Extreme Makeover, Nebraska Supreme Court style: Nebraska Supreme Court hears duplex owners' appeal of Omaha Housing Authority's building code citations: the Metropolitan Utilities District has exclusive control over gas appliances; The city could not cite the owners for sloppy painting, tuck pointing and stucco repairs that were not themselves repairs the owners took to remedy code violations. McNally v. City of Omaha, S-05-1022 The City cited the owners for various code violations on a duplex they owned. Some of the citations were for painting over windows, failing to paint stucco exteriors and poor tuck pointing of masonry. Also the MUD had inspected a gas furnace but the City had not given its ok. Supreme Court holds that poor or sloppy repairs are not violations unless they are to repair cited problems. Also the MUD was the right agency to inspect specifically gas powered appliances. " 48-15 states: “repairs, maintenance work, alterations or installations which are caused directly or indirectly by the enforcement of this code shall be executed and installed in a workmanlike manner and installed in accordance with the manufacturer’s installation instructions.” Whether or not the unattractiveness of the repairs could fall under this definition of “workmanlike,” the Mcnallys argue that § 48-15 is inapplicable. the window trim painting, the stucco, and the tuck-pointing were repairs which the Mcnallys conducted on their own accord. We agree that § 48-15 is inapplicable in this case because the ordinance clearly limits the “workmanlike” mandate to situations where the work is conducted pursuant to enforcement of the Code."

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

Worker Compensation revisions in LB 588 on final reading: the Legislature, tries to cut back on high hospitalization costs by pegging worker comp medical fees to Medicare guidelines. Still the lawyers can keep the MRI mills going because they are exempt for now from the tougher guidelines. The Unicameral also throws in a consolation earmark to the trial lawyers with Senator Nantkes amendment expanding the kinds of injuries that might qualify for loss of earnings capacity awards (but it is still optional if the functional award is greater.) Unicameral Update Online Workers' comp hospital fee schedule moves forward “LB 588 makes three major changes to the hospital fee system, exempts diagnostic providers and expands injuries eligible for loss of earning power awards. First, the bill would establish a prospective payment system for in-patient hospital services. The intent of the new system would be to provide consistency and produce savings for employers and payors. The proposed fee schedule would be based on the payment method used by Medicare. The bill would account for differences between individual hospitals by incorporating hospital-specific Medicare rates into the fee schedule and then increasing those amounts by 40 percent. Second, the bill would establish a "prompt payment" provision with the intent of reimbursing hospitals in a timelier manner. Finally, the bill would incorporate provisions from LB 77, a bill originally introduced by Lincoln Sen. Danielle Nantkes. The bill would provide that certain injured employees could be reimbursed according to their loss of earnings capacity, rather than according to the schedule set in statute. According to Cornett, the provision would ensure that at least a portion of the savings created by the new hospital fee schedule would be passed along to the injured worker. Omaha Sen. Steve Lathrop offered an amendment, adopted 28-0 that would exempt diagnostic related groups for traumatic injuries from the new proposed inpatient hospital fee schedule until 2010.”

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

Plaintiff's attorney waited 5 months and 3 weeks to serve his doubtfully meritorious malpractice suit on the defendant physician. The Douglas County Sheriff apparently served the wrong defendant or misidentified him. According to 25-217, the bad service lead to automatic dismissal of the case, and in this instance the statute of limitations ran. Plaintiff now is blaming the Sheriff for the improper service. Journal Star.com Plaintiff claimed the late service occurred as part of his trial strategy in (scrambling) to obtain a favorable expert's opinion before serving the doctor.In Nebraska, an attorney has six months to have the defendant served with papers after filing a lawsuit. Blakeman asked that the physician be served in January 2006, just days before the six-month time limit expired.Blakeman said he received noticed that the papers were served.“At that point, I’m figuring my client is protected,” Blakeman said.But the physician claimed in a court hearing that he was never served. Records showed that the physician was out of his office on the day the server claimed to have given him the papers, and Judge Patricia Lamberty ruled in his favor.By then, it was too late for Blakeman to have the lawsuit served again.Blakeman filed the lawsuit against Douglas County last week.The physician may have to testify in the case against the county.“He has nothing to lose financially,” Blakeman said, “but he might want to defend his practice.”

Follow up: Lets call this "Danielle's Law." Legislature moves to eliminate loophole for repeat drunk drivers who refuse alcohol tests to avoid enhanced penalties. Journalstar.com Last year the Legislature created stiffer penalties for repeat drunken driving offenders with very high blood alcohol content levels. But senators didn’t make changes to the penalties for refusal to take the test. So repeat offenders who refuse to take the test cannot be charged with the stricter high-BAC charge, but face the lower penalty. Senators gave first-round approval Wednesday to a measure (LB578) that treats repeat offenders who refuse to take the test that measures the level of alcohol in the blood the same as those who take the BAC and have a high blood alcohol content

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

No wonder the government wants to get into the “guest worker” permit racket. Eighth Circuit court of appeals affirms conviction of illegal immigrant smuggler who made $900,000 in just 15 months delivering illegal Mexican workers to North Dakota oriental restaurants. Bismarck Tribune. A federal appeals court has upheld the sentence of man convicted in a human smuggling case in which authorities said thousands of illegal immigrants were brought to work at Oriental restaurants at North Dakota and other states. 061273P.pdf 05/02/2007 United States v. Shan Wei Yu The district court had sentenced Shan Wei Yu, of McKinney, Texas, to nine years for illegal immigrant trafficking and money laundering. The government alleged that Yu and his company, Great Texas Employment Agency, brought at least 1,000 illegal immigrants into the United States. But “At trial, the defendant said he delivered over 6,000 aliens to different restaurants and he claimed all of them were legal," the federal prosecutor said. Defendant's girlfriend, Ya Cao, was sentenced to 21 months in prison for helping recruit illegal workers. The girlfriend claimed the defendant coerced her into assisting his scheme because she needed help seeking political asylum. The defendant disputed his higher sentence because although the guidelines allow for a harsher sentence if the defendant transported “substantially more than 100 aliens,” (USSG § 2L1.1, comment. (n.4) (2005)) he disagreed that 1000 was that. The eighth circuit agrees that 1000 is a substantially greater number. The Ninth circuit put that at only 400! United States v. Nagra, 147 F.3d 875, 886 (9th Cir. 1998) We conclude that there is ample evidence supporting the district court's conclusion that over 1,000 illegal aliens were transported and that the court did not abuse its discretion by departing upward.

Follow up from the Deep Thoughts Department: ultra liberal and super genius Nebraska Supreme Court Justice Jack Handy, er Gerrard takes it upon himself to protect a death row inmate from himself. Just think where we would be without Justice Gerrard, the conscience of the Supreme Court? Who would stick up for lesbians who want to adopt kids? Who would give sappy inspirational speeches to his kids’ law student peers with mush in their heads? Who would be there to protect death row inmates from their own instructions not to proceed with any more appeals? Read this gem: If we were to conclude that electrocution was cruel and unusual after Moore had been electrocuted (Were going to hide behind the bench for a while on this one and drag this out some more), “our citizens’ (Brother Ernie only why pass it off on the 90% who want the death penalty carried out?) confidence in this court and the rest of the judicial branch as a bastion of civil rights might suffer irreparable harm.” (That’s sure more important than looking erratic and playing chicken s*** with the Department of Corrections and the Attorney General) Death row inmates especially need protection from themselves, and to serve a higher purpose! Moore (must) cede control of his defense to protect the public’s interest in the integrity and fairness of capital proceedings (his umpteen appeals don’t matter, with some of the best defense counsel helping him along the way) Although we respect the defendant’s autonomy (hey remember Roe v Wade?), the solemn business of executing a human being cannot be subordinated to the caprice (caprice, that’s after committing these grisly murders nearly 30 years ago) of the accused. We must adhere to our heightened (opinions of ourselves) obligation to ensure the lawful and constitutional administration of the death penalty, regardless of the wishes of the defendant in any one case.

Follow up to Nicholson v Red Willow County School District Nebraska Supreme Court again dismisses action residents in Southwest School District in Red Willow County filed to prevent merged district from assuming bonds the preceding school districts had issued prior to merger.Cumming v. Red Willow Sch. Dist. No. 179S-06-025, 273 Neb. 483We reject the argument that Stannard permits a collateral attack directed at the authority of S outhwest to issue bonds pursuant to the reorganization plan approved by the State Committee. T he appellants are not contesting the legitimacy of S outhwest as a school district and, thus, cannot be understood to be challenging the S tate Committee’s approval of the reorganization petition itself. Instead, the appellants are challenging a provision contained within the approved petition. A nd unlike Stannard, we cannot say that the challenged provision is, on its face, clearly and unequivocally prohibited by state law. Therefore, we have no basis to find that the S tate Committee’s approval of the reorganization petition was void

Complaint to pierce corporate veil post judgment not res judicata as to defendant’s after verdict conduct; even though Plaintiff’s counsel almost let a summary judgment slip though. Ichtertz v. Orthopaedic Specialists of Neb., S-05-1000, 273 Neb. 466. Surgeon formerly practicing in Grand Island sued Dr Bainbridge and his professional corporation. The court directed a verdict favorable to Dr Bainbridge but hit his corporation with a judgment exceeding $600k. Later plaintiff sued Dr Bainbridge again seeking to pierce the corporation veil. The plaintiff alleged Dr Bainbridge diverted corporate assets after the jury verdict to make the plaintiffs judgment uncollectible. Nebraska Supreme Court reverses Hall County District Court dismissal of action, finding that complaint to pierce corporate veil alleged post judgment actions that were not res judicata from the first case. The Supreme Court notes that the plaintiff’s attorneys might have lost because they failed to object when the Hall County District court converted Dr Bainbridge’s 12b6 motion into a motion for summary judgment. Lucky for them, the Supreme Court doesn’t like summary judgments, even under the 2003 Nebraska rules of pleading. “(At the motion to dismiss hearing) the defendants offered into evidence the Exhibits (from the first trial that absolved Dr Bainbridge.) Ichtertz raised no objection to the offer. Ichtertz did not offer any exhibits after the district court asked his attorneys, and the parties were given time to submit briefs on the motion. Ichtertz now claims the court erred in converting the motion to dismiss into a motion for summary judgment by receiving evidence outside the pleadings. Ichtertz was given an opportunity to present evidence and did not do so. We cannot determine from the record before us whether Ichtertz raised before the lower court the issue of conversion of the motion to dismiss into a motion for summary judgment. However, whether the court erred in its procedure regarding the motion to dismiss is not decisive of the matter, and we decline to resolve the cause on that basis.”

Eighth Circuit (Retired Justice O’Connor) upholds probation revocation based on defendant’s positive “sweat patch” tests for narcotics use. Decision of the Day Blog. Drug Testing: Eighth Concludes That Sweat Patches Are Generally Reliable U.S. v. Meyer, 06-2961 (8th Cir. Apr. 25, 2007) The Eighth sides with the government, joining the Tenth Circuit in concluding that the patches are generally reliable. See United States v. Gatewood, 370 F.3d 1055, 1060-62 (10th Cir. 2004), vacated on other grounds, 543 U.S. 1109 (2005). However the court explains that district courts need to scrutinize this evidence on a case-by-case basis. The defendant had eight negatives before receiving a bad test. His explanation was that his job duties changed from hauling away nice cars to moving the beaters, and we all know beater drivers are dopers. Wait I thought coke users rode around in nice rigs, at least in the TV shows. Justice Sandra Day O’Connor authors the opinion.

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

Eighth Circuit overrules evidence spoliation claim against plaintiff who after an accident on Interstate 80 removed monitoring device from its bus. Greyhound Lines v. Robert Wade U.S. Court of Appeals Case No: 061875P.pdf 04/24/2007 District of Nebraska - Omaha Greyhound sued Archway Cookies for a rear end collision between Greyhound’s disabled bus and the following Archway Cookie truck. The district court apportioned fault 85% to the following Archway vehicle and 15% to Greyhound. Eighth Circuit affirms, denies defendant’s spoliation claim and refuses to overturn district court’s finding allocating fault between the parties. The ultimate focus for imposing sanctions for spoliation of evidence is the intentional destruction of evidence indicating a desire to suppress the truth, not the prospect of litigation. Richter v.City of Omaha, __ N.W.2d __, 2007WL865842 at *4 (Neb. March 23, 2007) (unfavorable inference where "spoliation or destruction was intentional and indicates fraud and a desire to suppress the truth" Morris v. Union Pac. R.R., 373 F.3d 896, 902 (8th Cir.2004).. Thus, the district court did not err in finding spoliation had not occurred. Additionally, although some material was not preserved, the ECM data identified the specific mechanical defect that slowed the bus, and several bus passengers testified how the bus acted before the collision. See Stevenson, 354 F.3d at 748 ("There must be a finding of prejudice to the opposing party before imposing a sanction for destruction of evidence"). Defendant loses his challenge to the District Court’s fault allocation the fact finder assesses and apportions negligence among the parties, and its apportionment will be reversed only upon a showing of clear error. Baldwin v. City of Omaha, 607 N.W.2d 841, 853 (Neb. 2000) ("apportionment is solely a matter for the fact finder") The district court's assessment of fault was not a clear error

Dallas in the Panhandle: Nebraska Supreme Court affirms oil driller's sale of joint venture interest over partner's objections, but reserves trial on sale of royalties. Oil driller sold its interests in drilling projects in Nebraska to outside entities. Participant in joint operating agreement countered that it had a right of refusal and also had a right to purchase part of the Driller’s overriding royalty interests. Driller sold off substantially all of its assets to more than one entity. Nebraska Supreme Court agrees that applying Texas law, the selling oil driller could sell to more than one entity substantially all of its assets without triggering the preferential rights of the other joint operating agreement participant. Summary judgment in favor of seller however reversed as to the other participants overriding royalty interests. Court upholds $6000 sanction against defendants also for failing to comply with discovery orders. Coral Prod. Corp. v. Central Resources, S-05-564

The district court determined the parties agreed in the JOA thatTexas law would govern their disputes and granted summaryjudgment to Central, E XCO, and Zecchi on Coral and K JJ’s claims of fraud, breach of contract, and tortious interference. Italso determined that the JOA did not apply to E XCO’s transfer ofoverriding royalty interests to Zecchi.We determine that Central’s sale of all of its oil and gas assetsfell within the parties’ typewritten exception to the preferentialright- to-purchase provision of the preprinted JOA. However,we conclude that the district court erred in determining Coral’spreferential right to purchase did not apply to overriding royaltyinterests. We reverse on that sole issue and affirm the districtcourt’s order of summary judgment in all other respects. We conclude that the district court did not err in determining that Central’s sale of all of its oil and gas assets fell within the parties’ typewritten exception to the preprinted preferential-rightto- purchase provision of their joint operating agreement. We also conclude that the district court did not abuse its discretion in ordering Coral and K JJ to pay attorney fees in the amount of $6,000 as a sanction for failing to produce documents that necessitated the retaking of a corporate deposition. However, we conclude that the district court erred in determining that Coral’s preferential right to purchase did not apply to overriding royalty interests and remand the cause for further proceedings on that single issue. The district court’s orders of summary judgment are affirmed in all other respects

Jennifer Brown hits the NFL lottery: even though she by her own admission had sex with two other men near the time she conceived a child with former Husker player Correl Buckhalter, Nebraska supreme court affirms default judgment against Buckhalter. State on behalf of A.E. v. Buckhalter, S-06-693, 273 Neb. 443The Nebraska Supreme Court took Jennifer Brown at her word that she had sex with three men including Buckhalter near the time they conceived AE. You know the other two were not the fathers, and Buckhalters “private” test was not reliable. So if you are a something headed “ho” admitting to having sex with three men at the same time means there werent more?

Douglas County did not discriminate against female correctional officers when jail administrators reassigned female guard to late night shift. Tipler v. Douglas County, NE 062553P.pdf 04/12/2007District of Nebraska – Omaha employment discrimination case. Plaintiff was a corrections officer at the Douglas county jail. She initially served the standard day shift, but was reassigned to a less desirable night shift. After three months she regained her day shift, but in the meantime she suffered headaches, childcare problems and other woes. Naturally she sued under Title VII(42 U.S.C. § 2000e-2(a)) and the Constitution (42 U.S.C. § 1983, US constitution amendment 14). Male corrections officers did not experience the same shift change difficulties. The district court found that the County had a reasonable gender-based job assignment policy, and that Tipler "failed to establish any right to a particular shift assignment or that the assignment resulted in more than a minimum restriction on her employment." The court granted the County summary judgment. The Eighth Circuit affirms. The County "acknowledges that Appellant's gender was a factor in moving her to a different shift." However “An employer may treat employees differently based on gender when it is "a bona fide occupational qualification reasonably necessary to the normal operation of thatparticular business." See 42 U.S.C. § 2000e-2(e). Prison assignments qualify for such personnel actions. Plaintiff's reassignment to a different shift on the ground that additional females were needed on that shift in order to supervise female prisoners was reasonable and required in order for the facility to comply with state prison standards; reassignment imposed only a minimal restriction on plaintiff; county employed means that were substantially related to achieving important government objectives, and the transfer did not violate plaintiff's rights under the Equal Protection Clause

The Nebraska supreme court requires police to have probable cause to stop vehicles for drunk driving, except at night when the driver might actually want the officer's assistance. When the state patrol trooper stopped the defendant on a Washington County highway at 300AM, the "community caretaking" exception to the fourth amendment permitted the policeman's investigative stop. State v. Bakewell, S-06-765, 273 Neb. 372. Better known cases of the "caretaking" exception involved the police departments' seizing evidence they found in impounded vehicles. The Nevada supreme court refused to extend the caretaking exception to traffic stops "theincidentinquestionoccurredat3:15- a.m. there was little or no traffic present on this stretch of high way at the time of the incident the defendant's vehicle stopped orslowed considerably five times within approximately 90 secondswhile traveling down the highway, with the vehicle eventually-pulling off on to the shoulde rof the road. Considering the totality of the circumstances, it was reasonable for Groves to conclude that the Defendant was lost or that something was wrong"

Nebraska Supreme Court says cigarettes can be salary for undercover agents, but in this case the informant was just giving information. State Patrol investigator gave a cooperating witness $20 for cigarettes after she gave information Harold Kuenning's murder. The Defendant in a murder case argued this was improper because the witness was in prison or on probation, parole. Nebraska Supreme Court holds that merely giving information to the Police does not make a witness an undercover agent. See 29-2262.01 State v. McKinney, S-05-591, 273 Neb. 346. The prosecution must also comply with the fourth amendment when collecting DNA samples from suspects even while they are incarcerated. under§29-3304,lawenforcementpersonnel must have probable cause to believe that the person whose Dnais sought—whether he or she has been arrested or may otherwise be subject to Dna testing—committed the crime for which the Dna is sought.

Nebraska Supreme Court signals it will protect attorney client communications more than work product in discovery proceedings. State ex rel. Stivrins v. Flowers, S-06-1044, 273 Neb. 336 Plaintiff sued Lincoln physician Timothy Stivrins for failure to diagnose lung cancer. Plaintiff's counsel notices the doctor's partner physician for a deposition and prior to the deposition the partner physician sought legal advice from the same lawyer who represented the defendant. Plaintiff counsel questioned the witness about attorney client communications he had with the defendant's counsel. The district court upheld the plaintiff's motion to compel. Defendant filed this mandamus action in the Supreme Court against the district court and affirms the writ. While the Supreme Court in its Greenwalt v. Wal-Mart Stores, 253 Neb. 32, 567 N.W.2d 560 (1997) decision applied a balancing test for work product claims after a party established a prima facie case for protection, the court here appears to shut off any discovery of attorney client communications as long as the party makes a prima facie case for the privilege. Although the court in Hallie Mgmt. Co. v. Perry, 272 Neb. 81, 718 N.W.2d 531 (2006) denied an interlocutory appeal from an adverse ruling against a party's privilege claim, the supreme court distinguishes the result against the privilege in that case because the party seeking protection did not file their claim as a mandamus action. "Once pace established the attorney-client relationship, the plaintiff had the burden to establish that the inquiry related to or was an exception to this rule or that the communications wereoutside the scope of the privilege and further an appeal after the disclosure of the privileged communications at issue would be an inadequate remedy in this case."

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

US District Judge Strom fines Omaha company and it human resources director for harboring illegal immigrant workers.Omaha.com Just for giving hard working undocumented workers jobs we wont do, the US District Court Nebraska imposes a $100k fine; it also convicted its HR director of harboring illegal immigrants, put her on probation and fined her $9K. Of course the heartless US Government is punishing workers who were lured here by higher wages. Maybe they can move on to hiring child labor too, after all they can do a lot of jobs we cant too. An Omaha manufacturing company was ordered to pay $101,000 Friday after being convicted of immigration charges.Plastrglas Inc., 4200 N. 30th St., pleaded guilty in January in U.S. District Court to harboring or shielding illegal immigrants from detection. The offense carried a fine of up to $500,000.A Dec. 5 raid at the plant netted 30 illegal immigrant workers.Donna Lake, 46, the company's personnel director, was fined $9,000 and placed on probation for three years. Lake had pleaded guilty to a misdemeanor charge of engaging in a pattern and practice to hire illegal workers.The sentences imposed by U.S. District Judge Lyle Strom followed recommendations from the U.S. Attorney's Office after the company agreed to the guilty plea.

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

If you’re hurt on the job don’t have your employer also be your doctor: Hospital employee injured in scope and course of employment who claims additional injuries from negligent medical care from the hospital may not sue for malpractice because of the exclusive remedy provision of the Nebraska Worker compensation law Bennett v. Saint Elizabeth Health Sys., S-05-1306, 273 Neb. 300 “Plaintiff argues that because the second injury to her shoulder occurred while she was a patient receiving medical treatment from Saint Elizabeth Hospital, we should permit her to sue the hospital for additional negligence damages. Saint Elizabeth urged the Supreme Court to affirm, arguing that Plaintiff’s injuries were covered by the Workers’ Compensation act and the acts exclusive remedy provisions (48-101, 48-111, 48-112, 48-148 RRS Neb). “We agree with Saint Elizabeth and conclude that the district court did not err when it concluded that Bennett’s medical malpractice action was barred by the exclusivity provisions of the Workers’ Compensation act, granted summary judgment in favor of Saint Elizabeth, and dismissed the action. Because the consequential injury is covered, plaintiff’s exclusive remedy for this injury is under the Workers’ Compensation act, and recovery is not available in a medical malpractice action against Saint Elizabeth. Despite the “covered” nature of her injury, Bennett accordingly, we affirm.”

Missouri State Patrol raided Chillicothe car dealership-brokerage as part of car title fraud investigation that included disputed sales of Hummer sport trucks from the Huber dealership in Omaha Nebraska. Missouri dealers attorneys filed motion to suppress search and seizure calling them a "fishing expedition." Omaha.Com Missouri State Patrol investigators raided the car dealership-brokerage belonging to Patrice and Ed Robertson in Chillicothe on March 7. The MSP was searching for evidence of a possible car title fraud ring that involved sales of Hummer sport trucks from the Huber dealership in Omaha nebraska. The State Patrol suspected that someone made up fake purchasers for the Hummers which were then sold overseas while General Motors paid out about $500,000 in sales rewards for more than 200 Hummers. The Robertsons' attorneys claim the MSP misled a judge of the Livingston County Court to get his approval for the search warrant The lawyers contend that investigators misrepresented what three employees of the Huber Cadillac, Hummer and Saab dealership in west Omaha told the Nebraska State Patrol last fall. The lawyers called the March 7 search was a "fishing expedition with a huge but closely woven net," Falsifying vehicle titles is a felony in Nebraska. Sales for export and sales outside the Huber dealership's territory should not have been eligible for GM incentives

Nebraska Supreme Court refuses to require wholesale disruption of criminal prosecutions although the some courts have suggested that the cases Crawford v Washington and Davis v Washington required the in court testimony of technical witnesses to give the necessary foundation testimony for breath tests and speed detecting radar guns. State v. Jacobson, S-06-195, 273 Neb. 289, and State v. Fischer, 272 Neb. 963 (2007) In two traffic related appeals this year the Nebraska Supreme Court overruled defendants' objections that the technicians who certified the intoxication and speed detection devices should have appeared to testify that the devices were working properly. Fisher lost when the Supreme Court ruled that the technician's certification of the intoxication devices were not testimonial because the certifications were routine administrative tasks and too attenuated from the prosecution of the charges against Fischer for the statements to be ‘testimonial’ in the sense required under Crawford (Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)), Davis (Davis v. Washington, ___ U.S. ___, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006)), The Defendant Jacobsen lost when the Supreme Court agreed with the District Court that the technicians report authenticating the tuning forks and workings of the radar gun were also not testimonial. Fischer is analogous to the Jacobsen's case. Applying the reasoning of statements in the document certifying the accuracy of the tuning forks were nontestimonial. The “Certificate of Calibration and Accuracy” was prepared in the course of the State patrol technician’s routine duties to ensure that the tuning forks used to calibrate and test the radar unit oscillated at the proper speeds. Certification was required annually, whether or not the certification document would eventually be used in a criminal prosecution. The statements contained in the certification document did not pertain to any particular defendant. They were made over 6 months before Jacobson was cited for speeding. Thus, the statements “were too attenuated from the prosecution of the [speedingcharge] against [Jacobson] for the statements to be ‘testimonial.’” Fischer, 272 Neb. at 972, 726 N.W.2d at 183

Send this one on to your malpractice insurer: Plaintiffs law firm filed her Political Subdivision tort claim against York County apparently on time, but then filed her notice to withdraw the claim exactly six months after her initial filing date. Nebraska Supreme Court finds the plaintiff's claim withdrawal date was one day too early, but does not discuss whether the plaintiff's filing suit more than six months after the claim corrected the premature withdrawal. Geddes v. York County, S-05-1359, 273 Neb. 271. Plaintiff alleged York County's negligent act occurred on June 10, 2002. The Plaintiff's attorney filed her tort claim with York County on April 21, 2003. The county board considered the claim but did not act. Plaintiff's attorney filed notice withdrawing the tort claim on either October 20 or 21, 2003. Plaintiff filed suit on May 7, 2004. Plaintiff's representative took over the case on April 6, 2005 as plaintiff had died. District court granted York County's motion for summary judgment finding that the Plaintiff failed to comply with § 13-906, Nebraska Political Subdivision Tort Claim Act, because she withdrew her claim filed with York County before 6 months had passed from the date of filing when the county had not yet made final disposition. Nebraska Supreme Court affirms. Section § 25-2221 (Cum. Supp. 2006) provides the method to calculate the "within" six months waiting time period from § 13-906. Using 25-2221, "within six months" in 13-906 would extend through October 21. So even if the parties dispute when the plaintiff filed the withdrawal, the plaintiff prematurely withdrew the suit. The supreme court however did not discuss whether the plaintiff's suit filing corrected her premature withdrawal, as Nebraska Supreme Court held in Malzahn v. Transit Authority, 244 Neb. 425, 507 N.W.2d 289 (1993), that absent any consideration of the statute of limitations, filing suit is substantial compliance with the terms of § 13-906 and equates with notice of withdrawal of a claim from consideration. See also Big Crow v. City of Rushville, 11 Neb.App. 498, 654 N.W.2d 383 (Neb.App. 12/10/2002) affirmed 266 Neb. 750, 669 N.W.2d 63 (Neb. 09/26/2003){suit filed too early but city failed to plead defense} "Using the time computation method specified in § 25-2221, we exclude April 21, 2003, the date on which Schirber filed her claim, so that the 6-month period began on April 22, 2003. Unless the context shows otherwise, the word “month” used in a Nebraska statute means “calendar month.” A calendar month is a period terminating with the day of the succeeding month, numerically corresponding to the day of its beginning, less one. Applying §§ 25-2221 and 49-801(13), we conclude that the district court correctly determined October 21, 2003, to be the last day of the 6-month period that commenced when Schirmer filed her claim with the county clerk. The district court had further found the statute of limitations had run on the plaintiff's cause of action and even though that finding may have been wrong, the plaintiff did not allege error. The Supreme Court refuses to consider this as a plain error.

Nebraska Supreme Court opens the door to class action suits against state government while overruling precedent from just 12 year ago: The court still denied retired state patrolmen extra pension benefits from sick leave the patrolmen claimed should have increased their pension annuities, the Supreme Court rules that complaining state government retirees may file class claims in district court without presenting them either to the State retirement board or to the State claims board. Livengood v. Nebraska State Patrol Ret. Sys. S-05-710, 273 Neb. 247

The Supreme Court strikes a blow to the State treasury but hey it's more work for lawyers. The court agrees that the patrolmen or other complaining state employees may use the class action method to win large settlements of retirement benefits, and hey just in time for large numbers of baby boomer retirees to come to the trough. The court finds the legislation that enables Neb. Const. art. V, § 22, waiving sovereign immunity, Neb. Rev. Stat. § 25-21,206 (Reissue 1995) encompasses class actions State law limited only tax refund suits from class status § 25-21,206 does not limit the procedure for contract claims against the State so that only individual actions are per Boersma v. Karnes, 227 Neb. 329, 332, 417 N.W.2d 341, 344 (1988) is limited to tax refund cases.

The Supreme Court further excuses the retirees from the presuit filing requirements of Neb. Rev. Stat. § 81-1170.01 as neither § 84-1503 nor the regulaions

Require an aggrieved party to present his claim to the board before suing in court. Justice Connolly implicitly overrules the courts 1994 precedent Hoiengs v. County of Adams, 245 Neb. 877, 516 N.W.2d 223 (1994) that suggested all state retirees had to present claims, although in that case county employees did not have to follow procedures required for state employees. Justice Connolly rewrites Hoiengs now to recognize that the procedure at issue is also inapplicable for a different reason that § 81-1170.01 does not apply to retirement disputes under our statutory scheme. "We hold that the presuit filing requirement under§ 81-1170.01, is inapplicable in retirement benefits controversies. "

US Supreme Court overrules Ninth Circuit decision that restricted creditors' attorney fee claims in Bankruptcy Court.TRAVELERS CASUALTY & SURETY CO. v. PACIFIC GAS AND ELECTRIC CO.No. 05-1429. SCOTUS slaps the Ninth Circuit again like a red headed step child. Chapter 11 debtor Pacific Gas & Electric insured itself for California worker compensation claims and acquired a bond through Travelers to make sure Pacific could cover worker compensation claims. When Pacific Gas filed chapter 11 Travelers requested additional security and sought provisions for additional attorney fees through the claim proceedings. The federal district court and the Ninth Circuit agreed that the attorney fees provision was not allowed citing Ninth Circuit precedent In re Fobian, 951 F. 2d 1149 (CA9 1991) Supreme court reverses, finding that the bankruptcy code does not prohibit categorically attorney fees that arise solely from bankruptcy issues. The Fobian rule finds no support in the Bankruptcy Code, either in §502 or elsewhere. In Fobian, the court did not identify any provision of the Bankruptcy Code as providing support for the new rule. Congress, of course, has the power to amend the Bankruptcy Code by adding a provision expressly disallowing claims for attorney’s fees incurred by creditors in the litigation of bankruptcy issues. But because no such provision exists, the Bankruptcy Code provides no basis for disallowing Travelers’ claim on the grounds stated by the Ninth Circuit. Justice Alito declined to consider Travelers' belated argument that 506 which considers secured claims somehow limits unsecured attorney fee claims.

Nebraska Supreme Court nixes requirement that medical experts invoke "magic words" when stating their opinions, affirms child abuse case from Madison county. Blog 702. From Daubert on the Web: do physician experts really "balk" at stating their opinions under oath as "with a reasonable degree of medical certainty?" Perhaps they shouldnt since most experts are used to testifying. Supreme Court affirms child abuse conviction against day care provider when an 18 month old child in her care suffers severe head injury, and according to the physician from shaken baby syndrome. "some experts have been known to balk, despite a high level of confidence in their opinions, because to their understanding, "certainty" connotes indubitability and does not come in "degrees." See State v. Kuehn, No. S-05-888 (Neb. Mar. 16, 2007).

Lesbian from Uganda wins rehearing of asylum petition in Eighth Circuit Oliva Nabulwala v. Alberto Gonzales U.S. Court of Appeals Case 054128P.pdf 03/21/2007 Immigration & Naturalization Service Ugandan citizen discovered she was a lesbian in high school. Family members beat her and forced her to attend a coed school. When the schooling assignment failed to straighten her out, the family forced to have sex with a man. She joined a gay rights organization that the Ugandan government disbanded. When her visa expired she sought refugee status. The immigration judge denied her application because she could not prove government oppression. She petitions for review denial of asylum, withholding or removal and Convention against Torture relief. Eighth Circuit Court of Appeals holds that homosexuality is a "particular social group" that could qualify the applicant for asylum. The Immigration judges failed to determine if the Ugandan government was unable or unwilling to control persons who had harmed petitioner, and Board made impermissible fact finding of the foreign governments efforts. Eighth Circuit grants petition for review and remands for additional proceedings. Persecution may be "a harm to be inflicted either by the Government of a country or by persons or an organization that the government was Unable or unwilling to control." See Suprun v. Gonzales, 442 F.3d 1078, 1080 (8th Cir. 2006)(emphasis added); see also Valioukevitch v. INS, 251 F.3d 747, 749 (8th Cir. 2001) ("the harm [petitioner] endured must have been inflicted either by the government of Belarus or by persons or an organization that the government was unwilling or unable to control"); Menjivar, 416 F.3d at 921; Miranda v. INS, 139 F.3d 624, 627 (8th Cir. 1998). The IJ made no finding as to whether the government was unable or unwilling to control persons who had harmed, or would harm, Nabulwala. Therefore, as to the government's inability or unwillingness, there were no findings of fact determined by the immigration judge To the extent that the BIA is finding facts about the government's unwillingness, such fact finding is not authorized. 8 C.F.R. § 1003.1(d)(3)(iv)

Partners' stated in their agreement that once a partner sought to exit the partnership, another partner could within 90 days buy out the exiting partner. Nebraska Supreme Court rules that the 90 day time period started when the exiting partner served his complaint from an earlier case he brought to dissolve the partnership. Mogensen v. Mogensen, S-05-879, 273 Neb. 208 Partners had also acquired property and titled it in the mothers name. The partners provided the downpayment and the mother financed it. The partners did not pay rent to their mother for eight years but made improvements on the property. Supreme court agrees that the property although in the mothers name is presumed partnership land, and the mother did not overcome this presumption. "service of the complaint on keith, rather than either the summary judgment order or the filing of the lawsuit, provided notice of steven’s intent to withdraw and dispose of his interest The mother's property is partnership property because although some evidence does indicate an ownership interest in opal, it is not enough to overcome the presumption in § 67-412(3). We conclude that the brothers purchased the property for the partnership. the most convincing proof of their intent is that brian, keith, and steven decided they wanted the property and then decided to put it in opal’s name to take advantage of a government program. the brothers essentially controlled the transaction in obtaining the land, including using partnership funds to pay for the property. the facts that the partnership developed the land, paid the real estate taxes, and improved the farm for the first 8 years without paying rent further bolster our conclusion

Is pregnancy a disease? Even though some feminists and college boys might think so, the Eighth Circuit court of appeals declines to decide this issue, but agrees with Union Pacific that it did not have to cover contraceptive prescriptions that were not related to medical conditions. Plans did not violate Title VII or the Pregnancy Discrimination Act Standridge v. Union Pacific 061706P.pdf 03/15/2007 U.S. Court of Appeals Case No: 06-1706 District of Nebraska - Omaha Female plaintiffs sued their employer Union Pacific Railroad Company (“Union Pacific”) for sexual discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., as amended by the Pregnancy Discrimination Act of 1978 (“PDA”), 42 U.S.C. § 2000e(k). The district court granted plaintiffs partial summary judgment. Union Pacific appealed and the Eighth Circuit reverses: because the Union Pacific health plan excluded both male and female contraception unless they were necessary for other medical conditions, the railroad did not discriminate against the female employees. The district court held that Union Pacific violated Title VII, as amended by the PDA, because “it treats medical care women need to prevent pregnancy less favorably than it treats medical care needed to prevent other medical conditions that are no greater threat to employees’ health than is pregnancy.” The Eighth Circuit earlier held that a health plan could exclude infertility treatments for men because “infertility is outside of the PDA’s protection because it is not pregnancy, childbirth, or a related medical condition.” Krauel v. Iowa Methodist Medical Center, 95 F.3d 674 (8th Cir. 1996 Judge Bye, dissenting” Women are uniquely and specifically disadvantaged by Union Pacific’s failure to cover prescription contraception. Because I believe such a policy violates Title VII, as amended by the PDA, I respectfully dissent. Although the district court’s decision might appear to grant women benefits above and beyond those of men, the PDA requires such benefits be included in an otherwise comprehensive health care plan.

Omaha attorney loses his appeal from a one year license revocation for refusing an alcohol test even though the Douglas county court eventually acquitted him of refusing to take a breath test. Betterman v. Department of Motor Vehicles, S-05-638, S-06-823 , 273 Neb. 178 . the appellant is pro se and an attorney who brings many issues up on this license appeal, all of which he loses. Still someone liked him because he was acquitted of the same charges in county court; only the administrative revocation stuck. Appellant wanted to challenge on appeal the partiality of the administrative hearing officer who would be an employee of the DMV. Attorney failed to challenge this at the hearing but sought to offer judicial notice of the hearing officer's status at the District Court. Supreme Court agrees that even with notice of adjudicative facts, the appellant may not supplement the record at District court if he did not offer it at the administrative hearing. Further the appellants acquittal, even if this would be newly discovered evidence against his revocation does not affect the administrative license revocation for refusing to test. "Assuming that the court could take judicial notice of the hearing officer's employment as an adjudicative fact, (the supreme court) would not take judicial notice of it. See Wolgamott v. Abramson, 253 Neb. 350, 570 N.W.2d 818 (1997): in a contested case under the APA, a court may not take judicial notice of an adjudicative fact that was not presented to the agency, because the taking of such evidence would impermissibly expand the court’s statutory scope of review de novo on the record of the agency. The APA does not authorize a district court reviewing the decision of an administrative agency to receive additional evidence, whether by judicial notice or other mean. To the extent Vinci v. Nebraska Dept. of Corr. Servs., 253 Neb. 423, 437, 571 N.W.2d 53, 62 (1997). See, also, Slack Nsg. Home v. Department of Soc. Servs., 247 Neb. 452, 528 N.W.2d 285 (1995) suggested otherwise, the court disapproves of them. In the present case, even if evidence of Betterman’s acquittal in the criminal case were to be admitted in a new ALR hearing, its admission would not affect the outcome. Therefore, the district court did not err in refusing to reverse the director’s order.

Nebraska Supreme Court affirms physician's defense verdict from diabetic mother's appeal for brain injured son; criticizes the Plaintiff's abbreviated bill of exceptions and refuses to recognize plain error in alleged evidence spoliation. Worth v. Kolbeck, S-05-269, 273 Neb. 163 Plaintiff brain injured child brought suit against obstetrician because following his birth he developed hypoxic‑ischemic encephalopathy, directly related to his diabetic mother's ketoacidosis that she experienced shortly before delivery. The child suffered lack of oxygen that caused his perinatal brain injury. Defendant doctor answered that the sole proximate cause of the plaintiff's brain injury was the mothers diabetic ketoacidosis and further that delayed cesarean delivery made no difference to the outcome. During the trial the Defendants read into evidence pediatric neurologist Stephen Glass' deposition who testified that the defendant was not negligent nor were his actions the cause of the boy's injuries. Plaintiff objected because his current attorneys were not his counsel when the defendant took this deposition. Plaintiff objected also to the trial court's instruction that allowed the jury to consider whether the mother was herself negligent in managing her pregnancy. Finally the Plaintiff urged that it was plain error for the court to fail to give a spoliation of evidence instruction, even though the Plaintiff did not provide relevant parts of the record to review this in his bill of exceptions the Supreme Court allows the Defendant's proximate cause instruction which asked the jury to consider whether the mother was a proximate cause of his injuries, even though the defendant may not impute the parents negligence to the child: " the third person’s (diabetic mother) negligence is not imputed to an innocent plaintiff by a sole proximate cause instruction. “The concept of sole proximate cause ‘rests on the notion that some third party or other independent event was the sole cause of the plaintiff’s injuries... taken as a whole, the jury instructions were sufficient to ensure that mothers’s negligence did not operate to prevent child’s recovery of damages if the jury concluded that Defendant's negligence was a concurring or contributing proximate cause of Son’s injuries. the Supreme Court went on to criticize the Plaintiff's appellate preparation, noting that The bill of exceptions does not include most of the trial. It is limited to the arguments regarding the admissibility and the reading into evidence of deposition testimony from Sonja’s medical expert, Dr. Stephen Glass; two jury instruction conferences; and the testimony of an expert document examiner, Marlin Rauscher. Finally not a good start the court denies plain error on top of admitting the deposition, stating Sonja’s argument requires a factual inquiry into this record, which is wholly insufficient for this court to evaluate whether the absence of an adverse inference instruction prejudiced Sonja’s case or led to a miscarriage of justice. It is incumbent on the party appealing to present a record which supports the errors assigned, and absent such a record, the decision of the lower court will be affirmed.36 Because we cannot determine that the court’s failure to give this instruction was error, the district court’s ruling is affirmed.

Eighth Circuit Court of Appeals reverses convictions against North Dakota simulcast horseracing operator but cautions that all off track betting that takes place by phone or online may be illegal. 053688P.pdf 03/06/2007 United States v. Susan Bala No: 05-3688 05-3691,05-3690 District of North Dakota - Fargo [Loken, Author, with Smith and Gruender, Circuit Judges The defendants contracted with the State of North Dakota to provide charitable off track horse betting operators with signals and betting systems. Later the defendants lobbied the State of North Dakota to gain approval for off track account wagering. The defendants won the contract but failed to remit any proceeds to charities as the law required. The federal district court convicted the defendants of violating 18 USC 1955. 1084(a), 1084(b), along with wire fraud, money laundering charges. In addition the court ordered the defendants forfeit gambling proceeds. Eighth Circuit reverses, ruling that the Government failed to prove the defendants were illegal gambling businesses violating the relevant federal gambling statutes because the government failed to prove the defendants violated the North Dakota simulcasting statutes. Although an account wagering site in North Dakota had to transmit some gambling proceeds to charities, the law was never clear how much, when or how that would occur. The Eight Circuit cautions however although the government did not charge the defendants with illegal conducting wagering through wire facilities, it could have and any off track betting organization taking phone or online bets could be violating the law even though its home State might have authorized its operations: There is an aspect of this issue unnoticed by the parties that could have serious implications for the future of interstate account wagering. The prohibition in§ 1084(a) encompasses bets and wagers as well as information assisting bets and wagers, whereas the exception in § 1084(b) is limited to information assisting bets and wagers. Thus, the plain language suggests that Congress intended to prohibit all interstate wagering by wire, whether or not legal in the States between which the bets are transmitted…North Dakota passed the 2001 account wagering statute in an attempt to attract interstate electronic betting. If the reach of § 1084 is as broad as its legislative history suggests, the attempt if successful will violate federal law. We leave that issue to another day.

Eighth Circuit slaps down Judge Bataillon again: this time the appeals court reverses Bataillon's order granting a new trial for a crack dealer. 061240P.pdf 02/28/2007 USA v. Jerome BassDistrict of Nebraska - Omaha[Arnold, author, with Murphy and Benton, Circuit Judges]While a cooperating prosecution witness lied several times during pretrial hearings and in an additional affidavit, the District court should d not have assumed that the witness lied during the trial, much less that the US Attorney knowingly presented perjured testimony. The witness who lied in earlier hearings claimed he lied because his aunt pressured him, he was mad he didn't get a lighter sentence. According to Giglio v. United States, 405 U.S. 150, 153 (1972), United States v. Funchess, 422 F.3d 698, 701 (8th Cir. 2005) the government did not violate defendant's due process rights were not violated. Again the Eighth Circuit has a hard time figuring out Judge Bataillon's ruling, but assuming he granted a new trial because the verdict was against the weight of the evidence, the district court abused its discretion because the government presented several corroborating witnesses to prove the defendant guilty.

It takes the smartest brightest judges of all time to determine that "closed" doesn't mean "closed." Nebraska Supreme Court Justice Gerrard rules that Natural Resources District defendant could not close off discovery of litigation strategy meetings it conducted in accordance with the Nebraska Open Meetings Law (§ 84-1408 et seq. ). State ex rel. Upper Republican NRD v. District Judges, S-06-549, 273 Neb. 148 Organization of independent irrigators sued this natural resources district and sought discovery of what its members discussed during closed sessions. The district court agreed with the independent irrigators that the records of closed sessions were not absolutely privileged even if the sessions qualified as closed under the Open Meetings Law, § 84-1410(1).RRS Neb. The Supreme Court Justice Gerrard approves of the district court and holds that the district court should review the closed sessions to determine if any parts of the meetings The old Supreme Court must have been wrong in Maresh v State 489 N.W.2d 298, 241 Neb. 496 (1992) when it said court rules, such as Discovery Rule 26 cannot trump statutes, such as the Open Meetings Law. Also the legislature is supposed to tell the court that lawyers cant get the information, such as specifying that meetings are privileged, as in the Peer Review law§ 71-7903 (Reissue 2003).

Nebraska Supreme Court makes sure lawyers have enough work to do with administrative appeals; Parties to the Public Service Commission may appeal the Commission's failure to issue rules. Chase 3000, Inc. v. Nebraska Pub. Serv. Comm., S-05-935, 273 Neb. 133 Independent internet service providers sought rules from the Public Service Commission to require Qwest to make its networks more accessible to them. The PSC declined to issue the rules and the service providers appealed to District Court, the district court reversed the PSC decision not to act. The PSC challenged the District Court's assumption of jurisdiction, arguing that its decision not to make a rule was not appealable to the District Court. Although the Supreme Court rules in favor of the PSC and Qwest, it agrees that in the future parties who sought rules but did not get them will be able to appeal to district court. Add on top of that since 2003(§ 75-136, as amended by L.B. 187, effective date August 31, 2003) the appeals would go first to District Court instead of straight to the court of appeals. More layers of work, more lawyers, more fun.

Ah country life: the Nebraska Supreme Court affirms that even families living in the country are entitled to have their air floating over(head) free from noxious and unnatural impurities , a right as absolute as the right to the soil itself. Johnson v. Knox Cty. Partnership, S-05-853, 273 Neb. 123 Although the defendants' Knox county feedlot complied with zoning requirements, the Nebraska Supreme Court permits a nuisance suit against the feed lot from neighboring residents, who themselves raised livestock. Heres another environmental activist suit that will help drive agricultural businesses out of the state. we conclude that there are genuine issues of material fact as to whether the cattle confinement facility caused a substantial invasion of or interfer- ence with the Johnsons’ private use and enjoyment of their prop- erty. Accordingly, the Partnership and Feeders were not entitled to summary judgment with respect to the private nuisance claim.

Post conviction counsel who argues trial counsel was ineffective should be effective. A Hall County District Court jury convicted the defendant of a drug possession crime and the Court sentenced her to prison. While on an appeal bond, the Defendants attorney failed to appeal. New defense counsel and the county attorney stipulated that defendant's former counsel was ineffective for not filing the appeal. The district court allowed the defendant to appeal based solely on the parties' stipulation. Court of Appeals dismisses appeal because the District court did not find that counsel had been ineffective by failing to appeal. State v. Murphy, A-05-1210, 15 Neb. App. 398 Under § 29-3001, the jurisdiction for post conviction relief depends upon the existence of circumstances whereby “there was such a denial or infringement of the rights of the prisoner as to render the judgment void or voidable under the Constitution of this state or the Constitution of the United States.” The same post conviction statute requires the district court to “make findings of fact and conclusions oflaw with respect thereto.” Id. In this case there were no allegations of fact, no stipulations of fact, and no findings of fact showing any such denial or infringement of Murphy’s constitutional rights. The stipulation sets forth only the bare conclusory agreement that “an Appeal” be allowed, and the district court’s order merely implements that stipulation...Appeal dismissed.

Here's another Political Subdivision Tort Claims Act dismissal for the Nebraska Supreme Court to reverse. Amanda was a back set passenger in a stolen Lincoln sedan when its driver went off an embankment while fleeing the police, killing her. Nebraska court of appeals holds that backseat passenger in stolen automobile was not an innocent third party and so could not make a claim under the Nebraska Political Subdivision Tort Claim Act vehicular pursuit law 13-911. Jura v. City of Omaha, A-05-165, 15 Neb. App. 390. Although Amanda may not have known the Lincoln was stolen, although perhaps she should have, any passenger in a stolen vehicle counts as one the police seek to apprehend, for purposes of 13-911 RRS Neb.