Wasikowski v. Nebraska Quality Jobs Bd.
| Decision Date | 26 July 2002 |
| Docket Number | No. S-00-573.,S-00-573. |
| Parties | Joseph and Antoinette WASIKOWSKI et al., Appellees and Cross-Appellants, v. The NEBRASKA QUALITY JOBS BOARD, a Nebraska administrative agency, et al., Appellees and Cross-Appellants, and Nebraska Beef, Inc., a Nebraska corporation, and Nebraska Beef Ltd., a Nebraska limited partnership, Appellants and Cross-Appellees. |
| Court | Nebraska Supreme Court |
William M. Lamson, Jr., and Robert A. Mooney, of Lamson, Dugan & Murray, L.L.P., Omaha, for appellants.
Patricia A. Knapp, and D. Milo Mumgaard, of Nebraska Appleseed Center for Law in the Public Interest, for appellees Joseph and Antoinette Wasikowski et al.
Don Stenberg, Attorney General, and L. Jay Bartel, Lincoln, for appellees Nebraska Quality Jobs Board et al.
Kermit A. Brashear and Mary P. Galligan, for amici curiae Greater Omaha Chamber of Commerce and Nebraska Chamber of Commerce and Industry.
Amy A. Miller, for amicus curiae American Civil Liberties Union Foundation of Nebraska.
Vincent M. Powers, of Vincent M. Powers & Associates, for amicus curiae Common Cause Nebraska.
The Nebraska Quality Jobs Board (the Board); Board members E. Benjamin Nelson, David Heineman, and Dennis Jorgensen; the Nebraska Department of Revenue and the State Tax Commissioner, M. Berri Balka (collectively the State defendants); and Nebraska Beef, Inc., and Nebraska Beef, Ltd., appeal from the district courts order (1) voiding the Boards approval of Nebraska Beef, Ltd.'s application for wage benefit tax credits under the Quality Jobs Act and (2) ordering that Nebraska Beef, Ltd., return all credits to the State because the Department of Revenue failed to promulgate regulations as required under the Quality Jobs Act. The resident taxpayer plaintiffs cross-appeal the district courts determination that the plaintiffs waived all rights to contest the Board's alleged violation of the public meetings laws.
The Nebraska Legislature enacted the Quality Jobs Act (the Act), Neb.Rev.Stat. § 77-4901 et seq. (Reissue 1996, Cum. Supp.2000 & Supp.2001), to encourage new and existing businesses to relocate to and expand in Nebraska, and to provide appropriate inducements to encourage them to do so if it aided in the economic and population growth of the state and create better jobs for state citizens. § 77-4902. The Act provides that companies may apply for a wage benefit credit; upon the Board's approval of such application, the company enters into a written project agreement with the State. § 77-4928(4) and (7).
Nebraska Beef, Inc., is a Nebraska corporation with its principal place of business in Omaha, Nebraska. Nebraska Beef, Ltd., is a Nebraska limited partnership with its principal place of business in Omaha, and is owned by Nebraska Beef, Inc. Although not originally named as a defendant, the parties agreed at trial to add Nebraska Beef, Ltd., as a party defendant. The two entities are referred to hereafter as "Nebraska Beef."
On October 13, 1995, Nebraska Beef filed an application for wage benefit credits under the Act. As set forth in the Act, the Board determines whether to approve an application by majority vote, based on the Board's determination of whether the project will enable the State to accomplish the purposes of the Act. The Board is an administrative state government entity created pursuant to the Act; the members of the Board are the Governor, the State Treasurer, and the chairperson of the Nebraska Investment Council. § 77-4908. At all times relevant to this action, the Board members were Nelson, Governor; Heineman, State Treasurer; and Jorgensen, chairperson of the Nebraska Investment Council.
The Board met on August 14, 1996, to consider Nebraska Beef's application for wage benefit credits. The Board convened a closed session, after which it voted unanimously to request an Attorney General's opinion addressing certain questions regarding the Act. The Board stated that the closed session was necessary to "consider confidential information that should be maintained confidential so that obviously competitors don't learn more about [Nebraska Beef's] business than they are able to find out in the ordinary way." The Board took no other action on Nebraska Beef's application at the August 14 meeting.
Various Nebraska newspapers published notice of the Board's next scheduled meeting. On November 25, 1996, the Board met again to resume consideration of Nebraska Beef's application. Plaintiff Antoinette Wasikowski appeared at the meeting and read a letter in opposition to the Boards granting Nebraska Beef's application. Wasikowski also submitted into the record two letters opposing Nebraska Beef's application. The Board reconvened in closed session "to consider confidential information as permitted by law" in reviewing Nebraska Beef's application, after an uncontested and unanimous vote to do so. Upon returning from closed session, a majority of the Board voted to approve Nebraska Beef's application. Based on the Board's approval of the application, the State and Nebraska Beef entered into a Quality Jobs Act project agreement, executed on June 2, 1998, by a general partner of Nebraska Beef, Ltd., and Balka, State Tax Commissioner.
On July 15, 1997, resident Nebraska taxpayers Joseph and Antoinette Wasikowski, Janet Bonet, Wayne Weston, Fay Maloley, and Rodney Krogh (collectively the plaintiffs) filed a petition in the Lancaster County District Court contesting the Board's decision to approve Nebraska Beef's application. The case was assigned as docket 558, page 163 (case No. 558-163). The petition included as defendants the Board; Board members Nelson, Heineman, and Jorgensen; the Nebraska Department of Revenue; Balka, State Tax Commissioner; and Nebraska Beef, Inc.
After the district court sustained demurrers to the plaintiffs' first petition, the plaintiffs filed an amended petition. The first cause of action, brought pursuant to the Administrative Procedure Act (APA), Neb.Rev.Stat. §§ 84-901 to 84-920 (Reissue 1994 & Cum.Supp.1998), alleged that the Department of Revenue failed to promulgate rules and regulations as required by the Quality Jobs Act. As relief, the plaintiffs requested a declaration that the department had a mandatory obligation to implement rules and regulations and that because the department failed to do so, the Board's approval of Nebraska Beef's application was null and void. Further, the plaintiffs requested an injunction enjoining the Board from approving wage benefit tax credit applications until the department implemented rules and regulations.
Under the second cause of action, the plaintiffs alleged that pursuant to the Uniform Declaratory Judgments Act, Neb. Rev.Stat. §§ 25-21,149 to 25-21,164 (Reissue 1995), the Board acted without statutory authority, without factual foundation in the record, and without proper rules and regulations in place, violating the Due Process Clauses of the Nebraska and U.S. Constitutions. On the second cause of action, the plaintiffs requested a declaratory judgment voiding the Board's approval of Nebraska Beef's application, and an injunction enjoining Balka, his successors in interest, or anyone acting on his behalf, from executing an agreement between Nebraska Beef and the State of Nebraska.
On October 10, 1997, the plaintiffs filed another petition against the Board in the Lancaster County District Court, assigned as docket 562, page 86 (case No. 562-086). The petition named as defendants Board members Nelson, Heineman, and Jorgensen, and Nebraska Beef. The petition alleged that the Board acted in violation of public meetings laws by conducting closed sessions at its meetings. The plaintiffs requested that the district court void any action taken by the Board, including its November 25, 1996, decision to approve Nebraska Beef's application.
Based upon a stipulation by the parties, the district court consolidated cases Nos. 558-163 and 562-086. Trial took place in January 2000, and the district court entered its orders on May 1, 2000. After considering motions for a new trial filed by the State defendants and Nebraska Beef, the district court amended its May 1 order in each case. In its amended orders, the district court first determined that it had jurisdiction to hear the case because the Board's decision was a "contested case" within the meaning of the APA, § 84-917.
Next, the district court considered the plaintiffs' public meetings laws claims. The district court concluded that the August 14, 1996, closed session was not in substantial violation of the public meetings laws because the reasons given for closed session "seem[ed] valid" and the Board did not take any final action. Additionally, although the district court intimated that the closed session at the November 25, 1996, meeting might have been improper, it determined that Antoinette Wasikowski (hereafter Wasikowski) waived any claim on this ground because she attended the meeting but did not object to a closed session. Thus, the district court concluded that the plaintiffs' complaint under the public meetings laws failed.
The district court next considered the plaintiffs' cause of action stated pursuant to the Uniform Declaratory Judgments Act. Sovereign immunity defeated claims against the Board and the Department of Revenue; thus, the district court analyzed this cause of action with regard to the individual defendants only. The district court determined that the allegation that the Board acted without statutory authority in approving Nebraska Beef's application failed because although Nebraska Beef was "already operating" in Nebraska when it received the tax credits, this fact was not...
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