J.M. v. Hobbs ( 2014 )

Nebraska Advance Sheets
546 288 NEBRASKA REPORTS
J.M., as Guardian and Conservator for his minor child,
C.M., appellant and cross-appellee, v. Billy L.
Hobbs, appellee and cross-appellant.
___ N.W.2d ___
Filed July 18, 2014. No. S-13-616.
1. Constitutional Law: Statutes: Appeal and Error. The constitutionality of
a statute presents a question of law, which an appellate court independently
reviews.
2. Constitutional Law: Statutes: Presumptions. A court presumes that statutes are
constitutional and will not strike down a statute unless its unconstitutionality is
clearly established.
3. Special Legislation. A legislative act constitutes special legislation if (1) it cre-
ates an arbitrary and unreasonable method of classification or (2) it creates a
permanently closed class.
4. ____. A special legislation analysis focuses on a legislative body’s purpose in
creating a challenged class and asks if there is a substantial difference of circum-
stances to suggest the expediency of diverse legislation. The prohibition aims to
prevent legislation that arbitrarily benefits a special class.
5. Constitutional Law: Statutes: Special Legislation. When the Legislature con-
fers privileges on a class arbitrarily selected from many who are standing in the
same relation to the privileges, without reasonable distinction or substantial dif-
ference, then the statute in question has resulted in the kind of improper discrimi-
nation prohibited by the Nebraska Constitution.
6. Special Legislation: Public Policy. To be valid, a legislative classification must
rest upon some reason of public policy, some substantial difference in circum-
stances, which would naturally suggest the justice or expediency of diverse legis-
lation regarding the objects to be classified.
7. Constitutional Law: Special Legislation. Legislative classifications must be
real and not illusive; they cannot be based on distinctions without a substantial
difference. The distinctive treatment must bear some reasonable relation to the
legitimate objectives and purposes of the legislative act. The question is always
whether the things or persons classified by the act form by themselves a proper
and legitimate class concerning the purpose of the act.
8. Special Legislation: Words and Phrases. A closed class refers to when a leg-
islative body limits a law to a present condition, with no opportunity for the
numbers of the class to increase.
9. Constitutional Law: Legislature. The Legislature has broad discretion to
make statutory classifications, but its discretion is not unlimited. The Nebraska
Constitution prohibits it from making arbitrary classifications that favor select
persons or objects while excluding others that are not substantially different in
circumstance in relation to an act’s purpose.
Appeal from the District Court for Lancaster County: Paul
D. Merritt, Jr., Judge. Affirmed.
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John W. Ballew, Jr., and Adam R. Little, of Ballew, Covalt
& Hazen, P.C., L.L.O., for appellant.
Dana M. London for appellee.
Heavican, C.J., Connolly, Stephan, McCormack, and
Miller-Lerman, JJ., and Pirtle and Riedmann, Judges.
Connolly, J.
I. SUMMARY
Before 2012, under Neb. Rev. Stat. § 81-2032 (Reissue
2008), a Nebraska State Patrol officer’s retirement assets had
absolute protection from “garnishment, attachment, levy, the
operation of bankruptcy or insolvency laws, or any other
process of law.” Such provisions are called anti-attachment
statutes.1
But in 2012, the Legislature amended § 81-2032(2) and other
anti-attachment statutes to allow a civil judgment to attach to
the distributed retirement assets of State Patrol officers and
other public employees who have committed six specified
crimes—if the public employee was convicted of the crime in a
criminal prosecution.2 The amendment applies retroactively to
past civil judgments predicated on such crimes.
The appellant, Billy L. Hobbs, is a retired State Patrol offi-
cer who was convicted of one of the specified crimes—first
degree sexual assault of a child. J.M., the victim’s guardian
and conservator, obtained a civil judgment against Hobbs and
has twice sought an order in aid of execution. In response to
J.M.’s second attempt, after the statute was amended to apply
retroactively, Hobbs challenged the constitutionality of the
amendment on multiple grounds. The district court determined
that the amendment was unconstitutional as special legislation
and dismissed J.M.’s motion.
We agree with the court that L.B. 916 arbitrarily benefits the
select crime victims of its specified crimes. Simultaneously,
L.B. 916 arbitrarily benefits those public employees and
1
J.M. v. Hobbs, 281 Neb. 539, 797 N.W.2d 227 (2011).
2
See, 2012 Neb. Laws, L.B. 916; § 81-2032 (Cum. Supp. 2012).
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officers whose retirement assets are not subject to attachment
because (1) the act does not apply to their retirement plans
or (2) they pleaded no contest or were convicted of a serious
crime that is not included in the act. We conclude that under
the act’s stated purpose of providing compensation to the vic-
tims of serious crimes, no substantial difference exists between
the favored groups of victims and employees and those victims
and employees who do not receive the act’s benefits. Because
the class members are not substantially different, the act is spe-
cial legislation. We affirm.
II. BACKGROUND
In 2006, Hobbs was convicted of first degree sexual assault
of a child, C.M., when she was between the ages of 12 and
14. The assaults occurred while Hobbs was married to C.M.’s
mother and living with them. A court sentenced Hobbs to
25 to 30 years’ imprisonment. J.M. then sued Hobbs on
C.M.’s behalf, and a court awarded J.M. a civil judgment
of $325,000.
1. J.M.’s First Appeal to
This Court
In J.M.’s first attempt to obtain an order in aid of execution,
he alleged that Hobbs was a judgment debtor and, although
incarcerated, was receiving a retirement pension from the State
Patrol. Hobbs objected that under § 81-2032, his retirement
assets were exempt from legal process. At that time, § 81-2032
provided that “[a]ll annuities or benefits which any person
shall be entitled to receive under [the Nebraska State Patrol
Retirement Act] shall not be subject to garnishment, attach-
ment, levy, the operation of bankruptcy or insolvency law, or
any other process of law whatsoever . . . .” The district court
agreed that Hobbs’ retirement assets were exempt from proc­
ess, and we affirmed on appeal.3
We noted that under Neb. Rev. Stat. § 25-1572 (Reissue
2008), a court may order the execution of a judgment only
against a debtor’s nonexempt property. But J.M. relied on
3
Hobbs, supra note 1.
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Neb. Rev. Stat. § 25-1563.01 (Reissue 2008), which permits
a judgment to attach to a judgment debtor’s retirement assets
except those that are reasonably necessary for the support of
the debtor and any beneficiaries. J.M. argued that § 81-2032
only protected the retirement assets that Hobbs was “entitled to
receive” and that once the assets were distributed, § 25-1563.01
governed whether the assets were subject to attachment. We
rejected that argument.
We concluded that § 81-2032 was the more specific and,
therefore, the applicable statute and that it provided broader
protections than § 25-1563.01. We explained that the words
“annuities” and “benefits” under § 81-2032 referred to required
future payments of money. We cited federal and state court
decisions rejecting a distinction between owed future payments
and distributed payments under similar statutes, even if the
statute did not explicitly protect future payments. We agreed
that the legislative intent behind anti-attachment statutes is to
protect these assets from legal process regardless of whether
the payments have become due.
We further agreed with the U.S. Supreme Court that exemp-
tions are justified by broad social policies that take precedence
over courts doing equity between particular parties. So a
court’s carving out of particular exceptions when the exemp-
tion is especially inequitable is impracticable. We agreed that
any such exceptions should be left to the Legislature.
2. Legislature Amends § 81-2032
R etroactively
In 2012, the year after we issued our opinion in J.M.’s first
appeal, the Legislature amended § 81-2032 and other anti-
attachment statutes for some retirement plans.4 For retirement
plans affected by the amendment, a limited attachment remedy
now exists against the retirement assets of a public employee
or officer who (1) was convicted of, or pleaded no contest to,
one of six enumerated crimes, and (2) found liable for civil
damages.5 The affected retirement plans include the plan for
4
See L.B. 916.
5
See id.
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State Patrol officers, and the six enumerated crimes include
sexual assault.6
After this amendment, J.M., on C.M.’s behalf, filed a new
motion for an order in aid of execution. Hobbs challenged the
amendment as unconstitutional. As stated, the district court
concluded that the statute was unconstitutional as special legis-
lation and dismissed J.M.’s motion.
3. Scope of L.B. 916
The amendment to § 81-2032 is representative of the way
that L.B. 916 amended anti-attachment statutes for all affected
public employees’ retirement plans. Subject to assignment
under a qualified domestic relations order, an absolute exemp-
tion from attachment of retirement assets still exists for most
State Patrol officers under § 81-2032(1). But L.B. 916 created
six exceptions by adding subsection (2) to the statute:
(1) Except as provided in subsection (2) of this section,
all annuities or benefits . . . shall not be subject to [any]
process of law whatsoever and shall not be assignable
except to the extent that [they] are subject to a qualified
domestic relations order . . . . The payment of any annui-
ties or benefits subject to such order shall take priority
over any payment made pursuant to subsection (2) of
this section.
(2) If a member of the retirement system is convicted of
or pleads no contest to a felony that is defined as assault,
sexual assault, kidnapping, child abuse, false impris-
onment, or theft by embezzlement and is found liable
for civil damages as a result of such felony, following
distribution of the member’s annuities or benefits from
the retirement system, the court may order the payment
of the member’s annuities or benefits . . . for such civil
damages, except that [those] reasonably necessary for the
support of the member or any of his or her beneficiaries
shall be exempt from such payment. . . . The changes
made to this section by this legislative bill shall apply to
6
See § 81-2032(2) (Cum. Supp. 2012).
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persons convicted of or who have pled no contest to such
a felony and who have been found liable for civil dam-
ages as a result of such felony prior to, on, or after April
7, 2012.
(Emphasis supplied.)
The Nebraska Public Employees Retirement Systems, a state
agency,7 administers most of the retirement plans affected by
L.B. 916. Those five plans are for county employees,8 judges,9
State Patrol officers,10 public school employees,11 and public
employees whose retirement benefits are governed by the State
Employees Retirement Act.12
Counties and school districts are, of course, political subdi-
visions.13 In addition to the plans for county and public school
employees, L.B. 916 applies to the retirement plans covering
employees for three other political subdivisions: employees
of a metropolitan utilities district,14 police officers in cities of
the first class,15 and firefighters in cities of the first class.16
Finally, L.B. 916 permits a judgment predicated upon one
of the specified crimes to attach to the deferred compensa-
tion plans for employees and elected officials of municipali-
ties, counties, or other political subdivisions—after the funds
are distributed.17
But the State Employees Retirement Act explicitly excludes
some state employees from its coverage and implicitly excludes
7
See, L.B. 916, §§ 12, 16, 22, 31, and 42; Neb. Rev. Stat. § 84-1503(1)(a)
(Supp. 2013).
8
See Neb. Rev. Stat. § 23-2322 (Reissue 2012).
9
See Neb. Rev. Stat. § 24-710.02 (Cum. Supp. 2012).
10
See § 81-2032.
11
See Neb. Rev. Stat. § 79-948 (Cum. Supp. 2012).
12
See Neb. Rev. Stat. § 84-1324 (Cum. Supp. 2012).
13
Neb. Rev. Stat. § 13-2401(1) (Reissue 2012).
14
See Neb. Rev. Stat. § 14-2111(4) (Reissue 2012).
15
See Neb. Rev. Stat. § 16-1019(6) (Reissue 2012).
16
See Neb. Rev. Stat. § 16-1038(6) (Reissue 2012).
17
See Neb. Rev. Stat. § 48-1401(10) (Cum. Supp. 2012).
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others by not including them in the definition of an employee
covered by the act.18 So the retirement plans of public employ-
ees and officers that are not covered by the State Employees
Retirement Act are unaffected by L.B. 916 unless the act oth-
erwise expressly affects their retirement plans. The same is
true for the retirement plans of political subdivision employees
and officers that are not expressly affected by L.B. 916. For
example, L.B. 916 does not affect the legislatively authorized
retirement plans for public employees of the State’s university19
and colleges,20 public health departments,21 natural resources
districts,22 and most municipal employees.23 Summed up, polit-
ical subdivisions and state agencies that are not affected by
L.B.916 are free to maintain or adopt anti-attachment provi-
sions that provide absolute protection from legal process for
their employees’ retirement benefits.
But even for those retirement plans that L.B. 916 expressly
affects, the scope of the attachment remedy is quite limited. A
judgment creditor must show that an affected public employee
was convicted of an enumerated felony and found liable for
damages in a civil action. A judgment creditor’s recovery
against the employee in a civil action is insufficient, standing
alone, to warrant attachment of a public employee’s distributed
retirement assets.
The scope of the remedy is also limited by the offender’s
age. That is, a judgment against a young offender will often
lapse because of time constraints. L.B. 916 does not require a
retirement plan administrator to make a lump-sum distribution
to a plan member to compensate a judgment creditor, and a
judgment cannot attach to the public employee’s undistributed
retirement assets. Instead, a judgment creditor must wait until
the employee’s assets are distributed in the normal course of
18
See Neb. Rev. Stat. § 84-1301(9) (Supp. 2013).
19
See Neb. Rev. Stat. § 85-106 (Reissue 2008).
20
Neb. Rev. Stat. § 85-320 (Reissue 2008).
21
Neb. Rev. Stat. § 71-1631(13) (Reissue 2009).
22
See Neb. Rev. Stat. § 2-3228(1) (Reissue 2012).
23
See Neb. Rev. Stat. §§ 14-567 and 19-3501 (Reissue 2012).
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events. Yet, a judgment becomes dormant if no execution has
been issued within 5 years and can only be revived within 10
years of becoming dormant.24
4. Legislative History
A court may review the legislative history of a statute or
ordinance when considering a special legislation challenge.25
In concluding that the selection of only six felonies under
§ 81-2032 constitutes special legislation, the district court
reviewed the legislative history of L.B. 916. The court noted
that many statements by the bill’s introducer, Senator Colby
Coash, showed that the Legislature intended to provide com-
pensation to the victims of crimes that were heinous, serious,
or egregious. We turn now to that history.
(a) Under the Amendment, a Judgment
Only Attaches to Distributed
Retirement Assets
L.B. 916 was originally introduced as 2012 Neb. Laws,
L.B. 973,26 and later incorporated into L.B. 916.27 As intro-
duced, L.B. 973 would have permitted a judgment to attach
to an affected employee’s undistributed retirement assets as
soon as a victim obtained a civil judgment, except to the extent
that the funds were needed for the reasonable support of the
employee or his beneficiaries. So a judgment creditor would
not have to wait until the funds were distributed.
But at the Nebraska Retirement Systems Committee hear-
ing for L.B. 916, a representative for the Nebraska Public
Employees Retirement Systems stated that permitting
24
Neb. Rev. Stat. §§ 25-1420 and 25-1515 (Reissue 2008); Buffalo County v.
Kizzier, 250 Neb. 180, 548 N.W.2d 757 (1996).
25
See, e.g., D-CO, Inc. v. City of La Vista, 285 Neb. 676, 829 N.W.2d 105
(2013); Hug v. City of Omaha, 275 Neb. 820, 749 N.W.2d 884 (2008);
Bergan Mercy Health Sys. v. Haven, 260 Neb. 846, 620 N.W.2d 339
(2000).
26
See Nebraska Retirement Systems Committee Hearing, L.B. 973, 102d
Leg., 2d Sess. (Jan. 12, 2012).
27
See Legislative Journal, Chronology of Bills, 102d Leg., 2d Sess. 136
(2012).
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collection actions against retirement funds before they are
distributed would create tax and payment complexities for
the State. Because the retirement funds represent deferred
income, garnishments of untaxed income to satisfy judgments
would require the plan member to pay income tax. For defined
benefit plans, preretirement disbursements would require an
expert’s actuarial recalculations of the member’s earned ben-
efit. Another problem would arise if a judgment creditor could
garnish both vested and nonvested pension funds because, with
limited exceptions (death, disability, or retirement), plan mem-
bers can obtain their own contributions only if they take money
from their retirement funds.28
In short, unless the Legislature limited the law to distributed
retirement funds, the agency would incur costs for additional
computer programming and obtaining actuarial recalcula-
tions.29 Moreover, the executive director of the retirement plan
for Omaha school teachers explained that its plan would lose
its tax-deferred status if it distributed funds to an employee
who was still an active member.30 The Legislature specifically
amended the bill to make retirement assets in the affected plans
subject to attachment only after they are distributed.31
(b) The Legislature Intended the Amendment
to Provide Compensation for the
Victims of Serious Crimes
Senator Coash’s statement of intent provides that L.B. 973
was enacted to give courts “an optional means of providing
civil restitution to victims of particularly heinous crimes.”32
28
Nebraska Retirement Systems Committee Hearing, 102d Leg., 2d Sess.
11-12 (Jan. 31, 2012).
29
See id.
30
See id.
31
See Amend. 1739, L.B. 916, Nebraska Retirement Systems Committee,
102d Leg., 2d Sess. (Feb. 14, 2012).
32
See Introducer’s Statement of Intent, L.B. 973, Nebraska Retirement
Systems Committee, 102d Leg., 2d Sess. (Jan. 31, 2012) (emphasis
supplied).
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Specifically, the bill authorizes a judgment to attach to public
employee’s retirements assets if the employee has pleaded no
contest or been convicted of “felony assault, sexual assault,
kidnapping, child abuse, false imprisonment, or theft by
embezzlement.”33
During the committee hearing, Senator Coash explained the
bill’s purpose as follows:
This is a bill to provide justice by way of restitution
to victims of heinous crimes, specifically to victims
who have been denied payment from their aggressors
because his or her assets are sheltered in their [sic] public
employee retirement pensions and/or benefits, even after
such pensions or benefits have been distributed from the
retirement plan to employees. [A] judge may order pay-
ment if . . . [t]he public employee has been convicted of
or pleads no contest in criminal court to an egregious
felony. And you’ll note that these crimes listed, such
as assault, kidnapping and theft, leave behind a living,
aggrieved victim. These exceptions cannot be employed,
by example, for those grieving a murder victim. Second
criteria, the employee [must be] found liable in a civil
court following the conviction. . . . [L]et’s pretend that [a
victim] has survived her attack [and if the defendant] was
not convicted in criminal court but was only found liable
in civil court, he would not . . . fit in this exemption. . . .
We purposely set the bar for this very high. You’ve got to
get through criminal court and been convicted by a jury
. . . in these very narrow crimes. . . . I understand that
the state continues to have very valid reasons to protect
pensions, which I fully support. I want to ensure that this
policy change truly protects both the vulnerable victims
of serious crime and the innocent family members of
those that are convicted, and I have purposely set that
threshold high so as to ensure restitution for the most
aggrieved victims whose well-being is forever affected
33
Id.
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by the crime and who may have the greatest need for that
financial restitution.34
When asked why his bill did not include victims of a mur-
der, Senator Coash stated the following:
Well, we discussed that quite a bit but in the case of a
murder there is no living victim that needs the funds . . .
we wanted to keep this narrow. We wanted to make sure
that these funds were accessed for the actual victim, not
the victim’s family. So we made a conscious decision to
leave those out.35
J.M., C.M., and J.M.’s attorney all testified about this spe-
cific case in support of the bill. J.M.’s attorney stated that he
had approached Senator Coash about the bill and worked with
him in drafting it. He disagreed with our decision in J.M.’s
first appeal and argued that he should be able to attach a judg-
ment to distributed retirement assets. A senator specifically
asked whether the attorney could attach Hobbs’ retirement
assets if this bill passed. He said yes, because in working with
Senator Coash, he “wanted to make sure that this [legislation]
applied to this particular judgment.”36 He explained that the
attachment remedy “was designed to be narrow. It’s not my
intent to make this any more encompassing than absolutely
necessary to get this young woman some compensation out of
this fund . . . .”37
III. ASSIGNMENTS OF ERROR
J.M. assigns that the court erred in concluding that
§ 81-2032(2) was unconstitutional as special legislation and
in overruling his motion for an order in aid of execution.
IV. STANDARD OF REVIEW
[1] The constitutionality of a statute presents a question of
law, which we independently review.38
34
Nebraska Retirement Systems Committee Hearing, 102d Leg., 2d Sess.
2-3 (Jan. 31, 2012) (emphasis supplied).
35
Id. at 5.
36
Id. at 7.
37
Id. at 8.
38
See Banks v. Heineman, 286 Neb. 390, 837 N.W.2d 70 (2013).
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V. GOVERNING PRINCIPLES
[2] We presume that statutes are constitutional and will not
strike down a statute unless its unconstitutionality is clearly
established.39
Under the special privileges and immunities clause of Neb.
Const. art. III, § 18,
[t]he Legislature shall not pass local or special laws in
any of the following cases[:]
....
Granting to any corporation, association, or individual
any special or exclusive privileges, immunity, or fran-
chise whatever . . . . In all other cases where a gen-
eral law can be made applicable, no special law shall
be enacted.
[3,4] A legislative act constitutes special legislation if (1)
it creates an arbitrary and unreasonable method of classifica-
tion or (2) it creates a permanently closed class.40 A special
legislation analysis focuses on a legislative body’s purpose
in creating a challenged class and asks if there is a substan-
tial difference of circumstances to suggest the expediency of
diverse legislation.41 The prohibition aims to prevent legisla-
tion that arbitrarily benefits a special class.42
[5,6] When the Legislature confers privileges on a class
arbitrarily selected from many who are standing in the same
relation to the privileges, without reasonable distinction or
substantial difference, then the statute in question has resulted
in the kind of improper discrimination prohibited by the
Nebraska Constitution.43 To be valid, a legislative classifica-
tion must rest upon some reason of public policy, some sub-
stantial difference in circumstances, which would naturally
suggest the justice or expediency of diverse legislation regard-
ing the objects to be classified.44
39
See Staley v. City of Omaha, 271 Neb. 543, 713 N.W.2d 457 (2006).
40
D-CO, Inc., supra note 25.
41
Id.
42
Id.
43
In re Interest of A.M., 281 Neb. 482, 797 N.W.2d 233 (2011).
44
D-CO, Inc., supra note 25.
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[7] And legislative classifications must be real and not illu-
sive; they cannot be based on distinctions without a substantial
difference.45 The distinctive treatment must bear some reason-
able relation to the legitimate objectives and purposes of the
legislative act.46 The question is always whether the things
or persons classified by the act form by themselves a proper
and legitimate class concerning the purpose of the act.47 Here,
the purpose is to provide compensation to the victims of seri-
ous crimes.
VI. ANALYSIS
[8] Initially, we clarify that Hobbs does not, and could not,
claim that L.B. 916 created a closed class. A closed class refers
to when a legislative body limits a law to a present condition,
with no opportunity for the numbers of the class to increase.48
Although the attachment remedy is limited in scope, the prob-
ability that other judgment creditors will come under the act’s
operation is more than theoretical.49 So the only issue here
is whether the classes benefited by the remedy were arbi-
trarily selected.
The district court determined that § 81-2032(2), as amended
by L.B. 916, is special legislation because nothing in the leg-
islative history explained why the six enumerated felonies—
assault, sexual assault, kidnapping, child abuse, false imprison-
ment, or theft by embezzlement—justified favored treatment
for the victims of these crimes but not the victims of other
serious crimes. The court concluded that the Legislature had
arbitrarily granted a benefit to the victims of the six enumer-
ated crimes and excluded others who were not substantially
different under the act’s purpose.
45
Id.
46
See id.
47
Id.
48
See Kiplinger v. Nebraska Dept. of Nat. Resources, 282 Neb. 237, 803
N.W.2d 28 (2011), disapproved on other grounds, Banks, supra note 38.
49
See id.
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J.M first contends that § 81-2032(2) is a law of general
application. J.M. argues that under State ex rel. Douglas v.
Nebraska Mortgage Finance Fund,50 if a statute has a legiti-
mate purpose and treats all of the selected class members uni-
formly, it is not special legislation.
We reject this argument and J.M.’s interpretation of Nebraska
Mortgage Finance Fund. There, during a period of high mort-
gage rates, the Legislature made available tax-free and low-
interest revenue bonds to private mortgage lenders to encour-
age them to make affordable mortgage loans to persons with
low and moderate incomes. The Legislature intended for the
difference between what the lenders and mortgagors paid in
interest to pay for the program. The legislative history showed
that high mortgage rates had caused a serious shortage of
decent, affordable housing near workers’ jobs and had contrib-
uted to blight in cities. The fund for the bonds was overseen
by a quasi-corporation operating as a governmental body with
appointed officers.
We concluded that the act was a law of general applicability,
not a special privilege for a select few, because the mortgage
funds were equally available to all persons of low and moderate
income across the state. We reasoned that the benefit received
by private lending institutions from having the revenue bonds
pass through them for low-interest mortgages was incidental to
the act’s public purpose: “The vital point in all such disburse-
ments is whether the purpose is public. If it is, it does not mat-
ter whether the agency through which it is dispensed is public
or not.”51 We concluded that the entire state benefited from the
availability of decent housing. In upholding the act, we stated
the following principles:
“‘An act is general, and not special or local, if it oper-
ates alike on all persons or localities of a class, or who are
brought within the relations and circumstances provided
50
State ex rel. Douglas v. Nebraska Mortgage Finance Fund, 204 Neb. 445,
283 N.W.2d 12 (1979).
51
Id. at 460, 283 N.W.2d at 22.
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for, if the classification so adopted by the legislature
has a basis in reason, and is not purely arbitrary. . . . “If
a law affects equally all persons who come within its
operation it cannot be local or special . . . .” . . . “A law
is not local or special in a constitutional sense that oper-
ates in the same manner upon all persons in like circum-
stances.” “General laws are those which relate to or bind
all within the jurisdiction of the law-making power, and
if a law is general and operates uniformly and upon all
brought within the relation and circumstance for which
it provides it is not a local or special law in the constitu-
tional sense.”’”52
J.M.’s argument hinges on a single sentence in this pas-
sage: “‘“‘If a law affects equally all persons who come within
its operation it cannot be local or special . . . .’”’” But the
passage also states that a law must operate uniformly for all
persons in like circumstances under the act’s purpose. So, we
clearly meant that a court must consider all persons stand-
ing in similar circumstances under an act’s purpose when
determining whom the law effects and whether the law oper-
ates uniformly.
[9] When read in context, Nebraska Mortgage Finance Fund
embodies this general principle: The Legislature has broad
discretion to make statutory classifications, but its discretion
is not unlimited. The Nebraska Constitution prohibits it from
making arbitrary classifications that favor select persons or
objects while excluding others that are not substantially differ-
ent in circumstance in relation to an act’s purpose. This inter-
pretation is consistent with the principles that we set out above.
To accept J.M.’s argument would render the special legislation
provision meaningless.
Next, we turn to J.M.’s alternative argument. J.M. contends
that the defined class of victims rests on a real and substan-
tial difference from other crime victims. He argues that the
Legislature correctly recognized that the victims of the six
52
Id. at 454-55, 283 N.W.2d at 19-20 (emphasis supplied).
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J.M. v. HOBBS 561
Cite as 288 Neb. 546
enumerated crimes have suffered tremendous trauma and have
the greatest need to recover a civil judgment against their
perpetrators who were public employees. He argues that these
victims often must pay for years of treatment to deal with the
effects of the crime.
But Hobbs contends that there is “no substantial difference
between the classes of enumerated and unenumerated felonies
that would explain why one class’s pension fund is protected
from attachment while the other’s is not.”53 He argues that the
purpose of L.B. 916 is to provide compensation to the victims
of serious crimes, yet it excludes the victims of many serious
crimes: e.g., murder, arson, robbery, and incest. He contends
that through the enumerated felonies, L.B. 916 arbitrarily ben-
efits (1) select victims who can collect a judgment from a pub-
lic employee’s retirement assets and (2) those pensioners who
are convicted of other serious crimes yet are protected from
attachment. We agree.
It is clear that the Legislature’s desire both to provide
relief for victims like C.M. and to protect the retirement
assets of public employees in most circumstances explains
its favored treatment of select victims—and its consequen-
tial favored treatment of public employees who have com-
mitted other serious crimes. By limiting the crime victims
who can use this remedy to a small group in order to protect
most public employees’ retirement funds, the Legislature has
necessarily singled out a select group of offenders whose
retirement benefits can be subject to attachment. But despite
the Legislature’s good intentions, the Constitution requires
uniformity of laws:
“Uniformity [of laws] is required in order to prevent
granting to any person, or class of persons, the privileges
or immunities which do not belong to all persons. . . . It is
because the legislative process lacks the safeguards of due
process and the tradition of impartiality which restrain the
courts from using their powers to dispense special favors
53
Brief for appellee at 13.
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562 288 NEBRASKA REPORTS
that such constitutional prohibitions against special legis-
lation were enacted.”54
L.B. 916 cannot evade the special legislation prohibition.
The most heinous crime under Nebraska law is capital mur-
der. The victim’s survivors frequently suffer real economic
consequences and psychological trauma. But the act closes
the door to relief for these victims. Moreover, even assuming
that distinguishing between living crime victims and a murder
victim’s family members represents a rational distinction under
the bill’s purpose of providing compensation to the victims of
serious crimes, the court correctly determined that the select
class of living victims is arbitrary.
For example, if Hobbs had been C.M.’s father (instead of
stepfather), convicted of incest, and found liable for damages
in a civil action, C.M.’s trauma from the crime would be the
same, if not greater. But she could not collect a judgment from
Hobbs’ distributed retirement assets. Similarly, we can discern
no reason to favor the victims of embezzlement, a property
crime, but to exclude the victims of arson. No difference in
the crimes’ traumatic effects justifies the diverse treatment of
these victims.
Nor can we be blind to the Legislature’s obvious exclu-
sion of many retirement plans for public employees—over
which it has authority—from the effects of L.B. 916. This
exclusion further illustrates the arbitrariness of the selected
victims who can benefit from the attachment remedy and the
selected public employees whose retirement benefits are sub-
ject to attachment.
Finally, whether victims of the same crime can attach civil
judgments to a public employee’s distributed retirement assets
will often depend on prosecutorial discretion. For example, if
a victim is shot by a public employee but survives, the State
might charge an assault or an attempted murder. If the State
successfully prosecutes an assault, the victim can seek redress
under L.B. 916 because it is an enumerated crime. But if the
54
Gourley v. Nebraska Methodist Health Sys., 265 Neb. 918, 938, 663
N.W.2d 43, 65 (2003), quoting Haman v. Marsh, 237 Neb. 699, 467
N.W.2d 836 (1991).
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J.M. v. HOBBS 563
Cite as 288 Neb. 546
State prosecutes an attempted murder, an absolute exemption
from attachment applies. A similar issue could arise if the
State reduces an original enumerated charge in exchange for
a plea of guilty or declines to prosecute in exchange for an
employee’s cooperation. But can anyone doubt that the victim’s
trauma is the same regardless of the State’s decisions about
whether or what to prosecute.
In sum, the exclusive list of felonies in § 81-2032(2) arbi-
trarily benefits select victims of its specified crimes and arbi-
trarily protects State Patrol officers who are convicted of seri-
ous felonies that are not enumerated under L.B. 916.
VII. CROSS-APPEAL
On cross-appeal, Hobbs contends that the court erred in (1)
ruling that § 81-2032(2) does not violate his constitutional
rights under the Equal Protection Clauses of the state and
federal Constitutions and (2) failing to address his challenges
under the Due Process and Impairment of Contracts Clauses
of the state and federal Constitutions. But Hobbs’ other consti-
tutional challenges to the statute are moot because they have
been subsumed within our holding that the statute violates
the prohibition against special legislation. He does not have
a legally cognizable interest in having the statute declared
unconstitutional for additional reasons.55
VIII. CONCLUSION
The court correctly determined that the amendment to
§ 81-2032(2) constitutes special legislation. The Legislature’s
attempt to create very limited exceptions to an absolute privi-
lege from attachment of a public employee’s retirement assets
has resulted in a law that benefits only a select group of
victims. Simultaneously, the amendment arbitrarily protects
public employees who are convicted of comparably serious
crimes yet retain an absolute privilege from attachment of
their retirement assets. Under the act’s purpose of providing
compensation to the victims of serious crimes, the favored
crime victims are similar in circumstance to many other
55
See Big John’s Billards v. State, 283 Neb. 496, 811 N.W.2d 205 (2012).
Nebraska Advance Sheets
564 288 NEBRASKA REPORTS
serious crime victims who do not have the attachment remedy.
Similarly, there is no substantial difference between the public
employees subject to the remedy and those who commit many
other serious crimes yet retain their privilege from attachment.
Accordingly, the Legislature’s preferential treatment of the
favored groups and exclusion of others that are similar in cir-
cumstance runs afoul of the Constitution’s prohibition against
special legislation.
Affirmed.
Wright and Cassel, JJ., not participating.
Sam Christiansen, an individual, appellee and
cross-appellant, v. County of Douglas, a political
subdivision of the State of Nebraska, et al.,
appellants and cross-appellees.
Rich McShane, on behalf of himself and all similarly
situated persons, appellee and cross-appellant, v.
County of Douglas, a political subdivision
of the State of Nebraska, et al.,
appellants and cross-appellees.
___ N.W.2d ___
Filed July 18, 2014. Nos. S-13-689, S-13-691.
1. Jurisdiction: Appeal and Error. The question of jurisdiction is a question of
law, which an appellate court resolves independently of the trial court.
2. Equity: Appeal and Error. Although in many contexts the traditional dis-
tinctions between law and equity have been abolished, whether an action is
one in equity or one at law controls in determining an appellate court’s scope
of review.
3. Actions: Pleadings. Whether a particular action is one at law or in equity is
determined by the essential character of a cause of action and the remedy or relief
it seeks.
4. Injunction: Equity. An action for injunction sounds in equity.
5. Declaratory Judgments. An action for declaratory judgment is sui generis;
whether such action is to be treated as one at law or one in equity is to be deter-
mined by the nature of the dispute.
6. Equity: Appeal and Error. On appeal from an equity action, an appellate
court decides factual questions de novo on the record and, as to questions of
both fact and law, is obligated to reach a conclusion independent of the trial
court’s determination.