Auf Widersehen Justice HendryWhat an fine example of a Chief Justice we have in the Cornhusker State. Chief Justice Hendry only 57 years old announces his retirement, effective before Democrat candidate David Hahn takes back the governors mansion (old school Democrat pipe dream.) Justice Hendry was above the political fray, yessiree. EBen put him up on the supremes because Karen Flowers was pro-choice and we know the EBen needs to earn his Nebraska Right to Life endorsement every election cycle. The Nelson court overruled misguided second degree murder rulings which allowed many killers to walk or receive reduced sentences. Justice Hendry was not to "legislate" from the bench, but that didn't stop him from trying to throw out our Medical malpractice law and succeeding in throwing out an elected official not for what he did in office but for what he did to get elected. Now to you cynical pols and inside political baseball types, resigning to "spend more time with your family" means you are cutting your losses or leaving under pressure. Not here in America's heartland where such smokescreens are unheard of. Well if there were any slightly inappropriate shenanigans, they happened too long ago to matter and are not fresh, such as how Hendry's law firm defended the Nebraska Investment Finance Authority from shareholder class action lawsuits after the failure of the Executive Life Insurance Company in 1991. Executive Life remember offered much better investments for those hard earned dollars that flowed into NIFA. And then Justice Hendry's law firm zealously defendant jilted UNISYS employees who lost nearly everything in the Executive life failure helping them to win a claim from the state insurance Guaranty associations assets. The good Justice Hendry recused himself from considering the appeal in the Supreme Court even though by then he had been out of the firm for 9 years.

Nebraska Supreme Court upholds a summary judgment for once: Ash Grove cement quarry complied with Federal Mine Safety Rules so Federal OSHA rules did not apply in 3rd party workers injury action against cement plantDidier v. Ash Grove Cement Co., 272 Neb. 28 Filed July 21, 2006. No. S-03-924. We conclude that because the Mine Safety Health Act (MSHA) (preemption provision 29 U.S.C. § 653(b)(1)) had exercised jurisdiction, the Court of Appeals erred as a matter of law in concluding that there was a genuine issue of material fact as to whether MSHA or the Occupation Safety and Health Act (OSHA )(preemption provision 29 U.S.C. § 653(b)(1) (2000)) should have jurisdiction, and we further conclude that the district court did not err when it found that there was no evidence that Ash Grove had breached any relevant MSHA regulation.

Nebraska Supreme Court adopts Green v. McDonnel Douglas structure for retaliatory discharge claims related to worker compensation cases. Reverses summary judgment that was in favor of the Employer Riesen v. Irwin Indus. Tool Co., 272 Neb. 41 Filed July 21, 2006. No. S-05-208.The Nebraska Supreme Court reverses summary judgment that was infavor of the employer after Plaintiff after the employer discharged him for making a worker compensation claim. The Supreme Court finds issues of fact existed as to the Plaintiff's prima facie case and the whetherthe employer's reasons for discharging him were pre-textual. The Supreme Court recognized the worker comp retaliatory discharge issue in Jackson v. Morris Communications Corp., 265 Neb. 423, 657 N.W.2d 634 (2003), but without any authority from the Legislature. In cases involving claims of employment discrimination, albeit not involving workers' compensation claims, this court has recognized the burden-shifting analysis which originated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). See, e.g., Billingsley v. BFM Liquor Mgmt., 264 Neb. 56, 645 N.W.2d 791 (2002) (age discrimination) As clarified in St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993), "'McDonnell Douglas Corp. allocates the burden of production and the order for the presentation of the evidence; the ultimate burden of persuasion, however, rests on the plaintiff.'" Billingsley, 264 Neb. at 70, 645 N.W.2d at 803. The Plaintiff has the burden is a burden of production, not of persuasion. See Lincoln County Sheriff's Office v. Horne, 228 Neb. 473, 423 N.W.2d 412 (1988). The employer need only explain what has been done or produce evidence of a legitimate, nondiscriminatory reason for the decision. Id. It is sufficient if the employer's evidence raises a genuine issue of fact as to whether it discriminated against the employee. Id. "'"If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted" . . . and "drops from the case . . . ."'" (Citation omitted.) Agnew, 256 Neb. at 402, 590 N.W.2d at 694, quoting St. Mary's Honor Center, supra. Third, assuming the employer establishes an articulated nondiscriminatory reason for disparate treatment of an employee, the employee maintains the burden of proving that the stated reason was pretextual and not the true reason for the employer's decision; i.e., that the disparate treatment would not have occurred but for the employer's discriminatory reasons. Lincoln County Sheriff's Office, supra. Most jurisdictions apply the above-described analysis to workers' compensation retaliatory discharge cases. Like the trial court in the present case, we will apply the burden-shifting analysis this court has utilized in employment discrimination actions to this case involving retaliatory discharge for filing a workers' compensation claim. Our conclusion, however, differs from that of the trial court. the employment application completed by Riesen instructed applicants to list "all present and past employment" and to "[u]se a separate sheet of paper if necessary," but the application left room to list only three previous employers. Riesen listed only three previous employers on his application (although Riesen suggests that a separate page might have been lost from his personnel file). The record before us includes copies of other employees' job applications. Most of those applications include a listing of only three prior employers, with no addition of a separate page. Such evidence, Riesen claims, supports an inference that "Irwin [Industrial] itself does not consider the inclusion of all employers essential and material and thus, jumped at the first pretextual low-grade reason to terminate [him]." Brief for appellant at 22.

Laid off Goodyear employee loses claim for additonal unemployment benefits from Federal Foreign Trade Adjustment legislation even though Nebraska Departmentof Worforce Development "overlooked" informing her of those benefits.Reed v Nebraska Department of workforce Development 272 Neb. 8 July 14, 2006. No. S-05-1473. Appellant was eligible to apply for trade readjustment allowance (TRA) benefits under 19 U.S.C. § 2291 (2000 & Supp. II 2002) of the Trade Act of 1974 (Trade Act), additional federal unemployment benefits available for workers who were laid off because of foreign trade competition. Workforce Development failed to notify Appellant of her rights so she missed the deadline to apply; Workforce Development denied her benefits application as untimely. Appellant sought review to the Supreme Court arguing that the plain language of the statute does not support the state Department of Labor's interpretation of the deadline and that even if it does, Workforce Development is equitably estopped from enforcing the deadline against her. SUPREME COURT AFFIRMS: Congress, when adopting the new deadlines, rejected the interpretation which Reed advocates that the regulations allow flexibility in applying for benefits.In § 2291(b)(2), Congress excepted certain workers from the training requirements of § 2291(a)(5). But the enumerated exception in § 2291(b)(2) does not track with the retroactive/proactive distinction in 20 C.F.R. § 617.10. Instead, § 2291(b)(2) fails to mention the retroactive/proactive distinction recognized by the regulations. When Congress provides exceptions in a statute, it does not follow that courts have authority to create others. United States v. Johnson, 529 U.S. 53, 120 S. Ct. 1114, 146 L. Ed. 2d 39 (2000). The proper inference is that Congress considered the issue of exceptions and, in the end, limited the statute to the ones set forth. See id. We infer from the language of § 2291(b)(2) that Congress opted not to adopt the eligibility requirements as interpreted by the regulations. Further, legislative history for the 2002 Trade Act supports this reading.

Nebraska supreme court allows new trial for realtor injured when he fell off a wooden walkway leading from a home under constructionPachunka v. Rogers Constr., S-04-1470, 271 Neb. 950HTML The Plaintiff entered a partially constructed model home to inspect it before show it to buyers. He fell off the wooden ramp when exiting. The trial court allowed the contractor's attorneys to submit an assumption of risk instruction. The jury gave a general defense verdict without considering comparative negligence or assumption of risk. Supreme Court reverses: Assumption of risk requires plaintiff (1) knew of the specific danger, (2) understood the danger, and (3) voluntarily exposed himself or herself to the danger that proximately caused the damage. Pleiss v. Barnes, 260 Neb. 770, 619 N.W.2d 825 (2000). See, also, Neb. Rev. Stat. § 25-21,185.12 (Reissue 1995). The defendant must plead and prove assumption of the risk. Everts v. Hardcopf-Bickley, 257 Neb. 151, 595 N.W.2d 911 (1999). "Pachunka asserts that Rogers Construction failed to establish that his use of the ramp was voluntary because he was given no reasonable alternative course to using the ramp. We agree." QUERY: Is the absence of safe alternatives to the risky pathway also something the party relying on the assumption of risk defense must prove? Also the assumption of risk instruction was not harmless error, because the jury verdict directing forms did not include that considered the issue. By returning the third verdict form (finding no liability for the Defendant), it is clear that the jury never reached the issue of contributory negligence. However, the same cannot be said with regard to the issue of assumption of risk. Because the jury was not presented with a separate verdict form addressing the issue of assumption of risk, it is impossible for us to tell whether or not the jury reached that issue.

Flashback for Nebraska attorney David Domina; he lost the impeachment case against Attorney General Paul Douglas but manages to take down Regent David HergertNebraska Legislature on behalf of the State v. Hergert, S-06-425, 271 Neb. 976HTML Anti-Hergert pundits, in this case almost the entire establishment media in Nebraska are lauding the Legislature's counsel David Domina's role in removing elected regent David Hergert after the unanimous Nebraska supreme Court decision last week. But Domina was quite familiar with impeachment when he was the Unicameral's counsel for the commonwealth investigation in 1984. It appears that his possibly youthful mistakes and lack of aggressiveness allowed the more cunning Attorney General Paul Douglas to get off the hook for his role in the commonwealth failure in November 1983: State of Nebraska STATE OF NEBRASKA, PLAINTIFF, v. PAUL L. DOUGLAS, ATTORNEY GENERAL OF THE STATE OF NEBRASKA, DEFENDANT 349 N.W.2d 870, 217 Neb. 199 (1984) "

Complaint is made that Douglas never provided access to his tax returns. Yet, during questioning of Douglas, copies of Douglas' federal income tax returns were at hand. (Commonwealth Committee attorneys Miller and Domina) asked, "Could (we) have copies of those returns, please?" and he answered, "I think you indicated that you wanted to see it and I have no problem in showing you this." The questioner replied, "All right. That's fine." Commonwealth Committee counsel Miller testified: "neither I nor David ever had physical possession of those returns. They never left the possession of Paul Douglas. "We cannot conclude from this that Douglas withheld pertinent information on his tax returns in a procedure agreed to by his questioner. Finally, according to Douglas in his statement to the legislative committee, introduced into evidence by the State, he had by that time turned over his "entire income tax returns from '75 through '82" to the committee's special counsel."

Still taking down a grain mill elevator owner is probably easier than an accomplished attorney and attorney general of the state.

It's getting hard to find good law clerks for activist judges department: Eighth Circuit points out citation error in Judge Bataillon's Citizen for Equal Protection v Bruning decision while reversing this laughingstock of a juristCitizens for Equal Protection v. John Bruning 052604P.pdf 07/14/06 The good for gays and the victims of tyrannical sentencing judges the Honorable Joe Bataillon in throwing everything at the Nebraska marriage protection amendment(Art1 Section 29 ) but the kitchen sink appears to have incorrectly cited the constitutions bill of attainder provision, as the fundamentalist right wing Eighth Circuit Court of Appeals noted: "The district court also concluded “that Section 29 violates the Bill of Attainder( Art. I, § 9, cl. 3) Clause by singling out gays and lesbians for legislative punishment.” 368 F. Supp. 2d at 1005.4." Footnote 4: (District Judge Bataillon) cited Art. I, § 9, cl. 3, of the Constitution, a section that applies only to Congress. We assume the court meant to cite Art. I, § 10, which bars the Statesfrom passing bills of attainder. The two provisions are construed identically. See Crain v. City of Mountain Home, 611 F.2d 726, 728-29 (8th Cir. 1979); Kerr-McGee Chem. Corp. v. Edgar, 837 F. Supp. 927, 934 n.6 (N.D. Ill. 1993).

Tougher penalties for DWI and related crimes go into effect Friday '>New DUI penalties aim at worst cases The Nebraska Legislature last session significantly increased the potential punishment for drunken drivers. The penalties for driving drunk, and driving really drunk, increase when the law goes into effect Friday (omaha.com) LB925 toughens penalties for leaving the scene of an accident; causing an injury accident while intoxicated and for those caught driving at over .15% BAC. Also the statute enhances penalties for defendants who get caught again for DWI while they had pending cases. Sec28-306(3)(b): If the proximate cause of the death of another is the operation of a motor vehicle in violation of section 60-6,196 or 60-6,197.06, motor vehicle homicide is a Class III felony. 28-306(3)(c) If the proximate cause of the death of another is the operation of a motor vehicle in violation of section 60-6,196 or 60-6,197.06, motor vehicle homicide is a Class II felony if the defendant has a prior conviction for a violation of section 60-6,196 or 60-6,197.06, under a city or village ordinance enacted in conformance with section 60-6,196, or under a law of another state if, at the time of the conviction under the law of such other state, the offense for which the defendant was convicted would have been a violation of section 60-6,196. 60-6,197.03 Any person convicted of a violation of section 60-6,196 or 60-6,197 shall be punished as follows: (2) If such person has not had a prior conviction and, as part of the current violation, had a concentration of fifteen-hundredths of one gram or more by weight of alcohol per one hundred milliliters of his or her blood or fifteen-hundredths of one gram or more by weight of alcohol per two hundred ten liters of his or her breath, such person shall be guilty of a Class W misdemeanor, and the court shall, as part of the judgment of conviction, revoke the operator’s license of such person for a period of one year from the date ordered by the court. Such revocation shall be administered upon sentencing, upon final judgment of any appeal or review, or upon the date that any probation is revoked. If the court places such person on probation or suspends the sentence for any reason, the court shall, as one of the conditions of probation or sentence suspension, order that the operator’s license of such person be revoked or impounded for a period of one year from the date ordered by the court unless otherwise authorized by an order issued pursuant to section 60-6,211.05, and such order of probation or sentence suspension shall also include, as conditions, the payment of a five-hundred-dollar fine and either confinement in the city or county jail for two days or the imposition of not less than one hundred twenty hours of community service; 60-6,197.08 Sec. 14. Notwithstanding the provisions of section 60-498.02 or 60-6,197.03, a person who commits a violation punishable under subdivision (3)(b) or (c) of section 28-306 or a violation of section 60-6,196, 60-6,197, or 60-6,198 while participating in criminal proceedings for a violation of section 60-6,196, 60-6,197, or 60-6,198, or a city or village ordinance enacted in accordance with section 60-6,196 or 60-6,197, or a law of another state if, at the time of the violation under the law of such other state, the offense for which the person was charged would have been a violation of section 60-6,197, shall not be eligible to receive a sentence of probation, a suspended sentence, or an employment driving permit authorized under subsection (2) of section 60-498.02 for either violation committed in this state.

Nebraska motor vehicle guest statute limiting liability for related guest passengers is (barely) constitutional: Nebraska Supreme CourtLe v Lautrup 271 Neb. 931 Filed July 7, 2006. No. S-04-743. Granddaughter sued grandfather for motor vehicle accident in which she was a passenger. The Nebraska Supreme Court, J. Miller Lerman for the majority rejected the plaintiff's challenge to the constitutionality of § 25-21,237 sustaining the defendant's district court demurrer based on simple negligence. The action went to trial on the sole remaining theory of gross negligence, resulting in a defense verdict. "We conclude that the district court did not err in rejecting the Les' challenge to the constitutionality of § 25-21,237." Dissenting Justices Gerrard, McCormack and CJ Hendry argued that § 25-21,237 is not rationally related to a legitimate purpose because "persons who are of a mindset to engage in collusion are unlikely find the guest statute discouraging. Justice Gerrard also might have mentioned that § 25-21,237 does not apply to relatives involved in accidents when they are not passengers in the same automobile. to lie. Thus, Justice Gerrard finds the "collusion prevention" rationale is hardly a rational basis for a blanket provision barring passengers from bringing general negligence claims against drivers to whom they are related. Maybe Justice Gerrard doesn't read the news around the country or doesn't "google" the armchair legislator concepts he cooks up. If the good Justice Gerrard, our own Roscoe Pound had bothered he might have found these gems on family members' involvement in staged auto accidents: Virginia: " Organized insurance crime rings, for example, operate widely in the state’s expanding urban areas. Many rings specialize in staging auto accidents that scam large sums of insurance money, for example. These rings are hard to crack because they’re complex, well-hidden, and often run by family members who closely protect each other’s identities." Albany, New York: "A boxing champion and six members of his family have been indicted on charges of enterprise corruption stemming from what Albany County prosecutors say is a scheme in which they staged dozens of automobile accidents and collected thousands of dollars from false insurance claims." Now maybe Justice Gerrard is on to something: many of these staged accident rings involve immigrants whose loyalty to family supersedes the law. We couldn't legislate against immigrants could we? So we discriminate against citizens who might deserve recourse in a case like Friday's.

Sarpy county district court erred when it reduced 3rd offense dwi defendant's jail time from 90 to 10 days as part of her probation order but Defendant still only needs to serve 10 days because State appealed under 23-2315.01 which allows appellate court to make prospective rulings of law applicable to future casesState v. Vasquez, S-05-1019, 271 Neb. 906 HTML Sarpy County Court sentenced 3rd offense drunk driving defendant to probation but added on 90 days in jail, according to § 60--6,197.03(3) (Reissue 2004. The District Court modified the sentence to 10 days in jail. The State took exception under 29-2315.01. § 29-2262(2)(b) (Cum. Supp. 2002 allows the court to sentence a probationer to additional jail time for up to 90 days. 60-6,197.03(3) provides a floor on the jail time a defendant on probation will get for 3rd offense dwi. The supreme court agrees that the District court was wrong to reduce the defendant's sentence to 10 days, it says no one is able to reinstate the stiffer sentence because the State did not appeal the sentence as excessively lenient; the state may only appeal felony sentences. Since the Defendant had been placed in jeopardy, § 29-2316 (Cum. Supp. 2004) this excessively lenient sentence for a problem drinker stands but future drunks wont havethe same opportunities to walk.

Arrest warrant for escaped inmate from Nebraska Department of corrections does not permit police to search home where escaped convict was hiding out: Eighth Circuit Court of Appeals reverses convictionDecision of the Day Blog United States v. Tylan Lucas 052165P.pdf 06/16/06 District of Nebraska Under a Nebraska statute, the Director of Corrections has authority to issue arrest warrants for escaped inmates, Neb. Rev. Stat. § 83-173(11). In this case, officers used one such warrant to arrest defendant Tylan Lucas in his home. During the course of the arrest, officers found evidence that led to Lucas’s further convictions for drug and gun charges. Lucas moved to suppress the evidence on the grounds that the arrest warrant was invalid, but the district court denied his motion. EIGHTH CIRCUIT REVERSES. An arrest warrant issued by the Nebraska Director of Correctional Services is not a warrant issued by a neutral and detached magistrate capable of determining whether probable cause exists for the requested arrest, and defendant's arrest pursuant to the warrant was invalid; Leon good faith exceptions does not apply when the indiviDual who issued the warrant is not neutral and detached.

Nebraska Supreme Court rules that insurers could avoid paying for pollution costs when dumping occurred over a long period of time because prolonged dumping was not "sudden and accidental;" Court however also holds that cause of action for failure to defend a customer does not accrue until the customer receives the adverse judgmentDutton-Lainson Co. v. Continental Ins. Co., S-04-1223, 271 Neb. 810 The "sudden and accidental" exception to the pollution exclusion clause expressed conjunctive conditions for insurance coverage.The discharges leading to the pollution in issue in this case were not "sudden."Therefore, the District Court properly gave summary judgment as to the insurers whose policies contained pollution clauses with the suddeness/accidental exceptions. As to those insurers who did notput in pollution exceptions to theirpolicies, but still contended the statute of limitations on a breach for failing to defend their customer, the supreme court found the issue of when the statute of limitations begins to run for breach of contract on a duty to defend is an issue of first impression for this court. The supreme court adopts the clear majority view that a cause of action on an insurer's duty to defend does not run until the underlying action is resolved against the insured. Accordingly, we reverse the district court's determination that Dutton's claims were barred by the statute of limitations. SUMMARY JUDGMENT ON POLLUTION EXCEPTIONS AFFIRMED; SUMMARY JUDGMENT ON STATUTE OFLIMITATIONS REVERSED.

Nebraska Supreme Court sends disputed estate tax refund back to county court n re Estate of Eriksen, S-04-966, 271 Neb. 806 Heir of deceased farmer exercised option in the will to purchase the farm and the estate sought special valuation elections 2032A and deductions allowed to estates when the relatives continue to farm the property 2057. The Plaintiff sought those elections and also the entire refund according to 77-2108 apportionment statute. The county court ruled against him. The Nebraska Supreme Court reverses holding that the will did not direct apportionment of taxes and refunds if any. Also the Court must consider the application of 77-2108 after the estate pays its taxes; the IRS denied the 2057 claim as well. "Eriksen next contends that under § 77-2108, he should be allocated the tax savings caused by his elections. But the county court did not decide issues regarding apportionment under § 77-2108. Further, at oral arguments, the parties agreed that the residuary of the estate had not been distributed and informed the court that the § 2057 election has now been denied by the Internal Revenue Service. Until the estate taxes have been finally determined, § 77-2108 cannot be applied. In addition, a determination about apportionment involves a number of issues that could require additional factual findings. The county court did not address apportionment under § 77-2108 and did not make specific factual findings, because it determined that the will controlled instead of the statute. An appellate court will not consider an issue on appeal that was not passed upon by the trial court. In re Guardianship & Conservatorship of Larson, 270 Neb. 837, 708 N.W.2d 262 (2006). Accordingly, we do not address the apportionment under § 77-2108 and remand the matter for that determination by the county court when the final amount of federal estate taxes has been determined. Likewise, the county court did not address Eriksen's unjust enrichment arguments, and an application of § 77-2108 could potentially affect those claims. Accordingly, we also do not address unjust enrichment and remand the matter for determination by the county court.

Injured workers subject to the Nebraska Worker Compensation Act who win damage suits against third party tortfeasors may not require that the the settlement or judgment "make them whole" before the subrogated worker compensation carrier recovers any of its compensation paymentsTurco v. Schuning, S-05-068, 271 Neb. 770June 16, 2006. Plaintiff severely injured in automobile accident while doing his sales job settled an automobile liability claim for $250K; worker comp had paid $145K for disability and medical care. The Plaintiff also had a claim for $100K against his wife's underinsured motorist insurance, which must not have been part of this case. The District Court in a 48-118.04 (2005 revision) hearing determined the Plaintiff's damages to exceed $600K. Assuming that the equitable "made whole" rule applied, the District Court did not allow the worker comp insurer any subrogation. Nebraska Supreme Court reverses holding that the statute's command for a fair and equitable distribution meant just that without incorporating any "made whole rule." Section 48-118(.04) does not prescribe an exact formula for the trial court to apply when making a fair and equitable distribution, and we will not read such formula into the statute. It is not within the province of this court to read a meaning into a statute that is not there. See Trieweiler v. Sears, 268 Neb. 952, 689 N.W.2d 807 (2004). Instead, under the plain language of § 48-118(.04), the trial court shall make a fair and equitable distribution. The distribution is left to the court's discretion. We determine that the court erred when it concluded that it was required to apply the "made whole" doctrine.

Defendant convicted of stealing an ATM loses appeal challenging constitutionality of restitution order; loses ineffective counsel claim in Nebraska Supreme Court in another wasteful pointless appeal the Defendant claims he told his lawyer to file.State v. Moyer, S-05-079, 271 Neb. 776 HTML Defendant and two others broke into a Bennett convenience store and stole the ATM. They opened the machine with a blowtorch and stole $10000. Defendant plead guilty and was sentence to prison and ordered to pay full restitution. Defendant's counsel did not appeal the sentence and later the District Court ordered a new direct appeal, assuming the Defendant had asked for an appeal. Defendant's new counsel claimed Neb. Rev. Stat. §§ 29-2280 to 29-2289 (Reissue 1995) were unconstitutional because violate Neb. Const. art. VII, § 5(1). the Nebraska criminal restitution statutes challenged by Moyer do not violate Neb. Const. art. VII, § 5. Section 29-2280 states, in part: "A sentencing court may order the defendant to make restitution for the actual physical injury or property damage or loss sustained by the victim as a direct result of the offense for which the defendant has been convicted." "Although an order to make restitution is punitive as to the wrongdoer, it is limited to the actual loss sustained by the victim and is thus compensatory or remedial in nature. Accordingly, we hold that restitution, ordered in an amount not exceeding the actual damage sustained by the victim, pursuant to §29-2280 , is not a penalty within the meaning of Neb. Const. art. VII, § 5, and is constitutional." Post conviction relief denied.The volume of these post conviction motions seeking direct appeals from guilty pleas quite annoys me. This District Judge seems to have not read Roe v Flores-Ortega, the Scotus decision that restricts the free appeal hindsight favoring judges were giving defendants. The better practice is for counsel routinely to consult with the defendant about an appeal. Counsel has a constitutionally imposed duty to consult, however, only when there is reason to think either (1) that a rational defendant would want to appeal, or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. In making this determination, courts must take into account all the information counsel knew or should have known. One highly relevant factor will be whether the conviction follows a trial or a guilty plea, because a plea both reduces the scope of potentially appealable issues and may indicate that the defendant seeks an end to judicial proceedings. Even then, a court must consider such factors as whether the defendant received the sentence bargained for and whether the plea expressly reserved or waived some or all appeal rights.

Lincoln cardiologist's ex wife loses appeal of defense verdict that was in favor of her former divorce attorney; Nebraska Court of Appeals (unpublished opinion) agrees that Lancaster County District Court properly overruled her (Plaintiff's) motion for a directed verdictCaudill v. Roberts, A-04-1314; Ex wife of prominent Lincoln cardiologist Christopher Caudill sued her divorce counsel for negligently allowing her physician husband to keep several limited partnerships while agreeing that their value would be a negative $400K. After the negative partnership value, the parties split a $10 million marital estate roughly in half. After the divorce doctor's exwife contended the attorney negligently investigated the value of the property and the tax consequences. The district court did rule on partial summary judgment that in the divorce the parties should have considered the tax consequences of splitting the partnerships only if the divorce would have forced their sale, citing Schuman v. Schuman, 265 Neb. 459, 658 N.W.2d 30 (2003), but did not rule on the defendant's liability. The court overruled the plaintiff's motion for directed verdict and the jury found for the defendant attorneys. Court of appeals affirms Various witnesses gave conflicting opinions as to the potential value or negative value of the partnerships, and what actions the wife as succeeding owner would have to take to preserve them. "Roberts testified that he has had previous cases dealing with limited partnerships and that they have too many downside risks to take them in a divorce. Roberts testified that he knew the limited partnerships were involved in real estate and that he discussed with Nancy doing an appraisal but that it would be expensive and that nothing may come out of it. He suggested to Nancy that she and Christopher should split the limited partnerships "50/50." He testified that he told her they were risky and that there could come a time when she may have to put money into them. (We digress to recall that at oral argument, Nancy's counsel argued that a limited partner never is obligated for further capital contributions--but there was no evidence at trial to support such claim, nor was there any evidence to dispute Roberts' testimony as to the risk of further contributions to these particular limited partnerships.) Roberts testified that Nancy told him that she did not want any risk. He testified that if they had gone to trial over the issue, she would not be happy if she got the limited partnerships; thus, he told her that settlement was the best option. Roberts testified that in attempting to agree to a property settlement, the parties had to do some "give and take." It is noteworthy that Christopher's counsel testified that if the negative tax consequences of the partnerships were not included in the property division, he would have advised his client to try this issue; and we note that although there was a settlement, a number of unsettled issues were tried. Our brief recounting of the foregoing key testimony clearly reveals evidence upon which the jury could have concluded that Roberts did not violate the standard of care--remembering that on a motion for a directed verdict every controverted fact must be resolved in favor of Roberts. Galter's testimony was that Roberts met the standard of care, and by itself, it would prevent the trial court's entering a direction that Roberts had breached the standard of care with respect to his handling of the limited partnerships and advice to his client. Consequently, the district court did not commit error in denying the motion for a directed verdict. AFFIRMED

Nebraska Supreme Court reverses mandamus order from the Adams County District Court directing the rezoning of farmland for residential development State ex rel. Musil v. Woodman, 271 Neb. 692 Filed June 9, 2006. No. S-04-1420. Owners of recently purchased farmground in rural Adams County sought rezoning for residential development. On a motion at one meeting of the Adams County Board the Board approved revising the County zoning plan on a split vote. However later the Board refused to adopt these actions by resolution. The District Court for Adams County considered the approving motions sufficient to require the Board to proceed with rezoning. The Supreme Court reverses finding no clear obligation for the Board to follow its motions when its rules required a resolution.Under § 23-114(1)(d) and art. 10, § 1003.02, the rezoning action Musil sought in the instant case was required to be taken up as a "resolution." Based on the foregoing, we agree with Barrows and the Board that the motions of June 24, 2003, were of a different character than the resolutions of August 19 and that the former were merely an expression of possible future action favorable to Musil, whereas the latter were in fact a rejection of Musil's petition for rezoning. Contrary to Musil's assertion and the conclusion of the district court, the mere motions of June 24, 2003, were not sufficient to require that Musil's rezoning request be implemented, and, on the contrary, the resolutions rejected on August 19 denied Musil's request for rezoning. Musil did not show clearly and conclusively that she was entitled to the relief of rezoning that she sought, and the Board was not legally obligated to rezone. See, State ex rel. Jacob v. Bohn, ante p. 424, 711 N.W.2d 884 (2006); Ways v. Shively, 264 Neb. 250, 646 N.W.2d 621 (2002). The district court erred in issuing the writ of mandamus directing the rezoning, and we reverse the order issuing the writ.

Nebraska Supreme Court modifies April opinion that held administrative revocation of drivers' licenses for refusing alcohol tests were constitutionalKenley v Neth (Neth II) 271 Neb. 683 Filed June 9, 2006. Nos. S-04-1186, S-05-230. Supplemental Opinion; Kenley v Neth (Neth I) 271 Neb. 402 Filed April 14, 2006. Nos. S-04-1186, S-05-230. reversed the Clay County District Court, which had ruled the administrative revocation of the licenses of drivers who refused to take tests for blood alcohol (§ 60-498.01 )violated the due process and equal protection clauses of the Nebraska and US Constitutions. The District Court reasoned that because if drivers lost drivers licenses for failing tests but could win back their drivers licenses if they later won acquittal of accompanying criminal charges§ 60-498.02(4) , the refusing drivers should also have that right. The Supreme Court in Kenley I directed the District Court to uphold Kenley's suspension. Kenley II corrects this error and requires the District Court to review the case on its merits. With respect to Kenley, in her appeal to the district court, she assigned that there was no competent evidence to support the revocation of her driver's license. Due to its other holdings, the district court did not reach this issue. We remand the cause to the district court for further proceedings consistent with this opinion with directions to determine whether there was competent evidence to support the revocation of Kenley's driver's license. In accordance with the above, we also withdraw the directive language with respect to case No. S-04-1186, id. at 416, 712 N.W.2d at 264, and substitute the following: Cause in No. S-04-1186 remanded for further proceedings.

More result oriented and haphazard Daubert jurisprudence from the Nebraska Supreme Court; Court reverses Lancaster County district Court judge Witthof's decision to exclude "expert" opinion stating auto accident caused fibromyalgia symptomsEpp v. Lauby, 271 Neb. 640 Filed June 2, 2006. No. S-04-990. This time the Supremes hand one to the very worthy trial lawyers and their hypochondriac clients by reversing Judge Witthof's decision to exclude testimony from professional plaintiffs experts that Plaintiff Epp suffered total disability from an automobile accident that caused her fibromyalgia symptoms. Earlier researchers have described fibromyalgia as a psychosomatic disorder. Although the Supreme Court recognized that many medical researchers find the trauma-fibromyalgia connection to be junk science, it was an "abuse of discretion" for the trial court to agree with those researchers, because the medical expert testifying in favor of the fibro sufferer did a good job of eliminating other causes for the fibro symptoms. Daubert on the web notes other circuit cases from the 5th and 2nd Circuits denying plaintiff friendly fibromyalgia opinions:

Vargas v. Lee, 317 F.3d 498 (5th Cir. 2003). In suit against truck driver and trucking company, plaintiff offers Dr. Edward M. Gaber, who opines that plaintiff's fibromyalgia was caused by trauma sustained in accident. District court admits testimony and jury awards damages to plaintiff. Admissibility reversed.

Washburn v. Merck & Co., No. 99-9121 (2d Cir. May 1, 2000) (unpublished). Woman develops arthropathy, chronic pain syndrome, and fibromyalgia after receiving rubella vaccination. In suit against vaccine manufacturer, woman offers three physicians who opine that vaccination caused symptoms. District court excludes testimony from all three and awards summary judgment. Exclusion affirmed.

Lincoln area specialty hosptials Nebraska Heart Institute and Lincoln Surgical Hospital opened before Federal Government imposed moratorium on medicare/medicaid reimbursements for physician referrals to "whole hospitals" they owned; moratorium has expired, but Fed CMS Agency has not allowed new specialty hospitalsPhysician-Owned Specialty Hospitals Dodge a Bullet; Duane Morris Law Firm. The Medicare Prescription Drug, Improvement and Modernization Act of 2003 ("MMA") imposed an 18 month moratorium from December 2003 to June 2005, on physicians' referring their patients to a cardiac, orthopedic or surgical specialty hospital in which they had an ownership or investment interest. The moratorium did not apply to hospitals that were in operation or "under development" as of November 18, 2003. Congress allowed the moratorium to expire. Legislation that Senators Grassley and Baucus introduced as the "Hospital Fair Competition Act of 2005" would have permanently prohibited specialty hospitals passed the Senate but went nowhere in the House. The Deficit Reduction Act of 2005 requires HHS (through CMS) to develop a "strategic and implementing plan" regarding physician investment in specialty hospitals. For now area specialty hospitals with their high profit margins are safe.