Supreme Court Case Summaries

TUESDAY, OCTOBER 5, 2010, subject to call at 9:00 a.m.

S-09-1095, State of Nebraska, ex rel. Counsel for Discipline of the Nebraska Supreme Court (Relator) v. William L. Switzer, Jr. (Respondent)

Original Action

Attorneys: Kent L. Frobish (Assistant Counsel for Discipline) --- Michael D. McClellan (Gast & McClellan)

Civil: Attorney Discipline

Proceedings below: The referee found by clear and convincing evidence that respondent violated his oath of office and the following provisions of  Neb. Ct. R. of Prof. Cond. §§ 3-501.3; 3-501.4; 3-505.5 and 3-508.4. The referee recommended disbarment.
Exceptions to Referee’s report and recommendation: The referee erred in (1) finding that further treatment for major depressive disorder and general anxiety disorder would not substantially reduce the risk of further misconduct; (2) recommending disbarment as a sanction as it is too severe; (3) failing to consider the mitigating circumstances in the case; (4) making a finding that Respondent was treating for depression since 1993 as that was in error.

S-09-0148, State v. Roy Ellis (Appellant)

Douglas County, Hon. Gregory Schatz

Attorneys: W. Patrick Dunn, Jerry M. Hug, Alan G. Stoler--- J. Kirk Brown (Solicitor Genera, Attorney General’s Office)

Criminal: first degree murder; death

Proceedings Below: Following a jury trial, Roy Ellis was found guilty of first degree murder in the death of Amber Harris and was sentenced to death.

Issues on Appeal: Ellis argues, restated and consolidated, that the district court erred (1) in admitting evidence of prior sexual assaults because intent and identity were not proper purposes for the receipt of this evidence; (2) in denying two mistrial requests due to prosecutorial misconduct relating to rule 404 evidence and thus violating Ellis’ right to a fair trial; (3) in denying Ellis’ motion to exclude testimony under § 29-1929 and in violation of Ellis’ due process rights; (4) in denying Ellis’ motion in limine regarding the State’s use of DNA evidence; (5) not finding that the repeal of electrocution by LB 36 required a sentence of life; (6) not finding that § 83-964 unconstitutionally delegates a legislative function to the executive branch; (7) the Nebraska death penalty statutes are unconstitutional on their face; (8) finding that there was sufficient evidence to support a finding of aggravating circumstances under § 29-2533(1)(a) and (d); (9) finding insufficient evidence of statutory mitigating factors under § 29-2523(2)(c) and (g); (10) in conducting its proportionality review; and (11) failing to find that § 83-964 to § 83-967 are in violation of the federal Controlled Substances Act and the Food Drug and Cosmetic Act and are therefore pre-empted.

WEDNESDAY, OCTOBER 6, 2010, subject to call at 9:00 a.m.

S-09-1302, Freedom Financial Group, Inc., Bethel Enterprises, L.L.C., Freedom Group, Inc., Freedom Financial, Inc., Freedom Asset Management, Inc., Mid-America Employment Services, Inc., and U.S. Securities Management, Inc., (Appellants) v. Janie M. Woolley, Individually, Marks, Clare, & Richards, LLC, and Janie M. Woolley, P.C.

Douglas County, Judge Marlon A. Polk

Attorneys: Thomas A. Grennan, Francie C. Riedmann (Gross & Welch, P.C., L.L.O.) (Appellants) – Michael L. Schleich, Timothy J. Thalken (Fraser Stryker P.C. L.L.O.)

Civil: attorney malpractice

Proceedings Below: Following a hearing, the district court granted defendants’ motion for summary judgment. Plaintiffs appeal.

Issues: Whether the district court erred in (1) determining that Freedom Financial Group (“FFG”) did not have standing to sue; (2) failing to apply the exceptions set forth in Meyerson v. Coopers & Lybrand, 244 Neb. 758, 448 N.W.2d 129 (1989) to allow FFG to recover for its lost earning and profits; (3) failing to recognize that, as the sole member of a limited liability company, FFG was entitled to bring a direct action for its lost earnings and profits; and (4) determining that Janice Woolley, Marks Clare & Richards, LLC and Janice M. Woolley P.C. (collectively “MCR”) did not owe a duty to FFG’s related entities.

S-10-0166,  Eric Fleming and the Fraternal Order of Police, Lodge No. 8 (Appellants) v. Civil Service Commission of Douglas County and Douglas County

Douglas County, Honorable James T. Gleason

Civil: Administrative Appeal

Attorneys:  Steven E. Achelpohl (appellant) - - - Timothy K. Dolan (Douglas County Attorney)

Proceedings Below:    Eric Fleming was terminated from his employment as a Douglas County Corrections officer in June of 2008 for an incident involving an inmate.  Fleming appealed the decision and a hearing was held on December 4, 2008, before the Douglas County Civil Service Commission (Commission).  At the hearing the Commission found insufficient evidence and ordered that his employment be reinstated. During the same time period, criminal charges were based on the incident and on November 17, 2008, Fleming entered a plea of no contest and stood convicted of assault and battery.  On April 23, 2009, the Department of Corrections Director Jeffrey Newton again terminated Fleming’s employment claiming that based on the conviction Fleming had violated his Labor agreement.  Fleming appealed this second termination and the Commission held a hearing on June 18, 2009. The Commission upheld the termination.  Fleming appealed that order to the district court for Douglas County.  The district court entered a decision on January 21, 2010, upholding the Commission’s decision.  Fleming and the union appeal.  

Issues:  Did the district court err in: (1) finding that the decision to terminate Fleming’s employment on April 23, 2009, was supported by competent evidence and was not arbitrary and capricious; (2) finding that evidence showing that other employees were not fired for their convictions of crimes was irrelevant to the question of whether the Commission’s decision was arbitrary; (3) determining that Fleming did not have a right to be free from termination twice for the same conduct based on contractual double jeopardy; (4) failing to find that the participation of Douglas County Sheriff Tim Dunning, as a member of the Commission, in the second hearing violated Fleming’s right to due process and a right to a fair and unbiased tribunal.
 

S-10-0025, International Brotherhood of Electrical Workers Local 763, International brotherhood of Electrical Workers Local 1483 (Appellant) v. Omaha Public Power District

Nebraska Commission on Industrial Relations

Attorneys: Robert E. O’Connor (Appellant) --- Robert F. Rossiter, Jr. and Cristin McGarry Berkhausen (Fraser Stryker PC LLO)

Civil: Collective bargaining agreement

Proceedings below: The CIR found OPPD did not violate Neb. Rev. Stat. § 48-824 by unilaterally implementing the Tobacco Free Worksite Policy. The CIR dismissed IBEWs’ claim. IBEW filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues: The CIR erred in (1) failing to consider the existence of a valid, binding collective bargaining agreement; (2) relying on cases which were contract expiration cases and inapplicable; (3) failing to determine the issue was whether or not a public employer can modify a collective bargaining agreement during its term by offering to bargain on a mandatory subject of bargaining, bargaining to impasse and then implementing the change.

S-10-0114, Kimberly Cotton (Appellant) v. State of Nebraska

Sarpy County, Judge David Arterburn

Attorneys: Michael P. Dowd (Dowd Howard & Corrigan LLC) (Appellant) --- Robert S. Keith (Engles Ketcham Olson & Keith PC)

Civil: Liability for police pursuit; Neb. Rev. Stat. § 81-8,215.01
Proceedings below: After a bifurcated bench trial, the trial court found that Appellant failed to prove the driver’s actions were a result of a vehicular pursuit defined by the Pursuit Statute or that Trooper Kavan’s actions were a proximate cause of the accident. Judgment was entered in favor of the State. Appellant filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues: The district court erred in (1) rejecting the pursuing officer’s testimony regarding his understanding of apprehension; (2) rejecting Sgt. Kavan’s testimony regarding apprehension; (3) interpreting Neb. Rev. Stat. § 81-8,215.01(5); (4) finding that a vehicular pursuit would not exist of the pursuing officer claimed the pursuit was for further investigation rather than taking an individual into custody; (5) application of facts to the law of strict liability; (6) misinterpreting statutory language; (7) receiving the videotape into evidence without proper authentication and foundation.

THURSDAY, OCTOBER 7, 2010, subject to call at 9:00 a.m.

S-10-0232, State v. Jeff McCave (Appellant)

Lancaster County, Judge John Colborn

Attorneys: Sarah Newell (Public Defender’s Office) --- Kimberly A. Klein (Attorney General)

Criminal: DUI, aggravated by refusing a chemical test; second degree trespass; open container

Proceedings below: A jury found Appellant guilty of aggravated DUI and 2nd degree trespass. The trial court found him guilty of open container. He was sentenced to 2 years probation, 30 days jail, a $1000 fine and 2 year license revocation on DUI. He received a $50 fine for open container and 10 days jail for trespass. The district court affirmed.

Issues: The court erred in (1) excluding as hearsay certain testimony elicited by Appellant; (2) overruling Appellant’s motion for directed verdict; (3) overruling Appellant’s motion to suppress; (4) instructing the jury; and (5) imposing an excessive sentence.

S-10-0005, Glen Davis v. Choctaw Construction Inc. (appellant) 

Adams County, Judge Stephen R. Illingworth

Civil: Employment

Attorneys: Michael Mead (Law Offices of Whelan, Scherr, Glen, Goding & Mead, P.C., L.L.O.) – Robert M. Sullivan (Sullivan, Shoemaker, Witt & Burns, P.C) ( appellant)

Proceedings Below: The district court concluded that there was no employment contract between the parties but that plaintiff-appellee Glen Davis was wrongfully terminated based on promissory estoppel.  The district court denied appellant Choctaw Construction Inc.’s (Choctaw) motion to dismiss for untimely service pursuant to Neb. Rev. Stat. § 25-217, which was filed after the district court entered judgment in favor of Davis.

Issues: Whether Choctaw could challenge jurisdiction based on untimely service after the district court entered judgment in favor of Davis and whether the district court erred in concluding that Davis was wrongfully discharged based on promissory estoppel.           

S-09-1245, International Brotherhood of Electrical Workers v. Bill Sack, et al.

Commission on Industrial Relations

Attorneys: Vincent Valentino--- Dalton W. Tietjen

Civil: certification of labor union

Proceedings Below: The International Brotherhood of Electrical Workers (IBEW) sought to certify a bargaining unit composed of employees of Howard County, Nebraska. The County objected to the inclusion in this unit of certain deputy positions. The CIR concluded that these positions could be members of the unit. The County appeals.

Issues on Appeal: Whether the CIR erred in concluding that the employees at issue (1) were not statutory supervisors; and (2) were not confidential employees.

FRIDAY, OCTOBER 8, 2010, subject to call at 9:00 a.m.

S-09-1152, State v. Jeremy Erickson (Appellant)

Kimball County, Judge Derek C. Weimer

Attorneys: James R. Mowbray, Kelly S. Breen (Commission on Public Advocacy) (Appellant) --- Erin E. Tangeman (Attorney General’s Office)

Criminal: Intentional Child Abuse Resulting in Death

Proceedings below: Appellant was found guilty by a jury of the above crime. He was sentenced 75 years to life imprisonment.

Issues: The trial court erred in (1) failing to instruct the jury on the lesser-included defense of manslaughter; (2) denying Appellant’s motion to change venue; (3) imposing an excessive sentence.

S-10-0121, State v. Raymond Mata, Jr. (Appellant)

Scotts Bluff County, Judge Leo Dobrovolny
Attorneys: Brian J. Lockwood (Public Defender) --- J. Kirk Brown (Solicitor General, Office of the Attorney General)

Civil:  Postconviction; death penalty

Proceedings below:  The trial court denied Appellant’s motion for postconviction relief without an evidentiary hearing and denied his request for counsel in the postconviction proceeding.

Issues: The district court erred in (1) refusing to appoint an attorney for Appellant; (2) refusing to allow Appellant to amend his verified motion for postconviction relief.

S-09-1188, John Paul Arias (Appellant) v. State Patrol (Appellee)

Lancaster County --Judge Karen B. Flowers

Attorneys: John Paul Arias (Appellant)--- Stacy M. Foust, Attorney General’s Office

Civil: Administrative Procedures Act—Sex Offender Classification

Proceedings Below: The Lancaster County District Court affirmed the order of the Nebraska State Patrol (NSP) that John Paul Arias should be classified as a Level 3 sex offender.

Issues: The district court (1) erred in holding that NSP’s assessment was correct and Arias should be classified as a Level 3 sex offender for life; and (2) abused its discretion in refusing to rule on whether the Sex Offender Registration Act (SORA) as applied to Arias was unconstitutional.