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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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