There’s No Escape: The Plaintiff’s Right to Dismiss After the Submission of a Motion for Summary Judgment or a Motion to Dismiss in Nebraska
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By John P. Lenich[0]
Section 25-601(1) provides that the plaintiff can voluntarily dismiss an action without prejudice anytime before final submission.[1] “Final submission contemplates submission on both the law and the facts when nothing remains to be done in order to render the submission complete.”[2] A final submission occurs in a bench trial when the parties finish their closing arguments. A final submission occurs in a jury trial after the parties finish their closing arguments and the jury has been instructed.[3] At that point, the action has been put in the hands of the trier of fact for a decision on the merits.
A final submission can occur on a motion. For example, an action is under final submission when the defendant moves to dismiss the action at the close of the plaintiff’s case in a bench trial.[4] An action is also under final submission when the defendant moves for a directed verdict in a jury trial and the parties have made their arguments on the motion.[5] If the court denies the motion, however, the action is no longer under final submission. The court’s decision in effect sets aside the submission and allows the action to proceed. The plaintiff can then dismiss the action without prejudice if it so chooses.[6]
It is unclear whether the filing and arguing of a summary judgment motion constitutes a final submission for purposes of § 25-601. It is also unclear whether the filing and arguing of a motion to dismiss for failure to state a claim constitutes a final submission. This commentary argues that the submission of either motion should be treated as a final submission of the action. The plaintiff should not be allowed to avoid a potentially dispositive ruling by dismissing its action without prejudice so that it can bolster its case and refile in a more sympathetic forum.
Summary Judgment
A motion for a directed verdict is treated as final submission “because the court is called upon to determine as a matter of law whether there are any issues arising from the facts submitted which present a jury question.”[7] The same is true of a motion for summary judgment. The court is called upon to determine as a matter of law whether there are any issues arising from the facts that present a triable issue.[8] Therefore, the submission of a motion for summary judgment should be treated as a final submission of the action.
The supreme court’s decision in Kansas Bankers Surety Co. v. Halford,[9] however, could be read as saying that the plaintiff’s right to dismiss is unaffected by a pending motion for summary judgment. The plaintiff in Kansas Bankers moved to dismiss the action—and the court entered its order dismissing the action—on the same day that the plaintiff’s brief in opposition to the defendant’s summary judgment motion was due. After the plaintiff dismissed the action, the defendant sought an award of attorney’s fees pursuant to § 25-824 on the ground that the plaintiff’s action was frivolous. The district court granted the defendant’s motion. The plaintiff then appealed.
The supreme court reversed. The court held that the district court lacked jurisdiction to grant the defendant’s motion for attorney’s fees because the action had already been dismissed when the defendant filed its motion. The court noted that the pendency of a counterclaim will preclude the plaintiff from dismissing an action in its entirety but added that the defendant had not filed a counterclaim.[10] The defendant had instead filed a motion for summary judgment.[11] Therefore, the plaintiff had a right to dismiss the action.
Because the court in Kansas Bankers concluded that the plaintiff had the right to dismiss the action pursuant to § 25-601, the court must have concluded that the pending summary judgment motion did not constitute a final submission. But the court did not explain why. The most likely reason is that the submission in Kansas Bankers was incomplete at the time the plaintiff dismissed the action. Although the summary judgment motion had been filed, not all of the briefs had been filed. The plaintiff obtained an extension to file its brief in opposition to the motion. Instead of filing its brief on the day it was due, however, the plaintiff moved to dismiss the action.[12]
That is significant because the court had previously held that if a motion for a directed verdict is filed and the trial court orders the parties to file briefs within a specified time period, then the action is not deemed to be finally submitted until the briefs are filed or until the time for filing them expires.[13] The time for filing the briefs in Kansas Bankers had not expired when the plaintiff dismissed the action. Therefore, the plaintiff was free to dismiss the action under §25-601 because there had not yet been a final submission.
In short, the court’s decision in Kansas Bankers does not support the proposition that the plaintiff’s right to dismiss is unaffected by a pending motion for summary judgment. The decision instead supports a narrower proposition: the plaintiff’s right to dismiss is unaffected by a pending motion for summary judgment that has not been finally submitted. Final submission occurs when the briefs have been filed or the time for filing them expires. If no briefing schedule was set, then final submission occurs when the oral arguments are over.
The plaintiff would be free to dismiss the action without prejudice if the court denies the motion. If the court grants the motion, however, the plaintiff would not be free to dismiss the action. That should be true even if the motion disposes of some but not all of the claims in the action. Although the order granting the motion would not be a final judgment, it would be the product of a final submission.[14] Therefore, the plaintiff would no longer have the right to dismiss the claims without prejudice unless the order was set aside—in other words, unless the final submission was set aside.[15]
Motion to Dismiss for Failure to State a Claim
Although a motion for summary judgment should be treated as a final submission that terminates the plaintiff’s right to dismiss, there is some question about whether the same should be true of a motion to dismiss for failure to state a claim upon which relief can be granted. There are two decisions that seem to come to different conclusions.
In Koll v. Stanton-Pilger Drainage District,[16] the Nebraska Supreme Court held that the sustaining of a demurrer for failure to state a cause of action is not a final submission. The court emphasized that a demurrer “merely challenges defects shown on the face of the petition” and that the plaintiff should ordinarily be given leave to amend when a demurrer is sustained.[17] The court noted that the plaintiffs in Koll received leave to amend but failed to file an amended petition within the allotted time. Their failure did not affect their right to dismiss, however, because the practice would have been to accept an untimely amendment.[18]
The court of appeals came to a different conclusion in McCroy v. Clarke.[19] The court held that causes of action that are disposed of by a demurrer have been finally submitted. The court acknowledged that Koll held that sustaining a demurrer for failure to state a cause is not a final submission of the action. The court added, however, that McCroy was “sufficiently distinct” from Koll to warrant a different result.[20] The court, however, did not explain what made the cases distinct.
The distinction seems to be that the demurrer in Koll was sustained with leave to amend while the demurrer in McCroy—which was directed at some of the causes of the action in the action—was sustained without leave to amend. If a demurrer—or its contemporary counterpart, a motion to dismiss for failure to state a claim—is sustained with leave to amend, then the claims will go forward.[21] The court’s decision to grant leave to amend in effect sets aside the submission. If the demurrer (or motion to dismiss) is granted without leave to amend, however, the final submission has not been set aside and the claims will not go forward. In other words, the final submission has resulted in a decision disposing of those claims.[22]
The preceding discussion assumes that the submission of a motion to dismiss for failure to state a claim is a final submission of the claims to which the motion is directed. But is it? The answer should be “yes.” The motion requires the court to determine as a matter of law whether the facts as pled entitle the plaintiff to relief.[23] In other words, it is a submission of the action on both the law and the facts. The motion is potentially dispositive because the court could dismiss a claim without leave to amend if it concluded that the defect could not be cured.[24] Such a dismissal would be a decision on the merits.[25]
The court could also dismiss the action if the plaintiff failed to file an amended complaint after having been granted leave to do so. In Koll, the supreme court indicated that the submission of the defendant’s motion to dismiss based on the plaintiffs’ failure to file an amended complaint was a final submission of the action.[26] The same should be true of the initial motion to dismiss because, as discussed above, it is a potentially dispositive motion that goes to the merits of the claim.
Dismissal with Leave of Court
The plaintiff’s right to dismiss an action without prejudice expires at final submission. To dismiss after final submission, the plaintiff must obtain leave of court. It is unlikely, however, that a court would grant a plaintiff leave to dismiss without prejudice while a motion for summary judgment or a motion to dismiss for failure to state a claim was under submission. In fact, it would be an abuse of discretion for the court to grant the plaintiff leave to dismiss if the plaintiff’s reason for dismissing was the fear of an adverse decision.[27]
It is even less likely that a court would grant a plaintiff leave to dismiss without prejudice after the court granted the motion but before the court entered judgment.
To permit a party to dismiss [without prejudice] under such circumstances is, in substance, to grant him a new trial after he has been fairly defeated and to deprive his adversary of the fruits of a fairly won victory. It is contrary to good sense and sound policy to allow a party to take his case from one court to another until fortune favors him with a judge who is willing to accept his view of the law or his construction of the evidence.[28]
Conclusion
The plaintiff’s right to dismiss is an escape hatch that the plaintiff can use when “unforeseen contingencies, accidental omissions, a mistake in procedure or other circumstances unconnected with the merits”[29] undermine the plaintiff’s ability to litigate its case. But that hatch should be closed while the court is considering a potentially dispositive motion that targets the merits of the case. A lawsuit is not a trial run. Once the lawsuit has been submitted for decision on the merits, the court should be allowed to make a decision.
Preferred Citation Format: John P. Lenich, There’s No Escape: The Plaintiff’s Right to Dismiss after the Submission of a Motion for Summary Judgment or a Motion to Dismiss in Nebraska, 1 Neb. L. Rev. Bull. 31 (2009), http://lawreview.unl.edu/?p=507.
FOOTNOTES
0. Ross McCollum Professor of Law, University of Nebraska College of Law↑
1. Neb. Rev. Stat. § 25-601(1) (Reissue 2008). The plaintiff’s right to dismiss pursuant to § 25-601 is “a statutory right” rather than “a matter of judicial grace or discretion.” Koll v. Stanton-Pilger Drainage Dist., 207 Neb. 425, 426, 299 N.W.2d 435, 436 (1980). See also Giesler v. City of Omaha, 175 Neb. 706, 708, 123 N.W.2d 650, 651 (1963) (same); Sutherland v. Shoemaker, 6 Neb. App. 157, 160, 570 N.W.2d 375, 377 (1997) (same). Nevertheless, a court can impose conditions on the plaintiff’s right to dismiss or preclude the plaintiff from exercising that right altogether when “justice and equitable principles so require.” Holste v. Burlington N. R.R. Co., 256 Neb. 713, 730, 592 N.W.2d 894, 907 (1999). See also Kan. Bankers Sur. Co. v. Halford, 263 Neb. 971, 978, 644 N.W.2d 865, 870 (2002) (stating that courts have discretion in deciding whether or not to dismiss an action).↑
2. Schroeder v. Schroeder, 223 Neb. 684, 687, 392 N.W.2d 787, 789 (1986). See Koll, 207 Neb. at 426, 299 N.W.2d at 436; Miller v. Harris, 195 Neb. 75, 78 236 N.W.2d 828, 830 (1975).↑
3. The submission instruction for civil cases can be found at NJI2d Civ. 5.01 (West 2008-09 ed.).↑
4. Gydesen v. Gydesen, 188 Neb. 538, 540-41, 198 N.W.2d 67, 68 (1972).↑
5. Collection Specialists, Inc. v. Veseley, 238 Neb. 181, 186, 469 N.W.2d 549, 552 (1991). See Fronk v. J.H. Evans City Steam Laundry Co., 70 Neb. 75, 77, 96 N.W. 1053, 1054 (1903). If the court requests the parties to file briefs, then final submission occurs when the briefs are filed or, if they were not filed, when the time for filing them expired. Plattsmouth Loan & Bldg. Ass’n v. Sedlak, 128 Neb. 509, 512, 259 N.W. 367, 368-69 (1935).↑
6. Miller, 195 Neb. at 77, 236 N.W.2d at 830.↑
7. Id. at 78, 236 N.W.2d at 830.↑
8. See, e.g., Wolski v. Wandel, 275 Neb. 266, 270-71, 746 N.W.2d 143, 148 (2008) (“Summary judgment is proper when the pleadings and evidence admitted at the hearing disclose no genuine issue regarding any material fact or the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.”); DeWester v. Watkins, 275 Neb. 173, 176, 745 N.W.2d 330, 333 (2008) (same).↑
9. 263 Neb. 971, 644 N.W.2d 865 (2002).↑
10. Id. at 979, 644 N.W.2d at 871. See Neb. Rev. Stat. § 25-603 (Reissue 2008) (stating that the defendant can proceed on its counterclaim even if the plaintiff’s action has been dismissed).↑
11. Kansas Bankers, 263 Neb at 979, 644 N.W.2d at 871.↑
12. Id. at 977, 644 N.W.2d at 870.↑
13. Plattsmouth Loan & Bldg. Ass’n v. Sedlak, 128 Neb. 509, 512, 259 N.W. 367, 368-69 (1935).↑
14. Section 25-601(1) refers to the dismissal of an action. For purposes of § 25-601(1), the term “action” means a claim. See Snyder v. Collier, 85 Neb. 552, 555, 123 N.W. 1023, 1024 (1909) (in action for foreclose of two real estate mortgages, plaintiff had the right to dismiss one of its two causes of action). Therefore, the final submission of a claim is a final submission of the action for purposes of § 25-601(1). If other claims are still pending, the order the court enters as a result of the submission is not necessarily a final judgment. An order that disposes of some but not all of the claims in a case with multiple parties or multiple claims is only a final judgment if the court expressly directs the entry of judgment pursuant to Neb. Rev. Stat. § 25-1315(1) (Reissue 2008).↑
15. Absent an express direction for the entry of judgment, an order that disposes of some but not all of the claims in a case with multiple parties or multiple claims “is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.” § 25-1315(1).↑
16. 207 Neb. 425, 299 N.W.2d 435 (1980).↑
17. Id. at 426-27, 299 N.W.2d at 436.↑
18. Id. at 427, 299 N.W.2d at 436-37.↑
19. No. A-05-1358, 2008 WL 2010280 (Neb. Ct. App. May 6, 2008).↑
20. Id. at *7.↑
21. Cf. Feight v. Mathers, 153 Neb. 839, 842, 46 N.W.2d 492, 494 (1951) (order giving defendants ten days to file amended answer pleading defendants’ counterclaims did not result in a final submission of the case).↑
22. Cf. State ex rel. Burlington & Miss. River R.R. Co. v. Scott, 22 Neb. 628, 640, 36 N.W. 121, 126-27 (1888) (plaintiff could not dismiss mandamus action as a matter of right after court sustained demurrer for failure to state a cause of action, apparently without leave to amend, but before court formally dismissed the action). A motion to dismiss for failure to state a claim can be directed at individual claims in a complaint that contains multiple claims. See John P. Lenich, Nebraska Civil Procedure § 11:7, at 437 (West 2008). An order granting a motion to dismiss one or more but not all of the claims is not a final judgment, although it is the product of a final submission. See supra note 14 and accompanying text.↑
23. See Lenich, supra note 22, § 11:7.↑
24. See id. at § 15:5.↑
25. The dismissal of an action (as opposed to the complaint) for failure to state a claim is a final judgment on the merits. See id. at § 8:7.↑
26. 207 Neb. 245, 427, 299 N.W.2d 435, 437 (1980). The district court in Koll gave the plaintiffs two weeks to file an amended petition. The two weeks passed without the plaintiffs doing so. The defendant subsequently filed a motion to dismiss with prejudice based on the plaintiffs’ failure to file an amended petition. The district court never considered the motion, however. The plaintiffs moved to dismiss without prejudice before the district court heard argument on the defendant’s motion—in other words, before submission of the defendant’s motion.↑
27. See Collection Specialists, Inc. v. Veseley, 238 Neb. 181, 187-88, 469 N.W.2d 549, 552-53 (1991) (district court abused its discretion in allowing plaintiff to dismiss without prejudice after case had been submitted on motion for directed verdict; plaintiff sought dismissal after it realized that the evidence was insufficient under the original petition or the amendment that plaintiff made while the motion for direct verdict was pending).↑
28. Pettegrew v. Pettegrew, 128 Neb. 783, 789, 260 N.W. 287, 289 (1935).↑
29. Plattsmouth Loan & Bldg. Ass’n v. Sedlak, 128 Neb. 509, 511, 259 N.W. 367, 368 (1935).↑
Thoughts on LB 36: Problems with the Proposed Bill to Institute Lethal Injection in Nebraska
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By Eric Berger[0]
Introduction
In February 2008, the Nebraska Supreme Court held in State v. Mata that Nebraska’s electrocution procedure violated the Nebraska constitution’s prohibition against cruel and unusual punishment.[1] Mata left Nebraska in the curious position of having the death penalty on the books without a constitutional method of executing death sentences. In December 2008, Nebraska Attorney General Jon Bruning submitted a report to the Governor recommending that Nebraska adopt lethal injection as a new means to carry out a sentence of death. General Bruning’s report included LB 36, a proposed statute that would institute lethal injection in Nebraska.
On January 29, 2009, the Judiciary Committee of the Nebraska legislature conducted hearings about LB 36 and LB 306, a competing bill that proposed repealing the death penalty in Nebraska and replacing it with life imprisonment without the possibility of parole. Several lawyers, doctors, professors, and other citizens (including former Nebraska Senator Ernie Chambers) testified on either or both bills. I was among the people who testified on LB 36 (the lethal injection bill). Specifically, I argued that LB 36 contained several provisions that would insulate Nebraska’s lethal injection procedure from democratic review and would therefore risk creating a flawed, dangerous procedure. I am attaching here my written testimony from that day.[2]
Written Testimony to the Judiciary Committee
January 29, 2009
Re: Opposition to LB 36
Lethal Injection
Members of the Judiciary Committee:
My name is Eric Berger, and I am an Assistant Professor of Law at the University of Nebraska College of Law here in Lincoln. Before I moved to Nebraska a year and a half ago to teach at the Law College, I was a practicing attorney at a law firm in Washington, D.C. During my time there, I was a member of the legal team representing Michael Taylor in his challenge to the constitutionality of Missouri’s lethal injection procedure. I also worked on Hill v. McDonough,[3] a United States Supreme Court case holding that death row inmates could challenge the lethal injection procedure by which they would be executed under a provision of the Civil Rights Act known as 42 U.S.C. § 1983. Since coming to the Law College, much of my research has focused on lethal injection, including an article being published this May in the Yale Law and Policy Review.
Since moving to Nebraska, I have been struck by this state’s proud tradition of open government. Nebraska, more so than most states in my experience, prides itself on transparent and deliberate governance. These important values are reflected, among other places, in its Criminal History Information Act, its Public Records Laws, and its Open Meetings Act.[4] While I would like to commend the sponsors of LB 36 and this committee for this hearing, I believe LB 36 undermines those important values.
Recent inquiry into some lethal injection procedures’ poor design and implementation demonstrates that lethal injection is not the humane and simple method of execution many people have assumed it to be. To the contrary, the commonly used drugs (sodium pentothal, pancuronium bromide, and potassium chloride) are now generally understood to create a significant risk of excruciating pain, especially if they are not carefully administered in a well- designed procedure by qualified medical personnel. Due to these risks, executions are or have been on hold in multiple jurisdictions across the country as courts, legislatures, and governors reevaluate current procedures. Indeed, federal courts in California, Missouri, and Tennessee have found that existing lethal injection procedures are unconstitutionally dangerous. Botched executions, administrative reviews, and constitutional challenges have also halted or significantly delayed executions in numerous other states including Arizona, Delaware, Florida, Maryland, North Carolina, Ohio, Oklahoma, and Virginia.
Many of the problems at issue in those cases and identified by those courts result from the legal and administrative process by which lethal injection protocols have been designed and implemented. Like many complex government undertakings, the administrative process used to adopt lethal injection protocols helps determine the quality of the resulting execution procedures. But in most states lethal injection has not been adopted through careful study and deliberation, but rather by mimicking other states’ procedures in almost total secrecy. The widespread three-drug protocol was initially developed in Oklahoma in 1977 and has since been adopted by numerous states without sufficient understanding of the drugs and their risks. Rather than consulting with experts, seeking public opinion, and engaging in considered analysis, states have thoughtlessly copied Oklahoma’s three-drug approach. This almost blind adoption of the Oklahoma protocol is ironic, given that the creator of that protocol today expresses shock that it is not performed by doctors but by individuals with little understanding of the dangers posed by the drugs.[5]
Respectfully, I submit that LB 36 replicates many of the mistakes made in these other states. The veil of secrecy obscuring the lethal injection protocol in LB 36 is contrary to Nebraska’s commitment to open government and risks creating a dangerous and unconstitutional execution procedure. Additionally, the bill’s numerous flaws will almost certainly generate prolonged litigation that will delay executions and cause great expense to Nebraska taxpayers.
Problematic Provisions in LB 36 Undermining Open Government in Nebraska
Section 83-965 ¶ 4 (exemption from APA requirements)
This provision exempts the execution protocol from the requirements of the Administrative Procedure Act. In so doing, this provision not only denies Nebraskans important information about how their government carries out its most solemn task, but also likely will result in a flawed execution procedure. To be performed properly, lethal injection requires expert input, a comprehensive protocol, qualified and well-trained personnel, defined contingency plans, careful recordkeeping, and a level of professionalism absent in many states. The deliberative processes fostered by the Administrative Procedure Act are essential to ensure that execution procedures possess these necessary attributes.
From my own experience litigating the Taylor v. Crawford case in Missouri, I can testify firsthand to the problems that arise when a state designs and implements a protocol in secret. When my colleagues and I litigated Taylor, Missouri’s lethal injection procedure operated in near-total secrecy. The state had delegated the entire matter to the Director of the Department of Corrections, just as LB 36 proposes to do.[6] However, the director had no medical background and knew nothing about the drugs involved. He therefore delegated the procedure to a surgeon, but he did not oversee that surgeon to keep himself apprised of how executions were carried out. The Taylor court found that the surgeon had arbitrarily and dangerously lowered the dose of anesthetic given to inmates and that he was incompetent to perform executions. Moreover, because the state had delegated complete authority to him, the court expressed concern that “there are no checks and balances or oversight” over the execution procedure.[7] Significantly, the court concluded that Missouri’s procedure was unconstitutional in large part because of the state’s failure to give careful consideration to its protocol in the first place. By hiding its execution procedure from the public and exempting it from normal APA processes, LB 36 makes the same kind of mistakes that got Missouri into trouble.
Unsurprisingly, courts also cite this lack of deliberation as reason to give less deference to state execution procedures. For instance, when California “tweaked” its execution protocol to try to comply with a federal court’s concerns, the reviewing court focused on the superficial nature of the revision process. Unsurprisingly, the court found California’s mere “tweak” to be an insufficient substitute for an open, deliberative, and thorough review. In other words, the court found that the failure to carefully deliberate was evidence of the “pervasive lack of professionalism” that plagued California’s lethal injection procedure.[8] As a result, the court explained:
a thorough review of the lethal-injection protocol, including, inter alia, the manner in which the drugs are injected, the means used to determine when the person being executed has lost consciousness, and the quality of contemporaneous records of executions, such as execution logs and electrocardiograms, likely will be necessary. To be meaningful, such a review may require consultation with independent experts and with other jurisdictions, and it must be undertaken with an openness to the idea of making significant improvements in the ‘infrastructure’ of executions.[9]
In short, the “meaningful” review contemplated by the court is precisely the type of deliberative process that states try to foster in Administrative Procedure Acts.
Along similar lines, a Tennessee federal court found that state’s lethal injection procedure unconstitutional, in part because the Commissioner of Corrections ignored recommendations of a committee that had consulted experts and proposed significant changes to Tennessee’s protocol. Given that this commissioner had not consulted his own experts or offered credible reasons for rejecting the recommendation of a panel that had given the matter substantial attention, the court determined that the procedure the commissioner insisted on retaining deserved no judicial deference.[10] A Nebraska execution protocol adopted without the benefit of administrative procedures would similarly be undeserving of judicial deference.
Section 83-965 ¶ 5 (execution protocol “shall not be made available”)
This provision continues the policy of concealment by stipulating that no part of the execution protocol shall be made available to any person without the express authorization of the Director of Correctional Services or an order from the Lancaster County District Court issued for good cause. Just like the APA provision, this provision hides the execution protocol from public view, thereby making it more likely that it will be poorly designed and administered.
An execution protocol specifies the state’s intended procedures for carrying out death sentences and therefore is a matter of public importance. Many states have attempted to keep their protocols secret, but courts frequently order that they be made public, at least for litigation purposes. Indeed, reviewing courts have condemned the states’ insistence on secrecy.[11] Moreover, in the face of heightened public concern over lethal injection, some states’ protocols, including California, Delaware, Oklahoma, and Texas’s, appear on the internet. Given Nebraska’s commitment to open government and sunshine, I respectfully suggest that if Nebraska does adopt a new method of execution, it make its own execution protocol similarly available.
One lesson from litigation around the country is that the safety (and therefore the constitutionality) of execution procedures hinges not only on the four corners of the written protocol, but also on how the protocol is administered. In several states there is evidence that the written protocols have been implemented in a careless, unprofessional, and haphazard fashion, thus strongly suggesting the possibility of a constitutional violation. LB 36’s efforts to hide not just the creation but also the implementation of the protocol from public view will threaten to create similar problems here in Nebraska.
Indeed, in addition to making it look like Nebraska has something to hide, this provision would likely be ineffective. In most circumstances, litigants challenging a lethal injection procedure in federal court would have the right under the Federal Rules of Civil Procedure to obtain full discovery into an execution method. The United States Supreme Court’s recent decision in Baze v. Rees itself contemplates this discovery by requiring an inquiry into whether a given state’s procedure is “substantially similar” to Kentucky’s.[12] Moreover, because death row inmates possess an Eighth Amendment right protecting them against excruciating executions, they likely also have an interrelated due process right to know how they will be executed. This makes sense, because without knowing the method of execution, the inmate would have no way of protecting his Eighth Amendment right.
Section 83-965 ¶ 3, et seq. (no provision for qualified personnel)
As noted above, the safety and constitutionality of lethal injection hinges largely on the quality of the people administering it. It is undisputed that the three-drug protocol causes excruciating pain if it is not administered properly,[13] so it is essential that the state use qualified personnel to administer these drugs.[14] LB 36, once again, hides the ball, by offering no indication of how the execution team members might be selected or what their qualifications, competence, or training might be.
To give just one example, § 83-965 ¶ 3 provides no indication what level of training will be required (if any) for the person who does the consciousness check. (It only vaguely states that “a determination sufficient to reasonably verify that the prisoner is unconscious be made before the administration of any additional substances.”) But consciousness can only reliably be checked by a person with training in anesthesiology.[15] LB 36’s consciousness check is therefore inadequate without assurance that it will be performed by a qualified person. Indeed, because LB 36 hides so much of the design and implementation of the protocol from public view, there is no way to know whether any steps of the procedure will be performed by competent personnel. This lack of assurance itself is likely to generate litigation.
Section 83-967 (confidentiality of participants)
I am very sympathetic to the state’s need to protect the identity of the execution team members. If Nebraska does adopt a new method of execution, I agree entirely that the state can and should protect the executioners’ identities. That being said, § 83-967 as currently drafted is so vague and overbroad as to likely violate the First Amendment.
Paragraphs 2 and 3 in particular forbid not only disclosure of the identity of execution team members, but also the disclosure of “any information reasonably calculated to lead to the identities” of the execution team members. Paragraph 3 goes so far as to criminalize such disclosure. In so doing, it violates the First Amendment’s freedom of speech. It would be almost impossible for somebody to know in advance what would constitute “information reasonably calculated to lead to the identities” of execution team members. That language could mean one thing to one person and another thing to someone else. It could also be used to prosecute, for instance, members of the media for truthfully reporting on lawfully obtained information about execution team competence, even if such a report disclosed no one’s identifying information, such as name, address, or employer. Such vagueness and overbreadth likely violate the First Amendment, because they chill constitutionally protected speech.[16]
In addition to raising serious constitutional concerns, these provisions are also bad policy. If the provisions are interpreted broadly, they could insulate from disclosure even the most basic information about execution personnel’s training and qualifications. Missouri, for instance, refused to disclose whether a team member had ever been disciplined or had a medical license revoked on the ground that it was identifying information—but obviously such information is directly relevant to the safety of the execution procedure. Collectively, then, these provisions further insulate the most important details of the execution procedure from public view. If most information about the execution team members were secret, the public would have no way to learn of executioner malfeasance, and the state would have less incentive to find and properly train competent people.
It is important to emphasize that litigants and the public in general can receive important information without learning the names, addresses, or other identifying information about the execution team members. This was the case in Missouri. Under the court’s supervision, we were able to learn about the surgeon’s incompetence and misconduct without ever receiving any identifying information, such as his name, address, or place of work. Discovery agreements and protective orders in other states also have ensured that the executioners’ identities remain anonymous while litigants still get the information they need. In the event that Nebraska does adopt a new method of execution, it would be constitutionally permitted to protect the identity of its execution team members. However, as currently drafted, § 83-967 is so vague and overbroad that it offends the First Amendment and invites needless litigation.
The Problem of Pancuronium
Though LB 36 does not specify the drugs that will be used, the Attorney General’s Report suggests a preference for the three-drug protocol. The second drug in this protocol is pancuronium bromide, which completely paralyzes the inmate. The use of pancuronium in executions contributes to the lack of transparency and openness, because it conceals all suffering from witnesses, including the execution team itself. Additionally, the use of pancuronium greatly complicates litigation challenging lethal injection, because the plaintiff can always point to the pancuronium as the reason why apparently peaceful past executions might still have been painful. The inclusion of pancuronium, then, not only greatly increases the risk that the inmate will suffer undetected pain, but also increases the likelihood that time-consuming litigation will stall executions at significant expense to the state.
The Limited Scope of Baze v. Rees
Before concluding, it is worth emphasizing that the Supreme Court’s decision in Baze v. Rees resolved only the constitutionality of the Kentucky procedure at issue in that case. While it did set a legal Eighth Amendment standard against which all lethal injection protocols will be judged, the constitutionality of a given state’s procedure depends on how that state implements its own protocol. As noted above, this turns heavily on the details of implementation, including the training and competence of the execution team members. Significantly, the plaintiff’s lawyers in Baze had failed to gather virtually any important information about how the Kentucky protocol actually worked in practice.[17] Baze was therefore an easy case, because there was no evidence of malfeasance or maladministration. It would be a mistake, though, to assume that litigation in all other states using the same drugs would necessarily be resolved the same way.
Because the constitutionality of each state’s procedure is fact specific, litigation is ongoing in numerous states, and courts are permitting discovery into the details of those states’ procedures. Discovery into the implementation of lethal injection protocols has been ongoing recently in challenges to the lethal injection procedures in Arizona, Ohio, Oklahoma, and the federal government. It is therefore important to understand that merely trying to copy the Kentucky procedure approved in Baze is no guarantee to avoiding litigation or to ensuring a humane execution procedure. Indeed, if there is a lesson to be learned from the litigation thus far, it is that the details of implementation determine an execution procedure’s humaneness and constitutionality as much as the written protocol does.
Conclusion
In closing, I respectfully submit that it would be imprudent for Nebraska to pass a lethal injection statute now. Litigation is still pending in several states around the country, and discovery into those states’ actual practices may well uncover constitutional problems, like those already found in California, Missouri, and Tennessee. Until that litigation is resolved, any new statute adopting lethal injection as a method of execution is almost certain to provoke extended and costly litigation. I therefore respectfully suggest that this legislature study closely both the facts and the costs of such litigation (and the significant financial costs of the death penalty more generally) before voting on LB 36.
Thank you for your consideration.
Sincerely,
Eric Berger
Assistant Professor of Law
University of Nebraska College of Law
Preferred Citation Format: Eric Berger, Thoughts on LB 36: Problems with the Proposed Bill to Institute Lethal Injection in Nebraska, 1 Neb. L. Rev. Bull. 14 (2009), http://lawreview.unl.edu/?p=405.
FOOTNOTES
0. Assistant Professor of Law, University of Nebraska College of Law.↑
1. State v. Mata, 275 Neb. 1, 67, 745 N.W.2d 229, 278 (2008).↑
2. Minor stylisitic and citation edits have been made to my original written testimony.↑
3. 547 U.S. 573 (2006).↑
4. See Neb. Rev Stat. §§ 29-3501 to -3528 (Reissue 2008); Neb. Rev. Stat. §§ 84-712 (Reissue 2008); Neb. Rev. Stat. §§ 84-1408 to -1414 (Reissue 2008).↑
5. See Deborah W. Denno, The Lethal Injection Quandary: How Medicine Has Dismantled the Death Penalty, 76 Fordham L. Rev. 49, 68-69 (2007).↑
6. See LB 36, § 83-965, ¶ 2, 101st Leg., 1st Sess. (Neb. 2009) (“The Director shall create, modify, and maintain a written execution protocol . . . ”).↑
7. Taylor v. Crawford, No. 05-4173-CV-C-FJG, 2006 WL 1779035, at *7 (W.D. Mo. June 26, 2006).↑
8. Morales v. Tilton, 465 F. Supp. 2d 972, 980 (N.D. Cal. 2006).↑
9. Id. at 983 (internal quotation marks and citations omitted).↑
10. See Harbison v. Little, 511 F. Supp. 2d. 872, 895-98 (M.D. Tenn. 2007).↑
11. See, e.g., Oken v. Sizer, 321 F.Supp. 2d 658, 664 (D. Md. 2004) (“Fundamental fairness . . . requires that the execution protocol that will regulate an inmate’s death be forwarded to him in prompt and timely fashion.”).↑
12. Baze v. Rees, 128 S. Ct. 1520, 1537 (2008).↑
13. Mark Dershwitz & Thomas K. Henthorn, The Pharmacokinetics and Pharmacodynamics of Thiopental as Used in Lethal Injection, 35 Fordham Urb. L.J. 931, 931 (2008); Frank Romanelli et al., Issues Surrounding Lethal Injection as a Means of Capital Punishment, 28 Pharmacotherapy 1429, 1433 (2008).↑
14. Other methods of lethal injection would also need to be properly implemented by qualified personnel. Because the Attorney General’s Report seems to anticipate the adoption of the three-drug method, my discussion focuses on that method.↑
15. See, e.g., Dershwitz & Henthorn, supra note 13, at 949.↑
16. See, e.g., Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971); Florida Star v. B. J. F., 491 U.S. 524, 530-41 (1989).↑
17. See Baze, 128 S.Ct at 1527-28.↑
How Extraordinary Lawyers Saved an Ordinary Trial Judge from Mucking Up an Extraordinary Case
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By Richard G. Kopf[0]
When a trial judge like me gets a high-profile case, the sphincter tightens. Visions of Judge Lance Ito[1] and the O.J. murder case dance in the mind like demented sugar plum fairies on meth. Taking the suggestion of the editors of the Bulletin,[2] herewith is a short piece on how great lawyers saved my bacon in a case that made the New York Times editorial page[3] and ultimately the Supreme Court. That case is Gonzales v. Carhart.[4] While I was ultimately reversed when the Supreme Court changed its mind about whether legislators were required to consider the health of women when regulating abortions, I avoided becoming a punch line for late-night comedians. Here is the short version of how the lawyers from both sides saved me and, far more importantly, how they aided the cause of justice.
One day in late October of 2003, one of my law clerks received a call from a New York lawyer representing Dr. LeRoy Carhart and other physicians. It went something like this: We expect President Bush to sign the “Partial‑Birth Abortion Ban Act of 2003,”[5] and we intend to sue the government. We will be seeking an emergency temporary restraining order from Judge Kopf immediately after the President signs the bill, and we would like to give the judge advance warning. The lawyer thought the new case would be assigned to me under our local rules because it was “related”[6] to an earlier “partial-birth” abortion case that I had handled involving Dr. Carhart.[7] In turn, my chambers advised the United States Attorney’s office of the “heads-up” we had received from Dr. Carhart’s lawyer.
I hurriedly read the 2003 Act. I was taken aback. It contained numerous findings specifically refuting the factual and legal conclusions I had come to in Stenberg v. Carhart.[8] Although I am not the brightest bulb in the pack, the implications were apparent, even to me: Congress had officially certified me as an activist dolt or an activist demon. Either way, it would be both unpleasant and awkward determining whether Congress was right.
On October 31, 2003, the lawsuit was filed in the District of Nebraska.[9] As expected, it was assigned to me. A temporary restraining order was requested in anticipation of the President signing the Act. I immediately contacted counsel by telephone to discuss scheduling. While there were many other good lawyers involved, the lead lawyers were Priscilla J. Smith, then Director of the Domestic Legal Program of the Center for Reproductive Rights in New York, and now a visiting fellow at the Yale Law School, for the plaintiffs, and Anthony J. Coppolino, Special Litigation Counsel, United States Department of Justice, Washington, D.C., for the Attorney General.
Ms. Smith and Mr. Coppolino had very distinguished legal careers before they appeared before me.[10] As you will see, those reputations were burnished to a high gloss by their performance in the case about which I write. From beginning to end, these superb lawyers zealously represented their clients while treating each other and everyone else with the highest degree of professionalism, civility, and, against all odds, good humor.
Since the new law would become effective by its terms one day after the President signed it, and since no one knew for sure when the President would put pen to paper, scheduling a hearing on the temporary restraining order in advance was difficult. Keep in mind that the doctors faced criminal liability. More importantly, some abortions could not be delayed awaiting a ruling about whether the banned surgical technique could be used when considering the health of female patients. On the other hand, given the serious question of fetal well-being, the Attorney General could not agree to postpone implementation of the ban while I sorted things out. So, a scheduling compromise on the temporary restraining order was reached.
Counsel for the Attorney General investigated and determined it was probable, although not certain, that the President would sign the bill sometime on November 5, 2003. With that in mind, and with the cooperation of the lawyers, I set a hearing for the morning of November 5, 2003. The lawyers showed up in Lincoln. They were very well prepared. Their respective positions were clearly articulated in rapidly filed affidavits or briefs. At the beginning of the hearing, I was able to give counsel a list of questions that I hoped they would address. I heard their arguments for about three hours. Smith and Coppolino were extremely well versed in the medical and legal aspects of the case. They addressed my questions smoothly and directly.
At the conclusion of the hearing, counsel informed me that the President had still not signed the bill. Accordingly, we adjourned the hearing. One lawyer from each side agreed to wait in Lincoln to be able to advise me if the President acted. Later that day, after the lawyers independently assured themselves that the President signed the bill, they came to my courtroom and jointly represented on the record that the legislation had become law. With that, I temporarily enjoined enforcement of the Act. We had gotten over the first hurdle in a timely, efficient, and fair manner.
In our democracy, no judges (including those who are “activists”) lightly restrain, even temporarily, the enforcement of a law passed by Congress and signed by the President. Thus, once I granted the temporary restraining order, I was determined to move the case along very quickly. To accomplish that goal in a manner that would treat the parties fairly while also producing a reasoned result, I would need the sincere assistance of the lawyers.[11] Boy, did I get it!
On November 11, 2003, I held a telephone conference with counsel. Counsel first told me that both sides hoped I would not use court-appointed independent experts. Earlier, I had suggested to counsel that I might seek independent experts selected with the assistance of the American Association for the Advancement of Science’s “Court Appointed Scientific Experts” program known by the acronym “CASE.”[12] Although agreeing that CASE would likely provide top-notch help, counsel for both sides thought the use of court-appointed experts in this case was a bad idea. They expressed various well-considered reasons for their joint opposition. Considering counsels’ remarks, I decided not to retain my own experts. After resolving the court-appointed expert question, we quickly agreed that (1) the preliminary injunction hearing and trial on the merits would be collapsed into one proceeding, the restraining order continued until further order, and the trial scheduled within 120 days; and (2) since I was unlikely to resolve this case without a trial (that is, not by summary judgment), the parties agreed they would put together their own progression order and submit it to me for consideration. When I entered an order shortly after our telephone conference, I complimented counsel for their “candor and cooperation.” I really meant it.
On December 2, 2003, and with virtually no change, I entered a progression order agreed upon and prepared by counsel. The case then speeded through discovery. Unlike many other “big” cases, the lawyers did not engage in the petty fighting that frequently accompanies discovery. On the contrary, counsel did their pretrial preparation with virtually no input from me. The lawyers’ performance proved, once again, how much I prefer dealing with adults rather than the “children” who show up from time to time claiming to be “trial lawyers” while engaging in all manner of unproductive disputes.
The pretrial conference was held March 22, 2004. I conferred with counsel, and we were able to agree on all the major parts of the pretrial order. Thus, on March 26, 2004, the agreed pretrial conference order was entered.
Among other things, the order allowed me to consider the evidence that would be presented in the New York and California cases even though those cases were scheduled for trial at about the same time. In essence, I was to be given transcripts of testimony and related documentary evidence from the other trials. This was very important. Unlike the New York and California cases, I would have the benefit of evidence produced in my trial and also in the other two trials. Scheduling witnesses to be in New York, Nebraska, and California at about the same time for trial would have been a nightmare. Counsel resolved this problem practically while assuring that the record made in the Nebraska case would be as complete as humanly possible.[13]
I have conducted a lot of pretrial conferences since 1987 when I came to our court. Despite the magnitude of this case, the pretrial conference here was both relaxed and productive. In short, the lawyers had their act together.
On March 31, 2004, the two-week bench trial began. Smith and Coppolino’s performance during that trial was of the highest caliber. That five-star performance was all the more praiseworthy given the national attention that focused on the case. An example illustrates the grace of these fine lawyers while under pressure.
One of the most important non-party witnesses was a physician who resided in a foreign country. The doctor had been brutally attacked on several occasions because the doctor performed abortions. One such attack nearly killed this gentle physician. The doctor had largely withdrawn from public life as a result. The good doctor was understandably worried about appearing at trial. While the doctor was willing to testify, the doctor’s security personnel were concerned that any public appearance would truly endanger the doctor’s life. So, the lawyers helped me work out a unique solution. That solution allowed counsel to thoroughly examine the witness during the actual trial as opposed to taking a deposition. It also allowed me to see and hear the doctor in person. Importantly, the solution did not put the doctor’s life in danger.
With bodyguards, the doctor and the doctor’s spouse flew to Lincoln. The doctor arrived on the first day of trial. Without a public announcement, the trial began with the doctor’s testimony being taken at the Roman Hruska Bar Center rather than at the courthouse. The testimony was given in a conference room that had been reserved by the lawyers and checked by the United States Marshals. The lawyers agreed that the testimony would be transcribed, redacted, and indexed as the testimony of “Dr. Doe.” The only persons present when the testimony was given were the witness, the doctor’s spouse, the lawyers for the parties, court personnel, the doctor’s security detail, and United States Marshals. The testimony went off without a hitch, the doctor came and went without notice, and no explanation was given why the trial “started late.” Counsel had confronted a knotty problem and, working together, arrived at a practical way to resolve it while preserving the interests of their respective clients. They did so while rabid partisans carped from the sidelines.[14]
On September 8, 2004, and after the receipt of wonderfully written briefs, I issued a very long opinion declaring the Partial‑Birth Abortion Ban Act of 2003 unconstitutional.[15] The opinion began with an apology:
AN APOLOGY
In advance, I apologize for the length of this opinion. I am well aware that appellate judges have plenty to do and that long‑winded opinions from district judges are seldom helpful. That admitted, this case is unique.
As might be expected, the two‑week trial presented numerous live witnesses and hundreds of exhibits. That evidence includes a record developed by Congress over many years. Because the parties have also submitted the testimony and evidence presented in two other similar cases, this record is bloated by that additional information. Lastly, and most importantly, since I decide the constitutionality of an Act of Congress that explicitly found a prior decision of this court to be factually unsound, and that law addresses one of the most contentious issues confronting this nation, respect for our national legislature requires more than the usual attention to detail. Nonetheless, I pity the poor appellate judge who has to slog through this thing. I am truly sorry.[16]
The opinion ended with high praise for the lawyers. Those words bear repeating in this inaugural edition of the Bulletin: “The lawyers for both sides were magnificent. They are smart, fair‑minded, candid, civil, professional, ethical, good writers, excellent speakers, and accomplished trial lawyers. They represent the very best the legal profession has to offer, and I sincerely thank them for their work in this case.”[17]
Judges like me frequently fail to acknowledge the debt owed to the great lawyers who appear before them. Those lawyers zealously represent their clients but also understand that they are engaged in a process that is more important than the outcome. Lawyers like Priscilla J. Smith and Anthony J. Coppolino make the American legal system a marvel. For that, they deserve recognition and our thanks.
Preferred Citation Format: Richard G. Kopf, How Extraordinary Lawyers Saved an Ordinary Trial Judge from Mucking Up an Extraordinary Case, 1 Neb. L. Rev. Bull. 1 (2009), http://lawreview.unl.edu/?p=262.
FOOTNOTES
0. United States District Judge for the District of Nebraska.↑
1. See, e.g., Lance Ito, Wikipedia, http://en.wikipedia.org/wiki/Lance_Ito (last accessed Jan. 20, 2009). For my money, the judge was treated unfairly by the press and the pundits. With their antics, the lawyers who appeared before Judge Ito didn’t help him much either.↑
2. The Bulletin is a wonderful idea. Everyone will benefit from this new form of scholarship. See, e.g., Ian Best, Judge Richard Kopf (D. Nebraska): Legal Blogs Will Fill the Practicality Gap (April 18, 2006), http://3lepiphany.typepad.com/3l_epiphany/2006/04/judge_richard_k.html (last accessed Jan. 20, 2009). Incidentally, there is absolutely no ethical reason why judges shouldn’t “blog” or contribute to “blogs.” Id. at question 11.↑
3. Round One for Women’s Health, N.Y. Times, Sept. 13, 2004, available at http://query.nytimes.com/gst/fullpage.html?res=9A00EFD91330F930A2575AC0A9629C8B63 (last accessed Jan. 20, 2009).↑
4. 550 U.S. 124 (2007) (holding that the Partial-Birth Abortion Ban Act of 2003 was facially constitutional even though it did not contain a health exception).↑
5. 18 U.S.C. § 1531 (2004). The Act provides in part that: “Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial‑birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both.”↑
6. See NEGenR 1.4(a)(4)(C)(iii) (West 2008) (“Civil cases are related when they involve some or all of the same issues of fact . . . whether or not any of the cases are closed.”).↑
7. That case became known in the Supreme Court as Stenberg v. Carhart, 530 U.S. 914 (2000) (among other things, holding that a Nebraska statute that banned “partial-birth abortion” was unconstitutional because it lacked a health exception).↑
8. See Partial-Birth Abortion Ban Act of 2003, Pub. L. No. 108‑105 § 2, 117 Stat. 1201 (2003) (codified at 18 U.S.C. § 1531 (2004)).↑
9. At about the same time, other doctors filed suit in the federal courts in New York and San Francisco. Following decisions on the merits adverse to the government, subsequent unsuccessful appeals to the respective Circuits, and the substitution of the new Attorney General, Alberto R. Gonzales, the Supreme Court granted review of the Nebraska and California cases and consolidated them. See Carhart v. Ashcroft, 331 F. Supp. 2d 805 (D. Neb. 2004), aff’d sub nom. Carhart v. Gonzales, 413 F.3d 791 (8th Cir. 2005), rev’d, 550 U.S. 124 (2007); Planned Parenthood Fed’n of America v. Ashcroft, 320 F. Supp. 2d 957 (N.D. Cal. 2004), aff’d sub nom. Planned Parenthood Fed’n of America, Inc. v. Gonzales, 435 F.3d 1163 (9th Cir. 2006), rev’d sub nom. Gonzales v. Carhart, 550 U.S. 124 (2007); see also National Abortion Fed’n v. Ashcroft, 330 F. Supp. 2d 436 (S.D.N.Y. 2004), aff’d sub nom. National Abortion Fed’n v. Gonzales, 437 F.3d 278 (2nd Cir. 2006), vacated, 224 Fed. App’x. 88 (2nd Cir. 2007) (vacating judgment pursuant to Gonzales v. Carhart, 550 U.S. 124 (2007)).↑
10. For example, Ms. Smith was counsel for the successful plaintiffs in an important Fourth Amendment case. See Ferguson v. City of Charleston, 532 U.S. 67 (2001) (state hospital obstetrics patients were arrested after testing positive for cocaine; Supreme Court held that (1) urine tests were “searches” within meaning of Fourth Amendment, and (2) tests, and reporting of positive test results to police, were unreasonable searches absent patients’ consent in view of policy’s law-enforcement purpose). In a similar show of expertise, Mr. Coppolino successfully defended the government in a big national security case. See American Civil Liberties Union v. U.S. Dep’t of Justice, 265 F. Supp. 2d 20 (D.D.C. 2003) (statistical information sought under the Freedom of Information Act regarding use of the Patriot Act could be withheld on national security grounds).↑
11. I had decided that I would handle all pretrial matters myself rather then refer those matters to one of our superb magistrate judges.↑
12. See AAAS, Court Appointed Scientific Experts, http://www.aaas.org/spp/case/case.htm (last accessed Jan. 20, 2009).↑
13. One of the Congressional criticisms of my earlier opinion in Stenberg v. Carhart was that the record upon which I based my conclusions was slim. See, e.g., § 2, 117 Stat. at 1201 (decrying the “very questionable findings issued by the district court judge”). As a result of that criticism, I wanted a record based upon all the available evidence and regardless of where it was being presented. The lawyers from both sides accepted that gargantuan task with aplomb.↑
14. Iowa Congressman Steve King came to Lincoln to attend the trial. After listening to a bit of testimony, he held a press conference on the courthouse steps to criticize “activist judges.” See, e.g., American Judicature Society, Judges Under Fire—Nebraska, http://www.ajs.org/cji/cji_fire.asp#NEBRASKA (last accessed Jan. 20, 2009) (summarizing press coverage by the Omaha World-Herald, the Associated Press, and CBS News between April 9, 2004, and June 3, 2004).↑
15. The manuscript was 474 pages long and the printed version droned on for 241 pages.↑
16. Carhart v. Ashcroft, 331 F. Supp. 2d 805, 809-810 (D. Neb. 2004).↑
17. Id. at 1048.↑
Pick and Nebraska Employment Law: Interpreting Contracts and Good Faith
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By Steven L. Willborn[0]
Nebraska has followed the national trend limiting employment at will. It recognizes oral contracts,[1] limits discharges that violate public policy,[2] and requires employers who promise jobs to deliver them.[3] None of these were recognized during the heyday of employment at will.
Last fall, the supreme court issued Pick v. Norfolk Anesthesia, P.C.,[4] an interesting addition to the development of employment law in Nebraska. In this brief article, I will comment on two aspects of Pick. First, Pick interprets employment contracts in an unusual way. Fortunately, the case isn’t so specific that the Nebraska courts will be bound to continue down that path. I suggest an alternative way of interpreting employment contracts that is preferable and still open to the courts in Nebraska. Second, Pick alerted me to possibilities in Nebraska law that I thought had been foreclosed. I now think the covenant of good faith and fair dealing is recognized in employment contracts in Nebraska, despite language in prior opinions that made me think otherwise. And this is good.
The Case
The plaintiffs in Pick were seven nurse anesthetists who worked for Norfolk Anesthesia. They all worked under oral contracts that paid them about $120,000 each, plus an annual bonus that was paid near the end of the year.
In 2005, the nurse anesthetists all quit on September 16. When the end of the year rolled around, the employer failed to pay them their bonuses claiming that the bonuses only had to be paid if the nurse anesthetists were still employed at the end of the year. So the nurse anesthetists sued. Formally, the claim was a statutory one alleging a violation of the Nebraska Wage Payment and Collection Act (NWPCA). But practically, it was a case about oral contracts. If the oral contracts said that the bonuses had to be paid, then the NWPCA was violated; if not, it wasn’t.[5]
The district court found for the plaintiffs. It held that the oral contracts provided that bonuses had to be paid if the company had a profit at the end of the year, which it did.[6] Importantly, the district court also found that the oral contracts did not require that the nurse anesthetists remain on staff until the end of the year to get their bonuses.[7]
The supreme court reversed in an opinion written by Chief Justice Heavican. The court applied the “commonsense notion that absent an express agreement otherwise, an employee ordinarily forfeits the right to receive a bonus by resigning before the [year] ends.”[8] Here, the court said, there was no express agreement that a bonus would be paid if the employees left before the end of the year. Therefore, since they had resigned in September, they were not entitled to bonuses.
Interpreting Employment Contracts
The unusual thing about the supreme court’s result is that the district court had found as a factual matter that the oral employment agreement did not require an employee to be working at the end of the year to remain eligible for the bonus.[9] Since the supreme court did not and could not properly overrule this factual finding, the court’s holding rests on the thin reed of how express the contract was on this point. The court said that because the oral contracts did not expressly counter the legal presumption that one has to work to the end of the year to earn a bonus, the employees lose.[10] That is an unfortunate result, and it opens the door to more mischief in interpreting employment contracts.
Consider two possible factual situations. First, the actual situation in Pick was that the fact-finder determined that the employment contracts (1) contained only one condition for an employee to receive a year-end bonus (the existence of company profits) and (2) did not require that the employees remain in employment at the end of the year to maintain eligibility for a bonus. The supreme court’s holding was that there is a “commonsense notion”—read that as a legal presumption—that every employment contract providing for a bonus also has a condition that the employee has to be employed at the end of the year to get the bonus and that the legal presumption can be overridden only by an “express” provision. This is unfortunate. It is a throwback to employment at will in its heyday when the courts regularly ignored the parties’ true intentions in favor of hard-to-override legal presumptions that heavily favored employers.[11]
Pick happened to be a case about year-end bonuses, but its analysis opens the door to lots of other post hoc court-discovered clauses in employment contracts. Thus, Pick presents the potential of being even more unfortunate. In most cases, when the parties agree on something, the courts should respect their decision.[12]
But Pick is troubling at a deeper level, too. Consider a slightly different situation than the one presented in Pick. Assume that the district court had found that the bonus only had to be paid if there were year-end profits, but it simply could not determine the parties’ intent on the issue of what should happen if the employees resigned before the end of the year. (Note that this is different than the actual situation in Pick because there the district court found that the agreement had resolved the latter issue.)[13] What should a court do when the parties’ agreement does not resolve an issue like this?
There are two general views on how courts should address this type of issue in employment contracts. First, the courts can use a mimic-the-parties approach where it applies the rule it thinks the parties would have agreed to had they thought about it. If working to the end of the year to qualify for a bonus really is a “commonsense” notion, then that is what the parties would have agreed to and, therefore, that is how the court should decide the issue. But this approach means that the courts have to try to divine the parties’ likely intent. That is difficult in most employment contracts because the parties normally have quite different and opposing interests.
Another approach to this issue is called the penalty-default approach. Instead of trying to divine the parties’ intent, the court’s goal in this approach is to encourage the parties to settle the issue themselves. The general idea is to set the default rule against the party who is most likely to know the rule and act to counter it. That is, to “penalize” that party to encourage it to address the issue in the agreement itself and, in so doing, to disclose valuable information to the other party.[14] In the Pick situation, this would mean setting the rule to disfavor the employer: Employees do not have to work to the end of the year to qualify for a bonus. Employers are repeat actors, they are more likely to know the default rule, they are more likely to be the drafters of the contract, and they are more likely to have legal counsel. If the default is set against the employer, it is likely the employer will know about it and, thus, address it (and counter it) in the employment agreement itself. When this occurs, the court won’t have to guess the parties’ intent—it will know it. And so will both of the parties before any dispute arises.
Again, the penalty-default approach creates incentives for the parties themselves to resolve contested issues, rather than the courts. And, when the parties do that, it makes it less likely the disputes will ever end up in court. Both of those are very good results.
Pick implies that the Nebraska Supreme Court is going to use a mimic-the-parties approach to uncertainty in employment contracts. But Pick doesn’t make a holding on that point. Instead it uses its “commonsense” to insert a provision into an employment contract without any guidance at all about where the provision comes from. Maybe the court was guessing what the parties would have wanted. If so, Pick was using a mimic-the-parties approach. At least, that would provide lower courts, employers, and employees with some guidance about what discovered provisions we might find in employment contracts in the future. But we simply do not know if that’s what the court thought it was doing.
The absence of guidance in Pick has its upside. The court has certainly not bound itself to any particular approach in interpreting employment contracts. When it has another opportunity to do so, I would urge it to consider a penalty-default approach that will encourage employers to reveal valuable information to employees about the terms of their agreement. Over time, this would mean that there will be fewer surprised and disappointed plaintiffs like those in Pick. It would also mean fewer court cases and, accordingly, fewer situations in which courts are put in the uncomfortable position of determining the parties’ agreement for them.
Good Faith in Nebraska
For years, I have told my students that, although Nebraska does pretty well, there is one area where we have failed to keep up with modern trends in employment law. Based on unequivocal language from the supreme court, I would tell them that the court has failed to limit employers when they do not act in good faith.[15] But, I would tell them, it would be hard for the supreme court to deny such a claim if it were presented with a classic case, such as one where an employee had fully earned a bonus, but was fired just before receiving it so the employer could keep the money itself.[16] I did not realize until Pick that the supreme court has been presented with such a case, and that it did find for the plaintiff.[17]
Pick contains a “cf.” cite to Sinnett v. Hie Food Products, Inc.[18] Sinnett presented the court with an extreme version of the classic good faith and fair dealing case. The plaintiff was promised a bonus if he worked an entire year. He began employment on October 1, 1967, so he would have become entitled to the promised bonus if he had worked a full day on September 30, 1968. But the employer fired him during the day on September 30 and denied him the bonus. The Nebraska Supreme Court held that it did not matter that the employment agreement was terminable at will; the employee was entitled to the bonus anyway where he was fired without good cause.[19]
The court did not discuss the theory of its holding, but it has to be the covenant of good faith and fair dealing. Consistent with that view, Sinnett has been cited by other courts and authorities as resting on the covenant, including Fortune v. National Cash Register Co.,[20] the leading case nationally applying the covenant in an employment case.[21]
So what is one to make of a situation like this? On the one hand, in Sinnett, the court found for an employee in a holding that had to be based on the covenant of good faith and fair dealing. But in other cases, the court has held against employees while saying that the covenant does not apply in employment cases.
This is not such a hard problem. It presents standard-fare issues about how to harmonize two lines of cases. So let’s examine what we know for sure, and what is still open to debate.
First, we know that, despite inconsistent language, Nebraska recognizes the covenant of good faith and fair dealing in employment cases. That is the only explanation for the holding in Sinnett. The court did not categorize its decision in Sinnett as one based on good faith and it may call it something else the next time to avoid direct conflict with its no-good-faith language in other cases. But for practical purposes, when the court is faced with a classic good faith claim (the Sinnett case), it is going to decide it as if it were a good faith claim.
Second, we know that Nebraska is not going to interpret the covenant of good faith expansively. In California, the covenant was once interpreted so broadly that it came very close to eliminating the underlying employment-at-will rule.[22] Nebraska will not do that. We know this from White v. Ardan, Inc.,[23] in which the court rejected a good faith claim where the basic argument was that the discharges were improper because an employer had said false and mean things about the discharged employees.
Third, somewhat less certainly, I would predict that Nebraska will follow those states that in Sinnett-like situations permit the covenant to be used only to recover damages, but not to challenge discharge decisions themselves.[24] Recovery of the bonus was the remedy in Sinnett, but that was all that the plaintiff was seeking. So the issue is not resolved. But the skeptical language about the covenant in cases like White v. Ardan makes it likely that the courts will be inclined to limit the cause of action in this way, rather than to treat it more broadly.
But there is much we do not know about good faith claims in Nebraska, too. Although we know the outer boundaries, we do not know the precise dividing line between successful and unsuccessful claims. We know that a classic Fortune case will be successful; that’s Sinnett. We know that a Foley-type claim will fail; that’s White v. Ardan. But we do not know precisely where Nebraska will draw the dividing line. Significantly, we do not know where Nebraska would come down on the other classic type of good faith case: a situation in which an employee is fired for performing the duties required by the job. The justification for finding a violation of the covenant in this situation is that it protects an employee against the catch-22 of being fired for doing what the job requires him to do. But not all states have accepted it in that circumstance.[25]
Of course, many other variations on the good-faith theme also remain to be explored in Nebraska. But the message for Nebraska practitioners is that, despite language to the contrary, good faith claims are alive and well in employment cases. And that’s as it should be. Nebraska courts shouldn’t be in the business of protecting people who act in bad faith.
Preferred Citation Format: Steven L. Willborn, Pick and Nebraska Employment Law: Interpreting Contracts and Good Faith, 1 Neb. L. Rev. Bull. 7 (2009), http://lawreview.unl.edu/?p=328.
FOOTNOTES
0. Dean & Schmoker Professor of Law, University of Nebraska College of Law.↑
1. See, e.g., Mueller v. Union Pac. R.R., 220 Neb. 742, 371 N.W.2d 732 (1985).↑
2. See, e.g., Jackson v. Morris Commc’ns Corp., 265 Neb. 423, 657 N.W.2d 634 (2003); Schriner v. Meginnis Ford Co., 228 Neb. 85, 421 N.W.2d 755 (1988).↑
3. Goff-Hamel v. Obstetricians & Gyns., P.C., 256 Neb. 19, 588 N.W.2d 798 (1999). Goff-Hamel illustrates both the trend away from employment at will and its limits. Not all employer promises to deliver jobs are enforceable—only those where there is detrimental reliance.↑
4. 276 Neb. 511, 755 N.W.2d 382 (2008).↑
5. Despite this, the NWPCA was in the case for an important reason. The NWCPA provides for attorney’s fees; garden-variety contract claims do not.↑
6. The case also involved a dispute about the size of the bonus, but that is not relevant to the issues I am discussing.↑
7. The district court stated both these points clearly and strongly: “The bonus had been previously agreed to by all the parties . . . .” Pick v. Norfolk Anesthesia, P.C., No. CI05-686R at 2 (Dist. Ct. Madison County, Neb. Feb. 15, 2007) (emphasis added). “There is no evidence to establish that one of the requirements for the payment of the bonus was that the plaintiffs work the full year.” Id. at 3 (emphasis added).↑
8. 276 Neb. at 518, 755 N.W.2d at 388. The case actually references the end of the “corresponding bonus period” rather than the end of the year. I use “year” simply as shorthand.↑
9. See supra note 7.↑
10. Justice Gerrard concurred in the decision. His decision was less damaging to employment law than the majority’s, but it is probably even more difficult to justify. He found for the employer because working to the end of the year was “a known and negotiated condition of receiving the bonus.” 276 Neb. at 519, 755 N.W.2d at 388. But this is impossible to square with the district court’s finding that there was “no evidence” to establish such a requirement.↑
11. See, e.g., Skagerberg v. Blandin Paper Co., 266 N.W. 872 (Minn. 1936) (holding that “permanent” employment means at-will employment and cannot be enforced without “extra” consideration). See generally Steven L. Willborn et al., Employment Law: Cases and Materials 63-65 (4th ed. 2007).↑
12. There are exceptions, of course. Most significantly, when third party interests are affected by an employment contract, the courts may intervene. An agreement to murder someone is not enforceable. That is the underlying theory of the modern tort limitations on employment at will. See generally Stewart J. Schwab, Wrongful Discharge Law and the Search for Third Party Effects, 74 Tex. L. Rev. 1943 (1996).↑
13. For two reasons, it will not do to say that the oral contract in Pick was silent on the end-of-the-year issue and the supreme court was merely filling in the gap. First, that’s not consistent with the facts found by the district court. The district court found that the contract did not contain such a requirement. Second, and more broadly, no contract covers everything. If the supreme court can add a term anytime there’s any gap whatsoever, there’s just too much room for interference with the parties’ intentions. (“We find that the parties didn’t talk about whether the plaintiff had to hold his nose and spin three times to qualify for his bonus; the contract required that and the plaintiff didn’t meet the condition.”) There has to be a limit. “Commonsense” is a vague limit, of course, but it doesn’t and can’t carry the load.↑
14. This idea is well received and supported in the legal literature both in employment law specifically and in contract law generally. See Cass R. Sunstein, Switching the Default Rule, 77 N.Y.U. L. Rev. 106 (2002) (discussing the idea in employment law); Ian Ayres & Robert Gertner, Majoritarian vs. Minoritarian Defaults, 51 Stan. L. Rev. 1591 (1999) (discussing the idea in contract law generally). Recently, a popular and easy-to-read book has discussed the value and importance of “choice architecture,” including how to set default rules appropriately. Richard H. Thaler & Cass R. Sunstein, Nudge: Improving Decisions About Health, Wealth, and Happiness (2008).↑
15. See, e.g., Renner v. Wurdeman, 231 Neb. 8, 15, 434 N.W.2d 536, 541 (1989) (“[T]his state continues to deny any implied covenant of good faith or fair dealing in employment termination.”); Jeffers v. Bishop Clarkson Mem’l Hosp., 222 Neb. 829, 833, 387 N.W.2d 692, 695 (1986) (exactly the same quote; different cites).↑
16. This is one of the two classic situations in which the covenant of good faith and fair dealing has been recognized. See, e.g., Fortune v. National Cash Register Co., 364 N.E.2d 1251 (Mass. 1977). The other is a situation where the employer fires an employee for performing the duties required by his job. Willborn, supra note 11, at 183.↑
17. Sinnett v. Hie Food Products, Inc., 185 Neb. 221, 174 N.W.2d 720 (1970). Two things in my defense: First, despite its importance, Sinnett is not mentioned at all in Bob Evnen’s Bible of Nebraska employment law. Robert B. Evnen, Developments in the Law of Employment at Will, in Trying Matters in Employment Law (Neb. Continuing Legal Educ. & Neb. State Bar Ass’n Labor and Employment Section, 2003). Mr. Evnen assures me that it will be in the next edition. Second, as I often tell my students, I’m an academic, not a real lawyer. For real law, it’s always better to rely on real lawyers.↑
18. 185 Neb. 221, 174 N.W.2d 720.↑
19. Id. at 223-224, 174 N.W.2d at 722. Sinnett was cited in Pick because of dicta in the case that said that employees are not entitled to bonuses when they voluntarily quit before the end of the year. Id. at 224, 174 N.W.2d at 722. That only merited a “cf.” cite in Pick both because it was dicta and because it was made in a situation where the agreement was silent, not one like Pick where the fact-finder had found that working to the end of the year was not required by the parties’ contract.↑
20. 364 N.E.2d 1251 (Mass. 1977).↑
21. In addition to Fortune, see Maddaloni v. W. Mass. Bus Lines, Inc., 422 N.E.2d 1379, 1384 (Mass. App. Ct. 1981) (citing Sinnett and saying situation “calls for implication of a covenant of good faith”). See also 14 William Meade Fletcher et al., Fletcher Cyclopedia of the Law of Private Corporations § 6763 n. 8 (perm. ed., rev. vol. 2003) (citing Sinnett to support proposition that some courts have enforced implied covenants of good faith and fair dealing).↑
22. See Foley v. Interactive Data Corp., 765 P.2d 373 (Cal. 1988) (termination without cause after working for an employer for about seven years violates covenant of good faith and fair dealing), later limited by Guz v. Bechtel Nat’l, Inc., 8 P.3d 1089 (Cal. 2000); see also Wagenseller v. Scottsdale Mem’l Hosp., 710 P.2d 1025, 1040 (Ariz. 1985) (accepting California’s version of the covenant would “tread perilously close to abolishing completely the at-will doctrine . . . ”; the court adopted a narrower version).↑
23. 230 Neb. 11, 430 N.W.2d 27 (1988).↑
24. See Wakefield v. N. Telecom, Inc., 769 F.2d 109, 112 (2d Cir. 1985) (covenant may not be used to challenge the “termination per se,” but can be used to claim denied commissions).↑
25. See, e.g., Murphy v. Am. Home Prods. Corp., 448 N.E.2d 86 (N.Y. 1983).↑
SORNA in the Eighth Circuit
admin
By Daniel Hassing[0]
Child exploitation and other sexual crimes are some of the most perverse and pervasive crimes in the United States. Cases such as those involving Elizabeth Smart and Jessica Lunsford grab headlines and demonstrate the depravity of some criminals.[1] In an effort to combat such offenders, Congress enacted the Adam Walsh Child Protection and Safety Act of 2006.[2] Title I of the Act is called the Sex Offender Registration and Notification Act (SORNA).[3]
In the past year, the Eighth Circuit Court of Appeals has decided two cases involving challenges to SORNA.[4] Both cases involved criminal defendants who argued, among other things, that provisions of SORNA violated the Commerce Clause. These cases are United States v. May[5] and United States v. Howell.[6] In both cases, the Eighth Circuit upheld the challenged provisions of SORNA.
The purpose of this commentary is to explain the Eighth Circuit’s decisions in May and Howell. This commentary contains four parts. The first is a summary of the facts and holdings of May and Howell. The second is a very brief overview of Commerce Clause jurisprudence. The third examines how courts across the country have applied that jurisprudence to SORNA. The last section explains what May and Howell mean for practitioners in the Eighth Circuit.
The Cases
May and Howell implicate two provisions of SORNA.[7] To briefly summarize the relevant statutes, § 16913 requires that sex offenders keep authorities apprised of their whereabouts. The offender must also alert authorities in any new jurisdiction to which the offender relocates. Section 2250 provides for criminal sanctions if the offender fails to update the registration.[8]
David May initially pled guilty to misdemeanor sexual conduct in Oregon. As required, he registered as a sex offender. However, he then moved to Maryland where he failed to register. After being convicted and serving prison time for that failure in Maryland, May eventually relocated back to Oregon, where he again failed to register and was again convicted for it. May then moved to Iowa where he again failed to register. This led to his arrest and the present case.
May challenged SORNA on numerous grounds, including an assertion that SORNA went beyond Congress’ commerce power. The Eighth Circuit disagreed with May’s claim. In reaching its conclusion, the court relied heavily on the language of § 2250, specifically, the “jurisdictional hook” which required that May move in interstate commerce in order to be convicted.[9] The court further explained that Congress has long been able to regulate interstate commerce as means of preventing evil and immorality.[10] Based on this reasoning, the court concluded that “SORNA contains a sufficient nexus to interstate commerce.”[11]
Howell involved the consolidated appeals of two men convicted under SORNA and the corresponding criminal statute. Both defendants, like May, had previously been convicted of sex crimes, moved between several states, and ultimately failed to register.
In Howell, the Eighth Circuit, relying on May, did not independently analyze the constitutionality of § 2250 and instead focused on § 16913. In upholding § 16913, the court relied on two constitutional provisions—the Commerce Clause and the Necessary and Proper Clause.[12] The court’s analysis was relatively simple and straightforward. It posited that since § 2250 is a legitimate end under the Commerce Clause, Congress could take reasonable steps to further its goals. The court then went on to say that the purpose of SORNA was to track sex offenders who move interstate. Many offenders move in order to exploit the patchwork, state based system of sex offender registration. The registration requirement of § 16913 was thus constitutional as it was “a necessary part of a more general regulation of interstate commerce.”[13] Essentially, it was deemed necessary because the court felt that without the federal registration requirement, the entire statutory scheme could potentially be undermined.
The Commerce Clause
Under the Commerce Clause, Congress can regulate three categories of interstate commerce:
First, Congress may regulate the use of channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, even though the threat may come only from intrastate activities. Finally, Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce.[14]
Each of these areas will be briefly examined in turn.[15]
Under the first prong, Congress may regulate the channels of interstate commerce. Channels of interstate commerce include highways, canals, and hotels, among others. In Brooks v. United States,[16] the Court upheld a federal statute criminalizing the interstate transportation of stolen automobiles. The Court stated that “Congress can certainly regulate interstate commerce to . . . [forbid] and [punish] the use of such commerce as an agency to promote immorality, dishonesty, or the spread of any evil or harm . . . .”[17] Thus, the Court has deemed interstate criminal activity to be a proper target of the Commerce Clause.[18] The Court approved a statute banning goods produced under exploitative labor conditions from interstate commerce in United States v. Darby.[19] Congress can even regulate hotels as a channel of interstate commerce. In Heart of Atlanta Motel, Inc. v. United States,[20] the appellant wished to deny African-Americans the use of his hotel in contravention of the Civil Rights Act of 1964. He was denied this wish with the Court declaring that “[t]he transportation of passengers in interstate commerce . . . is within the regulatory power of Congress, . . . and the authority of Congress to keep the channels of interstate commerce free from immoral and injurious uses has been frequently sustained, and is no longer open to question.”[21]
The second prong allows Congress to regulate the “persons and things in interstate commerce, even though the threat may come only from intrastate activities.”[22] In the Shreveport Rate Cases,[23] the Court assessed Congress’ attempt to check discriminatory shipping prices in Texas and Louisiana; intrastate shipments were far cheaper than interstate shipments. The appellants argued that Congress was powerless to regulate the intrastate rates. The Court disagreed and upheld Congress’ power.[24] It was immaterial that the regulation would necessarily control intrastate pricing as well.[25] In Southern Railway Co. v. United States,[26] the Court upheld a law requiring certain safety requirements to be implemented on any train or locomotive used on any railway engaged in interstate commerce. The rail company argued it went too far as it would include cars and trains that only shipped goods intrastate. The Court refused to follow this line of reasoning, stating that “it is no objection . . . that the dangers intended to be avoided arise . . . out of matters connected with intrastate commerce.”[27]
The third prong allows Congress to regulate those activities that have a substantial effect on interstate commerce. This prong has had a long evolution and the test for the prong has changed over time.[28] However, there are three principal cases that presently control. These are United States v. Lopez,[29] United States v. Morrison,[30] and Gonzales v. Raich.[31] The defendant in Lopez was convicted of possessing a firearm on school grounds. He challenged his conviction on the grounds that the federal criminal statute exceeded Congress’s authority under the Commerce Clause. The Supreme Court agreed and, in overturning his conviction, made clear that the commerce power did have its limits;[32] congressional statutes relying on the third prong would only be upheld if they substantially affected interstate commerce.[33] The act challenged in Morrison provided a federal civil remedy for women who were victims of gender-motivated crimes. As in Lopez, the Court again struck down this law, declaring that it did not contain a sufficient nexus to interstate commerce; again the Court found the government’s alleged effect on interstate commerce to be too attenuated. California’s decision to allow marijuana to be used for medicinal purposes was the focal point in Raich. While the state had legalized marijuana for such purposes, the federal government had imposed an outright prohibition on the drug—criminalizing its use and possession for any purpose. The respondents in the case, patients who were prescribed marijuana, challenged the federal law. The Court sided with the federal government and upheld the law, focusing on the economic nature of marijuana use,[34] thus deeming the law to have a sufficiently substantial effect on interstate commerce.
Taken together, these cases illustrate that the third prong commerce power will not be as wide as it once was. After Lopez, Professor Tribe suggested that the operative question might not deal with the quantity of effects, but rather the nature of the underlying activity.[35] Tribe argues that the key may be whether or not the activity is economic. Indeed, in both Lopez and Morrison, the Court considered whether or not the activity was economic.[36] This distinction also makes it possible to square Raich with these decisions, as there is a commercial market for marijuana. Thus, at least presently, it appears that only conduct economic or commercial in nature can be regulated under the third prong.
Other Courts’ Approaches to SORNA
When analyzing SORNA under the framework established by prior Commerce Clause cases, the vast majority of courts have found § 2250 and § 16913 to be constitutional[37] while very few have found otherwise. Those courts that have found SORNA to be valid under the Commerce Clause have relied to varying degrees on all three prongs.
The most convincing defenses of SORNA rely on its jurisdictional hook to uphold the law under either the first or second Lopez prong. In United States v. Ditomasso,[38] a district court upheld § 2250 by saying that the government was required to prove there was interstate travel to sustain a conviction. Without interstate travel, there is no federal offense. The court also countered the defendant’s claim that anything could be reached by merely asserting a jurisdictional hook by noting that the regulated activity, registration, was closely connected to the jurisdictional element. Interstate travel was not enough; the defendant also had to fail to register after moving interstate.[39] The court in United States v. Hinen[40] found that § 2250 was valid under the second prong. The court also noted that when a jurisdictional element is present, the regulated activity need not “substantially affect” commerce; a de minimis effect is sufficient.[41]
Courts have also upheld the provisions under the third Lopez prong.[42] In less-than-thoroughly explained reasoning, one court found that there was a rational basis for finding that there was a substantial effect as “Congress’s desire [was] to track sex offenders as they move between states, in order to promote the public safety.”[43] United States v. Hacker[44] also jumps to a conclusion of constitutionality. There the court simply assumed that because Congress was tracking people who move between states, there was a rational basis for assuming § 2250 has a substantial effect on interstate commerce.
A few courts that have examined SORNA have found, at least parts of it, to be unconstitutional. United States v. Powers[45] found § 2250 to be unconstitutional. The court found § 2250 to be invalid under the first two prongs as the interstate travel per se was not regulated; sex offenders were free to travel and would not have to register as long as they did not change anything listed under § 16913.[46] The court also rejected the argument that § 2250 had a substantial effect on interstate commerce, discounting the jurisdictional hook by saying “[t]he Commerce Clause . . . require[s] more than statutory ‘lip service’ to interstate commerce.”[47] The court in United States v. Hall, while finding § 2250 itself to be permissible, found § 16913 to be unconstitutional as it did not fall into any of the Lopez prongs.[48] United States v. Waybright[49] also found § 2250 to be constitutional but refused to deem the registration requirement constitutional. The court rejected both the Commerce Clause argument and the Necessary and Proper Clause argument. In striking down the latter, the court held that reliance on Raich was incorrect as that case dealt with an economic regulation.[50] The court also claimed that the end furthered by the registration requirement was not proper under the clause. The court, relying on the statutory language of SORNA as a whole, held that the primary purpose of SORNA was to register sex offenders, not to track them across states. Thus, since the ultimate goal had nothing to do with interstate commerce, the reliance on the Necessary and Proper Clause was misplaced.[51]
What May and Howell Mean
May and Howell signify that, when assessing a statute under the Commerce Clause, the Eighth Circuit is going to give significant weight to jurisdictional elements in a statute. Relying on cases such as Brooks for the proposition that Congress can keep the channels of interstate commerce clear of immoral behavior, the Eighth Circuit will be highly deferential to any statute containing a jurisdictional hook. Further, it appears that even criminal statutes aimed at crimes that are not in any sense commercial will be easily sustained under the Eighth Circuit’s ruling. As Professor Tribe noted, the changes in the Commerce Clause jurisprudence brought forth by Lopez, Morrison, and Raich do not affect the analysis under the first two Lopez prongs.[52] Judging by the arguments put forward against SORNA across the country, practitioners have, however, apparently failed to recognize this.
Unfortunately, the Eighth Circuit’s reasoning in Howell is likely to perpetuate this misunderstanding. The problem is the court’s reliance on Justice Scalia’s concurring opinion in Raich.[53] Raich was a third prong case, meaning that the activity to be regulated had to have a substantial effect on interstate commerce. Although the intrastate activity sought to be regulated did not have such an effect, it was deemed to be necessary to regulate it because the entire regulatory framework might collapse otherwise. While the court’s cite to Raich is by no means incorrect, the result could be reached in a manner that does not rely on third prong cases and thus cause unnecessary confusion.
As was made clear in Lopez, Morrison, and Raich, Congress can regulate three areas of activity under the Commerce Clause.[54] In May, it was determined that § 2250 was a valid regulation under either the first or second prong.[55] The Necessary and Proper Clause of the Constitution allows Congress to take means reasonably adapted to a legitimate end, even if Congress was not given those powers, as long as there is no separate constitutional bar to the acts.[56] As was stated in Howell, the purpose of SORNA is “to track the interstate movement of sex offenders.”[57] Tracking the interstate movement of people, i.e., instrumentalities of interstate commerce, is clearly a legitimate end of the Commerce Clause.[58] And since there is no bar to a registration requirement found in the Constitution, it would appear that § 16913 is an appropriate use of the Necessary and Proper Clause. Thus, rather than relying on Raich, and opening the door to the economic/non-economic arguments put forward in the Eighth Circuit and other courts, the court could have simply cited to Brooks, Lopez, and McCulloch, and avoided the issue and confusion.
In sum, criminal defense lawyers in the Eighth Circuit whose clients are charged with federal crimes including a jurisdictional hook face an uphill battle; it is unlikely that they will be able to successfully challenge the statute under the Commerce Clause. Arguments that their clients’ cases resemble Lopez or Morrison are likely to fall flat.
Preferred Citation Format: Daniel Hassing, SORNA in the EIghth Circuit, 1 Neb. L. Rev. Bull. 22 (2009), http://lawreview.unl.edu/?p=431.
FOOTNOTES
0. Online Editor, Nebraska Law Review. J.D. candidate, expected May 2010. I would like to thank Michelle Salter, Stephanie Mahlin, and Patrick Barackman for reviewing drafts.↑
1. See Elizabeth Smart, Wikipedia, http://en.wikipedia.org/wiki/Elizabeth_Smart (last accessed Feb. 23, 2009); Jessica Lunsford, Wikipedia, http://en.wikipedia.org/wiki/Jessica_Lunsford (last accessed Feb. 23, 2009).↑
2. Pub. L. No. 109-248, 120 Stat. 587 (2006).↑
3. 42 U.S.C.A. §§ 16901-16991 (2008).↑
4. The Eighth Circuit is not alone. SORNA has been challenged in several courts across the country. See Tracy Bateman Farrell, Annotation, Validity, Construction, and Application of Federal Sex Offender Registration and Notification Act (SORNA), 42 U.S.C.A. §§16901 et. seq., Its Enforcement Provision, 18 U.S.C.A. §2250, and Associated Regulations, 30 A.L.R. FED. 2D 213, §§ 17,18 (2008).↑
5. 535 F.3d 912 (8th Cir. 2008).↑
6. No. 08-2126 (8th Cir. Jan. 13, 2009).↑
7. 18 U.S.C. § 2250 (2006) and 42 U.S.C.A. § 16913 (2008).↑
8. The actual language of § 2250 is pivotal in the court’s analysis. It states:
(a) In general.—Whoever—
(1) is required to register under the Sex Offender Registration and Notification Act;
(2)(A) is a sex offender as defined for the purposes of the Sex Offender Registration and Notification Act by reason of a conviction under Federal law (including the Uniform Code of Military Justice), the law of the District of Columbia, Indian tribal law, or the law of any territory or possession of the United States; or
(B) travels in interstate or foreign commerce, or enters or leaves, or resides in Indian Country; and
(3) knowingly fails to register or update a registration as required by the Sex Offender Registration and Notification Act;
shall be fined under this title or imprisoned not more than 10 years, or both.↑
9. The court found § 2250 valid under all of the Lopez prongs. United States v. May, 535 F.3d 912, 921 (2008). See also infra notes 14-36 and accompanying text (explaining Lopez prongs). However, the court provided reasoning relating only to the first two prongs in May.↑
10. May, 535 F.3d at 921-22.↑
11. Id. at 922.↑
12. The Necessary and Proper Clause of the Constitution allows Congress to use means reasonably adapted to a legitimate end, even if Congress was not explicitly given them. As was said in McCulloch v. Maryland, “[l]et the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” 17 U.S. (4 Wheat.) 316, 421 (1819).↑
13. United States v. Howell, No. 08-2126, slip op. at 13-14 (8th Cir. Jan. 13, 2009) (quoting Gonzales v. Raich, 545 U.S. 1, 37 (2005) (Scalia, J., concurring)).↑
14. United States v. Lopez, 514 U.S. 549, 558-59 (1995) (citations omitted).↑
15. For a discussion of preceding commerce clause jurisprudence, see id. at 552-60. A full discussion of the evolution of the Commerce Clause jurisprudence is beyond the scope of this commentary.↑
16. 267 U.S. 432 (1925).↑
17. Id. at 436.↑
18. For other criminal statutes that have been upheld under the Commerce Clause, see Lee Epstein & Thomas G. Walker, Constitutional Law For a Changing America 438-41 (4th ed. 2001) and John E. Nowak & Ronald D. Rotunda, Constitutional Law 189-92 (6th ed. 2000).↑
19. 312 U.S. 100 (1941). Darby is also relevant to the third prong. The law in question in the case also dealt with working conditions mandated by Congress. These provisions of the law were upheld on the basis of their relation to interstate commerce.↑
20. 379 U.S. 241 (1964). Heart of Atlanta, like Darby, is also a very important case in the jurisprudence of the third prong.↑
21. Id. at 256 (quoting Caminetti v. United States, 242 U.S. 470, 491 (1917)).↑
22. United States v. Lopez, 514 U.S. 548, 558 (1995).↑
23. 234 U.S. 342 (1914).↑
24. “The use of the instrument of interstate commerce in a discriminatory manner so as to inflict injury upon that commerce, or some part thereof, furnishes abundant ground for Federal intervention.” Id. at 354.↑
25. “It is immaterial, so far as the protecting power of Congress is concerned, that the discrimination arises from intrastate rates as compared with interstate rates.” Id. at 354.↑
26. 222 U.S. 20 (1911).↑
27. Id. at 27.↑
28. See 1 Laurence H. Tribe, American Constitutional Law 807-24 (3rd ed. 2000).↑
29. 514 U.S. 549 (1995).↑
30. 529 U.S. 598 (2000).↑
31. 545 U.S. 1 (2005).↑
32. In the years between 1937 and 1995, the Court engaged in an extremely deferential view of Congress’ exercise of power under the Commerce Clause. During this time, “striking down a congressional attempt to invoke the commerce power as outside the affirmative scope of that power was a de facto impossibility.” Tribe, supra note 28, at 816.↑
33. The government argued that guns in schools would lead to less educated graduates who in turn would be less productive in society. The government also argued that the cost of violent crime was high and that, because of this, gun possession in schools thus had a substantial effect on interstate commerce. The Court rejected these arguments as the effects appeared to be too attenuated. Lopez, 514 U.S. at 563-64.↑
34. Raich, 545 U.S. at 26.↑
35. Tribe, supra note 28 at 819.↑
36. “[A] fair reading of Lopez shows that the noneconomic, criminal nature of the conduct at issue was central to our decision in that case.” United States v. Morrison, 529 U.S. 598, 610 (2000).↑
37. See, e.g., United States v. May, 535 F.3d 912 (8th Cir. 2008). See also Farrell, supra note 4 at § 17 (2008) (listing several courts that have held SORNA to be constitutional under the commerce clause).↑
38. 552 F. Supp. 2d 233 (D.R.I. 2008).↑
39. Id. at 247.↑
40. 487 F. Supp. 2d 747 (W.D. Va. 2007).↑
41. Id. at 758. The court found this standard to be satisfied as the law required the person to move across state lines. See also United States v. Mason, 2008 WL 1882255, *3 (M.D. Fla. April 24, 2008) (holding SORNA to be constitutional, stating “a statute containing a jurisdictional element is constitutional so long as the crime has a minimal nexus with interstate commerce”).↑
42. Although the courts that have upheld § 16913 and § 2250 under the third Lopez prong have not provided thorough reasoning, there is a good case for such an argument. Section 2250 is only applicable when, along with other things, § 16913 requires an updated registration and the defendant fails to do so. Section 16913 requires registration only when there has been a change in name, residence, employment, or student status. Several of these could be argued to have an effect on interstate commerce as employment and relocation are economic activities. See supra notes 28-36 and accompanying text.↑
43. United States v. Madera, 474 F. Supp. 2d 1257, 1265 (M.D. Fla. 2007). The court was not even clear what prong it was applying. One can assume it was applying the third prong based on the language it quoted from Raich, a third prong case. However, the court’s explanation of why it found a substantial effect was conclusory. United States v. Holt, No. 3:07-cr-0630-JAJ, 2008 WL 1776495, at *3 (S.D. Iowa April 14, 2008) echoes the scant reasoning put forward in Madera.↑
44. No. 8:07CR243, 2008 WL 312689 (D. Neb. Feb. 1, 2008).↑
45. 544 F. Supp. 2d 1331 (M.D. Fla. 2008).↑
46. Id. at 1333-34.↑
47. Id. at 1335.↑
48. United States v. Hall, 577 F. Supp. 2d 610 (N.D.N.Y. 2008). However, the court in Hall did not consider § 16913 in light of the Necessary and Proper Clause. Also, seeing as the registration requirement was invalid, a conviction under § 2250 would be invalid as the registration could not be constitutionally required.↑
49. United States v. Waybright, 561 F. Supp. 2d 1154 (D. Mont. 2008).↑
50. Id. at 1166.↑
51. Id. at 1165-67. United States v. Guzman, 582 F. Supp. 2d 305 (N.D.N.Y. 2008), engages in a similar analysis to Waybright in striking down the Necessary and Proper Clause argument.↑
52. Tribe, supra note 28 at 827.↑
53. United States v. Howell, No. 08-2126, slip op. at 8 (8th Cir. Jan. 13, 2009).↑
54. See supra note 14 and accompanying text.↑
55. See supra notes 9-11 and accompanying text.↑
56. See supra note 12.↑
57. Howell, No. 08-2126 at 11.↑
58. There has been some debate about what the “end” of SORNA is. United States v. Waybright, 561 F. Supp. 2d, 1154, 1166 (D. Mont. 2008), argues that the registration itself is the end, and not just a means of furthering another legitimate end. Since intrastate regulation itself is not a valid aim of the Commerce Clause, the court in Waybright found § 16913 to be unconstitutional. In Howell, Judge Riley dedicated several paragraphs to refute the claim that registration was the end itself rather than a means to facilitate the interstate tracking of sex offenders.
The text of the Act lends credence to the Waybright position. 42 U.S.C.A. § 16901 reads that the Act “establishes a comprehensive national system for the registration of those offenders.” However, as all states currently have their own registries, it goes to reason that a national registry would be designed to keep track of an offender as he moves from one state to another.↑
White Robes and Black Robes: The Nebraska Supreme Court’s Vacatur in State v. Henderson
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By Daniel J. Hassing[0]
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.
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.↑
Preventing and Suppressing Gang Crimes through Comprehensive Anti-Gang Legislation: A Solution to Nebraska’s Gang Problem
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[EDITOR’S NOTE: From time to time, the Bulletin will publish “white papers.” These papers come from a number of student sources; they could be seminar papers, class papers, or case notes that have not yet been selected for publication. The Bulletin‘s goal in publishing these materials is to provide practitioners with the background research that was done for the paper. In other words, we hope to create a depository of research that was done for different purposes. We hope that readers of the Bulletin will find these papers useful and interesting.
These papers have not undergone any substantial editing by the staff prior to publication.
There is no citation format for our white papers. It is not our intention that they be cited. We envision our white papers solely as a starting point from which practitioners and others can launch their own research.
This paper was written to fulfill a requirement for the Criminal Sanctions Seminar. All students at the College of Law must complete a seminar in order to graduate.
The following is a summary of the article. To read the full article, one must follow the (.pdf) hyperlink.]
At the present time, Nebraska does not have criminal laws on the books that explicitly pertain to gang-related crimes. Senators in the 101st Legislature, however, recently introduced anti-gang legislation: Senator Ashford introduced LB 35, Senator Friend introduced LB 63, and Senator Pirsch introduced LB 508. This seminar paper, written before the introduction of the above legislative bills, explores Nebraska’s gang problem and proposes comprehensive anti-gang legislation for Nebraska. To establish the necessity of anti-gang legislation in Nebraska, the paper provides some basic background information: First, the paper considers the definition of “gang” and the causes of gang formation and successful gang recruitment. Then, the paper contemplates the unique gravity of gang crime, spotlights several national gangs found in Nebraska, and explains the relatively new phenomenon of international gangs such as MS-13 and the 18th Street gang, which also operate within Nebraska’s borders. Finally, the paper takes a brief look at some gang statistics in Nebraska to demonstrate the breadth of Nebraska’s gang problem. The paper then shifts focus to how states have battled gang-related crime and surveys surrounding states’ anti-gang legislation. Finally, the paper concludes that Nebraska should enact anti-gang legislation, provides the rationale for doing so, and proposes the “Nebraska Street Terrorism Enforcement and Prevention Act”. The proposed Act would (1) create a substantive criminal offense for “Active Gang Participation”, (2) enhance the penalties for enumerated gang-related crimes, (3) create substantive offenses for gang recruitment and retention activities, and (4) amend Nebraska’s Unlawful Discharge of a Firearm statute to include a substantive drive-by shooting offense.
FORE! A Heads-Up to Nebraska Real Estate Attorneys After the Skyline Woods Golf Course Case
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By Daniel J. Hassing[0]
This past December, the Nebraska Supreme Court made a landmark decision in Nebraska real estate law in Skyline Woods Homeowners Ass’n v. Broekemeier.[1] In this decision, for the first time, Nebraska recognized implied restrictive covenants[2] inferred from a common scheme of development. Such covenants are not recorded expressly in the chain of title, but rather are inferred from a common plan affecting the property and its surroundings. This decision has the potential to set some costly traps for the unwary homebuyer and real estate attorney.
This commentary seeks to explain the rationale and importance of the court’s decision in Skyline Woods. It contains three parts. The first explains and summarizes the supreme court’s decision in Skyline Woods. The second seeks to elucidate the extremely confusing law of real covenants. The last section seeks to advise both practitioners and homebuyers of the potential pitfalls that Skyline Woods sets for the unscrupulous homebuyer.
Skyline Woods Homeowners Association v. Broekemeier
The dispute in the case stems from a bankruptcy sale[3] and the purchasers’ subsequent refusal to maintain the property as a golf course. Residents of the surrounding neighborhood sought an injunction requiring the purchasers—David Broekemeier, Robin Broekemeier, and their company, Liberty Building Corporation[4]—to maintain the property as a golf course.
The property in question changed hands several times over the past forty years. Most importantly, it was owned for a period of time by Dennis Circo, who also owned a significant amount of land surrounding the course. Circo planned and developed the surrounding area as a residential neighborhood with the golf course at the heart of the development. Circo later sold the course and it eventually wound up in the possession of Skyline Country Club, which filed for bankruptcy in 2004.[5]
Over its history, a number of documents were drafted relating to the land’s continued use as a golf course. None of these documents were binding. In 1976, a land contract—not a deed—was recorded in which the land was identified as a golf course and which bound the buyer to maintain the land as such.[6] However, it is not clear if the contract was ever carried out and, in any case, the original seller was again in possession of the land a short time later. From 1981 through 1990, a series of covenants were recorded for the benefit of the golf course. These required the neighboring homes to keep their yards clean, to install shatterproof windows, and to refrain from removing trees or installing fences, among other things.[7] Additionally, there was also an easement allowing golf balls to cross the yards of the surrounding homes.[8] These covenants and the easement burdened the surrounding homes but there was never a covenant burdening the land that constituted the course. Next, an unrecorded purchase agreement required that a buyer maintain the property as a golf course.[9] Finally, there were two recorded memoranda of understanding that attempted to incorporate by reference the terms of the unrecorded purchase agreement.[10]
The court in Skyline Woods began its analysis with a cite to Wessel v. Hillsdale Estates, Inc.[11] In Wessel, the covenant itself was express, but the precise scope of the covenant was not, and the court had to determine the meaning of it.[12] Somewhat surprisingly, the Wessel court read the covenant to cover a much wider area than the developer had argued for. Such a reading seems to contradict the general policy in American law that favors the free and unrestricted use of land.[13] In any case, the court in Skyline Woods found precedent for implying restrictions on land use based on a common scheme of development.
After examining Wessel, the court then turned its attention to other states. In surveying the law of other jurisdictions, the court stated that when faced with a common scheme or plan for development, other courts “have invariably found an enforceable restrictive covenant where it is sufficiently implied by the conduct and expectations of the parties and any documents of record or it is known to the buyer.”[14]
The court ultimately decided that implied restrictive covenants could be enforced against a subsequent purchaser if the following elements were established: 1) there must have been a common grantor of the land; 2) who had a common plan of development for the land of which the restrictions are a part; and 3) the subsequent purchaser must have had some form of notice of the restrictions.[15]
Applying the law to the present facts, the court determined that defendants were bound by the covenants. For one, there was substantial evidence of the common grantor’s common plan for the area. There was testimony from Circo evincing his intent to form a residential neighborhood with a golf course at its heart. In fact, Circo advertised the golf course as one of the benefits of his new subdivision to potential buyers. There were also the covenants burdening neighboring homes that required them to take steps to protect their homes from golf balls and to keep their yards clean to maintain the pristine look of the course. Finally, the court determined that the defendants had inquiry notice of the restrictions. The defendants knew, or should have known, of the restrictions on the neighboring homes and knew that the property had long been used as a golf course. Mr. Broekemeier had, in fact, used the proximity of the golf course when marketing his own nearby properties. There was also the defendants’ title insurance policy that specifically excluded easements that were not part of the record as well as rights or interests that were not recorded but could be ascertained by an inquiry of people in possession of the property.[16] Taken together, the court ruled that these facts were such that a prudent person would have inquired further into the property, and as such, the defendants had inquiry notice of the restriction. As all of the elements were met, the court found that the defendants were bound by the implied restrictive covenants.
A Brief Look at the Law of Restrictive Covenants
This section will give a very brief overview of restrictive covenant law and then will examine how this law has been applied in Nebraska to restrict the use of land.
Restrictive covenants are a means of privately controlling the use of land.[17] The law of restrictive covenants and related concepts is essentially a mixture of contract law, real property law, and equity.[18] “A covenant is an agreement or promise of two or more parties that something is done, will be done, or will not be done.”[19] This definition sounds in contract, which is where the concept of covenants originated.[20] Early on, the restrictive covenant was restricted to use in the landlord/tenant context where the promise could be attached to the interest and would not bind third parties.[21] This later changed as restrictions were attached to conveyances in fee simple with the intent to bind further successors.
Such a practice ran contrary to contract law at this time as neither the benefit nor the burden of a contract was assignable and English courts acted to restrict this application. The courts ruled that if the covenant related to something not yet in existence, the covenant must expressly bind “assigns” and the covenant must actually “touch and concern” the land; covenants having incidental effects on the land would not be enforced.[22] English courts emphasized strict formality and if the covenant did not use the proper terminology, it would not be enforced.[23] American courts eventually developed three requirements for a restrictive covenant to be enforceable at law: 1) there must be an intent for the covenant to run with the land; 2) the covenant must touch and concern the land; and 3) there must be some form of privity of estate.[24]
Successive court rulings further limited the ability of parties to enforce binding restrictions on land at law. Equity soon stepped in to enforce such promises and the resulting interest came to be known as an equitable servitude. The required elements to enforce an equitable servitude were different from those needed to enforce a covenant at law. For a covenant to run in equity the intent and “touch and concern” requirements must be met. But instead of the privity requirement of a covenant, a servitude requires only that the party to be burdened had notice of the restriction.[25]
Although the concepts of covenants and equitable servitudes were developed to perform the same function, the two required different elements to be enforceable. This situation stems from the historic separation of courts of law and equity. In light of the current situation, which results in much confusion, commentators have been calling for reconsideration of the rules and have proposed a unified concept of servitudes. This proposal would greatly simplify the creation of servitudes and seeks to discard “several of the 19th century technical roadblocks and arbitrary prohibitions” that frustrated the parties’ intent to create a servitude or covenant.[26] Under the Restatement, a servitude is created if the owner of the lot to be burdened makes a contract or a conveyance intended to create a servitude[27] or conveys a lot in a general plan development that is subject to recorded declarations of servitudes.[28] The simplified approach put forward by the Restatement is surely more desirable as it does not allow outdated rules and concepts to interfere with the parties’ intent.
Nebraska has adopted the common law rule with regards to real covenants and equitable servitudes. Three elements are required to establish a covenant that will be binding on future landowners.[29] First, the original grantor and grantee must intend for the covenant to run with the land. Second, the covenant must touch and concern the land that it burdens.[30] Finally, the party claiming the benefit of the covenant must be in privity of estate with the party that is burdened by the covenant.[31] With regards to equitable enforcement of a servitude, “[c]ontractual promises with respect to the use of land, which under the rules of equity are specifically enforceable against the promisor, are effective against the successors in title or possession if the successor has actual or constructive notice of the promise.”[32]
Courts in Nebraska had enforced equitable restrictions on land in the absence of recorded documents prior to Skyline Woods. The touchstone is whether the party to be bound had notice of the restrictions. For example, in How v. Baker,[33] the plaintiffs sought to enjoin amendment of covenants claiming that they bought their properties before the original covenants were recorded. Since there were no preexisting covenants, the plaintiffs argued that there was nothing that the defendants could legally amend and thus they could not impose restrictions on plaintiffs’ properties. The court ruled that although the covenants were not yet recorded when the plaintiffs bought their property, they had been filed with the county and the plaintiffs had notice of this. The court relied on Nebraska’s recording statute,[34] which states that a deed or other interest in land takes effect at the time it is recorded as to all parties who do not have notice. And since the plaintiffs did have notice, the covenants were effective without being recorded.
What Skyline Woods Means for Real Estate Attorneys in Nebraska
Skyline Woods has practical, and perhaps severe, implications for attorneys in Nebraska. While the theoretical implications may not be terribly significant, the practical implications have the potential to set some very costly traps for real estate attorneys and homebuyers in Nebraska.
Skyline Woods represents more of an incremental step forward as opposed to a great leap forward. Courts in Nebraska have long held that parties are bound in equity by covenants and servitudes of which they have notice regardless of whether or not they are recorded. What Skyline Woods changes is the analysis with regards to notice. Prior decisions required that the party to be burdened have actual or constructive notice of the restrictions.[35] After Skyline Woods, inquiry notice will now be sufficient to bind a party. Inquiry notice is imputed to a party when there are such circumstances that would cause a reasonable person to inquire further. A person with inquiry notice is presumed to know everything that the proper inquiry would have revealed.[36] In Skyline Woods, the numerous documents in the chain of title were deemed to have put the defendants on notice.
There are also practical implications and advice that can be gleaned from Skyline Woods. The first piece of advice is obvious: Attorneys should always draft their covenants, restrictions, and easements explicitly. Attorneys should state not only the restrictions, but also the purpose of restrictions as well as the desire that the restrictions run with the land and bind successive owners. Although courts may find such a restriction by implication now, that decision could be years in the making and may run up sizeable litigation bills. And there will always be questions of evidence on whether there was a common scheme and whether there was sufficient notice, making victory in any given case far from certain. A prudent attorney will not leave it up to the courts.
Attorneys, real estate agents, and buyers should also be very scrupulous in shopping for and buying homes. No longer will a title search be sufficient to alert them to restrictions on the use of the property; in certain circumstances, courts in Nebraska will deem them to have inquiry notice. Such notice could potentially be gleaned from looking at maps of the area, reading documents in the chain of title of surrounding properties, or from simply visiting the neighborhood. The question of exactly how much evidence is needed to attribute inquiry notice to a party is a question that is still wide open.
The easy cases deal with the actual use of the land. Skyline Woods is such a case and there are dozens of Nebraska cases dealing with express easements and covenants that restrict the use of land to residential or open spaces.[37] More difficult cases are on the horizon. For example, some Nebraska cases have dealt with express covenants limiting the number of stories a building may have,[38] the types of materials that may be used in construction,[39] and the amount or types of other structures allowed on the property.[40] Whether or not implied covenants will be found to restrict such construction or materials is a question that attorneys, real estate developers, and courts will be forced to confront in the coming years.
Preferred Citation Format: Daniel J. Hassing, FORE! A Heads-Up to Nebraska Real Estate Attorneys After the Skyline Woods Golf Case, 1 Neb. L. Rev. Bull. 37 (2009), http://lawreview.unl.edu/?p=582.
FOOTNOTES
0. Online Editor, Nebraska Law Review. J.D. candidate, expected May 2010. I owe a debt of gratitude to the following people for their comments and suggestions: Patrick Barackman, Michelle Salter, Kim Stamp, Kara Ronnau, and Mindy Lester.↑
1. 276 Neb. 792, 758 N.W.2d 376 (2008).↑
2. These property rights are known by a variety of names including equitable easements, implied easements, equitable servitudes, implied equitable servitudes, implied grants, and rights arising by estoppel. See Shalimar Ass’n v. D.O.C. Enterprises, Ltd., 688 P.2d 682, 689 (Ariz. App. 1984). See also infra note 18 (further highlighting the confusion of terminology).↑
3. One of the issues in this case was whether the bankruptcy sale would clear the title to the property. The court ruled that it would not and the purchasers would still be bound by the covenants. Skyline Woods, 276 Neb. at 813-15, 758 N.W.2d at 392‑93. However, this portion of the ruling however is merely tangential to the issues of real property law that this article focuses on and is not discussed further.↑
4. They will collectively be referred to as “defendants.”↑
5. See generally Skyline Woods, 276 Neb. at 794-95, 758 N.W.2d at 380-81.↑
6. Id. at 797, 758 N.W.2d at 382.↑
7. Id. at 797-98, 758 N.W.2d at 382-83.↑
8. Id. at 798, 758 N.W.2d at 383.↑
9. Id. at 799, 758 N.W.2d at 383. The purchase agreement evidenced the sale of the property from Circo to American Golf, a company that eventually merged with a national partnership to form the Skyline Country Club.↑
10. Id. at 799-800, 758 N.W.2d at 383-84.↑
11. 200 Neb. 792, 266 N.W.2d 62 (1978).↑
12. The court ruled that a developer’s plan to build apartments on an area set aside to be a commons area violated the recorded covenants which gave residents of the surrounding neighborhood an interest in the commons. The covenants did not say how much of the commons was to be set aside though. However, the court, relying on the preamble that listed several uses of the commons area, decided that a substantial part of the commons was what the parties had in mind and the sole basketball court the developer planned to set aside was insufficient. Id. at 801-03, 266 N.W.2d at 67-68.↑
13. See, e.g., Latenser v. Intercessors of the Lamb, Inc., 250 Neb. 789, 794, 553 N.W.2d 458, 462 (1996) (“[T]he law disfavors covenants that restrict the use of land.”); Boyles v. Hausmann, 246 Neb. 181, 189, 517 N.W.2d 610, 616 (1994) (“[U]nder no circumstances shall restrictions on the use of land be extended by mere implication.”); Knudtson v. Trainor, 216 Neb. 653, 655, 345 N.W.2d 4, 6 (1984) (“[C]ovenants which restrict the use of land are not favored by law, and . . . should be construed in a manner which allows the maximum unrestricted use of the property.”).↑
14. Skyline Woods, 276 Neb. at 807, 758 N.W.2d at 388.↑
15. Id. at 805-06, 758 N.W.2d at 387.↑
16. Id. at 800, 758 N.W.2d at 384.↑
17. 7 Thompson on Real Property, Thomas Edition § 61.02 (David A. Thomas ed., 2005).↑
18. See 9 Richard R. Powell, Powell on Real Property § 60.01 (Michael Allan Wolf ed., 2009). Powell gives a good explanation of the evolution of the theory of restrictive covenants and related concepts. It quickly becomes apparent that Powell makes no mistake in calling the law of covenants an “unspeakable quagmire.”
A great deal of the confusion comes from the fact that equitable easements, servitudes, and covenants all serve essentially the same purpose and evolved separately only because courts would often get in the way of enforcing one or the other. As a result, different doctrines utilizing different rules were established to ultimately serve the same purpose. A Floridian appeals court decision evidences the confusion surrounding these concepts: “Restrictive covenants are private promises or agreements creating negative easements or equitable servitudes which are enforceable as rights arising out of contract.” Kilgore v. Killearn Homes Ass’n, 676 So.2d 4, 7 (Fla. App. 1996) (internal quotations and citations omitted).
This article restricts itself to a cursory explanation. For a more exhaustive explanation that includes easements and servitudes, see generally Thompson, supra note 17 and Powell, supra note 18.↑
19. Powell, supra note 18 at § 60.01[2].↑
20. Thompson, supra note 17 at § 61.03(a).↑
21. Powell, supra note 17at § 60.01[3]. This was because neither the burden nor the benefit of a contract was assignable at early common law.↑
22. Id.↑
23. Id.↑
24. Id. at § 60.04[2].↑
25. Id.↑
26. Restatement (Third) of Prop.: Servitudes Ch. 2 intro. note (2000).↑
27. A servitude created by either contract or conveyance must either comply with the Statute of Frauds or fall into an exception. See id. at § 2.1.↑
28. Id. Servitudes can still be created by the common law doctrines of necessity, prescription, implication, and estoppel.↑
29. Regency Homes Ass’n v. Egermayer, 243 Neb. 286, 295-96, 498 N.W.2d 783, 789 (1993).↑
30. To “touch and concern” the land, “[t]he covenant must impose . . . a burden on an interest in land, which . . . increases the value of a different interest in the same or related land.” Id. at 299, 498 N.W.2d at 791.↑
31. “Privity of estate” is a “mutual or successive relationship to the same right in property, as between grantor and grantee or landlord and tenant.” Black’s Law Dictionary 1320 (9th ed. 2009).↑
32. Standard Meat Co. v. Feerhusen, 204 Neb. 325, 331-32, 282 N.W.2d 34, 38 (1979). See also Reed v. Williamson, 164 Neb. 99, 82 N.W.2d 18 (1957). In Reed, the express covenant was meant benefit every lot in a division. The court stated that this plan gave every occupant of that division an equitable interest in the other lots. The court said, “building restrictions . . . create equitable easements . . . or servitudes . . . and . . . may be enforced by anyone interested in the property without regard to privity either of contract or estate and no matter whether the covenant may be said to run with the land or not.” Reed, 164 Neb. at 115, 82 N.W.2d at 27.↑
33. 223 Neb. 100, 388 N.W.2d 462 (1986).↑
34. See Neb. Rev. Stat. § 76-238 (Cum. Supp. 2008).↑
35. See, e.g., How, 223 Neb. 100, 388 N.W.2d 462; Standard Meat Co., 204 Neb. 325, 282 N.W.2d 34. Actual notice is “[n]otice given directly to, or received personally by, a party.” Black’s, supra note 31 at 1163. Constructive notice is notice that the law deems a person to have. In the real estate context, constructive notice most often comes from the recording system. Id.↑
36. Skyline Woods Homeowners Ass’n v. Broekemeier, 276 Neb. 792, 811, 758 N.W.2d 376, 391 (2008).↑
37. See, e.g., Hogue v. Dreeszen, 161 Neb. 268, 73 N.W.2d 159 (1955); Harvey Oaks Homeowner’s Ass’n v. Aslan Co., No. A-01-390, 2002 WL 31866163 (Neb. App. Dec. 24, 2002); 1733 Estates Ass’n v. Randolph, 1 Neb. App. 1, 485 N.W.2d 339 (1992).↑
38. Elkhorn Ridge Golf P’ship v. Mic-Car, Inc., 17 Neb. App. 578, 767 N.W.2d 518 (2009).↑
39. See, e.g., Regency Homes Ass’n v. Schrier, 277 Neb. 5, 759 N.W.2d 484 (2009); Hoff v. Ajlouny, 14 Neb. App. 23, 703 N.W.2d 645 (2005).↑
40. See, e.g., Breeling v. Churchill, 228 Neb. 596, 423 N.W.2d 469 (1988) (covenants banned the placement of satellites on the property); Countryside Developers, Inc. v. Peterson, 9 Neb. App. 798, 620 N.W.2d 124 (2000) (covenants banned construction of outbuildings on the property).↑
See You in Court: An Analysis of Nebraska’s Newest Abortion Legislation (LB 1103 – Pain-Capable Unborn Child Protection Act)
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By Tom Venzor[0]
Introduction
The bill formerly known as the Fetal Pain Prevention Act was passed by the 101st 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.
Preferred Citation Format: Tom Venzor, See You in Court: An Analysis of Nebraska’s Newest Abortion Legislation (LB 1103 – Pain-Capable Unborn Child Protection Act) 3 Neb. L. Rev. Bull. 1 (2011), http://lawreviewbulletin.unl.edu/?p=783
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, 101st 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, 101st Legislature (Second Session), at 6 (Neb., Feb. 25, 2010) (statement of Senator Council).↑
11. Floor Debate, LB 1103, 101st 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, 101st 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, 101st 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, 101st 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, 101st Legislature (Second Session), at 88-90 (Neb., Feb. 25, 2010).↑
25. Judiciary Committee Hearing, LB 1103, 101st Legislature (Second Session), at 31 (Neb., Feb. 25, 2010) (statement of Professor Collett).↑
26. Floor Debate, LB 1103, 101st 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, 101st 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, 101st 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, 101st 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, 101st Legislature (Second Session), at 58 (Neb., Feb. 25, 2010) (statement of Schleppenbach).↑
41. Judiciary Committee Hearing, LB 1103, 101st Legislature (Second Session), at 93 (Neb., Feb. 25, 2010) (statement of Speaker Flood).↑
42. Floor Debate, LB 1103, 101st 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, 101st 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, 101st 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, 101st Legislature (Second Session), at 170 (Neb., March 30, 2010) (statement of Senator Conrad).↑
55. Id.; See also Judiciary Committee Hearing, LB 1103, 101st 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, 101st 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, 101st Legislature (Second Session), at 58 (Neb., Feb. 25, 2010) (statement of Senator Conrad).↑
61. Id.↑
62. Floor Debate, LB 1103, 101st 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, 101st 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, 101st Legislature (Second Session), at 165 (Neb., March 30, 2010) (statement of Senator Conrad).↑
A Matter of Interpretation
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By Daniel J. Hassing[0]
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.
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.↑