Non-Profit Series: 1. What is a Non-Profit Organization?

Written by Sagan L. Carman-Downer

Have you and a group of your peers started or considered starting a non-profit organization? It can be difficult when starting out to decide whether creating a formal non-profit entity is necessary in your situation. And if it is necessary, figuring out the next steps you need to take can be overwhelming. This article will start a mini-series discussing non-profit organizations and answering some common questions.

First, it is important to understand what a non-profit organization is and what differentiates it from a traditional business entity. The main distinction is that a non-profit’s goal or purpose is not to generate a profit for its shareholders. That is not to say, though, that a non-profit will not generate money. The difference lies in how that money is distributed. Non-profit organizations utilize that money to further one or more charitable purposes recognized by their state, while traditional business entities typically distribute their profit among the business’s owners.

Next, it is worth noting that the requirements for recognizing a non-profit for purposes of state law are not identical to those for federal law. Non-profit entities are creatures of state law. Thus, the requirements you must meet to establish a formal non-profit will depend on the state in which you are located. The main question the state will examine is the purpose for which the organization is formed. There are numerous purposes that state law typically recognizes as charitable. These purposes will be addressed in a later article. For now, it is enough to understand that what is charitable will depend on your state’s laws.

While this may come as a surprise to some, an organization that is considered a non-profit for purposes of state law, is not necessarily a non-profit for purposes of federal law. In fact, federal law does not expressly recognize “non-profit organizations.” Instead, federal law provides that certain organizations, meeting specific requirements, are exempt from paying federal income tax. Thus, you may sometimes hear non-profits referred to as “tax-exempt organizations” in reference to federal law.

In sum, a non-profit is an organization formed and operated for some charitable purpose that is recognized by state law. If that non-profit meets certain federal requirements, it may be a tax-exempt organization, meaning it does not have to pay federal income tax. While many of the state and federal requirements are the same or similar, they are not always identical, so it is possible that a non-profit organization recognized by a state would still be required to pay federal income tax.

What is a Preliminary Hearing? And what do I need to know about it?

Written by Tana M. Fye

If a person is charged with a felony, one of the very first hearings that will be scheduled is called a preliminary hearing. This type of hearing is not scheduled in cases where a person is only charged with misdemeanors, so people are often confused about what exactly happens at the preliminary hearing.  

A preliminary hearing is a hearing where the State (through the County Attorney or the Attorney General) has to show (1) that there is probable cause to believe that what was charged actually happened, and (2) that the person charged is the person who committed that act. Probable cause is the standard. And probable cause is a much lower standard than reasonable doubt, the standard used at trial. Consequently, it is much easier for the State to show probable cause and win at the preliminary hearing than it is to prove the case beyond a reasonable doubt and win at the trial.

A defendant (the person charged with the crime) has two options as it relates to the preliminary hearing. One option is to have the preliminary hearing, where the State would try to prove up the two items discussed above. The second option that a defendant has is to waive his/her right to preliminary hearing. This waiver can happen either in the courtroom, or using a document called a Waiver of Right to Preliminary Hearing. Both essentially accomplish the same thing, giving up the ability to challenge probable cause. 

There are several reasons that a person may want to waive his/her right to a preliminary hearing. They include (but aren't limited to): the ability to screen for drug court, to curry favor with the prosecutor to try to get a more favorable plea offer, to obtain discovery or reports more quickly, because the judge has already found probable cause, because a better strategy may be to file suppression motions than to waste time on a preliminary hearing. 

There are several reasons that a person may want to have his/her preliminary hearing. They may include: putting witnesses or a law enforcement officer on the record, because the Probable Cause Affidavit left out key information that may show that there is not probable cause.

In any event, if you are charged with a felony, you should seek the advice of a competent criminal defense attorney who can evaluate your particular case and circumstances and arrive at the best strategy for you. No two cases are the same, and each requires individual attention and discussion with a criminal defense attorney.

Rural Areas Need More Lawyers

I live and work primarily in rural Nebraska.  And I hear about and see first hand that there is a shortage of lawyers able to handle the caseload that exists.  The American Bar Association recently wrote a fantastic article about this issue, and how different states are seeking to address it.  Really a lawyer shortage equates to a justice shortage, because of the long distances that people have to travel to find attorneys and the cost associated with doing so.  I applaud the work of the State Bars that are trying to find solutions, and hope that this will continue.

Lawyers Need to Be GALs for Juveniles

I applaud G. Michael Fenner's position taken on lawyers v. non-lawyers acting as Guardians ad Litem for children in juvenile cases.  I believe that it is absolutely necessary for children to be represented by attorneys in these cases, as to take away this right to counsel for children would leave them the only parties unrepresented in these matters.  Parents have attorneys, the Department of Health and Human Services has attorneys, and the State has County Attorneys.

The right to counsel for children involved in juvenile proceedings should be a no-brainer.  And in fact, many states are moving toward a model with lawyer GALs, rather than away from it.  I would hate to see Nebraska moving in the wrong direction by taking away children's right to counsel in these matters.

Thank you to G. Michael Fenner for taking this position, and summarizing it so succinctly.

Prosecutors Reading Inmate/Lawyer E-mails

I just finished reading this article in the New York Times.  It was quite troubling.  It is a hallmark of our law that attorney-client communications are privileged, meaning that they are not subject to review by law enforcement, county attorneys, judges, or others.  I cannot fathom why there would be a distinction between written correspondence sent through the mail and written correspondence sent via the internet.

Certainly I understand (and regularly advise my incarcerated clients) that their communications, whether they be written, telephonic, or otherwise, with others (i.e. not their attorney) are subject to review by the jail, law enforcement, and prosecutors.  In fact, I have seen situations where those very communications lead to new charges for witness tampering, as well as being used as proof for the underlying offense.  And this, from society's prospective, makes sense to ensure that witnesses aren't being tampered with, criminal activities are not ongoing, public safety, etc.

But I do have a problem with inmates being lead to believe that their conversations with their attorneys are private/confidential/privileged, and then those conversations and statements being used against them.  This is just plain wrong, and I believe contrary to our system of law and justice.

Moreover, as the Court recently recognized in the Riley case, how we communicate with each other and interact with our world is changing.  When these types of systems are put in place to facilitate regular and easy contact between incarcerated clients and their attorneys (which I applaud), then they need to be protected just as more antiquated systems for contact (such as the mails).  Otherwise, these systems are entirely useless to attorneys as a means to communicate with incarcerated clients.

A Bit of Good News

A bit of good news in one of my cases.  Please see the write up in the Kearney Hub.

Holdrege Has It!

Holdrege, Nebraska created this video, and yours truly was tapped to be a part of it.  Please feel free to check it out if you're interested!