Supreme Court Case Summaries

September 2, 3, 4 or 5, 2008

TUESDAY, September 2, 2008, subject to call at 9:00 a.m.

S-07-1069, State (Appellant) v. Steven Larkins

Lancaster County, Judge Steven Burns

Attorneys: Daniel D. Packard (County Attorney’s Office) (Appellant) --- Joel G. Lonowski (Morrow Poppe Watermeier & Lonowski PC LLO)

Criminal: Count I: Tampering with a witness; Count II: Use of a weapon to commit a felony.

Proceedings below: The district court sustained Larkins’ motion to dismiss counts I and II of the Second Amended Information for failure to prove a prima facie case. The State was granted leave to docket an appeal under Neb. Rev. Stat. § 29-2315.01.

Issues: The district court erred in sustaining Larkins’ oral motion to dismiss Counts I and II for failure by the State to prove a prima facie case.

S-07-0892, David V. Chebatoris, Special Administrator of the Estate of Sharon L. Moyer, Deceased (Appellant) v. John Bradley Moyer, db Ag Land LLC, Ron Moyer, Trustee of the Sharon L. Moyer Revocable Trust; Chris Moyer; and John and Jane Doe

Otoe County, Judge Randall Rehmeier

Attorneys: Timothy J. Buckley (Adams & Sullivan) (Appellant) – Joseph F. Bachmann & Jeanette Stull (Perry, Guthery, Haase & Gessford)

Civil: Accounting of Trust

Proceedings below:  The district court, upon receipt of evidence and pursuant to cross motions for summary judgment, granted Appellees’ motion for summary judgment. The court found that the trust document was sufficient to convey legal title in decedent’s real property to the trustee and that the trust document effectively transferred decedent’s personal property to the trust.
                                                                                                                            
Issue:  Did the district court err in (1) finding that the Sharon L. Moyer Revocable Trust document was sufficient to convey legal title to the decedent’s real property to the trustee of the trust, and (2) finding that the Sharon L. Moyer Revocable Trust document was sufficient to transfer the decedent’s personal property to the trustee of the trust.

S-07-0805,  In re: Amwest Surety Insurance Co.; State of Nebraska, ex rel. L. Tim Wagner, Director of Insurance of the State of Nebraska v. Gilbane Building Co. (Appellant)

Lancaster County, Judge John A. Colborn

Attorneys: Robert F. Craig (Robert F. Craig, P.C.) for appellant; Michael S. Degan and Theresa D. Koller (Blackwell Sanders LLP) and Robert Nefsky (Rembolt Ludtke LLP) for appellee

Civil: action to avoid and recover preferential transfers

Proceedings Below:  The district court granted summary judgment in favor of the Liquidator (Wagner) and denied Gilbane's motion for summary judgment.

Issue: Whether the district court erred in granting the Liquidator's motion for summary judgment and denying Gilbane's motion for summary judgment.

S-07-0881, Aramark Uniform & Career Apparel, Inc. (Appellant) v. Hunan, Inc., d/b/a Hunan Restaurant

Douglas County, Judge J. Patrick Mullen

Attorneys: Damien J. Wright (Welch Law Firm) (Appellant) – Mark Porto (Shamberg, Wolf, McDermott & Depue)

Civil: Enforcement of Arbitration Award

Proceedings below:  The American Arbitration Association awarded Aramark Uniform & Career Apparel, Inc. $13,144.54 against Hunan, Inc. The district court vacated the award.
                                                                                                                            
Issue:  Did the district court err in (1) failing to place the burden of proof upon Hunan, Inc. to sustain its motion to vacate; (2) failing to presume the validity of the arbitrator’s award and to defer to the arbitrator’s finding regarding the applicability of the Federal Arbitration Act (FAA); (3) placing the burden of proof upon Aramark Uniform & Career Apparel, Inc. (Aramark) to prove that the arbitration agreement was subject to the provisions of the FAA; (4) undertaking a de novo review of the applicability of the FAA; (5) concluding that the transaction at issue was not one within or affecting commerce so as to be subject to the FAA.; (6) denying Aramark’s motion to confirm the arbitration award.

S-07-1222, In re Interest of Dustin S., State v. Dustin S. (Appellant)

Wayne County Court, Judge Donna Farrell Taylor

Attorneys: Mandy R. Burkett (Appellant) --- Amy K. Wiebelhaus (County Attorney’s Office)

Criminal: Adjudication under Neb. Rev. Stat. § 43-247(1); Neb. Rev. Stat. § 28-311.08; unlawful intrusion.

Proceedings below: The Appellant entered admissions to the allegations in the petition. The trial court ordered a term of probation, with several conditions, one being six days spent in the Juvenile Detention Center in Madison, Nebraska.

Issues: The county court erred in sentencing the juvenile to the detention center as a condition of probation as it is not a disposition allowed under Neb. Rev. Stat. § 43-286(1).

WEDNESDAY, September 3, 2008, subject to call at 9:00 a.m.

S-07-1141, State v. Randy L. Claussen (Appellant)

Douglas County, Judge W. Mark Ashford

Attorneys: Thomas J. Garvey (Appellant) --- Kimberly A. Klein (Attorney General)

Criminal: Operating a motor vehicle to avoid arrest

Proceedings below: The trial court found Appellant guilty of the above crime. He was found to be a habitual criminal and sentence 10 to 10 years in prison.

Issues: The trial court erred in finding Appellant guilty of felony flight to avoid arrest without a predicate felony.

S-07-1322, State v. Joshua Albers (Appellant)

Dodge County, Judge John E. Sampson

Attorneys: Steven J. Twohig (Appellant) --- James D. Smith (Attorney General’s Office)

Criminal: Count I: Attempted Terroristic Threats; Count II: False Reporting; Count III: Third Degree Assault

Proceedings below: Appellant entered pleas of no contest to each of the charges. He was sentenced to one year imprisonment, to be served concurrently. The district court affirmed.

Issues: Whether the county court erred in (1) denying Appellant’s motion to preclude the prosecutor from reviewing the presentence investigation report; (2) imposing sentences that were excessive?

S-07-0648 Daniel R. Timmerman (Appellant) v. Beverly Neth, Director, State of Nebraska, Department of Motor Vehicles

Valley County, Judge Karin L. Noakes

Attorneys: Gregory G. Jensen (Appellant) --- Kevin J. Edwards (Attorney General’s Office)

Civil: Administrative License Revocation

Proceedings below:  The director revoked Appellant’s drivers’ license and the district court affirmed. The Court of Appeals dismissed the appeal for lack of jurisdiction under Rule 7A(2). Appellant filed a motion for rehearing which was granted. After further consideration, the Court of Appeals dismissed the appeal as being filed out of time. Appellant’s motion for rehearing was denied. Appellant filed a Petition for Further Review which was granted by the Nebraska Supreme Court.

Issues on Review: The Court of Appeals erred in determining that Appellant’s motion to alter or amend filed in the district court did not toll the time for filing an appeal from the district court’s decision.

S-07-0530, Jeremiah Johnson v. Beverly Neth, Director of the Nebraska DMV (Appellant)

Buffalo County, Judge John P. Icenogle

Attorneys: Milissa Johnson-Wiles (Assistant Attorney General) (Appellant) – Greg C. Harris

Civil: Administrative License Revocation

Proceedings below:  The district court vacated the order of the Director, which revoked Johnson’s driving privileges, due to the failure to properly complete the notary requirements of the law.

Issues: Whether the district court erred in finding that the sworn report of the law enforcement officer was not properly “sworn,” and thus did not confer jurisdiction on the DMV to revoke Johnson’s driver license under the Administrative License Revocation Act, because the notary failed to insert the acknowledging party’s name under the “acknowledged before me” portion of the attestation clause.

S-07-1108, State v. Michael J. Glover (Appellant)

Douglas County, Judge Gregory M. Schatz

Attorneys: Thomas J. Garvey (Appellant) --- James D. Smith (Attorney General’s Office)

Civil: Postconviction relief

Proceedings below: The trial court denied Appellant an evidentiary hearing and denied Appellant’s motion for postconviction relief.

Issues: Whether the trial court erred in (1) denying Appellant’s motion for evidentiary hearing? (2) denying Appellant’s motion for postconviction relief?

S-07-0010, Robert Henderson (Appellant) & State Law Enforcement Bargaining Council v. State of Nebraska & Nebraska State Patrol

Lancaster County, Judge Jeffre P. Cheuvront

Attorneys:  Vincent Valentino, Angle, Murphy, Valentino & Campbell and Michael B. Kratville (Appellant) --- Thomas E. Stine (Attorney General’s Office) ---John E. Corrigan (Dowd Howard Corrigan) (For Amicus Curiae National Troopers Association) ---Jane Bruke (For Amicus Curiae International Union Police Associations) --- David J. Kramer, Quinn H. Vandenberg (Baird Holm) (For Amicus Curiae Anti-Defamation League)

Civil:  Labor; Uniform Arbitration Act

Proceedings Below:  The district court vacated the reinstatement award granted by the arbitrator.

Issues:  Whether the district court erred in (1) vacating the arbitrator’s award based on a public policy exception; (2) failing to uphold the arbitrator’s award based on the Appellant’s violations of the collective bargaining agreement; (3) inserting its own personal perspectives regarding public employees’ duties.

THURSDAY, September 4, 2008, subject to call at 9:00 a.m.

S-07-0952, Skyline Woods Homeowners Association, Inc., The Villas at Skyline Woods Homeowner’s Association, Reed Emsick, Susan W. Hull, Gary Stoneburg, Jim Baird, Steve Alloway, Larry Pence, Wayne Harty, James Paben, Brian Beach and all persons similarly situated (Cross-Appellants) v. Liberty Building Corporation, A Nebraska Corporation, David A. Broekmeier, an individual, and Robin Broekmeier, an individual (Appellants)

Douglas County, Judge Peter Bataillon

Attorneys: David A. Domina, Brian E. Jorde (Domina Law Group pc llo) (Appellants) --- James D. Sherrets, Diana J. Vogt (Sherrets & Boecker, LLC) (Appellees/Cross-Appellants)

Civil: Enforceability of a restrictive covenant; request for injunctive relief

Proceedings below: The trial court found that bankruptcy could not terminate restrictive covenants. The trial court found that the property’s use was limited to an 18-hole championship golf course and if not operating as a golf course, the property had to be maintained in the same condition it would have been if it were operating as a golf course. The district court entered an injunction to the same respect. Appellees filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues: The trial court erred in (1) granting summary judgment for Appellees concluding the Bankruptcy Court’s judgment directing sale and delivery of title to Liberty Building Corp left the real estate encumbered by implied restrictive covenants limiting the property’s use to a golf course; (2) failing to recognize that no relief was in order against Broekmeiers; (3) ignoring Nebraska’s statutes governing the impact of unrecorded instruments.

Cross-Appeal: The trial court erred in (1) finding it could not order Appellants to operate the property as a golf course, or alternatively, order that it be sold to an entity that would operate it as a golf course; (2) dismissing the Appellees’ cause of action for nuisance.

S-07-0953, Paisley, L.L.C., a Nebraska Limited Liability Co. (Appellee/Cross-Appellant) v. Liberty Building Corporation, a Nebraska Corporation (Appellant)

Douglas County, Judge Peter Bataillon

Attorneys: David Domina, Brian E. Jorde (Domina Law Group pc llo) (Appellant) --- James E. Lang, Kathleen M. Foster (Laughlin Peterson & Lang) (Appellee/Cross-Appellant)

Civil: Breach of contract and trespass

Proceedings below: The trial court granted summary judgment in favor of Paisley finding Appellant was in breach of contract. The trial court found the Bankruptcy Court did not have the authority to divest the rights of property owners in covenants running with the land and that a bankruptcy court order to sell land free and clear of liens, encumbrances and interests does not invalidate non-monetary interest such as covenants running with the land. Appellee filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.                
Issues: The trial court erred in (1) granting summary judgment for Appellees concluding the Bankruptcy Court’s judgment directing sale and delivery of title to Liberty Building Corp left the real estate encumbered by implied restrictive covenants limiting the property’s use to a golf course; (2) failing to recognize that no relief was in order against Broekmeiers; (3) ignoring Nebraska’s statutes governing the impact of unrecorded instruments.

Cross-Appeal: The trial court erred in finding it could not order Appellants to operate the property as a golf course or alternatively, order that it be sold or leased to an entity that would operate it as a golf course.

S-07-0844, Becton, Dickinson and Company, a New Jersey Corp., and Becton Dickinson Infusion Therapy Systems, Inc., a Delaware Corp. (Appellants) v. Nebraska Department of Revenue, Mary Jane Egr Edson, Nebraska Tax Commissioner, and State of Nebraska

Lancaster County, Judge Paul D. Merritt, Jr.

Attorneys: Nicholas K. Niemann, Thomas O. Kelley, Matthew R. Ottemann (McGrath, North, Mullin & Kratz, PC LLO) for appellants; L. Jay Bartel (Attorney General's Office) for appellees

Civil: refund of sales and use taxes under LB 775; APA

Proceedings Below:  The district court denied Becton Dickinson's motion to remand the case back to the Department, sustained the Department's objections to exhibits, and affirmed the Tax Commissioner's denial of Becton Dickinson's sales and use tax refund claims.

Issues: Whether the district court erred in 1) denying Becton Dickinson's motion to remand the case to the Department for a formal administrative hearing, 2) ruling that an exhibit would not be received and considered by the district court, 3) failing to find that the Department should have issued Becton Dickinson a qualification letter when Becton Dickinson reached the $3 million/30 job threshold, and 4) deciding that the statute of limitations on Becton Dickinson's refund claims was not tolled during the Department's qualification audit.

S-07-1094, Tim McQueen and Karla McQueen (Intervenors) v. Thomas D. Farnsworth (Appellant)

Perkins County, Judge Donald E. Rowlands

Attorneys: Jacquelin Gay Leef (Sontag Goodwin & Leef) (Appellant Thomas D. Farnsworth) --- Lori A. Zeilinger, George M. Zeilinger (Appellees Kelli Farmsworth, Tim McQueen and Karla McQueen)

Civil: Modification of child custody

Proceedings below: The trial court found that Appellant failed to prove a material change in circumstances existed which would warrant a change in custody. The trial court did increase summer visitation with Appellant from 6 weeks to 8 weeks but left all other matters the same.

Issues: The trial court erred in (1) incorrectly requiring Appellant, the natural father, to show a “material change in circumstances” existed in order to obtain custody; (2) incorrectly applying “best interests of the child” standard; (3) failing to consider Appellant’s superior right to custody as the natural father of the minor children; (4) giving de facto parental rights to Intervenors/grandparents in violation of Appellant’s constitutional rights; (5) incorrectly interpreting the Child Custody Agreement; (6) failing to grant Appellant custody.

S-07-0780, Opal Shepard (Appellant) v. Stanley Andreasen and New York Life Insurance/ New York Life Insurance and Annuity Company

Burt County, Judge Darvid D. Quist

Attorneys: Gail E. Boliver (Appellant) --- Kevin R. Mcmanaman, Joseph A. Wilkins, Jocelyn W. Golden (Knudsen Berkheimer Richardson & Endacott LLP)

Civil: Negligence, breach of fiduciary duty, misrepresentation, negligent misrepresentation, negligent supervision and breach of contract; insurance

Proceedings below: The district court granted Appellee’s motion for summary judgment and denied Appellant’s motion to amend the pleadings. Appellant filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues: The district court erred in granting Appellee’s motion for summary judgment (1) when material facts were in dispute concerning conduct outside the class-action settlement period; (2) when material facts concerning the statute of limitations were in dispute; (3) based on an erroneous standard of “failure of proof regarding the various claims raised in the complaint.”

S-07-0933, Intralot (Appellat) v. Nebraska Department of Revenue (Appellee)

Lancaster County District Court – Judge Paul D. Merritt

Attorneys: Jon Bruning – Attorney General and L. Jay Bartel – Assistant Attorney General, (Appellee) – Andrew D. Stotman and Douglas R. Aberle – Cline, Williams, Wright, Johnson & Oldfather  (Appellant)

Civil: Appeal of a consumer’s use tax deficiency assessment issued by the Nebraska Department of Revenue to Intralot.

Proceedings Below: The district court affirmed a deficiency assessment for Nebraska use tax issued to Intralot by the Nebraska Department of Revenue.

Issues: Whether the district court erred in concluding that Intralot’s purchases of thermal paper and play slips constituted a “taxable use,” thus subjecting Intralot to Nebraska’s consumer’s use tax.

FRIDAY, September 5, 2008, subject to call at 9:00 a.m.

S-07-732, Marylin Ehlers (Appellant) v. State of Nebraska (Appellee)

Adams County, Judge Terri S. Harder

Attorneys: Michael J. Elsken of Nebraska Advocacy Services (Appellant); Jon Bruning and Michael J. Rumbaugh of the Attorney General’s Office (Appellee)
 
Civil: Personal Injury

Proceedings Below: The district court granted State’s motion for summary judgment.  

Issues: Whether genuine issues of material fact exist regarding the Hastings Regional Center’s foreseeability that third parties might cause harm to individuals such as the plaintiff.
                       

S-07-0905, Upper Big Blue Natural Resources District, a Political Subdivision of the State of Nebraska (Appellant) v. State of Nebraska, Department of Natural Resources, an Executive Department of the State of Nebraska; and Ann S. Bleed, in her official capacity as the Director of the Department of Natural Resources (Cross-Appellants)

S-07-0906, Upper Big Blue Natural Resources District, a Political Subdivision of the State of Nebraska (Appellant) v. State of Nebraska, Department of Natural Resources, an Executive Department of the State of Nebraska, and Ann S. Bleed, in her official capacity as the Director of the Department of Natural Resources v. Little Blue Natural Resources District, a Political Subdivision of the State of Nebraska

Lancaster County, Judge Jeffre Cheuvront

Attorneys: Steven G. Seglin, Thomas E. Jeffers (Crosby Guenzel LLP) (Appellants) --- David D. Cookson, Justin D. Lavene (Attorney General’s Office)

Civil: Declaratory Judgment; Review under the Administrative Procedure Act

Proceedings below: The trial court in Case I found that the State had not waived sovereign immunity under the Declaratory Judgment Act and dismissed the case against the State. However, the trial court allowed the case to proceed against the Director. The trial court also found that it had jurisdiction under § 84-911 to determine the validity of Title 457 Neb. Admin. Code, Ch. 24 as adopted by the Department. The trial court found the Department did not exceed their statutory authority in the adoption of 457 NAC 24.
            In Case II, the court found it has jurisdiction but the record was insufficient for review except for the issue regarding the validity of Title 457 Neb. Admin. Code, Ch. 24. The trial court found 457 NAC 24 a valid regulation.
            Appellant Upper Big Blue Natural Resources District filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues: The trial court erred in (1) Case I by finding the Department and Director did not exceed their statutory authority under the Act; (2) Case I by finding that the Department and the Director did not exceed their statutory authority by promulgating and interpreting Title 457 Neb. Admin. Code, Ch. 24; (3) Case II by refusing to decide whether the Department and Director exceeded their statutory authority under the Act; (4) Case II by finding that the Department and Director did not exceed their statutory authority by promulgating and interpreting Title 457 Neb. Admin. Code, Ch. 24.

Cross-Appeal: The district court erred in ruling against the Department on its claim that it lacked jurisdiction to hear Appellant’s claims in Case II.

S-07-1016, BryanLGH Medical Center (Cross-Appellant) v. Nebraska Department of Health and Human Services Regulation and Licensure and Jo Ann Schaefer, M.D. v. Madonna Rehabilitation Hospital (Intervenor-Appellant)

Lancaster County, Judge Earl J. Witthoff

Attorneys: Loel P. Brooks (Brooks Pansing Brooks PC LLO) and Steven G. Seglin, Thomas E. Jeffers (Crosby Guenzel LLP) (Appellant) --- Kirk S. Blecha, Barbara E. Person (Baird Holm LLP) (BryanLGH Medical Center)

Civil: Declaratory and injunctive relief; Nebraska Health Care Certificate of Need Act, Neb. Rev. Stat. §§ 71-5801 to 71-5870

Proceedings below: BryanLGH sought a permanent injunction prohibiting the Department from requiring BryanLGH to obtain a Certificate of Need (CON) to increase the number of rehabilitation beds by 10 and a permanent injunction requiring the Department to proceed with a survey and other administrative procedures necessary to qualify BryanLGH 10 acute care beds as rehabilitation beds. The district court allowed Madonna to intervene over the objection of BryanLGH. The district court granted BryanLGH’s motion for summary judgment, entered declaratory judgment in favor of BryanLGH and enjoined the Department from requiring BryanLGH from obtaining a CON. The district court also ordered the Department to proceed with a survey and other administrative procedures necessary to qualify BryanLGH’s 10 beds for Medicare and Medicaid reimbursement as rehabilitation beds. Appellant Madonna filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues: The district court erred in (1) failing to give considerable weight and deference to the Department’s interpretation of the phrase “total bed capacity” found in Neb. Rev. Stat. § 71-5829.03(2); (2) finding that the definition of “health care facility” found in §71-5803.06 controls the meaning of “total bed capacity” found in § 71-5829.03(2); (3) granting BryanLGH’s motion for summary judgment based on the court’s interpretation of § 71-5829.03(2); (4) failing to grant the Department’s motion for summary judgment; (5) finding that BryanLGH has the right to request Medicare-certification of 10 of its currently licensed acute care beds as rehabilitation beds, without obtaining a CON; (6) granting BryanLGH a permanent injunction prohibiting the Department from requiring BryanLGH to obtain a CON for 10 of the currently licensed acute care beds to be Medicare certified as rehabilitation beds; (7) granting BryanLGH a permanent injunction requiring the Department to proceed with survey and other administrative procedures necessary to qualify BryanLGH’s 10 beds for Medicare-certified reimbursement as rehabilitation beds.

Cross-Appeal: The district court erred in (1) finding that Madonna possesses a direct and legal interest in the outcome of the case sufficient to permit Madonna to intervene; (2) finding that the Department could not adequately represent Madonna’s interest.

S-07-1136, In re Interest of Joel A.

Separate Juvenile Court for Douglas County, Judge Elizabeth G. Crnkovich

Attorneys: Jefferson Downing, Joel Bacon (Keating O’Gara, Nedved & Peter PC LLO) (Appellants, Josue A. and Mary A.) --- Nicole Brundo Goaley (County Attorney’s Office)

Civil: Juvenile petition under Neb. Rev. Stat. § 43-247, failure to comply with Neb. Rev. Stat. §§ 71-519 to 71-524 (Reissue 2004 and Cum. Supp. 2006), Nebraska Newborn Screening Program

Proceedings below: The trial court found that the Newborn Screening statutes did not interfere with the Appellants’ right of conscience protected by the Nebraska Constitution, the State did not violate Appellants’ substantive due process rights or procedural due process and the juvenile code permitted the State to keep custody over the minor child until the test results had been returned.

Issues: The juvenile court erred in (1) ordering the newborn screening tests in violation of the Appellants’ rights of conscience protected by the Religious Freedom Clause of the Nebraska Constitution; (2) concluding that permitting the State to seize Joel A. and keep custody of him until the results from the newborn screening test were returned did not violate the Appellants’ substantive due process right to familial relations; (3) violating the Appellants’ substantive due process rights in expanding the duration and scope of the detention beyond what was necessary to complete the newborn screening test; (4) granting the ex parte motion to seize Joel A. because procedural due process required pre-deprivation notice and a hearing; (5) failing to conduct the detention hearing of October 12, 2007 in a fair and impartial manner; (6) concluding that at the hearing on October 12, 2007, the State met is burden to show why the detention of Joel A. should be continued.

S-04-0443 and S-04-1326, State v. Jorge Galindo (Appellant)

Madison County, Judge Robert B. Ensz

Attorneys: Douglas J. Stratton, Andrew D. weeks (Stratton & Kube PC) (Appellant) --- Kimberly A. Klein (Attorney General’s Office)

Criminal: In case S-04-1326: Five counts of first degree murder; five counts of use of a weapon to commit a felony. In consolidated case S-04-0443: robbery, burglary and use of a weapon to commit a felony.

Proceedings below: In S-04-0443, Appellant was found guilty of the crimes and sentenced 15 to 20 years for robbery; 10 to 10 years for burglary and 15 to 20 years for use of a weapon. In S-04-1326, Appellant was found guilty by a jury on all counts. A sentencing panel imposed the sentence of death for the 5 murder convictions. He was sentenced to 50 years for each use of a weapon charge.

Issues: The district court erred in (1) finding that L.B. 1, as applied to Appellant, did not increase the punishment for first degree murder in violation of the Ex Post Facto clause of the U.S. Const. Art. I, § 10 and Neb. Const. Art. I, § 16 when the maximum penalty for first degree murder was life in prison on September 26, 2002, the day the murders occurred; (2) finding that the changes made to Nebraska’s Death Penalty statutes by L.B. 1 were procedural, on the whole ameliorative, and not in violation of the Ex Post Facto clause of the U.S. Const. Art. I, § 10 and Neb. Const. Art. I, § 16; (3) finding that L.B. 1, as applied to Appellant, did not violate the Due Process Clause of Const. Amend. V. and XIV and Neb. Const. Art. I, § 3 when the sentencing procedure was changed after September 26, 2002, the date the murders occurred; (4) finding that L.B. 1, as applied to Appellant, was not a Bill of Attainder, in violation of U.S. Const. Art. I, § 10 and Neb. Const. Art. I, § 16; (5) finding that L.B. 1, as applied to Appellant, did not violate the Due Process Clause of the U.S. Const. Amend. V. and XIV and Neb. Const. Art. I, § when there was no notice of aggravation in the original information; (6) finding that L.B. 1, as applied to Appellant, did not violate the Due Process and Confrontation Clauses of U.S. Const. Amend V, VI and XIV and Neb. Const. Art. I, § 3 and 11 when the three judge panel was allowed to receive as evidence the transcript from the aggravation phase; (7) finding that L.B. 1, as applied to Appellant, did not violate the Due Process and Confrontation Clauses of U.S. Const. Amend V, VI and XIV and Neb. Const. Art. I, § 3 and 11 when the three judge panel was allowed to receive as evidence the presentence investigation report; (8) finding that L.B. 1, as applied to Appellant, did not create an unconstitutional inducement to waive Appellant’s right to a jury finding of aggravators as required by U.S. Const. Amend VI and Ring v. Arizona, 536 U.S. 584 (2002) when a jury was only required to be unanimous as to aggravators, but a three judge panel must be unanimous as to factual findings in support of aggravators; (9) over-ruling Appellant’s motion to quash the information in violation of his right to due process and fair notice under U.S. Const. Amend. V, VI and XIV and Neb. Const. Art. I § 3 and 11 when the information alleged first degree murder in the alternative as premeditated or felony murder; (10) over-ruling Appellant’s objections to jury instructions and in not giving Appellant’s proffered step instruction on felony murder as required by Enmund v. Florida, 458 U.S. 782 (1982) and Tison v. Arizona, 481 U.S. 137 (1987); (11) overruling Appellant’s motion’s for change in venue in violation of the right to due process and a fair trial as guaranteed by U.S. Const. Amend. V, VI and XIV and Neb. Const. Art. I, § 3,6 and 11; (12) making inappropriate comments to the jury prior to jury selection in violation of U.S. Const. Amend. V, VI and XIV and Neb. Const. Art. I, § 3, 6 and 11; (13) not striking certain members of the jury during jury selection in violation of his right to Due Process and a fair trial as guaranteed by U.S. Const. Amend. V, VI and XIV and Neb. Const. Art. I, § 3, 6, and 11; (14) not receiving as evidence the sentencing orders from all Nebraska first degree murder cases for purposes of sentence excessiveness and proportionality review in violation of Appellant’s right to Due Process, a fair trial, and freedom from cruel and unusual punishment in violation of U.S. Const. Amend. V, VI, VIII and XIV and Neb. Const. Art. I, § 3, 6, 9 and 11; (15) allowing victim impact statements in violation of Neb. Rev. Stat. § 81-1848 (2004 Cum. Supp.) and Appellant’s right to Due Process, a fair trial, and freedom from cruel and unusual punishment as guaranteed by U.S. Const. Amend. V, VI, VIII and XIV and Neb. Const. Art. I, § 3, 6, 9 and 11; (16) finding that Nebraska’s use of the electric chair as its sole means of execution did not violate the Appellant’s right to be free from cruel and unusual punishment as guaranteed by U.S. Const. Amend. VIII and Neb. Const. Art. I, § 9; (17) weighing non-statutory aggravators against mitigators in violation of Neb. Rev. Stat § 29-2521 (2004 Cum. Supp.), § 29-2522 (2004 Cum. Supp.), § 29-2523 (2004 Cum. Supp.) and Appellant’s right to due process, a fair trial and protection from cruel and unusual punishment as guaranteed by U.S. Const. Amend. V, VI, VIII and XIV and Neb. Const. Art. I, § 3, 6, 9, and 11 and Furman v. Georgia, 408 U.S. 238 (1972); (18) receiving into evidence the photograph of Travis Lundell, when the location of his body was stipulated to and the State’s pathologist could not determine a cause of death in violation of Neb. Rev. Stat. § 27-403 (Reissue 1995) and Appellant’s right to due process, a fair trial, and freedom from cruel and unusual punishment as guaranteed by U.S. Const. Amend. VI, VIII, and XIV and Neb. Const. Art. I, § 3, 6, 9, and 11, and Furman v. Georgia; (19) prohibiting the Appellant from life qualifying the jury in violation of Morgan v. Illinois, 504 U.S. 719 (1992) and the Appellant’s right to due process, a fair trial, and freedom from cruel and unusual punishment as guaranteed by U.S. Const. Amend. V, VI, VIII and XIV and Neb. Const. Art. I, § 3, 6, and 11 and Furman v. Georgia; (20) minimizing the jury’s role in violation of Caldwell v. Mississippi, 472 U.S. 320 (1985), right to due process, a fair trial and freedom from prohibition against cruel and unusual punishment as guaranteed by U.S. Const. Amend. V, VI, VIII, and XIV and Neb. Const. Art. I, § 3, 6, 9, and 11.