Nebraska Supreme Court upholds Internet enticement law and rejects defendant's challenge to Section § 28-320.02 RRS Neb. on equal protection, free speech, over breadth and vagueness grounds. State v. Rung, S-08-878, 278 Neb. 855 "Defendant appeals his conviction for use of a computer to entice a child or a peace officer believed to be a child for sexual purposes, a violation of Neb. Rev. Stat. § 28-320.02 (Reissue 2008). Defendant challenges the constitutionality of § 28-320.02 and asserts that his sentence is excessive. We reject Defendant’s constitutional challenges, and we affirm his conviction and sentence. Defendant asserts no suspect classification and because the statute does not jeopardize a fundamental right, the classification in § 28-320.02 is subject to a rational basis review for equal protection purposes. When a classification created by state action does not jeopardize the exercise of a fundamental right or categorize because of an inherently suspect characteristic, the Equal Protection Clause requires only that the classification rationally further a legitimate state interest.§ 28-320.02, is geared toward enticement of minors to engage in sexual conduct that would violate specified statutes, and as such, § 28-320.02 does not jeopardize the fundamental right recognized in Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003). Defendant argued that § 28-320.02 is over broad because it targets speech regarding acts that would not otherwise be illegal. This argument, similar to his other arguments, is based on his misreading of the statute. Defendant lacks standing to challenge § 28-320.02 for vagueness

Late history professor from UNL, JM Sosin, exposed the false history activist judges have used to justify their existence in his book "The Aristocracy of the Long Robe." From the Choice review: “Sosin has written a perplexing book. ..On the basis of a survey of English practice and American Colonial case law and legal controversies, the author engages in a sometimes heated complaint against the emergence of a `Transcendently(sic) Omnipotent' Court' in opposition to the historical evidence that no precedent for such a Court can be found in English or Colonial American practice.

Senator Nelson must have been thinking about his buddies at the trap shooting range when he voted against scholarly totalitarian Cass Sunstein for his regulatory sinecure at the Office of Management and Budget. Good job Benator.

Nebraska Supreme Court rules against sign company that challenged city ordinances that prohibited displaying company's signs once its leases terminated with land owners. Larmar Co. v. City of Fremont, S-08-590, 278 Neb. 485. But the sign company beat a claim for frivolous case penalties because its attorneys were well prepared. "The district court properly concluded that when Lamar’s leases were terminated by their terms, Lamar’s rights with respect to the nonconforming use of the signs were extinguished and remained with the current landowner. Furthermore, Lamar lacked standing to raise its "as applied" and facial challenges to ordinance No. 4032 and the district court was not in error in granting summary judgment in favor of appellees on Lamar’s remaining claims. Further, the district court did not err in denying the cross-appellants’ request for attorney fees."

Text of Attorney General Jon Bruning's opinion concerning petition circulators and blockers who appear on private commercial property. Nebraska Attorney General's Office. The constitutional guarantee of free speech in Nebraska is found in art. I, § 5 of the Nebraska Constitution. However, the Nebraska Supreme Court has repeatedly and consistently held that the guarantee of freedom of speech under the Nebraska Constitution is the same as the guarantee of freedom of speech under the First Amendment to the United States Constitution. Pony Lake School District 30 v. State Committee for the Reorganization of School Districts, 271 Neb. 173, 710 N.W.2d 609 (2006); Dossett v. First State Bank, 261 Neb. 959, 627 N.W.2d 131 (2001); State v. Moore, 258 Neb. 738, 605 N.W.2d 440 (2000); Pick v. Nelson, 247 Neb. 487, 528 N.W.2d 309 (1995). .. While there are no Nebraska cases directly on point, we do not believe that art. I § 5 of the Nebraska Constitution creates a state constitutional right for petition circulators or “blockers” to remain on private property and continue their activities after the owner has asked them to stop.

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

The Nebraska Court of Appeals should have considered the defendant's ineffective counsel appeal because his challenge to the Nebraska terroristic threats statute was merit less.

State v. Nelson, S-06-449

Although defendant filed notice in his ineffective counsel appeal that he would allege that the Nebraska terroristic threats statute (28-311.01) is unconstitutional, the Nebraska Supreme Court holds the court of appeals should have heard the appeal. "(Defendant's) mere assertion that a statute may be unconstitutional does not automatically deprive the Court of Appeals of jurisdiction over the case. To conclude otherwise would amount to ceding the regulation of our docket, and that of the Court of Appeals, to the unsupported allegations of litigants. We find that for the constitutionality of a statute to be genuinely “involved” in an appeal,"

Eminent law prof blawgger applauds Nebraska Supreme Court's decision to maintain SNAFU status with sentencing guidelines. Sentencing Law and Policy Blog loves Nebraska's Justice League member Joe Bataillon, US District Court, and now William Connolly Nebraska Supreme Court for refusing to bow to pressure from the Legislature to introduce some sanity to sentencing decisions. Why if we had guidelines for drug dealers, then we might have to have guidelines for electrocuting murderers, Nigerian gang-bangers, and pedophile runt-rangers.

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

Finally a win for the dad: Nebraska Supreme Court (CJ Heavican) reverses Lincoln County District Judge Murphy's order for joint custody when neither party requested joint custody. Supreme Court finds parties have a due process right to have notice of potential rulings from the court. Zahl v. Zahl, S-06-1123Somehow the supreme court reversed the Learned Hand of the Plains, District Judge John Murphy. The parents disputed custody of their one child, born June 2004. They were married in July 2004. Father worked for Union Pacific running trains to Marysville Kansas. Mother worked for the sheriff's department. The parties separated only several months after the child was born, and mother had a child a few years older from a prior marriage, and at the time mother was in court disputing custody of that child. The court finally ordered joint custody but neither party had requested it, and at a schedule that apparently did not fit the father's railroad schedule well. Father appeals. Supreme Court reverses. When ordering joint custody under Nebraska statute § 42-364(5) (Cum. supp. 2006), a district court must specifically find that joint custody is in a child’s best interests. the district court failed to make that finding in the dissolution decree. Further, because neither party had requested joint physical custody, the evidence presented at trial was limited to which parent should have sole custody. We conclude that under this circumstance, the court must conduct a separate hearing on joint physical custody before ordering such, and that its order must specifically find that joint physical custody is in the child’s best interests. "A trial court’s authority under § 42-364(5) to order joint physical custody when the parties have not requested it must be exercised in a manner consistent with due process requirements...fundamental fairness requires that...when a trial court determines at a general custody hearing that joint physical custody is, or may be, in a child’s best interests, but neither party has requested this custody arrangement, the court must give the parties an opportunity to present evidence on the issue before imposing joint custody"

Since the Supreme court's plate is pretty full halting the death penalty, it avoids complete chaos and decides not to step into one of the school funding lawsuits. Nebraska Coalition for Ed. Equity v. Heineman, S-05-1357, 273 Neb. 531Justice Connolly backs off a little and a unanimous Nebraska Supreme Court agrees that whether the State is funding education equitably is a problem for the Unicameral and school districts, not the Courts. Still it's hard to keep this crusading Justice who is used to righting every wrong down. Note his peculiar lament in the concluding paragraph of his opinion: "The Nebraska Constitution (says education is the) Legislature's (job) and fails to provide judicially discernible and manageable standards for determining what level of public education the Legislature must provide (emphasis supplied.) This court could not make that determination without deciding matters of educational policy in disregard of the policy and fiscal choices that the Legislature has already made. Nor could we impose a constitutional standard of a “quality” education without ignoring the people’s clear rejection of that standard in 1996. We conclude, as the district court did, that the claims therefore present nonjusticiable political questions." The Omaha Schools funding lawsuit will proceed on equal protection grounds.

Follow up: SCOTUS Justice Alito denies Nebraska Attorney General's stay request from the Eighth Circuit's ruling against the Family Farm Amendment Initiative 300. Jones v Gale. SCOTUSBlog. Supreme Court Justice Samuel A. Alito, Jr., denied a request by Nebraska officials to delay a federal appeals court ruling against the state constitutional provision seeking to preserve family ownership of farms and ranches in the state after receiving the farmers' response.

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).

Follow up: Neb. AG appealing gay marriage ruling

Last month US District Court Judge Joe Bataillon ruled against the Nebraska "gay marriage" constitutional amendment. Nebraska Attorney General Bruning seeks review of the injunction against the gay marriage law from the 8th Circuit court of appeals. Both sides anticipate ending up at the US Supreme Court, which might be what they would like, because more rulings like this one sure are grist for the mills of the "Federal Gay marriage" amendment advocates. By the way under Bataillon's reasoning couldn't anyone who gets a little State Constitution rain on their parade challenge their forced exile from the democratic process, say corporate farmers and gamblers?