Is adjoining synonymous with adjacent or contiguous? While Nebraska Supreme Court allowed Omaha PacMan style to annex Elkhorn when both did not share a common boundary, it sides with Sarpy county and against Gretna when that town sought to annex additional stretches of Highways 31 and 370. County of Sarpy v. City of Gretna, S-05-748, 273 Neb. 92 Gretna sought to annex stretches of highways 31 and 370 leading out of the city. Sarpy county objected, although by the existing map of Gretna's corporate limits there are several narrow stretches of city, and further there was no larger area at the far end of the stretch that Gretna sought to incorporate, unlike in Omaha's situation with Elkhorn.See City of Elkhorn v. City of Omaha, S-05-1006, 272 Neb. 867 The court reverses Gretna's annexation under § 17-405.01 finding the stips were not contiguous or adjacent. Omaha got by the Supreme Court reasoned because as a metropolitan class city under Section 14-117 it could annex towns that because of Omaha's annexations of contiguous or ajacent territory became adjoined to the metropolitan city limits. Fortunately for Omaha, its lobbyists in 1998 had slipped into the law concerning metropolitan class cities' annexation powers, the ability to annex adjacent/contiguous land and adjoining cities by consequence of the annexation : the invalidity of a strip annexation is not based uponthe existence of a larger tract at the distal end of the strip, but,rather,upon thelack of substantial adjacency where the proximal end meets the corpo-rate limits of thecity. Here, as in Johnson, the connecting point consists merely of the width of the highway right-of-way where itmeets the municipal boundary. While the shape of a tract does not determine whether it can be lawfully annexed, the lack of substantial adjacency to an existing corporate boundary precludes annexation under § 17-405.01.It is apparent from the record that Gretna attempted these annexations for the purpose of controlling future growth by enlarging its zoning jurisdiction, which by law extends 1 mile beyond its corporate limits. see neb.rev. stat. § 17-1001 (Cum.supp. 2006).While a city may have legitimate reasons forusing its annexation power to achieve planning and land use control objec-tives, it must nevertheless exercise that powerin strict compliance with the statute by which it is conferred

Follow up: Federal District Court in Kansas allows class action suit to proceed against Tyson despite earlier 1994 settlement to the contrary. KansasCity.com Last week the US District Court for Kansas denied summary judgment to Tyson Foods in its Holcomb Kansas workers' class action suit that seeks millions of dollars in back pay for overtime to put on special protective gear in the plant. Tyson alleged the 10th Circuit decision in 1994 settled the matter and even though the US Supreme Court reversed the law on that case it was still final. See Reich v. IBP, Inc., 38 F.3d 1123 (10th Cir. 1994). The recent case is Garcia et al v. Tyson Foods. USDC KS 06-2198-JWL In 1994, the 10th U.S. Circuit Court of Appeals held that donning and doffing of standard protective gear was not “work” within the meaning of the federal wage and hour laws and therefore was not compensable. But in 2005, the Supreme Court in IBP, INC. V. ALVAREZ (03-1238) held that any activity that is “integral and indispensable” to a “principal activity” performed by production workers is compensable under the Fair Labor Standards Act.The case before Lungstrum was filed last May by 262 current and former workers at the Tyson Fresh Meats Inc. plant in Holcomb. The number of plaintiffs has since grown to 823. The workers claimed they did not receive wages and overtime pay for the time spent putting on and removing protective clothing and walking to and from work stations. The suit seeks certification as a class action on behalf of all overtime-eligible Tyson employees who have worked at the 2,500-employee plant in the past five years. Lungstrum’s ruling came after Tyson sought summary judgment in the case. The company argued that the 10th Circuit’s 1994 decision was still applicable law in Kansas. In denying Tyson’s motion, Lungstrum found that whether standard protective clothing is “integral and indispensable” to the Tyson employees’ work is a factual question for a jury to decide. Tyson also argued that a settlement of the 1994 case, which was brought against meatpacker IBP by the Department of Labor, barred the workers’ additional request for compensation for time in excess of four minutes spent by employees donning and doffing specialized — as opposed to standard — protective clothing. The settlement required IBP, which was later acquired by Tyson, to compensate those employees an additional four minutes per shift for the time they spent putting on and removing specialized protective gear such as Kevlar gloves and sleeves, rubber gloves, plastic arm guards and mesh aprons. Lungstrum found that although the settlement used a “reasonable time” method to arrive at the back pay awarded to the workers, “it did not absolve defendants, on a prospective basis, from recording and compensating employees for actual time spent donning and doffing specialized clothing and gear.” Kansas City lawyer George Hanson, who represents the Tyson workers, said he was pleased with the decision and hoped that Tyson “will finally realize it is obligated to reform its compensation policies in order to comply with the law

Follow up: Legal ethics experts point out the Nebraska Supreme Court's lax policy of disciplining attorneys who can blame demon booze or dope. Legal Profession Blog. "The attorney was found to have made substantial progress in his recovery and will be required to show continued rehabilitation in order to be reinstated. If reinstated, the attorney's recovery will be monitored for two years"

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

Nebraska Supreme Court continues to chip away at the Political Subdivision Tort Claims Act: Supreme Court reverses 12(b)(6) that Omaha Public School District won against victim of alleged sexual assault. Doe v. Omaha Pub. Sch. Dist., S-05-794, 273 Neb. 79 Whether it was a rule 12(b)(6) ruling or one for summary judgment, the Supreme Court rules that the plaintiff could take to trial her claim that the School was negligent in not handling better a rogue student who assaulted her. Though the political subdivision tort claims act excludes incidents "arising" out of assaults (13-910(7) RRS Neb), the Supreme Court finds a way around the statute by finding the possible negligence occurred before the assault. See Sheridan v. United States, 487 u.S. 392, 401, 108 S. Ct. 2449, 101 L. ed. 2d 352 (1988) {naval personnel failed to restrain or apprehend armed drunken sailor who shot several bystanders near Bethesda Hospital, Federal Tort claims act exclusion did not apply} Further the acts of the school principal were not clearly discretionary functions (§ 13-910(2) RRS Neb). The supreme court failed to address however whether the act's additional loophole that the subdivision's purchase of liability insurance for otherwise immune incidents that wipes out the 13-910 immunity, See 13-916 , still means that Nebraska must adopt cookie cutter fashion all federal interpretations of the Federal Tort Claims Act.

Defendant in a Mrs Robinson situation found guilty of statutory rape. Nebraska court of appeals affirms conviction because circumstantial evidence of defendant's age was sufficient to convict. State v. McCulloch, A-06-275, 15 Neb. App. 381 Defendant who was convicted of sexual assault on a child under 15 while he was older than 19 filed for post conviction relief after his trial counsel did not appeal. The district court allowed a direct appeal. On appeal the defendant alleged ineffective counsel because there was insufficient evidence of his age. Nebraska court of appeals affirms, inpart because the state showed that the defendant had a sexual relationship with the victim's mother at least four years before. when the State is required to prove the age of a defendant, as in a prosecution under § 28-319(1)(c), the jury may consider the defendant’s physical appearance in determining whether the State has proven the defendant’s age. The defendant’s physical appearance must be combined with some other circumstantial evidence, and the combination of the physical appearance and other circumstantial evidence must be such that the jury can reasonably infer, beyond a reasonable doubt, that the defendant’s age is above the age required by statute.

Another Erie exam question brought to you by the Eighth Circuit:: Parties contract for installation of a pizza machine. Parties dispute installation. Pizza company sues manufacturer in Minnesota and wins judgment of $500K plus prejudgment interest. Defendant claims Wisconsin law applied according to their agreement, and Wisconsin would not have allowed prejudgment interest. Who wins? Schwan's Sales v. SIG Pack, Inc. U.S. Court of Appeals Case No: 061571P.pdf 02/09/2007 U.S. District Court for the District of Minnesota Plaintiff wins Minnesota prejudgment interest. Although interest is an Erie (304 U.S. 64, 78 (1938)) substantive issue (Emmenegger v. Bull Moose Tube Co., 324 F.3d 616, 624 (8th Cir. 2003)), so are conflicts of laws issues Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). Here Minnesota conflicts applied because the parties contract limited application of Wisconsin law to performance and interpretation. Minnesota made judgment interest procedural, therefore for the forum state to apply. Plaintiff claiming forum state prejudgment interest wins over party claiming Wisconsin contract interpretation but not procedural enforcement.the issue of prejudgment interest--a matter of substantive law for Erie purposes--is a procedural matter for conflict-of-laws purposes under Minnesota law. Therefore, we also agree that Minnesota's prejudgment interest statute applies in the absence of an choice-of-law provision that expressly governs procedural matters.

In a local Anna Nicole Smith scenario, second wife who was POD beneficiary on deceased husband's bank account could not stop payment on $10000 check he wrote to his first wife just days before his death. In re Trust of Rosenberg (Rosenberg II), S-05-757, 273 Neb. 59 Nebraska Supreme Court on 2nd appeal See In re Trust of Rosenberg, 269 Neb.310, 693 N.W.2d 500 (2005) (Rosenberg I). between the deceased's second wife and his children over disputed estate assets finds that Wife2 was not allowed to stop payment on the $10k check deceased husband wrote to Wife1 just days before his death, even though Wife2 was a POD on the account. The estate documents also did not clearly identify whether various assets of the deceased would become trust or personal assets of Wife2 following his death, so the Nebraska Supreme Court finds they would become wife2's assets. Finally Wife2 whom the county court removed as trustee in a final order could not present a bank's trust officer as her expert witness on her management abilities. Sounds like Wife2 did pretty well for herself after all.

Nebraska Medical Officer in charge of determining how to discipline doctors enjoys absolute immunity from Section 1983 actions Kerrey Buser, M.D. v. Richard Raymond etc. 061655P.pdf 02/07/2007 Lexington area physician sued in federal court challenging disciplinary sanctions the Department of Health imposed on him, including a $5000 fine and practice restrictions. Disciplined physician appealed the Chief Medical Officer’s final ruling to the District Court of Lancaster County but the County District Court affirmed. Physician sued in federal court and the US District Court found absolute immunity for Dr Raymond, the Chief Medical Officer. Eighth Circuit Court of Appeals affirms, with some reservations from Judge Beam. “Applying the absolute immunity factors to the present case, we conclude that Dr. Raymond is entitled to absolute immunity; {such protection is necessary so that the Chief Medical Officer can perform his functions without harassment or intimidation; the Chief Medical Officer's absence at the hearing does not deprive plaintiff of due process because the disciplinary procedures used contain adequate safeguards, especially the CMO plays no part in initiating the investigation and instead possesses the judicial powers of administering oaths and issuing subpoenas for witness testimony and document production. Neb. Rev. Stat. § 75-155(1). Therefore, DiBlasio v. Novello, 344 F.3d 292 (2d Cir. 2003) is inapposite to the instant case as Nebraska procedures afford the doctor adequate procedural safeguard. Judge Beam, concurring is concerned that the Nebraska procedures for disciplining doctors is close to the near summary methods in New York that the 2nd Circuit had found lacking in DiBlasio v. Novello, 344 F.3d 292 (2d Cir. 2003) (holding that New York medical officials were not entitled to absolute immunity from radiologist'sdue process claims arising from summary suspension of medical license:)Judge Beam comments: “review is limited to litigants in theNebraska (medical disciplinary) system. Review at the county district court under the Administrative Procedures Act is an extremely limited re-examination based on the agency record. See Neb. Rev. Stat. § 84-917. Nebraska should consider how it carries out its medical licensing revocation procedure, without undue reliance on the narrow review available in state district court, to ensure that the actions of Nebraska's CMO are well within the protections of absolute immunity and that all litigants are afforded ample due process. In this regard, it would appear to me to be more constitutionally sound for the hearing officer, who sees and hears the witnesses, views their demeanor, and is better able to judge their credibility, to make the necessary findings of fact, subject to a record review by the CMO.”

Nebraska Supreme Court reaffirms the "American Rule" against collecting attorney fees in judicial actions Plaintiffs who sought attorney fees could resist Defendants pleading for attorney fees in its counterclaim. Stewart v. Bennett, S-05-1100, 273 Neb. 17. In Parkert v. Lindquist, S-04-089, 269 Neb. 394 (February 25, 2005) the Nebraska Supreme Court ruled that provisions for collecting attorney fees in judicial actions were against state public policy unless the Legislature or exceptions to the "American rule" allowed it. In Stewart plaintiff tenants sought to establish a holdover tenancy to the Defendant's farm ground. Although the Plaintiffs sought attorney fees they denied they would owe attorney fees from the Defendant landowners counterclaim. Nebraska Supreme Court agrees that the Defendant's request for attorney fees from its counterclaim was void even though the Plaintiffs had asked for the same relief. The doctrine of judicial estoppel does not apply in this case because the district court never accepted the claim that the attorney fee provision was applicable. “‘absent judicial acceptance of the inconsistent position, application of the rule is unwarranted because no risk of inconsistent results exists.’” Vowers & Sons, Inc. v. Strasheim, Neb neb. at 514, 576 n.W.2d at 824

Lawsuits against the State of Nebraska under the Tort Claims Act are not "special proceedings" so the District Court's preliminary finding that the plaintiff had complied with procedural requirements of the tort claims act was not an appealable order. Pfeil v. State, S-05-896, 273 Neb. 12 Plaintiff County road worker was injured in an accident with a state road plow. Nearly two years after the accident, the plaintiff hired a new lawyer who wanted to lookinto a tort claim against the state. He could not determine whether the Plaintiff had filed a tort claim before then. Four days before the 2nd anniversary of the accident the plaintiff's new counsel filed simultaneously a state tort claim and a suit in douglas county district court against the state. See 81-8227 RRS Neb. Six months later the plaintiff withdrew his administrative tort claim and also amended his complaint to reflect this action. See 81-8213. The State argued that the Plaintiff's initial filing constituted a withdrawal of his tort claim, thus it was not timely. The district court agreed with the plaintiff during a separate trial. The State appealed and the Nebraska Supreme Court dismisses the appeal. According to § 25-1902 special proceeding includes every special statutory remedy which is not in itself an action. Webb v. American Employers Group, 268 neb. 473, 684 n.W.2d 33 (2004). a judgment rendered by the district court that is merely a step or proceeding within the overall action is not a special proceeding. Id. a special proceeding which affects a substantial right is, by deinition, not part of an action. Id. Generally, a “special proceeding,” within the meaning of § 25-1902, entails civil statutory remedies not encompassed in chapter 25 of the Keef v. State, supra. examples of nebraska revised statutes.however, that a reading of the act as a whole indicates that once suit is instituted, an action against the state is intended for the most part to be treated as any other negligence action. this intent is expressed in § 81-8,216, which provides that the district courts shall follow the rules of civil procedure applicable to private litigants in actions against the state.

Follow up: no worker compensation suicidal State Patrolman's relatives Zach v. Nebraska State Patrol, S-05-449, 273 Neb. 1. Nebraska Supreme Court reverses court of appeals ruling that called for the patrolmans family to have a chance to prove their case at trial. When the family alleged that the patrolman suffered solely a mental stimulus from learning that he had stopped a bank robber and let him go, resulting in suicide the stimulus was neither an accident nor an occupational disease. See 48-151(4) and 48-101 /RRS Neb. it is speciically alleged that the changes to Zach’s brain were caused by “being advised of the con-sequences of an injury caused by a mental stimulus does not meet the requirement in §48-151(4) that a compensable accidental injury involve “violence to the physical structure of the body.” accordingly, the court of appeals and the review panel of the Workers’ compensation court erred in concluding that the operative petition stated a claim for accidental injury arising out of and in the course and scope of Zach’s employment with the nebraska state patrol error,” which is clearly a mental stimulus. based upon principles articulated in Bekelski and subsequent cases, under current nebraska law, a compensable injury caused by an occupational disease must involve some physical stimulus constituting violence to the physical structure of the body. because the injury in this case is alleged to have resulted entirely from a mental stimulus, no claim is stated for injury caused by occupational disease.

Nebraska Court of Appeals in 2 unpublished opinions requires sentencing courts to run accompanying weapons charges consecutively to the underlying felonies. Neb. Rev. Stat. § 28-1205(3) State v. Short, A-06-332 and State v. Colpitts, A-06-554

Nebraska Court of appeals dismisses workers request for waiting time penalties and attorney fees against employer who delayed funding a lump sum settlement that included terms requiring Medicare/Medicaid’s approval of the lump sum’s set-aside provisions. Garcia v. Platte Valley Constr. Co., 15 Neb. App. 357 Filed January 30, 2007. No. A-06-490. Worker who was injured in 1995 reached a lump sum settlement with the employer in January 2005. The lump sum documents reflected that final approval would not take place until the Center for Medicare Services, (CMS). CMS did not approve the lump until more than 30 days after the conditional lump sum approval date. Employee and attorney filed for additional waiting time penalties and attorney fees. See 48-125 RRS Neb. Trial court denies motion finding the award was not final. Court of appeals dismisses appeal finding the order was not final so it was not appealable. The lump sum order stated "Approval of this WCMSA is not effective until a copy of the final executed workers' compensation settlement agreement, which must include this approved WCMSA amount, is received by CMS at the following address[.]"Because that order did not "perform in praesenti," we further find that the January 12 order was wholly void. That order does not operate as a final judgment, and it is wholly ineffective as such. Therefore, we find that the instant appeal must be dismissed for lack of a final, appealable order and that the proper resolution is to remand to the review panel for remand to the trial court for entry of a final order in this case.

Eighth circuit Court of Appeals summary judgment in Sherman Act complaint against manufacturer of multiple use kidney dialysis devices. HDC Medical v. Mandioc Corp. 061638P.pdf 01/25/2007 U.S. District Court for the District of Minnesota - Minneapolis [PUBLISHED] [Smith, Author, with Bowman and Colloton, Circuit Judges]. The Plaintiff manufactured kidney dialysis devices and reprocessing solutions. The defendant competed against the Plaintiff but retooled its device to make Plaintiff's solutions unusable. Also through warranty claims and tying arrangements, it shut out Plaintiff from its customers. Plaintiff filed a Sherman Act complaint against the Defendant, alleging that the Defendant monopolized the market for reprocessing devices. The district court ordered summary judgment for the defendant finding that the defendant did not possess monopoly market power. Eighth Circuit court of appeals affirms, finding that although there was a significant price differential between defendant's products and similar products in the market, this did not segment the defendant's product into its own market. The boundaries of the product market can be determined by the reasonable interchangeability or cross-elasticity of demand between the product itself and possible substitutes for it. Brown Shoe Co. v. United States, 370 U.S. 294, 325 (1962); United States v. Archer-Daniels-Midland Co., 866 F.2d 242, 246 (8th Cir. 1988) cert.denied; 493 U.S. 809 (1989). In other words, the product market can be determined by analyzing how "consumers will shift from one product to the other in response to changes in their relative costs." SuperTurf, Inc. v. Monsanto Co., 660 F.2d 1275, 1278(8th Cir. 1981) District court did not err in determining that the same market and that defendant did not possess monopoly power in this market; the fact that there was a significant price differential between the two dialyzers was not the only factor to be considered in determining the relevant product market; with respect to plaintiff's anti-competitive conduct claim, the district court did not err in finding that Plaintiff failed to offer any evidence to support its allegations of predatory or anti-competitive conduct and that it also failed to show that defendant's conduct had a dangerous probability of success. HDC offered no evidence, other than a substantial price differential, to support the conclusion that single-use dialyzers are a distinct product market from multi-use dialyzers. Accordingly, we must affirm the district court's grant of summary judgment on HDC's monopolization claim, because HDC failed to create a jury question on the issue of the relevant product market. United States v. Archer-Daniels-Midland Co., 866 F.2d 242, 246 (8th Cir. 1988) cert. denied; 493 U.S. 809 (1989)

Another case from the Eighth Circuit Court of Appeals going up to the Supremes: Atlantic Research v. USA 05-3152 (WD Ark 2006) whether parties may seek contribution for superfund cleanup costs. See Scotusblog. Atlantic Research contaminated its area where the company retrofitted rocket motors for the federal government during the 80's. Bloggers note that industry, state governments and enviromentalists came together on the same side. The issue’s importance to owners of Superfund sites, which include many industrial corporations, is self evident: remediation of these “brownfield” sites can be so costly that, without a legal mechanism to share costs prior to EPA-initiated clean-ups, these properties remain abandoned until EPA turns its attention to them. But EPA has so many sites to attend to that it could be years before it seeks to compel clean-up at any given site. Granting a pre-enforcement contribution right, landowners contend, allows them to clean up property much earlier than they otherwise would and reap the benefit from idling assets, and the Eighth Circuit along with the 2nd circuit agreed. The United States Supreme Court earlier in Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157, 125 S. Ct. 577, 160 L. Ed. 2d 548 (2004) (“Aviall”) found that a party could only attempt to obtain § 113(f) contribution “during or following” a §§ 106 or 107(a) CERCLA civil action. Id. at 161, 125 S. Ct. at 580. Atlantic Research amended its complaint to seek Section 107(a) contribution. The Western District of Arkansas Federal Court dismissed the complaint on the federal governments 12b6 motion. The Eighth Circuit reversed finding that after Aviall, Section 107a provides a distinct avenue to recover cleanup costs, following a 2nd Circuit opinion holding this, Consolidated Edison Co. v. UGI Utilities, Inc., 423 F.3d 90, 100 (2d Cir. 2005 at 99. {“it no longer makes sense” to view section 113(f)(1) as the exclusive route by which liable parties may recover cleanup costs. } Therefore [the eighth circuit] concluded that the broad language of § 107 supports not only a right of cost recovery but also an implied right to contribution.

Nebraska Court of Appeals finds sale of ongoing business that comprised real estate, buildings fixtures and goods was not subject to UCC Article 2 on Sales; however court affirms judgment in favor of seller because buyer of business waived condition precedent for an inventory of goods and inventory remaining after sale.MBH, Inc. v. John Otte Oil & Propane, 15 Neb. App. 341 Filed January 23, 2007. No. A-05-292 "Since the predominant purpose of the contract was the sale of an ongoing business. The essential elements of the contract are nongoods, including real estate, buildings, and goodwill, the sale was not one primarily of goods, and therefore Article 2 did not apply." However In the instant case, the terms of of the contract calling for (an inventory of existing product, fixtures, etc) became enforceable after the closing. The terms became defined by the parties' subsequent actions that indicated their interpretation of the terms. MBH's delivery of chemicals, fertilizer, and grain along with inventories of these items and Otte's acceptance of these items supplied the terms missing from paragraph 5, making it an enforceable provision. This occurred despite the fact that the joint inventory contemplated by the parties was not completed. We further explain our decision in our following response to Otte's argument that the trial court erred when it found that Otte waived the joint inventory as a condition precedent to enforcement of paragraph 5.

Order of the kneepads update: on the respondent's fourth trip to the Supremes on disciplinary charges, he escapes with suspension concurrent to the discipline the Nebraska Supreme court imposed last year, with conditions on reinstatement. State ex rel. Counsel for Dis. v. Petersen, S-06-182, 272 Neb. 975 What is it with the Nebraska Supreme Court and its chronic sympathy for substance abusers and alcoholics? As long as the attorney gets into the assistance Program it seems he can have a chance to save his ticket. In the 3rd case, the referee thought the reform efforts were too little too late. Now after the counsel for discipline prosecutes more charges of neglecting client cases, the attorney is seeking adequate counseling and will have a chance at reinstatement. The former reported cases were:State ex rel. Counsel for Dis. v. Petersen, 264 Neb. 790, 652 N.W.2d 91 (2002){Supreme court dismisses case because Counsel for Discipline botched it} State ex rel. Counsel for Dis. v. Petersen, 267 Neb. 176, 672 N.W.2d 637 (2004){reciprocal suspension for 30 days after eighth circuit court of appeals suspends attorney for failing to file a brief} State ex rel. Counsel for Dis. v. Petersen, 271 Neb. 262, 710 N.W.2d 646 (2006) {serial neglect of client matters indefinite suspension until February 2008}

Follow up: although Nebraska Supreme Court did not walk meth-head mom Brandy Blair for allowing her 2 year child to die by electrocution, it reverses the jury verdict convicting her of intentional child abuse resulting in death because the court should have allowed the defendant to offer negligent child abuse as a lesser included offense. State v. Blair, 272 Neb. 951 Filed January 19, 2007. No. S-05-544. The Supremes gives the defendant a pass and orders the Lancaster County district court to retry the defendant with a negligent child abuse option as a lesser included offense. The Supremes thought that since there were so many other scum slacker kids in the house at least one of them could have taken charge of the child's care. The Court further found that even though the jury found intentional child abuse, it could have found it also negligent. I see that the Supreme Court didnt see a need to cite the child abuse statutes in its decision (28-707 et seq RRS Neb) "The dispositive issue is whether an instruction on negligent child abuse was warranted by the evidence. Negligent child abuse is a lesser-included offense of intentional child abuse resulting in death. See State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006). The jury was instructed that it could find Blair guilty of intentional child abuse resulting in death, guilty of intentional child abuse, or not guilty."We conclude the evidence provided at least a rational basis for the jury to acquit Blair of intentional child abuse and convict her of negligent child abuse. This is not to say that the jury would necessarily have believed the evidence presented by Blair. However, such evidence provided a rational basis for the jury to potentially find that the abuse was committed negligently and not knowingly and intentionally the jury was not given the opportunity to consider whether Blair acted negligently and the failure to instruct on the elements of negligent child abuse was not harmless error. We therefore reverse the judgment of conviction and remand the cause for a new trial.

Nebraska court of appeals denies constitutional challenge to fetal homicide law because defendant failed to file the proper notice with the Clerk of the Supreme Court State v. Moss (Not Designated for Permanent Publication) Filed January 16, 2007. No. A-05-1132.Appeal from the District Court for Douglas County: J. Patrick Mullen, Judge. Affirmed Defendant convicted of second degree murder and fetal homicide challenged constitutionality of § 28-392 as unconstitutionally vague and overbroad, both on its face and as applied to Moss. Court of appeals affirms conviction and finds Dfendant did not comply with Neb. Ct. R. of Prac. 9E (rev. 2006) Nebraska Supreme Court rules of practice, which requires the appellant to notify the clerk of the supreme court that he is challenging the constitutionality of a law: The record shows that on June 28, 2004, Moss filed a motion to quash the count of the information charging him with second degree murder of Harlan's unborn child. In support of Moss' motion, he alleged that § 28-392 was unconstitutionally vague and overbroad, both on its face and as applied to him. In an order filed October 5, the district court denied Moss' motion to quash. Moss filed an appeal from that order, and this court dismissed the appeal for lack of jurisdiction under Neb. Ct. R. of Prac. 7A(2) (rev. 2001). See State v. Moss, 13 Neb. App. ___ (No. A-04-1192, Dec. 14, 2004). Moss properly presented the constitutional issue to the district court. However, the record does not show that Moss complied with rule 9E, which requires in part that when filing a brief, a party alleging unconstitutionality of a federal or state statute must file and serve a separate written notice of the challenge to the statute with the Clerk of the Supreme Court. Because Moss did not comply with this requirement, the constitutional challenge to § 28-392 has not been properly preserved for appellate review

Man kicks dog: 90 day jail sentence from the Buffalo County District Court Judge Sievers is not a dog lover: dissents from 90 sentence for kicking "Bear" State v. Claussen (Not Designated for Permanent Publication) Filed January 16, 2007. No. A-06-070. Appeal from the District Court for Buffalo County: John P. Icenogle, Judge. Affirmed Nebraska Court of appeals affirms 90 day jail sentence for defendant convicted of cruelty to his neighbors barking dog "Bear," Judge Sievers dissenting as to the sentence. . "Bear" is a 10-pound "Maltese[-]American Eskimo" mix dog. Prosecutors charged the defendant with animal cruelty for his kicking the dog away from his fence. The dog even required treatment from a neurological specialist in Colorado and antidepressant medications. The court dismissed charges of assault Judge Sievers dissents from the decision affirming the 90 day jail sentence calling it a waste of tax dollars:"It is a waste of taxpayers' money to incarcerate this individual for 3 months for what is the functional equivalent of a first-time speeding ticket." When Claussen moved in next door to Rasmussen, the two were friendly with each other. However, that changed following two arguments in the fall of 2004, one regarding Rasmussen's two dogs and the other regarding Claussen's dog. At the time of the incident at issue, Claussen and Rasmussen were not speaking to each other. Rasmussen testified that on February 12, 2005, he was in his kitchen and looked out the window and saw Bear in the yard standing on his hind legs up against the chain link fence that separates Rasmussen's property and Claussen's property. He testified that Bear was barking. Rasmussen testified that while looking out the window, he saw Claussen walk over from his driveway and kick the fence at the spot where Bear was standing. Rasmussen testified that Claussen's kick propelled Bear backward. He testified that Bear responded by snarling and barking and stood up against the fence again and that Claussen kicked the fence a second time. Rasmussen testified that this time Bear "flew . . . a foot or two off the fence." Rasmussen testified that after the altercation with Claussen, he took Bear to the veterinarian to get checked for injuries and subsequently took him to a neurological specialist in Fort Morgan, Colorado. He further testified that Bear is on antidepressants because he becomes very nervous and agitated. Claussen was charged with animal cruelty, in violation of Neb. Rev. Stat. § 28-1009(2)(a) (Cum. Supp. 2006). That statute states, "[A] person who cruelly mistreats an animal is guilty of a Class Imisdemeanorr." The phrase "cruelly mistreat" means "to knowingly and intentionally kill, maim, disfigure, torture, beat, mutilate, burn, scald, or otherwise inflict harm upon any animal." (Emphasis supplied.) Neb. Rev. Stat. § 28-1008(3) (Cum. Supp. 2006). Claussen argues that the definition of "cruelly mistreat" in § 28-1008(3) does not include acts where the harm is minimal, such as in the instant case. Dissenting as to the sentence Judge Sievers writes: While I concur in taffirmingnce of the conviction, I must respectfully dissent from the majority's resolution of the assignment of error that the sentence of 90 days' incarceration is excessive. It is clear from the record and a review of the majority's opinion that the only way this conviction stands up is if Claussen was guilty of "otherwise harming" the dog, because the specified and rather horrific injuries listed in the statute certainly did not occur. If the dog was "otherwise harmed," and the jury found it was, that harm was clearly minimal. To sentence a young man with no criminal record to 90 days' incarceration because he may have inappropriately responded to his neighbor's barking dog is an abuse of discretion. The sentence is far too severe for the nature of the offense and the nature of the offender. It is a waste of taxpayers' money to incarcerate this individual for 3 months for what is the functional equivalent of a first-time speeding ticket. The fact that the sentence is within the statutory limits does not make it an appropriate sentence. See State v. Decker, 261 Neb. 382, 622 N.W.2d 903 (2001).

Nebraska Supreme Court reverses fatal shooting case from Douglas County when bailiff advised dissenting juror that the jury might be deliberating indefinitely if she did not agree to convict the defendant; Supreme Court however finds no Batson violation when the State’s explanation for striking a Black juror was that he attended a “Christian” school. State v. Floyd, 272 Neb. 898 Filed January 12, 2007. No. S-05-1376. Defendant on trial for murder and attempted murder for shooting a pregnant victim who was not his intended target. The jury agreed to convict the defendant of being a felon in possession of a firearm, but one jury refused to convict him of murder and unborn manslaughter. Although the dissenting juror and the bailiff gave different accounts of their discussions, the Supreme Court reverses because the bailiff ventured into trial procedure when answering the juror’s question about what would happen if the juror did not agree to the verdict. Defendant also raised a Batson challenge to two of the State's strikes, and the State responded that one African American juror who attended a "Christian Academy." Nebraska Supreme Court found this explanation was not race based and enough to rebut the Defendant's prima facie challenge, further the Defendant did not prove race based discrimination under Batson. “We conclude that the improper communication from the bailiff to the juror would have affected the average juror in a way that would have prejudiced Floyd and denied him a fair trial. In reaching this conclusion, we consider the circumstances surrounding the communication. At the time the communication was made, the jury had been ordered to return to deliberations after it was determined that the jury's verdicts on the murder and manslaughter charges were not unanimous. The communication was made to the juror who was known to be the lone dissenting juror. Either directly or indirectly, the communication focused on the potential effect that the juror's continued dissent would have on the length of deliberations. We determine that the communication could have pressured the average juror to change his or her vote in order to avoid protracted deliberations. Because the communication occurred when the jury was not yet unanimous on the charges of first degree murder and manslaughter of an unborn child, we conclude that the improper communication was prejudicial to Floyd and denied him a fair trial on those charges. We note, however, that the jury was polled prior to the improper communication and that the jury was already unanimous as to Floyd's guilt on the charge of being a felon in possession of a firearm. We therefore conclude that the improper communication which occurred after the unanimous verdict on the firearm charge had been announced was not prejudicial as to the firearm conviction. Because the improper communication denied Floyd a fair trial on the murder and manslaughter charges, we determine that the district court abused its discretion by failing to grant Floyd a new trial on these convictions. It is therefore necessary to reverse Floyd's convictions on the charges of first degree murder and manslaughter of an unborn child”

Order of the Kneepads update: Nebraska Supreme Court suspends for one year with probation female Lincoln attorney reprimanded twice before and found guilty of three additional instances of neglecting cases; at least it upped the punishment from the referee's recommended probation only.State ex rel. Counsel for Dis. v. Wickenkamp, 272 Neb. 889 Filed January 12, 2007. No. S-05-1251.

Respondent mishandled three cases and claimed she filed a brief by sliding it under the judge's door. Still referee lets her off with a reprimand and probation. Counsel for discipline agrees and seeks motion to approve with the Supreme Court. Supreme Court suspends attorney for one year with additional probation. The first private reprimand was dated December 18, 2000, and the second was dated October 30, 2003.... This court is seriously concerned with respondent's repeated neglect of matters entrusted to her. See State ex rel. Counsel for Dis. v. Sipple, 265 Neb. 890, 902, 660 N.W.2d 502, 512 (2003) (discussing attorney's prior private reprimands and stating that "we have held that cumulative acts of attorney misconduct are distinguishable from isolated incidents, therefore justifying more serious sanctions"). We further note that the record reflects respondent has received two prior private reprimands, one of which involved similar neglecting conduct, which we consider as aggravating factors in imposing discipline in this case. Upon due consideration of the record, the court finds that respondent should be and hereby is suspended from the practice of law for a period of 12 months, effective immediately.

Follow up on a Follow up: While the Nebraska Supreme Court discovers a reason to reverse a drug dealers conviction due to the STate's defaulted Leon defense, it clarifies the mandate to allow a retrial State v. Tompkins, 272 Neb. 865 Filed January 12, 2007. No. S-05-212.Supplemental Opinion "The evidence, including that erroneously received, was sufficient to sustain the conviction. Accordingly, Tompkins' convictions should be reversed and he may be given a new trial at which the evidence obtained through the defective search warrant shall not be admissible. See Lockhart v. Nelson, 488 U.S. 33, 109 S. Ct. 285, 102 L. Ed. 2d 265 (1988). See, also, State v. Allen, 269 Neb. 69, 690 N.W.2d 582 (2005); State v. Sheets, 260 Neb. 325, 618 N.W.2d 117 (2000), overruled on other grounds, Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). We therefore reverse the judgment of the Court of Appeals and remand the cause to that court with directions to reverse the judgment of the district court and remand the cause to that court for a new trial consistent with this opinion."

Did former NC Senator and 2008 Democrat Presidential hopeful John Edwards do his fair share of pro bono? If not maybe thats a good thing!"Overlawyered.com revisits a question from the 2004 elections whether John Edwards, Kerry's VP running mate, did his fair share of probono during the time he also pocketed millions from malpractice cases. Here are my takes: 1. Do you count the extra free work PI lawyers do for clients just to keep the business? 2. Even if John Edwards did not do any high profile cases maybe thats a good thing.

Order of the Kneepads update: Omaha attorney on her 6th DWI arrest is still on the streets "Raising the Bar."FremontTribune.com An Omaha attorney who has been convicted of drunken driving five previous times again was found guilty of third offense drunken driving, a misdemeanor, instead of felony fourth-offense drunken driving.Attorney Willow Head was scheduled for sentencing in March and could get probation or up to a year in jail and other penalties. Had District Judge Peter Bataillon convicted her of felony fourth-offense drunken driving, her license would have been revoked for 15 years and she could have faced up to five years in prison. Where was the SupremeCourt on the 2nd or 3rd incident here? The judge's interpretation of state law led to Head's conviction on the lesser charge. State law says DUI convictions from up to a dozen years ago may be used to toughen charges and punishments for drunken drivers. A felony fourth drunken-driving charge comes after three valid misdemeanor convictions, for instance. Before a July 2004 drunken-driving arrest and subsequent charge of felony fourth-offense drunken driving, Head, 35, had been convicted of drunken driving in 1992, 1993, 1994, 2002 and 2003. Her 1992 DUI was wiped out by her attendance at a diversion program, so it could not be considered for enhancement of the charge. Bataillon ruled this week that two other convictions also couldn't be used. He issued a similar ruling in 2005, but the appellate court tossed it because it was premature. Bataillon said Head's 2002 conviction couldn't be used because, in 2003, the state Supreme Court said Omaha's drunken-driving ordinance didn't follow state law. And Bataillon said Head's 1993 conviction had already been ruled out for consideration by another judge. Douglas County Attorney Don Kleine said Friday that his office will appeal Bataillon's latest ruling as well. James Schaefer, who represented Head, said he is confident Bataillon will be upheld.

Nebraska Supreme court decisions Friday Jan 5, 2007: Statute of Limitations, Indian child adoptions, worker compensation waiting time penalties City of Lincoln v. Hershberger, S-05-1066, 272 Neb. 839 On remand from the Nebraska Supreme Court two years ago, City of Lincoln v. PMI Franchising, 267 Neb. 562, 675 N.W.2d 660 (2004), the District Court again ruled the City of Lincoln failed to timely sue the guarantors for their defaulted business loan with the City. This time the Supreme Court rules that the statute of limitation s for a guaranty action commences when the creditor accelerates the debt, holding the guarantors personally liable at that time. The fiver year limitation period Section 25-205 applied and the action was timely. In re Adoption of Kenten H., S-06-204, 272 Neb. 846 Natural mother of adopted child could raise after adoption proceedings finished that child was an Indian child and thus subject to post judgment vacation of the adoption in accordance with the federal and Nebraska Indian Child Welfare laws§ 43-1506(4), Juvenile Court's 12b6 dismissal was improper. D'Quaix v. Chadron State College, S-06-548, 272 Neb. 859 Worker Compensation court judge overlooked giving employer the State of Nebraska credit for voluntary worker compensation benefits it paid to the plaintiff before the trial judge awarded. Supreme Courtpermitss employer the State to offer evidence of its payments and to seek credit forthoses payments against the award in Plaintiff's motion for waiting time penalties and attorney fees(48-125,), finding these proceedings were not a collateral challenge to the trial judge's award.

Eighth Circuit gets it: Reverses excessively lenient sentence for Mexican meth dealer; deportation no reason to reduce a sentence especially after defendant ignored deportation orders beforeSentencing law and policy doesn't like the Eighth Circuit's frequent reversals of sentences when it finds the District Court went too far under the guidelines range. Maybe, but the two most recent cases more than justified resentencing for harder time, Kane,(US District Court ED of Mo.) the pimping momma and Morales-Uribe (SD of Iowa) the hard working immigrant drug dealer who had already been deported. The appeals court noted something that escaped the attention of the trial level court: deported aliens too frequently find their way back into the country. "The PSR, to which Defendant did not object, indicates that he has attempted to enter the United States illegally on three separate occasions. Two of these attempts, one being successful, occurred even after the Government deported him on October 27, 1999. This indicates strongly that deportation will not protect the people of the United States from further crimes by Defendant."

Order of the Kneepads update: ”Feminazis?” disbarred Nebraska attorney; “Femifascists?” St Louis trial judge and now bestselling author of legal system’s clever portmanteau for feministsSt Louis today reports that St Louis Circuit Court Judge Robert Dierker has stirred up a hornets’ nest with his forthcoming polemical expose of the legal system in which he condemns the “Femifascists” and the “Cloud Cuckooland of Radical Feminism.” He has titled the book "The Tyranny of Tolerance: A Sitting Judge Breaks the Code of Silence to Expose the Liberal Judicial Assault." The usual suspects promise to take action against the Judge for exercising his free speech rights, and his colleagues have termed his publication “professional suicide.” How would the good judge fare in Nebraska, where Attorney Beach was disbarred in part for calling a female attorney opposing him on a case a “feminazi bitch.” Perhaps the good judge was more judicious in creating a new portmanteau with fascist and was not just thinking of Rush Limbaugh’s coining “feminazi” first. in a private letter

Order of the Kneepads update: Nebraska Supreme Court suspends attorney who forged his client's signature and caused a notary to document the forgery for 1 year with probationary conditionsState ex rel. Counsel for Discipline. v. Riskowski, S-05-1168, 272 Neb. 781 Respondent attorney failed to deposit his client's divorce retainer in his trust account; agreed to suspend her temporary alimony with out permission; and submitted a property summary before trial with the client's forged and notarized signature. The referee recommended an 18 month suspension with probationary conditions. The Nebraska Supreme Court in a rare move drops the recommended suspension to one year. Although Respondent received a prior reprimand for mishandling a criminal appeal, he argued for a 90 day suspension. This time the Respondent's counsel's argument that there was no harm done because the Court didn't require the client to sign the exhibit may have carried the day and saved his client the disciplined attorney some suspension time. we find most troubling Riskowski's conduct with regard to preparation of his client's property statement. Riskowski, without his client's consent, forged his client's signature on the property statement and then instructed his secretary to notarize the document. The property statement was then submitted to the court. We have consistently imposed substantial sanctions for conduct of this nature. See, State ex rel. Counsel for Discipline. v. Rokahr, 267 Neb. 436, 675 N.W.2d 117 (2004) (1-year suspension for knowingly filing a back-dated easement); State ex rel. Counsel for Discipline. V. Mills, 267 nab. 57, 671 new 765 (2003) (2-year suspension based, in part, on altering and falsely acknowledging documents filed in county court). Riskowski asserts that his act of signing his client's signature and having the document notarized is in some way less reprehensible because the document would have been valid without the client's signature and notarization. We again disagree. Whether a client's signature and an acknowledgment before a notary are required on a document is irrelevant. The fact remains that Riskowski knowingly filed with the court a document containing a forged signature and an inaccurate notarization. A purposeful misrepresentation to a court is itself a serious violation, and Riskowski jeopardized his client's interest and the integrity of the court by doing so.

Canadian lawyers: doing the job American attorneys wont do any moreIn re Application of Budman, 272 Neb. 829 Filed December 22, 2006. No. S-34-060001. The Supreme Court admits another bar applicant from Canada,without examination, finding that although the applicant did not have a regular American law degree he could get in under the waiver rules.

Nebraska Supreme Court allows father whom a court had earlier determined him to be the child's father to dispute exgirlfriend's adoption, cant decide whether its a case of statutory interpretation or constitutional lawIn re Adoption of Jaden M., 272 Neb. 789 Filed December 22, 2006. Earlier a court found the defedant to be the child's father and ordered support, which the defendant mostly paid. The mother/exgirlfriend then married and her new husband sought to adopt the child. MOther contended that since the father failed to register with father's registry and he appeared to not meet any other standard in 43-104.22 that require father's consent. Nebraska Supreme Court finds for the father's rights, finding that an adjudicated father is neither a claimed father(§ 43-104.02) or a "claimant-father" (§ 43-104.05.)But then even if Nebraska statute 43-104.22 somehow did exclude the defendant, it is unconstitutional to exclude an adjudicated father from those entitled to consent before adoption. We, however, conclude that § 43-104.22(7) does not apply to a father who has been adjudicated the child's father in a paternity action. Applying § 43-104.22(7) infringes upon Brian's constitutionally protected parental rights. Because he has provided support and established familial ties with his biological child, his interest in personal contact with his child has acquired substantial protection. In re Application of S.R.S. and M.B.S., 225 Neb. 759, 408 N.W.2d 272 (1987). His rights must therefore be determined under the considerations delineated in § 43-104.22, apart from subsection (7). As in White v. Mertens, 225 Neb. 241, 404 N.W.2d 410 (1987), Tracey and Ronald's argument fails because Brian is not "a person claiming to be the father of the child" under § 43-104.02 or a "claimant-father" under § 43-104.05--he is Jaden's biological father. The court erred in applying the registry statutes to circumvent the need for Brian's consent.

Owner of easement for sewage disposal since the late 60’s disputed relocation of the lagoons; Court ordered adjacent landowner to rewrite the easement but did not award any other damages or relief; Nebraska Court of Appeals upholds awarding costs to the defending adjacent landownersR & S Investments v. Auto Auctions, 15 Neb. App. 267 Filed December 19, 2006. No. A-04-1098 Technically the easement owner “won” the case but the judge agreed only that it should get a rewritten easement from the landowner who was reconstructing and relocating the lagoons to meet current state environmental regs. The easement owner asked for costs but the court awarded costs to the defendants. Nebraska court of appeals affirms awarding costs to the side that was the nominal losing party R&S asserts that the district court erred in taxing costs of the action to R&S. Neb. Rev. Stat. § 25-1708 (Reissue 1995) provides that "[w]here it is not otherwise provided by this and other statutes, costs shall be allowed of course to the plaintiff, upon a judgment in his favor, in actions for the recovery of money only, or for the recovery of specific real or personal property." Neb. Rev. Stat. § 25-1711 (Reissue 1995) provides, in relevant part, that "[i]n other actions the court may award and tax costs, and apportion the same between the parties on the same or adverse sides, as in its discretion it may think right and equitable." In equity actions, taxation of costs rests in the discretion of the trial court. Hein v. M & N Feed Yards, Inc., 205 Neb. 691, 289 N.W.2d 756 (1980); Ehlers v. Campbell, 159 Neb. 328, 66 N.W.2d 585 (1954). A judicial abuse of discretion requires that the reasons or rulings of a trial judge be clearly untenable, unfairly depriving a litigant of a substantial right and a just result. City of Lincoln v. Realty Trust Group., 270 Neb. 587, 705 N.W.2d 432 (2005). The present action, of course, is an equity action, and we find no abuse of discretion in the district court's taxation of the costs of this action to R&S

Inmate may not challenge in motion for post conviction relief the trial court’s failure to properly credit his time served pending sentencingState v. Barnes, 272 Neb. 749 Filed December 15, 2006. No. S-06-351. Inmate raised in his motion for post conviction relief alleging primarily ineffective counsel that resulted in his pleading guilty to murder in 1994 in the Pierce County District Court an additional claim that the trial court had failed to credit him enough time served while the inmate waited for sentencing. Supreme Court denies this as a valid ground for post conviction relief : Post conviction relief is a very narrow category of relief, available only to remedy prejudicial constitutional violations. State v. Ryan, 257 Neb. 635, 601 N.W.2d 473 (1999). An alleged sentencing error with respect to credit for time served does not fall within this narrow category of relief. Moreover, a motion for post conviction relief cannot be used to secure review of issues which were or could have been litigated on direct appeal. State v. Marshall, 269 Neb. 56, 690 N.W.2d 593 (2005); State v. Benzel, 269 Neb. 1, 689 N.W.2d 852 (2004). Because the sentencing issue could have been raised on direct appeal, it is procedurally barred in this action. The district court did not err in denying post conviction relief on this ground

Nebraska Supreme Court: grandparent lacked standing to object to the constitutionality of § 43-1802(1)(c)RRS Neb in paternity action that abated due to the putative father’s death.Bullock v. J.B., 272 Neb. 738 Filed December 15, 2006. No. S-05-636. The Douglas County District Court dismissed the putative father’s PR’s attempt to revive his action to establish his paternity over JB. The PR, apparently the deceased’s mother sought on her own grandparent visitation. The District Court dismissed this claim as well. The case caption does not indicate the PR filed a personal action for grandparent visitation. Supreme Court refuses to consider constitutional challenge to 43-1802 because PR lacked standing The paternity statutes, Neb. Rev. Stat. §§ 43-1401 to 43-1418 (Reissue 2004), make no mention of grandparent visitation. Instead, Neb. Rev. Stat. § 43-1803 (Reissue 2004) provides the procedure for requesting grandparent visitation. The record indicates that Grandparent/PR has not requested grandparent visitation under this section in the case under review. Given the absence of a grandparent visitation claim, Janet lacks standing to challenge the constitutionality of § 43-1802(1)(c) in this case. Standing to challenge the constitutionality of a statute under the federal or state Constitution depends upon whether one is, or is about to be, adversely affected by the language in question; to establish standing, the contestant must show that as a consequence of the alleged unconstitutionality, the contestant is, or is about to be, deprived of a protected right. State v. Cushman, 256 Neb. 335, 589 N.W.2d 533 (1999).

Follow up: United States Supreme Court reverses 9th Circuit ruling that found courtroom spectators' wearing large buttons that pictured the "accused" defendant's victim required a new trial; majority opinion by Justice Thomas finds no "clearly established" federal law as Lucky Iromuanya's attorneys would have us believe CAREY, WARDEN v. MUSLADIN, MATHEW No. 05-785. Argued October 11, 2006 -- Decided December 11, 2006 Shades (or buttons) of State of Nebraska v. Lucky Iromuanya(NSBA summary) the Ninth Circuit court of appeals had reversed at habeas level the defendant's conviction because the family members of the victim sat in the front of the courtroom during the trial wearing photograph buttons of the victim depriving the defendant of his right to a fair trial under the Fourteenth Amendment and Sixth Amendment. the United States Supreme Court, Justice Thomas for the majority reverses finding the law on private conduct in the courtroom, aside from mob scene trials, a murky area: the effect on a defendant’s fair-trial rights of the spectator conduct to which Musladin objects is an open question in our jurisprudence. This Court has never addressed a claim that such private-actor courtroom conduct was so inherently prejudicial that it deprived a defendant of a fair trial.2 And although the Court articulated the test for inherent prejudice that applies to state conduct in Estelle v. Williams, 425 U. S. 501, 503–506 (1976 and Holbrook v. Flynn, 475 U. S. 560, 568 (1986), we have never applied that test to spectators’ conduct. Indeed, part of the legal test of Williams and Flynn—asking whether the practices furthered an essential state interest—suggests that those cases apply only to state-sponsored practices. Maybe the Supreme Court will find it less murky on Lucky's pro bono lawyers' cert pet to the Supremes

Nebraska Beef loses appeal in Eighth Circuit Court of Appeals after Minnesota federal court granted summary judgment on its complaint for excessive over-advance fees Wells Fargo charged it061207P.pdf 12/11/06 Nebraska Beef, Ltd. v. Wells Fargo BusinessU.S. Court of AppealsCase No. 06-1207 District of Minnesota. Nebraska Beef before going belly up in 1997 drew advances from Wells Fargo that exceeded its credit limit. Plaintiff sued to recover Wells Fargo's overadvances that totalled $211k; Plaintiff complained that it did not agree to the increased advance charges Wells Fargo was charging it. District Court dismissed case on summary judgment finding the parties properly agreed to a unilateral contract for the increased advance charges, under Minnesota law. "When Nebraska Beef began to withdraw funds through the May 1997 overadvance, it did so fully aware that an extension beyond the agreed line of credit would come at an additional cost. Wells Fargo's "offer" to permit continued overadvances at the stated terms constituted a unilateral contract offer that was accepted by Nebraska Beef's election to access the overadvance. These terms, as reflected in the third amended agreement and the May 23 letter, were sufficiently definite to establish a unilateral contract offer under Minnesota law."

Nebraska Supreme Court slaps the Sarpy District Court again for mishandling repeat drunk drivers' sentencingsState v. Caniglia, 272 Neb. 662 Filed December 8, 2006. No. S-05-069. Earlier this year in State v Vasquez S-05-1019, 271 Neb. 906 the Supreme Court reversed tthe Court of Appeals for trying to impose a real sentence on a repeat drunk driver from Sarpy County. Too bad the State was unable to challenge that lenient sentence because it was a misdemeanor. This time in State v Caniglia, the Appeals Court wanted to impose an appropriate sentence on the defendant Caniglia who faced resentencing after the court revoked her DWI 4th offense probation. Sarpy County District court however imposed no sentence. The Nebraska supreme Court rules that no sentence is no judgment, and reverses the case to the district court. This time however as a felony the State can appeal any ridiculously lenient sentence Sarpy Countydecides to impose.The district court found that Caniglia violated probation but failed to issue a proper order under § 29-2268. In particular, the district court did not impose a sentence. Because there was no sentence, the Court of Appeals lacked jurisdiction to hear the appeal brought by the prosecuting attorney claiming an excessively lenient sentence under § 29-2320. The Court of Appeals erred when it concluded that it had jurisdiction and thereafter considered the merits. Because the Court of Appeals lacked jurisdiction, we vacate the judgment of the Court of Appeals and remand the cause to the Court of Appeals with directions to vacate the order of the district court and remand the cause to the district court with directions to enter a proper order outlining the consequences resulting from the finding that Caniglia had violated probation.

Nebraska court of appeals affirms Hall district court award of alimony to wife when both spouses were practicing attorneys; although child support guidelines call for averaging 3 years of income for determining child support, the appeals court also approves averaging the husbands income over five yearsWagoner v. Tracy (Not Designated for Permanent Publication) Filed December 5, 2006. No. A-05-301. As the court of appeals notes, but in this unpublished opinion, "The instant case presents an interesting scenario: whether alimony is warranted where a spouse had interrupted his or her career for 8 years, but when the spouse resumed his or her career, the party earned a similar annual income as when the career was interrupted.Both spouses were practicing attorneys however the wife left a Lincoln law firm to move to Grand Island and also took off several years to care for the parties special needs children. The Hall County District Court agreed that the wife's annual income would have been $8K higher with the county attorney's office if she had not taken time off. She also had worked for her father's law firm but didnt like working for him! The husband's income varied widely. In 2000 his Schedule C net was $52k, then it was negative for a few years and finally a plus $446K in 2004. The district court ordered $800 per month alimony to the wife and figured child support based on the father's average income that included 2 positive years and three negative. The court of appeals finally approves awarding $7500 attorneys for the wife for her total bill of $32k from the Remboldt Ludtke law firmthe parties had a lengthy marriage lasting 17 years. Tracy interrupted her career for 8 years to care for the parties' children, including the twins, who required special care, and also cared for Wagoner's parents during their illnesses. Tracy did suffer a loss of earning power, as is evidenced by the fact that she would be earning $53,476.56 instead of $46,320.57 had she worked for the Hall County Attorney during the years that she was a stay-at-home parent. Further, we also note that there is an income disparity between Wagoner and Tracy which may be considered in determining whether alimony is appropriate. Thus, we find that the district court did not abuse its discretion in awarding alimony of $800 per month for a period of 5 years. In the instant case, the district court had available to it Wagoner's income from his law practice, farm rental income, and rental income from his law partner. Although Wagoner's law office showed losses in previous years due to billing inactivity, much of that billing was taking place during the 2004 tax year and was reflected in the $446,961 estimated net Schedule C profit for that year. The district court did not abuse its discretion in using Wagoner's average income in determining his child support obligation.

Omaha defense attorney James Martin Davis: "We will fight 'tooth and nail' against charges that Westroads grill installer was practicing dentistry without a license."Omaha.com If all you want for Christmas is to gild your front teeth, you may have to buy the bling-bling somewhere other than the Gold Plaza II kiosk at Crossroads Mall. That's because an employee of that shop, Bhavin Dalal, faces a felony charge of practicing dentistry without a license. He's accused of helping customers fit their teeth for glittering mouthpieces known as grills. It's the first such case in Nebraska involving the hot hip-hop fashion accessory. And Dalal and his attorney, James Martin Davis, plan to fight it tooth and nail. Dalal entered a not guilty plea Friday in Douglas County Court. Davis blasted the Nebraska Health and Human Services System for its investigation of Dalal and the charge that resulted. "It's overzealousness on the part of a bunch of bureaucrats" who don't want people to wear grills, Davis said. An HHS spokeswoman said officials acted out of concern for public health, because ill-fitted grills cause problems. "We're not against bling-bling," said spokeswoman Marla Augustine. "It's just when it's applied to the mouth and teeth and causes damage, that's where we're opposed to it." Bling-bling, for the record, is hip-hop slang for jewelry and other accessories. Grills, also known as fronts, are custom-fitted mouthpieces made of gold or platinum, sometimes with diamond inlays. They can be removable or permanent. They can cost hundreds or thousands of dollars. A mold is made of the buyer's teeth, and then the jewelry is manufactured to fit. The state alleges that Dalal did something that only dentists can do in Nebraska - help make an impression of people's teeth, then sell them dental appliances. In May 2005, the Nebraska Board of Dentistry ordered Dalal and another Crossroads kiosk, Treasure Box, to stop their "activities surrounding the sale of gold grills" without a Nebraska dental license. In a letter, the state told Dalal that taking impressions and selling grills was the unlicensed practice of dentistry. Dalal said Friday that he stopped selling grills for a while after receiving the order. But he started selling them again after another lawyer advised him that he could do so as long as he didn't make the dental impressions himself. Then came a bling-bling sting. An undercover operative, working with a state investigator, went to Gold Plaza II last August. Dalal offered to sell him a gold custom grill for $260. Dalal is accused of giving the operative a kit - a dental tray packed with a puttylike substance - to make an impression of his teeth. Dalal told the operative how to make the impression, HHS Investigator Jeff Newman said in an affidavit for an arrest warrant. The warrant was issued after the gold grill came back from Gold II's out-of-state factory. Dalal turned himself in. He is free without bail. Davis said the state is misapplying the law under which his client is charged. He said he'll push for an acquittal. If state officials think grills are unsafe or have a problem with the way they were sold at the kiosk, Davis said, they should make grills illegal or take less severe remedies than a felony criminal charge, such as filing a civil lawsuit. Augustine said the Board of Dentistry interprets the statute differently from Davis - that only a dentist can make an impression of teeth and sell a dental appliance. "The reason (for the case) is that grills, when not properly applied, can cause irreparable damage to the teeth and gums," she said.

Eighth Circuit affirms summary judgment against Farmer who caught metal fragments in his eye from pry bar he was hitting with a hammer while he was not wearing safety gogglesKrajewski v. Enderes Tool Company David U.S. Court of Appeals 054031P.pdf 12/04/06 District of Nebraska Farmer hammered on long pry bar to jar loose a stuck sprocket on his combine. Because it was getting dark he removed his "tinted" safety goggles. As he struck the pry bar with a hammer a fragment of metal hit his unprotected eye. Farmer sued. The Federal District Court dismissed on summary judgment. Eighth Circuit Court of Appeals affirms on Nebraska assumption of the risk and proximate cause. Judge Gibson dissenting Assumption of risk is an affirmative defense, and the defendant must show that “(1) the person knew of and understood the specific danger,(2) the person voluntarily exposed himself or herself to the danger, and (3)the personnÂ’s injury or death or the harm to property occurred as a result of his oher exposurere to the danger.” Neb. Rev. Stat. § 25-21,185.12. The doctrine “appa subjectivective standard, geared to the individual plaintiff and his oractual comprehensionnsion and appreciation of the nature of the danger he or she confronts.” Pleiss v. Barnes, 619 N.W.2d 825, 829 (Neb. 2000)... Plaintiff's undisputed testimony, indicates that he knew and understood the specific danger at issue Âwhen hammeringmmering a metal hammer against a tool, there is a danger of chipping metal hitting the eyes.

Nebraska Supreme Court rules that Sarpy County District court retained jurisdiction over a child custody case even though the mother and the children had moved to Maryland and registered the Sarpy county dissolution decree there.Watson v. Watson, 272 Neb. 647 Filed December 1, 2006. No. S-05-1423. Parties divorced and later the wife won a contested motion to move with the three children to Maryland. The wife then registered the decree in Maryland. When Husband complained that Wife was not allowing visitation, Wife won motions in Maryland and Husband lost his contempt motion in Sarpy County District Court. Sarpy County District Court ruled it had lost jurisdiction to Maryland and in any event Maryland was a more convenient forum. Supreme Court reverses Sarpy County District Court. Holding: Jurisdiction remains in Sarpy county as it was the initial court to assert jurisdiction and one parent continued to reside in the state See Uniform Child Custody Jurisdiction Act § 43-1239. Accord Shanoski v. Miller, 780 A.2d 275 (Me. 2001). Jurisdiction remained in the district court either until jurisdiction was lost under § 43-1239(a) or until the court declined to exercise its jurisdiction under § 43-1244 for the reason of an inconvenient forum.Since the Sarpy County District Court did not lose 43-1239 jurisdiction nor did it properly decline jurisdiction under 43-1244, the District Court erred in dismissing the Husband's contempt proceedings. Under § 43-1239 this jurisdiction would continue unless the district court determined that neither the children, nor the children and one parent, nor the children and a person acting as a parent had a significant connection with this state and that substantial evidence was no longer available in this state concerning the children's care, protection, training, and personal relationshipsExclusive and continuing jurisdiction could be lost only if the children, Jill, and Robert no longer resided in the state. See § 43-1239(a)(2). The district court erred in making such a determination because Robert continued to reside in Nebraska.A court with exclusive and continuing jurisdiction under the UCCJEA may decline to exercise its jurisdiction if it determines that it is "an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum." See § 43-1244(a). Although the district court concluded that the Maryland court was the "more appropriate and convenient forum," the district court failed to consider the relevant factors for relinquishing jurisdiction under § 43-1244.Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors§ 43-1244(b). 43-1239 or that a Maryland court was a more convenient forum under § 43-1244.

Nebraska Worker Compensation Court releases summaries for FY 2005-2006 Supreme Court and published Court of Appeals decisions concerning worker compensation lawThe Nebraska Worker Compensation Court's summaries (pdf format) of last fiscal years worker comp decisions are now available.

Nebraska Supreme Court rejects murder defendant's Daubertchallenge to prosecutor's offering cellular telephone records that included the locations of the cell towers from which various cell phone cals had been transmitted.State v. Robinson, 272 Neb. 582 Filed December 1, 2006. No. S-05-107. During a murder trial in Douglas County, the defendant challenged the State's offer of cell phone records from Alltel, Cox and Cricket. The Supreme Court approves admitting computer print outs of the call records and also evidence from the records that identified the towers from which the phone company had transmitted various calls. Although this involved technical issues, the Supreme Court dismisses the Defendantss Daubert/Shafersmann challenge, explaining that the records did not present any opinion evidence. If a witness is not offering opinion testimony, that witness' testimony is not subject to inquiry pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993)..Phone company rep's testimony was limited to explaining the data contained in exhibits 112 and 113, and he did not offer any opinions based on that data. Compare Pullin v. State, 272 Ga. 747, 534 S.E.2d 69 (2000) (inquiry into scientific theory required where expert opined, based on cellular telephone location data, that particular telephone calls could not have been made from location asserted by defendant). Since Phone co rep offered no expert opinion, his testimony presented no basis for an inquiry into his reasoning or methodology pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). To the extent that the defendant wanted to raise more general questions about the reliability of the records and the cellular location data, Phone rep was available for cross-examination on those issues.