AGO Opinion 85050

March 29, 1985
Senator R. Wiley Remmers
Nebraska State Legislature
State Capitol
Lincoln, NE 68509

Dear Senator Remmers:

This is in response to your letter of March 26, 1985, concerning the constitutionality of your proposed amendment to LB 158. This amendment provides as follows:

A buyer who purchases farm products, including livestock, or a person who sells farm products, including livestock, for another for a fee or
commission shall pay the seller the total purchase price by means of a check payable to such seller and a financial institution who shall be specified by such seller, and if the financial institution authorizes the cashing of such check, such buyer or person shall be free of any security interest in such farm products, including livestock, held by any security interest holder up to the amount of the check. The financial institution whose name appears on the check and who authorizes the cashing of the check shall be liable to the lien holder for the amount of the check. Any such buyer or person who does not include the name of a financial institution on such check shall take such farm products, including livestock, subject to any valid security interest which may exist in such farm products, including livestock.

We see no apparent constitutional problems with this amendment. We would note, however, that the procedure outlined in this amendment may be unavailable to buyers in transactions subject to the regulations enacted pursuant to the Federal Packers and Stockyards Act, 7 U.S.C.A. 181 sec. Specifically, Interpreting this provision in C.R.T. Corp. v. Board of Equalization, 172 Neb. 540, (1961), the Supreme Court stated:

It is elementary in the area of the constitutional interpretation of Article II, section I, of the Constitution, that the Legislature may not impose upon the courts the performance of nonjudicial duties nor delegate to them any legislative power. See, State ex tel. Thompson v. Neble, 82 Neb. 267, 117 N.W. 723, 19 L.R.A.N.S. 578; Winkler v. City of Hastings, 85 Neb. 212, 122 N.W. 858; Searle v. Yensen, 118 Neb. 835, 225 N.W. 464, 69 A.L.R. 257.

That which distinguishes a judicial from a legislative act is, that the one is a determination of what the existing law is in relation to some existing thing already done or happened, while the other is a predetermination of what the law shall be for the regulation of all future cases falling under its provisions.

In McDonald v. Rentfrow, 176 Neb. 796 (1964), the Supreme Court also held that "the fixing of boundaries of school districts is exclusively a legislative function. . ." However, the court further held that such legislative function "may be properly delegated to a subordinate agency, providing . the Legislature prescribes the manner and standards under which the power of the designated board may be exercised." After citing a number of previous Nebraska cases, the court went on to state "The Legislature may delegate this authority provided it states the purpose for doing so and sets up reasonable standards to guide the agency which is to administer it."

A fundamental problem with the present legislation is that it is not delegating the function to what could ever properly be termed a "subordinate agency" to the Legislature. It is delegating a clear legislative function to our highest judicial body. This it cannot do.

By way of guidance, if you decide to delegate to a subordinate body instead of a court, a secondary failing of the above legislation is that it does not set forth the purpose for the delegation and the standards are too vague.

The only standard in the above legislation to guide the Supreme Court is that it shall "reflect a proportionate share of the total district court caseload for each district judge district." The determination of "caseload" could be based upon a number of differing criteria which could lead to a different result as each factor is changed; for example, "caseload" could be based strictly on the number of cases filed in each district judge district without regard to the proportion of dismissals, cases actually going to trial, cases actually going to jury trial, proportion of divorce cases, proportion of criminal cases with guilty pleas, proportion of criminal cases going to trial, and a host of other factors.

Subsection (2) of Section 6 on page 9 and Section I0, subsection (i) on page 13 of the amendments suffer from the same weaknesses.

Section 10, subsection (I) does add the standard of "travel time" in addition to "caseload," but this is not enough to remedy the problem. Also, it adds "other factors necessary to assure efficiency, service, and the most effective use of existing judges," which gives the Supreme Court an unlimited discretion upon which to base its decision.

In summary, the sections reviewed clearly attempt to delegate legislative functions to the judiciary. This would violate the constitution, as discussed.

Additionally, should you decide to delegate to a subordinate agency instead of a court, the present act does not contain the purpose for the delegation nor reasonable standard to guide the body.

Sincerely yours,

Attorney General