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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 January 11, 2008

Use our Short Cuts to link to the area of today's
NE Law Express that interests you.

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

• Administrative License Revocation, Enhancement, Hearing
• Due Process, Constitutional Law, Legislative Delegation to Private Citizens
• Real Property, Boundaries, Doctrine of Mutual Recognition and Acquiescence

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

• January 31, 2008 - NCLE LUNCH & LEARN: Exploring the Attitudes of LGBTQ Youth in Foster Care (12 PM - 1 PM, cost is $10)
• February 5, 2008 - NCLE Teleseminar: Immigration Law for General and Transactional Counsel, Part 1, Noon CST.
• February 6, 2008 - NCLE Teleseminar: Immigration Law for General and Transactional Counsel, Part 2, Noon CST
• February 8, 2008 - NCLE Seminar: LB 554 Training in North Platte
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• February 12, 2008 - NCLE Teleseminar: Family Law: Estate and Tax Guide to Divorce
  Noon CST.
• February 21, 2008 - NCLE Teleseminar: Prudent Trustees: Duties and Liability
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• February 26, 2008 - NCLE Teleseminar: Ethics in Litigation, Part 1, Noon CST.
• February 27, 2008 - NCLE Teleseminar: Ethics in Litigation, Part 2, Noon CST.
• March 14, 2008 - NCLE Estate Planning and Probate Seminar
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For more information about LUNCH & LEARN SEMINARS, TELESEMINARS and LIVE WEBCASTS and to register contact Kathryn Bellman.

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Here the Nebraska Supreme Court holds that enhancement of an ALR for a prior ALR is allowed during the ALR hearing and does not violate defendant’s due process rights.

Stenger v. Department of Motor Vehicles, 274 Neb. 819 (2008)

Supreme Court Headnotes

Constitutional Law:

1.  Statutes:

     a.  Appeal and Error. Whether a statute is constitutional is a question of law; accordingly, the Nebraska Supreme Court is obligated to reach a conclusion independent of the decision reached by the court below.

     b.  Proof. The burden of establishing the unconstitutionality of a statute is on the one attacking its validity. ••• The unconstitutionality of a statute must be clearly demonstrated before a court can declare the statute unconstitutional.

     c.  Presumptions. A statute is presumed to be constitutional, and all reasonable doubts will be resolved in favor of its constitutionality.

Moot Question.

1.  A case becomes moot when the issues initially presented in litigation cease to exist or the litigants lack a legally cognizable interest in the outcome of litigation.

Due Process:

1.  Notice. Procedural due process limits the ability of the government to deprive people of interests which constitute “liberty” or “property” interests within the meaning of the Due Process Clause and requires that parties deprived of such interests be provided adequate notice and an opportunity to be heard.

Motor Vehicles:

1.  Licenses and Permits: Revocation. Suspension of issued motor vehicle operators' licenses involves state action that adjudicates important property interests of the licensees.                                                                                            

Administrative Law:

1.  Motor Vehicles: Licenses and Permits: Due Process. Before a state may deprive a motorist of his or her driver’s license, that state must provide a forum for the determination of the question and a meaningful hearing appropriate to the nature of the case.

2.  Due Process: Notice: Evidence. In proceedings before an administrative agency or tribunal, procedural due process requires notice, identification of the accuser, factual basis for the accusation, reasonable time and opportunity to present evidence concerning the accusation, and a hearing before an impartial board.

Date Filed and Case No.: January 11, 2008. No. S-06-1176.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/january/jan11/s06-1176.pdf

Court Appealed From: District Court for Platte County: Robert R. Steinke, Judge.

Attorneys for the Appeal: Jon Bruning, Edward G. Vierk, and Melissa Johnson-Wiles for Department of Motor Vehicles of the State of Nebraska and Beverly Neth, Director of the Department of Motor Vehicles of the State of Nebraska, appellants. William D. Kurtenbach for Aaron J. Stenger, appellee.

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

Authored By: Wright, J.

Summary: Aaron J. Stenger was arrested for operating a vehicle in violation of Neb. Rev. Stat. § 60-6,196 (Reissue 2004). The chemical test of Stenger's blood revealed a blood-alcohol content of .125. After his arrest, Stenger was given a "NOTICE/SWORN REPORT/TEMPORARY LICENSE" (temporary license), which was valid for 30 days. The back of the temporary license stated:

"ACCORDINGLY, NOTICE IS HEREBY GIVEN THAT YOUR OPERATOR'S LICENSE AND/OR OPERATING PRIVILEGE WILL BE REVOKED IN THIRTY DAYS FOR A PERIOD OF: (B) ... (3) One year, if your test results was [sic] 0.08 or more and you have ONE OR MORE PRIOR revocations within a 12-year period . . . ."

The temporary license also provided that:

[t]he Director will consider the following issues at the hearing ....

(1) Whether the law enforcement officer had probable cause to believe you were operating or in the actual physical control of a motor vehicle in violation of Section 60-6,196 or a city or village ordinance enacted pursuant to Section 60-6,196;

(2) Whether you were operating or in actual physical control of a motor vehicle with an alcohol concentration of 0.08 or more.

An administrative license revocation (ALR) hearing was held during which, a certified copy of Stenger's driving abstract was offered into evidence by the hearing officer which indicated that Stenger had a prior license revocation. Stenger objected to the offering of the abstract. Following the hearing, Department of Motor Vehicles and its director, Beverly Neth, (collectively the Department) revoked Aaron J. Stenger’s licence for a period of one year. Afterwards, Stenger alleged, in a petition for further review, that he was deprived of due process of law because the Department, without notice or opportunity to challenge or present evidence, expanded the issues at the ALR hearing to include evidence pertaining to his prior revocation. The district court concluded that the ALR statutory scheme for enhancement denied Stenger due process. Because the court determined Stenger was denied due process of law with respect to the director’s enhancement determination, the court modified the director’s order to reflect that Stenger’s Nebraska driver’s license and/or operating privileges should be revoked for the statutory period without enhancement. The Department appealed.

Is the action moot? Stenger had completed the 90-day revocation and now argues that the case is moot. However, the Department argues that 270 days of revocation are still in dispute or that the public interest exception applies. The Nebraska Supreme Court concluded that the action is not moot as the district court held that the ALR statutory scheme for enhancement denied Stenger due process of law. Thus, the constitutionality of the statute was squarely before them.

Was the ALR statutory scheme constitutional? The question presented is whether Stenger was afforded notice and an opportunity to be heard regarding the issue of enhancement pursuant to § 60-498.02. The Court noted that the burden of establishing the unconstitutionality of a statute is on the one attacking its validity, a statute is presumed to be constitutional, and all reasonable doubts will be resolved in favor of its constitutionality. Further, the unconstitutionally of a statute must be clearly demonstrated before a court can declare the statute unconstitutional. In the case at bar, the district court concluded that the ALR statutory scheme violated the procedural due process rights of motorists who were subject to an enhanced penalty for a prior revocation because the statutory scheme did not provide notice that enhancement would be an issue at the ALR hearing. The Court considered this decision a determination by the district court that the ALR scheme was unconstitutional as applied to Stenger in the enhancement of his license revocation. The Court said the basic question presented is whether Stenger received notice that his prior ALR would be used for purposes of enhancement and whether he was provided a reasonable opportunity to be heard on this issue. Here, Stenger made no showing to the hearing officer that the abstract contained any inaccuracy pertaining to his driving record or the prior ALR revocation. Rather, the foundation for Stenger’s attack of the ALR proceeding is based upon his claim that “[w]hen the Administrative License Revocation (ALR) statutory scheme (60-498.01 through 60-498.04, R.R.S., 1943 (Reissue 2004)), is examined, it is readily apparent that the [Department] did not have any opportunity to challenge the actual existence of any prior ALR revocation which may appear on his driving abstract.” Stenger relied on Hass v. Neth, 265 Neb. 321, 657 N.W.2d 11 (2003), and § 60-498.01 to support his contention that the issues at the revocation hearing are limited to whether the officer had probable cause to believe that the person was operating or in control of the motor vehicle in violation of § 60-6,196 and whether such person had a blood-alcohol concentration in violation of § 60-6,196. The Court noted that its holding in Hass does not prevent the consideration of a motorist’s driving abstract for enhancement purposes. The Hass court did not discuss the issue of enhancement or the admissibility of the motorist’s driving abstract at the ALR hearing as the issue under § 60-498.02(1) was not raised. The Court that Hass did not interpret § 60-498.01 to exclude the receipt of evidence for the purpose of enhancement at a revocation hearing either. Therefore, they concluded that § 60-498.01 does not bar the receipt of a driving abstract to enhance a revocation, and held that a driving abstract may be admitted in an ALR proceeding for that purpose. They noted that this holding does not prohibit a party from contesting the accuracy of the abstract as to whether the party did in fact have a prior revocation. The Court concluded that the district court erred as a matter of law in determining that Stenger was denied due process. Given the facts that the statute so provides and that Stenger was furnished a copy of the abstract, which was offered in evidence by the Department to enhance the revocation, they concluded that the requirements of due process have been met. Stenger had notice of the prior revocation and an opportunity to contest the existence of that revocation at the hearing.

Conclusion: The Nebraska Supreme Court ruled that the district court erred in finding that Stenger was denied due process of law with respect to the director’s ALR enhancement determination. For the reasons stated in the opinion, they reversed the judgment of the district court and remanded the cause to the court with directions that it affirm the decision of the director to revoke Stenger’s license for a period of 1 year. Stenger was to be given credit for the 90 days of revocation already completed. REVERSED AND REMANDED WITH DIRECTIONS.

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In this decision by the Nebraska Supreme Court, the primary issue presented is whether a zoning regulation requiring that the granting of a “mutual” easement, constitutes an unauthorized delegation of legislative authority to private citizens?

Coffey v. County of Otoe, 274 Neb. 796 (2008)

Supreme Court Headnotes

Constitutional Law:

1.  Statutes: Ordinances. The constitutionality of a statute or an ordinance is a question of law.

2.  Proof. The burden of demonstrating the constitutional defect rests with the challenger.

3.  Property: Statutes: Ordinances: Waiver. If the action of a property owner has the effect of legislation in that the action creates the restriction or prohibition, then the ordinance or statute constitutes an unlawful delegation of legislative authority. But, if the consent is used for no other purpose than to waive or modify a restriction which the governing body has lawfully created and has provided for such a waiver or modification by those most affected, then the consent is regarded as being within constitutional limitations.

Judgments:

1.  Appeal and Error. When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusions reached by the trial court.

Zoning:

1.  Ordinances: Presumptions: Proof. The validity of a zoning ordinance will be presumed in the absence of clear and satisfactory evidence to the contrary.

Municipal Corporations:

1.  Ordinances: Zoning: Proof. To successfully challenge the validity of a zoning ordinance, the party challenging must prove that the conditions imposed by the city in adopting the zoning ordinance were unreasonable, discriminatory, or arbitrary, and that the regulation bears no relationship to the purpose sought to be accomplished by the ordinance.

Due Process:

1.  Waiver. In order for a legislative delegation to private citizens to survive a due process challenge, two criteria must be satisfied. First, the underlying exercise of authority must be a reasonable regulation within the power of the government. Second, the governing body’s restriction must be in the form of a general prohibition, and the delegation must be in the form of permitting private citizens to waive the protection of that prohibition.

Date Filed and Case No.: January 11, 2008. No. S-06-921.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/january/jan11/s06-921.pdf

Court Appealed From: District Court for Otoe County: Randall L. Rehmeier, Judge.

Attorneys for the Appeal: William G. Blake for Larry Coffey , appellant and cross-appellee. Jeffrey J. Funke and David J. Partsch, for County of Otoe and Board of Adjustment of Otoe County, appellees and cross-appellants. Joseph F. Bachmann and Shawn P. Dontigney for Kent and Sue Kreifels, intervenors-appellees and cross-appellants.

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

Not Participating: Connolly, J.

Authored By: Gerrard, J.

Summary: Kent Kreifels began operating a hog confinement facility on his property in Otoe County, Nebraska, in 1990. Kreifels disposes of the waste produced by the pigs by spreading the waste on various parts of his property, where the dust, noise, and odor can be bothersome for neighboring property owners. Following several public meetings to discuss and consider regulations for a comprehensive zoning plan for the county, in April 2001 (before the zoning regulations had been adopted), Larry Coffey purchased 195 acres of land adjacent to the land owned by Kreifels. While it was zoned as agricultural, Coffey intend to divide the land into smaller parcels and sell the lots for residential development. Otoe County enacted a zoning regulation, § 501.03(9)(A), that prohibits, among other things, the construction of single-family dwellings within a one-half-mile radius of certain animal feeding and waste handling facilities, unless the owner of the single-family dwelling grants an impact easement to the owner of the facility and the owner of the facility agrees to the easement. After the zoning regulations had been adopted, Coffey filed with the register of deeds a subdivision plat dividing his property. The zoning administrator sent Coffey a copy of the Otoe County zoning regulations and informed him that an impact easement would be needed from Kreifels before a building permit could be issued. Subsequently (before the impact easements were signed) Coffey entered into an agreement to sell one of his parcels of land but the buyers were unable to get Kreifels to agree to the impact easement. Without having acquired an impact easement, the buyers requested a building permit but the zoning administrator would not issue a building permit without the impact easement. Coffey filed for a conditional use permit but following a hearing, the Otoe County Planning Commission denied Coffey’s request. Coffey then appealed to the Otoe County Board of Adjustment for a variance but the Board denied Coffey’s request for a variance. The present action was then filed in the district court. Following a bench trial, the district court affirmed the denial of Coffey’s request for a variance, concluding that Coffey had failed to show that the decision of the Board of Adjustment was not supported by the evidence, or was arbitrary and unreasonable, or clearly wrong. The court also determined that the portion of § 501.03(9)(A) which provided for a mutual impact easement exception was an unlawful delegation of the county’s legislative authority and a violation of Coffey’s rights to due process and equal protection of the law. However, the court found that while the “impact easement” exception in § 501.03(9)(A) was invalid, the remainder of § 501.03(9)(A), as well as the other provisions in the zoning regulations, are still enforceable. Coffey appealed to the Nebraska Supreme Court, and Otoe County and the Otoe County Board of Adjustment (hereinafter collectively Otoe County) and the Kreifels cross-appealed.

Does § 501.03(9)(A) unconstitutionally delegate legislative authority? On cross-appeal, the Kreifels and Otoe County contended that the district court erred in finding that the mutual impact easement language of the zoning regulations was an improper delegation of legislative authority. In general, Coffey claimed that the provision in question violates due process because it gives owners of animal feeding and waste handling facilities the ability to arbitrarily and capriciously refuse the granting of an impact easement and, as a result, restrict Coffey’s ability to use his land. Looking over prior decisions on the improper delegation issue, the Court said that courts have derived a general rule for determining whether a consent provision is an unlawful delegation of legislative authority:

“If the action of a property owner has the effect of legislation in that the action creates the restriction or prohibition, then the ordinance or statute constitutes an unlawful delegation of legislative authority. But, if the consent is used for no other purpose than to waive or modify a restriction which the governing body has lawfully created and has provided for such a waiver or modification by those most affected, then the consent is regarded as being within constitutional limitations” (emphasis by Court.)

In order for a legislative delegation to private citizens to survive a due process challenge, the Court noted that case law provides that two criteria must be satisfied. First, the underlying exercise of authority must be a reasonable regulation within the power of the government. Second, the legislature’s restriction must be in the form of a general prohibition, and the delegation must be in the form of permitting private citizens to waive the protection of that prohibition. Thus, the zoning regulation at issue in this case would survive Coffey’s constitutional challenge if the regulation enacts a general prohibition that would be an otherwise reasonable and valid regulation and then delegates to private citizens the mere opportunity to waive that prohibition. Here, the Court found that § 501.03(9)(A) met this standard and is a constitutionally permissible legislative delegation.

Conclusion: The Court concluded that the district court erred in finding that the mutual impact easement language in Otoe County’s zoning regulations constituted an unlawful delegation of legislative authority. REVERSED AND REMANDED WITH DIRECTIONS.

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This opinion by the Nebraska Supreme Court examines the doctrine of mutual recognition and acquiescence in setting the borders of a piece of property.

Sila v. Saunders, 274 Neb. 809 (2008)

Supreme Court Headnotes

Boundaries:

1.  The fact that the true boundary is “knowable” because the deed contains a metes and bounds description that a registered surveyor could have properly marked on the land—but did not—does not preclude the property owners from acquiescing in a boundary that they believe corresponds with the deed’s description. ••• That a boundary line is, in fact, an approximation of the real boundary, does not preclude a finding of mutual recognition and acquiescence, so long as the acquiescing parties recognized this approximation as their actual boundary. ••• The filial relationship rule has no bearing on a mutual recognition and acquiescence analysis. ••• In order for mutual recognition and acquiescence to operate, there must be an assent, by words, conduct, or silence, in a line as the boundary.

2.  Time. Under the doctrine of mutual recognition and acquiescence, while a boundary may be fixed in accordance with a survey, when a different boundary is shown to have existed between the parties for the 10-year statutory period, it is that boundary line which is determinative and not that of the original survey.

Date Filed and Case No.: January 11, 2008. No. S-06-1160.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/january/jan11/s06-1160.pdf

Court Appealed From: District Court for Dakota County: William Binkard, Judge.

Attorneys for the Appeal: Lance D. Ehmcke, Jeremy J. Cross, and Joel D. Vos for Kirk Saunders, appellant. Paul W. Deck for Aaron Sila, appellee.

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

Authored By: McCormack, J.

Summary: Aaron Sila brought this action under Neb. Rev. Stat. § 34-301 (Reissue 2004), to establish the east boundary line of his property adjoining the property of the defendant, Kirk Saunders. The properties in issue were once part of a single 78-acre farm owned by Kirk’s grandfather who owned and farmed the land from the early 1940’s until his death in 1961. After his grandfather’s death, the land was divided into three parcels and given to his three sons, one of which was Kirk’s father. Kirk eventually inherited a 20-acre segment of this land which segment abuts the disputed 18-acre parcel originally given to Kirk’s uncle, and most recently acquired by Sila. It is the boundary between these two properties that is currently in dispute. Sila sought to establish the boundary line in accordance with the original government survey. Kirk asserted that under theories of mutual acquiescence and adverse possession, the historically recognized boundary should instead be acknowledged. The district court ruled in favor of Sila, finding that Sila was the owner of the property in accordance with the boundary described in the original plat.

Did the district court err in determining that Kirk had not established title to the disputed tract under the theory of mutual recognition and acquiescence? The Court wrote that under the doctrine of mutual recognition and acquiescence, while a boundary may be fixed in accordance with a survey, when a different boundary is shown to have existed between the parties for the 10-year statutory period, it is that boundary line which is determinative and not that of the original survey. Here, the evidence at trial showed that the brothers had established a boundary line from where a water well had existed, and a row of trees extending from that well had stretched out. Those tree’s were later cut down, leaving stumps, and the boundary line was referred to as the well/stump line. The district court here, in concluding that a boundary was not established by mutual acquiescence, relied on Hakanson v. Manders, 158 Neb. 392, 63 N.W.2d 436 (1954)for the proposition that the doctrine is simply unavailable when a deed to the disputed land sets forth clearly a known and certain metes and bounds description. The Supreme Court noted that this has never been the law. Also, the district court alternatively found that Kirk had failed to prove that the well/stump line was anything other than “an approximation of the line ... on a temporary basis.” The Supreme Court disagreed. In its de novo review of the evidence, they said it is apparent that Kirk’s father and his father’s brother understood the boundary they had marked to be the permanent, actual boundary between the properties. That boundary was set after being carefully measured and marked. “The fact that there may have been error in the measurement, or even further error in the placement of the well,” said the Court “does not make the boundary established by the markers and recognized for 21 years thereafter a ‘temporary agreement’ or ‘approximation.’” Further, insofar as there appeared to be a crop line parallel to the road in an aerial photograph, the Supreme Court did not, as the district court did, find this to be contradictory to Kirk’s claim. The Court found that the boundary was established by mutual recognition and acquiescence.

Did a filial relationship rule defeat Kirk’s claim? The filial relationship rule is recognized in adverse possession claims and establishes a rebuttable presumption that the use of the land was permissive when the occupier of the land is a relative of the true owner. The Court said this is relevant to claims of adverse possession because permissive use is inconsistent with the necessary element of hostility in adverse possession. The Court said that the filial relationship rule has never been applied to a case involving a claim of mutual recognition and acquiescence as the rule does not rely on hostile possession. They concluded that the filial relationship rule has no bearing on a mutual recognition and acquiescence analysis.

Was the the evidence of the mutual acquiescence and recognition insufficient? Sila asserted that Kirk only presented his own testimony and that of his brother, who Sila asserted, is biased in Kirk’s favor. The Court said it was Sila’s burden to bring forth conflicting testimony if she thought it existed. As the record was presented here, the Court found little dispute that George and his brother in fact mutually recognized and acquiesced to the boundary represented in the survey evidence presented, “and we so find.”

Conclusion: Having found that the boundary was established by mutual recognition and acquiescence, the Court did not address Kirk’s alternative theory that the boundary was established by adverse possession and for the reasons set out in the opinion, reversed the judgment of the district court, and remanded the cause with directions to enter judgment in favor of Kirk and to set the boundary between the properties in accordance with the stump and well markers as represented in the survey in evidence.

REVERSED AND REMANDED WITH DIRECTIONS.