Sack v. Castillo

CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district court.
A ffirmed.
mccormAck, J., participating on briefs.
JAmes L. sAck , AppeLLAnt, v. cArLos cAstiLLo, Jr .,
director of nebrAskA depArtment of
A dministrAtive services , AppeLLee .
768 N.W.2d 429
Filed July 17, 2009. 	No. S-08-1278.
1. Summary Judgment. Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue as to any material fact
or as to the ultimate inferences that may be drawn from those facts and that the
moving party is entitled to judgment as a matter of law.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in a light most favorable to the party against
whom the judgment is granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
3. Judgments: Appeal and Error. When reviewing questions of law, an appel-
late court resolves the questions of law independently of the trial court’s
conclusions.
4. Judgments: Statutes: Appeal and Error. Statutory interpretation is a matter of
law in connection with which an appellate court has an obligation to reach an
independent, correct conclusion irrespective of the determination made by the
trial court.
5. Statutes. To the extent there is conflict between two statutes on the same subject,
the specific statute controls over the general statute.
6. Statutes: Legislature: Intent. Repeal of a statute by implication is not favored
and will not be found unless the Legislature’s intent makes another construction
of the statute untenable.
7. ____: ____: ____. In the absence of clear legislative intent, the construction
of a statute will not be adopted which has the effect of nullifying or repealing
another statute.
8. Statutes. Where general and special provisions of statutes are in conflict, the
general law yields to the special, without regard to priority of dates in enacting
the same.
9. Constitutional Law: Statutes: Presumptions: Proof. Statutes are afforded a
presumption of validity, and the burden of establishing that a statute is unconsti-
tutional is on the one attacking its validity. All reasonable doubts will be resolved
in favor of its constitutionality.
156 	278 NebRASkA RepORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:50 AM CST

10. Evidence: Appeal and Error. The exercise of judicial discretion is implicit in
decisions to admit evidence based on relevancy or admissibility, and those deci-
sions will not be overturned by an appellate court in the absence of an abuse
of discretion.
Appeal from the District Court for Lancaster County: Jodi
neLson, Judge. Affirmed.
James L. Sack, pro se.
Jon bruning, Attorney General, and Dale A. Comer for
appellee.
H eAvicAn, 	c.J., 	WrigHt, 	connoLLy, 	gerrArd, 	stepHAn,
mccormAck, and miLLer-L ermAn, JJ.
H eAvicAn, C.J.
INTRODUCTION
James L. Sack was employed by the State of Nebraska
from December 9, 1974, through December 29, 2006, when
he retired at the age of 62. Sack brought this claim against
the director of the Department of Administrative Services
(the State). Sack contends he was deprived of property rights
when the State removed 2,786.83 hours of unused sick leave
accrued from December 31, 1988, to December 31, 2005, and
in excess of the statutorily allowable 1,440 hours. Sack also
alleges that he was not paid for 1,174.87 hours of unused sick
leave upon his retirement. Sack claims the statutes requiring
the State to remove unused sick leave in excess of the statutory
maximum, Neb. Rev. Stat. §§ 81-1323 and 81-1324 (Reissue
2008), are unconstitutional because Sack had a vested property
right in his sick leave. Sack further argues that Neb. Rev. Stat.
§§ 81-1320 to 81-1326 (Reissue 2008) are special legislation
and unconstitutional and that the district court erred in admit-
ting legislative history into evidence. We affirm the decision of
the district court.
FACTS
The facts of this case are undisputed. As noted, Sack was
a permanent, full-time employee of the State from December
9, 1974, through December 29, 2006, when he retired at the
SACk v. CASTILLO 	157
Cite as 278 Neb. 156

age of 62. Sack was employed as a revenue audit manager
and was not a part of any bargaining unit. Sack claims that his
sick leave balance was reduced by a total of 2,786.83 hours
from December 31, 1988, through December 31, 2005. At the
time of his retirement, Sack’s sick leave balance was 1,566.50
hours, and he was paid for 25 percent of those hours pursuant
to §§ 81-1324 and 81-1325. The statutes governing the accu-
mulation and use of sick leave were in place when Sack was
hired and throughout his employment with the State.
The sick leave provisions that Sack complains of were
enacted as 1973 Neb. Laws, L.b. 340, and have been codi-
fied at §§ 81-1320 to 81-1326. L.b. 340, at §§ 4 to 6, granted
state employees certain sick leave benefits and provided
as follows:
Sec. 4. The sick leave account [of state employees]
shall be balanced as of December 31 each year. Sick leave
shall be cumulative for not more than one thousand four
hundred forty hours.
Sec. 5. All sick leave shall expire on the date of separa-
tion and no employee shall be reimbursed for sick leave
outstanding at the time of termination, except as provided
in this act.
Sec. 6. each employee who is eligible for retirement
under any existing state or federal retirement system
shall, upon termination of his employment with the state
by reason of retirement or voluntary resignation, in good
standing, be entitled to payment of one-fourth of his
accumulated unused sick leave, with the rate of payment
based upon his regular pay at the time of termination
or retirement.
Although portions of the 1973 bill have been amended, the
pertinent provisions are largely the same and are currently set
out in §§ 81-1323 to 81-1325.
Sack contends that because he “earned” his sick leave,
divesting him of any unused sick leave was a violation of his
property rights. Sack’s argument is based on the premise that
§§ 81-1323 to 81-1325 are in conflict with the Nebraska Wage
payment and Collection Act. Sack also contends that the stat-
utes which provided for removal of his sick leave are special
158 	278 NebRASkA RepORTS

legislation in violation of the Nebraska Constitution and that
the district court erred when it admitted the legislative history
for L.b. 340 into evidence.
ASSIGNMeNTS OF eRROR
Sack assigns that the district court erred when it granted the
State’s motion for summary judgment. Sack argues, consoli-
dated and renumbered, that he had a vested right to all earned
sick leave under the Nebraska Wage payment and Collection
Act and that §§ 81-1320 to 81-1326 constitute special legis-
lation in violation of the Nebraska Constitution. Sack also
assigns as error the district court’s decision to allow as evi-
dence the legislative history for L.b. 340.
STANDARD OF ReVIeW
[1] Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue as
to any material fact or as to the ultimate inferences that may be
drawn from those facts and that the moving party is entitled to
judgment as a matter of law.1
[2,3] In reviewing a summary judgment, an appellate court
views the evidence in a light most favorable to the party
against whom the judgment is granted and gives such party
the benefit of all reasonable inferences deducible from the
evidence.2 When reviewing questions of law, an appellate court
resolves the questions of law independently of the trial court’s
conclusions.3
[4] Statutory interpretation is a matter of law in connection
with which an appellate court has an obligation to reach an
independent, correct conclusion irrespective of the determina-
tion made by the trial court.4
1 Hughes v. Omaha Pub. Power Dist., 274 Neb. 13, 735 N.W.2d 793
(2007).
2 Id.
3 Id.; Eggers v. Rittscher, 247 Neb. 648, 529 N.W.2d 741 (1995).
4 Japp v. Papio-Missouri River NRD, 271 Neb. 968, 716 N.W.2d 707
(2006).
SACk v. CASTILLO 	159
Cite as 278 Neb. 156

ANALYSIS
sAck does not HAve property rigHt
in H is sick L eAve
Sack argues that L.b. 340 conflicts with the Nebraska Wage
payment and Collection Act, Neb. Rev. Stat. §§ 48-1228 to
48-1232 (Reissue 2004). As previously noted, L.b. 340 was
passed in 1973, the year before Sack was hired by the State,
and controls the amount of sick leave that can be accumulated
by state employees. Included in L.b. 340 is a provision that an
employee cannot retain more than 1,440 hours of accumulated
sick leave and that on December 31 of each year, sick leave
is to be balanced to 1,440 hours if the employee has accumu-
lated more.
Sack 	contends 	that 	the 	Nebraska 	Wage 	payment 	and
Collection Act, enacted in 1977, superseded L.b. 340 and that
it granted him property rights in his accumulated sick leave.
because “sick leave” is considered part of fringe benefits
under § 48-1229(3), Sack claims the provisions under L.b. 340
deprive him of the “compensation” that he had “earned.”
According to Sack, L.b. 340 and the Nebraska Wage payment
and Collection Act constitute a “‘unilateral employment con-
tract,’” and his accumulated sick leave is “deferred compensa-
tion” due to him at the time of his separation.5 Although Sack
acknowledges that he was aware of the sick leave policy as
defined by L.b. 340 at the time he was hired, he contends that
the Nebraska Wage payment and Collection Act changed the
sick leave policy in 1977 for at-will employees and repealed
the pertinent sections of L.b. 340. We disagree.
[5] Contrary to Sack’s claims, there is no indication that
the Nebraska Wage payment and Collection Act repealed
L.b. 340. Although the act and L.b. 340 both deal with sick
leave granted to state employees, to the extent there is con-
flict between two statutes on the same subject, the specific
statute controls over the general statute.6 Clearly, L.b. 340
5 brief for appellant at 25-26.
6 Soto v. State, 269 Neb. 337, 693 N.W.2d 491 (2005); Cox Nebraska
Telecom v. Qwest Corp., 268 Neb. 676, 687 N.W.2d 188 (2004).
160 	278 NebRASkA RepORTS

is the more specific of the two statutes dealing with accrual
of sick leave. The Nebraska Wage payment and Collection
Act applies to all employers and any fringe benefits offered.
L.b. 340 applies to state employees’ accrual of sick leave and
provides more detail as to when and how an employee may
accrue sick leave.
[6-8] Furthermore, repeal of a statute by implication is not
favored and will not be found unless the Legislature’s intent
makes another construction of the statute untenable.7 As a
result, in the absence of clear legislative intent, the construc-
tion of a statute will not be adopted which has the effect of
nullifying or repealing another statute.8 Finally, where general
and special provisions of statutes are in conflict, the general
law yields to the special, without regard to priority of dates
in enacting the same.9 There is no indication in the statutes
that the Nebraska Wage payment and Collection Act repealed
L.b. 340.
We also note that our decision in Loves v. World Ins. Co.10
gives employers, including the State, the power to dictate
the conditions under which sick leave can be used. In Loves,
a retiring employee sued for compensation for her accrued
sick time.11 When the employee was hired, there was a pro-
vision in the employee handbook that allowed compensa-
tion for all accrued and unused sick leave upon retirement.
Approximately 8 years before the employee retired, however,
the employer changed its policies to disallow compensation
for unused sick leave.12 This court found that the employment
7 See Hammond v. City of Broken Bow, 239 Neb. 437, 476 N.W.2d 822
(1991).
8 Bergan Mercy Health Sys. v. Haven, 260 Neb. 846, 620 N.W.2d 339
(2000); In re Invol. Dissolution of Battle Creek State Bank, 254 Neb. 120,
575 N.W.2d 356 (1998).
9 See, Bergan Mercy Health Sys., supra note 8; State v. Roth, 222 Neb. 119,
382 N.W.2d 348 (1986), disapproved on other grounds, State v. Wright,
261 Neb. 277, 622 N.W.2d 676 (2001).
10 Loves v. World Ins. Co., 276 Neb. 936, 758 N.W.2d 640 (2008).
11 Id.
12 Id.
SACk v. CASTILLO 	161
Cite as 278 Neb. 156

was at will, that the employee had no contract with her
employer, and that there was no indication the employer did
not have the power to change its policies. We stated that the
Nebraska Wage payment and Collection Act “does not pro-
hibit an employer from providing a sick leave benefit which
may be used only in the event of illness or injury and which
has no monetary value upon termination of employment if it
is not so used.”13 We also found that because the employee
had continued her employment after the change in policies,
she acquiesced to those changes. The same can be said of
Sack, who acknowledges that he was aware of the sick leave
policy when he was hired and that there was no reason for
him to believe that he ought to be treated differently than any
other State employee.
L.b. 340 is not UnconstitUtionAL
[9] Sack contends that L.b. 340 is unconstitutional, largely
because the provisions deprive him of a “property right” in his
accumulated sick leave.14 As the State points out, Sack bears
a heavy burden to show that the statute is unconstitutional.
Statutes are afforded a presumption of validity,15 and the burden
of establishing that a statute is unconstitutional is on the one
attacking its validity.16 All reasonable doubts will be resolved
in favor of its constitutionality.17
Sack claims that L.b. 340 is special legislation in violation
of Neb. Const. art. III, § 18, because it applies only to state
employees. According to Sack, §§ 4 to 6 of L.b. 340, codified
at §§ 81-1323 through 81-1325, “arbitrarily and unreasonably
set him and other state employees apart as inferior or second-
class from all other employees in Nebraska that are subject to
13 Id. at 941, 758 N.W.2d at 644.
14 brief for appellant at 32.
15 Bauers v. City of Lincoln, 255 Neb. 572, 586 N.W.2d 452 (1998).
16 See, State ex rel. Stenberg v. Omaha Expo. & Racing, 263 Neb. 991, 644
N.W.2d 563 (2002); Bergan Mercy Health Sys., supra note 8.
17 Soto, supra note 6.
162 	278 NebRASkA RepORTS

the [Nebraska] Wage [payment and Collection] Act and are not
employed by the [S]tate.”18
Although Sack does not contest the “‘rational basis’” for
enacting a sick leave policy for state employees, he claims
that the sick leave policy deprives him of his vested right in
his accumulated sick leave.19 In essence, Sack’s argument is
that he was allowed to accumulate more than the statutorily
allowed 1,440 hours but that the State took those accumulated
hours away at the end of each year from 1988 through 2005.
Sack is referring to § 4 of L.b. 340, codified at § 81-1323,
which requires the State to balance each employee’s sick leave
account on December 31 of every year.
In its order, the district court found that L.b. 340 did not
constitute special legislation, because there was no arbitrary or
unreasonable method of classification and it was not a closed
class.20 Sack conceded there was good reason for the State to
create a system for its employees for accumulating and using
sick leave. The class of “state employees” is neither arbitrary
nor closed.
As we noted in Loves, employers have the right to restrict
the use or payment of sick leave. The State, as an employer,
has the right to restrict the use and payment of sick leave for its
own employees. It follows that the class of “state employees”
is not arbitrary. The class is also not closed, because every time
someone begins to work for the State, that individual begins
to accumulate sick leave as provided for under L.b. 340.
Therefore, L.b. 340 does not contain an arbitrary or unreason-
able method of classification, as is required to find that a stat-
ute constitutes special legislation.
Sack’s argument that the statutes deprive him of a contrac-
tual property right also fails. First, the court must consider
whether there has been an impairment of the contract, whether
the actions of the defendant in fact acted as a substantial
18 brief for appellant at 34.
19 Id. at 35.
20 See, e.g., Bergan Mercy Health Sys., supra note 8.
SACk v. CASTILLO 	163
Cite as 278 Neb. 156

impairment of the contractual relationship, and whether that
impairment was nonetheless permissible and legitimate.21
Sack agreed to the sick leave plan when he began working
for the State, and he admitted as much in his brief. Sack was
aware that he would not be able to accrue more than 1,440
hours of sick leave, and he was also aware that the sick leave
balancing would occur on December 31 of every year. These
provisions were a part of Sack’s “employment contract” with
the State from the beginning of his employment. Sack can-
not show that the State took anything from him that he was
promised or that his “contract” was impaired. Sack therefore
cannot demonstrate that the State’s formulation of its sick
leave policy was not a permissible, legitimate use of its sov-
ereign power.
district coUrt did not err in A dmitting
L egisLAtive H istory for L.b. 340
Sack argues that the district court erred when it admitted
the legislative history for L.b. 340 into evidence. The State
had offered the legislative history to support its argument that
L.b. 340 was not special legislation.
[10] We have allowed courts to consider legislative history
when determining whether a statute constitutes special legisla-
tion.22 The exercise of judicial discretion is implicit in decisions
to admit evidence based on relevancy or admissibility, and
those decisions will not be overturned by an appellate court in
the absence of an abuse of discretion.23 The State concedes that
the statute is unambiguous on its face and that therefore, the
legislative history is not required to interpret it. However, the
State argues that Sack invited the use of the legislative history
when he claimed L.b. 340 was special legislation. We agree,
and find that the district court did not err when it admitted the
legislative history into evidence.
21 See Miller v. City of Omaha, 253 Neb. 798, 573 N.W.2d 121 (1998).
22 Hug v. City of Omaha, 275 Neb. 820, 749 N.W.2d 884 (2008).
23 See Kirchner v. Wilson, 262 Neb. 607, 634 N.W.2d 760 (2001).
164 	278 NebRASkA RepORTS

CONCLUSION
We do not find any merit to Sack’s assignments of error.
Sack was aware of the sick leave policy when he was hired
by the State, and he acquiesced to those policies by accepting
continued employment. Furthermore, Sack has not shown that
L.b. 340 is unconstitutional or that he has been deprived of a
property right.
A ffirmed.
SACk v. CASTILLO 	165
Cite as 278 Neb. 156