Nebraska Supreme Court Clarifies That Natural Resource District’s Counsel Cannot Participate Both in Board Decision-Making Process and Adjudicate the Appeal of the Same Decision
In Uhrich & Brown Ltd. Partnership v. Middle Republican Natural Resource District (“NRD”), the Nebraska Supreme Court vacated the NRD’s administrative ruling because its attorneys both prosecuted the case and participated in the NRD’s decision‑making process.The Court found that the NRD’s administrative proceedings lacked neutrality and violated Uhrich & Brown Ltd. Partnership’s (“Petitioners”) due process rights. The attorneys who prosecuted the administrative cases were also counsel to the NRD and participated in its decision‑making process.
Petitioners were farmers who operated in Red Willow County, Nebraska. In August 2020, the NRD issued a Cease and Desist Order and a Notice of Intent to Issue Penalties in response to violations of the Nebraska Ground Water Management and Protection Act (the “Ground Water Act”). See Nebraska Revised Statutes sections 46‑704, et seq.
In October 2020, the NRD held a hearing on the alleged violations. The NRD found that Petitioners violated the Ground Water Act. Petitioners sued.
The District Court vacated the decision and held that the NRD had denied Petitioners due process by failing to reach a decision in an impartial manner. The Court found that the NRD lacked neutrality because the NRD’s legal counsel advised the NRD during the administrative process and acted as the prosecutor in the adjudicative process between the NRD and Petitioners.
The parties did not contest that NRD’s counsel both prosecuted the case and advised the NRD during its deliberations. In its resolutions finding violations of the Ground Water Act and imposing penalties, the NRD stated that it “consulted with legal counsel, made preliminary determinations and requested that legal counsel draft [the] appropriate documents.” Id., at 601.
NRDs enjoy a heavy presumption of honesty and integrity.[1] But a petitioner can overcome this by showing actual bias or that “’the probability of actual bias . . . is too high to be constitutionally tolerable.’”[2] The Court found that Petitioners met their burden by showing that the NRD’s counsels’ involvement significantly increased the probability of bias in the NRD’s ultimate decision.
“Central to whether the average administrative decision maker 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 an administrative proceedings, due process require an ‘[a]dequate separation’ of [these] roles.”[3]
The Court found that a single body performing both prosecutorial and adjudicative functions does not violate this doctrine. However, these two roles cannot be vested in the same person (or small group of persons). “[W]hen advocacy and decision[-]making roles are combined, true objectivity, a constitutionally necessary characteristic of an adjudicator, is compromised.”[4] In applying this rule to the present case, the Court concluded that the same attorneys that prosecute a case cannot play a role in deciding the same.
The Court reasoned that an administrative prosecutor, by definition, is “partisan for a particular client or point of view.”[5] Therefore, regardless of the precise advice and counsel offered by the attorneys to the NRD, there is at least a high probability of a lack of neutrality. Further, in such situations there can be no “harmless error,” as an impartial adjudicator is “so basic to a fair trial that [such an] infraction can never be treated” as such.[6] The Court accordingly affirmed the lower court in vacating the decision of the NRD.
The opinion demonstrates that there must be a separation of prosecutorial and adjudicative roles for administrative tribunals. The Court did not narrow its holding to only apply to NRDs. County boards, city councils and many other governing bodies should be mindful of this ruling when undertaking adjudicative or enforcement proceedings.
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[1] Murray v. Neth, 279 Neb. 947 (2010).
[2] Id., at 606 (citing Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 872 (2009) (quoting Withrow v. Larkin, 421 U.S. 35, 46 (1975))).
[3] Id., at 606 (citing Jared R. Faerber, administrative Law Bias in Administrative Proceedings, 1997 Utah L. Rev. 1087, 1095 (1997); and 2 AM. Jur. 2d Administrative Law § 303 (2014); and 16D C.J.S., Constitutional Law § 2021 (2015)).
[4] Id., at 610 (citing In re 2007 Appropriations of Niobrara River Waters, 283 Neb 629, 644 (2012)).
[5] Id., at 610 (citing Howitt v. Superior Court, 3 Cal. App. 4th 1575, 1585 (1992)).
[6] Id., at 616 (citing Gray v. Mississippi, 481 U.S. 648, 668 (1987)).