Justia Nebraska Supreme Court Opinion Summaries

Several indoor tanning salons filed claims for tax refunds with the Department of Revenue for admissions taxes. Apparently, in 2012, the Attorney General’s office had issued an opinion that Neb. Rev. Stat. 77-2703(1) did not authorize subjecting tanning salons to admissions taxes. The Department has since repealed the regulation listing tanning salons among the businesses subject to the tax and has ceased collecting the tax. The Tax Commissioner disallowed the claims, stating that “[a] refund of a tax improperly or erroneously collected can only be issued by the State directly to the purchaser who paid the tax.” The district court consolidated the cases and affirmed. The Nebraska Supreme Court affirmed, agreeing that the salon customers were the taxpayers of the admissions tax. View "Aline Bae Tanning, Inc. v. Neb. Dep't. of Revenue" on Justia Law

The Nebraska Constitution confers on the Legislature the authority to define crimes and fix their punishment and on the Parole Board “power to grant paroles after conviction and judgment, under such conditions as may be prescribed by law, for any offenses committed against the criminal laws of this state except treason and cases of impeachment.” A statute provides: Every committed offender shall be eligible for parole when the offender has served one-half the minimum term. Because it is impossible to determine when an offender has served one-half of a life sentence, the section has been interpreted to mean that an inmate sentenced to life imprisonment is not eligible for parole until the Board of Pardons commutes the sentence to a term of years. Adams, an inmate serving two sentences of life imprisonment, challenged the statute as an unconstitutional usurpation of the Board's authority. The district court dismissed and the Nebraska Supreme Court affirmed, reasoning that the commutation requirement was a “condition” prescribed by the Legislature within the meaning of the constitution’s “conditions clause,” which “reserves to the Legislature the ability to add to or subtract from the [Board’s] power to grant paroles in all cases except in cases of treason or impeachment.” View "Adams v. State" on Justia Law

Shurigar submitted a “Nebraska Concealed Handgun Permit Application” and acknowledged that one year earlier, he had been found to be in possession of a loaded pistol in Oklahoma and had pled guilty to “Transporting Loaded Firearm in Motor Vehicle, Misdemeanor.” Because of this prior conviction, the State Patrol denied Shurigar’s application. The district court affirmed the denial, finding that Shurigar’s conviction disqualified him from obtaining a permit under Section 69-2433(8): An applicant shall: Not have had a conviction of any law of this state relating to firearms, unlawful use of a weapon, or controlled substances or of any similar laws of another jurisdiction within the ten years preceding the date of application. Shurigar argued that his conviction was not similar to Neb. Rev. Stat. 37-522, which provides: “It shall be unlawful to have or carry, except as permitted by law, any shotgun having shells in either the chamber, receiver, or magazine in or on any vehicle on any highway.” The Nebraska Supreme Court affirmed, stating that the Legislature deemed a person to be a risk for violating Section 37-522, which makes it unlawful to transport a loaded shotgun on a highway in Nebraska; there is no reason why a person violating another jurisdiction’s law against transporting a loaded pistol on a highway would be less of a risk of committing future crimes than a person transporting a loaded shotgun. View "Shurigar v. Nebraska State Patrol" on Justia Law

In November, 2003, Guitron was reported missing. Guitron’s remains were discovered in April 2010, under a woodpile on an abandoned farm in rural Kimball County. The cause of death was determined to be two gunshot wounds; a bullet recovered from Guitron’s skull was fired from a pistol purchased by Ash’s sister. Guitron’s death was found to have occurred on October 15, 2003. In August 2003, Ash and his 15-year old girlfriend, whom Ash later married, began living with Guitron in Fort Collins, Colorado. The three were methamphetamine users. After several weeks, Ash and Meehan moved out and began living in a tent near Grover, Colorado. Ash was ultimately convicted of first-degree murder and sentenced to life in prison. The Nebraska Supreme Court remanded because the court erred in denying Ash’s request for a continuance after the state disclosed, on the brink of trial, that a codefendant would be testifying pursuant to a plea agreement. Ash again was found guilty of first-degree murder and sentenced to life. The Nebraska Supreme Court affirmed, finding Ash’s claim of insufficient evidence to support the verdict without merit; that none of Ash’s claims of trial court error had merit; and that any claim of ineffective assistance of counsel was either affirmatively disproved by the record or not sufficiently presented for review. View "State v. Ash" on Justia Law

In May 2013, Deines filed a complaint seeking to recover earned commissions from his former employer under the Nebraska Wage Payment and Collection Act. Essex filed an answer which, among other things, alleged Deines had been paid all commissions he was owed. After the case had been pending for approximately 15 months, the trial court issued a notice of intent to dismiss. The notice required the parties to take certain action within 30 days or the case would be dismissed for want of prosecution. No action was taken within the prescribed time and the court entered an order dismissing the case for want of prosecution. Deines subsequently filed a successful motion to reinstate the case. The Nebraska Supreme Court dismissed an appeal. The order was neither a judgment nor a final order. View "Deintes v. Essex Corp." on Justia Law

Pittman filed a negligence action for injuries he sustained when he was struck by a vehicle while standing in or near a parking lot owned and maintained by 2nd Street. The driver of the vehicle was Rivera, another patron who had been forcibly removed from 2nd Street earlier that evening by an employee of 2nd Street. The district court granted summary judgment in favor of the defendants, finding that Rivera’s conduct in striking Pittman with his vehicle was not reasonably foreseeable and that therefore, 2nd Street did not breach its duty of reasonable care. The Nebraska Supreme Court affirmed, agreeing that 2nd Street owed a general duty based on premises liability and that when Rivera returned to the premises, driving a vehicle, it was not reasonably foreseeable that Rivera would use his vehicle to assault Pittman. View "Pittman v. Rivera" on Justia Law

After a jury trial, Defendant was convicted of second degree murder and use of a deadly weapon. The Supreme Court affirmed the convictions on direct appeal. Defendant subsequently filed a motion for postconviction relief alleging ineffective assistance of counsel. The State filed a motion to deny an evidentiary hearing on Defendant’s motion, and the district court granted the State’s request. Thereafter, the district court denied postconviction relief. The Supreme Court affirmed, holding (1) the district court did not err by denying an evidentiary hearing where Defendant’s motion did not allege any prejudice due to his trial counsel’s alleged deficient performance; and (2) the district court did not err by denying postconviction relief. View "State v. Abdulkadir" on Justia Law

Bryant Irish was convicted of driving under the influence and causing serious bodily injury. Dillon Fales was the victim of Irish’s crime. Before the court sentenced Irish, Fales sued Stanton County alleging that he was an innocent third party injured by the vehicular pursuit of Irish by Michael Unger, the Stanton County Sheriff. Unger petitioned for a public records writ of mandamus compelling the partial disclosure of Irish’s presentence report containing any statements made by Fales. The district court dismissed Unger’s petition, concluding that Irish’s presentence report was not a public record. The Supreme Court affirmed, holding that the district court did not abuse its discretion in dismissing Unger’s petition for a public records writ of mandamus because Irish’s presentence report is not a public record. View "State ex rel. Unger v. State" on Justia Law

Madeline Schmitz and Steven Sickler were divorced in 2001. The property division awarded a percentage of Steven’s individual retirement account to Madeline. Madeline’s percentage had not been transferred to her in the fourteen years since the decree. The district court found Steven in contempt and ordered him to serve a sentence of ninety days’ incarceration. The sentence could be purged by payment of $37,234 to Madeline within a period of seventeen days. The Supreme Court affirmed as modified, holding (1) imprisonment for contempt for failing to comply with the order of property division in a dissolution decree does not violate Neb. Const. art. I, 20; (2) the district court did not err in finding Steven’s conduct to be willful; and (3) the order is modified so as to permit Steven to purge the contempt at any time during his period of incarceration. View "Sickler v. Sickler" on Justia Law

After a bench trial, Defendant was convicted of first degree murder and use of a firearm to commit a felony. Defendant was sentenced to life imprisonment for the murder conviction. Defendant appealed, arguing that there was insufficient evidence to support his convictions. The Supreme Court affirmed the convictions and sentences, holding (1) the State presented sufficient evidence for the trial court to find that Defendant killed the victim in an attempt to perpetrate a robbery and that he used a firearm to do so; and (2) therefore, there was sufficient evidence to support Defendant’s convictions. View "State v. Dortch" on Justia Law