Jaksha v. Thomas

• Court: Nebraska Supreme Court
• Writing for the Court: Before BOSLAUGH, WHITE, CAPORALE, SHANAHAN, FAHRNBRUCH, and LANPHIER, JJ., and GRANT; LANPHIER; HASTINGS
• Citation: Jaksha v. Thomas, 502 N.W.2d 826, 243 Neb. 794 (Neb. 1993)
• Decision Date: 16 July 1993
• Docket Number: No. S-91-459,S-91-459
• Parties: Edward A. JAKSHA, Appellant, v. Deb THOMAS, Director of the Department of Administrative Services, et al., Appellees.

Page 826

502 N.W.2d 826

243 Neb. 794

Edward A. JAKSHA, Appellant, v. Deb THOMAS, Director of the Department of Administrative Services, et al., Appellees.

No. S-91-459.

Supreme Court of Nebraska.

July 16, 1993.

Syllabus by the Court

1. Declaratory Judgments: Equity: Appeal and Error. In reviewing an equity action for a declaratory judgment, an appellate court tries factual issues de novo on the record and reaches a conclusion independent of the findings of the trial court.

2. Declaratory Judgment: Equity: Appeal and Error. Where a declaratory judgment action presents questions of law, an appellate court has an obligation to reach its conclusion independent from the conclusion reached by the trial court with regard to these questions.

3. Constitutional Law: Legislature. The Nebraska Constitution is not a grant, but, rather, is a restriction on legislative power, and the Legislature is free to act on any subject not inhibited by the Constitution.

4. Legislature: Wages: Words and Phrases. A legislator must receive his salary and actual expenses in traveling by the most usual route once to and returning from each regular or special session of the Legislature, and, in addition, may receive reimbursement for other expenses incurred in connection with the performance of his duties.

John M. Peebles, of Domina & Copple, P.C., Omaha, for appellant.

Don Stenberg, Attorney General, and L. Jay Bartel, Lincoln, for appellees.

Charles M. Pallesen, Jr., and Alan E. Peterson, of Cline, Williams, Wright, Johnson & Oldfather, Lincoln, for amicus curiae Executive Board, 92d Legislature, State of Neb.

Before BOSLAUGH, WHITE, CAPORALE, SHANAHAN, FAHRNBRUCH, and LANPHIER, JJ., and GRANT, J., Retired.

LANPHIER, Justice.

This is an action for declaratory judgment by plaintiff-appellant, Edward A. Jaksha, challenging the constitutionality of a statute providing for the reimbursement of certain expenses incurred by the members of the Nebraska Legislature. Plaintiff appeals the district court for Lancaster County's dismissal of plaintiff's second amended petition.

FACTS

Plaintiff is a citizen, resident, and taxpayer of the State of Nebraska. Plaintiff instituted this action against then acting director of the Department of Administrative Services for the State of Nebraska, Deb Thomas; then acting State Treasurer for the State of Nebraska, Frank Marsh; and the Department of Administrative Services. At the time of trial, Thomas had been succeeded by John Rochford. Plaintiff claims that article III, § 7, of the Nebraska Constitution limits the reimbursement of expenses incurred by members of the Legislature to actual expenses incurred in traveling one time to and from each regular or special session of the Legislature. Article III, § 7, as amended in 1988, provides in part:

Each member of the Legislature shall receive a salary of not to exceed one thousand dollars per month during the term of his or her office. In addition to his or her salary, each member shall receive an amount equal to his or her actual expenses in traveling by the most usual route once to and returning from each regular or special session of the Legislature. Members of the Legislature shall receive no pay nor perquisites other than his or her salary and expenses, and employees of the Legislature shall receive no compensation other than their salary or per diem.

Neb.Rev.Stat. § 50-202 (Reissue 1988) permits reimbursement of expenses incurred by the legislators in the performance of their duties as members of the Legislature. The Executive Board of the Legislative Council is responsible for defining the expenses which are reimbursable to the individual state senators. On August 11, 1988, the board adopted a "Sessional Expense Reimbursement Policy" for members of the Legislature. The policy permits legislators to receive reimbursement for expenses actually paid or incurred in the performance of their duties as members of the Legislature. The policy provides a cap on the amount of reimbursement. The policy operates in the following manner:

a) For those senators who reside more than fifty (50) miles from the State Capitol, the Legislature provides reimbursement to the members of an amount equal to the federal reimbursement rate (which currently is $66.00) times the number of legislative days in a regular or special session. In addition, a member receives mileage reimbursement for one round trip per week from the senator's home to the State Capitol at the statutory state mileage reimbursement rate. Members who live beyond the fifty (50) mile radius are entitled to receive the weekly mileage allowance only if they are present for one or more legislative days during that calendar week.

b) For those senators who reside within fifty (50) miles of the State Capitol, the Legislature reimburses a sum of twenty-five dollars ($25.00) times the number of legislative days in a regular or special session. In addition, the member receives mileage reimbursement for those legislative days that he/she actually attends a daily session or a committee meeting on that same day. Mileage is reimbursed at the statutory state mileage reimbursement rate from the senator's home to the State Capitol and back.

The rate established for reimbursement of members who live over 50 miles from the state capitol is based on what the federal government allows for expenses when its employees are in Lincoln on government business. The rate is established by the General Services Administration and covers, among other items, meals and incidental expenses. For those members who live over 50 miles from the state capitol, the rate also covers lodging. Legislators are required to submit completed reimbursement forms to receive payment for actual expenses incurred during session and the interim period. The policy allows legislators to obtain reimbursement for the period commencing with the first day following the adjournment sine die of the last regular session of the Legislature through the date of the submission of the expense reimbursement form. Thus, any expenses incurred during the interim period would be credited toward the maximum amount which is determined by the number of days a legislator attended a regular or special session. The Department of Administrative Services issues warrants for payment of the expenses, and the State Treasurer countersigns all such warrants.

The amount of reimbursement must not exceed expenses incurred by the members of the Legislature. To that end, the policy requires that each senator maintain expense records. A certified public accounting firm conducts audits of 10 to 12 randomly selected senators twice during each regular legislative session to ensure that the expense reimbursement does not exceed actual expenses incurred by the senators. The record includes two letters from the accounting firm verifying that the expenses incurred by the audited senators were greater than or equal to the reimbursement payments.

The trial court held that the Legislature was authorized to adopt a reimbursement system to provide reimbursement to legislators of actual expenses paid or incurred in the performance of their duties, and found no evidence demonstrating that the reimbursement policy violated article III, § 7, of the Nebraska Constitution.

STANDARD OF REVIEW

In reviewing an equity action for a declaratory judgment, this court tries factual issues de novo on the record and reaches a conclusion independent of the findings of the trial court. See, Robotham v. State, 241 Neb. 379, 488 N.W.2d 533 (1992); OB-GYN v. Blue Cross, 219 Neb. 199, 361 N.W.2d 550 (1985). Where a declaratory judgment action presents questions of law, this court has an obligation to reach its conclusion independent from the conclusion reached by the trial court with regard to these questions. Robotham v. State, supra.

We agree with the district court that no evidence supports plaintiff's contention that the reimbursement policy adopted by the Legislature is prohibited by article III, § 7, of the Nebraska Constitution.

HISTORY

In State ex rel. Douglas v. Beermann, 216 Neb. 849, 347 N.W.2d 297 (1984), we declared Neb.Rev.Stat. §§ 50-201 and 50-202 (Cum.Supp.1982) constitutional under article III, § 7, of the Nebraska Constitution, and held that legislators may receive reimbursement for expenses incurred in connection with the performance of their duties in addition to their salary and actual expenses in traveling by the most usual route once to and returning from each regular or special session. This court defined "expenses" as "the charges incurred by an employee in connection with the performance of his duties, and typically includ[ing] transportation, meals, and lodging while traveling." Beermann, 216 Neb. at 856, 347 N.W.2d at 302.

REIMBURSEMENT POLICY

The Nebraska Constitution is not a grant, but,...