John V. Hendry

This case consists of two consolidated attorney disciplinary actions brought by the Nebraska Supreme Court's Counsel for Discipline against respondent Robert H. Beach. The charges arose from Beach's representation of a client in a felony probation revocation proceeding, during which he sent unauthorized and inflammatory letters to the county attorney and the client's husband, purchased alcohol for the client in violation of her probation terms, encouraged her to divorce, and later disclosed client confidences after a grievance was filed. Beach had received two prior private reprimands for similar misconduct. The court found clear and convincing evidence that he violated DR 1-102(A)(5) and (6) in both cases, plus DR 4-101(B)(1) in the second, and concluded that disbarment was the appropriate sanction given the pattern of conduct, absence of mitigating factors, and lack of acknowledgment of ethical violations.

criminal lawprocedure

Carolyn Bronsen sued Dawes County and Fur Trade Days, Inc. (FTD) for negligence after she broke her ankle by stepping in a hole on the county courthouse lawn while attending a public festival that included picnicking. The district court and Court of Appeals granted summary judgment to both defendants under Nebraska’s Recreation Liability Act (RLA), which limits landowner liability for recreational users to willful or malicious conduct. On further review, the Nebraska Supreme Court held that the RLA’s limited immunity applies only to private landowners and does not protect governmental entities such as counties, overruling prior precedent that had extended the statute to public bodies; it therefore reversed summary judgment for the County. The court affirmed summary judgment for FTD, finding no error in the conclusion that Bronsen was engaged in the protected recreational activity of picnicking and that FTD qualified as an “owner” under the RLA.

torts & liabilityproperty

This case involved a juvenile court proceeding under the Nebraska Juvenile Code concerning Veronica H., a minor adjudicated as abused and placed in the temporary custody of the Nebraska Department of Health and Human Services (DHHS). The juvenile court ordered DHHS to replace the assigned case manager with a more experienced one knowledgeable about incest cases due to concerns over the child's lack of progress and case management. DHHS appealed, arguing the court lacked statutory or constitutional authority to direct such a personnel change. The Nebraska Supreme Court affirmed the lower courts' rulings, holding that the juvenile court possessed jurisdiction over DHHS as custodian and authority under Neb. Rev. Stat. § 43-285 to modify or dissent from DHHS plans when necessary to serve the juvenile's best interests. The decision rested on the Juvenile Code's emphasis on liberal construction to protect children and the broad discretion granted to juvenile courts in placement and care matters.

family lawprocedure

Three Nebraska residents who pay telecommunications surcharges brought suit against state officials, challenging the Nebraska Telecommunications Universal Service Fund Act as an unconstitutional delegation of legislative power to the Public Service Commission and as violating due process, equal protection, and other constitutional provisions; they sought declaratory and injunctive relief against the surcharge that funds universal service goals. Intervening telecommunications providers opposed the claims. After a trial on stipulated facts, the district court upheld the statute, and the Nebraska Supreme Court affirmed. The court held that the Act supplies reasonably adequate standards to guide the Commission in setting the fund level and surcharge, that the surcharge is a valid regulatory fee rather than an unlawful tax, and that the legislation does not violate due process, equal protection, or the Nebraska Constitution’s provisions on the Commission’s authority.

business & regulatoryfederal powerprocedure

The case involved defendant Erick Fernando Vela, who was convicted of multiple first-degree murders and related felonies after pleading guilty, with the State seeking the death penalty based on aggravating circumstances found by a jury. Vela filed a verified motion under Neb. Rev. Stat. § 28-105.01 to preclude a death sentence on grounds of mental retardation, citing the statutory ban and Atkins v. Virginia; after an evidentiary hearing, the district court overruled the motion, finding insufficient proof of mental retardation. Vela appealed the order, but the Nebraska Supreme Court dismissed the appeal on its own motion for lack of jurisdiction. The court reasoned that in criminal cases the final judgment is the sentence, which had not yet been imposed, and the mental retardation hearing was merely one step in the capital sentencing process rather than a special proceeding affecting a substantial right that would render the order immediately appealable under Neb. Rev. Stat. § 25-1902.

criminal lawprocedure

This case involved a dispute between Pennfield Oil Company and the estate of its former shareholder R.W. Winstrom over the enforcement of stock repurchase agreements from 1960 and 1988, which required the company to redeem shares at book value upon a shareholder's death. The Nebraska Supreme Court reversed the district court's judgment and remanded with directions to grant declaratory relief establishing that the estate's shares were subject to a valid redemption demand under the agreements. However, the court declined to order specific performance of the redemption because no shareholders' meeting had occurred to determine book value as required, the board had not considered waiver options, and a temporary injunction had prevented the parties from fulfilling these procedural steps.

business & regulatoryproperty