Justia Government & Administrative Law Opinion Summaries

Appellants, three individuals, filed an initiative and referendum petition to refer a proposed ballot measure, which would have amended a city ordinance imposing an occupation tax, to the electorate of the City. The City filed a declaratory judgment action to have the proposed measure declared invalid. The district court ruled that the petition proposed a referendum measure that violated Neb. Rev. Stat. 18-2528(1)(a), which prohibits referendums that interfere with a city's contractual obligations. The electors voted on the proposed amendment. The district court subsequently ordered the county clerk not to count the votes cast and not to report or certify the results. The Supreme Court affirmed in part and reversed in part and vacated, holding (1) the district court lacked the authority to block the count of the votes cast because the City failed to comply with the statutory requisites that would allow a court to take that action; (2) the district court erred in ruling that the proposed referendum violated section 18-2528(1)(a); and (3) the proposed referendum violated a common-law single subject rule, which invalidates proposed ballot measures that ask voters to approve independent and distinct measures in a single vote.

This case involved a constitutional challenge to an occupation tax levied pursuant to Neb. Rev. Stat. 2-3226.05. Appellant landowners, who were residents and taxpayers of natural resources districts in the Republican River basin, brought an action for declaratory and injunctive relief seeking to have the occupation tax declared unconstitutional and its levy and collection enjoined. The district court upheld the constitutionality of the occupation tax, determining that it did not violate the Nebraska Constitution as (1) the occupation tax was not a property tax but, rather, an excise tax levied upon the activity of irrigation; (2) the occupation tax did not result in a commutation of taxes; and (3) section 2-3226.05 was not special legislation. The Supreme Court affirmed, holding (1) the judgment in Garey v. Nebraska Department of Natural Resources did not bar this action under the doctrine of res judicata; and (2) the landowners did not meet their burden of establishing that the occupation tax was unconstitutional.

The Commission of Industrial Relations was presented with an industrial dispute between the Professional Firefighters Association of Omaha, Local 385, and the City of Omaha. Prior to resolution of the industrial dispute, the Commission issued a status quo order requiring the City to adhere to the employment terms in place at the time. Local 385 then instituted proceedings in the district court, alleging that the City was in violation of the status quo order. The district court entered an order (1) finding that the City was in violation of the status quo order by failing to retain the required minimum number of fire personnel, and (2) determining that the City was not in violation of the status quo order by failing to maintain a specific number of fire captains based on the Commission's previous determination that the issue was one of management prerogative. The City appealed and Local 385 cross-appealed. The Supreme Court dismissed the appeal, holding the appeal was moot because the industrial dispute between the parties had been resolved in an order that also dissolved the status quo order.

Employee was injured and began receiving disability benefits. Later, Employer and its workers' compensation insurance carrier (collectively Employer) stopped paying Employee benefits because of his lack of cooperation in obtaining treatment and adhering to his pain rehabilitation program. Employee petitioned for past-due benefits, rehabilitation, and future medical treatment. On February 29, 2008, the workers' compensation court ordered Employee to refrain from abusive communications and to enroll in a pain rehabilitation program. On March 28, 2008, the court dismissed Employee's petition and terminated his benefits for contempt and unreasonably refusing to cooperate. Later, Employee filed a further petition in the workers' compensation court, seeking further benefits. The trial court entered an order on January 10, 2010 vacating the March 28 order. A review panel affirmed and remanded to the trial court, holding that the workers' compensation court had no authority under the Nebraska Workers' Compensation Act to terminate Employee's right to future benefits for contemptuous behavior. The Supreme Court affirmed, holding that a compensation court is not authorized to dismiss a petition as a sanction for a party's conduct either because an injured worker failed to cooperate with treatment or rehabilitation or as an exercise of contempt authority.

Joni Mueller, an employee of the Lincoln Public Schools (LPS), sought workers' compensation benefits after she suffered a whole body injury arising out of and in the course of her employment. At issue was how to calculate Mueller's average weekly wage for workers' compensation purposes. As a school employee, Mueller worked only during the school year and did not work during summer vacation, but her salary was spread out so that she was paid every month of the year, including the summer months. The trial court determined the the basis of calculation should be what Mueller earned during the six months before her injury, not necessarily what she was paid, and awarded Mueller temporary and permanent disability benefits based upon its determinations. The review panel of the Workers' Compensation Court affirmed the award. On appeal, the reversed, holding that the trial court erred in not calculating Mueller's average weekly wage based upon her actual weekly income. Remanded.

An irrigation district (FCID) petitioned the Department of Natural Resources (DNR) to reevaluate a portion of the Republican River Basin according to the criteria in Neb. Rev. Stat. 46-713 and to determine whether the basin met the criteria to be considered "overappropriated" rather than "fully appropriated." If the status of the basin was changed to "overappropriated," the DNR could assert more authority over the basin. The DNR denied FCID's petition, finding the statute allowed the DNR to declare a river basin overappropriated only if it was subject to an interstate cooperative agreement. Because the basin was subject to an interstate compact, the DNR declared it did not have the authority to change the status as an interstate compact was not the equivalent of an interstate cooperative agreement. The FCID appealed. The DNR cross-appealed, alleging that FCID failed to demonstrate an injury in fact for standing purposes. The Supreme Court found the FCID failed to plead an injury in fact and therefore did not have standing. The Court dismissed the cause for lack of jurisdiction and did not reach the merits of the litigation.

Appellants, four natural resources districts ("NRDs"), appealed the Department's 2009 order finding that in 2008, the basin was fully appropriated. Michael Jacobson, a landowner in the basin, cross-appealed. As a threshold matter, the supreme court found the NRDs had standing to challenge the Department's determination, but Jacobson lacked standing because he failed to allege actual or imminent harm. The court then reversed and vacated the Department's order, holding it to be arbitrary and invalid because (1) the Department failed to conform to its own regulations when it determined the basin was fully appropriated and failed to apply its methodologies in a consistent manner, resulting in a designation that was arbitrary and capricious; and (2) the Department failed to plainly describe its methodologies so that they could be replicated and assessed in compliance with Neb. Rev. Stat. 46-713(1)(d).

The Nebraska Department of Health and Human Services (DHSS) determined that Darline Liddell-Toney was required to participate in a self-sufficiency program in order to receive benefits under the Welfare Reform Act, despite her documented disability. The district court affirmed the DHSSâ determination. Ms. Liddell-Toney appealed, arguing that the district court erred in finding that the DHSS provided sufficient evidence to prove she was not entitled to an exemption from participating in the program. The Supreme Court found that the evidence clearly indicated that Ms. Liddell-Toney was prevented from working for a substantial period due to her disability. The Court held that the district court erred when it affirmed DHSSâs determination that Ms. Liddell-Toney did not qualify for an exemption from participating in the self-sufficiency program. The Court reversed the judgment of the district court, and remanded the case for further proceedings.

L.G. Barcus & Sons, Inc. (Barcus) was held liable to the Village of Hallam under the state One-Call Notification System Act (Act) for damage to Hallamâs sanitary sewer system. The Act established a one-call notification center so that excavators can learn of any underground facilities in the area where excavation is planned. The general contractor in this case complied with the Act. Acting under its contractorâs compliance, Barcus excavated on a private landownerâs property that ultimately ruptured Hallamâs sewer lines. Among the issues Barcus raised on appeal is whether the excavator can delegate its duties under the Act to another party to escape liability. The Supreme Court found that Barcus could not rely on anotherâs compliance to excuse its own noncompliance. The Court affirmed the judgment of the district court.