The Nebraska Lawyer January/February 201e by Elisa Oria

PRSRT STD US POSTAGE PAID LINCOLN, NE PERMIT NO. 220

Where Do Political Subdivisions Stand Before Administrative Agencies? Vanessa Silke

Nebraska State Bar Association 635 South 14th Street P.O. Box 81809 Lincoln, NE 68501-1809

Groundwater Transfers in Nebraska Daniel J. Lindstrom

Lincoln Pioneer Lawyers and Gustation Oliver B. Pollak and Lauren R. Goldstein

The

Nebraska Lawyer Official Publication of the Nebraska State Bar Association • January/February 2014 • Vol. 17 No. 1

Features

Pro Bono in the 21st Century - A Vital Factor for Providing Legal Assistance to Those in Need ............................................... Amy

President’s Page Todd Elsbernd G. Michael Fenner

................................................ G. Michael

L. Van Horne

Departments

Fenner

Copy

Letter from the Executive Director - A New Chapter for the Nebraska State Bar Association Elizabeth M. Neeley

........................................... Elizabeth

Where Do Political Subdivisions Stand Before Administrative Agencies?

38 NCLE Calendar - Live Seminars

Silke

41 NCLE Calendar -Telephone Seminars & Webcasts

Groundwater Transfers in Nebraska ............................................Daniel

35 Court News The Nebraska Court of Appeals New Faces and New Procedures

M. Neeley

...............................................................Vanessa

33 2013 VLP Pro Bono Volunteers

42 Legal Community News

J. Lindstrom

43 Transitions

Lincoln Pioneer Lawyers and Gustation

45 In Memoriam 48 Legal Marketplace

...................................................... Oliver

B. Pollak & Lauren R. Goldstein

48 NSBA Calendar

Foster Youth and the Affordable Care Act: What You Need to Know ..... Jerusha

51 Classified Ads 52 2014 Public Service Awards Nomination Form

Hancock, Robert McEwen & Amy West

www.nebar.com The Nebraska Lawyer is the official publication of the Nebraska State Bar Association. A bi-monthly publication, The Nebraska Lawyer is published for the purpose of educating and informing Nebraska lawyers about current issues and concerns relating to their practice of law. THE NEBRASKA LAWYER

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Nebraska State Bar Association 635 South 14th St., Lincoln, NE 68508 (402) 475-7091 • Fax (402) 475-7098 (800) 927-0117 • www.nebar.com

EXECUTIVE COUNCIL

President: G. Michael Fenner, Omaha President-Elect: Amie C. Martinez, Lincoln President-Elect Designate: Robert F. Rossiter Jr., Omaha House of Delegates Chair: Joel M. Carney, Omaha House of Delegates Chair-Elect: Timothy R. Engler, Lincoln House of Delegates Chair-Elect Designate: Robert J. Parker Jr., Hastings Past President: Marsha E. Fangmeyer, Kearney Past House of Delegates Chair: Steven F. Mattoon, Sidney First District Rep.: Glenda J. Pierce, Lincoln Second District Rep.: J. Scott Paul, Omaha Third District Rep.: Todd B. Vetter, Norfolk Fourth District Rep.: Hon. John F. Irwin, Omaha Fifth District Rep.: Michael R. Dunn, Falls City Sixth District Rep.: Michael J. McCarthy, North Platte

ABA State Delegate: Supreme Court Liaison:

Robert M. Hillis, Fremont Chief Justice Michael G. Heavican, Lincoln

Young Lawyers Section Chair: Executive Director:

Luke M. Simpson, Kearney Liz Neeley, Lincoln

issue editor

Jeanelle R. Lust

Jeanelle R. Lust is the managing partner at the Knudsen law firm where she has practiced since 1994. Her practice focuses on commercial litigation. She attended Creighton University School of Law, graduating summa cum laude in 1994. Jeanelle finished number one in her graduating class, receiving the Faculty of Law Highest Triennial Average Award for having the highest grade point average after each year in law school, and was Assistant Editor of the Creighton Law Review. Jeanelle is presently a member of the Publications Committee of the Nebraska Bar Association that publishes and edits the Nebraska Lawyer Magazine. She is a member of the bar in South Dakota, Nebraska and Colorado.

EDITORIAL BOARD Chair: P. Brian Bartels, Omaha Thomas F. Ackley, Omaha Kelly L. Anders, Omaha Melodie Turner Bellamy, Minden Christopher P. Bellmore, Omaha James C. Bocott, North Platte M. Therese Bollerup, Omaha Elizabeth S. Borchers, Omaha Joel M. Carney, Omaha Thalia L. Downing Carroll, Omaha Kent E. Endacott, Lincoln Elizabeth Eynon-Kokrda Christopher M. Ferdico, Lincoln Brandie M. Fowler, Omaha Joseph W. Grant, Omaha Carla Heathershaw Risko, Omaha Justin W. High, Omaha Tracy Hightower-Henne, Omaha

Andrea M. Jahn, Omaha Brandy R. Johnson, Lincoln Justin J. Knight, Lincoln John A. Lentz, Lincoln Jeanelle R. Lust, Lincoln Michael W. Meister, Scottsbluff Gregory B. Minter, Omaha Luke H. Paladino, Omaha David J. Partsch, Nebraska City Amanda M. Phillips, Omaha Edward F. Pohren, Omaha Noah M. Priluck, Omaha Kathleen Koenig Rockey, Norfolk Monte L Schatz, Omaha Ronald J. Sedlacek, Lincoln Colleen E. Timm, Omaha Joseph C. Vitek, Houston, TX

Executive Council Liaison: Robert F. Rossiter Jr., Omaha Executive Editor: Kathryn A. Bellman kbellman@nebar.com Layout and Design: Sarah Ludvik sludvik@nebar.com Library of Congress: Paper version ISSN 1095-905X Online version ISSN 1541-3934 ADVERTISING SALES: Sam Clinch NSBA 635 S. 14th Street Lincoln, NE 68508 Ph: (402) 475-7091, ext. 125 Fax: (402) 475-7098 sclinch@nebar.com www.nebar.com CLASSIFIED ADVERTISING: Sarah Ludvik Nebraska State Bar Association (402) 475-7091, ext. 138 • sludvik@nebar.com

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The Nebraska Lawyer The Nebraska Lawyer is published by the Nebraska State Bar Association through the work of the Publications Committee for the purpose of educating and informing Nebraska lawyers about current issues and events relating to law and practice. It allows for the free expression and exchange of ideas. Articles do not necessarily represent the opinions of any person other than the writers. Copies of The Nebraska Lawyer editorial policy statement are available on request. Due to the rapidly changing nature of the law, the Nebraska State Bar Association makes no warranty concerning the accuracy or reliability of the contents. The information from these materials is intended for general guidance and is not meant to be a substitute for professional legal advice or independent legal research. Statements or expressions of opinion or comments appearing herein are those of the authors and are not necessarily those of the Nebraska State Bar Association or The Nebraska Lawyer magazine.

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president’s page

Todd Elsbernd

G. Michael Fenner

Todd Elsbernd was admitted to the practice of law in Nebraska on September 13, 1988. Twenty-five years and two months later he was gunned down as he left his Grand Island office. A suspect has been arrested. It is alleged that the gunman had lain in wait outside Todd’s office for three hours, waiting for Todd to come out on the street. This is a great and tragic loss for his family, for his partners, and for all members of the Nebraska State Bar Association.

he finally understood, he said, in a halting manner, “But he was such a nice guy.” And he was “such a nice guy”—and, I will add, a compassionate man in his personal and his professional life. It did not take long to figure that out and to miss him when he was gone. He was liked and respected by his clients. And he was an excellent attorney—and his clients (except for the one alleged to have fired the shots) knew that.

Todd was a caring husband and father, a talented and hardworking advocate for his clients, and a good friend to all lucky enough to know him. And whatever differences we may have on other matters, all of the 9,740 members of the Nebraska State Bar Association unite in expressing their sympathy and sorrow to Todd’s family and his partners.

At Todd’s law firm, Wednesday, November 13, the day of the fatal shooting, began like most others. His partner Jamie Mues Jankovitz told me that it had been a hardworking, busy day. As was not uncommon, by that evening the members of the firm were gathered in Todd’s office—affectionately referred to as the “duck blind”—“laughing, joking, not even participating in ‘shop talk’, but talking And we extend our sorrow and symabout our kids, our homes…” As she was pathy to his clients, such as this man. Born: November 22, 1960 leaving Todd’s office, Jamie and Todd Earlier in his last day, Todd made a trip Admitted to the Bar: September 13, 1998 exchanged high-fives, Todd said, “It’s all to the Norfolk Regional Center to meet a Died: November 13, 2013 good,” Jamie said, “It absolutely is.” Todd new client for the first time. The client was was heading home to make deer jerky. a man of limited intelligence. The next day this new client phoned Bradley, Elsbernd, Andersen, Kneale It was, so far, the way many of us like to end our work & Mues Jankovitz and asked for Todd. The client had some day: with the friends we work with, laughing, joking, talking trouble understanding that the man he had just met the day about our kids, about Bluejay or UNL basketball—the kind of before—this man who was to be his lawyer—was dead. When

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president’s page conversation that relaxes us, brings us closer together, makes us, as one famous Omahan has said, “Tap dance to work” the next morning. It was not a day for bad news but, as Jamie put it to me, a day of “care, friendship and good days ahead.” Until 6:30, when the shots rang out killing the “good days ahead.” “That”—the laughing, sharing family stories, exchanging high-fives, and “It’s all good”—“is my last memory,” Jamie said, “and I am blessed that it was a good one.” All who knew Todd were blessed. I knew him when he was a student of mine at the Creighton University School of Law. Our long-time faculty members remember him fondly. Like Todd’s partner, we are blessed that our memory of him is a good one. And here is the cruel irony. Whoever goes on trial for this crime will be represented by an attorney. In my opinion the shooter had best begin praying that his lawyer is as talented and kindhearted as Todd.

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On behalf of the Nebraska State Bar Association, the Creighton University School of Law, and myself, I wish Jeanie and their three sons—Lucas, Zeb, and Josh—strength today and joy tomorrow.

G. Michael Fenner, President Phone: (402) 280-3090 • Fax: (402) 280-2456 E-Mail: fenner@creighton.edu

Note: Todd is survived by his wife Jeanie and three sons, Lucas, Zeb, and Josh, ages 13, 16, and 21. A SOLACE request has gone out noting that a memorial fund has been established in his memory at the Five Points Bank, PO Box 1507, Grand Island, NE, 68802. The fund is to cover both short-term financial needs of Todd’s family and the college education of his three sons. If you wish to contribute, checks may be made out to “Todd Elsbernd Memorial.”

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letter from the executive director

A New Chapter for the Nebraska State Bar Association On Friday, December 6th the Nebraska Supreme Court issued its opinion in In Re Petition for a Rule Change to Create a Voluntary State Bar of Nebraska. While all the ramifications of the court’s opinion are not yet completely clear, the opinion has fundamentally altered the role and the future of the Nebraska State Bar Association, which is now a hybrid unified/voluntary bar association. The Court ruled that the State may require a lawyer to be a member of a mandatory or unified bar and pay a compulsory assessment. As stated in the opinion, every lawyer must pay a mandatory “bar admissions assessment.” The NSBA is required to collect the assessment and remit it directly to the Supreme Court. This assessment is to pay for the Court’s expenses for Admissions, Discipline, and the Commission on the Unauthorized Practice of Law. Effective January 1, 2014 no portion of the “bar admissions assessment” will be available to fund the operation or activities of the NSBA. At the time of this letter, we have just begun communications with the Administrative Office of the Courts on how to ensure as smooth of a transition as possible of these important regulatory functions. The Court also noted that members may elect to pay voluntary dues to fund the operation of the Association and the Association’s “many laudable and worthwhile programs which have served the legal profession well.” To say that this has presented a significant blow to the financial stability of the Association is putting it mildly. Of particular concern is that our financial position impacts our THE NEBRASKA LAWYER

Elizabeth Neeley

ability to achieve our mission. At the time of this letter, we are not sure what percentage of Nebraska attorneys we will retain as “voluntary members” but wish to sincerely thank the many attorneys who have continued to support the Nebraska State Bar Association by paying the voluntary portion of NSBA dues. As stated in the Court’s revisions to the Rules of Court: “The purposes of this Association are to assist in the collection and distribution of Nebraska Supreme Court mandatory membership assessments used to pay all costs associated with the Court’s regulation of the practice of law; improve the administration of justice; to foster and maintain high standards of conduct, integrity, confidence, and public service on the part of those engaged in the practice of law; to safeguard and promote the proper professional interests of the members of the Bar; to provide improvements in the education and qualifications required for admission to the Bar, the study of the science of jurisprudence and law reform, and the continuing legal education of the members of the Bar; to improve the relations of the Bar with the public; to carry on a continuing program of legal research; and to encourage cordial relations among the members of the Bar. All of these purposes are to the end that the public responsibilities of the legal profession may be more effectively discharged.”

The NSBA would like to continue its core programs that clearly help the Association effectuate its mission of serving the legal profession and the people of this state. Programs like the Nebraska Lawyers Assistance Program, the Volunteer

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letter from the executive director Lawyers Project, the Rural Practice Initiative, the Judicial Evaluation Poll, the Leadership Academy, and the activities of the NSBA’s Sections and listservs, among others. The reality is that in order to continue these programs, we must rely on a large percentage of Nebraska attorneys paying their voluntary dues. Those who elect to pay voluntary dues are not just offsetting the costs of the direct member benefits that the NSBA is able to provide, they are helping to support the operation of the NSBA and its ability to meet its charge from the Nebraska Supreme Court. While for some this is a compelling reason to pay voluntary dues, we also recognize that the Association can foster payment of voluntary dues and serve the profession by providing direct benefits to its membership.

A Focus on Member Benefits When stacked against the benefits offered by other voluntary state bar associations, the Nebraska State Bar Association’s offerings are already competitive. Historically, however, we have not communicated well about the value of membership and the benefits that the NSBA can offer. In the coming year, the NSBA will be working hard to continue to improve its direct benefits to members who pay voluntary dues. We will also work hard to do a better job of explaining how these benefits directly support our members and in many respects pay for themselves.

Moving Forward At this time, there are a lot of questions facing the Nebraska State Bar Association; questions about our future mission, our governance structure, our financial stability, etc. Mike Fenner, President of the NSBA, has established a number of Ad-Hoc Committees charged with considering these questions and making recommendations regarding the future direction of the Association. In order to make these decisions in a member-informed way, we anticipate conducting several electronic surveys of the bar membership. Your input in this process is important and appreciated. In closing, I’d like to personally thank you for your support of the Nebraska State Bar Association in 2014. We appreciate the opportunity to serve you and show you the value of your membership.

Elizabeth Neeley, Executive Director Phone: (402) 475-7091 • Fax: (402) 475-7098 E-Mail: lneeley@nebar.com

Direct Member Benefits for Regular/ Judicial/Junior/Senior Active members who pay voluntary dues include:

Direct Member Benefits for Regular Inactive members who pay voluntary dues include:

• Casemaker, the NSBA’s free online legal research tool • Professional development opportunities • Discounts on all NSBA CLE plus 2 Free Hours of NSBA Ethics • The Nebraska Lawyer magazine • Access to the NSBA online member directory • Full access to the NSBA website • NSBA listservs • Membership in NSBA Sections and Committees • Access to eCounsel – the NSBA online newsletter • Access to the NSBA Legislative Update • Representation of the Association’s interests before the Nebraska Legislature • Opportunity to serve as leadership for the Association • Access to other discounts for products and services • Access to the NSBA’s online resource center (under development) which includes Practice Forms, Manuals and Worksheets

• The Nebraska Lawyer magazine •A ccess to the NSBA online member directory with a future addition of inactive members. •F ull access to the NSBA website (excluding Casemaker) • Certain NSBA listservs • Membership in NSBA Sections and Committees • Access to eCounsel – the NSBA online newsletter • Access to the NSBA Legislative Update • Access to other discounts for products and services

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feature article

Where Do Political Subdivisions Stand Before Administrative Agencies? by Vanessa Silke

Recently, in In re Application A-18503, 286 Neb. 611, 838 N.W.2d 242 (2013), the Nebraska Supreme Court had the opportunity to set out the contours of standing for a political subdivision, as well as an individual, to participate as a party in a contested case before a state agency proposing to act on an application to appropriate water. In In re A-18503, a divided Court held that no one has standing to object to the agency’s approval of the application because neither the individual nor the political subdivision alleged an injury in fact due to the agency’s approval of the application. In In re Application A-18503, the Department of Natural Resources (“DNR”) had before it an application for the appropriation of over 400 cfs of water from the Niobrara River, an application that sought to appropriate water for which the necessary flow was almost never available.1 Natural Resources

Vanessa Silke

Because a designation of the basin as fully appropriated was not certain to result from DNR’s approval of the application, the majority In re Application A-18503 found the NRDs assertion of injury to be too remote and speculative to establish standing.2 The holding in In re Application A-18503 merits a closer look at standing principles, and raises a number of questions regarding the ability of a political subdivision to establish standing when an agency’s proposed action will impair or alter the political subdivision’s ability to carry out its statutory duties and responsibilities. In order to establish common law standing, a party must allege an injury in fact.3 The injury must be to the party itself, and must be distinct and palpable, as well as actual or imminent.4 Such injury must be fairly traced to the challenged action and be redressed by a favorable decision.5 When interpreting common-law standing, the Court has looked to federal case law for guidance.6

Vanessa Silke is an associate attorney with Blankenau Wilmoth Jarecke LLP in Lincoln, Ne. She is licensed to practice law in Nebraska and Iowa. Ms. Silke represents political subdivisions, as well as private individuals and entities, in administrative and judicial proceedings involving natural resources allocation, regulatory enforcement, land use planning, and eminent domain. She also applies her previous experience with contract negotiation and human resources management to address transactional and employment law issues faced by the firm’s diverse client base. THE NEBRASKA LAWYER

Districts (“NRDs”) alleged that if the application was granted, a fully appropriated designation was likely under DNR’s thencurrent regulations, and due to the depletion of water available for appropriation in light of the approval, the NRDs would be forced to expend public funds pursuant to their statutory duties and responsibilities.

However, where constitutional or statutory provisions are inconsistent with the common law, the common law rules regarding standing do not apply.7 Statutes and agency regulations, which have the effect of statutory law8, have conferred broader standing than the common law.9 As such, the Court has looked to the legislative intent of a given statutory scheme and liberally interpreted standing principles.10

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where do political subdivisions stand before administrative agencies? Statutes may also establish rights forming the basis of a party’s standing.11 The Court has held that where a political subdivision has expended time and money implementing its statutory duties, it should be allowed to participate in an action that may dismantle its efforts.12

to DNR’s fully-appropriated designation; the Court reasoned that DNR’s action required NRDs to implement regulatory measures that would be costly to the taxpayers located within each of the NRDs, as such, the NRDs established an actual injury to their statutory rights and responsibilities.15

Prior to In re Application A-18503, the Court held that to have standing, a political subdivision must assert its own interests – not those of third parties.13 Specifically, NRD could not establish standing by alleging that approval of an application by DNR may affect water rights of individuals located within an NRD to confer standing.[x]

Importantly, the Middle Niobrara Court held, “Holding that the NRDs lacked standing here would leave political subdivisions at the mercy of superior agencies with no redress for actions that improperly or arbitrarily and capriciously require them to spend public funds.”16

The requirement that a political subdivision assert injury to its own interests was met in Middle Niobrara NRD v. Dept. of Natural Resources, wherein NRDs challenged DNR’s designation of the Lower Niobrara River Basin as fully appropriated. Under the Nebraska Ground Water Management and Protection Act (“NGWMPA”), NRDs and DNR are required to engage in an ongoing analysis of the availability of water and, when DNR designates a basin as fully appropriated, are to jointly develop integrated management plans (“IMPs”) to implement regulatory actions, including stays on the approval of new applications for the use of ground and surface water.14 The NRDs’ asserted injury in Middle Niobrara was that each would have to levy taxes and expend public funds pursuant

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The Middle Niobrara case highlights the interplay between agencies and political subdivisions that concurrently administer and regulate the use of water. The Court has noted that DNR itself “has no independent authority to regulate ground water users or administer ground water rights for the benefit of surface water appropriators… different agencies regulate ground water and surface water.”17 However, when DNR grants a surface water application that results in a fully-appropriated designation, DNR effectively regulates the use of ground water by triggering stepped-up regulation and expenditures by NRDs as to ground water use. And, under the GWMPA, NRDs may, jointly with DNR, develop an IMP in the absence of a fully appropriated designation to proactively manage the use of water.18 Thus, actions by

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where do political subdivisions stand before administrative agencies? DNR prior to a determination of a basin as fully-appropriated can and do trigger actions by NRDs pursuant to their statutory rights and responsibilities.

12 Butler

The majority holding in In re Application A-18503 failed to recognize the reality of water administration and regulation in Nebraska, and uncouples review of and participation in DNR’s actions from the NRDs’ concurrent enforcement of clearly delineated duties and responsibilities to conjunctively manage water use. In effect, the only parties that would be directly affected by DNR’s approval of an application have no incentive to challenge it. Such interpretation of standing is likely to impair the ability of NRDs to fulfill their statutory responsibilities because they have been barred from participation before DNR in actions which trigger such duties – a result the Court explicitly sought to avoid in Middle Niobrara.19

[x} Metropolitan

County School District , et al v. Freeholder Petitioners, et al. 283 Neb. 903, 908, 814 N.W.2d 724, 729 (2012).

13 Cent.

Nebraska Pub. Power & Irr. Dist. v. N. Platte Natural Res. Dist., 280 Neb. 533, 788 N.W.2d 252 (2010). Utilities Dist. v. Twin Platte NRD, 250 Neb. 442, 550 N.W.2d 907 (1996).

14 NEB.

REV. STAT. § 46-701 et. seq.

15 Middle

Niobrara NRD v. Dept. of Natural Resources, 281 Neb. 634, 799 N.W.2d 305 (2011)

16 Middle

Niobrara Natural Res. Dist. v. Dep’t of Nat. Res., 281 Neb. 634, 647, 799 N.W.2d 305, 315 (2011).

17 In

re Cent. Nebraska Pub. Power & Irr. Dist., 270 Neb. 108, 117, 699 N.W.2d 372, 378 (2005).

18 NEB.

REV. STAT. § 46-715(b).

19 Middle

Niobrara Natural Res. Dist. v. Dep’t of Nat. Res., 281 Neb. 634, 647, 799 N.W.2d 305, 315 (2011).

In re Application A-18503 calls into question the ability of a political subdivision with clearly delineated statutory duties to participate as a party in an agency’s action that triggers those very duties. The effect of In re Application A-18503 has yet to be determined, but given the reality that state agencies often dictate the interpretation of statutes that also trigger action by various political subdivisions, establishing standing may be unlikely absent a number of statutory amendments.

Endnotes 1 In

re Application A-18503, 286 Neb. 611, 630, 838 N.W.2d 242, 255 (2013)(dissent, J. Connolly).

In re Application A-18503, 286 Neb. 611, 618, 838 N.W.2d 242, 247-48 (2013).

Cent. Nebraska Pub. Power & Irr. Dist. v. N. Platte Natural Res. Dist., 280 Neb. 533, 542, 788 N.W.2d 252, 260 (2010).

Frenchman-Cambridge Irr. Dist. v. Dep’t of Natural Res., 281 Neb. 992, 998, 801 N.W.2d 253, 258 (2011).

Butler Cnty. Sch. Dist. 12-0502 v. Freeholder Petitioners 1 through 10, 283 Neb. 903, 907, 814 N.W.2d 724, 728 (2012).

See, e.g., Ponderosa Ridge LLC v. Banner Cnty., 250 Neb. 944, 948, 554 N.W.2d 151, 156 (1996), citing Whitmore v. Arkansas, 495 U.S. 149, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990); Concerned Citizens of Kimball Cnty., Inc. v. Dep’t of Envtl. Control of State, 244 Neb. 152, 505 N.W.2d 654 (1993), citing Hunt v. Washington Apple Advertising Comm’n, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977); and Field Club Home Owners League v. Zoning Bd. of Appeals of Omaha, 283 Neb. 847, 852, 814 N.W.2d 102, 106 (2012), citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

Hall v. Progress Pig, Inc., 254 Neb. 150, 157, 575 N.W.2d 369, 374 (1998); In re Application A-18503, Water Div. 2-D., 286 Neb. 611, 637, 838 N.W.2d 242, 259 (2013) (dissent by J. Connolly).

Robbins v. Neth, 273 Neb. 115, 121, 728 N.W.2d 109, 115 (2007).

Schauer v. Grooms, 280 Neb. 426, 437, 786 N.W.2d 909, 920 (2010), citing Metropolitan Utilities Dist. v. Twin Platte NRD, 250 Neb. 442, 550 N.W.2d 907 (1996).

1345 Wiley Road, Suite 121, Schaumburg, Illinois 60173 Telephone: 847-519-3600 Fax: 800-946-6990 Toll-Free: 800-844-6778 www.landexresearch.com

10 See,

e.g. Trailblazer Pipeline Co. v. State Bd. of Equalization & Assessment, 232 Neb. 823, 827, 442 N.W.2d 386, 388 (1989).

11 National

Federation Of The Blind Of Nebraska, Inc., V. Outlook Nebraska, Inc., 2011 WL 4802643, *3 (D.Neb.), citing Warth v. Seldin, 422 U.S. 490, 500 (1975).

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the Nebraska State Bar Association EP1411

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feature article

Groundwater Transfers in Nebraska: Obstacles and Opportunities to Buying and Selling Groundwater Rights by Daniel L. Lindstrom

If you practice law in farm country (and let’s face it, whether you realize it or not, if you are in Nebraska, you are in farm country), you will sooner or later become aware of a new and growing market for groundwater. In Greater Nebraska, it is not uncommon to hear radio advertising or see written advertising indicating that some agricultural land realtor has water rights listed for sale. We can sell water in Nebraska, you ask? Well, yes and no.

Some Background Despite the opinions of early explorers that the area encompassing Nebraska was a vast wasteland, referred to in the early nineteenth century as the “Great American Desert1,” our state is blessed with incredible, but not unlimited, underground water resources. While many aquifers underlie portions of

Daniel L. Lindstrom Daniel J. Lindstrom is a shareholder with Jacobsen Orr Lindstrom & Holbrook, PC, LLO and has practiced law with the firm since 1986. His practice includes litigation of insurance, business, agricultural, water, zoning, annexation and other matters. Mr. Lindstrom also represents clients in business and corporate matters. In addition to his litigation and business practice, he has been actively involved in representing and consulting with clients, including Kearney and other Nebraska communities, on issues relating to economic and community development, including Tax Increment Financing (TIF). THE NEBRASKA LAWYER

Nebraska, the most notable and important to human activity is the “High Plains” or “Ogallala” Aquifer. As one of eight states sitting atop the Ogallala Aquifer, the size of the Nebraska portion considerably dwarfs that of the other seven states.2 As of October 1, 2013, Nebraska had approximately 209,442 groundwater wells. These wells are used for a variety of domestic, irrigation, and municipal purposes.3 Like the topography, geology, and weather of Nebraska, our underground water resources are highly variable. In some places the aquifer recharges at a rate that roughly keeps up with, or exceeds, pumping demand. In many other places, however, it does not. In many places, the volume of stream flow is directly connected to the quantity of underground water in adjacent aquifers, but in other places the relationship between surface water resources and groundwater resources is negligible at best. These relationships are complicated and they affect the regulatory and legal rules pertaining to water use in Nebraska in ways that we can only superficially discuss in this article.4

Some Basics The Public Owns the Water In Nebraska The concept of public ownership of water in Nebraska is sometimes confusing to clients. For example, I can convey my real estate to you, and retain the right to ownership of any minerals lying beneath the surface of that property, thereby severing that right before granting the property to you. I cannot, however, do the same thing with the water under my land. This is because, rather than being treated like a mineral right that is a severable property right,5 the surface water of Nebraska is dedicated to the people by the Nebraska Constitution.6 Likewise both the Supreme Court7 and the Legislature have

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Groundwater transfers in nebraska also determined that the ground water underlying the land in Nebraska belongs to the public.8 So if it is owned by the public, and therefore ownership of the water itself cannot be severed from the real estate, how can it be sold or otherwise conveyed apart from conveyance of the real estate? Read on.

Groundwater Property Rights Are Limited Rights to Use Ground water is “that water which occurs or moves, seeps, filters, or percolates through the ground under the surface of the land.”9 In Nebraska, a landowner acquires the right to use groundwater, subject to regulation, by virtue of the ownership of the overlying land.10 The development of case law in the state has long recognized the right of a landowner to withdraw groundwater for a reasonable and beneficial use.11 However, this right to withdraw and use is limited by statute and administrative regulations. With the passage of the Groundwater Management and Protection Act (“GWMPA”),12 and subsequent amendments, the Legislature updated and built upon prior water management statutes, such as those creating Natural Resource Districts within the state.13 The Legislature granted broad authority for each Natural Resource District (“NRD”) to create rules regulating groundwater use and transfers within its boundaries, subject to certain rulemaking and oversight by the Nebraska

$349 $398

Department of Natural Resources (“DNR”). An important component of the GWMPA is the requirement that basins be periodically evaluated by the DNR to determine whether they are fully appropriated or over appropriated.14 If an area is determined to be fully or over appropriated, certain steps must be taken to limit new and existing uses of water, including the adoption of an integrated management plan (“IMP”) by the affected NRD, in conjunction with the DNR. The IMP is implemented with the goal of managing both surface and groundwater uses in a manner that incrementally results in a balance between water use and supply. This IMP process often results in imposition of restrictions and conditions upon the development and use of groundwater resources for irrigation, and it can be the source of some controversy—sometimes resulting in litigation. Moreover, these IMP restrictions (as well as regulation of surface water resources by DNR) often result in creating two classes of irrigators: those who have access to groundwater or surface water for irrigating crops, and those who wish that they had such access.

The Genesis of a Water Market In many cases, the “have-nots” simply lose the use of water for irrigation, either temporarily or for the long term, as the result of NRD or DNR regulation. However, some NRDs have adopted rules that make it possible to transfer rights to

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Groundwater transfers in nebraska withdraw and use groundwater from an existing property to another property.15 As a result, the “have-nots” in those NRDs may still be able to develop irrigation on acres that would otherwise have been relegated to dry land farming only. In some cases NRDs have taken creative steps to incent irrigators to reduce water use and to retire land from irrigation, including the use of “water banks” or “depletion offset accounts” to facilitate temporary or permanent acquisition and retirement of irrigation uses.16 Additionally, some NRDs have begun to purchase groundwater and surface water rights in an effort to augment stream flow and to meet their goals for achieving a favorable balance of supplies and demand for use under their respective IMPs.17 In exchange for adequate consideration, landowners who wish to retire irrigation uses on marginal or difficult-to-irrigate properties are often happy to participate in these NRD programs, or to simply sell their right and transfer it to another irrigator who desires it, when rules permit such a transfer. These recent developments have created a market that didn’t exist prior to passage of LB 962 in 2004.18

Practical Considerations for Completing the Groundwater Transfer If your client is retiring a water right while in the course of working with an NRD that is acquiring the water right, you may simply find the forms that have been developed by the NRD to adequately document the deal and protect the rights of your seller/transferor. The overriding interest of the seller/ transferor is, of course, to be paid the compensation expected and agreed upon. However, be sure to insist on reviewing these documents, as some NRDs are less experienced or sophisticated about documenting transfers. Sometimes conditions to the transfer can be problematic and will require interpretation or negotiation. Often NRDs will use conservation easements as the means of transfer and you will want to ensure that the terms of the conservation easement are reasonable. While an NRD, like other political subdivisions and non-profits, can hold a conservation easement, if you are representing parties in a transfer of water rights between private individuals, be aware that private landowners cannot hold a conservation easement.19 Valuation of the interest to be transferred can be unpredictable. What appears to be happening is that the market price either runs with the NRD’s stated price per acre, or acre-foot, for water banking, or it is calculated to approximate the difference in fair market value of farmland with irrigation versus dry farmland. As mentioned above, a number of realtors have been active in representing sellers of water rights in NRDs in which transfers of groundwater rights are permitted. After having THE NEBRASKA LAWYER

represented buyers in these transactions and having reviewed a number of form-based purchase agreements utilized by real estate agents, I cannot emphasize enough that you should not permit your client who is a buyer to simply accept and rely upon the realtor’s form. It will likely be wholly inadequate in terms of protecting the interests of the buyer of water rights. When tens or hundreds of thousands of dollars are involved, your client will want some contractual promises in place that will provide the client with as many remedies as possible if the deal goes sour. Nonetheless, despite loud and repeated protests, sometimes you cannot convince your client that using a detailed purchase agreement will do anything other than chill the negotiations. Sometimes the seller or seller’s agent will simply refuse to use your well-crafted purchase agreement. In either case, make sure that you have a letter in your file to your buyer client that advises your buyer that: • While the NRD will take some steps to facilitate the transaction according to its rules and certain statutory requirements, it will not and cannot provide the buyer with any assurances or any remedy if the transaction does not go as expected or if the water right obtained is worthless. - The NRD will do what it needs to do to assure that the transfer will comply with its rules for depletion allowance calculations and it will do a simple lien search to comply with the statute20 before it approves the transfer, but those steps are not intended to protect the buyer. - Nothing in the form agreement gives the buyer a specific remedy if the seller of the right: • Does not own the overlying real property from which the transfer arises; • Succeeds in “selling” the same right to more than one buyer; • Fails to comply with NRD rules concerning retirement of the water right on the property from which it is sourced. While intentions are good and expectations are high, these transactions for the transfer of groundwater rights have yet to take on a uniform and predictable course. Proceed with due caution.

Endnotes 1

The 1820 Army Engineers expedition lead by Maj. Stephen H. Long made its way through what later became Nebraska. Major Long’s report concluded that the area was “almost wholly unfit for cultivation” and his cartographer is credited with placing the term “The Great American Desert” on the expedition’s map of the area. Earlier exploration by Zebulon Pike (1806) and Lewis and Clark (1802-06) resulted in similarly uncomplimentary reports about the area’s natural resources—especially its water resources. James C. Olson & Ronald C. Naugle, History of Nebraska 1-4 (3d ed. 1997).

See An Atlas of the Sand Hills 67-122 (Ann Bleed & Charles

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Groundwater transfers in nebraska Flowerday eds., 2d Ed.1990); William Ashworth, Ogallala Blue: Water and Life on the High Plains 9-21 (2007).

http://watercenter.unl.edu/researchdb/nrds/nrdDB.asp. 14 These

determinations have resulted in significant portions of basins in the western half of Nebraska becoming subject to integrated management plans. Currently, all of the Platte River west of Chapman has been designated as either fully or over appropriated, nearly all of the Republican River basin has been designated fully appropriated, and the far western portion of the Niobrara River basin has been designated fully appropriated. For a map of these areas, see Fully Appropriated and Overappropriated Surface Water in Nebraska (Sept. 9, 2011) available at http://dnr.ne.gov/ SurfaceWater/FullyOverAppropriatedAreaStatewide_0911.pdf.

3 State

of Nebraska, Department of Natural Resources, Quarterly Report (Oct. 1, 2013) available at http:// www.dnr.ne.gov/GroundWater/PDF_Files/ SummaryAllWellsRegisteredThridQuarter2013County.pdf (summarizing all wells registered in Nebraska by county).

See Richard S. Harnsberger & Norman W. Thorson, Nebraska Water Law and Administration (1984) [hereinafter Harnsberger]; J. David Aiken, Hydrologically-Connected Groundwater, Section 858, and the Spear T Ranch Decision, 84 Neb. L. Rev. 962 (2006).

Fawn Lake Ranch Co. v. Cumbow, 1025 Neb. 288, 167 N.W. 75, 76 (1918). See also 58 C.J.S. Mines and Minerals § 192 (West 2013).

N.E. Const. Art. XIV, § 5: “The use of the water of every natural stream within the State of Nebraska is hereby dedicated to the people of the state for beneficial purposes . . . .” (emphasis added).

State v. Sporhase, 208 Neb. 703, 706, 305 N.W.2d 614, 617 (1981), rev’d. on other grounds Sporhase v. Nebraska, 458 U.S. 941 (1982).

“The Legislature finds that ownership of water is held by the state for the benefit of its citizens, that ground water is one of the most valuable natural resources in the state . . . .” Neb Rev. Stat. § 46-702 (Reissue 2010) (emphasis added).

Neb. Rev. Stat. § 46-635 (Reissue 2010).

10 See

15 See,

e.g., Ground Water Management Plan, Rules and Regulations, Rule 7 available at http://www.cpnrd.org/2013%20 GW%20Management%20Plan.pdf.

16 See,

e.g., Central Platte NRD’s website available at http:// www.cpnrd.org/Water_Bank.html; Tri-Basin Natural Resources District Rules and Regulations for Management and Protection of Land and Water Resources, Rules 9.6, 9.7 available at http:// www.tribasinnrd.org/documents/GMARules0613.pdf.

17 Importantly,

compliance with the Interstate Compact involving the Republican River basin, and the need to offset depletions pursuant to the Platte River Recovery Implementation Program in the Platte River basin, are also drivers of both IMP provisions and the desire of some NRDs in those basins to participate in such purchases.

Harnsberger supra note 4, at 214.

11 Prather

v. Eisenmann, 200 Neb. 1, 5, 261 N.W.2d 766, 769 (1978); Spear T Ranch v. Knaub, 269 Neb. 177, 187 691 N.W. 2d 116, 128 (2005).

12 Neb.

18 Neb.

Rev. Stat. § 46-739 (Reissue 2010).

19 Neb.

Rev. Stat. § 76-2,111(3) (Reissue 2009).

20 Neb.

Rev. Stat. § 46-739.01 requires the NRD to obtain a title search for purposes of determining whether a lien exists on the property from which the water right is transferred. This provision is not designed to protect the purchaser of a water right, it is instead designed to protect lenders and the value of their security interests.

Rev. Stat. §§ 46-701 through 46-753 (Reissue 2010).

13 There

are currently 23 NRDs in Nebraska. See NU WaterRelated Research by Natural Resources District, available at

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feature article

Lincoln Pioneer Lawyers and Gustation:

The Lancaster County Bar Association Fifth Annual Banquet, Saturday Evening, December 30, 1876*

by Oliver B. Pollak and Lauren R. Goldstein

On December 30, 1876, the Lancaster County Bar Association sat down to its fifth annual banquet at the Metropolitan Hotel.1 They celebrated the season, the American Revolution centenary, the impending new Post Office, and the establishment of Nebraska’s first State Bar Association in January 1876.2 This is a story of pioneer lawyers, legal culture, social networks, dining tastes, the railway and food preservation innovation.

*This paper was presented at the Northern Great Plains History Conference in Hudson, Wisconsin, on September 26, 2013.

“The Banquet The Lawyers of Lincoln Sup Together” Lincoln Daily Globe, January 2, 1877 The Banquet of the Lancaster County Bar Association… was a decided success. The legal fraternity are never so much of one mind or so indif-

➡

Oliver B. Pollak

Lauren R. Goldstein

Oliver B. Pollak is Of counsel at Pollak, Hicks & Alhejaj law firm. He earned his B.A. degree from California State University at Los Angeles, his M.A. and Ph.D. in History at UCLA in 1973 and his J.D. from Creighton University Law School in 1982. He has been practicing law for 30 years with an emphasis in bankruptcy law for the last 20 years. He is a member of the Nebraska State and Iowa State Bar Associations. He is the author of several books and numerous articles on bankruptcy law. Mr. Pollak taught history for 38 years at the University of Nebraska at Omaha and is Emeritus Professor of History at the University of Nebraska at Omaha.

Lauren R. Goldstein received her B.A. (Honours) from Queen’s University and her M.A. in history from McMaster University. She is currently completing her PhD in British history at McMaster. Her dissertation focuses on perceptions of food and the origin of the idea of “bad” English cookery in nineteenth century Britain. She uses cookbooks as her main primary source, including mass publications, community cookbooks, and cookery manuscripts. Ms. Goldstein’s research includes a transnational approach, questioning the roles of the Empire and the Continent in the development of an English food identity. She hopes to study more menus as part of her ongoing interest in food history.

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lincoln pioneer lawyers Too much cannot be said of the good conduct, the good feeling and sensible intercourse which characterized the proceedings of the 5th Annual Banquet of the Lancaster County Bar Association.3

ferent to the dogmas of the religious and political sects to which they belong, as on the occasion of an annual banquet. The ladies present, who for the most part were wives and daughters of the members of the association, were neatly and richly dressed and their presence doubtless had a restraining influence on the appetites and grosser motives of their lords and masters, since all went home before the first hour in the morning sober. The supper was simply excellent, and when the word was given by John H. Ames, president of the association, to “eat, drink and be merry,” the rattle of dishes, the chinking of knives and forks and spoons, the sweet voices of the ladies and the quick step of the pretty waiting girls, all combined, were not sufficient to hush the sound made by the masticating jaws of the hungry lawyers, whose mouths were filled to the teeth with delicious viands which allured the taste of the most fastidious. After all were well filled, the president announced the toast, “Our Association,”” Col. J. E. Philpot [sic] responded with “a few but excellent sentiments. The Colonel had been engaged for some minute previous with a box of sardines and seemed slow to take the floor, so much so, that his friends could scarcely tell whether he had swallowed the sardines or the sardines had swallowed him; but those who were familiar with his voice recognized it as Philpot’s, and he sat down mid shouts of applause” [An inside joke perhaps, the menu included Sardines garnished with Lemons, a la Philpott]. L. W. Billingsley responded to the toast, “The Criminal Law.” Mr. B …kept his audience in a perfect uproar of laughter and applause, with his witty and vigorous treatment of the subject at hand. No banquet could be complete without Billingsley, for he always excites the risible of his hearers.

Statehood transformed Lancaster, a “hamlet of a few hundred inhabitants,” into Lincoln, the capital city. The transcontinental railroad completed in 1869, with a branch line reaching Lincoln in June 1870, accelerated settlement. Nebraska’s population rose from 28,841 in 1860, to 452,402 in 1880. The village of Lancaster, founded in 1856, became Lincoln, the state capital in 1867. Lincoln’s population increased from around 2,000 to 2,500 in 1870 to 13,000 in 1880.4 The United States population, 39 million in 1870, rose to about 50 million by 1880. Nebraska attracted “young and ambitious lawyers living in Illinois, Iowa and other midwestern states” who migrated to county seats and opened law offices, “oftentimes before a town had been officially organized.” They “could quickly climb the legal ladder and make a name for themselves.”5 Samuel J. Tuttle, arriving in Lincoln in March 1869, “found the legal profession both in number and quality well represented, composed in the greater part of young men, well educated, ambitious, capable, and drawn hither by the promise of professional opportunity, incident to the location of the capital of the state.”6 In 1859 the Nebraska Territory had about 60 attorneys, thirty-three in Omaha, seventeen in Nebraska City, and one in Lancaster County.7 A lawyer could hang a shingle with a law degree or two years of law office study, and passing a court administered exam. Stephen Kalish observed, “As the ‘esprit’ of the lawyer class increased lawyers began to form local and national professional organizations. Initially these were selective, social clubs. Their memberships were limited to the most successful and affluent.” City and county bar associations preceded state and national organizations.8

The next toast… “The Judiciary,” … was responded to by the Hon. T. M. Marquette [who] thought it unfair to be called upon without previous notice, … But Mr. M. was equal to the occasion and the subject, his fertile brain, his fluent speech and eloquent manner … convinced everybody present, that … our country still maintained a pure and fearless Judiciary.

The Lincoln city directories underreported the number of lawyers at 38 in 1873-74, and 42 in 1876. Many lawyers came to Lincoln and then moved on. The 1880 census records identified 92 lawyers. Republican Nebraska had nine Republican Attorneys General from 1867 to 1897, eight governors between 1867 and 1894, and elected Republican presidential candidates from 1868 to 1892. Seventy-six percent of Lincoln lawyers in 1880 were Republicans, 18% were Democrats.9 LCBA Republican membership was even higher.

The last and most important toast, was “The Ladies,” and when the president called upon Mr. G. M. Lambertson to respond, every eye was turned toward him, and every ear was attentive to what he was going to say. Everyone expected a good thing and no one was disappointed. We are sorry not to be able to give at least a synopsis of his response to this toast, but an attempt to do so, on our part would not do Mr. L. justice.

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lincoln pioneer lawyers

The Founders Sixteen men organized the Lancaster County Bar Association on June 14, 1872. Officers were elected annually. In 1876 the LCBA had about 30 members. Vignettes and the Appendix reveal professional community leadership.10 Five of the sixteen founders had college degrees, the balance read for the law with a practitioner. Members ranged in age from 26 to 42, the average being 31. Six were Civil War veterans, two were teachers, and three had sons who went into the law. The pioneer lawyer elite participated in federal, state, and

Genio M. Lambertson

Samuel J. Tuttle arrived in Lincoln in March 1869.

local civic affairs. They were appointed or elected to the legislature, served on the Capital Location Committee, and attended the 1871 and 1875 State Constitutional Convention. Federal government appointments included U.S. Attorney, Assistant U.S. Attorney, Custodian of Government Property, and U.S. Commissioner. At the state level three were Attorney Generals, two Supreme Court Justices and sat on the University Board of Regents. They served on the Lincoln Board of Education, Commercial Club, Board of Trade, City Council, mayor, County Commissioner, City Attorney, District attorney,

Stephen Bosworth Pound, founding LCBA President

Carlos C. Burr had 13 Lincoln business blocks, including the Burr Block at 12th & O Streets.

Erastus E. Brown, Lincolnâ&#x20AC;&#x2122;s mayor in 1872 and LCBA President in 1875. Lorenzo W. Billingsley

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lincoln pioneer lawyers County Clerk, and Steward for Lincoln’s Insane Hospital, and as Police Court Judge, Justices of the Peace, District, Probate, and County Court Judges. Terms of office were relatively short. Six had or developed interests in banking, three in railways, two en-gaged in “real estate speculation” and development, and some had publishing interests. Twelve were in fluid and short lived partnerships. They belonged to fraternal organizations and lodges such as the Union Club, Masons, IOOF, Knights of Honor, Knights of Pythias, and the Grand Army of the Republic. Religion appears a private matter, though two were identified as Unitarians. Roscoe Pound said his parents had “never been identified with any church.”11 Association activities included “good fellowship and postprandial felicity,” and the “desire to eat, drink, and be merry, and to eulogize the dead.” Speakers addressed their meetings, they drafted legislation, and supported appointments to the bench. Forty-two members signed a letter urging Stephen B. Pound “to allow your name to be again used as a candidate for the nomination to Judgeship of this district.”12 Several supported the Nebraska State Historical Society, establishing the Lincoln Public Library and the University of Nebraska. The story of Stephen Bosworth Pound, founding LCBA President, reflects a preeminent legal career pathway. Born in New York in 1833, he graduated from Schenectady’s Union College, and completed law office study in New York where he entered the bar in 1863. He moved to Wisconsin, then Nebraska City and finally Lancaster in 1866. He partnered with Seth Robinson, became a Probate Judge, served in the State Senate, sat on the District court bench, and attended the 1875 State Constitutional Convention. His son Roscoe, born in 1870, joined the practice. Judge Pound, his wife and Roscoe were “good” Republicans.13

Lewis A. Groff left Nebraska, moved to Los Angeles and became USC Law School’s first dean. THE NEBRASKA LAWYER

The Lawyer from Antiquity to the Modern Times published by Roscoe Pound in 1953 identified bar associations starting dates. “From personal knowledge” he wrote, “I doubt, however, except for the Omaha Association [1879], whether there was any active local bar association in Nebraska until after 1907.”14 Pound, an infant when his father served as the Lancaster County Bar Association’s founding president, and 83 years old when he published this book, overlooked the LCBA.15 Seth H. Robinson, lauded as “a man of brilliant mind,” and “the ablest lawyer this bar has seen,” served, at age 23, as Nebraska’s Attorney General. He had health problems, moved to San Francisco and died in 1878.16 Nathan S. Harwood, served as Republican Governor Silas Garber’s private secretary. D. G. Hull served as semi-permanent secretary for LCBA and NSBA. Lorenzo W. Billingsley engaged in “real estate speculation.” Carlos C. Burr had thirteen Lincoln business blocks, including the Burr Block at Twelfth and O Streets. He helped induce the Missouri Pacific Railroad to extend its line to Lincoln.17 Judge William Gaslin described Caleb J. Dilworth as “clear-headed and a good trial lawyer” and a prosecutor with “genius and tact to convict criminals, without exciting their hatred.”18 Lewis A. Groff moved to Los Angeles and became USC Law School’s first dean. According to J. Sterling Morton, James Philpott had Morton (Democratic President Grover Cleveland’s Secretary of Agriculture) arrested in 1870 for stealing firewood. Attorney General Seth Robinson prosecuted the trespass action before Judge Ames. Supreme Court Justice Mason’s “long and vigorous dissent” favored Morton’s position.19 Philpott, the last surviving founder, died in 1927. Charles M. Parker, supported temperance and moral reform. Political differences over silver coinage and the gold standard caused some to change political parties.

Carlos C. Burr had 13 Lincoln business blocks, including the Burr Block at 12th & O Streets. Jan u ary / f ebr u ary 2 0 1 4

lincoln pioneer lawyers

The Metropolitan Hotel Samuel Tuttle, a 1868 Albany Law School graduate, in the same class as William McKinley was appointed by Democratic governors to two judgeships. A scholar, “his books were his recreation.” Tuttle taught law and presided over the Lancaster County Bar Association in 1916. Erastus E. Brown, Lincoln’s mayor in 1872, LCBA President in 1875, closed his law practice upon becoming President of the State National Bank of Lincoln. John H. Ames published Lincoln, Capital of Nebraska in 1870. Tuttle described Ames as “possessing a legal mind of rare caliber, a wide reader and with conversational powers hardly excelled. His contributions to the press, on account of their worth, always received attention.”20 Oliver Perry Mason lived in New York, Ohio and Michigan before settling in Nebraska City in 1855. He moved to Lincoln in 1874. An “aggressive and fearless” lawyer, Territorial Justice Harden in 1855 witnessed Mason and H. P. Bennett engage “in physical combat, but no blood was shed.”21 He sat in the territorial lower house. During the war he was a Colonel and provost marshal. He sat on the Supreme Court from 1867 to 1873. He captured attention at the 1875 Constitutional Convention for “The most exciting verbal combats…between O. P. Mason and Charles F. Manderson, the first represented the rough and ready spirit of the frontier and the second the polish and culture of the east.”22 Lincoln lawyers were a westwardly mobile cohort. Five members were born in Ohio, three in New York, two in Illinois, Indiana and Pennsylvania, one in Michigan, and one to missionary parents in Bombay, India. Five spent time in Iowa. Six left Nebraska, two left Lincoln.

The Metropolitan Hotel In 1876 Lincoln had about a dozen hotels. The Metropolitan Hotel at the corner of O and Eighth Streets proudly described its premises in Lincoln, Past, Present and Future: Nothing more surely indicates the growth of Lincoln and the immense travel constantly flowing to and from her borders, than the number and character of her hotels. Among the best of these is the Metropolitan... It is not always the largest hotel that is the best, and the Metropolitan, although its rooms are limited to forty-five, with a capacity of eighty guests, is none the less excellent on that account. Its rooms are handsomely furnished and its table well supplied with all the good things that make life enjoyable. The dining-room is neat, airy, light and cosy, with the capacity to seat thirty-eight people. Ten persons are employed to assist in the various departments, seven of them being female... There is not a pleasanter or more home-like place in the city to stop.23

The hotel burned down in 1889.24

From Bill of Fare to Menu Recipes “á la Francaise,” or written in French, were common in the second half of the nineteenth century as French cuisine became more popular and was seen as more sophisticated. The term “menu” itself became more fashionable and accepted in the nineteenth century rather than the phrase “Bill of Fare.” Dinner service styles were also in transition in the nineteenth century. Service á la Francaise, the French style, consisted of two main courses, each course containing multiple platters set on the table and served family style. This type of service eventually gave way to service á la Russe, the Russian style, although in the second half of the nineteenth century both could be found at various dinner tables across Western

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lincoln pioneer lawyers Europe and the United States depending on income and dinner party size. Service á la Russe comprised a series of courses, each individually served by a waiter to each diner.

pelled by the Crimean and Civil War, were still beginning their success story. The invention of the can opener in the 1850s helped increase the popularity of canned items.

Presidential inaugurals, opportunities to satisfy supporters, set standards for opulence.25 Abraham Lincoln and Ulysses S. Grant, rather plain in their food tastes, hosted meals that belied simplicity.

The menu is silent about common foods: bread, soup, vegetables, potatoes, sweet potatoes, green peas, green corn, tomatoes, cabbage, beets, rice, carrots, beans, green beans (haricots verts), and spinach.

The New York Times reported that “The bill of fare” for Lincoln’s second inauguration, “provided a select and tasteful variety, and no better idea of it can be obtained than by inserting it right here verbatim.” The 78 items included 26 offerings of oysters, terrapin, beef, veal, turkey, chicken, grouse, pheasant, quail, venison, duck, ham, tongue, salades, chicken, and lobsters, and 52 sweets in an “ornamental pyramid.”26 Lincoln preferred Fricasseed Chicken, Scalloped Oysters, and Election Cake. “It was not their custom to serve alcoholic beverages at White House entertainments.”27

Some dishes honored Lincoln lawyers. Boned Turkey, dressed with Forced Meats, “a la Mason” is not a typographical error for maison, but named after Supreme Court Justice Mason. Sardines, Garnished with Lemons, a la Philpott honors Colonel James E. Philpott. North Atlantic Sardines were first canned in Europe around 1830. Between 1860 and 1890 sardines were served from a silver plate or majolica “Sardine Box.” Buffalo Tongue, a la Lambertson honored Genio Madison Lambertson a Metropolitan Hotel resident. Ames’s Sugar Cured Ham did not honor John H. Ames, the 1876 LCBA President, nor the Iowa State University agricultural program in Ames, rather it came from St. Louis, and Henry Ames & Co. founded in 1844. They shipped their sugar cured ham by river and rail helping to make sugar-cured hams “the bedrock of American porcine cuisine.”31 Turkey Salad Lawyer Style remained anonymous.

President Grant raised the ostentation bar. The provisions for his second inauguration in March 1873 comprised a cornucopia of 34 offerings, including, 10,000 fried oysters, and prodigious amounts of quail, tongues ornamented with jelly, capons stuffed with truffles, partridges, boar’s heads, 3,000 ham sandwiches, 3,000 beef-tongue sandwiches, 1,600 bunches of celery, 2,000 pounds of lobster, 2,500 loaves of bread, 8,000 rolls, and 1,000 pounds of butter. Desserts amassed 300 charlotte russes, 200 moulds of blanc mange, 300 gallons of ice cream, 400 pounds of mixed cakes, barrels of Malaga grapes and apples, cases of oranges, 400 pounds of mixed candies, 200 pounds of shelled almonds, coffee, tea, hot chocolate, and 300 gallons of claret punch.28 Grant enjoyed Fillet de Boeuf a la Jardiniere with Hollandaise Sauce, and Roman Punch mixing lemon sherbet, choice rum, and champagne. “As a general rule, wine is served about every third course.” The next first lady, Lucy Webb Hayes, banned alcoholic beverages in the White House.29

The Lancaster County Bar Association 1876 Banquet Menu The Metropolitan Hotel seven course banquet menu offered ninety-three choices: 8 kinds of oysters, 12 cold relieves, 11 game dishes, 15 relishes, 11 jellies and creams, 30 cakes and confectionary, chocolate, tea and French coffee. Following oysters guests feasted on chicken, venison, ham, three styles of turkey, buffalo tongue, goose, corn beef, mutton, lobster, and sardines. Almost all the recipes were in five cookbooks published between 1864 and 1876.30 Provisions came from Lincoln grocers, butchers, bakers, confectionary, fruit vendors, wine and liquor stores, ice suppliers, local farmers and hunters, Chicago, Cincinnati, St. Louis and Omaha. Grocers sold fresh, jarred, dried, preserved, and canned products, the latter of which, proTHE NEBRASKA LAWYER

Oysters Nineteenth century America had a love affair with oysters. In The Big Oyster, Mark Kurlansky writes that the first oyster cannery opened in 1819 and that increasing use of steam ships sent New York oysters to Europe. A system of canals connecting New York City to the Great Lakes and the Midwest facilitated shipping fresh oysters. The “oyster line” stagecoach delivered oysters on ice from Maryland to Cincinnati in five days. Oysters followed the rail line from New York to Buffalo, Cleveland, Cincinnati and St. Louis, and “After the war, New York oysters became a common feature of the restaurants in St. Louis hotels.”32 The steamer Arabia which sank near Kansas City in 1856, the Bertrand plying the Missouri from St. Louis to Virginia City, Montana’s gold diggings, sank 20 miles from Omaha in 1865. Their cargoes included canned oysters.33 The Lincoln Daily Globe advertised canned oysters in 1877. The transcontinental railway allowed that “Every Christmas, thousands of barrels of oysters…were shipped to Denver, San Francisco, and other Western Cities.” Northern oysters were thought “more durable for travel.” The refrigerated railcar appeared in 1875. Newspapers advertised the arrival of New York City oysters.34 The banquet menu offered raw, stewed, fried, escalloped, spiced, a la Delmonico, a la Francaise, and a la Normandi oysters. The Metropolitan Hotel 1879-80 cash ledger contains entries for oysters at 50 cents and 55 cents.35 Jan u ary / f ebr u ary 2 0 1 4

lincoln pioneer lawyers The typical 1870s cookbook contained about a dozen oyster recipes. The recipe “a la Delmonico” represented further influence from the east coast. New York’s Delmonico’s restaurant opened in the 1830s as a fine dining establishment. The Epicurean, by Charles Ranhofer, Delmonico’s chef from 1862 to 1894, offered 57 oyster recipes. Delmonico’s rarely named recipes “a la Delmonico” but other cookbook authors and menus appropriated the name to seem extravagant. Lincoln, Nebraska does not automatically call to mind oysters, the lawyer’s banquet menu is proof of the triumphs in food transportation and preservation.

Cold Relieves “Cold Relieves” was likely an anglicised version of “relevé,” often also called “remove.” The Larousse Gastronomique, states, “REMOVE. Relevé--Dish which in French service relieves (in the sense that one sentry relieves another) the soup or the fish.”36 This was a dish that was removed from the table and replaced with another one during the course of the dinner. The inclusion of “Cold Relieves” on the menu could indicate that the banquet was served “a la Francaise,” potentially with long tables where diners only sampled whichever dishes were put in front of them; it was unlikely each guest ate all of the dishes on the vast menu. Nomenclature in transition can be confusing. Buffalo herds still roamed. Their tongues were “the choicest morsels…indeed splendid, its meat firmer, leaner, darker and smoother in texture than beef tongue and with a distinctive most agreeable ‘wild’ flavor.”37 Salmis, such as the banquet’s “Salmis of Wild Goose, Hunter Style,” appeared in several mid-nineteenth century American and English cookbooks. A salmi was described as a “hash of game,” “usually fowl, pheasants, or partridges, cut up and only half roasted.” Buffalo Bill served Salmi of Prairie Dog in Fort McPherson, Nebraska in September 1871.38

Game Saddle of Nebraska Venison, Haunch of Buffalo, antelope, jack rabbit, and gray squirrel were local resources. Contemporary cookbooks contained several squirrel recipes: Brunswick Stew, Fried Squirrel, Barbeque Squirrel, and Kentucky Burgout. Black, red, and gray squirrel were “cooked similar to rabbits,” and “excellent when broiled or made into a stew.”39 American palettes prized canvasback duck. Meriwether Lewis wrote, “One of the most delicious in the world…nothing need be added in prais of the exquisit flavor of this duck.” Eighty years later, “epicurean taste declares that this special kind of bird requires no spices or flavors to make it perfect, it is the ‘King of Ducks’.”40 Lincoln lawyers ate teal and mallard, Hutchins wild goose, wild pigeon, prairie chicken, and Ashbury Grouse.

THE NEBRASKA LAWYER

The 10 1/2 by 3 5/8 menu is printed in red ink on silk fabric, with a pink ribbon attaching it to heavier cotton stock. This image is reduced to 86% of actual size.

➡

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lincoln pioneer lawyers

Relishes Cookbooks contained “Imitation Worcestershire sauce,” Chow Chow, horseradish sauce, tomato catsup, walnut catsup, and cranberry sauce recipes. Lee & Perrins’ Worcestershire Sauce imported in 1839, claims to be “the oldest commercially bottled condiment in the U.S.” Crosse & Blackwell Chow Chow, mixed English mustard and pickle relish, displayed their condiments at the Philadelphia 1876 Centennial Exhibition. By the late 1880s this “excellent pickle [chow chow] is seldom made at home as we can get the imported article so much better than it can be made from the usual recipes.”41 Horseradish, Horse-Radish and Horse Radish, sometimes called German mustard, was the most popular condiment. Henry J. Heinz started his company in 1869 with bottled horseradish, introducing tomato catsup in 1876. French Mustard could be kitchen made or commercial. Eliza Leslie in 1840 declared French mustard “an excellent condiment” for roast beef.42 Celery, Queen Olives, and New York Dairy Cheese in a can, added to the festivities.43

Dessert: Jellies, Creams, Cakes and Confectionery Charles Ranhofer of Delmonico’s wrote that menus for women “must be composed of light fancy dishes with a pretty

dessert,” men were amply satisfied with the “more substantial dishes.”44 The ten Jellies, employing gelatin in Victorian moulds, and creams, and 30 pastries indicate the presence of women, corroborated by the newspaper report. Charlotte Russe recipes, made as early as 1796, proliferated. Blanc Mange “is a good example of a dish that is radically different in its modern form compared with its medieval origins.”45 Italian Sherbert, sorbet or ice, frozen desserts, had 17th century Turkish, Italian and French roots. Lady and Silver cake, adaptations of traditional pound cake, were “quite fashionable” by the 1850s.46 Pound Cake appearing as early as 1743, contained one pound of butter, flour, sugar and currants as well as 9 eggs. Most cookbooks included Pound Cake and Sponge Cake, though the recipes varied. Mottoes, “A sweet wrapped in fancy paper together with a saying or short piece of verse,” frequently accompanied candies and gum drops.47

Chocolate, Tea, French Coffee Chocolate, tea and “French coffee” graced the menu’s bottom. Americans drank far more coffee than tea. French coffee could refer to the roast, additives such as chicory, brewing or the filtering process.48 One cookbook advised that water should not boil longer than three or four minutes, “otherwise the natural properties escape by evaporation.”49

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lincoln pioneer lawyers The Lincoln Daily Globe mentions “toasts.” The menu contains champagne [sic] sauce and wine jelly. The influence of the Women’s Christian Temperance Union (WCTU), founded in 1873, led to the decline in eggnog. Tuttle knew an attorney who “had an infirmity-—an addiction to strong drink…He lived and practiced his profession for a few years, suddenly dying from an affliction of the heart.” Roscoe Pound’s father said at the breakfast table, “Last night at the bar supper” a pompous and prominent attorney “enjoyed too much port wine.” The Omaha World-Herald reported “Some discussion over the wine question caused the abandonment of a banquet by the Lancaster county bar association at the formal dedication of the new court house.”50

Cole and just ended up in the box with Mr. Morse’s letters.” All other illustrations are from the Nebraska State Historical Society. 2

Nine of the NSBA’s forty-two officers and committee members were LCBA members: Hull was Secretary-Treasurer, Billingsley and Joseph R. Webster were Executive Committee members. Harwood, Whedon, Lamb, Ames, Philpott, and Lambertson served on other committees. The NSBA had 225 members in 1882. The current NSBA dates from January 22, 1900. See Amy L. Longo, “A Celebration One Hundred Years in the Making,” Nebraska Lawyer (Dec. 1999):2, 6, and James Hewitt, “Crossing the Bar: The Relationship of Nebraska’s Supreme Court with the Bar,” 84 Neb. L. Rev. 631 (2005). Three Nebraskans attended the 1878 convention in Saratoga, New York creating the American Bar Association. “Lawyers in Convention,” New York Times, Aug. 23, 1878, on line.

“The Banquet – The Lawyers of Lincoln Sup Together,” Lincoln Daily Globe, Jan. 2, 1877, 4.

Samuel J. Tuttle, “Reminiscences of the Bench and the Bar,” in Andrew J. Sawyer, Lincoln – Capital City and Lancaster County Nebraska (Chicago: S.J. Clarke Publishing Co, 1916), 268, and James C. Olson and Ronald C. Naugle, History of Nebraska, 3d ed. (Lincoln and London: University of Nebraska Press, 1997), 151, 207.

Mark R. Ellis, Law and Order in Buffalo Bill’s Country – Legal Culture and Community of the Great Plains, 1867-1910 (Lincoln: University of Nebraska Press, 2007), 6-7.

Tuttle, “Reminiscences,” 267-70.

Conclusion Lincoln’s pioneer bar and guests enjoyed a festive meal with the camaraderie of Civil War veterans and local politicos. The menu combines heritage, current fashion and regional tastes with the chef’s skills, repertoire, and resources. They celebrated the holiday season and the centenary with toasts and speeches. On the cusp of the nation’s second century, perhaps they drank eggnog and closed singing Auld lang syne. At one level, the menu tells us what the lawyers ate in 1876. On another level, the menu tells us a great deal about advances in technology and transportation, and how they affected food consumption in the latter half of the nineteenth century. Similar to the movement of lawyers across the country, food and dining habits also traveled from coast to coast. Innovations in food preservation and transportation led to an increase in the variety of foods available throughout the country, rather than a dependence solely on local produce. Oysters, pears, raisins, apricots, oranges and pineapples came great distances. Worcester sauce, Chow Chow, English walnuts, Brazil nuts, Egyptian dates, chocolate, tea and coffee crossed oceans. The 1876 banquet is an example of the great innovations in food transportation coming to the table. Chilled, frozen, and canned products were still new, but increasingly available. Examining the menu items, especially oysters, demonstrates the changes in foodways. It reflected transitions within American foodways in the mid-nineteenth century: confusion in nomenclature, mixing French and English terms, appropriating dish names for added sophistication, and including ingredients that traveled as far as the lawyers themselves, truly demonstrates how representative Lincoln in 1876 was of its time.

Endnotes 1

H. Livingston, Livingston’s United States Law Register (New York: 1859), 522-23, courtesy of Marie Wiechman, Nebraska State Library.

Stephen E. Kalish, “Legal Education and Bar Admissions: A History of the Nebraska Experience,” 55 Neb. L. Rev. 596, 606 (1975-76), and J. Gordon Hylton, “The Bar Association Movement in Nineteenth Century Wisconsin,” 81 Marquette L. Rev. 1029 (1998).

9 Andrew

Koszewski, “Career Differentiation: The Legal Community in Lincoln, Nebraska 1880-1891,” Great Plains Research 2 (1992): 283, 297, 299.

10 A.

T. Andreas, History of the State of Nebraska (Chicago: Western Historical Company, 1882), 2:1040, and Sawyer, Lincoln, 267. Sawyer was one of the thirty members in 1876. See Timothy R. Mahoney, “Gilded Age Plains City, The Great Sheedy Murder Trial and the Booster Ethos of Lincoln, Nebraska,” Plains Humanities Alliance, in collaboration with the Center for Digital Research in the Humanities, http://gildedage.unl.edu/, and “The Great Sheedy Murder Trial and the Booster Ethos of the Gilded Age in Lincoln,” Nebraska History 82 (Winter 2001): 163-79.

11 Paul

Sayre, The Life of Roscoe Pound (Iowa City: College of Law Committee, 1948), 15, 44, 50.

12 Philip

J. Wickser, “Bar Associations,” 15 Cornell L. Q. 390, 401, n. 22, (1930), and Laura Biddlecomb Pound Papers, RG0910. AM, Nebraska State Historical Society. Herbert Harley, founder of the American Judicature Society, gave a presentation on the integrated bar on December 28, 1914. Charles W. Sorenson, Jr., “The Integrated Bar and the Freedom of Nonassociation – Continuing Siege,” 63 Neb. L. Rev. 30, 34 (1984).

13 Rex

R. Schultze, “Lincoln Legal Pioneers: Judge Stephen B. Pound,” 16 Lincoln Bar Association Newsletter (Spring 2011): 2, Addison Erwin Sheldon, Nebraska: The Land and the People (Chicago: Lewis Pub., 1931), 2:230, and Sayre, Life of Roscoe Pound, 15, 44, 50.

14 Roscoe

Pound, The Lawyer from Antiquity to Modern Times (St. Paul: West, 1953), 316.

The menu, a January 2013, eBay purchase, was acquired by Jessica Baden, at a Lincoln estate sale for one of Dana Cole’s descendants in late 2012. A box contained letters belonging to Lute Morse, a Lincoln garage owner in the 1910s-20s. Cole is mentioned in a couple of Morse’s letters. Baden speculates that after Morse died in 1929 Cole ended up with some of his things, “Although it’s possible that the menu originally belonged to Mr.

THE NEBRASKA LAWYER

7 John

15 Samuel

Johnson Tuttle Papers, RG1871.AM, Nebraska State Historical Society, contains 1890, 1917, 1918, 1919 and 1920 banquet menus. Dues were $5 in 1921. LCBA president Howard James Whitmore spoke on “Law and courts in Nebraska,” (Nebraska State Historical Society, speech dated May 29,

➡ 23

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lincoln pioneer lawyers 1927). Obituaries in the 1970s mention the deceased’s service as a LCBA president. See also “Penitentiary Needs Outlined by Warden” presented to the “Lincoln-Lancaster County Bar Association,” Omaha World-Herald, Nov. 28, 1962, 4, online.

and Graphic Description of the Ceremonies and Festivities Splendid and Magnificent Toilettes of the Ladies Terrific Crush at the Supper Table,” New York Times, Mar. 8, 1865, on line. 27 Margaret

Brown Klapthor, ed., The First Ladies Cook Book, Favorite Recipes of all the Presidents of the United States (New York: Parents’ Magazine Press, rev. ed. 1969 (1965)), 111, 115-16.

16 W.

A. Howard, Biographical Sketches of the Nebraska Legislature (Lincoln: Press of Jacob North & Co., 1895), 179-80, and Tuttle, “Reminiscences,” 269.

28 Suzy

Evans website, “The History Chef!,” “Ulysses S. Grant’s Second Inaugural Ball,” January 15, 2013, http://lincolnslunch. blogspot.com/2013/01/ulysses-s-grants-second-inaugural-ball. html (accessed June 19, 2013).

17 See

Jim McKee, “The Burr Brothers,” Lincoln Journal Star, June 24, 2012, “Barry’s Bar and some interesting precedents,” LJS, Dec. 2, 2012, and ”Billingsley one of earliest lawyers in Lincoln,” LJS, June 30, 2013 (accessed online).

18 Ellis,

29 Klapthor,

The First Ladies Cook Book, 124-26, 129, and W. J. Rorabaugh, “Beer, Lemonade, and Propriety in the Gilded Age,” in Dining in America, 1850-1900 (Amherst: University of Massachusetts Press, 1987), 35-6.

Law and Order, 145, 170.

19 J.

Sterling Morton, Illustrated History of Nebraska (Lincoln: Jacob North & Co., 1907), 2:281. See also James W. Hewitt, Slipping Backward, A History of the Nebraska Supreme Court (Lincoln: University of Nebraska Press, 2007), 11-14.

30 See

Eleanor Parkinson, The Complete Confectioner (Philadelphia: J.B. Lippincott, 1864), Pierre Blot, Hand-Book of Practical Cookery (New York: D. Appleton, 1868), June Croly Cunningham, Jennie June’s American Cookery Book (New York: American News Company, 1870), Marion Harland, Commonsense in the Household (New York: Scribner, 1873), and Mary F. Henderson, Practical Cooking and Dinner Giving (New York: Harper & Brothers, 1876). These books are on the Michigan State University website, Feeding America, digital. lib.msu.edu/projects/cookbooks/ See also Eleanor T. Fordyce, “Cookbooks of the 1800s,” in Dining in America, 1850-1900, ed. Kathryn Grover (Amherst: University of Massachusetts Press, 1987), 95, and Lavonne Brady Axford, English Language Cookbooks, 1600-1973 (Detroit: Gale Research Co., 1976), 650-1.

20 John

H. Ames, Lincoln, The Capital City of Nebraska (Lincoln: State Journal Power Press Print, 1870), and Tuttle, “Reminiscences,” 270.

21 Michael

W. Homer, “The Territorial Judiciary: An Overview of the Nebraska Experience, 1854-1867,” Nebraska History 63 (Fall 1982): 349-80, 360.

22 Sheldon, 23 J.

Nebraska, 2:454.

S. Reilly, Lincoln, Past, Present and Future (Lincoln: 1885?), 86.

24 1889

Lincoln City Directory and Omaha World-Herald, Feb. 1, 1890, 3, on line. See also Oliver B. Pollak, “Dining at the Metropolitan Hotel, Saturday May 24, 1873,” Food & Spirits, no. 14, (2013): 14.

31 L.

U. Reavis, Saint Louis, The Commercial Metropolis of the Mississippi Valley (Saint Louis: Tribune Publishing Co., 1874), 167, and David S. Shields, “The Search for the Cure, The quest for the superlative American ham,” Common-Place, www. common-place.org vol 8:1, Oct 2007 (accessed May 1, 2013).

25 Delmonico

hosted the New York City Republican Club Lincoln’s birthday celebration starting in 1887. Washington Pie, Election Cake, Lincoln Cake, and Temperance Punch, have political overtones. See Mark H. Zanger, The American History Cookbook (Westport, CT: Greenwood Press, 2003), 456, 450.

26 “The

32 Mark

Kurlansky, The Big Oyster, History on the Half Shell (New York: Ballantine Books, 2006), 102-103, 207.

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lincoln pioneer lawyers 33 Phone

conversation with Dean Knudsen, Museum Curator, DeSoto Bend, Iowa, U.S. Fish & Wildlife Service, March 30, 2013. See also Jim and Vivian Karsnitz, Oyster Cans (Atglen, PA: Schiffer Publishing, 1993).

Yellowstone Publishing, 2003), 220-21, 232, and 86. Gillette and Ziemann, White House Cook Book, 86. 41 Gillette

Leslie, Directions for Cookery in its Various Branches (Philadelphia: E. L. Carey & A. Hart, 1840), 69-71.

34 Kurlansky,

The Big Oyster, 112, 232. Drew Smith wrote, “The railway was large, rapacious and hungry, as were the city markets it supplied. It could suck millions of oysters from the sea to market in a few days,” in, Oyster: A World History (Stroud, Gloucestershire, UK: The History Press, 2010), 99.

43 Decorated

glass or silver celery stands or vases, popular in the 1860s and 1870s, were eclipsed by low celery dishes in the 1890s. “By 1900 the tall celery stands were nearly completely out of fashion, as celery lost its cachet.” Susan Williams, Savory Suppers (New York: Pantheon Books, 1985), 111. “NEW YORK DAIRY CHEESE, in tins” was advertized in the May 17, 1877 Sydney [New South Wales] Morning Herald (accessed on line, May 3, 2013).

35 Metropolitan

Hotel Ledger, RG4386AM, Nebraska State Historical Society.

36 Prosper

Montaigne, Larousse Gastronomique (New York: Crown Publishers, 1961), 805.

37 Waverley

Root and Richard de Rochemont, Eating in America, A History (New York: William Morrow and Co., 1976), 202, and Jonathan Norton Leonard, American Cooking: The Great West (New York: Time-Life Books, 1971), 57.

44 Charles

Ranhofer, The Epicurean (Chicago: John Willy, 1920, first published 1894), 1, 71.

38 Janet

Clarkson, Menus in History (Santa Barbara: Greenwood and ABC CLIO, 2009), 2:601.

45 Clarkson,

Menus from History, I:xxix.

46 McClean,

Cooking in America, 55.

47 William

Woys Weaver, Culinary Ephemera, An Illustrated History (Berkeley: University of California Press, 2010), 246.

39 Alice

L. McLean, Cooking in America, 1840-1945 (Westport, CT: Greenwood Press, 2006), identified three squirrel recipes published in 1839, 1879 and 1904. See also Raymond Sokolov, “A Squirrel in Every Pot: Brunswick Stew and Burgoo,” in Fading Feast (Boston: David R. Godine, 1996), 75. Mrs. F[anny] L[emira] Gillette and Hugo Ziemann, The White House Cook Book (Chicago: Werner Company, 1887, reprinted 1999), 89. East Coast markets offered squirrel. Thomas F. De Voe, The Market Assistant (New York: Hurd and Houghton, 1867), 123. See also, Elizabeth E. Lea, Domestic Cookery, 1869 and Juliet Corson, Miss Corson’s Practical American Cookery, 1886. Omaha’s Buffett grocery store sold jack rabbits for ten cents each and prairie chickens two for twenty-five cents. Bill Buffett, Foods You Will Enjoy, The Story of Buffett’s Store (Concord, NH: Capital Offset Co., 2008), 27.

48 Susan

Williams, Savory Suppers, Fashionable Feasts, Dining in Victorian America (New York: Pantheon Books, 1985), 128, and Ambrogio Fumagalli, Coffeemakers (San Francisco: Chronicle Books, 1995), 133. Isabella Beeton preferred French coffee to the week and watery English version, crediting the “roasting of the berry” that “includes a piece of butter the size of a nut and a desert spoonful of powdered sugar for each three pounds of coffee.” The Book of Household Management (London: S. O. Beeton, 1861, facsimile edition), 876, 878. See also Susan Williams, Food in the United States, 1820s-1890 (Westport, CT: Greenwood Press, 2006), 85.

49 Gillette

and Ziemann, White House Cook Book, 408.

50 Sayre,

Roscoe Pound, 56, “The Bar Banquet,” Omaha WorldHerald, Feb. 10, 1890, 3 (on line), W. J. Rorabaugh, “Beer, Lemonade, and Propriety in the Gilded Age,” in Dining in America, 42, and Tuttle, “Reminiscences,” 268-69.

40 Leandra

Zim Holland, Feasting and Fasting with Lewis & Clark, A Food and Social History of the Early 1800s (Emigrant, MT: Old

THE NEBRASKA LAWYER

and Ziemann, White House Cook Book, 163.

42 Eliza

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lincoln pioneer lawyers

Appendix

Year of Birth and Place, Path to Nebraska, and Other Characteristics

Stephen B. Pound Seth H. Robinson Nathan S. Harwood D.G. Hull Lorenzo Billingsley

Year

State

1833 1844 1843 1842 1841

NY/WI IL MI/IA NY IN/IA

University Civil War Education Vet Founding Officers U U

Vet

Arrive Partnership Economic Left NE Interests NE

1866 186_ 1871 1869 1869

P P P P P

1870 1868 1870 1866 1870 18__ 18__ 1870 1867 18__ 1869

P P P P P

B L B B RE, RR

Founding Members A.S. Baldwin Carlos C. Burr Caleb J. Dilworth Seth B. Galey Lewis A. Groff Henry S. Jennings Walter J. Lamb Charles M. Parker James E. Philpott J.C. Shurts Samuel J. Tuttle

1844 1846 1830 1844 1841 1831 1839 1840 1839 1845 1845

OH IL OH/IL PA/IA OH OH PA NY/IN/MI U IN/OH/KS PA OH/NY/MI/IA U

Vet Vet

L* B, RE

RR B

P P

L L L L

L* L B

Officers in 1875 and 1876 Erastus E. Brown President, 1875 John H. Ames President, 1876 Joseph Rawson Webster Treasurer Charles O. Whedon Vice President B RE RR L*

1836

18__

1847

VT/NY

1869

1839

Bombay/NY/IA

1850

Vet

1869

B P

B B

1870

Banking interests Real estate interests Railway interests Left Lincoln but remained in Nebraska

THE NEBRASKA LAWYER

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feature article

Foster Youth and the Affordable Care Act: What You Need to Know by Jerusha Hancock, J.D., Robert McEwen, J.D., and Amy West, MSW, MPA

Note: names and certain events have been altered to protect the anonymity of the parties involved. Jane is a 22-year-old young woman living in a mid-sized Nebraska city. She works full-time with disabled adults and is the primary caregiver for her teenage sister. She is also one of the over 300 young people who exit foster care each year without achieving permanency.1

Jerusha Hancock

Jerusha Hancock is a staff attorney in Nebraska Appleseed’s Health Care Access Program. Jerusha is a 2008 graduate of the University of Nebraska College of Law.

A few months before her 19th birthday, Jane suffered a shoulder injury that prevented her from being able to work. She contacted her caseworker, afraid she would no longer be able to afford her housing. This spurred a court hearing to discuss potential resources that may be able to assist her. Jane’s progress was reviewed at the hearing, and, because she appeared to be self-sufficient, the decision was made to close her case. Jane lost her Medicaid coverage and had to take over payments for the treatment of her shoulder. She could no longer afford to visit a doctor or refill her prescriptions. Although she works full-time hours at her current job, Jane is technically hired as a part-time employee; thus, she does not

Amy West

Robert McEwen

➡

Amy West is a policy coordinator in Nebraska Appleseed’s Child Welfare Program. Amy graduated in 2012 with a dual masters degree from the University of Nebraska at Omaha.

Robert McEwen is a staff attorney in Nebraska Appleseed’s Child Welfare Program. Robert is a 2011 graduate of the University of Nebraska College of Law.

THE NEBRASKA LAWYER

Jane faces several health challenges. She suffers from asthma, is allergic to “everything” (including grass), is diagnosed with polycystic ovarian syndrome, and has “really bad joints.” While in foster care, Jane had Medicaid. She regularly saw a doctor, had her own inhaler, and received the medication she needed.

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foster youth and the affordable care act have access to insurance through her employer, and she cannot currently afford to purchase individual health insurance. When she has an asthma attack, which happens every few months, she turns on her shower at home and breathes in the steam until she is able to calm down - or she borrows someone else’s inhaler. She frequently gets upper respiratory infections because of her asthma and has to pay out of pocket for treatment from a walk-in medical clinic. She tries over-the-counter medication for her allergies, which she says don’t really work. Her polycystic ovarian syndrome goes untreated. Jane reports that she “lives with a constant fear of being cautious.” Although she was once very active and loved playing sports, she now doesn’t do “anything that would make my asthma act up or put me at risk of injuring myself.” As Jane’s story indicates, young adults exiting the system often have significant health needs that remain unmet.2 Youth formerly in foster care, as a group, struggle far more than their peers with access to health and mental health treatment. However, starting on January 1, 2014, a new health care opportunity will be implemented to help bridge the health care coverage gap for youth formerly in foster care.

Second, section 2004 of the ACA created a new mandatory eligibility category for youth formerly in foster care by amending section 1902(a)(10)(A)(i)(IX) of the Social Security Act. Beginning January 1, 2014, this makes it possible for youth to receive Medicaid coverage until they reach the age of 26. This provision was intended to equalize insurance coverage among young adults, placing youth aging out of foster care on par with their same-age peers who can remain on their parents’ insurance until age 26 under the ACA.6 The U.S. Supreme Court decision did not impact this new category, which remains mandatory. The language of the ACA states that youth formerly in foster care must receive coverage if they:

Youth Formerly in Foster Care and Medicaid For those unfamiliar with Medicaid, the program is a federal-state partnership that provides health care services to certain groups of low-income individuals. Medicaid is voluntary for states, but, once a state agrees to participate in the Medicaid program, it must provide coverage for certain “mandatory categories,” such as children, pregnant women, very low-income caretaker relatives, and the aged, blind and disabled. There are also income limits as well as resource and asset tests for most categories in Medicaid. However, non-disabled adults without children are not currently eligible for Medicaid in Nebraska, no matter how low their income might be. All states currently participate in the Medicaid program, although coverage levels and services vary greatly from state to state. The Patient Protection and Affordable Care Act of 2010 (ACA) created new paths to health insurance coverage for lowincome adults like Jane. The law created tax credits for those with incomes between 100% and 400% of the federal poverty level, or $11,490 to $45,960 for an individual. The tax credits will reduce the amount an eligible person pays every month for a health care plan, if they purchase the plan in the new health insurance marketplace. If Jane’s income is above 100% of the federal poverty level, this provision could help Jane access affordable coverage. In addition to the tax credits, the ACA also made changes to the Medicaid program by adding two new mandatory coverage categories. First, the law extended coverage to all adults THE NEBRASKA LAWYER

between 19 and 64 with incomes under 133% of the federal poverty level, which is $15,282 for an individual.3 The U.S. Supreme Court ruled that this expansion was optional for states, however, and the decision effectively created a new Medicaid program for these adults.4 For childless adults who do not fall into one of the other mandatory categories and whose incomes are below 100% of the federal poverty level, the new Medicaid program offers their only opportunity to get health care coverage. Currently, 28 states are moving toward expansion.5

• are under 26 years of age; • are not described in or enrolled under any [other mandatory category] or are [otherwise eligible under another category] but have income that exceeds the level of income applicable under the State plan for eligibility; • were in foster care under the responsibility of the State on the date of attaining 18 years of age or such higher age as the State has elected; and • were enrolled in the State plan under this title or under a waiver of the plan while in such foster care.7

Income Limits Inapplicable Unlike other Medicaid eligibility categories, income limits do not apply to youth formerly in foster care, nor are there asset or resource tests. The requirement in the ACA effectively mirrors the provision that allows young adults to stay on their parents’ insurance until age 26, even if they have access to health care coverage through their employer or are not dependent upon their parents. If a youth would have been otherwise eligible for Medicaid under another category but is over the income limit, he or she can still receive Medicaid coverage under this provision.

“Under the Responsibility of the State” In order to be eligible for Medicaid under this category, youth formerly in foster care must have been “under the responsibility of the state” at the age of 18 or a higher age as the state Jan u ary / f ebr u ary 2 0 1 4

foster youth and the affordable care act has elected under the Fostering Connections to Success and Increasing Adoptions Act. Because the ACA requires that youth be under the responsibility of the state, it is important to note that generally those who have been discharged to independent living prior to age 18 or who are in guardianships when they exit foster care will not be eligible for Medicaid under this new category.8 When working with this population, it is imperative that legal professionals understand the impact of placing a youth in a guardianship or discharging them before they reach the age of 18, as doing so could jeopardize their ability to obtain health care coverage. As discussed further below, Nebraska may implement this provision to also exclude from eligibility young people who are discharged to independent living before age 19. Legal professionals should also be aware that youth formerly in foster care who leave the state may or may not be able to receive Medicaid in a different state. On January 22, 2013, the Centers for Medicare and Medicaid Services (CMS) issued proposed federal regulations that gave states the option to cover youth from other states, but did not make such coverage mandatory.9 CMS has indicated that it will not be providing further guidance or regulation on the issue.

Enrolled in Medicaid Upon Exiting Foster Care The ACA requires that youth have Medicaid at the time they exit foster care, whether that be at age 18 or a higher age as the state may have elected under the Fostering Connections Act, in order to be eligible to receive Medicaid under this category. Therefore, it is important for advocates working with this population to understand how the Nebraska Division of Medicaid & Long Term Care (Nebraska Medicaid) currently covers youth in the foster care system.

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Nebraska Medicaid is required to cover all children in foster care who are receiving Title IV-E maintenance payments.10 Currently, Nebraska is covering non IV-E eligible children only if they are income eligible for Medicaid. For purposes of determining who is in the child’s income unit, Nebraska is considering non IV-E eligible children as their own income unit, if they are expected to be in an out-of-home placement THE NEBRASKA LAWYER

for more than 90 days. Almost all children in this situation will meet the income eligibility requirements for Medicaid. However, if the child is not expected to be in an out-of-home placement for more than 90 days, the child’s parental income is included in determining Medicaid eligibility. Thus, youth who are returned to their home before aging out may be ineligible for Medicaid under this category.

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foster youth and the affordable care act

Implementation in Nebraska On July 26, 2013, Nebraska Medicaid proposed regulations regarding the new category covering youth formerly in foster care. The provision states that, in order to receive Medicaid, the individual must: • be under age 26; • have received Medicaid at the time they aged out; • have been in foster care under Nebraska or a Nebraska tribe’s responsibility; and • not be eligible for and enrolled in mandatory Medicaid coverage through parent/caretaker relatives, pregnant women, children, or AABD/MA.11 There are two aspects of the proposed Nebraska regulation that should be noted by advocates. First, it requires that youth age out in Nebraska. The proposed Nebraska regulation does not take the option to cover youth from other states, which essentially means, for example, that an otherwise eligible youth that exited foster care in Iowa and moved to Nebraska to attend college would lose his/her health care coverage. Second, the proposed regulation likely excludes coverage for youth that are discharged from foster care prior to their 19th birthday by requiring that youth have “aged out,” as opposed to covering youth after age 18 as allowed by the plain language of the statute.12 This could result in hundreds of youth who were discharged from care before their 19th birthday, including Jane, being determined ineligible for Medicaid in Nebraska.13 In the words of Jane, “They close a lot of cases at 18 because they think youth are ready to live on their own. I shouldn’t have to suffer without insurance because I was capable of that.” If Nebraska moves forward with these proposed regulations, youth discharged between their 18th and 19th birthdays will not likely be eligible for Medicaid under the new ACA category. Both of these proposed regulations will create coverage gaps of which legal professionals working with this population must be aware.

Youth Formerly in Foster Care and the Medicaid Expansion

However, many of these youth could access coverage under the new optional adult eligibility category. Therefore, the Medicaid expansion would close the gap for many of these vulnerable youth and ensure continuity of care for young people making the difficult transition from foster care to adulthood.

Endnotes 1

Nebraska Appleseed, “Bridging the gap: Supporting youth in the transition from foster care to adulthood,” available at neappleseed.com/downloads646.

Aisha Amanda Marie Hunter, “Toward providing equal access to health care for foster youth,” Michigan J. of Social Work and Social Welfare, Volume II, Issue I (Spring 2011).

Patient Protection and Affordable Care Act, Section 2001(a) (2010).

Nat’l Fed. Of Independent Business, et al., v. Kathleen Sebelius, 567 U.S. ___, 132 S. Ct. 2566 (2012).

The Advisory Board Company, “Beyond the pledges: Where the states stand on Medicaid,” July 26, 2013, available at http://www.advisory.com/Daily-Briefing/Resources/Primers/ MedicaidMap (last visited August 13, 2013).

See the Patient Protection and Affordable Care Act (2010) Section 1001.

Social Security Act, 42 U.S.C. 1396(a)(10)(A)(i)(IX).

Brooke Lehmann, Jocelyn Guyer & Kate Lewandowski, “Child Welfare and the Affordable Care Act: Key Provisions for Foster Care Children and Youth,” June 2012, available at http://ccf. georgetown.edu/wp-content/uploads/2012/07/Child-Welfareand-the-ACA.pdf (last visited August 13, 2013) (However, if a guardianship is disrupted and a youth reenters foster care, they may still be eligible for Medicaid coverage under this category.)

Centers for Medicare & Medicaid Services 78 Fed. Reg. 4594, 4604 (Jan. 22, 2013) (amending 42 C.F.R. 435.150)

10 Social

Security Act, 42 U.S.C. § 1396a(a)(10)(A)(i)(I); see also Sarah Helvey, “Federal Foster Care Financing Issues in Nebraska,” The Nebraska Lawyer (November/December 2008) (describing the basic requirements for Title IV-E eligibility), available at http://nebar.com/associations/8143/files/TNL1108c.pdf

11 477

NAC 24-006 (proposed July 26, 2013), available at http:// www.sos.ne.gov/rules-and-regs/regtrack/details.cgi?proposal_ id=0000000000001296 (last visited August 9, 2013).

12 Id. 13 Nebraska

Although the ACA makes considerable strides in providing health care access for this population, there will be gaps

THE NEBRASKA LAWYER

in coverage for youth who do not age out in Nebraska and who are discharged to independent living prior to age 19 if Nebraska chooses to implement the program narrowly. Under the language of the federal law, there will be gaps in Medicaid coverage for youth who exit foster care to guardianship or who were not enrolled in Medicaid at the time they left foster care.

Appleseed, “Bridging the Gap: Supporting youth in the transition from foster care to adulthood,” available at http:// neappleseed.com/downloads646

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feature article

Pro Bono in the 21st Century A Vital Factor for Providing Legal Assistance to Those in Need

by Amy L. Van Horne The “new” (September 1, 2005) (recodified July 18, 2008) Nebraska Rules of Professional Conduct contain a Rule regarding pro bono service. Neb. Ct. R. of Prof. Cond. § 3 506.1 provides: A lawyer should aspire to render pro bono legal services. In fulfilling this responsibility, the lawyer should: (a) provide a substantial majority of the legal services without fee or expectation of fee to:

(2) delivery of legal services at a substantially reduced fee to persons of limited means; or

(1) persons of limited means or (2) charitable, religious, civic, community, governmental and educational organizations in matters that are designed primarily to address the needs of persons of limited means; and

(3) participation in activities for improving the law, the legal system or the legal profession. In addition, a lawyer should voluntarily contribute financial support to organizations that provide legal services to persons of limited means.

(b) provide any additional services through:

Comment 1 to this section makes it clear that the expectation of time is significant:

Amy L. Van Horne

Every lawyer, regardless of professional prominence or professional work load, has a responsibility to provide legal services to those unable to pay, and personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer. The American Bar Association urges all lawyers to provide a minimum of 50 hours of pro bono services annually.

Amy L. Van Horne is a member of Kutak Rock’s litigation department. She focuses her practice on food product liability defense in matters across the supply chain. In addition to her food product liability practice, Ms. Van Horne also focuses on general litigation including personal injury, wrongful death, and general product liability disputes. She also has advised clients on compliance with FDA and USDA regulations, food product market withdrawals and product recalls, and disputes before industry self-regulatory entities such as the NAD and CARU. THE NEBRASKA LAWYER

(1) delivery of legal services at no fee or substantially reduced fee to individuals, groups or organizations seeking to secure or protect civil rights, civil liberties or public rights, or charitable, religious, civic, community, governmental and educational organizations in matters in furtherance of their organizational purposes, where the payment of standard legal fees would significantly deplete the organization’s economic resources or would be otherwise inappropriate;

And did you catch the last sentence of the Rule, the one that makes it clear that both your time and your checkbook are necessary? In the Proposed Final Draft of the Model Rules of Professional Conduct, May 30, 1981, the Kutak Commission’s phrasing did not make the Rule, Rule 6.1, aspirational: A lawyer should render public interest legal service. A law-

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pro bono in the 21st century yer may discharge this responsibility by providing professional services at no fee or a reduced fee to persons of limited means or to public service or charitable groups or organizations, or by service in activities for improving the law, the legal system or the legal profession. American Bar Association Commission on Evaluation of Professional Standards (“Kutak Commission”), Proposed Final Draft Model Rules of Professional Conduct, May 30, 1981 (emphasis added). Most of us have some vague notion that we need to do some kind of pro bono service. In fact, the thought of service to the “greater good” was probably one of the factors that steered a lot of us toward law school. Unfortunately, that desire to serve the public got buried in the day to day routine of handling caseloads, meeting with clients, and billing time. That’s where the Volunteer Lawyers Project of the Nebraska State Bar Association comes in. The Volunteer Lawyers Project (“VLP”) is a statewide

volunteer lawyer service project that matches people who have civil legal problems with attorneys who are willing to provide services pro bono or at a reduced fee. In addition to lawyers who are willing to accept individual cases, the VLP also staffs “Self Help Desks” in Lincoln, Omaha, Grand Island, Kearney and Madison County. Attorneys at the Self Help Desk do not provide legal services. Instead, they assist individuals needing assistance with filling out forms and answering questions so that these individuals can handle their cases pro se. The professional and personal satisfaction you will feel after completing your first VLP case will more than reward you for the small investment of time you will expend. Most lawyers who handle one VLP case go on to handle others on a regular basis. These lawyers understand the importance of ensuring that everyone, regardless of their income level, has access to the legal system. Please won’t you become one of them? Rule 3 506.1 doesn’t require you to do all 50 of those pro bono hours at once. Join VLP and start with just a few, or spend a few hours manning the Self Help Desk. You’ll be glad you did.

It’s Monday, the First Day of the Rest of Your Life.

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Did you know that missing deadlines continues to be one of the most common mistakes leading to malpractice claims? “Procrastination in performance/followup” was the second most common error leading to a malpractice claim*. A dual calendaring system which includes a firm or team networked calendar should be used by every member of your firm.

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* American Bar Association Standing Committee on Lawyers’ Professional Liability. (2012-2013). Profile of Legal Malpractice Claims, 2008-2011. Chicago, IL: Vail, Jason T. and Ewins, Kathleen Marie.

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Protecting Your Practice is Our Policy. THE NEBRASKA LAWYER

Jan u ary / f ebr u ary 2 0 1 4 Life- Nebraska Lawyer 2010

Nebraska Lawyers Foundation

2013 VLP Pro Bono Volunteers VLP wants to thank and recognize the following volunteer attorneys for accepting 1 or more cases in 2013. (*Denotes volunteers who accepted more than 1 case in 2013)

Larry Albers* Ashley Albertsen* Avis Andrews* Michael Baldwin Francis Barron Fredrick Bartell Lucinda Bauer* Christopher Bellmore Benjamin Belmont Larry W. Beucke William Bianco Troy Bird* Nicholas Boggy* Kimberly Booth* Woody Bradford* Jason Bruno Hunter A. H. Campbell Linsey Camplin Joel Carney John Carroll Patrick Connealy Brian Davis Jacqueline De Wispelare Douglas DeLair Thomas Delay Dennis Dewald Jefferson Downing Brandon Dugan* Don Dworak Kent Endacott Marsha Fangmeyer* Donald Ficenec Rhonda Flower* Julie Frank Stephanie Flynn Ronald E. Frank* Nicholas Froeschl Daniel A. Fullner* Paul Galter Christopher Gamm* Stacie Goding Garrett Goodwin Vanessa Gordon* Maurice Green Charles Grimes* Steven Guenzel* Raina Gulbrandson Heidi Hayes Daniel Hendriz Karen Hicks* THE NEBRASKA LAWYER

Tim Hinkle Thomas Holyoke Lynelle Homolka* Christopher Hoyme Mark Jacobs* Jerrod Jaeger Matthew Jenkins* Nancy Johnson Sharon Joseph* Doug Kerns Bilal Khaleeq* Joseph Kishiyama Michael C. Klein Jeanelle Kleveland Luke Klinker* Justin Knight* Melanie Knoepfle Lyle J. Koenig Susan M. Koenig* Phillip Kosloske Kendall Krajicek* Jack Lafleur Robert S. Lannin Douglas Lederer Phillip Lee John A. Lentz Jeremiah Luebbe Angela Madathil John Madden* William Madelung Kate Mahern Mark Malousek Alan Martin* Craig Martin* Mark McKeone Andrea McChesney Jason Mielak Derek Mitchell Michelle Mitchell* John V. Morgan* Ann Moshman Monte Neilan Timothey Noerrlinger Melissa Oestmann* Daniel C. Pape Randall W. Paragas* Jeremy Parsley* Forrest Peetz Christopher Peterson* Jennifer Piatt

Carol Pinard-Cronin Trevin Preble Sally Rasmussen Wendy Ridder* Kevin Ruser Alan Schroeder Jane Sebby Shela Shanks* Sarah Smith Amanda Speichert* James Stecker Gail Steen William Steffens Bruce E. Stephens Brent Stephenson* Eric Stott Timothy Sullivan Michael Synek* Hang Tat* Derek Terwey David D. Thompson Cathy Trent-Vilim Anthony Todero Adam Tripp* William Troshynski Jerod Trouba James Truell Anastasia Wagner Jeff Wagner* Kelle Westland Christian Williams Tobin Wolfe William Wroblewski*

Buffalo County Self-Help Desk Michael W. Baldwin Melodie Bellamy Jack W. Besse David H. Kalisek John H. Marsh John P. Rademacher Michael J. Synek

Grand Island Self-Help Desk

Marvin Andersen Bill Francis Dorothy Benton Matthew Boyle Kevin Brostrom Hunter Campbell Al Corey John Cunningham Shawn Farriter Stacy Goding John Higgins Dave Huston Jerry Janulewicz Susan Koenig Mike Kneele John McDermott Michelle Oldham Mark Porto Jan Reeves Georgiene Radlick Wagoner Audrey Rowley Galen Stehlik Mitch Stehlik James Truell Erin Urbom James Wagoner Lori Wilson

Lincoln Self-Help Desk Dan Alberts Troy Bird James A. Cada Tim Engler Vanessa J. Gorden Ed Hoffman Sally Johnson Dick Knudsen Gerald McCusker Jeffry D. Patterson Shirley Peng Danielle Savington Gail Steen Timothy Sullivan Lea Wroblewski

Jan u ary / f ebr u ary 2 0 1 4

Nebraska Lawyers Foundation

2013 VLP Pro Bono Volunteers Madison County Self-Help Desk Frederick Thomas Bartell Joel Carlson Dennis Collins Jason Scott Doele Jan L. Einspahr Mark D. Fitzgerald Sharon Joseph Amanda Ann McMahon Hon. Patrick G. Rogers Ronald E. Temple Todd B. Veter Melissa A. Wentling

Omaha Self-Help Desk

Timothy Loudon Brooke McCarthy Mike Moran Bill O’Neil W. Randall Paragas Darren Pekny Ralph Peppard Jill Poole Justin Quinn Chad Richter Dennis Riekenberg Eileen Rielly Buzzelo Mike Scahill Susan Schneider Judith Schweikart Hon. Steve Swartz Brien Welch Ken Wentz Margaret Zarbano

Beth Ascher Kelly Berens William Birkel Dave Blagg Cassidy Chapman Joe Dreesen Richard Drews Jennay Dunbar John Eker Jessica Feinstein Ross Gardner Winnie Hawkins Mike Huffer Karisa Johnson Peter Kenny Mike Kinney Ronald Krause Diana Liska Amy Locher

VLP-SO Clinics

Thalia L. Downing Carroll James P. Clements Jr Angela Dunne Philip Benjamin Katz Kendall Kay Krajicek Diana H. E. Liska Patrick Alan Oman Randall W. Paragas Alan Chris Schroeder Karine Sokpoh

The Volunteer Lawyers Project (VLP) is the pro bono project of the Nebraska State Bar Association. VLP was founded on the belief that all citizens should have access to the legal system regardless of their ability to pay. VLP remains a program of last resort. At Self Help Desks, volunteer attorneys help selfrepresented individuals access the legal system. These desks provide low income Nebraskans information and limited advice on representing themselves in court, provides limited forms and gives the pro se litigant information about the court process. Those helped have commonly been denied services from other legal providers. The Self Help Desks are located in Lancaster, Douglas, Hall, Buffalo and Madison counties.

3,607 people were served at these Self Help Desks January 1, 2012 through December 1, 2012. Pay it forward… If you are an attorney licensed in Nebraska, please consider volunteering at our self-help desks. Call (402) 475-7091 or visit www.nebar.com for more information.

THE NEBRASKA LAWYER

“Because of the lawyers that volunteer here at the Self Help Desk, I was able to get the help I needed to be able to reunite and see my daughter and that makes me very grateful. Thank you all so much.” – from a Self Help Desk client 34

Jan u ary / f ebr u ary 2 0 1 4

court news

The Nebraska Court of Appeals – New Faces and New Procedures Court Invites Attorney Input Into Oral Argument Process

Over the past three years, the composition of the Court of Appeals has changed considerably. We have experienced the unfortunate death of Judge Theodore Carlson in 2011, the appointment of Judge William Cassel to the Nebraska Supreme Court in 2012, and the retirement of Judge Richard Sievers in 2013. Each of these individuals, who together possessed over forty years of appellate judicial experience, is greatly missed. In their stead, we have enthusiastically welcomed to the court Judge Michael Pirtle, Judge Francie Riedmann, and Judge Riko Bishop. As we begin 2014, we do so with a strong combination of experience and new perspectives. We remain committed today to the original mission of the court as announced at the time the court was created and the original judges began the journey of institutionalizing the court nearly 23 years ago. This mission is to resolve appeals in a timely fashion, to give guidance for the future, and to be efficient with the citizens’ resources.

whether to dispose of a case by summary disposition or without oral argument is made by a majority of the judges of the panel to which a case is submitted. See, Neb. Rev. Stat. § 24-1101(1) (Reissue 2008).

Over the years, we have made changes to the way we do business in an effort to accomplish the goal of providing timely dispositions at the same time as attempting to provide quality and correct decisions. Our court continues to process a significant number of appeals, more than 1000 each year. We routinely examine our processes and look for ways to improve our system to meet the needs of the parties and lawyers. In the January 2011 edition of The Nebraska Lawyer, we explained various new strategies and processes that we developed in approximately 2007, including the adoption of a one-year case processing time goal, and an early case review procedure whereby we scrutinize appeals early in the process to determine whether the case would benefit from oral argument or whether it can be disposed of by summary disposition (Neb. Ct. R. App. P. § 2-107) or can be submitted for an opinion without oral argument (Neb. Ct. R. App. P. § 2-111(B)(1). The decision

The goal of maximizing the number of cases disposed of in one year or less continues. And, it remains important to our process to try to identify and decide cases that can be disposed of without oral argument so that attorneys and parties involved in such cases can receive a timely decision. The court is in the process of developing and utilizing consistent criteria in our internal review of cases as we “triage” them for summary disposition, disposition by opinion without oral argument, and disposition by opinion after oral argument. While no sorting system can be perfect, our goal is that oral argument and the necessary resources expended related to oral argument, both by the court and the litigants, are used in those cases in which argument will be most beneficial. One of the goals of this process is to notify counsel as early as possible after the briefing is complete whether the case is being submitted by the court

THE NEBRASKA LAWYER

As a result of these case processing changes, and partly in response to economic resource challenges, in June 2010 the court began scheduling oral argument cases on a bi-monthly basis as opposed to the more traditional monthly schedule. While there were internal benefits realized from doing this, there was a concern that advanced cases (i.e., juvenile, criminal, child custody, workers’ compensation) which we determined required oral argument were not being scheduled fast enough, and non-advanced cases (miscellaneous civil, generally) were still not being disposed as quickly as desired. Thus, in June 2013 we decided to return to scheduling oral arguments on a monthly basis. We began this monthly scheduling in September 2013.

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court invites attorney input into oral argument process without oral argument. Our goal is to avoid putting a case on an oral argument call if it is likely to be designated by the court for submission under Rule 2-111(B)(1). As we continue to identify and decide appeals that can be disposed of without oral argument, it necessarily follows that the number of cases that are scheduled for oral argument each month will fluctuate. As we have already experienced, it may not be necessary to schedule three full days of arguments as was traditionally done in the past. The number of days scheduled for oral argument each month will be driven by the number of appeals that are at issue that would benefit from oral argument, as well as the availability of the attorneys or parties involved in those cases. In addition, because we continue our statutory duty to hear arguments in locations around the state for the convenience of the litigants and counsel, the scheduling of arguments is somewhat dependent on the geographical origin of the case. The clerk’s office prepares on a monthly basis the proposed call of cases that may be scheduled for argument approximately two months ahead of time. During this time, the court is examining these cases to determine whether they would benefit from oral argument. The clerk’s office then issues the actual call for the cases that the court has determined should have oral argument approximately one month before the scheduled arguments. Historically, the call included a “back-up docket” for the purpose of creating a pool of cases that were briefed but not yet assigned for oral argument that could be pulled in for argument on short notice to ensure a full calendar in the event of settlements or dismissals of appeal. This “back-up docket” has now been replaced with a “review docket” which lists cases which are still being considered for possible submission without oral argument. We will notify counsel or parties no later than one week prior to the beginning of the argument session whether the case has been designated for submission on the briefs or whether it is being added to the call for argument. We hope that this new procedure will maximize your ability to plan your schedule and minimize any possible inconvenience. We want to stress that in every case, the court conducts a full review of the entire record and the briefing submitted to the court, and the issues raised on appeal are thoroughly analyzed. The fact that the court has elected to forego oral argument does not mean a case does not have significance. We appreciate that every case is important to the parties. Issuing an opinion without an oral argument simply means that there is not likely anything further a party can offer the court for consideration beyond the briefing already submitted. Opinions in cases submitted without oral argument are issued affirming trial court decisions, as well as reversing decisions, so outcome is not the determinative factor by this court in deciding to forego oral arguments on a case. This process is necessary to keep the volume of cases moving through our court every year. We encourage attorneys to make sure their clients understand that THE NEBRASKA LAWYER

the lack of oral argument does not mean we have given their case any less consideration than a case receiving oral argument. Although court rules permit parties themselves to waive oral argument and submit a case solely on the briefs, Neb. Ct. R. App. P. § 2-111(E)(6), it is rare for this court to see such waivers. We encourage attorneys to thoughtfully consider whether an appeal may be appropriate for such a waiver. We recognize that each appealing party believes that an error occurred in the trial process, and that the error affected the end result. We also recognize that appellants believe their request for relief is important and worthy of an appellate review which traditionally includes briefing and oral argument. It may be difficult for attorneys to waive oral argument if a client may perceive such a waiver as a lack of advocacy, even though such a waiver would result in cost savings to the client and time saved for the attorney. There are many times when a good discussion at oral argument between appellate attorneys and the court does indeed assist the court in reaching its final decision, even when briefing has been informative and thorough. As the bar is aware, there are also times when the briefing and oral arguments may be perfect and emotionally persuasive, but legal precedent and the appellate court’s standard of review may limit its ability to grant the relief requested. For example, when the appellant’s primary complaint is that the trial judge accepted one version of facts over another, and our standard of review is for an abuse of discretion, it is not likely that the appellant would be able to offer anything more for consideration from the record at argument than already thoroughly provided in the briefing. This type of case would be strongly considered for submission without oral argument. We are mindful that attorneys and parties may not agree with our decision to designate a case for submission without oral argument. In such situations, the court will consider a prompt motion following the order designating the case under § 2-111(B)(1), asking the court to reconsider our decision. In addition to improving our early case review process, it also remains important to keep all appeals moving forward in an efficient manner. Many brief extension requests are filed each year. These requests delay our case processing time and in some instances make it difficult if not impossible to meet our timeliness goal. Our court has begun to closely scrutinize brief extension requests, particularly in juvenile appeals. We remind attorneys that no extensions of briefing time will be allowed in advanced cases except upon a showing of “exceptional cause.” Neb. Ct. R. App. P. § 2-106(F)(1); § 2-109. In non-advanced cases, brief extension requests beyond the first 30-day extension must be supported by a showing of good cause, which cause does not include the press of other business. § 2-106(F) (2). Similarly, counsel’s identification of conflicts resulting in their unavailability for oral arguments and requests for continuances of arguments can frustrate the goal of efficient and Jan u ary / f ebr u ary 2 0 1 4

court invites attorney input into oral argument process timely disposition of appeals. Continuances, particularly late in the process, can result in fewer cases being on the final oral argument call, which slows us down and keeps other appellants waiting longer for their decisions. We recognize that in extreme situations counsel may have a scheduling conflict which cannot be remedied. As mentioned previously, the proposed call is sent approximately two months in advance of arguments in order to allow attorneys to set aside time on their schedules or resolve conflicts that would allow for argument availability. Rule § 2-111(C) provides that cases on the proposed call may not be continued unless leave is granted by the court. The rule further requires an application for continuance be filed, accompanied by a showing of “exceptional cause.” Our court is hopeful that incorporation of these procedural changes, together with the bar’s adherence to the appellate practice rules, will result in more appeals getting to final disposition at a faster pace. We are concerned, however, that by deciding cases without oral argument, we may cause attorneys

THE NEBRASKA LAWYER

and their clients to feel they are not receiving the fullest level of appellate review. While this is not a reality, it is difficult to affect perception other than by our work product. Preserving your trust and confidence in our ability to efficiently and correctly decide appeals remains our overall commitment. We are hopeful that as attorneys receive opinions without oral argument, they will still find that the court has evaluated assigned errors in a thorough manner. The court welcomes input from the bar on the changes that we have outlined above, and we are interested in engaging in future discussions with you about our processes as well as your view on the pros and cons of appellate oral arguments. Please know that our process changes are in no way a reflection of our view of the importance of oral advocacy in those cases that merit oral argument. And be assured that we see exceptional oral advocacy from the Nebraska bar. We look forward to more conversations on this topic.

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NCLE calendar

NCLE Live Seminars

NEW Seminars are being added every day. Check the NSBA website for the most current information.

UPL and Why It Matters to You January 13, 2014 2:00 pm - 4:00 pm

#87071 2 CLE ethics hours NSBA Office, 635 S 14th St. #200, Lincoln

Presenter: Shela Shanks, Counsel to the Commission on UPL A person who provides legal services, who is not a licensed lawyer, or who is not otherwise authorized by law to provide legal services, may be engaging in the unauthorized practice of law (UPL). In Nebraska UPL is a crime. UPL is illegal because of the harm people may suffer if they get bad legal advice. Non-lawyers may be untrained and inexperienced in the law. They are not officers of the courts, are not accountable for their actions, and are not prevented from using the legal system for their own purposes to harm the system and those who unknowingly rely on them. A person may represent himself or herself in court or any other legal proceeding. However, the number of complaints coming into the UPL Commission has grown. This seminar will explain how both lawyers and non-lawyers can run afoul of the Unauthorized Practice of Law statutes and Commission rules.

Come Up for Air Before You Drown! Recognizing Problems Before They Ruin Your Practice January 17, 2014 2:00 pm - 4:00 pm

#87074 2 CLE ethics hours

NSBA Office, 635 S 14th St. #200, Lincoln

Presenter: Rick Allan, Director, Nebraska Lawyers Assistance Program The Nebraska Lawyers Assistance Program (NLAP) offers help to lawyers, judges and law students troubled by substance abuse problems, stress, depression and other types of problems which may impair their ability to perform in a competent and professional manner. Rick Allan, NLAP Director, offers an overview of the warning signs that you or someone you know may need help.

Trust Account Refresher January 22, 2014 2:00 pm - 4:00 pm

#87088 2 CLE ethics hours Hruska Law Center, 635 S 14th St., 1st floor conf. room, Lincoln

Presenter: Kent L. Frobish, Assistant Counsel for Discipline The Nebraska Court Rules of Professional Conduct impose strict fiduciary standards on any lawyer who holds the property of others. As violations of the Rules can result in harsh discipline, including disbarment, it is crucial that lawyers thoroughly understand the rules and employ proper procedures. This presentation focuses upon a lawyerâ&#x20AC;&#x2122;s responsibilities for the safekeeping of money held in a trust account.

What You Need to Know About Domestic Violence Protection Orders January 27, 2014 12:00 pm - 1:00 pm

#87080 1 CLE hour

Hruska Law Center, 635 S 14th St., 1st floor conf. room, Lincoln

Presenter: Kimberley Taylor-Riley, Director of Equity & Diversity, City of Lincoln This presentation will address domestic violence statutes, protection order statutes and animal abuse (a factor in many domestic violence scenarios). It will also provide contact information for the NDHHSS Abuse/Neglect Hotline, WCA and the DVCC. (Lunch is available)

THE NEBRASKA LAWYER

Jan u ary / f ebr u ary 2 0 1 4

NCLE calendar

NCLE Live Seminars

NEW Seminars are being added every day. Check the NSBA website for the most current information.

#Pending 4 CLE hours

Military Law Section Outreach Day February 13, 2014 9:00 am - 2:00 pm

Offutt AFB

Presenters: Professor Von der Dunk, John McQueney, LCDR Kirby, Lt. Col. (ret.) Mick Wagoner, Cpt. Brad Palmer This presentation will discuss current legal issues in space law that may impact Nebraska practitioners: liability for interference with telecommunications and commercial and private use of satellite communications. A second presentation will discuss protections afforded under the SCRA for members of the military, on active duty orders, when the requirements of their military duties affect legal relationships such as the ability to respond and defend against civil lawsuit, child support and custody, lease termination (landlord/tenant) and limitations on interest that can be charged on pre-service obligations. Lastly, a presentation will describe the impacts of state court actions may have on active duty military personnel that could include administrative discipline and discharge, security clearances, ability to deploy, performance evaluations and promotion opportunities.

Courtroom Credibility & Ethics February 14, 2014 2:00 pm - 4:00 pm

#Pending 2 CLE ethics hours NSBA Office, 635 S 14th St. #200, Lincoln

Presenter: Robert F. Bartle

NCLE Trusts & Estates 101 March 14, 2014 8:30 am - 4:45 pm

#84450 6.5 CLE hours Cornhusker Hotel, 333 S 13th St., Lincoln

Presenters: Andrew Loudon & Tracey Buettner, Co-Chairs, Jessica Miller, Thomas Maul, John Hurd, Jesse Sitz, Reginald Kuhn, Frank Heinisch, William Lindsay, Douglas Pauley, and Susan Spahn. Learn the basics (and not-so-basic) essentials of working with trusts and estates. Who should attend: Lawyers new to the practice who want to learn about this important area of law, experienced lawyers seeking to expand their practices into this area of law, and ANY lawyers who look at these topics and speakers and find them to be of interest.

2014 Young Lawyers Section Best Practices Seminar March 28, 2014 8:30 am - 4:30 pm

#Pending Est. 6 CLE hours including 1 hour ethics

UNL College of Law, Lincoln

Presenters will cover a variety of practice areas and provide practical and valuable information for lawyers with many different types of practice. More information TBA.

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NCLE calendar

NCLE Live Seminars

NEW Seminars are being added every day. Check the NSBA website for the most current information.

Advanced Contract Drafting: Conquering Ambiguity April 22, 2014 8:30 am - 4:30 pm

#Pending Est. 6 CLE hours

Scott Conference Center, Omaha

Presenter: Lenné Eidson Espenschied, Esq. Lenné Eidson Espenschied, Esq., practiced law in Atlanta, Georgia, for 25 years, focusing on corporate and transactional representation of technology-based businesses. She is a frequent speaker at continuing legal education seminars and provides private training at law firms and corporate legal departments. Her passion is helping younger lawyers acquire the skills they need to be successful in transactional practice.

NSBA Government Practice Section Seminar: What You Need to Know as Agency Legal Counsel June 13, 2014 8:15 am - 12:30 pm

#Pending Est. 4 CLE hours

UNL College of Law, Lincoln

Presenters: Governor’s Policy Research Office, Attrorney General’s Office, Secretary of State, George Kilpatrick, John Albin, Mueller Robak, Stephanie Caldwell, Wendy Wussow Agency legal counsel sharing checklists and approaches; legislative update; Caselaw update; criminal behavior in the government workplace; disparate impact issues

#Pending Est. 6 CLE hours including 1 hour ethics

NSBA Family Law Section Annual Update July 18, 2014 8:30 am - 4:30 pm

Embassy Suites, La Vista

Planning Chair: Adam Astley A selection of topics of interest to Family Law Practitioners will be covered.

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NCLE calendar

Telephone Seminars & Webcasts

Telephone seminars and webcasts are offered through a 3rd-party provider. You must register online. Go to the Calendar at www.nebar.com, click on the webcast or telephone seminar youâ&#x20AC;&#x2122;d like to register for, and follow the link and instructions provided. February

January 2014

2014

4 2014 Ethics Update, Part 1 #87336. 1 CLE ethics hour (12:30 pm - 1:30 pm CST)

13 2013 Americans with Disabilities Act Update (Live Replay) #86672. 1 CLE hour (12:00 pm - 1:00 pm CST)

5 2014 Ethics Update, Part 2 #87338. 1 CLE ethics hour (12:30 pm - 1:30 pm CST)

14 BYOD: Bring Your Own Device to Work - Employment Law Issues in the Workplace #86366. 1 CLE hour (12:00 pm - 1:00 pm CST)

13 Current Ethical Issues in Securities Law #86994. 1.83 CLE ethics hours (8:00 am - 10:00 am CST) 25 Taking and Defending Depositions #87012. 2.75 CLE hours (5:00 pm - 8:00 pm CST)

14 Ethical Dangers of Lawyers Using Technology & Social Media #86962. 1.83 CLE ethics hours (9:30 am - 11:30 am CST)

26 Fundamental Concepts in Drafting Contracts #87014. 2.75 CLE hours (5:00 pm - 8:00 pm CST)

15 Planning with Family Limited Partnerships/Family LLCs, Part 1 (Live Replay) #86668. 1 CLE hour (12:00 pm - 1:00 pm CST)

27 Insurance Law - The Basics #87016. 2.83 CLE hours (5:00 pm - 8:00 pm CST)

March 2014

15 Win at Trial with Persuasive Closing Arguments #86972. 2.25 CLE hours (5:00 pm - 7:15 pm CST)

13 Writing in the Law with Leibowits #87045. 2 CLE hours (5:00 pm - 7:00 pm CST)

16 Planning with Family Limited Partnerships/Family LLCs, Part 2 (Live Replay) #86670. 1 CLE hour (12:00 pm - 1:00 pm CST) 17 Ethical Issues for Business Attorneys #86656. 1 CLE ethics hour (12:00 pm - 1:00 pm CST)

The Nebraska State Bar Foundation is pleased to support CLE for Bar members.

22 Fixing Trusts: Techniques to Alter a Trust When Circumstances Have Changed #87132. 1 CLE hour (12:00 pm - 1:00 pm CST) 23 Drafting Guaranties in Real Estate Transactions #86839. 1 CLE hour (12:00 pm - 1:00 pm CST) 27 Attorney Ethics & ADR (Live Replay) #86666. 1 CLE ethics hour (12:00 pm - 1:00 pm CST) 28 Buyouts in Closely Held Companies Triggers, Methods, Valuation & Finance #87134. 1 CLE hour (12:00 pm - 1:00 pm CST) 29 Enforcing Money Claims Pre- & Post Judgement #86986. 2.83 CLE hours (5:00 pm - 8:00 pm CST) 31 Attorney Ethics & Digital Communications #86835. 1 CLE ethics hour (12:00 pm - 1:00 pm CST)

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Nebraska state bar FouNdatioN 41

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legal community news Nebraska State Bar Foundation Celebrates 50 Years of Service to the Public and the Profession On Friday, November 15, Fellows and friends of the Nebraska State Bar Foundation celebrated its 50th anniversary at the Embassy Suites Hotel and Conference Center in La Vista. Foundation President Gary W. Radii of Omaha presided at the special dinner where the founders were honored, and contributors to the 50th anniversary Infinity Fund were recognized. Author, wildlife biologist, and falconer Dan O’Brien shared some of his award-winning stories with those gathered. Described by the New York Times as “a writer with a keen and poetic eye,” O’Brien is a two-time winner of the National Endowment for the Arts individual artist’s grant, a two-time winner of the Western Heritage Award, and a 2001 recipient of the Bush Creative Arts Fellowship. His novels include The Spirit of the Hills, In the Center of the Nation, Brendan Prairie, The Contract Surgeon, The Indian Agent, and Stolen Horses. The Nebraska State Bar Foundation was formally organized on November 20, 1963. Through generous

contributions from Fellows, corporations, and individuals, the Foundation in 1985 erected the Roman L. Hruska Law Center in Lincoln as its headquarters. From these offices the Foundation administers and funds numerous programs of Law-Related Education for the Public, including the ever popular Nebraska High School Mock Trial Project. A group of more than 400 lawyers and judges volunteer their time and expertise to assist the more than 1,000 high school students who participate in this program. The Bar Foundation administers a program to aid the charitable and welfare purposes of active practicing Nebraska lawyers and their families through the relief of the poverty they may be experiencing. The mission of the Foundation includes “improvement of the administration of justice and the fulfillment of the American vision of equal justice for all.” The dinner was preceded by a cocktail reception. Following the dinner O’Brien conducted a book signing as the Foundation hosted a dessert buffet. Music for the evening’s festivities was provided by the Escape from AlcaJazz Band.

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transitions

Career Changes.......................... ..........................and Relocations McGrath North is pleased to announce the addition of its newest attorney, Stacey A. Shadden. Ms. Shadden joins McGrath North’s Business and Corporate Practice Group and will assist clients with a wide range of transactional matters, including mergers and acquisitions, commercial Stacey A. contracts, business formation and general Shadden business planning. Stacey is a 2013 magna cum laude graduate of Creighton University Law School and received her bachelor’s degree, magna cum laude in Business Administration, Economics and Finance from Creighton University. Stacey served as Executive Editor and Lead Article Editor for the Creighton International and Comparative Law Journal and was on Creighton’s National Moot Court Competition team. Carlson, Schafer & Davis, P.C., L.L.O., is pleased to announce that Jeffrey A. Gaertig has joined the law firm as an associate practicing in the areas of civil and criminal litigation. Prior to joining the firm, Mr. Gaertig was employed with the Nebraska Attorney General’s Office as an Assistant Attorney General for the past seven years, with the past five years as a criminal prosecutor within the Criminal Bureau. Jeff has extensive criminal trial experience and will focus his practice in the areas of criminal defense, personal injury claims, family law, and commercial litigation. Mr. Gaertig attended the University of Nebraska-Lincoln and received his B.A. in 1994. In 2004, he received his Juris Doctor from the University of Nebraska College of Law. Upon obtaining his law license, he engaged in the private practice of law before joining the Nebraska Attorney General’s Office in 2005. Jeff is married to Jeanne Dickinson-Gaertig and they have three daughters; Kayla, Avery, and Mia. Lamson Dugan and Murray, LLP is pleased to announce the addition, of three new associates to the firm. Catherine E. French has joined the Business Department along with Douglas Amen and David Voorman in the Litigation Department. Ms. French graduated from Creighton University School of Law. While at Creighton, she was selected as research assistant to Professor Catherine Catherine E. French Brooks. Ms. French participated in the THE NEBRASKA LAWYER

Street Law program, where she taught legal topics to seventh grade students at Sacred Heart School. In addition, she was a semi-finalist in the school’s client counseling competition. She received her bachelor’s degree in economics from Creighton University. Ms. French served as Vice President of Finance for the Creighton University Inter Residence Hall Government. Mr. Amen received his law degree from Creighton University School of Law with a Certificate in Litigation. He received bachelor degrees in political science and economics from the University of Wisconsin – Madison. While at Creighton University School of Law, he was a semi-finalist in the National Criminal Trial Advocacy Competition in Chicago, Illinois, the IntraSchool Negotiation’s Champion and competed in the ABA Regional Negotiation Douglas Amen Competition in Minneapolis, Minnesota. He was a member of the Student Bar Association, Vice-President of Bailiffs for the Moot Court Board, and a member of the Supreme Court Seminar co-taught by Professor G. Michael Fenner and United States Supreme Court Associate Justice Clarence Thomas. Mr. Voorman graduated from the University of Nebraska College of Law with emphasis in Civil Litigation and Constitutional Law. He received his bachelor’s degree in history and communication from Concordia University. At Nebraska, Mr. Voorman placed first in the Animal Law Closing Argument Competition two years in a row and competed in the National Animal Law David Voorman Competitions twice. He also participated in the Allen Moot Court and Grether Moot Court competitions. Prior to attending law school, Mr. Voorman worked at the White House in Washington, D.C., serving both the George W. Bush and Barack Obama Administrations in the Office of Records Management. Fraser Stryker is pleased to announce that Jacqueline DeLuca, Rhianna Kittrell and Alex Kron have joined the firm as associates. Jacquie received her Bachelor of Arts in International Relations, magna cum laude, and her law degree, summa cum laude, from Creighton University. During law school Jacquie, received the Creighton University Daniel A.

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transitions/awards and recognition Svoboda Trial Advocate of the Year Award and was the recipient of the National Board of Trial Advocacy Scholarship. Her practice areas include federal court litigation, insurance defense and self-insured litigation, and appellate practice. Prior to joining Fraser Stryker, Jacquie served a two-year term as a law clerk for the Honorable Richard E. Dorr, United States District Judge for the Western District of Missouri. Rhianna received her Bachelor of Arts in History and Political Science, highest distinction, and her law degree, high distinction, from the University of Nebraska-Lincoln. Her practice focuses on labor and employment law, employee benefits and ERISA, and business and corporate law. Alex received his Bachelor of Science in Business Administration with a major in Accounting and Finance, summa cum laude, from Creighton University and his law degree from the University of Iowa. His practice areas include business and corporate law, trust and estate administration, and labor and employment law. The law firm of Larson, Kuper & Wenninghoff is pleased to announce that JOEL M. CARNEY joined the firm as a partner on December 1, 2013. He is a graduate of Creighton University School of Law and he is licensed in Nebraska and Iowa. He will continue to practice law in the areas Joel M. Carney of bankruptcy, commercial law, insurance defense law, personal injury and subrogation. In addition to practicing law, Joel is an active member of the Nebraska State Bar Association serving on the Executive Committee and as Chairman of the House of Delegates. He was also appointed by the Nebraska Supreme Court to serve on the Disciplinary Review Board.

Awards and Recognition Robert Schafer, a Pawnee City native and partner at Carlson, Schafer and Davis law firm in Beatrice, was promoted to lieutenant colonel in the Nebraska Air National Guard’s 155th Air Refueling Wing Saturday. A 28-year member of the Guard, where he currently serves as the Judge Advocate General, Schafer said his military career is among the most rewarding things he has done. As the wing’s JAG, Schafer counsels command on contract negotiations, personnel and discipline issues, rules of engagement, laws of war and others. Schafer joined the Army National Guard in 1985 at the age of 17 before his senior year at Pawnee City High School. He completed basic training at Ft. Benning, Ga. After spending eight years in the infantry and four years as a clerk in the Army National Guard JAG section in Lincoln while he was attending law school. Schafer was commissioned into the 35th Infantry Division and he moved to the unit’s headquarters at Ft. Leavenworth and three more years with a field artillery brigade in Topeka, Kan. He then moved back to the area support group in Lincoln. Schafer said being a JAG officer is similar to being the in-house counsel to a major corporation. Working with the military is part of Schafer’s public service. In March, he was tapped by Gov. Dave Heineman to fill the University of Nebraska Board of Regents seat previously held by Lavon Heidemann, who became lieutenant governor.

Did You Know? .... Casemaker Setting Link The Settings link on Casemaker is now live. The tab is located on the Casemaker home page, left column and by clicking on it, you can set your personal preferences by selecting a state(s), books to search, results listing, email to send to, print options, document format, page layout, and copy selection. Then each time you sign in to Casemaker, these preferences are remembered. Sign up for an online webinar today to learn more of the Casemaker features - http://www. casemakerlegal.com/registerWebinar.aspx.

Save the Date! 2014 Best Practices Seminar

For Casemaker research assistance 7 a.m. to 7 p.m. Central M-F call toll-free 877.659.0801.

Presented by the NSBA Young Lawyers Section Friday, March 28, 2014 8:30 am - 5:00 pm University of Nebraska College of Law THE NEBRASKA LAWYER

You can also call the Bar for research or login assistance at 402.475.7091.

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in memoriam Michael M. Hroch, 67 of Wilber, Nebraska, was born in Lincoln, Nebraska on February 2, 1946 to Charles F. and Pearl E. Hroch, and died November 5, 2013 in Omaha, Nebraska after a courageous 5-year battle with Multiple Myeloma. Mike was a life-long resident of Wilber, Nebraska, and graduated from Wilber High School in 1964. Mike attended the University of Nebraska-Lincoln, where he was a member of the University of Nebraska baseball team and a member of the Chi Phi Fraternity. He graduated from the University of Nebraska in 1968 with a Bachelors Degree in Business Administration. On February 10, 1968, Mike married Stephanie Pospisil in Lincoln, Nebraska. In 1972, Mike graduated from the University of Nebraska College of Law. Upon graduation from law school, Mike joined his father working at the Bank of Wilber. Shortly thereafter, Mike opened his law practice in Wilber, Nebraska, where he worked until he semi-retired in 1996. He then began working at the First Tri-County Bank in Swanton, Nebraska. In 2001, Mike decided to resume his law career full-time and joined the law firm of Steinacher, Vosoba, Hanson, and Kolbo. In 2002, Mike became a partner of the firm Hanson, Hroch & Kuntz, where he practiced until his death. At the time of his death, Mike was a member of the First Evangelical Lutheran Church, Wilber, Nebraska; Wilber City Council President; Treasurer of the Wilber-Clatonia School Foundation; a member of the First Tri-County Bank Board of Directors; Nebraska Bar Association; Blue Valley Masonic Lodge #64; Mount Zion Royal Arch Masons #17; Mt. Moriah Commandery #4; Knights Templar; Sesotris Shriners, Roca, Nebraska; Elk Lodge #2197, Superior, Nebraska; WilberClatonia Alumni Band and Chi Phi Fraternity Alumni Association. Mike was past Deputy Saline County Attorney; City Attorney for Wilber and surrounding Villages; President of the Wilber Chamber of Commerce; a member of the Wilber Care Center Board of Directors; and a member of the WilberClatonia School Board. He was also a former member Wilber Fire Department and Wilber Gun Club. Mike was an avid fisherman, hunter and outdoorsman. Mike is survived by his wife of 45 years, Stephanie, daughter Jennifer Hroch, daughter and son-in-law Hillary and Doug Hayek, granddaughters Logan and Rylee Hayek, brother and sister-in-law Charles M. and Becky Hroch; brother-in-law and sister-in-law Michael and Pamela Pospisil, all of Wilber, Nebraska; uncle, Glenn Miller, of Laramie, Wyoming; nephews, nieces and cousins; and special friends Gerald and Melissa Lamkin and their daughter Callie Lamkin, of Beatrice, Nebraska. Mike will also be missed by his faithful companion Willie. Mike was preceded in death by parents, parents-in-law Stephen and Marie Pospisil, son-inlaw John Schintzel, aunts and uncles.

Joseph McCluskey, 69, passed away on Oct. 26, 2013 in Kansas City, Mo. He grew up in Newcastle and graduated from Creighton University Law School in Omaha. He married Marilyn Melkus in 1966 and they moved to York when Joe was appointed York County Attorney. After five years of public service, he practiced law and worked for First Federal Savings and Loan and later for York State Bank. During the 41 years they lived in York, Joe was active in the community and an active member of St. Josephâ&#x20AC;&#x2122;s Catholic Church. After retirement in 2010, Joe and Marilyn moved to Overland Park, Kan. to be closer to children and grandchildren. Joe became an active member in the Church of the Nativity parish. He enjoyed baseball games, dining out with friends, and the company of his family. He will long be remembered for his quiet and gentle demeanor, compassion for others as well as for his stories, his sense of humor and loyalty to his Irish heritage. Joseph was preceded in death by his parents, Leo and Verena (Backman), and his sister, Annette. He is survived by his wife, Marilyn (Melkus) of Overland Park; sister, Mary Pat (Jack) Larson of Lincoln; sons, Michael (Janet) of Melbourne, Fla. and John (Shannon) of Overland Park; daughters, Jean of Overland Park and Meghan of Kansas City, Mo.; and his grandchildren Madeleine and Jack of Melbourne, Fla. and Morgan, Tyler and Kevin of Overland Park. Ronald H. Stave died November 28, 2013. Ron was born in Omaha, Nebraska on September 16, 1944. He was a 1962 graduate of Westside High School, where he played baseball and football. At Omaha University, he played football on scholarship for the Omaha University Indians for four years, earning All-American honorable mention and First Team Central Intercollegiate Conference All-Star before graduating in 1966. Ron attended Creighton Law School and graduated in 1972, after which he practiced law for thirty-five years. He wrote the appellate brief on the landmark United States Supreme Court case, Owen Equipment and Erection v. Kroger (1978). In 2006 Ron was appointed to the Nebraska Game and Parks Commission, where he first served as Chairman in 2012; he was in his second term at the time of his death. Throughout his life Ron was an avid outdoorsman with a great passion for hunting and fishing. Ron was preceded in death by his father, Hubert F. Stave. He is survived by his wife, Kristy Stave; daughter, Lora Salem (Tarek); son, Doug Stave (Angie); stepdaughter, Shawn Bonge (Rick); stepson, Matt Wolff (Ann); 11 grandchildren: Zack, Joey and Joshua Salem, Jake, Lauren and Justin Stave, Haley, Rachel and Jen Bonge, Abbie and Elizabeth Wolff; mother, Bernice Stave; sister, Linda Hanson (Chuck).

â&#x17E;Ą THE NEBRASKA LAWYER

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in memoriam Richard Robert Wood, age 76, of Lincoln, Nebraska, died December 2, 2013. He was born December 2, 1937 in Iowa City, Iowa to Dr. Maynard A. Wood and Georgia (McCollister) Wood. Richard married Sandra Dian Schneider on June 13, 1959 in Ft. Madison, Iowa. He was a graduate of Lincoln High School, the University of Iowa (Bachelor of Arts), and the University of Nebraska College of Law (Juris Doctor). He served in the U.S. Army, where he achieved the rank of Infantry Captain. After his military service, he returned to Lincoln with his family and started his legal career that included serving for 5 years as the City Attorney for the City of Lincoln and 29 years as Vice President and General Counsel of the University of Nebraska. A 60+ year member of Westminster Presbyterian Church, he was also a member of the Lincoln High School Athletic Hall of Fame, a member of Phi Delta Theta fraternity, and was a Varsity Letterman at the University of Iowa. He was also a past member of the Lincoln Charter Revision Committee, the Nebraska Power Review Board, the National Institute of Municipal Law Officers, the National Association of College and University Attorneys, a Fellow of the Nebraska State Bar Foundation, and was the

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Vice President and General Counsel Emeritus of the University of Nebraska. Richard is survived by his second wife, Larysa; daughter and son-in-law Cyndy and Pete Maddux, Lincoln; daughter and son-in-law Gretchen and Brice Middleton and grandsons William and Matthew, Lincoln; son and daughterin-law Brian and Sarah Wood and grandsons Aaron and Raine, Bozeman, MT; son Richard McCollister Wood and grandson Logan, Lincoln; three brothers Larry (Sue), Alan (Julie), and David (Ann) Wood; sister-in-law Jacqueline Griswold; stepson Sergy Paletski; and many nieces and nephews. He is preceded in death by his beloved first wife Sandra, his parents, and niece Catharine. The memory of your colleagues may be honored with a memorial to NSBAâ&#x20AC;&#x2122;s Nebraska Lawyers Foundation, PO Box 81809, Lincoln, NE 68501-1809 or to the Nebraska State Bar Foundation, PO Box 95103, Lincoln, NE 68509-5103. Note: If you hear of the death of a bar member please feel free to contact The Nebraska Lawyer and staff will follow up to obtain information and prepare a notice. You may contact kbellman@nebar.com. We receive notices, but they come from different sources and at different times, so your assistance is appreciated in sharing this important information with your colleagues.

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BuIldIng on 50 yeARs oF seRvICe to the legAl CommunIty.

The aba retirement funds program is proud to celebrate its 50th year of providing comprehensive and affordable retirement plans exclusively to the legal community. Your membership has made the Program a success. Thank You. Find out what thousands of Program member firms already know about saving for retirement. Call an ABA Retirement Funds Program Regional Representative today! (866) 812-1510 I www.abaretirement.com I joinus@abaretirement.com

The Program is available through the Nebraska State Bar Association as a member benefit. This communication shall not constitute an offer to sell or the solicitation of an offer to buy, or a request of the recipient to indicate an interest in, and is not a recommendation of any security. Securities offered through ING Financial Advisers, LLC (Member SIPC). The ABA Retirement Funds Program and ING Financial Advisers, LLC, are separate, unaffiliated companies and are not responsible for one anotherâ&#x20AC;&#x2122;s products and services. CN0311-8581-0415

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NSBA calendar

NSBA Events Calendar April 2014

October 2014

8-10

2014 Barristers’ Ball Embassy Suites, La Vista

2014 NSBA Annual Meeting Embassy Suites, La Vista

June 2014 20

Greater Nebraska Golf Scramble Prairie Club, Valentine

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NCLE & the NSBA Real Estate Probate & Trust Law Section present

Trusts and Estates 101

Friday, March 14, 2014 • 8:30 am - 4:45 pm Cornhusker Hotel • 333 S 13th St., Lincoln, NE 68508

Co-Chairs: Tracey L. Buettner, Esq., Stratton, DeLay, Doele, Carlson & Buettner, P.C., L.L.O. & Andrew M. Loudon, Esq., Baylor, Evnen, Curtiss, Grimit & Witt, LLP *Nebraska MCLE Activity #85540. 6.5 CLE hours.

Here is your opportunity to learn the basics (and not-so-basic) essentials of working with trusts and estates. Who should attend? Lawyers new to the practice who want to learn about this important area of law, experienced lawyers seeking to expand their practices into this area of law, and ANY lawyers who look at these topics and speakers and find them to be of interest. In other words: YOU. 8:10 am Registration

12:00 pm Lunch (included with your registration)

8:25 am Welcome

Afternoon Session - The Estate Administration

1:15 pm What should I discuss with the Personal Representative or Trustee at the first 8:30 am What topics should I discuss with the client meeting for an estate administration? at our initial estate planning meeting? Frank C. Heinisch, Esq., Heinisch & Lovegrove Law Office, James L. Fehringer, Esq., Fehringer & Mielak, LLP P.C., L.L.O. Morning Session - The Estate Plan

9:00 am Does my client need a Will or a Trust or both? Jessica B. Miller, Esq., Harding & Shultz, P.C., L.L.O.

1:45 pm What income tax issues are faced in probate? Reginald S. Kuhn, Esq., Mattson, Ricketts, Davies, Stewart & Calkins

9:30 am Should my clients have a Power of Attorney, Health Care Directive or Living Wills? Thomas M. Maul, Esq., The Law Office of Thomas M. Maul

2:15 pm What should be on the Inventory? William J. Lindsay, Jr., Esq., Gross & Welch, P.C., L.L.O. 2:45 pm Break

3:00 pm What is Portability and what do my clients need to know about it? 10:15 am Who should be the Personal Representative Douglas G. Pauley, Esq., Conway, Pauley & Johnson, P.C. and Trustee?” 3:30 pm How does the Nebraska inheritance tax John C. Hurd, Esq. & David W. Rasmussen work and how does it impact an estate? Wolfe, Snowden, Hurd, Luers & Ahl, LLP Susan J. Spahn, Esq., Fitzgerald, Schorr, Barmettler & 10:45 am How do I incorporate a Limited Liability Brennan, P.C., L.L.O. Company, Corporation or Partnership into 4:00 pm Probate Panel Roundtable an Estate Plan? Frank C. Heinisch, Reginald S. Kuhn, William J. Lindsay Jesse D. Sitz, Esq., Baird Holm LLP Jr., Douglas G. Pauley and Susan J. Spahn 11:15 am Estate Planning Panel Roundtable Moderated by Dennis W. Collins, Esq., Jewell & Collins James L. Fehringer, Jessica B. Miller, Thomas M. Maul, 4:45 pm Adjourn/Reception John C. Hurd and Jesse D. Sitz Moderated by Dennis W. Collins, Esq., Jewell & Collins 10:00 am Break

See reverse side for registration form THE NEBRASKA LAWYER

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NCLE & the NSBA Real Estate Probate & Trust Law Section present

Trusts and Estates 101

Friday, March 14, 2014 â&#x20AC;˘ 8:30 am - 4:45 pm Cornhusker Hotel â&#x20AC;˘ 333 S 13th St., Lincoln, NE 68508

REGISTRATION FORM: Trusts and Estates 101 - March 14, 2014

ALL registrants will receive a link to download and print the materials ahead of time as well as a CD of the materials the day of the seminar. Materials will NOT be printed for registrants unless requested and paid the additional fee below. c Registration - $275

c Real Estate, Probate & Trust Law Section Members - $240

c Lawyers in practice 5 years or less - $225 c I am attending Trusts and Estates 101 & want printed materials - $45 (cost is additional to registration fee)

I am unable to attend, please send me:

c Printed Manual - $95

c CD Only - $55

Name:_____________________________________________________________________Bar #_________________________ Address:___________________________________________ City:______________________ State:_______ Zip:_________ Telephone:___________________________________ E-Mail:_____________________________________________________ ______ Check enclosed OR Charge to ______ MasterCard _______ Visa _______ Discover _______ AMEX Amount enclosed or to be charged $____________ Card number: _________________________________________________ Security Code (located on back of card):_____________ Expiration Date:____________ Mo/Yr Please print name on credit card:____________________________________________________________________________ Credit card billing address (if different from above):____________________________________________________________ City:_______________________________________________________ State:__________________ Zip:_________________ Signature:________________________________________________________________________________________________

Make checks payable to NSBA and return to NSBA, PO Box 81809, Lincoln, NE 68501 or Fax to 402-475-7098

You will receive an email from the NSBA confirming your registration. If you do not receive an email confirmation, please call 402-475-7091. If you need an accommodation in order to attend this event, please contact NCLE as soon as possible at 402-475-7091 or 1-800-927-0117.

Want to watch the webcast?

Returning this form does not register you for the available webcast. You must register with our 3rd party provider. http://nebar.bizvision.com/product/trustsandestates101%2810161%29 *Distance Learning Credit - Nebraska MCLE Accreditation pending. Estimated 6.5 CLE hours. **Only 5 distance learning CLE hours may be claimed per year for Nebraska.**

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classified ads

Appellate Brief-Writing: Former Illinois Assistant Appellate Defender Michael Wilson available as co-counsel for appeals, criminal and civil. Since joining Omaha firm Schaefer Shapiro LLP in 2009, Mr. Wilson has successfully represented several clients before the Nebraska appellate courts. For more information, contact Mr. Wilson at 402-341-0700 or visit www. michael-wilson-law.com. ASSOCIATE POSITION: Anderson, Creager & Wittstruck PC LLO (AV Rated Firm) is looking for 1 or 2 attorneys with an established client base and/or a minimum of three years of practice experience to join our Lincoln firm. Great opportunity for someone looking to join an established firm. No required areas of practice necessary, but experience and interest in family law and criminal defense would be beneficial. Compensation structure is negotiable. Please email cover letter, resume and references to: Amie Martinez acm@acwlaw.com. If requested, inquiry can be confidential. OFFICE SPACE AVAILABLE - Historically refurbished, main street propery in Doniphan NE. A vibrant community in the heart of the Central NE, Tri-Cities area. Combined population base in excess of 100,000. Just minutes from three county seats. Perfect for a solo practitioner or firm looking to establish a satellite office. Contact Al Avery, Associate Broker, Woods Bros Realty. 308380-2880 or Al.Avery@WoodsBros.com. WEST OMAHA ASSOCIATE POSITION OR OFFICE SHARE: We have space in our expanded law office that is available for lateral hires with books of business or solo practitioners seeking an office share arrangement. To inquire, send message to applicant@thompson.law.pro. Executive Sportsman’s Acreage with fantastic views of branched oak lake - Two options for purchase. See MLS #10110082 and #10110153. Call Shellyn Sands at (402) 239-9668. Keller Williams Realty www.shellyn.net.

NEW LAW OFFICE POSITIONS Nationwide Trial Division, with offices across the United States serving Allied, Nationwide, Scottsdale, Titan, and Victoria Insurance Companies, will be opening a new Trial Division office in the metropolitan Omaha area during the first quarter of 2014. Openings are available for the following positions: MANAGING ATTORNEY: The Managing Attorney is the on-site person responsible for leading the delivery of legal services to clients and claims customers, and will directly supervise attorneys and paralegals in the trial office. Nebraska and Iowa licensure in good standing, 8 years litigation experience and prior management experience are prerequisites. Proven knowledge of litigation practices and procedures, claim processes and management principles and practices are also required. TRIAL ATTORNEY: This is a high profile, litigation intensive position requiring considerable initiative, legal creativity and the ability to relate with business clientele. Nebraska and Iowa licensure and minimum three to five years civil litigation experience required. The successful candidate must possess excellent verbal/written communication skills, ability to interpret and apply statutes, regulations and appellate decisions; PARALEGAL: This position seeks a detail-oriented individual to perform various duties unique to a legal environment. Knowledge of PC operations, legal concepts, legal and medical terminology, as well as jurisdictional litigation protocols with a HS diploma/equivalent, and 3-5 years’ experience in a law office are required. Excellent communication skills and professional demeanor are essential. Paralegal certificate preferred. LEGAL SECRETARY: This position seeks a detailoriented individual to perform various duties unique to a legal environment. Knowledge of PC operations, legal concepts, terminology, processes, best practices and guidelines with a HS diploma/equivalent, as well as 2 years’ experience in a law office are required. Excellent communication skills and professional demeanor are essential. We offer challenging opportunities, competitive salaries and benefit packages. Interested candidates should email their resume to Nicole Miller at millen17@nationwide.com and/or apply online at www.nationwide.com. EOE/M/F/D/V

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2014 Public Service Awards The Nominating Committee of the House of Delegates of the Nebraska State Bar Association is seeking nominees for the Public Service Awards to be presented at the 2014 Annual Meeting in October. Nominations should be made on the following form and returned to the committee on or before May 9, 2014.

George H. Turner Award

The George H. Turner award originated in 1964 and was established to recognize a member of the bar demonstrating unusual effort in furthering public understanding of the legal system, the administration of justice, and confidence in the legal profession.

Award of Appreciation

The Award of Appreciation is awarded to an individual or organization in recognition of outstanding public service creating a better public understanding of the legal profession and the administration of justice.

Award of Special Merit

The Award of Special Merit originated in 1973 and was established to recognize an individual or organization for services advancing the legal profession, the administration of justice and the public interest.

Nomination Form

Please check the award for which you are providing a nomination.

c Award of Appreciation c Award of Special Merit c George H. Turner Award

Name of Nominee(s):_________________________________________________________________________ Address:___________________________________________________________________________________ Please briefly describe the activities and contributions which qualify this candidate as a nominee for the Award: _________________________________________________________________________________________ _________________________________________________________________________________________ _________________________________________________________________________________________ _________________________________________________________________________________________ Please include any other information you believe would be helpful to the committee: _________________________________________________________________________________________ _________________________________________________________________________________________ Your name and address: _________________________________________________________________________________________ _________________________________________________________________________________________ Please return this form by May 9, 2014 to: NSBA House of Delegates Nominating Committee, PO Box 81809, Lincoln, NE 68501-1809 Fax (402) 475-7098

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2014 Barristers’ Ball

April 5, 2014 Embassy Suites, La Vista Please join the following law firms & corporate sponsors in purchasing a table at the 2014 Barristers’ Ball Band Sponsor • Marsh

Dessert Sponsor

• Mueller Robak LLC

Dinner Sponsor

• ABA Retirement Plan

Beverage Sponsor

• Jackson Lewis LLP

Silver Sponsors

• Baird Holm LLP • Bartle & Geier Law Firm/Rembolt Ludtke LLP • Brodkey, Peebles, Belmont & Line, LLP • Creighton Law School • Cuddigan Law, PC LLO • Fraser Stryker PC LLO • Gross & Welch, PC LLO

• Harding & Shultz, PC, LLO • Hauptman, O’Brien, Wolf & Lathrop, PC • Kalkwarf & Smith Law Offices, LLC • Kiewit Corporation • Kutak Rock • Lamson Dugan & Murray LLP • McGill Gotsdiner Workman & Lepp, PC, LLO • Matzke Mattoon and Shaul • Minnesota Lawyers Mutual Insurance Company • NSBA Young Lawyers Section • Paychex • Sarpy County Public Defender’s Office • Schirber & Wagner, L.L.P. • Suiter • Swantz, PC, LLO • The Daily Record • University of Nebraska School of Law • Walentine, O’Toole, McQuillan & Gordon, L.L.P.