Ex-trooper with KKK ties may lose Nebraska law enforcement certificate. journalstar.com. The Nebraska Police Standards Advisory Council is recommending that law enforcement certification be revoked for Robert Henderson, who was fired by the state patrol for his ties to the Ku Klux Klan. Henderson asked the council on Wednesday to let him keep his certification so he can work as a law officer elsewhere in Nebraska. But the council voted to revoke his certification, citing his neglect of duty and his emotional incapacity. The decision goes to the Nebraska Crime Commission for approval. Henderson was dismissed in 2006 after it was discovered he had joined a racist group. He told an investigator he joined the Knights Party in June 2004. Henderson appealed his dismissal to the Nebraska Supreme Court, State v. Henderson, 277 Neb. 240 (2009) which upheld the firing. I didn't know that practicing your first amendment rights off duty adversely affected your attention to duties and emotional capacity.

Nebraska Supreme Court affirms Seward County District Court's dismissal of landowner's suit for lacking standing against the Nebraska Game and Parks Commission in which plaintiff tried to force the Game and Parks Commission to halt power line construction over the Twin Lakes Recreation Area. State ex rel. Reed v. State, S-08-1261, 278 Neb. 564. A proposed power line project over the Twin Lakes area would allegedly disturb the livelihood of the the Western Prairie Fringed Orchid, which has been identified as a "threatened and/or endangered species" by the U.S. Department of the Interior and the State of Nebraska. Plaintiff sought to impose upon NGPC his opinions regarding the administration of the state’s wildlife management areas. By law, NGPC is charged with this responsibility. See § 37-336. Plaintiff's claim that NGPC has breached its duties does not give Plaintiff the right to seek relief in the courts. Such concerns are better left to the policy decisions of the legislative and executive branches. Certainly, the public has a right to influence NGPC’s policies regarding the administration of the state’s wildlife management areas. However, the mechanism for doing so is through our representative form of government, and not through the courts. See Ritchhart v. Daub, 256 Neb. 801, 594 N.W.2d 288 (1999). Plaintiff has not shown that he has standing to bring the action."

Why are the members of the Nebraska Pardons Board having to take countless pardon applications for minor crimes? Simple, the Nebraska Supreme Court said so. Journalstar.com See also State v. Bainbridge, 249 Neb. 260, 543 N.W.2d 154 (1996).

Nebraska Constitution » IV-13

Board of parole; members; powers; reprieves; proceedings; power to pardon; limitations "The Governor, Attorney General and Secretary of State, sitting as a board, shall have power to remit fines and forfeitures and to grant respites, reprieves, pardons, or commutations in all cases of conviction for offenses against the laws of the state, except treason and cases of impeachment. The Board of Parole may advise the Governor, Attorney General and Secretary of State on the merits of any application for remission, respite, reprieve, pardon or commutation but such advice shall not be binding on them."

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.

Nebraska Unicameral in its wide-ranging judiciary bill LB1014 helps out "public service" lawyers by initiating a loan forgiveness program for attorneys who join public advocacy organizations. Nebraska Unicameral. This will help cure the crying need we have in this state for more lawyers to sue the State every time the Legislature tries to trim a little fat from social services programs or when an illegal alien stubs his toe during an ICE raid. The initial maximum replacement loan amount shall be $6000 per year for "fulfill(ing) the purposes of recruiting and retaining public legal service attorneys in occupations and areas with unmet needs, including attorneys to work in rural areas and attorneys with skills in languages other than English." Where was this program when State Senator Nantkes was finishing law school?

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

Nebraska Supreme Court allows Department of health and Human Services to use 1972 cost figures when allowing nursing home operator to claim depreciation reimbursement although existing operator acquired facility in 2000. Belle Terrace v. State, S-06-876, 274 Neb. 612. The Lancaster County District Court agreed with Tecumseh nursing home operator that it could use cost figures from 2000 to claim depreciation reimbursement from Medicaid for a building that was built in 1972 because the nursing home did not use the structure for its facility until 2000. Nursing home argued and the District Court agreed that the structure was not in existence before 1974, an interpretation in line with federal Medicare regulations. Nebraska Supreme Court reverses; when the Nebraska Department of Health and Human Services declines to follow federal regulations, the departments interpretation of an unambiguous term, in this case "in existence" prevailed over an interpretation the nursing home assumed applied because if this were a Medicare case, the nursing home would have won.

Nebraska Department of Health and Human Services' appeal of State Personnel Board decision to demote its adult protection worker instead of firing her is dismissed because it was not filed in the correct county. Nebraska Dept. of Health & Human Servs. v. Weekley, S-06-292, 274 Neb. 516Plaintiff and adult protection worker for the Department of health and Human Services faced termination because she did not timely investigate a report that a vulnerable adult was in danger. The vulnerable adult died later in a fire. the Department and the employee first attended a mini-hearing session at DHHS headquarters in Lincoln but the hearing officer recommended termination. The State Personnel Board of the DAS (Department of Administrative Services) recommended discipline short of termination. DHHS appealed the Personnel Board's decision in the Dodge County Court, where the State won reinstatement of its termination decision. Supreme Court vacates, holding that according to 84-917(2)(a), the Department should have filed its district court appeal in Lancaster County where the Department and its employee first attended the informal "mini-hearing" regarding the disciplinary action the Department sought to take against the adult protection worker, even though the formal DAS termination hearing took place in Dodge County. Notwithstanding the procedural limitations and the informal nature of the “mini hearing,” ,,we conclude that the “mini hearing” in Lancaster County was the first adjudicated hearing.DHHS filed its petition for further review in Dodge County, rather than Lancaster County, and the Dodge County District Court did not have jurisdiction."

Nebraska Supreme Court leaves jurisdictional and other questions unanswered in underinsured motorist case where the State was a defendant and worker compensation subrogee. Nebraska Supreme Court holds that § 44-6413 RRS Neb (barring uninsured/underinsured motorist claims when the statute of limitations on the underlying claim has expired) did not bar injured state employee's underinsured motorist action because the plaintiff settled her negligence claim against the primary tort-feasor within the four year statute of limitations period § 25-207 RRS Neb. Reimers-Hild v. State, S-06-203 274 Neb. 438 . The State of Nebraska and its underinsured motorist carrier raised the defense of 44-6413 that the Plaintiff sued after the statute of limitations had expired. Plaintiff was injured in an automobile accident while in the scope and course of her employment with the State of Nebraska. She received worker compensation from the State and also settled for the primary tort-feasor's liability insurer liability limits of $25000. The State had uninsured/underisnured coverage on the state vehicle the Plaintiff was in at the time of the accident but self-insured damages of up to $300000. The plaintiff did not file a tort or contract claim against the State. Instead the Plaintiff sued the State more than four years after the accident and later added its underinsured carrier . The Nebraska Supreme Court reverses, refusing to consider the defendants jurisdictional claims. "we hold that § 44-6413(1)(e) does not apply when an insured has settled his or her claim against an uninsured or underinsured motorist before the statute of limitations applicable to that claim would have expired. T he district court erred in concluding otherwise." The Surpeme Court noted several of the future questions it will no doubt play with: what will be the correct statute of limitations? Did the Plaintiff need to file either a tort, contract claim or both against the State before filing suit Did sovereign immunity or worker compensation immunity apply?

Nice recovery for the losing attorney who didn't bother to defend the summary judgment motion against his client: Plaintiff's deceased husband suffered paralyzing injuries in an ATV accident while on a work detail cutting and spraying weeds on a Natural Resources District bike trail. Weichman v. Lower Platte South NRD, A-05-1147, 15 Neb. App. 946. At the time the deceased husband was an inmate at the Lincoln Community Corrections Center. Plaintiff representing the estate continued their suit against both the Natural Resources District as a political subdivision tort claim action action and the Nebraska Department of Corrections as a state tort claim action. The Lancaster County District Court dismissed the the Department of Corrections during a summary judgment hearing that the plaintiff's attorney did not attend. The district court ruled the Nebraska State Tort Claim Act's discretionary function exception(§ 81-8,219(1)) immunized the State from responsibility for the inmate's injuries. Plaintiff appealed the Department of Corrections dismissal as a final order. Nebraska Court of Appeals, and reverses. "Even though Plaintiff’s counsel failed to appear at the summary judgment hearing and to contradict or contest DCS’ evidence, there are a number of unresolved facts—remembering that on summary judgment, we view the evidence most favorably to Weichman...(the) evidence suggests that contrary to a statement in (the correctional officer’s) affidavit, his responsibility on June 6, 2002, was not limited to “security,” and creates an issue of material fact (as to whether the discretionary function exception applied). "if the corrections officer trains instructs and supervises the inmates (on the work detail) for NR D, then whether the discretionary function or duty exception from liability applies is a material issue of fact for trial."

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.

Follow up: WE'RE NUMBER ONE! Legal reform activists proclaim Nebraska most business friendly legal climate in the country. We have a "rule of law" judiciary (for now) and an attorney general who is more interested in law enforcement than taking down businesses. But I'm not sure if the authors of the report took into account our justice crusaders Connolly and Gerrard.. Overlawyered.com.

Risky Business: The Annual Boardroom Guide to Litigation in the 50 States ranks state legal environments with economics, real world corporate experience and input from state legal reform experts and puts Nebraska and Virginia on top. Why does Nebraska come out on top? "Nebraska enjoys the top ranking for its favorable litigation climate. Its liability laws lead to fair and predictable litigation results. Nebraska law does not allow punitive damages, places limits on medical malpractice lawsuits, has a 10-year statute of repose for product liability lawsuits, and does not allow joint liability for non-economic damages. The Supreme Court is led by a rule-of-law majority and Attorney General Jon Bruning is a staunch defender of the rule of law. Nebraska’s liability climate is conducive to growth and job creation..

Follow up: Who was the former Supreme Court employee who retained access to the Nebraska Supreme Court's JUSTICE program? More details leak out after the Nebraska State Auditor pulls up the rug in the "squeaky clean" Supreme Court's crib and shows a few more roaches scurrying around. Turns out some former employees still retained access to the main JUSTICE computer system and in theory some had the capability to alter court records. Who was/were these employees? After all just two years ago someone in charge of the Supreme Court forced the resignation of the probation director Ed Birkel after a drunk driving arrest and then terminated then State Court administrator Frank Goodroe after he had been on the job about 18 months. Journal Star reporter Leah Thorsens March 30 2005 headline on the story read, "No details given on state court administrator's firing." Janice Walker, the Court administrator deputy took over, and received all the hits for the Court's extravagant seminar costs. Looks like s*** really doesn't roll uphill.

Lets hear it for the "squeaky clean" Nebraska Supreme Court: some in their comments accuse State Auditor Mike Foley of grandstanding his critical report of Supreme Court spending. Journal Star.com. Journal Star reporter made much of the Auditor's report on apparent overspending on Supreme Court conferences, maybe by a twice as much according to federal GSA standards. The full report though reveals more than this tip of the iceberg: a. lack of accounting for state vehicle use and meal reimbursements b. the over funded budget for the Counsel for Discipline; remember CJ Hendry wrote just about two years ago in the Nebraska lawyer that he had to raise dues because of the big holes the bad lawyers left because they wouldn't pay the court costs in their disciplinary cases. By they way, why would Mr. Mabin be asking CJ Heavican for his comments? Didn't this happen on the Champion of Justice Justice Hendry's watch? Maybe he shouldn't have left so suddenly to spend quality family time so that he could straighten this out.

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: Unicameral bows to pressure of agitated skate boarders and reverses Nebraska Supreme Court ruling that had eliminated landowner protections for political subdivisions arising from recreational activities Omaha.com But will such an unjust law stand up in the supreme court? I see that the legislature goes into mind numbing detail as to types of recreational activities, specifies conditions for skateboard parks and their design, and even as a bone to Senator Chambers requires localities post signs that skateboarding is inherently dangerous. Do they skateboard in the hood? State lawmakers voted 48-0 Thursday to give final passage to a bill that will protect cities and other government entities from liability for injuries at parks, playgrounds and other recreational facilities open free to the public.The bill now heads to Gov. Dave Heineman's desk, and he's expected to sign it in a formal ceremony to be scheduled next week, said spokeswoman Jen Rae Hein. It takes effect immediately upon his signature.Legislative Bill 564 was introduced, by State Sen. Mike Friend of Omaha after a Nebraska Supreme Court ruling last year said public entities could be found liable for injuries that occur at public recreational facilities

• Follow up: The slap on the wrist Lancaster County Court gave Senator Danielle Nantkes wasnt hard enough to hurt her pool and dart teams' chances at Brewsky's: Nantkes pleads to 1st offense drunk driving other charges dropped, probation and license impoundment for 60 days. Nanktes gets probation the day she pleads to reduced charges. How many other dui defendants get paper the day they plead without going through the county court probation office purgatory?

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

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

Aren't we lucky we have a State Senator who can think on her feet while soused? ? Although it looked bad for Senator Danielle Nantkes to refuse to take any alcohol tests after she collided with a snowplow truck last month, she can at least avoid much jail time, if any. Lancaster County district court judge Cheuvront sentenced Russell Kyle to four concurrent four to twelve year terms for multiple counts of felony drunk driving fourth offense. Reporter Butch Mabin noted the prosecutor's complaint that she could not charge the defendant with more serious crimes because during some of the defendant's prior arrests, he refused chemical tests. Under the new Nebraska drunk driving law that took effect last summer (LB925; 60-6,197.03) Drunk drivers with priors face stiffer punishment if they test over .15 during their current cases. Senator Nantkes has a prior from 1997, so if he shad blown and tested over .15 she cold have faced a one to fifteen year license revocation and 90 days in jail. Since she refused however, even if she is convicted she is unlikely to face jail time.