In Contempt Actions, Rights and Powers Are Defined By Nebraska Supreme Court

The Nebraska Supreme Court recently clarified when and how a court can use its contempt power to make sure that its orders are being obeyed. In Sickler v. Sickler, the Court was presented with a long-running dispute regarding money in a retirement account. The nub of the case centers around a 2001 divorce decree that awarded about $45,000 of a retirement account to the former Madeline Sickler. Before she was able to get that money (and for reasons which are not entirely relevant to this discussion), Steven Sickler made enough withdrawals from the account that there was no longer enough left to cover Madeline’s share.

After a series of arguments, the district court eventually found in 2015 that Steven was in contempt of court for taking Madeline’s money out of the account, and ordering him to give Madeline the amount she was due by a date certain or serve ninety days in jail. Steven challenged that ruling on a number of grounds.

But before we discuss Steven’s appeal, it’s important to understand how contempt works. The point of “civil contempt” (which is what the court was trying to use) is to use the court’s power to require a person to obey the provisions of a court order. The cliché learned in law school is that for civil contempt, the contemnor (the person who hasn’t followed the order) should “hold the keys to his jail cell in his hand.”

In other words, the person in contempt should be able to comply with the court’s order and avoid the punishment. That’s why the court in this case said that if Steven paid Madeline what she was due in the original decree, then he wouldn’t have to serve the time in jail. The purpose of the jail sentence was not to punish Steven, but to “encourage” him to follow the court’s order.

But Steven had to be found in contempt first. And the mere fact that he didn’t do what the court ordered isn’t enough to find him in contempt. A court also has to find that a contemnor like Steven had the ability to comply with the order and chose not to. Only if this willful disobedience of a court order is proven can a court find someone in contempt and put together a “purge plan” for the contemnor to get in compliance with the court’s orders to avoid punishment.

Steven’s first challenge of the court’s decision about his contempt was that he was being put into a debtor’s prison, in violation of the Nebraska Constitution. Since the founding of the United States, American law has rejected the idea of imprisoning people as a means to collect debts. The Nebraska Constitution specifically bars imprisonment of a debtor to coerce payments.

So what’s the difference between that and what the court did to Steven? The use of contempt for collection of child support has been challenged as a “modern-day debtor’s prison,” as you can see here and here. According to the Nebraska Supreme Court, it depends on what a “debt” is. The Supreme Court defined a debt as “an obligation to pay money from the debtor’s own resources, which arose out of a consensual transaction between the creditor and the debtor.”

That’s different than enforcing the provisions of a divorce decree, like child support or alimony – or a property division, as the Nebraska Supreme Court has now decided. The provisions of a divorce decree are not a debt, the Court said, but rather “an order designed to secure the performance of a legal duty in which the public has an interest.”

And because the public has an interest in the provisions of divorce decrees being observed, the Court has the inherent authority through its power of contempt to use sanctions – up to and including jail time – to enforce those orders. Using contempt to enforce child support or alimony was well established in Nebraska law. In Sickler, the Court made it clear that contempt could be used to enforce property division awards in a divorce decree as well.

Steven’s next argument was that the court didn’t find his actions were “willful.” Remember, contempt isn’t as simple as deciding whether or not an order was followed. A court has to specifically find that a contemnor had the ability to comply with an order and chose not to before using its contempt power. That willfulness element is what separates a contempt proceeding from a medieval English debtor’s prison.

In this case, the Supreme Court had little difficulty finding Steven’s actions to be willfully contemptuous of the divorce decree. While there were questions about what Madeline should or shouldn’t have done to get her money out of the account, there was no question that Steven knew he was taking money he wasn’t supposed to when he made those withdrawals. Because Steven knew he was ordered not to take the money, and chose to anyway, the Supreme Court agreed that Steven’s actions were willfully contemptuous.

Steven’s final argument was that he didn’t have the ability to pay over $37,000 within 17 days, and as a result he didn’t have the “present ability to comply” with the court’s purge plan. The Supreme Court agreed that any purge plan – which, remember, gives a contemnor the “keys to his own jail cell” – must be within the contemnor’s present ability to comply. This reinforces why civil contempt is not a debtor’s prison – a contemnor can only go to jail if he has the ability to do what the court orders, and simply chooses not to.

There is such a thing as criminal contempt, as opposed to civil contempt, where a court can punish someone for past behavior. But if a court’s action is pure punishment, rather than coercing future compliance with an order, then the contemnor gets all of the constitutional protections due to a criminal defendant, such as a presumption of innocence, right to jury trial, and right to court-appointed counsel if indigent.

For the most part, the Supreme Court found that Steven’s purge plan was a civil contempt order, because he had the ability to comply with the court’s order and avoid jail. The Supreme Court did direct that, in the future, lower courts must specifically make a finding that a contemnor has a “present ability to comply” with any purge plan, to ensure only people who willfully choose to disobey a court order go to jail.

And the Supreme Court did modify a part of Steven’s contempt order. In the original order, once Steven started his ninety-day sentence, there was no way for him to get out of jail even if he later complied with the court’s order and gave Madeline her share of the investment account. The Supreme Court said that violated Steven’s rights, and modified the order allowing Steven to be released at any point during his ninety-day sentence if he complies with the court’s order.

Finally, the Supreme Court clarified how contempt hearings work. Burdens of proof are very important in law. For contempt action, the party asking a contemnor be held in contempt has the burden to proof willful disobedience. Much like the prosecution in a criminal case, if the party asking for contempt can’t prove its case, no contempt will be found.

But once a contempt finding has been made and incarceration is a possibility, the burden shifts. According to the Supreme Court, it is the burden of the contemnor to show he should not be incarcerated. That means the judge can order the contemnor to a jail sentence – so long as the purge plan is clearly laid out for the contemnor to avoid jail – and the sentence will stand unless the contemnor can prove he does not have the present ability to comply with that plan.

Contempt proceedings are an important tool used by parties and by judges to make sure that orders are followed. In Sickler, the Nebraska Supreme Court laid out some important rules balancing the rights of a contemnor with the authority of the Court to enforce its orders.

Sickler v. Sickler can be cited as 293 Neb. 521 (Neb. 2016), and the full opinion can be found here.

Supreme Court reaffirms power of Congress, village of Pender subject to tribal tax

In a unanimous 8-0 decision, the United States Supreme Court ruled that the city of Pender is still within the Omaha Indian Reservation, and as a result the Omaha Tribe can impose a tax on sales of alcohol in Pender.

The case, called Nebraska v. Parker, pitted the state of Nebraska and the village of Pender against the Omaha Tribe in deciding whether or not the reservation boundaries had moved. In 1882, the Omaha Indian Reservation’s boundaries were formalized between the United States and the Omaha Tribe. In that Congressional act, part of that land was sold to a settler named W.E. Peebles, who ultimately founded the village of Pender.

However, since then, the residents of Pender have been almost entirely non-Indian, and the Omaha Tribe did not attempt to regulate any activity in Pender until 2004. At that point, the Omaha Tribe issued a tax on any sales of alcohol on the reservation, which would include merchants in Pender.

The Pender merchants, along with the State of Nebraska, asked the federal courts to determine that the Omaha Indian Reservation had been diminished, meaning that the boundaries had changed so that Pender was no longer part of the reservation. If the village was correct and the reservation was diminished, then the Omaha Tribe would no longer have any authority over activity in Pender.

The United States Supreme Court, in a case called Solem v. Bartlett, set up a three-part test to determine whether or not a reservation had been diminished. The first part of the test was to determine if Congress intended to reduce the size of the reservation at the time of its creation. Since the founding of the nation, Congress has had the power to make final decisions with regards to native lands and sovereignty. This power, called “plenary power,” makes Congress (for the most part) the final word in terms of Indian affairs.

As a result, the Supreme Court in Solem determined that whatever Congress’ decision was with regards to the borders of a reservation was final. If Congress specifically said that the size of a reservation should be diminished, then the borders would change accordingly. However, for the Court to find that the border has been diminished, Congress must have been specific in doing so. The Court will not imply a diminishment without an express action from Congress.

The second test in Solem was whether there was historical evidence at the time of the creation of the reservation that Congress intended to diminish the reservation. This  test goes back to the premise that Congress must be clear in acting to reduce reservation land. If Congress did not specifically say it wanted to diminish the reservation, but there was clear historical evidence to show that was what Congress wanted to do, then a later court could find a diminishment.

In the question as to whether Pender was part of the Omaha Indian Reservation, there was very little evidence to demonstrate Congressional intent to diminish using either of these first two tests. As  a result, the only way Pender would be successful is with the third part of the Solem test.

That third part of the test is whether the current demographics of the area would suggest a Congressional intent to diminish. The evidence for this test would seem to be strong for Pender, as the population of the village is almost entirely non-Indian. Supreme Court cases that came after Solem seemed to suggest that the demographics of an area would go a long way in determining whether it remained as reservation land.

However, Justice Clarence Thomas wrote for a unanimous Court significantly limiting the demographic test from Solem. Thomas wrote that the demographic test could be used to supplement evidence of Congressional intent to diminish. But if there was no evidence of Congressional intent – which is what the Court found with regards to Pender – then the demographics of the area were not relevant in determining whether a reservation had been diminished.

The ruling in this case was significant in reaffirming the primary role of Congress in determining policy regarding native lands and sovereignty. Since the decision of Oliphant v. Suquamish Indian Tribe in 1978, the Court had been steadily inserting itself as an equal decision-making partner with Congress in areas of native lands and sovereignty. In Parker, the Court has taken a significant step away from that claim of power, returning decision-making with regards to native lands and sovereignty to Congress.

The full text of the opinion can be found here.

ICWA Requires Active Efforts At Every Stage, Says Nebraska Supreme Court

If you have questions about Indian Law, contact Runge Law Office at rungelawoffice@gmail.com or at (402) 390-9577 to schedule a free initial consultation. Visit us at www.patrickrunge.com for more information.

The Nebraska Supreme Court upheld a Court of Appeals decision that expands the effectiveness of the Indian Child Welfare Act (better known as ICWA) in Nebraska. The specific decision, In re Shayla H, says the State still has to provide active efforts for an Indian family even if the child is placed with a parent, so long as the State still retains decision-making power over the child.

Confusing? Well, maybe a little background will help. Ordinarily when a child is removed from his or her parents by the State due to abuse and neglect, the State must make “reasonable efforts” to reunify the family. However, when an Indian child is involved and there is a question of foster care or termination of parental rights, ICWA requires the State to provide “active efforts” (a higher standard of care than “reasonable efforts”) to prevent the breakup of the Indian family.

In this case, the State argued that because the child was placed with the parent, it wasn’t an issue of foster care or termination of parental rights, so the “active efforts” requirement of ICWA shouldn’t apply. But the Supreme Court, in agreeing with the Court of Appeals, said that any time when the legal decision-making power for the child has been removed from the parent (as it had in this case, even though the child was placed with the parent), a foster care placement could arise, and therefore the higher active efforts standard should apply.

But why should there be a different standard in the first place? Why do Indian children get special treatment that non-Indian children don’t enjoy?

From the very beginning of the United States, the country grappled with how to justify taking the lands of the native peoples who were there before. The first Chief Justice of the Supreme Court, John Marshall, enshrined into law the concept of a trust relationship, where the United States owed native Americans a duty of protection in exchange for exercising power over them.

Through the years, that trust relationship has been expressed in different ways, and for much of American history involved attempting to “de-Indian” the native people, guided by the paternalistic idea of “killing the Indian to save the man.”

By the turn of the 20th century, that policy involved the forcible removal of Indian children to boarding schools, where their ceremonial long hair was cut and any expression of their native culture or language was harshly punished. And while the boarding schools were later closed, by the middle of the twentieth century Indian children were being removed from their homes by child protective services at an alarmingly disproportionate rate.

So, in response to that rate of removal, along with the history of the boarding schools and other official Federal policies designed to destroy Indian culture, and recognizing the underlying trust obligation the United States has to the native American people, Congress passed ICWA in 1978 to right some of the wrongs committed in the past.

ICWA has a number of provisions designed to preserve Indian families and provide opportunities for the tribes, rather than state courts, to make decisions with regards to the welfare of Indian children. The “active efforts” standard for Indian children in foster care is part of the attempt by ICWA’s drafters to help ensure that Indian children are removed from Indian families only when the strongest of reasons are present, and that every effort is made to help reunite those Indian families and alleviate the problems that got the State involved in the first place.

You Have A Constitutional Right To A Fair Trial, Not A Separate Trial

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A criminal defendant has a right to a trial, of course, but not to separate trials on separate charges. That principle was recently reinforced by the Nebraska Supreme Court in State v. Knutson.

In this case, Mr. Knutson was charged with was accused of inappropriate and abusive behavior against four different children. For one child, Mr. Knutson was charged with child abuse and using an electronic communications device to entice a child. For two of the children, Mr. Knutson was charged with third degree sexual assault of a child (against each child). And for the fourth child, Mr. Knutson was charged with child abuse.

The State asked for joinder of all the cases, meaning that all of the charges against Mr. Knutson would be tried together to the same jury. Mr. Knutson opposed the joinder, saying to try all those cases at the same time would unfairly prejudice him. The State’s request for joinder was granted, and Mr. Knutson was convicted of all charges except for the ones against the first child. Mr. Knutson appealed his conviction, in part by claiming that the joinder violated his right to a fair trial.

The Nebraska Supreme Court began by observing that a defendant does not have a constitutional right to separate trials for separate charges. Under Nebraska law, charges may be joined if they are “are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.”  The law further provides that “[i]f it appears that a defendant or the state would be prejudiced by a joinder of offenses . . . for trial together, the court may order an election for separate trials of counts, indictments, informations, or complaints, grant a severance of defendants, or provide whatever other relief justice requires.”

In other words, to determine if charges should be joined is a two-step process. First, a court looks to see if the charges are “of the same or similar character or based on the same act.” If not, the charges can be joined. If they are, then the charges can be joined unless doing so would prejudice a defendant so that the defendant could not get a fair trial.

In this case, the Supreme Court found that the charges should be properly joined. Although the charges were based on different statute, the Court found that because the charges were all sexual in nature and because the victims were all roughly the same age, they were similar enough to be joined.

The Court then determined that Mr. Knutson’s right to a fair trial was not prejudiced by the joinder. The jury in this case was specifically instructed to consider the evidence for each charge separately, and Mr. Knutson made no specific additional showing of prejudice. The fact that the jury did, in fact, acquit (meaning find not guilty) Knutson of some charges went a long way for the Court in determining that there was no prejudice in the joinder.

When Is A “Personal Representative” Not A “Person?”

If you need to talk with an estate planning lawyer, contact Runge Law Office at rungelawoffice@gmail.com or at (402) 390-9577 to schedule a free initial consultation. Visit us at www.patrickrunge.com for more information.

Is a personal representative a “person,” at least for one specific purpose? That was the question asked and answered by the Nebraska Supreme Court. The answer was no.

A little background would be helpful to understand what’s going on. When a person dies and owns property, Nebraska law requires the estate (meaning the collection of property that the person who died owned at the time of death) be opened through a process called probate. In the probate process, an individual called a “personal representative” is appointed to accumulate the property of the person who died, pay the creditors, then divide the property either based on the directions of the will (if the person died with a will) or Nebraska state law (if the person died without a will).

In Correa v. Estate of Hascall, Dean Hascall passed away in 2009. His widow, Neomi, was appointed personal representative of the estate and divided all the property. The estate was closed in 2011, meaning the Court was satisfied that the personal representative did everything she was supposed to do to divide the estate.

In 2012, Neomi and the Hascall estate was sued by Gloria Correa for negligence based on a car accident involving Gloria and Dean in 2008. Neomi asked for the lawsuit to be dismissed, in part because her duties as a personal representative for Dean’s estate had been completed and the estate was closed.

The Nebraska Supreme Court agreed with Neomi. The suit against the estate was dismissed based on a statute of limitations rule that requires a lawsuit against an estate to be brought within three years of the incident giving rise to the lawsuit, which Gloria failed to do.

But Gloria also sued Neomi personally, for negligence. But the Nebraska Supreme Court, in agreeing with the lower Court of Appeals, ruled that a personal representative is not a “natural person” that can be sued, but rather a legal entity that is created through the probate process. And if a personal representative is created by the probate process, then by definition that “person” no longer exists once the estate has been closed.

In some ways, a “personal representative” is similar to the idea of a corporation, in that it is a separate “legal entity” from the individual or individuals that make up the corporation. This “legal fiction” helps to protect the individuals serving in those capacities (or those forming a corporation) from actions outside of their duties as part of that “legal entity.”

So, because Neomi’s appointment as a personal representative ended before Gloria brought her lawsuit, the “personal representative” did not exist for Gloria to sue in the first place. As a result, the Nebraska Supreme Court agreed with the Court of Appeals and dismissed Gloria’s appeal.

What Do a Techinical Criminal Case and an Obamacare Challenge Have In Common?

If you need to talk with a criminal defense lawyer, contact Runge Law Office at rungelawoffice@gmail.com or at (402) 390-9577 to schedule a free initial consultation. Visit us at www.patrickrunge.com for more information.

What a legislature means isn’t always as easy as what it says. While that question has a much broader impact nationally, the Nebraska Supreme Court reiterated that principle in a criminal law case about probation and when a conviction can be set aside.

In State v. Kudlacz, an individual was placed on probation for a conviction for issuing a bad check, a misdemeanor. Part of his probation was that Mr. Kudlacz had to perform certain conditions, such as looking for employment and pay restitution. If he didn’t meet those conditions, his probation order required him to serve 90 days in the county jail on weekends.

Mr. Kudlacz initially failed some of his conditions, and ended up having to serve some of his jail time pursuant to his probation. But Mr. Kudlacz ultimately did successfully complete all of the terms of his probation. As a result, he asked the court for a hearing to set aside his conviction based on a Nebraska state law that allows a misdemeanor conviction to be set aside if all probation terms are successfully completed.

The State objected, saying that because Mr. Kudlacz spent some time in jail, he couldn’t have his conviction set aside. The State relied on language in a different case, McCray v. Nebraska State Patrol, which said that the statute in question “empowers a court to set aside certain criminal convictions in which the sentence does not include incarceration.” Because Mr. Kudlacz’s sentence included incarceration, the State argued, his sentence could not be set aside.

But the Supreme Court said that because McCray was about a sex offender and how a conviction that was already set aside affected him, the case wasn’t relevant for Mr. Kudlacz’s purposes. Instead, the Court looked at the language of the statue in question and the intent of the Legislature in passing the statute.

The full language of the statue in question reads as follows:

Whenever any person is convicted of a misdemeanor or felony and is placed on probation by the court or is sentenced to a fine only, he or she may, after satisfactory fulfillment of the conditions of probation for the entire period or after discharge from probation prior to the termination of the period of probation and after payment of any fine, petition the sentencing court to set aside the conviction.

To interpret a statute, a Court must first look to the language of the statute to see if there are any ambiguities, giving the language of the statute its plain and ordinary meaning. And, the Court must “determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense”

The Court found that the statute simply didn’t address that question of how to handle a jail sentence as a part of a probation order. The statute simply says that if a person successfully completes probation for a misdemeanor, that person can ask the court to set aside the conviction. If the Legislature had wanted to make it so people who spend time in jail as a part of probation could not get a sentence set aside, it could have. But because it did not, the Court found that the language of the statute allowed Mr. Kudlacz to request a hearing and ask for his conviction to be set aside.

This may sound like a very technical case involving the nuances of criminal law. But if you’ve heard about the recent challenge to the Affordable Care Act (otherwise known as “Obamacare”) from federal district courts, the issue in those cases is exactly the same as what the Nebraska Supreme Court wrestled with in Kudlacz. Specifically, is a particular provision of the ACA ambiguous on its face, given the purpose and intent of Congress in passing the ACA.

So sometimes even the most mundane and technical cases can involve principles used in decisions that could affect millions of people across the country.

Termination of Parental Rights Needs More Than A Good Reason

If you need to talk with a juvenile court lawyer, contact Runge Law Office at rungelawoffice@gmail.com or at (402) 390-9577 to schedule a free initial consultation. Visit us at www.patrickrunge.com for more information.

The Nebraska Supreme Court reaffirmed the position that for the State to terminate the parental rights of a parent in a juvenile court case, the State must prove both that there is a legitimate reason to do so and that the termination of parental rights is in the child’s best interests.

Under Nebraska law, for a parent’s rights to be terminated by a juvenile court, the State must prove two things. First, the State must prove that one of the reasons for terminating parental rights defined by statute (such as abandonment, neglect, or ongoing drug usage, the full list can be seen here). But the State must also prove that the termination of parental rights would be in that child’s best interest. If (like in this case) the State proves its grounds for termination but not the best interest, the juvenile court will deny the termination request.

The case, In re Interest of Justine S. and Sylissa J., involved two girls (aged 14 and 11) who were removed from their mother’s care. The State filed a motion to terminate the mother’s parental rights based on the mother’s alleged abandonment of the children and her ongoing drug usage. The juvenile court denied the motion because, while the court did agree that the State proved its grounds, the State did not prove that the termination would be in the children’s best interest. This was, in part, because the children were staying with relatives and were not going to be adopted, which would require a termination of the mother’s parental rights.

The State’s case on appeal was not helped by the fact that the State did not properly draft its brief, meaning the Supreme Court reviewed the case for “plain error” rather than the usual standard on appeal. A “plain error” standard appeal is harder for a party appealing a case to win, as there may be cases where there would be enough questions about the lower court’s ruling to overturn it normally but not enough for an appellate court to find that the lower court committed “plain error.”