The Nebraska Lawyer Magazine March/April 2019 by Elisa Oria

Immigrants in Nebraska: Considerations for Practitioners Who Represent Non-Citizen Clients Mindy Rush Chipman and Kevin Ruser Justice on the Plains: 5 Key Takeaways From the Landmark Nebraska Supreme Court Decision Braden Storer Bail, Fines, and Fees Create Modern Day Debtorsâ&#x20AC;&#x2122; Prisons in Nebraska Amy Miller To Discover, or Not to Discover Paul B. Schaub

Nebraska State Bar Association 635 South 14th Street #200 Lincoln, NE 68508

PRSRT STD US POSTAGE PAID OMAHA NE PERMIT NO 2270

The

Nebraska Lawyer Official Publication of the Nebraska State Bar Association • March/April 2019 • Vol. 22 No. 2

Features

President’s Page:

37 Criminal Law Legislation Criminal Law Bills Introduced in the 2019 Legislative Session by Christopher Eickholt

The Importance of a Good First Impression

J. Scott Paul

Departments

.................................................................. J. Scott

Paul

Immigrants in Nebraska:

47 Plain Language Snap, Crackle, Pop by Mark Cooney

Considerations for Practitioners Who Represent Non-Citizen Clients ..................................... Mindy

Rush Chipman and Kevin Ruser

Justice on the Plains:

5 Key Takeaways From the Landmark Nebraska Supreme Court Decision ............................................................ Braden

19 23 25

27 33

Legal Community News

NSBA Member Spotlights

69 Volunteer Lawyers Project No Civil Right to Counsel: Restating the Need for Civil Pro Bono Legal Services by Laurie Heer Dale and Carol Cleaver

Improving Lives and Community Safety

Denton

Young Lawyers Section Page: CLSI and Your New Privacy Rights

J. Chrisp

Rural County Attorneys Benefit from Amended Rule of Professional Conduct .......................................................... Patrick

Court News

Nebraska Probation:

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

63 Correction - "The Little Things That Kill Credibility in Court Papers" from January/ February issue

B. Schaub

.......................................................... Robert

Miller

To Discover, or Not to Discover ...........................................................Paul

53 Speaking of Ethics Criminal Law Practice As A Team Concept by Mark Weber

Storer

Bail, Fines, and Fees Create Modern Day Debtors' Prisons in Nebraska .................................................................. Amy

50 Wellness Brief Depression—The Quiet Threat by Chris Aupperle

Cooper

NSBA Section Connection

Manual Maven

Upcoming CLE Programs

CLE Faculty Recognition

Transitions

In Memoriam

Classifieds

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

MARCH/APRIL 2019

Nebraska State Bar Association 635 S 14th St. #200, Lincoln, NE 68508 (402) 475-7091 • Fax (402) 475-7098 (800) 927-0117 • www.nebar.com

EXECUTIVE COUNCIL President: J. Scott Paul, Omaha President-Elect: Steven F. Mattoon, Sidney President-Elect Designate: Jill Robb Ackerman, Omaha House of Delegates Chair: Michael J. McCarthy, North Platte House of Delegates Chair-Elect: Hon. Patricia A. Freeman, Papillion House of Delegates Susan K. Sapp, Lincoln Chair-Elect Designate: Past President: Timothy R. Engler, Lincoln Past House of Delegates Chair: Jane Langan Mach, Lincoln First District Rep.: Jane Langan Mach, Lincoln Second District Rep.: Kenneth W. Hartman, Omaha Third District Rep.: Jason S. Doele, Norfolk Fourth District Rep.: Hon. Stefanie Martinez, Papillion Fifth District Rep.: Julie E. Bear, Plattsmouth Sixth District Rep.: Jon S. Schroeder, Curtis ABA State Delegate: Warren R. Whitted, Jr., Omaha Supreme Court Liaison: Chief Justice Michael G. Heavican, Lincoln Young Lawyers Section Chair: Leslie A. Shaver, Scottsbluff Executive Director: Liz Neeley, Lincoln

issue editors Christopher “Spike” Eickholt is an attorney in private practice in Lincoln, Nebraska. He is a registered lobbyist for the Nebraska Criminal Defense Attorneys Association

Christopher Eickholt

EDITORIAL BOARD Chair: P. Brian Bartels, Omaha Melodie Turner Bellamy, Minden Sheila A. Bentzen, Lincoln Elizabeth Stuht Borchers, Omaha Edward E. Brink, Omaha Daniel E. Cummings, Omaha Elizabeth Eynon-Kokrda, Omaha Thomas J. Freeman, Lincoln Andrea V. Gosnold-Parker, Papillion Brandy R. Johnson, Lincoln

Luke H. Paladino, Omaha David J. Partsch, Nebraska City Edward F. Pohren, Omaha Kathleen Koenig Rockey, Norfolk Monte L. Schatz, Omaha Ronald J. Sedlacek, Lincoln Carol A. Svolos, Omaha Colleen E. Timm, Omaha Emily J. Wischnowski, Omaha

Executive Council Liaison: Kenneth W. Hartman, Omaha

David Partsch

publications chair

Executive Editor: Amy E. Prenda aprenda@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 St. #200 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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David Partsch has served as the elected Otoe County Attorney since 2007, adding appointed City Attorney duties in 2013 in Nebraska City. Additionally, he serves part-time as the Presiding Commissioner on the Nebraska Commission of Industrial Relations. David graduated from Creighton University in 1997 with a Bachelor's of Science in Business Administration and from the UNL College of Law in 1999, with honors. He is a graduate of the Nebraska State Bar Association's Leadership Academy; serves as Secretary/Treasurer for the Board of Directors of the Nebraska County Attorneys Association; and has been appointed by the Nebraska Supreme Court to its District 5 Committee on Inquiry.

P. Brian Bartels

P. Brian Bartels is a partner in the Omaha office of Kutak Rock LLP. Brian’s practice includes advising governmental, tax-exempt, and for-profit employers on health and welfare benefit plans, the Patient Protection and Affordable Care Act, and HIPAA compliance. He also advises clients on employee benefit issues in the context of mergers, acquisitions, and divestitures. Brian graduated summa cum laude from Creighton University School of Law. He earned a Master of Arts degree in Political Science from Indiana University and a Bachelor of Arts degree, summa cum laude, from Creighton University.

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

This article was published in the Omaha Bar Newsletter in March of 2007 and in the Iowa Lawyer Magazine in April of 2012. I have updated the article slightly since its previous publications. Do our clients really want us to dress like they do? Should we? The topic is still timely and hopefully, thought provoking.

The Importance of a Good First Impression

J. Scott Paul

Mark Twain once said, “Clothes make the man, naked people have little or no influence on society.” Twain’s opinion on the importance of clothing made me think about the fact that attorneys now dress much more casually as compared to the more traditional suit and tie that was common for lawyers in the past. By dressing more casually, are lawyers missing an opportunity to enhance their professional image? For male attorneys, “business formal” connotes wearing a suit and tie or jacket and tie. The term “business casual” generally contemplates a dress shirt or polo shirt with dress slacks, but without a jacket or tie. Women seem to have greater flexibility in their professional wardrobe. Many female attorneys are able to wear more diverse or fashionable clothing and still be considered professionally dressed. It seems that the trend toward more casual dress began when the internet and the “dot.com companies” burst onto the business scene in the late 1990s. Small entrepreneurial-driven businesses with informal management structures sought to differentiate themselves from more structured larger corporations by allowing employees, including managers, to dress casually. This was seen as being less traditional and more creative. Eventually, in many fields of business, as large companies rushed to adapt to this fashion trend, casual or business casual clothing replaced the suit or jacket and tie as standard office attire. Law firms began to see their clients dress more casually and permitted their dress codes to be relaxed in the hope that clients would identify and bond better with their attorneys if they dressed alike. Some firms also viewed it as a benefit for their attorneys who would no longer be forced to adhere to a rigid dress code by having to wear a suit to work every day. THE NEBRASKA LAWYER

Although, not all law firms adopted a business casual dress code, smaller firms and solo practitioners were the quickest to embrace this fashion change. However, this proved to be more than a Silicon Valley or an “L.A. Law” fashion phenomenon; many law firms throughout the country now have dress codes that have evolved from business formal to business casual. How does this trend comport with client expectations about how any attorney should dress? Usually when a lawyer goes to court or meets with a client or other counsel, it was customary to wear a jacket and tie. Although court appearances still require business formal attire, depending on the firm or the lawyer, business casual may now be regarded as an acceptable way of dressing when a lawyer is meeting with clients. However, it seems somewhat inconsistent to dress up only occasionally, as if we only want to look professional once in a while. This begs the question of whether we are missing an opportunity individually, or as a profession to project a more professional image to the public by returning to our business-formal roots. To quote from a recent television commercial, “You never have a second chance to make a good first impression.” The public’s opinion of our profession is based in part on its perception of our appearance. Even when not in court or meeting with clients, lawyers remain in the public eye. For example, if you work in an office building, although you may not be seeing clients, we are observed by building tenants in the lobby, the coffee shop, the elevators, or in the parking garage. Even when we are just working in our office, we are seen by legal assistants, paralegals and perhaps clients of other attor-

 MARCH/APRIL 2019

PRESIDENTâ&#x20AC;&#x2122;S PAGE neys of the firm. How many times have you attended a childâ&#x20AC;&#x2122;s soccer or basketball game and observed a man or woman on the sidelines in a suit and concluded that he or she probably is a lawyer simply because he or she was wearing a suit? These examples demonstrate that the public has many opportunities to observe us and form opinions based on our appearance. I also know of paralegals who, in an attempt to project a professional image, choose to wear a suit to work every day. They believe that as paralegals, they look less professional if they are not dressed in business-formal attire. This presents an interesting paradox when those who society traditionally does not label as professionals are more concerned about projecting a professional image than are the lawyers for whom they work. Some may say that adherence to old-fashioned notions about wearing a suit are needlessly rigid and eliminate individuality, while others regard business formal attire as a means to preserve one of the attributes that the public generally associates with lawyers, i.e., that a well-groomed appearance projects an image of decorum and good judgment.

THE NEBRASKA LAWYER

In the end, how we dress when we are practicing law is a decision that needs to be made as a matter of law firm policy and individual choice. Professionalism does not mandate wearing a suit on a daily basis. Business formal attire is admittedly not for every lawyer; different styles work for different lawyers. Wearing a suit will not improve your judgment, your writing ability, or your oratorical skills. Ultimately, we serve our clients best by providing them with quality legal advice regardless of what we wear. While many clients believe that wearing a suit, or a jacket and tie, is consistent with a professional image, this is not necessarily an issue that is entirely driven by client expectations. We have a public image to uphold as well. Given the negative perception about lawyers held by many people in our society, perhaps a return to business formal attire would serve to improve our image individually and as a profession. J. Scott Paul, President (402) 341-3070 spaul@mcgrathnorth.com

MARCH/APRIL 2019

THE NEBRASKA LAWYER

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2019 NSBA Member Benefits & Programs Please take a moment to make sure you’re taking full advantage of your NSBA member benefits. To learn more about these benefits, visit www.nebar.com.

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nities to Nebraska lawyers to serve low income Nebraskans through case placement, online legal assistance through Nebraska Free Legal Answers (www.ne.freelegalanswers.org), and Self-Help Desks for self-represented litigants.

Client Assistance Fund: Provides financial assistance to cli-

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ents who have suffered financial loss due to dishonest acts by a Nebraska attorney.

ics credit at certain NSBA-produced seminars and webinars (a $130 value) as well as a significant discount on all NSBA-produced CLE seminars and webinars, including our On-Demand webinars at www.nebarondemand.com.

Rural Practice Initiative: Expands access to legal services by helping to facilitate the placement of attorneys in underserved communities.

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Professional Growth & Support Nebraska Lawyers Assistance Program (NLAP): Provides confidential assistance to lawyers, judges, and law students for substance abuse, stress, depression, and other issues negatively impacting their professional and personal lives.

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the magazine provides information on legal topics, practice tips, and ethics, as well as information and news from the NSBA, the courts, and your colleagues.

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fers a full range of insurance options, including life, disability, and employment practice liability. Our most popular option is our professional liability coverage. Mercer is the exclusive provider of professional liability insurance to members of the NSBA. For additional information on insurance products, call 1-866236-6582 or visit www.nebarinsurance.com. For professional liability inquires, contact John Collentine at (800) 328-4671. THE NEBRASKA LAWYER

MARCH/APRIL 2019

feature article

Immigrants in Nebraska:

Considerations for Practitioners Who Represent Non-Citizen Clients by Mindy Rush Chipman and Kevin Ruser

Importance of Addressing Immigration Issues in Legal Matters

Brief Overview of Immigration Statuses

All persons who live in Nebraska, regardless of immigration status, are granted access to Nebraska courts.1 To deny a non-citizen client the right to sue, be a party, give evidence, and have full and equal benefit of all state and federal laws would violate the fundamental right to due process and equal protection under the Constitution of the United States.2 As such, attorneys must understand the basic principles of immigration law and policy to effectively serve their noncitizen clients. Furthermore, despite various public policies that ensure immigrants access to courts and other protections giving them access to justice, many immigrants either do not attempt to access courts, are turned away, or undergo immigration enforcement efforts as a result. Attorneys must be prepared to educate the courts and clients on access to legal remedies and protections.

Mindy Rush Chipman

Of Nebraska’s residents who are non-citizens, many have had the ability to obtain the immigration status of lawful permanent resident (“LPR” or “green card holder”). LPRs are authorized to live and work in the U.S. permanently, and,

Kevin Ruser

Mindy Rush Chipman is the Director of Equity and Diversity for the City of Lincoln, serving as Director of Lincoln Commission on Human Rights (LCHR) and also as the City’s Equal Employment Opportunity Officer. Mindy previously managed several programs as a Senior Managing Attorney at the Immigrant Legal Center (formerly Justice for Our Neighbors-Nebraska). THE NEBRASKA LAWYER

Nebraska has a growing immigrant population. According to a recent estimate, nearly 7% of Nebraskans are foreignborn.3 Nebraska’s foreign-born residents have many different immigration statuses; however, every Nebraska resident falls into one of two categories: U.S. citizens or non-U.S. citizens. Foreign-born U.S. citizens may have acquired their U.S. citizenship at birth from a U.S. citizen parent.4 Otherwise, foreign-born U.S. citizens may have acquired their U.S. citizenship after obtaining lawful permanent residency in the U.S., either through derivation of their parent’s U.S. citizenship before the child’s 18th birthday,5 or through navigating the naturalization process to become a U.S. citizen. Over 37% of foreign-born Nebraskans are naturalized U.S. citizens.6

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Kevin Ruser is the Richard and Margaret Larson Professor of Law and M.S. Hevelone Professor of Law at the University of Nebraska College of Law. He is also the Director of Clinical Programs and teaches in the Civil and Immigration Clinics. Professor Ruser and his students have been representing immigration clients since the late 1980’s. 7

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IMMIGRANTS IN NEBRASKA as mentioned above, may also apply to become U.S. citizens if certain eligibility requirements are met, typically including five years in LPR status. Additionally, some non-citizen/ non-LPR Nebraskans currently have, or have access to, an immigration status or immigrant visa that could potentially lead to the adjustment of their status to that of LPR, including those who have/have access to the following categories of relief: 1) a family-based visa; 2) an employment-based visa; 3) a diversity program visa; or 4) a humanitarian form of relief. Unfortunately, the current U.S. immigration system does not provide an opportunity to apply for lawful permanent residency for those who do not fall into the above categories. While there are many Nebraskans that hold temporary non-immigrant visas (e.g., student visas, visitor visas) and temporary forms of immigration status (e.g., Deferred Action for Childhood Arrivals (“DACA”), Temporary Protected Status (“TPS”)), unless an individual has access to the restrictive and complex family, employment, diversity, or humanitarian forms of immigration relief, there are no options to apply or work toward lawful permanent residency (required to obtain before applying for U.S. citizenship) or toward U.S. citizenship. Undocumented Nebraskans are those who have no current immigration status. Over 38% of foreign-born Nebraskans, approximately 45,000 people, are undocumented.7 Additionally, many Nebraskan families are of mixed immigration status, containing family members with current immigration status and undocumented family members. In fact, 1 in 20 children in Nebraska is a U.S.-citizen child living with at least one undocumented family member.8

An “Undocumented” Person Is Not An “Illegal” Person Living in the United States without current immigration status is not, standing alone, a crime.9 While federal law does criminalize some actions that may be related to undocumented persons’ presence in the United States, their mere presence in the United States is not a violation of federal or Nebraska criminal laws. As a result, the term “illegal” used to describe a person who does not have current immigration status is inaccurate and misleading.10 Entering the United States without being inspected and admitted, called “entry without inspection” or “illegal entry,” is a misdemeanor crime, and can be a felony depending on the circumstances.11 However, many undocumented individuals enter with inspection/permission but are unable to maintain the immigration status in which they entered. Further, there may not be any other forms of immigration relief available that would allow them to adjust their status to that of an LPR. In fact, estimates are that nearly half of the 11 million undocumented people in the United States entered the United States with permission without committing crimes.12 THE NEBRASKA LAWYER

Ways Non-Citizens Can Obtain Immigration Status The following is a brief discussion of the limited familybased and humanitarian forms of immigration relief for which a non-citizen can apply in the U.S.13

Family-Based Petitions U.S. citizens and LPRs can apply for close family members to become LPRs through a family-based petition. “Immediate relatives” include spouses and children (unmarried and under 21) of U.S. citizens, and the parents of U.S. citizen children (21 or older) and, while they do have to wait for application processing times which can be significant, a visa is “immediately available” to them. However, “preference category relatives” must wait for a visa to become available before they are able to immigrate to the U.S. or obtain LPR status. Preference category relatives include: the unmarried children (21 or older) of U.S. citizens, spouses and unmarried children LPRs, married children of U.S. citizens, and siblings of U.S. citizens, all of whom must wait for a visa to become available to them.14 It is important to note that there is no category available to children of LPRs who are married. Moreover, it is worthwhile to highlight that the wait times for most categories of beneficiaries of family-based petitions can be longer than the lifetime of the beneficiary.15

Violence Against Women Act (“VAWA”) The Violence Against Women Act permits an abused spouse or child of a U.S. citizen or LPR, or an abused parent of a U.S. citizen, to self-petition for lawful immigration status without cooperation of the abuser.16 There is no requirement of criminal charges, convictions or court findings, although such criminal history or court findings may serve as evidence to support the VAWA self-petitioner. Once a self-petition is approved, the self-petitioner will not be subject to removal or deportation from the U.S., will be qualified to work legally in the U.S., will be eligible for certain public benefits, and will be eligible to eventually become a LPR.

U/T Visas Non-citizens who are the victims of serious crime and who cooperate with authorities may apply for immigration status under the “U” visa.17 Victims of human trafficking, both labor and sex trafficking, may apply for the “T” visa.18 U and T visas are intended to protect victims of certain crimes and trafficking who have gathered the courage to come forward and report crime, as well as enhancing law enforcement’s ability to detect, investigate and prosecute crime.19

Special Immigrant Juvenile Status (“SIJS”) Special Immigrant Juvenile Status (commonly referred to as “SIJS” or “SIJ status”) is a form of relief created to protect MARCH/APRIL 2019

IMMIGRANTS IN NEBRASKA abused, neglected, or abandoned immigrant children from removal to their home country if it is not in their best interest.20 Children are eligible for SIJS if they are unmarried, under 21 and present at the time of filing, and have obtained a valid state “juvenile”21 court order with three factual findings: 1) they have been abused, abandoned and/or neglected by one or both parents, 2) their reunification with one or both parents is not viable; and 3) return to country of last habitual residence is not in their best interest. The types of cases in which SIJS predicate findings of fact can be entered include, but are not limited to, guardianship/conservatorship, custody/paternity, dissolution/ legal separation, probate, adoption, domestic violence protection order, and “traditional” juvenile cases, including abuse/neglect.22 It is important to note that parents cannot benefit from the fact that their children qualified for SIJS.23

Asylum, Withholding, CAT Relief Non-citizens who fear persecution if they return to their home country may be eligible to apply for asylum,24 withholding of removal,25 or protection under the Convention Against Torture (“CAT”).26 To be eligible for asylum or withholding of removal, a person must, in addition to meeting other criteria, have suffered past persecution and/or have a fear of future persecution in their home country on account of one or more of the following grounds: race, religion, national origin, political

opinion, and/or membership in a particular social group. To be eligible for CAT relief, a person must show it is more likely than not that they would be tortured if removed to their home country by or at the acquiescence of the government.27

Cancellation of Removal Non-citizens/non-LPRs who have lived in the U.S. for ten years or more, and now have a parent, spouse or child who is a U.S. citizen or LPR, can apply for “cancellation of removal” as a defense to removal from the U.S.28 A non-citizen/nonLPR can apply for cancellation of removal only if he or she has been placed into removal proceedings, and addition to other eligibility criteria, can show that his or her removal from the U.S. would cause “exceptional and extremely unusual hardship” to his or her LPR or U.S. citizen spouse, child, or parent.29 LPRs are also eligible for cancellation of removal if they have been an LPR for at least five years, have lived in the U.S. for at least seven years after obtaining “any” lawful immigration status, and have not been convicted of an “aggravated felony.”30

Intersection of Immigration and Criminal Law The crossover between immigration and criminal law is one of the most complex and technical areas of law. But, as

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IMMIGRANTS IN NEBRASKA discussed below, lawyers representing non-citizens in criminal cases have a constitutional obligation to inform their noncitizen clients of the immigration consequences they face as the result of the criminal proceedings in which they are involved.

Padilla v. Kentucky On March 31, 2010, the United State Supreme Court held in Padilla v. Kentucky that criminal defense lawyers have a 6th Amendment obligation to advise non-citizen clients about immigration consequences they face related to their criminal cases.31 The Court, citing professional norms, held that the 6th Amendment requires criminal defense counsel to inform non-citizen clients whether a contemplated guilty plea carries a risk of deportation. The Court remanded the case to the Kentucky Supreme Court so it could determine whether or not Mr. Padilla could demonstrate prejudice under Strickland ’s second prong.32 The Padilla Court rejected a rule that would have penalized only affirmative mis-advice as to immigration consequences, instead holding that failure to advise (i.e., nonadvice) constitutes ineffective assistance of counsel.

Definition of Criminal Conviction under the INA Although it is not always necessary that a non-citizen client be convicted of a criminal offense to be rendered deportable, that is often the case. The Immigration and Nationality Act (INA) states that a “conviction” exists if a formal judgment of guilt has been entered by a court.33 The statute further provides that a conviction exists even if adjudication of guilt has been withheld where (1) a factfinder has found the person guilty, the client has entered a plea of guilty or nolo contendere, or the person has admitted facts sufficient to warrant a finding of guilt and (2) the judge has ordered some form of punishment, penalty or restraint on the person's liberty to be imposed.34 It is useful to look at this definition in the context of various types of Nebraska criminal dispositions to determine whether or not a client has been “convicted” of a criminal offense for purposes of the INA. A client who receives pretrial diversion under the provisions of Neb. Rev. Stat. §§ 29-3601 to 29-3609 has not been “convicted” of a criminal offense for immigration purposes because the first element of the test in the statute has not been met — no judge or jury has found the client guilty, the client has not entered a plea of guilty or nolo contendere, nor has the client admitted facts sufficient to warrant a finding of guilt.35 As a result, any client who successfully completes pretrial diversion in Nebraska has not been “convicted” of a criminal offense for immigration purposes. If a court finds a defendant guilty but then defers sentencing or accepts a guilty plea from a defendant but then defers the adjudication of guilt while requiring the defendant to engage in some sort of activity such as community service, the client THE NEBRASKA LAWYER

has been “convicted.” This is because the client has been found guilty or has entered a plea of guilty and the court has ordered some form of punishment, penalty or restraint on the client’s liberty.36 For these reasons, a client who is involved in a Nebraska drug court program has been “convicted” under the INA test, since the client has entered a plea of guilty and the court has imposed a form of punishment, penalty or restraint on the client’s liberty (a requirement that the client participate in drug court activities). Additionally, clients who are sentenced to probation by a court have been “convicted” of a criminal offense because they have either been found guilty of a crime or have pled guilty and had some sort of punishment, penalty or restraint on liberty imposed by virtue of being put on probation.37 A juvenile delinquency adjudication in a juvenile case is not a “conviction” for purposes of the INA.38

Categories of Criminal Conduct Incurring Immigration Consequences The INA contains a long list of crimes and criminal conduct that will result in immigration consequences for a noncitizen client.39 Those crimes include: • Crimes “involving moral turpitude” • Crimes relating to controlled substance offenses, including trafficking offenses • Multiple criminal convictions • Prostitution and commercialized vice • Terrorist activities • Certain firearms offenses • Crimes involving domestic violence or violations of protection orders In addition, although driving under the influence or driving while impaired are not, in and of themselves, the types of criminal convictions that will categorically result in a noncitizen being removed from the country, they could constitute evidence that the client is inadmissible to the U.S. based on the health-related ground that the client has a mental disorder that may pose, or has posed, a threat to the property, safety, or welfare of the client or others.40

Immigration Consequences of Criminal Convictions and Criminal Behavior The immigration consequences faced by a non-citizen client who is convicted of certain crimes depend on the immigration status of the client. Generally speaking, Immigration and Customs Enforcement (ICE) will try to remove clients from the U.S. if they are convicted of certain crimes based on the provisions of either 8 U.S.C. § 1227 (grounds of deportability) or 8 U.S.C. § 1182 (grounds of inadmissibility). But certain MARCH/APRIL 2019

IMMIGRANTS IN NEBRASKA clients will face removal for far less serious offenses. Clients who are in the U.S. with documentation (i.e., those who entered the U.S. with inspection and permission and whose immigration status is currently valid) will be most concerned with the deportability consequences of criminal convictions contained in 8 U.S.C. § 1227(a)(2), since it is under those provisions that the government will try to remove them from the U.S. if they are convicted of qualifying crimes. Any non-citizen client who is attempting to enter the U.S. must also be concerned with the criminal grounds of inadmissibility found in 8 U.S.C. § 1182(a)(2), since it is under those provisions that the government will seek to deny them admission to the country if they are convicted of qualifying crimes. The criminal grounds of inadmissibility apply to those who are in the U.S. with documentation, but who leave and seek to re-enter.41 They also apply to those who are in the U.S. without documentation, since such individuals are not considered to have effected an entry into the country.42 Other clients who are physically present in the U.S. under specific programs need to be concerned about crimes that will result in their loss of status. For example, clients who have been granted Deferred Action for Childhood Arrivals (DACA) status will lose their status if they are convicted of (1) any felony offense, (2) a “significant” misdemeanor offense, or (3) three or more misdemeanor offenses of any type.43 Clients who have been granted Temporary Protected Status (TPS) will lose their status if they are convicted of (1) any felony offense or (2) two or more misdemeanor offenses of any type.44 It is therefore important not only to determine of which crimes a client has been convicted, but also the precise immigration status of the client.

Cases of Interest to the Criminal Practitioner There are three lines of cases with which criminal practitioners should be aware: (1) U.S. Supreme Court cases dealing with Padilla and its progeny, (2) Nebraska appellate cases dealing with post-conviction claims related to Padilla, and (3) Nebraska appellate cases dealing with post-conviction claims related to a trial court’s duty to give a general advisement to defendants about potential immigration consequences of guilty pleas. As to the first category of cases, practitioners should for certain read Padilla and be familiar with it. One other case that is important in this area is Lee v. U.S.45 (detailing how a postconviction client can demonstrate prejudice under the second prong of Strickland in an immigration context that he may not be able to demonstrate in a non-immigration context). Nebraska appellate cases dealing with post-conviction claims based on Padilla issues are also important to read. Some of the more important ones include: State v. Gonzalez,46 THE NEBRASKA LAWYER

(recognizing that a common law claim exists to address Padilla/ Strickland deficiencies in counsel’s advice, or non-advice, if no other post-conviction remedy is or was available); and State v. Mamer,47 (discussing the limits of the common law postconviction remedy recognized in Gonzalez). The longest line of cases in Nebraska appellate courts deal with application of Neb. Rev. Stat. § 29-1819.02, the Nebraska statute requiring trial courts to give general advisements of potential immigration consequences to all those entering guilty pleas.48 Although some of the more consequential cases are listed in the preceding endnote, criminal practitioners should be familiar with all of the cases in this line, and make certain that the statutorily-required advisement is given to each client who is entering a guilty plea.

Important Immigration Deadlines Various deadlines and “clocks” complicate immigration legal issues. Being aware and mindful of such timeframes can be key to a desirable immigration outcome and, several important deadlines to keep in mind include: • An adoption must be finalized by a child’s 16th birthday; • A child applying for SIJS must remain under the jurisdiction of the Nebraska state court who entered the predicate findings of fact until the age of majority or adjustment of status to LPR; • A marriage that was bona fide at inception continues to exist for immigration purposes until divorce is finalized; • A fiancé who enters the U.S. on a temporary nonimmigrant visa must effectuate a valid marriage within 90 days after entry; • Divorce begins a two-year deadline for filing an application for a VAWA Self-Petition based on ex-spouse’s abuse; Unlawful presence begins to accrue after an • undocumented child turns 18 years old. If in the U.S. with unlawful presence for over 6 months, a 3-year bar will be triggered upon departure from the U.S. If the child is in the U.S. with unlawful presence for over 12 months, a 10-year bar will be triggered upon departure from the U.S.49

Endnotes 1

The Nebraska Supreme Court has a “goal of providing equal access to swift, fair justice for all Nebraskans regardless of income, race, ethnicity, gender, disability, age or language.” Nebraska Supreme Court’s Access to Justice Committee, found at https://supremecourt.nebraska.gov/access-justice-commission (last visited on October 1, 2018)(emphasis added).

 MARCH/APRIL 2019

IMMIGRANTS IN NEBRASKA 2

42 U.S. § 1881(a); see also Plyler v. Doe, 457 U.S. 202, 210 (1982).

could be convicted of a violation under a “preponderance of the evidence” standard). See also Rubio v. Sessions, 891 F.3d 344 (8th Cir. 2018) (holding that convictions for violating Columbia, Missouri city ordinances are “convictions” for immigration purposes because the fundamental aspect of a criminal proceeding is whether guilt was proven beyond a reasonable doubt. Because that was the burden of proof involved, convictions of municipal ordinances are “convictions” even though some tribunals consider ordinance violations to be “civil” rather than “criminal” in nature).

3 https://www.migrationpolicy.org/print/data/state-profiles/state/ 4 5

demographics/NE (last visited on February 10, 2019).

See 8 U.S.C. § 1401(c)-(g). See 8 U.S.C. § 1431.

6 https://www.americanimmigrationcouncil.org/sites/default/

files/research/immigrants_in_nebraska.pdf (last visited on February 10, 2019).

34 The

Board of Immigration Appeals has held that this last requirement is met when the only form of punishment or penalty imposed by a court is taxation of court costs. Matter of Cabrera, 24 I&N Dec. 459 (BIA 2008).

7 https://www.americanimmigrationcouncil.org/sites/default/

8 9

files/research/immigrants_in_nebraska.pdf (last visited on February 10, 2019).

35 See

Matter of Grullon, 20 I&N Dec. 12 (BIA 1989), holding that no “conviction” occurred where the respondent qualified for a pretrial diversion program in Florida. The Florida program, as described in Grullon, mirrors Nebraska’s in the sense that the client has not been found guilty of any offense, nor has he entered a plea of guilty at the time of entry into the pretrial diversion program.

Id.

Arizona v. United States, 567 U.S. 387, 407 (2012) (“As a general rule, it is not a crime for a movable alien to remain in the United States”).

10 https://defineamerican.com/campaigns/wordsmatter/ 11 8

U.S.C. § 1325

36 See,

e.g., Matter of Punu, 22 I&N Dec. 224 (BIA 1998). In that case, the BIA considered a Texas statute that permitted the defendant to enter a guilty plea and allowed the court, once it had accepted such a plea, to withhold adjudication of guilt and (in the case at bar) place the defendant on probation. The BIA held that the 1996 amendments to the INA that resulted in the current version of 8 U.S.C. § 1101(a)(48)(A) clearly showed Congress’ intent to treat such a situation as a “conviction” for immigration purposes.

12 See

Pew Hispanic Center, Modes of Entry for the Unauthorized Migrant Population, http://www.pewhispanic.org/2006/05/22/ modes-of-entry-for-the-unauthorized-migrant-population/ (last visited February 10, 2019).

13 More

comprehensive materials are available on each form of immigration relief and an experienced immigration attorney is necessary to file most applications for immigration relief.

14 See

https://travel.state.gov/content/travel/en/legal/visa-law0/ visa-bulletin.html (last visited February 10, 2019).

37 Matter

15 See

Rachel Yamamoto, Family-Based Immigration: A Jigsaw Puzzle with Warped Pieces, THE NEBRASKA LAWYER 19-21 (Nov.-Dec. 2013).

16 8

U.S.C. § 1154(a)(1)(iii).

18 8

U.S.C. § 1101(a)(15)(T).

17 8

38 Matter 39 The

U.S.C. § 1101(a)(15)(U).

court located in the U.S. that has jurisdiction under State law to make judicial determinations about the custody and care of a juvenile. 8 CFR § 204.11(a). REV. STAT. §§ 43-1227(4), 43-1238(b).

23 8

U.S.C. § 1101(a)(27)(J)(iii)(II).

25 8

U.S.C. § 1231(b)(3); 8 C.F.R. § 1208.16.

24 8 26 8 28 8 30 8

a more detailed description of the TPS program, visit the USCIS web site at https://www.uscis.gov/humanitarian/ temporary-protected-status (last visited February 12, 2019).

v. Mukasey, 546 F.3d 546 (8th Cir. 2008). v. Holder, 569 F.3d 370 (8th Cir. 2009).

v. Kentucky, 559 U.S. 356 (2010).

S.Ct. 1958 (2017).

47 289

Neb. 92 (2014).

Neb. 1 (2012).

48 State

v. Gach, 297 Neb. 96 (2017); State v. Rodriguez, 288 Neb. 714 (2014); State v. Llerenas-Alvarado, 20 Neb.App. 585 (2013); State v. Medina-Liborio, 285 Neb. 626 (2013); and State v. Mena-Rivera, 280 Neb. 948 (2010).

v. Washington, 466 U.S. 668 (1984).

U.S.C. § 1101(a)(48)(A). The finding of guilt must be made beyond a reasonable doubt. See Matter of Eslamizar, 23 I&N Dec. 684 (BIA 2004) (holding that a defendant found guilty of a “violation” under Oregon law was not “convicted” of a criminal offense for immigration purposes because under the statute one

THE NEBRASKA LAWYER

45 137 46 283

U.S.C. § 1229b(a).

32 Strickland 33 8

44 For

U.S.C. § 1229b(b).

31 Padilla

U.S.C. § 1101(a)(13).

a more detailed description of the DACA program, visit the USCIS web site at https://www.uscis.gov/archive/considerationdeferred-action-childhood-arrivals-daca (last visited February 12, 2019).

C.F.R. §§ 208.16, 208.31.

29 Gomez-Perez

42 8

43 For

U.S.C. § 1158.

27 Malonga

U.S.C. § 1182(a)(1)(A)(iii)(I).

those who have green cards are generally not considered to be seeking admission upon their return to the U.S. from a trip abroad, there are circumstances in which even they will be subjected to the criminal grounds of inadmissibility under 8 U.S.C. § 1182(a)(2). See 8 U.S.C. § 1101(a)(13)(C) for details.

U.S.C. § 1101(a)(27)(J).

22 NEB.

40 8

41 Although

https://www.uscis.gov/humanitarian/victims-humantrafficking-other-crimes.

21 A

of Devison-Charles, 22 I&N Dec. 1362 (BIA 2000).

specific statutory grounds are found in 8 U.S.C. § 1182(a) (2) and (a)(3) (relating to criminal grounds of inadmissibility) and 8 U.S.C. § 1227(a)(2) and (a)(4) (relating to criminal grounds of deportability).

19 See 20 8

of Velasquez, 25 I&N Dec. 278 (BIA 2010).

49 8

U.S.C. § 1182(a)(9)(B)(i).

MARCH/APRIL 2019

IMMIGRANTS IN NEBRASKA

Immigration Resources The resources listed below are by no means exhaustive but provide information regarding some services available in Nebraska as well as national organizations willing to provide technical assistance and materials.

• Nebraska Immigration Legal Assistance Hotline (“NILAH”)

The Nebraska Immigration Legal Assistance Hotline (“NILAH”) was created in 2013 as a result of a unique collaboration of seven Nebraska nonprofit legal service providers, including Legal Aid of Nebraska, Nebraska Appleseed, Catholic Charities, Center for Legal Immigration Assistance (“CLIA”), Immigrant Legal Center (“ILC” formerly Justice for our Neighbors-Nebraska), Lutheran Family Services (“LFS”), and Women’s Center for Advancement (“WCA”) to more effectively meet the needs of vulnerable immigrants in Nebraska communities. NILAH operates as a one-stop system where low-income immigrants can start, share initial information about the immigration legal issues they are facing, and if eligible, be provided limited immigration legal advice and directly referred to the nonprofit immigration legal service provider that can help them the soonest and most completely. Since NILAH’s launch, over 10,000 calls have been fielded, and additional nonprofit immigration legal service providers have joined the NILAH collaboration, including Centro Hispano of Columbus, the Multicultural Coalition of Grand Island and the Volunteer Lawyers Project. Anyone in need of immigration legal advice and assistance can call NILAH at 1-855-307-6730 Monday through Friday between the hours of 9:00 a.m. and 3:00 p.m. Additionally, general information regarding immigration forms of relief, and information on rights and safety planning can be found on NILAH’s website.1

• Nebraska’s Law School Immigration Clinics

In addition to the nonprofit immigration legal service providers, both the University of Nebraska College of Law and Creighton University School of Law have clinics that can provide immigration legal advice and assistance by certified law students, under the supervision of faculty members who are practicing immigration lawyers.

THE NEBRASKA LAWYER

Nebraska College of Law’s Immigration Clinic handles certain types of immigration cases for low-income clients in Nebraska. Those wanted to apply for legal services can call the Clinic at 1-402-472-3271 Monday through Friday 8:00 a.m. to 5:00 p.m.2 Creighton School of Law’s Immigrant and Refugee Clinic focuses primarily on handling immigration cases for asylum seekers and refugees, unaccompanied minors, and victims of human trafficking or other abuse who currently live in Douglas County, Nebraska and are below the federal poverty guidelines.3 Applicants request legal assistance by using the Nebraska Immigration Legal Assistance Hotline (“NILAH”).4

• National Immigration Organizations/ Resources

American Immigration Lawyers Association (“AILA”) offers fact sheets, position papers, information on AILA publications and events, as well as an Immigration Lawyer Referral Service.5 Immigrant Legal Resource Center (“ILRC”) provides information, seminars and publications on aspects of immigration law, as well as policy work.6 Immigration Advocates Network (“IAN”) offers webinars, video trainings, tutorials, audio interviews, and a nationwide nonprofit and pro bono immigration legal services directories.7

Endnotes

1 www.nilah.org.

2 https://law.unl.edu/immigration-clinic/.

3 https://law.creighton.edu/clinics/immigrant-and-refugee4

clinic.

See supra note 33.

5 www.aila.org. 6 www.ilrc.org

7 www.immigrationadvocates.org

MARCH/APRIL 2019

2019 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 2019 Annual Meeting in October. Nominations should be made on the following form and returned to the committee on or before May 24, 2019.

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.

Diversity Award

The NSBA Diversity Award was established in 2010 to recognize outstanding efforts made by firms, organizations or individual attorneys in promoting diversity in the legal profession in the State of Nebraska.

Nomination Form

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

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

Name of Nominee(s):_______________________________________________________________________ Address:__________________________________________________________________________________ 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 24, 2019 to: NSBA House of Delegates Nominating Committee, 635 S 14th St. #200, Lincoln, NE 68508 THE NEBRASKA LAWYER

MARCH/APRIL 2019

feature article

This article was first published on Trafficking Matters (www.traffickingmatters.com), a platform providing resources to combat human trafficking and a project of The Human Trafficking Institute (www.traffickinginstitute.org).

Justice On The Plains:

5 Key Takeaways From the Landmark Nebraska Supreme Court Decision by Braden Storer

This August, the Nebraska Supreme Court upheld the conviction of Anthony Swindle, who was sentenced to 180 years in prison on two counts of sexual assault of a minor – one of sex trafficking and one of sex trafficking of a minor. This marks one of the most significant steps forward in the fight against human trafficking in Nebraska. While Nebraska might be known for corn and football, it has also become increasingly known as a hub for human trafficking. According to a study done by the Women’s Fund of Omaha, an estimated 900 individuals are sold for sex every month in Nebraska, often multiple times. This, however, is beginning to change. The Nebraska Legislature, Attorney General, and law enforcement agencies across the state are making significant strides in strengthening the laws and taking a proactive approach to combat human trafficking. In 2015, the Legislature passed the first comprehensive anti-trafficking bill in history. It strengthened penalties for trafficking-related offenses, provided for a specific prohibition against human trafficking, and afforded law enforcement and the courts greater

Braden W. Storer Braden Storer is a Deputy Lancaster County Attorney in Lincoln, where he serves in the Juvenile Division. He graduated with honors from the University of Nebraska College of Law in 2017. During law school, he authored an article published in the Nebraska Law Review entitled Slavery in the Name of Tolerance: Whether an International Legal Obligation Exists to Criminalize Prostitution. THE NEBRASKA LAWYER

authority to investigate cases of trafficking and protect victims. The Attorney General created the first Human Trafficking Task Force, which has worked to create regional response teams, train law enforcement, and foster greater collaboration between law enforcement, service providers, and other key players. With this new precedent set by the Nebraska Supreme Court, here are some key takeaways from the decision. 1) The trafficker does not need to know the victim’s age in order to be convicted of sex trafficking of a minor under the age of 16 The defendant in this case was convicted of trafficking two young girls in Omaha. One was 21 at the time she was trafficked, and the other was 15. Under the new law passed by the legislature at the time of the defendant’s conviction, the trafficking of an individual who is under the age of 16 was a Class II felony, which carried with it a mandatory minimum of one year or up to 50 years in prison. In contrast, sex trafficking of an adult was a Class IIA felony with no mandatory minimum and a maximum permissible sentence of 20 years. At trial, the defendant argued he was unaware the victim was only 15 at the time she was trafficked, and therefore, he could not be convicted of this enhanced crime. Despite his argument, the jury found him guilty, and the Nebraska Supreme Court upheld this conviction. The Court found that under the statute, the defendant only needs to know he is “engaged in conduct for the purpose of sex trafficking,” not whether or not he knew the age of the victim. The only relevant fact as it relates to the age of the victim is whether the victim was actually a minor at the time of the defendant’s conduct. Thus, traffickers can be found guilty of the enhanced offense even if they were not aware of the victim’s actual age.

 15

MARCH/APRIL 2019

JUSTICE ON THE PLAINS 2) The trafficker’s defense attorney was not permitted to introduce evidence of the victim’s prior sexual history or false accusations of rape In an attempt to discredit the victim’s testimony, the defense attempted to introduce evidence the victim had, on multiple prior occasions, slept with older men and then falsely claimed she had been raped. However, the trial court would not permit the defendant to introduce this evidence, and the Nebraska Supreme Court affirmed that decision. The Court based this affirmation on two grounds, but one ought to be highlighted: the victim’s prior sexual history is irrelevant. In the words of Nebraska Supreme Court Justice Jeffrey Funke: There is simply no relevant connection between [the victim’s] alleged prior false claims of rape and the crimes at issue. [The defendant] sought to discuss [the victim’s] past sexual conduct in order to undermine her credibility for the improper purpose of arguing that [the defendant’s] assault of [the victim] did not take place.

In court, one of the victims testified she developed feelings for her trafficker but also felt intimidated by him. She felt she had no choice but to stay. In one instance, the trafficker’s abuse hospitalized one of the victims, yet she did not provide any information to law enforcement officers because she was unwilling to do so. It is thus important for law enforcement to recognize that when it comes to prostitution and trafficking, the guilty party may be different than it appears. 5) The minor victim was identified by law enforcement because her mother had filed a missing person’s report Locating, prosecuting, and charging a trafficker requires vigilant efforts not only from law enforcement officials and prosecutorial teams but also the community at large.

In other words, the Court affirmed that sex with one person is not consent to sex with all people. This is a significant finding and provides victims of sex trafficking with protection from irrelevant and harassing questioning from the defense while also preventing juries from hearing evidence which would only confuse or distract them from the issue. 3) The Court upheld one of the strongest sentences for sex trafficking in Nebraska state history The trafficker in this case was sentenced to a minimum of 180 years in prison, with 120 of those years being served for the sex trafficking charges alone. The Court found that these sentences were not excessive or disproportionate, given the defendant “repeatedly sought out vulnerable victims and used violence and manipulation to force them into his sex trafficking business.” Such a sentence sends a message to Nebraskan traffickers that Nebraska is moving in the direction of becoming a riskier place to “do business.” This decision shows Nebraska is not only serious about passing strong laws, but also enforcing these laws through local law enforcement and upholding them at the Nebraska Supreme Court. As a result, anti-trafficking laws are becoming less like obligatory words in the code and more like weapons to be used against traffickers. 4) Human trafficking is a layered crime which may not appear to be trafficking on the surface The two victims in this case could easily be seen by the public as criminals themselves, consenting to the prostitution of their bodies. However, a look beneath the surface reveals the true nature of their exploitation. THE NEBRASKA LAWYER

The defendant approached the two victims while they were walking on the street and manipulated them through force and intimidation. By exploiting the victims’ vulnerabilities – homelessness, prior sexual abuse, and poverty – he coerced the women to perform sexual acts for his own gain.

Perhaps one of the most uplifting aspects of this case was the collaborative work of an Omaha police officer with the minor victim’s mother. After filing a missing person’s report, the mother received a call from a police officer, who identified her daughter from an online escort advertisement. Thanks to the detective work from the police force and the diligent efforts from the victim’s mother, the victim was rescued from a hotel later that day. This highlights the importance of missing person’s reports in identifying victims of sex trafficking, even (and perhaps especially) for individuals who may be characterized as “frequent runaways.” It also spotlights the importance of diligent and proactive police work, as the officer in this case could identify the signs of trafficking and then act with swiftness. The facts of this case demonstrate the effect a multi-disciplinary, proactive, and well-trained response can have in rescuing victims and bringing justice to their oppressors. Conclusion State v. Swindle is a landmark decision. For those engaged in the fight against human trafficking, it is an inspiring and hopeful example of persuasive and binding legal precedent that will protect victims and bring traffickers to justice in the state of Nebraska while also setting the tone for states across the nation. Anthony Swindle is just one trafficker, but his case is now a part of a growing movement to decimate trafficking and ensure that slavery is abolished in all its forms.

MARCH/APRIL 2019

THE NEBRASKA LAWYER

MARCH/APRIL 2019

The Nebraska Lawyer 2019 Cover Art Competition Calling all attorney-artists! Would you like to see your art on the cover of The Nebraska Lawyer? The NSBA is now accepting submissions for its Nebraska Lawyer Cover Art Competition! Please see below for rules and guidelines regarding all submissions. Rules of the The Nebraska Lawyer Cover Art Competition 1. The competition is comprised of the following categories: Photography, Painting/Drawing, and Sculpture. 2. Submissions will be accepted beginning January 1, 2019, and must be received by 5 p.m. CT on March 29, 2019. The winning entry will be published on the cover of the May/June 2019 issue of The Nebraska Lawyer. The NSBA may choose more than one winning entry, in which case the additional winning entries may be published on the covers of subsequent issues following the May/June 2019 issue, for as many issues as is necessary to publish all winning entries, or elsewhere in the May/June 2019 issue. *Works previously submitted for this contest will not be considered.* 3. No submission form or cover letter is needed, but a person making a submission (“Artist”) must indicate which category or categories he or she is entering, his or her name, the title(s) of the work(s) he or she is submitting (if applicable), and a means by which to contact the Artist.

10. The competition is governed by the laws of the State of Nebraska, and the Artist consents to its exclusive jurisdiction for any causes or controversies arising in relation to this competition. 11. The NSBA is not responsible for any technical malfunction or service outage related to the competition.

Your Artwork Here!

4. Submissions from the following will not be accepted: Staff and officers of the Nebraska State Bar Association or members of their immediate family, or members of the Nebraska State Bar Association Publications Board or members of their immediate family. 5. Artists may enter more than one work (“Work”), and they may enter more than one category. In the “Photography” category, the maximum number of submissions by one Artist is 15. 6. “Legal” subject matter is not required. 7. The competition is open to all categories of Nebraska-admitted attorneys (including inactive, retired and judicial). 8. Artists retain the copyright in their own Work. By entering the competition, however, Artists grant to the Nebraska State Bar Association (“NSBA”) and The Nebraska Lawyer magazine a license for the first North American publication in print, and for publication on the website of the NSBA and/or of The Nebraska Lawyer magazine and other electronic channels. Publication in either medium is in the sole discretion of the NSBA. Artists also grant the NSBA a license to grant reprint permission of any Work that is published in the printed magazine or on the website of the NSBA and/or of The Nebraska Lawyer magazine or other electronic channels. 9. By submitting, the Artist warrants and represents that the Work: (a) is the Artist’s original work, (b) has not been previously published, (c) has not received any previous awards, (d) does not infringe upon the copyrights, trademarks, rights of THE NEBRASKA LAWYER

privacy, publicity or other intellectual property or other rights of any person or entity, and that the content is within the bounds of the fair use doctrine. The Artist further warrants that: (a) he or she has obtained permission from any person whose name or likeness is used in the Work; and (b) publication of the Work via various media, including on the Web, will not infringe on any third-party rights. The Artist indemnifies and holds harmless the NSBA from any claims to the contrary, or from loss or damage of any kind arising from or in connection with the Work and the competition.

12. NSBA officers, members of the NSBA staff, and members of the NSBA Publications Committee cannot assist Artists in selecting Work for submission to the competition. Submissions are reviewed by the Editor and the Publications Committee, and their decision is final. In their sole discretion, the Editor and the Publication Committee reserve the right not to accept any submission. The Publications Committee reserves the right not to award a prize in any or all categories, or to award an “Honorable Mention” in any and all categories. 13. Submissions will not be returned. 14. Questions regarding the competition should be directed to the Editor, Amy Prenda, at aprenda@ nebar.com.

Guidelines Regarding Submissions 1. Do not send original artwork. All Works must be delivered in electronic format. For example, if submitting Work in the Sculpture or Painting/Drawing categories, send photograph(s) of the work. 2. In the Sculpture category, it is advised that multiple photo views are helpful. In addition, the Artist should describe the scale (dimensions) of the Work. 3. In the Photography category, the Artist must explain any significant post-shooting manipulation done to the Work via computer software (e.g., Photoshop). 4. When submitting photos, high-resolution quality is required: 300 dpi at 10” x 12”. 5. In the Photography category, the maximum number of submissions by one Artist is 15. How to Submit To submit Works in any category, send the item to the Editor via email at aprenda@nebar.com or via U.S. Mail to: Amy Prenda, The Nebraska Lawyer, 635 S 14th St. Suite 200, Lincoln, NE 68508

MARCH/APRIL 2019

feature article

Bail, Fines, and Fees Create Modern Day Debtors’ Prisons in Nebraska by Amy Miller

Bail, fines, and court costs are monetary bookends of the average criminal case. Even low-level misdemeanor charges routinely require a defendant to post bail to go home, and judges impose court costs and fines with nearly every conviction. These common practices mean that on both ends of the case, low income Nebraskans are held in jail and deprived of their liberty for no reason other than their inability to pay. There is a growing nationwide movement to end these reflexive practices which amount to modern-day debtors' prisons. The movement is gaining momentum in Nebraska as well. It is time for all Nebraska stakeholders, including judges and prosecutors on the frontlines, to carefully reassess our respective roles in our criminal justice system to ensure we are honoring the law for all litigants regardless of the size of their bank accounts. Our profession has an essential role and special obligation to ensure our criminal justice system honors the spirit and intent of the law and strives for justice in ensuring our system meet best practices.

Amy Miller Amy Miller has worked for ACLU Nebraska as Legal Director since 1999. ACLU Nebraska is a nonprofit, non-partisan organization that works to protect civil liberties and constitutional rights. She is responsible for the ACLU Nebraska legal program as well as legislative lobbying and public education. THE NEBRASKA LAWYER

National Picture on Debtors’ Prisons Over 35 years ago in Bearden v. Georgia, 461 U.S. 660 (1983), the U.S. Supreme Court ruled that to imprison someone because of their poverty and inability to pay a fine or restitution is fundamentally unfair and violates the Equal Protection Clause of the Fourteenth Amendment. In 2016, the Department of Justice issued guidance calling for an end to money bail except in rare circumstances and calling for an end to the imposition of fines and fees on people who are indigent. In 2018, the American Bar Association adopted “Ten Guidelines on Court Fines and Fees” that are aimed at stopping practices that put people behind bars solely because they cannot pay.1 Lawsuits challenging bail practices have been successful in various diverse jurisdictions across the nation.

ACLU Report on Nebraska Practices The ACLU of Nebraska issued a groundbreaking report in late 2016 presenting the results of our investigation into Nebraska’s modern-day debtors’ prisons and bail practices.2 The report shows how, day after day, low-income Nebraskans are imprisoned without meaningful individualized assessments of their ability to pay bail, fines, or fees. These practices are illegal, create hardships for those who already struggle, and are not a wise use of public resources. These practices are driving jail overcrowding in many counties. To study both bail and the imposition of court fines and fees in Nebraska, ACLU did a statistical analysis of the jail populations in the four largest counties (Douglas, Lancaster, Sarpy and Hall). We used open records requests, reviewed court files, interviewed people involved in the system, and stationed court watchers in county courtrooms in Douglas,

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MODERN DAY DEBTORS' PRISONS IN NEBRASKA Lancaster and Sarpy counties. The nearly year-long investigation revealed deeply flawed practices that must be reformed.

destabilizing effects as she sits out a fine, separated from her family, her job, and her community.

How Bail Is Imposed in Nebraska

Human Costs of Bail and Debtors’ Prison

Our study revealed that over half of the county jail population is pretrial detainees, presumed innocent and awaiting trial. Of the pretrial population, more than half were held on nonviolent crimes: municipal violations, traffic offenses, public order offenses, drug offenses, and theft/shoplifting charges. We discovered pretrial defendants spend an average of 55 days in jail before going to trial. Even nonviolent offenders spend an average of 48 days in jail.

Being held in jail comes with devastating human costs for low-income Nebraskans. According to many studies, being held in jail while awaiting trial means one is more likely to be found guilty. Scholarship also has demonstrated that people held in jail prior to trial are more likely to receive a stiffer sentence. People who are in jail face significant disruption to their lives. Being imprisoned has a destabilizing impact on their jobs, their children, and their well-being. These burdens fall on people who were already struggling and at risk. Based on the average income of the average Nebraskan, our statistical analysis showed that traffic offenses would require 3.5 paychecks to post bail, while drug offenses would require 4 paychecks to post bail. As most of us know, the people facing these charges rarely have even the “average” income—they are often already living at the margins of society with great socio-economic disadvantages.

Our research also revealed troubling racial disparities in the current bail practices. ACLU of Nebraska’s research shows a clear and disturbing overrepresentation of people of color behind bars as pretrial detainees. While 1 in 10 Nebraskans are people of color in our state population, more than 5 in 10 pretrial detainees in Nebraska are people of color. The racial disparities we discovered extend to the amount of bail set. Even for the same offenses and even for less serious offenses, detainees who were people of color had significantly higher dollar amounts to pay than their white counterparts. Instead of presuming release on one’s own recognizance or conducting individualized assessments of each person's ability to pay, prosecutors are reflexively pursuing money bail and judges are reflexively requiring bail of those who cannot afford it. The historical underpinnings of money bail and Nebraska state law clearly demonstrate that bail should be limited to people who pose a true risk to public safety or who present an actual flight risk. All other defendants should be allowed to go home on their own recognizance. Instead of an individualized assessment of dangerousness, flight risk, and the ability to pay, Nebraska imposes cash bail on most defendants. This means the wealthy go home while the poor remain behind bars unable to purchase their freedom while presumed innocent and awaiting trial. At the time of our court watching, judges were not required to impose these fines and costs. Neb. Rev. Stat. § 29-2206 provided judges “may” impose fines and fees. Unfortunately, our observations suggested that few judges were exercising their discretion to waive or reduce fines and fees based on individualized assessments. Instead, it was the norm to impose both fines and costs in nearly every case, and many people left court with financial burdens that they could not pay. When wealthier defendants are sentenced to pay a fine, they can do so and go on their way while poor defendants without the means to write a check must sit in jail. The practice of having defendants “sit out their fines” means that even a misdemeanor offense can result in many days in jail. These practices mean the poorest defendants are punished more harshly than those with money. Meanwhile, the defendant faces serious THE NEBRASKA LAWYER

It's not just the defendants who suffer; it’s their families as well. Nearly one in ten children in Nebraska will have a parent behind bars.3 The effects of this experience often lead to economic and psychological instability for the child. When a family has to choose whether to post bail or pay a utility bill, everyone suffers.

Real Nebraskans Behind Bars for Being Poor Pretrial detention can have tragic and deadly consequences. Forty-five-year-old Susan Kiscoan was found dead in the Douglas County Jail after spending two weeks in pretrial detention over a misdemeanor arrest for trespass.4 She was being held on a $2,500 bail despite the fact she was a firsttime offender, indigent, and living at the mission prior to her arrest. Her trial date had been set for over a month after her arrest. With policy changes, people like Ms. Kiscoan would be ticketed and released without the necessity of jail time prior to their trial. Most Nebraskans don’t face the dire consequences such as Ms. Kiscoan, but poor people being held in jail due to lack of bail money or in order to sit out fines have significant human consequences for real Nebraskans every day. For example, Marcus, a 54-year-old African-American resident of Omaha, was at a party in Bellevue in February 2016. The party got rowdy, the police were called, and Marcus and several other partygoers were given a ticket for misdemeanor “disorderly conduct.” Marcus doesn’t have a driver’s license, so getting to his Sarpy County court hearings in Papillion wasn’t easy. “I took the bus as far as it goes from Omaha. Then I got out and walked.” Marcus had to do this four times: once for MARCH/APRIL 2019

MODERN DAY DEBTORS' PRISONS IN NEBRASKA the arraignment, for a pretrial hearing, for trial, and then for sentencing. He was ultimately found guilty and ordered to pay $149. “They gave me 56 days to pay. They might as well have given me until the crack of doom. I don’t have $149, I don’t know anyone with $149, and I don’t have any idea how to get $149.” When the deadline passed, an arrest warrant was issued in May 2016. Sarpy County didn’t prioritize picking Marcus up until September. “I sat out my fine. It took a day and a half in jail, and then I had to do that long, long walk one last time to get all the way back home.” Heather, a 27-year-old white Lincoln resident is the mother of two young children. The day before Thanksgiving 2016, she was pulled over for tossing a bag of trash out the window of her car. “I was so embarrassed when the lights turned on,” she said. “I knew what I did was wrong, so I was ready for a ticket.” She was charged with a Class II misdemeanor: “Rubbish on the highway.” She was found guilty and given a $25 fine and charged $51 in court costs. She was given two months to pay. “I made the first payment, but then I just didn’t get the rest of the money together. I didn’t have an attorney to ask for help and I didn’t know how to ask the court for more time, so they issued a warrant for me.” Lincoln Police came to arrest Heather on her warrant and booked her into jail. “I was humiliated. I had to beg my family to come pay the outstanding $31 so I didn’t have to stay in jail.”

THE NEBRASKA LAWYER

As people like Susan, Marcus and Heather sit in jail for a day or two days or a week, the county jails pay between $80 – $90 per day to house each inmate. The annual costs to run the jails in our four largest counties reached over $73 million in 2017. Debtors’ prisons impose a huge burden on Nebraskan property tax payers while doing little to advance our shared public safety goals.

Legislative Reforms Following the release of the ACLU report, diverse stakeholders came together to work collaboratively on important reform efforts. Senator Matt Hansen introduced LB 145 to require judges to inquire into ability to pay fines and fees before including them in a sentence. Senator Adam Morfeld introduced LB 395 to change the criteria for imposing bail. The final reforms were passed in conjunction with LB 259 in 2017. The new statutes include Neb. Rev. Stat. § 29-901, which requires judges to consider the defendant’s ability to pay bond and Neb. Rev. Stat. § 29-2206, which requires waiver of court fines and fees if the defendant is indigent. Other reforms included capping the number of community service hours that could be ordered (Neb. Rev. Stat. § 29-2279), clarification of the process if someone fails to pay court ordered fines and fees (Neb. Rev. Stat. § 29-2412) and a change to driver's license suspension for failure to pay (Neb. Rev. Stat. § 60-4,100).

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MODERN DAY DEBTORS' PRISONS IN NEBRASKA These reforms received wide support from state senators across the political spectrum and were signed into law by Governor Ricketts in May 2017. Unfortunately, reports from practitioners across the state, our continued data collection and analysis from county jail lists, and renewed ACLU court watching in late 2017 through present day indicate that very little, if anything, has changed in practice on the frontlines. In county court, particularly, judges continue to require bail, impose fines and fees, and order defendants to sit out fines in response to prosecutors' request for bail, fines, and fees without an individualized assessment of ability to pay, or other key factors despite the fact that these practices are prohibited under the U.S. Constitution and despite the recently adopted strong and clear state law reforms. While a number of these statutory reforms do not take effect until July 2019, the Legislature’s intent was clear, and new case law from across the country indicate these changes must be implemented immediately.

Bail Fund Pilot Project in Lancaster County While the legislature explores the next steps in legal reform after another important set of interim hearings this fall, the ACLU has initiated an innovative grassroots initiative to draw attention to the inequities of money bail and to assist those in need trapped in this system in the Capital city: the Lancaster County Bail Fund. Thanks to the support of generous local donors, the fund identifies defendants awaiting trial in Lancaster County and simply posts bond for them. Across the U.S., similar bail funds have discovered the fundamental truth: people will appear for court, even if it is not their own money on the line as bail. Our bail fund is also working to build upon another effective technique to reduce failure to appear rates: the pilot program conducted by the Minority Justice Committee in 20092010 which showed a simple postcard reminder significantly reduced the number of failures to appear. The bail fund uses text messaging, emails, and sometimes home visits to follow up with bail fund beneficiaries to provide reminders about their court dates to help the individuals navigate the often confusing court system. It is too early yet to have complete statistics on the bail fund efficacy, but the ACLU looks forward to helping more of our neighbors trapped in this persistent and unfair system in the short term while working to elevate these issues and work collaboratively with all stakeholders to end these practices that hurt families and taxpayers.

THE NEBRASKA LAWYER

Conclusion Nebraska has made some strides, but we have much further to go. Judicial education to cement the changes in statute may be necessary. Many states have issued standard bench cards to provide guidance for judges as they consider imposing bail or sentencing someone to pay a fine or fee. The Nebraska Supreme Court has provided online pro se forms drafted by the ACLU to aid individuals in requesting a discharge of fines and fees if they are indigent.5 Practitioners working with people experiencing homelessness or who are living in poverty can either use these forms to free clients from outstanding court debts or provide the forms to the client to fill out on their own. Other states have learned that the old practices of money bail and court fines and fees simply push poor people further into poverty without making communities safer. Common sense reforms will ensure our jails are holding only those who are dangerous or who have been sentenced for a crime rather than those who simply don’t have the money to go home. Without a sea change in how we treat poor people at the outset of a criminal charge and on the sentencing side, Nebraska is vulnerable to one of the many class action lawsuits that have been brought in federal court on behalf of people suffering from the unconstitutional bail and debtors’ prison practices in other jurisdictions. Over sixty years ago, the U.S. Supreme Court said, “Providing equal justice for poor and rich, weak and powerful alike is an age-old problem. People have never ceased to hope and strive to move closer to that goal.”6 Nebraska has taken significant strides forward to that goal, and it is imperative that all of us who work within the court system work to make our system safer and more just for all.

Endnotes 1 https://www.americanbar.org/content/dam/aba/images/ 2

abanews/mym2018res/114.pdf

“Unequal Justice: Bail and Modern Day Debtors’ Prisons in Nebraska,” ACLU of Nebraska (December 2016). https://www. aclunebraska.org/sites/default/files/field_documents/unequal_ justice_2016_12_13.pdf

3 “A

Shared Sentence: The Devastating Toll of Parental Incarceration,” Voices for Children in Nebraska, May 2016. https://voicesforchildren.com/a-shared-sentence-the-devastating-toll-of-parental-incarceration/

4 Todd

Cooper, “In jail for trespassing, mentally ill Omaha woman never made it out,” Omaha World Herald. October 7, 2018. https://www.omaha.com/news/courts/in-jail-for-trespassing-mentally-ill-omaha-woman-never-made/article_cbee7ec1500e-5caf-b2ee-fb54f6bc0518.html

5 https://supremecourt.nebraska.gov/self-help/court-fines-fees 6

Griffin v. Illinois, 351 U.S. 12, 16 (1956).

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feature article

To Discover, or Not to Discover by Paul B. Schaub

Neb. Rev. Stat. § 29-1912 (Reissue 2016) is Nebraska’s discovery statute in criminal cases. A defendant can request statements that he or she made, photographs, names and addresses of witnesses, results and reports of physical and mental examinations, among other things. A court has discretionary authority in granting a discovery request. Neb. Rev. Stat. § 29-1916 (Reissue 2016) is the statute that imposes a reciprocal disclosure requirement upon the defendant, except not in a manner that would interfere with the defendant’s privilege against self-incrimination. Discovery in a criminal case is generally, and in the absence of a constitutional requirement, controlled by either a statute or court rule. State v. Kinney, 262 Neb. 812 (2001). The prosecution has not been granted a right of discovery except as permitted by the court, with limitations clearly defined by

Paul B. Schaub Paul Schaub worked for the law firm of Peetz, Sonntag and Goodwin, P.C. in Sidney, Nebraska. His work included representing criminal defendants. He has served as Cheyenne County Attorney for 24 years, and also served for two years as interim Deuel County Attorney. He earned his Bachelor of Arts Degree, majoring in History, at Creighton University. And he graduated from Creighton University School of Law. He serves on the Board of Directors of the Nebraska County Attorneys Association and on the Board of Directors for the CAPstone Child Advocacy Center. He has two sons, ages 19 and 21. THE NEBRASKA LAWYER

statute. Id. The Supreme Court has not established any court rules that would provide the State with a right of discovery in criminal cases. Id. Typically, discovery motions and orders are made without challenge. But take for instance that part of the discovery statute that permits the disclosure of “The names and addresses of witnesses on whose evidence the charge is based.” That type of information is basic and necessary to help identify witnesses and defenses. But requesting that information triggers the reciprocal discovery requirement, which permits a court to condition its discovery order by requiring the defendant to grant the prosecution like access to comparable items or information. Sometimes a defendant’s strategy may involve delayed disclosure or no disclosure. For no disclosure, do nothing. Not asking for discovery avoids a reciprocal discovery obligation. But in my experience, most cases involve a discovery request. By not requesting discovery, a defense attorney may become vulnerable to a claim of ineffective assistance of counsel. Some defense attorneys choose to ask for some of the items enumerated in the discovery statute, e.g., reports, documents and papers, but intentionally omit a request for witness names. The idea is that the prosecution is already required to disclose witness names. Neb. Rev. Stat. § 29-1602 (Reissue 2016) requires a prosecuting attorney to endorse on the information the names of the witnesses known to him or her at the time of the filing. So, why ask for something you are already getting? And if there is no request for witness names, there can be no reciprocal obligation to disclose the names of defense witnesses. Some prosecutors respond by providing copies of investigative reports, but with witness names and addresses stricken or blacked-out. This is a risky move, since this type of nondisclosure risks a Brady violation.

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TO DISCOVER, OR NOT TO DISCOVER Intentionally omitting a request for witnesses’ names appears to some as bypassing the reciprocal discovery obligations. No request, no reciprocal obligation. “Reciprocal discovery is intended to protect the public interest in a full and truthful disclosure of critical facts, to promote the People’s interest in preventing a last minute defense, and to reduce the risk of judgments based on incomplete testimony.” See, e.g. People v. Landers, 31 Cal.App.5th 288 (2019). Indeed, reciprocal discovery serves to prevent surprises at trial. And as the United States Supreme Court noted, the Constitution does not guarantee a criminal defendant the right to surprise the prosecutor. State of Wisconsin v. Jason L. McClaren, 318 Wis.2d 739 (2009) citing Williams v. Florida, 399 U.S. 78, 86, 90 S.Ct 1983, 26 L.Ed.2d 446 (1970).

But in our instance, no request has been made for witnesses’ names. So there is no reciprocal discovery obligation. As noted earlier, discovery, in the absence of a constitutional requirement, is controlled by either a statute or court rule. So in those instances where defense witnesses’ names are not disclosed, must a prosecutor wait until trial to make defense witness inquiries? A prosecutor may attempt to avoid this surprise tactic by objecting to a piecemeal discovery request, citing Neb. Rev. Stat. § 29-1912 (2)(c). That part of the statute permits a court to exercise discretion in issuing a discovery order where the request, if granted, would unreasonably delay the trial. A prosecutor, wanting to know the names of defense witnesses, could file notice that he or she intends to depose the witnesses. Neb. Rev. Stat. § 29-1917 permits the defendant or the prosecuting attorney to request the court to allow the taking of a deposition other than the defendant who may be a witness at trial. But if witness disclosure does not occur until trial, the depositions, if allowed, would cause unreasonable delay.

Rights and privileges are important. And nothing should interfere with a defendant’s rights and privileges, e.g., right against self-incrimination, and attorney-client and work product privileges. In those cases where a right or privilege would not be jeopardized, and a defendant just generally claims that disclosure of reciprocal discovery would be “harmful,” courts usually require disclosure and point to its benefits, e.g., opportunity for investigation of facts and adequate trial preparation. See, e.g. State of New Mexico v. Johnny Salazar, 2018 WL 6132529.

Fortunately, this tactic has been used sparingly among my fellow practitioners. Hopefully this article will provide some guidance if it surfaces in any of your cases. The discovery process should not be a game of “hide the ball.” Cooperative discovery helps get to the truth.

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MARCH/APRIL 2019

feature article

Nebraska Probation:

Improving Lives and Community Safety by Robert Denton

Nebraskaâ&#x20AC;&#x2122;s Prisons had been encountering a revolving door of inmates prior to 2014 when governmental officials joined together to reverse the trend. According to the Council of State Governments, in 2013 more than 1,000 low-level felony and misdemeanor offenders had been sentenced to prison for non-violent offenses.1 These offenders equaled 40% of all new admissions. During their period of incarceration these individuals were regularly exposed to serious offenders and few received any services for their substance use or mental health issues. Each was released back into the community with no formal support or supervision. It is not surprising that data obtained from the Nebraska Department of Correctional Services revealed that these Class IV felony, low-level offenders had the highest rate of return to prison.

Justice Reinvestment In order to address the problem, Nebraska responded with a bipartisan, interbranch reform effort that resulted in Legislative Bill (LB) 605 in August 2015, known as Justice

Robert Denton

Reinvestment. Justice Reinvestment is a data-driven approach to reduce corrections and related criminal justice spending and reinvest the savings in strategies that can reduce crime. The result is designed to improve public safety and strengthen communities. The 2015 law expanded the use of probation in lieu of incarceration and ensured more people receive community supervision upon release from prison. LB 605 further required all individuals sentenced to a period of incarceration for a Class III, IIIA, or IV felony serve a term of post-release supervision. Although only accustomed to supervising individuals at the front end of the system, Nebraska Probation was selected to provide the post-release supervision based on a successful track record which included full implementation of evidence-based practices. These practices include assessing an individualâ&#x20AC;&#x2122;s risk and need level with an objective actuarial risk and needs instrument and targeting higher-level supervision interventions toward individuals with a higher risk to re-offend. Evidence-based practices conclude that if the risks and needs of an individual are not accurately identified, and appropriate interventions are not delivered, there can be no expectation of behavioral change, and thus no reduction in recidivism.

Innovative Approach - Post Release Tasked with the new responsibility of post-release supervision, the Administrative Office of Courts and Probation developed several new and innovative approaches.

Robert Denton is the Assistant Deputy Administrator of the Programs and Services Division in the Nebraska Office of Probation Administration.

One successful strategy has been to engage with incarcerated individuals as soon as possible to collaboratively develop a reentry plan. The process requires probation officers to meet with the individual 120 days prior to release and encourage

ď&#x192;&#x2020; THE NEBRASKA LAWYER

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NEBRASKA PROBATION necessary buy-in regarding the benefit of supervision and the ongoing use of services within the community. Although supervision is rarely appealing, probation officers engage with community partners to schedule substance use and/or mental health treatment, locate and provide financial assistance for safe and sober housing, and connect individuals with other community support to help develop a successful plan. Another strategy for the post-release population has been the development of reentry courts in Nebraska. In June 2017, the Nebraska Supreme Court approved the “Best Practice Standards for Reentry Courts” and Nebraska’s first reentry court opened in the Ninth Judicial District in August 2017. The second reentry court was established in the Second Judicial District in January 2018. Reentry courts operate similarly to drug courts but include research-based best practices designed explicitly for the reentry population. As Chief Justice Mike Heavican noted in his 2019 State of the Judiciary address, “In Nebraska, community corrections means ‘Probation.’ And in Nebraska, Probation—both adult and juvenile—has always been part of the Judiciary. In Nebraska, therefore, Probation and the judiciary have an essential role in justice reinvestment. We are the front door to Nebraska’s correctional institutions; and in our role with reentry supervision, we are also the back door of those correctional institutions.”

Probation Increasing Caseload Since the enactment of Justice Reinvestment initiatives, Nebraska Probation has experienced significant changes including a 39% increase in individuals placed on felony probation which now includes post-release supervision. When broken down, statistics show that individuals placed on probation through the district courts have increased by 34% which has reduced the number of individuals sentenced to prison. There has been an exponential increase in post-release supervision since 2016. An average of 23 individuals per month were placed on post-release supervision in 2016, which in 2017 grew to an average of 87 individuals per month. In 2018 the average capped at 139 individuals per month. This upcoming year, it is projected that the average number of individuals on postrelease supervision will be 153 individuals per month.

Additional Program Progress Nebraska Probation has celebrated several positive outcomes in existing programming since the implementation of Justice Reinvestment.

THE NEBRASKA LAWYER

Nebraska State Probation Mission We, the leaders in community corrections, juvenile and restorative justice are unified in our dedication to delivering a system of seamless services which are founded on evidence-based practices and valued by Nebraska’s communities, victims, offenders and courts. We create constructive change through rehabilitation, collaboration, and partnership in order to enhance safe communities. According to a recent study conducted by the University of Nebraska’s Department of Law and Psychology Program, Nebraska Probation’s Specialized Substance Abuse Supervision program has demonstrated better outcomes and reduced recidivism compared to similar individuals who are not engaged in Specialized Substance Abuse Supervision.2 Probation has also continued to release (graduate) individuals from supervision rather than revoke (fail) probationers which means fewer individuals are given jail or prison sentences. Lastly, Nebraska Probation has maintained a low 17% recidivism rate with the adult post-release and probation populations. Having worked with courts, prosecutors, and defense attorneys for almost 30 years, it has been gratifying to share a common goal of helping individuals and improving communities. Prior to the implementation of evidence-based practices, probation officers were focused on the traditional practice of “trail ’em, nail ’em, and jail ’em.” As a result, I was often discouraged to see individuals return through the system over and over again. Even more disheartening was to later observe their children entering the system. When Nebraska Probation first implemented evidence-based practices, I was wary of the changes. However, after ten years I have witnessed Probation’s transformation into an effective system of balancing rehabilitation (improving lives) with accountability (community safety). With Probation’s new role in post-release supervision and justice reinvestment, Probation will need the continued support of both prosecutors and criminal defense attorneys as we work together toward improving lives while protecting communities.

Endnotes 1 https://csgjusticecenter.org/wp-content/uploads/2015/01/

JusticeReinvestmentinNebraska.pdf

2 https://supremecourt.nebraska.gov/evaluation-probations-

specialized-substance-abuse-supervision-ssas-program-demonstrates-program

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young lawyers section page Submissions to the Young Lawyers Section Page from young attorneys across the state are always welcome. If you’re interested in writing, please contact Amy Prenda, Editor, at aprenda@nebar.com.

CSLI and Your New Privacy Rights:

How Our Nation’s High Court Decided Carpenter v. United States and its Application in Nebraska by Elizabeth J. Chrisp Do you want to add another acronym to your vocabulary? If you practice criminal law and your clients have a cell phone, then CSLI, which stands for “cell site location information,” should make your short list. Perhaps you are one of the millions of people who listened to the first season of the infamous podcast, Serial, and are familiar with CSLI’s use in Adnan Syed’s murder trial.1 Serial’s host, Sarah Koenig, generally explained how CSLI is data that is recorded when your cell phone “pings” a tower throughout the day. She then detailed how that evidence was used by the prosecution in narrowing the location of Mr. Syed around the time Hae Min Lee went missing.2 Technology, of course, has rapidly developed since Lee’s disappearance in 1999. Just last summer, the Supreme Court of the United States addressed how the government may lawfully obtain CSLI in Carpenter v. United States.3 In a 5–4 decision, the Court held that law enforcement must generally obtain a warrant in order to obtain an individual’s CSLI.4 This article will explain how Carpenter v. United States expanded data privacy protections, how the Supreme Court of Nebraska has applied Carpenter, and how Carpenter may potentially have an impact on Fourth, and even Fifth, Amendment protections in the future.5

Carpenter v. United States Carpenter explains that CSLI is information that wireless carriers collect and store for business purposes.6 Each time a phone scans for the best signal looking for a cell site—something your phone may do several times a minute, even if you are not actively using it—time-stamped CSLI is generated.7 Wireless carriers use this information for various reasons, such as determining when to charge you for roaming services.8 Some even sell this information to data brokers.9 The heart of the privacy issue with CSLI is the fact that it contains the user’s geographic location.10 How precise this location is varies on the geographic area covered by the cell site; the larger the concentration of cell sites, the smaller the coverage area.11 In Carpenter, law enforcement suspected that four men were involved in a series of robberies in Detroit.12 One of the four suspects confessed that the group robbed nine stores across Michigan and Ohio.13 He identified fifteen other accomplices THE NEBRASKA LAWYER

and provided law enforcement with their cell phone numbers.14 Based on that information, the government applied for court orders under the Stored Communications Act15 to obtain cell phone records for the defendant and many other suspects.16 The Stored Communications Act allows the government to compel disclosure of certain telecommunication documents when it offers “specific and articulable facts showing that there are reasonable grounds to believe” that the information is “relevant and material” to a pending criminal investigation.17 The applications were granted, and the government was allowed to obtain information regarding the defendant’s CSLI with two wireless carriers over a period of approximately five months.18 This amounted to “12,898 location points . . . an average of 101 a day.” The government charged the defendant with multiple counts, including six counts of robbery.19 After the defendant unsuccessfully attempted to suppress his CSLI, the government was able to argue at trial that the defendant was at or near the scene of multiple robberies.20 On appeal, Carpenter argued that the government had violated his Fourth Amendment right to be free from unreasonable searches and seizures.21 The Court of Appeals for the Sixth Circuit disagreed and affirmed, reasoning that the defendant “lacked a reasonable expectation of privacy in the location information collected . . . because he had shared that information with his wireless carriers.”22 The Sixth Circuit’s ruling was based on the long-standing “third-party doctrine.”23 This doctrine generally provides that an individual loses his or her right to privacy in information that is voluntarily given to a third party.24 That doctrine “remains true ‘even if the information is revealed on the assumption that it will be used only for a limited purpose.’”25 Carpenter appealed to the Supreme Court of the United States. Under the third-party doctrine and precedent at the time, Carpenter seemed to face an uphill battle. Chief Justice Roberts delivered the opinion of the Court, beginning with this sentence: “There are 396 million cell phone service accounts in the United States—for a Nation of 326 million people.”26 The Chief Justice explained how much of the Fourth Amendment’s protection had stemmed from the common-law trespass doctrine which focused on the government literally intruding on a constitutionally protected area.27 He also quoted, however, the ever-famous phrase that the Fourth Amendment protects “people, not places.”28 The Chief Justice

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YOUNG LAWYERS SECTION PAGE then explained how those “Founding-era understandings” were kept “in mind when applying the Fourth Amendment to innovations in surveillance tools.” He acknowledged that “[a]s technology has enhanced” so has “the Government’s capacity to encroach upon areas normally guarded from inquisitive eyes[.]”29

appealed to the Nebraska Court of Appeals.42 The Nebraska Supreme Court subsequently granted the State’s unopposed Petition to Bypass on grounds that the appeal presented a novel question pursuant to Neb. Rev. Stat. § 24-1106(2) due to Carpenter’s conflict with State v. Jenkins.43

The Chief Justice then stated that the majority believed that the third-party doctrine was not applicable to Carpenter’s “novel circumstances” and held that “an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI.”30 “[T]ime stamped data,” the Chief Justice wrote, “provides an intimate window into a person’s life, revealing not only his particular movements but through them, his ‘familial, political, professional, religious, and sexual associations.”31 As such, CSLI warrants constitutional protection. Now, law enforcement must generally obtain a warrant—requiring a showing of probable cause—in order to access CSLI.32 The Chief Justice acknowledged, however, that there may be exceptions to the warrant requirement, including proof of exigent circumstances.33

Brown was convicted of second degree murder and other firearm offenses arising out of the death of Carlos Alonzo.44 Alonzo’s had died from a single gunshot wound to the head near Doloma Curtis’ home located by 20th and Lake Streets in Omaha.45 Alonzo and Brown had both been dating Curtis at that time. As part of its investigation, law enforcement submitted an application to the district court under the Stored Communications Act seeking an order to obtain Brown’s cell phone records, including his CSLI.46 The application was granted.47

Justices Kennedy, Thomas, Alito, and Gorsuch each wrote separate dissents, an unusual move that demonstrates their deep disagreement with the majority.34 Justice Thomas and Justice Gorsuch complained on originalist grounds, protesting that the Court had moved beyond what the Framers intended. Justice Alito complained that the majority had overreacted to new technology. Finally, Justice Kennedy wrote that the Court had “unhinge[d]” the Fourth Amendment “from the property-based concepts that have long grounded” its “analytical framework.”35 The Chief Justice, however, addressed the dissenting views, stating that the case was not just about “‘using a phone’ or a person's movement at a particular time. It is about a detailed chronicle of a person’s physical presence compiled every day, every moment, over several years.”36 Such information, he reasoned, implicates a “chronicle” of privacy concerns that go well-beyond those concerns addressed in the 1970’s cases that the dissenters relied upon.37 The third-party doctrine is not truly applicable to CSLI because CSLI is not voluntarily shared “as one normally understands the term.”38 Cell phones are now integrated in every aspect of American life and CSLI is captured “without any affirmative act on the part of the user beyond powering up.”39 The only way to stop CSLI from transmitting to the wireless carrier, is if the user disconnects entirely. Thus, in no meaningful sense does the user assume the risk of disclosing CSLI.40

Carpenter in Nebraska Carpenter was examined for the first time in Nebraska in State v. Brown which was recently decided on January 18, 2019.41 Following a denial of a suppression motion and conviction in the District Court of Douglas County, Brown THE NEBRASKA LAWYER

At a jury trial, the prosecution introduced evidence that Brown had called Curtis at 2:23 a.m. on May 28 and that his CSLI indicated that he was “in the area of 20th and Lake Streets when he made that call.”48 A minute later, at 2:24 a.m. “Omaha’s ‘ShotSpotter’ location system detected a single gunshot in the vicinity of Curtis’ home.”49 The prosecution also called a friend of Brown’s as a witness who testified that in the early morning hours on May 28, Brown visited her home near 40th and Boyd.50 She testified that Brown told her that he had just come from Curtis’ home.51 She testified that Brown explained to her how he “had been in an altercation with Alonzo, and that he ‘had to put [Alonzo] down.’”52 The prosecution also introduced Brown’s CSLI that showed he was in the vicinity of 40th and Boyd at approximately 2:34 a.m.53 The jury found Brown guilty of second degree murder and other firearm offenses.54 The district court sentenced him to 100 to 140 years’ imprisonment.55 Brown appealed his conviction, primarily arguing that the district court erred in denying his motion to suppress CSLI gathered by law enforcement in line with Carpenter.56 In a unanimous opinion authored by Justice Papik, the Nebraska Supreme Court affirmed Brown’s conviction.57 Justice Papik explained that the district court denied Brown’s motion to suppress CSLI pursuant to a Supreme Court of Nebraska case, State v. Jenkins, which was decided in 2016, just two months after law enforcement obtained Brown’s CSLI.58 Jenkins “held that individuals do not have a reasonable expectation of privacy in CSLI and that thus, the acquisition of CSLI does not implicate, let alone violate, the Fourth Amendment.”59 After Brown initiated his appeal, however, Carpenter was decided, overruling Jenkins.60 Those perhaps unfamiliar with Fourth Amendment law may have thought that with this landscape, Brown’s appeal would be successful; Justice Papik quickly stated, however, that “[t]he fact that Brown’s Fourth Amendment rights were violatMARCH/APRIL 2019

YOUNG LAWYERS SECTION PAGE ed . . . does not necessarily mean that it was error for the district court to deny Brown’s motion to suppress.”61 The exclusionary rule, he explained, is “not a personal constitutional right” and was judicially created to safeguard Fourth Amendment violations through its deterrent effect.62

access to private information and to authenticate ownership or access.72 Hence, the magistrate found that a finger’s or thumb’s use in that manner “is analogous to the nonverbal, physiological responses elicited during a polygraph test, which are used to determine guilt or innocence, and is considered testimonial.”73

Justice Papik then stated that there are, at least, four categorical instances where the exclusionary rule did not apply, and that one of those applied with “full force” in Brown’s case.63 In Illinois v. Krull, the Supreme Court of the United States held that the exclusionary rule did not apply where evidence was gathered by law enforcement who objectively relied on a statute that was later found to be unconstitutional.64 In Brown’s case, his CSLI was gathered by law enforcement pursuant to an order that granted an application that was filed under the Stored Communications Act. Although Jenkins had not yet been decided, many other courts, including the Fourth, Fifth and Eleventh Circuit Courts of Appeals, had held that CSLI did not implicate the Fourth Amendment.65 Justice Papik explained that because law enforcement in Brown was following the current status of the law at that time, application of the exclusionary rule was not appropriate—it would not have any deterrent effect.66 He noted that “[m]any other courts” have ruled the same post-Carpenter.67

To be clear, not all judges have ruled like the magistrate above.74 Those opinions, nonetheless, are instructive in crafting arguments here in Nebraska.

So, if you were contemplating a potential appeal of a case that involved law enforcement obtaining CSLI pre-Carpenter, Brown makes it clear that if law enforcement was objectively relying upon the Store Communication Act, you should find another error to assign.

Potential Expansion from the Fourth to the Fifth While Carpenter was a Fourth Amendment case, the question becomes, how far will Carpenter reach? While it may still be too early to tell, Carpenter, combined with other Supreme Court cases like Riley v. California,68 create a foundation for additional arguments into the Fifth Amendment realm. Riley, if you may recall, held that an unlocked smartphone cannot be searched incident to arrest other than to determine whether it may be used as a weapon.69 Carpenter and Riley, for example, can be used to argue that evidence of a defendant’s ownership, use, or control of cell phone is testimonial under the Fifth Amendment. Using similar reasoning, cases outside of our jurisdiction have held that the government cannot force a suspect to disclose biometric information, such as a fingerprint, thumbprint, face or iris scan, to unlock a smart phone.70 At least one magistrate judge has reasoned that a finger or thumb scan is different than submitting a fingerprint or DNA to compare with physical evidence.71 That magistrate reasoned the difference is what the finger or thumb scan is used for: granting government THE NEBRASKA LAWYER

Conclusion The Supreme Court of the United States once again moved beyond the rigid approach of Fourth Amendment law that has been following two steps behind advancements in technology. This is important because courts across the nation are recognizing that there are multiple privacy concerns which now include the disclosure of CSLI. How Carpenter’s decision, in conjunction with others, like Riley, will affect other aspects of criminal law is unknown. Defense attorneys, however, cannot ignore the landscape we have been given. Will this protection expand to other privacy areas such as internet protocal (IP) addresses and general forms of metadata? Only time will tell. ELIZABETH CHRISP is an Associate at Jacobsen, Orr, Lindstrom & Holbrook, P.C., L.L.O. and practices in a variety of areas, including criminal law. Ms. Chrisp obtained her Juris Doctor degree, with Sterling Honors, from the University of South Dakota School of Law in 2015. While in law school, she was Editor-in-Chief of the South Dakota Law Review, Volume 60. After graduation, she competed a one-year clerkship with the Honorable Roberto Lange at the United States District Court for the District of South Dakota. Through that clerkship, Ms. Chrisp was exposed to many aspects of criminal law, particularly serious felony cases occurring on Native American reservations.

Endnotes 1

2 3 4

See Michelle Kaminsky, In a Win for True Crime Podcasts Everywhere, Adnan Syed Granted New Trial, Forbes (Mar. 30, 2018), https://www.forbes.com/sites/michellefabio/2018/03/30/ in-win-for-true-crime-podcasts-everywhere-adnan-syed-granted-new-trial/#390a3cee2769. Serial, This American Life (2015), https://serialpodcast.org/season-one. 138 S. Ct. 2206 (2018). Id. at 2223.

I have always been amazed at how the high Court applies the Fourth Amendment in a society that continues to evolve. If you would like a detailed history of the Fourth Amendment with multiple citations included, see Paws Off My Porch: Sniffing Out Florida v. Jardines’ Effect on Drug Dogs and Homes, 59 S.D. L. Rev. 109 (2014). That article details how the Supreme Court applied the archaic, property-based search analysis to hold that a warrantless drug dog sniff of a home was unlawful. Id. Carpenter, 138 S. Ct. at 2211–2212.

 MARCH/APRIL 2019

YOUNG LAWYERS SECTION PAGE 7

Id.

60 Id.

Id.

62 Id.

Id.

61 Id.

10 Id.

63 Id.

11 Id. 12 Id. 14 Id. 15 18

U.S.C. §§ 2701–2713.

17 18

U.S.C. § 2703(d).

16 Id.

18 Carpenter, 19 Id. 20 Id. 21 Id. 22 Id.

23 See

68 134

v. Krull, 480 U.S. 340, 358–59 (1987). 302 Neb. at 62 (citations omitted).

S. Ct. 2473 (2014).

69 Id.

at 2485–95

71 Id.

at *3–4.

73 Id.

(citing Schmerber v. California, 384 U.S. 757, 764 (1966)).

70 Matter of Residence in Oakland, California,

No. 4-19-70053, 2019 WL 176937, at *5 (N.D. Cal. Jan. 10, 2019).

74 See

Mandy Wakely, California Judge Makes Major Decision in Biometric Privacy Rights, Bigger Law Firm (Feb. 1, 2019), https://www.biggerlawfirm.com/california-judge-makes-majordecision-in-biometric-privacy-rights/ (stating that a district judge overruled another magistrates similar ruling in Illinois in 2017). This author was unable to find that Illinois decision.

id.

at 2211.

28 Id.

67 Id.

at 2212–13.

26 Id. 27 Id.

66 Id.

72 Id.

at 2216.

25 Id.

65 Brown,

138 S. Ct. at 2212.

24 Id.

(citations omitted).

64 Illinois

at 2212.

13 Id.

at 61 (quotations and citations omitted).

(quoting United States v. Miller, 425 U.S. 435, 443 (1976)). at 2213.

(citing United States v. Jones, 565 U.S. 400, 405 (2012); Smith v. Maryland, 442 U.S. 735 740 (1979)).

29 Id.

at 2214.

31 Id.

(quoting Jones, 565 U.S. at 415).

30 Id. 32 Id. 33 Id. 34 Id. 35 Id. 36 Id. 37 Id. 38 Id.

at 2217. at 2221.

at 2222–23.

at 2223–72 (spanning all dissents) at 2224 (Kennedy, J., dissenting) at 2220 (majority opinion).

(citing Smith, 442 U.S. 735; Miller, 425 U.S. 435).

39 Id. 40 Id.

41 302

Neb. 52, ___ N.W.2d ___ (Neb. 2019).

42 Id.

at 58.

44 Id.

at 55.

43 Id.;

State v. Brown, A-17-1039 (Neb. Ct. App. July 24, 2018); State v. Brown, A-17-1039 (Neb. Ct. App. July 25, 2018) (citing Carpenter was in direct conflict with State v. Jenkins, 294 Neb. 684, 884 N.W.2d 429 (2016)).

45 Id. 46 Id. 47 Id. 48 Id. 49 Id.

at 56.

50 Id.

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

51 Id. 52 Id. 53 Id. 54 Id. 55 Id.

at 57.

56 Id.

at 55.

58 Id.

at 60.

57 Id. 59 Id.

(citing Jenkins, 294 Neb. at 702, 884 N.W.2d at 443–44).

THE NEBRASKA LAWYER

MARCH/APRIL 2019

THE NSBA YOUNG LAWYERS SECTION {YLS} PRESENTS:

2019 YOUNG LAWYERS SECTION {YLS} BEST PRACTICES SEMINAR FRIDAY MARCH 15, 2019 9:00 AM - 4:00 PM CREIGHTON UNIVERSITY SCHOOL OF LAW 2133 CASS STREET OMAHA, NEBRASKA

9:00 am

Ten Ways to Be More Persuasive in Your Next Mediation Michael G. Mullin

12:15 pm

Lunch

12:45 pm

Should I or Shouldn’t I Take This Case?

Kutak Rock LLP

Dave E. Copple

Copple, Rockey, McKeever & Schlecht, PC LLO

This session will provide lawyers with 10 practical tips to be more persuasive in a mediation.

10:00 am

This session will explain the process of evaluating a potential personal injury case from a Plaintiff’s perspective.

The Basics of the Counsel for Discipline Mark A. Weber

Nebraska Counsel for Discipline

1:45 pm

This session will provide lawyers with an overview of the responsibilities of the Counsel for Discipline and will also address decorum, candor to the tribunal, punctuality and other issues of legal professionalism.

A View from the Bench: How Logic and Common Sense Can Lead to Success Hon. James G. Kube

District Judge of the 7th Judicial District

This session will provide lawyers with a judge’s perspective on what it means to be a lawyer.

This session is FREE to all Nebraska attorneys but you must register

11:00 am

Break

2:45 pm

Break

11:15 am

Changing Our Approach to the Criminal Trial

3:00 pm

Now Your Aunt Wants a Will: Estate Planning Tips Every Lawyer Should Know

Bell Island

Christin P. Lovegrove

Island Law Office, PC LLO

Heinisch & Lovegrove Law Office, PC LLO

This presentation will cover the basic tips and issues when dealing with a client’s estate plan.

This session will provide attorneys who practice criminal law with practice tips for reframing their cases so they are proactive instead of just being reactive to the prosecutor’s case.

APPROVED FOR NEBRASKA AND IOWA CLE CREDIT 6.0 HOURS INCLUDING 1 HOUR OF ETHICS DISTANCE LEARNING NE MCLE #171735 IA MCLE #315840 REGULAR / LIVE NE MCLE #171734 IA MCLE #315841 Only 5 distance learning CLE hours may be claimed per year for Nebraska THE NEBRASKA LAWYER

MARCH/APRIL 2019

[REGISTRATION FORM]

2019

YOUNG LAWYERS SECTION {YLS} BEST PRACTICES SEMINAR FRIDAY MARCH 15, 2019 9:00 AM - 4:00 PM c I will attend the live seminar at Creighton School of Law, 2133 Cass Street, Omaha *Lunch will be provided. Please note any dietary requirements / restrictions: _________________________________________________________________

c I will attend the seminar via live webcast c $205 - Regular Registration

c $155- NSBA dues-paying member

c $130 - NSBA Young Lawyer Section Member

c FREE - ETHICS presentation ONLY {The Basics of the Counsel for Discipline} c FREE - Law Students

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Return completed form to NSBA:

NSBA CLE Cancellation Policy:

635 S 14th St. #200, Lincoln, NE 68508, or email to Karla Roscoe at kroscoe@nebar.com.

• A full refund will be granted only when a cancellation request is received at least 72 hours prior to the live or distance-learning CLE event.

If you do not receive an email confirming your registration, please call 402-475-7091. If you need any special accommodation for attending this event, please contact the NSBA.

• A cancellation request made less than 72 hours of the live or distance learning CLE event or following the live or distance-learning CLE event will be refunded, less a $30 processing fee. • You may send a substitute (e.g., someone from your firm) in lieu of cancelling. • The cancellation policy for a NSBA sponsored CLE event does not apply to independent third-party CLE providers, and attorneys are subject to their cancellation policy.

THE NEBRASKA LAWYER

MARCH/APRIL 2019

feature article

Rural County Attorneys Benefit From Amended Rule of Professional Conduct

by Patrick Cooper

In 2013, the Nebraska State Bar Association (“NSBA”) established a Rural Practice Initiative (“Initiative”) to address the shortage of small-town lawyers across the state. Currently, 11 of Nebraska’s 93 counties have no lawyers, and 20 counties have three or fewer lawyers. Although some of the Initiative’s efforts are focused on attracting new lawyers to rural Nebraska, there have also been efforts to assist NSBA members who are already practicing in rural Nebraska. One such effort recently paid off when the Supreme Court of Nebraska granted the NSBA’s petition to amend Rule 3-501.7 of the Rules of Professional Conduct to assist rural county attorneys and those who associate in private practice with part-time county attorneys. In many parts of the state, county attorneys are part-time positions and they spend most of their time in private practice. Until recently, traditional conflict of interest principles in Rule 3-501.7 (and related Ethics Opinions interpreting Rule 3-501.7) prohibited lawyers who affiliate in private practice with these part-time county attorneys from handling any matters adverse to the State of Nebraska, as the county attorney’s conflict of interest is imputed to other members of his or her private practice firm. This has understandably led to a reluctance of some attorneys to continue serving as part-time county attorneys, as well as a reluctance of other attorneys to affiliate in private practice with attorneys who serve as part-time county attorneys.

Patrick Cooper

On January 16, 2019, the Supreme Court of Nebraska granted the NSBA’s petition and adopted the amended version of Rule 3-501.7 effective immediately. The amendment, which is believed to be the first-of-its-kind in the country, now allows attorneys who affiliate in private practice with part-time county attorneys to handle matters adverse to the State of Nebraska if certain conditions are met. Generally, attorneys who affiliate in private practice with part-time county attorneys may handle matters adverse to the State in another county if the attorney believes he or she can provide competent representation under the circumstances; the affected client gives informed consent; the parttime county attorney is screened from participation in the matter and is apportioned no fee therefrom; the court is given written notice; and the representation is not otherwise prohibited by law. As noted in the new comment (Comment 36) to Rule 3-501.7, the State has a strong interest in ensuring that attorneys remain willing to serve in the role of county attorney, and the amendment to Rule 3-501.7 is intended to promote the longterm viability of the practice of law in rural parts of the state without eviscerating traditional conflict of interest principles expressed elsewhere in the Rules. This is a positive development for the Nebraska legal community and one that will hopefully help lead to more opportunities for lawyers who practice in rural parts of the State, as well as better access to justice for members of the public in those areas of the State.

Patrick Cooper is a partner at Fraser Stryker PC LLO in Omaha, where he has a civil litigation trial practice. Patrick is president of the Omaha Bar Association and chair of the NSBA's Professional Enhancement Committee. You can learn more about his practice at https://www.fraserstryker.com/ attorneys/patrick-s-cooper/. THE NEBRASKA LAWYER

Concerned members of the Bar presented the issue to the NSBA seeking a solution, and the NSBA’s Professional Enhancement Committee (“Committee”) was called upon to evaluate potential solutions. Ultimately, the Committee developed a proposed amendment to Rule 3-501.7 of the Rules of Professional Conduct that was designed to address the issue while still respecting long-standing conflict of interest principles. The proposed amendment was presented to the NSBA’s House of Delegates, which unanimously voted to petition the Supreme Court of Nebraska for adoption of the proposed amendment. The Supreme Court requested public comment on two occasions and received input from stakeholders across the State, including attorneys, judges, and even county board members.

MARCH/APRIL 2019

AMENDED RULE OF PROFESSIONAL CONDUCT

On January 16, 2019, the Nebraska Supreme Court adopted the following rule amendments to Neb. Ct. R. of Prof. Cond. § 3-501.7 entitled “Conflict of interest; current clients”: CHAPTER 3: ATTORNEYS AND THE PRACTICE OF LAW .... Article 5: Nebraska Rules of Professional Conduct. .... § 3-501.7. Conflict of interest; current clients. (a) Except as provided in paragraphs (b) and (c), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing. (c) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer associated in a firm with another lawyer who is serving as a county attorney in a county where the county attorney is not required to devote his or her full time to the legal work of the county may represent a client with adverse interests to the State of Nebraska in a matter or other proceeding before a tribunal in a separate county if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same matter or other proceeding before a tribunal;

THE NEBRASKA LAWYER

-1-

MARCH/APRIL 2019

AMENDED RULE OF PROFESSIONAL CONDUCT

(4) the affected client, or if the affected client is a minor, his or her parent or guardian, gives informed consent, confirmed in writing, subject to the following restrictions: (i) for appointment of a guardian ad litem pursuant to Neb. Rev. Stat. § 43-272(2), the juvenile court, on behalf of the juvenile, shall provide provisional informed consent upon the guardian ad litem’s appointment, and, at the time of the first appearance, the juvenile court shall determine whether the provisional informed consent is appropriate, upon consultation with the parties. For appointment of counsel under § 43-272(1)(a), the parent or guardian of the juvenile shall provide written informed consent; and (ii) the State of Nebraska shall not be required to provide informed consent; and (5) the member of the lawyer’s firm who serves as county attorney: (i) is timely screened from any participation in the matter; (ii) is apportioned no part of the fee therefrom; and (6) the lawyer representing the affected client provides prompt written notice to the tribunal before which the matter is pending.

COMMENT .... Special Considerations for County Attorneys in Small Counties [36] Rule 1.7(c) is designed to address the problem faced by county attorneys and lawyers who associate in private practice with county attorneys in rural Nebraska counties. The State has a strong interest in ensuring that attorneys remain willing to serve in the role of county attorney, and Rule 1.7(c) seeks to avoid situations where attorneys avoid serving in such role due to conflicts of interest that would otherwise be imputed to attorneys associated in private practice with the county attorney. This rule provides factors that must be taken into consideration by the attorney associated with the county attorney before undertaking representation of a client with interests adverse to the State, and the Rule provides for safeguards in such situations, including informed consent, screening, and notification to the tribunal. This rule is intended to promote the long-term viability of the practice of law in rural areas of the State, without eviscerating traditional conflict of interest principles expressed elsewhere throughout these Rules.

THE NEBRASKA LAWYER

-2-

MARCH/APRIL 2019

A SPECIAL

TOM BRIESE WENDY DEBOER MATT HANSEN MIKE HILGERS SARA HOWARD ANDREW LA GRONE STEVE LATHROP ADAM MORFELD PATTY PANSING BROOKS JUSTIN WAYNE MATT WILLIAMS

THANK YOU TO NEBRASKAâ&#x20AC;&#x2122;S LAWYER-LEGISLATORS

The NSBA would like to show our appreciation to Nebraska lawyer-legislators. The reality of legislative service is the time they take away from their professional responsibilities and families in order to serve in the Nebraska Legislature.

Thank you and good luck in the 2019 Legislative Session! SENATOR

SENATOR

DISTRICT 41 ALBION

DISTRICT 10 BENNINGTON

TOM BRIESE

WENDY DEBOER

Committee Assignments General Affairs {Chairperson} Revenue Urban Affairs

Committee Assignments Judiciary Transportation and Telecommunications

SENATOR

DISTRICT 26 LINCOLN

DISTRICT 21 LINCOLN

DISTRICT 9 OMAHA

MATT HANSEN

MIKE HILGERS

SARA HOWARD

Government, Military and Veterans Affairs Urban Affairs

Committee Assignments Executive Board {Chairperson} Government, Military and Veterans Affairs Transportation and Telecommunications

Committee Assignments Banking, Commerce and Insurance Health and Human Services

SENATOR

DISTRICT 49 GRETNA

DISTRICT 12 OMAHA

DISTRICT 46 LINCOLN

Committee Assignments Business and Labor {Chairperson}

ANDREW LA GRONE

STEVE LATHROP

{Chairperson}

ADAM MORFELD

Committee Assignments Banking, Commerce and Insurance Government, Military and Veterans Affairs

Committee Assignments Agriculture Business and Labor Judiciary {Chairperson}

Committee Assignments Education Judiciary

SENATOR

DISTRICT 13 OMAHA

DISTRICT 36 GOTHENBURG

PATTY PANSING BROOKS DISTRICT 28 LINCOLN

Committee Assignments Education Judiciary THE NEBRASKA LAWYER

JUSTIN WAYNE Committee Assignments General Affairs Judiciary Urban Affairs {Chairperson}

MATT WILLIAMS Committee Assignments Banking, Commerce and Insurance {Chairperson} Health and Human Services

MARCH/APRIL 2019

criminal law legislation

Criminal Law Bills Introduced in the 2019 Legislative Session Contributors: Christopher Eickholt, David Partsch and NSBA as edited by Amy Prenda

Numerous bills relating to criminal law or criminal procedure were introduced in the first year of the 2019-2020 biennium session. This is a summary of most of them. There are a number of bills impacting the criminal code which are not included in this summary either because they only incidentally involve criminal law or because they primarily address other areas of the law.

Bill No.

LB 164

LB 173

LB 249 LB 475

One-Liner

The tables below provide a general summary of bills and are organized by the general subject of criminal law or criminal procedure that they impact. Some bills are not easily categorized so they may appear in more than category. The summaries are deliberately general to give a quick overview. Also, the form of an introduced bill may be amended subsequent to the preparation of this summary. To review bills, the reader is encouraged to access the Legislature’s website at https:// nebraskalegislature.gov/.

Bills that address Sex Crimes Introducer(s)

Summary of Bill

Prohibit electronic transmis- Hunt, Crawford, sion or online posting of certain Howard, McCollister, photographs or videos, redefine Morfeld, Walz sexual exploitation, and provide for a registrable offense under the Sex Offender Registration Act

This bill addresses “revenge porn”. Among other things, the bill makes it a crime to post or disseminate nude or suggestive photos/videos of others without consent and with the intent to harass. Penalties are a Class I misdemeanor for a first offenses; a Class IV felony for any subsequent offense. Those who are convicted are also subject to the Sex Offender Registration Act.

Change the statute of limita- Howard, Blood tions for civil actions arising from a sexual assault

This bill would eliminate the statute of limitations for civil liability for sexual assault.

Define and redefine terms of Pansing Brooks coercion and without consent and provide for applicability with respect to sexual assault

Create the offense of sexu- Geist, Slama al extortion, redefine sexual exploitation, and provide for a registrable offense under the Sex Offender Registration Act

This bill is commonly referred to as the “affirmative consent bill” or “Yes Means Yes.” The bill makes some changes to the definition of “consent” and “coercion” for sexual assault cases. The bill also provides that “lack of consent” shall be determined by the factfinder considering all of the facts and circumstances of the case.

This bill creates the new crime of “sex extortion.” A person commits the offense of sexual extortion if he or she knowingly, intentionally, or recklessly coerces or entices another person to engage in sexual conduct or sexual behavior; or produces or distributes any image or electronic recording of another person who is depicted in a state of nudity or engaged in an act depicting any sexual conduct; or who provides money or any other form of consideration in order to prevent the dissemination or disclosure of such recordings. Penalties are: if the victim is under 19 and the perpetrator over 19, Class IC felony; if victim over 19, Class II felony; if both victim and perpetrator under 19, Class IIA. Those convicted may be subject to Sex Offender Registration Act.

 THE NEBRASKA LAWYER

MARCH/APRIL 2019

CRIMINAL LAW LEGISLATION LB 478

Prohibit use of consent by a Vargas, Hunt, minor as a defense or miti- Lathrop, Wayne gation of damages or liability in certain civil actions arising from sexual assaults

This bill would prohibit the defenses of consent in civil actions, either to liability or damages, for certain sexual assaults involving children victims.

LB 516

Change provisions relat- Pansing Brooks, ing to child abuse, the Child Linehan, Slama, Protection and Family Safety Bostelman Act, human trafficking, and child welfare services

LB 518

Adopt the Support for Trafficking Survivors Act

This bill addresses human and sex trafficking. The bill broadens child abuse statutes to include placing a child in a position to be sexually exploited is child abuse. The bill also directs and delineates duties for law enforcement in investigating child abuse crimes. Finally, the bill eliminates the statute of limitations for some human trafficking related crimes.

LB 519

Change statutes of limitations Slama, Linehan, for certain sexual and traf- Pansing Brooks, ficking offenses and authorize Bostelman interception of communications relating to such offenses

LB 630

Create the offense of sexual Morfeld extortion and change elements and penalties for sexual offenses

LB 680

Adopt the Uniform Civil DeBoer, Cavanaugh, Remedies for Unauthorized Hunt Disclosure of Intimate Images Act

LB 479

Prohibit sexual abuse of a detainee and change provisions relating to sexual abuse of an inmate or parolee

THE NEBRASKA LAWYER

Wishart, Blood, Cavanaugh, Crawford, DeBoer, Geist, M. Hansen, Howard, Hunt, Kolterman, Lathrop, McCollister, McDonnell, Pansing Brooks, Slama, Vargas, Wayne

This bill creates a new sexual assault offense for a peace officer to subject someone to sexual contact/penetration while such person is detained or under arrest by a law enforcement officer. The bill eliminates a defense of consent. Penalties are a Class IIA felony for sexual penetration, Class IIIA for sexual contact. Those convicted are subject to the Sex Offender Registration Act.

Linehan

Establishes the Office of Support for Trafficking Survivors within DHHS to coordinate and monitor the department’s efforts, other agencies, and funding related to human trafficking. Allocates $450,000 from the General Fund to the Support for Trafficking Survivors Fund for each the next two fiscal years in order to implement the Support for Trafficking Survivors Act and $50,000 in each of the next two years to the Human Trafficking Investigation Assistance Fund.

This bill would extend the statute of limitations to 7 years from the date of the offense or 7 years from victim’s 18th birthday for a variety of human and sex trafficking offenses. The bill would also grant prosecutors specific legislative authority to apply for orders to intercept communications in order to investigate labor trafficking or sex trafficking, labor trafficking of a minor or sex trafficking of a minor. This bill is quite similar to LB 475, but not as broadly written and the proposed penalties to the new provisions not as severe. Penalties are: if the victim is under 19 and the perpetrator over 19, Class IV felony; if victim over 19, Class I misdemeanor; if both victim and perpetrator under 19, Class II misdemeanor. Those convicted may be subject to Sex Offender Registration Act. The bill also amends the elements and the penalties for the existing crime of intrusion, or the recording of another in states of undress or nudity, etc. to criminalize the publishing or dissemination of any intrusive recordings. This bill would provide for a civil remedy and civil damages for “revenge porn.” It is a uniform act.

MARCH/APRIL 2019

CRIMINAL LAW LEGISLATION

LB 39

Bills that address Motor Vehicle and Traffic Crimes

Change provisions relating to Hilkemann, occupant protection system McDonnell enforcement and change certain violations from secondary to primary enforcement

This bill would make a seat belt violation a primary offense.

Authorize a 24/7 sobriety pro- M. Hansen gram permit for operating a motor vehicle as a condition of bail

This bill creates a 24/7 temporary license for 24/7 sobriety programs, which are similar to drug courts for repeat alcohol/DUI offenders.

Change provisions related to Hilkemann, provisional operator's permits, McDonnell LPD and LPE learner's permits, and interactive wireless communication devices

This bill would make the use of a handheld wireless communication device a primary traffic offense for school permit holders or learner permit holders.

Prohibit participation in pretrial diversion programs for certain driving under the influence and driver's license offenses

Morfeld

This bill would allow for defendants to attend a pretrial diversion program for some driving offenses (first offense DUI, refusal to submit to a chemical test, among others) but would prohibit it for other offenses (second offense DUI and others).

Provide for enforcement of handheld wireless communication devices as a primary action

Kowolski

LB 7

Adopt the Counterfeit Airbag Prevention Act

Blood, Hilkemann, Hunt, Slama

LB 44

Chambers, Hunt, Eliminate the death penalty and change provisions relating Cavanaugh to murder in the first degree

LB 40

LB 335

LB 500

LB 579

LB 620

LB 90 LB 91

Authorize issuance of ignition interlock permits to persons who caused serious bodily injury while driving under the influence

Quick

This bill would amend the law to provide courts with the ability to issue ignition interlock permits to those who are convicted of DUI resulting in serious bodily injury. This bill would provide that use of a handheld wireless communication device is a primary offense.

Bills that Amend Punishment or Broaden Offenses

Make post-release supervision optional for Class IV felonies

Wayne

Provide for deferred judgments Wayne by courts as prescribed

This bill would create the new crime of installation of a counterfeit airbag in a vehicle with staggered penalties for use or injury/death caused by such counterfeit airbags. Penalties are Class IV for knowingly installing/having counterfeit airbag; Class III felony for injury caused by the airbag; Class IIA for serious injury; Class II for death. This bill eliminates the death penalty and replaces it with life as penalty for first degree murder. This bill would allow for post-release supervision to be discretionary for Class IV felonies.

This bill allows for a sentence of deferred judgement probation, similar to a suspended sentence, for first-time offenders and for certain categories of offenses. Requires courts to consider deferred judgement for all defendants eligible for probation using specific factors and to make a specific written statement of its reasons for the decision and the facts supporting the decision. Sets deferred judgement probation terms: for a felony, 2 to 5 years; for a misdemeanor, 1 to 2 years, with a possible 1-year extension or early termination.

ď&#x192;&#x2020; THE NEBRASKA LAWYER

MARCH/APRIL 2019

CRIMINAL LAW LEGISLATION LB 131

Change certain provisions Pansing Brooks, relating to minimum sentences DeBoer, Lathrop, Wayne

LB 132

Change penalties for certain felonies committed by persons under nineteen years of age

LB 141

As introduced,* the bill broadens the crime of strangulation to include the “impeding the normal breathing of another person”. The bill also makes it a Class IIA felony if a person commits the crime against a pregnant woman.

LB 143

Provide for the offense of DeBoer, Blood, Bolz, assault by strangulation or suf- Crawford, Dorn, focation Howard, Hunt, Lathrop, McCollister, Morfeld, Pansing Brooks, Quick, Vargas, Wishart

Prohibit throwing or dropping Hughes dangerous instruments on motor vehicles

LB 168

Define offense of child abuse Hunt, McCollister, to include subjecting a child to Morfeld, Vargas, conversion therapy Wishart

This bill would include subjecting a child to “conversion therapy” to the definition of child abuse.

Eliminate certain mandatory minimum penalties

This bill would make Class IC and ID felonies punishable by minimum sentences, not mandatory minimums.

LB 176 LB 198

LB 233

LB 397

LB 484

Change provisions relating to use of a deadly weapon to commit a felony and prohibit use of a facsimile firearm to commit a felony

Prohibit bringing a cell phone into a detention facility

Change provisions relating to tobacco and other nicotine products and tobacco manufacturers

Change provisions relating to assault on certain employees and officer

THE NEBRASKA LAWYER

Pansing Brooks, DeBoer, Howard, Hunt, Quick, Vargas, Wayne

Chambers Halloran, Erdman

Wayne

This bill would re-institute the ⅓ minimum sentence rule for indeterminate sentences, meaning that a minimum sentence for indeterminate sentences could not be more than one-third of the statutory maximum sentence.

This bill would eliminate ‘mandatory’ minimum sentences for offenders under age 19 for Class IC and ID felonies.

*The bill is expected to be amended by the Judiciary Committee. This bill makes it a crime to drop a brick, rock, etc. onto a motor vehicle moving upon a highway. Penalties are a Class III misdemeanor for commission of the crime; Class I misdemeanor if property damage (presumably of any value); Class IV felony if injury to another person; Class IIA felony if serious injury, but sentence cannot be more than 15 years; and Class IIA felony if death. The bill provides for staggered enhancement penalties for subsequent offenses.

NOTE: Senator Hunt has filed a Motion to Withdraw this bill.

This bill would create the crime of use of a facsimile firearm, similar to use of a firearm, as a consecutive crime to companion crimes. The penalty for the new crime is a Class IIA felony. As introduced,* the bill would make it a Class I misdemeanor for any person to bring a cell phone into a jail or Department of Correctional Services facility. *The bill is expected to be amended by the Judiciary Committee.

Briese

This bill would add the form of ‘electronically delivered’ and other forms of tobacco/nicotine to a series of statutes relating to tobacco, some of which provide for criminal sanctions if violated. Existing penalties are not changed.

Lowe

Summarized generally, this bill broadens the protected groups of “peace officer” for purposes of the assault on an officer statutes to rename the term as “public safety officer” which includes probation, parole (an added category, firefighter, employee of detention facility (added), employee of HHS (if defendant mentally ill/dangerous sex offender and HHS works in applicable facility).

MARCH/APRIL 2019

CRIMINAL LAW LEGISLATION LB 496

Increase penalties for tamper- Wayne ing with witnesses, informants, jurors, or physical evidence and change provisions relating to discovery in criminal cases

LB 504

Provide for enhanced penalties and a civil action for crimes committed because of a victim's gender identity or association with a person of a certain gender identity and include strangulation in the offenses eligible for enhancement

Hunt, Cavanaugh, DeBoer, Howard, Pansing Brooks, Vargas, Wayne

LB 539

Redefine abuse under the Adult Protective Services Act

Walz

LB 548

Prohibit restraining animals during certain disasters or weather events

Howard, Wishart

LB 514

Change bad check provisions Morfeld to include obtaining child support credit and spousal support credit

LB 652

Change a penalty for controlled substance possession as prescribed

Wayne

LB 684

Change provisions relating to post-release supervision for Class IV felonies

Lathrop

The bill makes some modification to the criminal procedure discovery statutes: to provide for police reports; broaden definition of ‘statement’ of defendant; to require disclosure of supplemental reports. Also allows certain defendants access to law enforcement reports related to the charges or related to prospective jurors. Amends reciprocal discovery to include information “to which the defendant had access.” Requires notice be given to the other party or their attorney and the court of additional evidence they would have been required to produce for a previous order of discovery at the time of the discovery of the additional material. This bill amends Nebraska’s hate crime law. The bill would add ‘gender identity’ to the listed categories in Section 28-111 for enhancement and would also add strangulation to the listed underlying offenses eligible for hate crime enhancement.

This bill would amend Section 28-611 to include ‘child support credit’ or ‘spousal support credit’ to the listing of items of values that person can obtain by issuing a bad check in violation of Section 28-611.

This bill would broaden the definition of adult abuse prohibited in Section 28-351 to make it a violation regardless if the abuse “impairs a physical function” of the victim or whether the crime is reported. This bill would make it a Class I misdemeanor to restrain, leash, etc. any animal and leave it unattended in any declared weather emergency.

This bill would reduce penalties for possession of small, residual amounts of controlled substances from a Class IV felony to Class I misdemeanor. Defines residue as one tenth of a gram of substances sold by weight; less than one dosage unit of substances not customarily sold by weight; or ashes, resin, or other unusable portion of a substance.

This bill would provide that post-release supervision is only imposed if an offender is sentenced to prison for a Class IV felony. The bill further provides that if an offender violates the terms of a post-release supervision order and it is revoked, the offender must serve up to the entire original term of post-release supervision, and not up to the amount of term that remains.

 THE NEBRASKA LAWYER

MARCH/APRIL 2019

CRIMINAL LAW LEGISLATION

Bills that Amend Weapons Laws

LB 54

Change provisions relating to carrying a concealed weapon

LB 58

Adopt the Extreme Risk Protection Order Act

Morfeld, Hunt

LB 198

Change provisions relating to use of a deadly weapon to commit a felony and prohibit use of a facsimile firearm to commit a felony

Halloran, Erdman

LB 582

Change provisions relating to possession of a stolen firearm

Lowe, Erdman

Brewer, McDonnell

Change certain marijuana penalties

Wayne

LB 110

Adopt the Medical Cannabis Act

Wishart, Chambers, Hansen, Howard, Hunt, Kolowski, McCollister, Morfeld, Pansing Brooks, Quick, Vargas, Walz, Wayne

LB 652

Define and redefine terms Lathrop relating to industrial hemp under the Uniform Controlled Substances Act Change a penalty for controlled substance possession as prescribed

THE NEBRASKA LAWYER

The “Red Flag Law.” This bill would create an “Extreme Risk Protection Order” whereby a petitioner (family member/household member, or law enforcement officer) may petition a court to request that the respondent’s guns be seized. An order may be awarded ex parte, but if not granted, the court shall set a hearing on the request. If an order issues, it is valid for one year but may be renewed. A respondent has 24 hours to surrender firearms to law enforcement. The bill creates misdemeanor penalties for those who falsely file petitions: Class III misdemeanors for first offense; Class II misdemeanor for subsequent offenses. This bill would create the crime of use of a facsimile firearm, similar to use of a firearm, as a consecutive crime to companion crimes. The penalty for the new crime is a Class IIA felony. This bill would make it a Class IIA felony for any person who disposes of a stolen firearm when s/he should have known or has reasonable cause to believe it was stolen, unless it is the person’s intent to return the firearm to its owner. Current law only makes it a Class IIA felony for knowing that it has been or believing that it was stolen.

Bills that Amend Drug Laws

LB 89

LB 457

This bill amends Section 28-1202 to exempt the carrying of a firearm in a case for hunting/sporting purposes from the prohibition of carrying a concealed weapon.

Wayne

This bill would reduce penalties for marijuana possession and delivery of marijuana. For delivery: lowered to Class IV felony if amount is 5 pounds or less, remain Class IIA felony if more than 5 pounds. For possession: lowered to Class I misdemeanor for possession of more than 1 pound less than 5 pounds; Class IV felony for possession of more than 5 pounds; Class III misdemeanor for possession of 3 ounces to 1 pound; and elimination of minimum fines for simple possession. As introduced,* this bill would provide for medical cannabis and decriminalize the possession, use, dispensing of medical marijuana and provide for regulation of medical professionals to prescribe, dispense, and treat. *The bill is expected to be amended by the Judiciary Committee. This bill exempts industrial hemp from the definition of marijuana. This bill would reduce penalties for possession of small, residual amounts of controlled substances from a Class IV felony to Class I misdemeanor. Defines residue as one tenth of a gram of substances sold by weight; less than one dosage unit of substances not customarily sold by weight; or ashes, resin, or other unusable portion of a substance.

MARCH/APRIL 2019

CRIMINAL LAW LEGISLATION LB 657

Adopt the Nebraska Hemp Act

Wayne, Hunt

LB 659

Remove cannabidiol from list of controlled substances

Wayne

LB 83

Provide for restoration of voting rights upon completion of a felony sentence or probation for a felony

Wayne, Hunt, Chambers

Provide for deferred judgments by courts as prescribed

Wayne

LB 213

Provide for setting aside certain infraction, misdemeanor, and felony convictions

McCollister

LB 335

Authorize a 24/7 sobriety program permit for operating a motor vehicle as a condition of bail

M. Hansen

Change provisions relating to voting qualifications for any person convicted of a felony

Cavanaugh, Hunt

LB 91

LB 500

LB 711

Requires the Dept. of Agriculture to create a hemp grower registration program. Requires the department revoke license or registration immediately if violations under the act are found; provides that if license or registration are revoked, all cannabis in that person’s possession must be destroyed by law enforcement. Imposes a Class IV felony, no less than one year in prison, and a $5,000 fine for individuals who send a falsified sample to a testing facility. Imposes fines for violation of the act with $100-500 for a first offense, $500- 1,000 for a second violation within five years, and $1,000-2,000 for a third offense within five years. Eliminates hemp from the definition of marijuana.

This bill would remove cannabidiol (CBD) from the definition of marijuana and the controlled substances list. Provides a definition for cannabidiol, which includes processed cannabis plant extract, oil, or resin with a limited amount of THC.

Bills that Provide for Restoration of Rights/Second Chances

Current law provides that a felon’s right to vote is automatically restored after two years from the completion of the felon’s sentence. This bill would eliminate the twoyear waiting period of restoration of voting rights.

Current law allows for an offender who receives a fine or successfully completes probation to petition the sentencing court to ask for an order setting aside the conviction. This bill would broaden the set aside remedy to allow those who received a sentence of incarceration of less than one year to apply for a set aside after they have completed their sentences. The bill exempts some crimes, including crimes for which a person must register as a sex offender and traffic offenses. This bill creates a 24/7 temporary license for 24/7 sobriety programs, which are similar to drug courts for repeat alcohol/DUI offenders.

Prohibit participation in pretri- Morfeld al diversion programs for certain driving under the influence and driver's license offenses

This bill would allow for defendants to attend diversion for some driving offenses (first offense DUI, refusal to submit to a chemical test, among others) but would prohibit it for other offenses (second offense DUI and others). This bill purports to provide that a person does not lose his or her voting rights when convicted of a felony.

 THE NEBRASKA LAWYER

MARCH/APRIL 2019

CRIMINAL LAW LEGISLATION

LB 92

Bills that Amend Criminal Procedure Wayne

This bill requires the rules of evidence to apply in proceedings to terminate parental rights.

Provide for intervention by a biological parent in certain juvenile proceedings

Wayne

This bill would provide for a means by which a biological parent could intervene in a juvenile proceeding involving abuse/neglect of child.

Create a Death Penalty Defense Standards Advisory Council

Morfeld

Change provisions relating to legal defense of juveniles

Pansing Brooks

LB 240

Change procedures for determining competency to stand trial

M. Hansen

LB 282

Change provisions relating to bail

M. Hansen, Hunt

Provide requirements relating to the use of jailhouse informants

Morfeld

Change provisions relating to sealing of juvenile records

Pansing Brooks

LB 93 LB 166

LB 207 LB 231

LB 352

LB 354

Require application of Nebraska Evidence Rules at parental termination hearings

Prohibit defendant's discovery Hunt, Howard, of victim's actual or perceived Morfeld, Pansing gender or sexual orientation as Brooks, Wishart defense to crime

LB 391

Change duties of peace officers taking juveniles into custody or interrogating juveniles and prohibit use of statements taken in violation of juvenile rights

M. Hansen

LB 392

Change hearsay provisions in the Nebraska Evidence Rules

Lathrop

THE NEBRASKA LAWYER

This bill purports to eliminate the “gay panic defense.” The bill would prohibit the use of a victim’s gender identity or sexual orientation from being used as a defense to a criminal charge.

This bill would direct the Commission on Public Advocacy to implement the ABA standards on death penalty defense. Current law provides that, in counties with 100,000 or more residents, juveniles are appointed counsel at the time a juvenile petition is filed. This bill would require this process in every county.

If a criminal defendant is found to be not competent to stand trial, current law requires that competency must be restored in an inpatient basis at a state-run hospital. This bill would broaden the facilities to allow for HHS to contract with outpatient facilities (except for jails) to restore and maintain competency. This bill would restrict judges’ ability to set a money bond for low-level misdemeanor crimes.

This bill would amend the jailhouse informant disclosure provisions of Section 29-1912 by requiring prosecutors to disclose the history of the informant’s prior testimony/cooperation with law enforcement, among other disclosures. The bill allows for a pretrial hearing to determine credibility of any such informant’s testimony. The bill also has a standard jury instruction regarding informant’s credibility. As introduced,* this bill would broaden the sealed information in juvenile cases to include information protected by HIPAA in the petition; change sealing advisement language; broaden process of sealing records; among other changes. *The bill is expected to be amended by the Judiciary Committee.

This bill would require Miranda advisements to be issued to juveniles in a script that is age appropriate and would require parental notification and advisements to parents when juveniles are questioned by law enforcement. It also provides that if a juvenile requests to speak to a parent, guardian, custodian, relative or attorney before or during a custodial interrogation, all questioning of the juvenile must cease until such person arrives. This bill would amend the hearsay law to allow a witness’s out of court statement as to a suspect’s identity. 44

MARCH/APRIL 2019

CRIMINAL LAW LEGISLATION LB 458

Change provisions relating to child abuse or neglect

Lathrop

LB 496

Increase penalties for tampering with witnesses, informants, jurors, or physical evidence and change provisions relating to discovery in criminal cases

Wayne

LB 502

Adopt the Limited Immigration Inquiry Act

Hunt

LB 646

Eliminate cash bail bonds, appearance bonds, and related provisions

Chambers

THE NEBRASKA LAWYER

The bill broadens child abuse statutes to include placing a child in a position to be sexually exploited is child abuse. The bill also directs and delineates duties for “multidisciplinary investigation teams” to participate and investigate certain types of serious crimes involving child victims. The bill boosts the roles of the child advocacy centers. The bill makes some modification to the criminal procedure discovery statutes: to provide for police reports; broaden definition of ‘statement’ of defendant; to require disclosure of supplemental reports. Also allows certain defendants access to law enforcement reports related to the charges or related to prospective jurors. Amends reciprocal discovery to include information “to which the defendant had access.” Requires notice be given to the other party or their attorney and the court of additional evidence they would have been required to produce for a previous order of discovery at the time of the discovery of the additional material. Generally summarized, this bill would limit peace officers and jailers from inquiring or reporting the immigration status of arrestees or detainees. This bill eliminates money bonds but would provide for courts to set bond conditions and allow for agencies or entities to supervise individuals released on bond.

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MARCH/APRIL 2019

CRIMINAL LAW LEGISLATION

Bills that Amend Laws Relating to Victims’ Rights

LB 43

Adopt the Sexual Assault Survivors' Bill of Rights Act

Bolz, Hunt

LB 58

Adopt the Extreme Risk Protection Order Act

Morfeld, Hunt

LB 125

Include certain intimate partners who are victims of theft within victim rights statutes

Lathrop

LB 532

Change provisions relating to harassment protection orders, sexual assault protection orders, and domestic abuse protection orders

Cavanaugh, Hunt

LB 595

Change Office of Dispute Resolution to Office of Restorative Justice and Dispute Resolution and change powers and duties of the office

Albrecht

THE NEBRASKA LAWYER

This bill provides victims (“survivors”) with various procedural rights relating to reporting sexual assaults, being questioned, being interviewed, etc. by prosecutors/law enforcement/defense attorneys. The bill also creates a testimonial privilege for survivors and their advocates.

The “Red Flag Law.” This bill would create an “Extreme Risk Protection Order” whereby a petitioner (family member/household member, or law enforcement officer) may petition a court to request that the respondent’s guns be seized. An order may be awarded ex parte, but if not granted, the court shall set a hearing on the request. If an order issues, it is valid for one year but may be renewed. A respondent has 24 hours to surrender firearms to law enforcement. The bill creates misdemeanor penalties for those who falsely file petitions: Class III misdemeanors for first offense; Class II misdemeanor for subsequent offenses. Under current law, victims of some serious crimes have some statutory rights, including the right to be notified by the state of plea agreements, the opportunity to submit victim impact statements to courts, etc. This bill would add victims of theft crimes if the victim/perpetrator were intimate partners where the loss is $5000 or more.

This bill seeks to make uniform the application process for victims to obtain a harassment, domestic violence, or sex assault protection order and directs that courts may grant any order regardless of what the petitioner applied for. Also, the bill directs that courts are to set a hearing in the event that the courts do not grant an ex parte order. No changes are made to criminal sanction for violating such orders. The introducer has filed an amendment to the bill which would provide that the orders shall result in respondent’s loss of gun rights if the respondent has actual notice of order. Adds provisions on restorative justice to the Dispute Resolution Act, creating the Restorative Justice and Dispute Resolution Act. Specifies the types of processes that are included under restorative justice, including family group conferences, victim-offender mediations, projects or classes, and other facilitated meetings. Expands the restorative justice processes the court may provide parties in any juvenile case. Adds restorative justice participation to the requirements for juvenile diversion programs. Allows county and city attorneys to use restorative justice processes as part of plea bargains for certain juveniles. Allows courts to order restorative justice processes for certain juveniles.

MARCH/APRIL 2019

plain language

Snap, Crackle, Pop by Mark Cooney

Legal writing is, to some extent, formal. But that doesn’t require heavy starch in every line of every page. And it certainly doesn’t require a monotone or sounding like a machine. If a brief is a bowl of Corn Flakes, we should sprinkle in some Rice Krispies here and there. In other words, within the larger and necessary usual, we should look for opportunities to do something slightly unusual—something to add a little pop to our prose.

make an impact. Look closely when you read literate publications. You’ll see top writers, especially essayists, sprinkling occasional single-sentence paragraphs into their work.

We might do this in any number of ways. Word choice naturally comes to mind. But we can also grab our readers with techniques tied closely to syntax or paragraph structure. We can even add some snap with (dare I say it?) punctuation. Here are two of my favorite tricks for adding some pop to a brief, along with a related editorial tip.

I’ll first illustrate this approach with an excerpt from a nonlegal essay:

The single-sentence effect Somewhere along the line, you may have heard that singlesentence paragraphs are forbidden. It’s not true. But even if it were, savvy writers would occasionally break this nonrule to

In March 2006, I found myself, at 38, divorced, no kids, no home, and alone in a tiny rowing boat in the middle of the Atlantic Ocean. I hadn’t eaten a hot meal in two months. I’d had no human contact for weeks because my satellite phone had stopped working. All four of my oars were broken, patched up with duct tape and splints. I had tendinitis in my shoulders and saltwater sores on my backside. I couldn’t have been happier.1 In this excerpt, the writer first presents a litany of miseries in a traditional multi-sentence paragraph. As readers, we feel the waves of hardship and woe conspiring against her. But then,

Mark Cooney Mark Cooney has taught legal writing for 12 years at Thomas M. Cooley Law School. He is the author of Sketches on Legal Style and has edited for The Scribes Journal of Legal Writing since 2009. Before joining Cooley’s full-time faculty, he was a civil litigator for 10 years, most recently with Collins, Einhorn, Farrell & Ulanoff, P.C., in Southfield. THE NEBRASKA LAWYER

The typical strategy is to first build momentum in one direction with an ordinary multiple-sentence paragraph. The writer then follows with a crisp single-sentence paragraph that marks an abrupt conceptual about-face, halting the reader in his or her mental tracks.



Editors: BRANDY R. JOHNSON, attorney, Governmental Law, LLC, Lincoln P. BRIAN BARTELS, partner, Kutak Rock LLP, Omaha

If you are interested in submitting an article for the “Plain Language” column, please e-mail Amy Prenda at aprenda@nebar.com. 47

MARCH/APRIL 2019

PLAIN LANGUAGE in the short, snappy single-sentence paragraph that follows, the author jolts us to attention with a seemingly incongruous idea: she was happy.

writers relegate it to the mundane. It can do more than precede a list, series, or quotation (yawn). In fact, this little punctuation mark is a firecracker.

By breaking the supposed rule against single-sentence paragraphs, she punctuated her point. She made an impact. It popped.

First, let’s remind ourselves of the general rule for using colons in prose: a complete sentence should normally appear before the colon, and the colon should act as an arrow pointing to the information that follows it.2 Writers sometimes break the complete-sentence rule for style (as I did earlier), but our default mode should be to use a complete sentence before the colon. By the way, the information that follows a colon can be anything at all—a series, a single word, or even another complete sentence.3

Lawyers can do the same. Consider this example, which I’ve lifted from a Detroit lawyer’s appellate brief (with fake party names and liberal editing for brevity): The Smiths were the majority share-holders; Mr. Jones was a one-third share-holder. Like many small businesses, there was little in the way of corporate formality. Most of what the Smiths and Mr. Jones did was based on a handshake and trust. As is often the case in such relationships, the three shareholders did everything by consensus. For 25 years, they were partners, confidants, and intimate friends who shared and shared alike, and they agreed on every business decision that needed to be made. They received equal distributions without regard to who was contributing what to the business.

Here are some before-and-after examples illustrating how colons can add a little pop to your prose: • Original: The sole reason for the bank’s misconduct was greed. • New: There was one reason for the bank’s misconduct: greed. Did you sense the difference? Did you feel the pop in the second version? Let’s try another, and in this one, let’s try a complete sentence after the colon to see how it feels:

Then Mr. Jones got sick. Snap. Besides this passage, do you really need to know anything more about the case? No. You know exactly what happened next. You know that the long, loving relationship disintegrated. You know that the storm came (at least from this party’s perspective) be-cause of Mr. Jones’s sudden illness, which turned his focus from business to recovering his health. The brief’s statement of facts didn’t end with this sentence, of course. But this tiny paragraph—a single sentence with just four words in it—set the tone for the rest of the document. It established the theme of the case. And how. Note that in both of these examples, the second paragraph was not only a single sentence, but a single short sentence. And that’s important for this technique. The pop would be more of a soggy fizzle if that single-sentence paragraph consisted of a long or medium-length sentence. If the single sentence labors, the effect is gone. The power of the short sentence is undeniable. Short is strong, as they say.

Colon power The best writers view punctuation not only as a shield, but also as a sword. Yes, correct punctuation protects us from the ire of critical readers. But when we’re at our best, we can wield punctuation to cut to the core of our readers’ sensibilities. Case in point: the colon. The colon is too often left to skulk beside the punch bowl when it should be boogieing beneath the mirror ball. Too many THE NEBRASKA LAWYER

• Original: The bylaws had a glaring flaw in that they failed to provide for meetings. • New: The bylaws had a glaring flaw: they failed to provide for meetings. There’s still some extra pop there, but not quite as dramatic as in the previous example. Here are a few more. See which versions you prefer: • Original: The single event leading to this lawsuit was the plaintiff’s failure to exercise reasonable care in watching out for dangerous conditions while she was walking. • New: The plaintiff fell for one reason: she didn’t watch where she was going. Did you gasp at the contraction? (Did you notice it?) Have I committed legal-writing heresy? As usual, I’m in Bryan Garner’s camp: occasional, strategic contractions are appropriate in legal writing—especially courtbriefs, which involve storytelling and persuasion.4 Here, the contraction tightened up the prose just a bit, maximizing the impact. Here’s another: • Original: The fire escape was the only way out of the building. • New: There was just one way out: the fire escape. Some writers love em-dashes. I do, too. They set off words and other grammatical elements with undeniable flair. And they too can add a little pop. But sometimes the situation just begs MARCH/APRIL 2019

PLAIN LANGUAGE for a colon. And here’s the bottom line: if you find yourself agonizing over whether to use a colon or an em-dash to add some pop to your prose, then you’re in a good place. That struggle means that you’re doing the type of editorial thinking worthy of a professional writer. And that’s what we lawyers are, aren’t we?

The chocolate-milkshake test Now, before I unleash a horde of litigators drunk on colons and singlesentence paragraphs, a word of caution. Whenever we use one of these devices, we should apply the chocolate-milkshake test during our final edits. I suppose I should elaborate. Nothing is more scrumptious and satisfying than that rare chocolate milkshake. Funny thing, though. As soon as we finish it, the last thing on earth we’d want to drink, or perhaps even see, is another chocolate milkshake. The point is this: the writing techniques described above will taste delicious to readers occasionally. But if we go to them too frequently, our readers will find them much less satisfying—too rich. The crisp pop we seek will become distracting noise. We want our readers to notice these techniques yet not notice them. We want each pop moment to feel like the first chocolate milkshake. So judicious restraint is the name of the game. But with a sparing, strategic approach, these techniques will make your brief just a bit crisper and more lively—and a bit more memorable— than the rest in the pile.

Endnotes 1 Savage,

My Transoceanic Midlife Crisis, Newsweek, March 20, 2011.

2 Enquist

3 4

& Currie Oates, Just Writing: Grammar, Punctuation, and Style for the Legal Writer (Aspen Publishers, 2d ed, 2005), p 256; Garner, The Redbook: A Manual on Legal Style (West Publishing, 3d ed, 2013), p 17. Garner, n 2 supra at 17–18. Garner, n 2 supra at 57.

THE NEBRASKA LAWYER

MARCH/APRIL 2019

wellness brief

Depression—The Quiet Threat By Chris Aupperle, NLAP Director

In this column, I have written about some of the challenges facing legal professionals and the resources we have to overcome those challenges. In my experience serving NLAP, it has become clear that depression, if left undiagnosed or untreated, can have some of the most significant impacts on a lawyer, both professionally and personally. Depression is a leading mental health disorder among lawyers. In fact, recent studies indicate that approximately 1 in 4 lawyers are at risk for depression.1 Some of the other common conditions affecting lawyers, like alcohol dependence, have outward signs that we can recognize (if we choose to acknowledge what we are seeing)—a lawyer may get arrested, may be drinking at the office or before coming to work, and the lawyer’s outward behavior may indicate intoxication while working in the office or even appearing in court. With depression, the signs may be subtle and often we do not understand what behavior should raise a concern.

in mental health diagnosis. While your family physician may have the appropriate experience to diagnose depression, you might benefit from requesting a referral to a psychiatrist who has specialized training as it relates to treating depression.

Symptoms Individuals suffering from depression commonly exhibit some or all the symptoms listed below, and those symptoms usually persist for more than two-weeks.5 If you or someone you know are experiencing these symptoms, it’s probably a good time to talk to your doctor to determine if depression is a possible cause. Common Symptoms of Depression • Feelings of sadness, emptiness or hopelessness • Angry outbursts, irritability or frustration, even over small matters

Depression, if properly diagnosed and treated, does not have to impact a lawyer’s ability to function competently or achieve professional success. Conversely, I have seen a number of cases were untreated depression has derailed a lawyer’s career. A recent study found that nearly two-thirds of lawyers who acknowledged struggles with depression were not seeking treatment. Lawyers frequently cited the fear that a depression diagnosis would be perceived negatively by employers, colleagues, clients and the courts as justification for not seeking treatment.2

• Loss of interest in normal activities, such as sex, hobbies or sports • Sleep disturbances, including insomnia or sleeping too much • Tiredness and lack of energy • Reduced appetite and weight loss or weight gain • Anxiety, agitation or restlessness • Slowed thinking, speaking or body movements

What Causes Depression? We need to acknowledge that depression is a mental illness and is not just a feeling of sadness, having the blues or a lack of motivation to change our lives. Researchers believe that there are several possible factors leading to depression—brain chemistry, genetic vulnerability, stressful life events, medications and physical illness. Psychiatrists believe that several of these forces interact to cause depression.3 Depression is typically diagnosed through a physical examination, blood tests, and a psychiatric evaluation.4 Depression shares symptoms with other mental illnesses, so it is important to seek a diagnosis from a medical professional experienced

Nebraska Lawyers Assistance Program

• Feelings of worthlessness or guilt, fixating on past failures • Trouble thinking, concentrating, making decisions • Frequent or recurrent thoughts of death or suicidal thoughts • Unexplained physical problems, such as back pain or headaches

A Treatable Condition I can’t stress enough that depression is treatable. Often a combination of medication and therapy provide the best outcomes for patients suffering from depression.6 New diagnosis

(888) 584-6527

Confidential Help for all Nebraska Lawyers, Judges and Law Students

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MARCH/APRIL 2019

WELLNESS BRIEF methods which tailor treatment to the individual and improved medications with fewer side effects are available. The reality is that untreated depression will often get worse or reoccur, and typically does not resolve without appropriate treatment. While I have seen depression’s negative effects on the lives of our Nebraska lawyers, I have also seen many success stories. If you don’t know where to get a diagnosis or want a second opinion, contact NLAP and we can refer you to qualified medical professionals.

open dialogue about mental health, including conditions like depression, will benefit individuals, legal employers and our profession. If you have questions or want to learn more, please contact the Nebraska Lawyers Assistance Program (NLAP) at (402) 957-8201 or caupperle@nebar.com.

Endnotes 1

Changing Attitudes Finally, I believe that attitudes toward mental health and mental illness are evolving for the positive in the legal profession. Not everyone is on board yet, but we are moving in the right direction. In the last couple of years, several prominent lawyers have come forward to describe their experience with depression and their success in treating the condition. The misguided advice that if you are struggling, you just need to put your head down and work harder is slowly becoming a thing of the past. A better understanding of mental illness and a willingness to have

Krill, Patrick R. JD, LLM; Johnson, Ryan MA; Albert, Linda MSSW, The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys, Journal of Addiction Medicine: January/February 2016 - Volume 10 - Issue 1 - p 46–52.

2 Id. 3

Harvard Health Publishing, What Causes Depression. Retrieved from https://www.health.harvard.edu/mind-and-mood/whatcauses-depression on February 8, 2019.

4 Mayo

Clinic Staff, Depression (major depressive disorder). Retrieved from https://www.mayoclinic.org/diseases-conditions/depression/diagnosis-treatment/drc-20356013 on February 6, 2019. Id.

6 National

Alliance on Mental Health (NAMI) retrieved from https://www.nami.org/Learn-More/Mental-HealthConditions/Depression/Treatment on February 9, 2019.

Wish you could take a recess? If you are doubting your decision to join the legal profession, the Nebraska Lawyers Assistance Program (NLAP) can help. We understand the competition, constant stress, and high expectations you face as a lawyer. Dealing with these demands and other issues can be overwhelming. The Nebraska Lawyers Assistance Program offers free and confidential support, because sometimes, the most difficult trials happen outside the courtroom.

Nebraska Lawyers Assistance Program

Helping you win life’s trials. 24 hours • 7days (888) 584-NLAP (6527)

THE NEBRASKA LAWYER

MARCH/APRIL 2019

2019 NSBA Election Notices Nominations for NSBA President-Elect Designate

The nominee for President-Elect Designate for 2021-2022 will be selected from the members who reside in Lancaster County. If you are interested in serving, please send your name and a short statement of interest (300 words) to Liz Neeley, NSBA Executive Director, at lneeley@nebar.com, no later than March 22, 2019. The Executive Council will meet at the end of March to nominate one individual for the position of President-Elect Designate. When the nominee has been selected by the Executive Council, an announcement will be disseminated to all active members of the NSBA. Any member from the designated counties may submit a petition (signed by 25 active bar members) to run against the nominee of the Executive Council. If no petition is filed within 30 days of the announcement of the nominee, he or she is declared as President-Elect Designate for 2021-2022. If a petition is filed, electronic ballots will be sent. This is a four-year term. The PresidentElect Designate automatically succeeds to the position of President-Elect, and then President. They then serve on the Executive Council for a year as Past-President.

NSBA Executive Council—2nd and 3rd Districts

Notifications and petitions will be sent to the 2nd and 3rd Supreme Court Districts on April 26, 2019, for the Executive Council vacancies. The deadline for returning a petition will be May 31, 2019. Executive Council terms are four years.

House of Delegates—Odd Numbered Districts (1, 3, 5 ,7 ,9, and 11)

Notifications and petitions will be sent to the odd numbered District Court Districts on April 26, 2019, for elections for the NSBA House of Delegates. The deadline for returning a petition will be May 31, 2019. House of Delegates terms are four years.

Electronic Elections

In October of 2016, the NSBA’s House of Delegates amended the NSBA By-Laws to allow for electronic elections. The 2019 elections for President-Elect-Designate, Executive Council and House of Delegates will be conducted electronically. Electronic ballots will be disseminated on July 2, 2019.

Join

NSBA’s Professional Networking Group • 2 groups – Omaha and Lincoln • Be randomly matched with lawyers for coffee or lunch at your mutual convenience 6 times during the year • An enjoyable way to build your professional network and hone your networking skills More details at www.nebar.com/NetWORKS THE NEBRASKA LAWYER

MARCH/APRIL 2019

speaking of ethics

Criminal Law Practice As A Team Concept by Mark Weber, Nebraska Supreme Court Counsel for Discipline

“In recognizing the humanity of our fellow beings, we pay ourselves the highest tribute.” - Thurgood Marshall, U.S. Supreme Court Justice I recently was asked to speak at a gathering of fine and dedicated attorneys who spend a great deal of their professional lives working within the juvenile court system. The organizer of the event had kindly prepared a list of issues which she wanted me to address and which she thought would be of interest to the attendees. Several of these issues revolved around the relationship—often strained—between the prosecutors and court-appointed counsel. Many were issues which I faced as a criminal defense attorney back in the days I was engaged in private practice, like

Mark A. Weber

I summarized my experiences combined with ethical advice based loosely upon the following: I found the criminal justice system basically self-correcting. While certainly not condoning misconduct, I concluded that even rare and egregious prosecutorial misconduct is at the first instance caught by the trial court, and even if not, will eventually be caught and corrective measures taken by the Nebraska Court of Appeals. I advised that in my experience at Discipline I have received many inquiries and referrals from the Judiciary regarding attorneys (on both sides) who failed to live up to ethical expectations. It requires mention that this article is not by any means intended to be an indictment of just prosecutors and criminal defense attorneys. In truth, many of the same issues regarding attorney misconduct observed by the judiciary and which are referred to me by them also arise in general civil practice.

Mark A. Weber has served as Nebraska Counsel for Discipline since September 2014. Prior to his role as Counsel for Discipline, Mark was a trial attorney for nearly 30 years, focusing his practice on personal injury, criminal cases, insurance litigation, and commercial work. Mark served as a member of the Nebraska Supreme Court Advisory Committee (which advises on attorney ethics issues) from 2004-14, and chaired the committee from 2007-14. As Counsel for Discipline, Weber directs the operations of the regulation and discipline functions of the Nebraska lawyer disciplinary system under the supervision of the Nebraska Supreme Court. He is a graduate of Creighton School of Law (1987). THE NEBRASKA LAWYER

withholding of evidence, failure to agree on chain of custody, and being reckless with the truth. I tried as best as I could to bring my Counsel for Discipline hat and my criminal defense experience to the table in order to provide the best advice. I could sense from the questions asked that there was a palpable tension in the air regarding the on-going relationships between prosecutor and defense counsel. Of course I had experienced the same in some (but certainly not all) of my cases.

In fact, there is such a growing concern about attorney misconduct occurring before the courts in general that I have been asked to devote my time during the upcoming 2019 Summer Tours of Greater Nebraska (Parts I & II) addressing such issues as: (1) Candor to the Tribunal; (2) Lack of Respect to the Court; (3) Outright Sexism to Judges; (4) Discovery-related Misconduct; (5) Trial Misconduct; and (6) Lack of Civility.

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SPEAKING OF ETHICS I cannot believe that I am being asked to address the above. Do we really need to talk about whether any of these issues is inappropriate? Sadly, I used to believe that we as Lawyers were above all this. Nonetheless, as with society in general our Profession has followed suit into the depths of incivility. Granted, some of this was brought on by the expectations of our clients. Perhaps this is most apparent in the context of domestic relations. Again in fairness, the problems associated with Candor to the Tribunal for example are not owned by any one specialty in the law. It has been seen, reported and prosecuted in criminal, general civil, domestic, and even probate contexts. But I digress. Back to the Juvenile Law Conference, in addition to saying that I found the system primarily selfcorrecting with regard to attorney misconduct, I summarized my presentation with my philosophy about the Criminal Justice System and our roles as attorneys, judges, and others associated with all phases of the prosecution of a case. Perhaps it’s the former coach in me (a story for another day) but I think of Criminal Law practice as a Team Concept. It goes something like this. Prosecutors, Defense Counsel, Judges, Law Enforcement, Lay Witnesses, and Jurors are actually on one team with a common goal—Justice. If we all work together and follow the rules (Criminal Procedure, Discovery, and Professional Conduct), justice will be served. Guilt or Innocence is irrelevant in this thinking. Prosecutors are not absorbed with a “Win at All Cost” mentality, and likewise, Defense Counsel provides the most vigorous defense regardless of guilt or innocence. Granted, this is easier said than done. I can certainly sympathize with the prosecutor who knows she has a weak case, perhaps due to witness unavailability for a myriad of reasons, in spite of an overwhelming conviction of the guilt of the accused. Likewise, to quote LA Criminal Defense Counsel Michael Connelly, “There is no client as scary as an innocent man.”

Attendees at the Juvenile Law Conference were encouraged to write questions/comments down as I presented my thoughts about the Criminal Law process. To put it generously, there was less than unanimous and wholehearted reception of Weber’s Philosophy of Criminal Law. In fact, one of the cards submitted to me for question or comment went something like this: “Are you kidding me? Prosecutors and Defense Attorneys have totally different Jobs. It’s IMPOSSIBLE for us to work together!!!” (paraphrased by me). Okay, perhaps there is a lonely “I” in TEAM after all. I conceded to the group that perhaps I stand alone about The Team Concept. In fact, I have had prosecutors tell me that I was being “too nice” during a court hearing. Another chastised me for apologizing in open court about making an error in the case. She said that this would only encourage my client to appeal. If the worst thing that is said about me as a trial lawyer was that I was “too nice,” I guess that would not be so bad… When I chose the above quote from Justice Marshall, I didn’t just do so because my article’s deadline just happens to land during Black History Month. It is because I appeal to each of us to be a little nicer to each other, personally and professionally. If we stop to reflect upon our common shared humanity, maybe we could take the edge off a bit in our daily discourse. We have sides in the case to represent. We both have offices to run and associated obligations with the business of law. We need to make money. We have families and loved ones and staff who rely upon us in varying degrees to be successful. A little civility goes a long way. And, one more thing to your friends who practice criminal defense for a living don’t say, “Hey, you’re a Criminal Attorney, Right?” No. They are Criminal Defense Attorneys. Good and dedicated attorneys committed to justice. That’s just what they do. So, continue to be ethical out there, and also—Be Nice.

UPDATED STATUTES OF LIMITATIONS REFERENCE JUST PUBLISHED The Nebraska Revised Statutes include several thousand time limits on a myriad of issues. They are collected into the Nebraska Statutes of Limitations Reference (2019), which has just been updated by the Nebraska State Bar Association. Each statute is briefly summarized, followed by the time limit, and then by the event from which the time limit is calculated. The reference is current though December 31, 2018. The reference is available through the online NSBA Store for $40 in electronic form, and $60 for a print manual (dues-member discounted pricing). Electronic use is strongly encouraged to take advantage of search functions.

THE NEBRASKA LAWYER

MARCH/APRIL 2019

court news

State of the Judiciary 2019 By Chief Justice Michael G. Heavican

Chief Justice Mike Heavican delivered his twelfth annual State of the Judiciary address to the Nebraska Legislature on January 19, 2019, in the Legislative Chamber. Mr. President, Mr. Speaker, Members of the Legislature, fellow Justices of the Nebraska Supreme Court, and fellow Nebraskans. Thanks to you, the members of this legislative body, and especially Speaker Scheer, for inviting me to address you again this morning. As always, it is an honor for me to report on Judicial Branch accomplishments and to discuss the future of the courts and probation. First, I will introduce my fellow Justices. To my immediate right is Justice Lindsey Miller-Lerman of Omaha; to Justice Miller-Lerman’s right is Justice Stephanie Stacy of Lincoln; and to Justice Stacy’s right is Justice Jonathan Papik of Omaha. To my immediate left is Justice William Cassel of O’Neill; to his left is Justice Jeff Funke of Nebraska City; and to Justice Funke’s left is Justice John Freudenberg of Rushville. I would like to take this opportunity to welcome the newest members of our court: Jonathan Papik joined the Court this past March; John Freudenberg joined us in July.

Introduction I will speak with you today about justice reinvestment, the pivotal role the courts play in that process, and the dynamic initiatives this Court has implemented to increase access to our courts and to justice. I will begin with justice reinvestment. In 2015, this Legislature passed LB 605, launching Nebraska’s justice reinvestment efforts. All three branches of government have been involved with this effort, which seeks generally to channel most low-grade felons to community corrections rather than incarceration in our medium or maximum detention facilities. THE NEBRASKA LAWYER

In Nebraska, community corrections means ‘Probation.’ And in Nebraska, Probation -- both adult and juvenile -- has always been part of the judiciary. In Nebraska, therefore, Probation and the judiciary have an essential role in justice reinvestment. We are the front door to Nebraska’s correctional institutions; and in our role with reentry supervision, we are also the back door of those correctional institutions.

Problem-Solving Courts First, the front door. I have spoken to you in the past about our judge-initiated problem-solving courts. Problem-solving courts are intensive, judge-supervised treatment courts for criminal defendants who would otherwise be incarcerated. Most of Nebraska’s problem-solving courts are drug courts. Drug courts include substance abuse treatment, drug testing, job training, support group meetings, and other appropriate rehabilitative efforts, coupled with frequent judicial oversight hearings. In 2018, our problem-solving courts served 1,397 individuals. That represents a 247% increase in the number of participants served since 2008, a 200% growth in the total number of such courts, and a 156% growth in the number of judges participating in problem-solving courts. These courts now exist in all of Nebraska’s 12 judicial districts. Many, if not most, of the 1,397 individuals served in our problem-solving courts in 2018 would otherwise be in Nebraska’s

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COURT NEWS prison system. It costs approximately $38,627 taxpayer dollars per year to warehouse a prisoner in our State’s prison system. It costs $2,865 taxpayer dollars per year to fund a defendant’s participation in our problem-solving courts. Hence, problemsolving courts are a key part of justice reinvestment in Nebraska. Thanks to all of our trial court judges who volunteer with no extra pay or, in some cases, no relief from their existing assigned caseload for such service. Both our trial court judges and members of the Supreme Court work diligently to ensure that our problem-solving courts are of the highest quality, use appropriate and uniform standards, and are accountable for their performance. This Court’s Problem-Solving Courts Committee plays a key role in ensuring the success of problem-solving courts, and has developed best practice standards for all existing courts. Much thanks goes to District Court Judge Jim Doyle of Lexington for his leadership with the Supreme Court’s Problem-Solving Courts Committee. The Committee has developed best-practice standards for all our problem-solving courts and also works to confirm that our problem-solving court judges have proper training and access to the latest research available to ensure successful outcomes for problem-solving court participants. A new, upgraded training program will be implemented in 2019. Last year in this address I spoke to you about our State’s two newly-implemented Veterans Treatment Courts. I can report to you today that both of those courts are functioning efficiently and professionally in conjunction with veteran mentors, the assistance of the Veteran’s Administration, and dozens of other supporters. Their goal is to give Nebraska’s military veterans, who may have committed a nonviolent felony, a chance to participate in a problem-solving court and therefore a chance at rehabilitation rather than incarceration. The first Veterans Treatment Court graduation was held June 27, 2018; the next graduation will be held in Douglas County later this month. Thanks especially to District Court Judge John Colborn, and the late District Court Judge Mark Ashford, for their pioneering work in this area. In a moment I will speak to you about our efforts with re-entry courts. But first, a reality check in regard to problemsolving courts as part of justice reinvestment in Nebraska. During this past budget year, we completely exhausted our allocated resources for problem-solving courts and had to move some Probation dollars to fund those initiatives. Testimony to this body’s Judiciary Committee has indicated that Nebraska’s jails are heavily impacted by incarcerated individuals who have mental illnesses that greatly influenced their criminal behavior. Our local partners in county government are interested in establishing mental health courts to help alleviate that problem. THE NEBRASKA LAWYER

We have stopped all efforts to expand problem-solving courts into the area of mental health courts, however, because we have no extra resources. Nor do we have the necessary number of judges available in Douglas County and our other urban counties for further problem-solving court expansion. That said, I wish to thank this body, particularly Senators McCollister, Geist, and Williams, for their past support of problem-solving courts.

Adult Probation The second check on entry to Nebraska’s prison system is, of course, adult probation. There are 15,649 adults on probation in Nebraska as I speak. It is Probation that diverts most offenders otherwise bound for incarceration; it is Probation that most releases pressure on the correctional system; it is Probation that is the lynchpin to justice reinvestment in Nebraska; and it is Probation that fostered the necessary culture to implement LB 605. Further, it is Probation that has consistently achieved all of the expansion needed to meet Nebraska’s justice reinvestment goals; it is Probation that has devised innovative programs for offender rehabilitation; it is Probation that consistently measures offender recidivism rates so that quality programs can be replicated and less productive programs can be reformed; and it is Probation that has successfully reduced offender recidivism. Adult probation has experienced significant changes since the passage of LB 605 in 2015. At the end of fiscal year 2018, the number of individuals placed on felony probation, including post-release supervision, was up by 39%. This is 12% above the Council of State Government’s 2015 prediction of where Probation would be 3 years into justice reinvestment.

Post-Release Supervision Earlier in this speech, I suggested that Probation was not only the front door to Nebraska’s prison system, but also the back door. We are the back door because adult probation implements post-release supervision, sometimes called re-entry supervision. Low-grade felons released from our prisons and jails are supervised by adult probation. The average number of individuals released from prison and local jails under Probation supervision in fiscal year 2016 was 23 per month. That number reached 87 per month in fiscal year 2017, and grew to 139 per month during the 2018 fiscal year. In the 2019 fiscal year, the number of individuals released to Probation’s supervision is projected to be 153 per month. To handle that large increase in participants, Probation set up re-entry teams to work with incarcerated felons before release. Our adult probation system has expanded and sharpened the programs available for re-entering felons, including transitional housing and drug treatment programs. MARCH/APRIL 2019

COURT NEWS We have utilized our day and evening reporting centers across the State in that process, and measure the recidivism rates of reentering felons using the University of NebraskaLincolnâ&#x20AC;&#x2122;s Law and Psychology program. In 2018, we established two re-entry courts in Nebraska. Those courts apply the same intensive supervision programs used in other problem-solving courts. The goal of re-entry courts is to assure that felons leaving the prison system have a successful transition to become productive members of their local communities. Thanks to District Court Judge Stefanie Martinez of Sarpy County and Retired District Court Judge Teresa Luther of Hall County for being re-entry court leaders.

Juvenile Justice I will now address juvenile justice. A comprehensive justice reinvestment project must include a juvenile justice component, the philosophy, culture, and goals of which are compatible with -- and supportive of -- adult justice reinvestment. In Nebraska, every young person who has successfully completed juvenile justice supervision is potentially one less person incarcerated in our adult prison system.

Like adult supervision, Nebraskaâ&#x20AC;&#x2122;s juvenile justice supervision is tasked to the Administrative Office of Probation. Juvenile justice in Nebraska shares the same philosophy, culture, and rehabilitative goals of adult justice reinvestment. Juvenile justice is also sharing in the positive trends and successes of adult justice reinvestment. And I remind you that we can track every dollar we spend on every young person in the juvenile justice system, resulting in significant budget savings in this most recent biennium. This past year we launched a special effort to address the lack of juvenile justice options available in greater Nebraska. Three priorities were established: 1) more local foster care; 2) more in-home services; and 3) more alternatives to detention, including timely access to therapists and evaluations. We have expedited family or kinship placement assessments and payment to those family providers, we have established and recruited emergency foster care homes, and we have continued expansion efforts related to in-home services. Probation is working with the Department of Health and Human Services, private providers, the Department of Education, and other interested community members to increase those service options. I would especially like to thank

ď&#x192;&#x2020;

Nebraska Supreme Court Justices: Back row, L-R: Hon. Jonathan J. Papik, Hon. Stephanie F. Stacy, Hon. Jeffrey J. Funke, Hon. John R. Freudenberg; Front row, L-R: Hon. Lindsey Miller-Lerman, Chief Justice Michael G. Heavican, Hon. William B. Cassel. THE NEBRASKA LAWYER

MARCH/APRIL 2019

COURT NEWS County Court Judge Randin Roland of Sidney for taking a leadership role in this effort. We have also established a statewide juvenile detention alternatives working group. This working group is completing a detailed analysis of alternatives to detention for mentally ill juveniles. A special thanks goes to Senator Tony Vargas and State Court Administrator Corey Steel for co-chairing this important state-wide work. This summer, other members of the Supreme Court and I hosted a Tristate Juvenile Justice Conference in South Sioux City. Since a number of juvenile justice cases in the South Sioux City area overlap state boundaries, we met with members of the Iowa and South Dakota Supreme Courts to discuss improving resources and the process utilized for youth involved in our juvenile justice systems. As a result of this tri-state meeting, representatives from each state proposed an easier process for tracking and providing supervision for probationers that live across state lines. Important changes were made in the way all three states share information and transfer custody in such cases. Both processes have been expedited. Juvenile Probation continually seeks to improve supervision and services for youth and families by embracing the strategies of national research, evidence-based practices, and adolescent development. This past year, the Robert F. Kennedy National Resource Center for Juvenile Justice completed a comprehensive review of the juvenile probation system’s operations. The final report articulated the strong foundation Probation is working from and offered a set of recommendations centered on collaborative leadership opportunities to further strengthen that work. I now call your attention to two other promising initiatives in the juvenile justice area. First, this year the Administrative Office of Probation and the Department of Health and Human Services rolled out a cooperative policy related to serving youth who are involved in both child welfare and juvenile justice. Nearly 900 Health and Human Services and Probation employees were trained on how to better serve those young people.

Restorative Justice Second, I also call your attention to our restorative justice efforts for juvenile offenders. These efforts are being offered in conjunction with the Judicial Branch’s Office of Dispute Resolution and Nebraska’s 6 regional mediation centers. This model is called Victim Youth Conferencing. Victim Youth Conferencing involves the convening of a meeting, conducted by a trained professional, between low-risk delinquents and the victim(s) of their wrong-doing. During this process, emphasis is placed on reparations for the victim(s), THE NEBRASKA LAWYER

and appropriate rehabilitation for juvenile offenders. Use of the Victim Youth Conferencing program considerably reduces the odds of recidivism of juveniles and the odds of future involvement in the adult criminal system. We received a grant of over $1 million for a 3-year period to expand juvenile restorative justice services to interested counties statewide. Some of the early participating counties include Buffalo, Dodge, Douglas, Lancaster, Pawnee, Red Willow, Sarpy, and Scotts Bluff. The Victim Youth Conferencing program has been evaluated by outside academics. These academics noted the successful rate of reparations to victims and the positive responses of both victims and juvenile participants.

New State Probation Administrator Before I address other topics, this is an appropriate time in my presentation to introduce Deb Minardi. I am pleased to welcome Deb as Nebraska’s newest Probation Administrator. Deb Minardi has worked for Nebraska’s Probation system for 39 years. She is a leader in the movement to transform Nebraska Probation into the era of pro-active programming and evidence-based practices. Deb now has supervisory responsibility for both adult and juvenile probation services.

Community Engagement Grant For Native American Population I now turn to various access to justice, civic education, and outreach programs this Court actively promotes. I will begin with our new outreach efforts with Nebraska’s four recognized Native American Tribes. This past summer, the Judicial Branch hosted a roundtable discussion in South Sioux City. Participants included representatives from the four Nebraska-based Tribes, our federal courts, the U.S. Attorney’s Office, both Federal and State Departments of Health and Human Services, the Nebraska Department of Education, the Nebraska Commission on Indian Affairs, and other interested parties, including Senators Joni Albrecht and Tom Brewer. The purpose of this roundtable was to discuss disparities for Native American populations in our courts and to improve the relationships of tribal, state, and federal courts. In an effort to build on the discussions from this meeting, we were selected by the National Center for State Courts as one of 6 sites nationally to participate in a project involving Community Engagement in the State Courts. To effectuate this participation, the Consortium of Tribal, State, and Federal Courts was created and is co-chaired by District Court Judge Andrea Miller of Scotts Bluff County and Chief Judge Patrick Runge of the Winnebago Tribal Court and Ponca Tribal Court. The Consortium is housed within the Nebraska Supreme Court’s Access to Justice Commission. MARCH/APRIL 2019

COURT NEWS During this project, the Consortium will work with the National Center for State Courts using public engagement models to: 1. Improve Native Americans’ public trust and confidence in the State and Federal courts; Identify ways to address disparate treatment of 2. Native Americans in the State court system; 3. Improve judicial awareness and training as to the special problems faced by Native American populations in Nebraska; and

Annually, I also report to you on our courts’ access to justice language program. This year, the Judicial Branch utilized 117 independent interpreters, collectively speaking 30 different languages, to translate court proceedings. Some of the languages interpreted include Sudanese, Arabic, Somali, Hmong, Tagalog, Karen, Nepali, and Nuer. Spanish is, of course, the most frequently translated language in the courts. We have permanent Spanish language supervisors available throughout the State.

Technology

4. Improve the state and federal courts’ confidence in, and understanding of, the tribal court system.

Office of Public Guardian I turn now to the work of the Office of Public Guardian and access to the courts for court-protected wards. Since its inception in 2015, the Office of Public Guardian, housed in the Judicial Branch, has served 574 incapacitated persons. As of November 1, 2018, that office had 259 open cases. These 259 individuals collectively have over 700 identified categories of need involving complex issues such as cognitive impairment, mental health diagnoses, developmental disabilities, substance and alcohol abuse, medical conditions, history of criminal justice involvement, and/or history of Mental Health Board commitments. The Public Guardianship Act also requires the Office of Public Guardian to maintain training programs for private guardians, successor guardians, and interested parties to ensure the success of all guardians and conservators. Therefore, in January of 2016 the Office of Public Guardian began providing the education and certification required for newly-appointed private guardians and conservators. Between December 1, 2017, and October 31, 2018, 102 guardian and conservator education classes were held at 25 sites throughout the State. These classes trained 1,294 new guardians and conservators. I invite each of you to go over the recently released annual report of the Office of Public Guardian. The statistics cited and human-interest stories told make for a sobering read. An editorial in the January 13, 2019, edition of the Omaha World Herald points out that the need for the Office of Public Guardian is likely to increase in the next 10 years as the population of Nebraska’s citizens over the age of 65 increases by 250,000 people. I quote from that editorial: The Office of Public Guardian is to be commended for the services it’s providing to such Nebraskans – the need is great. This initiative deserves continued support, buttressed by a strengthening of Nebraska’s medical and behavioral health communities. THE NEBRASKA LAWYER

Access to Justice – Language Access

Each year I also speak to you about implementation of the Court’s strategic plan for technology. Technology advancements continue to allow Nebraskans to access their courts from anywhere, at any time. In 2018, 770,000 documents were filed electronically in county and district courts, while another 4,800 were filed electronically in the appellate courts. Online trial court records were searched nearly 7.5 million times, while online appellate records were searched approximately 10,000 times. The judicial branch electronically collected over $9 million in citation payments, $9.5 million in payments for civil and criminal judgments, and $4.7 million for eFiled pleadings. While many other state judiciaries have found it necessary to purchase new, multi-million dollar systems in order to offer the kinds of tools necessary for modern case management and service to the public, we built our case management system the Nebraska way: in-house, on budget, and on time. Our technology remains focused on creating new and better online services to modernize access to the courts and meet the needs of today’s judges, attorneys, and the public. Today, nearly one-half of all court transactions take place online. Our new and better online services include increased interaction of probation case management with judicial case management. Probation case management is getting a new mobile interface that will allow probation officers to record interactions with probationers from any location. This will reduce time spent by officers performing data entry tasks and thus free up more time to engage with clients. The Judicial Branch has also invested in a powerful set of reporting tools that facilitate the best allocation of probation resources and the best outcomes for clients. For example, dashboards help probation chiefs manage caseloads and provide administration with a clear window into probation population trends across the state. Technological innovations are essential tools, allowing us to clearly measure the impact of justice reinvestment in our adult and juvenile justice reform efforts.

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COURT NEWS The Judicial Branch is also a partner to other State government entities, including the Department of Motor Vehicles and the State Patrol, in bringing better broadband connectivity to local county courthouses and criminal justice centers around the State. A recent investment in this partnership will increase connectivity in over 30 different counties. These investments ensure the ability of the trial courts to take advantage of modern technology, such as video-conferencing, to keep other costs down and bring faster service to the public.

Court Outreach This Court believes that access to justice includes outreach to Nebraska’s schools. The Supreme Court continues to hold oral arguments each spring at Nebraska’s two law colleges. In addition to and in conjunction with its arguments at Creighton University School of Law, the Supreme Court also holds oral arguments at an Omaha area high school each year. In 2018, oral arguments were held at Millard North; in 2019, the Supreme Court is scheduled to hear oral arguments at Boys Town. We also hold oral arguments at various Nebraska high schools in connection with Law Day, celebrated each year on May 1. In 2018, the Court held oral arguments at Grand Island Central High School, and in 2019, the Court has scheduled Law Day oral arguments at Scottsbluff High School. In November of 2018, the Supreme Court held oral arguments at Schuyler High School with special guest Judge John Gerrard, Chief Judge of the United States District Court for the District of Nebraska, offering commentary. We also commend the Nebraska Court of Appeals for holding oral arguments at Nebraska college campuses in connection with Constitution Day, which is celebrated annually on September 17. In 2018, the Court of Appeals went to York College; in 2019, the Court of Appeals will hold oral arguments at Concordia University in Seward as part of that school’s 125th anniversary celebration. I would be remiss if I did not take this opportunity to thank the many trial court judges and Judicial Branch employees who regularly take time out of their schedules to provide

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law-related education programs to students within their communities. Many of our judges and clerks participate in County Government Day, High School Mock Trials, We the People Competitions, Law Day Job Shadow projects, and other local efforts. The Court is encouraged by these dedicated judges and employees who are active participants in their communities.

Pandemic Conference The Judicial Branch believes not only in being responsive to current needs and wants, but also in being prepared for what we may encounter in the future. Through the assistance of the State Justice Institute, in May of 2019 the Nebraska Judicial Branch will host a conference that will coincide with the opening of the University of Nebraska Medical Center’s Federal Quarantine Center in Omaha. This conference will bring together health officials, judges, and members of the legislative and executive branches of government from around the country to discuss how government can effectively meet the needs of citizens during a time of public health crisis. Through our partnering with the University of Nebraska Medical Center in this project, we are able to focus on how a public health crisis may impact Nebraska courts and draw on UNMC’s unique knowledge base of pandemic threats.

Conclusion In conclusion, as we have invited these various community, State, and national partners to engage with the courts, I invite each of you to visit your local trial courts, probation offices, and problem-solving courts. Likewise, we welcome you to visit the Supreme Court’s oral arguments or watch live-streaming of those arguments on the Court’s website or on Nebraska Public Television’s website. You will find there are no better-spent tax dollars than the tax dollars you allocate to the Courts and Probation. Thank you for your past and continuing support for Nebraska’s courts.

MARCH/APRIL 2019

legal community news Nebraska State Bar Foundation’s Daniel J. Gross Fund Daniel J. Gross was a prominent Omaha trial lawyer. Upon his death in 1958, he established a fund in his will “for the charitable and welfare purpose of active practicing Nebraska lawyers, their wives, widows, and children.” Over the years, the Daniel Gross Fund has assisted active lawyers and their families on numerous occasions. For example, the Fund has worked with the Nebraska Lawyers Assistance Program in providing funds for medical treatment on a confidential basis. Any active lawyer, or his or her family member, in need of assistance may apply to the Daniel Gross Fund. Doris Huffman, Executive Director of the Nebraska State Bar Foundation, is the contact person. She can be reached at the Hruska Law Center, 635 South 14th Street, Suite 120, PO Box 95103, Lincoln, NE 68509-5103, or by telephone at (402) 475-1042. All inquiries are strictly confidential.

THE NEBRASKA LAWYER

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

Nebraska state bar FouNdatioN

MARCH/APRIL 2019

The Nebraska State Bar Association - Nebraska Lawyers Foundation presents the

16th Annual GREATER NEBRASKA GOLF SCRAMBLE Friday, June 14, 2019 at Wild Horse Golf Club in Gothenburg, NE 40950 Rd 768, Gothenburg, NE 69138 (308) 537-7700

Golf Scramble - Friday, June 14, 2019

Format: 4-Person Scramble Lunch & Driving Range: 10:30 AM - 12:30 PM Shotgun Start: 12:30 PM Dinner: 5:00 PM Entry Fee: $150 per golfer Includes: Lunch, dinner, green fee, cart, range balls & door prize drawings Players: Pairings will be made for individual and partial team entries 1) Name:_______________________________________

3) Name:_______________________________________

Address:______________________________________ ____________________________________________ ____________________________________________

Phone:_______________________________________

U.S.G.A. Handicap Index________________________

Average 18 Hole Score___________________________

2) Name:_______________________________________

4) Name:_______________________________________

Address:______________________________________ ____________________________________________ ____________________________________________

Phone:_______________________________________

U.S.G.A. Handicap Index________________________

Average 18 Hole Score___________________________

Proceeds to benefit the NSBA Volunteer Lawyers Project. c I am unable to play the tournament but have enclosed $_________ to support VLP. For more information: contact Sam Clinch at (800) 927-0117, (402) 475-7091 or sclinch@nebar.com. Please make your checks payable to NLF and return this form to: 635 S 14th St. #200, Lincoln, NE 68508. **Gifts to NLF are deductible as charitable donations to the extent allowed by law.** THE NEBRASKA LAWYER

MARCH/APRIL 2019

correction Editor's Note: The endnotes for Jason Grams' article in the January/ February 2019 issue of The Nebraska Lawyer, The Little Things That Kill Credibility in Court Papers, were inadvertently left out. We are reprinting the article here in it's entirety with the endnotes included.

The Little Things That Kill Credibility in Court Papers by Jason Grams

The purpose of any court paper, from a simple motion to extend a deadline in county court to an appellate brief in the Supreme Court, is to request action from the court and to persuade the court to take that action. Knowing what to ask for is usually easy—grant or deny a motion, affirm or reverse or modify a judgment. The persuasion is the hard part. As lawyers, our task is to convince someone whose job it is to be skeptical to side with us and act in our client’s favor. Some of us specialize in doing the work of persuasion live and in-person. But many important issues are decided solely on or heavily influenced by the papers. Mercifully, although the application may be different, the principles of persuasion are the same whether you are giving a closing argument or writing an appellate brief.

For Some Reason, Everything Always Starts with Ancient Greece

Aristotle teaches us the three modes of persuasion are logos, pathos, and ethos.1 Logos is your argument, your appeal to logic. Pathos is your story, your appeal to emotion or justice, usually told in the facts section of your brief. Ethos is your ethical appeal, directed to the audience. Ethos is the Greek word for character and focuses on the speaker’s need to establish credibility with the audience. It is easy to see how credibility is important in in-person settings. A calm and well-spoken lawyer with a polished, professional appearance is more likely to be thought of as careful, analytical, and prepared. Rightly or wrongly, a judge may think such a person less likely to make factual or legal errors than someone in sandals and a t-shirt pounding on a lectern, regardless of the merits. But where does ethos fit in to writing? Unlike logos or pathos, which are largely accounted for in formal sections of a brief, the writer’s ethos permeates the whole document. Credibility can be affected by big things and little things. The big things are often written about: high level structure and organization, argument choice, presentation order, depth of treatment of topics, omitting weak arguments, and so on. The big things are big, they are often strategic, and they are important to establishing credibility, but they are not the focus of this piece. This article is about the little things: following the rules and conventions of the court and the community in which THE NEBRASKA LAWYER

you are practicing. The little things may often be neglected, but they should not be. A writer seeking to earn and maintain credibility ignores the little things at his peril. Credibility is trust: trust that you will tell the truth; trust that you know what you are talking about; trust that you can help. You need credibility to avoid the thought, however fleeting, that “if I cannot trust you to get the ‘easy’ details right, how can I trust you to get the ‘hard’ legal analysis right?” What are the “easy” details? Following the court’s rules is one, which starts with reading them. If the court rules require you to include certain things in your brief, include them. If the rules require you to individually number each statement you claim is an undisputed material fact and provide a record citation for it, do that. If the rules require you to provide a statement of the issues and a list of “most apposite cases,” provide them. Some courts want particular font sizes, page lengths, section headings, or certificates. Give them what they want. Otherwise you risk being seen as careless, and your judge will think she cannot trust you. Worse, you risk being seen as disrespectful, choosing not to comply with the court’s rules. You did not double space a block quotation or number your statements of undisputed facts. Therefore you either did not care enough to read the court’s rules or you felt your personal preference was more important than the court’s. Either way, your credibility suffers. Worse, you will likely never know whether or how much this cost you, and there is no appeal from a loss of credibility. But, you say, the judge should look past all of this and just make the right decision based on the facts and the law! It should not matter what I look like in court or whether I proofread my briefs! Maybe. But this position overlooks how elusive the right decision can be and how much courts need to trust advocates—to rely on your credibility—to help them understand both the facts and the law. If your judge cannot trust you to get the little things right, how can she trust you not to stretch the facts or cite a case for a proposition it does not support? Lawyers often underestimate the extent to which courts need to trust them in order to do their work. Except for those reading this article, judges are not superhuman. They need to trust that you will clearly and accurately report the relevant law and facts to them for decision. They need to rely on your credibility.

The Grand Dame of Minneapolis and the Horse

A great way to tax your credibility with most judges is to assign the work of reasoning out your argument to the court. This can take many forms, from attempting to force the court to mine your brief or evidence by failing to provide citations2 to hopeful suggestions that your point is “clear” or “obvious.”

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CORRECTION This comes up more often than you might think, and the courts are well aware of this frequent, and lazy, dodge. For example, in an annual training session for new appellate law clerks, the late Circuit Judge Diana E. Murphy instructed the clerks that “any time a lawyer uses the words ‘clearly’ or ‘obviously’ in a brief, scrutinize it carefully. That means it is not clear at all.” In a similar vein, Harvard Law Professor Henry Steiner is quoted as saying, “Whenever someone says ‘clearly,’ that’s where the horse is buried.”3 It is unclear whether the horse’s burial is a reference to the progress of an old west investigation or merely the suggestion that using “clearly” or “obviously” in legal writing stinks. Regardless, showing your audience why your point is correct is always more persuasive than asking your reader to rely on your credibility—to trust you. Don’t do it! Save your credibility for the court’s evaluation of your argument. Rather than saying, “clearly the sky was blue,” try something along the lines of, “It being 2:00 p.m. on a 68 degree day in May, with the National Weather Service reporting no clouds or precipitation, it is safe to say the sky was blue on the date of the incident.” If the fact matters enough to include in your brief at all, it matters enough to show instead of tell.

Death by Bluebook

Not understanding the Bluebook can hurt your credibility. Don’t believe me? Consider Bluebook Rule 1.2. Under Rule 1.2 if you cite a case and put no signal in front of the citation, you are telling the court that your “[c]ited authority (i) directly states the proposition, (ii) identifies the source of a quotation, or (iii) identifies an authority referred to in the text.”4 If, instead, your “proposition is not directly stated by the cited authority but obviously follows from it [or] there is an inferential step between the authority cited and the proposition it supports,” your citation must lead with the “See” signal.5 And if your citation merely “supports a proposition different from the main proposition but sufficiently analogous to lend support,” you should use the “Cf.” signal.6 Thus, if you make a statement about a case that does not appear in the case itself, at a minimum you should be introducing your citation with a “See” signal. If you just list a citation with no signal, you are representing to the court that your proposition is to be found directly in the cited case. If it is not there, your representation is false. Is the misrepresentation unethical? It is if you knew what you were doing! And if you did not know what you were doing, your competence is questionable. Either way, the court cannot trust that your citations are accurate and must delve into each case you cite to check them. A corollary is that if you cannot manage to put an ordinary cite to a case or statute in proper form it leads one to wonder if you know the rules well enough to understand things like Rule 1.2. Not every judge will lose trust in you for minor transgressions in this area, but some will. And their law clerks certainly will. THE NEBRASKA LAWYER

Speaking of law clerks, because their work involves a great deal of careful review of the parties’ briefs, they quickly become experts at noticing misrepresentations and neglect. One clerk friend of mind was working on an attorney-filed brief when she noticed the lawyer had used an ellipsis to denote the removal of the word “not” from a quotation of a legal proposition. Another was assigned to try to make sense out of a “brief” filed by a party which was nothing more than a caption and signature block with three long cases pasted in as the body, complete with graphics and formatting from Westlaw. I personally cannot even count the number of times I looked up a quote or a proposition a lawyer had cited in his paper and it did not appear in the case. And then there was the federal appellate brief bound with silver duct tape, and two months later the reply brief bound the same way. Don’t do these things. Whether intentional or not, these kinds of issues can damage an attorney’s credibility well beyond the particular case the issue occurred in.

Garner and Butterick

There is a movement of sorts afoot to overthrow the tyranny of spacing twice after ending a sentence. The leaders of this insurrection appear to be legal style luminary Brian Garner and typography guru Matthew Butterick. Garner suggests in his legal style manual, the Redbook, that although “[t]he custom during the reign of the typewriter was to insert two spaces between sentences,” we should now place one space after all punctuation marks, including periods, because of computers.7 Butterick goes further and suggests we should switch to one space because “one space is the well-settled custom of professional typographers. You don’t need to like it. You only need to accept it. . . . No one has yet shown me contrary authority.”8 The authority Butterick seeks wears a black robe. What is one thing that judges have in common? They are, let’s say, seasoned. Seasoned is defined as “accustomed to particular conditions; experienced.”9 For present purposes, that means your judge—the person you are attempting to persuade with your brief—is more likely to have learned to type on an IBM Selectric than on whatever fancy word processing software that you (and Garner and Butterick) are hammering away on these days. Most had it drilled into them that you press the space bar twice at the end of a sentence. Two spaces is the right way. Anything else is a typographical error, a sign of carelessness. Dismissing another of Brian Garner’s innovations, Justice Scalia aptly summarized the case against the single space. “Of course, whatever the merits of this debate, the conclusive reason not to accept Garner’s novel suggestion is that it is novel. Judges are uncomfortable with change, and it is a sure thing that some crabby judges will dislike this one. You should no more try to convert the court [to single spacing after sentences] at your client’s expense than you should try to convert it to colorful ties or casual-Friday attire at oral MARCH/APRIL 2019

CORRECTION argument.”10 This is no mere academic point. I once saw a California federal circuit judge’s copy of a brief filed by a party just before the appeal was argued. This appellate judge had circled the end of every sentence, where the author had touched the space bar only once before starting a new sentence. Where legal briefs are concerned, it does not matter if you are right. The only opinion that counts is your audience’s. And even if your audience thinks your method is innovative, it may cause her to pause and think about it. But you want her to do her thinking about your substantive arguments, not your position on how many spaces should be put at the end of a sentence. What’s more, you will probably not ever know if your judge found your innovation refreshing or just a sign that you do not know the right way to do it. If you’ve been following along, the point should be obvious.11 Take no risks with style, lest you take attention away from making your point.

Endnotes 1 2

With This Shield or On It

When a young Spartan first went out to battle, his mother would give him a shield, and tell him to return only with his shield or on it.12 The phalanx required large, heavy shields and a hoplite could not escape the field of battle unless he tossed it away.13 “Losing one’s shield,” meant desertion.14 Dead fighters were carried back home on their shields. The mother’s exhortation therefore amounted to “fight the battle honorably or be carried home dead on your shield.” Your credibility is your shield. You carry it into every battle, not just the one you are fighting today. You must do everything you can to keep it. This does not mean you can never make a mistake. Courts generally forgive honest mistakes. But they do not forgive dishonesty or habitual carelessness. If a judge feels you have been dishonest or disrespectful with her, she will remember. And it may be years before she trusts you again. Think of credibility like a bank account you have with the court. Try to maximize the little deposits and minimize the withdrawals. Come back with your credibility intact. You’ll need it for the next case.

See 2 The Complete Works of Aristotle, Rhetoric 2155 at 1358a110 (Jonathan Barnes ed., Princeton University Press 1985).

See Gilbert v. Des Moines Area Cmty. Coll., 495 F.3d 906, 915 (8th Cir. 2007) (“A district court is not required to speculate on which portion of the record the nonmoving party relies, nor is it obligated to wade through and search the entire record for some specific facts that might support the nonmoving party’s claim.”); Rodgers v. City of Des Moines, 435 F.3d 904, 908 (8th Cir. 2006) (“[W]e will not mine a summary judgment record searching for nuggets of factual disputes to gild a party’s arguments.”); United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (per curiam) (stating, famously, “Judges are not like pigs, hunting for truffles buried in briefs.”). See also Neb. Ct. R. §§ 6-1471 and 6-1526 (adopted September 5, 2018) (requiring in support of or opposition to a motion for summary judgment, “an Annotated Statement . . . setting forth concise, numbered paragraphs reciting each proposed material fact . . . , annotated by pinpoint citation to the supporting evidence . . . .”).

I did not hear this from Prof. Steiner. But despite some fairly serious searching, the only reference I could locate for this quote attributes it to him, so he gets the citation. Howard Wasserman, Favorite Professorial Phraseologies, PrawfsBlawg (Aug. 25, 2010), https://prawfsblawg.blogs.com/prawfsblawg/2010/08/favoriteprofessorial-phraseologies.html (last visited Nov. 28, 2018). THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION R. 1.2(a), at 58 (Columbia Law Review Ass’n et al. eds., 20th ed. 2015).

5 Id. 6

Id. at 59.

7 Bryan

A. Garner, THE REDBOOK, A MANUAL ON LEGAL STYLE § 4.12 (West 3rd ed. 2013).

8 Matthew

Butterick, TYPOGRAPHY FOR LAWYERS, ESSENTIAL TOOLS FOR POLISHED & PERSUASIVE DOCUMENTS 41-42 (2d ed. 2015) (quoting, among others, Garner, supra n.3; THE CHICAGO MANUAL OF STYLE R. 2.9 (16th ed. 2010)). But see Avi Selk, One space between each sentence, they said. Science just proved them wrong., THE WASHINGTON POST, https://www.washingtonpost.com/news/speaking-ofscience/wp/2018/05/04/one-space-between-each-sentence-theysaid-science-just-proved-them-wrong-2/?noredirect=on&utm_ term=.27e02efe8bb7 (last visited Nov. 28, 2018).

9 THE

OXFORD DICTIONARIES, Seasoned, https:// en.oxforddictionaries.com/definition/seasoned (last visited Nov. 28, 2018).

10 Antonin

Scalia & Bryan A. Garner, MAKING YOUR CASE, THE ART OF PERSUADING JUDGES 134-35 (Thompson/ West 2008).

11 Yes,

MORALIA 241F (Frank Cole Babbitt ed., Loeb ed. 1931) (“Another [mother], as she handed her son his shield, exhorted him, saying, ‘Either [with] this or upon this.’”).

13 Id. 14 Id.

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I did that on purpose. Just kidding!

12 Plutarch,

at 241

MARCH/APRIL 2019

Angi Burmeister

Jaclyn N. Daake

Managing Partner, Berkshire and Burmeister, Omaha

Partner,

Duncan, Walker, Schenker & Daake, PC, LLO, Alma

Where did you attend law school? Creighton University School of Law, 1993.

Where did you attend law school? Washburn University School of Law, 2013.

What is an unconventional lesson you’ve learned about the practice of law? That it can be more flexible but you might have to work harder to have flexibility. When my children were young, I was only in the office 3 days a week and never missed a school play, soccer game, holiday party or activity. My clients did not know because I utilized staff, a vpn login, email and calls at naptime to bridge the gap. It was, quite honestly, much more difficult than practicing a regular schedule and sometimes required me to be at work from 10 pm to 3 am but the time with my children was truly priceless.

What is the best career advice you have ever received? No matter who comes in the door, you can make sure they walk out feeling better than they did when they walked in.

Who is your hero and why? My mother. School counselor said, “You look like the marrying type not the college type.” Baby at 17, hard work, discrimination, determination and success but only after working 10 times harder than everyone else to get there and showing us that really you can do anything if you put your mind to it and get moving. What advice would you give a new lawyer? It's best to be up front if you don't know something. Most seasoned attorneys will know you don't know so it's best not to pretend you do. After owning up, go research the issue, reach out to other attorneys for insight (call me I'm happy to help) and find the answer so that you can then communicate with opposing counsel on the issue. Spend time at the courthouse observing other counsel in hearings and trials. You can learn great things there. Why are you a dues-paying member of the NSBA? The sections and listservs have proven extremely helpful. Participating in the legislative process is important in my opinion because many legislators are not lawyers and giving input on proposed legislation helps ensure that laws in place do not have unintended complications, conflicts and procedural issues. Networking with other attorneys outside of practice is helpful in building relationships so that when cases are adversarial you can still be respectful of each other.

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What kind of legal matter do you find most rewarding or personally satisfying and why? I thoroughly enjoy helping see juvenile abuse/neglect cases come to a successful close—whether they end in reunification or termination, being able to aid in the protection, permanency, and well-being of Nebraska's youth is incredibly rewarding work. What is an unconventional lesson you’ve learned about the practice of law? It's about 80% customer service, 15% skill, and 5% dumb luck! What do you do for fun? Kayaking, camping, and chasing our teenagers around. If you weren’t a lawyer, what would you be and why? Bus driver? Camp counselor? Electrician? What is one thing you know now that you wish you would have known in your first year of practice? The practice of law is a marathon not a sprint. Being accurate is much more important than being fast. Why are you a dues-paying member of the NSBA? I am a dues-paying member of the NSBA because I believe that the bar association has immeasurable value. They lobby for the legal profession, they provide attorneys with educational opportunities, they support lawyers in times of need, and they do what it takes to keep the reputation of our field respected.

MARCH/APRIL 2019

Ed Brink

Jerod L. Trouba

Senior Attorney, SouthLaw, PC, Omaha

Owner, Trouba Law Offices, LLC, Columbus

Where did you attend law school? University of Nebraska College of Law, 1991.

Where did you attend law school? University of Nebraska College of Law, 2006.

What is the best career advice you have ever received? Do your best and don't worry about the outcome.

What kind of legal matter do you find most rewarding or personally satisfying and why? Adoptions, it is the last step to making a family feel whole.

What kind of legal matter do you find most rewarding or personally satisfying and why? I enjoy dealing with real estate related matters. What is an unconventional lesson you’ve learned about the practice of law? Sometimes you have to protect a client from themselves. What do you do for fun? I like to go boating, jogging, and hanging out with friends.

What do you do for fun? Anything outdoors and with my kids. What is one thing you know now that you wish you would have known in your first year of practice? You don't always have to know the answer to every question. Doing the research is a great way to learn.

If you weren’t a lawyer, what would you be and why? A doctor. What is one thing you know now that you wish you would have known in your first year of practice? There are no perfect solutions. So, just solve the issue and move on. Who is your hero and why? I am fortunate to have had two heroes. My dad and my fatherin-law. Both men were good role models and lived their beliefs. What is the most rewarding moment of your practice? When you have done a good job on behalf of your client, and you know it. What is your proudest moment? When I see one of my children succeed. Why are you a dues-paying member of the NSBA? I am proud to be a member of the NSBA. Paying dues is a small way that I can help to have a positive impact on the practice of law for all Nebraska lawyers.

THE NEBRASKA LAWYER

What is an unconventional lesson you’ve learned about the practice of law? Getting in and out of the penitentiary to see a client is a real pain.

Who is your hero and why? My father, best guy I know. What is your proudest moment? The proudest moments are when I can answer questions and help other attorneys with their practice. I take great pride in helping my fellow attorneys to reach their maximum potential. What advice would you give a new lawyer? Take every opportunity you get to watch another lawyer practice and take note of their style. Use things you like and dislike from each opportunity to create your own style. Why are you a dues-paying member of the NSBA? I believe being part of the practice of law and part of the NSBA is a tremendous advantage as it provides access to practice tools like Casemaker but more importantly access to other attorneys and their wealth of knowledge.

MARCH/APRIL 2019

James H. Truell

Preston Peterson

Partner, Truell, Murray & Associates, Grand Island

Associate Attorney, The Law Office of Mark L. Eurek, P.C., Loup City

Where did you attend law school? University of Nebraska College of Law, 1973.

Where did you attend law school? University of Nebraska College of Law, 2015.

What is the best career advice you have ever received? Leave the work at the office.

What is the best career advice you have ever received? The practice of law is a marathon not a sprint. You have to keep moving fast enough to stay ahead, but not so fast you burn out part way through.

What kind of legal matter do you find most rewarding or personally satisfying and why? It's not the legal matter but the client. Those who were lost and confused with limited resources provide a reward beyond money. What is an unconventional lesson you’ve learned about the practice of law? Neatness doesn't count. You should see my desk. What do you do for fun? I create things: gardens, construction projects, characters (acting). Those things that people can remember and not a sheet of paper. If you weren’t a lawyer, what would you be and why? I honestly don't know. Perhaps teach middle school where one has a chance to mold a child for the future. What do you like best about your practice area and why? The amazing range of people out there. So many different segments of our society that many never get involved with, but who all need assistance. Who is your hero and why? My late wife who battled illness for so many years but greeted each day with wonder and excitement. What is the most rewarding moment of your practice? The sight of tears of joy from a 17-year-old girl winning a case against her high school for failure to protect her from sexual assault. What advice would you give a new lawyer? If you're here to make a lot of money, you're here for the wrong reason.

THE NEBRASKA LAWYER

What is an unconventional lesson you’ve learned about the practice of law? Having a solid relationship with County and District Court Clerks, and treating them with respect is huge. Clerks have the ability to help you work through the court process more efficiently, if you are in good standing. If you weren’t a lawyer, what would you be and why? I would probably be in education or a CrossFit coach because I enjoy teaching new lessons and skills to people while learning more about myself. What is one thing you know now that you wish you would have known in your first year of practice? All of the intangibles of being a lawyer, how to bill, how to stay on top of client files, how to manage office staff, and how to work with other attorneys. It took a long time just to try to figure out a system of how to be a lawyer. What is the most rewarding moment of your practice? The first time I had a client genuinely thank me for what I had done and for simply caring about their case. What advice would you give a new lawyer? Cast a wide net and try to gather information from a lot of different lawyers on their practice style. Out of this information, you are better able to develop a style of practice that will be satisfying and successful to you. Why are you a dues-paying member of the NSBA? Because NSBA offers opportunities and programs that help myself and other Nebraska lawyers share ideas and become better at what we do.

MARCH/APRIL 2019

Volunteer Lawyers Project No Civil Right to Counsel: Restating the Need for Civil Pro Bono Legal Services by Laurie Heer Dale and Carol Cleaver, Volunteer Lawyers Project

There is no civil equivalent to Gideon v. Wainwright, the 1963 U.S. Supreme Court case decision that mandated representation for the poor in criminal cases. People needing a lawyer in a civil case are often surprised to learn they do not have a right to a lawyer when sued. Without legal counsel, unrepresented persons risk losing their children, housing, and much needed income. Others are placed in situations that threaten physical safety, health and well-being. Every year, discussions how to solve access to justice issues for the poor give rise to the need for more pro bono lawyers. Legal aid services for the poor continue to be grossly underfunded. In the meantime, thousands of poor self-represented litigants are left to navigate a complex court system on their own. They are even more disadvantaged when the other party is represented by counsel. Self-represented persons look to the court for justice. Contrary to frequent speculation, most self-represented persons don’t have a lawyer because they cannot afford a lawyer. It isn’t a choice to be unrepresented, it is a fact of circumstance. There isn’t money to pay a lawyer when life is about living paycheck to paycheck. Volunteer lawyers are their only hope. Helping Lawyers Help People is the heart of the NSBA mission. Since 1982, VLP has developed and maintained pro bono programs to help Nebraska lawyers do pro bono work that is convenient, rewarding, and impactful. Some reminders about VLP programs:

How VLP receives application for pro bono assistance. VLP does not accept direct applications for assistance. Applications are referred from Legal Aid of Nebraska, the Women’s Center for Advancement in Omaha, other legal service providers, and occasionally, from Self-Help Centers and private attorneys. Applicants are screened to determine financial and case type eligibility. Generally, applicants must have a total household income less than 125% of the federal poverty income guidelines and little assets.

One case a year can make a difference VLP hopes volunteers will take one pro bono case each year. Staff will contact you when there is an applicant appropriate for the practice areas you specify. You are not obligated to accept any case. If you are busy at that time, VLP will contact you again on a future case. Cases are also posted to the VLP Website, www.nevlp.org; lawyers can review cases at any time.

VLP provides malpractice insurance coverage. VLP provides primary malpractice insurance coverage for all pro bono cases referred by VLP and for participation in all VLP programs, including Self-Help Centers, Nebraska Free Legal Answers, and special clinics held throughout the year.

VLP provides training and materials. VLP volunteers are willing to mentor new attorneys or attorneys unfamiliar with a specific case type. VLP provides helpful training, materials and resources to assist volunteers. Visit the VLP website “Training and Resources” page to view our library.

Time commitment for volunteer work VLP programs provide variety to accommodate your busy schedule. For cases, time varies depending on the type of case and complexities involved with the case. Lawyers can spend as little as two hours and up to 15 hours on a divorce case. Volunteering at a Self-Help Center typically requires about two hours. Lawyers can commit anywhere from one hour to six hours volunteering at a special clinic. Answering questions on Nebraska Free Legal Answers can average 30 minutes or more, depending on the type of question and number of questions the lawyer wants to answer.

 THE NEBRASKA LAWYER

MARCH/APRIL 2019

Volunteer Lawyers Project VLP has programs for all lawyers

Legal Clinics “Lawyers in the City” is a bi-annual event in Omaha hosted in collaboration with the Creighton University School of Law civil clinic; Immigrant Legal Center, Legal Aid of Nebraska, Midlands Bar Association, Omaha Bar Association and Women’s Center for Advancement. This event will occur in other cities in 2019. Lawyers work in teams with law students and paralegals to provide brief legal services. Training materials are provided in advance. Sign up for 1, 2 or 3 hours or all day.

In addition to case placement, VLP offers several pro bono programs to help lawyers achieve their pro bono goals for the year. NE Free Legal Answers - www.NE.freelegalanswers.org This program doesn’t require long training or travel to do pro bono. Pick the days and times you want to do pro bono. Pick the questions you want to answer. This is a pro bono program for all lawyers, including in-house, corporate counsel, and government lawyers.

How Can We Help You Help Others Who Have No Right to Counsel?

Self-Help Centers A Self-Help Center (SHC) is a free, walk-in legal clinic where self-represented persons can meet with a lawyer for general advice on select legal issues, learn about the court process and court forms approved for self-represented persons. There are six SHCs located in courthouses in Buffalo, Douglas, Hall, Kimball, Madison and Scotts Bluff counties.

Visit the VLP website at www.nevlp.org to learn more about the VLP. Complete a volunteer application or schedule a visit with Laurie Heer Dale, Director of the VLP, to discuss ways you hope to fulfill your pro bono goals.

Pro Bono Legal Service

Nebraska Free Legal Answers www.NE.FreeLegalAnswers.org

Convenient, rewarding, and impactful pro bono All lawyers—All practices* Answer questions posted by low-income residents • No travel or training to do pro bono • Pick questions you want to answer • Volunteer names are not disclosed • Malpractice insurance coverage • Make justice happen–today

THE NEBRASKA LAWYER

NE Free Legal Answers is a website operated by the ABA and the NSBA Volunteer Lawyers Project 635 South 14th St. #200, Lincoln, NE 68508 (402) 475-7091

MARCH/APRIL 2019

Volunteer Lawyers Project Honor Roll Thank you for joining VLP in thanking the following lawyers and law students who have provided pro bono services the end of 2018 through January 2019. Thank you for your commitment to VLP programs!

Nebraska Free Legal Answers - New Registration Audrey A. Bellew, North Platte Jaclyn N. Daake, Alma Sallie V. Dietrich, Lincoln Angela Dunne, Omaha Whitney A. Estwick, Omaha Adam R. Feeney, Omaha Thomas J. Freeman, Lincoln Maureen E. Fulton, Omaha Catrina K. Harris, Ashland Jack W. Lafleur, Norfolk Jessica D. Meyer, Tecumseh Michael W. Milone, Omaha

Ashley A. Moore, Omaha Julia K. Palzer, Omaha Patrick M. Patino, Omaha Zachary D. Petersen, Omaha Sarah E. Preisinger, Papillion Thomas D. Prickett, Plattsmouth Michael A. Ramirez, Omaha Danielle L. Rowley, Lincoln Blake K. Simpson, Lincoln Meagan K. Spomer, Omaha Anthony D. Todero, Omaha Erin E. Wetzel, Omaha

Nebraska Free Legal Answers - Limited Legal Service

Audrey A. Bellew, North Platte Lindsay R. Belmont, Omaha Angela L. Burmeister, Omaha Larry W. Beucke, Kearney Joshua L. Christolear, Syracuse Jaclyn N. Daake, Alma Kelly R. Davis, Omaha Carla J. DeVelder, Omaha Sallie V. Dietrich, Lincoln Quinn R. Eaton, Omaha Timothy R. Engler, Lincoln Whitney A. Estwick, Omaha Adam R. Feeney, Omaha Thomas J. Freeman, Lincoln Maureen E. Fulton, Omaha Catrina K. Harris, Ashland Michael J. Haller, Omaha Kelsey L. Helget, Hastings Christa B. Israel, Lincoln Jack W. Lafleur, Norfolk Catherine M. Mahern, Omaha

THE NEBRASKA LAWYER

Jessica D. Meyer, Tecumseh Michael W. Milone, Omaha Ashley A. Moore, Omaha Julia K. Palzer, Omaha Zachary D. Petersen, Omaha Sarah E. Preisinger, Papillion Thomas D. Prickett, Plattsmouth Michael A. Ramirez, Omaha Danielle L. Rowley, Lincoln Kent A. Schroeder, Kearney Blake K. Simpson, Lincoln Peter J. Sitzmann, Lincoln Rachael A. Smith, Omaha Meagan K. Spomer, Omaha Ryan P. Sullivan, Lincoln Richard W. Tast Jr., Lincoln Anthony D. Todero, Omaha James H. Truell, Grand Island Kathryn E. Welsh, Omaha Erin E. Wetzel, Omaha

Pro Bono Cases

Jill M. Abrahamson, Omaha Mona “Molly” L. Burton, Lincoln Jason S. Doele, Norfolk David H. Fisher, Hastings Ronald E. Frank, Omaha Julie Fowler, Omaha Luke J. Klinker, Omaha Jane F. Langan Mach, Lincoln Peng Li, Omaha

Joseph Lopez-Wilson, Omaha Amie C. Martinez, Lincoln Deziree N. Medina, Lincoln James E. Reisinger, Omaha Katherine E. Sharp, Columbus Thomas J. Shomaker, Omaha Catherine N. Swiniarski, Omaha Megan M. Zobel, Lincoln

Self Help Centers Buffalo Melodie T. Bellamy, Coordinator Larry W. Beucke Marsha E. Fangmeyer Douglas Christina Thornton, Coordinator James “Jim” Busse Kelly R. Davis Richard A. Drews Carrie Gaines Kendall K. Krajicek Karisa D. Johnson Stephen J. Lefler Michael P. Moran Melany S. O’Brien Ralph E. Peppard Arturo Perez Justin A. Quinn Danielle L. Rowley Alan C. Schroeder Judith A. Schweikart David Sommers J.G. “Gerry” Sullivan Hon. Stephen M. Swartz, ret.

Douglas/Creighton Martha J. Lemar Catherine “Kate” Mahern Hall Shawn J. Farritor, Coordinator Marvin L. Andersen Johnathan M. Hendricks John B. McDermott Keith Smith Mitchell C. Stehlik James H. Truell Madison Ryan J. Stover, Coordinator Joel E. Carlson Scotts Bluff Stacy C. Bach, Coordinator Adam A. Hoesing Maren L. Chaloupka Astrid G. Munn* *misspelled last edition

MARCH/APRIL 2019

nsba section connection Senior Lawyers/Young Lawyers Game Plan NSBA’s Senior Lawyers and Young Lawyers Sections are re-running their popular spring baseball game plan. For the fourth year in a row, the two groups will attend the UNL v. Creighton baseball game the evening of April 23 in Omaha. Prior to the game the groups will meet for appetizers and socializing at a venue near the stadium. Section members can look for details later in March.

Upcoming Section CLEs • March 15 - Young Lawyers Section Best Practice Seminar, Creighton University School of Law, Omaha • March 22 - 2019 Annual Estate Planning and Probate Seminar, Nebraska Innovation Campus, Lincoln

Jack Dike and Walter Griffiths were two members of the NSBA Senior Lawyers Section attending the Section-sponsored seminar/ webinar on Personal Resilience and the Workplace. Each NSBA section may offer a free webinar for its members in 2019.

• May 3 - 2019 Annual Family Law Section Seminar, Scott Conference Center, Omaha • May 9-10 - 2019 Bankruptcy Section Seminar, Embassy Suites, La Vista • May 30 - Elder Law Section Seminar, Creighton University School of Law, Omaha • June 14 - 2019 Labor Relations & Employment Law Section Seminar, Kutak Rock, Omaha • June 21 - 2019 Government and Administrative Practice Section Seminar, University of Nebraska College of Law, Lincoln • July 11-13 - 2019 Advanced Estate Planning Institute, Estes Park, CO • August 23 - 2019 Business Law Section Seminar, Gallup, Omaha • September 6 - 2019 Nebraska Diversity Summit, Creighton University - Harper Center, Omaha

The Taxation Section is planning seminars, a member survey and other events for 2019. Working on the plans are Section Chair Jeff Schaffart and Executive Committee member Cynthia Epstein (pictured here), along with the other members of the Section leadership team Nicole Brandt, Daniel Leddy, Lyle Wheeler, Jr., Ron Sylvester, Howard Kaplan, Mitch Hiatt, Sara Langan, Seth Moen and Nick Niemann.

• September 13 - 2019 Annual Real Estate Institute, Embassy Suites, La Vista • November 8 - 2019 Workers' Compensation Seminar, Embassy Suites, La Vista If you’re interested in any of the NSBA Sections or have questions, please contact NSBA Section Facilitator Lorrie Benson at 402-475-7091 or lbenson@nebar.com. THE NEBRASKA LAWYER

MARCH/APRIL 2019

manual maven

Manual Maven

features an excerpt from a practice manual currentl y available from the online NSBA Store. See what’s available at nebar.com/store!

From 2017 Nebraska Real Estate Practice Manual (The Red Book), “Escrow Procedures and Regulations and Real Estate Closings,” by Jennifer J. Strand: 11-3(e) Disclosure Escrow agents have a duty to disclose to the parties to the escrow title defects of which they have knowledge, even if they are under no duty to seek them out. The same rule applies to fraudulent activities that come to the agent’s attention. Persons acting as both a title insurance agent and the escrow agent have a duty to disclose title defects. (725)

NSBA Publications

Nebraska Evidence Handbook

The Nebraska Evidence Handbook includes the Nebraska Evidence Rules with cases that apply and/or interpret the rules. (Cases updated through June 2018)

See the NSBA Store for more details, tables of contents, or to order online: www.nebar.com/store

Voluntary Dues-Paying Member Discounted Price: $40 (electronic) $60 (print copy)

2016 Appellate Practice Handbook

The Appellate Practice Handbook includes: civil and criminal appeals generally; motion practice in the Nebraska Supreme Court and Court of Appeals; special appeals topics such as juvenile, eminent domain, administrative, probate, workers’ compensation, bankruptcy, poverty; and federal appeals topics.

Nebraska Statute of Limitations Reference (2019)

The Nebraska Statute of Limitations Reference includes Just several thousand time limitations set out in the Updated! Nebraska Revised Statutes as of December 31, 2018. Electronic use of this Reference is strongly recommended.

Voluntary Dues-Paying Member Discounted Price: $95 (electronic) $110 (print copy)

Voluntary Dues-Paying Member Discounted Price: $40 (electronic) $60 (print copy)

2017 Nebraska Real Estate Practice Manual

The Nebraska Real Estate Practice Manual, commonly called the Red Book, has been completely updated. The three volume, 2,000 page manual includes detailed discussions on buying, financing, leasing, and selling commercial, residential and agricultural real estate and primers on many special topics.

Planning for Your Unexpected Absence, Disability or Death

This manual outlines how to prepare for the unexpected and what to do if you’re the lawyer who steps in to another’s practice. It provides a detailed discussion of the ethical and practical issues related to closing files and contacting clients.

Voluntary Dues-Paying Member Discounted Price: $285 (electronic) $345 (print copy)

$25 (electronic)

Understanding Adoption Procedures in Nebraska

2018 Nebraska Probate Manual

This manual includes detailed instructions and forms for every aspect of adoption practice.

The 2018 Nebraska Probate Manual is a complete review and update of the probate process from the initial engagement through the final distribution and estate closing.

Voluntary Dues-Paying Member Discounted Price: $95 (electronic) $110 (print copy)

Voluntary Dues-Paying Member Discounted Price: $190 (electronic) $230 (print copy)

Nebraska Criminal Offense Penalties List

Closing A Practice

The Nebraska Criminal Offense Penalties List is created and maintained by University of Nebraska Law Professor Steven J. Schmidt and includes: felony penalties, habitual criminal sentencing enhancement and more misdemeanor and infraction penalties.

This manual addresses process steps and considerations, including ethical issues, for a lawyer voluntarily closing a practice.

$25 (electronic)

$35 (print copy)

Voluntary Dues-Paying Member Discounted Price: FREE (electronic) $12 (laminated copy)

2016 Nebraska Civil Practice & Procedure Manual

The Civil Practice and Procedure Manual covers all aspects of civil practice from case analysis through appeals.

2013 Real Estate Title Standards

Voluntary Dues-Paying Member Discounted Price: $95 (electronic) $110 (print copy) THE NEBRASKA LAWYER

$35 (print copy)

FREE (electronic)

MARCH/APRIL 2019

Know it all?

Co-Sponsored by:

Support the Nebraska Lawyers Foundation and

NSBA Corporate Counsel Section

March 15, 2019 Cunningham’s Pub and Grill 10904 W Dodge Rd., Omaha 6:00 pm - 8:00 pm Appetizers & cocktails provided.

NSBA Real Estate, Probate & Trust Law Section

Prove it!

NSBA Senior Lawyers Section NSBA Young Lawyers Section

Proceeds benefit the Nebraska Lawyers Foundation Firm/Company Name:___________________________________________________________________ Number of team members (*maximum of 6 members per team): ________ 1. Team Captain:___________________________

4. _______________________________________

2. _ _ _____________________________________

5. _______________________________________

3. _ _ _____________________________________

6. _______________________________________

Team Captain’s Phone:__________________________________________________________________ Team Captain’s Email:___________________________________________________________________ I can not attend but would like to make a donation to The Nebraska Lawyers Foundation: $____________ _____ Check enclosed OR Charge to _____ MasterCard ______ Visa ______ Discover ______ AMEX Amount enclosed or to be charged ($50 per team member): $____________ Card number: _____________________________ Card Expiration (Mo/Yr):_______ CVV Code:________ Name as it appears on credit card: ________________________________________________________ Credit card billing address: _______________________________________________________________ City: ___________________________________________ State: __________________ Zip: __________ Signature: ____________________________________________________________________________ Make checks payable to Nebraska Lawyers Foundation. Return completed form to NSBA, 635 S 14th St. #200, Lincoln, NE 68508, or Sam Clinch at sclinch@nebar.com. THE NEBRASKA LAWYER

MARCH/APRIL 2019

Upcoming CLE Programs NSBA-Produced Seminars March 15 2019 Young Lawyers Section Best Practices Seminar Creighton University School of Law, Omaha Live - NE #171734; IA #315841 Webcast - NE #171735; IA #315840 6.0 hours, including 1 hour ethics March 22 2019 Annual Estate Planning & Probate Seminar Nebraska Innovation Campus, Lincoln Live - NE #171160; IA #315244 Webcast - NE #171161; IA #315243 6.25 hours, including 1 hour ethics 7.0 hours of CPE, including 1 hour of ethics, by the NE Board of Public Accountancy [COURSE #19-71] April 24 Ethics of Online Profiles and Advertising - Conducting Research via “Open Web” Scott Conference Center, Omaha

May 3 2019 Annual Family Law Seminar Scott Conference Center, Omaha

July 11-13 2019 Advanced Estate Planning Institute Estes Park, CO

May 9-10 2019 Bankruptcy Section Seminar Embassy Suites, La Vista

August 23 2019 Business Law Seminar Gallup, Omaha

May 30 Ethics in Legal Writing and Conflicts of Interest Creighton University School of Law, Omaha

September 6 2019 Nebraska Diversity Summit Creighton University – Harper Center, Omaha

May 30 Elder Law Section Seminar Creighton University School of Law, Omaha June 14 2019 Labor Relations & Employment Seminar Kutak Rock, Omaha June 21 2019 Government & Administrative Practice Seminar University of Nebraska College of Law, Lincoln

September 13 2019 Annual Real Estate Institute Embassy Suites, La Vista October 8-11 2019 NSBA Annual Meeting Embassy Suites, La Vista November 8 2019 Workers' Compensation Seminar Embassy Suites, La Vista New seminars are added to this list weekly. Visit the NSBA Calendar at www.nebar.com for the most up-to-date listing of seminars being offered.

CLE Faculty

January - February 2019 Barron K. Henley Affinity Consulting Group, LLC Stevie Jelden Omaha Integrative Care Elise McHatton Blue Cross Blue Shield Nebraska Aurora Moreno Omaha Integrative Care

!r time U O Y K u o y THAN volunteering ams.

Todd Sexton Identillect Technologies

progr ion for preciat o NSBA's CLE p a r u O ertise t and exp

THE NEBRASKA LAWYER

Melissa Young Blue Cross Blue Shield Nebraska

MARCH/APRIL 2019

transitions

To submit a career change and/or relocation to the Transitions section of The Nebraska Lawyer, email your announcement to Amy Prenda, Editor, aprenda@nebar.com.

Career Changes.......................... ..........................and Relocations LUSTGARTEN & ROBERTS PC LLO is pleased to announce that BRITT H. DUDZINSKI has been promoted to partnership and shareholder status with our firm. Ms. Dudzinski was born and raised in Minnesota and moved to Nebraska to attend college at the University of Nebraska Britt H. in Lincoln, graduating in 2010. She attended Dudzinski law school at Creighton University, graduating in 2013. Ms. Dudzinski worked as a law clerk at Lustgarten & Roberts, PC LLO for two years before being hired as an associate attorney with the firm. Her specialties are family law and juvenile law. DEWALD DEAVER L’HEUREUX LAW FIRM P.C., L.L.O. of Holdrege, Nebraska is pleased to announce that TAYLOR A. L’HEUREUX has become a partner within the firm. Taylor is originally from O’Neill and she joined the law firm as an associate attorney in July 2015. Taylor’s primary Taylor A. practice areas include business and corporate L'Heureux law, municipal law, real estate transactions, estate planning, estate and trust administration (or probate), and juvenile law. Taylor received her Juris Doctorate from the University of Nebraska-Lincoln College of Law in 2014 and her Bachelor of Business Administration from the University of South Dakota (USD) in 2009. She also received a Master’s degree in Public Administration from USD in 2011. Taylor and her husband Kip have three young children and they enjoy the advantages and benefits of living and working in a smaller rural Nebraska town. PANSING HOGAN ERNST & BACHMAN LLP is pleased to announce that BENJAMIN J. PICK has become a partner of the firm. Benjamin was admitted to the Iowa Bar in 2011 and the Nebraska Bar in 2012. Mr. Pick graduated from the University of Iowa with a BBA in 2006, and received his law Benjamin J. Pick degree from Creighton University in 2011, cum laude. Mr. Pick’s practice focuses on business and commercial real estate transactions, mergers and acquisitions, and corporate governance matters. THE NEBRASKA LAWYER

ANDERSON, CREAGER & WITTSTRUCK, P.C., L.L.O. (ACW LAW), is pleased to announce MONA (MOLLY) BURTON has joined the firm. Ms. Burton will focus on criminal defense and civil litigation. Ms. Burton received her Juris Doctorate from the University of Nebraska College of Law in Mona (Molly) 1999 and her undergraduate degree in sociBurton ology from Kansas State University in 1995. She is licensed to practice law in Nebraska and Colorado. Prior to joining ACW LAW, Ms. Burton served as senior aide to Lincoln Mayor Chris Beutler. Before gaining experience in politics and public policy, Ms. Burton spent six years in the courtroom as an attorney in the Douglas County Public Defender’s office. MATT MASER has rejoined KOLEY JESSEN as counsel in the firm’s corporate and mergers & acquisitions practice areas. Matt was an attorney and shareholder at Koley Jessen from 1997 to September 2010 before becoming the General Counsel for Gary and Mary West’s family office, West Family Holdings, Matt Maser LLC. While working with the West Family, Matt provided insight and advice on a variety of investment and general business matters, and spearheaded the purchase and sale of numerous businesses in the mergers and acquisitions arena. Matt will be working with Koley Jessen’s award-winning mergers and acquisitions team on transactions as well as handling general corporate matters on behalf of clients. Matt received his B.S. in Accounting (with High Distinction) from the University of Nebraska-Lincoln and his J.D. (with Distinction) from the University of Nebraska College of Law. Nathan Bruner and Loralea Frank are excited to announce the addition of BERGAN E. SCHUMACHER as a partner of the law firm of BRUNER FRANK SCHUMACHER, L.L.C. Ms. Schumacher is originally from O’Neill, Nebraska. She received her Bachelor’s Degree from UNK and her Juris Doctor Bergan E. from the University of Nebraska College of Schumacher Law. Bergan primarily practices in the areas of family law, personal injury, and criminal defense throughout the state of Nebraska. MARCH/APRIL 2019

TRANSITIONS KUTAK ROCK has elected 6 new partners from its attorney ranks in its Omaha office. The promotions became effective on January 1, 2019. The attorneys elected to the partnership are: JASON M. CASKEY concentrates his practice on intellectual property protection, technology law, commercial transactions, copyrights, IP development and related transactions. With experience leading an in-house legal team and as a litigator, he keeps a pragmatic and practical focus on assisting his clients to close deals while minimizing applicable legal, business and economic risks. MICHAEL S. DEGAN (Omaha) is a first chair trial lawyer who handles commercial and business disputes, product liability, insurance and financial services litigation. He has tried more than two dozen jury trials and has appeared in more than thirty state and federal jurisdictions. His practice includes state and federal litigation, multidistrict litigation, arbitration, mediation and regulatory matters. Mike also represents renewable energy developers in regulatory and transactional matters. He is recognized by Chambers USA, Best Lawyers, and Super Lawyers and is a fellow of the Nebraska State Bar Foundation. ROBERT H. GRENNAN focuses his practice on technology and intellectual property law with a primary concentration on advising clients from a diverse array of commercial sectors in all aspects of complex technology transactions. ERIKA E. LYNCH acts as bond counsel to municipal issuers, as well as underwriters’ counsel, in connection with the issuance of municipal bonds. She works in the areas of single-family housing and state and local government finance. She also serves as bond counsel in financings for cities, counties, school districts and other political subdivisions in Nebraska in connection with general obligation and limited-tax financings for various public facilities and projects. RYAN D. PORTWOOD covers a broad spectrum of general technology transactions, specifically, health information technology, healthcare regulatory compliance, and privacy and data security. Prior to joining the firm, Ryan served as counsel/compliance officer for two healthcare organizations. CLETE P. SAMSON focuses his practice in business immigration, worksite compliance, employment law, and litigation. Having previously served for seven years as a federal trial attorney for the U.S. Department of Homeland Security, he has extensive knowledge of the Immigration and Nationality Act and the Immigration Reform and Control Act of 1986, including the proper preparation and maintenance of the Form I-9, worksite enforcement, and business immigration law issues which impact all types of employers.

KOLEY JESSEN has bolstered its growing Estate Planning team with the addition of EMILY JUNG. As trusted counsel to families, business owners, and individuals across the Midwest, Emily helps clients manage, protect, and transfer their wealth in a tax-efficient manner while accomplishing their perEmily Jung sonal and financial objectives. Emily received her J.D. from St. Louis University School of Law and her B.A. from Southern Methodist University. The Omaha law firm of CARLSON & BURNETT, LLP is pleased to announce the addition of three new partners: ANDREW “ANDY” WILSON is an Omaha native and 1991 graduate of the University of Nebraska College of Law with over twentyfive years of criminal and civil litigation experience. After starting his career with a firm in Des Moines, Andy moved back to Omaha in 1993 to join the Douglas County Public Andrew "Andy" Defender’s office. In that role, Andy’s case Wilson load included serious felony offenses, including drug trafficking, murder, and sexual assault. In 2000, Andy moved into private practice and built a civil litigation practice focused on personal injury and insurance defense. He has an extensive trial background, including over forty jury trials as lead counsel. In 2013, Andy was awarded the Jury Trial of the Year award from the Federal Public Defender’s office. He is active in his church, the Millard Rotary Club and Omaha Central Legion Baseball, for which he currently serves as president. CHARLES “CHARLIE” GRIMES grew up in Omaha and graduated from the University of Nebraska College of Law in 2011. He has spent the last seven years specializing in family law, including divorce, child custody and court order modifications and other postdivorce issues. Charlie’s favorite part of being Charles "Charlie" an attorney is navigating the judicial system, Grimes both in and out of the courtroom. He enjoys the nuances of family law and developing the specific strategy that each case requires. Charlie’s community involvement has included serving as Team Captain of the March of Dimes and chair of the Immigrant Legal Center’s Annual Fundraiser.

Deana Shaffer THE NEBRASKA LAWYER

DEANA SHAFFER is a 1997 graduate of Creighton University School of Law. The early years of her career were spent working in railroad labor relations. Following a hiatus to focus on family and community service, DeAna shifted direction and returned to the legal profession in the area of trust and estate administration. MARCH/APRIL 2019

TRANSITIONS WOODS & AITKEN is delighted to announce that KARI A. F. SCHEER has been named a partner in the firm. Scheer joined the firm as an Associate in 2013. Scheer practices primarily in the areas of construction law and commercial litigation. She advocates for businesses of all sizes throughout court proceedKari A. F. ings, mediations, and arbitrations. She also Scheer has experience litigating personal injury and labor and employment matters. Scheer is admitted to practice law in the state and federal courts in Iowa and Nebraska, as well as the United States Court of Appeals for the Eighth Circuit. She is an active member of the Eighth Circuit Bar Association where she serves on the Board of Directors. In 2008, she received her J.D. from the University of Nebraska College of Law with high distinction. ABRAHAMS KASLOW & CASSMAN LLP is proud to announce it has promoted ANDREW P. DEAVER to partner of the firm and has added KEVIN J. O'KEEFE, CHRISTOPHER O. ESTWICK, PETER M. LANGDON, and M. TYLER JOHNSON as associates. ANDREW P. DEAVER focuses his practice on estate planning, probate and trust administration, guardianships and conservatorships, and business organizational and contractual matters. He is an active volunteer in the U.S. Small Business Association’s SCORE, assisting future business owners with startup Andrew P. considerations. Deaver received his B.A. in Deaver Chemistry from Dordt College in 2005 and his J.D., cum laude, from Creighton University School of Law in 2010. Deaver joined the firm as an associate in 2013. He is admitted to practice in Nebraska and Iowa. KEVIN J. O'KEEFE brings over 10 years of experience to the Firm’s litigation team. O’Keefe will focus his practice on insurance defense, insurance coverage opinions, commercial litigation, estate litigation, and criminal defense. Prior to joining the Firm, O’Keefe worked in private practice as a Kevin J. O'Keefe civil litigator and also spent two years as an Assistant Ford County Attorney in Dodge City, Kansas, where he gained significant trial experience. O’Keefe obtained his B.A. from Rutgers University in 2005 and his J.D. from Washburn University with Deans Honors in 2008. He is admitted to practice in Nebraska, Kansas, Ohio, and New Jersey.

THE NEBRASKA LAWYER

CHRISTOPHER O. ESTWICK has joined the firm’s business department. Estwick focuses his practice on business and corporate law with an emphasis in intellectual property and technology law, corporate structuring, commercial lending, franchising, and real estate matters. He received his B.A. from Christopher O. Creighton University in 2010 and his J.D. Estwick from the University of Iowa College of Law in 2014, where he served as a note and comment editor for the Journal of Corporation Law and received the Willard L. Boyd Public Service Award. Estwick currently serves on the Board of Directors for the Urban League of Nebraska. PETER M. LANGDON focuses his practice on corporate matters, commercial transactions, and employment law. Langdon received his B.A. from the University of NebraskaLincoln in 2014 and his J.D. from Creighton University School of Law in 2017. During law school, he served as the Executive Editor Peter M. of the Creighton Law Review. Langdon Langdon is currently pursuing his LL.M. in taxation from Villanova University and will graduate in the fall of 2019.

M. Tyler Johnson

M. TYLER JOHNSON assists clients in a wide variety of matters, including entity formation, corporate governance, intellectual property, real estate, general business law matters, and estate planning. Johnson graduated, cum laude, from Wayne State College in 2014 and earned his J.D. from Creighton University School of Law in 2018, where he was a member of the National Moot Court Team.

The Omaha law firm of GROSS & WELCH is pleased to announce ADAM J. WACHAL has been elected as a Shareholder of the firm. Mr. Wachal earned his law degree from Creighton University in 2010, where he graduated with honors. He received his undergraduate degree from the University of Adam J. Wachal Nebraska. While at Creighton, Mr. Wachal received the CALI Excellence for the Future Award in the areas of Federal Income Taxation, Alternative Dispute Resolution, Debtor-Creditor Relations, Marriage and Divorce, and Mortgages. He was also awarded the American Bankruptcy Institute Medal of Excellence. In addition to his awards, Mr. Wachal served as the Assistant Editor of the Creighton Law Review. Mr. Wachal’s practice has been primarily focused on civil litigation, insurance defense, insurance coverage litigation, and appellate practice. Mr. Wachal is licensed to practice in Nebraska and Iowa MARCH/APRIL 2019

TRANSITIONS AND AWARDS AND RECOGNITION CORDELL & CORDELL, the world’s largest domestic litigation firm representing men in family law cases, has announced the opening of its first office in Lincoln. Cordell & Cordell has more than 200 attorneys working in more than 100 offices across the United States and the United Kingdom. The firm was founded in 1990 in St. Louis by Joseph Cordell and his wife, Yvonne. Since then, Cordell & Cordell has established itself as a leader in family law devoted to equal rights for men facing divorce. In 2015, the firm expanded internationally by opening an office in London. The new Lincoln office (233 S. 13th St., Suite 1100, Lincoln, NE 68501) will broaden the opportunities for divorcing dads to gain information and counsel. This is the firm’s second office in Nebraska with another location in Omaha.

Awards and Recognition JEFF HANSEN, SVP & Associate General Counsel for TROON GOLF located in Scottsdale, Arizona was recently awarded the 2019 Arizona Counsel of the Year for large private companies. Hansen, a member of the Nebraska Bar Association is a 1990 graduate of the University of Nebraska College of Jeff Hansen Law. Hansen worked for Simmons Olsen Law Firm in Scottsbluff, Nebraska from 1990 to 2008 before moving to Scottsdale, Arizona to begin working at Troon.

STEPHEN S. GEALY, a senior partner at BAYLOR EVNEN, LLP who works regularly as a mediator, has been inducted into the National Academy of Distinguished Neutrals (NADN). The NADN is a professional association the membership of which consists of ADR professionals distinguished by their Stephen S. Gealy hands-on experience in the field of civil and commercial conflict resolution. Membership is by invitation only and all Academy members have been thoroughly reviewed and found to meet stringent practice criteria. Members are among the most in-demand neutrals in their respective states, as selected by their peers and approved by local litigators. Mr. Gealy is also a Fellow of the American College of Trial Lawyers, a Fellow of the International Society of Barristers, a Fellow of Litigation Counsel of America and a member the American Board of Trial Advocates.

Thank You to our Greater Nebraska Golf Scramble Sponsors (as of press time)

Co-Sponsors

• McCarthy & Moore, LLP • Mueller Robak LLC • NAI FMA Realty •N ebraska Court Reporters Association •R ehm Bennett Moore Rehm & Ockander PC, LLO •P arker Grossart Bahensky Beucke Bowman & Symington, LLP • Tabs3 Software • West Gate Bank

• Lamson, Dugan & Murray, LLP • McGrath North Mullin & Kratz, PC LLO • Mercer Consumer • Smart Start, Inc

Hole Sponsors • Berreckman, Davis & Bazata, PC, LLO • Brouillette, Dugan & Troshynski, PC, LLO • Croker, Huck, Kasher, DeWitt, Anderson & Gonderinger, LLC • Endacott Peetz & Timmer, PC LLO • Goosman Law Firm, PLC • Johnson Flodman Guenzel & Widger • Lindemeier Law Office THE NEBRASKA LAWYER

To join this list of sponsors, contact Sam Clinch at 402-742-8125. If you'd like to golf at the Scramble on June 14, 2019, register your team using the form on page 62. 79

MARCH/APRIL 2019

in memoriam

WAYNE E. BOYD, 79, of South Sioux City, NE, passed away on January 29, 2019. Wayne was born August 6, 1939 in Lebanon, NE to Thomas and Rava (Winters) Boyd. Valedictorian of his graduating class at South Sioux City High School, he also served as class president. He attended Iowa State University Wayne E. Boyd on a full ride NROTC scholarship. He graduated from Morningside College and received his law degree magna cum laude from the University of South Dakota. Wayne married his high school sweetheart Diane Davis, on June 1, 1963. A devoted husband and "Papa", he treasured time spent with his family. He established his law practice in South Sioux City where his clientele quickly flourished. A firm believer in public service and giving back to his community, when he was asked in 1966 to serve as the City Attorney of South Sioux City, he enthusiastically accepted the role. He continued to so serve for 50 years as requested by each successive Mayor. He served Dakota City for 28 years and Hubbard for 26 years as their city attorneys, as well. He enjoyed helping his clients with their legal needs, but the satisfying relationships he built with them kept him practicing to his final days. He valued his interactions with everyone at the cities he served, in the courts where he practiced, in the legal community and he appreciated the deep friendships he developed over his lengthy career. He was elected to the Nebraska Public Power board of directors and served for 31 years. He was board chairman for 10 years and chaired the NPPD nuclear committee. He was past president of Rotary and the South Sioux City Chamber of Commerce, a 50+ year member of the Masonic Lodge and a Shriner. In 2008, the children's room in the South Sioux City Public Library was dedicated as the "Wayne E. Boyd Children's Area" in recognition of the Boyd family's long focus on assisting children to read. In 2018, Wayne received the South Sioux City Hall of Fame award in recognition of his 50 years of dedicated service to the City. Wayne enjoyed traveling with Diane, a good round of golf and his cat, Missy. He was proud to be a lifelong Nebraskan and was a die-hard Husker football fan. Left to honor his memory are his wife of 55 years, Diane; children, Scott Boyd, Laurie (Joe) Petty, Lynde (Dan) Tyrrell; grandchildren, Jessica, Alex, Brandon, Chloe and Kelly; his sister, Karen Moore; and his secretary of over 30 years, Connie Larsen, who became like a part of our family. He was preceded in death by his parents, Thomas and Rava Boyd; step-father, George Black; and sister, Sharon Boyd.

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FREDERICK “FRITZ” S. CASSMAN passed away on January 20, 2019 in Omaha. Fritz graduated from the University of Illinois in 1947 where he was a member of Sigma Alpha Mu Fraternity. He graduated from Harvard Law School in 1949, and he practiced at the law firm of Abrahams Kaslow and Cassman Frederick "Fritz" for over 65 years. His civic service included S. Cassman serving as a 10-year member of the Omaha Airport Authority and on the board of Nebraska Appleseed. He was a past-president of ADL Nebraska and a member of the board of Temple Israel. He was preceded in death by his parents Celia and Irving Cassman and sister Claire Krasnow. He is survived by his wife of 67 years Molline; daughter and son-inlaw, Amy and Sandy Friedman of Omaha, son, Joel Cassman of Arlington, VA, and son and daughter-in-law, Bob and Kym Cassman of Spokane, WA; grandchildren: Andrea Friedman of New York City; Dusty and Candice Friedman, Noriko Cassman of Utrecht, Netherlands, Sarah Cassman of Wichita, KS, Eva Cassman of Vienna, VA and Terra Miller-Cassman of Boise, ID; great-granddaughter, Frankie of Omaha; and stepgrandson, Larson Sonderman of Seattle, WA. DENNIS MICHAEL COLL died peacefully in Las Vegas, NV on March 28, 2018, at the age of 74, with his family by his side. Dennis is survived by his sons Patrick of New York, NY and Michael of Danbury, CT, his sister Maureen Denicke, of Mill Valley CA, and brother Charles Coll of Austin, TX. Dennis was born on June 2, 1943 in Darby, PA. He graduated from Lansdowne-Aldan High School in 1961, West Chester State College in 1966, with a degree of Bachelor of Science in Education, and from the University of Nebraska College of Law in 1971. Dennis proudly served in the United States Army. After law school, Dennis was admitted to both the Nebraska and Wyoming State Bar Associations, spending the beginning of his professional life in private practice. He ended his career with the State of Wyoming Attorney General’s Office as an advocate for mental health reform and representing the transportation department. He was known for his intellect, wit, generosity, and love for life. Dennis had an off-beat sense of humor that was always intended to bring a smile. After retirement, Dennis moved from Southeast Wyoming to Las Vegas where he could keep the convertible top down and wear his shorts all year around. All that knew Dennis, knew that he lived life on his terms. He will be missed.

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IN MEMORIAM RICHARD E. CROKER passed away January 2, 2019. He received his J.D. from Creighton University School of Law in 1957. In 1979 he and Robert Huck founded Croker, Huck, Kasher, DeWitt, Anderson & Gonderinger, L.L.C. in Omaha. He was a member of the Nebraska and Iowa State Bar Associations and Richard E. the Omaha Bar Association, where he served Croker as secretary from 1981 - 1987 and President 1988-1989. Survived by wife, Jane; son, John (Bobbie); daughter, Cathy Eben; 5 grandchildren; 4 great-grandchildren; brothers, James J., John F.; nieces and nephews. Preceded in death by brother, Vincent; sisters, Coletta, Calista. ROGER R. HOLTHAUS, Omaha, passed away December 18, 2018. He is survived by son, David Randall Holthaus and foster son, Scott Carroll. LEIGH ANN KENNEDY, 48, of Iowa City, passed away surrounded by loving family members and friends on December 14, 2018, after a courageous 18 months living with cancer. Leigh Ann was born February 18, 1970, in Toledo, Ohio, to Peter E. and Barbara (Kochinski) Kennedy. After spending Leigh Ann her youngest years living in a variety of cities Kennedy around the country, her family settled in Iowa City, where she met the best friends of her life, and graduated from Regina High School as Salutatorian in 1988. During high school, she was MVP of the swim team and a member of the cheerleading squad. Leigh Ann received a bachelor’s degree from the College of the Holy Cross with concentrations in French and Chinese languages, and served as manager of the Crusaders swim team for four years. She received a Juris Doctor degree from Creighton University School of Law, where she was a published member of the Creighton Law Review. At Creighton, Leigh Ann met the love of her life, David Christopher Poe, who she married at St. Wenceslaus Catholic Church in Iowa City on May 24, 1998. Together, they lived in Colorado Springs and Portland, Oregon, before returning to Iowa City in 2011. Leigh Ann worked as an attorney in several positions before finding her ultimate calling at home with her children. Raising and homeschooling her children, Josh, Beth, and Zach, was the great joy of Leigh Ann’s life, and enabled her to share her beyond-loving heart, her fun yet gentle spirit, and her deep faith in a genuine way. Her treasured friendships and deep commitment to family provided the foundation for a joyful, well-lived life. As a natural community builder, Leigh Ann loved serving others, preparing meals, and making everyone feel welcome in her presence. She was a faithful member of St. Wenceslaus Catholic Church where she coordinated the meals ministry. In addition to her husband and children, Leigh Ann is survived by her parents Dr. Peter E. THE NEBRASKA LAWYER

and Barbara J. Kennedy of Iowa City; siblings Kelleen Kennedy of Phoenix, AZ, Peter E. (Karla) Kennedy III of Omaha, NE, and Sean (Karen) Kennedy of South Bend, IN; father- and mother-in-law Dr. David F. and Sally Poe of Gallup, NM; brothers-in-law Steve (Beeling Armijo) Poe of Albequerque, NM, Bob (Mary) Poe of Dallas, TX, and Mike (Katherine) Poe of Dallas, TX; 13 nieces and nephews; and several aunts, uncles, and cousins. She was preceded in death by her maternal grandparents Robert and Nadine (Wallace) Kochinski and her paternal grandparents Peter and Delia (Daly) Kennedy. BRADFORD F. KOLLARS, 69, of Sioux City, passed away on Friday, Nov. 30, 2018, at his home. Brad was born July 1, 1949, in Yankton, S.D.; he was the son of Trudo and Enid (Evans) Kollars. Brad grew up in Crofton, Neb., and graduated from Crofton High School in 1967. He graduated from the Bradford F. University of Nebraska in 1971 and received Kollars his Law Degree from the University of Texas. Brad practiced law in Sioux City for 36 years from 1976 until 2012. He was a dedicated lawyer who worked hard and advocated for his clients. On May 20, 1978, Brad married Mary Kay Goetz in Hartington, Neb. They shared 40 years of marriage, as well as a love of travel, hosting friends, and raising their daughter, Kate. Brad enjoyed running, sailing, and horseback riding. He was a member of the Democratic Party and cared deeply about environmental causes. He also loved animals and had many rescued pets over his life. Survivors include his wife, Mary Kay of Sioux City; his daughter, Kate Kollars of Ann Arbor, Mich.; his mother, Enid Kollars of Sioux City; his brothers and sisters, Dana Kollars (Chun Ae) of Two Harbors, Minn., Rhoda Ganzel (Terry) of Sioux City, Bert Kollars of Overland Park, Kan., Craig Kollars (Rita) of Birmingham, Ala., Michelle Rife (Craig) of Sioux Falls, S.D., Beth Bruening (Steve) of North Sioux City, S.D., and Lynn Stoltz (Dan) of Lake Lotawana, Mo.; and numerous nieces and nephews. Brad was preceded in death by his father, Trudo Kollars; and his uncle and mentor, Bert Merlin Evans. MICHAEL J. JAVORONOK, 69, of Scottsbluff, passed away with his loving family at his side on October 14, 2018, at the Mayo Clinic in Rochester, MN, after a short battle with leukemia. He was born on August 12, 1949, in Worcester, Massachusetts, to Michael and Dorothy (Carroll) Javoronok. Michael graduated from St. John's High School in Shrewsbury, Massachusetts in 1967, the University of Pennsylvania in 1971, and Creighton University Law School in 1975. He was a member of the St. John's and freshman UPenn crew teams. He began practicing law as a deputy county attorney for Dodge County in Fremont, Nebraska. He moved to western Nebraska in 1978 and served as a deputy county attorney for Scotts Bluff

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IN MEMORIAM County until entering private practice in 1981. He opened his own firm in 1990. In his work as an attorney, he strove to help those who needed help and to make his clients' lives better. He was an accomplished lawyer trying cases around the state and in front of the Nebraska Supreme Court. He was president of the Nebraska Association of Trial Attorneys in 1998 and the Scotts Bluff County Bar Association in 2005. Michael was courageous, determined, smart, honest, opinionated, wise, loving and generous. He had an intensity and an optimism to his personality. His stories, and his ability to give advice in nearly every situation - with quotes ranging from Greek philosophers to rock stars - will be missed. Film and digital photography served as a creative outlet, and his photographs were exhibited as part of a joint photography show at the West Nebraska Arts Center. From the age of two, he and his family enjoyed visiting the coast of Maine, especially summers at the beach. He is survived by his wife, Delinda Mercer of Scottsbluff, Nebraska; daughter, Sara Javoronok of Salt Lake City, Utah; stepchildren Sarah, Sean, and Soren Mercer-Smith of Scottsbluff, Nebraska; sister, Marion, wife of Robert Szklarz of Leicester, Massachusetts; two nephews, and a niece. He was preceded in death by his parents.

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DEBORAH K. LONG (Deb) of Diamond Bar, CA, formerly Lincoln, NE, passed away suddenly on January 19, 2019. She collapsed while on her morning run. She was taken to a local hospital, where she died. Her spouse, Linda Garrison, was with her when she passed. A native of Ohio, Deb was born Deborah K. December 14, 1953. She studied political sciLong ence at Wittenberg University in Springfield, Ohio and was a member of the womenâ&#x20AC;&#x2122;s softball team. After graduating she served in as a VISTA Volunteer, which is the domestic version of the Peace Corps, and was a Congressional aide in Washington, D.C. Deb decided to study law and graduated from the University of Nebraska College of Law in 1981. Deb practiced law in Lincoln and was an avid runner, hiker, cyclist, skier and golfer. She competed in triathlons and marathons in the Midwest and was a member of the Lincoln Womenâ&#x20AC;&#x2122;s Municipal Golf Association (LWMGA). Deb moved to Southern California in the early-1990s where she made a career change from law to golf and attended the Professional Golf Career College (PGCC) in Temecula, CA.

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IN MEMORIAM Following graduation there, she interned for the Western American Golf Association then joined the staff of Women’s Southern California Golf Association (WSCGA). Deb did golf course rating, taught USGA Golf Rules classes, and ran junior girls golf events. She recently directed LPGA golf tournaments, as well as many USGA regional tournaments and qualifiers in California. She became Assistant Director of WSCGA in 2010 then was named Director in 2015. WSCGA merged with Southern California Golf Association (SCGA) in 2017. Deb worked on the transition for member clubs and became Manager of Golf Services for SCGA. Deb loved the game of golf and was an active member of the of the Industry Hills Women’s Golf Association. She served as President and played on the A-Team in club competitions for IHWGA throughout California. She was an avid reader and amassed an extensive “library” in her home. She enjoyed a wide variety of topics, but history, politics and sports dominated. Also, Deb had a special place in her heart for animals. She loved to run with a dog. She helped animals in need of love and rescue. Rescued cats became part of her family. An abandoned bunny at the Industry Hills golf course caught her attention one afternoon during play. She worried that the vultures would get him, so she lured him with tempting treats, trapped him and brought him home. “Apricot” eventually had his own “bunny ranch” in the loft. He was able to “watch over” household activities, listen to classical music and watch television. Sports always played a major role in Deb’s life. Deb’s Dad introduced her to golf. Recently, she said her “Dream Foursome” would be with her Dad, Jack Nicholas and Lizette Salas. She explained that “Jack, of course, is the greatest golfer and only golfer to dot the “i” for the script Ohio ; Lizette demonstrates all that is great about the game and how to achieve a dream that seems out of reach for those who come to the game through family support and desire; my Dad taught me to love the game.” Deb remained a life-long Ohio State football fan, but cheered for the Huskers when they weren’t playing OSU. After moving to California, an Industry Hills golf friend introduced Deb to University of Southern California football, and she became an avid Trojan booster, attending all home games in the Coliseum. Having more than one favorite team was not an issue. Rather, it was matter of settling preferences each game. Deb is survived by her spouse Linda, father Burt in Ohio, mother Dorothy (Dot) in Palm Springs, CA and the family cats Ti, Kia and William (Will), all rescue kitties who loved their Momma Deb. Deb had many friends throughout the United States. Her gentle, loyal, caring spirit and her contagious sense of adventure will be greatly missed by all. Her dedication to junior golf programs and other causes will leave a significant void to be filled. Services or memorial gatherings are not scheduled at this time. Her remains will be given to Loma Linda University Medical Center for study. THE NEBRASKA LAWYER

JANE R. MAPES-JENKINS, age 77, died in Norfolk on December 26, 2018. She was born April 20, 1941, to Herman and Phebe (Jamison) Rosch, and graduated from Benson High School in 1959. She graduated Magna Cum Laude from Wayne State College in 1976 with a decree in History. From her earliJane R. er undergraduate attendance at Northwestern Mapes-Jenkins University and University of NebraskaLincoln, Jane was a member of Pi Beta Phi and Kappa Kappa Gamma. After receiving her baccalaureate degree, Jane was a substitute teacher for several years before attending the University of Nebraska Law School from which she received her Juris Doctorate in 1982. As the first female lawyer to practice in Norfolk, Jane worked for Domina Law Office and John Gerrard Law Office before starting her own practice of estate planning and probate. Jane continued to enhance her practice by attending Harvard Law School’s Program of Instruction for Lawyers (Estate Planning, 1992); University of Wisconsin Law School’s Estate Planning In-Depth Seminar, 1993, 1994, 1996; Notre Dame Institute Tax and Estate Planning, 1997; Great Plains Tax Institute, 1994-2001; Vail Estate Planning Institute, 1998; and NCLE Estate Planning Seminars, 19852001. Jane retired in 2001 and worked part-time for Jewell & Collins Law Office, in Norfolk. She served on the Norfolk City Council from 1989 to 1996, and was a member of the Local Elected Officials Board, State of Nebraska, 1987-1989, and served as a Board of Trustees member of Wayne State College. In addition to her life as a lawyer, Jane devoted over 30 years to helping people in need of support for recovery. In 1973 Jane married Merle Mapes who passed away in 1995. Jane married Larry Jenkins in Norfolk on October 25, 1996. John is survived by her husband, Larry, her sister, Ann (Timothy) Duffield, 8 step-children, 25 step-grandchildren, 9 step-great-grandchildren, and a cousin, Barbara Christie. She will be missed. GEORGE A. PENRY died January 14, 2019. In his long career as an attorney, his practice of law spanned 53 years and saw him admitted to the United States Supreme Court, the United States Tax Court, United States District Court, and all Nebraska Courts. He received his Juris Doctorate from Creighton University in 1966, graduating cum laude as the highest ranking member of his class. From 1968 to 1970 he served as Counsel for the U.S. Senate Subcommittee of Judicial Improvements under the late Roman L. Hruska, U.S. Senator-Nebraska. In 1970 he entered private practice in Omaha, where he continued until his death. George enjoyed playing golf, skiing, coaching soccer, and collecting Legos, trains and antique golf clubs. Survived by loving wife, JoAnn (Dohse) Penry, whom he married on August 28, 1965 at St. Patrick Catholic Church in Fremont; children, Kim Harrison (Kelly), Jill Beam, and Mark Penry; grandchildren,

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IN MEMORIAM Trevor and Ben Harrison, Nathan and Audrey Beam, Elizabeth “Liz,” McAndrew “Mac” and Magdalene “Molly” Penry; siblings: Frank (Claudeen), Mary Longbrake, and Cathe Voecks; numerous nieces and nephews. Preceded in death by parents, Earl and Winona Penry. GENE C. STEVENS, 85, passed away peacefully surrounded by loved ones on May 12th, 2018. He was born in Omaha, NE on June 29th, 1932 to Gurden B Stevens and Ethel N Rickert. He graduated from the University of Nebraska, with degrees in Business Administration and Law. Gene was a memGene C. Stevens ber of the Nebraska and Arizona State Bar Associations. He began his career at State Farm in Omaha and transferred to Phoenix in 1960. Gene subsequently became a partner in the Law Firm of Hofmann, Salcito, Stevens and Meyers. He was known by his family and friends as a humble, patient, gentle, and faithful man. Gene loved all sports, especially Nebraska football, and was a longtime Phoenix Suns ticket holder. He was a loving devoted husband of 62 years and a kind and generous father, grandfather and great-grandfather. He is survived by his wife Janet(Jan), son Scott (Nancy), son Jeff (Sharon,) his grandchildren, Alexandra Read (Kyle), Lindsey Smidlein (Scott), Colin, Brian, Carley, and great grandson, Christian Read. Gene impacted many people throughout his life and will be dearly missed by his family and friends.

FRANK SVOBODA, who ran for Senate last year as the oldest candidate for a Nebraska statewide office, died Jan. 29, 2019, at the age of 94. Frank was born on July 29, 1924, and grew up in Lincoln. He was the son of Frank L. Svoboda and Anna (Beck) Svoboda, brother of the late Don Svoboda and Rosanne Frank Svoboda (Svoboda) Hannah. He attended Lincoln High School and was a champion debater. He served in the Philippines as a staff sergeant for the artillery during World War II and then attended the University of Nebraska-Lincoln and obtained a law degree from Creighton University. He built and operated a popular motel in Council Bluffs across from Playland Park and ran for the Nebraska Legislature. Farming opportunities drew him out to western Nebraska, where he also began a private law practice in Sidney and then Ogallala. He served on the Ogallala City Council, as Keith County attorney, and then district judge. Frank’s successful farming/ranching operation was centered in the Ogallala and Grant areas where he pioneered the use of center pivot irrigation. With his wife, Anne, Frank started the first ARC organization in the area. He was a director for the Twin Platte NRD, a member of the Elks Club, and a Knight of Columbus of the highest order. Having served as Republican National Convention delegate several times, he ran for Regent as a Republican in 2010. His platform for Senate in 2018 was mainly focused on agricultural issues. Preceded in death by his wife, Anne Marie Walsh Svoboda (formerly of Omaha), Svoboda is survived by seven children and 18 grandchildren, including Terese Svoboda (Steve Bull) of New York City, Amy Svoboda (Don Andrews) of Lincoln, Katy Hunt (Stuart) of Silver Spring, Maryland, Jane Svoboda of Lincoln, Patrick Svoboda (Camille) of Ogallala, Mary Svoboda (Brian Perkinson) of Chicago, Illinois, Jerry Svoboda (Andrea Fisk) of Portland, Oregon. The memory of your colleagues may be honored with a memorial to NSBA’s Nebraska Lawyers Foundation, 635 S 14th St. #200, Lincoln, NE 68508. 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. Your assistance is appreciated in sharing this important information with your colleagues.

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MARCH/APRIL 2019

classified ads ATTORNEY: Small AV law firm in east-central Lincoln seeks a third, and possibly fourth, lawyer to share office space and expenses and consider possible affiliation. We have a client book of prominent local businesses and institutions as well as the usual cross-section of Nebraska middle class life. If this is a conversation that you think might interest you, or if you simply want to solo it in a nice office suite shared with very good lawyers and their staff, send a letter and CV or equivalent, and anything else you think might be of interest to us, to admin@morristituslaw.com. DEPUTY COUNTY ATTORNEY – LINCOLN COUNTY ATTORNEY’S OFFICE: The Lincoln County Attorney’s office is hiring a full time Deputy County Attorney. Job duties include child support, juvenile, criminal, civil and mental health duties. The position comes with a benefits package including health insurance, paid vacation and sick leave, life insurance policy, and retirement plan. Starting salary is $60,000 or commensurate with experience. Applicants can apply by sending a cover letter, resume, and references to Kerri Diebert, 301 N. Jeffers, Suite 101A, North Platte, NE 69101 or email krusekf@co.lincoln.ne.us. FOR SALE - LAW OFFICE CONTENTS: - Nebraska Reports, Vol. 1-274 - Nebraska Appellate Reports, Vol. 1-15 - Moore's Federal Practice, 11 volumes - Amjur Legal Forms 2d, Vol. 1-20 - Amjur Proof of Facts 2d, Vol. 1-35 - 8 foot conference table w/8 upholstered chairs - 4-drawer, legal size file cabinets and more.

Excellent writing, analytical thinking, and communication skills are required. No previous work experience as an attorney is required, but you must be a licensed attorney in the State of Nebraska or soon to be licensed. Starting salary is based on experience. The position comes with a benefits package including health insurance, paid vacation and sick leave, retirement plan, CLE and bar dues. Adams County is an Equal Opportunity Employer. Interested candidates who meet the qualifications should mail their resume and cover letter to: Adams County Public Defender, 500 N. Denver Avenue, Suite 3, Hastings, NE 68901. You may also send your resume and cover letter by email to Shon Lieske, Adams County Public Defender, and our Legal Secretary, Patti Feldman, at slieske@adamscounty. org and pfeldman@adamscounty.org ATTORNEY: The City of Crete, Nebraska is seeking to hire a full-time City Attorney. Candidates must be admitted to practice law in the State of Nebraska. The City Attorney shall advise the City Council, Mayor, City Administrator and various City boards and commissions. The City of Crete offers a competitive salary and other employment benefits. How to Apply/Contact: Tom Ourada, City Administrator, 243 East 13th Street, Crete, NE 68333, tom.ourada@crete.ne.gov.

Call (402) 764-7071 to inquire or for more information. HALL COUNTY ATTORNEY'S OFFICE - DEPUTY ATTORNEY POSITION: Hall County Attorney's Office is seeking an attorney to fill the full-time position of Deputy County Attorney. Duties may include various levels of criminal prosecution, child support enforcement, juvenile court, civil litigation and mental health board proceedings. Motivated individuals with a strong interest in criminal and civil litigation are encouraged to apply. Candidates with zero to three years' experience and/or newly admitted attorneys with strong credentials will be considered. Admission to Nebraska Bar is required. Send cover letter, references and resume to: Martin Klein, Hall County Attorney, 231 South Locust Street, Grand Island, NE 68801, or email bunnys@hallcountyne.gov or fax to (308) 385-5111. Position is open until filled. Hall County is an EOE.

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ASSISTANT PUBLIC DEFENDER - ADAMS COUNTY PUBLIC DEFENDER'S OFFICE: The Adams County Public Defender's Office in Hastings, Nebraska is searching for a full time attorney to join our team. Job duties will include handling Criminal, Juvenile, Mental Health, and Child Support Enforcement cases, in some capacity. Additional duties may include appellate work for Criminal and Juvenile clients.

HEARING OFFICER: The Nebraska Department of Education (NDE), is seeking an attorney admitted in Nebraska to serve as an impartial hearing officer for special education related matters and/or matters involving Child and Adult Care Food Program (CACFP). Hearing officers are required to enter into a contract for services with NDE to hear cases as assigned and may be required to attend paid mandatory training. Typically a hearing officer is assigned 2-4 cases per year that may or may not require an administrative hearing. Applicants should have at least three years of trial experience with additional administrative hearing experience along with knowledge of the federal Individuals with Disabilities in Education Act and/or the Department of Agriculture regulations regarding the CACFP program. The current rate of pay is $75 - $100 per hour. Applicants must submit a resume, hourly rates, other pertinent information along with whether the applicant wishes to be considered for both the special education related hearings and CACFP programs or just one of the programs to: nde.guidance@nebraska.gov. MARCH/APRIL 2019

THE NSBA REAL ESTATE, PROBATE AND TRUST LAW SECTION PRESENTS:

2019 ANNUAL ESTATE PLANNING AND PROBATE SEMINAR

FRIDAY

MARCH 22, 2019 8:30 AM - 4:15 PM NEBRASKA INNOVATION CAMPUS 2021 TRANSFORMATION DRIVE LINCOLN NEBRASKA

[8:30 am]

Conflict and Desire: Conditions in Estate Planning Dennis W. Collins, Jewell & Collins

[9:30 am]

Probate Disputes — Part 1

Sheila A. Bentzen, Rembolt Ludtke LLP Daniel E. Klaus, Rembolt Ludtke LLP

[10:15 am]

Break

[10:30 am]

Probate Disputes — Part 2

[11:15 am]

A View from the Bench

[12:00 pm]

Lunch

Sheila A. Bentzen, Rembolt Ludtke LLP Daniel E. Klaus, Rembolt Ludtke LLP

Hon. Linda Caster Senff, 5th Judicial Court Hon. Todd Hutton, 2nd Judicial Court

[1:00 pm]

Mediation — Not Just for Personal Injury Cases

[1:45 pm]

Managing Clients

[2:15 pm]

Break

[2:30 pm]

Probate Appeals

[3:15 pm]

Professional Responsibility in Probate Matters

ACCREDITATION FOR REGULAR / LIVE NE MLCE #171160 IA MLCE #315244 6.25 CLE hours / 1 hour ethics

Mark A. Christensen, Cline Williams Wright Johnson & Oldfather, LLP

John A. Svoboda, Gross & Welch, PC LLO

Jeanette Stull, Atwood, Holsten, Brown, Deaver & Spier, PC

Hon. Patrick McDermott [Retired], 5th Judicial Court

THANK YOU to our sponsors

ACCREDITATION FOR DISTANCE LEARNING NE MLCE #171161 IA MLCE #315243 6.25 CLE hours / 1 hour ethics This program has been approved for 7.0 hours of CPE, including 1 hour of ethics, by the NE Board of Public Accountancy [COURSE #19-71] Only 5 distance learning CLE hours may be claimed per year for Nebraska

THE NEBRASKA LAWYER

MARCH/APRIL 2019

[REGISTRATION FORM]

2019

ANNUAL ESTATE PLANNING AND PROBATE SEMINAR FRIDAY MARCH 22, 2019 8:30 AM - 4:15 PM c I will attend the live seminar at the Nebraska Innovation Campus *Lunch will be provided. Please note any dietary requirements / restrictions: _________________________________________________________________

c I will attend the seminar via live webcast c $406 - Regular Registration

c $312 - NSBA dues-paying member

c $451 - Regular Registration + printed materials

c $357 - NSBA dues-paying member + printed materials

c FREE - Law Students

c $45 - I am unable to attend, please send me the printed materials

Check amount $_______ Check # _______

PAYMENT by CREDIT CARD: AMEX _______ Discover _______

MasterCard _______ Visa _______

Amount to be charged $_______

Card # ________________________________________________________________________

Expiration Date _________ Mo/Yr

CVV Code_______ Please print name on credit card ______________________________

Credit card billing address [if different from above] ____________________________________________________________________ City _________________________ State _______ Zip __________

Signature____________________________________________________

How did you hear about the CLE event?

Email (eCounsel, listserv, etc.)

__ Social Media __

Nebraska Lawyer

__ Another NSBA CLE event

__ NSBA

print mailing

__ Other

www.nebar.com

Return completed form to NSBA:

NSBA CLE Cancellation Policy:

635 S 14th St. #200, Lincoln, NE 68508, or email to Karla Roscoe at kroscoe@nebar.com.

• A full refund will be granted only when a cancellation request is received at least 72 hours prior to the live or distance-learning CLE event.

If you do not receive an email confirming your registration, please call 402-475-7091. If you need any special accommodation for attending this event, please contact the NSBA.

THE NEBRASKA LAWYER

MARCH/APRIL 2019

BUSINESS SAVINGS PROGRAM

Pricing Summary & Program Advantages 20% to 55% off retail on cleaning & break room items.

20% to 55% off item office supply core list.

My Files and Brand Identity Access

10% off branded; 20% off private brand ink & toner core list.

Average 10% off retail on 200 technology core items.

Free next-day shipping on orders of $50 or more.

Special pricing on copy and print services $0.027 black and white copies $0.29 color copies 40% off finishing services

Plus, 5%-10% off virtually all products at Office Depot OfficeMax. Just use your exclusive Nebraska State Bar Association Store Purchasing Card, shown at the right. Get your Store Purchasing Card sent to your phone right now. Just text “NEStateBarCard” to 555-888. To shop online, register at http://bit.ly/NEStateBar_OD. This Office Depot business savings program is administered by Excelerate America.

THE NEBRASKA LAWYER

MARCH/APRIL 2019

Thank you to the following law firms, corporate sponsors and NSBA sections for their support of the 2019 Barristers’ Ball. Gold Sponsors

• Houghton Bradford Whitted PC, LLO • Kutak Rock LLP • Mercer Insurance • Mueller Robak LLC • Pinnacle Bank Silver Sponsors

• Baird Holm LLP • Baylor Evnen, LLP • Berry Law Firm • Cassem Tierney Adams Gotch & Douglas • Cline Williams Wright Johnson & Oldfather, LLP • Creighton University School of Law • The Daily Record • Dvorak Law Group, LLC • Fidelity National Title Group

• Goosmann Law Firm, PLC • Hauptman O'Brien Wolf & Lathrop, PC • Kasaby & Nicholls, LLC • Kiewit Corporation • Lamson Dugan & Murray, LLP • Locher Pavelka Dostal Braddy & Hammes, LLC • Mattoon Martens & Strommen • McGrath North Mullin & Kratz, PC LLO • Mick Law PC, LLO • Minnesota Lawyers Mutual Insurance Company • NSBA Young Lawyers Section • Prentiss Grant LLC • Rembolt Ludtke LLP • Sarpy County Public Defender’s Office • Schirber & Wagner, LLP • University of Nebraska College of Law

Proudly offering health and dental coverage to Nebraska State Bar Association members, their staff and family members. To see full details of plans available to NSBA members, visit:

www.nebar.com/page/HIC

37-089 (02-04-19)

An independent licensee of the Blue Cross and Blue Shield Association.