Odds Good For 2nd Female Justice on Nebraska Supreme Court

There is a three-out-of-four chance the next addition to the Nebraska Supreme Court will be a woman. 

 That’s notable because in the courts 160 year history there has been only one female justice on the state’s highest court.

Four applicants put their names before the state’s Judicial Nominating Commission to replace retiring Justice Kenneth Stephan. The commission meets July 1 to consider the applicants qualifications before making a recommendation to Governor Pete Ricketts.

The applicants are:

• Gary Young, a specialist in labor law, clerked at the state Supreme Court before joining the firm of Keating O’Gara.
•  Judge Riko Bishop was appointed to the Nebraska Court of Appeals in 2013. She got her law degree as a second career following work as a public school English teacher.
• Amie Martinez currently serves as president of the Nebraska Bar Association. She is a private practice attorney listing criminal defense and appellate law among her practice areas.
• Judge Stephanie Stacy was appointed to serve as a District Court judge by Governor Dave Heineman in 2011 after 18 years in private practice of law. Her ruling which block progress on the Keystone XL pipeline attracted international attention.

Honorable Lindsey Miller-Lerman

Supreme Court openings are rare. In ten years Governor Heineman only appointed two. 

Justice Lindsey Miller-Lerman remains the first and only woman to serve on the Nebraska Supreme Court. That bit of history occurred in 1998 when she was selected by Governor Ben Nelson. 

At the time of her appointment she downplayed the significance of breaking the all-male hold on the high court. The World-Herald reported Justice Miller-Lerman, said of her appointment: "I've approached the application process on the basis of merit, and being female is merely another fact in my profile."

"Causing a Stink" is NOT Always Protected By The First Amendment

Don’t show up with a knife at a gun fight. Don’t get into a fight at a gun show. And if you do, don’t claim your First Amendment rights have been violated.

A little-noticed lawsuit over a temper tantrum thrown at an auction in rural Saline County, Neb. provided an interesting study in what can be defined as “free speech” under the First Amendment. The recently released Nebraska Court of Appeals ruling on the case helps explain the boundaries between what’s threatening and what’s sharing a point of view.

Dan Meints wanted to buy a gun. At a consignment auction at the Saline Center he bought a .22-caliber rifle for about $80. The rules of the sale were pretty straight forward: everything sold “as is” and no returns. 

After the sale Meints complained a piece of the gun was missing. Still holding the gun, Meints became “belligerent” when talking to the auction managers, according to police reports. He didn't let up even after the guys running the auction offered to buy back the rifle.

The tirade escalated to the point a deputy sheriff intervened. Meints was “raising his voice,” “causing a stink” and “acting a little crazy” according to witnesses and he still had the gun in his hand. Meints landed in jail for disturbing the peace.

A county court judge found Meints guilty and fined him $500. He appealed the case to the district court. He lost. In both courtrooms Meints relied on the same defense: even if belligerent, free speech covered complaining about the sale. Saline County District Court Judge Vicky Johnson disagreed. “It was the conduct of [Meints]… and not the content of his words,” she wrote.

Meints took the case to the Court of Appeals. Again, he lost.  The ruling issued on Feb. 25 said “Meints was not convicted on the basis of speech,” the three judge panel concluded. It was his "loud and aggressive behavior, accompanied by the fact that he was brandishing a rifle.” (Read the Supreme Court's Meints ruling here)

That doesn’t mean all loud, obnoxious or even threatening behavior is created equal, especially when talking about free speech.  Two Nebraska Supreme Court cases cited in the Meints decision make that clear.

Sharon McKee
(Photo: Operation Rescue)

There was the case of the persistent abortion protester. Sharon McKee became a familiar figure in the media and the courts when she picketed outside abortion clinics. Her contact with Dr. Winston Crabb earned her a protection order from the court. She was arrested in 1994, having followed Dr. Crabb into the building housing his abortion clinic and telling him he should "stop killing babies." 

Once convicted, McKee appealed to the Nebraska Supreme Court claiming the protection order stifled free speech. The ruling offered a split message.  On one hand McKee earned a new trial.  “While Crabb may disagree with McKee's views, she is entitled to state her opinion within the confines of the First Amendment,” the justices wrote. What McKee said to the doctor in this instance “was not threatening, intimidating, or terrifying” so it was protected speech and the protection order had been enforced “in an unconstitutional manner.”

But here’s the kicker. McKee did not, as she hoped, get the whole case tossed. The evidence showed McKee “came up behind Crabb as he got out of his car and followed him across the parking lot into the office building.” That went too far. After her second trial McKee was handed a $500 fine. (Read the Supreme Court's McKee ruling here.)

The second was the case of the ticked off college student. Darren Drahota had a beef with one of his political science instructors at the University of Nebraska-Lincoln. Bill Avery taught the course and also served as Nebraska state senator. In 2006, there was an exchange of 18 e-mails, begun by Drahota, concerning Avery’s liberal politics. The tone of the messages, some sent anonymously, swung wildly between admiring to angry. In the most heated exchanges the student claimed Avery was a traitor and called him “a liberal American coward.” There were also threats of violence. In other messages Drahota apologized.

Avery called police and Drahota was charged with disturbing the peace. Again, the First Amendment was the first line of defense. This time it succeeded. (Read Drahota's opening brief here.) The State of Nebraska argued the emails met the definition of “fighting words.”  In free speech cases those statements, causing great personal injury or designed to incite violence, fall outside constitutional protection. 

The Nebraska justices said  “we conclude that the State cannot criminalize speech under the fighting words exception solely because it inflicts emo­tional injury, annoys, offends, or angers another person.”  The emails may have been upsetting but they were not sufficiently harmful to justify a charge of disturbing the peace.

In all three rulings Nebraska courts gave some leeway to speak one's mind but with caution. What made the difference in the Meints and McKee cases were actions speaking louder than words.