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socrateaser
socrateaser, Lawyer
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Experience:  Retired (mostly)
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I need to cite the following information in an appel I am pursuing.

Resolved Question:

I need to cite the following information in an appel I am pursuing. "A constitutional issue can be raised for the first time in appeal." I need any laws, rules, or cases, preferably from nebraska that I can cite for this as a proposition of law.
Submitted: 1 year ago.
Category: Legal
Expert:  Dwayne B. replied 1 year ago.

JD 1992 :

I can run a case law search for you and then give you the results of that search to go through, would that help?

JD 1992 :

Also, when do you need this? I am tied up most of today but can work on it tonight.

Customer:

I paid for urgency. Yes you can work on it later, but I should be refunded $10 or so, since the response would not be so quick. Nebraska cases would carry most weight, and I need a case that works in the Nebraska Court of Appeals. Just because it worked in Iowa, for example, doesn't mean it applies to Nebraska.

JD 1992 :

For some reason my last post didn't show. I am going to opt out and let someone else assist you. No need to respond, someone else should pick ip

Expert:  socrateaser replied 1 year ago.

Hello,

Different contributor here. Please permit me to assist. I regret that the previous contributor was unable to assist you immediately. Unfortunately, even though I have been online most of the day, this is the first moment that your question appeared. I hope you will not hold this against me, because I am answering your question within approximately 5 minutes of my first review. I can provide you with the definitive citations for your chosen jurisdiction, because I have comprehensive access to one of the world's largest legal research services.

That said, Nebraska case law does not generally support your proposition. In STATE v. 1987 JEEP WAGONEER, 241 Neb. 397, 488 N.W.2d 546 (1992), the Nebraska Supreme Court writes:

  • It is well settled that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion before a tribunal having jurisdiction to determine it. ConAgra, Inc. v. Cargill, Inc.,223 Neb. 92, 388 N.W.2d 458 (1986). A constitutional question should be raised at the earliest opportunity. Id. Generally, a constitutional question not properly raised in the trial court will not be considered on appeal. State v. Dixon,237 Neb. 630, 467 N.W.2d 397 (1991); State v. Oldfield,236 Neb. 433, 461 N.W.2d 554 (1990). In the absence of plain error [emphasis added], when an issue is raised for the first time in an appellate court, the issue will be disregarded inasmuch as the trial court cannot commit error regarding an issue never presented and submitted for disposition in the trial court. State v. Dixon, supra.

 

 

  • "Plain error is error plainly evident from the record and of such a nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process." In re Interest of Mainor T., 267 Neb. 232, 674 N.W.2d 442 (NE Sup. Ct. 2004).



Hope this helps.

Customer: replied 1 year ago.


Ok, I understand. If you make a mistake and don't raise the question as soon as possible, then the appellate court can not consider it. But I read on the Internet a constitution quesion can be first raised on appeal. "A constitutional issue can be raised for the first time in appeal."

 

But I did raise the question in my brief in the case history which states in part:

 

The Defandants denied several of the Plaintiff's requests for discovery....The Plaintiff was denied acces to Bellevue University backup tapes by the Court...", but I did not argue this. Didn't I raise the question?

 

So you are telling me that a constitutional issue can not be raised for the first time in appeal." and the person who put this on the Internet if full of shit?

 

Maybe I should re-phrase it as the Judge abused his discretion in not allowing the information requested in discovery to be denied??????

 

 

Expert:  socrateaser replied 1 year ago.

Ok, I understand. If you make a mistake and don't raise the question as soon as possible, then the appellate court can not consider it. But I read on the Internet a constitution quesion can be first raised on appeal. "A constitutional issue can be raised for the first time in appeal."

But I did raise the question in my brief in the case history which states in part:

The Defandants denied several of the Plaintiff's requests for discovery....The Plaintiff was denied acces to Bellevue University backup tapes by the Court...", but I did not argue this. Didn't I raise the question?

 

A: If you mean that the defendant's refused to comply with your discovery request, and you did not move to compel and receive an order from the court compelling discovery, then that is not a constitutional issue -- it would be a simple waiver of your procedural right to compel discovery.

 

If you did move to compel discovery and the court refused to grant the order, then that's a question of the court's discretion in determining whether or not your discovery request was "reasonably calculated to lead to the discovery of admissible evidence," or not discoverable because of privilege or public policy, or some other basis. Still, this would not be a constitutional issue -- unless the denial of the motion to compel was so plainly a violation of due process that the appellate court would have to reverse the decision -- in which case, that would be "plain error."

So you are telling me that a constitutional issue can not be raised for the first time in appeal." and the person who put this on the Internet if full of shit?

 

A: My citations represent the decisional law of the Supreme Court of Nebraska. If your case concerns a constitutional issue being considered in a Nebraska appellate court, then the precedent that I have stated is the exclusive authority for the court to consider the issue. You'll have to be the judge of who is or is not full of ****.

Maybe I should re-phrase it as the Judge abused his discretion in not allowing the information requested in discovery to be denied??????

 

A: Maybe I have it backwards in my first answer above. If you opposed discovery and the court issued an order compelling you to produce, then the issue may be an abuse of discretion, or there may be clear decisional law that would have prevented discovery. Without knowing exactly what evidence is involved and what was decided, I can't comment intelligently about this issue.

 

I'm getting the feeling that you may be tempted to expand this conversation to include an issue that is outside the scope of your original question. If you would like me to conduct research, then you will have to open a new Q&A session for the new legal issue, and thoroughly explain what's in play.

 

Hope this helps.

 

Hope this helps.

socrateaser, Lawyer
Category: Legal
Satisfied Customers: 33369
Experience: Retired (mostly)
socrateaser and 18 other Legal Specialists are ready to help you
Customer: replied 1 year ago.


I understand. I didn't ask the question correctly and didn't give enough details of the case for it to be answered. Oh well, live and learn. You seem to have answered the question as I posed it, so you will get paid, but I am still disfatisfied that just becuase I wasn't a lawyer, and didn't precisely ask the question correctly, I didn't get the answer I was expecting. The Judge denied me information that would have proved, beyond a shadow of doubt, that that the Defendants lied. They kept coming up with different reasons why they couldn't get the information, but frankly, I don't buy it, but the Judge did. Oh well, back to digging dandylions, I guess.

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