The Lancaster County Court and local prosecutors do the right thing to avoid another "Jena 6" situation here. Lancaster County Judge Gayle Pokorny sentenced Earl Richardson III to six months in jail yesterday for "criminal mischief." Journal Star.com What was his crime? Richardson an Omaha resident was randomly shooting a harmless paintball gun while riding in the back of his friend's Lincoln Towncar. One of his shots found the back of a three year old girl's head, and it knocked her to the ground. He plead to two counts of "Criminal Mischief," Section 28-519. Criminal Mischief can be a Class IV felony, or Class I, II, or III misdemeanor. The article does not say whether the judge sentenced the defendant to concurrent six month terms or whether the defendant received two consecutive three month sentences. Naturally the public is outraged at the seemingly light sentence, especially since the Defendant had a rather long rap sheet, 5 pages of computer print-outs. But good Judge Pokorny and the prosecutors who watered down the charges did the right thing. After all, we don't need any Jena 6 marches or more Ernie Chambers lawsuits around here do we?

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

Edward Poindexter's attorney recently lost his client's latest motion for new trial; Douglas County District Judge Bowie ruled against him on every point. Poindexter's attorney also obtained ham sandwich indictments against Lincoln Police and Fire Department personnel in 1995 from Lincoln's 1994 "Rodney King" wannabe Renteria. When the cases when to trial all promptly resulted in acquittals. Does anyone see a pattern here? Poindexter's attorney Bob Bartle said it all however, when he seemed to brush off the district court loss because "it's going to the Supreme Court." Well if I were a friend or relative of the Omaha Police officers Ed Poindexter and David Rice killed or maimed, I would not assume that the meddlesome snivel liberties lawyers representing these Black Panther thugs and their lackeys on the Supreme Court are done yet.

Speed traps in men's rooms: Did the Minneapolis Airport police set-up Senator Craig? Maybe to tap the bathroom-cruising cash cows, but not for politics. Now that Senator Craig has decided to try to fight the citations he received, officially for violating Minnesota criminal statutes titled "Interference with Privacy" and "Disorderly Conduct", did the cops set him up to unseat yet another Senator from the vulnerable Republican Party? Probably they set him up but not for that reason. The fine was pretty substantial. And most defendants caught in an airport far from home would love to avoid the embarrassment of returning to Minnesota, sitting through hours of county court sessions to fight the charges. Predictably most would waive their rights and plead guilty to reduced charges. Now with a $1000 fine and nearly $100 of court costs, that's good pay for a day's work. The airport probably pays the officer $40-45k per year, maybe to $55k with overtime. Add in 20 to 30% for deferred compensation, FICA, health insurance, etc. The $1000 fine more than covers the officer's pay for the day. Now the officer probably spent half his shift landing the Senator, and court personnel and prosecutors a few more hours, but still a nice profit from the cruising cash cows.

US District Court habeas action was too late under Federal AEDPA because the defendant failed to appeal his original Nebraska state court conviction and obtained a direct appeal only years later to remedy his claim that his counsel was ineffective for failing to file a direct appeal on time. 063893P.pdf 09/06/2007 Keva Tyree O'Neal v. Michael Kenny U.S. Court of Appeals Case No: 06-3893 District of Nebraska - Lincoln. Something for all those goons in the joint who discover that their public defenders should have appealed the plea bargains they reach for them to think about: in federal court the merry-go-round comes to a stop. The defendant plead guilty to a few counts of first degree assault. His attorney botched the appeal because the poverty affidavit he drafted was deficient. Only much later did the Nebraska state court grant the defendant a direct appeal to remedy his counsel's ineffectiveness. Eight Circuit agrees that under Nebraska law, the direct appeal to remedy ineffective counsel is a new proceeding and not the original one. To determine whether a new direct appeal constitutes direct review within the meaning of AEDPA, we must examine the underlying state law and in State v McCracken the Nebraska Supreme Court explicitly rejected the defendant's position. "In State v. McCracken, the court held that the grant of a new direct appeal constitutes a new appellate process and does not reinstate the original appellate process. State v. McCracken, 615 N.W.2d 882, 882 (Neb. 2000); State v. McCracken, 615 N.W.2d 902 (Neb. 2000) (McCracken II)"

Nebraska Supreme Court reverses Thomas County District Court's summary judgment ordering removal of directors of cattle feeding corporation. Neiman v. Tri R Angus, S-06-118, 274 Neb. 252. District court judge ordered corporate officers removed following dispute between shareholders and the directors. Although the defendants did not offer evidence disputing removal, the Supreme Court reverses the removal under 21-2086 proceedings. Because the statute includes grounds for fraud and because fraud requires heightened proof of intent, the Supreme Court concludes all grounds for removal of directors will require heightened proof. "Nebraska's statute on judicial removal of corporate directors, § 21-2086, is an extraordinary remedy. It is not for resolving mere differences of opinion between the shareholders and the directors regarding their exercise of business judgment. Instead, it is an unusual remedy that is to be granted only upon the shareholder’s production of sufficient evidence demonstrating that the director has engaged in “fraudulent or dishonest conduct or gross abuse of authority or discretion with respect to the corporation.” § 21-2086."

Another win for trial lawyer justice in Nebraska: Nebraska Supreme Court reverses summary judgment in suit against U-Haul by user who mishandled the truck's loading ramp. Erickson v. U-Haul International, S-05-1163, 274 Neb. 236The plaintiff's parents rented a U-Haul moving van to move from Iowa to Herman, Nebraska in Washington County. The Plaintiff tried to extend the loading ramp while her father moved the truck, but the truck jumped suddenly and pinned her leg. She sued the U-Haul Center of Omaha and also the umbrella U-Haul company. District court dismissed the case against U-Haul Center finding no duty to warn and dismissed against U-Haul parent company finding no personal jurisdiction. Even though the Nebraska Unicameral has already addressed truck leasing liability issues in 25-21,239, the Supreme Court (J Connolly) predictably reverses. So why is this worthless case going back for trial? Who is going to win a negligence case when a girl and her parents are mishandling heavy equipment? This case wont go to trial and someone will pocket a nice settlement since the Supreme Court has shut off the defendants' threat of a quick dismissal.

Convicts who escaped from prison had Fourth Amendment rights until the enbanc Eighth Circuit Court of Appeals reinstated the totalitarian use of Nebraska Department of Corrections administrative arrest warrants Neb. Rev. Stat. § 83-173(11) . Missouri Appellate Law Blog reports the split decision U.S. v. Lucasfrom the Eighth Circuit Court of Appeals en banc that reinstated the escaped convict's charges on drugs and weapons charges arising from his apprehension while staying at his girlfriends house. The initial panel of the Eighth Circuit and the dissenters think the Department of Corrections' warrant insufficient to overcome the fourth amendment protection convicts have when absconding from incarceration. We'll think about that next time a convict escapes, takes hostages and is about to kill them and hope that defendant's lawyers won't be able to think up some creative defenses to the case.

Eminent law prof blawgger applauds Nebraska Supreme Court's decision to maintain SNAFU status with sentencing guidelines. Sentencing Law and Policy Blog loves Nebraska's Justice League member Joe Bataillon, US District Court, and now William Connolly Nebraska Supreme Court for refusing to bow to pressure from the Legislature to introduce some sanity to sentencing decisions. Why if we had guidelines for drug dealers, then we might have to have guidelines for electrocuting murderers, Nigerian gang-bangers, and pedophile runt-rangers.

No complaint amendment to add promissory estoppel three after the plaintiff dropped it from his breach of employment contract lawsuit. Keating v. Ironwood Golf and Country Club voluntarily withdrew his promissory Bank, supra, if the district court had allowed (Not designated for permanent publication). Premier Omaha area golf club Ironwood Country Club hired Bradley Keating to be its chief operating officer in April 2001 with a five year employment contract, subject to the parties reaching within 90 days of starting employment agreement on work performance standards. Apparently Mr. Keating ran afoul of some big names, including Howard Hawks and Thomas Fitzgerald. The club terminated him after 90 days. Keating sued for breach of contract and for breached promissory estoppel. After Ironwood filed its initial demurrer to the promissory estoppel count, Keating withdrew this from his pleading. But nearly three years later in response to Ironwoods motion for a complete summary judgment he sought to reinstate it. Nebraska Court of Appeals, unpublished decision, affirms summary judgment. "Keating sought to change his lawsuit from a straightforward breach of a written contract action to a promissory estoppel cause of action only after the hearing on Ironwood’s motion for summary judgment, nearly 3 years after Keatingestoppel cause of action. Similarly to Cimino v. FirsTierKeating to amend his pleading, the basis of his lawsuit would have been significantly altered after 3 years of proceeding to defend a case based only on a breach of contract cause of action. For these reasons, the district court did not abuse its discretion in refusing to grant Keating’s motion for leave to file an amended petition to change his theory of recovery from a breach of contract claim to one of promissory estoppel."

UNL Law College student expelled for plagiarism appealed to the Lancaster County District Court. District Court and Nebraska Court of Appeals dismiss case, holding that the Dean and Honor Committee of the law school are not "agencies" subject to the Administrative Procedures Act, nor was their expulsion decision a "contested" case.Kerr v. Board of Regents et al. ___N.W.2d___ Filed August 28, 2007. No. A-05-953. Law student Michael Kerr got caught plagiarizing three papers and then submitting the identical plagiarized material to different professors. A law school Honor Committee voted 4 to 1 to expel him and the Dean approved. Kerr alleged disparate treatment due to his race and national origin (guess) so that must have swayed the one dissenter on the committee. He then appealed to the District Court, lost and appealed to the Court of Appeals. Appeal dismissed."An “agency” is each board, commission, department, officer, division, or other administrative office or unit of the state government “authorized by law to make rules and regulations.” § 84-901(1). We have found no basis to conclude that the Honor Committee or Dean Willborn is “authorized by law to make rules and regulations,” Nor was Kerr's expulsion the result of a contested case as "there is no law requiring that the question of whether Kerr remains a College of Law student be determined by an agency (as defined by § 84-901(1)) and, in any event, as said, the Honor Committee and the dean are not agencies under such statute.

Order of the Kneepads update: Counsel for Discipline for the Nebraska Supreme Court helps poor business people find ways to blame their attorneys. The Kearney Hub reports that master litigator Kent Frobish, Assistant Counsel for Discipline of the Nebraska Supreme Court filed formal charges (pdf) against venerable Kearney attorney William Orr arising from his representing the Baristas' coffee shop principals. Disciplinary Counsel Frobish became very proficient in this job because he held a baker's dozen of private sector positions before landing in the Supreme Court's easy chair. Somehow I don't see how Baristas' people can blame Orr for all their problems. He didn't tell them not to deposit their withholding taxes to the tune of over $330K. Although the FTC fined the partners, this did not completely choke their income.

No uninsured motorist coverage for passengers who were not insured persons for an automobile's liability insurance policy, and a much smaller payday for plaintiffs' attorneys. Nebraska Supreme Court, J Stephan with Gerrard, J and Heavican CJ concurring rules for Shelter against its insured's passenger who was injured in an accident with an uninsured automobile. Jones v. Shelter Mut. Ins. Cos., S-06-310, 274 Neb. 186. Shelter excluded passengers in their insureds' vehicle who were not themselves insured persons under the policy. Although permitted drivers were covered, guest passengers were not. Plaintiff and his own uninsured carrier American Family argued Shelter's policy violated 44-6408 . 44-6408 requires liability insurers who provide insurance for bodily injury... arising out of the ownership, operation, maintenance, or use of a motor vehicle to also provide to persons insured who are legally entitled to recover compensatory damages for bodily injury (uninsured and uninsured motorist coverage). Supreme Court rules Shelter did not violate public policy by restricting the meaning of "use" of the motor vehicle to those guests who were operating or maintaining it. Justice Gerrard, concurring, cant wait to butt in and tell the Unicameral how it should write its laws. Gerrard states he is concerned about unsuspecting passengers who throw themselves at the mercy of uninsured drivers. Good enough, but how about the plaintiff attorneys who win smaller settlements because of this ruling? Don't they deserve favorable mention from their champion John Gerrard?

Will medical malpractice plaintiffs be able to bring cases against Hospitals and doctors for their advertisements? Nebraska Supreme Court, per curiam, affirms Douglas County District Court defense verdict in medical malpractice case rules that judge could exclude defendant evidence of hospital's advertisements for its walk-in emergency clinic. Supreme Court holds the advertisements did not establish a standard of care. But Court hints that in the right cases plaintiffs could bring negligent misrepresentation claims Karel v. Nebraska Health Sys., S-05-1311, 274 Neb. 175 Tina Karel's estate administrator sued Nebraska Health Systems, dba Clarkson West EmergiCare (Clarkson West), and Scott Menolascino, M.D., for medical malpractice action. Plaintiff died just a few hours after seeking treatment from the emergency clinic the second time that evening. After the defense verdict the Plaintiff appealed arguing the district court should have admitted her evidence of the defendants' print and radio advertisements produced by for the Clarkson West Emergicare clinic.Supreme Court affirms. "Neither the offer of proof nor any other part of the record affords any basis for concluding that Karel relied upon or was even aware of the marketing activities undertaken by Clarkson West when she chose to seek medical care at the facility"

Malpractice lawyers will sue other lawyers for settling cases and also for taking cases to court. Nebraska Supreme Court (J. Wright) reinstates $1.6 million malpractice verdict against Omaha's McGrath North law firm in favor of former client LaVista Keno operator Richard Bellino and his trial attorney David Domina. Bellino v. McGrath North, S-06-130, 274 Neb. 130. Lawyers beware of advising clients to accept settlements that another lawyer will say were too low, conversely don't advise a client to beat a settlement offer at trial. The Douglas County jury ruled that McGrath North's client received bad legal advice on how to dump his business partner in their Keno business and then that he would win in court. Although the district court agreed that the defendants' continuous representation through the clients unsuccessful appeal against the former partner's business opportunity lawsuit was timely and that the defendants were negligent , the district judge reduced the jury's $1.6 million to $224K. The district judge reasoned that since the client would owe his partner something eventually, no damage resulted from the attorney's conduct. Supreme Court disagrees. "After (plaintiff) did not accept (former partner's) offer, (Plaintiff's) appeal continued until this court affirmed the judgment in favor of (former partner). The jury could reasonably have concluded that but for the negligence of McGrath North, Plaintiff would have paid substantially less than $3.1 million to attain his stated goals."

Nebraska Supreme Court in two cases arising from the Amwest liquidation that started six years ago rules against landlord who sought satisfaction from defaulted tenants performance bond, but rules in favor of Florida general contractor who said it never received notice of the Amwest liquidation proceedings.

• State ex rel. Wagner v. Amwest Security Ins. Co., S-05-1267, 274 Neb. 110 (Strategic Capital Resources, Inc.)
• State ex rel. Wagner v. Amwest Security Ins. Co., S-06-049, 274 Neb. 121(Sunhouse International)

The Supreme Court affirms denying the claims of Strategic Capital Resources against its tenants performance bond to satisfy rental payments. Turns out the tenant-principal defaulted three days after the Insurance Department's notice that it would cancel the Amwest bond. "Each of the four lease bonds contained explicit conditions that must be complied with before A mwest’s liability under the agreements would arise. All four lease bonds required Strategic to provide A mwest written notice of (principal’s) default as a condition precedent to S trategic’s right to payment under the lease bonds. Amwest however did not receive notice of defaults until after cancellation. Strategic may not analogize these cases to cases arising form claims-based insurance policies as bond claims require strict compliance with preconditions for them. In the Sunhouse international case, the Supreme Court rules in favor of the claimant against a defaulted construction performance bond. The evidence showed that Amwest liquidators sent notice to the claimant's former attorneys offices. The claimant disputed that it received notice. Only later did Amwest liquidators produce an affidavit with out supporting documents stating the it did give proper notice. On denovo review Supreme Court discounts the affidavit. "we find the affidavit insufficient proof that, in accordance with § 44-4822, notice was sent to S unhouse’s last known address as reflected in A mwest’s records."

Although Justice Stephan doesn't think police officers have rights to free speech, he and his fellow Solons on the Nebraska Supreme Court think that a little law school wouldn't hurt them. Snyder v. Department of Motor Vehicles 274 Neb. 168. The Supreme Court majority throws out an administrative license suspension from Douglas County because the police officer marked "speeding over 20 mph, DUI" as the reason for the arrest. Now if the busy Omaha Police Department officer who stopped this drunk driver who was driving over 20 mph over the speed limit had been to law school, he would have known that although that's the ticket he issued to this drunk driving menace, that was a mere legal conclusion and did not state "facts" to make the wise Supreme Court justices happy. So what if Supreme Court justices and their clerks dream up these technicalities while sitting in their State Capitol chambers and law libraries, the form has TWO AND A HALF INCHES for the officer to state his reasons for arresting the suspect and the burden of the paperwork is not "onerous," even for busy policemen who must complete these forms at all hours and in all weather conditions. Dissenting Chief Justice Heavican seems to be the only judge on the court who agrees to see the real world, and finds the court decision's thwarting effective drunk driving enforcement.

Follow up: on remand the Nebraska Supreme Court again reverses the Commission on Industrial Relations in the dispute between the Hyannis Educational Association and the Grant Public School District ; Supreme Court rules in favor of school district that "deviation clauses" from union contracts between several other school districts and teachers' representatives were prevalent, whether they had open-ended or specified conditions, and therefore the CIR erred when it threw out the school district's deviation clause. Hyannis Educational Assn. v. Grant County. Sch. Dist. No. 38-0011, S-06-300The Supreme Court also declined to moot the case because of the Legislature's Class I Schools' consolidation bill from two years ago, 2005 Neb. Laws, L.B. 126.

The Nebraska Supreme Court decides that good police discipline, i.e., toeing the line, overrides Union activity and the public's right to know police officers' public safety concerns. Omaha Police Union Local 101 v. City of Omaha, S-06-403 Omaha Police Department Chief sought to discipline two officers who were police union officials for comments they made about the OPD's 911 standards. One commented that the OPD's procedures were "misleading" and this was during a union meeting. The chief tried to discipline this officer but Internal Affairs dismissed the case. A second officer wrote and article that was barely insubordinate, in that article the officer wrote an article was generally critical of the standard operating procedures for two-officer 911 calls and the manner in which the city and OPD calculated response time. Housh characterized city officials as “[a] bunch of grown men and women, supposedly leaders, acting like petty criminals trying to conceal some kind of crime.” He also stated that “[t]hey refuse to do it, they know they have screwed up, and rather than admitting guilt, they (whoever they are) will make history and try to control what is said/revealed during union meetings regarding response time.” The comments about "grown men" cant be true, because if the police administration had grown men, it would not have thought these comments while harsh amounted to a disciplinary breach. Anyway the Supreme Court gives the department what it wants, the chance to tie up anyone who questions authority and public safety and make them think twice about rocking the boat, because next time an employee criticizes his government employer he will have to navigate a maze of constitutional balancing tests, juggling and water torture.

Nebraska Supreme Court nixes North Carolina pig breeder's claim against hog farmers estate. The breeders officers mistakenly signed where the hog farm's principal should have signed to guarantee the farms breeding stock debts. Court affirms Gage County Probate Court's ruling that there was no guaranty agreement either by reforming the erroneously signed document nor by finding that the guaranty was the "leading object" of the agreement between the farm and breeder, so the court would not excuse the writing requirement of the statute of frauds (§ 36‑202(2) (Reissue 2004)). In re Estate of Dueck, S-06-538there was no written guaranty agreement between the parties. In the absence of a written agreement between GIS and Dueck, there was nothing to reform The leading object rule presumes that there has been an oral promise or some sort of an oral agreement.Dueck did not orally agree to guarantee Forward Trend’s debt to GIS, and it follows that the leading object rule was inapplicable.