Since shortly after statehood, a Nebraska statute has permitted “persons in possession of land for which a patent has not yet been issued” to petition a local “freeholder board” to transfer land between school districts for tax purposes. Frequently – sometimes biennially – this thorny subject has commanded legislative attention.
In 2006, school finance created a dramatic moment in the Nebraska Legislature when a majority of senators, led by Dist 11 State Senator Ernie Chambers, passed legislation dramatically affecting the Omaha public schools. State news was filled with stories about the school finance issue.
But metropolitan schools were not the only ones affected by the law. In Wynot, a community of 200 people in Nebraska’s extreme northeast corner, the Omaha School District’s battle to expand its borders impacted local tax politics.
Wynot’s Board had decided to exceed the local mill levy for some extraordinary expenditures. This event gave property owners owning vacant farm land, and without children, a chance to petition the Freeholder Board to move their land from the Wynot taxing district to nearby Hartington, a larger school district with a lower mill levy.
The petitioners filed uniformly defective freeholder petitions. Not a single filing was correct. Loyal patrons of the Wynot district took the case to court. Their litigation challenged the sufficiency of Freeholder Board petitions, claiming they were defective. The objectors knew deficiencies in the petitions, if upheld by the Court, would preserve the Wynot district.
The battle was on. The local Freeholder Board ignored errors in the petitions, approved them, and loyal Wynot patrons took the case to court. They were confident of a victory because of the obvious flaws in filings with the Freeholder Board. Then the District Court decided to allow the freeholders to enter into the case as intervenors, and make new filings to correct their circumstances before the Board. The District Judge permitted the land to move from one district to another after making these important early rulings.
The loyal Wynot patrons appealed their case to the Nebraska Supreme Court. On November 4, the case presented itself on the Court’s docket for oral argument.
Domina Law Group pc llo’s Dave Domina, speaking for the loyal supporters of the Wynot schools, argued that the trial court should not have (a) permitted correction of errors on appeal or (b) permitted property owners to intervene and materially change the issues in the case between the Freeholder Board and the objectors.
Domina explained to the Supreme Court that Nebraska’s governing statute requires pointed, specific elements in a freeholder’s petition, without which the Freeholder Board lacks jurisdiction to make a transfer. If the Freeholder Board lacks jurisdiction, so does the appellate court. Domina argued that, since freeholders did not file correct petitions before the Board, succeeded there, and made no amendments before the Board, corrections could not be made in court. He contended that a different result would “marginalize the Freeholder Board, making its existence irrelevant.” Domina noted, “the Legislature has never empowered the courts to make decisions about school district boundaries; instead, the Legislature has maintained its plenary authority over the subject, and the Supreme Court has recognized this is so many times.”
Jeff Hrouda, a lawyer representing the freeholders, could only respond by submitting his client’s contention that the courts should be able to trump the Legislature’s directions, and issue new, distinct instructions of its own, on terms the court chooses and controls.
The case produced a vibrant argument, with an interested court wrestling with difficult issues.
“We know the case presents an interesting challenge for the Supreme Court. We expect the Court will likely rule after the first of the year, and we think precedent, legislative history and logic support our side,” Dave Domina said.
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