Murray v. Neth

argument that LB 1116 is unconstitutional, we need not reach
this assignment of error.
VI. CONCLUSION
Appellants have not met their burden of showing that
LB 1116 is unconstitutional. We therefore affirm the decision
of the district court.
A ffirmed.
StephAn, J., not participating.
WilliAm murrAy, AppellAnt, v. Beverly neth , director ,
StAte of neBrASkA depArtment of motor vehicleS,
And the neBrASkA depArtment of
motor vehicleS, AppelleeS.
783 N.W.2d 424
Filed June 4, 2010. 	No. S-08-806.
1. Administrative Law: Final Orders: Appeal and Error. Under the Administrative
Procedure Act, Neb. Rev. Stat. §§ 84-901 to 84-920 (Reissue 2008 & Supp.
2009), an appellate court may reverse, vacate, or modify a district court’s judg-
ment or final order for errors appearing on the record.
2. Administrative Law: Judgments: Appeal and Error. When reviewing an order
of a district court under the Administrative Procedure Act for errors appearing on
the record, the inquiry is whether the decision conforms to the law, is supported
by competent evidence, and is neither arbitrary, capricious, nor unreasonable.
3. Administrative Law: Motor Vehicles: Jurisdiction: Proof: Appeal and Error.
Whether the sworn report of a law enforcement officer is sufficient to confer
jurisdiction on the Department of Motor Vehicles is a question of law, and
an appellate court reaches a conclusion independent of that reached by the
lower court.
4. Administrative Law: Motor Vehicles: Licenses and Permits: Police Officers
and Sheriffs: Proof. An arresting officer’s sworn report triggers the administra-
tive license revocation process by establishing a prima facie basis for revocation.
5. Administrative Law: Motor Vehicles: Licenses and Permits: Revocation:
Police Officers and Sheriffs: Jurisdiction. In an administrative license revoca-
tion proceeding, the sworn report of the arresting officer must, at a minimum,
contain the information specified in the statute in order to confer jurisdiction.
6. Administrative Law. As a general rule, administrative agencies have no general
judicial powers, even though they may perform some quasi-judicial duties.
7. ____. An administrative body has no power or authority other than that specifi-
cally conferred by statute or by construction necessary to accomplish the plain
purpose of the act.
MURRAy v. Neth 	947
Cite as 279 Neb. 947
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:48 AM CST

8. Administrative Law: Drunk Driving: Licenses and Permits: Revocation. the
purpose of administrative license revocation is to protect the public from the
health and safety hazards of drunk driving by quickly getting offenders off the
road. At the same time, the administrative license revocation statutes also further
a purpose of deterring other Nebraskans from driving drunk.
9. Administrative Law: Motor Vehicles: Licenses and Permits: Revocation:
Jurisdiction: Proof. the Department of Motor Vehicles has the power, in an
administrative license revocation proceeding, to evaluate the jurisdictional aver-
ments in a sworn report and, if necessary, solicit a sworn addendum to that report
if necessary to establish jurisdiction to proceed.
10. Due Process: Notice. Procedural due process limits the ability of the government
to deprive people of interests which constitute “liberty” or “property” interests
within the meaning of the Due Process Clause and requires that parties deprived
of such interests be provided adequate notice and an opportunity to be heard.
11. Motor Vehicles: Licenses and Permits: Revocation. Suspension of issued motor
vehicle operators’ licenses involves state action that adjudicates important prop-
erty interests of the licensees.
12. Administrative Law: Motor Vehicles: Licenses and Permits: Due Process.
Before a state may deprive a motorist of his or her driver’s license, that state must
provide a forum for the determination of the question and a meaningful hearing
appropriate to the nature of the case.
13. Administrative Law: Due Process: Notice: Evidence. In proceedings before
an administrative agency or tribunal, procedural due process requires notice,
identification of the accuser, factual basis for the accusation, reasonable time and
opportunity to present evidence concerning the accusation, and a hearing before
an impartial adjudicator.
14. Administrative Law: Due Process. In formal agency adjudications, as in
court proceedings, due process requires a neutral, or unbiased, adjudicatory
decisionmaker.
15. Administrative Law: Presumptions. Administrative adjudicators serve with
a presumption of honesty and integrity. Factors that may indicate partiality or
bias on the part of an adjudicator are a pecuniary interest in the outcome of the
proceedings, a familial or adversarial relationship with one of the parties, and a
failure by the adjudicator to disclose the suspect relationship.
16. Administrative Law: Public Officers and Employees. Without a showing to the
contrary, state administrators are assumed to be persons of conscience, capable of
judging a particular controversy fairly on the basis of its own circumstances.
17. Administrative Law: Recusal: Presumptions: Proof. the party seeking to dis-
qualify an adjudicator on the basis of bias or prejudice bears the heavy burden of
overcoming the presumption of impartiality.
Petition for further review from the Court of Appeals, irWin,
cArlSon, and moore, Judges, on appeal thereto from the
District Court for Scotts Bluff County, rAndAll l. lippStreu,
Judge. Judgment of Court of Appeals affirmed.
948 	279 NeBRASkA RePORtS

Bell Island, of Island, huff & Nichols, P.C., L.L.O., for
appellant.
Jon Bruning, Attorney General, Andee G. Penn, and Milissa
Johnson-Wiles for appellees.
heAvicAn, 	c.J., 	Wright, 	connolly, 	gerrArd, 	StephAn,
mccormAck, and miller-lermAn, JJ.
gerrArd, J.
William Murray was stopped and arrested for driving under
the influence of alcohol (DUI). the arresting police officer
completed a sworn report indicating the reasons for the ini-
tial traffic stop but not the facts supporting a DUI arrest. the
Nebraska Department of Motor Vehicles (DMV) sent a copy
of the report back to the officer, along with a form identify-
ing the deficiency. the officer completed an addendum to
the sworn report, and following an administrative revocation
hearing, the director of the DMV revoked Murray’s operator’s
license. the primary issues presented in this case are whether
the DMV could use an addendum to the sworn report to
obtain jurisdiction and whether Murray’s due process rights
were violated.
BACkGROUND
Scottsbluff police officer Jed Combs stopped a vehicle that
had expired license plates and was being driven the wrong
way on a public highway. Combs made contact with the driver,
Murray, and smelled the odor of alcoholic beverages coming
from him. Murray failed field sobriety tests and a breath test,
and he was arrested for DUI. Combs completed a sworn report
and provided Murray with a temporary operator’s license. On
the sworn report, the reason stated for the arrest was “report of
vehicle driving wrong way on hwy 26 was advised that vehicle
in question [sic]. I observed the vehicle described and observed
the expired plate.”
After the DMV received the sworn report, a member of the
DMV’s legal division sent a copy of the sworn report back to
Combs, along with a form captioned “Addendum to Sworn
Report.” the form advised Combs that “the reasons for arrest
MURRAy v. Neth 	949
Cite as 279 Neb. 947

on the sworn report sent to you with this addendum may
not confer jurisdiction to revoke the arrested person’s opera-
tors license because it does not explain how you determined
the person you arrested was intoxicated.” Combs completed
the form and returned it to the DMV, sworn and notarized. On
the completed form, Combs stated that the reasons for arrest
were as follows:
Report of motor vehicle driving down the wrong lane
of travel. Was also advised that vehicle had expired plates.
I observed the vehicle matching that description travel-
ing west on hwy. 26. I conducted a stop on the vehicle
and smelled the odor of an alcoholic beverage. Driver
consented to [standard field sobriety tests] and showed
impairment. William Murray consented to [preliminary
breath test]. [Preliminary breath test] a failure.
Murray filed a petition for an administrative hearing. At the
hearing, the sworn report and addendum were received into
evidence. Following the hearing, the hearing officer recom-
mended that Murray’s driving privileges be suspended for the
statutory period. the director adopted the recommended order
of the hearing officer and revoked Murray’s operator’s license
for 90 days.
Murray appealed to the district court, which affirmed the
director’s revocation of Murray’s driving privileges. Murray
appealed, and the Nebraska Court of Appeals also affirmed
the revocation.1 the court concluded that the report and
addendum contained the required recitations and were suf-
ficient to confer jurisdiction. And the court rejected Murray’s
argument that the DMV, in requesting the addendum, denied
Murray due process because the DMV’s actions were not fair
and impartial. Murray petitioned for further review, and we
granted his petition.
ASSIGNMeNtS OF eRROR
In his petition for further review, Murray assigns that the
Court of Appeals improperly determined that (1) the DMV
could use an addendum to the sworn report in order to obtain
1 Murray v. Neth, 17 Neb. App. 900, 773 N.W.2d 394 (2009).
950 	279 NeBRASkA RePORtS

jurisdiction and (2) Murray’s due process rights were not
violated when the DMV requested an addendum in order to
obtain jurisdiction.
StANDARD OF ReVIeW
[1,2] Under the Administrative Procedure Act,2 an appellate
court may reverse, vacate, or modify a district court’s judg-
ment or final order for errors appearing on the record.3 When
reviewing an order of a district court under the Administrative
Procedure Act for errors appearing on the record, the inquiry
is whether the decision conforms to the law, is supported
by competent evidence, and is neither arbitrary, capricious,
nor unreasonable.4
[3] Whether the sworn report of a law enforcement officer
is sufficient to confer jurisdiction on the DMV is a question of
law, and an appellate court reaches a conclusion independent of
that reached by the lower court.5
ANALySIS
StAtutory Authority
We first address Murray’s argument that the Court of Appeals
improperly determined that the DMV could use an addendum
to the sworn report to obtain jurisdiction. Murray contends the
use of the addendum is beyond the authority granted to the
DMV. In order to evaluate this argument, it is necessary to
review the process of administrative license revocation (ALR)
and the function of the arresting officer’s sworn report.
[4,5] Neb. Rev. Stat. § 60-498.01(3) (Reissue 2004) pro-
vides, as relevant, that when a person arrested for driving while
under the influence of alcohol submits to a chemical test of
blood or breath that discloses an illegal presence of alcohol,
the arresting officer shall within 10 days forward to the direc-
tor a sworn report stating (a) that the person was arrested for
DUI and the reasons for such arrest, (b) that the person was
2 Neb. Rev. Stat. §§ 84-901 to 84-920 (Reissue 2008 & Supp. 2009).
3 Berrington Corp. v. State, 277 Neb. 765, 765 N.W.2d 448 (2009).
4 Id.
5 Johnson v. Neth, 276 Neb. 886, 758 N.W.2d 395 (2008).
MURRAy v. Neth 	951
Cite as 279 Neb. 947

requested to submit to the required test, and (c) that the person
submitted to a test, the type of test to which he or she submit-
ted, and that such test revealed the presence of alcohol in a
concentration over the legal limit. the arresting officer’s sworn
report triggers the ALR process by establishing a prima facie
basis for revocation.6 the sworn report of the arresting officer
must, at a minimum, contain the information specified in the
statute in order to confer jurisdiction.7
In this case, the State does not contend that standing alone,
Combs’ original sworn report was sufficient to confer juris-
diction on the DMV. And similarly, Murray does not argue
that the sworn report and addendum, considered together,
do not contain the required information. the parties dispute
whether the DMV had the authority to request and consider
the addendum.
[6,7] As a general rule, administrative agencies have no
general judicial powers, even though they may perform some
quasi-judicial duties.8 An administrative body has no power or
authority other than that specifically conferred by statute or
by construction necessary to accomplish the plain purpose of
the act.9 there is no statute expressly authorizing the DMV to
request or rely upon an addendum to a sworn report. So, the
question presented is whether the authority to use an addendum
to remedy a defective sworn report is needed to accomplish the
purpose of the act.
[8] the purpose of an ALR is to protect the public from
the health and safety hazards of drunk driving by quickly get-
ting DUI offenders off the road.10 At the same time, the ALR
statutes also further a purpose of deterring other Nebraskans
6 See Hahn v. Neth, 270 Neb. 164, 699 N.W.2d 32 (2005).
7 Johnson, supra note 5.
8 Hahn, supra note 6. See, Slansky v. Nebraska State Patrol, 268 Neb. 360,
685 N.W.2d 335 (2004); Ventura v. State, 246 Neb. 116, 517 N.W.2d 368
(1994).
9 Hahn, supra note 6.
10 Betterman v. Department of Motor Vehicles, 273 Neb. 178, 728 N.W.2d
570 (2007).
952 	279 NeBRASkA RePORtS

from driving drunk.11 the intent behind the revocation process
is clear:
Because persons who drive while under the influence of
alcohol present a hazard to the health and safety of all
persons using the highways, a procedure is needed for
the swift and certain revocation of the operator’s license
of any person who has shown himself or herself to be a
health and safety hazard . . . .12
here, the DMV’s procedures governing the revocation of
an operator’s license when an individual has been driving a
vehicle under the influence of alcohol are in furtherance of
this statutory purpose. We conclude that the authority to obtain
and consider an addendum to a sworn report is also necessary
to further the statutory purpose. the DMV has the power to
establish an administrative process to revoke licenses, and that
power necessarily encompasses the power to initiate proceed-
ings and evaluate jurisdiction.
the DMV is charged with administering the ALR process
as a whole: investigating the initial charge and initiating the
proceedings, providing the driver with notice and a hear-
ing on the merits of the charge, and ultimately determining
whether the charge is valid and the operator’s license should
be revoked. the Legislature has specifically assigned those
responsibilities to the DMV, not to law enforcement. It would
be inconsistent with the DMV’s investigatory responsibility if
its jurisdiction to proceed with an ALR was left at the mercy
of the arresting officer. Instead, when presented with a juris-
dictionally deficient sworn report, the DMV’s investigatory
and administrative power necessarily extends to determining
whether the deficiency is due to an actual lack of jurisdic-
tion or is merely an inadvertent omission by the arresting
officer. the DMV’s authority to administer the ALR process
would be incomplete if the DMV was unable to establish its
jurisdiction to proceed with an ALR by remedying an inadvert-
ent omission.
11 Id.
12 § 60-498.01(1).
MURRAy v. Neth 	953
Cite as 279 Neb. 947

[9] In short, the DMV has the power, in an ALR proceed-
ing, to evaluate the jurisdictional averments in a sworn report
and, if necessary, solicit a sworn addendum to that report if
necessary to establish jurisdiction to proceed. the procedure
followed by the DMV in this case, in returning the original
sworn report to Combs and asking him to include any omitted
information, was proper and necessary to accomplish the plain
purpose of the ALR statute.
And contrary to Murray’s assertion, the use of an addendum
in this case is not an improper attempt to supplement evidence.
As the Court of Appeals noted, this is not a situation where
the DMV attempted to supplement a sworn report by offering
the missing information through testimony from the arrest-
ing officer at the revocation hearing.13 here, the sworn report
and addendum were sent to the DMV, and notice provided to
Murray, prior to the revocation hearing, in an attempt to rem-
edy a jurisdictional deficiency. the original sworn report and
addendum, when considered together, contained the required
recitations and were thus sufficient to confer jurisdiction on
the DMV.
Given that the Legislature has found that “swift and certain
revocation” of an operator’s license is necessary when an indi-
vidual drives while under the influence, we cannot conclude
that the DMV’s use of an addendum to cure a jurisdictional
defect was improper. Forcing the DMV to take no action in
remedying a defective sworn report would seriously undermine
the Legislature’s goal of protecting the public from the health
and safety hazards of drunk driving. We conclude that the
DMV is authorized to employ such a procedure, and we find
no merit to Murray’s argument.
due proceSS
Murray next argues that his due process rights were vio-
lated because the DMV “pre-adjudicated” his case.14 Murray
13 See Yenney v. Nebraska Dept. of Motor Vehicles, 15 Neb. App. 446, 729
N.W.2d 95 (2007).
14 Brief for appellant in support of petition for further review at 4.
954 	279 NeBRASkA RePORtS

asserts that the actions of the DMV, in sending an addendum
for Combs to complete and explaining why the information
found in the original sworn report might not be sufficient to
confer jurisdiction, were not the actions of a fair and impar-
tial decisionmaker.
[10,11] Procedural due process limits the ability of the
government to deprive people of interests which constitute
“liberty” or “property” interests within the meaning of the
Due Process Clause and requires that parties deprived of such
interests be provided adequate notice and an opportunity to be
heard.15 Suspension of issued motor vehicle operators’ licenses
involves state action that adjudicates important property inter-
ests of the licensees.16 thus, the property interest involved here
is Murray’s interest in retaining his driving privileges.
[12,13] Before a state may deprive a motorist of his or her
driver’s license, that state must provide a forum for the deter-
mination of the question and a meaningful hearing appropriate
to the nature of the case.17 In proceedings before an administra-
tive agency or tribunal, procedural due process requires notice,
identification of the accuser, factual basis for the accusation,
reasonable time and opportunity to present evidence concern-
ing the accusation, and a hearing before an impartial adjudica-
tor.18 In the present case, Murray was provided ample notice of
the charges and was afforded sufficient opportunity to rebut the
charges when he exercised his right to a hearing with counsel
present. Additionally, his counsel, on voir dire, cross-examined
the arresting officer and had an opportunity to present evidence
in front of a hearing officer where a record was made of the
proceedings. Our analysis, therefore, turns on whether the
decision to revoke Murray’s license was made by an impar-
tial decisionmaker.
15 Stenger v. Department of Motor Vehicles, 274 Neb. 819, 743 N.W.2d 758
(2008). See, also, Kenley v. Neth, 271 Neb. 402, 712 N.W.2d 251 (2006),
modified on denial of rehearing 271 Neb. 683, 716 N.W.2d 44.
16 Stenger, supra note 15.
17 Id.
18 See id.
MURRAy v. Neth 	955
Cite as 279 Neb. 947

[14,15] In formal agency adjudications, as in court proceed-
ings, due process requires a neutral, or unbiased, adjudica-
tory decisionmaker.19 Administrative adjudicators serve with
a presumption of honesty and integrity.20 Factors that may
indicate partiality or bias on the part of an adjudicator are a
pecuniary interest in the outcome of the proceedings, a familial
or adversarial relationship with one of the parties, and a failure
by the adjudicator to disclose the suspect relationship.21
In this case, Murray does not argue that the hearing officer
or director had any sort of pecuniary interest in the outcome of
the proceeding or any familial or adversarial relationship with
one of the parties that either official failed to disclose. Instead,
Murray contends that the DMV improperly prejudged his case
when it reviewed the sworn report and solicited the addendum.
these actions, Murray asserts, were not impartial.
[16] But, as discussed above, it is important to distin-
guish between the investigatory and adjudicative functions
of an administrative agency. As the U.S. Supreme Court has
explained, while actual bias on the part of a judge or decision-
maker is not constitutionally tolerable,
[t]he contention that the combination of investigative
and adjudicative functions necessarily creates an uncon-
stitutional risk of bias in administrative adjudication has
a much more difficult burden of persuasion to carry. It
must overcome a presumption of honesty and integrity
in those serving as adjudicators; and it must convince
that, under a realistic appraisal of psychological tenden-
cies and human weakness, conferring investigative and
adjudicative powers on the same individuals poses such a
risk of actual bias or prejudgment that the practice must
be forbidden if the guarantee of due process is to be
adequately implemented.22
19 Barnett v. City of Scottsbluff, 268 Neb. 555, 684 N.W.2d 553 (2004).
20 Id.
21 See id.
22 Withrow v. Larkin, 421 U.S. 35, 47, 95 S. Ct. 1456, 43 L. ed. 2d 712
(1975).
956 	279 NeBRASkA RePORtS

the Court acknowledged that the question whether those who
have investigated should adjudicate was “substantial.”23 But,
the Court noted, courts have generally rejected the idea that
the combination of judging and investigating functions is a
denial of due process.24 And without a showing to the contrary,
state administrators are assumed to be persons of conscience,
capable of judging a particular controversy fairly on the basis
of its own circumstances.25
the Court reasoned that judges, for example, repeatedly
issue arrest warrants and rule at preliminary hearings based
upon whether there is probable cause for an arrest or to hold
a defendant for trial. yet neither of these pretrial decisions
has been thought to present a constitutional barrier to the
same judge presiding over trial or, in the case of a bench trial,
determining the guilt of the defendant.26 Nor does making an
initial assessment of the facts in the context of a preliminary
injunction disqualify a judge from presiding over the rest of the
litigation.27 Likewise, the Court explained:
It is also very typical for the members of administra-
tive agencies to receive the results of investigations, to
approve the filing of charges or formal complaints insti-
tuting enforcement proceedings, and then to participate
in the ensuing hearings. this mode of procedure does not
violate the Administrative Procedure Act, and it does not
violate due process of law. . . .
. . . .
the risk of bias or prejudgment in this sequence of
functions has not been considered to be intolerably high
or to raise a sufficiently great possibility that the adju-
dicators would be so psychologically wedded to their
complaints that they would consciously or unconsciously
avoid the appearance of having erred or changed position.
23 Id., 421 U.S. at 51.
24 Withrow, supra note 22.
25 See id.
26 See id.
27 See id.
MURRAy v. Neth 	957
Cite as 279 Neb. 947

Indeed, just as there is no logical inconsistency between
a finding of probable cause and an acquittal in a crimi-
nal proceeding, there is no incompatibility between the
agency filing a complaint based on probable cause and
a subsequent decision, when all the evidence is in, that
there has been no violation of the statute.28
So, the Court concluded, “[t]he initial charge or determination
of probable cause and the ultimate adjudication have different
bases and purposes. the fact that the same agency makes them
in tandem and that they relate to the same issues does not result
in a procedural due process violation.”29
So, while Murray may be correct in arguing that the DMV’s
original solicitation of the sworn report was not purely impar-
tial, Murray is incorrect in assuming that this undermines the
ultimate fairness of the adjudicative process. the DMV is
required to initially investigate and evaluate the charge against
a driver. this does not, without more, establish that the hearing
officer and director of the DMV are not sufficiently fair and
impartial, in making the ultimate adjudication of the charge, to
provide the driver with due process of law.
[17] the party seeking to disqualify an adjudicator on the
basis of bias or prejudice bears the heavy burden of overcom-
ing the presumption of impartiality.30 here, the record fails
to show actual bias, actual partiality, animosity, or financial
interest on the part of the hearing officer or director. the
sworn report and addendum are essentially fill-in-the-blank
documents provided by the DMV to arresting officers. As
the Court of Appeals noted, there is no significant difference
between the DMV’s provision of the sworn report form and
provision of the addendum form in the present case. Further,
the evidence does not indicate that the DMV instructed the
officer on how to fill out the form; rather, the DMV only
pointed out what kind of information was missing. the DMV,
in its investigatory capacity, was simply attempting to remedy
28 Id., 421 U.S. at 56-57.
29 Id., 421 U.S. at 58.
30 Barnett, supra note 19.
958 	279 NeBRASkA RePORtS

a defective sworn statement in order to obtain jurisdiction to
conduct the ALR hearing. On these facts, we find no violation
of due process.
Briefly, we note Murray’s claim that the DMV denied
him due process by making ex parte contact with Combs.31
Generally, no hearing officer or agency head or employee who
is or may reasonably be expected to be involved in the decision-
making process of a contested case shall make or knowingly
cause to be made an ex parte communication to any party in
a contested case or other person outside the agency having an
interest in the contested case.32 But Combs was a witness, not
a party in the contested case or a person outside the agency
having an interest in the contested case. And the “ex parte”
contact between the DMV and Combs was, in actuality, no
more substantial than the provision of the sworn report that the
law requires in the first place. In short, the record fails to show
that Murray’s due process rights were violated by the DMV’s
correspondence with Combs.
Given the State’s interest as articulated in our statutes in
protecting the people of Nebraska from drunk drivers and the
presumption of honesty and integrity that is afforded adminis-
trative decisionmakers, we conclude that a mere showing that
the DMV sent an addendum form to the arresting officer before
the hearing and revocation is insufficient to disqualify the hear-
ing officer or director as a matter of due process.33 Under these
facts, the Court of Appeals correctly concluded that Murray
did not overcome the presumption of impartiality. Murray has
failed to show he was deprived of due process, and his second
assignment of error is without merit.
CONCLUSION
For the reasons discussed, we affirm the judgment of the
Court of Appeals affirming the revocation of Murray’s opera-
tor’s license.
A ffirmed.
31 But see Walz v. Neth, 17 Neb. App. 891, 773 N.W.2d 387 (2009).
32 § 84-914(6)(b).
33 See id.
MURRAy v. Neth 	959
Cite as 279 Neb. 947

miller-lermAn, 	J., 	concurring 	in 	part, 	and 	in 	part
dissenting.
I concur in part and dissent in part. I agree with the major-
ity opinion that the Department of Motor Vehicles (DMV) has
authority to solicit an addendum for certain limited purposes
and that the analytical framework for evaluating the due proc-
ess claim in this appeal is found in Withrow v. Larkin, 421 U.S.
35, 95 S. Ct. 1456, 43 L. ed. 2d 712 (1975). Unlike the major-
ity, I would conclude that there was a due process violation,
and I therefore respectfully dissent from that portion of the
opinion that finds to the contrary.
Along with the majority, I recognize that the Court in
Withrow stated that the combination of investigative and adju-
dicative functions in a single administrative entity does not
necessarily create a due process violation. however, the Court
in Withrow also stated that where certain “local realities” are
present, a court may determine “from the special facts and cir-
cumstances present in the case before it that the risk of unfair-
ness is intolerably high” and that the risk of bias may rise to
an unconstitutional level. 421 U.S. at 58. the Court further
warned that “we should be alert to the possibilities of bias
that may lurk in the way particular procedures actually work
in practice.” 421 U.S. at 54. I believe that the record shows
that the actual practice of using an addendum, solicited by the
DMV at the director’s behest, to shore up the factual content
in the sworn report to be used as substantive evidence to estab-
lish a case decided by the director, raised the risk of bias to an
unconstitutionally high level in this case and that Murray suf-
fered a due process violation thereby.
the majority opinion states that the DMV used its investiga-
tory capacity to remedy a sworn statement in order to obtain
jurisdiction. this reference to “jurisdiction” reflects the lan-
guage in the addendum in which the legal division of the DMV
wrote a memorandum to the arresting officer soliciting further
information because the “director has determined . . . the sworn
report . . . may not confer jurisdiction.” the request for further
information reads in its entirety as follows:
the director has determined the reasons for arrest on
the sworn report sent to you with this addendum may not
960 	279 NeBRASkA RePORtS

confer jurisdiction to revoke the arrested person’s opera-
tors license because it does not explain how you deter-
mined the person you arrested was intoxicated.
1. On the form before [sic], please indicate why you
concluded the motorist was operating or in actual physical
control of a motor vehicle while intoxicated.
2. After completing [the] form, please sign it in the
presence of a notary and return it to the Director of the
Department of Motor Vehicles by (a) mailing it to [address
provided] or (b) faxing it [to number provided].
time is of the essence. Please return the form as soon
as possible.
thank you.
In my view, the DMV request taken in its entirety was not
done to remedy an error. Compare Stoetzel v. Neth, 16 Neb.
App. 348, 744 N.W.2d 465 (2008) (where undisputed miss-
ing date was added on sworn report by addendum at director’s
request, court concluded that there was no jurisdiction based
on other grounds). Because the instant request was not a mere
request to remedy a technical or objective defect to confer
jurisdiction, but was in actual practice a request by the director
for substantive information so that the DMV could establish its
prima facie case to be decided by the director, I believe “the
way [this] particular procedure . . . actually work[s] in prac-
tice,” see Withrow, 421 U.S. at 54, demonstrates an intolerable
risk of bias from a constitutional standpoint.
In numerous cases not repeated here, we have recognized
that, given Nebraska’s particular statutory structure found at
Neb. Rev. Stat. § 60-498.01(3) (Reissue 2004), the timely and
proper sworn report confers jurisdiction upon the director to
revoke a motorist’s license. See, e.g., Hahn v. Neth, 270 Neb.
164, 699 N.W.2d 32 (2005). Although the numerous statutory
deficiencies in sworn reports have sometimes been collectively
referred to as “jurisdictional” defects in our jurisprudence, we
have in fact differentiated between the technical formalities
of obtaining jurisdiction and the informational content in the
sworn report. See id. this distinction becomes critical in a due
process constitutional analysis. Further, we have long noted that
the offer by the DMV of a sworn report establishes the DMV’s
MURRAy v. Neth 	961
Cite as 279 Neb. 947

prima facie case, Arndt v. Department of Motor Vehicles,
270 Neb. 172, 699 N.W.2d 39 (2005), and that the DMV is
not required to prove the factual accuracy of recitations in a
sworn report which show the prima facie case. Nothnagel v.
Neth, 276 Neb. 95, 752 N.W.2d 149 (2008). Indeed, because a
sworn report, which does not include the information required
by statute, may not be supplemented by evidence offered at a
subsequent hearing, see Hahn v. Neth, supra, the content of the
sworn report is crucial to the prosecution of the case, and it is
not surprising that the DMV would want the arresting officer to
bolster the informational content of the sworn report.
We have noted that because a proper sworn report estab-
lishes the prima facie case, the Legislature has conferred a
significant procedural benefit on the DMV. Id. We have stated
that given “the substantial role which the sworn report plays in
an administrative license revocation proceeding . . . the report
must, at a minimum, contain the information specified in the
applicable statute” and that the “statutory requirements are not
onerous.” Id. at 171, 699 N.W.2d at 38. In another case involv-
ing a sworn report, the concurring justice stated: “the require-
ments [for a proper sworn report] are not an onerous burden,
given the benefit the DMV receives in establishing its prima
facie case by simply complying with this requirement. In golf
parlance, the sworn report is a ‘gimme.’” Johnson v. Neth, 276
Neb. 886, 896, 758 N.W.2d 395, 402 (2008) (Connolly, J.,
concurring). I agree with the foregoing, and I tend to disagree
with the inference in the majority opinion that an arresting
officer cannot be expected to adequately fill in the blanks on
the sworn report.
For due process purposes, we have been advised to remain
alert to “the way particular procedures actually work in prac-
tice.” Withrow v. Larkin, 421 U.S. 35, 54, 95 S. Ct. 1456, 43
L. ed. 2d 712 (1975). Notwithstanding the presumption of
honesty and integrity accorded administrative adjudicators, in
my view, the statutory context plus the actual practice revealed
in the instant case make the risk of unfairness and thus bias
intolerably high.
the administrative case law distinguishes between combin-
ing investigative and adjudicative functions on the one hand
962 	279 NeBRASkA RePORtS

and combining prosecutorial and adjudicative functions on the
other. See, e.g., Botsko v. Davenport Civil Rights Com’n, 774
N.W.2d 841 (Iowa 2009); Nightlife Partners v. City of Beverly
Hills, 108 Cal. App. 4th 81, 133 Cal. Rptr. 2d 234 (2003).
Combining prosecutorial and adjudicative functions presents
the greater danger to due process. Botsko v. Davenport Civil
Rights Com’n, supra. When advocacy and decisionmaking
roles are combined, “true objectivity, a constitutionally neces-
sary characteristic of an adjudicator,” is compromised. Howitt
v. Superior Court, 3 Cal. App. 4th 1575, 1585, 5 Cal. Rptr.
2d 196, 202 (1992). It has sometimes been concluded that the
prosecutorial and adjudicative combination poses so great a
risk that due process has been violated without a showing of
actual prejudice. See, e.g., Gonzales v. McEuen, 435 F. Supp.
460 (C.D. Cal. 1977).
For purposes of discussion, I accept the majority’s charac-
terization of the instant case as one involving a combination of
investigative and adjudicative functions. however, the actual
facts bear some of the dangers which occur when prosecuto-
rial and adjudicative functions are combined and about which
Withrow warns. In the matter before us, the director, through
her staff, directed the arresting officer to add information to
the sworn report which was thereafter to be submitted to the
director as adjudicator and which, under Nebraska law, would
unfailingly serve to establish the prima facie case against
Murray. the role of the director in this case is not neutral.
the director works up the evidence which by operation of law
is then deemed sufficient. even if the driver challenges the
sworn report, as Murray did, thus necessitating a hearing, it is
difficult for the director to objectively reject the informational
content contained in the sworn report which she developed.
It has been observed that “[i]t is difficult for anyone who has
worked long and hard to prove a proposition . . . to make the
kind of dramatic change in psychological perspective neces-
sary to assess that proposition objectively . . . .” 2 Richard
J. Pierce, Jr., Administrative Law treatise § 9.9 at 681 (4th
ed. 2002).
In the present case, I cannot say that the filing of the
sworn report bearing the informational content developed by
MURRAy v. Neth 	963
Cite as 279 Neb. 947

the director is merely investigative or ministerial. Compare
Finer Foods Sales Co., Inc. v. Block, 708 F.2d 774 (D.C. Cir.
1983). Instead, I believe that the risk of bias and unfairness
was intolerably high and that there was a violation of due
process in this case. I would reverse the decision of the Court
of Appeals.
connolly, J., joins in this concurrence and dissent.
StAte of neBrASkA, Appellee ,
v. thoi vo, AppellAnt.
783 N.W.2d 416
Filed June 4, 2010. 	No. S-09-912.
1. Postconviction: Proof: Appeal and Error. A defendant requesting postconvic-
tion relief must establish the basis for such relief, and the findings of the district
court will not be disturbed unless they are clearly erroneous.
2. Postconviction: Constitutional Law: Proof. An evidentiary hearing on a motion
for postconviction relief must be granted when the motion contains factual allega-
tions which, if proved, constitute an infringement of the movant’s rights under the
Nebraska or federal Constitution. however, if the motion alleges only conclusions
of fact or law, or the records and files in the case affirmatively show that the mov-
ant is entitled to no relief, no evidentiary hearing is required.
3. Pleas. A plea of no contest is equivalent to a plea of guilty.
4. Pleas: Waiver. Normally, a voluntary guilty plea waives all defenses to a crimi-
nal charge.
5. Postconviction: Appeal and Error. A motion for postconviction relief cannot be
used to secure review of issues which were known to the defendant and which
were or could have been litigated on direct appeal.
6. Postconviction: Pleas: Effectiveness of Counsel. In a postconviction action
brought by a defendant convicted because of a guilty plea or a plea of no contest,
a court will consider an allegation that the plea was the result of ineffective assist-
ance of counsel.
7. Postconviction: Effectiveness of Counsel: Proof: Appeal and Error. In order
to establish a right to postconviction relief based on a claim of ineffective assist-
ance of counsel, the defendant has the burden, in accordance with Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. ed. 2d 674 (1984), to show
that counsel’s performance was deficient and that counsel’s deficient performance
prejudiced the defense in his or her case. the two prongs of this test, deficient
performance and prejudice, may be addressed in either order.
8. Trial: Pleas: Mental Competency. A person is competent to plead or stand trial
if he or she has the capacity to understand the nature and object of the proceedings
against him or her, to comprehend his or her own condition in reference to such
proceedings, and to make a rational defense.
964 	279 NeBRASkA RePORtS