Arrested? Dial 1-800-LIAR! Nebraska Supreme court finds plain error when histrionic Prosecutor alleged defense attorneys mislead juries when defending clientsState v. Barfield, 272 Neb. 502 Filed November 3, 2006. No. S-05-973. Revival meeting prosecutor accused drug ring leader of being a "vicious dictator who rules with intimidation and tyranny like a two-headed hydra." The prosecuting attorney went further by complimenting defense counsel's advertising: You know, in 20 years as a prosecutor the hardest thing I think I've had to do is sit there with a straight face when a criminal defense lawyer had to look up the definition of "lie" in a dictionary. Why, I thought that was printed on the back of their business cards. Defense counsel did not object during argument. "Considering the cumulative effect and the egregious nature of the prosecutor's comments presented here, we similarly conclude that to leave such conduct uncorrected would result in damage to the integrity, reputation, and fairness of the judicial process. We again emphasize that the remarks made by the prosecutor, especially the prosecutor's statement to the effect that defense lawyers are liars, are of a very serious nature. In addition, the prosecutor's unacceptable remarks do not reflect a single, isolated instance, but were numerous. Moreover, because the disparaging remark as to defense attorneys was made during rebuttal, defense counsel had no opportunity to respond to and mitigate the last impression left with the jury before deliberations: that defense counsel, like all defense lawyers, was a liar."

Follow up; according to the Omaha World Herald, candidates for Douglas County Attorney are exchanging war stories of who committed bigger snafus. In State v Alba the Supreme Court said the Prosecutor's error led to a child sex predator's plea bargain to Class IV instead of Class II feloniesOmaha.com. Each candidate had his share of dropped balls, and big city ennui as to street crime. The Alba case stands out because all the sides missed the effective date of the pertinent statutes. The world herald comments: Peter J. Alba case: Mark Rhodes, Dornan's former chief criminal prosecutor, agreed in 2004 to a plea bargain, allowing a convicted sex offender to plead to two counts of sexual assault of a child. Rhodes thought that the counts were punishable by up to 50 years in prison. However, sexual assault on a child carries a maximum term of 20 months to five years in prison. An appeals court overturned Alba's 15- to 25-year sentence. He was sentenced instead to 20 months to five years in prison on each count. (The Supreme court agreed with the Court of appeals that the sentence was excessive but refused to vacate the guilty plea.) Dornan noted that the judge and defense attorney also misunderstood the punishment. He said he will seek to place Alba under parole supervision after Alba's release.

Eighth circuit court of appeals reverses death sentence from Dallas county Missouri because the Prosecutor was playing sociologist poorly and the Judge was getting his anthropology wrongHerbert Smulls v. Donald Roper U.S. Court of Appeals Case 052456P.pdf 11/01/2006 U.S. District Court for the Eastern District of Missouri - St. Louis . The eighth circuit issues a rare reversal of a death sentence on Batson grounds. The prosecutor removed the only "dark" person on the jury and his reason was he didnt trust postal workers, even though some of his inlaws were postal workers. The judge during jury selection added to the farce by challenging the defense attorney's assumption that she could pick out black persons from among shades of skin color. Neverthe less the Eighth Circuit reverses and remand for a new Batson hearing at the district court or an outright vacation of the death sentence. The Prosecutor commented on how distrustful postal workers are: "Venire person indicated that she is a mail sorter for Monsanto Company. That she sorts mail for, I believe she said, 5000 people. And her husband works for the post office. And I believe she listed him as a custodian. It's been my experience in the nine years that I've been a prosecutor that I treat people who work as mail sorters and as mailcarriers, letter carriers and people who work for the U.S. Post Office with great suspicion in that they have generally – in my experience in many of the trials that I've had – are very disgruntled, unhappy people with the system and make every effort to strike back. In my experience as a prosecutor, in trying cases where I've had several cases and left mail people on the jury, had them result in a hung jury. The most recent of which was a murder case in this courthouse last September, State versus Dana Ruff (phonetically) where a mail carrier was the holdout for a hung jury in that case. I also have several in-laws who are employees of the postal department and even though they are somewhat relatives, I share the same opinion of them. So I treat them with great suspicion. The trial judge topped this with some brillant anthropology, worth of Gunnar Myrdal: I don't know what it is to be black. I don't know what constitutes black. And I never, in this Court,no matter what any appellate court may say, I never take judicial notice that anybody is black or that only one person or four persons or eightpersons are black. That to me is something that I don't think this Courtis wise enough or any other appellate court is wise enough unless thereis direct evidence as to who is black and who is white and who is orange and who is purple. I do not under any circumstances in this division ever take judicial notice of the number of people who are black. And Ibelieve that's counsel's responsibility to prove who is black and who isn'tor who is a minority and who isn't. There were some dark complexionedpeople on this jury. I don't know if that makes them black or white. As I said, I don't know what constitutes black. Years ago they used to sayone drop of blood constitutes black. I don't know what black means. Cansomebody enlighten me of what black is? I don't know; I think of themas people. I listened to the responses of Ms. Sidney. I watched her attitude very briefly as it may have been, and I'm not going to sit hereand say to you that Ms. Sidney is not black. But I'm not going to makea judgment as to whether anybody else on the panel was, so in any event,I'm merely telling you that for the record. I'd rather not even discuss it onthe record. But, in any event, I'm going to deny your motion for amistrial on the basis stated. Are we ready to proceed

In another Eihusen dissolution of marriage action, the Nebraska supreme Court denies ex wife's request for a jury trial on her action to set aside dissolution settlement agreementRobert G. Eihusen, appellee, v. Linda K. Eihusen, appellant. Eihusen v. Eihusen, 272 Neb. 462 Filed October 27, 2006. No. S-05-523. Wife of Chief Industries Robert Eihusen agreed to sign a divorce settlement agreement before consulting an attorney. Then she complained that her exhusband robert had undervalued the debenture Chief owed to him by $3.5 million dollars. She claimed the debentures option price of $100 per share should equal the parties ESOPS which allowed option exercising at $167. Supreme Court denies her request for jury trial. And affirms District Court judgment against her. Apples dont fall far from the tree so Mrs. Eihusen could have taken some cues from Virgils maneuvering. The existence of the statutory right to vacate a judgment can be traced to 1867, prior to the adoption of the Nebraska Constitution. See Rev. Stat. § 602 (1867). The statutory provision as it read then is substantially similar to the version now in effect. Since 1867, that provision, as now codified at § 25-2001, has bestowed upon a district court the power to vacate or modify its own judgment for one of nine enumerated reasons, including fraud. Since its enactment, the nature of this action has been equitable. As we described it in In re Estate of West, 226 Neb. 813, 833, 415 N.W.2d 769, 783 (1987), an action under § 25-2001 is "equitable in character, available or administered on equitable principles, and extended on equitable terms." Moreover, the relief provided by this statute--the vacation or modification of a judgment--is not legal in nature, but, rather, is equitable. See, e.g., In re Estate of West, supra. We conclude, therefore, that an action to set aside a judgment or order under § 25-2001 invokes the equitable powers of the court, for which there exists no constitutional right to a jury trial. Similarly, the evidence here reveals that during the settlement negotiations and throughout the subsequent divorce proceeding, Linda was aware of the existence of the debenture. Prior to signing the settlement agreement, Linda sought the advice of an accountant who, in turn, advised her to seek legal advice before signing the agreement. Linda elected not to do so.

Nebraska Supreme Court allows Pakistani "arranged (maybe forced) marriages to emancipate underage girls, relieving father of child supportMillatmal v. Millatmal, 272 Neb. 452 Filed October 27, 2006. No. S-05-237. Husband and wife, as well as their two daughters, Nelam and Naheed, are U.S. citizens. Nelam was born June 25, 1985, and was married via an arranged marriage in Pakistan in late 2002. She currently resides in Omaha, Nebraska, with her husband. Naheed was born November 18, 1986, and in the summer of 2002 was also married via an arranged marriage in Pakistan. Naheed resides in Omaha with Parveen and attends school. Naheed's husband still lives in Pakistan. According to the record, there are currently no divorce actions pending in either the United States or Pakistan with respect to these marriages. Wife claims Husband should pay child support until the girls each reached age 19. Nebraska Supreme court recognizes a valid foreign marriage as a cause to emancipate minor children, relieving the father of child support. See 42-117 RRS Neb. There is no indication from the record that the marriage was invalid under Pakistani law. Thus, under the plain language of § 42-117, we must deem Naheed's marriage valid in Nebraska. Although Parveen's brief claims that in a marriage where consent was obtained by force or fraud, the marriage is voidable, the record does not reflect that either Naheed or Parveen have taken any steps to void this marriage. Thus, the marriage is not, for purposes of our analysis, void. Given that Naheed's Pakistani marriage is considered valid in Nebraska, we conclude that Naheed is emancipated. As a result of her emancipation, the district court abused its discretion in ordering Taj to pay child support to Parveen. Accordingly, we vacate the district court's award of child support.

Nebraska Court of Appeals reverses modified worker compensation award when trial court added workers depression as a compensable disability without finding the depression was due solely to the injured workers injuryHubbart v. Hormel Foods Corp., 15 Neb. App. 129 Filed October 24, 2006. No. A-06-096 The appeals court interprets Sec48-141 RRS Neb. to require that the additional disability be solely due to an increase in disability related to the initially awarded condition. Here although the company did not treat the injured worker well in refusing to pay for her carpal tunnel syndrome, the depression was not solely due to this, as the injured worker also had been arrested unemployed and on drugs. To obtain a modification, an applicant must prove, by a preponderance of evidence, that the increase or decrease in incapacity was due solely to the injury resulting from the original accident. Bronzynski v. Model Electric, 14 Neb. App. 355, 707 N.W.2d 46 (2005). The applicant must prove there exists a material and substantial change for the better or worse in the condition--a change in circumstances that justifies a modification, distinct and different from the condition for which the adjudication had previously been madeWe find that the trial court evaluated Hubbart's application to modify based on her depression using an incorrect standard. In its November 5, 2004, award, the trial court noted the following: "It is not necessary [Hubbart] establish that her depression was caused solely or exclusively by her physical injuries, loss of function and pain syndrome. The evidence does establish her injuries to be a significant, contributing cause of her depression which at present renders her temporarily totally disabled." However, as noted above, in order to obtain a modification to a prior award, an applicant must prove that the increase in his or her incapacity was due solely to the injury resulting from the original accident. Therefore, we find that the portion of the trial court's award finding Hubbart to be temporarily totally disabled as a result of her depression must be reversed and that the cause must be remanded to the review panel for remand to the trial court for evaluation of the claim using the proper standard.

Second hand smoke? DIAL 911! Tobacco Analysis Blog scoffs at new Omaha indoor smoking ordinance, especially its exceptions for Keno parlors and Horsemen's Park simulcast facilityTobacco Analysis Blog. Omaha anti smoking activists have requested on citizens to call 911 emergency response system to report smoking ban violations, but if an anti-smoking group is going to that citizens use this system to enforce a law, he I would think that all can agree that whether an establishment allows Keno or not or simulcasts horseracing or not has no bearing on the nature of the secondhand smoke hazard.

WE'RE 44! Nebraska among 10 least favorable states for their tax climates, says the Tax foundationKCBusiness JournalThe Washington-based nonprofit said in a release that it ranks the states using five component indexes that measure corporate, individual income, sales, unemployment and property taxes. "The SBTCI is designed to measure the competitiveness of each state’s tax system so lawmakers, the media and the public alike can gauge how their state compares to other states. They can also use the SBTCI to pinpoint specific changes that will increase the competitive standing of their state. Good state tax systems levy low, flat rates on the broadest bases possible, and they treat all taxpayers the same. Variation in the tax treatment of different industries favors one economic activity or decision over another. The more riddled a tax system is with these politically motivated preferences the less likely it is that business decisions will be made in response to market forces." Look at the neighboring states who managed to hit the top rung as well as the bottom: This year's index names the 10 best states as Wyoming (No. 1), South Dakota (No. 2), Alaska (No. 3), Nevada (No. 4), Florida (No. 5), Texas (No. 6), New Hampshire (No. 7), Montana (No. 8), Delaware (No. 9) and Oregon (No. 10). The 10 worst states, according to this year's index, are Minnesota (No. 41), Maine (No. 42), Iowa (No. 43), Nebraska (No. 44), California (No. 45), Vermont (No. 46), New York (No. 47), New Jersey (No. 48), Ohio (No. 49) and Rhode Island (No. 50).

Omaha distributor of heating and air conditioning equipment loses $3.3 million verdict in dispute with Houston manufacturerOmaha.com A federal jury in Houston has ordered an Omaha company and its Kansas City, Kan., affiliate to pay $3.3 million to a heating and air conditioning equipment manufacturer. Asha Distributing Co. of Omaha and Asha Distributing of K.C. Inc., both owned by Trace Smith of Omaha, lost the verdict to Goodman Manufacturing Co. of Houston. Asha has filed for a new trial, to set aside the verdict or to reduce the verdict. Goodman alleged it had dealt with Asha since 1999 under agreements that allowed it to ship its heating and air conditioning units to warehouses based on Asha's estimated sales. The warehouses stored the units until Asha sold them to customers, and Asha could return unsold units according to specific rules, according to the lawsuit.Disputes between the two companies over the delivery and payment for the units began in 2000 and 2001. The details involve a complex system of receiving, selling and shipping the units, some of which had been owned by another distributor.Goodman's lawsuit said Asha overforecast sales of some of the units but accepted delivery anyway. Asha later tried to reject some of the equipment, but Goodman argued that the rejection was late and for improper reasons, such as units being an incorrect color.Goodman also alleged that Asha sold some equipment but didn't pay Goodman for it. Goodman terminated Asha as a distributor on March 21, 2005, and the two companies could not agree whether Asha should pay for the units that were in storage at the time.In reply, Asha argued that it had complied with its business arrangements with Goodman but that Goodman didn't deliver some units in a timely and accurate manner. Asha said it repeatedly informed Goodman about misshipments and rejected units that were obsolete, damaged or otherwise "non-saleable."Asha also said Goodman shipped units that Asha hadn't ordered, incorrectly counted some units as belonging to Asha and double-billed for some shipments.Goodman said it was owed more than $4 million. Asha asked the court for $924,000 in damages. The jury awarded Goodman $3,587,989 and Asha $288,888, requiring a net payment by Asha to Goodman of $3,299,101, plus 4.97 percent annual interest until the amount is paid.Attorneys for Goodman also requested $550,000 in fees.In asking for a new trial, attorneys for Asha argued, among other things, that in some parts of the dispute the jury awarded more than Goodman had requested and that the jurors ignored payments Goodman had received from Asha.

Nebraska supreme court does not release any opinions this week. Nebraska court of appeals affirms district court's denying arbitration defense to former director of the failed Amwest Insurance Company in suit the Nebraska Department of Insurance broughtState ex rel. Wagner v. Kay, 15 Neb. App. 85 October 10, 2006. No. A-05-130. to affirm or disavow any contracts to which the insurer is a party." The Liquidator in the present case is not seeking to enforce the agreements; but instead, he is disavowing them, which is one of his express powers. There is nothing in the record to indicate that the Liquidator adopted any of the agreements or expressly assumed the liabilities contained therein. To allow Scheiner to have her action "'decided privately and separately from [her] fellow officers when the [L]iquidator has disavowed the [agreements] is contrary to the interests of insureds, claimants, creditors, and the public generally.'

In domestic assault case, Double jeopardy did not bar State's prosecuting the Defendant for accompanying felonies after the defendant plead guilty to lesser included misdemeanors State v. Humbert, 272 Neb. 428 Filed October 6, 2006. No. S-05-1221. Defendants estranged wife, Mayra Humbert (Mayra), claimed that Defendant stabbed her and tied her up in their former Bellevue home to secure her cell phone. After Humbert returned to the residence, he untied Mayra. She escaped from the residence and was later treated at an Omaha hospital for her injuries. Def told police that he and Mayra had argued on April 27, 2005. In order to scare Mayra, he picked up a "ceremonial type" knife that was on a counter in the residence. Humbert said that as Mayra approached him, she "walked into the knife." Humbert saw blood on Mayra's pants, but he did not ask her if she was hurt. Humbert was charged by complaint in county court with four felonies: first degree false imprisonment, second degree assault (domestic violence), terroristic threats, and use of a weapon to commit a felony. After he was bound over to district court, an information was filed charging Humbert with the same four felony counts and two additional misdemeanors: second degree false imprisonment and third degree assault (domestic violence). the court overruled his plea in bar to continued prosecution for the felonies after the def plead to the misdemeanors. The supreme court affirms. Following Ohio v. Johnson, 467 U.S. 493, 104 S. Ct. 2536, 81 L. Ed. 2d 425 (1984). "While the Double Jeopardy Clause may protect a defendant against cumulative punishments for convictions on the same offense, the Clause does not prohibit the State from prosecuting [the defendant] for such multiple offenses in a single prosecution." Ohio v. Johnson, 467 U.S. at 500.The State is not seeking a subsequent prosecution of Humbert for a greater offense after he had previously been tried for the lesser-included offense. There has been no trial on any of the charges. Humbert has pleaded no contest to the above-described misdemeanors, but he has not been sentenced and he has not been subjected to a trial on the felony charges. Therefore the trial may proceed.

For once the Nebraska supreme court upholds a summary dismissal of a frivolous lawsuit: Plaintiff burned while burning yard waste sued textile company that made his t shirt. Manufacturer demonstrated enough evidence on summary judgment to show that someone bought the shirt more than 10 years before the accidentMarksmeier v. McGregor Corp., 272 Neb. 401Filed October 6, 2006. No. S-05-423. the Nebraska statute of repose, Neb. Rev. Stat. § 25-224(2)(a)(ii) (Cum. Supp. 2004)borrows the statute of repose that belongs to the state of manufacture,in this case Tennessee's. Tenn. Code. Ann. § 29-28-103(a) (2000). Just think way back around 1990 someone made clothing in the United States! Following the 7th Circuit decision Schamel v. Textron-Lycoming, 1 F.3d 655 (7th Cir. 1993) the defendant moving for summary judgment does not have to prove how long the items stayed on their inventory shelves. Rather the defendant need only prove that it stopped distributing the item at a time outside the repose period, then the Plaintiff must rebut.

Order of the knee pads update: Nebraska Supreme Court disbars attorney for committing lese majeste of the Court the Bar and especially the counsel for disciplineState ex rel. Counsel for Dis. v. Beach, S-04-1399, S-05-1116, 272 Neb. 337 Attorney faced disciplinary charges for suggesting that her ex husband kill himself, for disclosing confidential information about her and drinking with her while the client was on probation. The referee recommended a six month suspension. Then the attorney mistakenly sought to editorialize his feelings about the court and the counsel for discipline as follows: About the former clients new attorney: "The practice was more enjoyable before feminazi bitches like you came on the scene." The attorneys offensive comments about the attorney disciplinary process which seems to have benefited some attrorneys who have stroked the system to avoid more serious sanctions: "Your rules suck in situations like this. I didn't try to screw her or steal her money. The letter I wrote to her disgusting husband had to be written and [J.N.] needed a couple of [sic] beers on occasion to balance her wacky head." On July 14, relator notified respondent that it had filed a grievance against him regarding his conduct in sending the aforementioned letters. In grand language with magnificent circular reasoning the supreme court states it will uphold a bar of strokers who dare not challenge their cabal: "Hostile, threatening, and disruptive conduct reflects on an attorney's honesty, trustworthiness, diligence, and reliability and adversely reflects on one's fitness to practice law. State ex rel. Counsel for Dis. v. Janousek, 267 Neb. 328, 674 N.W.2d 464 (2004); State ex rel. Counsel for Dis. v. Lopez Wilson, 262 Neb. 653, 634 N.W.2d 467 (2001). An attorney's conduct which includes progressively abusive language, demeanor, and threats violates disciplinary rules that prohibit engaging in conduct prejudicial to the administration of justice and engaging in conduct that adversely reflects on one's fitness to practice law. State ex rel. Counsel for Dis. v. Lopez Wilson, supra." Ie, behavior we dont like adversely reflects on an attorneys fitness to practice law. Dear Supreme Justices: "hostile threatening etc reflects on honesty trustworthiness diligence and reliability." Is this a rule of law or a conclusion you drew as amateur psychologists, ala Brown v board of education?

In the wake of the City Council's decision to seek TIF bonds for development near North 56th Street and Interstate 80, the developers must have taken their cues from Cabela's successful exploitation of TIF's to open stores in TexasReason Magazine earlier this year chided Fort Worth municipal officials for giving away millions of development funds to Cabela's so it could build a spanking new sporting goods store that would out-do the Alamo as a draw. Apparently another Cabela's 120 miles away was going to do just as well.

Please reassign me to defending terrorist suspects: Military appeals court disqualifies Senator Lindsey Graham from service as an appeals judgeSCOTUSBlog: The highest court in the military judiciary, the U.S. Court of Appeals for the Armed Forces, on Wednesday barred a U.S. senator from sitting on a military appeals court that decides criminal cases. By a vote of 4-1, the Court found unconstitutional the dual role of Lindsey O. Graham as a senator (Republican from South Carolina) and as a reserve officer sitting on the Air Force Court of Criminal Appeals. The decision is Lane v. U.S. (CAAF docket 05-260)

Nebraska Supreme Court allows parental rights termination appeal to proceed after court of appeals had dismissed the appellants notice of appeal because he signed his poverty affidavit in Utah before a Utah licensed notaryIn re Interest of Fedalina G., 272 Neb. 314 September 22, 2006. No. S-06-235. § 25-1245 and rule 28(b) (Nebraska rules of discovery) provide that an affidavit may be used in support of a motion in a court of this state if the affidavit is made and authenticated, out of state, before a person authorized to administer oaths in the place where the affidavit is made. A notary public is authorized to administer oaths. A notary public of the State of Utah is authorized to administer oaths in Utah. See Utah Code Ann. § 46-1-6(4) (Supp. 2006). Because the affidavit in this case was duly authenticated in Utah by a person authorized to administer oaths in the State of Utah, it may be submitted in support of a motion made in a Nebraska court. The Court of Appeals erred in concluding otherwise.

Taking that old time religion is a good strategy sometimes. Follow up: Supreme Court took case on further review, but affirms without comment the trial court's harsher resentencing after the Defendant won a reversal of his first sentence because the judge quoted bible verses to him. State v. Bruna, S-05-529, 272 Neb. 313 Sept 22 2006. Having reviewed the briefs and record and having heard oral arguments, we conclude on further review that the decision of the Nebraska Court of Appeals in State v. Bruna, 14 Neb. App. 408, 710 N.W.2d 329 (2006), is correct and accordingly affirm the decision of the Court of Appeals.

Maxwell T's father went back to prison on parole violations and his mother checked herself into alcohol treatment because she drank over a quart of vodka a day; The Nebraska court of Appeals holds that the Sarpy County Juvenile Court properly exercised emergency jurisdiction over the child even though the father had custody through a South Dakota divorce decreeIn re Interest of Maxwell T., 15 Neb. App. 47 September 19, 2006. No. A-05-1477.The juvenile court properly exercised temporary emergency jurisdiction in this case, but that the court must immediately communicate with the South Dakota court as required by the UCCJEA before proceeding further with this matter. Further, the juvenile court is without jurisdiction to render a permanent custody order unless the South Dakota court affirmatively declines jurisdiction or fails to take appropriate action. the applicable statutory scheme is the UCCJEA, Neb. Rev. Stat. §§ 43-1226 through 43-1266 (Reissue 2004), rather than the Nebraska Child Custody Jurisdiction Act (NCCJA), because the first petition in this child custody proceeding was made in January 2005, well after the date the UCCJEA became operative, January 1, 2004. See §§ 43-1226(Supp. 2003; LB148 2003-2004)...the juvenile court, unaware of the South Dakota divorce decree, initially assumed original jurisdiction under Neb. Rev. Stat. §43-248 (Reissue 2004) when it granted the January 21, 2005, order for temporary custody. The court later adjudicated Maxwell under § 43-247J, with respect to Marsha, on May 4. It was not until June 27 that the court was informed of the prior out-of-state custody determination. Maxwell was subsequently adjudicated with respect to Lloyd on November 3...the juvenile court properly exercised jurisdiction under § 43-1241 at the time of the filing and adjudication of the supplemental petition. This holding is subject to the jurisdictional limitation set forth below...Because the South Dakota court has entered a child custody decree and Lloyd still lives in South Dakota, the South Dakota court retains continuing jurisdiction to make any permanent changes in custody. The juvenile court must immediately communicate with the South Dakota court as required by § 43-1241(d). Further, the juvenile court is without jurisdiction to render a permanent custody order unless the South Dakota court affirmatively declines jurisdiction or fails to take appropriate action.

"Essentially the same" is not "substantially the same": the Nebraska Supreme Court denies efforts of casino gambling promoters to place new casino constitutional initiative on the 2006 ballot because it would be "essentially" the same as the defeated 2004 initiative, and so contrary to the Nebraska Constitution "resubmission" clauseState ex rel. Lemon v. Gale, S-06-909, 272 Neb. 295. The resubmission clause, "Article III sec 2 states: "The same measure, either in form or in essential substance, shall not be submitted to the people by initiative petition, either affirmatively or negatively, more often than once in three years" The Nebraska Supreme Court finds that barring constitutional initiatives that are "essentially" the same for three years meant that the 2006 casino initiative to introduce one casion per congressional district was essentially the same as the 2004 defeated initiative that would have permitted the legislature to introduce gambling legislation. The district court had erroneously equated "esentially" with "substantially." New Jersey had permitted successive ballot initiatives in the 1970s to reintroduce casino gambling because the second measure was not "substantially " the same as the earlier defeated one. Young v. Byrne, 144 N.J. Super. 10, 364 A.2d 47 (1976). We conclude that the essential substance of the 3 Casinos Initiative submitted for 2006 and Initiative 417 submitted to the electorate in 2004 is the same: amending the constitution to authorize enactments permitting the operation of games of chance. We therefore determine that the district court erred in ruling that inclusion of the 3 Casinos Initiative on the 2006 general election ballot would not violate the resubmission clause and in ordering Gale to proceed with signature verification and to submit the measure to the Attorney General for ballot title preparation.

Lets outsource all the lawyers! The american legal profession may catch the next wave of professional services' outsourcingLegal Business Development Blog: The recent Business Week article “Let’s offshore the lawyers?” (9/18/06, p. 42) notes that corporate pioneer in lawyer cost cutting Dupont has started sending legal research to Asia. Business Week argues, “few industries seem more ripe for radical restructuring than legal services...DuPont’s hiring of 30 Filipino lawyers and 50 staff to digitize, index, and analyze documents from a number of cases. "it is inevitable that some percentage of US legal work will go offshore. The only question is what percent. Business Week quotes an estimate from consulting firm Hildebrandt International that US firms “can save 25% to 35% by farming legal work to Asia.”

Kenny is no fan of the peoples seldom used right to recall judges who go their own way and not theirs; never mind that in Nebraska it happened once and hasn't since. Still its an undignified assault on judicial "independence/"Kenny's Blog. Justice Lanphier was the first and only victim of a successful judicial retention election against a sitting supreme Court justice. Those who tried to bring him down hardly ambushed him. As it turns out each side spent roughly equal amounts of money on the campaign. Although the Nebraska accountability and disclosure commission unsuccessfully sought to compel the anti lamprey forces to comply with the elections regulations act, now they must according to legislative amendments. 49-1405 REARS The People also defeated a constitutional amendment to require supreme court retention elections take place statewide. 1998. The other measures to remove a judge from office are Iimpeachment and a decision from Nebraska Judicial Qualifications Commission. That is hardly a sign that the independence of judges is at stake, assuming we must endure independent judges.

Norfolk bank robbers death penalty appeal of finding him smart enough for execution is not a final order State v. Vela, S-06-595, 272 Neb. 287 The Nebraska Supreme Court dismisses Eric Vela's appeal from the Court's ruling that he was smart enough to face execution for participating in the 2002 Norfolk bank robbery. The right at issue in the instant case is both statutory and constitutional. See, § 28-105.01(2); Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002). However, both the statutory mandate and constitutional rule are based on the determination that "mentally retarded persons who meet the law's requirements for criminal responsibility should be tried and punished when they commit crimes," but "[b]ecause of their disabilities in areas of reasoning, judgment, and control of their impulses . . . they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct." Atkins, 526 U.S. at 306. See, also, Introducer's Statement of Intent, L.B. 1266, Judiciary Committee, 95th Leg., 2d Sess. (Feb. 13, 1998).Because it neither affected a substantial right nor was made in a special proceeding, the court's order overruling the defendant's motion to preclude imposition of the death sentence because of mental retardation was not a final, appealable order. For an appellate court to acquire jurisdiction of an appeal, there must be a final order entered by the tribunal from which the appeal is taken. In re Guardianship of Sophia M., 271 Neb. 133, 710 N.W.2d 312 (2006). When an appellate court is without jurisdiction to act, the appeal must be dismissed. State v. Dunlap, 271 Neb. 314, 710 N.W.2d 873 (2006).

Eighth Circuit denies appeal of drug conviction where suspect resisted arrest and tried to flee; police had independent grounds to arrest search and seize contraband from suspect even if no probable cause existed for intial pat downUS v Sledge aka Fowler. Parties disputed whether police had probable cause to search suspect stopped for active broadcasts and presence in car where suspected minor inpossession transaction took place. Suspect did run from police and when apprehended the police seized crack and $229. Eighth Circuit affirms. Resistance to an illegal arrest can furnish grounds for a second, legitimate arrest.” United States v. Schmidt, 403 F.3d 1009, 1016 (8th Cir. 2005);“When a defendant commits a new and distinct crime during an unlawful detention, the Fourth Amendment’s exclusionary rule does not bar evidence of the new crime.” United States v. Hunt, 372 F.3d 1010, 1012, (8th Cir. 2004). Neb. Rev. Stat. § 28-906(1). The mere act of running away from law enforcement officers constitutes physical interference or obstacle within the meaning of this provision. In re Interest of Richter, 415 N.W.2d 476, 478 (Neb. 1987)

Nebraska Departmentof banking seeks to revoke provisional license for check cashing business that allowed customers to rollover their loansOmaha.com Fast Money, a payday lender from Lincoln, is no longer able to offer new "delayed deposit" services because its license has expired, the Nebraska Department of Banking and Finance said Friday. An attorney for JHK Inc., which operates Fast Money at 1101 Arapahoe St., disputed the department's actions. Payday lenders loan money to people and hold on to their repayment checks until their paychecks are deposited in their bank accounts. Last year the department ordered Fast Money to show why its license should not be revoked. The action stemmed from "illegal rollovers of checks" by Fast Money, the department said, meaning that the company allowed customers to pay only a fee rather than requiring them to pay off their loans within the period set by law. The law limits the loan period so that people do not go too far into debt or pay excessive fees. In January, the department said in a press release, Fast Money agreed, without admitting wrongdoing, to pay a $10,000 fine and seek new ownership, and agreed that JHK President Jim Kyles would not participate in a delayed deposit business for five years. The department said it issued a provisional license while Fast Money's application for new ownership was being processed. In July the department denied the sale, saying the proposed purchaser, MDRC Investments Inc., was not qualified and was not familiar with Nebraska law. The department said it gave the company 30 days to find another buyer, but when that didn't happen the license expired at noon Thursday. Fast Money can collect on earlier loans but not enter new ones, the department said. A man who answered Fast Money's telephone referred questions to attorney Terry Barber, who said the department exceeded its authority by calling the license provisional and by taking other actions. Barber said the law gives the department authority only to issue annual license renewals, not provisional licenses, and Fast Money's license was issued about May 1. He said the department sent notice of a hearing in October, so it is unclear why the license would expire now. He said the rejection of the new ownership is being appealed. Mike Cameron, legal counsel for the banking department, said that the department has a practice of issuing provisional licenses in some instances, and that because the license has expired the only issue for the October hearing is whether to impose a fine based on the company's actions. He said the department has not received notice of an appeal of the sale rejection.

It must be some kind of message: more developments in the Johnny gosch caseMother of boy kidnapped in 1982 finds old photographs someone deposited at her home. Police said Friday that Iowa crime experts were examining photographs to determine if they depict Johnny Gosch, a newspaper carrier who disappeared 24 years ago. Noreen Gosch, Johnny's mother, said she found the photos Sunday at her front door. Johnny Gosch disappeared on Sept. 5, 1982, while delivering newspapers in West Des Moines. Lt. Jeff Miller, a spokesman for the West Des Moines Police Department, said the photos were given to the computer crime task force of the Iowa Division of Criminal Investigation. Miller said police have not positively identified the boy in the photographs as Johnny Gosch. He also said it was not immediately known when the photos were taken. "That's one of the reasons we're going to the DCI and let the experts take a look at them," Miller said. Noreen Gosch gave the photos to police on Tuesday. It wasn't clear why she didn't immediately turn over the photos to police. Though police said they have not positively identified the boy in the photo as Johnny Gosch, his mother had no such doubts. She said one photo shows a boy wearing sweat pants like the pants her son wore when he disappeared. In the photo, the youth's mouth is gagged and his hands and feet are bound. Gosch said the other photo shows the same boy with two other boys. All three are bound and gagged. Miller would say only that the photos were of boys whose ages he estimated at between 10 and 14. Finding the photos raises questions and memories, Noreen Gosch told the Associated Press on Thursday. "It's like reliving it," she said. "But the bigger picture is, why are they doing this? "Whoever had these photos had them for 24 years," she said. "I don't understand why they would do this now. It must be some kind of message." Johnny Gosch's disappearance triggered nationwide concern over abducted children. His was one of the first faces of missing or abducted children to appear on milk cartons across the country. His newspaper wagon was discovered near his West Des Moines home. Few clues have been discovered since then, but his disappearance has led to several theories. Noreen Gosch believes her son was taken by child pornographers. She has told authorities her son briefly contacted her in 1997 but feared for his life and declined to give details about where or how he could be contacted.

KY Attorney General on the look out for unscrupulous ambulance chasers following the weekend's airline crash in LexingtonKetucky Attorney General Press Release. Federal law adds to the helpful insulation the government has put around accident victims: 49 United States Code Section 1136(g)(2) limits contact by lawyers and imposes a $1000 per day fine for violation: “Unsolicited communications -- In the event of an accident involving an air carrier…no unsolicited communication concerning a potential action for personal injury or wrongful death may be made by an attorney (including any associate, agent, employee, or other representative of an attorney) or any potential party to the litigation to an individual injured in the accident, or to a relative of an individual involved in the accident, before the 45th day following the date of the accident.”

Eighth Circuit agrees with Nebraska FEderal District Court that Great Plains Communications had to allow tandem circuit access to Western Wireless (Cellular One)WWC License v. Great Plains Comm. 051725P.pdf 08/23/2006 No: 05-1725 and No: 05-1726 District of Nebraska Telecommunications Act of 1996. Local telephone carrier had to allow access to western wireless (cellular One) even when the local carrier sent its calls to an outside tandem circuit. "Local dialing parity" required under the telecommunications act of 1996 is consistent with tandem routing. The Federal District Court properly reversed the the Nebraska Public Service Commission decision to allow when it excused Great Plains from Section 251(b)(3) the local dialing parity obligations. Court of Appeals allows the Neb PSC decisions in setting reciprocal compensation rates and allocation of costs. However the PSC did err when it did not order symmetrical compensation for call that went back and forth between the cellular phone provider and the local phone network as 47 C.F.R. Sec. 51.715 required.

Nebraska Court of Appeals dismisses ineffective counsel proceedings where defendant plead to manslaughter and weapons count otherwise invalid under a subsequent change in the law in State v Pruett 263 Neb. 99, 638 N.W.2d 809 (2002) State v. Drinkwalter, A-04-988, 14 Neb. App. 944 Defendant who plea bargained for a manslaughter charge with an accompanying weapons charge after the Nebraska Supreme court reversed his murder conviction sought post conviction relief claiming ineffective counsel for advising him to plead to charges the Nebraska Supreme Court had held invalid in State v Pruett. Nebraska court of appeals overrules motion for post conviction relief because defendant plead guilty to both the manslaughter and weapons charge before the Nebraska Supreme Court made its Pruett decision which definitively prohibited tying use of a weapon to commit a felony with the underlying crime.s a result of the holding in State v. Burkhardt, 258 Neb. 1050, 607 N.W.2d 512 (2000), and the buttressing effect of the "irresistible" Alford plea bargain, Drinkwalter's claim for postconviction relief to set aside his conviction for use of a weapon to commit a felony on the basis of the Ring-Pruett rule fails. He has clearly waived any such argument. Further the defendant failed to show that counsel's failure to advise him of the effect of Ring or faulty advice on Ring prejudiced his guilty plea, as at the time the Supreme court had not decided Pruett.

Good news for sufferers of indignities and stress: all awards and settlements for on physical injuries might not be taxableTaxProfBlog While the appeals courts wrestle with nonphysical injuries, such as some worker compensation claimants have brought, the DC Circuit court of appeals has handed them a bone declaring that even nonphysical compensatory damages awards are not gross income. Murphy v. United States, No. 03cv02414 (D.C. Cir. 8/22/06), See § 104(a)(2) 26 USC

Three corporate decisions from the Nebraska Supreme Court: in a follow up, the supremes rule in favor of dissdent shareholders of the Gilbert Hitchcock Foudation by ordering the Attorney General to step in; two others generally favor of corporate management over dissenting shareholders"Front runner" John Gerrard writes three decisions yesterday on corporate law issuess Friday August 18, 2006 . Pennfield Oil Co. v. Winstrom, S-04-982, 272 Neb. 219: Grandson of company's founder refused to allow founders son to transfer estate held shares to himself. Supreme Court rules that the stock transfer restriction agreements the shareholders in 1960 signed allowed the corporation to refuse transfer and instead redeem the estate held shares, even though this may have been contrary to the intent of the original shareholders. Gilbert & Martha Hitchcock Found. v. Kountze, S-04-1385, 272 Neb. 251: dissenting board members of the Gilbert Hitchcock foundation fought their ouster from the nonprofits board. The supreme court reverses the district court ruling that upheld their ouster because the Nebraska Attorney General was a necessary party to the litigaton. Johnson v. Johnson, S-04-1396, 272 Neb. 263; a dissenting shareholder whom the other shareholders squeezed out of the company tried have the district court dissolve the corporation for which he worked and owned in part. The Supreme Court agrees that since the company was a Delaware corporation and Delaware would notpermit dissolution in these circumstances, the District court was right to dismiss his action.

Nebraska Court of Appeals rejects "mode of operation" rule in slip and fall cases when the Plaintiff is unable to prove the defendant's "notice" of the hazardous conditionLenzen v. JG Shopping Ctr. Mgmt. (Not Designated for Permanent Publication) Filed August 15, 2006. No. A-04-1214. Plaintiff lost on summary judgment suit against Lincoln Joint Venture in her sliip and fall injury suit against the mall. Pl alleged she slipped on spilled fluids in the mall near its food court. She could not however prove the Defendant created the condition or had notice of it. Pl counsel argued that Nebraska should adopt a "mode of operation" exception to the slip and fall notice rule and allow her to make a case on the likelihood that falls would occur because of the nature of the business, eg the food court's presence near the mall main area. Nebraska Court of Appeals rejects this theory as contrary to the Nebraska Supreme Court's notice rule, lately defined at Herrera v. Fleming Cos., 265 Neb. 118, 655 N.W.2d 378 (2003), Lenzens argue that the district court erred in failing to adopt the mode-of-operation rule which a minority of other states have adopted. The mode-of-operation rule provides that "the plaintiff is not required to prove notice if the proprietor could reasonably anticipate that hazardous conditions would regularly arise" based on a business' choice of a particular mode of operation. Chiara v. Fry's Food Stores of Arizona, Inc., 152 Ariz. 398, 400, 733 P.2d 283, 285 (1987). The Lenzens contend that the Appellees were charged with knowledge of the hazardous condition under the mode-of-operation rule because the Appellees permitted drinks purchased in the food court to be carried outside the food court area and into the common areas of the Mall and because the Appellees knew that people had slipped and fallen within the Mall. We have already generally described the current state of the law concerning premises liability cases in Nebraska. Among other things, the plaintiff must establish that the defendant created the condition, knew of the condition, or by the exercise of reasonable care should have discovered or known of the condition. The mode-of-operation rule renders immaterial actual or constructive notice of a dangerous condition prior to an accident--something clearly required by the precedent in Nebraska. Eliminating the notice element would make certain store owners insurers of the safety of their patrons and would essentially make those store owners strictly liable for slip-and-fall injuries occurring on their premises

Why is Justice Gerrard a "frontrunner" with Governor Heinemann for Chief Justice of the Nebraska Supreme Court?Omaha.com: The world herald reports that only three of the nine applicants for the Nebraska Supreme court appear to be the front-runners to become Nebraska's new chief justice, several insiders say: Supreme Court Judge John Gerrard, District Judge John Icenogle and U.S. Attorney Mike Heavican. "Lawyers speaking anonymously also said they expect Gov. Dave Heineman likely will feel some pressure to appoint a Republican to the post, given that the seven-member Supreme Court now is composed of Democrats appointed by former Gov. Ben Nelson. " Why would a partisan democrat be on the Governor's short list in the first place? Justice Gerrard has not done Heinemann's administration any favors. Best guess: if Gerrard is up for the Chief Justiceship, one of the Governor's own will take Gerrard's slot representing northeastern Nebraska.

Follow up: Grand Island veterinarians' civil rights suit against Racing Commission dismissed; Eighth Circuit finds the Racing commission has quasi judicial immunityVan Horn et al v. Oelschlager etal U.S. Court of Appeals Case 053000P.pdf 08/10/06 District of Nebraska District court denied summary judgment based on qualified immunity to state racing commissioners for decision banning licensed veterinarians from treating race horses based on a finding they failed to provide the court with a meaningful statement of the facts. District court is reversed, as commissioners are entitled to absolute, quasi-judicial immunity. The Commission's powers in conducting disciplinary hearings are similar to judicial powers. theCommissioners' actions are likely to result in lawsuits for damages by disappointed parties, as illustrated by the instant lawsuit. sufficient safeguards exist in the regulatory framework to control unconstitutional conduct. Specifically, aggrieved parties may appeal the Commission's decision in state court.board members were entitled to absolute, quasi-judicial immunity byvirtue of the fact that their proceedings were quasi-judicial in nature. Dunham v. Wadley, 195 F.3d 1007, 1010 (8th Cir. 1999).

Eighth Circuit agrees that toxicologist did not meet Daubert standards in nuisance case against Tyson/IBP for operating a foulsmelling plant in Dakota City; Court of appeals further refuses to allow an "unjust enrichment" claim against TysonBlog 702 reports the Eighth Circuit refused dubious testimony from an expert to back up a Dakota City resident's claim of nuisance for the meat packing plants noxious odors. I thought thats the reason folks live up there, if not for the good mexican food. Maybe the Nebraska Supreme Court could take some cues from the Eighth Circuit that Daubert is meant to weed out the expert chaff, not let it in. Compare this case Marmo v. Tyson Fresh Meats, Inc., No. 05-1906 (8th Cir. Aug. 3, 2006) (Arnold, Smith, & Magnuson, JJ.) with Epp v. Lauby, (complainers disease fibromyalgia). The Court of Appeals also gets to reject a more novel (frivolous) argument from the Plaintiff that her nuisance claim is also an unjust enrichment claim: Marmo admits that neither the Nebraska Supreme Court nor the Nebraska Legislature has recognized an unjust enrichment claim based on a pollution easement theory, but nonetheless argues that Nebraska case law supports her claim. Nebraska courts have recognized an unjust enrichment claim to allow a purchaser who made valuable improvements to a property to recover the reasonable value of the improvement. See McIntosh v. Borchers, 266 N.W.2d 200, 203 (Neb. 1978). They have also recognized an unjust enrichment claim to require payment for land use when an individual disavowed an obligation to pay for the use. Bush, 173 N.W.2d at 369. However, no Nebraska state court has recognized a negative unjust enrichment claim based on the pollution easement theory, which seeks disgorgement of profits unjustly saved by a polluter.4 Rather, Nebraska courts focus on how the pollution injures the plaintiff, and that claim is properly brought under the law of nuisance. See Bargmann v. Soll Oil Co., 574 N.W.2d 478, 486 (Neb. 1998); Karpisek v. Cather & Sons Constr., Inc., 117 N.W.2d 322, 326-27 (Neb. 1962). There is no indication that the Nebraska Supreme Court would recognize an unjust enrichment claim on the facts of this case. Thus, the proposed amendment would have been futile, and the district court did not err in denying Marmo leave to amend the complaint.

Nebraska Supreme Court will consider Daubert challenges to expert testimony for retrial of arson/murder case when first trial took place before date of Nebraska Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001)decision even though Nebraska Supreme Court had on first appeal rejected the Defendant's ; Most of fire experts testimony allowed under Daubert standardsState of Nebraska, v. Davlin, (Davlin II) 272 Neb. 139 Filed August 4, 2006. No. S-05-547. The law-of-the-case doctrine does not bar consideration of the expert testimony issues even though the Supreme Court already ruled on the admissibility of the fire experts in Davlin I,. Because an expert's testimony and opinions may vary from one trial to the next, the law-of-the-case doctrine does not necessarily preclude a foundational challenge to an expert's testimony in a retrial. Furthermore Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001), adopting the Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993),ordered that Daubert apply prospectively for trials commencing on or after October 1, 2001. The Daubert/Schafersman standards were not applicable in Davlin's first trial which commenced in March 2000, Davlin I, 263 Neb. 283, 639 N.W.2d 631 (2002), but were applicable in the retrial which commenced in January 2005. The Court may consider a Defendant's Daubert/Schafersman challenge to the expert testimony presented at retrial but sustains the trial court's findings.

Court permit and may even require trial and pledings of the underlying cause along with the declaratory judgment action HEIMBOUCH, v.VICTORIO INSURANCE SERVICE, INC 369 N.W.2d 620, 220 Neb. 279 [4] June 28, 1985 In a declaratory judgment action on a contract, the court may not only construe the contract but it is authorized to enter judgment for the amount due thereunder in the light of the interpretation made. The district court clearly has power to retain jurisdiction and grant further relief where it has entered a declaratory judgment declaring the rights of the parties under a contract. n its second assignment of error the defendant contends that the trial court erred in entering a present judgment for future installment payments of termination compensation. Pursuant to Neb. Rev. Stat. §§ 25-21,149 et seq. (Reissue 1979), an action for declaratory judgment determines the rights of the parties in a justiciable controversy and is binding on any further adjudication between the parties as to the rights so declared. Russell v. First York Sav. Co., 218 Neb. 112, 352 N.W.2d 871 (1984). Furthermore, this court has said: "'In a declaratory judgment action on a contract, the court may not only construe the contract but it is authorized to enter judgment for the amount due thereunder in the light of the interpretation made.'" Dixon v. O'Connor, 180 Neb. 427, 433, 143 N.W.2d 364, 368 (1966); Richardson v. Waterite Co., 169 Neb. 263, 99 N.W.2d 265 (1959). In the case at bar the district court properly entered a judgment for the amount of principal and interest due at the time of trial. See Richardson, supra. Although the trial court specifically found when and in what amounts the remaining payments were payable, no judgment was entered in that regard. Rather, the court said: "Plaintiff is granted a declaratory judgment that the defendant is obligated to pay to the plaintiff the sum of $17,182.02 in annual installments of principal and interest in accordance with the parties' contract." [36] This case is distinguishable from First Nat. Bank v. Omaha Nat. Bank, 191 Neb. 249, 214 N.W.2d 483 (1974), cited by the defendant. In First Nat. Bank the judgment ordered that certain unmatured installments of rent, taxes, and insurance were to be paid as they fell due, that the court would retain jurisdiction, and that the judgment "'shall mature and become effective as to each unmatured installment . . . on the day after said installment or payments are due and execution may then issue . . . .'" Id. at 251, 214 N.W.2d at 485. We vacated that part of the judgment relating to future installments and the issuance of execution as to any unmatured installments of rent, taxes, and insurance. We stated, however: "The District Court clearly has power to retain jurisdiction and grant further relief where it has entered a declaratory judgment declaring the right of the parties under a contract." Id. at 252, 214 N.W.2d at 485. The specific findings concerning future amounts payable made in the case at bar were not determined from such indefinite and variable subject matter, nor was any provision made regarding the entry of judgment and the issuance of execution. [5] DANIEL HOIENGS, ON BEHALF OF HIMSELF AND ALL OTHER PERSONS SIMILARLY SITUATED, APPELLANT,v. COUNTY OF ADAMS ET AL., APPELLEES. 516 N.W.2d 223, 245 Neb. 877May 13, 1994 It is true that Hoiengs asks for more than a declaration as to the contributions the retirement act requires of the counties, he also asks that the counties be required to pay the system the difference between the contributions they have made and those they should have made. The fact is, however, that a court may, among other things, grant a money judgment as consequential relief in a declaratory judgment action. Heimbouch v. Victorio Ins. Serv., Inc., 220 Neb. 279, 369 N.W.2d 620 (1985) (court in declaratory judgment action may not only construe contract, but is authorized to enter judgment for amount due thereunder); Dixon v. O'Connor, 180 Neb. 427, 143 N.W.2d 364 (1966) (where in declaratory judgment action court found relationship of parties to be that of landlord and tenant, granting of accounting was within equitable jurisdiction of court). [147] Thus, the fact that Hoiengs asks for relief which may include a money judgment does not mean he has failed to state a cause of action for declaratory relief. Federal courts held that the comparable federal rule in 28 usc 2202 allowing for the court's discretion to conduct further proceedings did not relieve a party from filing a counterclaim to a declaratory judgment action when it would be mandatroy under frcp 13 United States Court of Appeals for the Federal Circuit 03-1176 347 F.3d 935, 938 (Fed. Cir. 2003 POLYMER INDUSTRIAL PRODUCTS COMPANYand POLYMER ENTERPRISES CORPORATION,Plaintiffs-Appellants,v.BRIDGESTONE/FIRESTONE, INC., ..II,,PIPCO challenges the district court's dismissal of its claim under Fed. R. Civ. P. 12(b)(6), arguing that the Declaratory Judgment Act's "further relief" section, 28 U.S.C. § 2202, allows PIPCO to now seek further relief of damages based on the declaratory judgment of infringement in the previous litigation. ...The district court held that PIPCO's present infringement claim was a compulsory counterclaim to Bridgestone's declaratory judgment claim of noninfringement in the prior litigation. Consequently, having failed to bring it then, PIPCO is forever barred from revisiting the issue. In arriving at this conclusion, the district court relied on Fed. R. Civ. P. 13(a). The district court held that PIPCO's present infringement claim was a compulsory counterclaim to Bridgestone's declaratory judgment claim of noninfringement in the prior litigation. Consequently, having failed to bring it then, PIPCO is forever barred from revisiting the issue. In arriving at this conclusion, the district court relied on Fed. R. Civ. P. 13(a). § 2202. Further relief Further necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against any adverse party whose rights have been determined by such judgment. 28 U.S.C. § 2202 (2000). This court addressed the Declaratory Judgment Act in B. Braun Medical, Inc. v. Abbott Laboratories, 124 F.3d 1419 (Fed. Cir. 1997). In particular, this court noted: [T]he [Declaratory Judgment] Act is a procedural device that provides a new, noncoercive remedy (a declaratory judgment) in cases involving an actual controversy that has not reached the stage at which either party may seek a coercive remedy (such as an injunction or damages award) and in cases in which a party who could sue for coercive relief has not yet done so. Id. at 1428. PIPCO relies on this statement to support the proposition that § 2202 serves as an exception to the compulsory counterclaim doctrine of Rule 13(a). To the contrary, the language in Braun simply explains that a declaratory judgment is appropriate in cases in which a party who could sue for coercive relief has not yet done so. That proposition has no bearing on the application of Rule 13(a) after a declaratory judgment action. Under Rule 13(a), a party who has waived a compulsory counterclaim has no right to sue for relief in a separate and later case. Braun simply does not address the effect of a compulsory counterclaim. Finally, in Braun, unlike the case at bar, the court authorized further relief in a separate trial conducted in the same case. Id. Braun did not deal with further relief in a case brought after final judgment in the initial declaratory judgment case. In Braun, Braun sued Abbott for patent infringement; Abbott filed a declaratory judgment counterclaim for, inter alia, noninfringement. The jury returned a verdict in favor of Abbott, finding no infringement and further concluding that Braun had misused the patent. After this verdict, the district court held a separate eight-day trial to determine whether Braun's patent misuse had caused any damages to Abbott. The district court based this trial on § 2202 of the Declaratory Judgment Act. PIPCO does not cite a case from any circuit that has applied § 2202 of the Declaratory Judgment Act to allow a claim for patent infringement damages in a new action based upon a declaratory judgment ruling in a previous action. In sum, this court discerns no authority for the notion that § 2202 operates as an exception to Rule 13(a). Indeed, § 2202 merely states that further relief based on a declaratory judgment "may be granted." 28 U.S.C. § 2202 (2000). This section creates no statutory right to relief. If Rule 13(a) does not operate as a bar, § 2202 may acknowledge that a party may obtain further relief in a subsequent and separate action. See, e.g., Horn & Hardart Co. v. Nat'l Rail Passenger Corp., 843 F.2d 546, 549 (D.C. Cir. 1988) (A separate action for further relief under § 2202 was not barred where "Rule 13(a)'s compulsory counterclaim requirement never became relevant."). In this case, however, PIPCO could have requested the further relief it now seeks in the previous action following the jury verdict. PIPCO admits that it chose not to do so. PIPCO's choice has consequences, one of which flows from Rule 13(a). Nothing in § 2202 authorizes a party to seek further relief based on a declaratory judgment without regard for other established rules of procedure. Accordingly, this court holds that § 2202 of the Declaratory Judgment Act does not permit a party to assert an infringement claim, which was a compulsory counterclaim to a declaratory judgment action in a prior litigation. The district court's judgment of dismissal is, therefore, affirmed.

Follow up: although some DUI prosecutions from the City of Omaha between 1999 and 2003 were invalid according to the NEbraska supreme Court ( State v Loyd, 265 Neb. 232 (Neb 2003)), the State may still use final judgments from that time to enhance penalties for later DUI offensesState v. Keen, 272 Neb. 123 Filed July 28, 2006. No. S-05-945. The Nebraska Supreme Court seems to have tamed its Loyd, which appeared to let drunk drivers loose on the streets because hundreds of drunk drivers were prosecuted under the City Code's invalid version of Nebraska's drunk driving law. State v Keen however forecloses any worse consequences from Loyd as the Supreme Court upholds the use of those possibly invalid convictions to enhance subsequent DUI prosecutions. The Supreme Court rules that Keen's prior convictions under Omaha's 1995 DUI law is res judicata, and thus any challenge to the conviction during enhancement proceedings in subsequent cases amounts to an illegal collateral attack on a final judgment. Keen maintains that to use the 1998 conviction for enhancement purposes, the State must prove he was convicted under an ordinance which was enacted "in conformance with" the DUI statute. See § 60-6,197.02(1)(a). He bases his position on State v Loyd, 265 Neb. 232, 655 N.W.2d 703 (2003), in which this court held on a direct appeal by the State that § 36-115 (1998) of the Omaha Municipal Code was unenforceable because the penalty provisions therein were inconsistent with those in § 60-6,196 (Cum. Supp. 2000).. we assume that the DUI ordinance under which Keen was convicted in 1998 would be unenforceable under Loyd and that if Keen had pled not guilty and raised the issue of the ordinance's invalidity when he was prosecuted in 1998, the ordinance would have been invalidated. When a judgment is attacked in a manner other than by a proceeding in the original action to have it vacated, reversed, or modified, or by a proceeding in equity to prevent its enforcement, the attack is a collateral attack. State v. Smith, 269 Neb. 773, 696 N.W.2d 871 (2005). When the court has jurisdiction over the person and subject matter, a party to the proceeding will be bound by the judgment in the case when collaterally attacking it, even though the judgment was irregularly or erroneously entered. See, Mayfield v. Hartmann, 221 Neb. 122, 375 N.W.2d 146 (1985); State ex rel. Ritthaler v. Knox, 217 Neb. 766, 351 N.W.2d 77 (1984). Until such judgment is rendered void in a proper proceeding and set aside, it remains "'"'valid and binding for all purposes and cannot be collaterally attacked.'"'" Mayfield, 221 Neb. at 124, 375 N.W.2d at 148. This court has recognized that a judgment is an adjudication of all the matters that are essential to support it, and every proposition assumed or decided by the court leading up to the final conclusion and on which such conclusion is based is as effectually passed upon as the ultimate question which is finally resolved. Norlanco, Inc. v. County of Madison, 186 Neb. 100, 181 N.W.2d 119 (1970) The doctrine of res judicata, precluding subsequent litigation of the same cause of action,"is much broader in its application than a determination of the questions involved in the prior action; the conclusiveness of the judgment in such case extends not only to matters actually determined, but also to other matters which could properly have been raised and determined therein. The rule applies to every question relevant to and falling within the purview of the original action, in respect to matters of both claim or grounds of recovery, and defense, which could have been presented by the exercise of diligence." Id. at 106, 181 N.W.2d at 123. Inherent in Keen's 1998 conviction was a determination that the Omaha DUI ordinance to which he pled no contest and under which he was convicted was enforceable, and inherent in that determination was a finding that the city ordinance under which he was convicted was "in conformance with" the state statute. See § 60-6,197.02(1)(a). Thus, Keen could have and should have raised these issues in the 1998 prosecution.

Collateral attacks on previous proceedings are impermissible unless the attack is grounded upon the court's lack of jurisdiction over the parties or subject matter. State v. Smith, 269 Neb. 773, 696 N.W.2d 871 (2005). Only a void judgment is subject to collateral attack. Mayfield v. Hartmann, 221 Neb. 122, 375 N.W.2d 146 (1985). Although Keen's 1998 DUI conviction may have been voidable and subject to reversal upon appeal, it was not void.

We conclude that Keen's 1998 DUI conviction was valid for the purpose of sentence enhancement and that Keen is attempting to collaterally attack that conviction. Therefore, we affirm the judgment of the district court on this issue.

Interesting comments on Nebraska 12b6 motion practice from the supreme court: The district court may rely on judicially noticeable facts when ruling on a defendant's Rule 12b6 motion without converting it into a motion for summary judgment; Nebraska supreme court further holds that action against law firm for improper registration of securities (Neb. U.C.C. § 8-404(a)(1) and 8-407) is not a professional negligence action. Plaintiffs brought derivative claims on behalf of Aaron Ferer & Sons Co. (AFSC) against the Erickson & Sederstrom (E&S) law firm and the corporation to recover for the law firms allegedly negligent representation of the corporation. Plaintiff brought an individual action against the same defendants to recover for the alleged wrongful registration of his AFSC shares of common stock. The district court granted law firm's Rule 12b6 motion to dismiss. The district court treated the plaintiff's 8-404 claim as one for professional malpractice and concluded that E&S, who served as corporate counsel and transfer agent for AFSC, did not owe a duty to the plaintiff. With regard to the appellants' derivative claims, the district court found that the appellants did not fairly and adequately represent the shareholders of AFSC. Supreme Court agrees with the District court on its dismissing the derivative action but reverses the District Court on the registration claim under Neb. U.C.C. § 8-404(a)(1) (Reissue 2001). 8-407 claim was not a malpractice claim E&S was not acting as legal counsel with respect to the allegedly wrongful registration of Aaron's stock. Rather, it was alleged to be acting as transfer agent for AFSC.E&S was alleged to be acting in its capacity as transfer agent for AFSC, not in its capacity as legal counsel, when it transferred Aaron's shares of AFSC stock. Hence, E&S may potentially be held liable under § 8-407 for wrongful registration.Aaron has alleged in his operative complaint that E&S transferred his shares of AFSC to Harvey Ferer and then to Matthew Ferer and Whitney Ferer, despite his failure to endorse the stock certificate or authorize the transfer. If Aaron's allegations are true, which we must assume for purposes of a motion to dismiss, see Carruth v. State, 271 Neb. 433, 712 N.W.2d 575 (2006), E&S would be liable under § 8-407 because of the alleged ineffective endorsement. We therefore conclude that Aaron has stated a claim for wrongful registration, and the district court erred in concluding otherwise. Court when ruling on a Rule 12b6 motion to dismiss may look at publicly known facts12(b)(6) motions test the legal sufficiency of the complaint, not the claim's substantive merits. A court may typically look only at the face of the complaint to decide a motion to dismiss. See Van Buskirk v. Cable News Network, Inc., 284 F.3d 977 (9th Cir. 2002). However a court considering a rule 12b6 motion may take judicial notice of "'matters of public record'" without converting a rule 12(b)(6) motion to dismiss into a motion for summary judgment. Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001); Neb. Rev. Stat. § 27-201(6) (Reissue 1995) judicialicial notice may be taken at any stage of the proceeding"). See, also, Watterson v. Page, 987 F.2d 1 (1st Cir. 1993). Thus, the district court may, and in this case did, consider the other lawsuits filed by the appellants in determining whether the district court erred in granting E&S' rule 12(b)(6) motion. conclusionAaron has stated a claim against E&S for wrongful registration under § 8-407. We therefore reverse the district court's dismissal of Aaron's individual claim against E&S. We affirm, however, the court's dismissal of the appellants' derivative claims against E&S for the reason that they do not fairly and adequately represent AFSC.

Nebraska supreme court resolves boundary line dispute between homeowners in subdivision ex-Governor Kerrey once owned. Huffman v. Peterson, S-04-941, 272 Neb. 62 (2006) Adjacent homeowners disputed their boundary line when newer homeowner sought to put in a detached garage. The homeowners there longer refused and the newer homeowner sued to quiet title. The complaining homeowners counterclaimed for ejectment. Supreme Court notes that the Plaintiff filed the wrong type of action to litigate the boundary dispute, but the defendant didnt object. Supreme Court holds that a common grantor had conveyed both properties and thus the parties understanding of the common grantor's boundary line controls. Boundary disputes are not to be determined in a quiet title action. Rather, boundary disputes are properly brought as an action in ejectment or pursuant to Neb. Rev. Stat. § 34-301 (Reissue 2004). Rush Creek Land & Live Stock Co. v. Chain, 255 Neb. 347, 586 N.W.2d 284 (1998). But when parties pursue a boundary dispute as a quiet title action without objection, the mode of procedure is no longer in question. Id. The common grantor rule provides that where conveyances from a common grantor to adjoining landowners describe the premises conveyed by lot numbers, but adjoining owners purchase with reference to a boundary line then marked on the ground, the boundary line, as marked on the ground by the common grantor, is binding upon such adjoining landowners and all persons claiming under them irrespective of the length of time which has elapsed thereafter. See Phillippe v. Horns, 188 Neb. 304, 196 N.W.2d 382 (1972). This equitable rule is designed to ascertain the intention of the parties with respect to the location of premises described by lot number in a conveyance which is executed by a grantor who conveys only part of an area of land owned by him. Kraus v. Mueller, 12 Wis. 2d 430, 107 N.W.2d 467 (1961).

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

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

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

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