State ex rel. Unger v. Johnson

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State ex rel. Unger v. Johnson

Case Number
S-15-0808
Call Date
March 30, 2016
Court Number
Lancaster
Case Summary

A-15-0808 State ex rel Michael Unger, Sheriff of the County of Stanton, Nebraska (Appellant) v. State of Nebraska; Honorable Mark A. Johnson, District Judge; The State of Nebraska District 7 Probation Office; and the State of Nebraska Office of Probation Administration

Lancaster County, Judge Robert R. Otte

Attorneys: Vincent Valentino, Brandy Johnson (Appellant) --- Douglas Peterson (Attorney General) and Elizabeth Gregory (Assistant Attorney General)

Civil: Denial of a writ of mandamus under the Nebraska Public Records Act, Neb. Rev. Stat. ' 84-712 et seq.

Proceedings below: After a hearing, the district court denied Appellant's request for a writ of mandamus compelling production of a victim impact statement submitted to the Probation Office and included in a Presentence Investigation Report finding it was protected by a statutory privilege and was not a public record subject to disclosure under the Public Records Act.

Issues:

1 . The District Court erred in finding that Dillon Fales' statement to the court is a public record, and he is a "victim" entitled to submit a statement under Neb. Rev. Stat. ' 29-2261(3). 2. The District Court erred in finding that Neb. Rev. Stat. ' 29-2261(3) and (6) are applicable to shield the documents from public disclosure. 3. The District Court erred in failing to find that the attorney representing Dillon Fales waived any privilege of Fales by requesting the document be disclosed to him so as to be produced in discovery in his civil case. 4. The District Court erred in failing to determine that there was no answer filed by the Respondent as required by law, and that such failure was a waiver of the privilege found by the Court. 5. The District Court erred in not considering legal precedent from other jurisdictions that had similar laws and constitutional provisions in interpreting whether a "victim impact statement" was a public record.