Commentary

Nebraska is a state of innovators in the law

April 11, 2022 4:00 am
Nebraska Supreme Court

The Nebraska Supreme Court is housed at the Nebraska State Capitol Building in Lincoln. (Rebecca S. Gratz for the Nebraska Examiner)

Editor’s note: This is the first of two columns about the profession of law in Nebraska.

The law, as complex as it may seem, is quite simply the moral code we all share. It is our society codified with structures that may be used to uplift or burden those who live by it and under it.

I am an attorney. I chose the law as a career largely because of my passion for history. In no other profession is history more important. In law the concept of precedent is critical. We look to the history, the historical context of when a law was created, to determine its meaning. The exact language used to create a law is of course important, but it must always be viewed in relation to the events of the time. And when those events are no longer germane to the current situation, precedent is overturned, and we start anew.

Over the years, I have been privileged to witness many leaders in the law. They range from purists to activists, from judges to law students, and I have been inspired by all of them. In Nebraska, we have something special going on, and we need to pause to appreciate our attributes and build from there.

Early career

I started my legal career in private practice in Omaha. As a young attorney, I would go over to the Northrup Jones Café for coffee in the morning to mingle with other attorneys and judges. I was in awe of these practitioners and watched more deals being cut there that in any other place in town. Across Nebraska, wherever there was a courthouse, there was always a similar gathering place. As I took on more labor relations business, I made many trips across the state to meet with civic leaders and attorneys and hammer out agreements.

In one case, I was representing a client in court for the first time, and the other attorney was crossing some lines. Finally, Judge John Grant, well-respected by everyone in the courthouse, called the opposing counsel and me to the bench and told me if I did not start objecting, the judge would do so on my behalf. That’s when I realized that perhaps creating laws in the Legislature was a better fit for me. On a side note, I was once called to the bench by another judge who informed me he always carried a loaded gun when he was on the bench, going so far as to show me the gun. I have never been quite sure why he shared that with me.

Attorneys in public service

We are fortunate to have attorneys who devote their professional expertise to either prosecutorial or public defender roles. We need individuals who represent their clients, whether the state or the accused, with zeal and ability. But most importantly, we need attorneys on both sides to recognize the humanity of those involved. This is at the core of America’s shared moral code. We must never forget we are dealing with a fellow human who, no matter how heinous the alleged crime, is still human.

My son, John Ashford, is one of these amazing public servants. He has spent time on both sides of the criminal process, first with 10-plus years as a public defender and now as a city prosecutor. I am so proud he has taken on the family tradition of public service and even more proud of the attorney he has become. He is not afraid to take a case to court and would counsel his clients to reject deals if he knew it was not in their best interest.

Attorneys in the offices of public defender, county attorney and city prosecutor are the guardians of the rights guaranteed to us in the Constitution.

Justices and judges

We do things right in Nebraska by appointing our judges instead of electing them in a political process. We do have the ability to vote on whether a judge should be retained, but we keep the position as far out of the political realm as possible. And that’s the way it should be. The political process is fraught with the obscene amounts of money that must be raised to make it into office. The temptation to submit to the special interests who write the biggest checks is there for too many as it is. To remain faithful to our constitutional roots, we must prevent this from happening in the judicial branch.

The Nebraska Supreme Court administers the probation for the judicial system so the justices can coordinate its programs and keep a firm handle on sentencing and corrections. This structure, unique in the country, enables the judicial branch to provide for the best chance for successful re-entry for those who have served time in our prison system. With the leadership of Chief Justice Mike Heavican, Nebraska has been able to reunite youths with their families sooner, providing them with an opportunity to lead productive lives and resulting in reduced recidivism. The chief justice has also worked with the Legislature to study the impact of legislation on both the courts as well as the citizenry. The Legislature is then able to make policy shifts as necessary.

Our prison system is broken. Nebraska’s prison system is the most overcrowded in the nation and sadly, as of this writing, there is no consensus on a way to reduce the overcrowding. The executive branch has placed the emphasis on building a new prison, while the legislative and judicial branches have sought a data-driven approach to reduce the prison population. This problem has been kicked down the road to new generations of legislators for some time now and has been politicized and subjected to hyperpartisanship. The goal must be to reduce the prison population, reduce recidivism, provide programming for re-entry and alter sentencing guidelines to reduce sentences where possible in a manner that does not jeopardize the public safety. We must reject any proposal that limits us only to increasing prison capacity.

Throughout the state we have judges at all levels who make positive differences in the lives of Nebraskans. As stated before, Chief Justice Heavican has been generous with the expertise and experience of the judicial branch to help inform legislators regarding the impact of legislation and policies. And when special needs are identified, the Supreme Court has worked with judges to create solutions. My brother, Judge Mark Ashford, recognized the special needs of veterans. During the time I was working on the federal legislation necessary to build our new ambulatory care center at the Omaha VA Medical Center, Mark was working on a collaboration between the criminal justice system and partners including mentors, mental health and addiction treatment providers, and local and federal veterans agencies to establish a Veterans Treatment Court in Douglas County. This problem-solving court provides justice-involved veterans an alternative to the traditional criminal justice system and was established in November 2016. (This preceded the passage of my legislation by a month, so Mark won our competition to see which brother could get his initiative across the finish line first.) Sadly, we lost Mark in 2018 and, with his death, lost a leader in treatment courts and a mentor to many.

Other judges are actively involved in bettering their communities across the state, working from the bench and in private endeavors. I look to the example set by County Court Judge Donna Taylor in the 7th Judicial District, covering Antelope, Cuming, Knox, Madison, Pierce, Stanton and Wayne Counties. She serves the legal profession as vice president of the Nebraska County Judges Association and is an active member of the bench. Judge Taylor serves her community as a coordinator for 5th Grade Job Shadow, regional coordinator for the Nebraska High School Mock Trial Project and, in 2013, received the Nebraska Supreme Court Distinguished Judge Award for Service to the Community, the highest honor given by the chief justice. Judges like Judge Taylor are working tirelessly throughout the state to hear full dockets of cases, ensure justice is administered fairly and improve their communities.

The courts’ ability to influence the policy that the legislative branch codifies is evidenced by the passing of the 1991 Dispute Resolution Act, which created regional mediation centers across the state. Once again, because of the ability of judicial and legislative branches to work together, Nebraska was a vanguard in providing a structure for alternative dispute resolution. The use of mediation and alternative dispute resolution is a problem-solving process which gives the parties the opportunity to reach meaningful and mutual agreements in a private setting without having to use the public courtroom. This is frequently more positive for the parties and frees up the courts’ time for more serious matters.

Tuesday: Private practice lawyers, the Legislature and the responsibility of citizens.

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Brad Ashford
Brad Ashford

Brad Ashford was a public servant and attorney. He served four terms in the Nebraska Unicameral Legislature and one term in the U.S. House of Representatives. Brad's later focus was on bringing a New Attitude to all involved in governance — to work together without regard to labels. He died April 19, 2022. His widow, Ann Ashford, continues to share some of Brad's essays with the Nebraska Examiner.

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