# SSR 73-58c: 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

> Federal · Rulings · In force

URL: https://www.frixlaw.com/law-library/statutes/SSA_SSR_OASI_SSR_73_58c

## Section

- **Citation:** SSR 73-58c
- **Heading:** 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
- **Jurisdiction:** Federal
- **Kind:** Rulings
- **Status:** In force
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** Social Security Rulings / OASI / Voluntary Agreements for Coverage of State and Local Employees / SSR 73-58c

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/SSA_SSR_OASI_SSR_73_58c. Check the current official text before relying on it. Not legal advice.