Uhrich & Brown Ltd. Part. v. Middle Republican NRD , 315 Neb. 596 ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/15/2023 09:07 AM CST
- 596 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
UHRICH & BROWN LTD. PART. V. MIDDLE REPUBLICAN NRD
Cite as 315 Neb. 596Uhrich & Brown Limited Partnership, appellee,
v. Middle Republican Natural Resources
District et al., appellants.
Merlin Brown, appellee, v. Middle
Republican Natural Resources
District et al., appellants.
___ N.W.2d ___
Filed December 15, 2023. Nos. S-23-169, S-23-174.
1. Administrative Law: Judgments: Appeal and Error. A judgment or
final order rendered by a district court in a judicial review pursuant to
the Administrative Procedure Act may be reversed, vacated, or modified
by an appellate court for errors appearing on the record.
2. ____: ____: ____. When reviewing an order of a district court under
the Administrative Procedure Act for errors appearing on the record, the
inquiry is whether the decision conforms to the law, is supported by com-
petent evidence, and is neither arbitrary, capricious, nor unreasonable.
3. Judgments: Appeal and Error. An appellate court, in reviewing a dis-
trict court’s judgment for errors appearing on the record, will not substi-
tute its factual findings for those of the district court where competent
evidence supports those findings.
4. Constitutional Law: Due Process. The determination of whether the
procedures afforded an individual comport with constitutional require-
ments for procedural due process presents a question of law.
5. Judgments: Appeal and Error. On a question of law, an appellate court
is obligated to reach a conclusion independent of the determination
reached by the court below.
6. Due Process: Trial. A fair trial in a fair tribunal is a basic requirement
of due process.
7. Constitutional Law: Due Process. Not only is a biased decisionmaker
constitutionally unacceptable, but the U.S. system of law has always
endeavored to prevent even the probability of unfairness.
- 597 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
UHRICH & BROWN LTD. PART. V. MIDDLE REPUBLICAN NRD
Cite as 315 Neb. 5968. Administrative Law: Due Process. A party appearing in an adjudica-
tion hearing before an agency or tribunal is entitled to due process
protections similar to those given litigants in a judicial proceeding;
this includes the right to a hearing before an impartial, unbiased
decisionmaker.
9. Administrative Law: Presumptions. Decisionmakers are accorded a
presumption of honesty and integrity, and of being qualified, unbi-
ased, and unprejudiced; administrative adjudicators serve with the same
presumption.
10. Administrative Law: Recusal: Presumptions: Proof. A party seeking
to disqualify an administrative adjudicator on the basis of bias or preju-
dice bears the heavy burden of overcoming the presumption of honesty
and integrity.
11. Constitutional Law: Administrative Law: Presumptions: Proof. To
overcome the presumption of honesty and integrity of an administrative
adjudicator, there must be a showing of actual bias or a showing that the
probability of actual bias is too high to be constitutionally tolerable.
12. Constitutional Law: Administrative Law: Judges. Rather than inquir-
ing into whether the judge or adjudicator is actually, subjectively biased,
the question is whether the average judge in his or her position is likely
to be neutral, or whether there is an unconstitutional potential for bias.
13. Administrative Law. Central to whether the average administrative
decisionmaker in a similar position is likely to be neutral is the extent
of separation between the investigative, prosecutorial, and adjudicative
roles in the case.
14. Criminal Law: Administrative Law: Due Process. In a criminal trial,
due process requires the strict separation of investigative, prosecutorial,
and adjudicative functions; in an administrative proceeding, due process
requires an adequate separation of investigative, prosecutorial, and adju-
dicative roles.
15. Administrative Law: Courts. Courts must bear in mind the way par-
ticular administrative procedures actually work in practice.
16. Administrative Law: Due Process. The mere fact that investigative,
prosecutorial, and adjudicative functions are combined within one
administrative agency does not give rise to a due process violation.
17. Administrative Law. Adequate separation of administrative functions
can be accomplished internally at the individual level rather than at the
institutional level.
18. ____. To some extent, combinations of investigative, prosecutorial, and
adjudicative functions in the same administrative agency inhere in the
very nature of the administrative process.
- 598 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
UHRICH & BROWN LTD. PART. V. MIDDLE REPUBLICAN NRD
Cite as 315 Neb. 59619. ____. Requiring administrative agencies to maintain a rigid separation
of functions would deprive agencies of the flexibility needed to conduct
their complex and varied functions.
20. Administrative Law: Prosecuting Attorneys: Due Process. It is the
general rule that a combination of prosecutorial and adjudicative func-
tions in the same person is incompatible with due process, such as where
the person prosecuting a case on behalf of a public body is also a mem-
ber of the decisionmaking body or advisor to it on the same matter.
21. Administrative Law: Attorneys at Law. Administrative agency coun-
sel who performs as an advocate in a given case is generally precluded
from advising a decisionmaking body in the same case.
22. Administrative Law: Prosecuting Attorneys. An administrative pros-
ecutor or advocate, by definition, is partisan for a particular client or
point of view.
23. Constitutional Law: Prosecuting Attorneys. Generally, the role of
prosecutor is inconsistent with true objectivity, a constitutionally neces-
sary characteristic of an adjudicator.
24. ____: ____. The prosecutor or advocate in an administrative pro-
ceeding generally will have a will to win—a psychological commit-
ment to achieving a particular result because of involvement on the
agency’s team.
25. Evidence: Words and Phrases. Competent evidence means evidence
that tends to establish the fact in issue. It is evidence that is admissible
and relevant on the point in issue.
26. Administrative Law: Words and Phrases. A decision is arbitrary when
it is made in disregard of the facts or circumstances and without some
basis which would lead a reasonable person to the same conclusion.
27. Words and Phrases. A capricious decision is one guided by fancy
rather than by judgment or settled purpose.
28. ____. The term “unreasonable” can be applied to a decision only if the
evidence presented leaves no room for differences of opinion among
reasonable minds.
29. Appeal and Error. To be considered by an appellate court, an alleged
error must be both specifically assigned and specifically argued in the
brief of the party assigning the error.
30. Administrative Law: Evidence: Appeal and Error. The Administrative
Procedure Act does not authorize a district court’s reviewing the deci-
sion of an administrative agency to receive additional evidence.
31. Constitutional Law: Administrative Law: Appeal and Error. When
the facts and circumstances of administrative proceedings show an
improper combination of functions such that there exists a risk of bias
- 599 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
UHRICH & BROWN LTD. PART. V. MIDDLE REPUBLICAN NRD
Cite as 315 Neb. 596on the part of the decisionmaker that is too high to be constitutionally
tolerable, this amounts to structural error requiring reversal.
32. Trial: Appeal and Error. The right to an impartial adjudicator is so
basic to a fair trial that its infraction can never be treated as harm-
less error.
Appeals from the District Court for Frontier County: James
E. Doyle IV, Judge. Affirmed.
Donald G. Blankenau and Kennon G. Meyer, of Blankenau,
Wilmoth & Jarecke, L.L.P., for appellants.
Cody E. Siegfried, of Goodwin Siegfried, L.L.P., for appel-
lee Uhrich & Brown Limited Partnership.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
INTRODUCTION
Following administrative hearings, the board of directors
of a natural resources district adopted resolutions finding
that two landowners violated certain ground water manage-
ment rules and requiring them to comply with the natural
resources district’s cease-and-desist order imposing penalties.
On appeal under the Administrative Procedure Act (APA), 1
the district court reversed and vacated the board of directors’
determinations after finding a violation of the landowners’
due process right to an impartial tribunal because the natural
resources district’s attorneys were involved in the decision-
making process of the case after exercising both investigative
and prosecutorial roles. The natural resources district chal-
lenges the district court’s order, arguing the record is devoid
of any facts that would support the district court’s finding that
1
See Neb. Rev. Stat. §§ 84-901 to 84-920 (Reissue 2014 & Cum. Supp.
2022).
- 600 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
UHRICH & BROWN LTD. PART. V. MIDDLE REPUBLICAN NRD
Cite as 315 Neb. 596the natural resources district’s attorneys were included in the
decisionmaking process. Because the district court’s decision
conforms to the law, is supported by competent evidence, and
is neither arbitrary, capricious, nor unreasonable, we affirm.
BACKGROUND
Prehearing Correspondence
Merlin Brown and Uhrich & Brown Limited Partnership
own agricultural land in Red Willow County, Nebraska. Brown
is the general partner of the limited partnership. Brown and the
limited partnership (collectively the landowners) leased this
land to tenants, who farm and operate the land pursuant to a
lease agreement.
In August 2020, the Board of Directors (Board) of the
Middle Republican Natural Resources District (NRD) adopted
resolutions providing that the landowners had likely violated
the Nebraska Ground Water Management and Protection Act
(NGWMPA) and the rules and regulations of the NRD. The
resolutions authorized the NRD to send the landowners a
“Notice of Intent to Issue a Cease and Desist Order and to
Issue Penalties.”
Shortly thereafter, the NRD sent letters to the landowners
stating they may have violated the NRD’s rules and regulations
and the NGWMPA. Both letters stated that if the landowners
requested hearings before the Board, such hearings would be
scheduled for September 16, 2020. Both were signed by the
NRD manager.
One week later, the NRD sent letters to the landowners with
practically identical information but specified a different hear-
ing date if the landowners voluntarily consented to the cease-
and-desist order. These letters were also signed by the NRD
manager. The landowners requested formal hearings, along
with information and documentation related to the NRD’s
investigation.
In October 2020, the NRD again sent letters to the landown-
ers, reiterating much of the same information and specifying
- 601 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
UHRICH & BROWN LTD. PART. V. MIDDLE REPUBLICAN NRD
Cite as 315 Neb. 596the alleged violations. However, the October letters were
signed by attorney Nicholas J. Ridgeway and were printed on
his law firm’s letterhead.
The letters indicated that should the landowners request
hearings before the Board, such hearings would take place on
October 30, 2020, and identified the individual who would
serve as the hearing officer. In response, the landowners
again requested formal hearings before the Board, along
with information and documentation pertaining to the NRD’s
investigation.
Days before the scheduled hearing date, Ridgeway sent
another letter to the landowners’ attorney, notifying him of
a change in venue for the hearing due to the State’s updated
COVID-19 health measures.
Administrative Hearing
On October 30, 2020, separate hearings were conducted by
the designated hearing officer before the Board for each of
the landowners. Ridgeway and Daniel L. Lindstrom, another
attorney who worked at the same law firm as Ridgeway, rep-
resented the NRD. The landowners were also represented by
counsel. At the hearings, counsel for both parties presented
arguments, called and cross-examined witnesses, and offered
and objected to evidence.
The Board adopted resolutions finding there was sufficient
evidence showing the landowners had violated the NRD’s
rules and regulations and ordering them to comply with the
NRD’s cease-and-desist order and order issuing penalties.
The Board stated in its resolutions that before adopting
the resolutions, it “consulted with legal counsel, made pre-
liminary determinations and requested that legal counsel draft
appropriate documents.” In their briefs, the parties reference
Ridgeway and Lindstrom as counsel for both the NRD and the
Board. Ridgeway sent letters notifying the landowners of the
Board’s decision and included copies of the resolutions and
the cease-and-desist orders.
- 602 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
UHRICH & BROWN LTD. PART. V. MIDDLE REPUBLICAN NRD
Cite as 315 Neb. 596Petitions for Review
As relevant to this appeal, the landowners filed petitions
for review in the district court pursuant to the APA. They
argued the proceedings below were improperly conducted,
denying the landowners equal protection and due process of
law. Specifically, the landowners claimed the extensive par-
ticipation by the NRD’s counsel during the various stages of
the dispute tainted the landowners’ due process right to be
heard before a neutral, unbiased decisionmaker. The NRD
responded that there was no indication the NRD’s counsel
actually influenced the Board’s decision. The NRD did not
contend that its counsel during the hearing was different from
its counsel that, according to the Board’s resolution, was con-
sulted by the Board.
District Court’s Decision
Because the landowners requested identical relief and
alleged identical claims of due process, the district court con-
sidered and resolved the petitions together in one opinion. The
court determined the involvement of the NRD’s counsel in
the decisionmaking process, after acting as investigators and
prosecutors for the NRD, violated the landowners’ due process
right to a neutral decisionmaker. The record showed, the court
reasoned, that the same attorneys involved in the advocacy
and prosecutorial functions of the dispute “were included in
the decision-making process of the [NRD] board,” thereby
“nullif[ying] the presumption of neutrality and impartiality
accorded the tribunal.”
While acknowledging that, as a matter of law, adjudicators
serve with a presumption of honesty and integrity, the district
court relied on In re 2007 Appropriations of Niobrara River
Waters 2 for the proposition that “the same persons who con-
duct the decision-making at and after an enforcement hearing
2
In re 2007 Appropriations of Niobrara River Waters, 283 Neb. 629, 820
N.W.2d 44 (2012).
- 603 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
UHRICH & BROWN LTD. PART. V. MIDDLE REPUBLICAN NRD
Cite as 315 Neb. 596may not involve themselves directly in any of the investiga-
tion, preparation, or prosecution of an enforcement action.”
Based on this reasoning, the court reversed and vacated the
penalties imposed by the NRD’s cease-and-desist order.
The NRD appeals the district court’s decision. Because the
appeals involve identical facts, raise identical assignments
of error, and rely on the same arguments, we consolidated
the appeals.
ASSIGNMENTS OF ERROR
The NRD assigns the district court erred by (1) failing to
review the Board’s decision de novo on the record; (2) failing
to find that the landowners violated the rules and regulations
of the NRD and the NGWMPA, and to approve the NRD’s
order imposing a penalty; and (3) finding that the opportu-
nity for a hearing provided by the NRD did not conform to
due process.
STANDARD OF REVIEW
[1-3] A judgment or final order rendered by a district court
in a judicial review pursuant to the APA may be reversed,
vacated, or modified by an appellate court for errors appear-
ing on the record. 3 When reviewing an order of a district court
under the APA for errors appearing on the record, the inquiry
is whether the decision conforms to the law, is supported
by competent evidence, and is neither arbitrary, capricious,
nor unreasonable. 4 An appellate court, in reviewing a district
court’s judgment for errors appearing on the record, will not
substitute its factual findings for those of the district court
where competent evidence supports those findings. 5
[4,5] The determination of whether the procedures afforded
an individual comport with constitutional requirements for
3
Medicine Creek v. Middle Republican NRD, 296 Neb. 1, 892 N.W.2d 74(2017).
4
Id.5
Lingenfelter v. Lower Elkhorn NRD, 294 Neb. 46, 881 N.W.2d 892 (2016).
- 604 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
UHRICH & BROWN LTD. PART. V. MIDDLE REPUBLICAN NRD
Cite as 315 Neb. 596procedural due process presents a question of law. 6 On a
question of law, an appellate court is obligated to reach a
conclusion independent of the determination reached by the
court below. 7
ANALYSIS
The NRD argues the district court’s decision is not sup-
ported by the record, and accordingly, the decision fails to
comply with the district court’s de novo on the record stan-
dard of review and is arbitrary, capricious, unreasonable, and
unsupported by competent evidence. The NRD admits its
attorneys actively participated and represented the NRD dur-
ing the hearing. Thus, it does not contest the district court’s
finding that the NRD’s attorneys prosecuted the case on behalf
of the NRD during the hearing by making arguments before
the hearing officer, objecting to evidence, and cross-examining
the landowners’ witnesses. Instead, the NRD contests the
district court’s finding that its attorneys were included in the
adjudicatory process of the Board. It also contests the district
court’s conclusion that the NRD’s attorneys’ involvement in
both prosecutorial and adjudicatory functions rebutted the
presumption of honesty and integrity afforded to the Board
and demonstrated a probability of actual bias that is too high
to be constitutionally tolerable. Because there is competent
evidence that the NRD’s attorneys were improperly included
in the adjudicatory process, we affirm.
In discussing the NRD’s due process obligations in this
case, both parties rely on cases involving administrative
agencies. Although we have observed that a natural resources
district is a unit of local government rather than an adminis-
trative agency, 8 we follow the parties’ lead and assume that
6
Fleming v. Civil Serv. Comm. of Douglas Cty., 280 Neb. 1014, 792 N.W.2d
871 (2011).
7
Id.8
Lingenfelter v. Lower Elkhorn NRD, supra note 5.
- 605 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
UHRICH & BROWN LTD. PART. V. MIDDLE REPUBLICAN NRD
Cite as 315 Neb. 596the due process standards governing administrative agencies
apply to the NRD. Further, despite a natural resources dis-
trict’s status as a unit of local government, the Legislature
has expressly directed the use of APA procedures in resolving
challenges to decisions of a natural resources district. 9
[6,7] A “fair trial in a fair tribunal is a basic requirement of
due process.” 10 “Not only is a biased decisionmaker constitu-
tionally unacceptable but our system of law has always endeav-
ored to prevent even the probability of unfairness.” 11
[8] A party appearing in an adjudication hearing before
an agency or tribunal is entitled to due process protections
similar to those given litigants in a judicial proceeding. 12
This includes the right to a hearing before an impartial, unbi-
ased decisionmaker. 13
[9,10] Decisionmakers are accorded a presumption of hon-
esty and integrity, and of being qualified, unbiased, and unprej-
udiced. 14 Administrative adjudicators serve with the same pre-
sumption. 15 A party seeking to disqualify an administrative
adjudicator on the basis of bias or prejudice bears the heavy
burden of overcoming that presumption. 16
[11,12] To overcome the presumption of honesty and
integrity of an administrative adjudicator, there must be a
9
See Neb. Rev. Stat. § 46-750 (Reissue 2021).
10
Withrow v. Larkin, 421 U.S. 35, 46, 95 S. Ct. 1456, 43 L. Ed. 2d 712(1975) (internal quotation marks omitted).
11
Id., 421 U.S. at 47 (internal quotation marks omitted).
12
Prokop v. Lower Loup NRD, 302 Neb. 10, 921 N.W.2d 375 (2019); Cain
v. Custer Cty. Bd. of Equal., 298 Neb. 834, 906 N.W.2d 285 (2018).
13
See, Prokop v. Lower Loup NRD, supra note 12; Stenger v. Department of
Motor Vehicles, 274 Neb. 819, 743 N.W.2d 758 (2008).
14
46 Am. Jur. 2d Judges § 194 (2017). See 32 Charles Alan Wright et al.,
Federal Practice and Procedure § 8143 (2023).
15
In re 2007 Appropriations of Niobrara River Waters, supra note 2. See
Withrow v. Larkin, supra note 10.
16
Murray v. Neth, 279 Neb. 947, 783 N.W.2d 424 (2010). See Withrow v.
Larkin, supra note 10.
- 606 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
UHRICH & BROWN LTD. PART. V. MIDDLE REPUBLICAN NRD
Cite as 315 Neb. 596showing of actual bias or a showing that “‘the probability of
actual bias . . . is too high to be constitutionally tolerable.’” 17
Rather than inquiring into whether the judge or adjudicator
is “actually, subjectively biased,” the question is whether the
average judge in his or her position is “likely to be neutral,
or whether there is an unconstitutional potential for bias.” 18
[13-15] Central to whether the average administrative deci-
sionmaker in a similar position is likely to be neutral is the
extent of separation between the investigative, prosecutorial,
and adjudicative roles in the case. In a criminal trial, due
process requires the strict separation of investigative, pros-
ecutorial, and adjudicative functions 19; in an administrative
proceeding, due process requires an “[a]dequate separation” 20
of investigative, prosecutorial, and adjudicative roles. As a
natural consequence of limited resources in local government,
administrative procedures at the local level have traditionally
been relaxed. 21 Courts must bear in mind “‘“the way particular
procedures actually work in practice.”’” 22
17
Caperton v. A. T. Massey Coal Co., 556 U.S. 868, 872, 129 S. Ct. 2252,
173 L. Ed. 2d 1208 (2009) (quoting Withrow v. Larkin, supra note 10).
See, Murray v. Neth, supra note 16; Davenport Pastures v. Bd. of County
Com’rs, 291 Kan. 132, 238 P.3d 731 (2010); 32 Wright et al., supra note
14.
18
Caperton v. A. T. Massey Coal Co., supra note 17, 556 U.S. at 881
(internal quotation marks omitted). See 32 Wright et al., supra note 14.
19
See 16D C.J.S. Constitutional Law § 2021 (2015).
20
Jared R. Faerber, Administrative Law Bias in Administrative Proceedings,
1997 Utah L. Rev. 1087, 1095 (1997). See, 2 Am. Jur. 2d Administrative
Law § 303 (2014). See, also, e.g., 16D C.J.S., supra note 19; 73A C.J.S.
Public Administrative Law and Procedure § 322 (2014); 36 Standard
Pennsylvania Practice 2d § 166:125 (Nov. 2023 update).
21
Kelli Shope, Balancing Administrative Efficiency and Fairness:
Restrictions on Local Hearing Advisors Post-Nightlife Partners, Ltd. v.
City of Beverly Hills, 24 J. Nat. Assn. Admin. L. Judiciary 51 (2004).
22
In re 2007 Appropriations of Niobrara River Waters, supra note 2, 283
Neb. at 645, 820 N.W.2d at 59 (quoting Murray v. Neth, supra note 16).
See Withrow v. Larkin, supra note 10.
- 607 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
UHRICH & BROWN LTD. PART. V. MIDDLE REPUBLICAN NRD
Cite as 315 Neb. 596[16-19] Accordingly, we have recognized that the mere
fact that investigative, prosecutorial, and adjudicative func-
tions are combined within one administrative agency does not
give rise to a due process violation. 23 “[A]dequate separation
of [administrative] functions can be accomplished internally at
the individual level rather than at the institutional level.” 24 To
some extent, combinations of investigative, prosecutorial, and
adjudicative functions in the same administrative agency inhere
in the very nature of the administrative process. 25 Requiring
administrative agencies to maintain a rigid separation of func-
tions would deprive agencies of the flexibility needed to con-
duct their complex and varied functions. 26
In Withrow v. Larkin, 27 the U.S. Supreme Court addressed
investigative and adjudicative functions combined within one
medical agency and found it did not violate due process.
After holding several investigative hearings regarding alleged
criminal behavior by a physician licensed to practice medicine,
the governing medical board, pursuant to statute, directed its
secretary to file a complaint with the district attorney to initi-
ate a contested hearing before the board seeking to revoke
the physician’s license based on the alleged crimes. 28 The
district court enjoined the medical board from enforcing the
statute, reasoning that a statute allowing the medical board
to “‘suspend [the physician’s] license at [the Board’s] own
contested hearing on charges evolving from [the Board’s] own
investigation’” would deny the physician his procedural due
process rights. 29
23
In re 2007 Appropriations of Niobrara River Waters, supra note 2.
24
See Faerber, supra note 20, 1997 Utah L. Rev. at 1095. See, also, 16D
C.J.S., supra note 19; 73A C.J.S., supra note 20.
25
See In re 2007 Appropriations of Niobrara River Waters, supra note 2.
26
See Faerber, supra note 20.
27
Withrow v. Larkin, supra note 10.
28
Id.29
Id., 421 U.S. at 42.
- 608 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
UHRICH & BROWN LTD. PART. V. MIDDLE REPUBLICAN NRD
Cite as 315 Neb. 596The U.S. Supreme Court disagreed. It explained, “The con-
tention that the combination of investigative and adjudicative
functions necessarily creates an unconstitutional risk of bias
. . . must overcome a presumption of honesty and integrity
in those serving as adjudicators . . . .” 30 The Court further
explained, “[I]t must convince that, under a realistic appraisal
of psychological tendencies and human weakness, conferring
investigative and adjudicative powers on the same individuals
poses such a risk of actual bias or prejudgment that the prac-
tice must be forbidden if the guarantee of due process is to be
adequately implemented.” 31
The Court in Withrow analogized the situation presented
to a judge who presides over a bench trial after finding prob-
able cause to issue an arrest warrant or after finding sufficient
evidence at a preliminary hearing to hold the defendant for
trial. The medical board, the Court observed, only investigated
whether proscribed conduct had occurred, and the physician
and his counsel were present throughout the investigative pro-
ceeding and knew the facts presented to the medical board.
That the medical board later would also determine if violations
had been committed, warranting suspension of the physician’s
license, did not create an unacceptable risk of bias. The Court
explained, “The mere exposure to evidence presented in non-
adversary investigative procedures is insufficient in itself to
impugn the fairness of the [b]oard members at a later adver-
sary hearing.” 32
This is because
[t]he risk of bias or prejudgment in this sequence of
functions has not been considered to be intolerably high
or to raise a sufficiently great possibility that the adju-
dicators would be so psychologically wedded to their
30
Id., 421 U.S. at 47.
31
Id.32
Id., 421 U.S. at 55.
- 609 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
UHRICH & BROWN LTD. PART. V. MIDDLE REPUBLICAN NRD
Cite as 315 Neb. 596complaints that they would consciously or uncon-
sciously avoid the appearance of having erred or changed
position. 33
Indeed, “there is no incompatibility between the agency filing
a complaint based on probable cause and a subsequent deci-
sion, when all the evidence is in, that there has been no viola-
tion of the statute.” 34 The Court held that “the combination
of investigative and adjudicative functions does not, without
more, constitute a due process violation.” 35 However, that did
not “preclude a court from determining from the special facts
and circumstances present in the case before it that the risk of
unfairness is intolerably high.” 36
[20,21] The “realistic appraisal of psychological tendencies
and human weakness” 37 is different when the “same person on
the same case” 38 participates in adjudicatory functions after
acting in a prosecutorial role. It has been said that exercising
both prosecutorial and adjudicatory functions is “‘inherently
suspect.’” 39 It is
the general rule that a combination of prosecutorial and
adjudicative functions in the same person is incompatible
with due process, such as where the person prosecut-
ing a case on behalf of a public body is also a member
of the decision-making body or advisor to it on the
same matter.” 40
33
Id., 421 U.S. at 57.
34
Id.35
Id., 421 U.S. at 58.
36
Id.37
Id., 421 U.S. at 47.
38
Robert R. Kuehn, Addressing Bias in Administrative Environmental
Decisions, 37 J. Nat. Assn. Admin. L. Judiciary 693, 748 (2018).
39
Id.40
Id. at 749.
- 610 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
UHRICH & BROWN LTD. PART. V. MIDDLE REPUBLICAN NRD
Cite as 315 Neb. 596Accordingly, administrative agency counsel who performs as
an advocate in a given case is generally precluded from advis-
ing a decisionmaking body in the same case. 41
[22-24] An administrative prosecutor or advocate, “[b]y
definition,” is “partisan for a particular client or point of
view.” 42 Generally, the role of prosecutor “is inconsistent with
true objectivity, a constitutionally necessary characteristic of
an adjudicator.” 43 The prosecutor or advocate in an admin-
istrative proceeding generally will have a “‘will to win’—
‘a psychological commitment to achieving a particular result
because of involvement on the agency’s team.’” 44 And it may
be “‘difficult for anyone who has worked long and hard to
prove a proposition . . . to make the kind of dramatic change in
psychological perspective necessary to assess that proposition
objectively . . . .’” 45
Thus, we opined in In re 2007 Appropriations of Niobrara
River Waters that “[w]hen advocacy and decisionmaking roles
are combined, true objectivity, a constitutionally necessary
characteristic of an adjudicator, is compromised.” 46 However,
we have not had occasion to directly address dual prosecu-
torial and adjudicatory roles. In In re 2007 Appropriations
of Niobrara River Waters, 47 we ultimately found the same
41
See 2 Am. Jur. 2d, supra note 20.
42
Howitt v. Superior Court, 3 Cal. App. 4th 1575, 1585, 5 Cal. Rptr. 2d 196,
202 (1992).
43
Id.44
Botsko v. Davenport Civil Rights Com’n, 774 N.W.2d 841, 849 (Iowa
2009) (quoting Michael Asimow, When the Curtain Falls: Separation of
Functions in the Federal Administrative Agencies, 81 Colum. L. Rev. 759(1981)).
45
Id. (quoting 2 Richard J. Pierce, Jr., Administrative Law Treatise § 9.9 (4th
ed. 2002)).
46
In re 2007 Appropriations of Niobrara River Waters, supra note 2, 283
Neb. at 644, 820 N.W.2d at 59 (internal quotation marks omitted).
47
In re 2007 Appropriations of Niobrara River Waters, supra note 2.
- 611 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
UHRICH & BROWN LTD. PART. V. MIDDLE REPUBLICAN NRD
Cite as 315 Neb. 596person was not involved in both prosecutorial and adjudica-
tory functions.
In In re 2007 Appropriations of Niobrara River Waters,
the Nebraska Department of Natural Resources appeared as
a party advocate through a designated staff attorney, but it
appointed an independent attorney as the hearing officer, and
the director of the department issued the final order in the case
without participation of the staff attorney. We observed that
there was no evidence or argument that the director requested
the staff attorney to gather or present specific evidence or
that the director and the staff attorney had any communica-
tion regarding the outcome of the proceedings. We said, “The
separation of functions within an administrative agency, allot-
ting the prosecutorial function to a staff of attorneys or other
personnel who will not participate in the eventual decision, is a
common and recommended feature of administrative enforce-
ment activity.” 48
The Iowa Supreme Court, in Botsko v. Davenport Civil
Rights Com’n, 49 was presented with an agency representative
who performed a prosecutorial function and also participated
in the decisionmaking process in an advisory role. The court
held that this participation in both advocacy and adjudicatory
functions violated due process. 50
Botsko involved proceedings under an employee’s com-
plaint with a civil rights commission, alleging her employer
maintained a hostile work environment. During the hearing,
the director of the commission acted as an advocate for the
employee, sitting at the table with the employee, engaging
in off-the-record conferences with the employee’s attorney,
and failing to object when the presiding officer stated both
the employee’s attorney and the director bore the burden
of proof in the case. Then, at the close of the hearing, the
48
Id., 283 Neb. at 645, 820 N.W.2d at 59 (emphasis supplied).
49
Botsko v. Davenport Civil Rights Com’n, supra note 44.
50
Id.
- 612 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
UHRICH & BROWN LTD. PART. V. MIDDLE REPUBLICAN NRD
Cite as 315 Neb. 596director joined the commission for its closed-door delib-
erations—apparently participating only to advise the commis-
sioners if they had questions, to discuss procedures, and to
record votes. 51
On appeal from a ruling in favor of the employee, the Iowa
Supreme Court agreed with the employer that the director’s
presence during closed-door deliberations violated its due proc­
ess right to a neutral decisionmaker. The court held that the
director engaged in advocacy on behalf of the employee dur-
ing the hearing and that this prosecutorial activity precluded
the director from later participating in the decisionmaking
process. 52 Participating in the commission’s deliberations after
acting as the employee’s advocate created “the appearance of
fundamental unfairness” and deprived the employer of his right
to due process. 53
In so holding, the court in Botsko rejected the commission’s
argument that the director did nothing more than answer
questions during the closed session. First, the court reasoned
that the appearance of fundamental unfairness through the
combination of advocacy and adjudicative functions created
a risk of injecting bias in the adjudicatory process such that
the employer was not required to show actual prejudice. In
any event, the court found “little comfort” in the evidence
that the director did nothing more than simply answer ques-
tions or in the commission members’ averments that they had
made their findings independently. 54 The court observed that
a skilled advocate can accomplish a great deal by answering
questions in a way favorable for his or her client. 55 Holding
the employer’s due process rights were violated, the court
51
Id.52
Id.53
Id. at 853.
54
Id.
55
Id.
- 613 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
UHRICH & BROWN LTD. PART. V. MIDDLE REPUBLICAN NRD
Cite as 315 Neb. 596vacated the commission’s decision and remanded the matter
for further proceedings. 56
The facts of this case are like those presented in Botsko.
The district court found that the same attorneys who acted
as investigators and prosecutors in the case were involved in
the decisionmaking process of the Board. We disagree with
the NRD’s assertion that this finding of dual involvement in
prosecutorial and adjudicatory functions is unsupported by
competent evidence in the record.
[25-28] Our inquiry is whether the decision conforms to
the law, is supported by competent evidence, and is neither
arbitrary, capricious, nor unreasonable. 57 Competent evidence
means evidence that tends to establish the fact in issue. 58 It is
evidence that is admissible and relevant on the point in issue. 59
A decision is arbitrary when it is made in disregard of the facts
or circumstances and without some basis which would lead a
reasonable person to the same conclusion. 60 A capricious deci-
sion is one guided by fancy rather than by judgment or settled
purpose. 61 The term “unreasonable” can be applied to a deci-
sion only if the evidence presented leaves no room for differ-
ences of opinion among reasonable minds. 62
The record contains the Board’s resolution that states:
[T]he Board . . . held a hearing on Friday, October
30, 2020, a hearing duly called and with a quorum of
the Board . . . present. The Board consulted with legal
56
Id.57
Medicine Creek v. Middle Republican NRD, supra note 3.
58
Shepherd v. City of Omaha, 194 Neb. 813, 235 N.W.2d 873 (1975),
disapproved on other grounds, Caniglia v. City of Omaha, 210 Neb. 404,
315 N.W.2d 241 (1982).
59
Id.60
Gelco Fleet Trust v. Nebraska Dept. of Rev., 312 Neb. 49, 978 N.W.2d 12(2022).
61
Id.62
Id.- 614 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
UHRICH & BROWN LTD. PART. V. MIDDLE REPUBLICAN NRD
Cite as 315 Neb. 596counsel, made preliminary determinations and requested
that legal counsel draft appropriate documents. Thereafter,
on November 10, 2020, at a regular meeting of the Board,
the Board adopted the following resolution[.]”
This resolution provides some basis that would lead a reason-
able person to conclude that after the hearing but before the
Board issued its decision, the Board consulted with the NRD’s
legal counsel during an adjudicatory process. The resolution
tends to establish that the later adoption of the resolutions at
a subsequent regular meeting merely formalized the decision
the Board had reached during the decisionmaking process in
which it “consulted with legal counsel” and had counsel “draft
appropriate documents.”
[29] The NRD did not argue to the district court that the
attorneys whom the Board consulted after the hearing were
different attorneys than those who prosecuted the case. And
the NRD did not specifically assign and specifically argue in
its appellate brief that the district court erred in finding that
the attorneys consulted by the Board after the hearing were
the same attorneys who prosecuted the case on behalf of the
NRD. To be considered by an appellate court, an alleged error
must be both specifically assigned and specifically argued in
the brief of the party assigning the error. 63 Regardless, the
record shows that after the Board formally adopted the reso-
lutions at its regular meeting, Ridgeway, one of the attorneys
who represented the NRD at the hearing, sent letters notifying
the landowners of the Board’s decision, which included cop-
ies of the resolutions and the cease-and-desist orders. There
is no indication in the record that the NRD changed its legal
counsel between the time of the hearing and the commence-
ment of its decisionmaking process. The record sufficiently
supports the district court’s finding that the same attorneys
both prosecuted the case on behalf of the NRD and partici-
pated in the Board’s decisionmaking.
63
Bellino v. McGrath North, 274 Neb. 130, 738 N.W.2d 434 (2007).
- 615 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
UHRICH & BROWN LTD. PART. V. MIDDLE REPUBLICAN NRD
Cite as 315 Neb. 596[30] While the record does not disclose the precise nature
of the consultation with legal counsel—in part because the
APA does not authorize a district court’s reviewing the deci-
sion of an administrative agency to receive additional evi-
dence 64—such details are not decisive of the question of due
process presented. Because the NRD’s attorneys were acting
as prosecutors, attempting to prove at the hearing that the
landowners had committed the alleged violations, there was
too high a probability of actual bias for it to be constitution-
ally tolerable to permit those same attorneys to be included in
the decisionmaking process of the Board to determine if those
violations had been proved. Under such circumstances, the
NRD no longer enjoyed the presumption of honesty and integ-
rity. The partisan nature of an advocacy role at the hearing is
incompatible with the neutrality constitutionally required of
an adjudicator.
“As is often the case with respect to procedural due process,
the question is one of line-drawing and balancing.” 65 While
administrative agencies are afforded a great deal of flexibility,
based upon this record, we cannot conclude that the district
court erred in its finding that the NRD crossed the line by hav-
ing its attorneys participate in both the prosecution and adjudi-
catory process of the case.
[31,32] When the facts and circumstances of administrative
proceedings show an improper combination of functions such
that there exists a risk of bias on the part of the decisionmaker
that is too high to be constitutionally tolerable, this amounts
to “structural error” requiring reversal. 66 The Supreme Court
64
Medicine Creek v. Middle Republican NRD, supra note 3.
65
Botsko v. Davenport Civil Rights Com’n, supra note 44, 774 N.W.2d at
852.
66
See Zygmont A. Pines, Mirror, Mirror, On the Wall—Biased Impartiality,
Appearances, and the Need For Recusal Reform, 125 Dick. L. Rev. 69,
106 (2020). See, also, Williams v. Pennsylvania, 579 U.S. 1, 136 S. Ct.
1899, 195 L. Ed. 2d (2016); Greenway v. Schriro, 653 F. 3d. 790 (9th Cir.
2011).
- 616 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
UHRICH & BROWN LTD. PART. V. MIDDLE REPUBLICAN NRD
Cite as 315 Neb. 596has held that the right to an impartial adjudicator is “‘so
basic to a fair trial that [its] infraction can never be treated
as harmless error.’” 67 Therefore, the district court properly
reversed the Board’s decision after finding the NRD and its
attorneys violated the landowners’ due process right to a neu-
tral decisionmaker. We accordingly disagree with the NRD’s
assignment that the district court erred by failing to find that
the landowners violated the rules and regulations of the NRD
and the NGWMPA and by failing to approve the NRD’s order
imposing a penalty.
CONCLUSION
The district court’s order conforms to the law, is supported
by competent evidence, and is neither arbitrary, capricious,
nor unreasonable. The problem here could have been avoided
by the Board consulting with the selected hearing officer dur-
ing its deliberations and then relaying its ultimate decisions to
agency counsel, who acted as prosecutors in this matter. We
affirm the order of the district court.
Affirmed.
67
See, Gray v. Mississippi, 481 U.S. 648, 668, 107 S. Ct. 2045, 95 L. Ed.
2d 622 (1987); Arizona v. Fulminante, 499 U.S. 279, 111 S. Ct. 1246, 113
L. Ed. 2d 302 (1991). See, also, State v. Abram, 284 Neb. 55, 815 N.W.2d
897 (2012) (quoting State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169(2000)); R. Collin Mangrum, Mangrum on Nebraska Evidence § 27-103
(2023).