Petition for Writ of Certiorari — Hoeings v. Adams County

veproms VeUurTt, Vea

FILED

\) 98 267 NAY 281%

OFFICE CF FE CLERK

NO.

IN THE SUPREME COURT OF THE

UNITED STATES

October Term, 1997

DANIEL HOEINGS, a/k/a DANIEL HOINS, on behalf of

himself and all other persons similarly situated, and

BYRON BUZEK, on behalf of himself and all other

persons similarly situated

Petitioners,

COUNTY OF ADAMS, et. al.,

DANIEL HOEINGS, a/k/a DANIEL HOINS, on behalf of

himself and all other persons similarly situated, and

BYRON BUZEK, on behalf of himself and ail other

persons similarly situated

Petitioners

| eS

COUNTY OF ADAMS, et. al.,

CORRECTED

PETITION FOR WRIT OF CERTIORARI

TO THE NEBRASKA SUPREME COURT

MARY C. WICKENKAMP, NSBA NO. 16396

COUNSEL OF RECORD

4831 S. 58TH ST.

LINCOLN, NEBRASKA 68515-1412

(402) 488-1921

QUESTION PRESENTED FOR REVIEW

I. WHETHER THE NEBRASKA SUPREME COURT

ERRED IN RELYING, IN PART, ON A

SUBSEQUENTLY ENACTED STATUTE IN

CONSTRUING NEBRASKA LAW TO HOLD THAT NO

CONTRACTUAL RIGHT VESTED TO EMPLOYER

GENERATED PENSION CONTRIBUTIONS UNDER

NEB.REV.STAT.§23-2310 IN VIOLATION OF THE

CONTRACT CLAUSE,ARTICLE I, SECTION 10,

CLAUSE 1, AND THE DUE PROCESS CLAUSE. OF

THE FIFTH AND FOURTEENTH AMENDMENT TO

THE UNITED STATES CONSTITUTION

PARTIES TO THE PROCEEDING

Petitioners

Daniel Hoins and Byron Buzek are residents of Cass

County and Saline County, Nebraska, respectively, and

bring this action on behalf of themselves and approximately

6,000 other persons who are similarly situated and reside

in the state of Nebraska, pursuant to Neb. Rev. Stat.

Section 25-319. The Class consists of all past and current

employees of the Defendant Class of Nebraska Counties,

who have participated in the Retirement System for

Nebraska Counties since January 1, 1983, or are currently

participating in said system.

Defendants

The Defendants include ninety one Nebraska

Counties which participate in the Retirement System for

Nebraska Counties established by Neb. Rev. Stat. Section

23-2301 et. seq. and specifically include the following

Nebraska Counties:

Adams, Antelope, Arthur, Banner, Blaine, Boone, Box

Butte, Boyd, Brown, Buffalo, Burt, Butler, Cass, Cedar,

Chase, Cherry, Cheyenne, Clay, Colfax, Cuming, Custer,

Dakota, Dawes, Dawson, Deuel, Dixon, Dodge, Dundy,

Fillmore, Franklin, Frontier, Furnas, Gage, Garden,

Garfield, Gosper, Grant, Greeley, Hall, Hamilton, Harlan,

Hayes, Hitchcock, Holt, Hooker, Howard, Jefferson,

Johnson, Kearney, Keith, Keya Paha, Kimball, Knox,

Lincoln, Logan, Loup, Madison, McPherson, Merrick,

Morrill, Nance, Nemaha, Nuckolls, Otoe, Pawnee,

Perkins, Phelps, Pierce, Platte, Polk, Red Willow,

Richardson, Rock, Saline, Sarpy, Saunders, Scottsbluff,

Seward, Sheridan, Sherman, Sioux, Stanton, Thayer,

Thomas, Thurston, Valley, Washington, Wayne, Webster,

ii

Wheeler, and York.

THE RETIREMENT SYSTEM FOR

NEBRASKA COUNTIES, an Agency

of the State of Nebraska, and

THE PUBLIC EMPLOYEES

RETIREMENT BOARD, an Agency of the

State of Nebraska; and Harry A.

Spencer, in his capacity as a

member of the Public Employees

Retirement Board; Robert Corner,

in his capacity925Xasember of the

Public Employees Retirement Board:

Robert Giese, in his capacity as a

member of the Public Employees

Retirement Board; Al Curtis

Robinson, in his capacity

as a member of the Public

Employees Retirement Board:

William Lindsay, Jr.,in his

Capacity as a member of the Public

Employees Retirement Board:

James D. Murphy, in his Capacity as

a member of the Public Employees

Retirement Board; and Connie Witt,

in her capacity as a member of the

Public Employees Retirement

Board. and E. Benjamin Nelson, Governor

of the State of Nebraska.

BEST AVAILABLE COPY

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW i

PARTIES TO PROCEEDING ii

TABLE OF CONTENTS iv

TABLE OF AUTHORITIES v

OPINIONS BELOW 1

STATEMENT OF JURISDICTION 1 7

STATEMENT OF THE CASE 2 :

4 ‘

6

CONSTITUTIONAL PROVISIONS

REASONS FOR GRANTING CERTIORARI

iv

TABLE OF AUTHORITIES

v. :

438 U.S. 234 (1978) 12

: v. Milwauk unty,

544 N.W. 2d 888 (Wis. 1996) 11

Baker v. Sommerville, 138 Neb. 466,(1940) 11

Bohmont v. Moore, 141 Neb. 91,(1942) .

City of Omaha v. Glissmann, 151 Neb. 895(1949). 11

Dadisman v. Moore, 181 W. Va. 779, 384 S.E.2d 816

(1989) 12

Hoadley’s Admrs. v. San Francisco, 124 U.S. 639 (1888).

13

Hoiengs v. County of Adams, 245 Neb. 877, 516 N.W.2d

223 (1994). 1,2,7,8,11,

Home Buildings & Loan Assn. v. Blaisdell, 290 U.S.398

(1934); 12

In Re: Interest of Jaycox, 250 Neb. 67 (1996). 9

Jefferson Branch Bank v. Skelly. 66 U.S. 436 (1861)13

Karrer v. Karrer, 190 ry 610 (1973). 11

v.I , 250 ae

789 (1996).

hMonahan Cattle Co... Goodwin, 201 Neb. 845 (1987 11

_V. Villa

910 F.2d 1474 Cth. Cir. 1990) 11

v. l .. Inc. v. Keating, 903 F.2d 1223

(9th Cir. 1990). 12

Nobel v. City of Lincoln, 158 Neb. 457, 63 N. “6 2d 475

(1953)

Ritter_v. Drainage Dist. No. 1 of Oe and_ohson

Counties, 137 Neb. 866 (1940).

v. Ne Fi Fund,

204 Neb. 445 (1979). 11

ilt Truck Line, Inc. v. Je Ned

Neb. 591 (1984).

State Teacher’s Retirement t Board v. Giessel, a

N.W.2d 301 (1960). 12

State v. Thayer, 235 Neb. 70 (1990). sy)

Summerville v. North Platte Valley Weather

Control Dist., 170 Neb. 46 (1960). 8

Swink v. Smith, 173 Neb. 423 (1962). 8

United States Trust Co. v. New Jersey, 431 U.S. 1,

(1977); 12

Vogel v. Bartels, 1 Neb. App. 1113,

510 N.W.2d (1993). 13

Wi in Retired Teachers Assn’n v Trust

Funds Board.,, 537 N.W.2d 400 (Ct. App. 1995),

12

Yazoo & M.V.R.Co. v. Adams, 180 U.S. 1, reh.den.

181 U.S.580 (1850). 13

vi

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eT a ee ee ek ts Bee eee eee eee meee

NE are en SS ae ee oe ae

OPINIONS BELOW

The opinion of the Nebraska Supreme Court is

published at Hoiengs v. County of Adams, 254 Neb.

64,574 N.W.2d 498 (1998) and is reprinted in the

Appendix herein. The 1994 opinion of the Nebraska

Supreme Court in this case is published at Hoiengs v.

Cour.ty of Adams, 245 Neb. 877, 516 N.W.2d 223 (1994)

and is reprinted in the Appendix herein. Relevant portions

of the Nebraska County Employees Retirement Act are also

reprinted in the Appendix hereto.

p628X

STATEMENT OF JURISDICTION

Petitioners assert that this Court has jurisdiction

under 28 U.S.C. §1751 to review a February 27, 1998

decision of the Nebraska Supreme Court. This is a case

wherein the Nebraska Supreme Court refused to rule upon

the issue of whether a district court decision violated the

Due Process Clause and the Contract Clause in giving a

later enacted statute retrospective effect to reduce the

previously vested rights of county employees to employer

generated pension contributions. Instead, the Nebraska

Supreme Court ruled that the constitutional issue was moot

because Neb.Rev.Stat.§23-2310 ,the statute setting the

amount of the employee contribution setting the employer

contribution at 250 percent of the amount contributed by an

employee was ambiguous in light of Neb.Rev. Stat. §23-

2308 and that therefore, §23-2310 must be construed as

meaning 150 percent despite the express language of §23-

2310 setting the amount at 250 percent. In doing so the

Nebraska Supreme Court relied, in part, upon the language

of a subsequently enacted statute, LB1057, as evidence of

legislative intent supporting its holding that 150 percent

was the proper pension contribution.

Petitioners argue that this court has jurisdiction to

review a decision wherein a state determines that a

subsequently enacted statute impairs or negates the

obligations of a contract to which the state or its agents is

a party.

STATEMENT OF THE CASE

The first of these two consolidated cases, Hoieings

v. County of Adams, et. al., Lancaster County District

Court Docket 472, Page 146 (hereinafter referred to as

Hoieings I) was filed in 1991 as a class action under the

Declaratory Judgment Act in Lancaster County District

Court. The Plaintiff was initially William Fairbanks, but

Plaintiff Daniel Hoins, aka Hoiengs was later substituted as

Plaintiff. Named as Defendants were 91 Nebraska Counties

and the Retirement System for Nebraska Counties. This

matter was previously before the Nebraska Supreme Court.

See, Hoiengs v. County of Adams, 245 Neb. 877, 516

N.W.2d 223 (1994).

On April 15, 1992, after the filing of the first case

but before trial, the Nebraska Legislature passed LB1057

which changed the language of §23-2310 and actually

reduced the amount of the employer funded contribution

from 250% to 150% for all previous years. On Aug™st 18,

1992 the Lancaster County District Court granted a

demurrer dismissing the first action for failure to state a

cause of action. The first case was appealed to the

Nebraska Supreme Court. The Nebraska Supreme Court

on May 12, 1994 reversed and remanded, finding that the

Plaintiff had stated a cause of action in contract. LB1057

and the issue of retrospective application thereof was not

discussed in the Nebraska Supreme Court’s 1994 opinion.

On May 2, 1995, while the first suit was pending on

Ee kee ee, SN Oe ee eT ee ee Seen ee ee

5 er

remand in Lancaster County District Court the second of

these two consolidated actions was filed. That second suit

involved the same parties and requested a determination

that LB1057 was unconstitutional. The Lancaster County

District Court consolidated the two cases in December,

1996.

The second case, Hoiengs v. County of Adams, et.

al, Lancaster County District Court Docket 527, Page 114

(hereinafter referred to as Hoiengs II) was filed May 2,

1995. Like Hoiengs I, it involved a class action, and

related to provisions of the County Retirement Act.

Hoiengs II sought a declaratory ruling that a 1992

Amendment to the Act,LB1057, was unconstitutional in

that it violated the due process and contract clauses of the

U.S. and Nebraska Constitutions.

Both cases were brought under the Nebraska

Declaratory Judgments Act. 25-21,145 et. seq. The cases

were consolidated for trial over objection of the Plaintiffs.

On December 20, 1995 the Court heard reciprocal motions

for Summary Judgment on behalf of Plaintiffs and

Defendants.

On March 28, 1996 the Lancaster County District

Court granted Summary Judgement for Defendant Counties

Cass and Saline and against Plaintiffs Buzek and Hoins.

That Court specifically held: 1) that the County Retirement

Act from 1983 to 1992 required an employer contribution

of 150% because, although the express language of

Neb.Rev.Stat. §23-2310(1) clearly specified an employer

contribution of 250% that because §23-2308 "refers to a

requirement that the County Clerk pay the 100% of the

employee’s contribution and the 150% of the employer

contribution, totalling 250%" 2) that LB1057 was a

"curative" act that applied retrospectively to the County

Retirement Act; and 3) that because of the retrospective

effect of LB1057 the Plaintiffs’ rights to an employer

contribution under the County Retirement Act only vested

in an employer contribution of 150% instead of the 250%

specified in §23-2310(1).

In the decision at issue here the Nebraska Supreme

Court held that the express language of Neb.Rev.Stat. §23-

2310 in setting the pension contribution of a public

employer at 250% of the amount contributed by the

employee was ambiguous and made in error by the

Nebraska Legislature. The Nebraska Supreme Court in

doing so refused to rule on the constitutionality of the later

enacted LB1057 but went on to cite LB1057 in its opinion

as evidence of legislative intent that the contribution

requirement of 250% contained in §23-2310 must be read

as 150%.

CONSTITUTIONAL PROVISIONS AND STATUTES

Contract Clause, Article I, Section 10, Clause 1, United

States Constitution

"No State shall . . . pass any Bill of

Attainder, ex post facto Law, or Law

impairing the Obligation of Contracts, or

grant any Title of Nobility."

Due Process Clause, Amendment 5, United States

Constitution.

"No person shall. . .be deprived of life,

liberty, or property, without due process of

law..."

Amendment 14, Section 1, United States Constitution

". . .No State shall make or enforce any law

me

which shall abridge the privileges or

immunities of citizens of the United States:

nor shall any State deprive any person of

life, liberty, or property, without due

process of law. . ."

Neb. Rev. Stat.(Reissue 1991).23-2301. See Appendix.

Neb.Rev. Stat. (Reissue _1991).23-2302. See Appendix.

Neb. Rev. Stat. (Reissue 1991).23-2305. See Appendix.

Neb.Rev.Stat.(Reissue_ 1991).23-2306. See Appendix.

Neb. Rev. Stat.(Reissue 1991).23-2307. See Appendix.

Neb. Rev. Stat.(Reissue 1991).23-2308. See Appendix.

Neb. Rev. Stat.(Reissue 1991).23-2309. See Appendix.

Neb. Rev. Stat.(Reissue 1991).23-2310. See Appendix.

REASONS FOR GRANTING CERTIORARI

I. WHETHER THE NEBRASKA SUPREME COURT

ERRED IN RELYING,IN PART, ON A

SUBSEQUENTLY ENACTED STATUTE IN

CONSTRUING NEBRASKA LAW TO HOLD THAT NO

CONTRACTUAL RIGHT VESTED TO EMPLOYER

GENERATED PENSION CONTRIBUTIONS UNDER

NEB.REV.STAT.§23-2310 IN VIOLATION OF THE

CONTRACT CLAUSE,ARTICLE I, SECTION 10,

CLAUSE 1, AND THE DUE PROCESS CLAUSE. OF

THE FIFTH AND FOURTEENTH AMENDMENT TO

THE UNITED STATES CONSTITUTION

Petitioners urge this court to grant certiorari to

determine whether the Nebraska Supreme Court is

construing Nebraska law in derogation of the Contract

Clause, Article I, Section 10, Clause 1, and the Fifth and

Fourteend Amendments to the United States Constitution.

This question is posed in the context of whether Petitioners

have a right to an employer generated pension contribution

of 250% of the amount contributed by the employee as

stated in Neb.Rev.Stat.§23-2310,,enacted in 1983.

The question before the Nebraska Supreme Court on

appeal here was whether the District Court erred in finding

that LB1057, a statute enacted subsequently to §23-2310,

should be given retrospective effect to reduce the 259

percent contribution required of ninety one Nebraska

Counties under §23-2310 to 159 percent.

The Nebraska Supreme Court ruled that the issue of

the constitutionality of LB1057 was moot because the

Petitioners had no vested contractual right to an employer

contribution of 250 percent, notwithstanding the language

of §23-2310.. In so holding, the Nebraska Supreme Court

held that the express language of §23-2310 which required

a contribution of 250 percent was in conflict with the

language of §23-2308 which states:

"The County clerk shall pay to the primary carrier

an amount equal to two hundred fifty percent of the

amount deducted from the compensation of the

employee in accordance with §23-2307."

The Nebraska Supreme Court held that because of

the language of §23-2308 that §23-2310 was ambiguous and

therefore each reference to 250 percent contained within

§23-2310 must be read as meaning 150 percent. In

reaching this conclusion the Nebraska Supreme Court relied

upon the legislative history of previous legislation and in

e 7 as evidence of the intent

of the Nebraska Legislature that the amount of the

employer contribution be 150 percent instead of 250

percent.

The Nebraska Supreme Court earlier ruled in this

case that the Petitioners had, in asserting a right to an

employer contribution of 250% under §23-2310 stated facts

constituting a cause of action which, if proven, would give

rise to a legal liability under the law. Hoeings v. County of

Adams, 245 Neb. 877 (1994).

The Nebraska Supreme Court first dealt with this

case in 1992 on appeal from the District Court’s order

sustaining Defendants’ demurrers to Plaintiff’s Petition.

Plaintiff sought a declaratory ruling that the amount of the

employer requirement required by the County Retirement

Act, codified at Neb.Rev.Stat. §23-2301 et.seqg., (Reissue

1991) was 250% and not the 150% that the Defendant

Counties were actually paying.

The Nebraska Supreme Court issued its opinion in

that case, Hoeings v. County of Adams, 245 Neb. 877

(1994), holding as follows: 1) that the District Court did

have jurisdiction of this matter and the parties, 2) that

substitution of Plaintiffs Hoeings for Fairbanks was proper,

3) that Plaintiff did state a cause of action on behalf of

himself and the class, 4) that Neb.Rev.Stat. §23-135 did

not apply, 5) that the Administrative Procedures Act did

not apply, 6) that there was no misjoinder of parties or

causes of action, 7) that Plaintiff could maintain an action

for declaratory judgment, 8) that sovereign immunity had

been waived for both the Retirement System and the

Counties by the terms of the County Retirement Act; and

9)that the PERB was not an administrative agency for

purposes of the County Retirement Act.

In reaching its 1994 decision in this case the

Nebraska Supreme Court necessarily had to determine what

amount of employer contribution the County Retirement

Act requires in order to determine whether Plaintiff had

stated, or could state, any cause of action. Nebraska law

requires that when considering whether a District Court’s

order sustaining a demurrer should be affirmed or reversed

the Court must consider whether a Plaintiff can ultimately

recover. A case will not be reversed where the

complaining party will not be entitled to a judgment in any

event. Swink v. Smith, 173 Neb. 423 (1962); Bohmont v.

Moore, 141 Neb. 91, (1942). Appellant submits that this

Court, in deciding Hoeings, logically had to consider all

aspects of the law to determine if there was any way in

which Hoeings could ultimately recover under the

allegations in his petition. This court was required to

consider the case on the law as it existed on the date of

judgment. Summerville v. North Platte Valley Weather

beaieoemenieceeeaeialic

Control Dist., 170 Neb. 46 (1960). State v. Thayer, 235

Neb. 70 (1990).

In reaching its holding the Hoeings Court noted that

the employer contribution under the act was set by Neb.

Rev. Stat. §23-2310 (Reissue 1991). Hoeings at 883-

884,896. A matter controlled by statute presents a question

of law. In Re: Interest of Jaycox, 250 Neb. 67 (1996).

A determination that the employer contribution is

250% is a necessary and integral part of the Court’s ruling

in Hoeings and, as such, is the law of the case. State ex

a , 218 Neb. 591 (1984).

In +S , 250 Neb.

789 (1996), the Court reiterated the basic premise of the

doctrine of the law of the case, which states that the

holding of an Appellate Court on questions presented to it

in reviewing proceedings of a Trial Court become the law

of the case, and those holdings conclusively settle, for

purposes of that litigation, all matters ruled upon either

expressly or by necessary implication. Latenser held that,

under this doctrine, matters previously addressed in the

Appellate Court are not reconsidered unless the party

seeking such reconsideration presents materially and

substantially different facts. Nobel v. City of Lincoln, 158

Neb. 457, 63 N.W.2d 475 (1953). Noble made it clear

that when an Appellate Court rules on whether factual

allegations in a petition state a cause of action such that a

demurrer will not lie, that ruling establishes the law of the

caseé and where those same facts are later proven on

remand the law of the case as established by the Appellate

Court controls.

As the Nebraska Court has previously stated, in a

‘cause of action’ is a judicial protection of one’s recognized

right or interest, when another, Owing a corresponding duty

not to invade or violate such right or interest, has breached

that duty. In determining whether a demurrer should lie,

the Court must also decide whether there is any way

Plaintiff can recover. If there is no way in which a

plaintiff can recover an order sustaining, a demurrer will

be affirmed, even if the District Court sustained the

demurrer for the wrong reason.

The Nebraska Court in 1994 concluded very clearly

that a cause of action was stated, that if proven, would

entitle the petitioners to a judgment.

A reading of this Court’s decision in Hoeings

clearly demonstrates that this Court considered the question

of the amounts of the employer contribution in considerable

detail and found that the Petitioners had a viable cause of

action.

The 1998 decision of the Court in effect took away

the Petitioners constitutionally vested cause of action, and

went on to rule that Petitioners had never had a right to the

pension contribution of 250%. The Nebraska Court did so

in partial reliance on the language of LB1057 as evidence

of the intent of the Nebraska Legislature.

Petitioners urge in support of a grant of certiorari

that there exist no independent and adequate state grounds

for the Nebraska Supreme Court’s decision in this case

which do not involve issues of constitutional magnitude.

The Nebraska Supreme Court in its 1998 decision

simply held that Petitioners had no right to a pension

contribution of 250% because the statute setting the 250%

requirement when read in light of earlier legislation had to

be regarded as absurd. The Court did so in complete

disregard for its earlier 1994 decision finding Petitioners

had a cause of action which under Nebraska law is defined

as a set of facts which, if proven, give rise to a legal

10

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————————————————————

liability (Hoieings v. County of Adams, 245 Neb. 877

(1994). However, in doing so, the Nebraska Supreme

Court also cited the subsequently enacted statute.

Before a party may assert due process argument it

must establish that it has legitimate claim of entitlement to

right being asserted. New Burnham Prairie Homes. In - 2

Village of Burnham, 910 F.2d 1474 (7th Cir. 1990).

Petitioners have such a claim by virtue of the language of

§23-2310 and the decision of the Nebraska Supreme Court

in Hoiengs v. County of Adams, 245 Neb. 877 (1994).

Where contractual and vested rights are created

pursuant to statute, they cannot be destroyed by subsequent

act of the legislature. Ritter v. Drainage Dist. No. 1 of

Otoe and Johnson Counties, 137 Neb. 866 (1940). Statute

may not operate retroactively where it would impair

obligation of contract or interfere with vested right. State

ex re Douglas v. Nebraska Mortgage Finance Fund, 204

Neb. 445 (1979). Monahan Cattle Co., v. Goodwin, 201

Neb. 845 (1987). Karrer v. Karrer, 190 Neb. 610 (1973).

retroactively to deprive property owner of his previously

vested rights. City of Omaha v. Glissmann, 151 Neb. 895

(1949).A municipal ordinance cannot operate retroactively

to deprive a property owner of previously vested property

rights. Baker v. Sommerville, 138 Neb. 466

(1940).

Due process clauses’ procedural protection of

property is a safeguard of security of interest that a person

has already acquired in specific benefits. Assoc. of State

P tors v. Milwauk unty, 544 N.W. 2d 888 (Wis.

1996). Each listed member and retiree of county retirement

plan had a property interest in retirement system protected

by due process clause. The gravity of a property

deprivation is irrelevant to the question of whether such

11

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rights are violated without due process. Dadisman v.

Moore, 181 W. Va. 779, 384 S.E.2d 816 (1989). A West

Virginia court has recognized that pension plan participants

had contractually vested property rights created by pension

statutes and that such rights were enforceable and could not

be impaired or diminished by the state. A Wisconsin Court

has held that the right created by the pension statues vest

in a constitutional sense even though the right created by

the statute may be inconsistent with the prior expressed

intent of the legislature as demonstrated by the legislative

history. Wisconsin Retired Teachers Assn’n v. Employee

Trust Funds Board,537 N.W.2d 400 (Ct. App. 1995).

There the court relied on Giessel and held that the

annuitants of the Wisconsin Retirement System had a

property interest in the earnings of their trust fund. State

Teacher’s Retirement Board v. Giessel, 106 N.W.2d 301

(1960).

The Nebraska Supreme Court decided this case in

a way which directly contradicts the legal principles laid

down by this Court in Home Buildings & Loan Assn. v

Blaisdell, 290 U.S.398 (1934);(Obligations of a contract

are impaired by a law which renders them invalid or

releases or extinguishes them. . .and impairment. . .has

been predicated upon laws which without destroying

contracts derogate from substantial contractual rights.)

United States Trust Co. v. New Jersey, 431 U.S. 1,

(1977); Alli ctural Steel Co. v. s, 438 U.S.

234 (1978). See also, Nev. Employees Assoc., Inc. v.

Keating, 903 F.2d 1223 (9th Cir. 1990).

While it is also recognized that generally the

construction given by state courts to State laws and State

constitutions are binding and conclusive upon the Federal

Courts, the rule does not extend to cases in which this

Court is called upon to interpret the contracts of the States.

12

i aaeeniaineiiaiiaiteiiiiiiilaaiaialiial

n_ Branch Bank v. Skelly.. 66 U.S. 436 (1861).

Petitioners submit that this is a case where the Nebraska

Supreme Court construed the terms of a contract between

petitioners and political subdivisions of the State of

Nebraskan, namely, the ninety one counties of the State

that participate in the County Employees Retirement

System. Vogel v. Bartels, 1 Neb. App. 1113, 510 N.W.2d

(1993). Petitioners argue that because of the State’s direct

involvement in this contract via the ninety-one counties,

that the construction of the Nebraska Supreme Court in this

case not be regarded as binding and conclusive and that this

court has and should take jurisdiction under 28

U.S.C.§1751. Yazoo & M.V.R.Co. v. Adams, 180 U.S.

1, reh.den. 181 U.S.580 (1850). Hoadley’s Admrs. v. San

Francisco, 124 U.S. 639 (1888).

In conclusion Petitioners submit that there exist no

independent and adequate grounds which justify the

decision of the Nebraska Supreme Court and which do not

involve issues of constitutional magnitude.