Brackeen v. Zinke, the case challenging ICWA’s constitutionality, explained

In March, oral argument was heard at the Fifth Circuit Court of Appeals on an appeal of a federal district court judge in Texas, who ruled that the Indian Child Welfare Act (ICWA) was unconstitutional. Judge Reed O’Connor, in Brackeen v. Zinke, ruled primarily that the ICWA gave Native American families impermissible advantages based on race, in violation of the Fifth Amendment’s guarantee of equal protection.

Much like with the Supreme Court’s decision in Adoptive Couple v. Baby Girl, the first paragraph of the court’s opinion tells you just about everything you need to know about how the case will be decided.

This case arises because three children, in need of foster and adoptive placement, fortunately found loving adoptive parents who seek to provide for them. Because of certain provisions of a federal law, however, these three children have been threatened with removal from, in some cases, the only family they know, to be placed in another state with strangers. Indeed, their removals are opposed by the children’s guardians or biological parent(s), and in one instance a child was removed and placed in the custody of a relative who had previously been declared unfit to serve as a foster parent. As a result, Plaintiffs seek to declare that federal law, known as the Indian Child Welfare Act (the “ICWA”), unconstitutional.

So, much like in Adoptive Couple, there is a facially-unsympathetic fact pattern that gives rise to a decision that limits – or in this case, eviscerates – tribal interests and tribal sovereignty. In Brackeen, the primary grounds upon which O’Connor found the ICWA unconstitutional was that it gave race-based advantages to Native American families. Because the court found the advantages to be race-based, the equal protection clause of the Constitution requires strict scrutiny to be applied, meaning that the statute had to serve a compelling state interest and be narrowly tailored to meet that interest. O’Connor found the ICWA did not meet that strict scrutiny standard.

(O’Connor also ruled that the ICWA violated the “anti-commandeering” principles recently established by the Supreme Court to enforce principles of federalism protected by the Tenth Amendment. We’ll address that provision another time).

Two different Supreme Court cases were looked at by O’Connor, and help to set the table for the legal analysis. The first, Rice v. Cayetano, found unconstitutional a state agency that could only be voted on by “native Hawaiians” as defined by state law. The second, Morton v. Mancari, found permissible plan from the federal Bureau of Indian Affairs that gave hiring preferences to Native Americans.

Both cases raised questions about whether a group was getting a benefit based on their race, which would be impermissible under the equal protection clause of the Constitution unless it furthered a compelling state interest and was narrowly tailored to serve that purpose.

So how did the Supreme Court reach such different results in these two cases?

Primarily, the difference lies in how the Court in Rice defined who qualified as a Native American. Specifically, the Rice court found that state of Hawai’i decided who was and was not a “native Hawai’ian” and therefore permitted to participate in a state agency. In Mancari, by comparison, it was the tribes themselves that decided their own membership rules, and the hiring preferences from the federal government flowed from those tribal determinations of membership. Because the tribes – ancient nations which retain the sovereignty not removed from them – decide their own membership, the Rice court found that the distinction of being Native American (or “Indian” in the language of the decision) was a political one, rather than a racial one.

At first blush, it’s easy to see how that distinction could cause confusion. Many tribes do use some level of “blood quantum” as a test for being a member, and without thinking through the sovereignty questions those distinctions could look a lot like a racial test.

But keep in mind that the important question isn’t what the test for membership actually is. The important question is who decides what that test should be. There is no more central element of sovereignty – of the power to make decisions for yourself as a group and be governed by them – then to determine who is a member of that group.

Seen in that light, then the decision in Mancari makes far more sense. The purpose of the native hiring preference at issue was to help tribal communities, which is part of the federal government’s trust obligation to tribes. As sovereigns, tribes get to decide for themselves who is and is not a member of their nations. The decision in Mancari gives respect to the tribes to allow them to make that decision for themselves.

A thought experiment might help the distinction make more sense. Start with this. Even if you weren’t born in the United States, you’re still eligible to become a US citizen if one or both of your parents was a citizen. Very few people raise an eyebrow at that rule – indeed, throughout most of the world, tracing citizenship through your direct relatives is the accepted rule.

Well, how is that substantively different than what tribes that use a blood quantum membership rule do? Doesn’t a blood-quantum rule really serve the same function as a citizenship-through-parents rule, simply making sure that families can all be citizens of the same nation.

And yet we don’t think of the citizenship-through-parents rule, that is ubiquitous worldwide, as somehow a race-based determination. So why do some see the blood-quantum rule for membership that some (but, remember, not all) tribes use to determine membership as a race-based determination? Would it look different if we talked about “citizenship” within a tribal nation rather than “membership?”

In the district court case, though, O’Connor focused more on Rice than Mancari. In Rice, the Supreme Court found that the state of Hawaii couldn’t authorize a state agency that could only be voted on by “native Hawaiians.” So what’s the difference between the Supreme Court’s decisions in Rice and Mancari?

Again, we come back to who is making the decisions with regard to the distinction. In Rice, it was the state of Hawaii, not any sovereign native nation, that was making the decision about who could and could not participate. Unlike Mancari, there was no political decision being made by a sovereign nation as to its own citizenship.

Additionally, it is important that it was a state government, not the federal government, making this distinction. Ever since the founding of the nation, the Supreme Court has recognized that the federal government has a unique “trust relationship” with Native American tribes. That “trust relationship” requires the federal government to take action to help Native American tribes, and gives the federal government (specifically Congress) additional powers to facilitate that relationship.

Because of that trust relationship, the federal government’s authority to regulate issues surrounding Native Americans is always going to be broader than a state’s. At least with the understanding of this area of law from the time of Mancari, the federal government’s supremacy in this area stemming from the trust relationship would have led a court to apply the rule from Mancari instead of Rice towards a federal statute like ICWA.

Which is why the ruling in Brackeen was such a surprise, and such a big deal. If the Supreme Court were to adopt the Brackeen rationale, it wouldn’t just be ICWA that would be in legal jeopardy. If ICWA can be invalidated on equal protection grounds, then there is almost no ruling in this area of law that would not be vulnerable to the same result. In essence, if the Brackeen ruling becomes the law of the land, tribal sovereignty could all but become a thing of the past.

We’ve seen this movie before. In what was called the Termination Era, from the 1940s to the 1960s, it was the express policy of the federal government to “terminate” tribes’ trust relationship with the federal government. The express purpose of the policy was to treat Native American people “no differently” than non-natives, although it also significantly reduced the federal government’s financial obligations to Native American communities.

Termination Era policies were intended to “free” Native Americans from the federal government, on the premise that by doing so Native American people would simply assimilate into the broader American society.  In addition to endangering unique native cultures and disrupting tribes’ ability to make decisions for themselves, Termination Era policies also had the effect of “freeing” the United States government from the financial responsibilities to assist tribes that came with the trust obligations.

In practice, Termination Era policies were disastrous for tribes and tribal communities. Thriving tribal businesses were devastated when the rules under which those businesses operated shifted, and tribal communities were cut adrift. A more thorough discussion of the underlying causes and effects of the Termination Era policies can be found here.

In 1970, President Richard Nixon recognized the harm that was being done by Termination Era policies, and shifted the focus of the United States government towards respecting tribal sovereignty and working with tribes on a sovereign-to-sovereign basis. This began what is known as the Self-Determination Era, and still describes the basic principle of how the United States government interacts with tribes.

But if O’Connor’s opinion in Brackeen were to become the law of the land, all that might change. If the courts were to find that ICWA violated the Constitution, then it would be difficult to see how almost all areas of law surrounding tribes could not fall victim to the same attack. In essence, by judicial fiat and without any act from Congress, the federal government would return to Cold War-era policy with regards to how the United States interacts with tribes and tribal communities.

That’s why the case is such an important one to follow. Whatever the outcome from the Fifth Circuit, it is likely that the losing party will appeal to the Supreme Court. And with the new makeup of the Supreme Court, it is even more difficult than normal to predict the outcome of such an appeal.

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

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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?”

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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?

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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

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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.”

“Yes” and “No” Mean “Yes” for Warrantless Home Searches

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The United States Supreme Court has limited the ability of individuals to prevent law enforcement officers from searching their homes without a search warrant. In the new decision, Fernandez v. California, Justice Samuel Alito writing for a 6-3 majority said that police may search a residence with the consent of one tenant even over the objection of another tenant, under certain circumstances.

In this case, police arrived at Fernandez’s home during the investigation of a gang-related robbery, and heard “screaming and fighting” coming from inside the home. Police knocked on the door and asked for permission to enter. Fernandez said no, saying “I know my rights.”

(As Roy Little of SCOTUSBlog brilliantly observed, not well enough, as we will soon see.)

Police saw bruises on his girlfriend and the infant being held by Fernandez’s girlfriend, and arrested Fernandez for suspicion of domestic violence. The police returned an hour later, and were granted permission from the girlfriend to search the residence. Fernandez sought to prevent the State from using the evidence found in that search, claiming it violated his Fourth Amendment right to be free from unreasonable searches and seizures.

Writing the majority opinion, Alito had to address a previous ruling of the Supreme Court in Georgia v. Randolph which held that when more than one property occupant is present, the objection of an occupant that is physically present to a search prohibits police from making the search without a warrant, even if the other occupant consents to the search.

In finding that Randolph did not apply, Alito first made the obvious observation that Fernandez was no longer present, and the fact that the party objecting to the search was physically present was the critical element in Randolph. Alito went on to address language in Randolph which would suggest police could not remove an individual that objected to a search and then proceed with the search.

Alito said that language in Randolph meant that police removal of an objecting occupant would prevent a warrantless search only if the police removal was not “objectively reasonable.” In this case, police had probable cause to arrest Fernandez for domestic violence as well as for the original robbery. Because police had that probable cause to arrest Fernandez, his absence from the residence was “objectively reasonable” and therefore the Randolph exception should not apply.

Alito also said that the objections of an individual to the search of a residence do not last past that individual’s presence. It does not matter that the officers in question knew that Fernandez did not want the residence searched. As long as Fernandez wasn’t present, and his removal by the police was “objectively reasonable,” police could search the residence with the permission of another occupant.

Alito’s opinion was joined by Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, Steven Breyer, and Anthony Kennedy. Scalia filed a concurring opinion reiterating his disagreement with the decision in Randolph and pointing out that he believes it might have been relevant if Fernandez had a property right in the residence, but that the issue was not raised. Thomas filed a concurring opinion reiterating his disagreement with the decision in Randolph.

Justice Ruth Bader Ginsberg wrote the dissenting opinion, which was joined by Justices Elena Kagan and Sonya Sotomayor. Ginsberg argued that permitting police to remove an objecting occupant and then search a residence was an impermissible end run around the Fourth Amendment’s requirement of a search warrant, and needlessly weakens that protection of individual liberties.

Life Without Parole For Juveniles Defined, Rejected By Nebraska Supreme Court

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The Nebraska Supreme Court vacated the sentences of three men, Juan Castaneda, Eric Ramirez, and Douglas Ramitch, who were convicted as teenagers to a sentence of life without parole. A district court will now re-sentence all three men, taking additional factors of their youth at the time that could mitigate their sentences.

Underlying the case was a 2012 decision from the United States Supreme Court, Miller v. Alabama (132 S.Ct. 2455), which held that a sentence of life without parole for a crime committed by a juvenile violated the Eighth Amendment to the United States Constitution and its guarantee that citizens will be free from “cruel and unusual punishment.”

It was not immediately clear upon the decision in Miller, however, that the sentences in question would have been impermissible. Under Nebraska law at the time of sentencing, individuals have a right to parole once they served one-half of a minimum sentence. However (at least for Castaneda), the only sentence entered was “life imprisonment.” The Nebraska Supreme Court ruled that, because it is impossible to calculate what half of a “life imprisonment” sentence is, functionally that means the sentence is life without parole, even if that does not expressly appear on the sentence itself.

The State further argued that the Miller ruling should not apply because Castaneda had the possibility of parole in the form of a sentence commutation. Under Nebraska law, the Board of Pardons (specifically, the Governor, the Attorney General, and the Secretary of State) can commute a sentence, which would make the individual eligible for parole.

But the Nebraska Supreme Court said that the mere possibility of a commutation from the Board of Pardons (a function of the executive branch of Nebraska’s government) does not satisfy the requirements of the United States Supreme Court in Miller. Instead, the right of parole for juveniles sentences to life imprison must be “meaningful” and not subject to “executive clemency.”

Castaneda and the other two individuals will be re-sentenced by a district court judge. They may still face life imprisonment, so long as there is a possibility of parole in compliance with Miller and the terms of the new Nebraska Supreme Court decisions.

The full text of the decisions can be found at State v. Castaneda (287 Neb. 289), State v. Mantich (287 Neb. 320), and State v. Ramirez (287 Neb. 356).