BONNIE
JOLLY AND
V.
STATE
OF NEBRASKA ET AL., APPELLEES
252
Filed
April 18, 1997, No. S-95-385
1. Administrative Law: Courts: Statutes. A
court or commission which is of statutory construction has only such authority
as has been conferred upon it by statute.
2. Administrative Law: Commission of
Industrial Relations: Summary Judgment. The Commission of Industrial Relations
is an administrative body performing a legislative function and can grant a
motion for summary judgment only if statutorily authorized to do so.
3. _____: _____: _____. Neb.
Rev. Stat.
§ 48-801 et seq. (Reissue 1993) does not give authority to the Commission of
Industrial Relations to enter summary judgments.
Appeal from the
Ray Simon, of Tietjen, Simon & Boyle, for
appellants.
Don Stenberg, Attorney General, and Lisa D. Martin-Price for appellees.
WHITE, C.J., CAPORALE, WRIGHT, CONNOLLY,
GERRARD, STEPHAN, and MCCORMACK, JJ.
MCCORMACK, J.
This case
involves a claim by the plaintiffs, Bonnie Jolly and the union of which she is a
member, Nebraska Association of Public Employees, Local 61, of the American
Federation of State, County and Municipal Employees, as appellants, alleging
that Jolly's employer, the Nebraska Department of Revenue, engaged in prohibited
practices in violation of Neb. Rev.
Stat. § 81-1386 (Reissue 1994).
The issue was reclassification of Jolly's position with the Department of
Revenue. The Nebraska Commission of Industrial Relations (Commission), acting on
a motion for summary judgment filed by the State of
No party
raised in the pleadings, nor assigned as error, the question of whether the
Commission had the authority to entertain or grant motions for summary judgment.
We find that plain error exists in this case on said issue and, therefore,
reverse and remand the cause for further proceedings.
ANALYSIS
Plain error
may be asserted for the first time on appeal or be noted by the appellate court
on its own motion. Law Offices of Ronald J. Palagi v. Dolan, 251 Neb. 457,
558 N.W.2d 303 (1997); In re Estate of Morse, 248 Neb. 896, 540 N.W.2d
131 (1995); Long v. Hacker, 246 Neb. 547, 520 N.W.2d 195 (1994); Humphrey
v. Nebraska Public Power Dist., 243 Neb. 872, 503 N.W.2d 211 (1993).
Although an
appellate court ordinarily considers only those errors assigned and discussed in
the briefs, the appellate court may, at its option, notice plain error. In re
Interest of D.W., 249 Neb. 133, 542 N.W.2d 407 (1996); In re Estate of
Morse, supra; Dike v. Dike, 245 Neb. 231, 512 N.W.2d 363 (1994);
Hoch v. Prokop, 244 Neb. 443, 507 N.W.2d 626 (1993).
Plain error
exists where there is error, plainly evident from the record but not complained
of at trial, which prejudicially affects a substantial right of a litigant and
is of such a nature that to leave it uncorrected would cause a miscarriage of
justice or result in damage to the integrity, reputation, and fairness of the
judicial process. Law Offices of Ronald J. Palagi v. Dolan, supra; Priest
v. Priest, 251 Neb. 76, 554 N.W.2d 792 (1996); Biddlecome v. Conrad,
249 neb. 282, 543 N.W.2d 170 (1996); In re Estate of Morse, supra; In re
Estate of Soule, 248 Neb. 878, 540 N.W.2d 118 (1995).
Since the time
that the appellants' brief was filed in this case, this court has held that a
statutorily created court has only such authority as has been conferred upon it
by statute. Thus, its powers are limited to those delineated by statute. Buckingham
v.
To determine
if the Commission has the statutory authority to grant a motion for summary
judgment, we must examine the Industrial Relations Act, Neb.
Rev. Stat. § 48-801 et seq. (Reissue 1993), which explains the
powers of the Commission. Because the appellants alleged a violation of the
prohibited practices statute, § 81-1386, we must also examine the State
Employees Collective Bargaining Act, Neb.
Rev. Stat. § 81-1369 et seq. (Reissue 1994), which is cumulative
to the Industrial Relations Act, see § 81-1372, and confers the authority upon
the Commission to hear prohibited practices complaints, § 81-1387. A review of
these applicable statutes clearly shows the statutes do not give the Commission
the authority to entertain or grant motions for summary judgment. There is no
construction of this act which would give rise to the authority to entertain or
grant motions for summary judgment. See
CONCLUSION
Based upon the
above, the decision of the Commission is reversed and the cause remanded for
further proceedings consistent with this opinion.
REVERSED AND REMANDED FOR FURTHER
PROCEEDINGS.