Wiseman v. Keller

358 N.W.2d 768, 218 Neb. 717, 1984 Neb. LEXIS 1294
CourtNebraska Supreme Court
DecidedNovember 30, 1984
Docket84-408
StatusPublished
Cited by49 cases

This text of 358 N.W.2d 768 (Wiseman v. Keller) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wiseman v. Keller, 358 N.W.2d 768, 218 Neb. 717, 1984 Neb. LEXIS 1294 (Neb. 1984).

Opinions

Boslaugh, J.

The U.S. District Court for the District of Nebraska has certified the following question of law to this court: Does Neb. [718]*718Rev. Stat. § 20-148 (Reissue 1977) constitute a waiver of sovereign immunity by the State of Nebraska for actions brought in federal court under 42 U.S.C. § 1983 (1982) to protect rights under the contract clause (article I, § 10, of the U.S. Constitution) and property interests protected under the fourteenth amendment to the U.S. Constitution?

The question arises in an action brought in the federal court pursuant to § 1983 by Earl Raymond Wiseman, Robert V. Yanders, and Eleanor L. Yanders against the administrators of the Nebraska Office of Probation Administration, members of the state judiciary, and the State of Nebraska for violation of their due process rights under the fourteenth amendment to the U.S. Constitution and for violation of the contract clause found in article I, § 10, of the U.S. Constitution.

The plaintiffs were employees of the probation office in Columbus, Nebraska. On April 13, 1983, each was called to a meeting before five members of the state judiciary and asked to resign. Each did so under protest. The plaintiffs were not given notice of the purpose of the meeting, nor were they given any opportunity to hear or answer any charges made against them.

The plaintiffs sought a declaration of their rights under their contract for employment, reinstatement, backpay, and damages. They sought special damages for aggravation of preexisting heart conditions in plaintiffs Robert Yanders and Wiseman. They sought general damages to compensate them for damage to their reputations occasioned by the publicity surrounding their dismissals.

The federal court found that the plaintiffs had been deprived of a property right in their employment without due process and were entitled to a termination hearing. The injunctive relief requested was granted pending such a hearing. The state officials were held not liable for damages because they had acted in good faith as they understood the terms of the contract.

On March 29, 1984, the federal court dismissed the plaintiffs’ claims for monetary damages. However, at the request of the plaintiffs, the order of March 29, 1984, was stayed pending certification of the question of state law to this court.

The issue with respect to the claim against the State of [719]*719Nebraska is whether the bar against a suit on such a claim provided by the eleventh amendment to the U.S. Constitution has been waived. In the order of March 29, 1984, the federal court found that the eleventh amendment barred such a suit under the doctrine of sovereign immunity and that § 20-148 did not “explicitly and unequivocally” act as a waiver of state immunity.

The general rules governing statutory construction and interpretation provide that, absent any indication to the contrary, words in a statute are to be given their ordinary meaning. Kellogg Company v. Herrington, 216 Neb. 138, 343 N.W.2d 326 (1984). If any ambiguities exist in the wording, the court will look to the legislative history to determine the lawmakers’ intent. Ebert v. Black, 216 Neb. 814, 346 N.W.2d 254 (1984). The court will, however, avoid constructions which would lead to absurd, unjust, or unconscionable results. Ebert, supra; Worley v. City of Omaha, 217 Neb. 77, 348 N.W.2d 123 (1984). It wül, instead, place a sensible construction upon a statute to effectuate the object of the legislative intent rather than a literal meaning which would defeat such intent. State v. Coffman, 213 Neb. 560, 330 N.W.2d 727 (1983).

There are, in addition, special rules which govern statutes in derogation of state sovereignty. Statutes which waive a state’s sovereign immunity should be strictly construed in favor of the state. Catania v. The University of Nebraska, 204 Neb. 304, 282 N.W.2d 27 (1979); Gentry v. State, 174 Neb. 515, 118 N.W.2d 643 (1962). The court will resolve an evenly balanced uncertainty of meaning in favor of sovereignty. R. Dickerson, The Interpretation and Application of Statutes 206 (1975). This is so that “ ‘sovereignty may be upheld and not narrowed or destroyed, and [no law should] be permitted to divest the state or its government of any of its prerogatives, rights, or remedies, unless the intention of the legislature to effect this object is clearly expressed.’ ” Catania at 313, 282 N.W. 2d at 32.

Article V, § 22, of the Constitution of Nebraska provides: “The state may sue and be sued, and the Legislature shall provide by law in what manner and in what courts suits shall be brought.” This provision is not self-executing; legislation is necessary to make it available. Gentry, supra; Catania, supra; [720]*720State v. Mortensen, 69 Neb. 376, 95 N.W. 831 (1903).

The eleventh amendment to the U.S. Constitution prohibits suits against a state in federal court without its consent, even by its own citizens. Hans v. Louisiana, 134 U.S. 1, 10 S. Ct. 504, 33 L. Ed. 842 (1889). Waiver will only be found “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.’ ” Edelman v. Jordon, 415 U.S. 651, 673, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974), quoting Murray v. Wilson Distilling Co., 213 U.S. 151, 29 S. Ct. 458, 53 L. Ed. 742 (1909); Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984).

Section 20-148 provides as follows:

(1) Any person or company, as defined in section 49-801, except any political subdivision, who subjects or causes to be subjected any citizen of this state or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the United States Constitution or the Constitution and laws of the State of Nebraska, shall be liable to such injured person in a civil action or other proper proceeding for redress brought by such injured person.
(2) The remedies provided by this section shall be in addition to any other remedy provided by Chapter 20, article 1, and shall not be interpreted as denying any person the right of seeking other proper remedies provided thereunder.

Neb. Rev. Stat. § 49-801

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Cite This Page — Counsel Stack

Bluebook (online)
358 N.W.2d 768, 218 Neb. 717, 1984 Neb. LEXIS 1294, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wiseman-v-keller-neb-1984.