Saturday, March 24, 2007

Nebraska Supreme Court opens the door to class action suits against state government while overruling precedent from just 12 year ago: The court still denied retired state patrolmen extra pension benefits from sick leave the patrolmen claimed should have increased their pension annuities, the Supreme Court rules that complaining state government retirees may file class claims in district court without presenting them either to the State retirement board or to the State claims board. Livengood v. Nebraska State Patrol Ret. Sys. S-05-710, 273 Neb. 247

The Supreme Court strikes a blow to the State treasury but hey it's more work for lawyers. The court agrees that the patrolmen or other complaining state employees may use the class action method to win large settlements of retirement benefits, and hey just in time for large numbers of baby boomer retirees to come to the trough. The court finds the legislation that enables Neb. Const. art. V, § 22, waiving sovereign immunity, Neb. Rev. Stat. § 25-21,206 (Reissue 1995) encompasses class actions State law limited only tax refund suits from class status § 25-21,206 does not limit the procedure for contract claims against the State so that only individual actions are per Boersma v. Karnes, 227 Neb. 329, 332, 417 N.W.2d 341, 344 (1988) is limited to tax refund cases.

The Supreme Court further excuses the retirees from the presuit filing requirements of Neb. Rev. Stat. § 81-1170.01 as neither § 84-1503 nor the regulaions

Require an aggrieved party to present his claim to the board before suing in court. Justice Connolly implicitly overrules the courts 1994 precedent Hoiengs v. County of Adams, 245 Neb. 877, 516 N.W.2d 223 (1994) that suggested all state retirees had to present claims, although in that case county employees did not have to follow procedures required for state employees. Justice Connolly rewrites Hoiengs now to recognize that the procedure at issue is also inapplicable for a different reason that § 81-1170.01 does not apply to retirement disputes under our statutory scheme. "We hold that the presuit filing requirement under§ 81-1170.01, is inapplicable in retirement benefits controversies. "

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