SSR 73-58c: SECTION 218(b)(3) and 218(c)(3)(A)(iii) (42 U.S.C. 418(b)(3) and 418(c)(3)(A)(iii)). -- STATE AND LOCAL COVERAGE -- STATUS OF CONSTABLES, JUSTICES OF THE PEACE, AND REGISTRARS OF VITAL STATISTICS -- NEBRASKA

20 CFR 404.1222 and 404.1275

SSR 73-58c

State of Nebraska v. Finch, State of Nebraska v. Richardson ,

339 F. Supp. 528 (D. Nebr., 1972); Aff'd USCA (8th Cir., 10/25/72); Cert.

Den., U.S. Supr. Ct., 41 L. Wk. 3525 (4/2/73)

URBOM, Chief Judge : The State of Nebraska has sought, pursuant to

42 U.S.C.A. § 418(t)(1), judicial review of a number of deficiency

assessments levied against the State of Nebraska by the Secretary of

Health, Education and Welfare for contributions due from the state under

an agreement between the state and the Secretary which was effective

January 1, 1951. The contract, authorized by 41 U.S.C.A. § 418(a)(1),

brought under the terms of the Social Security Act employees and public

officials of the State of Nebraska. During the contract period the State

of Nebraska did not make contributions for wages earned by justices of the

peace, city constables, and registrars of vital statistics. On December 3,

1964, the Secretary of Health, Education and Welfare notified the State of

Nebraska that it was being assessed for contributions due under the

agreement for wages earned by Clayton R.Ward, a justice of the peace, and

Lewis W. Ross, a constable in the City of Lincoln. The deficiency due for

Ross totaled $190.40; for Ward, $165.88. Through four letters dated April

15, 1965, J. L. Fay notified the State of Nebraska that further

deficiencies were being assessed for contributions due on the salaries for

all constable positions in the City of Lincoln, the city of Omaha, and

throughout the State of Nebraska; the fourth letter assessed a deficiency

for contributions due on salaries earned by all justices of the peace in

the State of Nebraska during the period January 1, 1951, through September

13, 1960. The State of Nebraska sought review by the Secretary for

deficiencies assessed on December 3, 1964; no review was sought of the

deficiencies assessed on April 15, 1965

t the State of Nebraska; the fourth letter assessed a deficiency

for contributions due on salaries earned by all justices of the peace in

the State of Nebraska during the period January 1, 1951, through September

13, 1960. The State of Nebraska sought review by the Secretary for

deficiencies assessed on December 3, 1964; no review was sought of the

deficiencies assessed on April 15, 1965. Because review by the Secretary

is a jurisdictional requirement for review by this court, only those

deficiencies assessed on December 3, 1964, are properly subject to review

by this court under the terms of 42 U.S.C.A. § 418(t)(1). These

assessments are the subject of State v. Finch , Civ. 1468 L.

The subject matter of State v. Richardson , Civ. 1596 L,

consolidated with State v. Finch , is deficiencies reviewed by the

Secretary: (1) on April 13, 1965, the State of Nebraska was notified that

a deficiency was being assessed in the amount of $129.11 for contributions

due on salaries earned by William R. Egenberger, a registrar of vital

statistics in Dawson County, Nebraska, and covered fees paid Egenberger

for his services through September 13, 1960; (2) on April 15, 1966, an

additional deficiency was assessed for contributions due on remuneration

received for services by other registrars of vital statistics in the State

of Nebraska during the year 1962; and (3) a letter dated April 17, 1967,

assessed deficiencies for contributions due on salaries earned by

registrars of vital statistics in the State of Nebraska during the

calendar year 1963. The Secretary concluded that the deficiencies were

correctly assessed. Because the state has complied fully with the

requirements of 42 U.S.C.A. § 418(t)(1), these assessments reviewed by the

Secretary are properly subject to review by this court.

eficiencies for contributions due on salaries earned by

registrars of vital statistics in the State of Nebraska during the

calendar year 1963. The Secretary concluded that the deficiencies were

correctly assessed. Because the state has complied fully with the

requirements of 42 U.S.C.A. § 418(t)(1), these assessments reviewed by the

Secretary are properly subject to review by this court.

Defendants' exhibit 1, a copy of the agreement between the State of

Nebraska and the Federal Security Administrator, extends the benefits

conferred by Title II of the Social Security Act to services performed by

individuals as employees of the State of Nebraska. The contract contains

the following pertinent provisions:

The state excluded only those employees who would be covered by Social

Security in the absence of the agreement, employees already covered by a

retirement system, and those services which are specifically excluded

under the Social Security Act. It was available to the state, if it so

chose, to exclude employees whose remuneration was on a fee basis. Tit. 42

U.S.C. § 418(c)(3)(A)(iii) provides that:

The state did not choose to avail itself of this exclusion. By agreement

approved April 6, 1962, the original contract was modified to exclude the

services of individuals as justices of the peace and constables, the

compensation for which is on a fee basis, from coverage groups included

under the original agreement. This modification did not include registrars

of vital statistics; however, the Secretary assessed deficiencies for

William Egenberger only up to the date of September 13, 1960, the

effective date of the modification to the original agreement.

as justices of the peace and constables, the

compensation for which is on a fee basis, from coverage groups included

under the original agreement. This modification did not include registrars

of vital statistics; however, the Secretary assessed deficiencies for

William Egenberger only up to the date of September 13, 1960, the

effective date of the modification to the original agreement.

Because in its original agreement with the Secretary the state chose to

cover the broadest category of employees who could be covered within the

terms of 42 U.S.C.A. § 418, it is apparent that if the three positions at

issue in these two cases are, under Nebraska law, either employees or

officers of the State of Nebraska, they are covered by the agreement of

January 1, 1951, and the deficiency assessments must be upheld.

Clayton R. Ward served as justice of the peace in Platte County,

Nebraska, from each 1953 until approximately March 31, 1955. During that

period he earned $4,468.00. This amount was not paid as wages, but was the

total of all fees collected by him in his capacity as justice of the

peace. In reviewing the deficiencies assessed against the State of

Nebraska for contributions due on Mr. Ward's earnings during this period,

the Secretary found that justices of the peace are public officers under

Nebraska law. A justice of the peace is a constitutional officer in

Nebraska. The office is created by Article V, Section 1, of the State

Constitution. See State ex. rel. Woolsey v. Morgan , 138 Neb. 635,

294 N.W. 436 (1950). It is the position of the State of Nebraska that

because Article V, Section 18, of the Constitution of the State of

Nebraska provides that justices of the peace be elected by district, the

justice of the peace is an officer of the district within which he is

elected, rather than an officer of the State. The boundaries of justice of

the peace districts, although usually conterminous with county lines, are

not uniformly so

ebraska that

because Article V, Section 18, of the Constitution of the State of

Nebraska provides that justices of the peace be elected by district, the

justice of the peace is an officer of the district within which he is

elected, rather than an officer of the State. The boundaries of justice of

the peace districts, although usually conterminous with county lines, are

not uniformly so. However, I am not persuaded that merely because a

justice of the peace is elected from within a district he is necessarily

an officer of that district. It is apparent that the State of Nebraska

exercises a considerable degree of control over the office of justice of

the peace. Article V, Section 18, of the Nebraska Constitution grants to

the state the power to create justice of the peace districts and to

substitute other courts for the justice of the peace courts. State ex.

rel. Bruce v. Kubat , 110 Neb. 362, 193 N.W. 754 (1923). This control

extends to determining the jurisdiction of justice of the peace courts. Bruce v. Kubat, supra . In addition, several statutes of the State

of Nebraska regulate practice in the courts of justices of the peace. See, Conkling v. DeLany , 167 Neb. 4, 91 N.W. 2d 250 (1958). It is the

duty of the justice of the peace to administer the laws of the State of

Nebraska. Their practice is to be uniform throughout the state, and no

significant difference in their practice is predicated on the fact that

each is elected from a separate justice of the peace district. Bunce v.

Kubat, supra .

ces of the peace. See, Conkling v. DeLany , 167 Neb. 4, 91 N.W. 2d 250 (1958). It is the

duty of the justice of the peace to administer the laws of the State of

Nebraska. Their practice is to be uniform throughout the state, and no

significant difference in their practice is predicated on the fact that

each is elected from a separate justice of the peace district. Bunce v.

Kubat, supra .

The fact that a justice of the peace is elected from the district which

may not coincide with county lines does not necessarily make a justice of

the peace an officer of that district. A justice of the peace is not

unique in the fact that he is elected by district. For example, a

representative to the Congress of the United States is elected by district

in Nebraska and that district may not coincide with any other boundary in

the state. It is, however, clear that a representative to the Congress of

the United States is an officer of the United States, not an officer of

the district in which he was elected.

The section of the Constitution of the State of Nebraska which creates

the office of justice of the peace also provides for the creation of all

other courts in Nebraska. There is nothing to distinguish the office of

justice of the peace from other judicial offices created by Article V,

Section 1, except that the jurisdiction of the justice of the peace court

is specifically set forth in Article V, Section 18. Although the state has

the power to substitute other courts for the justice of the peace court,

the court so created must retain the same jurisdiction as did the justice

of the peace court which is abolished by the substitution. State ex

rel. Woolsey v. Morgan , 138 Neb. 635, 294 N.W. 436 (1940). It is then,

the State of Nebraska which has constitutionally created the office of

justice of the peace, determines the jurisdiction of the justice of the

peace courts, and regulates the substitution of other courts for that of

the justice of the peace

justice

of the peace court which is abolished by the substitution. State ex

rel. Woolsey v. Morgan , 138 Neb. 635, 294 N.W. 436 (1940). It is then,

the State of Nebraska which has constitutionally created the office of

justice of the peace, determines the jurisdiction of the justice of the

peace courts, and regulates the substitution of other courts for that of

the justice of the peace. Further, the justice of the peace districts have

been created by state statute, the oath of office is prescribed by

statute, the execution of a bond is prescribed by state statute, and, in

several cases, the state or a political subdivision thereof provides

office space to a justice of the peace. In view of the significant amount

of control exercised over the office of the justice by the State of

Nebraska, I conclude that the office of justice of the peace is a state

office and the person who fills that office is an officer of the State of

Nebraska, because the January 1, 1951, agreement specifically includes

public officers within its terms. I conclude that the office of justice of

the peace is within the terms of the agreement and the deficiency

assessment by the Secretary was proper in all respects.

As noted earlier, deficiency assessments were entered by the Secretary

for contributions due the state on salaries earned by local registrars of

vital statistics. In Nebraska local registrars of vital statistics are

appointed by the state registrar of vital statistics, as authorized by §

70-602, R.R.S. Neb. 1943. The duties of local registrars are set out in §§

71-604 to 71-608, R.R.S. Neb. 1943. Section 71-602 grants to the

Department of Health the power to appoint municipal or county clerks as

local registrars. Local registrars hold office during the pleasure of the

Department of Health. It is the duty of local registrars to accept for

filing all birth and death certificates

, R.R.S. Neb. 1943. The duties of local registrars are set out in §§

71-604 to 71-608, R.R.S. Neb. 1943. Section 71-602 grants to the

Department of Health the power to appoint municipal or county clerks as

local registrars. Local registrars hold office during the pleasure of the

Department of Health. It is the duty of local registrars to accept for

filing all birth and death certificates. By statute they must forward to

the Department of Health all certificates filed with them during the

preceding month. The Department of Health supplies all necessary blanks,

forms and instructions to the local registrars. The registrar is entitled

to a fee of 50 cents for each certificate or report filed by him, with the

fee to be paid by the county for which the certificate or report is made.

Plaintiff's exhibit B, the deposition of Freda Theis, the Director of the

Bureau of Vital Statistics of the State of Nebraska, is instructive as to

the manner in which the duties of local registrars are supervised by the

State of Nebraska. As earlier noted, the local registrar is appointed by

the director. In most cases either the county clerk or municipal clerk is

appointed. The qualifications of the registrar are set by statute. The

appointment is made at the discretion of the director and an individual

appointed may be removed from that position by the director. Although the

statute directs that all certificates filed by the local registrar shall

be forwarded to the director of the bureau of vital statistics by the 5th

of each month, in practice they are generally forwarded more frequently.

On a quarterly basis the bureau of vital statistics certifies to the

county the number of certificates filed by the local registrar of vital

statistics. The county on the basis of this certification pays to the

registrar the sum of 50 cents for each certificate filed

ctor of the bureau of vital statistics by the 5th

of each month, in practice they are generally forwarded more frequently.

On a quarterly basis the bureau of vital statistics certifies to the

county the number of certificates filed by the local registrar of vital

statistics. The county on the basis of this certification pays to the

registrar the sum of 50 cents for each certificate filed. To the knowledge

of the director no payments were ever made directly from the office of the

director of the bureau of vital statistics. Local registrars call on the

director of the bureau of vital statistics when they have questions

regarding the filing of certificates and the director occasionally does

call on registrars in the exercise of her supervisory capacity. In 1966

the bureau of vital statistics issued a manual entitled, "Manual of

Instructions for County Registrars." This manual is sent to each of the

local registrars. The instruction booklet is intended for the guidance of

local registrars and they are expected to comply with the instructions

contained in the booklet. For the reasons which follow, I conclude that

local registrars of vital statistics are employees of the State of

Nebraska and are therefore subject to the agreement of January 1, 1951,

and are not excluded from coverage by the modification to the agreement

which became effective on September 13, 1960.

In arriving at my determination that a local registrar of vital

statistics is an employee of the State of Nebraska, I find the following

language of Gardner v. Kothe , 172 Neb. 364, 109 N.W. 2d 405 (1961),

to be instructive:

The State of Nebraska contends that the registrar of vital statistics is

an independent contractor under Nebraska law. This contention, I think, is

negatived by the following language from Gardner :

at a local registrar of vital

statistics is an employee of the State of Nebraska, I find the following

language of Gardner v. Kothe , 172 Neb. 364, 109 N.W. 2d 405 (1961),

to be instructive:

The State of Nebraska contends that the registrar of vital statistics is

an independent contractor under Nebraska law. This contention, I think, is

negatived by the following language from Gardner :

Although some elements of a contractual relationship may exist which

would indicate that the local registrar of vital statistics is indeed an

independent contractor, it would also appear that the State of Nebraska,

through the bureau of vital statistics, exercises a significant degree of

control over the manner in which the local registrar of vital statistics

performs his functions. Specifically, the director of the bureau of vital

statistics issues a manual which governs the manner in which the functions

of the local registrar of vital statistics are performed; a local

registrar is subject to removal from his position by the director of the

bureau of vital statistics; the registrar is subject to the supervision of

the director, and such supervision is regularly exercised; and all forms

and blanks to be used by the registrar are supplied to him by the State of

Nebraska. Again, turning to the language of Gardner v. Kothe , the

court there said in answer to a contention that because the plaintiff was

paid on a piecework basis he was not an employee:

Because each of the facts relied upon by the Supreme Court of Nebraska in

finding that Gardner was an employee exists in the present case with

regard to the relationship between local registrars of vital statistics

and the director of the bureau of vital statistics. I hold that local

registrars of vital statistics are employees of the State of Nebraska and

that the deficiencies assessed respectively on April 13, 1965, April 15,

1966, and April 17, 1967, were proper and the Secretary must be

affirmed.

in the present case with

regard to the relationship between local registrars of vital statistics

and the director of the bureau of vital statistics. I hold that local

registrars of vital statistics are employees of the State of Nebraska and

that the deficiencies assessed respectively on April 13, 1965, April 15,

1966, and April 17, 1967, were proper and the Secretary must be

affirmed.

At the time that the State of Nebraska was notified that deficiencies had

been assessed with respect to justices of the peace, it was also informed

that deficiencies had been assessed with respect to constables in the City

of Lincoln, the City of Omaha, and all other constables in the State of

Nebraska. A notice dated December 3, 1964, assessed a deficiency for

contributions due on sums earned by Lewis W. Ross, a constable for the

City of Nebraska, Nebraska. A deficiency of $190.49, representing

contributions due on earnings of $3,635.34, was assessed by that letter

and subsequently upheld on review by the Secretary. I conclude that, as in

the case of justices of the peace, Lewis W. Ross is an officer of the

State of Nebraska.

Constables in Nebraska may be either elected or appointed, depending upon

the size of the jurisdiction in which they serve. The primary duty of a

constable is to serve the court which has appointed him, or the courts of

the jurisdiction in which he is elected. Constables may serve process and

may execute writs in criminal cases. Constables are not paid a salary but

do receive fees for their services. The fees are paid directly by those

who request the services of the constable; if the service is rendered to

the court, the fee is paid by that court. The authority of the constable

is derived from statute. In the case of Ross, he was appointed by and

served at the discretion of Municipal Judge Richard O. Johnson. Ross'

primary duties consisted of serving papers for the court, and from time to

time he served as bailiff

e

who request the services of the constable; if the service is rendered to

the court, the fee is paid by that court. The authority of the constable

is derived from statute. In the case of Ross, he was appointed by and

served at the discretion of Municipal Judge Richard O. Johnson. Ross'

primary duties consisted of serving papers for the court, and from time to

time he served as bailiff. He was paid a small salary for his services as

bailiff; his services as constable were paid only by fees earned in an

amount fixed by state statute. It would appear that the services of Ross

were not restricted to Judge Johnson; he apparently served each of the

other two municipal judges, both as constable and as bailiff. Plaintiffs'

Exhibit E, the deposition of Judge Johnson, indicates clearly that Ross

was subject to the supervision of Judge Johnson in the manner in which he

performed his duties as constable. It would appear from the statutes that

the office of constable is similar to that of sheriff. Constables, like

sheriffs, are ministerial officers in justices' courts. In view of the

fact that the office of constable is created by statute, and the conduct

of constables in fulfilling the duties of their office is closely

regulated by statute, I believe the constable to be an officer of the

State of Nebraska. In view of that conclusion it is clear that, like a

justice of the peace, a constable is covered by the terms of the January

1, 1951, agreement and that the deficiency assessments of the Secretary

were proper and should be upheld.

Those deficiency assessments which were presented to the Secretary for

review and are therefore properly before this court were proper in all

respects and should be upheld.

An appropriate order will be entered this day.