NCA holds that "certified" mail is not "first class mail"

Wife who filed contempt motion in Dakota County District Court against husband to compel transfer of certain properties the court awarded her could not get personal service on the Husband and then the Court allowed substitute service which included posting the contempt citation on the doors of Husband's residence and business PLUS mailing the notices by "first class mail." When the wife mailed the notice certified the NCA hold that this did not meet the necessary strict compliance with the statute on substitute service and the court order for substitute service. The husband's cross motion for contempt was filed after the court had held him in contempt and so he had not voluntarily submitted to the court's jurisdiction Thornton v thornton Personal Service. Ronnie first alleges that the trial court erred when it found that there had been “personal service” upon him. It is true that on June 8, 2001, the trial court made a journal entry finding that “there has been personal service upon [Ronnie] concerning [Barbara’s] Application for an Order and Citation for Contempt.” The record does not support a finding of “personal service,” because it is clear that Ronnie was never personally served. However, the trial court had earlier granted Barbara’s motion for substitute service, and we believe that the court’s journal entry was intended to convey that substitute service had been effectively completed. Therefore, we must address whether the substitute service upon Ronnie was effective. In its order granting Barbara’s motion for substitute service, the court permit[ed] service to be made by the Woodbury County, Iowa, Sheriff’s office by leaving the Summons and Show Cause Order with a person of suitable age or securely affixing the same at a prominent point on said property at both [Ronnie’s] usual place of residence and usual place of employment and by [Barbara] mailing a copy of the Summons and Show Cause Order by First Class Mail to [Ronnie’s] last known address of his residence and his place of employment. However, although the record does show that the Woodbury County sheriff’s office did affix the summons and show cause order as ordered by the trial court, Barbara did not strictly comply with the order. The documents she was ordered to send to Ronnie were sent via certified mail, rather than by first-class mail as ordered by the trial court. [4] The acceptable methods of substitute service in Nebraska are found in Neb. Rev. Stat. § 25-517.02 (Reissue 1995), which provides: Upon motion and showing by affidavit that service cannot be made with reasonable diligence by any other method provided by statute, the court may permit service to be made (1) by leaving the process at the defendant’s usual place of residence and mailing a copy by first-class mail to the defendant’s last-known address, (2) by publication, or (3) by any manner reasonably calculated under the circumstances to provide the party with actual notice of the proceedings and an opportunity to be heard. [5,6] Therefore, both the statute and the court’s order required Barbara to mail a copy of the process by first-class mail rather than by certified mail. Statutes prescribing the manner of service of summons are mandatory and must be strictly complied with. Anderson v. Autocrat Corp., 194 Neb. 278, 231 N.W.2d 560 (1975). A statute which authorizes the use of postal service to notify a defendant that he has been sued in court is strictly construed and must be specifically observed. Id. Further, the record establishes that the certified letters sent to Ronnie were not accepted by Ronnie, and there is no showing that these certified letters were ever received by him. As a result, we find that there was no effective substitute service upon Ronnie and that the district court erred when it found that Ronnie had been effectively served. Because there was no effective service upon Ronnie at the time he was found in contempt and because he had not yet voluntarily submitted to the court’s jurisdiction, the trial court lacked jurisdiction over Ronnie at that time. The trial court erred when it overruled Ronnie’s special appearance on the basis that service had already been perfected upon him. Further, the court’s May 16, 2002, journal entry finding Ronnie in contempt of the August 26, 2000, decree, its November 19, 2002, order and bench warrant, and its November 20, 2003, award of attorney fees to Barbara are all vacated. Ronnie’s Motion for Contempt Citation.

NCA reverses child support modification, trial court had disregarded previous appeal mandate

Case where parents barely break $50k annual salary goes up a 4th time to the appeals court; Although last time the district court tried the case, it applied 2002 revisions to child support guidelines, the Appeals court found this violated the court's mandate to apply Prochasksa "interdependent" calculation method. Further the companion appealed case the court deprived the father of the defense of having subsequent children to a mother's motion to increase child support. Mace v. Mace, 13 Neb. App. 896 September 13, 2005. Nos. A-03-375, A-03-376. Paragraph T was added to the guidelines and became effective on September 1, 2002, and it states: An obligor shall not be allowed a reduction in an existing support order solely because of the birth, adoption, or acknowledgment of subsequent children of the obligor; however, a duty to provide regular support for subsequent children may be raised as a defense to an action for an upward modification of such existing support order. There are two problems with the district court’s application of paragraph T. First, in the instant case, the amount of the “existing support order” would be the amount that we have mandated above in regard to case No. A-03-375. In the proceedings in case No. A-03-376, Jerry was not seeking a reduction in support; Wanda was seeking an increase. By utilizing a calculation that considered only the initial support obligation for the three subject children as of the date of the initial decree, the district court deprived Jerry of the defense of paragraph T concerning Jerry’s obligation to support Kirsty. [12] Secondly, and more importantly, the district court failed to justify its methodology by showing that it had “‘“done the math.”’” See Gallner v. Hoffman, 264 Neb. 995, 1002, 653 N.W.2d 838, 844 (2002) (quoting Stewart v. Stewart, 9 Neb. App. 431, 613 N.W.2d 486 (2000)). In case No. A-03-376, unlike in case No. A-03-375, there has been no previous appeal and there is no earlier mandate binding the trial court’s determination of what methodology to use in recognizing Jerry’s obligation to Kirsty. In Emery v. Moffett, 269 Neb. 867, 697 N.W.2d 249 (2005), the Nebraska Supreme Court reiterated its earlier holding in Brooks v. Brooks, 261 Neb. 289, 622 N.W.2d 670 (2001), that a trial court has discretion to choose whether and how to calculate a deduction for subsequent children, but that it must do so in a manner that does not benefit one family at the expense of the other. In the instant case, the “method” selected by the district court clearly benefits the three children of Jerry and Wanda at the expense of Kirsty. While the district court was not, in case No. A-03-376, restricted to the methodology of Prochaska v. Prochaska, 6 Neb. App. 302, 573 N.W.2d 777 (1998), it was required to use some principled basis that did not benefit one family at the expense of the other. In failing to do so, the district court abused its discretion.

Kansas Supreme Court Hears Arguments in Abortion Medical Records Case; AG Wants To Investigate for Felonies by Clinics 11 Sep 2005 Kaiser Medical News Abortion records suit in reality a political showdown between the clinics and the anti-abortion KS attorney general with abortion opponents claiming clinics receive political cover while clinics brand the attorney general an extremist. Kansas City Star Kansas Attorney General Phill Kline (R) is seeking access to the unedited medical records of 90 women and girls who underwent late-term abortions at two Kansas clinics in 2003 because he believes there is probable cause that each record contains evidence of felony crimes, Deputy Attorney General Eric Rucker told the Kansas Supreme Court in Topeka on Thursday, the... Kansas City Star reports (Klepper, Kansas City Star, 9/9). Kline last year subpoenaed the records from the two clinics, Comprehensive Health, which is operated by Planned Parenthood of Kansas and Mid-Missouri in Overland Park, Kan., and Women's Health Care Services in Wichita, Kan. The records include each patient's name, medical history, birth control practices, psychological profile and sexual history and were requested for all women and girls who sought abortions at or after 22 weeks' gestation (Kaiser Daily Reproductive Health Report, 9/6). Nearly 75% of the women were legal adults when they underwent the procedure (Kansas City Star, 9/9). The clinics in March filed a brief with the state Supreme Court requesting that the court block Kline's subpoena (Kaiser Daily Reproductive Health Report, 9/6). Arguments Rucker said that each of the 90 records might contain evidence of more than one felony, including criminal failure to report child abuse or rape and illegal abortions performed by the clinic. Under Kansas law, any girl under 16 years old who is impregnated by an adult is considered to have been raped, and physicians are required to report any suspicion that a patient has been abused physically, emotionally or sexually. In addition, physicians are prohibited from performing abortions on fetuses after 22 weeks' gestation unless the fetus would not survive or the pregnancy, if continued, would jeopardize the woman's health (Kansas City Star, 9/9). Lee Thompson, the attorney who argued for the clinics, said Kline had not shown evidence of why the medical records are necessary for the investigation. He also argued that the subpoena is a violation of privacy because the records contain detailed personal information, according to the Lawrence Journal-World. Comments Rucker said that while "documented evidence of child rape, incest or other sexual felonies existed within a number of records," the clinics also are targets of the investigation (Rothschild, Lawrence Journal-World, 9/9). Thompson said, "Both clinics categorically deny having committed any felonies," adding, "Today was the first time in this proceeding, either before the district court or in the papers, that allegation has been made." However, Rucker said, "This is a criminal investigation. We cannot depend on the good-faith redaction of records by those being investigated" (Ertelt, LifeNews.com, 9/8). Under questioning from Justice Carol Beier, Rucker conceded that Kline had only subpoenaed records for investigation of failure to report child abuse from clinics that provide abortions and had not sought information from anyone else required to report abuse, such as teachers and other health care professionals (Lawrence Journal-World, 9/9). PPKMM CEO Peter Brownlie said, "This attorney general has been very clear that he was out to get abortion providers. But it's never been stated before like it was today" (Kansas City Star, 9/9). Kline in a statement said, "The legal process is working appropriately. It is important once again to state that information about women who received abortion services will never be made public by the lower court or my office and the women and children are not under any type of legal or other liability" (Topeka Capital-Journal, 9/9). Medical Records Privacy Issue Some privacy experts say the case is a "classic showdown of two competing social interests: medical privacy and law enforcement," the Kansas City Star reports. Law enforcement can access confidential medical files if they are relevant to an investigation and cannot be obtained otherwise, according to the Star. Kline has said his investigation is no different than others involving medical files, except that it has to do with abortion. He also has accused the clinics of being hypocritical about keeping medical records private because both of them have posted waivers on their Web sites allowing the use of patient information for fundraising purposes. However, the clinics denied using patient records for fundraising. Officials at Women's Health Care Services said they had put the waiver online by mistake, and Comprehensive Health spokesperson Laura Norris said the facility is legally required to list the waivers even if they do not use the records for fundraising (Klepper, Kansas City Star, 9/8). "That fundraising issue is bogus," Brownlie said, adding, "We don't have fundraisers outside that we turn anything over to. We do it with staff." The clinics also say that Kline's motivation for obtaining the records is to discourage women from seeking abortions (Hanna, AP/Kansas City Star, 9/7). Contempt Allegations The court also heard arguments from attorneys on both sides of the case about allegations made by the clinics that Kline had violated a gag order that had kept most of the records of the case under seal (Hanna, AP/Kansas City Star, 9/8). The family planning clinics in May accused Kline of violating the gag order when he gave interviews, held news conferences and appeared on national television news programs to discuss the investigation. The state Supreme Court in March lifted the gag order, which had been imposed since October 2004, at the request of the clinics. According to spokespeople for the two clinics, Kline violated the gag order before it was lifted (Kaiser Daily Reproductive Health Report, 9/6). The court could rule on the case as soon as Oct. 28 (AP/Kansas City Star, 9/8). Posted on Sun, Sep. 11, 2005 M O R E N E W S F R O M topix.net • Abortion Fight over records is about abortion - and Kline's re-election JOHN HANNA Associated Press TOPEKA, Kan. - Partisans fighting over Attorney General Phill Kline's pursuit of abortion clinic records have burned up a good deal of time portraying it as a battle over something other than abortion. Kline's fellow abortion opponents have emphasized Kline's stated desire to go after predators who sexually abuse young girls. County prosecutors who've sided with Kline have said he's also fighting to preserve their ability to investigate crime. The clinics, operated in Wichita by Dr. George Tiller and in Overland Park by Planned Parenthood of Kansas and Mid-Missouri, argue the sanctity of patients' medical records is at stake. If Kline prevails, no one's medical records may be private, they contend. But an hour's worth of arguments last week before the Kansas Supreme Court and the spin surrounding them only served to emphasize that abortion is the issue. Kline is aggressively pursuing the clinics. Eric Rucker, his chief deputy, told the Supreme Court he believes each record contains evidence of multiple crimes on their part - which would amount to several hundred misdemeanors and felonies. In turn, the clinics have ratcheted up their never-quite-abandoned campaign to end Kline's political career, attempting to persuade Kansans that he's an extremist. Kline's efforts have brought him attention outside Kansas. Planned Parenthood's national organization has weighed in, suggesting Kline is part of a larger "anti-choice" agenda because the group faces similar legal battles in Indiana and Ohio. Interestingly enough - and perhaps not coincidentally - in each of the three states, Planned Parenthood officials have accused their antagonists of conducting a "fishing expedition." Last year, at Kline's request, a Shawnee County judge subpoenaed the medical records of 90 women and girls who'd had abortions. The judge also outlined a procedure in which a doctor or doctors designated by Kline would make recommendations on what information the judge should allow the attorney general to see. The clinics went to the Supreme Court, which could rule by Oct. 28. They've asked the justices to block the subpoenas or at least narrow them. The battle has its roots in older antagonisms. For example, in 1998, legislators enacted new restrictions on late-term abortions, with some of them arguing that Tiller had turned Kansas into a Mecca for such procedures. Within three weeks of the law taking effect, Tiller faced accusations that he had violated it. The state Board of Healing Arts investigated, but declined to take disciplinary action. Kline's predecessor, Carla Stovall, who supported abortion rights, refused to initiate another investigation, saying anti-abortion activists had no evidence of wrongdoing. Abortion opponents have long believed Tiller, Planned Parenthood and abortion doctors routinely flout state laws, protected by political friends in key positions. Kline's election allowed their sins to be exposed, or so the argument goes. "They want to defeat Phill Kline," said Mary Kay Culp, executive director of Kansans for Life, the state's largest anti-abortion group. "Then they would be able to walk around with no fear that anyone is ever going to enforce those laws. If not Phill Kline, then who?" Kline argues that denying him access to the clinics' records would permit the target of an investigation to dictate what information reaches investigators. Eventually, even a President Nixon is compelled by law to turn over his incriminating Watergate tapes. But abortion rights activists have long cast abortion opponents as zealots who'll use any tactic, no matter how morally suspect, if it restricts access to the procedure. A bill to specify minimum health and safety standards for clinics? It's designed to make regulation so onerous that clinics go out of business, they say. Allegations of wrongdoing? They're statements you hear routinely from people out to destroy Tiller and other abortion doctors, they contend. As for Kline's investigation, "We are the target because we perform abortions," said Lee Thompson, a Wichita attorney and former federal prosecutor who represented the clinics before the Supreme Court. All parties involved in the case - and their allies - are playing to an audience beyond the courts, of course. That accounts for how the fight has been portrayed. Some Kansans question Kline's motives in investigating abortion clinics, but who can oppose tracking down predators? Other Kansans suspect that fighting Kline is a good way to keep incriminating evidence from coming to light, but who wants their medical records open to the scrutiny of strangers? However, the fight is about how abortion is regulated in Kansas, and the battle will continue with next year's elections, regardless of how the Supreme Court rules.

8th Circs sidestep Batson challenges against gays

In two companion cases, the 8th Circuit sidesteps the issue whether Batson {no peremptory challenges based on race} would extend to jurors' sexual orientation. The US Attorney offered a legitimate non-discriminatory reason for striking a gay juror in United States v. Eugene Blaylock U.S. Court of Appeals Case No. 04-1535 and United States v. Timothy Ehrmann U.S. Court of Appeals Case No. 04-1646 District of MinnesotDistrict of Minnesota. In 1994 Scotus extended Batson to juror challenges based on gender. JEB v. Alabama and the California Supreme Court and 9th Circuit Court of Appeals have assumed Batson includes sexual orientation. Although the California Supreme Court has held sexual orientation should be a protected class for jury selection purposes, see People v. Garcia, 92 Cal. Rptr. 2d 339, 347-48 (2000), and the Ninth Circuit has assumed, without deciding, sexual orientation qualifies as a Batson classification, Johnson v. Campbell, 92 F.3d 951, 953 (9th Cir. 1996), neither the Supreme Court nor this circuit has so held.While we doubt Batson and its progeny extend constitutional protection to thesexual orientations of venire persons, our review of the trial record persuades us thateven if Blaylock made a prima facie case of purposeful discrimination, his Batsonobjection fails, because the government offered legitimate nondiscriminatory reasonsfor striking the panel member. The prosecutor told the district court that hequestioned the suitability of this panel member before learning of the panel member’ssexual orientation. Specifically, the prosecutor explained to the court he wasconcerned by te panel member’s liberal education and his musician background, andthe prosecutor felt the panel member was a potential loner. Blaylock offered noevidence to show the prosecutor’s proffered reasons were pretextual. Accordingly,we find no clear error.

Nebraska Supremes refuse to reinstate suspended physician

Nebraska Supreme Court back from its vacation rules that Board of Health Chairman had discretion to overrule health boards recommendation that physician suspended from 1997 should not regain his medical license. The board of health had suspended Dr Navrkal in 1997 for alcohol abuse and for having an intimate relationship with a mental patient. In the meantime the dr had practiced outside the scope of his probationary licenses in colorado and nebraska; had graduated from the University of Texas law school (but failed the bar exam once) and had beeb convictged of an alcohol related traffic offense in Colorado. The Supreme Court held the board chairman could overrule the Board. The dr attempted on appeal to raise a disability discrimination act issue but the Nebraska Supremes refused to consider it under plain error. In re Petition of Navrkal, S-04-808, 270 Neb. 391 The supreme court also disbarred upon voluntary surrender of license former prosecutor Greg Lauby who was convicted in Colorado of statutory rape and related offenses. State ex rel. Counsel for Dis. v. Lauby, S-05-616, 270 Neb. 405 The Nebraska Supreme Court dismissed with prejudice formal discilplinary charges against attorney Lyle Koenig, who had been suspended for 90 days in 2002. No. S-05-209: State ex rel. Counsel for Dis. v. Koenig. Motion sustained; formal charges dismissed with prejudice.

Follow up: NeSCT hears arguments over City of Lincoln impact fees ordinance. Although District Judge Merritt conceded that impact fees are really taxes, he still allowed the City under its home rule charter to impose the fees. Builders challenge the authority of the city to impose this kind of tax and also its uniformity Lincoln Journal Star The Nebraska Supreme Court on Wednesday was asked to decide if an impact fee adopted by the city of Lincoln constituted an illegal tax.In oral arguments before the high court, Lincoln attorney William Blake contended the fees, adopted in 2003, amounted to an illegal tax because they were not authorized by the Legislature. “The primary issue is, what are the limits on the power of home rule cities to create and collect taxes,” said Blake, attorney for local developers challenging the fees. Blake told the court the city overstepped its authority when it adopted the fees without approval from the Legislature. The city adopted the impact fees as a way to help pay the costs of developments; for example, costs associated with water and sewer lines. Ernest Peo III, chief assistant city attorney, told the court the fees were in response to the city’s “growing pains. “The city could not keep up with the costs of development,” he said. Peo contended the charge was more like a fee than a tax. “Is it a revenue (generation) measure to benefit the general public, or a way to compensate the city for growth,” he said. “It’s a transfer (of costs) from the public as a whole to a limited group of people (developers).” Developers, including the Home Builders Association of Lincoln and Hartland Homes, sued the city in Lancaster County District Court 2003 over the fees. Judge Paul D. Merritt Jr., in a May 2004 ruling, said city government had the authority to impose the fee, which the judge called a tax. “It is difficult to understand how the Impact Fee Ordinance relates to the promotion of the public health, safety and welfare and is not just a disguised tax,” Merritt wrote. Attorneys for the developers appealed, arguing the ruling could create new avenues for taxation. Blake said Wednesday the existing court record in the case made clear the fees were a revenue-raising effort and, thus, a tax. And under Merritt’s ruling, he said, the city could empower itself to enact virtually any kind of tax. “Under the city’s argument, any tax they could think of would be valid, unless the Legislature” specifically said no, Blake said. Asked Supreme Court Judge William C. Connolly: “Could the city have an income tax?” Responded Blake: “Under their broad interpretation, yes.” Even if the city had the authority to impose the tax, Blake continued, it still amounted to an unfair tax because of its lack of uniformity. The impact fees include a number of exemptions related to, among other things, housing incomes and a development’s location. “You could have five (identical) houses in a row with different taxes,” he said. Peo argued the Nebraska constitution does not require strict uniformity in taxation. “Uniformity,” he wrote in a brief for the case, “only requires that similarly situated persons be treated the same unless there is a rational justification for the disparate treatment.” Judge John M. Gerrard asked Peo what were the limits on cities’ ability to tax. Peo said the state Supreme Court’s interpretation of a city’s home rule charter was a limit. He also said the Legislature could pass a law forbidding, for example, a city from imposing an income tax. According to papers filed in the appeal, the impact fee ordinance requires payment of fees associated with costs for water distribution, waste water, arterial streets and parks and trails. The court will rule later on the appeal. At the time of Merritt’s ruling last year, people seeking new, single-family homes were paying at least $2,800 in addition to construction costs.

Consensus local reaction to Rehnquist and O'Connor vacancies: more of the same This Daily Nebraskan article reports reactions from local pols and legal figures from left to right, conclusion: more than likely more of the same Locals weigh in on Supreme Court transition By MIKE FRITZ September 08, 2005 As the Supreme Court prepares for its new session, set to begin on Oct. 3, President George W. Bush will do something that has not been done since 1971: Appoint two justices at the same time. With the recent death of Chief Justice William H. Rehnquist and the July retirement of Associate Justice Sandra Day O’Connor, the president potentially could alter the balance of the court. Lancaster County District Court Judge Stephen Burns said the selection process is an imminently important event in the lives of Americans. “This will most likely affect all of U.S. legal policy for the next 20 years,” Burns said. However, at the moment he said it is impossible to know the full extent of the impact because justices’ convictions can change once confirmed. Burns pointed to Dwight D. Eisenhower’s 1953 chief justice appointment of Earl Warren as the worst-case scenario for a president. Eisenhower believed he was placing a moderate in the nation’s highest judicial post. “Warren turned out to lead one of the most liberal courts in our country’s history,” Burns said. The process of replacement, Burns said, has been proceeding in a typical manner. And he doesn’t believe last week’s Hurricane Katrina will have an adverse effect on the hearings. “Obviously, the devastation down there is still on everyone’s minds, but I don’t anticipate a diversion,” Burns said. The Senate will begin the confirmation hearings for John G. Roberts – whom Bush appointed to succeed Rehnquist as chief justice – on Monday. Many of Roberts’ views on major issues remain unclear, including religion’s role in government, affirmative action and abortion. Prior to Rehnquist’s death, Roberts seemed to be headed toward confirmation as associate justice. Jessica Moenning, executive director of the Nebraska Republican Party, commended Bush’s appointment of Roberts to chief justice. “He has made a wise choice that will not only be good for the Republican Party but also the entire country,” she said. Steve Achelpohl, the Nebraska Democratic Party chairman, said the transition to Roberts from Rehnquist would have little effect on the court’s makeup because the two men share similar judicial philosophies. However, he believes O’Connor’s successor will be a crucial choice because of her history as a swing voter. Achelpohl noted O’Connor’s ability to find a middle ground on decisive issues. In 2000, it was her vote that struck down Nebraska’s partial-birth abortion statute. “Her replacement will be of great concern to citizens who care about civil liberties and the right to privacy,” Achelpohl said. Rick Duncan, a professor of constitutional law at the University of Nebraska-Lincoln College of Law, said although these are important nominations, they might not have a drastic impact. “Both Rehnquist and O’Connor throughout their careers were moderate conservatives and most likely they will be replaced by the same,” Duncan said. He said Bush could leave his imprint on the future Supreme Court, though. Duncan said the possibility of the president also replacing Justice John Paul Stevens – who is 85 and considered by many to be the most liberal on the bench – could cause an ideological shift. “A Stevens replacement would be the most important,” Duncan said. Achelpohl hopes that whoever replaces the outgoing justices will practice stare decisis – the legal term used for following precedent – when confirmed. “That’s the underlying issue here: Will these new justices follow former court decisions or will they let their own ideology get in the way?” Achelpohl said. Duncan feels it would be in the best interest of the country to de-politicize the process. “I mean, these people are supposed to be interpreting the law for all Americans,” Duncan said.

Commendable deference to legislature's role from NebApp in custody case

Courts will declare Legislators to be policy makers when necessary. Neb App refuses to adopt a policy generally favoring joint custody without direction from the Unicameral. Spence v. Bush, 13 Neb. App. 890 Filed September 6, 2005. No. A-04-1487. Custody ruling affirmed in Lancaster County District Court over father's urging policy favoring joint custody. "Joint custody is not favored by the courts of this state and will be reserved for only the rarest of cases. Under Neb. Rev. Stat. § 42-364 (Reissue 2004), joint custody remains disfavored to the extent that if both parties do not agree, the court can award joint custody only if it holds a hearing and makes the required finding.Under current Nebraska law, there is no presumption in favor of joint custody.Public Policy. It is the function of the Legislature through the enactment of statutes to declare what is the law and public policy of this state. "It is the function of the Legislature through the enactment of statutes to declare what is the law and public policy of this state. Clemens v. Harvey, 247 Neb. 77, 525 N.W.2d 185 (1994). Bush’s argument—contending that a presumption of joint custody should be adopted—must be addressed to the Legislature rather than to this court."

NebApp upholds license suspension over objection that policeman making initial stop did not testify

Nebraska Court of Appeals holds that a properly prepared sworn report from the arresting officer presents prima facie case for license suspension and even if rules of evidence applied to admin revocation hearing the driver must rebut report. NebApp reverses Douglas County ruling that reinstated drivers licenseScott v. State, 13 Neb. App. 867 Filed September 6, 2005. No. A-04-710. Omaha Police officer stopped the defendant for erratic driving. The officer requested another policeman complete the DWI arrest so he could respond to an assault call. The second officer prepared the sworn report necessary to revoke the driver's license. The driver requested a hearing with evidence rules to apply and lost. The District Court reversed stating the first officer should have testified as to the drivers intoxication. The Court of appeals reverses: "The sworn report of the arresting officer shall be received into the record by the hearing officer as the jurisdictional document of a license revocation hearing, and upon receipt of the sworn report, the director of the Department of Motor Vehicles’ order of revocation has prima facie validity."the offer by the Department of Motor Vehicles of a sworn report at a license revocation hearing establishes the department’s prima facie case and the burden shifts to the driver to refute such evidence.The sworn report offered at a license revocation hearing must state (1) that the person whose license is at issue was arrested as described in Neb. Rev. Stat. § 60-6,197(2) (Supp. 2003) (upon reasonable grounds to believe such person was driving under the influence), and the reasons for such arrest; (2) that the person was requested to submit to the required test; and (3) that the person submitted to a test, the type of test to which he or she submitted, and that such test revealed the presence of alcohol in a concentration of .08 of 1 gram or more per 100 milliliters of blood or per 210 liters of breath.

Effective date for 2005 unicameral legislation is Sunday 9-4

Ephedrine restrictions, drunk driving laws, sexual assault, unemployment compensation have new laws; September 3, 2005 New Nebraska laws take effect Sunday WORLD-HERALD BUREAU the most prominent bill, 117 imposes substantial regulations on pharmacies and stores that sell over the counter allergy medications. and nebraska kept saying it is probusiness. LINCOLN - The shelves in the Falls City Pharmacy that once held relief from colds, allergies and sinus headaches are bare now. Photocopies of the boxes of Sudafed, Claritin-D and other pseudoephedrine medications are now taped below the empty spaces on the shelves. A sign tells customers to ask staff if they want the nonprescription products. It's been that way since early August at the store across the street from the Richardson County Courthouse, said Howard Jochum, a staff pharmacist. Starting Sunday, such products will disappear from open store shelves across Nebraska as a new law aimed at battling methamphetamine takes effect. The anti-meth law is one of several bills passed by the Legislature this year that are kicking in Sunday. Among them are new laws allowing Nebraska felons to regain voting rights, authorizing all-mail elections in small counties, getting tougher on repeat drunken drivers and helping get unused cancer drugs to those who could use them. Legislative Bill 117 requires that pseudoephedrine, a key meth-making ingredient, be sold from behind the counter or kept in a locked cabinet. The law requires purchasers to be 18 or older and show government-issued photo identification to buy the medication. It limits purchasers to no more than 1,440 milligrams - about 48 doses - in a 24-hour period. Jochum said the Falls City store restricted access to pseudoephedrine products a month early so people could become accustomed to the change. Despite the inconvenience, he said, customers have been understanding. "They're willing to make a small sacrifice to make this corner of Nebraska safer. Most people are aware of the problems we've been having with meth," he said. LB 117 also increases penalties for meth cookers and sellers, making the penalties the same as for equal amounts of cocaine. Several changes in state voting laws take effect Sunday as well. One law, passed over Gov. Dave Heineman's veto, restores voting rights to felons two years after they finish their sentences. A second allows counties with fewer than 7,000 residents to conduct elections entirely by mail. Voting at satellite sites, such as shopping malls or local festivals, could be tried under a third new law. Yet another one changes the name of absentee ballots to "ballots for early voting." Under other laws taking effect: • People who repeatedly drink and drive could face stiffer penalties under the new crime of aggravated driving under the influence. The crime is a Class I misdemeanor, which carries a mandatory 30 days in jail with a 1 year maximum. Repeat offenders also will have their driver's licenses revoked for up to 15 years. Judges will have to impound or revoke the licenses of drunken drivers, instead of suspending them. • Workers who quit their jobs without good cause or who are fired for misconduct will have to wait longer to qualify for unemployment benefits. The law also freezes maximum benefits and increases unemployment insurance taxes to improve the fiscal health of the state's unemployment insurance trust fund. • The Nebraska State Patrol will set up a clearinghouse of information about missing people, both adults and minors. The law requires the State Patrol to set up an Internet site and a toll-free phone line and issue monthly bulletins. • People renovating historic properties could qualify for a property tax break on the property for up to eight years. • First- or second-degree sexual assault no longer will have a statute of limitations, and medical personnel will be required to report sexual assault to law enforcement. • Church members, school volunteers and others cooking food at home for charitable fundraising events won't have to worry about being licensed as food establishments - as long as their contributions are labeled as being from a home kitchen. • The state will create a registry of doctors, pharmacies and others who have agreed to accept unused cancer-fighting drugs donated by one patient for use by others. • Dying and permanently incapacitated prison inmates, except those with sentences of death or of life imprisonment, can be granted medical parole.

Environmental Land Trust irks Nebraska Cattlemen

Ranchers need land for financing and growth, Environmental Trust is acquiring properties that ranchers may not use; ranchers favor using easements for conservation efforts; bankers wont loan money on nice sunsets and pretty flowers WORLD-HERALD September 6, 2005 The Nebraska Cattlemen have called for an end to the Nebraska Environmental Trust's land-purchasing partnerships with nonprofit groups. Conservationists say doing so would hinder preservation of natural habitat. The cattlemen's group has approved a resolution advocating a change in state law so that Environmental Trust funds for land purchases would be available only to government entities, said Craig Utter, a Sand Hills rancher. Utter heads a cattlemen task force studying the trust's land practices. The Environmental Trust was created in 1992. It uses lottery money to protect natural resources. Public-private partnerships and land conservation are included in its legislative mandate. The other major player using state money to buy land is the Nebraska Game and Parks Commission, which spent about $12 million on land from 1994 to 2004, said Rex Amack, director. During its first 10 years, from 1994 to 2004, the trust awarded about 20 percent of its grants, $15.5 million, for land acquisition and easements. About 45,000 acres were set aside. Most of the money was funneled through groups such as the Audubon Society, Ducks Unlimited and the Nature Conservancy. The groups have bought prairie near Lincoln, wetlands in the Rainwater Basin and ranch land in the Sand Hills. Utter said the competition for land worries ranchers. "It's not that we're targeting nonprofits, or that we think they're bad," he said. "There are other alternatives. We want to move away from acquisition as the primary source of land conservation." Scottsbluff banker Hod Kosman said the trust had been essential to conserving land. Kosman heads a Panhandle group that has used about $2 million in trust money to buy habitat along the North Platte River. "Protecting significant areas of wild resources would essentially come to an end without the Environmental Trust," he said. Utter's task force is studying the trust to learn more about it, to improve communication between the groups and to address conflicting Cattlemen policies. The resolution concerning the trust isn't compatible with previous Cattlemen policy opposing the use of government money to buy land. The task force is expected to report its findings at the Cattlemen's annual meeting in December. Whatever it concludes, Utter and Michael Kelsey, executive vice president, said they anticipate the organization will remain opposed to use of trust funds for land purchases by nonprofit groups. Utter said the Cattlemen also want to encourage Game and Parks and groups such as the Nature Conservancy to move away from land purchases. The issue goes beyond whose name is on a deed, he said. Land ownership is the lifeblood of rural communities. Without families on the land, there aren't children in the schools or people to support merchants in small towns. Land ownership also provides the equity ranchers need to borrow money. Utter said competition for land drives up the cost and makes it tougher for young ranchers to get started. So far, he has not found an instance when the Trust has contributed to the problem. Rather, he said, the Cattlemen want to head off problems. "Anytime you have competition in the marketplace, things are more difficult," he said.Conservationists say the purchases are no threat because the amount of land involved is miniscule. Grants from the Environmental Trust have been used to buy less than 0.08 percent of the state's land. Vince Shay of the Nature Conservancy said land acquisition is sometimes the best answer for protecting the biological diversity of a piece of land. "It helps us influence management decisions in key locations," he said. "If we want to protect the ecological integrity of an area such as the Central Platte, we need to do it." Kosman said land should be purchased now for preservation, before encroaching development makes it unaffordable. "Time is of the essence," he said. Utter sees it differently. Because the vast majority of Nebraska land is privately owned, he said, it makes the most sense to partner with landowners. "We're not out to stop conservation. Cattlemen are concerned about conservation and natural resources. It's very much part of our lifeblood," he said. Utter said easements and partnerships are better tools. Through easements, conservation organizations pay a landowner to restrict use of his land, with the restriction attached to the deed. Partnerships also leave land in private hands, while providing public money to rehabilitate the land. Kosman said the cattlemen's group needs to be taken seriously. "If organizations like the Cattlemen perceive that we're doing things that aren't in the best interest of the state, through the Environmental Trust, then that's really important," he said. The trust, too, is evaluating its land policies. In interviews, three members of the 14-person trust board said they believe it's important to partner with private groups to buy land. Amack, Robert Ravenscroft, a former rancher, and Barbara Batie, a farmer, said the state gets more for its money because the groups attract additional grants. They also take responsibility for the land. Ravenscroft and Batie are members of the Cattlemen. Ravenscroft said the two groups can come to a consensus. "I don't see this as something that should evolve into a big fight," he said. "This is something we'll work out

AttyGen files State brief in Citizens for Equal Protection v Bruning

Update: State of Nebraska's brief now onlineFollow up: State appealed Federal Judge Bataillon's ruling in May that the Nebraska Constitutional Amendment against recognition of gay marriages or partnerships violated constitutional provisions. The Associated Press Nebraska Attorney General Jon Bruning argued Thursday that Nebraska’s ban on gay marriage should be restored. In a 110-page brief filed with the 8th U.S. Circuit Court of Appeals, Bruning said that U.S. District Judge Joseph Bataillon was wrong to strike down Nebraska’s 5-year-old ban. Bataillon ruled in May that the measure was too broad and deprived gays and lesbians of participation in the political process, among other things. Seventy percent of Nebraska voters approved the amendment in 2000. The ban “does not violate any person’s freedom of expression or association,” Bruning wrote. Opponents of the ban “are free to gather, express themselves, lobby, and generally participate in the political process however they see fit,” he said. “Plaintiffs are free to petition state senators to place a constitutional amendment on the ballot. Plaintiffs are similarly free to begin an initiative process to place a constitutional amendment on the ballot, just as supporters ... did.” Bataillon’s ruling did nothing to change the status of gay marriage in Nebraska. It was not allowed before the ban’s adoption and it remains against the law. The lawsuit challenging the ban was filed by New York-based Lambda Legal and the ACLU’s Lesbian and Gay Project. David Buckel, senior staff attorney at Lambda Legal, has called the ban “the most extreme anti-gay family laws in the nation.” Forty states have so-called “Defense of Marriage” laws. Opponents of gay marriage have pointed to Bataillon’s ruling as a reason to seek a national ban. While the amendment specifically banned gay marriage, it went further than similar bans in many states by prohibiting gay couples from enjoying many of the legal protections that heterosexual couples enjoy. Gays and lesbians who work for the state or the University of Nebraska system, for example, were banned from sharing health insurance and other benefits with their partners. Bataillon said the amendment interferes not only with the rights of gay couples but also with foster parents, adopted children and people in a host of other living arrangements. The judge said the ban amounted to punishment by going beyond merely defining marriage as between a man and a woman, noting that it also says the state will not recognize two people in a gay relationship “similar to marriage.” Bruning said “the presence of advocacy groups willing to file this case seems ample evidence that advocacy has not been impaired.” “Plaintiffs’ members enjoy all the benefits and protections of Nebraska law that any other person has,” Bruning said. “Their homosexual members have the same right to lobby for change as their heterosexual members.” —— Attorney General: http://www.ago.state.ne.us/ State of Nebraska'sbrief on line at 8th Circuit Court of appeals: U.S. District Court of Nebraska: http://www.ned.uscourts.gov/ Lambda Legal: http://www.lambdalegal.org/ Opposition to rights for same-sex couples: http://www.family.org

Another reminder that interstate sales taxes just around the corner

follow up: October 2005 deadline nearer for implementing interstate sales tax program Come fall, states expand push for sales taxes on Internet purchases By Robert Tanner / AP National Writer Going online to buy the latest bestseller or those photos from summer vacation may be tax free for most people today, but it won't last forever.Come this fall, 13 states will start encouraging -- though not demanding -- that online businesses collect sales taxes just as Main Street stores are required to do, and more states are considering joining the effort. Right now, buyers are expected to pay sales taxes on Internet purchases themselves directly to the state when they pay their income taxes. But it's not widely enforced, and states say it costs them upwards of $15 billion a year in lost revenues, collectively. "Taxes that it was difficult to collect before will now be collected. And consumers will pay that," said David Quam at the National Governors Association, helping lead the five-year effort that brought together state revenue officials, legislators and business leaders. The question of taxing Internet sales has been in limbo since the dawn of the computer era, when the only issue was catalog sales across state lines. A 1992 U.S. Supreme Court ruling forbids states from forcing a business to collect their sales taxes unless the company has a physical presence in the affected state. The court noted the dizzying array of tax jurisdictions and widely varying definitions of taxable goods, such as fast food versus groceries. Organizers of the states' effort, known as the Streamlined Sales Tax Project, sought to unify tax rules and definitions among the states. They hope to persuade federal lawmakers to pass a new law to overcome the Supreme Court ruling and allow states to take the next step -- demanding online companies levy the taxes. But many businesses are skeptical. Some worry about the complexity of tax rates that vary from city to county to state, others the cost of collecting the taxes. The states' project attempts to answer those worries, but it hasn't eased all doubts. "Certainly at Amazon, we have no plans to volunteer," said Rich Prem, top tax official at Amazon.com Inc., the online giant with $7 billion in annual sales. The company will work with state and federal leaders, but will only start collecting state taxes "if you make it simple, if you make it fair," he said. The Direct Marketing Association, a trade group that represents many Internet and catalog sellers, says the effort is far too complex to work. The project organizers say they have taken significant steps to help businesses get on board. They created software that will automatically calculate the different taxes for different states and for different items. They promised to pay for special "service providers" that could bill customers, file and pay taxes to the states, and free companies from audit liabilities. To be accepted as part of the project, a state must change its tax laws to match up with the others. So far, 13 states have come far enough to be part of the project. Five more are approved to join within the next few years, and others have made partial steps. The process wasn't easy. Among the issues to be answered: If candy is taxed but food isn't, what is candy? And what is food? Is a Twix cookie bar candy or food? The solution: anything with flour is food, not candy. "We had to come up with a bright line," said Diane Hardt, Wisconsin's tax administrator and a co-chair of the project. They had originally considered defining all candy as food -- but that would have caused a loss of about $20 million a year in Wisconsin sales taxes and closer to $200 million in Texas, she said. There were a host of other questions affecting state budgets, manufacturers and buyers. Decisions ran across a huge assortment of goods, from fruit juices to tea, to cloth diapers, to mobile classrooms and farm equipment. The states are offering businesses a promise -- and an implicit threat. If businesses register and start collecting taxes this year, they're given a yearlong amnesty from the possibility that states may seek back taxes for online purchases. "I wouldn't be surprised if the biggest effect comes at the end of the 12 months when businesses say 'I better take this opportunity while I can,'" said Hardt. The 13 states are Indiana, Iowa, Kansas, Kentucky, Michigan, Minnesota, Nebraska, New Jersey, North Carolina, North Dakota, Oklahoma, South Dakota, and West Virginia. Five that will be added in the next few years are Arkansas, Ohio, Tennessee, Utah and Wyoming. ------ On the Net: http://www.streamlinedsalestax.org/

Judges Kopf and Battailon clash over post Booker pre-sentencing reports

Disagreement between Nebraska Federal District Judges highlights probable Scotus review over use of presentencing reports following Booker decision By KEVIN O'HANLON / The Associated Press A disagreement between two federal judges in Nebraska over how to sentence criminals reflects a widening nationwide rift among judges, prosecutors and defense lawyers after the January US Supreme court decision Booker v United States. U.S. District Judges Joseph Bataillon of Omaha and Richard Kopf of Lincoln have filed disparate opinions regarding January’s high court ruling that struck down part of the nearly two-decade-old federal sentencing system.Justice Antonin Scalia predicted at the time that the ruling would “wreak havoc on federal district and appellate courts.” Douglas Berman, an Ohio State University law professor and sentencing expert, said judges across the nation are grappling with the ruling but that “we haven’t seen two opinions like this that are so dramatic in staking out their different approaches.” Prof Berman goes about Judge Battailon's maverick approach: "Judge Joseph Bataillon (who sits in Omaha) last week issued a significant decision on due process and burdens of proof in US v. Okai, 2005 WL 2042301 (D. Neb. Aug. 22, 2005), in which he decided that he should not base "any significant increase in a defendant's sentence on facts that have not been proved beyond a reasonable doubt." At issue is the degree of proof needed for evidence as a basis for increasing a defendant’s recommended sentence under the federal guidelines. Congress adopted the guidelines to make sure that sentences do not vary widely from judge to judge. The system assigns points to offenders based on a complicated formula that considers a crime’s severity, the defendant’s criminal history and other factors to determine the length of sentence. The high court said judges had been improperly adding time to criminals’ sentences. The ruling grew out of the court’s 2004 decision that juries — not judges — should consider factors that can add years to prison sentences. Blakely v Washington. The court said judges should consult the guidelines in determining sentences — but only on an advisory basis. But it did not clearly state what standard of proof must be satisfied to increase a defendant’s sentence. Bataillon issued his order last month in a case involving a man, Adu-Ansere Kwame Okai, who pleaded guilty to two charges in a counterfeiting case. Prosecutors and a presentence report offered information beyond what was stated in the charges to which Okai pleaded guilty. The report said the amount of fraud was over $14,000 and that he got the counterfeit bills outside of the United States — factors that would allow his sentence to be increased under the guidelines. Bataillon refused to increase the sentence. “The presentence report is not evidence and is not legally sufficient for making findings of fact on contested issues,” he said. “It can never be ‘reasonable’ to base any significant increase in a defendant’s sentence on facts that have not been proved beyond a reasonable doubt.” Reasonable doubt “is generally termed as something more than a preponderance of the evidence but less than an absolute certainty,” according to legal dictionaries. In a memorandum Kopf had filed this week in all of his pending criminal cases, he outlined what he called “the legal weakness” of Bataillon’s ruling. Judge Kopf's brief memorandum, which pulls no punches, can be downloaded below. Here are some highlights:

In the non-death-penalty context, I respectfully disagree with [Judge Bataillon's]
 assertion that the Fifth Amendment requires a judge to find facts beyond a
reasonable doubt when sentencing a defendant who has been previously found guilty
after a trial or a plea that complies with Constitutional requirements. 
Nothing in Booker, Blakely, or Apprendi compels or justifies such an assertion.
Indeed, one need only read the cases Judge Bataillon cites to recognize the
legal weakness of his views. Once the ordinary criminal has been found guilty by
plea or trial that complies with the Constitution, there is no applicable precedent
for cloaking an undisputably guilty person with the Constitutional protections
intended for the innocent. If the Fifth Amendment is to be expanded beyond any
currently recognized legal boundaries, that decision should be left to the
Court of Appeals or the Supreme Court, bodies far better suited than
individual district judges to "discovering" new Constitutional rights. Booker
and its (tangled) predecessors do not provide a legitimate invitation for district
 judges to implement their personal policy views about proof standards.
See, e.g., United States v. Pirani, 406 F.3d 543, 551 n.4 (8th Cir. 2005) (en banc)
 ("Nothing in Booker suggests that sentencing judges are required to find sentence
-enhancing facts beyond a reasonable doubt under the advisory Guidelines regime.").
In the end, and while what Judge Bataillon proposes may be good policy (although I
doubt it), his newly discovered Constitutional right to "proof beyond a reasonable
doubt" at sentencing is like the mythological chimera (a fire-breathing she-monster
 with a lion's head, a goat's body, and a serpent's tail).  It is the product of an
agile mind, but it has no claim to the here and now.
Bermansaid he expected the issue to eventually reach the U.S. Supreme Court.
And apparently is excited about throwing the federal criminal justice
system into utter turmoil. 

NebAPP allows appointed counsel for county court conviction up to District Court and no further

Indigent defendant is entitled to court appointed counsel or the public defender through first level of appeal and no further; in case of county court cases, the first appeal allowing court appointed counsel is the District Court. State v. Hughan, 13 Neb. App. 862 8-30-2005. No. A-05-039. The Nebraska Constitution and US Constitution provide free counsel for first level appeal, but no further In Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963), the U.S. Supreme Court held that in first appeals as of right, states must appoint counsel to represent indigent defendants. Douglas however does not extend to discretionary appeals. Douglas did not extend to discretionary appeals to a state’s highest court. Ross v. Moffitt, 417 U.S. 600, 94 S. Ct. 2437, 41 L. Ed. 2d 341 (1974). Neb. Rev. Stat. § 25-2728 (Cum. Supp. 2002) confers upon a defendant in a criminal case the right to appeal from the final judgment of the county court to the district court of the county where the county court is located; the district court acts as an intermediate appellate court, rather than as a trial court. Neb. Const. art. I, § 23, confers the right to appeal to the Nebraska Court of Appeals or to the Nebraska Supreme Court, as provided by the Legislature. The right to appointed counsel extends to the first appeal as of right, and no further, agreeing with the Ohio case State v. Buell, 70 Ohio St. 3d 1211, 639 N.E.2d 110 (1994)that holds appointed counsel shall handle the first level of direct appeal, even though the courts have higher levels of review available.

Neb App attempts to clarify rule for newly discovered evidence

Court of appeals notes apparent inconsistency in Nebraska Supreme Court case State v. Atwater and concludes that when Prosecutor witholds material evidence of guilt or innocence the defendant shall have a new trial if the newly discovered evidence would have injected a "reasonable doubt of guilt."State v. Lykens, 13 Neb. App. 849 Filed August 30, 2005. No. A-04-844. Robbery conviction reversed because Court of Appeals finds witheld police interview of alternate suspect qualified as newly discovered evidence that would warrant a new trial under 29-2101 and the Constitutional rule of US v Augurs. The Court of appeals holds that police interview of another suspect that the county attorney did not disclose until after the trial to the defendant met the definition of "newly discovered evidence" in Section Neb. Rev. Stat. § 29-2101 (Cum. Supp. 2004): A new trial, after a verdict of conviction, may be granted, on the application of the defendant, for any of the following grounds affecting materially his or her substantial rights: . . . (5) newly discovered evidence material for the defendant which he or she could not with reasonable diligence have discovered and produced at the trial . . . . "the (alternate suspects) interview transcript was first seen by the defense after the trial, when it was included in the presentence investigation report. In light of this, we conclude that the transcript of the interview with Joseph Brainard does constitute newly discovered evidence because it is evidence material to the defense that could not with reasonable diligence have been discovered and produced in the prior proceedings." The standard for allowing a new trial for any newly discovered evidence in a criminal trial under statute § 29-2101 (Cum. Supp. 2004) is: if the evidence had been admitted at the former trial and would probably have produced a substantially different result, the court should order a new trial. State v. Boppre, 243 Neb. 908, 503 N.W.2d 526 (1993).State v. Atwater, 245 Neb. 746, 752-53, 515 N.W.2d 431, 435 (1994). The constitutional standard for allowing a new trial for evidence the defense newly discovers but which the state had witheld is: if the omitted evidence creates a reasonable doubt of guilt that otherwise did not exist, the error violates the defendant's constitutional right to a fair trial and he must have a new trial; the standard is not probable acquittal. [United States v.] Agurs, [427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976); State v. Atwater, 245 Neb. 746, 752-53. The Appeals Court concludes that the "substantially different result" standard from 29-2101 is harder to meet than "creating a reasonable doubt of guilt." Therefore the Nebraska Supreme Court concludes that 29-2101 must incorporate both a standard that requires reversal when withheld evidence injects "reasonable doubt" of guilt while reserving the "substiantially different result" standard for newly discovered evidence that law enforcement had not possessed. "A careful reading of Atwater, supra, indicates that the Nebraska Supreme Court intended to make it easier, not harder, for defendants to be granted a new trial based on newly discovered evidence when that evidence is withheld by the prosecution. Because a literal reading of Atwater would produce an unreasonable result, we interpret the Nebraska Supreme Court’s opinion to mean that in cases when the evidence alleged to be newly discovered was withheld by the State, a defendant is entitled to a new trial if the omitted evidence could have created a reasonable doubt that he or she committed the alleged crime or crimes." The Appeals Court opinion does not state whether the "injecting reasonable doubt" standard is equivalent to the Strickland v Washington "reasonable probability of a different outcome test":for the required showing of prejudice, the proper standard requires the defendant to show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. See earlier post on the Supreme Courts adopting the substantially different outcome test for evaluating DNA testing claims for new trial in State v ElTabech

Union Pacific wins appeal in fair employment practices case dismissal

Plaintiff failed to prove disparate treatment in discharge from Union Pacific Railroad; While Plaintiff made prima facie case of retaliation for complaining about females' sexual comments he failed to rebut employers evidence of legitimate non-discriminatory motive for firing him; Douglas county District court summary judgment ruling affirmed. Helvering v. Union Pacific RR. Co., 13 Neb. App. 818 Filed August 30, 2005. No. A-04-266. Plaintiff's allegation that female employees suffered no consequences from telling sexual jokes at work while he did did not create a disparate impact claim for him. UP demonstrated leigitimate nondiscriminatory reason for firing plaintiff because he was subject to a harassment claim himself; while proving motive is subjective, plaintiff did not overcome hurdle on summary judgment of proving the falsity and improper motive of the employer's proffered reason for firing him. Unspecific suggestion that company wanted to fire older employees insufficient to prove motive. he Nebraska Fair Employment Practice Act (FEPA), Neb. Rev. Stat. §§ 48-1101 to 48-1126 (Reissue 2004), furthers “the policy of [Nebraska] to foster the employment of all employable persons in the state on the basis of merit . . . and to safeguard their right to obtain and hold employment without discrimination.” § 48-1101. FEPA is patterned from that part of the Civil Rights Act of 1964 contained in 42 U.S.C. § 2000e et seq. (2000), and it is appropriate to look to federal court decisions construing similar and parent federal legislation. See, Airport Inn v. Nebraska Equal Opp. Comm., 217 Neb. 852, 353 N.W.2d 727 (1984); The plaintiff bears the burden to first prove to the fact finder by a preponderance of the evidence a prima facie case of discrimination. See, Texas Dept. of Community Affairs v. Burdine, supra; Rose v. Vickers Petroleum, supra. If the plaintiff proves a prima facie case, the defendant has the burden to articulate a legitimate nondiscriminatory reason for the employment decision to rebut the inference of discrimination raised by the plaintiff’s prima facie claims. See id. Once the defendant produces such a reason, the plaintiff then has the burden to prove by a preponderance of the evidence that the legitimate reason offered by the defendant was but a pretext for discrimination. See id. At all times, the plaintiff retains the ultimate burden of persuading the fact finder that he has been the victim of intentional impermissible conduct. See id. This same analysis has also been referred to as the “McDonnell Douglas test,” applied in disparate treatment cases. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973) It is now incumbent upon an employee to prove not only falsity of the proffered reasons given by the employer, but also that discriminatory motive was the true reason for the discharge. See id. See, also, Ventura v. State, 246 Neb. 116, 517 N.W.2d 368 (1994). The trier of fact may rely on inferences rather than direct evidence of intentional acts, but intent must be proven by a preponderance of the evidence, whether direct, circumstantial, or otherwise.St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993), Although we conclude that Helvering satisfied his burden of adducing sufficient evidence to demonstrate a prima facie case of discrimination, we conclude that UP demonstrated a legitimate nondiscriminatory basis for terminating Helvering’s employment and that Helvering failed to satisfy his burden of demonstrating that the proffered basis was merely pretextual. The court did grant plaintiff the benefit of the doubt that the retaliation against him was close enough to his complaining about females' language that the two were connected: Notwithstanding the district court’s contrary statement that Helvering’s allegation of a causal connection was “unsupported,” the district court appeared to recognize that Helvering had demonstrated a sufficient causal connection by demonstrating the very close temporal proximity between the allegedly protected activity and the adverse employment action. We conclude that the district court improperly resolved genuine issues of fact concerning the causal connection between the allegedly protected activity and the adverse employment action. Nonetheless, it is apparent that the district court implicitly found that Helvering had satisfied his burden to demonstrate a prima facie case of discrimination, at least sufficiently so to survive summary judgment. However even giving the plaintiff the benefit of the doubt as to his prima facie case against UP for retaliation, UP satisfied its burden on summary judgment which the plaintiff failed to rebut with evidence proper for a summary judgment hearing: Because UP demonstrated a legitimate nondiscriminatory basis for terminating Helvering’s employment, it became Helvering’s burden to demonstrate that the proffered basis was merely pretextual. See, Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981); Rose v. Vickers Petroleum, 4 Neb. App. 585, 546 N.W.2d 827 (1996). We agree with the district court that Helvering failed to satisfy this burden, because he presented no evidence, other than the temporal proximity between the allegedly protected activity and the adverse employment action, to suggest that the real reason UP terminated his employment was discriminatory and not legitimate. It is now incumbent upon an employee to prove not only falsity of the proffered reasons given by the employer, but also that discriminatory motive was the true reason for the discharge. See id. See, also, Ventura v. State, 246 Neb. 116, 517 N.W.2d 368 (1994). The trier of fact may rely on inferences rather than direct evidence of intentional acts, but intent must be proven by a preponderance of the evidence, whether direct, circumstantial, or otherwise. See, Texas Dept. of Community Affairs v. Burdine, supra;mith v. Allen Health Systems, Inc., 302 F.3d 827 (8th Cir. 2002), the court specifically held that although temporal proximity may be sufficient to demonstrate a prima facie case of discrimination, temporal proximity alone is not sufficient to satisfy the burden to show pretext Helvering failed to satisfy the heightened burden of proof required to demonstrate pretext or intentional discrimination.CONCLUSION The district court did not err in granting UP summary judgment on Helvering’s retaliation claim, Helvering’s gender discrimination claim, and Helvering’s age discrimination claim. Helvering failed to satisfy his burden of proof with respect to each of the claims, and UP was entitled to a judgment as a matter of law on each. The order of the district court granting UP summary judgment on each of the claims is affirmed.

No NESCT decisions today

No Nebraska Supreme Court decisions today; this is the 3rd consecutive week of no decisions--nice summer break for the hard working Justices.

Omaha Police Uniion takes free speech case against Omaha to Industrial Relations Commission

September 2, 2005 Omaha Police Union takes City of Omaha to Nebraska Industrial Relations commission in free speech dispute WORLD-HERALD The Omaha Police Union has filed a lawsuit asking a state commission to intervene in a dispute with the city and Police Chief Thomas Warren over union members' rights of expression. Internal investigations of two union members and an inability to resolve differences with Warren were named in the lawsuit as evidence that union members' expression of opinion has been "chilled," which is a violation of Nebraska's Industrial Relations Act, the lawsuit states."Our members should be able to freely express opinions in meetings or newsletters without fear of administrative censorship and retaliation," said Aaron Hanson, the police union president. The lawsuit against Warren and the City of Omaha was filed Wednesday with the Nebraska Commission of Industrial Relations, an administrative agency with quasi-judicial powers. According to the lawsuit, it was inspired by three events: • An internal affairs investigation, opened in December, into Sgt. Tim Andersen's comments at a police union meeting. It was alleged that Andersen, in response to a question, urged officers to violate standard operating procedures to answer radio calls in a way that would inflate police response times. Andersen, the union president at the time, contended that he was merely answering a question. The investigation found that Andersen didn't violate standard operating procedures. • The firing of Sgt. Kevin Housh in March after he wrote an article in the union newspaper, the Shield, that was critical of the chief and the mayor and ridiculed the investigation of Andersen. Housh regained his job after apologizing and dropping a lawsuit challenging his dismissal. • A warning issued by Warren when he met with Hanson and the union's vice president, Chris Circo, on Aug. 22 to discuss past interference with what members said at union meetings or expressed in the Shield. Warren said that he would take the same action again in similar situations. Furthermore, Warren said he would take action against anyone overseeing the Shield who allowed disrespectful and false articles to be printed. The union has asked the commission to order appropriate remedies that will give union members assurance to express their opinions at union meetings or in articles for the union newspaper. Paul Landow, the mayor's chief of staff, called the lawsuit a "difference of opinion." "They are fighting for the right to call their superiors 'liars' and 'criminals,'" he said, referring to Housh's union article that used those terms in referring to the chief and mayor. "We don't feel that kind of disrespectful rhetoric is useful or productive." Hanson said the lawsuit was filed after he was unable to resolve the issues with Warren during a meeting within the past 10 days. The union's attorney, Thomas Dowd, requested that the city provide the following materials for inspection: Andersen and Housh's internal investigation files and documentation concerning Warren's review of police officers' articles submitted for publication in the Shield.

Iowa Atty Disciplinary Commission recommends mere suspension for attorney who embezzled client funds

Incredible: Iowa Attorney Disciplinary Commission recommended mere 3 year suspension for Council bluffs attorney who was caught embezzling a client's $100,000 settlement fund, subject however to approval from the Iowa Supreme Court. WORLD-HERALD STAFF WRITER A Council Bluffs attorney could lose his law license for three years after admitting to taking nearly $100,000 from a client. The case goes back to 2000, when Michael Reilly represented a family whose 2-year-old son was attacked by a neighbor's rooster, according to a complaint filed with the Grievance Commission for the Iowa Supreme Court. The boy's family agreed to settle the case for $137,500, the complaint says. The money was deposited into a trust account for Reilly's firm, Reilly, Petersen, Hannan and Dreismeier. After Reilly's fees and other expenses were deducted, about $100,000 was left for the boy's family, the complaint says. Over two months, Reilly withdrew the balance of the money, the complaint says. He concealed the misappropriation by falsifying his firm's records. Reilly later tried to replace the money by writing bad checks, the complaint says. He eventually made restitution to his bank. Reilly admitted to the Grievance Commission that he took the money to pay gambling debts, according to an order filed last week by the commission. Given that Reilly had been a reputable and responsible lawyer up until he took the money and that the likelihood of him committing similar acts in the future is low, the commission recommended that his law license be suspended for three years. The Supreme Court probably will decide in about four or five months whether to uphold the recommendation, said Charles Harrington, ethics administrator for the court's board of professional ethics and conduct.