Opinion No. (1981)

REQUESTED BY: Honorable Loran Schmit Member of the Legislature State Capitol Lincoln, NE

Dear Senator Schmit:

This is in response to your letter of November 5, 1981, in which you stated that concerns have been expressed regarding certain provisions of LB 7 which is before this Special Session of the Legislature. You specifically called our attention to Section 3, page 6, beginning on line 10, dealing with collection services for child support. It is our understanding that certain defects in that version were corrected by the adoption of the committee amendment which specified ``delinquent child support' and provided that fees collected for non-welfare cases would be placed in the general fund of the appropriate county.

We have reviewed the sections on child support collection from the standpoint of equal protection and due process. We do not see a denial of equal protection. However, we can visualize problems of due process in administration. The act provides for imposing a collection service fee on an individual who owes delinquent child support. Does the state go back to the beginning of the delinquency and collect a fee on the total amount? Or is the fee calculated on any delinquency incurred following passage of the law? We see problems in any attempt at retroactive collection of fees for delinquent payments incurred prior to the act. If there is an attempt to add a fee to existing arrearage it is arguable that due process would require that the delinquent individual have notice and thus an opportunity to pay off the entire amount before he is assessed a fee.

Although the provisions on the collection of fees are worded in general terms and will require specific regulations for proper administration it is our opinion that they are not so vague as to be constitutionally defective. Additionally, we have concerns about the constitutionality of the bill from the standpoint of whether certain provisions are within the provisions of the Governor's call as required by Article IV, Section 8 of the Constitution of Nebraska. I am enclosing a copy of a letter which we forwarded to Senator Warner on that subject.

Very truly yours, PAUL L. DOUGLAS Attorney General Royce N. Harper Assistant Attorney General