Tagged: nebraska supreme court

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

If you need to talk with an 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.

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.

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.

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

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.

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).