| IN RE: SOUTH SIOUX CITY | | | CASE NO. 149 |
| MUNICIPAL ELECTRICIAN'S | | | REP. DOC. NO. 40 |
| ASSOCIATION | | | |
| | | ||
| | | ORDER DENYING MOTION | |
| | | FOR REHEARING |
Appearances: For Association, Robert G. Scoville
For City, Wayne E. Boyd
For American Federation of State, County and
Municipal Employees, Local 2049,
Robert E. O'Connor, Jr.
Before: Judges Wall, DeBacker and Green.
GREEN, J.
On November 19, 1975, we entered an order dismissing the petition in this case. The American Federation of State, County and Municipal Employees, Local 2049, had filed a motion to dismiss contending that the petition herein was filed during the insulated period provided by Rule 4E 2d. The South Sioux City Municipal Electrician's Association filed a resistance to that motion. The resistance did not dispute the facts upon which the motion to dismiss was based; nor did that resistance contest the applicability of the rules of the case at hand. Rather, the resistance went to the legal effect of the rule. The resistance contended that the insulated period provided by the rule did not bar a petition for representation seeking to represent employees within a unit after the end of the insulated period. Since the only argument advanced in the resistance was a legal one, we disposed of the motion to dismiss without evidentiary hearing. Since the legal argument advanced in the resistance was clearly incorrect, we acted upon the motion without oral argument. The South Sioux city Municipal Electrician's Association has now filed a motion for rehearing. The motion attacks the procedure which we followed. In addition, the motion for the first time questions the applicability of Rule 4E 2d to this case. The motion contends that Rule 4E 2d was adopted only after the beginning of the insulated period provided in that rule. For the reasons hereafter set out, we overrule the motion for rehearing.
Before turning to the questions involving the applicability of the rule raised by the motion for rehearing, we first dispose of an additional contention made in the motion for rehearing. In paragraph 7 of the motion for rehearing, the South Sioux City Municipal Electrician's Association contends that:
"No notice of hearing or opportunity to be heard was provided petitioner prior to the Court's order of dismissal, all in violation of the law and the constitution of the State of Nebraska, article I, Section 3, and article XII to the Amendments to the Constitution of the United States."
This grounds for the motion of rehearing is clearly unfounded.
The South Sioux City Municipal Electrician's Association had notice of the pendency of the case, since they filed it. The motion to dismiss was served upon their counsel. He responded to it. Thus, the claim made in paragraph 7 of the motion for rehearing is either a claim that an evidentiary hearing was required on the motion, or that the South Sioux City Municipal Electrician's Union was entitled to make oral argument on the motion. Either such contention is erroneous.
The response filed by the South Sioux City Municipal Electrician's Association to the motion to dismiss did not contest the facts upon which that motion was based. The motion for rehearing does not contest those facts. Since the only issue between the parties is the legal question of the applicability of Rule 4E 2d to facts not in dispute, no evidentiary hearing is required. Denver Union Stockyards v. Producers Livestock Marketing Association , 356 U.S. 282, 287 (1958). As the court stated in Virginia Electric Power Company v. FPC , 351 F.2d 408, 410 (4th Cir. 1965):
"...Nor in our judgment does due process require a hearing where, as here, no factual controversy exists, and the litigant seeks merely to controvert the legal principles upon which the Commission acts..."
The same point is also made in Citizens for Allegan County v. FPC , 414 F.2d 1125, 1128 (D.C. Cir. 1969), where the court adds,
"...The right of opportunity for hearing does not require a procedure that will be empty sound and show, signifying nothing."
An evidentiary hearing, where the facts are not in dispute, would be a meaningless ritual.
More generally, where an application for relief shows upon its face that there is no valid basis for granting the relief, because the relief sought could only be granted in contravention of existing agency rules, due process does not require an evidentiary hearing prior to dismissal. FPC v. Texaco Co., Inc. , 377 U.S. 33, 39 (1969), United States v. Storer Broadcasting Co. , 351 U.S. 192 (1956). As the Supreme Court stated in Storer ,
"We do not think Congress intended the Commission to waste time on applications that do not state a valid basis for hearing." 351 U.S. 205.
It may be that rather than contending that an evidentiary hearing was required, the South Sioux City Municipal Electrician's Association is contending that oral argument was required. Here, the legal questions raised by the resistance of the South Sioux City Municipal Electrician's Association to the motion to dismiss were not complex. The response to the motion to dismiss was based upon a misunderstanding of the operation of the doctrine of the insulated period. Due process does not require oral arguments as a precondition to the determination by a tribunal of simple legal questions. RediMix, Inc. v. Nebraska Railroads , 181 Neb. 697, 150N.W. 2d, 275, 277-278 (1967); FCC v. WJR, The Good Will Station , 337 U.S. 265, 274-276 (1949).
The South Sioux City Municipal Electrician's Association may be contending that it was denied the opportunity to file a brief. Such a contention is unfounded. The motion to dismiss pended for a considerable period of time. During that entire time, counsel for the South Sioux City Municipal Electrician's Association neither filed a brief nor indicated to the Court that he desired to file a brief. While we can, of course, direct the filing of briefs, we do not believe that due process requires us to do so. If counsel desires to provide the Court with legal authority, it is his responsibility to do so.
That brings us to the remaining issue raised by the motion for rehearing. The South Sioux City Electrician's Association contends that Rule 4E 2d was adopted on June 9, 1975. That contention is incorrect. On January 13, 1975, the then Presiding Judge, Judge Kratz, entered an Order on behalf of the Court adopting the current Rule 4E, along with Rule 4F and Rule 14-4. The Order provided that:
"It is ordered that the rules attached hereto and designated 'amendments to the Rules of procedure before the Nebraska Court of Industrial Relations' hereby are adopted, and that they shall become effective forthwith."
Judge Kratz's Order was received by the Clerk on January 14, 1975. Upon the filing of the Order with the Clerk, the new Rules became effective.
In the motion for rehearing, the South Sioux City Municipal Electrician's Association contend that they relied upon the prior published Rules of the Court. The last publication of all of the Court's Rules was dated September 7, 1972. Thus, at the time the South Sioux City Municipal Electrician's Association filed their petition herein, that publication of the Court's Rules was almost three years old. The vintage of the last publication of the Court's Rules should have been notice to counsel for the possibility that there were amendments which had been made since that publication. It is a truism of administrative law, with which every practitioner in the area is familiar, that published compilations of agency rules tend to be rapidly dated. A phone call to the Clerk's office would have provided counsel with the information he needed about changes in the Rules since the last compilation in September of 1972.
Counsel for the South Sioux City Municipal Electrician's Association, however, contends that our Rule could not be operative until it was published and distributed to those who subscribe to the Court's Reporter. Where publication is made a precondition of the effectiveness of agency rules, that precondition is imposed by statute and not by due process of law. See, e.g., 44 U.S.C., Sections 301-314; 5 U.S.C., Section 552 (1). Rules not within statutes requiring publication are valid though not published. Cafeteria Workers v. McElroy , 184 F.2d 173, 179 (D.C. Cir. 1960) affirmed, 367 U.S. 886 (1961); Hicks v. Freeman , 397 F.2d 193, 195-196 (4th Cir. 1968). No provision of the CIRA requires us to publish our Rules. The Court is exempted from the provisions of the State Administrative Procedures Act. Section 48-804; Section 84-901 (1), Reissued Revised Statutes of Nebraska.
Despite the fact that we were not under a statutory mandate to publish, the proposal to adopt rule 4E 2d was distributed to members of the Bar in October of 1974. In addition, for three days we ran a notice of proposed rule making in the legal newspapers in Lincoln and Omaha. When the Rule was adopted, a notice of adoption was published in the legal newspapers in Omaha and in Lincoln.
Given that the notice of proposed rule making was widely distributed, that there was publication of the adoption of the Rule in two widely circulated newspapers, and that the Rule had been in effect for six months when the South Sioux City Municipal Electrician's Union filed its petition herein on July 16, 1975, we can see no denial of due process in the utilization of the Rule in this case. Due process does not require personal notice of the content of rules before they become effective.
If this was a criminal case, the South Sioux City Municipal Electrician's Association's argument for personal notice might be much stronger. If the Association had entered into a contract, or made a commitment of capital in reliance upon the previous published Rules, the case might be different. Here, however, there are no such equities. In the absence of such equities, the usual rule, summed up in the presumption that all men know the law, is that personal notice of a legal rule is not a condition of its binding force upon a party to litigation.
No one can view with total equanimity the application to litigation of a rule of which counsel did not have notice. Hopefully, the more prompt reporting of our reporter will give us the opportunity to more widely disseminate both our proposals to make rules and our new rules as they are adopted. However, such prompt reporting is subject to the vicissitudes of legislative action on budget over which this Court has no control.
For the reasons heretofore set out, the motion for rehearing is denied.
Entered December 12, 1975.
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