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The NE Law Express is available to members of the Nebraska State Bar at no additional charge.

Nebraska State Bar Association NE Law Express for March 23, 2007

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NE Law Express that interests you.

Cases affecting the following practice areas are summarized in today's NE Law Express:

Jurisdiction, Contract Claim of State Employees
LB 775 Tax Exemption, Timing
Political Subdivisions, Appeal and Error, Evidence
Political Subdivisions, Tort Claims Act, Presentation of Claim before Political Subdivision, Withdrawal
Sick Pay, Pensions, Contract
Speeding Violation, Evidence, Radar Equipment
Withdrawal of Claims, Timliness, Premature Withdrawal

These Bar Events links give you information about upcoming programs and activities:

April 3, 2007 - NCLE Teleseminar: LLCs and Insolvency
April 3, 2007 - NCLE Lunch and Learn: Employment Immigration Issues
April 4, 2007 - NCLE Lunch and Learn: Academic Freedom Issues Facing Institutions Today
April 5, 2007 - NCLE Live Webcast: Special Needs Trusts for Individuals with Disabilities
April 10, 2007 - NCLE Teleseminar: Update for Attorneys Advising Physicians and Dentists, Part 1
April 10, 2007 - Swearing In Ceremony
April 11, 2007 - NCLE Teleseminar: Update for Attorneys Advising Physicians and Dentists, Part 2
April 28, 2007 - 3rd Annual Barristers' Ball - "An Evening on the Orient Express" - Contact Sam Clinch for more information
Buy Tickets Online
May 18, 2007 - 4th Annual Greater Nebraska Golf Scramble - Bayside Golf Club in Brule
Information & Golfer Registration

For more information about TELESEMINARS, LUNCH & LEARN SEMINARS and LIVE WEBCASTS contact Kathryn Bellman.

SPRING WEBCAST SCHEDULE
APRIL TELESEMINAR SCHEDULE
MAY TELESEMINAR SCHEDULE

These links provide you with information on existing Member Benefits:

Case Summaries

Jurisdiction, Contract Claim of State Employees

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In Halpin v. Nebraska State Patrolmen’s Retirement System, 211 Neb. 892, 898, 320 N.W.2d 910, 914 (1982) the Nebraska Supreme Court determined that Nebraska State Patrol officers employed before 01/04/79 are entitled to receive payments for unused sick leave accumulated during their last 3 years of employment included in their retirement annuities. When Halpin was decided, State Patrol officers received 240 hours of sick leave per year under Nebraska statute. Later, a labor agreement reduced the sick leave hours from 240 to 108. The officers sued, alleging that the Nebraska State Patrol Retirement System, the Public Employees Retirement Board, the State of Nebraska, and Anna Sullivan, director of the Public Employees Retirement Board, could not change sick leave hours included in the officers’ retirement calculation. The district court agreed with the officers. The Court ruled that the district court erred in finding that 240 hours of unused sick leave was part of the Officers’ retirement program. Further, the Court found the officers’ contract was not impaired when the sick leave provision was changed in a 1993 bargaining agreement. Accordingly, the Court reversed the decision of the district court.

Livengood v. Nebraska State Patrol Ret. Sys., 273 Neb. 247 (2007)

Supreme Court Headnotes

Jurisdiction:

1. [Appeal and Error.] The question of jurisdiction is a question of law, which an appellate court resolves independently of the trial court.

Statutes:

1. [Appeal and Error.] Statutory interpretation is a question of law, which an appellate court resolves independently of the trial court. ••• If possible, an appellate court will try to avoid a statutory construction which would lead to an absurd result.

Constitutional Law:

1. [Legislature:] (Immunity: Waiver.] Neb. Const. art. V, § 22, permits the State to lay its sovereignty aside and consent to be sued on such terms and conditions as the Legislature may prescribe. ••• Neb. Const. art. V, § 22, is not self-executing, but instead requires legislative action for waiver of the State’s sovereign immunity.

2. [Contracts.] Not every change in a contract constitutes an impairment under the Nebraska Constitution. The change must take something away and not work to the parties’ benefit. Absent such a showing, no proof of any impairment exists.

Immunity:

1. [Waiver.] Waiver of sovereign immunity will be found only where stated by the most express language or by such overwhelming implications from the text as will leave no room for any other reasonable construction.

Pensions.

1. The presuit filing requirement under Neb. Rev. Stat. § 81-1170.01 (Reissue 1999), as interpreted by The State v. Stout, 7 Neb. 89 (1878), is inapplicable in retirement benefits controversies. ••• The specific number of unused sick leave hours included in a retirement calculation does not constitute a retirement program under Neb. Rev. Stat. § 81-1377(2) (Reissue 1999).

Class Actions:

1. [Taxes:] (Immunity: Waiver.) In the absence of specific statutory authority waiving governmental immunity to permit representative suits, class actions cannot be maintained to recover taxes paid.

2. [Immunity:] (Waiver.) The waiver of sovereign immunity in Neb. Rev. Stat. § 25-21,206 (Reissue 1995) is broad enough to encompass class actions.

Actions:

1. [Taxes.] An action cannot be maintained by one taxpayer on behalf of himself or herself and others similarly situated to recover back taxes.

Employer and Employee:

1. [Pensions: Contracts.] An employee who relies upon an offer of deferred benefits to his or her detriment, and to the benefit of the employer who gains the employee’s valuable services and loyalty as a consequence thereof, has expectations protected by contract law.

Date Filed and Case No.: March 23, 2007. No. S-05-710.

Internet Address: http://www.supremecourt.ne.gov/opinions/2007/march/mar23/s05-710.pdf

Court Appealed From: District Court for Lancaster County: Paul D. Merritt, Jr., Judge.

Attorneys for the Appeal: Jon Bruning and Fredrick F. Neid for Nebraska State Patrol Retirement System et al., appellants and cross-appellees. Vincent Valentino for Terry B. Livengood et al., on behalf of themselves and all other members of the Nebraska State Patrol employed on or before January 4, 1979, appellees and cross -appellants.

Justices: Wright, Connolly, Gerrard, Stephan, McCormack, and Miller-Lerman, JJ.

Not Participating: Heavican, C.J.

Authored By: Connolly, J.

Summary: In Halpin v. Nebraska State Patrolmen’s Retirement System, 211 Neb. 892, 898, 320 N.W.2d 910, 914 (1982) the Nebraska Supreme Court determined that Nebraska State Patrol officers employed before January 4, 1979, are entitled to receive payments for unused sick leave accumulated during their last 3 years of employment included in their retirement annuities. When it decided Halpin, State Patrol officers received 240 hours of sick leave per year under Nebraska statute. In 1993, the Law Enforcement Bargaining Unit entered into a contract with the State of Nebraska that changed the sick leave provision so that all employees would receive a flat 108 sick leave hours per year. Under the new contract, then, officers can have, at most, 81 sick leave hours (one-fourth of 324 hours) included for purposes of calculating their annuities compared to 180 hours under the previous sick leave provision. Consequently, the appellees, retired law enforcement officers of the Nebraska State Patrol who were employed on or before January 4, 1979, and retired on or after July 1, 1993 (hereinafter the Officers), now earn only 324 hours of sick leave in their last 3 years of employment. The Officers sued the Nebraska State Patrol Retirement System, the Public Employees Retirement Board, the State of Nebraska, and Anna Sullivan, director of the Public Employees Retirement Board, in her official capacity (Appellants), alleging that the appellants could not change sick leave hours included in the officers’ retirement calculation. The Officers sought a declaration that their retirement annuities had been miscalculated. The district court determined that 240 sick leave hours per year included in the annuity, as first represented to the Officers, is an integral part of their retirement program. Therefore, the court found that the State and the Law Enforcement Bargaining Council violated Nebraska Revised Statutes § 81-1377(2) by bargaining a retirement program. The court entered a declaratory judgment against the Appellants, ordering the retirement benefits to be recalculated on 240 sick leave hours per year instead of 108 hours under the contract. Appellants appealed and the Nebraska Supreme Court wrote the opinion.

Two arguments which Appellants assigned as error addressed by the Nebraska Supreme Court were that the district court erred:

1. In Ruling that Neb. Rev. Stat. § 25-21,206 (Reissue 1995) Authorizes the Jurisdiction of the Court over a Declaratory Action Against the Appellants Instituted Directly in the District Court and Finding the Requirements of the Administrative Procedure Act Inapplicable: The Appellants conceded that this is a contractual dispute and that Nebraska Revised Statutes § 25-21,206 waives immunity. But they contend that case law requires that the Officers present their contract claims to legislatively designated state agencies or offices before judicial review. In this case, Appellants argued that this lawsuit could not originate in district court but instead, the Officers were required to initially present their claims to the Public Employees Retirement Board (hereinafter the Board). The claims would then be subject to judicial review under the Administrative Procedure Act. The Court concluded that under Neb. Rev. Stat. §§ 84-901 to 84-917 (Reissue 1999) the Officers were not obligated to first present their claims to the Board.

2. Concluding That a Representative Suit May Be Brought in District Court Against the Appellants: Here, § 25-21,206 waives immunity over the Officers’ claims, so the Court looked to that statute to determine whether it also waives immunity in class actions. Section 25-21,206 waives the state’s immunity in contract actions, providing:

The state may be sued in the district court of the county wherein the capital is situated in any matter founded upon or growing out of a contract.... [T]he rules of pleading and practice in regard to other civil actions in the district court shall be observed in all actions by or against the state, as far as applicable except as otherwise herein provided.

The Court ruled that while the waiver of sovereign immunity in § 25-21,206 does not specifically mention class actions, it concluded that the waiver is broad enough to encompass class actions. The district court did not err in permitting the Officers’ lawsuit to proceed as a class action.

The Nebraska Supreme Court said this case boiled down to it’s decision on two questions: (1) whether reducing the amount of sick leave implicates a retirement program, which cannot be bargained under Neb. Rev. Stat. § 81-1377(2) (Reissue 1999), and (2) whether by reducing sick leave hours, the appellants unconstitutionally impaired the officers’ contract rights in their retirement benefits.

1. Was the district court correct when it found that by reducing sick leave included in officers’ retirement annuities, the State bargained a retirement program, which is prohibited under § 81-1377(2). The Officers contended that the bargaining agreement entered on their behalf, which reduced the amount of sick leave they could earn each year, violates statutory authority and argued that the amount of sick leave hours to which they are entitled is part of the retirement program and is not bargain able under § 81-1377(2). The district court agreed with the Officers, finding that 240 hours of sick leave—as represented to the Officers when they were hired—is an integral part of the retirement program. The Legislature has not defined the term “retirement program.” The Court found that contrary to the Officer’s argument, the sick leave provision is not directly related to the retirement program. “The sick leave provisions have a purpose completely unrelated to the retirement plan. Sick leave permits employees to be absent from work for various reasons related to illness throughout the year” they wrote. Although unused sick leave hours included in the retirement calculation do affect the annuity, the specific number of hours does not constitute a retirement program under § 81-1377(2). The number of hours is a variable used to calculate the annuity amongst the many factors which similarly affect the amount of the annuity. “Wages, for example, like sick leave hours, affect the retirement calculation” said the Court. “But common sense suggests that wages would not be considered as a retirement program, thus prohibiting bargaining over wages. The specific number of sick leave hours is no more a part of the Officers’ retirement program than their salaries.”

Further, the Nebraska State Patrol Retirement Act does not make 240 hours a part of the Officers’ retirement program, instead, § 81-2026(l)(c) simply requires that unused sick leave be included, without specifying at what rate. The Nebraska State Patrol informed the Officers that they would receive 240 hours of sick leave per year and that their retirement calculations would include unused sick leave. But the record shows that these representations were independent and did not cause 240 hours of sick leave to become an integral part of the retirement program. The Court concluded that the Appellants did not bargain the Officers’ retirement program by reducing the sick leave the Officers could receive.

2. Did the district court unconstitutionally impaire the officers’ contract rights in imposing these retirement benefits? Here, the Officers did have contractual rights to 240 hours of sick leave per year when they began their employment with the Nebraska State Patrol, as represented when they were hired. But, the Court found there is a critical distinction in the case law as in those cases, the State unilaterally took away benefits it had promised to the plaintiffs. “The reduction was part of a bargaining agreement. The provision for 108 hours of sick leave became part of a contract, bargained for on behalf of the Officers by the Law Enforcement Bargaining Council” said the Court. “Not every change in a contract constitutes an impairment under the Nebraska Constitution. The change must take something away and not work to the parties' benefit. Absent such a showing, no proof of any impairment exists” said the Court The change to sick leave here occurred in a bargained-for contract, agreed upon after negotiations took place—not a unilateral decision of the State or its agency. The contract entered on behalf of the Officers was valid and binding on them and the Court concluded that the Appellants did not unconstitutionally impair the Officers’ contract.

Conclusion: The district court had jurisdiction to hear the Officers’ claims as § 25-21,206 permitted the Officers to file suit in this retirement benefits dispute in the district court without presuit filing requirements. And the Officers properly presented their lawsuit as a class action against the State. However the Court found that the district court erred in finding that 240 hours of unused sick leave was part of the Officers’ retirement program. Further, the Appellants did not impair the Officers’ contract when they changed the sick leave provision in the 1993 bargaining agreement. Accordingly, the Court reversed the decision of the district court ordering the Appellants to recalculate the Officers’ retirement annuities. REVERSED

LB 775 Tax Exemption, Timing

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This appeal arose from a district court’s order affirming a decision by the State Tax Commissioner to deny a portion of appellant’s claim for a credit refund under the Employment and Investment Growth Act, (“L.B. 775.”) The project agreement between Appellant and the Department of Revenue specified that appellant could claim its credits only against purchases or leases made after the start of the taxable year following the year in which Appellant first met the minimum levels of employment and investment required to qualify for L.B. 775 incentives. The primary issue in this appeal is whether that limitation is contrary to Appellant’s rights under the plain language of L.B. 775. The other issue in this appeal is whether, in an administrative appeal, a district court can affirm on grounds other than those of the administrative agency. The Nebraska Supreme Court found no merit in either argument and affirmed.

Farmland Foods v. State, 273 Neb. 262 (2007)

Supreme Court Headnotes

Administrative Law:

1. [Judgments:] (Appeal and Error.) A judgment or final order rendered by a district court in a judicial review pursuant to the Administrative Procedure Act may be reversed, vacated, or modified by an appellate court for errors appearing on the record. ••• When reviewing an order of a district court under the Administrative Procedure Act for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable.

2. [Appeal and Error.] No rule of law precludes an appellate court from affirming an agency decision stating a correct reason and correct facts simply because a portion of those facts was not explicitly connected with the agency’s correct reason.

Date Filed and Case No.: March 23, 2007. No. S-05-1148.

Internet Address: http://www.supremecourt.ne.gov/opinions/2007/march/mar23/s05-1148.pdf

Court Appealed From: District Court for Lancaster County: John A. Colborn, Judge.

Attorneys for the Appeal: Steven D. Davidson for Farmland Foods , Inc., and the Members of the Unitary Group, appellants. Jon Bruning and L. Jay Bartel for State of Nebraska et. al., appellees.

Justices: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack and Miller-Lerman, J.J.

Authored By: McCormack, J.

Summary: Farmland Foods, Inc., and the Members of the Unitary Group (collectively Farmland) appealed from the district court’s order affirming a decision by the State Tax Commissioner (the Commissioner) to deny a portion of Farmland’s claim for a credit refund under the Employment and Investment Growth Act, commonly referred to as “L.B. 775.” The project agreement between Farmland and the Department of Revenue (the Department) specified that Farmland could claim its credits only against purchases or leases made after the start of the taxable year following the year in which Farmland first met the minimum levels of employment and investment required to qualify for L.B. 775 incentives.

In the appeal before the Nebraska Supreme Court, Farmland asserted that the district court erred in (1) affirming the decision of the Commissioner to partially deny Farmland’s refund claim, (2) affirming the decision of the Commissioner for a reason different than the reason articulated by the Commissioner, and (3) finding that L.B. 775 credits may not be used to obtain a refund of sales and use tax paid on purchases made before minimum investments levels were first met by the taxpayer.

Did the district court err when it affirmed the decision of the Commissioner to partially deny Farmland’s refund claim? Did the court err in finding that L.B. 775 credits may not be used to obtain a refund of sales and use tax paid on purchases made before minimum investments levels were first met by the taxpayer? One of the incentives under L.B. 775 is credits, computed in accordance with § 77-4105(4), which can be used “to obtain a refund of sales and use taxes ... which are not otherwise refundable that are paid on purchases, including rentals, for use at the project.” The Court said it is clear that under both L.B. 775 and the Agreement, credits are earned only during years that the required levels are met and that no refund claims may be filed until after meeting the required levels. Farmland argued that the credits may be redeemed for project-related purchases made both before and after reaching required levels. “The most that can be said is that L.B. 775 is silent on the subject of whether credits can be used for refunds of purchases made prior to reaching required levels” said the Court. “Nothing in the language of L.B. 775 contradicts the provision in the Agreement between Farmland and the Department that the credit refund is limited to purchases ‘made after the start of the taxable year following the year in which the required minimum levels of employment and investment were first met.’” Accordingly, the Court found no merit to Farmland’s first and third assignments of error.

Did the district court err in affirming the decision of the Commissioner for a reason different than the reason articulated by the Commissioner? Farmland next argued that even if the Court found that L.B. 775 does not contradict the language in the Agreement regarding credit refunds, they could affirm only the Commissioner’s denial of $211,489.32 in credit refunds. Farmland asserts that the Court must reverse the Commissioner’s denial of the $327,082.99 amount despite the fact that it also represents purchases made prior to reaching the required levels. To affirm the denial of $327,082.99, according to Farmland, would violate the “cardinal principle of administrative law” that “[t]he grounds upon which an administrative order must be judged are those upon which the record discloses thatits action was based, and no others.” Here, the Commissioner articulated only the statute of limitations as a reason for denying the $327,082.99, and there was no dispute that the statute of limitations does not bar the refund. The Court wrote that it believed Farmland misconstrued the “cardinal principle” it invokesed from a U.S. Supreme Court case In circumstances presented there, the U.S. Supreme Court said that the appellate court cannot take the place of the agency just as it cannot take the place of the jury. Subsequent decisions from other courts have held that an appellate body is without power to affirm on a different ground only when doing so would usurp the agency’s role as a finder of fact or as a maker of policy, or would otherwise intrude upon the domain entrusted to the administrative agency. Here, there is no dispute that the $327,082.99 represents purchases made before the required levels were met. “No rule of law precludes this court from affirming an agency decision stating a correct reason and correct facts simply because a portion of those facts was not explicitly connected with the agency’s correct reason” said the Nebraska Supreme Court. “It would indeed be wasteful to remand this cause for the perfunctory exercise of explicitly connecting the obvious, that the $327,082.99, representing purchases made before the required levels were met, also falls under the Commissioner’s stated reasoning for the $211,489.32 amount.”

Conclusion: The Court found no merit to Farmland’s argument that the plain language of L.B. 775 contradicts the limitation of the Agreement to purchases made after reaching required levels. Further, the Court affirmed the Commissioner’s denial of that portion of the requested refund that represented purchases made before reaching required levels. AFFIRMED.

Political Subdivisions Tort Claims Act, Appeal and Error, Evidence

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In this slip and fall case, plaintiff alleged the City of Omaha was negligent in failing to warn the public of a dangerous condition, failing to provide safe passage of a right-of-way, and failing to exercise due care in the operation of its business. Following a bench trial, the court determined that the City was not negligent and dismissed the petition. The Nebraska Supreme Court affirms.

Richter v. City of Omaha, 273 Neb. 281 (2007)

Supreme Court Headnotes

Political Subdivisions Tort Claims Act:

1. [Appeal and Error.] In actions brought pursuant to the Political Subdivisions Tort Claims Act, the findings of a trial court will not be disturbed on appeal unless they are clearly wrong. ••• In actions brought pursuant to the Political Subdivisions Tort Claims Act, when determining the sufficiency of the evidence to sustain the trial court’s judgment, it must be considered in the light most favorable to the successful party; every controverted fact must be resolved in favor of such party, and it is entitled to the benefit of every inference that can reasonably be deduced from the evidence.

Rules of Evidence:

1. [Proof:] Words and Phrases. The best evidence rule is a rule of preference for the production of the original of a writing, recording, or photograph when the contents of the item are sought to be proved.

Evidence:

1. [Intent.] The intentional spoliation or destruction of evidence relevant to a case raises an inference that this evidence would have been unfavorable to the case of the spoliator. Such an inference arises only where the spoliation or destruction was intentional and indicates fraud and a desire to suppress the truth, and it does not arise where the destruction was a matter of routine with no fraudulent intent.

Date Filed and Case No.: March 23, 2007. No. S-05-1550.

Internet Address: http://www.supremecourt.ne.gov/opinions/2007/march/mar23/s05-1550.pdf

Court Appealed From: District Court for Douglas County: Peter C. Bataillon, Judge.

Attorneys for the Appeal: John K. Green for Ruth E. Richter, appellant. Michelle Peters for City of Omaha, a Municipal Corporation, appellee.

Justices: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack and Miller-Lerman, J.J.

Authored By: Gerrard, J.

Summary: Ruth E. Richter sustained personal injuries when she stepped into a hole located on a public right-of-way in front of her home. Richter claims the City of Omaha (the City) was negligent in failing to warn the public of a dangerous condition, failing to provide safe passage of a right-of-way, and failing to exercise due care in the operation of its business. Following a bench trial, the court determined that the City was not negligent and dismissed Richter’s petition.

Richter appealed and assigned that the district court erred in finding that she failed to prove by a preponderance of the evidence that the City was negligent. The Nebraska Supreme Court wrote the opinion.

Was the testimony sufficient to prove by a preponderance of the evidence that the City was negligent because the City destroyed relevant work orders while this lawsuit was pending?

In support of her argument, Richter relies on Neb. Evid. R. 1004, which is an exception to Neb. Evid. R. 1002, commonly known as the best evidence rule or the original document rule.

Richter argued that the original work reports were not required at trial and other evidence of the contents of writing, recording, or photograph are admissible since the work reports were under the control of the City. The Court said that Richter misunderstands rule 1004 as Richter did not proffer other evidence of the contents of any work orders. “Moreover, rules 1002 and 1004 address the admissibility of evidence, not the weight that evidence should be given.” Rule 1004 simply addresses when other evidence of the contents of a document may be admitted. Richter did not claim on appeal that evidence was excluded which should have been admitted under the rule, nor did she proffer evidence at trial under rule 1004 that was excluded. Richter has not established the foundation for such an inference. It is a general rule that the intentional spoliation or destruction of evidence relevant to a case raises a presumption, (or, more properly, an inference) that this evidence would have been unfavorable to the case of the spoliator. Such a presumption or inference arises, however, only where the spoliation or destruction was intentional and indicates fraud and a desire to suppress the truth, and it does not arise where the destruction was a matter of routine with no fraudulent intent. Here Richter offerd nothing in the way of argument as to what, in the record, affirmatively demonstrates that the City destroyed the work orders intentionally or in bad faith. In order for Richter to receive the adverse inference drawn from the destruction of evidence, she must show that the City’s actions indicated fraud and a desire to suppress the truth. She failed to do so here.

Was the evidence sufficient? Here, the only evidence offered by Richter was her own testimony that the City created the hole when it removed a traffic sign. When considering the evidence in the light most favorable to the City, the Court concluded that the district court’s factual determination that Richter failed to present sufficient evidence that the City was negligent was not clearly wrong.

Conclusion: For the reasons set out in the opinion, the Court affirmed the judgment of the district court in favor of the City, and dismissing Richter’s petition. AFFIRMED.

Political Subdivisions Tort Claims Act, Presentation of Claim before Political Subdivision, Withdrawal

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Under the Political Subdivisions Tort Claims Act (PSTCA), a claimant must file a tort claim with the governing body of the political subdivision before filing suit. If the governing body has not made final disposition of the claim within 6 months after it is filed, the claimant may then, and under this decision by the Nebraska Supreme Court, only then, withdraw the claim and file suit.

Geddes v. York County, 273 Neb. 271 (2007)

Supreme Court Headnotes

Summary Judgment.

1. Summary judgment is proper when the pleadings and evidence admitted at the hearing disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

2. [Appeal and Error.] In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.

Statutes:

1. Absent anything to the contrary, statutory language is to be given its plain and ordinary meaning.

2. [Appeal and Error.] Statutory interpretation presents a question of law. When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusions reached by the trial court.

3. [Immunity:] (Waiver.) Statutes that purport to waive the protection of sovereign immunity of the State or its subdivisions are strictly construed in favor of the sovereign and against the waiver.

4. [Time:] (Words and Phrases.) Unless the context shows otherwise, the word “month” used in a Nebraska statute means “calendar month.” A calendar month is a period terminating with the day of the succeeding month, numerically corresponding to the day of its beginning, less one.

Political Subdivisions Tort Claims Act:

1. The Political Subdivisions Tort Claims Act is the exclusive means by which a tort claim may be maintained against a political subdivision or its employees.

2. [Waiver:] (Immunity.) The Political Subdivisions Tort Claims Act reflects a limited waiver of governmental immunity and prescribes the procedure for maintenance of a suit against a political subdivision.

3. [Notice:] (Time.) Because compliance with the statutory time limits set forth in Neb. Rev. Stat. § 13-906 (Reissue 1997) can be determined with precision, the doctrine of substantial compliance has no application.

Date Filed and Case No.: March 23, 2007. No. S-05-1359.

Internet Address: http://www.supremecourt.ne.gov/opinions/2007/march/mar23/s05-1359.pdf

Court Appealed From: District Court for York County: Alan G. Gless, Judge.

Attorneys for the Appeal: Kelly M. Thomas for Carole Geddes, Sole Heir at Law of Jane T. Schirmer, Deceased, appellant. Charles W. Campbell for York County, Nebraska, appellee.

Justices: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack and Miller-Lerman, J.J.

Authored By: Stephan, J.

Summary: Under the Political Subdivisions Tort Claims Act (PSTCA), a claimant must file a tort claim with the governing body of the political subdivision before filing suit. If the governing body has not made final disposition of the claim within 6 months after it is filed, the claimant may withdraw the claim and file suit. Jane T. Schirmer filed a tort claim with York County, Nebraska, on 04/21/03, and withdrew the claim no later than October 21. At the time of the withdrawal, the county had not made a disposition of the claim. On 05/07/04, Schirmer initiated an action by filing a complaint in the district court for York County alleging that she was injured as the proximate result of negligent conduct by an employee of the county and sought compensatory damages. Schirmer also alleged that she met the notice and withdrawal requirements of the PSTCA. In its answer, the county affirmatively alleged that Schirmer failed to comply with the requirement of § 13-906 because she withdrew her claim from county consideration before 6 months had passed from the date of its filing. Schirmer died during the pendency of this case. By stipulation, the county consented to the revival of Schirmer’s action by Carole Geddes, her sole heir. The district court subsequently ordered revivor of the action in Geddes’ name. On 10/17/05, the district court entered an order granting summary judgment in favor of the county and dismissed the case with prejudice. Applying the language of § 13-906, the court determined that the county had until the close of 10/21/03, “to render or not render a final disposition” of the claim. The court concluded that because Schirmer withdrew her claim before the end of that period, her action was not in compliance with the PSTCA and the statute of limitations barred refiling. Geddes appealed and the Nebraska Supreme Court moved the appeal to their docket.

Did the district court err in determining that Geddes prematurely withdrew her tort claim from York County and therefore did not file her action in compliance with the procedural requirements of the PSTCA?

Under the PSTCA “No suit shall be permitted under the [PSTCA] and sections 16-727, 16-728, 23-175, 39-809, and 79-610 unless the governing body of the political subdivision has made final disposition of the claim, except that if the governing body does not make final disposition of a claim within six months after it is filed, the claimant may, by notice in writing, withdraw the claim from consideration of the governing body and begin suit under such act and sections.” (§ 13-906) Based upon the initial clause of § 25-2221, Geddes argues that the statute does not apply to the calculation of the 6-month time period under § 13-906 because a different method of time computation is specified elsewhere in the PSTCA which governs all time periods set forth in the act (see § 13-919(1)) The Court was not persuaded by this argument. The language in § 13-919(1) described a specific circumstance in which the limitations period for filing suit may be extended. The fact that the Legislature chose to use a date of mailing to denote the first date of that period does not suggest an intent to override § 25-2221 with respect to other time periods specified in the PSTCA. We decline to extend the language of § 13-919(1) beyond its limited context. Using the time computation method specified in § 25-2221, the Court excluded 04/21/03 (the date on which Schirber filed her claim), so that the 6-month period began on 04/22/03. Unless the context shows otherwise, the word “month” used in a Nebraska statute means “calendar month” A calendar month is a period terminating with the day of the succeeding month, numerically corresponding to the day of its beginning, less one. Applying §§ 25-2221 and 49-801(13), the Court concluded that the district court correctly determined 10/21/03 to be the last day of the 6-month period which commenced when Schirmer filed her claim with the county clerk.

Determine next, whether Schirmer’s withdrawal of the claim was premature, the evidence reflected that the claim was withdrawn on either 10/20/03 or 10/21/03 (because the Court was reviewing a summary judgment, it gave Geddes the favorable inference of the later date.) Geddes contended that § 13-906 allows a claimant to withdraw a tort claim on the last day of the 6-month period after filing notice of the claim with the appropriate governing body. The district court, on the other hand, determined that a governing body has a full 6 months to render or not render a final disposition after which the claimant may then withdraw the claim (the difference between the two interpretations is a single day.) The Court found that the key phrase for purposes of this case is “within six months after it is filed,” which designates the period in which the governing body may consider a tort claim before it can be withdrawn for purpose of filing suit. Cleaning up some precedent which might have been confusing on the issue, the Court concluded that Schirmer’s claim was withdrawn prior to the expiration of the 6-month period specified in § 13-906, resulting in a failure to comply with a condition precedent to suit under the PSTCA. “Accordingly, the district court did not err in dismissing the action.” The Court acknowledged the apparent harshness of our application of the timing requirement in § 13-906 to this case but also recognized its duty to strictly construe the PSTCA in favor of the political subdivision and against the waiver of sovereign immunity. Moreover, given the clarity of the statutory text, the Court said it is certainly not a “trap for the unwary.” As they had noted before, "in the long run, experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law.” Because Schirmer withdrew her claim before it was pending for a full 6 months, the district court did not err in dismissing her suit.

Conclusion: The Court concluded that the withdrawal of Schirmer’s claim was not in strict compliance with the requirements of § 13-906 and that this failure to comply with a condition precedent to suit under the PSTCA entitled the county to a judgment of dismissal on its properly asserted affirmative defense. AFFIRMED.

Sick Pay, Pensions, Contract

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Livengood v. Nebraska State Patrol Ret. Sys., 273 Neb. 247 (2007)

Supreme Court Headnotes

Jurisdiction:

1. [Appeal and Error.] The question of jurisdiction is a question of law, which an appellate court resolves independently of the trial court.

Statutes:

Constitutional Law:

Immunity:

Pensions.

Class Actions:

2. [Immunity:] (Waiver.) The waiver of sovereign immunity in Neb. Rev. Stat. § 25-21,206 (Reissue 1995) is broad enough to encompass class actions.

Actions:

1. [Taxes.] An action cannot be maintained by one taxpayer on behalf of himself or herself and others similarly situated to recover back taxes.

Employer and Employee:

Date Filed and Case No.: March 23, 2007. No. S-05-710.

Internet Address: http://www.supremecourt.ne.gov/opinions/2007/march/mar23/s05-710.pdf

Court Appealed From: District Court for Lancaster County: Paul D. Merritt, Jr., Judge.

Justices: Wright, Connolly, Gerrard, Stephan, McCormack, and Miller-Lerman, JJ.

Not Participating: Heavican, C.J.

Authored By: Connolly, J.

Two arguments which Appellants assigned as error addressed by the Nebraska Supreme Court were that the district court erred:

Speeding Violation, Evidence, Radar Equipment

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In this case over a speeding ticket, the Nebraska Supreme Court notes that Nebraska law requires reasonable proof that the radar unit was accurate and functioning properly. This standard necessitates at least some indication of accuracy in the instrument used to test the radar unit. Here, the arresting officer used tuning forks to test the accuracy of his radar unit, and a document attesting to the tuning forks’ accuracy was admitted into evidence. The issue is whether that document was properly admitted. After reviewing the case, the Court affirmed.

State V. Jacobson, 273 Neb. 289 (2007)

Supreme Court Headnotes

Trial:

1. [Evidence:] (Appeal and Error.) A trial court’s determination of the admissi-bility of physical evidence will not ordinarily be overturned except for an abuse of discretion.

2. [Motor Vehicles:] (Proof.) Before evidence of vehicular speed determined by use of a speed measurement device is admissible, the State must establish with reasonable proof that the equipment was accurate and functioning properly at the time the determination of the speed of the vehicle was made. ••• To present “reasonable proof that a primary measuring instrument that measures the speed of a vehicle was operating correctly, one must show that such device was tested against a device whose instrumental integrity or reliability had been established. ••• Whether there is sufficient foundation evidence for the admission of physical evidence must necessarily be determined on a case-by-case basis.

Constitutional Law:

1. [Hearsay.] An out-of-court statement by a witness that is testimonial may not be admitted, under the Confrontation Clause, unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. ••• Only testimonial statements cause a declarant to be a “witness” within the meaning of the Confrontation Clause. ••• The initial step in a Confrontation Clause analysis is to determine whether the statements at issue are testimonial in nature and subject to a Confrontation Clause analysis. If the statements are nontestimonial, then no further Confrontation Clause analysis is required.

2. [Appeal and Error.] An appellate court reviews de novo a trial court’s determination of the protections afforded by the Confrontation Clause and reviews the underlying factual determinations for clear error.

Evidence:

1. [Proof]. A document is properly authenticated by evidence sufficient to support a finding that the matter in question is what its proponent claims. ••• Proper authentication may be attained by evidence of appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances, sufficient to support a finding that the matter in question is what it is claimed to be. ••• The authentication requirement does not demand that the proponent of a piece of evidence conclusively demonstrate the genuineness of his or her article, but only that he or she make a showing sufficient to support a finding that the matter in question is what its proponent claims.

Date Filed and Case No.: March 23, 2007. No. S-06-195.

Internet Address: http://www.supremecourt.ne.gov/opinions/2007/march/mar23/s06-195.pdf

Court Appealed From: District Court for Boone County, Michael Owens, Judge, on appeal thereto from the County Court for Boone County, Linda S. Caster-Senff, Judge. Judgment of District Court affirmed.

Attorneys for the Appeal: Bradley P. Roth for Jerry Jacobson, appellant. Jon Bruning and J. Kirk Brown for State of Nebraska, appellee.

Justices: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack and Miller-Lerman, J.J.

Authored By: Wright, J.

Summary: Jerry Jacobson was convicted of speeding by the county court for Boone County, Nebraska. The district court affirmed his conviction, and on appeal to the Nebraska Supreme Court, Jacobson challenges the sufficiency of the evidence which established the accuracy of the radar equipment used to determine the speed of his vehicle. He claimed the county court erred in admitting evidence regarding the accuracy of the radar unit.

On appeal, Jacobson asserted that the district court erred (1) in determining that sufficient evidence supported the conviction, because the State failed to prove all the elements under Neb. Rev. Stat. § 60-6,192(1) (Reissue 2004); (2) in determining that the county court properly allowed testimony and a document concerning the accuracy of the radar unit and tuning forks; and (3) in determining that Jacobson’s right of confrontation was not violated by admission of the document certifying the accuracy of the tuning forks.

Did the District Court err in not finding that the county court found that the State had presented evidence establishing the radar equipment’s accuracy pursuant to Nebraska Revised Statutes § 60-6,192(1)? The Nebraska Supreme Court has recognized that “[w]ithout some proof of reliability in the device used to test for accuracy in a primary device, a test for accuracy of the primary device is a meaningless exercise.” State v. Chambers, 233 Neb. 235, 241, 444 N.W.2d 667, 671 (1989). Thus, it has held that to present “reasonable proof” that the primary measuring instrument that measures the speed of a vehicle was operating correctly, one must show that such device was tested against a device whose instrumental integrity or reliability had been established. Here, the State presented proof that the radar equipment was accurate and functioning properly when the speed of Jacobson’s vehicle was determined as Stopak, the arresting officer, testified that he had conducted internal and external calibration checks on his radar unit at the beginning and end of his shift and that the radar unit was operating properly. The tuning forks used in the external checks had been specifically assigned to his radar unit and had been certified for accuracy by State Patrol technicians. “Thus, evidence of Jacobson’s speed determined by the use of Stopak’s radar unit was admissible under § 60-6,192(1) because the equipment’s accuracy had been established.”

Did the district court err in determining that the county court properly allowed testimony and a document concerning the accuracy of the radar unit and tuning forks authentication? Jacobson argued it was error to admit the “Certificate of Calibration and Accuracy” because it was not supported by sufficient foundation. Jacobson contends the certification document lacked proper foundation because it was neither notarized nor in the form of an affidavit. He also claimed Stopak had no personal knowledge of the information on the document because he had not tested the tuning forks or witnessed the tuning forks being tested. Stopak did not know the person who signed the certificate or whether the date on the document represented the date the equipment was tested, the date the certificate was signed, or both.

The Court pointed out the plain language of Neb. Evid. R. 901 is directory rather than mandatory. A document may be authenticated under § 27-901(2)(a) by testimony by one with personal knowledge that it is what it is claimed to be, such as a person familiar with its contents. Stopak’s testimony concerning his knowledge of the contents of the certification document and the circumstances surrounding its creation was sufficient evidence to prove that the tuning forks were independently tested for accuracy. The county court did not abuse its discretion in admitting the document.

Did the district court err in determining that the county court not finding that Jacobson’s right of confrontation was not violated by admission of the document certifying the accuracy of the tuning forks. Jacobson contended that his constitutional right to confront the witnesses against him was violated because he could not cross-examine the person who signed the “Certificate of Calibration and Accuracy.” The Court said the real issue is whether the document certifying the accuracy of the tuning forks was testimonial in nature and, therefore, subject to a Confrontation Clause analysis. Reciting from a case in which certification of a breath testing device was questioned on the same Confrontation Clause issue the Court recalled:

[The certification document] was prepared in a routine manner without regard to whether the certification related to any particular defendant. Indeed, the statements in [the certification document] were made in February 2004, and the crime in this case did not occur until June 2004. The statements made in [the certification document] were too attenuated from the prosecution of the charges against [the defendant] for the statements to be "testimonial” in the sense required under Crawford, Davis, (Citations in opinion) and the Confrontation Clause. State v. Fischer, 272 Neb. 963, 971-72, 726 N.W.2d 176, 182-83 (2007).

The Court ruled that the facts of Fischer are analogous to the present case. “Applying the reasoning of Fischer, we conclude that the statements in the document certifying the accuracy of the tuning forks were nontestimonial.” The statements contained in the certification document did not pertain to any particular defendant. They were made over 6 months before Jacobson was cited for speeding. Thus, the statements "were too attenuated from the prosecution of the [speeding charge] against [Jacobson] for the statements to be ‘testimonial.’” See Fischer, 272 Neb. at 972, 726 N.W.2d at 183. The statements in the document certifying the tuning forks as accurate were not testimonial in nature, and the county court did not err in admitting the document into evidence over Jacobson’s objection based on the Confrontation Clause.

Conclusion: The Court found that the county court did not abuse its discretion in finding that sufficient foundation had been laid for the certification document’s admission into evidence. The statements in the certification document were nontestimonial and, therefore, not subject to further analysis under the Confrontation Clause. AFFIRMED.

Withdrawal of Claim, Timliness, Premature Withdrawal

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Geddes v. York County, 273 Neb. 271 (2007)

Supreme Court Headnotes

Summary Judgment.

Statutes:

1. Absent anything to the contrary, statutory language is to be given its plain and ordinary meaning.

Political Subdivisions Tort Claims Act:

1. The Political Subdivisions Tort Claims Act is the exclusive means by which a tort claim may be maintained against a political subdivision or its employees.

Date Filed and Case No.: March 23, 2007. No. S-05-1359.

Internet Address: http://www.supremecourt.ne.gov/opinions/2007/march/mar23/s05-1359.pdf

Court Appealed From: District Court for York County: Alan G. Gless, Judge.

Attorneys for the Appeal: Kelly M. Thomas for Carole Geddes, Sole Heir at Law of Jane T. Schirmer, Deceased, appellant. Charles W. Campbell for York County, Nebraska, appellee.

Justices: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack and Miller-Lerman, J.J.

Authored By: Stephan, J.