Comments on: State Declines to File Brief in State v. Drahota (the Nebraska Free Speech / Cyberspace Law Case I’ve Blogged About)

By: Dan

Dan — Thu, 03 Dec 2009 06:58:28 +0000

The article is a short commentary that will be appearing soon on the online component of the Nebraska Law Review, which can be found here: http://lawreview.unl.edu/?page_id=28.

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Myrtle Beach Attorney — Thu, 03 Dec 2009 00:42:14 +0000

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By: Kent

Kent — Wed, 02 Dec 2009 04:29:30 +0000

First, thanks for all you share with the world here at VC.

I appreciate the reponse directed at Chaplinsky v. New Hampshire. The ruling in that case leaves me wanting.

Following various cases, I’ve found that most prosecutors do not like bloggers. Maybe they feel outnumbered.

I’d also like to know what “article” is coming from “Dan”.

By: Dan

Dan — Fri, 20 Nov 2009 20:13:58 +0000

I have picked up all the briefs from the Nebraska Supreme Court as I am currently writing an article about this case. It appears that the State is simply refiling the brief it originally submitted to the Nebraska Court of Appeals.

By: Soronel Haetir

Soronel Haetir — Wed, 11 Nov 2009 18:32:55 +0000

Or maybe the AG knows the state supreme court well enough to know this case is in the bag and no further action is actually required to secure a win.

By: Dave N

Dave N — Wed, 11 Nov 2009 04:43:57 +0000

Here are the Nebraska rules with respect to the default:

§ 2-110. Default in filing briefs.

(A) Appellant in Default – Failure to File a Brief. If appellant fails to file its brief within the time allowed by these rules, the Supreme Court Clerk shall mail notice to all pro se parties and all attorneys of record that appellant is in default for failure to file a brief and is required to file a brief within 10 days after receipt of such notice. Appellant’s failure to file a brief in response to the notice of default subjects the appeal to dismissal.

(B) Appellee in Default. Where the appellant’s brief has been properly served and filed, even if not within time, and an appellee’s brief has not been filed, appellee will be considered in default and appellant may proceed ex parte. If the appellee is in default, and after notice to the appellee, the case will be placed on the proposed call according to the original brief date of the appellee.

(C) Hearing Not Delayed. The hearing of a case will not be delayed by default of either party in serving or filing briefs, unless, for good cause shown, it is otherwise ordered.

So it isn’t an automatic win for the appellant. But being allowed to proceed ex parte is the next best thing.

By: Eugene Volokh

Eugene Volokh — Wed, 11 Nov 2009 02:13:37 +0000

We have been told that the state has deliberately decided not to file a brief.

By: Dave N

Dave N — Wed, 11 Nov 2009 01:36:21 +0000

When I clerked for the Utah AG’s criminal appeals section 20 years ago, my supervisor told me that on rare occassion, in egregious cases, the AG would confess error in the appellate courts.

It was my understanding that for political reasons, the elected AG had to sign-off personally on any such confessions since the local prosecutor would be less than thrilled with the AG undoing his or her work. Perhaps that is what happened in this case.

Or perhaps, as Edward A. Hoffman suggests, the attorney responsible for filing the brief missed a deadline. As a government attorney, I have seen that happen, too.

By: Edward A. Hoffman

Edward A. Hoffman — Wed, 11 Nov 2009 00:55:41 +0000

Missing the due date doesn’t necessarily mean the state has decided not to file a brief. I don’t know the rules in Nebraska, but in many jurisdictions the court can consider a brief that arrives late, especially if the party submitting it offers a legitimate explanation for the delay and properly seeks relief from any resulting default. I have now idea how plausible such a development is in your case, but it’s at least possible.

By: Tim

Tim — Tue, 10 Nov 2009 22:22:31 +0000

Don’t you think the government is ethically bound to defending its actions?

I’d rather see them write a three-word, “We were wrong” than not even have the decency to file a brief.

Can you explain more? Perhaps another post is in order to analyze the potential consequences of them refusing to file a brief.

By: David T.

David T. — Tue, 10 Nov 2009 20:33:13 +0000

While it is not in my college dictionary, “enheartening” can be found through google, often in fairly precious contexts. Why not “heartening”? [Good point, and I generally try to stick with the more idiomatic usage; updated the post accordingly. -EV]

By: Chris

Chris — Tue, 10 Nov 2009 19:17:52 +0000

Shouldn’t they have to confess error? Seems quite odd that they don’t have to say anything.

By: SuperSkeptic

SuperSkeptic — Tue, 10 Nov 2009 17:48:32 +0000

I wonder, did they make that decision before or after reading your brief?