Rosberg v. Vap

104 	284 NEBRASKA REPORTS
K elly RosbeRg and Paul RosbeRg,
aPPellants, v. geRald vaP and
Rod Johnson, aPPellees.
815 N.W.2d 867
Filed July 13, 2012. 	No. S-11-734.
1. Summary Judgment: Appeal and Error. An appellate court will affirm a lower
court’s grant of summary judgment if the pleadings and admissible evidence
offered at the hearing show that there is no genuine issue as to any material facts
or 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. ____: ____. 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. Statutes: Appeal and Error. Statutory interpretation presents a question of law
that an appellate court independently reviews.
4. ____: ____. An appellate court gives statutory language its plain and ordi-
nary meaning.
5. Statutes: Legislature: Intent: Appeal and Error. An appellate court gives
effect to the purpose and intent of the Legislature as ascertained from the entire
language of a statute considered in its plain, ordinary, and popular sense.
6. Public Service Commission: Legislature: Intent. The Legislature did not
intend service on the Public Service Commission to be read as a profession for
which one must be in good standing according to the established standards of
that profession.
Appeal from the District Court for Lancaster County: K aRen
b. F loweRs, Judge. Affirmed.
Kelly Rosberg and Paul Rosberg, pro se.
Mark A. Fahleson and Tara L. Tesmer, of Rembolt Ludtke,
L.L.P., for appellees.
heavican, c.J., wRight, connolly, MccoRMacK, M illeR-
leRMan, and cassel, JJ.
connolly, J.
Kelly Rosberg and Paul Rosberg challenge the results of
elections for seats on the Public Service Commission (PSC).
Kelly and Paul lost in the primaries to Gerald Vap and Rod
Johnson, respectively. After the general election, the Rosbergs
filed suit in the district court for Lancaster County, claiming
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:41 AM CST

ROSBERG v. VAP 	105
Cite as 284 Neb. 104
that Vap and Johnson were ineligible for the seats. The district
court rejected the Rosbergs’ claims and granted summary judg-
ment to Vap and Johnson. We affirm.
BACKGROUND
Both of the Rosbergs ran for seats on the PSC. Paul ran for
the seat in district 4. Although Paul lost in the primary and
received only write-in votes in the general election, Paul claims
that he received the most votes of the eligible candidates at
the general election because the person who was named the
winner of the election, Johnson, was ineligible. Paul claimed
that because Johnson had an occupation other than public serv-
ice commissioner,1 he was not thus “in good standing” with
his profession,2 and that therefore Johnson was ineligible for
the seat.
Kelly ran for the seat in district 5. Kelly lost to Vap in the
primary. Nevertheless, Kelly received write-in votes in the
general election. Based on the write-in votes, Kelly claimed
that she received the most votes of any qualified candidates.
Kelly makes the same argument as Paul. She claimed that
because Vap had an occupation other than the PSC, he was not
“in good standing” with his profession and therefore ineligible
for the seat.
Vap and Johnson eventually moved for summary judgment.
The parties submitted affidavits and exhibits in support of
the motion.
Regarding Vap, the evidence showed Vap has been involved
with a company called Vap’s Seed and Hardware, Inc. Vap
stated that although he was president, a corporate officer, and
a shareholder, he had had no involvement in the day-to-day
operations of the company and had received no income as
president in the past 10 years. Further, he stated that the com-
pany had ceased doing business. Vap maintained that the PSC
was his only occupation.
Johnson stated that he owned land that he rented to his
brother in a family farming operation. But he stated that he had
1 See Neb. Rev. Stat. § 75-101(3) (Reissue 2009).
2 See § 75-101(1).

106 	284 NEBRASKA REPORTS
no involvement in the day-to-day operations and that the PSC
was his only occupation.
The Rosbergs also submitted affidavits. These affidavits
predictably sought to counter those of Vap and Johnson. They
generally recounted the same facts as the affidavits of Vap and
Johnson but drew different conclusions from those facts—
namely, that Vap and Johnson had other occupations. But in
addition to Johnson’s admitted landholdings, Paul also alleged
that Johnson had earned money as a driver for a number of
companies, although he makes no mention of how much time
Johnson had dedicated to this endeavor.
The district court granted Vap and Johnson summary judg-
ment. The district court seemingly relied on two different
reasons. First, the district court ruled that § 75-101(3), which
prohibits a commissioner from having another occupation, does
not render a candidate ineligible to run for office. Second, even
if it did, neither Vap nor Johnson had “occupations” within the
meaning of § 75-101(3). According to the court, an “occupa-
tion” is a person’s usual or principal work or business; it is that
to which one’s time and attention are habitually devoted. The
court found that Johnson’s renting of farmland to his brother
and Vap’s past involvement with Vap’s Seed and Hardware
were not “occupations.” The Rosbergs appeal.
ASSIGNMENTS OF ERROR
The Rosbergs’ brief does not separately assign and argue
their claimed errors. Nevertheless, the gist of their argument
appears to be that the district court erred in granting Vap and
Johnson summary judgment and in concluding that they were
not ineligible for the seats on the PSC.
STANDARD OF REVIEW
[1,2] An appellate court will affirm a lower court’s grant of
summary judgment if the pleadings and admissible evidence
offered at the hearing show that there is no genuine issue as to
any material facts or the ultimate inferences that may be drawn
from those facts and that the moving party is entitled to judg-
ment as a matter of law.3 In reviewing a summary judgment, an
3 Feloney v. Baye, 283 Neb. 972, 815 N.W.2d 160 (2012).

ROSBERG v. VAP 	107
Cite as 284 Neb. 104
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.4
[3] Statutory interpretation presents a question of law that
we independently review.5
ANALYSIS
[4,5] This case presents an issue of statutory interpretation.
We give statutory language its plain and ordinary meaning.6
And we give effect to the purpose and intent of the Legislature
as ascertained from the entire language of a statute considered
in its plain, ordinary, and popular sense.7
The statute in question, § 75-101, establishes eligibility
requirements for candidates for the PSC and also restrictions
upon commissioners once they are elected. It provides:
(1) The members of the [PSC] shall be resident citizens
of this state, registered voters, and, if members of or prac-
titioners in any profession, in good standing according to
the established standards of such profession. The mem-
bers of the [PSC] shall be elected as provided in section
32-509. A candidate for the office of public service com-
missioner shall be a resident of the district from which he
or she seeks election. Each public service commissioner
shall be a resident of the district from which he or she is
elected. Removal from the district shall cause a vacancy
in the office of public service commissioner for the unex-
pired term.
(2) No person shall be eligible to the office of pub-
lic service commissioner who is directly or indirectly
interested in any common carrier or jurisdictional utility
in the state or out of it or who is in any way or manner
pecuniarily interested in any common carrier subject to
4 Id.
5 Butler Cty. Sch. Dist. v. Freeholder Petitioners, 283 Neb. 903, 814 N.W.2d
724 (2012).
6 Id.
7 See id.

108 	284 NEBRASKA REPORTS
Chapter 75 or 86. If any commissioner becomes so inter-
ested after election or appointment, his or her office shall
become vacant, except that if any commissioner becomes
so interested otherwise than voluntarily, he or she shall,
within a reasonable time, divest himself or herself of
such interest, and failing to do so, his or her office shall
become vacant.
(3) A commissioner shall not hold any other office
under the government of the United States, of this state,
or of any other state and shall not, while such commis-
sioner, engage in any other occupation.
The Rosbergs brought their claims under the election chal-
lenge statutes.8 These statutes allow for a challenge to an elec-
tion if, among other reasons, “the incumbent was not eligible
to the office at the time of the election.”9 As victors in the elec-
tion, Vap and Johnson were the “incumbents.”10
The Rosbergs’ challenge to Vap’s and Johnson’s eligibility
for the PSC weaves together two provisions of § 75-101. First,
the Rosbergs claim that during Vap’s and Johnson’s previous
terms as commissioners, they both had occupations other than
holding office as commissioners, which violated subsection (3).
The Rosbergs argue that these violations meant that Vap and
Johnson did not meet the eligibility requirements for holding a
commissioner’s office under subsection (1). As stated, subsec-
tion (1) requires a commissioner to be “in good standing” in
any profession of which he or she is a member or practitioner.
Thus, according to the Rosbergs, neither Vap nor Johnson was
eligible for a seat on the PSC. We disagree.
Subsections (1) and (2) set out the eligibility requirements
to hold the office of commissioner. In contrast, subsection (3)
sets out restrictions upon those who hold that office: They may
not hold another office or engage in another occupation while
holding the office of commissioner. In enacting the eligibility
requirements to hold the office of commissioner, the Legislature
could not have meant that a person running for office must be
8 Neb. Rev. Stat. § 32-1101 et seq. (Reissue 2008).
9 § 32-1101(2).
10 See Neb. Rev. Stat. § 32-111 (Reissue 2008).

DOUGLAS CTY. HEALTH CTR. SEC. UNION v. DOUGLAS CTY. 	109
Cite as 284 Neb. 109
in good standing in the profession of being a commissioner.
This interpretation would mean that incumbents already hold-
ing the office were subject to an eligibility requirement that
did not apply to persons seeking the office for the first time.
If the Legislature had intended to distinguish between incum-
bents seeking reelection and persons seeking election for the
first time, it would have set out separate requirements. But it
did not.
Instead, subsection (1) is more sensibly read to set out the
requirements for any person seeking the office of commis-
sioner. When interpreted in this manner, the Legislature obvi-
ously meant that a commissioner must be in good standing
in any profession of which he or she is a member or practi-
tioner—outside of the duties imposed upon a commissioner
while holding office.
CONCLUSION
[6] Because the Legislature did not intend service on the
PSC to be read as a profession for which one must be “in good
standing according to the established standards of” that profes-
sion, we conclude that the district court was correct in dismiss-
ing the Rosbergs’ challenges.
aFFiRMed.
stePhan, J., participating on briefs.
douglas county health centeR secuRity union, aPPellee,
v. douglas county, nebRasKa, aPPellant.
817 N.W.2d 250
Filed July 13, 2012. 	No. S-11-778.
1. Commission of Industrial Relations: Appeal and Error. Any order or decision
of the Commission of Industrial Relations may be modified, reversed, or set aside
by an appellate court on one or more of the following grounds and no other: (1)
if the commission acts without or in excess of its powers, (2) if the order was
procured by fraud or is contrary to law, (3) if the facts found by the commission
do not support the order, and (4) if the order is not supported by a preponderance
of the competent evidence on the record considered as a whole.
2. Commission of Industrial Relations: Labor and Labor Relations. Under
Nebraska’s Industrial Relations Act, the Commission of Industrial Relations has