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The NE Law Express is available
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Nebraska
State Bar Association NE Law Express
for January 12, 2007
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| Case
Summaries |
| Annexation,
Statutes |
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Back
to ShortCuts
The question
of whether the City of Omaha properly annexed the City of Elkhorn
is here addressed by the Nebraska Supreme Court, which finds that
Omaha acted in compliance with Nebraska’s statutes regarding
open meetings and annexation. The City of Elkhorn ceased to exist
as a separate municipality on 03/24/05.
City
of Elkhorn v. City of Omaha, 272 Neb. 867 (2007)
Supreme
Court Headnotes
Annexation:
- [Ordinances:]
(Equity.) An action to determine the validity of an annexation
ordinance and enjoin its enforcement sounds in equity.
Actions:
- [Equity:]
(Public Meetings: Appeal and Error.) An appellate court reviews
actions for relief under the Open Meetings Act in equity because
the relief sought is in the nature of a declaration that action
taken in violation of the act is void or voidable.
Equity:
- [Appeal
and Error.] On appeal from an equity action, an appellate court
decides factual questions de novo on the record and, as to questions
of both fact and law, is obligated to reach a conclusion independent
of the trial court's determination.
Statutes.
- Statutory
interpretation presents a question of law.
- [Appeal
and Error.] In the absence of anything to the contrary, an appellate
court will give statutory language its plain and ordinary meaning.
••• It is not within an appellate court's province
to read a meaning into a statute that is not there. •••
An appellate court will not read anything plain, direct, or unambiguous
out of a statute. ••• If possible, an appellate court
will try to avoid a statutory construction which would lead to an
absurd result.
Constitutional
Law.
- Constitutional
interpretation is a question of law.
- [Intent.]
Constitutional provisions are not open to construction as a
matter of course; construction is appropriate only when it has been
demonstrated that the meaning of the provision is not clear and
therefore construction is necessary. ••• The words
in a constitutional provision must be interpreted and understood
in their most natural and obvious meaning unless the subject indicates
or the text suggests that they are used in a technical sense.
Judgments:
- [Appeal
and Error.] When reviewing questions of law, an appellate court
resolves the questions of law independently of the trial court's
conclusions.
Public Meetings:
- Informational
sessions of less than a quorum of a public body's members do not
constitute public meetings under the Open Meetings Act.
- [Ordinances.]
The reading of ordinances constitutes a formal action under Neb.
Rev. Stat. § 84-1414(1) (Cum. Supp. 2004).
- [Legislature:]
(Notice.) Under Neb. Rev. Stat. § 84-1411(1) (Cum. Supp.
2004), the Legislature has imposed only two conditions on the public
body's notification method of a public meeting: (1) It must give
reasonable advance publicized notice of the time and place of each
meeting and (2) it must be recorded in the public body's minutes.
••• Any defect in notice intended for the benefit
of a public body's members does not invalidate a meeting of the
public body when all of the members attend without objection.
- [Statutes:]
(Appeal and Error.) An appellate court construes public meetings
laws broadly so as to obtain the objective of openness in favor
of the public.
Municipal
Corporations:
- [Annexation:]
Substantial adjacency between a municipality and annexed territory
exists when a substantial part of the municipality's boundary is
adjacent to a segment of the boundary of the city or village. •••
A municipality may annex several tracts as long as one tract is
substantially adjacent to the municipality and the other tracts
are substantially adjacent to each other. ••• Under
the "contiguous or adjacent" standard in annexation statutes,
municipalities are not required to have common boundaries with the
territory to be annexed, and they may annex territory nearby in
proximity through the simultaneous annexation of a substantial link
of connecting territory. ••• The "contiguous
or adjacent" standard for annexations also applies to "adjoining
city" under Neb. Rev. Stat. § 14-117 (Cum. Supp. 2006).
(Standing.) A municipality that is in the crosshairs of annexation
has standing to challenge the annexation. (Legislature: Intent.)
Under Neb. Rev. Stat. § 14-117 (Cum. Supp. 2006), the Legislature
intended to permit a metropolitan city to extend its corporate limits
so that it adjoins the corporate limits of a city to be annexed.
Annexation:
- [Jurisdiction.]
The prior jurisdiction rule is not applicable when different territories
are the subject of the competing annexations.
- [Statutes:]
(Words and Phrases.) The terms contiguous and adjacent in annexation
statutes are synonymous.
- [Words
and Phrases.] The terms "contiguous" and "adjoining"
in Neb. Rev. Stat. § 14-117 (Cum. Supp. 2006) are synonymous.
Date Filed
and Case No.: January 12, 2007. S-05-1006.
Internet
Address: http://www.court.state.ne.us/opinions/2007/january/jan12/s05-1006.htm
Court Appealed
From: District Court for Douglas County: Gerald E. Moran, Judge.
Attorneys
for the Appeal: Jeff C. Miller and Duncan A. Young for City
of Elkhorn, Nebraska, a municipal corporation, et al., appellants
and cross-appellees. William M. Lamson, Jr., Lawrence F. Harr, Craig
F. Martin, Paul D. Kratz and Alan M. Thelen for City of Omaha, Nebraska,
a municipal corporation, et al., appellees and cross-appellants.
Justices:
Wright, Connolly, Gerrard, Stephan, McCormack, and Miller-Lerman,
JJ., and Hannon, Judge, Retired.
Not Participating:
Heavican, C.J.
Authored
By: Connolly, J.
Summary:
The City of Omaha, Nebraska, and the City of Elkhorn, Nebraska,
raced to pass ordinances to annex territories that would expand
their respective boundaries. Omaha's ordinances sought to annex
land that would make it contiguous and adjacent to Elkhorn, thus
allowing Omaha to annex Elkhorn. Elkhorn's annexation ordinance,
on the other hand, sought to annex surrounding sanitary improvement
districts (SIDs) to raise Elkhorn's population to over 10,000, which
would immunize it from unilateral annexation by Omaha under Neb.
Rev. Stat. § 14-117 (Cum. Supp. 2006). Despite Elkhorn's attempt
to annex the SIDs without Omaha's knowledge, Omaha learned of Elkhorn's
efforts, and the race was on.
In what the
opinion describes as the “home stretch, ”on 02/22/05,
Elkhorn published notice of a special meeting regarding the annexation
of the SID’s for March 1. On February 25, Omaha published notice
of a public hearing and administrative meeting of the Omaha Planning
Board for Wednesday, March 2, regarding annexation of Elkhorn. It
also published notice of its precouncil briefing and regular city
council meeting for March 1. On Tuesday, 03/01/05, Omaha held a
public meeting at which it read the annexation ordinance for the
second time. Omaha city department heads briefed every member of
the Omaha City Council on the annexation issues in three nonpublic
meetings conducted at 8:30, 9:30, and 11:30 a.m. No more than three
council members attended a briefing. The department heads' briefings
occurred before and after the public precouncil meeting at 10:30
a.m. None of the council members asked questions about the annexation
at the public precouncil meeting. Also, on March 1, Elkhorn published
its annexation resolution and notice of a public meeting to be held
on March 11 for consideration of its plans.
On 03/02/05,
the Omaha Planning Board conducted a public hearing and approved
the ordinances annexing Elkhorn. At the Omaha City Council's regularly
scheduled meeting on March 8, the ordinances were read for the third
time. The council voted to adopt annexation ordinance No. 36947.
Falling behind, Elkhorn, on 03/08/05 published notices of special
meetings for March 14 and 15. On March 11, Elkhorn conducted a public
hearing, at which the planning commission recommended approval of
the annexation plans and the ordinances were read for the first
time. At the March 14 meeting, Elkhorn's ordinances were read for
the second time. On March 15, 7 days after Omaha had adopted its
ordinance, Elkhorn's annexation ordinances were read for the final
time and the city council voted to adopt them.
On 03/09/05,
Elkhorn filed a complaint, seeking a temporary injunction and a
declaration that Omaha's ordinance was invalid. On March 17, Omaha
filed an answer, with affirmative defenses and a counterclaim for
a temporary restraining order and temporary and permanent injunctions
against Elkhorn's ordinances. In addition, Omaha sought a declaration
that its ordinance was valid and that Elkhorn's ordinances were
invalid. A temporary injunction was issued by the district court,
with the agreement of the parties. In August 2005, Elkhorn filed
its operative complaint alleging that (1) Omaha had violated the
Open Meetings Act (the Act), Neb. Rev. Stat. §§ 84-1407
to 84-1414 (Reissue 1999 & Cum. Supp. 2004); (2) Elkhorn had
taken the first valid step toward annexation, thereby preempting
Omaha's annexation proceedings; (3) Omaha could not annex Elkhorn
because the corporate limits of the cities did not adjoin; (4) the
Nebraska Constitution prohibited the annexation without a vote;
and (5) Omaha's annexation was an unsound and arbitrary response
to Elkhorn's annexation plan.
Following a
bench trial, the court rejected all of Elkhorn's claims that Omaha's
ordinance was invalid. Accordingly, the court permanently enjoined
Elkhorn from enforcing its ordinances and declared that Elkhorn
would cease to be a city of the first class as of the date the order
was filed if Elkhorn did not file an appeal. Elkhorn filed a notice
of appeal on 08/19/05 and on the same day, the court entered a supersedeas
order, enjoining both parties from enforcing their ordinances pending
the appeal to the Nebraska Supreme Court .
In the opinion,
the Court, said that the pivotal issue is whether Omaha, in adopting
its annexation ordinance, "jumped the gun" by violating
the Act, thus voiding its ordinance. The Court concluded that the
Omaha City Council did not violate the Act during meetings it held
on 02/22/05 or 03/01/05. “We further conclude that the prior
jurisdiction rule did not apply to abate Omaha's annexation proceedings;
that § 14-117 authorized Omaha to annex Elkhorn, despite the
lack of a common municipal border; and that Neb. Const. art. XV,
§ 18(2), did not apply to require a vote on the annexation.”
Finally, the Court concluded that Elkhorn ceased to exist as a separate
municipality on 03/24/05, the date that Omaha's annexation ordinance
became effective. “Elkhorn's annexation ordinances were accordingly
nullified before they took effect” they ruled. AFFIRMED.
|
| Attorney
Discipline, Repeated Neglect of Matters
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Back
to ShortCuts
Due to serious
concerns with an attorney’s repeated neglect of matters entrusted
to her, the Nebraska Supreme Court here suspends the attorney for
12 months along with, should she wish reinstatement thereafter,
be followed by a 2 year probationary period.
State
ex rel. Counsel for Dis. v. Wickenkamp, 272 Neb. 889 (2007)
Supreme
Court Headnotes
Disciplinary
Proceedings.
- A proceeding
to discipline an attorney is a trial de novo on the record. •••
Violation of a disciplinary rule concerning the practice of law
is a ground for discipline. ••• The basic issues
in a disciplinary proceeding against a lawyer are whether discipline
should be imposed and, if so, the type of discipline appropriate
under the circumstances. ••• Each attorney discipline
case must be evaluated individually in light of its particular facts
and circumstances. ••• For purposes of determining
the proper discipline of an attorney, the Nebraska Supreme Court
considers the attorney's acts both underlying the events of the
case and throughout the proceeding. ••• The determination
of an appropriate penalty to be imposed on an attorney in a disciplinary
proceeding requires the consideration of any aggravating or mitigating
factors.
- [Proof.]
To sustain a charge in a disciplinary proceeding against an
attorney, a charge must be supported by clear and convincing evidence.
- [Appeal
and Error.] When no exceptions to the referee's findings of
fact are filed by either party in an attorney discipline proceeding,
the Nebraska Supreme Court may, in its discretion, consider the
referee's findings final and conclusive.
Date Filed
and Case No.: January 12, 2007. No. S-05-1251.
Internet
Address: http://www.court.state.ne.us/opinions/2007/january/jan12/s05-1251.htm
Court Appealed
From: Original action.
Attorneys
for the Appeal: John W. Steele, Assistant Counsel for Discipline,
for State of Nebraska ex rel. Counsel for Discipline of the Nebraska
Supreme Court, relator. Mary C. Wickenkamp, Mary C. Wickenkamp,
respondent.
Justices:
Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack, and
Miller-Lerman, JJ.
Authored
By: Per Curiam.
Summary:
On 10/14/05, formal charges were filed by the office of the
Counsel for Discipline, relator, against Mary C. Wickenkamp, respondent.
Respondent's answer disputed the allegations. A referee was appointed
who heard evidence. The substance of the referee's findings were
that respondent was admitted to the practice of law in the State
of Nebraska in 1980 and practiced in Lancaster County, Nebraska.
With regard to count I of the formal charges Wickenkamp was retained
by Mauro Martinez in May 2004, to represent him in a postconviction
action in district court and Martinez attempted unsuccessfully to
contact Wickenkamp by telephone and by mail and filed a grievance
with relator regarding Wickenkamp's failure to file the postconviction
application. Wickenkamp sent a letter to relator, claiming that
she had filed the application but relator advised Wickenkamp that
the application had not been filed.
With regard
to count II of the formal charges, the referee found that in August
2002, Wickenkamp was retained by Barbara White to represent White's
son, Christopher Graybill, in a postconviction action. White paid
Wickenkamp a $5,000 retainer. Thereafter, Wickenkamp conducted some
investigation into filing a postconviction action on behalf of Graybill
but failed to actually file the postconviction action. Wickenkamp
claimed that she advised Graybill that she would not file the action
however no evidence was offered at the hearing showing any correspondence
between Wickenkamp and Graybill advising Graybill that Wickenkamp
would not be filing the postconviction action.
With regard
to count III the referee found that during Wickenkamp's representation
of Graybill concerning the possible postconviction action, White
and Graybill contacted Wickenkamp regarding an appeal of a prison
administrative matter brought against Graybill for his involvement
in a fight with another prisoner. Wickenkamp advised White and Graybill
that $1,200 of the original $5,000 retainer remained and that she
would apply the $1,200 to her representation of Graybill in the
administrative appeal. While the administrative appeal was pending,
the State filed in county court an assault charge against Graybill
stemming from the prison incident. Pursuant to Graybill's request,
Wickenkamp agreed to represent Graybill in the assault case for
an additional fee. Wickenkamp filed a plea in bar on the basis of
double jeopardy and attended a hearing thereon. The county court
gave Wickenkamp until April 21 to file a posthearing brief but the
brief was not delivered to the judge. The referee found that the
county court, having not received Wickenkamp's brief, overruled
Wickenkamp's plea in bar. At some point, an appeal in connection
with the plea in bar was filed in the Nebraska Court of Appeals,
and the Court of Appeals, without opinion, summarily affirmed the
county court's judgment. Wickenkamp claimed that she notified Graybill
of the Court of Appeals' decision but Graybill denied receiving
notice from Wickenkamp and Wickenkamp offered no evidence during
the hearing showing that a transmittal letter or any other type
of correspondence had been sent to Graybill,
Based upon the
evidence offered during the hearing, the referee found that Wickenkamp's
actions constituted a violation of Wickenkamp's oath of office as
an attorney and the following provisions of the Code of Professional
Responsibility: DR 1-102(A)(1), (4), and (5); DR 6-101(A)(3); and
DR 7-101(A)(2). With respect to the discipline to be imposed, the
referee recommended that Wickenkamp receive a public reprimand and
be placed on probation for a period of 12 months, during which probationary
period, Wickenkamp would engage and work with a practicing attorney
to monitor Wickenkamp's practice.
No exceptions
were filed to the referee's report and relator filed a motion for
judgment on the pleadings, in which relator moved this court to
enter judgment in conformity with the referee's report and recommendation.
The parties urged the court to accept the referee's findings and
recommended discipline. The Court considered the referee's report
and recommendation, the findings of which have been established
by clear and convincing evidence, and the applicable law. In his
report, the referee recommended that with respect to the discipline
to be imposed, Wickenkamp should receive a public reprimand and
be placed on probation for a period of 12 months, during which probationary
period, Wickenkamp would engage and work with a practicing attorney
to monitor Wickenkamp's practice.
The Court disagreed
with the referee's recommendation, being seriously concerned with
Wickenkamp's repeated neglect of matters entrusted to her. The Court
further noted that the record reflected Wickenkamp has received
two prior private reprimands, one of which involved similar neglectful
conduct, which it considered as aggravating factors in imposing
discipline in this case. “Upon due consideration of the record,
the court finds that Wickenkamp should be and hereby is suspended
from the practice of law for a period of 12 months, effective immediately.”
At the end of the 12-month suspension period, Wickenkamp might apply
to be reinstated to the practice of law, provided that Wickenkamp
has demonstrated her compliance with rule 16, and further provided
that relator has not notified the Court that Wickenkamp violated
any disciplinary rule during her suspension. Should Wickenkamp apply
for reinstatement, her reinstatement, if granted, should be conditioned
by probationary rules set out in the opinion for a period of 2 years
following reinstatement. JUDGMENT OF SUSPENSION.
|
| Jury
Trial, Improper Contact with Juror
|
|
Back
to ShortCuts
In this appeal
of a first degree murder conviction, the Nebraska Supreme Court
reverses the verdict because of improper contact between a bailiff
and member of a deliberating jury.
State
v. Floyd, 272 Neb. 898 (2007)
Supreme
Court Headnotes
Criminal
Law:
- [Motions
for New Trial:] (Appeal and Error.) In a criminal case, a motion
for a new trial is addressed to the discretion of the trial court,
and unless an abuse of discretion is shown, the trial court's determination
will not be disturbed.
- [Jury Misconduct:]
(Proof.) A criminal defendant claiming jury misconduct bears
the burden of proving, by a preponderance of the evidence, (1) the
existence of jury misconduct and (2) that such misconduct was prejudicial
to the extent that the defendant was denied a fair trial.
- [Trial:]
(Jurors: Presumptions: Proof.) In a criminal case, misconduct
involving an improper communication between a nonjuror and a juror
gives rise to a rebuttable presumption of prejudice which the State
has the burden to overcome.
- [Evidence:]
(New Trial: Appeal and Error.) Upon finding error in a criminal
trial, the reviewing court must determine whether the evidence offered
by the State and admitted by the trial court, whether erroneously
or not, would have been sufficient to sustain the conviction before
the cause is remanded for a new trial.
- [Motions
for Mistrial:] (Appeal and Error.) A mistrial is properly granted
in a criminal case where an event occurs during the course of a
trial which is of such a nature that its damaging effect cannot
be removed by proper admonition or instruction to the jury and thus
prevents a fair trial.
Judgments:
- [Words
and Phrases.] An abuse of discretion occurs when a trial court's
decision is based upon reasons that are untenable or unreasonable
or if its action is clearly against justice or conscience, reason,
and evidence.
Juries:
- [Discrimination:]
(Appeal and Error.) A trial court's determination of whether
a party has established purposeful discrimination in jury selection
is a finding of fact and is entitled to appropriate deference from
an appellate court because such a finding will largely turn on evaluation
of credibility. ••• A trial court's determination
that there was no purposeful discrimination in a party's use of
his or her peremptory challenges and a trial court's determination
of the adequacy of a party's neutral explanation of its peremptory
challenges are factual determinations that will not be reversed
on appeal unless clearly erroneous. (Prosecuting Attorneys: Proof.)
The evaluation of whether a party has used peremptory challenges
in a racially discriminatory manner is a three-step process. First,
the trial court must determine whether the defendant has made a
prima facie showing that the prosecutor has exercised peremptory
challenges on the basis of race. Second, if the requisite showing
has been made, the burden shifts to the prosecutor to present a
race-neutral explanation for striking the juror in question. Third,
the trial court must then determine whether the defendant has carried
his or her burden of proving purposeful discrimination. •••
Although the prosecutor must present a comprehensible reason, the
second step in the evaluation of whether a party has used peremptory
challenges in a racially discriminatory manner does not demand an
explanation that is persuasive, or even plausible; so long as the
reason is not inherently discriminatory, it suffices. •••
The final step in the evaluation of whether a party has used peremptory
challenges in a racially discriminatory manner involves evaluating
the persuasiveness of the justification proffered by the prosecutor,
but the ultimate burden of persuasion regarding racial motivation
rests with, and never shifts from, the opponent of the strike. (Proof.)
A defendant satisfies the requirements of the first step in the
evaluation of whether a party has used peremptory challenges in
a racially discriminatory manner by producing evidence sufficient
to permit the trial judge to draw an inference that discrimination
has occurred. ••• It is fundamental that a party
claiming discrimination in the use of peremptory challenges make
a record which supports an inference of discriminatory purpose.
Facts must be included in the record by sworn testimony, exhibits,
stipulations, admissions, or judicial notice.
Motions for
Mistrial:
- [Appeal
and Error.] The decision whether to grant a motion for mistrial
is within the discretion of the trial court and will not be disturbed
on appeal in the absence of an abuse of discretion.
- [Prosecuting
Attorneys: Proof.] Before it is necessary to grant a mistrial
for prosecutorial misconduct, the defendant must show that a substantial
miscarriage of justice has actually occurred.
Jury Misconduct.
- The question
of whether prejudice resulted from jury misconduct must be resolved
by the trial court's drawing reasonable inferences as to the effect
of the extraneous information on an average juror.
Double Jeopardy:
- [Appeal
and Error.] Although the Double Jeopardy Clauses of the federal
and state Constitutions do not protect against a second prosecution
for the same offense where a conviction is reversed for trial error,
they bar retrial if the reversal is necessitated because the evidence
was legally insufficient to sustain the conviction.
Equal Protection:
- [Jurors:]
(Discrimination.) The Equal Protection Clause of the 14th Amendment
forbids prosecutors from using peremptory challenges to strike potential
jurors solely on account of their race.
Trial:
- [Prosecuting
Attorneys.] It is improper for a prosecutor in oral argument
to attempt to persuade the jury by giving an expression of his or
her personal opinion of the guilt of the accused other than as a
deduction from the evidence.
Date Filed and Case No.: January 12, 2007. No. S-05-1376.
Internet
Address: http://www.court.state.ne.us/opinions/2007/january/jan12/s05-1376.htm
Court Appealed
From: District Court for Douglas County: Thomas A. Otepka and
J. Michael Coffey, Judges.
Attorneys
for the Appeal: Thomas C. Riley for William C. Floyd, Jr., appellant.
Jon Bruning and James D. Smith for State of Nebraska, appellee.
Justices:
Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack, and
Miller-Lerman, JJ.
Authored
By: Miller-Lerman, J.
Summary:
On 07/30/04, the State charged William C. Floyd, Jr., with first
degree murder and manslaughter of an unborn child in connection
with the 10/07/03 shooting death of Destiny Davis, who was pregnant
at the time of the shooting. The information against Floyd was subsequently
amended to include a charge that Floyd was a felon in possession
of a firearm. On the evening of 10/07/03, Davis and several other
individuals were inside a home located in Omaha, Nebraska and around
10:30 p.m. shots were fired from outside through the living room
window, and Davis and two others were hit. Davis died; the two other
individuals were wounded but did not die. Davis' sister, Shantelle
Vickers, who was in the bathroom at the time the shots were fired,
testified at trial that after hearing the shots, she looked out
a window and saw a man she identified as Floyd outside the house.
The State's
theory at trial was that Floyd shot through the window with the
intent to shoot Vickers rather than Davis. Prior to trial, the State
filed a motion pursuant to Neb. Rev. Stat. § 27-404(3) (Reissue
1995), seeking to admit evidence of previous assaults and threats
Floyd had made against Vickers in the months and days prior to the
shooting. The court determined that evidence of certain prior incidents
was admissible for the purposes of establishing motive, intent,
plan, and absence of mistake or accident. Vickers testified at trial,
and the State questioned her regarding the incidents. Floyd objected
to most of the State's questioning, but he did not object to testimony
regarding threatening telephone calls Floyd had made to Vickers
on the night of the shooting. The court overruled Floyd's objections.
In connection with Vickers' testimony regarding one of the prior
incidents, the State offered into evidence an exhibit that included
a protection order Vickers had obtained against Floyd. Attached
to the protection order was a petition and affidavit in which, inter
alia, Vickers described the acts Floyd had committed against her.
The court allowed a redacted version of the exhibit to be admitted,
over Floyd's objections.
During the course
of the trial, evidence was presented which related to certain issues,
including the charge that Floyd was a felon in possession of a firearm.
In this regard, a former girl friend of Floyd's testified that Floyd
had shown up at her house on the night of the shooting and that
a gun fell out of his pocket. After closing arguments and the court
gave its instructions, the jury began deliberations. Four days into
deliberations, the jury was reassembled in open court and the foreperson
of the jury indicated that the split of votes was 11 to 1. After
discussion with counsel, the court instructed the jury to return
to the jury room to continue deliberations. The jury returned with
a verdict later that day, when polled, one juror, J.K. gave the
trial court some ambiguous responses to her decision on the verdict.
The jury was sent back to deliberate. The jury continued deliberations
on that day and the next morning returned to the courtroom and announced
that it had reached a unanimous verdict of guilty on all three counts.
The jury was polled, and all jurors stated that the verdict of guilty
on each of the three counts was his or her verdict. The court accepted
the verdicts and judged Floyd guilty on all three counts.
Floyd filed
a motion for a new trial and a basis that Floyd asserted in support
of a new trial was an allegation of improper communication between
the bailiff and the jurors. The trial judge determined that the
case should be temporarily assigned to a different judge to consider
Floyd's motion for a new trial on the basis of the bailiff's communication.
After reassignment, a hearing was held and Floyd presented evidence
from one juror, J.K., and another juror regarding the bailiff's
communication. J.K. was a juror who, when first polled, had stated
that the verdicts of guilty on the murder and manslaughter counts
were not her verdicts. J.K. testified that the communication with
the bailiff occurred on May 24, after the jurors had been polled
and the court had ordered the jury to resume deliberations. J.K.
testified that as the jury was leaving the jury room at the end
of the day, she asked the bailiff how long the jury would be required
to continue deliberations. J.K. testified that the bailiff responded
that the judge would "'keep sending the jury back until you
reach a unanimous decision'" and that deliberations "'could
last the rest of the week.'" J.K. stated in an affidavit, which
the court admitted over the State's objection, that the bailiff's
comment was "the primary factor which motivated changing [her]
vote from 'not guilty' to 'guilty.'" Another juror stated in
an affidavit that she was present during the exchange between J.K.
and the bailiff and that the content of the exchange was as J.K.
had testified.
The bailiff
also testified at the hearing on the motion for a new trial. She
testified that she recalled an exchange between herself and "three
or four jurors" at the day mentioned. However, the bailiff
testified that after a juror asked whether there was a time limit
to deliberations, her response was "'there's no time limit.'"
The bailiff then testified that another juror asked whether the
jury could be required to deliberate until Friday and that she replied,
"'You could be.'"
Following the
hearing, the court overruled Floyd's motion for a new trial concluding
that the bailiff's statements were not improper and that even if
they were, the communication was not prejudicial to Floyd. The case
was reassigned to the original judge, and Floyd was sentenced to
life imprisonment on the murder conviction, to a consecutive sentence
of 20 to 20 years' imprisonment on the manslaughter conviction,
and to a concurrent sentence of 20 to 20 years' imprisonment on
the possession of a firearm conviction. Floyd appealed to the Nebraska
Supreme Court.
On appeal, Floyd
asserted that the district court erred when it overruled his motion
for a new trial on the basis of improper communications between
the bailiff and jurors. The State argued that because the court
did not make a finding whether the bailiff's version of the communication
was accurate or whether the jurors' version of the communication
was accurate, the record was not sufficient for this court to review
the issue. The Court concluded that either version was an improper
communication and that the district court abused its discretion
when it denied Floyd's motion for a new trial on the murder and
manslaughter charges based on the improper bailiff communication.
Improper communication between a nonjuror and a juror may involve
communication between the bailiff and a juror if such communication
goes outside certain limits set forth in Neb. Rev. Stat. §
29-2022 (Reissue 1995). Although § 29-2022 states that the
bailiff, as the officer having the jury in his or her charge, shall
not make "any communication" to jurors except to ask whether
they have agreed upon a verdict, the Court recognized that some
incidental communication between the bailiff and jurors beyond that
specified under § 29-2022 will unavoidably occur. When such
communication is limited to simple, practical matters of logistics
such as the location of the facilities used for deliberations, such
communication is not likely to be prejudicial to the defendant or
deny the defendant a fair trial, but when communications involve
matters of law, the risk of prejudice is present and communication
by the bailiff to jurors on such matters is improper. When jurors
have questions regarding the case on trial, including questions
regarding the potential duration of deliberations, the bailiff should
refer such questions to the court pursuant to Neb. Rev. Stat. §
25-1116. The Court concluded that either version of the communication
between the bailiff and jurors, as urged by the State and Floyd
in this case, was an improper communication. “Whether the bailiff
in this case told jurors that they would be required to deliberate
until they reached a unanimous verdict or whether she told them
that there was no time limit to deliberations, either statement,
combined with her statement that the jurors could be required to
deliberate the rest of the week, was an improper communication”
they ruled. “The communication went beyond simple administrative
matters. The jurors' questions regarding continued deliberations
should have been referred to the court, and the bailiff should not
have attempted to give any direct answer to the question. The proper
response on the part of the bailiff would have been to refer the
question to the court.” The Court therefore determine that
the district court erred in concluding that there was no improper
communication between the bailiff and jurors and in failing to find
that jury misconduct had occurred.
Having determined
that jury misconduct occurred, we further conclude that such misconduct
was sufficiently prejudicial that Floyd was denied a fair trial.
Because the communication occurred when the jury was not yet unanimous
on the charges of first degree murder and manslaughter of an unborn
child, the Court concluded that the improper communication was prejudicial
to Floyd and denied him a fair trial on those charges. The Court
noted, however, that the jury was polled prior to the improper communication
and that the jury was already unanimous as to Floyd's guilt on the
charge of being a felon in possession of a firearm. They therefore
concluded that the improper communication which occurred after the
unanimous verdict on the firearm charge had been announced was not
prejudicial as to the firearm conviction. Because the improper communication
denied Floyd a fair trial on the murder and manslaughter charges,
the Court determined that the district court abused its discretion
by failing to grant Floyd a new trial on these convictions. “It
is therefore necessary to reverse Floyd's convictions on the charges
of first degree murder and manslaughter of an unborn child.”
AFFIRMED IN PART, AND IN PART REVERSED AND REMANDED FOR A NEW TRIAL.
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| Open
Meetings
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The question
of whether the City of Omaha properly annexed the City of Elkhorn
is here addressed by the Nebraska Supreme Court, which finds that
Omaha acted in compliance with Nebraska’s statutes regarding
open meetings and annexation. The City of Elkhorn ceased to exist
as a separate municipality on 03/24/05.
City
of Elkhorn v. City of Omaha, 272 Neb. 867 (2007)
Supreme
Court Headnotes
Annexation:
- [Ordinances:]
(Equity.) An action to determine the validity of an annexation
ordinance and enjoin its enforcement sounds in equity.
Actions:
- [Equity:]
(Public Meetings: Appeal and Error.) An appellate court reviews
actions for relief under the Open Meetings Act in equity because
the relief sought is in the nature of a declaration that action
taken in violation of the act is void or voidable.
Equity:
- [Appeal
and Error.] On appeal from an equity action, an appellate court
decides factual questions de novo on the record and, as to questions
of both fact and law, is obligated to reach a conclusion independent
of the trial court's determination.
Statutes.
- Statutory
interpretation presents a question of law.
- [Appeal
and Error.] In the absence of anything to the contrary, an appellate
court will give statutory language its plain and ordinary meaning.
••• It is not within an appellate court's province
to read a meaning into a statute that is not there. •••
An appellate court will not read anything plain, direct, or unambiguous
out of a statute. ••• If possible, an appellate court
will try to avoid a statutory construction which would lead to an
absurd result.
Constitutional
Law.
- Constitutional
interpretation is a question of law.
- [Intent.]
Constitutional provisions are not open to construction as a
matter of course; construction is appropriate only when it has been
demonstrated that the meaning of the provision is not clear and
therefore construction is necessary. ••• The words
in a constitutional provision must be interpreted and understood
in their most natural and obvious meaning unless the subject indicates
or the text suggests that they are used in a technical sense.
Judgments:
- [Appeal
and Error.] When reviewing questions of law, an appellate court
resolves the questions of law independently of the trial court's
conclusions.
Public Meetings:
- Informational
sessions of less than a quorum of a public body's members do not
constitute public meetings under the Open Meetings Act.
- [Ordinances.]
The reading of ordinances constitutes a formal action under Neb.
Rev. Stat. § 84-1414(1) (Cum. Supp. 2004).
- [Legislature:]
(Notice.) Under Neb. Rev. Stat. § 84-1411(1) (Cum. Supp.
2004), the Legislature has imposed only two conditions on the public
body's notification method of a public meeting: (1) It must give
reasonable advance publicized notice of the time and place of each
meeting and (2) it must be recorded in the public body's minutes.
••• Any defect in notice intended for the benefit
of a public body's members does not invalidate a meeting of the
public body when all of the members attend without objection.
- [Statutes:]
(Appeal and Error.) An appellate court construes public meetings
laws broadly so as to obtain the objective of openness in favor
of the public.
Municipal
Corporations:
- [Annexation:]
Substantial adjacency between a municipality and annexed territory
exists when a substantial part of the municipality's boundary is
adjacent to a segment of the boundary of the city or village. •••
A municipality may annex several tracts as long as one tract is
substantially adjacent to the municipality and the other tracts
are substantially adjacent to each other. ••• Under
the "contiguous or adjacent" standard in annexation statutes,
municipalities are not required to have common boundaries with the
territory to be annexed, and they may annex territory nearby in
proximity through the simultaneous annexation of a substantial link
of connecting territory. ••• The "contiguous
or adjacent" standard for annexations also applies to "adjoining
city" under Neb. Rev. Stat. § 14-117 (Cum. Supp. 2006).
(Standing.) A municipality that is in the crosshairs of annexation
has standing to challenge the annexation. (Legislature: Intent.)
Under Neb. Rev. Stat. § 14-117 (Cum. Supp. 2006), the Legislature
intended to permit a metropolitan city to extend its corporate limits
so that it adjoins the corporate limits of a city to be annexed.
Annexation:
- [Jurisdiction.]
The prior jurisdiction rule is not applicable when different territories
are the subject of the competing annexations.
- [Statutes:]
(Words and Phrases.) The terms contiguous and adjacent in annexation
statutes are synonymous.
- [Words
and Phrases.] The terms "contiguous" and "adjoining"
in Neb. Rev. Stat. § 14-117 (Cum. Supp. 2006) are synonymous.
Date Filed
and Case No.: January 12, 2007. S-05-1006.
Internet
Address: http://www.court.state.ne.us/opinions/2007/january/jan12/s05-1006.htm
Court Appealed
From: District Court for Douglas County: Gerald E. Moran, Judge.
Attorneys
for the Appeal: Jeff C. Miller and Duncan A. Young for City
of Elkhorn, Nebraska, a municipal corporation, et al., appellants
and cross-appellees. William M. Lamson, Jr., Lawrence F. Harr, Craig
F. Martin, Paul D. Kratz and Alan M. Thelen for City of Omaha, Nebraska,
a municipal corporation, et al., appellees and cross-appellants.
Justices:
Wright, Connolly, Gerrard, Stephan, McCormack, and Miller-Lerman,
JJ., and Hannon, Judge, Retired.
Not Participating:
Heavican, C.J.
Authored
By: Connolly, J.
Summary:
The City of Omaha, Nebraska, and the City of Elkhorn, Nebraska,
raced to pass ordinances to annex territories that would expand
their respective boundaries. Omaha's ordinances sought to annex
land that would make it contiguous and adjacent to Elkhorn, thus
allowing Omaha to annex Elkhorn. Elkhorn's annexation ordinance,
on the other hand, sought to annex surrounding sanitary improvement
districts (SIDs) to raise Elkhorn's population to over 10,000, which
would immunize it from unilateral annexation by Omaha under Neb.
Rev. Stat. § 14-117 (Cum. Supp. 2006). Despite Elkhorn's attempt
to annex the SIDs without Omaha's knowledge, Omaha learned of Elkhorn's
efforts, and the race was on.
In what the
opinion describes as the “home stretch, ”on 02/22/05,
Elkhorn published notice of a special meeting regarding the annexation
of the SID’s for March 1. On February 25, Omaha published notice
of a public hearing and administrative meeting of the Omaha Planning
Board for Wednesday, March 2, regarding annexation of Elkhorn. It
also published notice of its precouncil briefing and regular city
council meeting for March 1. On Tuesday, 03/01/05, Omaha held a
public meeting at which it read the annexation ordinance for the
second time. Omaha city department heads briefed every member of
the Omaha City Council on the annexation issues in three nonpublic
meetings conducted at 8:30, 9:30, and 11:30 a.m. No more than three
council members attended a briefing. The department heads' briefings
occurred before and after the public precouncil meeting at 10:30
a.m. None of the council members asked questions about the annexation
at the public precouncil meeting. Also, on March 1, Elkhorn published
its annexation resolution and notice of a public meeting to be held
on March 11 for consideration of its plans.
On 03/02/05,
the Omaha Planning Board conducted a public hearing and approved
the ordinances annexing Elkhorn. At the Omaha City Council's regularly
scheduled meeting on March 8, the ordinances were read for the third
time. The council voted to adopt annexation ordinance No. 36947.
Falling behind, Elkhorn, on 03/08/05 published notices of special
meetings for March 14 and 15. On March 11, Elkhorn conducted a public
hearing, at which the planning commission recommended approval of
the annexation plans and the ordinances were read for the first
time. At the March 14 meeting, Elkhorn's ordinances were read for
the second time. On March 15, 7 days after Omaha had adopted its
ordinance, Elkhorn's annexation ordinances were read for the final
time and the city council voted to adopt them.
On 03/09/05,
Elkhorn filed a complaint, seeking a temporary injunction and a
declaration that Omaha's ordinance was invalid. On March 17, Omaha
filed an answer, with affirmative defenses and a counterclaim for
a temporary restraining order and temporary and permanent injunctions
against Elkhorn's ordinances. In addition, Omaha sought a declaration
that its ordinance was valid and that Elkhorn's ordinances were
invalid. A temporary injunction was issued by the district court,
with the agreement of the parties. In August 2005, Elkhorn filed
its operative complaint alleging that (1) Omaha had violated the
Open Meetings Act (the Act), Neb. Rev. Stat. §§ 84-1407
to 84-1414 (Reissue 1999 & Cum. Supp. 2004); (2) Elkhorn had
taken the first valid step toward annexation, thereby preempting
Omaha's annexation proceedings; (3) Omaha could not annex Elkhorn
because the corporate limits of the cities did not adjoin; (4) the
Nebraska Constitution prohibited the annexation without a vote;
and (5) Omaha's annexation was an unsound and arbitrary response
to Elkhorn's annexation plan.
Following a
bench trial, the court rejected all of Elkhorn's claims that Omaha's
ordinance was invalid. Accordingly, the court permanently enjoined
Elkhorn from enforcing its ordinances and declared that Elkhorn
would cease to be a city of the first class as of the date the order
was filed if Elkhorn did not file an appeal. Elkhorn filed a notice
of appeal on 08/19/05 and on the same day, the court entered a supersedeas
order, enjoining both parties from enforcing their ordinances pending
the appeal to the Nebraska Supreme Court .
In the opinion,
the Court, said that the pivotal issue is whether Omaha, in adopting
its annexation ordinance, "jumped the gun" by violating
the Act, thus voiding its ordinance. The Court concluded that the
Omaha City Council did not violate the Act during meetings it held
on 02/22/05 or 03/01/05. “We further conclude that the prior
jurisdiction rule did not apply to abate Omaha's annexation proceedings;
that § 14-117 authorized Omaha to annex Elkhorn, despite the
lack of a common municipal border; and that Neb. Const. art. XV,
§ 18(2), did not apply to require a vote on the annexation.”
Finally, the Court concluded that Elkhorn ceased to exist as a separate
municipality on 03/24/05, the date that Omaha's annexation ordinance
became effective. “Elkhorn's annexation ordinances were accordingly
nullified before they took effect” they ruled. AFFIRMED.
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| Postconviction
Motion, Procedural Bar
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This post-conviction
petition fails because the district court finds that the movant's
subsequent postconviction claims are barred by his or her failure
to raise available claims in a previous postconviction motion, even
if the movant acted pro se in the previous proceeding.
State
v. Marshall, 272 Neb. 924 (2007)
Supreme
Court Headnotes
Postconviction:
- The need for
finality in the criminal process requires that a defendant bring
all claims for relief at the first opportunity. •••
A movant's subsequent postconviction claims are barred by his or
her failure to raise available claims in a previous postconviction
motion, even if the movant acted pro se in the previous proceeding.
- [Judgments:]
(Appeal and Error.) Whether a claim raised in a postconviction
proceeding is procedurally barred is a question of law. When reviewing
a question of law, an appellate court reaches a conclusion independent
of the lower court's ruling.
- [Constitutional
Law.] The Nebraska Postconviction Act, Neb. Rev. Stat. §
29-3001 et seq. (Reissue 1995), is available to a defendant to show
that his or her conviction was obtained in violation of his or her
constitutional rights.
- [Appeal
and Error.] An appellate court will not entertain a successive
motion for postconviction relief unless the motion affirmatively
shows on its face that the basis relied upon for relief was not
available at the time the movant filed the prior motion.
Actions:
- [Judicial
Notice:] (Records.) Where cases are interwoven and interdependent
and the controversy involved has already been considered and decided
by the court in a former proceeding involving one of the parties
now before it, the court has the right to examine its own records
and take judicial notice of its own proceedings and judgments in
the former action.
Date Filed
and Case No.: January 12, 2007. No. S-06-494.
Internet
Address: http://www.court.state.ne.us/opinions/2007/january/jan12/s06-494.htm
Court Appealed
From: District Court for Douglas County: J. Russell Derr, Judge.
Attorneys
for the Appeal: Brian S. Munnelly for Damian J. Marshall, appellant.
Jon Bruning and James D. Smith for State of Nebraska, appellee.
Justices:
Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack, and
Miller-Lerman, JJ.
Authored
By: Heavican, C.J.
Summary:
This is an appeal from the district court's denial of Damian
J. Marshall's second motion for postconviction relief, without an
evidentiary hearing. In 1996, after two mistrials, Marshall was
convicted of second degree murder, attempted second degree murder,
and two counts of using a firearm to commit a felony, which convictions
this court affirmed. State v. Marshall, 253 Neb. 676, 573
N.W.2d 406 (1998) (Marshall I). The Nebraska Supreme Court
also affirmed the district court's denial of Marshall's first postconviction
motion. State v. Marshall, 269 Neb. 56, 690 N.W.2d 593 (2005)
(Marshall II). In his second postconviction motion, Marshall
claimed ineffective assistance of counsel at his first trial and
on direct appeal based on his trial counsel's failure to realize
Marshall was entitled to 12 peremptory challenges.
At Marshall's
first trial, the district court called 24 prospective jurors for
voir dire from the larger jury venire panel. Each party exercised
six peremptory challenges, and the remaining 12 jurors and an alternate,
chosen from 3 additional prospective jurors, were sworn. Marshall's
attorney did not object to the number of prospective jurors or attempt
to exercise more than 6 peremptory challenges, although Neb. Rev.
Stat. § 29-2005 (Reissue 1995) provides that a person arraigned
for a crime punishable by life imprisonment shall have 12 peremptory
challenges. During trial, the court sustained the prosecutor's motion
for a mistrial, which Marshall opposed, on the ground that one of
the jurors was potentially biased. There was no discussion of using
an alternate juror.
In his current
postconviction motion, Marshall alleged that his trial counsel was
ineffective at the first trial for failing to recognize that Marshall
was entitled to 12 peremptory challenges, causing structural error,
which was presumed to be prejudicial. Marshall also alleged that
his appellate counsel was ineffective in failing to raise the issue
on appeal, which would have led to a reversal. Finally, Marshall
alleged that his claim should not be procedurally barred because
he filed his first postconviction motion pro se and could not have
been expected to understand the law more than his previous attorneys.
The district court denied his petition. In addition to agreeing
with the State that Marshall's claim was available at the time his
first motion was filed, the district court concluded that Marshall
could not show he was prejudiced by his trial counsel's failure
to object to the number of potential jurors at the first trial.
Marshall's main argument was that his trial counsel's deficient
conduct caused a structural error that prevented his double jeopardy
claims from being heard.
The district
court characterized the argument as follows: "[I]f his trial
counsel had properly used all 12 peremptory challenges, the first
mistrial may have created a successful argument of double jeopardy
on appeal or in his postconviction proceeding." In response,
the district court stated that Marshall had not been convicted at
the first trial and that even if he had been convicted, the Nebraska
Supreme Court court had indicated in Marshall II that any
conviction would have been reversed for structural error. Second,
the court concluded that an appeal claiming trial counsel was deficient
for failing to assert Marshall's right to more peremptory challenges
would have resulted in a new trial, which Marshall in fact received.
Marshall appealed to the Nebraska Supreme Court.
On appeal, Marshall
assigned that the district court erred in denying his motion for
postconviction relief. The State argued that Marshall is procedurally
barred from asserting this claim because he has failed to allege
any newly discovered facts or allege any claim that could not have
been raised in his first postconviction proceeding. The Court concluded
that Marshall's postconviction claim is procedurally barred because
it could have been raised in his first postconviction proceeding.
“His self-representation in the first proceeding does not affect
that result because he is held to the same standard as a postconviction
movant represented by counsel.” AFFIRMED.
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| Supplemental
Opinion
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Supplemental
Opinion.
State
v. Tompkins, 272 Neb. 865 (2007) (Supplemental Opinion)
Supreme
Court Headnotes
None
Date Filed
and Case No.: January 12, 2007. No. S-05-212.
Internet
Address: http://www.court.state.ne.us/opinions/2007/january/jan12/s05-212.htm
Court Appealed
From: Petition for further review from the Nebraska Court of
Appeals, Irwin, Sievers, and Moore, Judges, on appeal thereto from
the District Court for Scotts Bluff County, Randall L. Lippstreu,
Judge.
Attorneys
for the Appeal: Brian J. Lockwood for Andrew Tompkins, appellant.
Jon Bruning and Kimberly A. Klein for State of Nebraska, appellee.
Justices:
Wright, Connolly, Gerrard, Stephan, McCormack, and Miller-Lerman,
JJ.
Not Participating:
Heavican, C.J.
Authored
By: Per Curiam.
Summary:
This case came before the Nebraska Supreme Court on the motion
for rehearing filed by the State of Nebraska, appellee, regarding
its opinion reported at State v. Tompkins, antep. 547, 723
N.W.2d 344 (2006). The Court overruled the motion, but for purposes
of clarification, modified the opinion by withdrawing that portion
of the opinion designated "CONCLUSION," id. at 554, 723
N.W.2d at 349, and substituted with language set out in the opinion.
The language read as follows:
CONCLUSION
The Court of
Appeals correctly concluded that the search warrant used to obtain
certain evidence used against Tompkins was not based on an affidavit
with sufficient indicia of probable cause as to Tompkins. However,
because the State waived the Leon good faith exception by
failing to raise it, the Court of Appeals erred in raising the issue
on its own motion and in affirming the judgment of the district
court on that basis. The evidence, including that erroneously received,
was sufficient to sustain the conviction. Accordingly, Tompkins'
convictions should be reversed and he may be given a new trial at
which the evidence obtained through the defective search warrant
shall not be admissible. See Lockhart v. Nelson, 488 U.S.
33, 109 S. Ct. 285, 102 L. Ed. 2d 265 (1988). See, also, State
v. Allen, 269 Neb. 69, 690 N.W.2d 582 (2005); State v. Sheets,
260 Neb. 325, 618 N.W.2d 117 (2000), overruled on other grounds,
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354,
158 L. Ed. 2d 177 (2004). We therefore reverse the judgment of the
Court of Appeals and remand the cause to that court with directions
to reverse the judgment of the district court and remand the cause
to that court for a new trial consistent with this opinion. REVERSED
AND REMANDED WITH DIRECTIONS.
The remainder
of the opinion remained unmodified. FORMER OPINION MODIFIED. MOTION
FOR REHEARING OVERRULED.
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| Workers'
Compensation, Attorney's Liens, Jurisdiction
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In this petition
for further review, the Nebraska Supreme Court holds that the Workers'
Compensation Court has jurisdiction to determine a fee dispute arising
out of an attorney's lien perfected pursuant to § 48-108, regardless
of whether the attorney seeking enforcement had previously been
discharged.
Foster
v. BryanLGH Med. Ctr. East, 272 Neb. 918 (2007)
Supreme
Court Headnotes
Workers'
Compensation:
- The Workers'
Compensation Court can only resolve disputes that arise from provisions
of the Nebraska Workers' Compensation Act.
- [Appeal
and Error.] An appellate court is obligated in workers' compensation
cases to make its own determination as to questions of law.
- [Jurisdiction:]
(Statutes.) As a statutorily created court, the compensation
court is a tribunal of limited and special jurisdiction and has
only such authority as has been conferred on it by statute.
- [Attorney
Fees.] The power of the Workers' Compensation Court to resolve
attorney fee disputes is derived from Neb. Rev. Stat. § 48-108
(Reissue 2004).
- [Attorneys'
Liens:] (Jurisdiction: Case Disapproved.) The Workers' Compensation
Court has jurisdiction to determine a fee dispute arising out of
an attorney's lien perfected pursuant to Neb. Rev. Stat. §
48-108 (Reissue 2004), regardless of whether the attorney seeking
enforcement had previously been discharged. Wells v. Goodyear
Tire & Rubber Co., 14 Neb. App. 384, 707 N.W.2d 438 (2005),
is disapproved to the extent that it concluded the Workers' Compensation
Court lacked jurisdiction to enforce a statutory attorney's lien.
Statutes:
- [Presumptions:]
(Legislature: Intent:) ((Appeal and Error.)) In construing a
statute, appellate courts are guided by the presumption that the
Legislature intended a sensible rather than absurd result in enacting
the statute.
- [Legislature:]
(Intent.) An appellate court will place a sensible construction
upon a statute to effectuate the object of the legislation, as opposed
to a literal meaning that would have the effect of defeating the
legislative intent.
- [Intent.]
In construing a statute, a court must look to the statutory objective
to be accomplished, the evils and mischiefs sought to be remedied,
and the purpose to be served, and then must place on the statute
a reasonable or liberal construction that best achieves the statute's
purpose, rather than a construction that defeats the statutory purpose.
Date Filed
and Case No.: January 12, 2007. No. S-06-258.
Internet
Address: http://www.court.state.ne.us/opinions/2007/january/jan12/s06-258.htm
Court Appealed
From: Petition for further review from the Nebraska Court of
Appeals, Sievers, Moore, and Cassel, Judges, on appeal thereto from
the Nebraska Workers' Compensation Court.
Attorneys
for the Appeal: Rolf Edward Shasteen for Victoria M. Foster,
f.k.a. Victoria M. Collins, appellant. Jeffrey A. Silver also filing
briefs and arguing on behalf of Victoria M. Foster. No appearance
for BryanLGH Medical Center East, a Nebraska corporation, appellee.
Justices:
Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack,
and Miller-Lerman, JJ.
Authored
By: Gerrard, J.
Summary:
Before going to trial in her workers' compensation case, Victoria
M. Foster, f.k.a. Victoria M. Collins, discharged her attorney,
Rolf Shasteen, and hired a new attorney. Foster had retained Shasteen
and his law firm to represent her with regard to the workers' compensation
claim. Foster signed a fee agreement which provided in pertinent
part that Shasteen would receive a one-third contingency fee and
reimbursement for costs advanced. While Shasteen was counsel for
Foster, he was paid a total of $5,419.37 for attorney fees and costs.
During Shasteen's representation of Foster, Foster was scheduled
to have her deposition taken. Foster appeared at the deposition,
and the defendant offered $15,000 to settle the case. Foster initially
said she would accept the settlement offer, without having her deposition
taken. Approximately 2 months later, Foster discharged the Shasteen
firm and rejected the $15,000 proposed settlement. Shasteen perfected
an attorney's lien in the Workers' Compensation Court pursuant to
Neb. Rev. Stat. § 48-108 (Reissue 2004).
With her new
attorney, Foster's case was tried to the single judge. The single
judge determined that Foster was entitled to certain indemnity benefits
and subsequently approved a lump-sum settlement of $18,000.
Following the
single judge's approval of the lump-sum settlement, Shasteen filed
a motion to establish the amount of his attorney's lien. The single
judge determined that Shasteen had been paid all he was entitled
to under his agreement with Foster and declined to award him further
attorney fees or costs. Shasteen appealed this decision to the review
panel. The review panel reversed, and remanded with directions to
the single judge to enter an order of dismissal, concluding that,
pursuant to Wells v. Goodyear Tire & Rubber Co., 14 Neb.
App. 384, 707 N.W.2d 438 (2005), the Workers' Compensation Court
did not have jurisdiction to determine a fee dispute between present
and former counsel. Shasteen appealed to the Court of Appeals which
like the three judge panel, dismissed Shasteen's appeal for lack
of jurisdiction. Shasteen petitioned for and was granted a petition
for further review by the Nebraska Supreme Court .
The Court said
that the issue before it, is whether the Workers' Compensation Court
has jurisdiction to determine a fee dispute arising out of an attorney's
lien perfected under § 48-108. The Court noted that as a statutorily
created court, the compensation court is a tribunal of limited and
special jurisdiction and has only such authority as has been conferred
on it by statute. Section 48-108 represents a legislative determination
that the Workers' Compensation Court is an appropriate forum for
determining fees payable to an attorney for the services rendered
while representing the claimant before the Workers' Compensation
Court. However, the Court said that to a previously discharged attorney
with a properly filed lien, the protection granted by this statute
would be meaningless if the compensation court did not have jurisdiction
to enforce his or her lien. “In other words, so long as a lien
created under § 48-108 remains effective, the compensation
court's power to enforce that lien necessarily remains effective
as well.”
“In short,
we conclude that the Legislature did not limit the compensation
court's authority to enforce § 48-108 liens to only those cases
where the attorney seeking enforcement is presently representing
the claimant” said the Court. “It would be illogical to
conclude that the compensation court may determine the fee of a
claimant's present counsel, but not that of his prior counsel, particularly
where those questions are essentially inseparable. For the Workers'
Compensation Court's authority to grant an attorney's lien under
§ 48-108 to be completely effective, the compensation court
must also have the power to enforce the lien, even if the attorney
seeking the lien's enforcement is no longer representing the claimant.”
They added that
the compensation court is also the most sensible venue for such
determinations, since the court is aware of the circumstances of
each case, is familiar with the facts and issues presented, and
observes firsthand the efforts of each attorney involved in the
dispute. “Given this unique knowledge of the case, the compensation
court, as opposed to the district court in a separate action, is
in the best position to determine the proper fee to be distributed
to respective attorneys.”
In sum, the
Court held that the Workers' Compensation Court has jurisdiction
to determine a fee dispute arising out of an attorney's lien perfected
pursuant to § 48-108, regardless of whether the attorney seeking
enforcement had previously been discharged. “By so holding,
we disapprove Wells v. Goodyear Tire & Rubber Co., 14 Neb. App.
384, 707 N.W.2d 438 (2005), insofar as it concluded otherwise”
they wrote. “Because the compensation court's review panel
has not considered the merits of the underlying fee dispute, it
is premature for us to consider in this appeal Shasteen's assignment
of error regarding the fee amount determined by the single judge.
The Court reversed the decision of the Court of Appeals and remanded
the matter with directions to remand the cause to the review panel
for further proceedings consistent with the opinion. REVERSED AND
REMANDED WITH DIRECTIONS.
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