What do the students who do best on the LSAT major in during college? The Volokh Conspiracy cites research that shows Economics and Philosophy do best: "Economics majors still perform at or near the top of all majors taking the test. Economics majors (LSAT score of 157.4) are tied for first (with Philosophy) of the 12 largest disciplines (those with more than 1,900 students entering law school). Economics is tied for second (with Philosophy/Religion (157.4)) behind Physics/Math (160.0) in a set of 29 discipline groupings that are created to yield at least 450 students with similar majors. " Pre-law students fare less well on the test, but I'm sure they can make up for it with greater opportunities for "community organizing" projects that can make up a lot of ground on their intellectual betters.

Follow up: Former aide to Senator Exon files qui tam lawsuit in Virginia federal court against Nelnet. "Jon Oberg, a University of Nebraska-Lincoln graduate and former aide to former U.S. Sen. Jim Exon, filed the suit in U.S. District Court for the Eastern District of Virginia. Nelnet is the lead defendant, but since the Lincoln student loan company settled its differences with the federal government more than two years ago, its spokesman said Nelnet considers the matter closed. "Without having seen the litigation there's nothing to comment upon," said Nelnet spokesman Ben Kiser. The suit seeks the return of about $1 billion in "special allowance" payments wrongfully obtained under a federal subsidy program. The subsidy guaranteed a 9.5 percent return on a limited class of student loans. It was created in the 1980s to ensure low-cost student loans at a time when the economy was souring and interest rates were high. It was largely phased out in 1993, but companies found a loophole that allowed them to actually expand the amount of loans receiving the subsidy by recycling older loans and packaging them with newer ones."

Eighth Circuit Court of Appeals affirms conviction for child pornography; defendant's claim that governments search of his computer that was hooked up peer to peer with other computers through Lime Wire program was not an illegal warrantless search. 083183P.pdf 08/14/2009 United States v. Harold Stults U.S. Court of Appeals Case No: 08-3183 District of Nebraska - Omaha [PUBLISHED] [Smith, Author, with Riley and Colloton, Circuit Judges] Criminal case - criminal law and sentencing. Users of peer-to-peer file sharing software like LimeWire do not have a reasonable expectation of privacy in files they make available to others using the software, and the warrantless search of defendant's computer through LimeWire did not violate his Fourth Amendment rights; affidavit the police used to obtain a warrant to search defendant's home and seize his computer established probable cause to believe child pornography would be found; defendant's prior conviction for attempted sexual assault on a child was sufficient to invoke the ten-year mandatory minimum sentence under 18 U.S.C. Sec. 2252(b)(2); under this court's precedents, the district court did not err in applying the five-level enhancement under Guidelines Sec. 2G2.2(b)(3)(B) as the government produced sufficient circumstantial evidence to meet its burden of proving defendant expected to receive child pornography when he used LimeWire; sentence was not unreasonable; special conditions of supervised release which controlled defendant's contact with children, access to pornography and use of the Internet and cameras were related to his offense and were reasonable measures to protect the public.

Eighth Circuit Court of Appeals affirms without comment Nebraska convict's civil rights complaint against requiring him to register as a sex offender for pandering a minor. 081629U.pdf 08/21/2009 Richard Hansen v. John Doe U.S. Court of Appeals Case No: 08-1629 District of Nebraska - Lincoln [UNPUBLISHED] [Per Curiam - Before Loken, Chief Judge, and Hansen and Colloton, Circuit Judges] Civil case - civil rights. Order dismissing suit claiming issuance of a citation for violation of SORNA's (Neb. Rev. Stat. §§ 29-4001-14.) reporting requirements violated plaintiff's civil rights affirmed without comment.

Nebraska Supreme Court affirms summary judgment against Mortgage lender in its declaratory complaint and insurers' cross-complaint denying the mortgage lender a defense in borrower's fraud and slander of title lawsuit against it in Kentucky state court. Mortgage Express v. Tudor Ins. Co., S-08-728, 278 Neb. 449 Mortgage Express, Inc., and Jeff Rothlisberger, its sole shareholder (collectively Mortgage Express), seek a declaration that Mortgage Express liability insurers, Tudor Insurance Company (Tudor) and Cincinnati Insurance Company (Cincinnati) are obligated to defend Mortgage Express in a suit brought against it by a third party, Village Campground (Village). In December 2006, the court entered summary judgment in favor of Tudor and Cincinnati, thereby dismissing Mortgage Express’ action, and Mortgage Express appealed The court filed another order dismissing Peterson ( the defendant insurance broker), properly certifying the case as a final, appealable order, and Mortgage Express filed this appeal. We affirm. There is no genuine issue as to the fact Mortgage Express was unaware, prior to the effective date of the Tudor policy, of the circumstances leading up to the claims asserted in Village’s amended complaint. Therefore, the Tudor policy does not provide coverage for the defense sought by Mortgage Express. As to defending the Village's slander of title suit, "title to real estate is not a person, organization good, product, or service as those terms are commonly understood," thus, slander of title did not fall within the policy coverage of a good, product, or service as those terms are commonly understood," thus, slander of title did not fall within the policy coverage defendant provided to plaintiff. Mortgage Express’ remaining argument is that Cincinnati must defend it in the underlying action because its lien is an invasion of the right to private occupancy of the premises Mortgage Express merely asserted that it held a valid, unsatisfied security interest against the property. A security interest is an interest in personal property or fixtures which secures payment or performance of an obligation. As such, Cincinnati has no duty to defend Mortgage Express and was properly granted judgment as a matter of law.

Nebraska Supreme Court reverses Court of Appeals decision that dismissed appeal of landlord's complaint for indemnificaiton against tenant bank arising from a bank customer's personal injury lawsuit. Kuhn v. Wells Fargo Bank of Neb., S-08-141, 278 Neb. 428 The burden of proving mootness is on the party seeking dismissal "Maintenance of a building," within the meaning of Neb. Rev. Stat. § 25-21,187(1) (Reissue 2008), does not encompass the ordinary activities associated with management of commercial property. Indemnification is distinguishable from the closely related remedy of contribution in that the latter involves a sharing of the loss between parties jointly liable. "The Court of Appeals erred by dismissing this appeal as moot, because the burden had not yet been placed on (landlord) to prove damages, and the record does not foreclose the possibility that (landlord) was liable to (injured plaintiff). The district court erred in concluding that paragraph 20 was ambiguous, and we find no merit to the Bank’s alternative reasons why paragraph 20 was purportedly unenforceable. The judgment of the Court of Appeals is reversed, and the cause remanded to the Court of Appeals with directions to reverse the judgment of the district court and remand the cause to the district court for further proceedings consistent with this opinion

Nebraska Supreme Court affirms summary judgment against tenured Creighton language professor who sued a PHD student for maliciously filing a harassment complaint against her. Recio v. Evers, S-07-1338, 278 Neb. 405 We conclude that a person cannot incur liability for interfering with a business relationship by giving truthful information to another. In this case, Recio’s claim for tortious interference with a business relationship rested on Evers’ sexual harassment complaint, and the record establishes that the material allegations of Evers’ complaint were truthful. And even if actual malice can defeat a defense that interference with a business relationship was justified, there is insufficient evidence in the record to show that Evers’ sexual harassment complaint was motivated by actual malice. Therefore, the district court correctly concluded that Evers’ sexual harassment complaint was justified.

Nebraska Court of Appeals allows uncounseled prior DUI conviction for enhancement when sentence was stand-alone probation and subsequent offense for DUI 2nd offense. State v. Wilson, A-08-1337, 17 Neb. App. 846. New charge was DUI 2nd offense, more than 0.15, Neb. Rev. Stat. § 60-6,196 (Reissue 2004), which is a Class I misdemeanor under Neb. Rev. Stat. § 60-6,197.03(5) (Supp. 2007). At the time, her breath alcohol content was .215 grams per 210 liters of her breath. "we hold that a prior conviction resulting in a sentence of probation, and not actual imprisonment, can be used for enhancement in subsequent proceedings without a showing that the defendant had or waived counsel in the prior proceeding. Because Wilson was sentenced to probation and a fine and no term of imprisonment was actually imposed, Wilson was clearly not entitled to counsel for her misdemeanor conviction for DUI in 2003—on constitutional or any other grounds."

In mandamus action former physician who was a defendant in a medical malpractice lawsuit sought to prohibit the Dawes County District Court from allowing plaintiff to review materials the Nebraska Attorney General had obtained in its disciplinary action against him. The doctor had surrendered his license for sexual misconduct while the malpractice suit stemmed from an allegedly botched diagnosis of a spinal cord injury. The plaintiff argued that discovery was necessary because she may have been injured because the pervert doctor might have been turned on too much to give her good care. The Nebraska Supreme Court denies the doctors writ of mandamus and allows discovery of the disciplinary investigation to proceed. Stetson v. Silverman, S-09-209, 278 Neb. 389 "We conclude that the relators (the defendant doctor) have failed to meet their burden of showing clearly and convincingly that they are entitled to quash discovery of information regarding defendant's surrender of his license. In addition, they do not have standing to quash a subpoena directed at the Department to obtain its records. We therefore deny their request for a peremptory writ of mandamus ordering the district judge to vacate his discovery order."

Order of the Kneepads Update: Nebraska Supreme Court suspends Lincoln attorney for 60 days, deferred for 30 days upon conditional admission that she mishandled a convict's civil rights lawsuit against the State Department of Corrections. Court decision fails to mention same attorney had record of public discipline, a public reprimand in 2005 for neglecting cases. State ex rel. Counsel for Dis. v. Kleveland, S-09-115, 278 Neb. 385 (Kleveland II). Prior disciplinary decision State ex rel. Counsel for Dis. v. Kleveland 270 Neb. 52 (2005) (Kleveland I).

Order of the Kneepads Update: Nebraska Supreme Court suspends Omaha attorney for three months for failing to prepare auto accident cases for trial and for communicating with the court and clients. State ex rel. Counsel for Dis. v. Bouda, S-08-1204, 278 Neb. 380

Nebraska Supreme Court, Miller-Lerman, Justice affirms Lancaster County District Court conviction of felony murder and use of a firearm to commit a felony from the shooting death in an armed robbery of a marijuana dealer. State v. Banks, S-07-670, 278 Neb. 342. Defendant broke into the victims home to rob him of cash and a marijuana stash. Defendant shot the victim twice in the chest as he was getting away in his friends car. Nebraska Supreme Court affirms District Court's refusal to allow an alternative premediated first degree murder instruction along with the court's felony murder instruction. The district court's refusal to allow the jury to consider lesser included homicide offenses and acquittal on robbery the Supreme Court also affirms. Defendant also loses his appeal on jury selection, venue, witnesses cross examination and the state's late amendment of the weapons charge from a Class III felony to a firearms Class II felony. We conclude that Banks has not established reversible error from the court’s refusal to instruct on premeditated murder and the lesser-included offenses of second degree murder and manslaughter. In this case, Banks was convicted of first degree murder based on sufficient evidence. Banks has shown no prejudice from the refusal to instruct on premeditated murder, because such instruction would have simply given the jury an additional theory under which to convict Banks of first degree murder. Banks also has not shown that he was prejudiced by the failure to instruct on premeditated murder with its corresponding lesser-included offenses, because the evidence did not produce a rational basis to acquit him of first degree murder under a felony murder theory but convict him of second degree murder or manslaughter. The district court therefore did not violate Banks’ right to due process and did not otherwise prejudicially err when it refused to give the instructions requested by Banks

Nebraska Supreme Court hands down 120 day suspension against Douglas County Court Judge Marcuzzo for steering his nephew's domestic disturbance case away from "stern" Judge White to a judge who gave the nephew probation and also for leaving profane phone messages with prosecutors who were handling cases in his court. In re Complaint Against Marcuzzo, S-35-080001, 278 Neb. 331. Special Master had recommended a 3 month suspension.

Nebraska Supreme Court affirms misdemeanor assault conviction and 100 day sentence when victim did not testify except through the county court's receiving into evidence her 911 recorded call. State v. Thompson, S-08-1134, 278 Neb. 320 District Court on appeal ruled tape was inadmissible hearsay but admitting the tape was harmless error. Defendant did not raise a confrontation objections. an appellant must show that the trial court actually made a factual determination, or otherwise resolved a factual issue or question, through the use of erroneously admitted evidence in a case tried without a jury. State v. Harms, 264 Neb. 654, 650 N.W.2d 481 (2002) (supplemental opinion). The appellant must show that the trial court made a finding of guilt based exclusively on the erroneously admitted evidence. State v. Lara, 258 996, 607 W.2d 487 (2000). If there is other sufficient evidence to support the finding of guilt, the conviction will not be reversed. Id. The burden rests on the appellant in a bench trial because of the presumption that the trial court, sitting as the fact finder, disregards inadmissible evidence. State v. Harms, supra. We conclude there was other sufficient evidence to support the finding of guilt.

Plaintiffs who sued the City of Omaha for injuries children suffered in sledding accident at Memorial Park won partial summary judgment on liability under the Political Subdivision Tort Claim Act. City sought to appeal the liability finding and obtained certification from the trial court that it was a final order. Nebraska Supreme Court dismisses appeal because a partial summary judgment can never be a final order, even if a party tries to certify it under 251315 Connelly v. City of Omaha, S-08-1011, 278 Neb. 31 "no final order was entered (or determination made) regarding damages as required by § 25-1902, and accordingly, the court could not have directed the entry of a final judgment within the meaning of § 25-1315(1). Because the judgment does not dispose of the entirety of any one claim, it cannot be made an appealable judgment by recourse to § 25-1315.21."

Defendant convicted of sex crime who was not in custody, probation or parole could not challenge requirement he register as a sex offender through post-conviction proceedings. State v. York, S-08-884, 278 Neb. 306 Defendant claims that this requirement renders him "in custody under sentence" such that he should be permitted to seek relief under the Nebraska Postconviction Act. See § 29-3001. We conclude that an individual who is subject to the registration requirements under the SORA (Neb. Rev. Stat. § 29-4001 et seq. (Reissue 2008)) is not "in custody under sentence" for purposes of the Nebraska Postconviction Act. See § 29-3001.

Nebraska Supreme court reverses summary judgment in rescuers action against motorist who slid off Interstate 80. Motorist who slid off road could be negligent and injured motorist who suffered amputate foot in accident that occurred while he was trying to help defendant could be a rescuer. Rasmussen v. State Farm Mut. Auto. Ins. Co., S-08-747, 278 Neb. 289 "We conclude that the district court should have applied the rescue doctrine to the facts of this case. Here, we find no reason to make a distinction between the negligence of the person being rescued which is a proximate cause of injury to the rescuer and the negligence of a third party which placed the person to be rescued in peril and caused injury to another who attempted the rescue."

"The case is over and done." Nebraska Supreme Court overrules most recent iteration of family dispute over assets of local Omaha business and refuses to reinstate lawsuit against company that some relatives brought. Ferer v. Aaron Ferer & Sons, S-08-534, 278 Neb. 282 "Appellants also claim the district court erred in denying their motion for an order nunc pro tunc reinstating their ...cause of action for involuntary liquidation.The (trial court in its order) expressly stated that it intended to dismiss the sixth cause of action and that the dismissal was "no mistake." We find that the court has been extremely patient in dealing with appellants’ repeated attempts to retry issues that have previously been decided. The court did not abuse its discretion in denying appellants’ motion for an order nunc pro tunc. we conclude that the district court did not abuse its discretion in refusing to allow appellants to resurrect causes of action that have merely been repackaged and rewrapped. The (plaintiffs' case of Aaron versus defendants) is over and done.

Nebraska Supreme Court overrules claim of ineffectiveness of trial counsel for allegedly not pointing out errors to pro se defendant previous trial counsel had committed. Further no ineffectiveness of appellate counsel for raising trial counsel ineffectiveness on appeal because appellate counsel if different from trial counsel must raise it on direct appeal if issues are apparent on record. State v. Dunster, S-08-227, 278 Neb. 268 Dunster argues that direct appeal counsel was ineffective in raising, on direct appeal, the issue of ineffective assistance of trial counsel. But direct appeal counsel’s performance was not deficient in that regard.

Lincoln chiropractor who had earlier career as a mortician loses another attempt to reduce alimony award. Metcalf v. Metcalf, S-07-1346, 278 Neb. 258 Nebraska Supreme Court modifies rule on changed circumstances when to allow modification of a divorce decree. "a judgment for alimony may be modified only upon a showing of facts or circumstances that have changed since the last order granting or denying modification was entered. But once some change has been established since the last request, the analysis focuses on the change in circumstances since alimony was originally awarded or last modified. We adopt this rule because it recognizes the force of res judicata; modification will be considered only when there has been a change in circumstances since the last request for modification. But if there has been no change, modification is not justified, because the request is essentially the same as the last request."

Thank you Senator Nelson for voting FOR Sonia Sotomayor to the Supremes: Thank you Senator Nelson for voting for Judge Sotomayor to the Supreme Court. You showed great courage in resisting the hypocritical call of Republicans to disqualify any minority candidate who failed to meet the strict tests we must apply to white politicians when those white public figures try to discuss race. Puerto Ricans have been historically disadvantaged since we occupy their territory give their residents social security and subsidize their industries. Judge Sotomayor early on showed herself to be a fine example of the wise Latina woman in her Yale Law Journal Note that advocated massive reparations from the United States to Puerto Rico when it entered the Union.

Thanks Licensing Board: From Dan Ullman, President of Nebraska Psychological Association his letter to the editor in the Journalstar on August 5, 2009:

The Nebraska Psychological Association expresses its appreciation on the part of the licensing boards for psychology and mental health practice in resisting an attempt to discriminate against vulnerable clients in providing mental health services or referrals for services. The focus of this attempt to prevent clinical services includes sexual orientation, religion, gender identity or other reasons based on any provider's claim of a "moral and religious conviction."

Most disturbing is the continuing attempt by the Department of Health and Human Services to coerce licensing boards to establish this discrimination regulation by placing on hold for 18 months needed changes approved by the boards ("Agency urges compromise," July 19, LJS).

Newspaper articles have emphasized Health and Human Services' attempt to discriminate against services to homosexuals. Not mentioned is the proposed discrimination policy against other clients on the basis of a provider's claim of a "moral or religious conviction."

The Nebraska Psychological Association's Code of Ethics protects the rights, welfare and safety of all clients, not just those who belong to any particular personal orientation. The code mandate is "Do No Harm;" it is not to protect the prejudices of providers.

Under the current Code of Ethics, if a mental health provider is unable to provide services, the provider must refer services in the terms of behavioral health needs of clients, not the needs or prejudices of a provider.

Dan Ullman, president, Nebraska Psychological Association

I couldnt agree more but I dont think Dr Ullman goes far enough so I sent the NPA my suggestions to elminate all homophobia from the psychological profession: How commendable of Dr Ullman for putting homosexual patients ahead of the "conscience" of those psychological professionals who would refuse to treat them. As you know "conscience" for these fanatic religious practitioners really means their freedom to be fearful, ignorant and hateful. However I am afraid that merely removing "conscience" rules from professional licensing standards does not go far enough to ensure the highest professional standards in your field. No, you have to also eliminate the hate from the profession. After all how to do ensure that some psychologists who harbor bigoted thoughts about homosexuality would not take on homosexuals' cases with the intention of harming them, or horrors trying to convert them to heterosexuality? I urge the Nebraska Psychological Association if you have not already, to recommend the following rules: 1. licensed psychologists must sign affidavits when applying for a license or renewing one that they fully embrace homosexuality as a healthy and in some respects a superior lifestyle to traditional marriage. They should encourage youngsters to discover their sexuality as early as possible. 2. psychologists must register which churches they attend and allow licensing boards to review the teachings of those churches to identify any latent or obvious homophobic messages. 3. In cases when homosexuals allege , they could discover from the professionals computers, diaries, notes and writings anything that questions homosexuality. 4. Psychologists who might harbor bigoted and outdated views on homosexuality or traditional marriage would have to undergo graduated probationary educational programs to purge themselves of these views. In case when the professional refuses to distance himself from actual homophobic views or churches that preach this hate, they should face discipline. Again thank you for your efforts to eliminate hate from our society. After all we can learn a lot from brave leaders like Hitler and Mao. They knew you had to go after the educated professions first before enslaving the masses

Nebraska Court of Appeals reverses administrative license revocation when police officer did not make statement in sworn report that defendant was operating a vehicle while intoxicated. Defendant was outside vehicle after 1 car accident. "the arresting officer did not make a traffic stop and failed to include sufficient factual allegations in the Sworn Report to indicate an allowable inference that Barnett, of the people on the scene at the time of the officer’s arrival, was the one who had been driving the vehicle. As such, the Sworn Report in the present case was insufficient to confer jurisdiction on the Department "Barnett v. Department of Motor Vehicles, A-08-211, 17 Neb. App. 795

No ineffective assistance of appellate counsel when counsel on appeal fails to challenge earlier requirement that second degree murder required malice instruction nor that second degree murder law section 28-304 is unconstitutional because it lacks a malice requirement. State v. Thomas, S-08-1177, 278 Neb. 248

Overruled ineffective counsel motion affirmed in Nebraska Supreme Court against defendant convicted of smothering his girlfriends child, intentional child abuse resulting in death. Counsel's failure to redact defendant's confession that referred to other injuries from abuse was harmless and not ineffective counsel, appellate counsel also not ineffective. State v. Jim, S-08-953, 278 Neb. 238

Defendant in Omaha murder trial appealed on self-defense claiming the rival "Murdertown Gang" MySpace page contained threats to him. conviction affirmed because Defendant could not produce actual webpage screenshot showing the threat and could not prove the victim was responsible for the threatening web content. State v. Goynes, S-08-810, 278 Neb. 230 "Assuming without deciding that third-party threats would be admissible in cases of self-defense, the district court did not err in excluding the testimony of the third-party threats"

Trial judge's supplemental jury instruction in trial for intentional child abuse resulting in death, Class IB felony § 28-707(6) RRS Neb. (Reissue 2008) that explained prong of instruction on denying care as an alternate finding for guilt was not prejudicial error. Defendant did not make a facial challenge to the punishment under Class IB felony under Neb. Rev. Stat. § 28-707(6) (Reissue 2008) as excessive. State v. Robinson, S-08-433, 278 Neb. 212

Order of the Kneepads Update: State ex rel. Counsel for Dis. v. Koenig, S-08-128, 278 Neb. 204 120 days suspension, subsequent discipline, see Koenig, Lyle J. 264 Neb. 474 (2002)S-01-000634 for "just kidding" to blackmail a prosecutor to drop a case.

Nebraska Supreme Court rules for property owners who lost condemnation action against Douglas County finding their failure to serve notice on the County and to file affidavits of notice in the same manner that a plaintiff would serve a defendant with a new lawsuit were directory and not jurisdictional. Wooden v. County of Douglas, S-06-1163, 275 Neb. 971 "we conclude the district court did not lack jurisdiction as a result of the Woodens’ failure to timely file an affidavit of proof of service.when §§ 76-715, 76-715.01, and 76-717 are considered in light of each other, it is clear that the act which confers jurisdiction on the district court, and which is therefore mandatory, is the filing of the notice of appeal and, by extension, service of this notice. Moreover, we note that two distinct acts occurring days apart cannot both be jurisdictional. And because the act which is mandatory and jurisdictional is the filing of the notice of appeal, we conclude that the Woodens’ failure to timely file an affidavit of proof of service could not and did not divest the district court of jurisdiction. Instead, the timely filing of such an affidavit is directory. We find persuasive the reasoning of the Neumeyer court, which held that the filing of an appeal bond was directory rather than mandatory and that “to hold [that such was mandatory] would convert clear, brief language into a jurisdictional maze.”12 The Court of Appeals erred in concluding that the district court lacked jurisdiction due to the Woodens’ failure to file a timely affidavit of proof of service.the petition on appeal filed by the Woodens was not the commencement of a new action, but simply a continuation of the condemnation action filed by the County. The continuation of this action, and of the petition on appeal itself required by § 76-717, is therefore governed by the statutory scheme relating to condemnation actions.

Legal malpractice lawsuit against estate of deceased patent attorney returns to the Nebraska Supreme Court after the Court had rejected the estate's District Court ruling that the plaintiff would not have won a patent infringement suit if the attorney had timely renewed its patent for a tilling device. The Douglas County District Court on remand again ruled for the attorney's estate, this time finding the plaintiff could not win a patent infringement suit because its limited patent claims would estop a patent suit. Nebraska Supreme Court this time affirms summary judgment finding that the US Supreme Court's Festo decision applied and the plaintiff's hypothetical patent lawsuit would not win because the plaintiff would not be able to overcome a patent defendant's prosecution estoppel defense. New Tek Mfg. v. Beehner, S-06-783, 275 Neb. 951 "In this case, the single two-way hydraulic cylinder claim originally asserted as claim 3 was canceled, but the two-cylinder lever-pivoting means originally asserted as claim 4 was retained in the amended application. The drawings incorporated in the ’365 patent and the ’080 patent reflect only the two-cylinder means. Element 4, claim 22, of the ’080 patent, as construed by the district court in its Markman order, describes only a device utilizing two hydraulic cylinders as lever-pivoting means. We conclude that the rejected claim 3 of the original application was replaced by a narrowing claim which may trigger prosecution history estoppel as a legal limitation on the doctrine of equivalents. We conclude as a matter of law that none of the rebuttal criteria identified in Festo II and explained further in Festo III are met in this case. The first criterion is not met because it cannot be said that the claimed equivalent was unforeseeable at the time of the narrowing amendment. The claimed means consisting of a single two-way hydraulic cylinder was canceled in response to a prior art objection. As we noted in New Tek I, there is no evidence that the alleged equivalent is “after-arising technology.”56 The second criterion is not met because the amendment to claim 3 was made to avoid prior art that contained the equivalent in question, and thus it is not tangential, but is central to the allowance of the claim.57 The third criterion is not met because the =claim for the single two-way hydraulic cylinder was rejected on the basis of prior art; there can be no other reason that Schmidt could not have described the accused equivalent

Mr Davis' attorney has advice for those trophy wives worried about the longevity of their meal tickets: get the insurance policy before your divorce is final. Omaha.com Mary Kay Davis, the former wife, sought the policy as security for more than $1.5 million in alimony and child-support obligations should her ex-husband die prematurely. She lost her case in the Nebraska Supreme Court on June 20, 2008 Davis v. Davis, S-07-529, 275 Neb. 944 " Henry Davis, chief executive of Greater Omaha Packing Co., refused to get a physical examination to allow her to purchase the insurance policy. When the couple divorced after three years of litigation in 2006, Henry Davis was ordered to pay $5,000 a month in child support on behalf of two children and $12,500 per month alimony for 106 months, unless either party died or Mary Kay Davis remarried. The alimony would equal $1.325 million over nearly nine years. Mary Kay Davis returned to court seeking the life insurance policy as security for the divorce decree. Henry Davis had already purchased a $1 million life insurance policy on behalf of a trust that would provide for the children should he die before they reach 19, the age of majority, according to court records. John Slowiaczek of Omaha, the attorney for Henry Davis, said the ruling will not prevent courts from requiring divorcing couples to obtain life insurance as part of their divorce settlements. However, once the divorce is final, former spouses can't get life insurance policies on each other without consent. "Once it's over, I don't have any more right to insure your life than you have to insure mine," Slowiaczek said. The Supreme Court held that although an ex-wife might have an insurable interest in the ex-husband, she still could not force the husband to become her insured life for her own policy. "an insurable interest does not give her the right to own a policy on Henry’s life without his consent. Section 44-704 specifically requires adult insureds to consent to insurance policies on their lives unless they or their spouses are the owners of the policies. Mary Kay is not Henry’s spouse, and Henry would not be the owner of the policy."

Nebraska Court of Appeals refuses to find 18 day delay for a juvenile detention hearing unreasonable, Through the eyes of a child initiative. In re Interest of April E. et al. Filed on May 27, 2008 Memorandum opinion, not designated for permanent publication A-08-036 through A-08-038SUMMARY: An 18-day delay between the ex parte order and the detention hearing is “on the outer edge of reasonableness” but is not unreasonable. The evidentiary basis of an ex parte temporary detention order is not appealable because the ex parte order is not a final order.

Nebraska Court of Appeals reverses teacher's dismissal when it found the Millard School Board violated the Nebraska Open Meetings Law when it made its decision in a closed session. Rominger Legal.Com. The case involves the 2006 firing of Tanya Bligh, who was a teacher at Russell Middle School. Following four days of hearings, the board determined that Bligh was an incompetent teacher and failed to meet Millard's performance standards, according to co rt records. But in terminating Bligh's contract, the board voted in closed session, the appeals court found. Bligh v. Douglas Cty. Sch. Dist. No. 0017, A-07-283, A-07-284the Board held its vote on Bligh’s contract in closed session. The Board announced the decision in open session, but failed to actually hold the vote in open session. Neb. Rev. Stat. § 79-829 (Reissue 2003) specifically provides that a teacher’s contract shall be deemed continuing and remain in full force unless the school board “by a vote of the majority of its members” determines that the contract should be terminated. We can think of no more “formal action” with respect to the termination of a teacher’s contract than the actual vote of the school board. In this case, the Board failed to comply with § 79-832 because the Board failed to take its “formal action” in open session. As such, we conclude that the district court’s orders in both appeals should be reversed, and we need not address the remaining errors alleged by Bligh.

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

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

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

Nebraska Supreme Court holds that hog confinement lot operator who appealed Madison County's refusal to grant him a variance used the denovo appeal procedure to the District Court. In re Application of Olmer, S-07-247, 275 Neb. 852 When a decision regarding a conditional use or special exception permit is appealed under § 23-114.01(5) RRS Neb (Cum. Supp. 2006) and a trial is held de novo under § 25-1937 (Reissue 1995) RRS Neb, the findings of the district court shall have the effect of a jury verdict and the court’s judgment will not be set aside by an appellate court unless the court’s factual findings are clearly erroneous or the court erred in its application of the law. The district court found that the Board, in denying O lmer’s conditional use permit, acted as a tribunal exercising judicial functions and that therefore, Olmer’s appeal should be treated as a petition in error. Because Olmer’s appeal was treated as a petition in error, the court explained that Olmer was not entitled to a trial de novo, nor could the court receive additional evidence that was not offered at the hearing before the B oard. A ccordingly, the court stated that, in making its decision, it did not consider any exhibits that were not offered and received by the Board. the B oard in the present case, in denying O lmer’s application, was exercising judicial functions which decisions are generally reviewed through the filing of a petition in error.15 B ut § 23-114.01(5)clearly provides for a right of appeal to the district court from the B oard’s decision, without setting forth any procedure for prosecuting the appeal. Therefore, the appeal procedure in § 25-1937 is also implicated.16 A nd there is nothing in§ 23-114.01(5), nor in § 25-1937, that purports to remove the right to proceed in error under § 25-1901. T us, we conclude that under the circumstances presented here, O lmer had the option of filing either a petition in error under § 25-1901 or an appeal under § 25-1937

Nebraska Supreme Court reverses Douglas County District Court directed verdict that was in favor of the State of Florida Department of Insurance, receiver for an insolvent truck insurance company in its suit against insurance agency that used truckers' premiums to acquire other insurance when the insolvent insurer was unable to provide adequate coverage for the agency's customers. State of Florida v. Countrywide Truck Ins. Agency, S-06-1220, 275 Neb. 842 "The district court erred in granting a directed verdict in favor of Florida. Giving all reasonable inferences to Agency and Fulkerson, there is a question of fact whether a fraudulent transfer occurred between T ruck and Agency. T here is evidence that the transfer of $2,235,401 represented the amount held in the customer deposit account on behalf of T ruck’s insureds and that Agency used this money to purchase insurance for T ruck’s insureds. T here is no evidence of any other transfer."

Kearney liquor store loses its license after selling alcohol to a minor who later died as a passenger in automobile accident. Nebraska Supreme Court affirms liquor license revocation because the defendant liquor store failed to prove that the minor's Canadian identification card that he had presented in the past to purchase alcohol was a valid identification card. Although the Commission permitted a community activist to speak to urge the Commission to revoke the store's license the District Court judge cured any error because she did not consider the citizen's comments when reviewing the Commission's revocation ruling. JCB Enters. v. Nebraska Liq. Cont. Comm., S-06-1373, 275 Neb. 797 When the district court conducts its review of a final decision of the Commission, it is required to make independent factual determinations. In its proceedings for review of a final decision of the Commission, the district court shall conduct the review de novo on the record of the agency. Id. In this case, the district court stated in its order that when it conducted its de novo review, it “specifically ha[d] not considered any evidence which was not received at the actual hearing in this matter which took place before the Commission.” T hus, any irregularities before the Commission were cured when the district court ignored R iibe’s comments in its de novo review of the record in the instant case.

Summary judgment for defendant in insured's breach of contract action against insurance broker for failing to purchase insurance reversed. Nebraska Supreme Court holds that summary judgment for insurance agent was inappropriate because the defendant did not prove whether the agent was a captive agent for the insurance company or whether he was an insurance broker, acting on behalf of the insured to acquire insurance. Broad v. Randy Bauer Ins. Agency, S-06-844, 275 Neb. 788 We conclude that an action for breach of contract to procure insurance is inappropriate when brought against an insurer’s agent who, within the scope of his or her authority, contracted on behalf of the disclosed principal and did not bind himself or herself personally. Specifically, an insurance agent’s mere promise to procure requested coverage through his sole principal is insufficient to create the agent’s personal liability because that promise is clearly within the scope of the agent’s authority. However, we will recognize a cause of action against a broker for breach of contract to procure insurance because the broker is the insured’s agent.

Justice Department to Monitor Elections in Colfax County Nebraska US Justice Department. The Justice Department today announced that on Tuesday, May 13, 2008, it will monitor elections in Colfax County, Neb., and Bergen County, N.J., to ensure compliance with the Voting Rights Act.Colfax and Bergen Counties are obligated to provide all election information, ballots and voting assistance information in Spanish as well as in English according to the Voting Rights Act. Colfax County Election Commissioner Rita Mundil never heard of any complaints and noted Colfax county is the only county in the State that offers bi-lingual ballots. Justice Department personnel will monitor polling place activities during voting hours at polling locations in these jurisdictions. Civil Rights Division attorneys will coordinate the federal activities and maintain contact with local election officials.Each year, the Justice Department deploys hundreds of federal observers from the Office of Personnel Management, as well as departmental staff, to monitor elections across the country. In calendar year 2006, for example, 966 federal observers and 575 Department personnel were sent to monitor 119 elections in 81 jurisdictions in 24 states. To file complaints about discriminatory voting practices, including acts of harassment or intimidation, voters may call the Voting Section of the Justice Department’s Civil Rights Division at 1-800-253-3931.More information about the Voting Rights Act and other federal voting laws is available on the Department of Justice Web site at

http://www.usdoj.gov/crt/voting/index.htm.

Nebraska Supreme Court allows expert in a medical malpractice case related to delayed treatment of a spinal cord injury to testify in his affidavit that had the defendant doctors not delayed diagnosing and treating the plaintiff's injury the plaintiff more likely than not would have experienced a better outcome from treatment. The Supreme Court distinguishes this proper opinion that a better outcome would result from giving improper opinions that the plaintiff lost a chance to recover. Rankin v. Stetson, S-07-073, 275 Neb. 775 an opinion framed in terms of loss of chance would not sustain Rankin’s burden of establishing that the defendants proximately caused her injury. We also note that Nebraska has not recognized the loss-of-chance doctrine. See Steineke v. Share Health Plan of Neb., 246 Neb. 374, 518 N.W.2d 904 (1994). Gross’ statements that Rankin would have had a “better prognosis” and a “chance of avoiding permanent neurological injury” do not equate with an opinion that it was more likely than not that Rankin would have had a better outcome if she had undergone surgery immediately following her injury. Opinions dealing with proximate causation are required to be given in terms that express a probability greater than 50 percent. Thus, Gross’ statements do not establish the required certainty to prove causation. While a 49-percent chance of a better recovery may be medically significant, it does not meet the legal requirements for proof of causation. The terms “chance” and “prognosis” by definition do not establish the certainty of proof that is required. On the other hand, an opinion expressed in terms that it is more likely than not that a plaintiff “would have had a better outcome” is sufficiently certain to establish causation. A better outcome is not the same as a chance of a better outcome. Rather, it is a definite result. In this case, there were statements within Gross’ affidavit that were sufficient to establish causation. When reviewing a summary judgment, we view Gross’ affidavit in a light most favorable to Rankin and give her the benefit of all reasonable inferences from such evidence. Contrary to the defendants’ assertion, Gross’ affidavit espoused more than a mere “loss of chance.” Gross opined that early surgical decompression of the spinal cord would more likely than not have led to an improved outcome for Rankin. This evidence established causation for the purpose of opposing the defendants’ motion for summary judgment on such issue. Thus, Gross’ affidavit satisfied the requirement that Rankin produce some expert testimony to establish that the actions or inactions of the defendants were a proximate cause of Rankin’s injury. Nebraska Advance Sheets Ran kin v. Stetson 787 Cite as 275 Neb. 775

Nebraska Supreme Court reverses accounting malpractice verdict that was against accountant in 1031 exchange dispute. Frank v. Lockwood, S-06-731, 275 Neb. 735 A Western Nebraska businessman sued his accountant after he sold some real estate but decided not to escrow the entire sale amount for a section 1031 exchange for other property. The accountant earlier advised him that he would be able to offset some of his gain from the real estate sales with his corporation's losses. The businessman was not able to offset the real estate sale income. The IRS gave the plaintiff an extension to file his tax return until October at the accountant's request but the accountant failed to advise the businessman to pay estimated taxes by the regular April 15 due date. The businessman incurred substantial penalties and interest because he did not file and pay his return until December, almost 2 months later than the extended due date. The Scotts Bluff County District Court jury awarded the businessman a verdict of $37000, all of his IRS penalties and interest. Nebraska Supreme Court reverses, holding the plaintiff businessman failed to prove that the IRS interest payment damaged him. The plaintiff should have proven that he could not have borrowed the unpaid tax amount at a rate lower than the IRS rate. While the Nebraska Supreme Court upholds the verdict for the IRS penalties, the court sends it back to the District Court to determine and award only for penalties related to failing to pay the taxes. Justice Connolly dissents. Frank v. Lockwood, S-06-731, 275 Neb. 735 The plaintiff's failure to file the return on time is not the accountant's fault. The penalties incurred by the Franks in this case appear to have been of two types—those incurred because the Franks failed to pay taxes when due on April 15, 2002, and those incurred because the Franks failed to file their returns when due as extended to October 15. Under federal law, I.R.C. § 6651 (2000) provides in subsection (a)(1) that a taxpayer may be assessed a penalty for failure to timely file a return and provides in subsection (a)(2) that a taxpayer may be assessed a separate penalty for failure to timely pay taxes due. In addition, I.R.C. § 6654 (2000) provides that penalties may be assessed for underpayment of estimated taxes. Nebraska law provides for similar penalties for failure to timely file returns, Neb. Rev. Stat. § 77-2789 (Reissue 2003), and for underpayment of estimated taxes, 316 Neb. Admin. Code, ch. 20, § 007 (1998). there was sufficient evidence from which the jury could find that L ockwood was negligent in failing to advise the Franks to pay an estimate of their 2001 tax liability on April 15, 2002. the district court did not err in denying L ockwood’s motion for judgment notwithstanding the verdict with respect to any portion of the damages award that was attributable to penalties for the Franks’ failure to timely pay taxes.to the extent such penalties are penalties for failure to timely file returns, under the facts of this case, they are not recoverable as damages. However, to the extent such penalties are penalties for failure to timely pay the taxes, under the facts of this case, they are recoverable as damages. Because the evidence in the record does not allow us to determine what portion of the penalties are for late payment of the taxes which are recoverable, we find it necessary to remand this cause to the district court for a new trial limited to a determination of the portion of damages attributable to penalties imposed for failure to timely pay taxes and, upon a proper showing, awarding the Franks an amount of damages equal to penalties for failure to timely pay taxes.

Follow up: Referee hearing discipline case against Kearney attorney William Orr recommends public reprimand over failed coffee shop franchising venture. Kearney Hub. Kearney attorney Jeff Orr should be publicly reprimanded for violations he committed while representing Barista's Daily Grind, an Omaha attorney has recommended to the Nebraska Supreme Court. Waldine Olson, who is acting as referee in Orr's disciplinary proceedings, has ruled that Orr violated four of 13 ethical standards and provisions listed in the State Bar Association's Code of Professional Responsibility and Rules of Professional Conduct. (Click here to view Referee Waldine Olson’s 36-page referee’s report in the Jeff Orr discipline case. The Supreme Court case - filed against Orr in August 2007 by the Bar Association - involves Orr's work in drafting a franchise agreement and disclosure statement for Kearney coffee company Barista's and its owners, Steve Sickler and Cathy Mettenbrink. Sickler and Mettenbrink blame Orr's legal work for the failure of their franchised business last year. Olson recommended a public reprimand for Orr instead of probation or suspension in a referee's report filed May 7. Olson said Orr did not "knowingly" or "intentionally" engage in conduct that involved "dishonesty, fraud, deceit or misrepresentation." The referee said Barista's suffered "severe" consequences as a result of Orr's actions. "Although the exact nature and extent of the harm suffered by the clients was not addressed in detail, the evidence is clear and convincing that the consequences to the client were serious," Olson said. However, Olson said the Barista's case was an "isolated occurrence as opposed to a recurring pattern of misconduct" by Orr. The referee said Orr practiced law more than 40 years with no previous complaints. "The numerous letters from clients, business and community leaders, and members of the bar speak to his good standing and his reputation as a competent and ethical practitioner," Olson said. Orr's community service, including membership on the Supreme Court Task Force on Gender Fairness, also played a role in the disciplinary recommendation, the referee said. Following a March hearing, Olson filed a 36-page report May 7 that cleared Orr of nine misconduct allegations and found him in violation of four others. Olson said Orr took on the Barista's case knowing he was not competent to handle the work. "Not only had he never undertaken such a task previously, but also he was warned by an intellectual properties lawyer, whom he respected, that franchise law is 'pretty specialized,'" Olson said of Orr. In 2002, Sickler and Mettenbrink hired Orr to assist them in franchising their coffee shop concept. Orr told Sickler and Mettenbrink that he had experience in franchising businesses, Supreme Court records show. In March, Orr testified that he had experience in reading and reviewing franchise agreements and disclosure statements for companies such as Wendy's, Quizno's, Dairy Queen, McDonald's, Baskin-Robbins and Ford. However, Orr said during the hearing that he had never drafted a franchise agreement. In drafting Barista's franchise agreement, Orr said he relied heavily on a Quizno's agreement he had worked on previously. Orr said he did not research Nebraska law when he drafted Barista's agreement. "... Although he knew that certain aspects of franchising were governed by the Federal Trade Commission, he did not adequately prepare himself for the task," Olson said of Orr. Supreme Court documents show Kearney attorney Bradley Holbrook helped Orr get a second opinion on the Barista's documents from Omaha attorneys Robert Kirby and Gary Batenhorst. The Omaha attorneys told Orr and Holbrook the disclosure statement did not comply with FTC rules. Batenhorst characterized deficiencies in the disclosure statements as "major," court documents said. In his recommendation to the Supreme Court, Olson said Orr attempted to correct deficiencies in the disclosure statement and there was no evidence that Orr attempted to conceal his errors. "Orr disclosed to the client that the documents he had drafted would require considerable changes and they could not be used to sell additional franchises until the changes had been made," Olson said. "The evidence suggests a good faith, although misguided, attempt to resolve the problem." Orr has practiced law in Kearney since 1967 and is a partner and shareholder of Jacobsen, Orr, Nelson & Lindstrom P.C. Barista's closed its two Kearney locations at 4402 Second Ave. and 2400 Central Ave. last summer after Sickler and Mettenbrink defaulted on loan payments and lost ownership of their properties to Kearney State Bank & Trust Co. in a foreclosure. Before learning that their disclosure statement did not comply with FTC rules, Barista's sold 21 franchises between 2003 and 2006. Barista's Daily Grind currently operates in west Kearney under new ownership. The Supreme Court will decide whether to accept Olson's recommendation. Public reprimands can take various forms, including a press release to the media.

Case summary: Omaha attorney gets to take her Third offense driving while intoxicated case to the Nebraska Supreme Court. Nebraska Judicial Branch Case Summaries. S-07-0464, State (Appellant) v. Willow T. Head Douglas County, Judge Peter C. Bataillon Attorneys: James M. Masteller (County Attorney’s Office) (Appellant) --- James E. Schaefer, Jill A. Daley (Gallup & Schaefer) Criminal: DUI, 3rd offense Proceedings below: The trial court found two valid prior convictions and enhanced Head’s DUI to 3rd offense. The State filed an application for error proceedings which was granted. The Nebraska Court of Appeals in 2006 sent the case back to the District Court because Head's motion to quash evidence of the prior convictions was not ripe for review. State v. Head, 712 N.W.2d 822, 14 Neb.App. 684 (Neb.App. 04/18/2006) The Court of Appeals reversed the decision of the district court and remanded with directions. See State v. Head, memorandum opinion, A-07-0464, January 3, 2008. Head filed a petition for further review which was granted by the Nebraska Supreme Court. Issues on Review: The court of appeals (1) had no statutory authority to remand for further proceedings under Neb. Rev. Stat. § 29-2316 because jeopardy attached; (2) erred in relying on State v. Keen, 272 Neb. 123 (2006) to reach the finding that the district court improperly rejected Head’s 2002 DUI conviction based on its interpretation of State v. Loyd, 265 Neb. 232 (2003) as State v. Keen did not overrule State v. Loyd.

Case summary: Omaha dentist appeals license revocation. The Nebraska Supreme Court in 2001 had disciplined the dentist who was also a member of the Bar for narcotics abuse. Nebraska Judicial Branch. S-07-0588, Shaun O. Parker, D.D.S., Appellant v. State of Nebraska, Appellee Lancaster County, Judge Jeffre CheuvrontAttorneys: Jerry Katskee (Appellant); Jon Bruning and Lisa Anderson (Attorney General’s Office). Civil: Revocation of professional license Proceedings Below: Parker filed a petition for review with the district court seeking to review the decision by the Chief Medical Officer/Director (CMO) for the Department of Health and Human Services Regulation and Licensure (DHHS), which decision revoked his license to practice dentistry. The district court affirmed the agency's findings of fact, conclusions of law, and order, which order revoked Parker's license to practice dentistry in Nebraska. Issues: On appeal, Parker argues: (1) Whether Parker was denied procedural due process by DHHS in the crucial stages of the proceedings against him, to wit: (a) the investigation of the complaint derived from a confidential informant; (b) the presence of the attorney general at the closed session investigation; (c) the subsequent recommendations by the CMO; (2) whether the punishment meted out to Parker, viz., the revocation of license to practice his profession, fit the nature of the alleged infraction; (3) whether the district court erred in not considering the impact of the failure of the hearing officer to consider the arguments of Parker on constitutional issues by remanding the case to the CMO for further proceedings as permitted by Neb. Rev. Stat. § 84-917(5)(b)(i); (4) whether the district court erred in its order by holding that its de novo review presented clear and convincing evidence that Parker engaged in unprofessional conduct and that the discipline imposed was appropriate under the circumstances; (5) whether the entire administrative procedure is flawed and grants arbitrary and dictatorial powers to the CMO; (6) whether the findings of fact and conclusions of law of the CMO were arbitrary, capricious, and unreasonable; and (7) whether the district court erred in its order by not finding the administrative findings of fact and conclusions of law were arbitrary, capricious, and unreasonable.

County employee Douglas County fired for dropping ice wins reinstatement. Pierce v. Douglas Cty. Civil Serv. Comm., S-07-252, 275 Neb. 722 Douglas County facilities engineer and International Union of Operating Engineers, Local 571 member Nathan Pierce could not go unescorted near a co-worker at the Douglas County Hospital because he had angry confrontation with her before. Later as he went through her area he dropped a cup of ice near her nurse's station. Douglas County terminated him. Nebraska Supreme Court reverses the termination ruling and orders him reinstated because the District Court had jurisdiction to rule on Pierce's claim that the county board breached the collective bargaining agreement with the union. Also the violation if any was not serious enough to merit termination. "the district court had jurisdiction over Pierce’s claims that the Department breached the collectiver bargaining agreement (CBA) as far as those allegations were relevant to Pierce’s termination. However, we need not reach the merits of Pierce’s claims under the CBA. We conclude that the evidence shows the Department did not consider Pierce’s alleged conduct to be a serious violation of the Commission’s personnel manual, warranting termination. We therefore reverse the district court’s order affirming Pierce’s termination "

Nebraska Supreme Court upholds subrogation waiver clause between owner and contractor when a television tower under construction collapsed, also the contractor was liable for damage the construction work and other property to the subrogated insurance company, even when the subrogated insurance company complained that gross negligence caused the accident. Lexington Ins. Co. v. Entrex Comm. Servs., S-06-1452, 275 Neb. 702 "the danger with exculpatory clauses is that a party injured by another’s gross negligence will be unable to recover its losses. But such danger is not present in cases involving waivers of subrogation because the waiver only applies to losses covered by insurance, so “there is no risk that an injured party will be left uncompensated.”..Waivers of subrogation serve in avoiding disruption of construction projects and reducing litigation among parties to complicated construction contracts. Concluding that waivers of subrogation cannot be enforced against gross negligence claims would undermine this underlying policy by encouraging costly litigation to contest whether a party’s conduct was grossly negligent. Therefore, we conclude that “public policy favors enforcement of waivers of subrogation even in the face of gross negligence [claims]..the majority approach furthers the policy underlying the use of waiver of subrogation clauses in construction contracts. That court explained that a waiver of subrogation is useful in construction contracts because it avoids disrupting the project and eliminates the need for lawsuits.37 The majority approach furthers this purpose. Applying the waiver to all losses covered by the owner’s property insurance policy eliminates litigation over liability issues and whether the claimed loss was damage to the Work or non-Work property."

The Hall County District Court judge hearing a divorce case sent the attorneys his ruling and directed the wife's lawyer to prepare the decree. Husband filed a motion for new trial and then appealed the case within 30 days of the decree date but more than 30 days after the trial judge hearing a divorce case made his ruling in a letter and directed the wife's attorney to prepare the decree. The court clerk file-stamped the judge's letter-ruling. Nebraska Supreme Court, J Gerrard, rules the decree date is the correct date to start the 30 day appeal period running and admonishes the court clerk to not file this paperwork in the court file. Wagner v. Wagner, S-06-427, 275 Neb. 693. This case illustrates why trial courts should take care to ensure that regardless of how a final judgment is prepared, only the signed final order is filed with the clerk of the court. The clerk should not file stamp any document prepared by the trial court that is not a court order intended to have legal effect. But a filing that does not finally dispose of a case does not become a final, appealable order just because it is file stamped, and the trial court’s order in this case was clearly not meant to be a final determination of the rights and liabilities of the parties. Therefore, we conclude that the letter in this case was not a final, appealable order, and reverse the decision of the Court of Appeals.

Nebraska Supreme Court holds that the trial court should decide whether a dispute should go to arbitration, and in this case between an importer and a distributor of coffee, the defendant had waived arbitration when it filed pleadings in the court case. Good Samaritan Coffee Co. v. LaRue Distributing, S-07-300, 275 Neb. 674 "a waiver defense raised in the context of prior litigation-related activity is presumed to be decided by a court, rather than an arbitrator. A nd shifting of this issue to an arbitrator is only proper where there is “‘clea[r] and unmistakabl[e] evidence’” of such an intent in the parties’ arbitration agreement. T he arbitration agreement at issue in this case fails to meet this standard. party seeking arbitration may be found to have waived its right to arbitration if it “‘(1) knew of an existing right to arbitration; (2) acted inconsistently with that right; and (3) prejudiced the other party by these inconsistent acts.’” E ach of these factors strongly weighs in favor of a finding that LaRue has waived its right to arbitration in this case."

In another guaranty dispute, the Nebraska Supreme Court reverses the Nemaha County District Court in party when the Supreme Court finds a guarantor's obligation to guarantee the payment of two promissory notes his son and daughter-in-law signed extended only to his unconditional promise to guarantee payment on the first promissory note, but not to the Bank's extension of credit to the son and daughter-in-law from a second promissory note when the primary borrowers showed they were creditworthy according to the financial disclosures they made to the bank. The Nemaha County Court found the guarantor liable for the entire indebtedness, including the second extension of credit. The District Court dismissed the guarantor entirely. The Supreme Court holds the guarantor liable for the initial indebtedness, but not for the extension. First Nat. Bank of Unadilla v. Betts, S-07-023, 275 Neb. 665

Nebraska Supreme Court affirms judgment that non-compete agreement between and insurance agency and one of its brokers was enforceable even after the broker's original employer had merged with another firm. The successor company had valid consideration for a non-compete agreement that barred the defendant from soliciting the company's customers for 2 years after his termination. The Nebraska Supreme Court upheld the trial court's damage calculation by which the Douglas County District Court determined the damages from breaching the non-compete agreement by finding the amount of revenue the defendant generate from the prohibited customers for two years after his termination minus the expenses the plaintiff would have incurred had it retained the business. While the trial court rejected the plaintiff's CPA experts conclusions, it accepted some of his findings as to revenues and expenses. Because the court took the expert's testimony as fact testimony, it did not need to determine if the CPA's testimony passed the Daubert test. Aon Consulting v. Midlands Fin. Benefits, S-06-1256, S-07-034 , 275 Neb. 642

Building supplier sued widow of deceased construction company owner for over $1 million of defaulted construction loans that the defendant and her husband had guaranteed. The Douglas County District Court after cross-motions for summary judgment dismissed the bank's complaint. Nebraska Supreme Court reverses, awarding full judgment to the plaintiff. The Supreme Court finds the widow did not limit her liability to $525000 in their company's financing agreement with the Plaintiff, and further the plaintiff's releasing deeds of trust on the defendant's office buildings in 1991 did not impair the widow's collateral because she allowed new substantial loans with other banks to encumber the same property. Builders Supply Co. v. Czerwinski, S-06-1138, 275 Neb. 622We recognize that the A greement contains language relative to the $525,000 upon which Czerwinski relies. However, aguaranty is an independent contract that imposes responsibilities different from those imposed in an agreement to which it is collateral. S ee National Bank of Commerce Trust & Sav. Assn. v. Katleman, 201 Neb. 165, 266 N.W.2d 736 (1978). It is the guaranty agreement that contains the express condition on the guarantor’s liability and that defines the obligations and rights of both guarantor and guarantee. Id. T he language relied upon by Czerwinski in the A greement relative to the $525,000 merely described B uilders’ obligation to extend credit to B enchmark to a specific amount.the record indicates that she signed deeds of trust on the office building in 1999 and 2000 for $100,000 and $600,000 respectively, suggesting that she was aware of the availability of the office building to serve as collateral in a substantial amount. T he $600,000 encumbrance remained into 2006, the inference from which is that through her actions, Czerwinski impaired the office building collateral rather than B uilders

Eighth Circuit Court of Appeals won't party on. 20 USC 1091(r) excluded some students from eligibility for federal student loans if they have a record of drug convictions. Students for a Sensible Drug policy sued to invalidate the laws in the District Court of South Dakota, contending the laws result in double punishments, contrary to the Double Jeopardy Clause. Eighth Circuti Court of Appeals affirms, finding the law is a civil remedy and the exclusion provisions relate rationally to the purpose of keeping dope head kids out of college. Protestants for the Common Good, and United Church ofChrist, Justice and Witness Ministries,joinded the case as amici, wonder what side they were on? 071159P.pdf 04/29/2008 Students for Sensible Drug Pol v. Margaret Spellings U.S. District Court for the District of South Dakota [PUBLISHED] [Benton, Author, with John R. Gibson and Wollman, Circuit Judges]"section 20 USC 1091(r) is meant to deter other students from possessing or selling drugs on campus, it also encourages rehabilitation, school safety, a drug-free society, and ensuring tax dollars are spent on students who obey the laws. The statute is rationally related to these alternative purposes. “The Act’s rational connection to a nonpunitive purpose is a ‘[m]ost significant’ factor in our determination that the statute’s effects are not punitive.” And the statute is not excessive in relation to these alternative purposes."

Prosecutors ask the 10th Circuit Court of Appeals to reconsider its ruling granting a new trial to former QWest executive Joseph Nacchio. Omaha.com "Prosecutors have asked a federal appeals court to review an earlier decision granting a new trial to former Qwest Chief Executive Joe Nacchio. The federal prosecutors asked the full 10th U.S. Circuit Court of Appeals Wednesday to reconsider the case and affirm Nacchio's conviction.A three-judge panel of the appeals court last month threw out Nacchio's conviction on 19 counts of insider trading. It ruled that the trial judge incorrectly excluded the defendant's expert testimony from an expert in economics and securities fraud. Nacchio was convicted last year of illegally selling $52 million worth of stock when he knew that Denver-based Qwest Communications International was at financial risk but didn't tell investors."

Guatemala man gets 20-32 years in Kearney stabbing Journalstar.com A Guatemala man has been sentenced to 20 to 32 years in prison for stabbing his girlfriend and her sister in their northwest Kearney apartment. Mauro Yos-Chiguil pleaded guilty in March to second-degree murder and felony second-degree assault charges in Buffalo County Court. Authorities have said the 33-year-old Yos-Chiguil stabbed his girlfriend and mother of his twin sons in her head, shoulder, chest and stomach. She was released after treatment at a local hospital. Also injured was the girlfriend’s teenage sister. After he completes his sentence, Yos-Chiguil could face deportation. Authorities have said he is an illegal immigrant

Governor Heineman appoints Attorney Rob Otte to replace Lancaster County District Court Judge Earl Witthof. Journalstar.com The Governor forgot that judge slots are for career public sector lawyers. "Dave Heineman’s office announced the appointment of 51-year-old Robert Otte on Friday. A spokeswoman for Heineman said Otte will be replacing Judge Earl Witthoff, who retired in March. Otte is a partner at the law firm of Morrow, Poppe, Otte & Watermeier. The governor’s office said Otte has handled real estate and other business law cases and has trial experience in state and federal courts. Otte is a 1978 graduate of the University of Nebraska in Lincoln and was awarded his law degree from UNL law school in 1981.

Saunders County murder case from 1977 could end up in juvenile court. Journalstar.com. "A 48-year-old man charged in a 30-year-old murder could see his case transferred to juvenile court.Jeffrey D. Glazebrook was 17 when May McReynolds, a 97-year-old retired school teacher, was raped on Nov. 6, 1977. She died two weeks later as a result of injuries suffered during her attack. Glazebrook, an inmate at the Tecumseh State Correctional Institution, was charged in conjunction with the crime in March, after a cold case investigator found that DNA from hairs found on McReynolds’ night clothes matched Glazebrook’s DNA. Glazebrook appeared in Saunders County District Court on Friday morning, where he was expected to enter a plea to first-degree murder and first-degree sexual assault charges. Instead, said Tom Klein, Glazebrook’s attorney, Judge Mary Gilbride advised Glazebrook that he may be able to have his case transferred to juvenile court. After Friday’s hearing, Klein said he was not yet sure if he would ask to have Glazebrook’s case transferred. “I had not had the opportunity to discuss that with him,” Klein said. There is no statute of limitations on transferring a first-degree murder charge to juvenile court, Saunders County Attorney Scott Tingelhoff said. Even so, it’s rare to transfer a case from to juvenile court so many years after the crime. “It’s a unique situation,” he said. Glazebrook is currently serving a sentence of 16 1/2 years to 38 years for the 1991 rape of a 45-year-old Lincoln woman. His projected release date is in July 2010. He is next scheduled to appear in Saunders County District Court 8:30 a.m. May 30. Klein said he expected Glazebrook would either enter a plea or a request to have the case transferred to juvenile court during that hearing.

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

Residents of the Ponca Hills area in Omaha appealed the Douglas County Board Equalization's decision to exempt residential properties an Omaha Catholic Diocese there used for lay ministry. Nebraska Supreme Court dismisses their appeal finding that the neighbors did not have standing to appeal the County's decision to exempt real estate from taxation with a petition in error to the Douglas County District Court. McClellan v. Board of Equal. of Douglas Cty., S-06-1072, 275 Neb. 581 "The Legislature’s stated purpose in the Tax Equalization and Review Commission Act (TERC) (Neb. Rev. Stat. § 77-5007) was to create an efficient mode of review by a single body which would provide a more consistent review of tax exemption and equalization decisions made by a board of equalization. The language of § 77-202.04 very specifically lists who may appeal from exemption decisions. The Legislature did not see fit to allow every indirectly affected taxpayer to appeal from the exemption status of someone else’s property. Instead, the Legislature determined that giving standing to the county assessor to appeal the grant of an exemption was sufficient to protect the public’s general interest in what properties are included on the tax rolls."

Nebraska Supreme Court finds a way around the law of the case doctrine on an appeal following remand. The Nebraska Supreme Court excepts law of the case doctrine and reconsiders worker compensation review panel's decision on injured worker's first trial that the worker compensation court judge should consider both the labor markets where the worker was injured and where she presently lived when evaluating the workers lost earning capacity. Money v. Tyrrell Flowers, S-07-681, 275 Neb. 602. At first trial judge found found the plaintiff had permanent and total disability because after her injury she moved to a small town that had few jobs. The worker compensation review panel reversed, requiring the trial judge to consider both the large and small towns' job markets. On retrial the trial judge found permanent total disability because the plaintiff was an "odd lot worker." The review panel then affirmed the trial court's odd lot worker ruling. Nebraska Supreme Court affirms, ruling that even if the the law of the case doctrine would have limited the trial court on retrial to considering the plaintiff's disability in the two labor markets, the Nebraska Supreme Court's intervening Giboo v. Certified Transmission Rebuilders 746 N.W.2d 362 (2008) decision merited excepting the first review panel's law of the case decision.