Nebraska Court of Appeals reverses guilty verdict for second degree assault and sexual assault for the Sheridan County District Court's erroneous admission of prior crimes evidence. However the appeals court does not decide whether the District Court's failure to give the "other crimes" limiting instruction when the court allowed the evidence, as State v. Sanchez, 257 Neb. 291, 597 N.W.2d 361 (1999) requires. State v. Sutton , A-06-1297, 16 Neb. App. 185 Evidence of prior assault between defendant and victim was not admissible under 27-404(2) RRS Neb. The court admitted the evidence and the appeals court found the error harmful beyond a reasonable doubt. The district court failed to give a Sanchez limiting instruction, but since the admission of evidence was itself reversible error, the appeals court does not determine whether the court's failure to give Sanchez limiting instructions would be reversible error."The trial court failed to state such purpose at the time of the hearing required by rule 404(3)—which was an earlier opportunity for the trial court to “state the purpose or purposes” in order to comply with the procedures mandated in Sanchez. However we need not consider whether the trial court’s failure to abide by the Sanchez requirements constitutes reversible error in the instant case, given that we have concluded that the evidence was inadmissible. We simply point it out to remind trial courts of the requirements set forth in State v. Sanchez."

No action against general contractor by subcontractor's employee from construction site accident. Eastlick v. Lueder Constr. Co., S-06-721, 274 Neb. 467 . Bricklayer fell off scaffolding he and a co-worker negligently assembled and of course his attorneys needed someone other to blame. Bricklayer sued the general contractor who had nothing to do with the masonry subcontractor's work. Dodge County District Court gave summary judgment to the general contractor and bricklayer appealed. Nebraska Supreme Court (J. Wright) affirms summary judgment. Unlike the Omaha Public Power District in Parrish v. Omaha Pub. Power Dist., 242 Neb. 783, 496 N.W.2d 902 (1993), who kept its own safety personnel constantly checking the work site, the general contractor had nothing to do with the masonry subcontractor's own scaffolding. Closer to the mark the Supreme Court finds that as in Hand v. Rorick Constr. Co., 190 Neb. 191, 206 N.W.2d 835 (1973), "the instrumentality (scaffolding) which caused the injury was not the premises, but, rather, was the equipment owned, controlled, and erected by the subcontractor, who was the employer of the injured worker. The general contractor had no right to control the subcontractor's equipment. The duty of a general contractor to employees of a subcontractor extends only to providing a reasonably safe place to work as distinguished from apparatus, tools, or machinery furnished by the subcontractor for the use of his own employees.”

Nebraska Supreme Court allows district courts to dictate work schedules of public safety employees. Hogelin v. City of Columbus, S-06-641, 274 Neb. 453. The Chief of the Columbus Fire Department required firefighters to attend extra safety training that the US Department of Homeland Security funded but the training schedule would put the firefighters over the maximum work hours that Section Section 35-302 allowed (no more than 60 hours per week, given 24 hour schedules). The head of the union complained that the evening training schedules interfered with his visitation schedule and another firefighter received a reprimand for failing to attend a training session when the fire department had already approved his trip out of town to attend a wedding in North Carolina. The firefighters right to the maximum hours restrictions in 35-302 was so important that the firefighters' collective bargaining agreement allowing the City to set work schedules did not set aside the requirements of the statute. Finally the court finds an injunction was appropriate. Remember that next time a government agency in Lincoln decides to impose extra training requirements on a small town's fire or police department.

Nebraska Supreme Court leaves jurisdictional and other questions unanswered in underinsured motorist case where the State was a defendant and worker compensation subrogee. Nebraska Supreme Court holds that § 44-6413 RRS Neb (barring uninsured/underinsured motorist claims when the statute of limitations on the underlying claim has expired) did not bar injured state employee's underinsured motorist action because the plaintiff settled her negligence claim against the primary tort-feasor within the four year statute of limitations period § 25-207 RRS Neb. Reimers-Hild v. State, S-06-203 274 Neb. 438 . The State of Nebraska and its underinsured motorist carrier raised the defense of 44-6413 that the Plaintiff sued after the statute of limitations had expired. Plaintiff was injured in an automobile accident while in the scope and course of her employment with the State of Nebraska. She received worker compensation from the State and also settled for the primary tort-feasor's liability insurer liability limits of $25000. The State had uninsured/underisnured coverage on the state vehicle the Plaintiff was in at the time of the accident but self-insured damages of up to $300000. The plaintiff did not file a tort or contract claim against the State. Instead the Plaintiff sued the State more than four years after the accident and later added its underinsured carrier . The Nebraska Supreme Court reverses, refusing to consider the defendants jurisdictional claims. "we hold that § 44-6413(1)(e) does not apply when an insured has settled his or her claim against an uninsured or underinsured motorist before the statute of limitations applicable to that claim would have expired. T he district court erred in concluding otherwise." The Surpeme Court noted several of the future questions it will no doubt play with: what will be the correct statute of limitations? Did the Plaintiff need to file either a tort, contract claim or both against the State before filing suit Did sovereign immunity or worker compensation immunity apply?

The Unicameral's boondoggle DNA testing statute's chickens come home to roost. The state convicted five defendants of robbing and murdering a 68 year old woman from Beatrice in 1985. Defendant White was convicted of murder and defendant Winslow plead to second degree murder.

• State v. White, S-06-919, 274 Neb. 419
• State v. Winslow, S-06-983, 274 Neb. 427

Three co-defendants testified against White. Nebraska Supreme Court orders DNA testing for both the defendant who went to trial (White) and the defendant who plead (Winslow). The Supreme Court orders testing because no matter how far fetched the claim, this evidence if available could produce noncumulative, exculpatory evidence relevant to the claim that the person was wrongfully convicted or sentenced. See § 29-4120(5). Senator Chambers comments back in 2001 tell it all, the senators agreed that cost was no object.

Order of the Kneepads Update: Rare readmission of disbarred attorney to the Nebraska State Bar after 20 years. Nebraska Supreme Court allows readmission to the bar of attorney disbarred 20 years after twice stealing funds from his law firm. Legal profession blog. The Supreme Court disbarred John Kinney in 1987 after twice stealing over $20,000 from his law firm. The court denied his application for readmission ten years ago but this time allows it conditioned upon his passing the bar exam. Character witnesses and the court's soft spot for substance abusers carried the day for Mr. Kinney. State ex rel NSBA v. Kinney 274 Neb. 412 (2007).

Nebraska state courts retained jurisdiction to prosecute crimes involving Indians that preceded effective date of Unicameral's retrocession agreement with the Federal Government. State v. Wabashaw, S-06-642, 274 Neb. 394 Defendant was convicted of robbery and the court sentenced him as an habitual offender. The crime occurred on Indian territory. Nebraska Supreme Court affirms conviction as effective date (71 Fed. R eg. 7994 (Feb. 15, 2006)) of Nebraska's retrocession agreement (L.R. 17, Legislative Journal, 97th Leg., 1st S ess. 2356, 2358-59 (May 31,2001)) followed the crime. Congress abrogated its 1868 treaty with Indian tribes that required notice to the tribes before the State prosecuted an Indian (Public Law 280 18 U.S.C. § 1162(a) (2000)). Finally the Defendant's prior robbery conviction in South Dakota counted to enhance his sentence even though South Dakota courts (S.D. Codified Laws § 22-7-9 (2004))could not have considered the prior conviction due to passage of time (§ 29-2221 RRS Neb.).

Nebraska Insurance Guaranty Act bars all subrogation claims against insureds unless they are outside the scope of the insolvent insurer's policy. Car owner sued dealership for damages arising from repairs the plaintiff alleged were faulty. The car owner paid his $1000 deductible and his own insurer picked up the rest. The dealership's insurer became insolvent after the Plaintiffs started the lawsuit and the district court dismissed the action under the provisions of the Nebraska Insurance Guaranty Act that prohibits subrogation actions against responsible defendants. Nebraska Supreme Court agrees that the plaintiffs could not file action directly against the dealership unless the accident was beyond the coverage of the garage policy and material issues of fact prevented summary judgment for the dealership on coverage. Alsobrook v. Jim Earp Chrysler-Plymouth, S-06-383, 274 Neb. 374"Section 44-2403(4)(b) prohibits subrogation claims from being asserted against an insured of an insolvent insurer, except to the extent that the claim is outside of or in excess of the insurance policy issued by the insolvent insurer. T he district court erred in concluding, as a matter of law, that Alsobrook’s entire claim, in excess of the deductible, is barred by the A ct"

Grand Island Lawn Company Owner Pleads Guilty to Harboring Illegal Immigrants. Yahoo business. David Wortman turned himself in for arrest last month, one day after U.S. Immigration and Customs enforcement raided Cloudburst Lawn and Sprinkler and arrested 19 suspected illegal immigrants. Agents believed 11 of those arrested were from Mexico, six were from El Salvador and two were from Guatemala.Wortman was under investigation by ICE, the IRS and the U.S. Department of Labor, U.S. Attorney Joe Stecher said in a news release. Wortman was scheduled to be sentenced Jan. 22. In a plea deal, he agreed to be sentenced to 30 months in prison and to file new tax returns for 2005 and 2006. According to the criminal complaint, Wortman told federal officials that the company's gross sales in 2005 were more than $1.5 million. Stecher said Wortman cashed several checks from customers that were for less than $10,000 each but represented larger business dealings that should have been federally reported. Stecher said the 45 transactions totaled about $440,000 and were paid in groups of 22 to 108 checks. Under his plea agreement, Wortman agreed to forfeit the $440,000, not only for the unreported transactions, but also to pay $200,000 to the Labor Department to settle claims of unpaid overtime.

The Heritage Foundation and The Federalist Society Host A Reception with Supreme Court Justice Clarence Thomas Omaha, NE, October 19^th

Event details Friday, October 19, 2007 6:30 p.m. Reception 7:00 p.m. Remarks Hilton Omaha 1001 Cass Street Omaha, NE 68102

Sign up here for this special event. Justice Thomas is a national treasure and a great speaker. Just think if a few more decisions from the Supremes went his way. As John Lennon said, "Imagine!"

The Nebraska Court of Appeals should have considered the defendant's ineffective counsel appeal because his challenge to the Nebraska terroristic threats statute was merit less.

State v. Nelson, S-06-449

Although defendant filed notice in his ineffective counsel appeal that he would allege that the Nebraska terroristic threats statute (28-311.01) is unconstitutional, the Nebraska Supreme Court holds the court of appeals should have heard the appeal. "(Defendant's) mere assertion that a statute may be unconstitutional does not automatically deprive the Court of Appeals of jurisdiction over the case. To conclude otherwise would amount to ceding the regulation of our docket, and that of the Court of Appeals, to the unsupported allegations of litigants. We find that for the constitutionality of a statute to be genuinely “involved” in an appeal,"

Nebraska Supreme Court rejects "ERISA" standards when it reversed summary judgment ruling that went against disability insurance recipient.

Sweem v. American Fidelity Life Assurance Co., S-06-870

The Douglas County District Court refused to admit plaintiff's evidence that she was still disabled after the disability insurer cut her off because she had not given this information to the insurer before it decided to end her benefits. Nebraska Supreme Court rejects the defendant's suggestion that plaintiff should have provided her evidence of continued disability before the insurer made its decision to terminate benefits as ERISA plan insurers often require."We discern no good reason to apply ERISA principles to this common-law action to recover benefits claimed due under an insurance policy, and American Fidelity directs us to no other state court decision which has done so."

Justice William Connolly again hands a victory to bigger government units over smaller ones. This time he allows the reorganized Lyons-Decatur School District to bait and switch Decatur residents into believing they would have a say in whether the school district would keep their local school open. Citizens for Equal Education v. Lyons-Decatur Sch. Dist., S-06-159, 274 Neb. 278. Justice Connolly just cant help himself from finding "absurd results" from the plain meaning of statutes. This time he finds that an agreement between the residents of Decatur and Lyons when they merged their school districts in 1984 that the Decatur school would not close unless a majority of the Decatur voters approved did not mean that because that would be an "absurd" result. Section 79-419 said just that, but that would get in the way of consolidating small town schools into large ones that would support lots of extra staff. We really should be grateful for Justice Connolly for doing the Legislature's job. After all his Supreme Court justice's salary takes care of a baker's dozen of unicameral members.

Judge who did not recite immigration consequences to immigrant defendant word for word did not cause manifest injustice entitling defendant to vacate his plea. State v. Molina-Navarrete, A-06-1362, 15 Neb. App. 966Can you tell the difference between what the Dawson County Judge told one of our hard working striving new arrivals to our land of promise and what the Nebraska Legislature requires judges to advise defendants on the possible immigration consequences of breaking our laws? Here's what the judge told the defendant Molina-Navarrete: "In addition, if you are not a United States citizen, any conviction of this offense may have the consequence of causing you to be removed from the United States; that is, deported or denied naturalization of the laws of the United States. Do you understand all of the penalties" YES Here's what Section 29-1819.02 requires, in bold: IF YOU ARE NOT A UNITED STATES CITIZEN, YOU ARE HEREBY ADVISED THAT CONVICTION OF THE OFFENSE FOR WHICH YOU HAVE BEEN CHARGED MAY HAVE THE CONSEQUENCES OF REMOVAL FROM THE UNITED STATES, OR DENIAL OF NATURALIZATION PURSUANT TO THE LAWS OF THE UNITED STATES. Molina-Navarette sought to vacate his guilty plea after sentencing for narcotics possession. Dawson County overruled his motion and the Nebraska Court of Appeals found no manifest injustice, the standard for vacating pleas after sentencing: "We conclude that these minor language differences are inconsequential and that Molina-Navarrete was properly advised of the immigration consequences of his plea as required by § 29-1819.02 and refusing to vacate the plea was not a manifest injustice"

Eighth Circuit again reverses Nebraska Federal District Court Judge Bataillon, this time for Judge Bataillon's ruling that retired union members should be able to keep sucking their employer Crown Cork and Seal dry for a lifetime of gold-plated health care. International Association of Machinists, AFL-CIO v. Crown Cork &Seal 09/18/2007 U.S. Court of Appeals Case No: 06-3639 District of Nebraska - Omaha [PUBLISHED] [Bowman, Author, with Melloy and Gruender, Circuit Judges]. Retired union employees of Crown Cork and Seal filed grievances because the company put introduced unwelcome cost cutting measures to their health plans. Company sought declaratory relief that it did not have to arbitrate and could modify the health plans. District Court Bataillon ruled the company had to agree to arbitration under the company's active labor relations agreement with present employees. Eighth Circuit reverses. The retirees' health benefits did not vest before the Master Agreements expired and did not survive the expiration of those agreements. The district court erred in granting summary judgment to the union and ordering arbitration of Crown's unilateral modification of the retiree health plan. Crown's declaratory judgment action under the Labor Management Relations Act is dismissed, as the law of the case conclusively determined that retiree benefits did not vest before the Master Agreement expired.

Bankrupt used car dealer owed a $150000 federal court judgment to a former female employee due to his partner's flagrant sexual harassment of her. Eighth Circuit Court of Appeals finds the federal court employment discrimination verdict under 42 U.S.C. § 2000e-3(a) was not dischargeable as a willful and malicious injury according to 11 USC 523(a)(6). Holly Sells v. Michael Porter 09/21/2007 U.S. Court of Appeals Case No: 07-6008 and No: 07-6013 U.S. Bankruptcy Court for the Eastern District of Arkansas

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.