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Trouble in North Platte

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Ruffled:

--- Quote from: AAllen on March 04, 2012, 03:38:58 PM ---Why what part of the Statute is newer is important is that when there is a conflict in the law, as there is here, the newest addition wins.

--- End quote ---

It's all still law. There is no conflict. Section 1 doesn't say that a pardon is the only way to restore some of your civil rights.


--- Quote ---The order shall include information on restoring other civil rights through the pardon process, including application to and hearing by the Board of Pardons.
--- End quote ---

As a matter of fact, the part that says "including application to and hearing by the Board of Pardons" is redundant because that's the only way the pardon process works. Now, if someone who has a set aside applies for a pardon, "The Nebraska Board of Pardons has the free discretion to grant or deny a pardon of a lawfully imposed sentence for any reason or no reason at all."

So, if a person with a valid set aside subjects himself to the pardon process, it can actually result in him losing rights that he currently holds with his set aside.

Ruffled:

--- Quote from: AAllen on March 04, 2012, 02:57:36 PM ---The difference in how we are reading this law is the same reason that the pardons board would see things one way and the court another.  The winning argument would be which portion of the statute in question is newer, and which way would the court rule?  Of course that would be only for a particular case because the next case they could go a different direction.

--- End quote ---

This has already been settled by the Nebraska Supreme Court in the Spady case, in which the set aside law was found to be constitutional.

The Pardons Board is attempting to place itself above the legislature, the courts, and the Nebraska Supreme Court. It's a wrongheaded position.

I don't see how the Pardons Board can revoke something that was granted 27 years ago, but that appears to be what they've done here.

AAllen:
Ruffled 29-2264 was changed in 2002, most likely in part because of the Spady case, to limit the set aside.  This was again edited in 2005 to further emphasize this limitation.  Having a conviction "set aside" now seems to only include the restoration of voting rights after 2 years, for other civil rights you would need to go the pardon route.  Since this is newer law it over rides the older portions that you are quoting from section 4. 

But for the purposes of this case the conviction was set aside before this change so his rights should be restored, but with the confusion created by the changes and when they happened it will need to be reviewed carefully by the prosecuting attorneys office in discussions with his attorney, and may even require a formal opinion from the AG's office.


--- Quote from: Ruffled on March 04, 2012, 04:01:02 PM ---It's all still law. There is no conflict. Section 1 doesn't say that a pardon is the only way to restore some of your civil rights.

--- End quote ---

Since section 1 says that your right to vote is restored 2 years after the completion of probation when a conviction is set aside, and that "other civil rights" are restored by the pardons board, then that would be interpreted as the only right restored by having a conviction set aside is the right to vote since there is a different method provided for the further restoration of rights.  I will note again that this would need to be reviewed by the Supreme Court, and does not apply to the case at hand since it was set aside under the old law.

Ruffled:
I believe that you are mistaken about set asides no longer restoring any civil rights.

According to Section 1 of 29-2264, it doesn't take a set aside to regain the right to vote. That is automatic two years after the end of probation.

The law is in the process of being updated again this year (the first reading was on January 5, 2012), and the language regarding set asides is unchanged, still allowing the restoration of all civil rights not specifically excluded within Section 5 of the statute.

The form for the court order regarding a set aside for the presiding judge to sign is current as of November 2011, and states that it restores civil rights "allowed by law." This would be all those rights not precluded from exclusion by 29-2264.

http://www.supremecourt.ne.gov/forms/county/CC-6-11-2.pdf

Take a look at the date on the form.

Since it doesn't take a set aside to regain the right to vote, what good would a set aside be if it restores NO civil rights?

AAllen:
I guess that I should also note that the Nebraska Supreme Court has a history of ignoring Legislative intent and the law as written and doing what they want, which usually gives them the power.  For an example look at our Self Defense Laws and how they state what the person defending themselves feels is a threat but the court adds what a reasonable person would find threatening.

My guess is that the pardons board reads things the same way, where it gives them the power.

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