77-5019 Appeals; judicial review; procedure. - Nebraska Statutes

77-5019. Appeals; judicialreview; procedure.(1) Any party aggrieved by a final decisionin a case appealed to the commission, any party aggrieved by a final decisionof the commission on a petition, anyparty aggrieved by an order of the commission issued pursuant to section 77-5020or sections 77-5023 to 77-5028,or any party aggrieved by a final decision of the commission appealed by theTax Commissioner or the Property Tax Administrator pursuant to section 77-701 shallbe entitled to judicial review in the Court of Appeals. Upon request of thecounty, the Attorney General may appear and represent the county or politicalsubdivision in cases in which the commission is not a party. Nothing in thissection shall be deemed to prevent resort to other means of review, redress,or relief provided by law.(2)(a) Proceedings for review shall be instituted by filing a petitionand the appropriate docket fees in the Court of Appeals within thirty daysafter the date on which a final appealable order is entered by the commission.All parties of record shall be made parties to the proceedings for review.The commission shall only be made a party of record if the action complainedof is an order issued by the commission pursuant to section 77-1504.01 or 77-5020 or sections 77-5023 to 77-5028. Summons shall be served on all partieswithin thirty days after the filing of the petition in the manner providedfor service of a summons in section 25-510.02. The court, in its discretion,may permit other interested persons to intervene. No bond or undertaking isrequired for an appeal to the Court of Appeals.(b) A petition for review shall set forth: (i) The name and mailingaddress of the petitioner; (ii) the name and mailing address of the countywhose action is at issue or the commission; (iii) identification of the finaldecision at issue together with a duplicate copy of the final decision; (iv)the identification of the parties in the case that led to the final decision;(v) the facts to demonstrate proper venue; (vi) the petitioner's reasons forbelieving that relief should be granted; and (vii) a request for relief, specifyingthe type and extent of the relief requested.(3) The filing of the petition or the service of summons upon the commissionshall not stay enforcement of a decision. The commission may order a stay.The court may order a stay after notice of the application for the stay tothe commission and to all parties of record. The court may require the partyrequesting the stay to give bond in such amount and conditioned as the courtdirects.(4) Upon receipt of a petition the date for submission of the officialrecord shall be determined by the court. The commission shall prepare a certifiedcopy of the official record of the proceedings had before the commission inthe case. The official record shall include: (a) Notice of all proceedings;(b) any pleadings, motions, requests, preliminary or intermediate rulingsand orders, and similar correspondence to or from the commission pertainingto the case; (c) the transcribed record of the hearing before the commission,including all exhibits and evidence introduced during the hearing, a statementof matters officially noticed by the commission during the proceeding, andall proffers of proof and objections and rulings thereon; and (d) the finalorder appealed from. The official record in an appeal of a commission decisionissued pursuant to sections 77-5023 to 77-5028 may be limited by the requestof a petitioner to those parts of the record pertaining to a specific county.The commission shall charge the petitioner with the reasonable direct costor require the petitioner to pay the cost for preparing the official recordfor transmittal to the court in all cases except when the petitioner is notrequired to pay a filing fee. If payment is required, payment of the cost,as estimated by the commission, for preparation of the official record shallbe paid to the commission prior to preparation of the official record andthe commission shall not transmit the official record to the court until paymentof the actual costs of its preparation is received.(5) The review shall be conducted by the court for error on the recordof the commission. If the court determines that the interest of justice wouldbe served by the resolution of any other issue not raised before the commission,the court may remand the case to the commission for further proceedings. Thecourt may affirm, reverse, or modify the decision of the commission or remandthe case for further proceedings.(6) Appeals under this section shall be given precedence over all civilcases. SourceLaws 1995, LB 490, § 19; Laws 1997, LB 165, § 4; Laws 1999, LB 140, § 5; Laws 2000, LB 968, § 76; Laws 2001, LB 465, § 9; Laws 2005, LB 15, § 11; Laws 2006, LB 808, § 42; Laws 2008, LB965, § 21; Laws 2010, LB877, § 11.Effective Date: April 14, 2010Annotations1. Tax Equalization and Review Commission2. Jurisdiction3. Miscellaneous1. Tax Equalization and Review CommissionThe plain language in subsection (2)(a) of this section referring to "the action complained of" refers to the particular Tax Equalization and Review Commission order being appealed and does not refer to a previous order of the commission which might be relevant to issues in the current appeal. Marshall v. Dawes Cty. Bd. of Equal., 265 Neb. 33, 654 N.W.2d 184 (2002).Pursuant to subsection (1) of this section, because the Tax Equalization and Review Commission performs essentially the same functions that were performed by the State Board of Equalization and Assessment, the appellate court considers appeals from the commission's decisions under the same standards and principles that were applied to appeals from equalization proceedings before the board. Pursuant to subsection (5) of this section, appellate review of a Tax Equalization Review Commission decision shall be conducted for error on the record of the commission. County of Douglas v. Nebraska Tax Equal. & Rev. Comm., 262 Neb. 578, 635 N.W.2d 413 (2001).Pursuant to subsection (2) of this section, except for orders issued by the Nebraska Tax Equalization and Review Commission pursuant to section 77-1504.01 or section 77-5023, the commission is not a proper party to a proceeding for judicial review of an order of the commission. Widtfeldt v. Holt Cty. Bd. of Equal., 12 Neb. App. 499, 677 N.W.2d 521 (2004).Appellate review of the decisions of the Nebraska Tax Equalization and Review Commission is limited to error on the record. Lyman-Richey Corp. v. Cass Cty. Bd. of Equal., 258 Neb. 1003, 607 N.W.2d 806 (2000); Ash Grove Cement Co. v. Cass Cty. Bd. of Equal., 258 Neb. 990, 607 N.W.2d 810 (2000); Kawasaki Motors Corp. v. Lancaster Cty. Bd. of Equal., 7 Neb. App. 655, 584 N.W.2d 63 (1998).Decisions of the Tax Equalization and Review Commission are reviewed for error appearing on the record. Washington Cty. Bd. of Equal. v. Rushmore Borglum, 11 Neb. App. 377, 650 N.W.2d 504 (2002).2. JurisdictionPursuant to subsection (2) of this section, failure to accomplish service of process upon the county board of equalization within 30 days after filing the petition for judicial review is necessary to confer subject matter jurisdiction upon the reviewing court. Widtfeldt v. Holt Cty. Bd. of Equal., 12 Neb. App. 499, 677 N.W.2d 521 (2004).The Nebraska Court of Appeals did not have jurisdiction under subsection (1) of this section to hear county's appeal of claim brought pursuant to section 77-1504.01 because the claim was not a decision appealed to the Nebraska Tax Equalization and Review Commission and was not brought pursuant to section 77-5028. Boone Cty. Bd. of Equal. v. Nebraska Tax Equal. and Rev. Comm., 9 Neb. App. 298, 611 N.W.2d 119 (2000).Under this section, service of summons within 30 days of the filing of a petition for review of the commission's decision is necessary to confer subject matter jurisdiction on the Court of Appeals. McLaughlin v. Jefferson Cty. Bd. of Equal., 5 Neb. App. 781, 567 N.W.2d 794 (1997).3. MiscellaneousPursuant to subsection (2) of this section, the county board of equalization is a necessary party to a proceeding for judicial review of an order of the Nebraska Tax Equalization and Review Commission. Widtfeldt v. Holt Cty. Bd. of Equal., 12 Neb. App. 499, 677 N.W.2d 521 (2004).Pursuant to subsection (5) of this section, when reviewing a judgment of the Tax Equalization and Review Commission 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. Dodge County Bd. v. Nebraska Tax Equal. & Rev. Comm., 10 Neb. App. 927, 639 N.W.2d 683 (2002).Pursuant to subsection (5) of this section, appellate review of a Tax Equalization and Review Commission decision shall be conducted for error on the record; the appellate court's inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. Krusemark v. Thurston Cty. Bd. of Equal., 10 Neb. App. 35, 624 N.W.2d 328 (2001).