons when they merged their school districts in 1984 that the Decatur school would not close unless a majority of the Decatur voters approved did not mean that because that would be an "absurd" result. Section 79-419 said just that, but that would get in the way of consolidating small town schools into large ones that would support lots of extra staff. We really should be grateful for Justice Connolly for doing the Legislature's job. After all his Supreme Court justice's salary takes care of a baker's dozen of unicameral members.

The Nebraska Supreme Court decides that good police discipline, i.e., toeing the line, overrides Union activity and the public's right to know police officers' public safety concerns. Omaha Police Union Local 101 v. City of Omaha, S-06-403 Omaha Police Department Chief sought to discipline two officers who were police union officials for comments they made about the OPD's 911 standards. One commented that the OPD's procedures were "misleading" and this was during a union meeting. The chief tried to discipline this officer but Internal Affairs dismissed the case. A second officer wrote and article that was barely insubordinate, in that article the officer wrote an article was generally critical of the standard operating procedures for two-officer 911 calls and the manner in which the city and OPD calculated response time. Housh characterized city officials as “[a] bunch of grown men and women, supposedly leaders, acting like petty criminals trying to conceal some kind of crime.” He also stated that “[t]hey refuse to do it, they know they have screwed up, and rather than admitting guilt, they (whoever they are) will make history and try to control what is said/revealed during union meetings regarding response time.” The comments about "grown men" cant be true, because if the police administration had grown men, it would not have thought these comments while harsh amounted to a disciplinary breach. Anyway the Supreme Court gives the department what it wants, the chance to tie up anyone who questions authority and public safety and make them think twice about rocking the boat, because next time an employee criticizes his government employer he will have to navigate a maze of constitutional balancing tests, juggling and water torture.

Follow up on why the pedestrian crossed the road: Nebraska Supreme Court wont let attorneys pocket a quick settlement from a co-defendant, dismiss him from the case and then go after the deep pockets for the entire case. Tadros v. City of Omaha, S-05-1538, 273 Neb. 935 The plaintiff was injured crossing at the crosswalk West Omaha. A motorist ran her over and she sustained serious injuries. The plaintiff filed a political subdivision tort claim against the city and sued the driver, but later settled and dismissed the driver for $35000. The plaintiffs injuries apparently exceeded $1million. Because poltical subdivisons are liable for up to $1milliion the court reduced the judgment. The trial court determined the parties responsibility for the accident to be 50% City, 30% driver, 20% plaintiff. City appealed when the court took off only the $35000 settlement and not the driver's 30%. Supreme court reverses because under §25-21,185.11(1) RRS Neb a defendant's obligation for an accident proportional to his percentage of fault in the accident, inlcuding the fault of dismissed defendants. Under the contributory negligence statutory scheme in nebraska,joint tort-feasors who are“defendants”in an action “involving more than one defendant” share joint and several liability to the claimant for economic damages. they are liable for the entire amount of the claimant’s economic damages which are not chargeable to the claimant,so long as the claimant’s contributory negligence is not equal to or greater than the total negligence of all persons against whom recovery is sought. but,when the claimant settles with a joint tort-feasor,the claimant forfeits that joint and several liability. the claimant cannot recover from the nonsettling joint tort-feas o r more than that tort-feasor’sp roportionate share in order to compensate for the fact that the claimant made settlement with another that may prove to be inadequate.

Follow up: Nebraska Supreme Court agrees that the Papio -Missouri Natural Resources District could subsidize private developments in Sarpy County while allowing taxpayers in its district to foot the bill. Japp v. Papio-Missouri River NRD, S-06-045, 273 Neb. 779. Justice William Connolly patron of death row inmates and the municipal bulldozer over private property rules that the Papio-Missouri NRD could enter into sweetheart deals with two high end real estate McMansion developments, because the developments would promote overall good water management. "under § 2-3235(1), the District has express authority to cooperate, enter agreements, and furnish aid to them to carry out projects that benefit the District." Even if the developers hold the property for very short times, they count! The Supreme Court chose to ignore the NRD's own concerns that their actions were illegal when the challenging taxpayers asked to introduce the legislatures 2005 proposed legislation LB552 which the unicameral voted down. That was irrelevant evidence. Finally setting up expensive water developments in a depressed housing market was not an improper extension of credit to the private developers (XIII, § 3, of the Nebraska Constitution). Thank you Justice Connolly!

Nebraska Supreme Court favors tax deed holder over trust deed purchaser's competing claim.

Ottaco Acceptance, Inc. v. Larkin, A-05-854

A tax certificate holder who takes a tax deed in accordance with Section 77-1837 is the owner of the property and not just a lien holder. The tax certificate holder elected to take a tax deed instead of foreclosing with the certificate. See 77-1902 {procedures to seek judicial foreclosure of the properties subject to tax certificate}. A purchaser from the trust deed holder's auction recorded his deed one day before the tax deed was recorded. Douglas County District Court ruled in favor of the tax deed holder and the Supreme Court affirms. A competing claimant to the property must comply with §§ 77-1843 and 77-1844 to challenge the title of an owner who gained title through a tax deed even if the tax deed holders title is void or voidable. Therefore one challenging the claim under a tax deed must show that he was the owner of the property and the time of the tax deed conveyance; that there were no taxes due; and that the tax deed was defective. Although the Supreme Court agrees that the trust deed buyer could claim title to the property and that the former owner had tendered payment of the taxes to the Douglas County Treasurer, the Court rejects the trust deed buyers claim that the tax deed was defective for not notifying the original owner, for not having a legible seal, and for not following a "formalistic" procedure of taking the original certificate from the County, then giving it back to him.

No political subdivision tort claim act liability against a zoning entity that refused to grant a building permit after one of its representatives advised property owners that he would allow the permit.

Rohde v. City of Ogallala, S-06-149

Plaintiffs sued the City of Ogallala for rescinding approval it had given the Plaintiffs to rebuild on some property. The court of appeals sent the case back after Ogallala won a 12b motion in district court. Rohde v. Knoepfel, 13 N eb. A pp. 383, 693 N .W.2d 564 (2005). This time the Supreme Court affirms summary judgment because the city was immune from zoning actions under 13-910(4). Section 13-910(4) is clear and unambiguous. Political subdivisions are not liable under the PSTCA for actions based upon the revocation of a permit or license. The City revoked its decision to issue a permit allowing the Rohdes to subdivide their property because such division did not comply with City ordinances.

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."

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 Omaha.com 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

Follow up to Nicholson v Red Willow County School District Nebraska Supreme Court again dismisses action residents in Southwest School District in Red Willow County filed to prevent merged district from assuming bonds the preceding school districts had issued prior to merger.Cumming v. Red Willow Sch. Dist. No. 179S-06-025, 273 Neb. 483We reject the argument that Stannard permits a collateral attack directed at the authority of S outhwest to issue bonds pursuant to the reorganization plan approved by the State Committee. T he appellants are not contesting the legitimacy of S outhwest as a school district and, thus, cannot be understood to be challenging the S tate Committee’s approval of the reorganization petition itself. Instead, the appellants are challenging a provision contained within the approved petition. A nd unlike Stannard, we cannot say that the challenged provision is, on its face, clearly and unequivocally prohibited by state law. Therefore, we have no basis to find that the S tate Committee’s approval of the reorganization petition was void

Follow up: Unlike the recent decision of our Supreme Court, the Kansas Supreme Court keeps sensible limitations on slip and fall claims against public entities under the Kansas recreational land liability statute, throws out New Year’s Eve partygoer’s slip and fall case. Day on Torts: In Lane v. Atchison Heritage Conference Center, Inc., No. 94634 (March 16, 2007), The Court “barred” the plaintiff’s New Year’s Eve slip-and-fall claim against a publicly owned convention center that had hosted dances, card tournaments, sewing demonstrations, and even local Bar meetings! Plaintiff contended the recreational use limitation applied only if the facility where the injury occurred was primarily a recreational one. The Court disagreed, "immunity from liability under the recreational use exception to the [Kansas Tort Claims Act] does not depend upon the "primary use" of the property but rather depends on the character of the property in question.. The recreational use exception to the KTCA, K.S.A. 2006 Supp. 75-6104(o), applies when property is "intended or permitted" to be used for recreational purposes.” The correct test to be applied under K.S.A. 2006 Supp. 75-6104(o) is whether the property has been used for recreational purposes in the past or whether recreation has been encouraged."