Shared Housing as a Missing Middle Solution for Rural Communities
Alison Lintal
This Article demonstrates that shared housing, particularly among seniors, can be a successful model for providing affordable housing in rural areas. It will identify and examine the legal impediments to implementing shared housing programs which include: (1) failure to meet building code and internal density requirements; (2) antiquated definitions of family and cohabitation under zoning laws with a need for statutory permission for unrelated people desiring to live together; (3) restrictive occupancy codes; (4) property and income tax consequences as well as impact on public benefits eligibility; (5) lack of traditional landlord tenant protections for informal shared housing arrangements; and (6) limited fair housing protections for shared housing arrangements. In addition, funding and financing shared housing under current conventional and government financing structures presents challenges.
Zero Progress on Zero-Days: How the Last Ten Years Created the Modern Spyware Market
Mailyn Fidler
Spyware makes surveillance simple. The last ten years have seen a global market emerge for ready-made software that lets governments surveil citizens and foreign adversaries alike and to do so more easily than when such work required tradecraft. The last ten years have also been marked by stark failures to control spyware and its precursors and components. This Article accounts for and critiques these failures, providing a socio-technical history since 2014, focusing on the conversation about trade in zero-day vulnerabilities and exploits and more recently spyware. This Article also applies lessons from these failures to guide regulatory efforts going forward. While recognizing that controlling this trade is difficult, I argue countries should focus on building and strengthening multilateral coalitions of the willing rather than on strong-arming existing multilateral institutions into working on the problem. Individually, countries should focus on entity- or use-based export controls and leverage broader sanctions that target specific bad actors rather than focusing on technology-specific controls. Last, I continue to call for transparency as a key part of oversight of domestic governments’ use of spyware and related components.
Unfair Discrimination Standards, Actuarial Fairness, and Insurers’ Use of Big Data
Laura L. Arp
This Article attempts to unpack the multiple and complex facets present in the definition of unfair discrimination—and in particular proxy discrimination—as applied to insurance, even while the regulatory framework for insurers’ use of machine learning to set rates is being constructed. Several comparisons are made across U.S. and international sources to frame the issue and its concepts. There may never be agreement on the definition of rate fairness in the context of personal insurance, but rates should be grounded in the insured’s likelihood to incur losses. Before regulators and policymakers engage in an expensive and time-consuming effort to split factors into categories that are fair or unfair in the context of big data, artificial intelligence, and machine learning, the focus should be on making sure that these new tools produce accurate rates.
Mission Statement
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The mission of the Nebraska Law Review Bulletin is to cultivate legal education and scholarship in Nebraska by focusing on law in Nebraska and the Eighth Circuit, to be a source of legal updates for Nebraska and Eighth Circuit practitioners, and to foster communication across the various segments of the legal community. The Bulletin publishes short commentaries on legal developments in Nebraska and the Eighth Circuit as well as short responses to articles and notes published in the Review. The online journal format also allows for discussion and feedback.
The Bulletin is managed by the editorial staff of the Nebraska Law Review at the University of Nebraska College of Law.
Comments
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The Nebraska Law Review Bulletin provides readers the opportunity to comment on posts. The purpose of comments is to further academic discussion on a legal issue. All comments shall be approved by the Review editorial staff before posting. All comments shall comply with the following standards:
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The Nebraska Law Review reserves the right to edit, remove, or refuse to publish any comment that we determine, in our discretion, to be a violation of these policies.
Submissions
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The Nebraska Law Review welcomes commentaries for publication consideration in the Bulletin. Commentaries submitted should meet the following guidelines:
- Focus on Nebraska or Eighth Circuit law or respond to an article or note published in the Nebraska Law Review.
- Should be less than 3,000 words and only lightly footnoted.
- Conform to the current edition of THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION.
- Double-spaced, using footnotes rather than endnotes.
- Commentaries should be accompanied by a cover letter that includes the author’s name, professional title, mailing address, email address, and phone number, along with any pertinent information about the article being submitted.
Please submit all publications to the Online Editor, Rachel Gerlach at rmmgerlach@gmail.com
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).↑
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.↑
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.↑
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).↑