Wednesday, July 1, 2015

Three Nebraska Supreme Court Candidates… All Women… Submitted to Governor

Three prospective candidates to fill a vacancy on the Nebraska Supreme Court have been forwarded to Gov. Pete Ricketts. This will be Ricketts first opportunity to select a justice for the state’s highest court.

The candidates forwarded by the bi-partisan Judicial Nominating Commission all but assure the court’s newest member will be a woman for only the second time in the state’s history.
The three remaining candidates are:
  • Judge Riko Bishop, serving on the Nebraska Court of Appeals since 2013.
  • Amie Martinez, a private practice attorney and president of the Nebraska Bar Association.
  • Judge Stephanie Stacy, a Lancaster County District Court judge appointed in2011.

Gary Young, a private practice attorney in Lincoln, applied for the open seat was not advanced for consideration.
The new judge will replace Kenneth C. Stephan of the First Judicial District, serving the Lincoln area. Stephan retired July 1 after 18 years on the Supreme Court.
The nine-member commission made their recommendation shortly after each of the candidates spoke at a public hearing to review their qualifications.
No one spoke in opposition to any of the four.
In her presentation Judge Bishop emphasized her experience on the Court of Appeals, reviewing lower court cases when challenged for procedural reasons or when someone claims the law was applied improperly. She was the only candidate with experience at the bench with appellate court experience similar to the role of the Supreme Court. On seven occasions she temporarily filled in for absent justices on cases heard by the high court.
Bishop noted she had also worked on solving issues facing the state’s judicial branch including racial disparity on juries, expanding the services of foreign language interpreters in the courtroom, and re-examining how divorce cases are handled with the potential impact on the children of the separating couple in mind.

Judge Stacy may be best known as the Lincoln-based judge who temporarily put the brakes on the XL Keystone pipeline project. Her judgment, arguing the state had given the project approval was unconstitutional, was later overturned by the state Supreme Court. Stacy had been appointed by then Gov. Dave Heinemann, whom she ruled against.
While not referring to any specific case in her appearance before the nominating commission, Stacy noted that as a District Court judge in the home jurisdiction of the state capitol it gave her a unique opportunity to review cases from all arenas of government.
From the time she passed the bar exam, Stacy said she wanted to get into a courtroom immediately as a judge actively applying and interpreting the law. She called her application to the state’s highest court “a natural evolution” in her 28-year career in the law.
Amie Martinez began her presentation with a most unusual introduction. She explained that because of a lingering outbreak of shingles she had lost muscle control in parts of her face. She wanted members of the commission to understand the reason she had difficulty smiling, raising her eyebrow and saying the letter “P.”
While the only advancing candidate without experience in a courtroom, Martinez made the case that two decades of appearances in state and federal courts at all levels gave her a through understanding of the job and the responsibilities.
Stating she was ready for “a new challenge,” Martinez said her primary interest was in the appellate courts and she had no interest in becoming a judge at the county or district level.
Questions had been raised about whether Martinez should be disqualified for the position, having recently served on the Judicial Nominating Commission. Ordinarily members must wait two full years to submit their names to be considered for an open judgeship.
Martinez was asked if she wanted to address the matter during the public hearing but elected to answer questions commission members might have in a closed-door session.

There is no word on how quickly Gov. Ricketts will make his selection.

Friday, June 19, 2015

Of all things, a corn mash spill could make it easier to sue your Nebraska fire department

The corn mash is in the foreground.

Pick it up, clean it up, do it right and keep it safe. Local governments in Nebraska… from city hall to your volunteer fire department… will need to make sure hazards on roads and public spaces get taken care of completely.   

In a ruling issued today the Nebraska Supreme Court narrowed the protection of immunity local government has against personal injury lawsuits.

I covered the story of Kaelynn Kimminau of Hastings this spring for NET News. The Adams County District Court threw out her lawsuit against the City of Hastings fire department and its rural volunteer counterpart. She claimed they hadn’t properly cleaned corn mash spilled from an open truck picking up the sloppy leftovers from a local ethanol plant. Firefighters on the scene had pushed the corn mash off to the shoulder. The accident occurred a full day after the original spill.

Did the fire department act negligently? In its opinion the Supreme Court says at the very least the judge in Adams County should not have dismissed the case even before hearing the evidence. The court ruled local governments do not have immunity from lawsuits when an emergency scene clean up may have been responsible for later injuries or harm. 

As the justices wrote in today's opinion, they don’t read state statute covering these matters “as provid­ing immunity to a political subdivision with respect to a claim alleging it took inadequate measures to repair a spot or localized defect of which it had notice.” 
In this case, the firefighters had been told of the problem the day before the accident. The possibility they didn’t clean the corn mash mess at the time takes away automatic protection from lawsuits. The implications? Attorneys NET spoke with before today’s ruling wondered if a ruling against the City of Hastings would mean in the future it could apply to emergency crews not picking up debris from a traffic accident or not making full repairs on a public building.

The case has been sent back to Adams County District Court where Kaelynn Kimminau will have the opportunity to argue the City of Hastings was the blame for the accident. That has not been resolved.  In fact the Supreme Court justices made the point of adding:
We do not comment on the merits of the Kimminaus’ claims against the political subdivisions, includ­ing questions with respect to duty, as those issues have not yet been addressed by the district court.
Read the court’s full opinion HERE.

Friday, June 12, 2015

1975: The Nebraska Supreme Court Watches Porn

The justices wouldn’t have gotten caught if they hadn’t told everybody.
Toward the end of the opinion filed in Stateof Nebraska v. American Theater Corp. (d/b/a Pussy Cat Theater) Judge William Hastings wrote, “This court viewed the film ‘Deep Throat’’ and prepared "to perform its judicial duty."
But read on. There’s a legitimate reason for what you might dismiss with a smirk as a judicial stag party.

Coverage of the original OPD vice squad raid in 1973.
It’s the 40th anniversary of this landmark case, so here’s the story.
In the 1970s obscenity cases were cropping up all over the country. Omaha had a problem with pornography according to crusading city prosecutor Gary Bucchino.
Some may need historical context at this point. This is before videotape, cable television, and decades before the Internet brought naughty stuff into the privacy of people’s homes or cellphones.
Places like the Pussy Cat in downtown Omaha took over past-their-prime movie theaters, put little into renovations, and played X-rated movies for a clientele with viewing habits best kept private.
Bucchino did everything possible to shutdown theaters showing adult films.
Omaha police staged several raids at the Pussy Cat, and competing adult theaters the Muse and Little Art Theater.  Profit margins were apparently high enough to make small fines and brief jail sentences an acceptable cost of doing business.
All this set the stage for a warm summer Sunday evening late in May 1973. The Omaha Police vice squad busted a showing of the nationally notorious porn sensation “Deep Throat.
Officials in New York declared the movie obscene earlier in the year, providing free publicity for the Nebraska premier.
The following account of the raid relies on an Omaha World-Herald article crafted by Jim Cleary.  (CLICK HERE to read the full article)
The owner of the Pussy Cat, Ottis Berry, invited about 85 select individuals to a “private showing” of the movie prosecutor Bucchino described as “an hour-long film about a woman whose sex organs are in the wrong places.” They paid $3.50 for the privilege.
Plain-clothed vice squad officers attempted to buy tickets after being tipped off to the event. Their names absent from the invitation list, the officers returned 45 minutes later and through the doors.
A police sergeant “said they saw the film being shown and from previous knowledge believed it to be ‘Deep Throat.’”
Trial Exhibit #1
Reporter Cleary observed audience members “were all well dressed… and mostly young couples” including “several attorneys and businessmen.” As they left the theater “most were grinning.”
The owner, presumably, was not. He was booked on suspicion of distributing obscene materials and resisting arrest.
At trial in municipal court a jury found Berry guilty. A District Court judge rejected his first appeal.
That set the stage for the precedent-setting obscenity case before the state Supreme Court.
The owner of the chain of Pussy Cat movie houses, American Theater Corporation, brought in an attorney from Atlanta, Georgia. (Gilbert Deitch still practices law and has a national reputation as a criminal defense attorney).
Deitch claimed state statutes prohibiting "obscene, lewd, indecent, or lascivious" movies didn’t lay out which specific sexual conduct considered offensive, making the law too vague to enforce. There was also that whole “freedom of speech” thing in the First Amendment of the Constitution.
 The argument did not sway the justices. In fact Nebraska bolstered its obscenity laws the previous year.
The court did watch “Deep Throat” in chambers. However, rather than pen their own description of the plot and visuals in the film the justices borrowed wording from an earlier Federal court ruling.
The court’s published opinion explained that scenes of explicit sex “dominate the film… to such extent that following the opening innocuous few minutes (probably not more than eight) until ‘The End’ flashes on the screen, scenes of sexual acts cascade one upon the other with minor interruptions. All these are accompanied by musical sounds and some dialogue, and enlivened on two occasions with bells ringing, bombs and rockets bursting.”

In the end the Nebraska justices determined “that the film is hard-core pornography and is obscene.” It was the third time the court sustained obscenity convictions against the Pussy Cat. (CLICK HERE to read the full opinion.)
Ottis Berry still got stuck with the $500 fine. There were more charges pending against the owners.
One more thing.
For anyone chuckling over the thought of the justices finding excuses to watch porn, there’s a deeper lesson concerning the importance of weighing evidence in any trial.
Later in 1975, another obscenity case against Berry and the American Theater group made its way through the Federal courts. Every judge agreed the two films at issue time, “Champagne Party” and “The Club,” were obscene under Federal law. However another issue deeply split the judges of the U.S. Eighth Circuit Court of Appeals.
Three of the judges felt a new hearing should be held because the judges sitting in review weren’t permitted to see the films, preventing them from reviewing all of the evidence.
The dissenters wrote passing judgment in these types of cases “obligates us to view obscene and distasteful material.”
“Whether this material is in fact obscene or whether it falls within what should be the jealously guarded protective cloak of the First Amendment we can know only after we look at the material itself. In this case, we will never know, for the court today insulates the jury's verdict from appellate review. More is required of us in the exercise of our power and responsibility of judicial review.”
Making their decision without watching the films they concluded, “stands as an unwieldy and dangerous precedent.”
So that’s why, in 1975, the Nebraska Supreme Court felt watching “Deep Throat” served the cause of justice.