Comment-Sample-1 (pdf.)

Comment-Sample-2 (pdf.)

Comment-Sample-3 (pdf.)

By Jonathan Gardner[0]

In the first half of the Twentieth Century Nebraska agreed to share the waters of the Republican River with Kansas and Colorado,[1] but in the early Twenty-First Century Nebraska was failing to honor that commitment.[2] The Nebraska Legislature granted several Natural Resource Districts (NRDs) the power to collect a property tax and an irrigation occupation tax[3] to comply with the agreement. The special law provision of the Nebraska State Constitution[4] provided a basis for challenging both taxes.[5] While the Nebraska Supreme Court has not decided whether that effort is constitutional, [6] it is not a constitutional special law.

The Republican River has tributaries in Colorado, Kansas, and Nebraska, and its basin is home to many water projects, including nine reservoirs. [7] Under the Republican River Compact, Colorado received 11% of the Republican River’s water, Kansas 40%, and Nebraska 49%.[8] Decades after the Compact came in force, groundwater pumping and surface water appropriations reduced the water that was flowing to Kansas.[9]Nebraska was officially out of compliance with the Compact in 1990 and 1991.[10] Kansas sued Nebraska in 1998, and ultimately settled.[11] However, Kansas has filed a petition seeking to have Nebraska held in contempt of the Supreme Court for violating the settlement and requesting various relief, including having a river master oversee compliance with the Compact on a yearly basis.[12]

Nebraska attempted to comply with the requirements of the Compact through LB701.[13] The text of LB701 does not expressly state that it is targeted at achieving compliance with the Republican River Compact, but that intent appears from an examination of the legislative history.[14] Much of the cost of compliance would be borne by basin residents.[15] The bill allowed qualifying NRDs to issue bonds that would be spent on river management.[16] Three means were available to pay off the bonds: state or federal funds granted for the bonded project, an occupation tax, and a property tax.[17] The occupation tax was a yearly tax on irrigation, capped at ten dollars per irrigated acre.[18] The property tax was an annual tax of up to four and a half cents on each hundred dollars of taxable valuation for all property in the qualifying district.[19] A district only qualified, however, if it included an irrigation district and a river subject to an interstate compact between two or more states.[20] Only the Upper, Middle, and Lower Republican NRDs qualified.[21]Over 300 farmers entered into water contracts with NRDs,[22] and $1.3 million in occupation and property taxes were collected through February, 2008.[23]

Bans on special legislation are a means of preventing states[24] from passing laws that grant a unique benefit to certain individuals.[25] Special legislation bans prevent legislators from trading votes with each other to benefit each other’s districts, a tactic known as logrolling.[26] Nebraska’s special legislation provision is found in Article III, section 18 of the Nebraska State Constitution and includes a long list of specific prohibitions.[27] The Nebraska Supreme Court does not usually quote the entire provision, but focuses on the portion that prohibits “Granting to any corporation, association, or individual any special or exclusive privileges, immunity, or franchise whatever” and requiring that “in all other cases where a general law can be made applicable, no special law shall be enacted.”[28]

Legislation can be unconstitutionally special by creating an arbitrary classification or by creating a closed class.[29] The Legislature can create classifications, but must do so in a way that makes sense.[30] Treating two people from the same locality or class according to different rules is impermissible.[31]Thus a law that paid Nebraska Supreme Court justices differently based on whether they were elected from even or odd numbered districts was invalid.[32] However, the application of a law can vary depending on different conditions in different localities.[33] A law can be constitutional even if it relates to a single locality. A law designating a specific area of the state as a game refuge addressed “a matter of general concern,” and kept every person in the state from hunting in the area, which made the law general enough. [34]

In Haman v. Marsh, the Court stated the special legislation ban is needed to keep the law uniform so the Legislature does not grant benefits or exemptions to specific people; the Legislature is not a sufficient check on itself.[35] To treat two groups of people differently, there needs to be a difference between them.[36] The applicable test was

[If a] legislative classification [is] . . . based upon some reason of public policy, some substantial difference of situation or circumstances, that would naturally suggest the justice or expediency of diverse legislation with respect to objects to be classified.[37]

The law in Haman attempted to pay back depositors guaranteed by the Nebraska Department of Banking and Finance after the Department collapsed.[38] Was the connection between paying the disappointed depositors and confidence in state banking, state laws, and the state legislature “reasonable and substantial”?[39] The Nebraska Supreme Court determined it was not. The payments would not increase confidence since depositors are guaranteed by federal insurance, and if the State granted bailouts, it would go bankrupt or tax itself to death.[40]

The law also failed the closed class analysis.[41] The Court considered if there was a probability that the act would actually apply to anyone other than prior depositors.[42] The likelihood that another financial failure and bailout would occur was too remote.[43]

The property tax created by LB701 was challenged as a special law creating a closed class.[44] For the class of NRDs with taxing authority to expand, a new NRD would need to have an irrigation district and jurisdiction of a basin subject to an interstate compact with two or more states.[45] Based on legislative history statements, no sane state would ever enter such a compact.[46] On appeal, the Nebraska Supreme Court determined the property tax was an unconstitutional property tax for a state purpose.[47]

The occupation tax created by LB701 was challenged in Kiplinger v. Department of Natural Resources.[48]The facts and constitutional claims were similar to the facts and constitutional issues in Garey.[49]The occupation tax allegedly created two closed classes: those who had to pay the tax and those who did not.[50] It was not as obvious as in Haman v. Marsh that no one would enter the class.[51] The South Platte, North Platte, and Missouri River could all be subject to an interstate compact with two or more states.[52]Given recent legal scholarship and a recent interstate water compact amongst Great Lakes states, there was not enough evidence to overcome the presumption the state statute was constitutional.[53] Kiplinger appealed the District Court’s decision to the Nebraska Supreme Court.[54]

If the Kiplinger court is wrong about the likelihood of entering a new interstate compact,[55] the analysis is not complete. Special laws can still be constitutional. The Nebraska Supreme Court has held that a special law can be used when necessary to accomplish the Legislature’s goal.[56] If there is a reasonable justification for the classification and there is no other way to accomplish the goal, a special law is permissible.[57] This view is supported by the text of the special legislation provision itself.[58] In fact, unless specifically prohibited by Article III, § 18, the Legislature can pass local or special laws.[59] For example, a law that distinguished between counties that had taken action to rid themselves of cattle tuberculosis and those that had not was not unconstitutional special legislation; a general law could have been created, but that would have lost a benefit certain counties had created.[60] The state law moving the Nebraska State Fair from Lincoln to Grand Island did not create an unconstitutional closed class “because the Legislature had a reasonable basis for enacting a special law in furtherance of a legitimate public policy.”[61] None of the specific bans in the special legislation provision kept the Legislature from specifically designating a site for the state fair.[62] The location of the state fair was something that was not susceptible to being addressed by a general law.[63]

Thus, in Yant, the Court looked at the text of the special legislation ban, which is not common in special legislation jurisprudence.[64] Based on Yant, the Legislature decides when a general law is appropriate when it legislates outside the text of Article III, section 18.[65]

But who ultimately decides when the Legislature is legislating outside the text of Article III, section 18? The Legislature could decide for itself when a general law is appropriate and when it is not, judges could determine whether a general law can apply,[66] or the Legislature might make the initial determination subject to review by the courts.[67] If the Legislature decides when the special legislation ban applies, then LB701 is constitutional. Either LB701 is a general law, or the Legislature determined a special law was necessary to accomplish its objective. If the courts ultimately decide when the Legislature acts within the text of the special legislation ban,[68] LB701 is unconstitutional.[69]

LB701 is not outside the text of Article III, section 18. That section clearly states that “in all other cases where a general law can be made applicable, no special law shall be enacted.”[70] While an argument can be made that LB701 falls outside this provision as a situation where a general law can not be enacted since compact compliance in the Republican River Basin presents a unique situation,[71] the Legislature itself has already shown that a general law can apply. The Legislature expanded the ability to issue bonds and collect an occupation tax to districts that contain a river basin subject to an integrated management plan.[72]Statements from the legislative history of LB862 show that LB862 was meant to address concerns that LB701 is an unconstitutional special law.[73] Since each NRD has the option whether or not they will use the taxing authority given them by the Legislature under both LB701 and LB862,[74] the risk that the general law will result in a lost benefit elsewhere in the state[75] is reduced. LB701 is not a constitutional special law.[76]

The question of when legislation falls within Nebraska’s special legislation ban is ultimately one for the Nebraska Supreme Court, not the Nebraska State Legislature. It is a question of constitutional interpretation, which is the responsibility of the Nebraska Supreme Court.[77] The goal of a special legislation ban is keeping the Legislature from granting special benefits[78] and engaging in logrolling.[79] To accomplish this purpose, the Nebraska Supreme Court, and not the Legislature, has to decide when legislation falls within Article III, section 18.

Compact compliance is an important state obligation[80] and a special situation,[81] but that alone does not make a special law constitutional. The text of the special legislation ban says that if possible a general law applies,[82] and the Nebraska Supreme Court determines when the Legislature’s laws fall within that text. The Legislature has already shown by enacting LB862 that a general law can apply. If LB701 is a special law, it is an unconstitutional one.

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Preferred Citation Format: Jonathan Gardner, LB701: Special Taxing Power in the Republican Basin is not a Constitutional Special Law 3 Neb. L. Rev. Bull. 16 (2011), http://lawreviewbulletin.unl.edu/?p=799

FOOTNOTES
0.  J.D. Candidate, University of Nebraska College of Law, May 2011. This is a revised and abbreviated form of a seminar paper prepared at the University of Nebraska College of Law in the Fall 2010 semester.↑
1.  Neb. Rev. Stat. appx. § 1-106 (2008).↑
2.  Motion for Leave to File Petition, Petition, and Brief in Support at 6, Kansas v. Nebraska, No. 126, Original (S. Ct. filed May, 2010), available at Kansas Department of Agriculture, http://www.ksda.gov/includes/document_center/interstate_water_issues/RRC_Docs/20100504USSCFiling.pdf [hereinafter Kansas 2010 Motion].↑
3.  L.B. 701, 100th Leg., 1st Reg. Sess. § 6(1) (Neb. 2007).↑
4.  Neb. Const. art. III, sec. XVIII.↑
5.  See Kiplinger v. Dep’t of Natural Res., CI08-4203 (District Court of Lancaster County, Neb., March 12, 2010); Garey v. Dep’t of Natural Res., CI07-4610 (District Court of Lancaster County, Neb., May 19, 2008), aff’d on other grounds, 759 N.W.2d 919 (Neb. 2009).↑
6.  See Garey v. Dep’t of Natural Res., 759 N.W.2d 919, 924, 928 (Neb. 2009). The Nebraska Supreme Court did determine that the property tax was unconstitutional under a provision of the state constitution prohibiting a property tax for a state purpose. Id. at 928. This commentary only addresses the constitutionality of LB701 under the special legislation provision.↑
7.  Katherine Kalisek-Vogel, Legislative Bill 701: Is It a Constitutional Answer to Nebraska’s Republican River Problems?, Water Center, (last accessed December 9, 2010) at 2–3, available at http://watercenter.unl.edu/downloads/Papers/KatherineVogelPaper.pdf [hereinafter Kalisek-Vogel].↑
8.  Garey, CI07-4610 at 5 (District Court of Lancaster County, Neb., May 19, 2008).↑
9.  Kalisek-Vogel, supra note 8, at 6.↑
10.  Id.↑
11.  Garey, CI07-4610 at 5–6 (District Court of Lancaster County, Neb., May 19, 2008).↑
12.  Kansas 2010 Complaint, supra note 2, at 7, 9–10, 12.↑
13.  Kalisek-Vogel, supra note 8, at 12.↑
14.   Legislative history plays a role in Article III, Section 18 cases, Hug v. City of Omaha, 749 N.W.2d 884, 888–89 (Neb. 2008), which can be problematic “since it is often difficult, if not impossible, to determine what the actual legislative motive might be.” Mark R. Killenbeck, Through the Judicial Looking Glass: The Nebraska Supreme Court in Moral Obligation Land And What It Thought It Saw There, 71 Neb. L. Rev. 1, 140 (1992) [hereinafter Killenbeck]. There are several statements of the intent for LB701. See Nebraska Legislature Natural Resources Committee, Introducer’s Statement of Intent, 100th Leg., 1st Reg. Sess. (Neb. 2007), on file with author; Natural Resources Committee Hearing February 20, 2008, 100th Leg., 2d Sess. 2 (Neb. 2008) (statement of Senator Carlson, Member of the Natural Resources Committee), available at http://www.legislature.ne.gov/FloorDocs/100/PDF/Transcripts/Natural/2008-02-20.pdf; Nebraska State Legislature Floor Debate April 19, 2007, 100th Leg., 1st Sess. 18 (Neb. 2007) (statement of Senator Preister, Member of the Legislature), available at http://www.legislature.ne.gov/FloorDocs/100/PDF/Transcripts/FloorDebate/r1day67.pdf; Natural Resources Committee Hearing February 28, 2007, 100th Leg., 1st Sess. 41 (Neb. 2007) (statement of Senator Christensen, Member of the Natural Resources Committee), available at http://www.legislature.ne.gov/FloorDocs/100/PDF/Transcripts/Natural/2007-02-28.pdf; Id. at 45–47 (statement of Steve Smith, Director of WaterClaim); Natural Resources Committee Hearing April 4, 2007, 100th Leg., 1st Sess. 52 (Neb. 2007) (statement of Claude Cappel) available at http://www.legislature.ne.gov/FloorDocs/100/PDF/Transcripts/Natural/2007-04-04.pdf [hereinafter NRC Hearing, April 4, 2007]; Nebraska State Legislature Floor Debate May 31, 2007, 100th Leg., 1st Sess. 29 (Neb. 2007) (statement of Governor Heineman), available at http://www.legislature.ne.gov/FloorDocs/100/PDF/Transcripts/FloorDebate/r1day90.pdf; NRC Hearing, April 4, 2007, at 49 (statement of David Cookson, Special Counsel to the Attorney General). Additionally, Governor Heineman noted in a press release that LB701 formed a cash fund that would help meet interstate obligations, and specifically mentioned $3 million for buying water to comply with the Compact. Garey v. Dep’t of Natural Res., CI07-4610 at 7 (District Court of Lancaster County, Neb., May 19, 2008), aff’d on other grounds, 759 N.W.2d 919 (Neb. 2009).↑
15.  “[Two] percent of the taxpayers in Nebraska that are located in the Republican Basin would pay 72 percent of the cost to bring us into compliance with Kansas over a 15-year period. . . $180 million, from 2 percent of the taxpayers,” Nebraska State Legislature Floor Debate April 16, 2007, 100th Leg., 1st Sess. 66–67 (Neb. 2007) (statement of Senator Carlson, Member of the Legislature), available at http://www.legislature.ne.gov/FloorDocs/100/PDF/Transcripts/FloorDebate/r1day64.pdf, with agriculture “pay[ing] the majority,” Id. at 70 (statement of Senator Stuthman, Member of the Legislature).↑
16.  L.B. 701, 100th Leg., 1st Reg. Sess. § 6(1) (Neb. 2007). Acceptable uses of bond funds were purchase of ground and surface water rights, obtaining or managing irrigation works such as canals and reservoirs, managing vegetation, and increasing the flow of a river. Id. at § 9.↑
17.  Id. at § 6(1).↑
18.  Id. at § 10(1).↑
19.  Id. at § 11(1)(a). The bill as originally proposed did not contain property taxes. Nebraska Legislature Natural Resources Committee, Introducer’s Statement of Intent, 100th Leg., 1st Reg. Sess. (Neb. 2007), on file with author.↑
20.  L.B. 701, 100th Leg., 1st Reg. Sess. § 6(1) (Neb. 2007).↑
21.  See Garey v. Dep’t of Natural Res., CI07-4610 at 19 (District Court of Lancaster County, Neb., May 19, 2008), aff’d on other grounds, 759 N.W.2d 919 (Neb. 2009).↑
22.  Nebraska State Legislature Floor Debate March 12, 2008, 100th Leg., 2d Sess. 40 (Neb. 2008) (statement of Senator Carlson, member of the Legislature), available at http://www.legislature.ne.gov/FloorDocs/100/PDF/Transcripts/FloorDebate/r2day40.pdf.↑
23.  Id. at 51.↑
24.  Nebraska’s special legislation provision also applies to city ordinances. Maggie L. Cox, Note, Up in Smoke: Hug & Henstock, Inc. v. City of Omaha, 275 Neb. 820, 749 N.W.2d 884 (2008), Home Rule City Authority Diminished by the Nebraska Special Legislation Provision, 88 Neb. L. Rev. 612, 613 (2010) [hereinafter Cox].↑
25.  Id. at 618.↑
26.  Id.↑
27.  Neb. Const. art. III, sec. XVIII.↑
28.  Id. See, e.g., City of Ralston v. Balka, 530 N.W.2d 594, 600 (Neb. 1995).↑
29.  MAPCO Ammonia Pipeline, Inc. v. State Bd. of Equalization and Assessment, 471 N.W.2d 734, 741 (Neb. 1991) (citing Haman v. Marsh, 467 N.W.2d 836 (Neb. 1991)).↑
30.  State v. Hall, 262 N.W. 835, 842 (Neb. 1935).↑
31.  Id.↑
32.  Id.↑
33.  McFadden v. Denter, 223 N.W. 462, 463–64 (Neb. 1929).↑
34.  Bauer v. Game, Forestation and Parks Commission, 293 N. W. 282, 283–84, 285 (Neb. 1940).↑
35.  Haman v. Marsh, 467 N.W.2d 836, 845 (Neb. 1991) (per curiam) (citations omitted).↑
36.  Id. (citation omitted).↑
37.  Id. at 846 (quoting State ex rel Douglas v. Marsh, 300 N.W.2d 181, 187 (Neb. 1980)).↑
38.  Id. at 841–42.↑
39.  Id. at 847 (citation omitted).↑
40.  Id. at 848 (citation omitted).↑
41.  Id. at 849 (citations omitted).↑
42.  Id. (citations omitted).↑
43.  Id. (citations omitted).↑
44.  Garey v. Dep’t of Natural Res., CI07-4610 at 19 (District Court of Lancaster County, Neb., May 19, 2008), aff’d on other grounds, 759 N.W.2d 919 (Neb. 2009). The plaintiffs also challenged the law as a property tax for a state purpose, Id., which the District Court rejected since it found the benefits of the law were primarily local. Id. at 17. The plaintiffs also alleged an unconstitutional commutation of taxes, Id. at 8, which the District Court rejected since the taxpayers benefitted from the taxes they paid. Id. at 18.↑
45.  Id. at 20.↑
46.  Id. at 20–21.↑
47.  Garey v. Dep’t of Natural Res., 759 N.W.2d 919, 928 (Neb. 2009). This result was predicted by early commentary. Kalisek-Vogel, supra note 8, at 23. The Nebraska Supreme Court did not address the special legislation issue, affirming on other grounds. See Garey, 759 N.W.2d at 928.↑
48.  Kiplinger v. Dep’t of Natural Res., CI08-4203 at 5 (District Court of Lancaster County, Neb., March 12, 2010).↑
49.  See Id. at 1–5. Again, the plaintiffs also alleged a property tax for a state purpose and a commutation of taxes. Id.↑
50.  Id. at 11. The District Court also rejected the argument that the special legislation provision does not apply to political subdivisions. Id. at 11–12.↑
51.  Id.↑
52.  Id. at 18.↑
53.  Id. at 18–20.↑
54.  See Appellants’ Brief, Kiplinger v. Nebraska Dep’t of Natural Res., No. S10-296 (Neb. June 4, 2010), at 15.↑
55.  Kiplinger v. Dep’t of Natural Res., CI08-4203 at 17–20 (District Court of Lancaster County, Neb., March 12, 2010). The question of whether or not the irrigation district was also a likely criteria to meet was not addressed. See Id.↑
56.  See Killenbeck, supra note 15, at 49.↑
57.  Yant v. City of Grand Island, 784 N.W.2d 101, 107 (Neb. 2010) (footnotes omitted) (referencing State ex rel Spillman v. Wallace, 221 N.W. 712, 714 (Neb. 1928)); Killenbeck, supra note 15, at 76–77.↑
58.  See Neb. Const. art. III, sec. XVIII.↑
59.  Yant v. City of Grand Island, 784 N.W.2d 101, 106 (Neb. 2010) (footnotes omitted).↑
60.  Id. at 107 (footnotes omitted) (referencing State ex rel. Spillman v. Wallace, 221 N.W. 712, 714 (1928)).↑
61.  Id. at 106.↑
62.  Id. (footnotes omitted).↑
63.  Id. (footnotes omitted).↑
64.  Robert D. Miewald, Peter J. Longo, & Anthony B. Schutz, The Nebraska Constitution: A Reference Guide (2d ed. 2010), The Nebraska Constitution: A Reference Guide (2d ed.) On-Line Update, Google Docs, Section 18, available at https://docs.google.com/document/edit?id=1qxx2wCbrR5NygOvCD5bS8uXNXB2IST5vD5V-P1TrTFE&hl=en&authkey=CKmRwVY&pli=1# (last visited on December 9, 2010).↑
65.  Id.↑
66.  This is the approach taken in Illinois. Bridgewater v. Hotz, 281 N.E.2d 317, 321 (Ill. 1972) (citation omitted).↑
67.  This might be a review for whether the Legislature has acted reasonably, a determination similar to the determination whether the Legislature had sufficient evidence for its actions to pass the rational basis test for equal protection review. See Adams v. Children’s Mercy Hosp., 832 S.W.2d 898, 904 (Mo. 1992).↑
68.  This includes both those situations where a court decides if a general law can apply and those cases where the courts review the Legislature’s determination for reasonableness.↑
69.  Unless, of course, it can be construed as a general law, a question outside the scope of this commentary.↑
70.  Neb. Const. art. III, sec. XVIII.↑
71.  After all, the Republican River flows in only one part of the state, Kalisek-Vogel, supra note 8, at 2, it alone is subject to the requirements of the Republican River Compact, See Neb. Rev. Stat. appx. § 1-106 (2008), and only it is involved in a lawsuit with Kansas, See Kansas 2010 Motion, supra note 3.↑
72.  L.B. 862, 101st Leg., 2d Reg. Sess. § 1–2 (Neb. 2010).↑
73.  “SENATOR CARLSON: Well, one of the questions in the original LB701 had to do with closed class and we’re interested in just doing away with that as a concern . . . . SENATOR SULLIVAN: [T]hen LB862 actually allows all NRDs in the state to issue bonds and levy an occupation tax. . . . ? SENATOR CARLSON: That would be correct.” Nebraska State Legislature Floor Debate March 23, 2010, 101st Leg., 2d Sess. 88 (Neb. 2010) (statements between Senator Carlson, Member of the Legislature, and Senator Sullivan, Member of the Legislature), available at http://www.legislature.ne.gov/FloorDocs/Current/PDF/Transcripts/FloorDebate/r2day46.pdf. “Judge Merritt ruled on the closed class language. It never was ruled on by the Supreme Court. So that could have to go there yet. But my bill, LB862, offers to open up that closed class language so that that won’t be a question.” Revenue Committee Hearing February 19, 2010, 101st Leg., 2d Sess. 56 (Neb. 2010) (statement of Senator Christensen, Member of the Legislature), available at http://www.legislature.ne.gov/FloorDocs/Current/PDF/Transcripts/Revenue/2010-02-19.pdf. “LB862 would amend . . . language . . . that the district court asserted was closed class language during the litigation of the LB 701 property tax.” Nebraska Legislature Natural Resources Committee, Introducer’s Statement of Intent, 101st Leg., 2d Reg. Sess. (Neb. 2010), available at http://nebraskalegislature.gov/FloorDocs/Current/PDF/SI/LB862.pdf.↑
74.  L.B. 701, 100th Leg., 1st Reg. Sess. § 11(1)(a), § 10(1) (Neb. 2007); [74] L.B. 862, 101st Leg., 2d Reg. Sess. § 1–2 (Neb. 2010).↑
75.  See Yant v. City of Grand Island, 784 N.W.2d 101, 107 (Neb. 2010) (footnotes omitted) (referencing State ex rel. Spillman v. Wallace, 221 N.W. 712, 714 (1928)).↑
76.  In light of LB862 the constitutionality of the occupation tax in LB701 is arguably moot point. This commentary does not address that issue.↑
77.  “[W]e are bound by the cardinal rule that courts must apply and enforce the Constitution as it is written.” State ex rel Spire v. Conway, 472 N.W.2d 403, 408 (1991) (emphasis added).↑
78.  Gourley v. Nebraska Methodist Health System, Inc., 663 N.W.2d 43, 65 (Neb. 2003); See Le v. Lautrup, 716 N.W.2d 713, 723 (Neb. 2006). According to the Nebraska Supreme Court, the special legislation ban protects against specific benefits and specific burdens. Haman v. Marsh, 467 N.W.2d 836, 845 (Neb. 1991) (per curiam). Justice McCormack has stated that the special legislation ban protects against imposing a special burden as well. Gourley, 663 N.W.2d at 89 (2003) (McCormack, J., concurring in part and dissenting in part).↑
79.  Cox, supra note 25, at 618.↑
80.  See Garey v. Dep’t of Natural Res., 759 N.W.2d 919, 928 (Neb. 2009).↑
81.  See supra note 72 and accompanying text.↑
82.  Neb. Const. art. III, sec. XVIII.↑

Introduction

The bill formerly known as the Fetal Pain Prevention Act was passed by the 101^st Legislature and approved by Governor Dave Heineman as the Pain-Capable Unborn Child Protection Act ( “LB 1103”) on April 13, 2010. LB 1103 marks yet another milestone in Nebraska’s recent pro-life legislative activities. In the wake of the State’s ban on partial-birth abortions[1] and passage of an informed consent law concerning ultrasound availability (LB 675), [2] LB 1103 is one more reason why the National Abortion Rights Action League (NARAL) Pro-Choice America grades Nebraska with an “F” on the issue of abortion.[3]

Unlike the majority of Nebraska bills, LB 1103 has attracted a broad array of national attention from various news outlets.[4] For some, LB 1103 has been recognized as legislation signifying the human dignity of the fetus.[5] For others, it is a “solution in search of a problem.”[6]

In addition to receiving widespread media coverage, LB 1103 faced a great deal of legal scrutiny. Much of this scrutiny focused on what type and degree of judicial review LB 1103 would confront once it became formally operative on October 15, 2010. This controversial law will certainly face immediate legal action, but to what extent? Could LB 1103 reach the United States Supreme Court?

Whatever LB 1103’s chances of reaching the nation’s highest court, it is likely that it will see action at the Nebraska Supreme Court and the Federal District Court of the Eighth Circuit. In light of this, it is necessary to form a general understanding of the essential legal arguments that have been raised by both proponents and opponents of LB 1103. By discussing the scope and purpose of LB 1103 and outlining the contentious legal arguments, this article seeks to provide an additional avenue for continued dialogue on the merits of this politically, morally, ethically, medically, and legally polarizing debate on what has been called by Prof. Laurence Tribe as the “clash of absolutes, of life against liberty.”[7]

There appear to be four major legal issues with LB 1103. First, LB 1103 sets a general prohibition on abortion at the 20-week fertilization age of the unborn child, under the assertion that, at this point of gestation, the unborn child feels pain. This general prohibition is unarguably a pre-viability ban, prompting an inquiry whether it would survive constitutional scrutiny. Thus, the primary issue is whether such a pre-viability ban would hold up against constitutional scrutiny. For Proponents of LB 1103, the understanding of the Supreme Court’s (or more specifically, Justice Anthony Kennedy’s) more recent jurisprudence on abortion has signified several shifts in thought. First, proponents interpret the Court’s recent opinions as valuing a stronger emphasis on a state’s interest in the abortion debate. Second, proponents see the Court as moving away from its traditional understanding of abortion law, namely, the distinction between pre- and post-viability bans on abortion. On the other hand, opponents of LB 1103 have criticized their adversaries for clinging onto dicta of individual justices, rather than holding fast to the expressed holdings of the Court. To this extent, opponents of LB 1103 argue that the Court has not moved away, nor will it move away, from its stance that prohibitions against abortion prior to viability are unconstitutional.

Second, prompted by LB 1103 is whether the institution of a 20-week post-fertilization age constitutes a fixed gestational period determining viability, thereby making it unconstitutional under Colautti v. Franklin.[8] For proponents of LB 1103, Franklin is not the relevant case law applicable to LB 1103. Instead, they would argue, Planned Parenthood of Central Missouri v. Danforth is the relevant case law applicable which, in turn, would allow upholding the 20-week post-fertilization age general prohibition.[9] For opponents of LB 1103, however, Franklin is indeed the relevant law, whereby LB 1103 would likely be struck down as setting a “fixed gestation period determining viability,” which Franklin categorically rejected.[10]

The third major issue prompted by LB 1103 concerns the health exception that is provided in Section 5. The issue deals primarily with the scope of the exception. For proponents, although the health exception provided in LB 1103 is narrower than what has previously been considered to be constitutional, the exception is nonetheless constitutional and “represents a change that needs to be made” in the law.[11] However, for opponents, the health exception is blatantly unconstitutional, not to mention inhumane, since it does not sufficiently take into consideration various other factors pertaining to the health of the mother that have been mandated by the Court.[12]

Finally, the fourth major issue pertains to the “reasonable medical judgment” language of the Act. LB 1103 contains an objective standard when it comes to “reasonable medical judgment” of a physician in determining the post-fertilization age of unborn children, determining a medical emergency, and determining a health exception. The tension in this issue revolves around the application of language from the Carhart decisions. For proponents of LB 1103, the objective standard is permissible since it prevents “unfettered discretion” by a physician or group of physicians for which “Casey does not give precedence.”[13]For opponents of LB 1103, an objective standard is violative of Casey’s standard that “‘appropriate medical judgment’ must embody the judicial need to tolerate responsible difference of medical opinion.”[14]

As previously noted, the issues in this case hinge on how the Court, if it were to hear a challenge to LB 1103, would interpret its abortion jurisprudence. Currently, with Justice Kennedy as the crucial swing vote, there is much speculation as to the future direction of the Court on this contentious topic. Questions and issues such as the ones noted above not only prompt disagreement and debate among adversaries sitting on both sides of the issue, but also among colleagues who would typically agree with one another. To this extent, reasonable minds differ. In light of this, the following analysis will provide assistance in examining the presented issues.

II. SCOPE & PURPOSE

LB 1103, introduced by Speaker of the Legislature, Senator Mike Flood, was intended to be a “middle ground on which folks on both sides of the abortion divide might agree”[15] and “provide a needed protection for the unborn child who is 20 weeks of age from the painful procedures of an abortion.”[16] According to the “Introducer’s Statement of Intent,” LB 1103 contains “findings concerning fetal development and ability to experience pain, abortion methods used at and after 20 weeks, anesthesia, and the state’s interest in reducing or preventing actions that inflict pain.”[17] More specifically, Section 3 of LB 1103 provides the legislative findings. The legislative findings state: “at least by twenty weeks after fertilization there is substantial evidence that an unborn child has the physical structures necessary to experience pain.”[18]Additionally, “by twenty weeks after fertilization, unborn children seek to evade certain stimuli in a manner which in an infant or an adult would be interpreted as a response to pain.”[19] Furthermore, “anesthesia [for pain relief] is routinely administered to unborn children 20 weeks of age who undergo prenatal surgery.”[20]

Based on these findings, LB 1103 “assert[s] a compelling state interest in protecting the lives of unborn children from the stage at which substantial medical evidence indicates that they are capable of feeling pain.”[21] Thus, unless a medical emergency exists, “no abortion shall be performed . . . unless the physician . . . has made a determination of probable post-fertilization age of the unborn child.”[22] If the “probable post-fertilization age of the child is twenty or more weeks,” then the general prohibition on abortion is triggered, unless “in reasonable medical judgment” a medical emergency exists “as to necessitate the abortion”[23] or “it is necessary to preserve the life of an unborn child.”[24]

III. VIABILITY

As to viability, the issue is ultimately whether the Supreme Court would be willing to accept a pre-viability ban based on the ability of unborn children to feel pain. Professor Teresa Stanton Collett, professor of law at the University of St. Thomas in Minneapolis, structured the issue well when she stated that the “current standard is viability . . . but the [C]ourt has never said that’s the exclusive standard and the [C]ourt has never been presented with the question of fetal pain.”[25] To this extent, even Senator Danielle Conrad, who voted against LB 1103, conceded that this issue is one of first impression.[26] Within this inquiry, a major factor concerns speculation as to how Justice Anthony Kennedy, widely understood as a swing vote on the abortion issue, would be willing to treat a pre-viability ban on abortion based on his prior judicial statements in abortion jurisprudence. Or, as it was more broadly stated by Senator Brad Ashford, Chairman of the Judiciary Committee, the issue is about “how far we can go under today’s interpretations of our [C]onstitution.”[27]

The proponents of LB 1103 have pointed out various portions within the Supreme Court’s more recent abortion jurisprudence that would allude to the fact that viability, although the long held standard, is the not the exclusive standard. Opponents of LB 1103, however, point to the traditional legal rules and holding of Roe v. Wade[28] and its progeny, which have consistently upheld fetal viability as the hard and fast standard which cannot be violated by means of a pre-viability ban of the abortion procedure.

Proponents

Sen. Flood, in the Judiciary Committee Hearing on LB 1103, stated that the Supreme Court has defined viability as “23 to 24 weeks gestation or perhaps earlier.”[29] As stated by Justice Kennedy, speaking for the Court in Planned Parenthood of Southeastern Pennsylvania v. Casey, “before viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure.”[30] Additionally, in Casey, Justice Kennedy stated that “before viability, a State ‘may not prohibit any woman from making the ultimate decision to terminate her pregnancy.’”[31] Thus, the State “may not impose upon this right an undue burden, which exists if a regulation’s ‘purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.’”[32] Nonetheless, LB 1103 would generally prohibit abortion three-to-four weeks prior to what this current understanding of the law.

With these strong judicial statements in mind, the issue turns on the rationale for the proponent’s assertion that this legislation would not only “provok[e] a constitutional challenge . . . but also . . . prevail[] in [a] constitutional challenge.”[33] The proponent’s logic seems to rest chiefly on two reasoned predictions of where the Court is moving on the abortion issue. First, there is the interpretation that the Court is allotting State’s “an important constitutional role in defining their interests in the abortion debate.”[34] Additionally, “States also have an interest in forbidding medical procedures which, in the State’s reasonable determination, might cause the medical profession, or society as a whole to become insensitive, even disdainful, to life, including life in the human fetus.”[35] Because of this, “[a] State may take measures to ensure the medical profession and its members are viewed as healers, sustained by a compassionate and rigorous ethic and cognizant of the dignity and value of human life, even life which cannot survive without assistance of others.”[36]

Second, there is an understanding that the Court has been moving away from its traditional understanding of abortion law. As Sen. Flood stated during Floor Debate, Justice Ruth Bader Ginsburg in her dissent in Gonzales noted that “[Gonzales] blurs the line, firmly drawn in Casey, between pre-viability and post-viability abortion.”[37] Additionally, Justice Ginsburg understood the holding in Gonzales as nothing “other than an effort to chip away at a right declared again and again by this Court.”[38] To top it all off, “most troubling,” according to Justice Ginsburg, was that “Casey’s principles, confirming the continuing vitality of ‘the essential holding of Roe,’ are merely ‘assume[d]’ for the moment [in Gonzales], rather than ‘retained’ or ‘reaffirmed.’”[39] To this extent, Justice Ginsburg herself was predicting a shift in the jurisprudence of the Court based on the implications of the Court’s holdings in Gonzales.

For proponents, then, Roe “did not settle the abortion debate in our nation.”[40] In his closing remarks to the Judiciary Committee, Sen. Flood noted that it was not necessary to take his or Professor Collett’s opinion, but that even “Professor Erwin Chemerinsky has stated [that] ‘Gonzales signaled a major shift in the law that is likely to have significant long-term consequences.’ So long as states do not ban all abortion this case is a ‘signal that they can adopt much greater restrictions on abortion.’”[41]

Overall, these two reasoned predictions (i.e., emphasis on the State’s interest in the abortion debate and the movement away from traditional abortion jurisprudence) are the impetus for overturning or, at least, circumventing the viability standard that is the current threshold under Roe and its progeny, and upholding as constitutional a pre-viability ban on abortions based on unborn children’s ability to feel pain.

Opponents

Where proponents have relied on shifting progressions of the law by the Supreme Court Justices, opponents have heavily criticized this reliance. For instance, Senator Conrad, during Floor Debate, criticized the use of dicta by Senator Flood and Senator Bob Krist, stating that such legal analysis is “not controlling in a legal sense and not relevant in this or a court of law or this forum.”[42] Simply stated, the proponent’s analysis, while perhaps interesting, is pointless for constitutional purposes. In fact, if the proponent’s analysis does anything, it shows that there is no legal sufficiency for implementing a pre-viability ban.[43]

For the opponents, the dispositive language in this whole constitutional analysis is that “before viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the [abortion] procedure.”[44] Sen. Conrad noted that such a standard on viability has been “our history, our case law, for over 35 years and [the Court has] never once wavered from that standard.”[45] Most importantly, the Gonzales case “did not alter the constitutional jurisprudence regarding viability” like the proponents would like to assert.[46] Furthermore, to the extent that Gonzales may be applicable as departing or modifying abortion jurisprudence, as the proponents claim, Senator Conrad begged to differ, noting that the case is a “limited holding to a specific procedure.”[47] Thus, to violate the viability standard would impose an “undue burden” on a woman’s constitutional right to an abortion of a non-viable fetus.

Overall, to the opponents, the answer to the issue of a pre-viability ban is easy. They conclude that the Court has not, in its expressed holdings, departed from viability as the “earliest point at which the state’s interest in fetal life is constitutionally adequate to justify a legislative ban on non-therapeutic abortions.”[48]

IV. FIXED GESTATIONAL PERIODS

Another issue that was presented during debate of LB 1103 was the issue of the 20-week ban and whether such a ban is unconstitutional as a fixed gestational period determining viability. Under Colautti v. Franklin, the Court stated:

[V]iability is reached when, in the judgment of the attending physician on the particular facts of the case before him, there is a reasonable likelihood of the fetus’ sustained survival outside the womb, with or without artificial support. Because this point may differ with each pregnancy, neither the legislature nor the courts may proclaim one of the elements entering into the ascertainment of viability – be it weeks of gestation or fetal weight or any other single factor – as the determinant of when the State has a compelling interest in the life or health of the fetus.[49]

The key issue here is determining the applicability of this provision from Franklin. For the proponents, this is the not the applicable case law since LB 1103 is not a determination of viability, but a ban based on fetal pain (again, an issue that has yet to reach the Court). For the opponents, however, Franklin is on point, causing the general prohibition instated at 20 weeks to become an unconstitutional fixed gestational period.

Proponents

In response to a question by Sen. Conrad about the Franklin standard, Professor Collett stated that Franklin was not the case on point for determining the constitutionality of the 20-week period. Professor Collett responded that LB 1103 does not establish viability and therefore cannot be examined under Franklin.[50]Rather, the “determinative constitutional standard” applicable to LB 1103 is to be found under Danforth.[51] According to Professor Collett, LB 1103 “absolutely relies on the medical judgment as to the gestational age in order to trigger the prohibition and [falls] squarely within Danforth’s approval of that method of determining medically significant facts.”[52] In other words, because LB 1103 is not determining viability, the 20-week general prohibition on abortion cannot be found unconstitutional under Franklin’s prohibition against fixed gestational periods determining viability. Instead, the prohibition is tied to a reasonable medical judgment for determining a prohibition on abortion, thereby falling under Danforth.

Opponents

For the opponents of LB 1103, reasonable minds can differ on the proper application of the case law.[53] To this extent, it is reasonable that Franklin is the determinative case concerning the 20-week fixed prohibition on abortion. Because of Franklin’s application, Senator Conrad pointed out the need for the “ascertainment of viability” since “this point may differ with each pregnancy” rather than a broad prohibition that goes into effect at 20 weeks. [54] Departure from this standard would be not only unconstitutional but also would not “recognize that individuals have different issues, different needs that arise in the course of their individualized pregnancy [e.g., fetal anomaly].”[55]

Overall, then, the issue ultimately revolves around the appropriate relevance and application of the Supreme Court’s case law. For proponents, there is the argument that Franklin is inapplicable, thereby leaving no hindrance on a 20-week across-the-board ban. For opponents, however, is the argument that Franklin is applicable, thereby creating another constitutional problem with the legislation and yet another reason for LB 1103’s rejection or amendment.

V. HEALTH EXCEPTION

Another major issue that arose during debate of LB 1103 was the constitutionality of the health exception included in the legislation. Specifically, the issue is whether the health exception included was broad enough to pass constitutional muster. Section 5 of LB 1103 states:

No person shall perform or induce or attempt to perform or induce an abortion…unless, in reasonable medical judgment (1) she has a condition which so complicates her medical condition as to necessitate the abortion of her pregnancy to avert her death or avert serious risk of substantial and irreversible physical impairment or a major bodily function.[56]

For proponents, the health exception included in LB 1103 is “not only constitutional” but “represents a change that needs to be made.”[57] In other words, the health exception in LB 1103 is a constitutional departure from what is understood to be the current state of the law, and the departure marks a needed change in public policy and upholding the human dignity of unborn children.

For opponents, the health exception provided for in LB 1103 “does not provide a constitutionally sound or humane exception for women’s health.”[58] LB 1103 is too narrow and does not meet the constitutional demands that have been set by the Court.

Proponents

Ultimately, the impetus for narrowing the health exception in LB 1103 by proponents has to be understood in light of Doe v. Bolton,[59] the companion case to Roe v. Wade. According to Greg Schleppenbach, Director of Pro-Life Activities for the Nebraska Catholic Conference, although Roe allowed for “reasonable provisions allowing states to ban third trimester abortions except when a mother’s health or life are in danger,” the reasonable provisions were “eviscerated by Doe’s exceedingly broad definition of health.”[60] As Schleppenbach states, Doe is “an exception that swallows the rule.”[61]Certainly this was part of the rationale behind Senator Flood’s statement that LB 1103 “represents a change that needs to be made.”[62] This, no doubt, represents the view of Senator John Wightman when he added, during Floor Debate, that “[d]amage to health has been used in cases all over the nation to justify abortion for almost any cause. Somewhere you can find a doctor that says it’s probably going to damage the health, either physically or mentally.”[63]

Overall, the view of the proponents of LB 1103 could be seen as bold and daring. There seems to be no question that the health exception in LB 1103 is a departure from the constitutional status quo. Perhaps the actions of the legislature can be summed up best by Senator Tony Fulton: “We are legislators. And the idea is that we’re trying to set forward policy.”[64] Proponents of LB 1103 are looking to legislate a baseline shift when it comes to thinking about the health exception of the mother. This baseline shift would place a limitation on what has been the traditional understanding in abortion jurisprudence. Most importantly, for the proponents, this would increasingly recognize the state’s compelling interest in the life of unborn children.

Opponents

For opponents, the narrow exception in LB 1103 is not “constitutionally sound or humane.”[65] Although states have an interest in banning abortion, that ban must include an exception “when abortion is necessary in appropriate medical judgment for the preservation of the life or the health of the woman.”[66] LB 1103 only permits abortion where it is “necessary to avert serious risk or substantial and irreversible physical impairments of a major bodily function” and, according to Sen. Conrad, this does not “meet [the] constitutional standard.”[67]

In support for her view, [68] Sen. Conrad cited Doe v. Bolton,[69]Thornburgh v. American College of Obstetricians & Gynecologists,[70] and Women’s Medical Professional Corporation v. Voinovich.[71] In fact, through an amendment to LB 1103, Senator Conrad sought to “set the health exception for women’s lives and women’s health at a place that is established and defined and workable under our existing parameters” by the Court.[72] Such an amendment would utilize all factors that “relate to health” such as “physical, emotional, psychological, familial, the woman’s age, etcetera.”[73] However, her amendment ultimately failed by a vote of 6-27.[74]

In general, the view of the opponents is to ensure that LB 1103 remains in tandem with current abortion jurisprudence, avoiding any redefinition of the boundaries as the proponents would prefer. As Senator Council stated, it is ultimately a matter of not “substitut[ing] our individual perceptions of what is in [the mother’s] best [health] interest.”[75] In other words, the obligation of the legislature is to “defend liberty for all, not to mandate [its] own moral code.”[76]

Again, the issue for proponents of LB 1103 in the health exception provided is to blatantly challenge the status quo as it has been defined by the Supreme Court. As Senator Flood stated, “this is a change that needs to be made.”[77] Additionally, the narrowness of the health exception conversely elevates the human dignity of unborn children by limiting what has been previously understood as the woman’s liberty interest in an abortion. However, for opponents of LB 1103, the health exception is neither constitutional nor humane.

VI. REASONABLE MEDICAL JUDGMENT

LB 1103 also raises an issue on the difference between a subjective and objective medical standard in determining the post-fertilization age of unborn children, determining a medical emergency, and determining a health exception. LB 1103, in the definition section, defines a “reasonable medical judgment” as “a medical judgment that would be made by a reasonably prudent physician, knowledgeable about the case and the treatment possibilities with respect to the medical conditions involved.”[78] The objective, “reasonably prudent physician” standard is required under the provisions for determining the post-fertilization age, determining a medical emergency, and determining a health exception.

This objective standard creates tension with what is understood as the current state of abortion jurisprudence. The tension comes primarily from how the Carhart decisions would ultimately be rendered under LB 1103. On the one hand, proponents could point to language that permits state’s to set an objective standard for how physicians ought to go about making a medical judgment. On the other hand, opponents could point to language in those very same cases pointing out that stare decisis has held that “‘appropriate medical judgment’ must embody the judicial need to tolerate responsible differences of medical opinion.”[79]

Proponents

For proponents of LB 1103, the State has an interest in regulating the medical decision being made in abortion procedures. Although there might be convergences on how a medical professional might go about determining various aspects of LB 1103 (i.e. post-fertilization age, medical emergency, and health exception), the State has mandated that conduct ought to be in line with that of a “reasonably prudent physician.” The support for this objective standard is buttressed on words in Stenberg, quoting Justice Kennedy from his dissent in that case: “By no means must a state grant physicians ‘unfettered discretion’ in their selection of abortion methods.”[80] This language was also adopted by Justice Kennedy in the majority opinion he authored in Gonzales.[81] To this extent, allowing unfettered discretion would permit “the views of a single physician or a group of physicians” to set “abortion policy for the state of Nebraska, not the legislature or the people” and “Casey does not give precedence to the views of a single physician or a group of physicians regarding the relative safety of a single procedure.”[82]

Opponents

The opponents of LB 1103 will quickly point out, however, that “Casey’s words ‘appropriate medical judgment’ must embody the judicial need to tolerate responsible difference of medical opinion.”[83] To this extent, by setting an objective standard, LB 1103 is violative of the subjective standard that has been embodied in the Court’s abortion jurisprudence. In other words, LB 1103 does not properly allot the individual physician the ability to make proper medical determinations. In each case, as noted by Senator Conrad, this objective standard is contrary to the Court’s insistence that such medical determinations “must be left to the physician’s judgment, not to a legislature, not to a court, not to any other outside group, but the physician’s judgment.”[84]

By and large, the health exception issue very much centers on the way in which the Court will apply its prior case law to LB 1103. More specifically, as stated earlier in the Introduction, the issue can be more narrowly understood as to how Justice Kennedy, the swing vote, would respond to such a standard. For proponents of LB 1103, the health exception has been tailored to push the boundaries on current abortion jurisprudence by predicting Justice Kennedy’s vote. For opponents of LB 1103, however, the objective standard is yet another reason why LB 1103 is blatantly unconstitutional and will be held as such, providing more justification as to why LB 1103 should not have been brought into law.

VII. CONCLUSION

This overview sought to increase understanding of the legislative history behind LB 1103, its legal framework, and the implications and ramifications of its language. In doing so, this overview outlined the many contentious legal issues that surround LB 1103. How these issues are ultimately resolved will be monumental to the state of Nebraska and will inevitably be litigated. Regardless of the outcome, the state of Nebraska, by placing itself at the forefront of an ongoing national debate on the merits of legalized abortion, will, once again, be a pioneer in this area of the law.

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FOOTNOTES
0.  J.D. Candidate, University of Nebraska College of Law, May 2011.↑
1.  Partial Birth Abortion Ban, 1997 Neb. Laws 35–39 (1997), amended by Neb. Rev. Stat. §28-328 (2007).↑
2.   LB 675, 2009 Neb. Laws LB 675 (2009).↑
3.   Nebraska: NARAL Pro-Choice America, prochoiceamerica.org, http://www.prochoiceamerica.org/government-and-you/state-governments/state-profiles/nebraska.html (last visited Nov. 22, 2010).↑
4.   E.g., Monica Davey, Nebraska Law Sets Limits on Abortion, N.Y. Times, April 13, 2010, http://www.nytimes.com/2010/04/14/us/14abortion.html?_r=1&ref=monica_davey; Emily Ingram, Proposed Abortion Bill Focused on When Fetus Feels Pain, ABC News, Feb. 25, 2010, http://abcnews.go.com/Politics/fetal-pain-center-proposed-nebraska-abortion-ban/story?id=9947268; Marc A. Thiessen, Bringing Humanity Back to the Abortion Debate, Wash. Post, April 19, 2010, http://www.washingtonpost.com/wp-dyn/content/article/2010/04/19/AR2010041902082.html.↑
5.   Steven Ertelt, Nebraska Bill to Ban Late-Term Abortions Based on Fetal Pain Passes First Vote, LifeNews.com, March 31, 2010, http://www.lifenews.com/state4943.html.↑
6.   Floor Debate, LB 1103, 101^st Legislature (Second Session), at 173 (Neb., March 30, 2010) (statement of Senator Conrad).↑
7.   Laurence Tribe, Abortion: The Clash of Absolutes 3 (W.W. Norton & Company 1990).↑
8.   439 U.S. 379 (1979).↑
9.   428 U.S. 52 (1976).↑
10.   Judiciary Committee Hearing, LB 1103, 101^st Legislature (Second Session), at 6 (Neb., Feb. 25, 2010) (statement of Senator Council).↑
11.   Floor Debate, LB 1103, 101^st Legislature (Second Session), at 213 (Neb., March 30, 2010) (statement of Speaker Flood).↑
12.   See infra V. Health Exception.↑
13.   Stenberg v. Carhart, 530 U.S. 914, 965 (2000) (Kennedy, J., dissenting).↑
14.   Id. at 917.↑
15.   Judiciary Committee Hearing, LB 1103, 101^st Legislature (Second Session), at 2 (Neb., Feb. 25, 2010) (statement of Speaker Flood).↑
16.   Id. at 4.↑
17.   Senator Mike Flood, Statement of Intent for LB 1103 (Feb. 25, 2010), http://www.nebraskalegislature.gov/FloorDocs/Current/PDF/SI/LB1103.pdf (last visited Aug. 20, 2010).↑
18.   Pain-Capable Unborn Child Protection Act, 2010 Neb. Laws 874, Section 3(1) (2010); See Judiciary Committee Hearing, LB 1103, 101^st Legislature (Second Session), at 13–29, 44–55 (Neb., Feb. 25, 2010) (presenting testimony and additional evidence in support of the medical findings for LB 1103).↑
19.   Id. at Section 3(2).↑
20.   Id. at Section 3(3).↑
21.   Id. at Section 3(5).↑
22.   Id. at Section 4(1).↑
23.   Id. at Section 5(1).↑
24.   Id. at Section 5(2). This provision was included in contemplation of a situation that was heard during the Judiciary Committee Hearing. Floor Debate, LB 1103, 101^st Legislature (Second Session), at 160 (Neb. March 30, 2010) (statement of Speaker Flood). There, the mother was pregnant with twins suffering from twin to twin transfusion syndrome and the abortion was undertaken at 22-weeks to save the life of one of the unborn children. Id.; See also Judiciary Committee Hearing, LB 1103, 101^st Legislature (Second Session), at 88-90 (Neb., Feb. 25, 2010).↑
25.   Judiciary Committee Hearing, LB 1103, 101^st Legislature (Second Session), at 31 (Neb., Feb. 25, 2010) (statement of Professor Collett).↑
26.   Floor Debate, LB 1103, 101^st Legislature (Second Session), at 166 (Neb., March 30, 2010) (statement of Senator Conrad).↑
27.   Id. at 164 (Statement of Senator Ashford).↑
28.   410 U.S. 113 (1973).↑
29.   Judiciary Committee Hearing, LB 1103, 101^st Legislature (Second Session), at 4 (Neb., Feb. 25, 2010) (statement of Speaker Flood).↑
30.   505 U.S. 833, 846 (1992).↑
31.   Id. at 879.↑
32.   Id. at 878.↑
33.   Judiciary Committee Hearing, LB 1103, 101^st Legislature (Second Session), at 30 (Neb., Feb. 25, 2010) (statement of Professor Collett).↑
34.   Id. at 3 (statement of Speaker Flood) (citing Stenberg, 530 U.S. at 961 (Kennedy, J., dissenting)).↑
35.   Stenberg, 530 U.S. at 961.↑
36.   Stenberg, 530 U.S. at 962 (emphasis added).↑
37.   Floor Debate, LB 1103, 101^st Legislature (Second Session), at 174 (Neb., March 30, 2010) (statement of Speaker Flood) (citing Gonzales v. Carhart, 550 U.S. 124, 171 (2007) (Ginsburg, J., dissenting)).↑
38.   Gonzales, 550 U.S. at 191 (Ginsburg, J., dissenting).↑
39.   Id. at 186–87.↑
40.   Judiciary Committee Hearing, LB 1103, 101^st Legislature (Second Session), at 58 (Neb., Feb. 25, 2010) (statement of Schleppenbach).↑
41.   Judiciary Committee Hearing, LB 1103, 101^st Legislature (Second Session), at 93 (Neb., Feb. 25, 2010) (statement of Speaker Flood).↑
42.   Floor Debate, LB 1103, 101^st Legislature (Second Session), at 187 (Neb., March 30, 2010) (statement of Senator Conrad).↑
43.   Id. at 191 (statement of Senator Council) (“Inherent in that statement is an acknowledgment that the [C]ourt has not evolved to that point yet. And ergo this law is unconstitutional on it’s [sic] face.”).↑
44.   Casey, 505 U.S. at 846.↑
45.   Floor Debate, LB 1103, 101^st Legislature (Second Session), at 165 (Neb., March 30, 2010) (statement of Senator Conrad).↑
46.   Id. at 169.↑
47.   Id.↑
48.   Id. at 191 (statement of Senator Council).↑
49.   439 U.S. at 388–89.↑
50.   Judiciary Committee Hearing, LB 1103, 101^st Legislature (Second Session), at 33-34 (Neb., Feb. 25, 2010) (statement of Professor Collett).↑
51.   Danforth, 428 U.S. at 33.↑
52.   Id.↑
53.   Id. at 32 (statement of Senator Council).↑
54. Floor Debate, LB 1103, 101^st Legislature (Second Session), at 170 (Neb., March 30, 2010) (statement of Senator Conrad).↑
55.   Id.; See also Judiciary Committee Hearing, LB 1103, 101^st Legislature (Second Session), at 88–89 (Neb. Feb. 25, 2010) (providing testimony of fetal development abnormality).↑
56.   Pain-Capable Unborn Child Protection Act, 2010 Neb. Laws 875, §5(1) (2010).↑
57.   Floor Debate, LB 1103, 101^st Legislature (Second Session), at 213 (Neb., March 30, 2010) (statement of Speaker Flood).↑
58.   Id. at 212 (statement of Senator Conrad).↑
59.   410 U.S. 179 (1973).↑
60.   Judiciary Committee Hearing, LB 1103, 101^st Legislature (Second Session), at 58 (Neb., Feb. 25, 2010) (statement of Senator Conrad).↑
61.   Id.↑
62.   Floor Debate, LB 1103, 101^st Legislature (Second Session), at 213 (Neb., March 30, 2010) (statement of Speaker Flood).↑
63.   Id. at 218 (statement of Senator Wightman).↑
64.   Id. at 210 (statement of Senator Fulton).↑
65.   Id. at 212 (statement of Senator Conrad).↑
66.   Id.↑
67.   Id. at 212–13.↑
68.   Id. at 213.↑
69.   410 U.S. 179.↑
70.   476 U.S. 747 (1986).↑
71.   130 F.3d 187 (1999).↑
72.   Floor Debate, LB 1103, 101^st Legislature (Second Session), at 221 (Neb., March 30, 2010) (statement of Senator Conrad).↑
73.   Id.↑
74.   Id.↑
75.   Id. at 220 (statement of Senator Council).↑
76.   Id. at 165 (statement of Senator Conrad).↑
77.   Id. at 213 (statement of Senator Flood).↑
78.   Pain-Capable Unborn Child Protection Act, 2010 Neb. Laws 874, Section 2(6) (2010).↑
79.   Stenberg, 530 U.S. at 917.↑
80.   Id. at 938 (Stevens, J., dissenting).↑
81.   Gonzales, 550 U.S. at 163–64.↑
82.   Stenberg, 530 U.S. at 965 (Kennedy, J., dissenting).↑
83.   Id. at 917.↑
84.   Floor Debate, LB 1103, 101^st Legislature (Second Session), at 165 (Neb., March 30, 2010) (statement of Senator Conrad).↑

Statutory interpretation is a matter that courts wrestle with on a daily basis.  In some cases, it is easy and the text of the statute leads to a clear answer when applied to the facts of a case.  In other cases, courts are left wondering what legislatures intended when they drafted the law.  Over the years, appellate courts have developed rules to aid in their determination of legislative intent.  Like other rules of law, these rules bind lower courts.  But like the legislature, appellate courts are not always clear about the rules they are creating, and lower courts are sometimes left struggling with the application of the court’s ruling.

Underhill v. Hobelman,[1] a recent decision from the Nebraska Supreme Court, is a decision that could frustrate lower courts.  The decision in Underhill has muddled the rules of statutory interpretation.  Namely, it makes unclear the situations in which courts can resort to a statute’s legislative history to determine its meaning.  While courts can resort to legislative history when the statute is ambiguous,[2] Underhill can be read to say that courts may examine legislative history any time it is interpreting a statute that the legislature amended after the court has already construed it.  Unfortunately, the court implied this, rather than stating it explicitly, leaving lower courts to wonder what exactly the supreme court meant in the decision.

This brief commentary contains two parts.  The first recounts the facts of Underhill v. Hobelman as well as the opinions handed down in the case.  The second explores the court’s recourse to the legislative history and its implications.  Because the court was not clear as to what opened the door to legislative history, this paper will examine the possibility of ambiguity as well as the possibility that courts will always use legislative history to determine the effect of amendments.  In the end, this commentary concludes that there is no clear answer as to what made legislative history available; the court simply did not say.  Ultimately, this is a disservice to lower courts, as the decision arguably injects an element of uncertainty into what were fairly established rules.

The Case

Anne Underhill and Shiloh Hobelman were friends.  At the time of the accident, Underhill was on her way to visit Hobelman at his dorm room.  Hobelman was disabled and used a dog named Brady to assist him with his day-to-day activities.  When Underhill arrived, Hobelman’s mother was walking Brady outside.  Since Brady knew Underhill, Hobelman’s mother let Brady off of the leash so that the dog could greet Underhill.  Once Brady was free from the leash, he took off running towards Underhill.  Underhill herself testified that Brady did not appear to be threatening nor did the animal appear to have any intent to harm Underhill.  Nevertheless, Brady was apparently a little bit too aggressive in greeting Underhill as he ran into her leg, which caused her to fall down.  As a result of the fall, Underhill sustained injuries that required surgery.[3]

Because Underhill was unable to pay her medical bills, she filed suit against Hobelman.  She pleaded two causes of action: a negligence claim, which she later dropped, as well as a claim under section 54-601[4] of the Nebraska statutes.  The district court granted summary judgment for Hobelman on the statutory claim.[5]  In its ruling, the court relied on earlier cases that had interpreted section 54-601[6] to exclude injuries that resulted from a dog’s conduct if the dog was acting playfully or mischievously; in other words, the dog had to be acting maliciously to invoke the strict liability of section 54-601.[7]  Further, the district court held that a later amendment that added the word “injuring” to the statute expanded the range of injuries for which the dog owner could be liable but did not expand the strict liability of the statute.  In order to determine the effect of the statutory amendment, the Nebraska Supreme Court agreed to review the case.

The per curiam opinion of the court upheld the lower court’s decision; namely, that the later amendment to the statute did not extend strict liability to those situations in which the dog was acting playfully or mischievously.[8]  The court reasoned that the amendment merely expanded the range of compensable injuries and did not extend the reach of the strict liability.  This conclusion was based on the fact that the legislative history of the amendment made no mention or reference to the earlier court decision[9] that had limited strict liability to those situations in which the dog was acting maliciously.[10]  Because the legislature had not made clear otherwise, the court presumed that the legislature had acquiesced in its earlier reading of the statute.[11]

Justice McCormack dissented from the per curiam opinion.  Justice Miller-Lerman joined his dissent.  Under Justice McCormack’s reading of the statute, the “plain and unambiguous language” required that strict liability be imposed “without regard to the intent of the dog at the moment of impact.”[12]  Justice McCormack began by noting that the statute was a break from the common law rule with regards to dog attacks.  At common law, a dog owner could only be liable if he or she knew of the dangerous propensities of a dog.  This, in effect, would give each dog a free bite as the dog owner would likely have no basis for knowing about the dangerous propensities if nothing had previously happened.[13]  In Donner v. Plymate,[14] the court ruled that section 54-601 was designed to abrogate this common law rule and impose strict liability, but only with respect to acts mentioned in the statute.[15]  Because all of the acts mentioned in the statute-killing, wounding, worrying, or chasing-are acts done by vicious dogs, acts in which the dog was only playful or mischievous were outside of the statute.[16]  The amendment at issue in the case added the word “injuring” to the list of acts for which dog owners could be liable.  Since one can be injured by a dog that is acting playfully or mischievously, Justice McCormack would have held that the statute expanded the breadth of strict liability under the statute.[17]

The Court’s Use of Legislative History

Perhaps the most interesting legal question about Underhill relates to the court’s use of the legislative history.  Under the rules of statutory interpretation, the legislative history is to be used as an aid to interpretation only when the text of the statute is considered ambiguous.[18]  However, the court seemed to open the door to a new situation in which legislative history can be used.  It now appears that Nebraska courts can use legislative history anytime they are examining a statute that has been amended after an appellate court has construed it.  While ambiguity certainly still is a possible explanation for the court’s recourse to legislative history, the more plausible explanation is that legislative history, along with the text of the statute, can be used to rebut a presumption that the legislature has acquiesced to the court’s prior determination of a statute’s meaning.

The presence of ambiguity has traditionally been a necessity before a court can look to legislative history,[19] and certainly ambiguity is a possible explanation of why the court looked to legislative history in Underhill.  “Ambiguity” is “[a]n uncertainty of meaning or intention, as in a contractual term or statutory provision.”[20]  Whether or not the statute is ambiguous appeared to be a point of disagreement between the court’s opinion and the dissent.  Indeed, Justice McCormack made no mention of the legislative history in his opinion and instead pointed to the “plain and unambiguous language” of the statute.[21]   If ambiguity is what allowed the court to consider legislative history, the court must have found the statute to be ambiguous.  However, the court really gave no analysis as to whether the amendment made the statute ambiguous.  This begs the question: in what way was the statute ambiguous?

The amendment at issue in Underhill added the word “injuring” to the statute, thus making dog owners liable for damages caused by “dogs killing, wounding, injuring, worrying, or chasing any person or persons.”[22]  However, Underhill made her appeal against the backdrop of Donner v. Plymate,[23] which limited the breadth of strict liability under the statute to situations in which the dog was acting maliciously.  Further, Underhill acquiesced in this reading of the statute because she did not argue that Donner was decided incorrectly.[24]

This created a tension in the statute: was the breadth of strict liability to be expanded by the addition of the word “injuring” or was it not?  The court in Donner had determined that, when read together, “killing,” “wounding,” “worrying,” and “chasing” implied that the dog was acting aggressively.[25]  However, “to injure” someone does not necessarily require a malicious intent.[26]  While courts are to give statutory language its “plain, ordinary, and popular” meaning,[27] it has also been said that “words are known by the company they keep . . . [and] words grouped in a list should be given a related meaning.”[28]  These two principles of statutory interpretation seem to lead to opposite conclusions.  If the former controls, it would seem that liability should be imposed for injuries regardless of the intent of the dog.  But if the latter controls, and words are read in light of what surrounds them, it would appear that strict liability is still limited to situations in which the dog was acting maliciously.  Since a reading of the text arguably does not give a clear picture of what the legislature intended, the statute is ambiguous, and recourse to the legislative history was proper.

It is also possible that an amended statute could be considered inherently ambiguous.  This idea does not seem as far-fetched as one would initially suspect.  As all lawyers know, statutes can be divided into elements.  An amendment intended to change the meaning of one element could, at least in theory, have unintended, incidental effects on another element.  These incidental effects could be the result of a change in punctuation in the statute or a sort of “spillover” effect from changed language.[29]  In many cases, the exact contours of the legislature’s amendatory intent will not be easily ascertainable;[30] in other words, it will be ambiguous.  This is especially true in a case like Underhill when the addition of one word could implicate changes on two different aspects of a statute.  In such cases, it is necessary that courts look to legislative history to determine the exact legislative intent so as not to disrupt statutory constructions of elements to which the legislature acquiesced.

There is another possible, yet related, explanation for the recourse to legislative history.  In Underhill, the court said that it “presume[s] that when [it has] construed a statute and the same statute is substantially reenacted, the Legislature gave to the language the significance [the court] previously accorded to it.”[31]  The court then went on to note that neither the language of the statute nor the legislative history contained anything that would rebut that presumption.  Thus, Underhill arguably creates a rebuttable presumption that legislatures acquiesce when they enact a similar statute.  Further, both the text of the statute as well as the legislative history are available to help the parties rebut this presumption.  One thing that makes this an attractive reading of Underhill is that it would explain why the court did not point out any ambiguities in the statute prior to examining the legislative history.

Thus, there are three possible explanations as to why the court looked to legislative history.  The first limits its holding to the facts and statute before the court.  The second would hold that many amended statutes are, in a sense, ambiguous because the exact intended scope of amendment may not be clear from the text.  And the third would hold that courts can always look to legislative history of amended statutes even if viewed for the first time, the statute may not appear to be ambiguous.

While lawyers and judges may differ as to when, if ever, a court should look to legislative history in determining a statute’s meaning, all would agree that the rules on the question should be clear.  Surely, they would argue that all laws should be clear, whether they are judge-made rules of statutory interpretations or legislative enactments that deal with harm caused by dogs.  Clarity in such areas leads to a more efficient judicial system that better serves the populace.  Unfortunately, clarity eluded the Nebraska Supreme Court in Underhill v. Hobelman, leaving attorneys unsure of when they can resort to legislative history.

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Preferred Citation Format: Daniel J. Hassing, A Matter of Interpretation, 2 Neb. L. Rev. Bull. 17 (2010), http://lawreview.unl.edu/?p=729.

FOOTNOTES
0.   B.A., University of Nebraska-Omaha, 2006; B.S., University of Nebraska-Omaha, 2007; J.D. candidate, expected May 2010, University of Nebraska College of Law.↑
1.   279 Neb. 30, 776 N.W.2d 786 (2009).↑
2.   Chase 3000, Inc. v. Public Service Com’n, 273 Neb. 133, 141, 728 N.W.2d 560, 568 (2007).↑
3.   Id. at 31-32, 776 N.W.2d at 787.↑
4.   The relevant portion of the statute provides:

the owner or owners of any dog shall be liable for any and all damages that may accrue (1) to any person . . . by reason of having been bitten by any such dog or dogs and (2) to any person . . . by reason of such dog or dogs killing, wounding, injuring, worrying, or chasing any person or persons.

Neb. Rev. Stat. § 54-601 (Supp. 2009).↑
5.   Underhill, 279 Neb. at 31, 776 N.W.2d at 787.↑
6.   The earlier version of the statute did not include the word “injuring.”  See id. at 33, 776 N.W.2d at 788.↑
7.   Underhill admitted that the dog was not acting maliciously. Id. at 31, 776 N.W.2d at 787.↑
8.   Id. at 33-34, 776 N.W.2d at 789.↑
9.   Donner v. Plymate, 193 Neb. 647, 228 N.W.2d 612 (1975).↑
10.   Underhill, 279 Neb. at 34, 776 N.W.2d at 789.↑
11.   Id.↑
12.   Id. at 35, 776 N.W.2d at 789 (McCormack, J., dissenting).↑
13.   Id., 776 N.W.2d at 790.↑
14.   Donner, 193 Neb. at 647, 228 N.W.2d at 612.↑
15.   Id. at 649, 228 N.W.2d at 614.↑
16.   Underhill, 279 Neb. at 35-36, 776 N.W.2d at 789-90 (McCormack, J., dissenting).↑
17.   Id. at 37, 776 N.W.2d at 791.↑
18.   Chase 3000, Inc. v. Public Service Com’n, 273 Neb. 133, 141, 728 N.W.2d 560, 568 (2007).↑
19.   See, e.g., Pearson v. Lincoln Telephone Co., 2 Neb. App. 703, 710, 513 N.W.2d 361, 366 (1994) (“[W]hen the statutory language is ambiguous and must be construed, recourse should be had to the legislative history for the purpose of discovering the lawmakers’ intent”).↑
20.   Black’s Law Dictionary 93 (9th ed. 2009).↑
21.   Underhill, 279 Neb. at 35, 776 N.W.2d at 789 (McCormack, J., dissenting).↑
22.   Neb. Rev. Stat. § 54-601 (Supp. 2009).↑
23.   193 Neb. 647, 228 N.W.2d 612 (1975).↑
24.   Underhill, 279 Neb. at 33, 776 N.W.2d at 788.↑
25.   Donner, 193 Neb. at 650, 776 N.W.2d at 614.↑
26.   See Black’s Law Dictionary 856 (9th ed. 2000) (defining injury as “[a]ny harm or damage).↑
27.   Vokal v. Neb. Accountability and Disclosure Comm’n, 276 Neb. 988, 992, 759 N.W.2d 75, 79 (2009).↑
28.   State v. Kipf, 234 Neb. 227, 234, 450 N.W.2d 397, 404 (1990).↑
29.   Remember that “words are known by the company they keep” and that a word’s meaning could arguably change slightly depending on what words surround it.↑
30.   Underhill makes this point clear.  The legislative history shows that the sole purpose was to expand the range of compensable injuries, not the scope of strict liability.  See Discussion of LB 1011 Before Committee on Agriculture, 92nd Leg., 2nd Sess., 5-8 (Neb. 1991) (statements of Sen. Ed Schrock and Mr. Claude Berreckman).  But this change by the legislature almost unintentionally altered another aspect of the statute.↑
31.   Underhill v. Hobelman, 279 Neb. 30 Id. at 31-32, 776 N.W.2d at 787.↑

Introduction

At the appellate level, there are numerous instances where the court is unable to reach the substantive merits of an issue because the assigned error is not preserved in the record.  The purpose of this article is to highlight the situations in which this commonly occurs and set forth the applicable procedure to preserve the error.  This article is by no means intended as an exhaustive guide, but is merely designed to illustrate some of the more common issues that have appeared in reported Nebraska decisions.  First, the article sets forth proper method of preserving the record, which is essential to preserving any error.  Second, it explains how to preserve particular errors–evidentiary, jury instruction, and other errors–for appellate review.  The third and final section sets forth the proper method of requesting the preparation of the record for appellate review.

I. Making an Evidentiary Record in Trial Court

There are two parts of an appellate record–a transcript and a bill of exceptions.  The transcript contains the filings from the court proceeding below.[1]  The bill of exceptions contains the evidence that will be considered on appellate review.  An appellate court may not review evidence unless it has been preserved in the bill of exceptions.[2]

The official court reporter is required to “make a verbatim record of the evidence offered at trial or other evidentiary proceeding . . . .”[3]  The record may not be waived.[4]  This record–the bill of exceptions–is either created by the court reporter during the proceeding, or subsequently transcribed by the court reporter from an audio recording of the proceeding.  However, the bill of exceptions does not automatically include

any pretrial matters; the voir dire examination; opening statements; arguments, including arguments on objections; any motion, comment, or statement made by the court in the presence and hearing of a panel of potential jurors or the trial jury; and any objection to the court’s proposed instructions or to instructions tendered by any party, together with the court’s rulings thereon, and any posttrial proceeding.[5]

Thus, counsel must request that a verbatim record of any of these proceedings be made, if it is desired.  When there is no bill of exceptions, the appellate court’s review of the case is extremely limited;[6] the court only reviews whether the judgment is supported by the pleadings.[7]

It is crucial to ensure that the individual exhibits are actually marked and offered into evidence so that they become part of the record.  Problems with this rule typically arise in the context of a summary judgment motion where a party fastens exhibits to the summary judgment motion but fails to offer the exhibits into evidence.  In a motion for summary judgment, proposed exhibits do not become part of the evidentiary record by virtue of being attached to the motion for summary judgment.[8]  They must be offered into evidence in order to be considered as evidence on appeal.[9]

A similar problem can arise when a trial court takes judicial notice of an adjudicative fact, but the judicially noticed item is not part of the record.  A court may take judicial notice of a fact “not subject to reasonable dispute in that it is either (a) generally known within the territorial jurisdiction of the trial court or (b) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.”[10]  In this context, a court may “examine its own records and take judicial notice of its own proceedings and judgment in the same case or a related case.”[11]  However, a request that the court take judicial notice of a particular item does not necessarily preserve the item in the record unless the item is also made part of the bill of exceptions for that case.[12]  Items that are judicially noticed–just like evidence–should be “separately marked, offered, and received as evidence to enable efficient review.”[13]

II. Preservation of Error for Appellate Review

In order to obtain appellate review of an error, it is necessary to make a proper objection[14] or motion[15] on the record of the trial court.  Normally, an appellate court will not consider an error that is not raised at the trial court level.[16]  In the absence of an error raised at the trial court level, a Nebraska appellate court may review for “plain error.”[17]  The Nebraska Supreme Court has defined plain error as

an error, plainly evident from the record but not complained of at trial, which prejudicially affects a substantial right of a litigant and is of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process.[18]

It is relatively uncommon for an appellate court in Nebraska to find plain error.

A. Evidentiary Errors

1. Making an Objection

An evidentiary objection must be made in a way that alerts both the trial court and the appellate court to the perceived error.[19]  When objecting to evidence, simply making an objection is usually not sufficient to preserve error.  Where counsel states an objection without stating a ground for the objection, it is most often treated as if there were no objection at all for purposes of appellate review.  State v. Hall[20] is illustrative of this point.  In Hall, defense counsel objected to exhibits offered by the prosecution by stating as follows: “Judge, I’m going to object to that. I wasn’t counsel of record at the time and I’m not sure all proper objections were made to those exhibits.”[21]  On appeal, the Nebraska Supreme Court declined to consider the defendant’s assignments of error regarding the admission of the exhibits because “defense counsel’s objection did not sufficiently enlighten the trial court as to the basis for any objection to these exhibits.”[22]

Thus, in order to preserve error, an objection must be specific.  The Nebraska Supreme Court has stated that

[u]nless the objection to offered evidence be sufficiently specific to enlighten the trial court and enable it to pass upon the sufficiency of such objection and to observe the alleged harmful bearing of the evidence from the standpoint of the objector, no question can be presented therefrom in the court of appeal.[23]

For example, if particular evidence is hearsay, unfairly prejudicial, privileged, etc., it is sufficient to state the particular ground listed in the evidentiary rules in Chapter 27 of the Nebraska Statutes.[24]  If there is more than one ground for the objection, it is important to state all grounds.  In this regard, the Nebraska Supreme Court has often stated that “an objection, based on a specific ground and properly overruled, does not preserve a question for appellate review on any other ground.”[25]

To the extent possible, it is also important to avoid making a general, nonspecific objection on the basis of “insufficient foundation” because it often does not preserve any error at all.  When a general objection for insufficient foundation is overruled, it is not appealable unless “(1) the ground for exclusion was obvious without stating it or (2) the evidence was not admissible for any purpose.”[26]  Thus, in making an insufficient foundation objection, it is necessary to specify the manner in which foundation is lacking in order to raise the error on appeal.[27]

After objecting, it is necessary to get a ruling on the objection.  By failing to do so, the error is waived and the evidence is admitted into the record.[28]  Even if the trial court reserves its ruling on an objection but fails to later rule on the objection, the error is waived.[29]

2. Making an Offer of Proof

When the trial court rules that evidence is inadmissible and excludes it from the record, the party who offered the evidence normally must make an offer of proof to preserve the issue of admissibility for appellate review.[30]  The general rule in this regard is that

[e]rror may not be predicated upon a ruling of a trial court excluding testimony of a witness unless the substance of the evidence to be offered by the testimony was made known to the trial judge by offer or was apparent from the context within which the questions were asked.[31]

The Nebraska Court of Appeals has observed that “it would be an unusual circumstance where an offer of proof would not be required in order to enable the trial court, and the appellate courts, to know what the evidence is which the questioner seeks to elicit.”[32]  Additionally, for no offer of proof to be necessary, the record must “show[] that [the evidence] is relevant and competent.”[33]  Even a leading question asked on cross-examination may not be a sufficient offer of proof.[34]

An offer of proof is made by either (1) presenting the testimony itself to the trial court,[35] or (2) offering a “secondary” source of the contents of testimony–such as counsel’s statement[36] or a report.[37]  An offer of proof is always made outside the presence of the jury, if there is one.[38]  The best method of making an offer of proof consists of introducing the actual evidence to the trial court because this ensures that the precise nature of the evidence is preserved in the record.  Unless it is quite specific, a “secondary source” may not provide a sufficient offer of proof.  For example, a generalized statement regarding the gist of a witness’s testimony, such as a statement that the excluded testimony would support another witness’s testimony, is not sufficient.[39]

3. Timing of Objection

As a preliminary matter, it is clear that a timely objection must be made at trial and not at a pretrial motion in limine to exclude the opposing party’s evidence.  A trial court’s ruling on a motion in limine is merely a preliminary ruling and is not an appealable “final ruling upon the ultimate admissibility of the evidence.”[40]  If the trial court denies a motion in limine, in order to preserve the evidentiary issue on the record, it is still necessary to object to the opposing party’s evidence when it is offered at trial.[41]  A failure to object at trial constitutes a waiver of the previous objection that was made pretrial.[42]  Conversely, if opposing counsel has won a motion in limine to exclude your evidence, it is still necessary to make an offer of proof at trial–outside of the presence of the jury–to preserve the issue of admissibility for appeal.[43]

At trial, it is necessary to make an evidentiary objection “at the earliest opportunity after the ground for the objection becomes apparent.”[44]  When an exhibit is offered into evidence, one must object before the court admits it into evidence.[45]  In the context of testimony, the objection must be made as the testimony is being offered,[46] and the lawyer must move to strike any objectionable testimony given before the objection so that the fact finder may not consider it.[47]

B. Jury Instructions

Preserving errors related to jury instructions entails a process distinct from preserving other errors.  In order to request a jury instruction, a party must file a written request for the instruction with the clerk of the court.[48]  The written request must be filed prior to the formal instruction conference, which occurs at the conclusion of the evidence.[49]  An oral request for a jury instruction may not preserve the issue for appellate review.  An oral request preserves the issue only “when the record demonstrates that a trial court understood the nature of the orally requested instruction.”[50]  The judge or a pretrial order may require the submission of instructions prior to the conclusion of the evidence, but unless the order specifies that the submitted instructions will be used at trial, it is still necessary to follow the statutory procedure outlined above.

To preserve an objection to a jury instruction, it is necessary to make an objection on the record at the formal jury instruction conference.[51]  An objection can be registered by objecting to the instruction or by offering a more specific instruction at the jury instruction conference.[52]  When offering a more specific instruction, it is also necessary to actually object to the proposed instruction at the conference.[53]  Although it is probably also necessary to file the more specific instruction with the clerk, filing the instruction without objecting to the instructions actually given does not preserve for appellate review any error related to the court’s failure to give the more specific instruction.[54]

C. Other Matters

This section discusses a potpourri of other matters that trial counsel must raise at trial in order to preserve error for appellate review.  This is not intended to be an all-inclusive list of such matters, but is merely illustrative of the more commonly occurring issues.

1. Disqualification of Trial Judge

In some rare situations, it may be necessary to make a motion to recuse the trial judge.  In anticipating a possible appeal, it is important to know both the circumstances under which it is appropriate to do so and the proper time to make such a motion.  The issue of timing is fairly simple–a motion must be made prior to submitting the case for disposition.[55]

Deciding whether it is appropriate to make a motion for recusal is a more difficult matter.  In Nebraska, there are both what are best characterized as “automatic” and “discretionary” grounds for judicial disqualification.  In the case of “automatic” grounds for disqualification, it is usually clear from the facts whether disqualification is appropriate, and the judge will often recuse himself or herself before the case is in front of the judge.  Under statute, a trial judge in Nebraska is automatically disqualified, unless all parties consent in writing on the record, if the judge is a party, is related[56] to a party, is related to an attorney or the attorney’s copartner, or has represented one of the parties in that particular action or proceeding.[57]  Because it is fairly obvious when such circumstances are present, a motion to recuse made under these circumstances should be successful and not cause controversy.

When the ground for disqualification is “discretionary,” there are reasons to exercise extreme discretion in deciding whether to make a motion to recuse the trial judge.  The ground for judicial disqualification that is characterized as “discretionary” is the ground of judicial bias or prejudice.  In the context of bias and prejudice,

a trial judge should be recused when a litigant demonstrates that a reasonable person who knew the circumstances of the case would question the judge’s impartiality under an objective standard of reasonableness, even though no actual bias or prejudice is shown.[58]

The reason for characterizing these grounds as “discretionary” is that (1) this determination is generally a question of fact,[59] and (2) the trial judge’s decision is reviewed for abuse of discretion.  As the court of appeals repeated in Dinges, “[a] motion to recuse for bias or impartiality is initially entrusted to the discretion of the trial court, and the trial court’s ruling will be affirmed absent an abuse of that discretion.”[60]  Because the trial judge determines the motion to recuse in the first instance and the trial judge’s decision is normally overturned only in the presence of what are best characterized as compelling circumstances,[61] a trial attorney should give thoughtful consideration prior to making any such motion.

2. Discovery Rule Violations

This section addresses only those discovery rule violations that first become apparent at trial[62] and the appropriate method of preserving such errors in both civil and criminal cases.

In the context of a civil trial, such violations become apparent when the opposing party offers evidence that was requested in discovery, which the opposing party was obligated to provide under the discovery rules, but did not timely provide.[63]  The essence of the problem is that the party that made the discovery request is “surprised” with previously undisclosed information and has not received an adequate opportunity to prepare a response to this information.[64]  Nebraska civil cases have specifically dealt with this issue in two contexts–requests for admission that were not timely answered–and thus deemed admitted–where the court later allowed the requests to be answered at trial[65] and interrogatories regarding expert testimony that were untimely “supplemented” by trial testimony.[66]  In the context of the expert witness testimony, pursuant to section 6-326(e)(1)(B) of the Nebraska Court Rules of Discovery, a party is required to seasonably supplement responses to questions regarding “the identity of each person expected to be called as an expert witness at trial, the subject matter on which he or she is expected to testify, and the substance of his or her testimony,” which clearly has not happened when a party is “surprised” by such information at trial.  In the context of requests for admission, a party is required to file a timely response to requests for admission (typically 30 days), or the requests are deemed admitted, and thus a response permitted during a trial after the response period could be considered a “surprise.”[67]  Although the reported decisions in civil cases are limited to expert witness disclosures and requests for admission, a similar scenario could arise in any instance where one party’s failure to provide appropriate responses to discovery requests becomes apparent at trial and “surprises” the party that made the discovery request.[68]

To preserve an error related to surprise, the party must (1) object to the evidence on the ground of surprise, (2) if the expert (or other witness offering “surprise” testimony) testifies, move to strike that witness’ testimony and request a continuance to further investigate and develop rebuttal evidence, and (3) move for a mistrial, if appropriate.[69]  Because this process is somewhat complex, an illustration may prove useful.

Paulk v. Central Laboratory Associates[70] illustrates a correct method of preserving an error related to a discovery rule violation.  In this case, the Nebraska Supreme Court determined that a mistrial was appropriate after a party had failed to supplement discovery responses regarding a medical expert’s opinion on causation as the discovery rules required.  The patient’s estate had sued doctors for failing to correctly diagnose malignant melanoma.[71]  The doctors offered an expert’s previously undisclosed opinion that, at the time of the misdiagnosis, the cancer had already metastasized–a fact that would have refuted the plaintiff’s theory of causation that the misdiagnosis prevented the proper treatment and ultimately the metastasis of the cancer.[72]  The plaintiff’s counsel obtained a continuance (of only 24 hours) in which counsel gathered evidence to rebut the expert testimony, and also moved for a mistrial.[73]  The Nebraska Supreme Court held that a mistrial was warranted under the circumstances because the “surprise” information was of “critical importance” and the plaintiff was denied an adequate opportunity to prepare for cross examination of the expert witness and develop rebuttal evidence.[74]

In the context of a criminal prosecution, the procedure for preserving an error resulting from the belated disclosure of evidence involves a similar process, but there are some differences.  As a general observation, the same rules apply whether a disclosure is not timely or does not happen at all, and whether the error is noticed prior to trial or during trial.  Under section 29-1912 of the Nebraska Statutes, if the defendant so requests, the prosecutor must provide the defendant with the opportunity to inspect and copy or photograph certain pieces of evidence which could be used by the prosecution, but this is subject to certain exceptions enumerated in the statute.[75]  The statute provides a laundry list of items which the defendant, if charged with a felony offense or an offense for which imprisonment is a possible penalty, may request, which includes the defendant’s statements, the defendant’s prior criminal record, the “names and addresses of witnesses on whose evidence the charge is based,” results of physical and mental examinations and scientific tests, tangible objects that could be used as evidence, and information related to jailhouse witnesses.[76]  The defendant’s ability to acquire such items is limited where the disclosure would possibly result in bodily harm to witnesses or the coercion of witnesses.[77]  Pursuant to section 29-1916, the trial court may also grant reciprocal discovery to require the defendant “to grant the prosecution like access to comparable items or information included within the defendant’s request” provided that the defendant has “possession, custody, or control” of the item or information, “[t]he defendant intends to produce [the item or information] at the trial,” and the item or information is “material to the preparation of the prosecution’s case.”[78]  Finally, discovery in the criminal context is subject to a continuing duty–until the trial is complete–to notify the other party and the court of newly discovered evidence that the party would have been required to disclose under a previous discovery order.[79]

Whether late disclosure results in prejudice and thus whether a remedy is available for late disclosure depends upon whether the information is “material to the preparation of the defense, meaning that there is a strong indication that such information will play an important role in uncovering admissible evidence, aiding preparation of witnesses, corroborating testimony, or assisting impeachment or rebuttal.”[80]  Pursuant to section 29-1919, where a party has failed to comply with a discovery order the court may “(1) Order such party to permit the discovery or inspection of materials not previously disclosed; (2) Grant a continuance; (3) Prohibit the party from calling a witness not disclosed or introducing in evidence the material not disclosed; or (4) Enter such other order as it deems just under the circumstances.”[81]  Where the prosecution’s belated disclosure of evidence causes “prejudice,”[82] counsel must first request a continuance if it can cure the prejudice caused by the delay.[83]  The failure to do so may waive the defendant’s right to discovery under section 25-1912.[84]  If the continuance cannot cure the prejudice, the defendant may move for a mistrial, which is only appropriate where the defendant has shown “that a substantial miscarriage of justice has actually occurred.”[85]  For example, the State’s failure to provide a defendant charged with murder information regarding an anonymous phone call that indicated that someone else (who had previously been implicated in the crime) had committed the murder was sufficient grounds for a mistrial.[86]

3. Other Errors Preserved By a Motion for Mistrial

Errors related to other events that occur “during the course of a trial which [are] of such a nature that [their] damaging effects would prevent a fair trial” must be preserved by a motion for a mistrial.[87]  Such errors “may include egregiously prejudicial statements of counsel, the improper admission of prejudicial evidence, and the introduction to the jury of incompetent matters.”[88]  This includes both the above-discussed circumstances where a motion for mistrial is appropriate and a variety of other circumstances.

A motion for a mistrial must be made “at the first reasonable opportunity” or it is waived.[89]  The time of the “first reasonable opportunity” is defined in relation to the timing of the incident on which the motion is based.  In the instance of a prejudicial closing argument, the motion for mistrial must be made no later than the conclusion of the closing argument.[90]  Under some circumstances, waiting until the next day to move for a mistrial is too long.  In one instance, after opposing counsel made an improper statement in a question, counsel objected, had the jury excused, and had the question stricken from the record but did not immediately move for a mistrial.[91]  Counsel then finished questioning her witnesses, rested her case and moved for a mistrial on the following day.[92]  The Nebraska Supreme Court held that the motion for mistrial was not timely.[93]  Thus, it is best to move for a mistrial as soon as the ground for a mistrial is apparent.

III. Requesting Record for Appellate Court Review

After trial, if there is an appeal, counsel must take additional steps to prepare the record for appellate review.  In addition to a notice of appeal–which typically must be filed within 30 days of the lower court’s decision[94]–the appealing party must file requests for the documents that are to compose the appellate record.  There are two separate sets of rules that cover this.  The first is the Nebraska Court Rules of Appellate Practice (Appellate Rules), which apply to appeals from district court to either the Nebraska Court of Appeals or the Nebraska Supreme Court.  The second set of rules is the Uniform County Court Rules of Practice and Procedure (County Court Rules), which apply when a final order is appealed from county court to the district court, the Nebraska Court of Appeals, or the Nebraska Supreme Court.[95]  Although the two sets of rules are substantially similar, this article discusses the procedure prescribed by each set separately because there are some notable differences.

In order to obtain a transcript, the Appellate Rules require the appellant to file a praecipe with the court from which the appeal is taken and direct the clerk to prepare a transcript containing (1) “the pleadings upon which the case was tried, as designated by the appellant,” (2) the final order and accompanying memorandum opinion, if any, (3) a copy of the supersedeas bond or a recital that a cost bond was given or a deposit made as required by Neb. Rev. Stat. § 25-1914, (4) an order granting or denying in forma pauperis status, if any, and (5) any other portions of the transcript which the appellant requests and are material to the assignments of error, which may include jury instructions.[96]

County Court Rules state that in an appeal taken from county court, the appellant must file a request for transcript of pleadings “by listing the name of the pleading and its filling date.”  The transcript will automatically contain the items listed in categories (1) through (4) listed above plus an arraignment sheet showing the plea entered if it is a criminal matter, and the notice of appeal and request for transcript.[97]  In county court, the appellant must specifically order all other portions of the record that are material to the appeal.[98]

Note that in both cases the transcript is not limited to those items initially requested by the appellant.  Either the appellant or the appellee may request a “supplemental transcript.”[99]  Such a request must be in writing.[100]

The appellant must also file a request for the preparation of a bill of exceptions with the clerk of the court at the same time the notice of appeal is filed.[101]  Pursuant to the Appellate Rules only, the appellant must also provide the court reporter with a copy of the request.[102]  Under both sets of rules, the request must “specifically identify each portion of the evidence and exhibits offered at any hearing which the party appealing believes material to the issues to be presented for review.”[103]  If the appellee believes that additional evidence should be included in the bill of exceptions, the appellee may, within 10 days after service of the appellant’s request for bill of exceptions, request a supplemental bill of exceptions.[104]  The Appellate Rules require that the supplemental request also be filed with the clerk of the district court and delivered to the court reporter.[105]

Conclusion

The purpose of this article was to highlight various issues that commonly arise in the context of making and preparing an appellate record.  We hope that it was helpful.  Because this article was an overview as opposed to a comprehensive study, we encourage you to also conduct your own study of any particular or unique issue that arises in your practice.

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Preferred Citation Format: William B. Cassel & Anneliese Wright, Preservation of Error for Appellate Review, 2 Neb. L. Rev. Bull. 1 (2010), http://lawreview.unl.edu/?p=711.

FOOTNOTES
0.   William B. Cassel is a judge on the Nebraska Court of Appeals.  B.S., University of Nebraska, 1977; J.D., University of Nebraska College of Law, 1979.

Anneliese Wright is a judicial clerk to the Hon. William B. Cassel, Nebraska Court of Appeals.  B.A., Doane College, 2005; J.D, University of Nebraska College of Law, 2008.↑
1.   See Neb. Ct. R. App. P. § 2-104 (listing contents of transcript).↑
2.   Ottaco Acceptance, Inc.v. Huntzinger, 268 Neb. 258, 262, 682 N.W.2d 232, 236 (2004).↑
3.   Neb. Ct. R. App. P. § 2-105(A)(1).↑
4.   Id.↑
5.   Neb. Ct. R. App. P. § 2-105(A)(2).↑
6.   See Atokad Agric. & Racing Ass’n v. Governors of the Knights of Ak-Sar-Ben, 237 Neb. 317, 321, 466 N.W.2d 73, 77 (1991), overruled on other grounds by Eccleston v. Chait, 241 Neb. 961, 492 N.W.2d 860 (1992)).↑
7.   See Atokad, 237 Neb. at 321, 466 N.W.2d at 77.↑
8.   See Hogan v. Garden County, 264 Neb. 115, 119-20, 646 N.W.2d 257, 261-62 (2002).↑
9.   Id. at 120-21, 646 N.W.2d at 261-62.↑
10.   Neb. Rev. Stat. § 27-201 (Reissue 2008).↑
11.   Everson v. O’Kane, 11 Neb. App. 74, 79, 643 N.W.2d 396, 400-01 (2002).↑
12.   See id. at 79-80, 643 N.W.2d at 401; see also Saunders County v. Metro. Utils. Dist., 11 Neb. App. 138, 143-45, 645 N.W.2d 805, 811-12 (2002) (same).↑
13.   Saunders County, 11 Neb. App. at 144, 645 N.W.2d at 812.↑
14.   See Shipler v. Gen. Motors Corp., 271 Neb. 194, 227, 710 N.W.2d 807, 836 (2006).↑
15.   See infra section II.C.↑
16.   Walsh v. State, 276 Neb. 1034, 1043, 759 N.W.2d 100, 108 (2009) (“An appellate court will not consider an issue on appeal that was not presented to or passed upon by the trial court.”).↑
17.   See Russell v. Stricker, 262 Neb. 853, 861, 635 N.W.2d 734, 740 (2001).↑
18.   Worth v. Kolbeck, 273 Neb. 163, 175, 728 N.W.2d 282, 293-94 (2007).↑
19.   See State v. Harris, 263 Neb. 331, 341, 640 N.W.2d 24, 35 (2002) (“A true objection does not wander among the Nebraska Evidence Rules in the hope of eventually ending its odyssey at the doorstep of a particular rule of evidence.  In seeking to exclude evidence, counsel must adhere to a basic and straightforward approach: Tell the court the reason why the evidence is inadmissible.”).↑
20.   270 Neb. 669, 708 N.W.2d 209 (2005).↑
21.   Id. at 672, 708 N.W.2d at 213.↑
22.   Id. at 676, 708 N.W.2d at 215.↑
23.  Id. at 675, 708 N.W.2d at 215 (quoting State v. Farrell, 242 Neb. 877, 883, 497 N.W.2d 17, 21 (1993)).↑
24.   See State v. Coleman, 239 Neb. 800, 812, 478 N.W.2d 349, 357 (1992).↑
25.   State v. Molina, 271 Neb. 488, 504, 713 N.W.2d 412, 431 (2006).↑
26.   State v. Davlin, 263 Neb. 283, 306, 639 N.W.2d 631, 651 (2002).↑
27.   Of course, this alerts opposing counsel as to what foundation is lacking and provides an opportunity to correct the problem and perhaps seem more credible in front of the fact finder.↑
28.   See Griffith v. Griffith, 230 Neb. 314, 316-17, 431 N.W.2d 609, 611 (1988) (quoting Syllabus of the Court in In re Estate of Kaiser, 150 Neb. 295, 34 N.W.2d 366 (1948)).↑
29.   Id.↑
30.   Sturzenegger v. Father Flanagan’s Boys’ Home, 276 Neb. 327, 338, 754 N.W.2d 406, 421 (2008).↑
31.   Anderson v. Neb. Dep’t of Soc. Servs., 253 Neb. 813, 818, 572 N.W.2d 362, 366 (1998); Neb. Rev. Stat. § 27-103(1)(b) (Reissue 2008).↑
32.   State v. Eldred, 5 Neb. App. 424, 431, 559 N.W.2d 519, 526 (1997).↑
33.   State v. Kramer, 238 Neb. 252, 259, 469 N.W.2d 785, 790 (1991) (emphasis omitted).↑
34.   Id. at 258-60, 469 N.W.2d at 789-90.  The question “As a matter of fact, you have been convicted of two felonies?” was not sufficient to preserve an error for appellate review.↑
35.   Gerken v. Hy-Vee, Inc., 11 Neb. App. 778, 783, 660 N.W.2d 893, 898-99 (2003).↑
36.   Deuth v. Ratigan, 256 Neb. 419, 430-31, 590 N.W.2d 366, 374-75 (1999).↑
37.   See Turner v. Welliver, 226 Neb. 275, 283-84, 411 N.W.2d 298, 305 (1987).↑
38.   See Thrift Mart, Inc. v. State Farm Fire & Cas. Co., 251 Neb. 448, 454, 558 N.W.2d 531, 536 (1997), overruled on other grounds by Hornig v. Martel Lift Sys., 258 Neb. 764, 606 N.W.2d 764 (2000).↑
39.   Zuco v. Tucker, 9 Neb. App. 155, 160-61, 609 N.W.2d 59, 64 (2000).↑
40.   Olson v. Sherrerd, 266 Neb. 207, 214, 663 N.W.2d 617, 623 (2003).↑
41.   Id. at 214-15, 663 N.W.2d at 623.↑
42.   State v. Timmens, 263 Neb. 622, 627, 641 N.W.2d 383, 388 (2002).↑
43.   McCune v. Neitzel, 235 Neb. 754, 761, 457 N.W.2d 803, 809 (1990).  For information on how to make an offer of proof, read supra section II.A.2.↑
44.   State v. Rodgers, 237 Neb. 506, 510, 466 N.W.2d 537, 540 (1991); State v. Sanders, 15 Neb. App. 554, 571, 733 N.W.2d 197, 214 (2007).↑
45.   Rodgers, 237 Neb. at 509-10, 466 N.W.2d at 539-40.↑
46.   Ashby v. First Data Res., Inc., 242 Neb. 529, 539, 497 N.W.2d 330, 338 (1993).↑
47.   See Steele v. Sedlacek, 267 Neb. 1, 13, 673 N.W.2d 1, 12 (2003).↑
48.   Neb. Rev. Stat. §§ 25-1111 (submit in writing), 25-1114 (file with clerk) (Reissue 2008).↑
49.   Although there is no statutory requirement, the instructions could not be filed after the instruction conference because it is at the conference that the court determines which instructions to give.↑
50.   State v. Parks, 253 Neb. 939, 945, 573 N.W.2d 453, 457 (1998) (quoting State v. Grant, 242 Neb. 364, 370, 495 N.W.2d 253, 257 (1993)).↑
51.   See Wilkins v. Bergstrom, 17 Neb. App. 615, 618-19, 767  N.W.2d 136, 140-41 (2009).↑
52.   See State v. Sanders, 269 Neb. 895, 913, 697 N.W.2d 657, 672 (2005); Wilkins, 17 Neb. App. at 618, 767 N.W.2d at 140.  Remember that it is also necessary to state the ground for the objection.↑
53.   See Olson v. Sherrerd, 266 Neb. 207, 213, 663 N.W.2d 617, 622 (2003); Wilkins, 17 Neb. App. at 619, 767 N.W.2d at 140-41.↑
54.   See Olson, 266 Neb. at 213-14, 663 N.W.2d at 622-23.↑
55.   See Mooney v. Gordon Mem’l Hosp. Dist., 268 Neb. 273, 278, 682 N.W.2d 253, 258  (2004).↑
56.   We use the term “related,” but section 24-739 provides a very technical definition of each kind of relationship that is sufficient to merit automatic recusal.  Neb. Rev. Stat. § 24-739 (Reissue 2008).↑
57.   § 24-739.  The statute also sets forth a scenario where the judge shares office space with an “ex-copartner.”  In addition to the statutes, section 5-203(E) of the Nebraska Code of Judicial Conduct also sets forth standards on when a judge should recuse himself or herself.  While the two put have generally the same standards, the Code provides some additional grounds on which a judge should recuse himself.  Neb. Code of Judicial Conduct § 5-203(E).↑
58.   In re Estate of Cooper, 275 Neb. 322, 332, 746 N.W.2d 663, 670 (2008).↑
59.   See Dinges v. Dinges, 16 Neb. App. 275, 278, 743 N.W.2d 662, 666 (2008); see also Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252 (2009).  Caperton was a 5-4 decision in which West Virginia Supreme Court justice was disqualified on due process grounds because the “probability of actual bias on the part of the judge or decisionmaker [was] too high to be constitutionally tolerable.”  Id. at 2257 (internal quotations and citations omitted).  The justice in question had received about three million dollars in campaign contributions from one of the litigants before the court.↑
60.   Dinges, 16 Neb. App. at 278, 743 N.W.2d at 666.↑
61.   There are several recent examples of situations in which an appellate court determined that such a motion should have been granted.  For example, in a proceeding to remove a personal representative, the trial judge conducted an ex parte hearing at which no evidence was offered but the party appearing had a conversation with the judge in which the judge asked several questions about the case.  Cooper, 275 Neb. at 331-32, 746 N.W.2d at 670.  Another case involved a sentencing proceeding for sexual assault of a child where the victim and the offender were of the same sex during which the judge read a biblical passage that opposed homosexuality.  State v. Pattno, 254 Neb. 733, 579 N.W.2d 503 (1998).  State v. Bruna, 12 Neb. App. 798, 686 N.W.2d 590 (2004), involved another sentencing proceeding for a sexual assault where the victim and offender were of the same sex; the judge identified himself as the judge in Pattno and made reference to his previous biblical comments in that case.  Recusal was also appropriate in a proceeding where a trial judge, of his own accord, recited “facts” unfavorable to a party that were not contained in the record.  Mihm v. Am. Tool, 11 Neb. App. 543, 664 N.W.2d 27 (2003).  Finally, recusal was required when a judge presiding over a dissolution proceeding prematurely decided an issue that the parties had agreed to save for a later hearing.  Gibilisco v. Gibilisco, 263 Neb. 27, 637 N.W.2d 898 (2002).↑
62.   There are numerous other discovery rule violations that are the subject of pretrial and posttrial proceedings that are not discussed in this article.↑
63.   See Norquay v. Union Pac. R.R. Co., 225 Neb. 527, 407 N.W.2d 146 (1987) (failure to fulfill obligation to supplement discovery responses regarding expert witnesses); State v. Soto, 11 Neb. App. 667, 659 N.W.2d 1 (2003) (failure to timely answer requests for admissions).↑
64.   See generally Norquay, 225 Neb. 527, 407 N.W.2d 146.↑
65.   Soto, 11 Neb. App. at, 677-79, 659 N.W.2d at  9-11.↑
66.   Paulk v. Cent. Lab. Assocs. 262 Neb. 838, 636 N.W.2d 170 (2001); Norquay, 225 Neb. 527, 407 N.W.2d 146.↑
67.   Neb. Ct. R. Disc. §6-336(a) (generally, a party has 30 days to respond to requests for admission); see also Soto, 11 Neb. App. at 679, 659 N.W.2d at 11 (discussing proper method to preserve error related to failure to respond to requests for admission in a timely manner).↑
68.   For further information, please read the Nebraska Court Rules of Discovery regarding required responses to discovery.↑
69.   See Norquay, 225 Neb. at 541-42, 407 N.W.2d at 156.↑
70.   262 Neb. 838, 636 N.W.2d 170 (2001).↑
71.   Id. at 840, 636 N.W.2d at 173.↑
72.   Id. at 843-44, 848, 636 N.W.2d at 175-76, 179.↑
73.   Id. at 844, 848-49, 636 N.W.2d at 176, 179.  The language of the opinion is not explicit as to the details of how the plaintiff’s counsel objected, but from what the court held and the applicable law, it can be inferred that plaintiff’s counsel did move for a continuance and a mistrial.  Counsel could have also moved to strike the testimony, but did not do so.↑
74.   Id. at 848-49, 636 N.W.2d at 179.↑
75.   Neb. Rev. Stat. § 29-1912 (Supp. 2009).↑
76.   § 29-1912(1).↑
77.   § 29-1912(4).↑
78.   Neb. Rev. Stat. § 29-1916 (Reissue 2008).↑
79.   Neb. Rev. Stat. § 29-1918 (Reissue 2008).↑
80.   State v. Larsen, 255 Neb. 532, 545, 586 N.W.2d 641, 650 (1998).↑
81.   Neb. Rev. Stat. § 29-1919 (Reissue 2008).↑
82.   The Nebraska Supreme Court has stated that in determining whether prejudice has resulted, the trial court should consider “whether the information sought is material to the preparation of the defense, meaning that there is a strong indication that such information will play an important role in uncovering admissible evidence, aiding preparation of witnesses, corroborating testimony, or assisting impeachment or rebuttal.”  State v. Van, 268 Neb. 814, 837, 688 N.W.2d 600, 622 (2004).↑
83.   State v. Harris, 263 Neb. 331, 338-39, 640 N.W.2d 24, 33 (2002).↑
84.   Id. at 339, 640 N.W.2d at 33.↑
85.   State v. Robinson, 271 Neb. 698, 711, 715 N.W.2d 531, 547-48 (2006); Harris, 263 Neb. at 338, 640 N.W.2d at 33.↑
86.   State v. Kula, 252 Neb. 471, 487-89, 562 N.W.2d 717, 727-28 (1997).↑
87.   Malchow v. Doyle, 275 Neb. 530, 537, 748 N.W.2d 28, 35 (2008).↑
88.   Id.  Reference to an insurance carrier that is indemnifying a party at trial can constitute grounds for mistrial.  See Genthon v. Kratville, 270 Neb. 74, 86-87, 701 N.W.2d 334, 346-47 (2005).  Opposing counsel’s misconduct during closing arguments can also constitute such grounds.  See Wolfe v. Abraham, 244 Neb. 337, 342-43, 506 N.W.2d 692, 696-97 (1993).↑
89.   Nichols v. Busse, 243 Neb. 811, 824, 503 N.W.2d 173, 183 (1993).↑
90.   Wolfe v. Abraham, 244 Neb. 337, 343, 506 N.W.2d 692, 697 (1993).↑
91.   Nichols, 243 Neb. at 824-25, 503 N.W.2d at 183.↑
92.   Id. at 825, 503 N.W.2d at 183.↑
93.   Id. at 825, 503 N.W.2d at 183-84.↑
94.   See Neb. Rev. Stat. §§ 25-1912, 25-2729 (Reissue 2008).  Note that this is a general statement and that there are some subject-matter-specific exceptions embedded in the statutes.↑
95.   Neb. Ct. R. § 6-1452.  Section 6-1452(A) sets forth the rules for an appeal from county court to district court and section (B) sets forth the procedure for requesting the bill of exceptions.  Finally, section 6-1452(C) provides that appeals from county court to either the Nebraska Court of Appeals or the Nebraska Supreme Court follow the same procedure for requesting a transcript and bill of exceptions as if the appeal were going to a district court.↑
96.   Neb. Ct. R. App. P. § 2-104(A)(1)-(2).↑
97.   Neb. Ct. R. § 6-1452(A)(2)(a)-(b).↑
98.   § 6-1452(A)(2)(a)(v).↑
99.   § 2-104(C); § 6-1452(A)(5).↑
100.   § 2-104(C); § 6-1452(A)(5)(a).↑
101.   Neb. Ct. R. App. P. § 2-105(B)(1)(a); § 6-1452(B)(1).↑
102.   § 2-105(B)(1)(a).↑
103.   § 6-1452(B)(1); see § 2-105(B)(1)(b) (there is a slight variation in that in that the final phrase reads “presented to the Supreme Court for review.”) (emphasis added).↑
104.   § 2-105(B)(1)(c); §6-1452(B)(3).↑
105.   § 2-105(B)(1)(c).↑

Currently pending before the Nebraska Supreme Court is a case that seeks to balance two very important rights–the right to be left alone and the right to free speech.  This indeed requires a delicate balance.  On one hand, an error in one direction will force Nebraskans to endure demeaning, harassing, and offensive speech, even in their own home.  But on the other hand, an error in the other direction will impede on free speech, one of our society’s most cherished rights.

This commentary seeks to help the court find the right balance when it decides State v. Drahota,[1] a case in which nasty emails became the basis for a charge of disturbing the peace.  It argues that while the Nebraska Court of Appeals misapplied the law of the First Amendment, the Nebraska Supreme Court could uphold the conviction without violating the First Amendment by relying on a different line of cases.  This article contains four sections.  First, the underlying facts of the case will be put forward.  Next, the decision of the court of appeals will be discussed.  A brief overview of the relevant First Amendment principles will then follow.  This overview will show how the court of appeals got it wrong and how the supreme court can get it right.  This commentary concludes with a brief section exploring what a Nebraska statute criminalizing the type of conduct at issue in Drahota may look like.

The Facts

The story of State v. Drahota begins in a political science class on the campus of the University of Nebraska in Lincoln.  Darren Drahota was a student in one of William Avery’s[2] political science classes.  Although the two shared an interest in political science, they clearly found themselves on opposite ends of the political spectrum.[3]

Drahota began emailing Avery in the winter of 2006.  The emails dealt with political issues such as the Bush presidency, the Clinton impeachment, the “war on terror,” military service, the war in Iraq, and other topics.[4]  Drahota’s emails were typically longer than those of Avery; the court of appeals characterized them as “rants.”[5]  Further, Drahota’s emails were often laced with profanity and insulting language.  Avery’s emails, while expressing disagreement with Drahota, were generally shorter.

The exchange came to a head on February 9, 2006.  Drahota wrote an email to Avery stating that the Nebraska Cornhuskers football team would be good in a couple years if America is not first destroyed by al-Qaeda and its liberal aides and abettors.[6]  Drahota went on to express admiration for Avery even though he was a “liberal bum.”[7]  Avery responded to this email by stating that he would not engage in a debate on Drahota’s terms because his emails were insulting, vile, and extreme.[8]  Drahota then responded with an invitation to Avery to “go drink and discuss [Avery's] campaign [for a seat in Nebraska's legislature].”[9]  Avery responded that he was “tired of this shit.”[10]  He told Drahota that he found some of his previous comments offensive and no longer wished to engage in a debate with Drahota.[11]  Avery then implied Drahota was cowardly for not having served in the military.[12]  Drahota’s response included the following:

Fuck you!  You don’t know me one bit.  You are a liberal American coward.  If it were up to you, you would imprison Bush before bin Laden . . . .  I’d kick your ass had you said that right in front of me, but YOU don’t have the guts to say that.  If you think you do, just try me . . . .  We call you people turncoats and I’ll be damned if I’m going to take that kind of disrespect from someone who is so clueless as to my military background . . . .  You’ve really pissed me off.[13]

Before Avery had a chance to respond, Drahota sent an email apologizing.  Avery apparently found the apology insufficient and soon wrote:

Please consider this email a request that you not contact me again for the purpose of spilling more vile.  Also, I think you should know that I have saved ALL of your ranting and threatening emails and will not hesitate to turn them over to the police if I hear anything more of this nature from you.  Have a nice day.[14]

After receiving this email, Drahota sent a response expressing regret at how he had acted and apologizing to Avery.  This was the last email that Drahota sent to Avery until a few months later.

On June 14, 2006, Avery received an email from a person using the address of “averylovesalqueda@yahoo.com.”  Two days later, he received a second email from this address.  The first of these emails related to the death of Abu Musab al-Zarqawi.  The author asked, “[d]oes that make you sad that the al-queda [sic] leader in Iraq will not be around to behead people and undermine our efforts in Iraq? . . . You . . . and the ACLU should have a token funeral to say goodbye to a dear friend of your anti-american [sic] sentiments.”[15]  In the second email, the author referred to Avery as a “Benedict Arnold.”[16]  The author also expressed a desire to “puke all over [Avery].”[17]  Finally, the author told Avery that, “[l]ibs like yourself are the lowest form of life on this planet.”[18]

Avery contacted the police about the emails.  The police traced them back to a computer owned by a woman with whom Drahota was living.  Drahota ultimately admitted that he authored the emails.  He was charged with, and convicted of, disturbing the peace.[19]  He appealed his conviction to the Nebraska Court of Appeals.

What the Nebraska Court of Appeals Did

The Nebraska Court of Appeals affirmed Drahota’s conviction.  Although Drahota argued that his conviction could not stand because his e-mails were protected speech, the court disagreed.  In its brief analysis of the constitutional issue, the court relied on language found in the United States Supreme Court case of Chaplinsky v. New Hampshire.[20] Chaplinsky was cited for the proposition that “fighting words” are not protected speech.  Citing Chaplinksy, the court of appeals said that fighting words are

those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.  It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order or morality.  Resort to epithets or personal abuse is not in any sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.[21]

The court stated that “[i]t would be difficult to author a more apt description of Drahota’s actions in sending [the emails].”[22]  Since Drahota’s speech was not protected speech, his conviction for disturbing the peace of William Avery was upheld.

What the Nebraska Supreme Court Should Do

On September 30, 2009, the Nebraska Supreme Court granted Drahota’s petition to hear the case.  The court granted the petition after University of California, Los Angeles (UCLA) law professor Eugene Volokh got wind of the case and filed a petition on Drahota’s behalf.[23]  Volokh, who has taken the case pro bono, argues that the conviction impermissibly limits the First Amendment rights of Drahota.  While the First Amendment concerns are not to be lightly dismissed, upholding the conviction would not necessarily run afoul of First Amendment principles.[24]  While the court could find Drahota’s speech to be unprotected, it must do so for different reasons than those put forward by the court of appeals.

In finding that Drahota’s speech was not protected by the First Amendment, the court of appeals relied on language from Chaplinsky v. New Hampshire.[25]  Chaplinksy is considered by commentators to be the case upon which the “fighting words” exception is based.[26]  The policy rationale for the fighting words exception is based on the public’s interest in order.  Fighting words are those that, when spoken face-to-face, are likely to cause the recipient to immediately breach the peace.[27]  In the nearly seven decades following Chaplinksy, the Court has continued to recognize the fighting words exception to free speech.[28]  There is little doubt that Chaplinksy and the “fighting words” exception remain good law.[29]

However, the exception is not applicable to the facts of Drahota.  Neither the language of the cases applying the fighting words exception nor the underlying policy rationale of the exception would support its application in a case like Drahota.  Case after case has limited the exception to circumstances in which the words are “inherently likely to provoke violent reaction”[30] and those that “by their very utterance inflict injury or tend to incite an immediate breach of the peace.”[31]  Further, Chaplinsky itself upheld a statute that banned only words spoken “face-to-face.”[32]  These brief quotes illustrate that the motivation behind exempting these words from First Amendment protection is to prevent a heated conversation from erupting into violent confrontation.

But the emails involved in this case posed no such danger; they were unlikely to provoke an “immediate breach of the peace.”  Keeping in mind the facts of the case, it is nearly impossible to argue that they would.  These emails were sent anonymously from an email address that gave no clues as to the identity of the sender.  They certainly were not the type of face-to-face communication the fighting words exception applies to.  To discover who was behind the emails, Avery had to report the incident to the police, who were then able to trace the emails back.  The process necessary to find out who was behind the emails prevents the reaction from being the immediate violence that Chaplinsky was concerned with.

Further, even if Drahota had clearly indicated that he was behind the emails by including his name, the case still would not have come within the fighting words exception.  It still was not face-to-face and even if it had provoked Avery to the point where he would become violent, it would not have been immediate.  Avery would have to take the time to transport himself to a location where he could confront Drahota.  This necessarily transforms Avery’s act from an emotional gut response-the thing that Chaplinsky sought to prevent-into a deliberate, calculated action.  As such, it cannot be contended that Drahota’s emails fell within the fighting words exception.

Although Drahota’s speech is not rendered unprotected by the fighting words exception, there is an argument that another line of cases removes its First Amendment protection.  This line of cases, beginning with Rowan v. U.S. Post Office Dep’t,[33] has held that the right to be left alone in one’s home trumps the First Amendment rights of others wishing to communicate with the homeowner.  However, the success of this argument is not an absolute certainty, as it requires that the legal principles involved be applied to new and dynamic technology.

Rowan involved a First Amendment challenge to a provision of the Postal Code that allows a homeowner to essentially block certain persons from sending mail to his or her home.  In upholding the statute, the Court stated, “the right of every person to be let alone must be placed in the scales with the right of others to communicate.”[34]  In the judgment of the Court, the right to be let alone was the weightier interest.  The Court stated, “no one has a right to press even ‘good’ ideas on an unwilling recipient”[35] and held that “a mailer’s right to communicate must stop at the mailbox of an unreceptive addressee.”[36]

The rule of Rowan has since been applied to e-mail.  In Compuserve, Inc. v. Cyber Promotions, Inc.,[37] the court granted a preliminary injunction to enjoin the defendant, who was repeatedly sending “spam” through the plaintiff’s computer system although the plaintiff had requested that it stop.  The court, after citing Rowan and other cases,[38] ruled that the sending of the unsolicited emails constituted a trespass and that the First Amendment provided no defense.  Similarly, in Free Speech Coalition, Inc. v. Shurtleff,[39] the court denied a preliminary injunction sought against enforcement of a Utah law that allowed parents to sign on to a registry in order to prevent unwanted emails from entering their home.  The statute at issue in Shurtleff also contained a criminal provision.[40]  In determining that the plaintiff was unlikely to succeed on its First Amendment challenges, the court stated that the “[the Supreme Court has] repeatedly held that individuals are not required to welcome unwanted speech into their own homes and that the government may protect this freedom.”[41]

The fact that Avery was a government employee running for public office does not limit his ability to control what enters his home.  In U.S. Postal Service v. Hustler Magazine,[42] the United States District Court for the District of Columbia held that while political office holders could not bar the deliver of pornographic material to their office, they could keep it from being delivered to their home.  In so holding, the court repeated the Supreme Court’s concern with protecting the privacy of the home and found that the interest was not harmed when the materials were sent to the offices of the members of Congress.[43]

Thus, Rowan and its progeny establish that a homeowner can keep messages he or she disagrees with from entering the home.  It does not matter whether these come in the form of mail, telephone calls, or emails.  Further, government employees, including elected congressmen, have similar rights to protect their home, although they do not have these same rights with respect to their offices.[44]  Unfortunately, email is a technology that transcends the physical distance between the home and the office; a person can check any email address from any computer.  Thus, even if one is checking an email address associated with one’s job, they might still do so within their home, implicating privacy concerns.  Perhaps the best approach is to consider an email address associated with one’s state employment as an extension of their office and to consider a private email address an extension of the home.  Therefore emails sent to an employee’s work account would be constitutionally protected speech while sending emails to a personal account would not be.  Unfortunately, neither the opinion of the court of appeals nor the parties’ briefs make clear at which email address Avery received the emails.  Remanding the matter for further fact-finding may be best option for the court.[45]

A Job for the Legislature

If the court overturns Drahota’s conviction because he lacked notice that his conduct was illegal, the Nebraska legislature should pass a statute criminalizing what Drahota did.  Such a statute would almost certainly pass constitutional muster, assuming it does not apply to the public email accounts of government employees.  Nebraska has two possible means of doing so.

One route Nebraska could take in criminalizing conduct such as Drahota’s would be to copy the statutory scheme that was at issue in Rowan.[46]  Under this scheme, if a homeowner found the materials to be objectionable, he or she would alert the Postmaster General.  The Postmaster General would then include the homeowner’s address on a list and inform the sender that it was not to send materials to the homeowner’s address.[47]  If the mailings continued, the Postmaster General could then go to court to get them enjoined.  What the Court found essential in this scheme were “[b]oth the absoluteness of the citizen’s right . . . and its finality.”[48]  In other words, the discretion over what was prohibited and what was not was solely within the hands of the citizen and not the government.  Thus, a Nebraska statute modeled on the Rowan statute is likely to pass muster so long as the discretion rests in the hands of the recipient and the government makes no determination as to what is acceptable or not.

Nebraska also has a statute that criminalizes intimidation by telephone call, upon which an “unwanted email” statute could be modeled.  This is a statute that criminalizes intimidation by telephone call.  Under the statute, a person is guilty of the crime “if, with intent to terrify intimidate, threaten, harass, annoy, or offend, the person: (a) Telephones another anonymously, whether or not conversation ensues, and disturbs the peace, quiet, and right of privacy of any person at the place where the calls are received.”[49]  This statute has withstood First Amendment challenges.  In State v. Kipf,[50] portions of the statute were unsuccessfully challenged as vague and overbroad.  Thus, a statute protecting the privacy of the home modeled on § 28-1310 would likely be permissible under the First Amendment.  There are, however, downsides to this approach.  For one, the sender would not have any notice as to whether the recipient wanted the emails or not and would thus not know whether an email could result in criminal prosecution or not; in other words, such a statute would likely chill speech.  Secondly, § 28-1310 is arguably intended to protect against the annoyance of a ringing phone.  Emails do not annoy in the same way that telephone calls do and therefore criminalizing emails in the same way may be extending protection much further than necessary.

The Nebraska legislature has two options for criminalizing harassing emails.  Although it could likely choose either, a statute modeled on the law at issue in Rowan is arguably the better approach.  While the First Amendment guarantees our right to speak our mind while using even offensive speech, the idea that a man’s home is his castle demands that the First Amendment rights of a speaker stop before they enter the home of an unreceptive listener.

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Preferred Citation Format: Daniel J. Hassing, You’ve Got Mail: Harassing Emails and the First Amendment in State v. Drahota, 1 Neb. L. Rev. Bull. 63 (2009), http://lawreview.unl.edu/?p=694.

FOOTNOTES
0.   B.A., University of Nebraska-Omaha, 2006; B.S., University of Nebraska-Omaha, 2007; J.D. candidate, expected May 2010, University of Nebraska College of Law (Nebraska Law Review, Online Editor, 2009).  Thanks to Kate Zielinski, Samantha Pelster, Patrick Barackman, and JoAnna Thomas for their comments on drafts of this commentary.↑
1.   17 Neb. App. 678, 772 N.W.2d 96 (2009).↑
2.   Since the exchange of emails at issue in this case, William Avery has been elected to the Nebraska Legislature.  Id. at 679, 772 N.W.2d at 98.↑
3.   Id. at 679-80, 772 N.W.2d at 98-99.↑
4.   Id. at 680, 772 N.W.2d at 99.↑
5.   Id.↑
6.   Id.↑
7.   Id. at 680-81, 772 N.W.2d at 99.↑
8.   Id. at 681, 772 N.W.2d at 99.↑
9.   Id. ↑
10.   Id.↑
11.   Id.↑
12.   Id.↑
13.   Id. at 681, 772 N.W.2d at 99-100.↑
14.   Id. at 682, 772 N.W.2d at 100.↑
15.   Id. at 684-85, 772 N.W.2d at 101-02.↑
16.   Id. at 685, 772 N.W.2d at 102.↑
17.   Id.↑
18.   Id.↑
19.   Id. at 683, 772 N.W.2d at 100.  See also Neb. Rev. Stat. § 28-1322 (Reissue 2008) (Nebraska’s disturbing the peace statute).↑
20.   315 U.S. 568 (1942).↑
21.   Drahota, 17 Neb. App. at 686, 772 N.W.2d 102-03 (internal footnotes, quotations, and citations omitted).↑
22.   Id. at 686, 772 N.W.2d at 103.↑
23.   Cory Matteson, Neb. Supreme Court Will Hear Student-Professor E-Mail Case, Lincoln Journal Star, Oct. 2, 2009, http://www.journalstar.com/news/local/crime-and-courts/article_1802c1dc-afb2-11de-bbfb-001cc4c002e0.html (last visited Nov. 13, 2009).↑
24.   Drahota’s brief before the Nebraska Supreme Court also argues that Drahota’s conviction cannot stand because he did not have notice that what he was doing was illegal.  This commentary, however, limits itself to discussing the issue of whether or not Drahota’s speech was protected and expresses no opinion on the notice question.↑
25.   Chaplinksy, 315 U.S. at 568.↑
26.   See 1 Rodney A. Smolla, Smolla & Nimmer on Freedom of Speech § 10.32 (2009).↑
27.   See Chaplinsky, 315 U.S. at 573.↑
28.   See, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377 (1992); City of Houston v. Hill, 482 U.S. 451 (1987); Gooding v. Wilson, 405 U.S. 518, (1972); Cohen v. California, 403 U.S. 15 (1971); Edwards v. South Carolina, 372 U.S. 229 (1963); Terminiello v. City of Chicago, 337 U.S. 1 (1949).↑
29.   Smolla, supra note 26, at § 10.33.↑
30.   Cohen, 403 U.S. at 20.↑
31.   City of Houston, 482 U.S. at 461-62 (quoting Lewis v. City of New Orleans, 415 U.S. 130, 133 (1974)) (emphasis added).↑
32.   Chaplinsky, 315 U.S. at 573.↑
33.   397 U.S. 728 (1970).↑
34.   Id. at 736 (internal quotations omitted).↑
35.   Id. at 738.  While Rowan dealt with a statute that regulated commercial speech, the rationale of Rowan has since been applied to political speech as well.  See Hill v. Colorado, 530 U.S. 703, 717 (2000).↑
36.   Rowan, 397 U.S. at 736-37.↑
37.   962 F. Supp. 1015 (S.D. Ohio 1997).↑
38.   E.g., Breard v. City of Alexandria, 341 U.S. 622 (1951); Tillman v. Distribution Sys. of Am., Inc., 648 N.Y.S.2d 630 (1996).↑
39.   2007 WL 922247 (D. Utah 2007).↑
40.   Id. at *1-2.↑
41.   Id. at *14 (citing Frisby v. Schultz, 487 U.S. 474, 484-85 (1988)) (internal quotations omitted).↑
42.   630 F. Supp. 867 (D.D.C. 1986).↑
43.   See also United States v. Popa, 187 F.3d 672 (D.C. Cir. 1999) (overturning criminal conviction for harassing phone calls when the defendant had called the office of a U.S. attorney).↑
44.   See, e.g., Popa, 187 F.3d at 672; Hustler Magazine, 630 F.Supp. at 867.↑
45.   Of course, as mentioned earlier, there is an issue as to whether or not Drahota had notice that his conduct was illegal.  If the court finds that the law did not put Drahota on notice then further factual inquiries are irrelevant.↑
46.   See Rowan v. U.S. Post Office Dep’t, 397 U.S. 728, 729-30 (1970).↑
47.   In a Nebraska statute, the records of who does not wish to receive emails from whom could be maintained by the Attorney General or another government office.↑
48.   Rowan, 397 U.S. at 737.↑
49.   Neb. Rev. Stat. § 28-1310 (Reissue 2008).↑
50.   234 Neb. 227, 450 N.W.2d 397 (1990).↑

On November 26, 2008, the Nebraska Supreme Court adopted rules[1] requiring most active[2] members of the Nebraska State Bar Association to continue their legal education throughout their careers.  The goal of the rules is to enhance attorney competence so that they may better serve their clients.[3]  Attorney compliance with the continuing legal education (CLE) requirements becomes operative on January 1, 2010.[4]

Beginning October 1, 2009, attendance at any accredited and approved CLE program may apply toward CLE requirements for the first reporting period.  To receive credit, the attorney must first apply to and receive approval from the Nebraska Director of Judicial Branch Education (Director).[5]  Attorneys admitted to engage in the active practice of law in Nebraska are required to complete a minimum of ten hours of approved CLE in each annual reporting period.[6]

An attorney completing more than ten CLE credit hours during the annual reporting period may receive credit in the next succeeding annual reporting period for the CLE credit hours earned in excess of ten hours, provided that the excess CLE credit hours carried over into the next succeeding annual reporting period may not exceed five hours.[7]

Attorneys may receive credit for a number of different activities.[8]  Such activities include completion of computer-based legal education (subject to a five hour annual limit),[9] ”in house” CLE programs (also subject to a five hour annual limitation),[10] teaching approved CLE programs (subject to a three hour limit and specifically excluding teaching directed primarily at candidates for a law degree),[11] and “attendance at educational activities which are not approved in advance,” without limitation as to the number of hours.[12]  There is also a provision in the rules for an extension of time or waiver due to disability, hardship, or extenuating circumstances.[13]  In addition there are exemptions for active members who are in the armed forces of the United States,[14] inactive members of the bar,[15] persons subject to Nebraska’s mandatory judicial branch education rules,[16] suspended and disbarred attorneys (except as otherwise ordered),[17] and newly admitted attorneys (who become subject to the rules on January 1 of the year following their admission to practice law in Nebraska).[18]  Proponents of Nebraska’s new mandatory CLE rules can point to the foregoing provisions as evidence that the goal of the rules is to promote attorney competence rather than to impose sanctions on active members.[19]

Comparison of Accredited Educational Standards

Lawyers Left Behind Anomaly

Given that the rules seem to be designed to promote attorney competence, one might think that they would encourage practicing Nebraska attorneys to voluntarily take more challenging courses.  Courses offered as part of a degree are probably more rigorous than courses sanctioned for CLE credit under the new rules; they are certainly much more time-consuming.  But an active member of the Nebraska bar may not receive any CLE credit for successfully completing a post-J.D. level course offered by an ABA-accredited law school in Nebraska.  Administering the Nebraska MCLE rules to deny credit to active members who complete non-remedial courses for academic credit at ABA-accredited law schools does not comport with the prime objective of promoting attorney competence, nor does it seem consistent with court decisions assessing the qualifications of attorneys seeking admission to the bar with or without examination.

Setting the Bar in Nebraska

The Nebraska Supreme Court has made clear that the intent of its rules is to “weed out unqualified applicants, not to prevent qualified applicants from taking the bar.”[43]  Applying this idea to the Nebraska’s CLE rules, it makes little sense to punish LL.M. students who are engaged in rigorous course work at the College of Law for failing to take CLE classes.  If the goal is to promote competence among Nebraska’s attorneys, LL.M. students should not be faulted for choosing to do more rather than less.  Amending the rules to allow LL.M. students to receive CLE credit better comports with both common sense and Nebraska case law.

The Nebraska Supreme Court has shown that it is willing to grant waivers to its bar admission rules so long as the applicant can show that they are qualified.  In In re Collins-Bazant,[44] the court granted the application under Neb. Ct. R. § 3‑105(C) of a Canadian attorney to take the Nebraska bar examination after finding that she met her burden of proving that she had received an education equivalent to the education available at an ABA-approved law school.[45]  A finding of equivalency was also made in In re Gluckselig[46] for an applicant for examination under Neb. Ct. R. § 3-105(C).  The applicant had earned a master’s degree in law and legal science from a law school in the Czech Republic and had studied at the University of Nebraska College of Law and the University of Michigan Law School, where he earned an LL.M.[47]  In In re Brown, the court found equivalence for a Canadian lawyer and allowed his admission without examination under Neb. Ct. R. § 3-105(A)(1) because he was also a member in good standing of the California bar.[48]  Most recently, in In re Budman,[49] the court admitted a Canadian attorney who was a member of the California bar under Neb. Ct. R. § 3-105(A)(1)(b) after determining that the applicant had satisfied the evidentiary burden regarding his educational qualifications.  Both Brown and Budman state that qualifications for the bar must ensure fair treatment, and have a rational connection with the individual’s fitness or capacity to practice law.[50]  Both cases demonstrate that the court will not permit the application of its rules to arbitrarily deny qualified lawyers the ability to practice law in this state for reasons unrelated to the essential purpose of the rules.[51]

Based on the foregoing analysis of Nebraska case law, the application of Nebraska MCLE rules to sanction NSBA active members who have spent more time in an ABA-approved law school classroom than their colleagues who have attended ten MCLE hours unless they also complete an additional ten hours of MCLE credit is punitive.  Applying Nebraska MCLE rules to deny any MCLE credit to NSBA active members who have spent 700 minutes or more in an ABA-approved law school attending a post-J.D. class during a reporting period is arbitrary, irrational, and ignores the essential purpose of the Nebraska MCLE rule, which is to promote attorney competence.

Active members of the Nebraska bar should be given at least some MCLE credit for successful completion of post-J.D. courses offered by ABA-approved law schools.  A majority of jurisdictions in the United States that require mandatory continuing legal education have such provisions, and this also appears to be the prevalent rule in Australia, Canada, Ireland and the United Kingdom, under their system of “continuing professional development.”[52]

A rule change can be requested of the supreme court under Neb. Ct. R. § 1-103 or from the Nebraska Mandatory Continuing Legal Education Commission under Neb. Ct. R. § 3‑402.1(B).[53]  Who knows, the time spent in making such a proposal might qualify for MCLE professional responsibility credit!

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Preferred Citation Format: John Wiltse, Nebraska MCLE Rules Leave Some Lawyers Behind, 1 Neb. L. Rev. Bull. 54 (2009), http://lawreview.unl.edu/?p=628.

FOOTNOTES
0.  Admitted to the 2009 entering class for the University of Nebraska LL.M. Space and Telecommunications Law Program. B. A. University of Nebraska, 1975; M.A. University of Nebraska, 1978; J.D. University of Nebraska, 1981. Admitted to practice in Nebraska (1981), the United States District Court for the District of Nebraska (1981), the United States Court of Appeals for the Eighth Circuit (1982), and the Supreme Court of the United States (1984).↑
1.  See Neb. Ct. R. §§ 3-401.1 to -402.3. The Nebraska State Bar Association website is the most comprehensive source of information about Nebraska MCLE requirements and programs. See Nebraska State Bar Association, http://www.nebar.com/displaycommon.cfm?an=6 (last visited September 8, 2009). Forty-six U.S. jurisdictions require lawyers “to take mandatory or minimum continuing legal education (MCLE) courses in order to practice law within that particular jurisdiction.” See ABA Summary of MCLE Jurisdiction Requirements, http://www.abanet.org/cle/mclemap.html (last visited August 29, 2009). Nebraska’s MCLE rule resembles the American Bar Association (ABA) Model Rule for Continuing Legal Education (1986) in many respects, but is not identical. See ABA Model Rule for Continuing Legal Education with Comments, http://www.abanet.org/cle/ammodel.html (last visited Nov. 5, 2009).↑
2.  Neb. Ct. R. § 3-803(B)(1) defines “[a]ctive members” of the Nebraska State Bar Association (NSBA) as “[a]ll members who are licensed to engage in the active practice of law in the State of Nebraska, who do not qualify for and apply for Inactive membership status, and who are not Law Student members . . . .” Law Student members are not defined in Neb. Ct. R. § 3-401.2 (CLE definitions) or § 3-803 (NSBA Membership class definitions). Five exemptions to the attorney CLE requirements are found at Neb. Ct. R. § 3-401.5.↑
3.  Neb. Ct. R. § 3-401.1. “It is no accident that the first [ABA] Model Rule [of Professional Responsibility] requires competence, for the drafters of the Model Rules believed that the first rule of legal ethics is competence.” Ronald D. Rotunda & John S. Dzienkowski, Legal Ethics-The Lawyer’s Deskbook on Professional Responsibility § 1.1-1 (2009-10 ed.).↑
4.  Neb. Ct. R. § 3-401.1.↑
5.  Id. Members of the Nebraska judiciary and judicial branch employees are required to meet minimum requirements for continuing their education under rules that took effect on July 1, 2004. See Neb. Ct. R. §§ 1-501, ‑510. The purpose of these rules, like that of the CLE rules that apply to lawyers, is to promote competence. The Director of Judicial Branch Education administers the program of mandatory judicial branch education established by Neb. Ct. R. §§ 1-501 to -512.↑
6.  Neb. Ct. R. § 3-401.4(A). “Of the ten (10) hours, at least two (2) hours shall be in the area of professional responsibility.” “Professional responsibility” is defined in Neb. Ct. R. § 3-401.2(J) to include instruction in “legal ethics; professionalism; diversity in the legal profession; malpractice prevention; recognizing and addressing substance abuse and mental health issues in the legal profession; Nebraska Supreme Court Rules Relating to Discipline of Attorneys; ethical standards as they relate directly to law firm management; and duties of attorneys to the judicial system, public, clients and other attorneys.”

How does the NE MCLE annual requirement compare to other states? Our neighbors in South Dakota do not have required CLE. See Digilearn Online Continuing Legal Education, http://www.digilearnonline.com/default.asp (last viewed September 6, 2009), and National Institute of Trial Advocacy, http://www.nita.org/ (last viewed Sept. 6, 2009) for lists of requirements in United States jurisdictions. While some state bars do not have any MCLE requirements, some states require as many as fifteen hours. California requires 8.33 hours every year over three years. See State Bar of Cal. R. 2.72. Colorado requires fifteen hours a year. See Colo. R.C.P. 260.6 and 260.4(2), the latter of which regards formal classroom instruction. Kansas requires twelve hours a year under Kan. Ct. R. 802. Iowa requires fifteen hours a year under Iowa Ct. R. 41.3(1). Missouri requires fifteen hours a year under Mo. S. Ct. R. 15.05. New York requires twelve hours for attorneys who have been admitted to practice in the New York bar for more than two years. See 22 N.Y.C.R.R. 1500.22(a). Wyoming requires fifteen hours a year under Wyo. R. CLE 4. The ABA Model Rule for Continuing Legal Education calls for every active lawyer to complete fifteen hours of CLE annually. See ABA Model Rule for Continuing Legal Education with Comments, supra note 1, at § 2.

The “professional responsibility” requirement in these jurisdictions is not uniform in either definition or amount of hours. See State Bar of Cal R. 2.72(A). Section 1 requires four hours of legal ethics, § 2 requires one hour dealing with the elimination of bias in the legal profession, and § 3 requires one hour of education to prevent, detect, and treat substance abuse or mental illness that impairs professional competence. Further, some jurisdictions even allow pro bono work to count toward MCLE requirements. See, e.g., Wyo. R. CLE 4(g).↑
7.  Neb. Ct. R. § 3-401.4(C). Compare this rule to that of Alabama, which provides that “[a]ny bar member earning fifty (50) or more credits in a given year, excluding credits brought forward from the previous year and teaching credits earned, shall qualify for a continuing legal education award.” Ala. CLE R. 3.9.↑
8.  Neb. Ct. R. §§ 3-401.7(B), (C), 3-401.8. See ABA Model Rule for Continuing Legal Education with Comments, supra note 1, at § 2 cmt. (“The rule is designed to make it relatively easy for lawyers to meet the requirements while keeping it practical to monitor and administer.”).↑
9.  Neb. Ct. R. § 3-401.8(A). Many other states have no hourly limits on the use of online courses-such as the cap contained in Nebraska’s rule-to fulfill MCLE requirements. The summary at Diglearn Online CLE, http://www.digilearnonline.com/stateReqs.asp (last visited Nov. 12, 2009), focuses on whether online courses can be used to fulfill a jurisdiction’s MCLE requirements.↑
10.  Neb. Ct. R. § 3-401.8(B).↑
11.  Neb. Ct. R. § 3-401.8(C). Other states take a different approach to granting MCLE credit to active members of the bar who engage in teaching directed primarily at J.D. candidates. Ala. CLE R. 3.4 grants credit for teaching a course “in an ABA or AALS approved law school or any other law school approved by the commission. The commission will award six (6) hours of CLE credit for each hour of academic credit awarded by the law school for the course.” California exempts full-time law professors from MCLE altogether. State Bar of Cal. R. 2.54(A)(2). Me Bar R. 12(a)(5)(C) exempts “[f]ull-time teachers in any law school approved by the American Bar Association.” Attorneys who teach regularly scheduled law-related courses offered for academic credit on a part-time basis can earn six CLE credit hours for every hour of academic credit awarded by the institution for the course. Me. Bar R. 12(a)(8).↑
12.  Neb. Ct. R. § 3-401.8(D). Under this rule, the Director must still approve the credits.↑
13.  Neb. Ct. R. § 3-401.13.↑
14.  Neb. Ct. R. § 3-401.5(B).↑
15.  Neb. Ct. R. § 3-401.5(A).↑
16.  Neb. Ct. R. § 3-401.5(C). Some states exempt elected officials from MCLE. See State Bar of Cal. R. 2.54(A)(1). Wyo. R. CLE 8(c) also allows elected officials to receive an exemption but requires written request for it.↑
17.  Neb. Ct. R. § 3-401.5(D).↑
18.  Neb. Ct. R. § 3-401.5(E). This rule also provides that “[c]redit shall not be given for any courses attended before admission to the practice of law in Nebraska.” (Emphasis added).↑
19.  Nebraska active member attorneys who fail to satisfy CLE requirements are subject to sanctions, up to suspension. See Neb. Ct. R. § 3-401.11. See generally Jay M. Zitter, Annotation, Discipline of Attorneys for Failure to Comply with Continuing Legal Education Requirements, 96 A.L.R. 5th 23 (2002).↑
20.  Neb. Ct. R. §§ 3-401.7, -401.9 to -401.10.↑
21.  See American Bar Association, 2009-2010 Standards for Approval of Law Schools (ABA Standards), http://www.abanet.org/legaled/standards/standards.html (last visited Sept. 7, 2009).↑
22.  Neb. Ct. R. §§ 3-401.6 to -401.7.↑
23.  Note that the ABA does not formally approve any program other than the first degree in law (J.D.). “ABA accreditation does not extend to any program supporting any other degree granted by the law school.” See Overview of Post J.D. Programs, http://www.abanet.org/legaled/postjdprograms/postjd.html (last visited Nov. 5, 2009); ABA Standards, supra note 21, Interpretation 308-2. The “prior acquiescence” of the Council of the ABA Section of Legal Education and Admissions to the Bar must be obtained before a law school may establish a degree program other than its J.D. degree program. Further, no additional degree program may be established unless the school’s J.D. program is fully approved and the additional degree program must not detract from the maintenance of the J.D. degree program. ABA Standards, supra note 21, Standard 308.↑
24.  Neb. Ct. R. § 3-401.7(A)(1).↑
25.  ABA Standards, supra note 21, Standard 301. Under Standard 301, a law school is required to “maintain an educational program that prepares its students for . . . effective and responsible participation in the legal profession.”↑
26.  Neb. Ct. R. § 3-401.7(2).↑
27.  ABA Standards, supra note 21, Standard 201. Under Standard 201, a law school must be organized so that it may effectively utilize its resources to provide an education to students. See also Standard 302(b) (requiring that law schools provide certain opportunities to its students).↑
28.  Neb. Ct. R. § 3-401.7(3).↑
29.  ABA Standards, supra note 21, Interpretation 303-1 (requiring assessment of students’ performance in the role of lawyers).↑
30.  Neb. Ct. R. § 3-401.7(4).↑
31.  ABA Standards, supra note 21, Standard 401.↑
32.  Id. at Standard 501.↑
33.  Neb. Ct. R. § 3-401.7(5).↑
34.  Although it is commonplace for faculty to require students to purchase or otherwise access required reading materials for a course, the ABA Standards do not require attendee materials.↑
35.  ABA Standards, supra note 21, ch. 6.↑
36.  Neb. Ct. R. § 3-401.7(6). This rule requires that if the course is being broadcast, those not physically attending the lecture must have substantially the same opportunity to interact with the teacher as those who are physically present.↑
37.  ABA Standards, supra note 21, Interpretation 301-4.↑
38.  Neb. Ct. R. § 3-401.2(C).↑
39.  “Law schools on a conventional semester system typically require 700 minutes of instruction time per ‘credit,’ exclusive of time for an examination.” ABA Standards, supra note 21, Interpretation 304-4.↑
40.  Neb. Ct. R. § 3-401.10(B). Under this rule, each attorney must make a report detailing completion of his or her CLE requirement.↑
41.  See ABA Standards, supra note 21, Standard 302(a)(3), which requires at least two “rigorous writing experience[s]” required as part of the J.D. curriculum. Interpretation 303-1 states that “papers” may be used in assessing the performance of students.↑
42.  Id. at Interpretation 303-1 (stating that student achievement shall be measured by “examinations of suitable length and complexity”).↑
43.  In re Doering, 275 Neb. 1004, 1009, 751 N.W.2d 123, 127 (2008) (internal quotations omitted).↑
44.  254 Neb. 614, 623, 578 N.W.2d 38, 44 (1998).↑
45.  This was the same attorney who had unsuccessfully sought to gain admission under the North American Free Trade Agreement in an earlier case. In re Collins, 252 Neb. 222, 561 N.W.2d 209 (1997).↑
46.  269 Neb. 995, 697 N.W.2d 686 (2005).↑
47.  See also Osakwe v. Bd. of Bar Examiners, 858 N.E.2d 1077, 1083 (Mass. 2006) (finding that graduate of Nigerian law school who had earned an LL.M. from an ABA-accredited law school in Connecticut satisfied educational qualifications to sit for bar examination).↑
48.  270 Neb. 891, 904, 708 N.W.2d 251, 261 (2006).↑
49.  272 Neb. 829, 839, 724 N.W.2d 819, 827 (2006).↑
50.  Id. at 836, 724 N.W.2d at 825-26; Brown, 270 Neb. at 902, 708 N.W.2d at 260. See Jay M. Zitter, Annotation, Constitutional Validity of Continuing Legal Education Requirements for Attorneys, 97 A.L.R. 5th 457, 466 (2002), for discussion of a California case where “the court apparently ruled that the CLE program requirements were rationally related to the consumer protection goals of the legislation.”↑
51.  Budman, 272 Neb. at 836, 724 N.W.2d at 825-26; Brown, 270 Neb. at 902, 708 N.W.2d at 260.↑
52.  Although details vary by jurisdiction, the following jurisdictions allow CLE credit for coursework completed at accredited law schools.

United States

Ala. CLE R. 3.8; Ark. MCLE R. 4(D); State Bar of Cal. R. 2.80; Colo. R.C.P. 260.4(2); Ga. State Bar R. 8-106(B), Reg. (2); Idaho B. Comm’n R. 403(b)(3)(E); Ill. Sup. Ct. R. 795(d)(2); Ky. Sup. Ct. R. 3.662 (1)(l); La. Sup. Ct. R. 30, CLE Reg. 3.11; Me. Bar R. 12(a)(9); Minn. CLE R. 5(A)(9), 5(A)(10); Miss. CLE R. 3.13; Mo. Sup. Ct. R. 15.04, Reg. 15.04(2); Mont. CLE R. 7(A)(2)(d); N.H. MCLE Reg. 53.3(A)(4); 22 N.Y.C.R.R. 1500.22(g); N.D. CLE R. 6(a)(2); Ohio Sup. Ct. B. R. X(4)(A)(5); Ok. MCLE R. 7, Reg. 3.5; Or. MCLE R. 5.4; Penn. CLE Reg. 5(f); R.I. MCLE Reg. 4.04; Tenn. R. S. Ct. 21, § 4.04; Tex. St. Bar. R. art. 12, § 4(J); Va. MCLE Bd. Reg. 102(f); Wash. St. CLE Bd. Reg. 103(e)(1); E-mail from Hope L. Gresham, MCLE Coordinator, West Virginia State Bar, to author (Sept. 28, 2009) (on file with author) (stating that West Virginia automatically approves courses offered by an ABA accredited law school for CLE credit based upon one credit earned for each fifty minutes of actual instruction time attended).

Australia

The Australian state of New South Wales allows practitioners to satisfy the MCLE requirement through enrollment in postgraduate legal courses. See The Law Society of New South Wales, Mandatory Continuing Legal Education (Continuing Professional Development), http://www.lawsociety.com.au/ForSolictors/practisinglawinnsw/mclecpd/index.htm (last viewed Sept. 25, 2009). Rule 4.4(b) of the Queensland Bar Association Compulsory Continuing Professional Development Rules also allows for such credit. See Queensland Bar Association, Compulsory Continuing Professional Development, http://www.qldbar.asn.au/images/stories/PDFs/cpdrules.pdf (last visited Sept. 11, 2009). So does the state of Victoria. See Victorian Bar Continuing Professional Development Rules R. 3(viii), http://vicbar.com.au/webdata/pdf/VicBarCPDRules2008with18Feb08editsandnewattendanceform_000.pdf (last visited Sept. 11, 2009).

Canada

The Manitoba Law Society CPD Report Form states that “participation in post-LLB programs” is an activity that may be included as an acceptable type of continuing professional development. See Manitoba Continuing Professional Development Report Form, http://www.lawsociety.mb.ca/pubdocs/CPD_Mandatory_Report_2008.pdf (last viewed Sept. 15, 2009). The Law Society of Upper Canada, which includes Ontario, considers “participation in post-LLB degree programs” as an acceptable CLE activity. See Professional Development & Competence Committee, Report to Convocation, http://rc.lsuc.on.ca/pdf/minExpectationforProfDev/convjan_pdccommittee.pdf (last visited Sept. 7, 2009). The Law Society of Saskatchewan has approved a plan that will grant credit for courses completed at a law school. See Law Society of Saskatchewan, Mandatory Professional Development, http://www.lawsociety.sk.ca/newsdoc/programmpdv4.pdf (last visited Sept. 7, 2009).

Ireland

“Post-graduate legal studies” are also examples of acceptable CPD activities for Irish barristers. See The CPD Scheme, Bar Council of Ireland, http://www.lawlibrary.ie/ViewDoc.asp?fn=/documents/proeducation/intro.htm&CatID=19&m=c (last visited Sept. 16, 2009).

United Kingdom

The United Kingdom also grants CPD credit for LL.M. courses. See The Bar Standards Board, Compliance with CPD Regulations, A General Guide to CPD (2009) http://www.barstandardsboard.rroom.net/assets/documents/A%20General%20Guide%20to%20CPD.pdf.↑
53.  The author submitted a proposed draft amendment to the Clerk of the Supreme Court and the Nebraska Supreme Court Continuing Legal Education Commission on October 1, 2009.↑

Oftentimes in the law, the outcome in a case is determined by what has previously happened procedurally.  Sometimes, the simple, common sense result is precluded because of the procedural posture of a dispute.  But this bizarre result stands because the procedural requirements are part of the rule of law upon which our society is based.  The Nebraska Supreme Court’s review of an arbitration award in State v. Henderson[1] presented just such a case in which the procedural background should have foreclosed the common sense outcome.  However, the court, by vastly expanding a narrow exception, was able to achieve the necessary outcome.

Henderson involved an arbitration agreement ordering reinstatement of a Nebraska State Trooper who had been fired for posting comments on a website affiliated with the Ku Klux Klan (KKK).  On one hand, common sense would seemingly require the termination to be upheld.  If the Nebraska State Patrol employs KKK members, Nebraskans would question whether the law applies equally to all. But on the other hand, under our rule of law, judicial review of arbitration award is “severely circumscribed;”[2] courts are not free to overturn an arbitration award simply because they do not like the result.  The situations in which courts can overturn such an award are few and narrow.[3]  One of these situations, established in a trilogy of United States Supreme Court cases,[4] is when the award would be contrary to public policy. In a matter of first impression, the Nebraska Supreme Court relied on this narrow exception to overturn Henderson’s reinstatement.

This commentary argues that the Nebraska Supreme Court erred in applying the narrow public policy exception to the enforcement of arbitration awards.  In doing so, the court relied on a crafty conceptualization and organization of supposed public policy.  It was only by this judicial sleight of hand that the court could have argued that it was staying true to the Supreme Court’s case law on the exception.  Unfortunately, this sleight of hand transforms what is supposedly a narrow exception into one that is potentially vast.  This commentary argues that the solution to this problem can be found in Justice Scalia’s concurring opinion in Eastern Associated Coal Corp. v. United Mine Workers, District 17[5] and argues that courts should adopt his theory for determining when an arbitration award is contrary to public policy.  That is, courts should only find an arbitration agreement contrary to public policy when it violates positive law.[6]  By hewing closely to this standard, the public policy exception will remain the narrow exception that it should be.

This commentary contains three sections.  The first explains the facts of State v. Henderson as well as the court’s decision and the dissenting opinion.  The second summarizes the case law establishing the public policy exception.  The third argues that the Nebraska Supreme Court misapplied the public policy exception and that courts should hold that only awards that violate positive law are contrary to established public policy.

State v. Henderson[7]

In 2003, Robert Henderson was an officer in the Nebraska State Patrol. He had been serving in law enforcement for about twenty-one years.  About that time, his marriage fell apart when his wife left him for a man of Hispanic descent.  Shortly thereafter, Henderson paid a $35 membership fee for access to the “members only” section of a website run by the Knights Party, an affiliate of the KKK.[8]  Once on the site, Henderson posted a series of comments.  Some of the comments were requests to be put in touch with like-minded people in Nebraska, while another comment reflected Henderson’s frustration with what he saw as favorable treatment to minorities by law enforcement officials and society as a whole.[9]

A short time after these postings, an agent from the Kansas Bureau of Investigation alerted the Nebraska State Patrol that a Nebraska law enforcement officer might be a member of the KKK.  After an investigation by the state patrol, it was determined that the person posting on the site was indeed Robert Henderson.  Although Henderson soon renounced his membership in the Knights Party, he was still terminated from the patrol.[10]

After Henderson was terminated, the State Law Enforcement Bargaining Council (SLEBC) filed a grievance on his behalf, pursuant to the collective bargaining agreement to which Henderson was a party.  The grievance was not resolved satisfactorily and the matter was submitted to arbitration.[11]  The arbitrator found that the firing of Henderson violated his First Amendment rights and that the patrol did not have “just cause” for the firing.[12]  The arbitrator crafted an award that required the state patrol to reinstate Henderson, but allowed the patrol to reassign him to another position in order to “maintain the good order and efficiency of the Agency, or to eliminate/mitigate actual civil disruptions that may occur as a result of the public becoming aware of [Henderson]’s association with the Knight’s Party.”[13]

The state patrol moved to vacate the award.  The district court granted the motion, relying on a public policy exception that had never been previously recognized in Nebraska.[14]  Henderson and the SLEBC then appealed.

The Nebraska Supreme Court, in a 4-2 decision,[15] upheld the vacatur.  After first explaining the Supreme Court decisions establishing the public policy exception,[16] the court turned its attention to determining whether or not Nebraska had a public policy that would be violated by reinstating Henderson to the state patrol.  Such a public policy had to be “explicit, well defined, and dominant.”[17]  It also had to be ascertainable “by reference to laws and legal precedents, not from general considerations of supposed public interests.”[18]  But the award itself did not have to violate positive law to be unenforceable as against public policy.[19]

The court found that Nebraska has a fundamental public policy “that the laws of Nebraska should be enforced without racial or religious discrimination.”[20]  The court further noted that this policy “incorporates, and depends upon, the public’s reasonable perception that the laws are being enforced without discrimination.”[21]  The court went on to hold that:

Nebraska public policy precludes an individual from being reinstated to serve as a sworn officer in a law enforcement agency if that individual’s service would severely undermine reasonable public perception that the agency is uniformly committed to the equal enforcement of the law and that each citizen of Nebraska can depend on law enforcement officers to enforce the law without regard to race.[22]

The court found that Henderson’s voluntary association with the KKK would undermine the public’s confidence in law enforcement and thus was contrary to public policy.[23]

The dissent took issue with several aspects of the court’s decision.  Most significantly, it accused the court of “redecid[ing] the merits of [the] case under the guise of public policy.”[24]  According to the dissent, in order to find that the award violated public policy, the majority had to make factual findings at odds with those of the arbitrator and/or rest on speculation as to future events, neither of which is permitted under the public policy exception.  Thus, the dissent concluded, the award was not contrary to public policy and should have been enforced.

The Public Policy Exception

Arbitration “is purely a matter of contract.”[25] Arbitration in Nebraska is governed by the Uniform Arbitration Act (UAA).[26]  Since many of the provisions were modeled on the Federal Arbitration Act (FAA),[27] Nebraska courts often look to federal law for guidance when interpreting the UAA.[28]  In recognizing a public policy exception, the Nebraska Supreme Court relied on a trilogy of United States Supreme Court cases.

The first of these cases is W.R. Grace & Company v. Local Union 759, International Union of the United Rubber Workers.[29]  In W.R. Grace, a company had laid off workers pursuant to a conciliation agreement entered by a court.  However, the lay-offs violated a collective bargaining agreement that had previously been signed by the company and the union.  The lay-offs were submitted to arbitration and the arbitrator decided that good faith adherence to the conciliation agreement did not excuse the company from its violations of the CBA.[30]  The company then argued that enforcement of the arbitration award would violate public policy as the company had to choose between following a court order or the CBA.  Forcing the company to comply with the CBA could undermine respect for judicial orders, which, the company argued, would be contrary to public policy.

The Court based the public policy exception on the notion that, “[a]s with any contract . . . a court may not enforce a collective-bargaining agreement that is contrary to public policy.”[31]  Public policy is to be determined by courts, and “must be well defined and dominant” and ascertainable “by reference to the laws and legal precedents and not from general considerations of supposed public interests.”[32]

The Court found that, while compliance with judicial orders is an important public policy, nothing in the arbitrator’s award required the violation of that policy.[33]  The Court further noted that the company had voluntarily entered both agreements and stated that to hold the company to both was not so unfair as to violate public policy.  The Court also found that the public policy of voluntary compliance with Title VII was not violated either.[34]

The next case applying the public policy exception was United Paperworkers International Union v. Misco, Inc.[35]  Misco involved the termination of an employee who was found in the back seat of a car on company property with a lit marijuana cigarette in the front ash tray and smoke in the air. The employee worked with a dangerous machine that had previously caused several injuries.  After the arbitrator ordered the employee reinstated,[36] the company moved to have the award vacated as contrary to public policy.  Both the district court and appellate court upheld the vacatur, finding the reinstatement to be contrary to a public policy against operating dangerous machinery while under the influence of drugs or alcohol.[37]  The case then went to the Supreme Court.

In deciding that the award did not violate public policy, the Misco Court cautioned that W.R. Grace does not “sanction a broad judicial power to set aside arbitration awards as against public policy.”[38]  The Court overruled the vacatur on two grounds.  First, the Court pointed out that the court of appeals had not looked to law and legal precedents in determining public policy and instead had rested on common sense notions of supposed public policy.  The Court then highlighted the fact that W.R. Grace explicitly prohibited such a practice.[39]  Second, the Court admonished the court of appeals for making inferences about the facts.  The fact‑finding by the court exceeded its authority and in any case, “[a] refusal to enforce an award must rest on more than speculation or assumption.”[40]

The final case in the trilogy is Eastern Associated Coal Corp. v. United Mine Workers, Dist. 17.[41]  This case involved the reinstatement of a truck driver who had tested positive for marijuana.  The Court emphasized that it is the award to be considered in light of public policy, not the underlying conduct.  It framed the question as “does a contractual agreement to reinstate [the employee] . . . run contrary to an explicit, well-defined, and dominant public policy, as ascertained by reference to positive law and not from general considerations of supposed public interests?”[42] The Court stated that while courts must look to positive law in ascertaining public policy, it is not necessary that the award itself violate positive law.[43]  But the Court then went on to order enforcement after determining that “[t]he award violate[d] no specific provision of any law or regulation.”[44]  In other words, the award was enforceable because it did not violate any positive law.

Justice Scalia wrote a concurring opinion in United Mine Workers. His concurrence argued that courts should only vacate awards on public policy grounds when the awards violate positive law.  Justice Scalia points out that, since Erie Railroad,[45] the Court had not invalidated an agreement on public policy grounds that did not violate positive law.  Justice Scalia cautions against giving judges too much discretion because it is impossible to know whether “the apparent gaps in the law are intentional or inadvertent.”[46]  He further argues that the benefits stemming from a clear‑cut rule outweigh the benefits of leaving courts with the flexibility needed to deal with, what he sees as, the rare case in which an award contravenes public policy but not positive law.[47]

The Problem and the Remedy

The Nebraska Supreme Court’s treatment of the public policy exception in Henderson is troubling because by allowing for an expansive interpretation of public policy the court has undermined the reasons for submitting disputes to arbitration.  Granting too much discretion to a court weakens the parties’ belief that their arbitration award is truly binding.

The opinion in Henderson illustrates the problem that a creative court can always craft public policy in such a way to get the result the court desires.  In Henderson, there were two public policy considerations at play: equal application of the law and public perception of law enforcement.  The court ruled that the former incorporated the latter.  However, upon examination, it is only by this formulation that the case could have come out as it did.

If the court treated the two policies as two separate policies, which they at least arguably are, then the award would have had to be enforced.  While equal application of the law surely meets the requirements of explicitness and narrowness necessary to be an appropriate public policy for this analysis, finding that the agreement contravened this public policy would have required the court to ignore the factual findings of the arbitrator, something that is impermissible under the principles governing review of arbitration agreements.[48]  The second policy, that the public should perceive the law as being applied fairly, likely does not meet the requirements to be an appropriate public policy.[49]  It appears to be more of a common sense, generalized notion of public policy as opposed to explicitly defined in statutes and legal precedents.  This is not adequate, as the previously cited U.S. Supreme Court cases illustrate.[50]  But by deciding that one incorporates the other, the court was able to have the best of both worlds.

Giving courts too much of a free hand in reviewing arbitration agreements and awards is problematic in that it undermines the reasons for having arbitration in the first place.  Parties agree to submit matters to arbitration because it provides a quicker and less expensive alternative to litigation.  An expansive view of the situations in which an arbitration award can be vacated simply encourages a losing employer to take the matter to court; it tells the parties that if they do not really want the binding arbitration to be binding, they can take a second bite at the apple in court.

The answer to this problem is simple.  In United Mine Workers, Justice Scalia argued that only awards that violate positive law should be unenforceable as against public policy.[51]  He claimed that the situations in which an award violates a public policy that meets the relevant requirements—that it be definite, well defined, and ascertainable by reference to laws and legal precedents—without violating positive law would be few and far between.  Further, he stated that courts’ ability to deal with these rare cases is far outweighed by the certainty inherent in requiring awards to conflict with positive law to be unenforceable.[52]

Henderson is the type of case that Justice Scalia predicted would be rare.  The award was found to be contrary to public policy but would not have violated any positive law.  There was no statute or legal precedent in Nebraska that bars a KKK member from serving as a law enforcement officer.[53]  But the court crafted a broad public policy that incorporated public perception to invalidate the award.  This was unnecessary.  As the Henderson court pointed out, Nebraska has several laws against the overt display of racism by law enforcement.  However, the state lacked any laws that barred members of any groups from employment in law enforcement. This could have, at least in theory, represented a compromise between a person’s First Amendment rights and the public’s interest in effective law enforcement; we will let you think what you want, just do not act on it.  If this was in fact a deliberate balance made by the legislature, the court upset it.  Further, even if the court stayed its hand, the legislature may be able to still act and pass a law later implementing that public policy.[54]  In short, the court erred on the wrong side; the determination of public policy could still have been left to the public’s representatives.

While most would not argue with the result—keeping a KKK member off of the state patrol—one must recognize that if we are going to present arbitration as a serious alternative to litigation, we must adopt rules of judicial review that are narrow and will instill faith in the parties that their binding decisions are truly binding.

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Preferred Citation Format: Daniel J. Hassing, White Robes and Black Robes: The Nebraska Supreme Court’s Vacatur in State v. Henderson, 1 Neb. L. Rev. Bull. 45 (2009), http://lawreview.unl.edu/?p=610.

FOOTNOTES
0.   Online Editor, Nebraska Law Review.  J.D. Candidate, expected May 2010.  I thank Patrick Barackman, Michelle Salter, Stephanie Mahlin, Kate Zielinski, Mindy Lester, and Grant Maynard for their comments.↑
1.   277 Neb. 240, 762 N.W.2d 1 (2009), cert. denied, 129 S. Ct. 2841 (2009).↑
2.   Jones v. Summit Ltd. P’ship Five, 262 Neb. 793, 798, 635 N.W.2d 267, 271 (2001) (citing Apex Plumbing Supply v. U.S. Supply Co., 142 F.3d 188, 193 (4th Cir. 1998)).↑
3.   See E. Associated Coal Corp. v. United Mine Workers, Dist. 17, 531 U.S. 57, 62 (2000) (“[C]ourts will set aside the arbitrator’s interpretation of what [the] agreement means only in rare instances.”).↑
4.  Id.; United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29 (1987); W.R. Grace & Co. v. Local Union 759, Int’l Union of the United Rubber Workers, 461 U.S. 757 (1983).↑
5.   531 U.S. 57, 67 (2000) (Scalia, J. concurring).↑
6.   Positive law is “[a] system of law promulgated and implemented within a particular community by political superiors, as distinct from moral law or law existing in an ideal community or in some non-political community.”  It “typically consists of enacted law” such as “codes, statutes, and regulations.”  Black’s Law Dictionary 1280 (9th ed. 2009).↑
7.   277 Neb. 240, 762 N.W.2d 1 (2009), cert. denied, 129 S. Ct. 2841 (2009).↑
8.   The Ku Klux Klan formed in the aftermath of the Civil War.  In the years after the war, members of the Klan targeted African-Americans in an effort to thwart them in the exercise of their new rights and freedom.  The Klan also targeted whites that sought to assist the African‑Americans.  Their terrorizing tactics included beatings, rape, arson, and murder.  In response to the Klan, Congress passed what became known as the “Ku Klux Klan Act.”  See An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, and for other Purposes, 17 Stat. 13 (codified as amended at 42 U.S.C. §§ 1983, 1985, and 1986 (2006)).  In addition to the act, the federal government also utilized the military in putting down the Klan.  Their efforts were successful and the Klan was largely dissolved.

The Klan enjoyed a resurgence in the first quarter of the 20th century.  This increase in membership even led to electoral success for the Klan as several elected officials claimed allegiance to the Klan.  This revival did not last long and membership began to decline until the Klan ultimately disbanded again in 1944.  The Klan would never again enjoy the popularity it had during the post-Civil War period and in the early 20th century.  The Klan today exists as a number of splintered groups.  Church of the American Knights of the Ku Klux Klan v. Kerik, 356 F.3d 197, 200 n.2 (2d Cir. 2004); see also Virginia v. Black, 538 U.S. 343, 352–57 (2003) (recounting the history of the Klan and cross-burning); Anti-Defamation League, Ku Klux Klan – History, http://www.adl.org/learn/ext_us/kkk/history.asp (last visited Sept. 28, 2009) (noting that fragmentation and decentralization are the dominant themes in the recent history of the Klan).↑
9.   The post related to an incident for which Henderson was investigated.  Henderson’s new fiancé was working for a television station in Omaha along with an African-American man who was allegedly making unwelcome advances on her.  Henderson pulled over the man because the man did not have the proper plates on his car.  Henderson issued the man a warning.  The man subsequently issued a complaint with the State Patrol against Henderson.  The Patrol conducted an investigation and found that Henderson had not engaged in any misconduct and further, that the man was in fact in violation of the law.  See Arbitration Opinion and Award at 14 & 28, State v. Henderson, 277 Neb. 240, 762 N.W.2d 1 (2009) (No. S-07-010).↑
10.   Henderson, 277 Neb. at 254, 762 N.W.2d at 11.↑
11.  Id. at 242, 762 N.W.2d at 3.↑
12.   Id. The arbitrator found that Henderson’s personal beliefs did not interfere with his impartial enforcement of the law.  He found “no evidence or credible testimony that [Henderson]’s affiliation with the Knight’s Party/KKK impaired the operation or efficiency of the State Patrol or the employee” or that his reinstatement would do so.  Arbitration Opinion and Award, supra note 9, at 45.↑
13.   Arbitration Opinion and Award, supra note 9, at 47.↑
14.   See Henderson, 277 Neb. at 245, 762 N.W.2d at 6 (“We have not previously addressed whether an arbitration award, under the Uniform Arbitration Act, can be vacated by a court on public policy grounds.”).↑
15.   Chief Justice Heavican did not participate in the case but was replaced by Judge Sievers of the Nebraska Court of Appeals.  Justice Wright did not participate in the decision.  Justices Stephan and Connolly dissented from the decision of the court.↑
16.   These decisions are discussed in a later section of this commentary.  In the interest of avoiding redundancy, they will not be discussed in-depth at this point.↑
17.   Henderson, 277 Neb. at 250, 762 N.W.2d at 9.↑
18.  Id.↑
19.   Henderson, 277 Neb. at 250, 762 N.W.2d at 9.↑
20.   Id. at 263, 762 N.W.2d at 16–17.  To establish this, the court first noted that Nebraska’s admission as a state was conditioned on its promise not deny suffrage on the basis of race or color.  It also cited portions of the state constitution as well as part of the state’s seal.  Finally, the court pointed to a number of statutes that barred discrimination in areas such as public accommodations, housing, and employment, among others. See id. at 259-60, 762 N.W.2d at 14–15.↑
21.   Id. at 263, 762 N.W.2d at 17.↑
22.   Id.↑
23.   Id. at 264–65, 762 N.W.2d at 17–18.↑
24.   Id. at 272, 762 N.W.2d at 22 (Stephan, J., dissenting).↑
25.   Id. at 243, 762 N.W.2d at 4.↑
26.   Neb. Rev. Stat. §§ 25-2601 to -2622 (Reissue 2008).↑
27.   9 U.S.C. §§ 1–16 (2006).  Arbitration in Nebraska can be governed by the FAA if it arises from a contract involving interstate commerce.  However, that was not the case in Henderson, and the Nebraska Supreme Court relied instead on the UAA.↑
28.   See Henderson, 277 Neb. at 243, 762 N.W.2d at 4.  (“[B]ecause the applicable provisions of the Uniform Arbitration Act and the Federal Arbitration Act are similar, we look to federal case law explaining the scope of judicial review of arbitration awards.”).↑
29.   461 U.S. 757 (1983).↑
30.  Id. at 763–64.↑
31.   Id. at 766; see also United Paperworkers Int’l Union v. Misco, Inc. 484 U.S. 29, 42 (1987) (“A court’s refusal to enforce an arbitrator’s award . . . because it is contrary to public policy is a specific application of the more general doctrine, rooted in the common law, that a court may refuse to enforce contracts that violate law or public policy.”).↑
32.   W.R. Grace, 461 U.S. at 766 (internal quotations and citations omitted).↑
33.   Id. at 766–70.↑
34.   Id. at 770–72.↑
35.   484 U.S. 29 (1987).↑
36.   Misco, like Henderson, involved some very questionable fact-finding by the arbitrator.  Finding the employee in the back of a smoke-filled car with a marijuana cigarette in the front ashtray was deemed to be “insufficient proof that [the employee] was using or possessed marijuana on company property.”  Id. at 34. However, the Court stated that “improvident, even silly, factfinding” is not “a sufficient basis” for overturning the decision of the arbitrator. Id. at 39.↑
37.   See id. at 31–35.↑
38.  Id. at 43.↑
39.  Id. at 44.↑
40.  Id.↑
41.   531 U.S. 57 (2000).↑
42.  Id. at 63.↑
43.   Id. The Court reiterated that the exception is narrow and went on to say that “where two political branches have created a detailed regulatory regime in a specific field, courts should approach with particular caution pleas to divine further public policy in that area.” Id.↑
44.   Id. at 66.  This statement by the Court is somewhat perplexing given that the Court had said that the award does not have to violate positive law to be unenforceable.  Perhaps this seeming contradiction can be explained by the fact that Congress and the Secretary of Transportation had heavily regulated this area, so much to the point that the Court assumed that the regulations embodied all the policies the two wished to enact.  Thus, a plausible reading of this case may suggest that when the area is heavily regulated, a violation of positive law will be necessary.  But when the area is more devoid of regulation, courts will have a freer hand in determining when an award will contravene public policy.↑
45.   Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).↑
46.   Id. at 68 (Scalia, J., concurring).↑
47.  Id.↑
48.   “[I]t is the arbitrator’s view of the facts . . . that [the parties] have agreed to accept. Courts thus do not sit to hear claims of factual . . . error . . . .”  United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 38–39 (1987).↑
49.   This is assuming that the arbitrator had found factually that the reinstatement would harm public perception of the patrol.  He did not find so and in any case crafted an award where the patrol could transfer Henderson to a less sensitive position.  See Arbitration Opinion and Award, supra note 9, at 45–47.  In any case, it seems that the court is doing little more than speculating as to future public reaction if the award is upheld and the “refusal to enforce an ward must rest on more than speculation or assumption.”  United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 44 (1987).↑
50.   See supra notes 25–47 and accompanying text.↑
51.   United Mine Workers, 531 U.S. at 67–69 (Scalia, J., concurring).↑
52.   Id.↑
53.   However, if Henderson were a judge, a reinstatement award would violate positive law as the Nebraska Code of Judicial Conduct prohibits a judge from being a member in an organization that practices invidious discrimination.  See Neb. Code of Judicial Conduct § 5-202(C) (recodified 2008).↑
54.   As Justice Scalia pointed out, supervening law could make performance of the employment contract impracticable. See United Mine Workers, 531 U.S. at 69; see also Restatement (Second) of Contracts § 264 (1979) (stating that intervening governmental action may discharge a duty of performance).  United States v. Winstar Corp., 518 U.S. 839, 897-98 (1996) (Souter, J. with two Justices concurring) lays out the rule for when a federal law may be used to assert an impracticability defense on the part of the federal government.  For the defense to be available, the law must be a “public and general act” and must have less than a substantial effect on the government contracts.  The greater the government’s self-interest in passing the law, the less likely the defense will be available.  In other words, the law cannot be passed merely to invalidate a contract the government no longer views as a good deal.↑