Walz v. Neth

stated previously, we find that active efforts were made and
that the children would suffer serious emotional or physical
harm if Chad retained custody. Therefore, we affirm the deci-
sion of the juvenile court terminating Chad’s parental rights to
these children.
As for Carmela, we find that the State has proved the
§ 43-292 statutory grounds for termination of parental rights,
that active efforts were made, that the children would suffer
serious emotional or physical harm if she retained custody,
and that termination of Carmela’s parental rights is in the
children’s best interests. Therefore, we affirm the decision
of the juvenile court terminating Carmela’s parental rights to
these children.
A ffirmed.
BriAn P. WAlz , APPellAnt, v. Beverly neth , director ,
StAte of neBrASkA, dePArtment of
motor vehicleS, APPellee .
773 N.W.2d 387
Filed September 8, 2009. 	No. A-08-486.
1. Administrative Law: Judgments: Appeal and Error. A judgment or final order
rendered by a district court in a judicial review pursuant to the Administrative
Procedure Act may be reversed, vacated, or modified by an appellate court for
errors appearing on the record.
2. ____: ____: ____. When reviewing an order of the 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. Judgments: Appeal and Error. Whether a decision conforms to the law is by
definition a question of law, in connection with which an appellate court reaches
a conclusion independent of that reached by the lower court.
4. Administrative Law: Due Process: Notice: Evidence. In proceedings before an
administrative agency or tribunal which has jurisdiction, procedural due process
requires the following: 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 board.
5. Arrests: Administrative Law: Motor Vehicles: Licenses and Permits:
Revocation: Due Process. There is no statutory requirement that an arrested per-
son be given the reasons for his or her arrest, and the fact that an officer’s sworn
report, when completed, provides the arrested person with some information
WAlz v. NeTh 	891
Cite as 17 Neb. App. 891
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:14 AM CST

concerning the reasons for arrest does not mean that he or she is deprived of
due process simply because all of the additional information was not given to
the person.
6. Administrative Law: Drunk Driving: Licenses and Permits: Revocation:
Time. The 10-day time limit set forth in Neb. Rev. Stat. § 60-498.01(2) (Reissue
2004) which states that an arresting officer shall forward a sworn report to
the director of the Department of Motor Vehicles is directory rather than
mandatory.
7. Appeal and Error. In the absence of plain error, an appellate court considers
only claimed errors which are both assigned and discussed.
Appeal from the District Court for Red Willow County:
dAvid UrBom, Judge. Affirmed.
David W. Jorgensen, of Nye, hervert, Jorgensen & Watson,
P.C., for appellant.
Jon Bruning, Attorney General, Andee G. Penn, and Milissa
Johnson-Wiles for appellee.
irWin, cArlSon, and moore, Judges.
cArlSon, Judge.
INTRODUCTION
Brian P. Walz appeals from the decision of the district court
for Red Willow County, which affirmed the order of the direc-
tor of the Nebraska Department of Motor Vehicles, Beverly
Neth (Director), revoking his driving privileges and driver’s
license for a period of 1 year pursuant to the administrative
license revocation (AlR) statutes. For the reasons set forth
below, we affirm.
BACKGROUND
The record shows that on December 22, 2007, at 1:25
a.m., Sgt. David Ortiz of the McCook Police Department
stopped Walz for speeding and reckless driving. Ortiz stated
that he stopped Walz’ vehicle after Walz almost collided with
another vehicle. Officer Keith Miner, also of the McCook
Police Department, followed Ortiz in a second patrol car as
Ortiz stopped Walz. As Ortiz approached Walz’ vehicle, Ortiz
smelled the strong odor of an alcoholic beverage on Walz’
892 	17 NeBRASKA APPellATe RePORTS

person, and when Walz exited his vehicle, Walz appeared as if
he was going to fall over.
Ortiz asked Walz if he would perform field sobriety tests,
but Walz refused the tests. Ortiz also asked Walz to submit to
a preliminary breath test, and Walz refused. Ortiz then placed
Walz under arrest for suspicion of driving under the influence
of alcohol, and Miner transported Walz to the McCook police
station. When Walz arrived at the police station, Ortiz asked
Walz to submit to a chemical blood test, which Walz refused.
Ortiz then completed a sworn report detailing the incident, and
both Ortiz and Miner signed the sworn report in the presence
of a notary.
The sworn report states that Walz was arrested pursuant to
Neb. Rev. Stat. § 60-6,197 (Reissue 2004), and the reasons
listed for Walz’ arrest were speeding, 39 m.p.h. in a 25-m.p.h.
zone, and reckless driving. The Director received the sworn
report on December 31, 2007. Subsequently, the Director sent a
blank addendum to the sworn report to Ortiz and Miner. In the
addendum, the Director stated, “The [D]irector has determined
the reasons for arrest on the sworn report sent to you with this
addendum may not confer jurisdiction to revoke the arrested
person’s operators license. . . . On the form be[low], please
indicate how you determined the arrested person was driving
while intoxicated.”
Ortiz then filled out the addendum to the sworn report
and listed the reasons for Walz’ arrest as “Speeding 39 in 25;
Reckless driving - near head on accident, strong odor of alco-
hol, slurred speech, refused SFST, PBT and chemical test.”
Ortiz signed the addendum in the presence of a notary and
returned the addendum to the Director on January 4, 2008.
A hearing was held on January 18, 2008, and the sworn
report and the addendum were received into evidence at the
hearing. Following the hearing, the hearing officer recom-
mended that Walz’ driving privileges and license be suspended
for 1 year. The Director then adopted the recommended order
of the hearing officer and revoked Walz’ driving privileges and
license, effective January 21, 2008. Walz appealed to the dis-
trict court, which affirmed. Walz appeals.
WAlz v. NeTh 	893
Cite as 17 Neb. App. 891

ASSIGNMeNTS OF eRROR
Walz argues, condensed and restated, that the trial court
erred in (1) determining that the Department of Motor Vehicles
(hereinafter Department) had jurisdiction to initiate an AlR
proceeding against him, because the original sworn report did
not confer jurisdiction upon the Department and the addendum
to the sworn report should not have been received as evidence;
(2) failing to find that the Director denied him substantive
due process of law by having an ex parte communication with
a witness and suggesting that the sworn report be amended;
(3) failing to find that the addendum to a sworn report need
not be executed by the two officers who executed the original
sworn report.
STANDARD OF ReVIeW
[1-3] A judgment or final order rendered by a district court
in a judicial review pursuant to the Administrative Procedure
Act may be reversed, vacated, or modified by an appellate
court for errors appearing on the record. Stoetzel v. Neth, 16
Neb. App. 348, 744 N.W.2d 465 (2008). When reviewing an
order of the 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.
Stoetzel v. Neth, supra. Whether a decision conforms to the law
is by definition a question of law, in connection with which
an appellate court reaches a conclusion independent of that
reached by the lower court. Id.
ANAlYSIS
Jurisdiction—Sworn Report.
Walz argues that the Department did not have jurisdiction,
because Ortiz failed to testify he forwarded the addendum to
Walz as required by law, and that the Department denied him
substantive due process of law by having an ex parte commu-
nication with a witness and suggesting that the sworn report
be amended.
[4] In proceedings before an administrative agency or tribu-
nal which has jurisdiction, procedural due process requires the
894 	17 NeBRASKA APPellATe RePORTS

following: notice, identification of the accuser, factual basis
for the accusation, reasonable time and opportunity to pre-
sent evidence concerning the accusation, and a hearing before
an impartial board. Taylor v. Wimes, 10 Neb. App. 432, 632
N.W.2d 366 (2001).
[5] In the instant case, the sworn report Ortiz gave to Walz
clearly gave Walz notice that he was being accused of driv-
ing under the influence and refusing to submit to a chemical
test. There is no statutory requirement that an arrested person
be given the reasons for his or her arrest, and the fact that the
officer’s sworn report, when completed, provides the arrested
person with some information concerning the reasons for arrest
does not mean that he or she is deprived of due process simply
because all of the additional information was not given to the
person. See Taylor v. Wimes, supra. Therefore, we conclude
that even though the addendum to the sworn report listed other
reasons for Walz’ arrest, the fact that Walz may not have been
provided these reasons does not mean that Walz’ due process
rights were violated.
In regard to Walz’ claim that the Department denied him
substantive due process of law by having an ex parte commu-
nication with a witness, we conclude that the law does not sup-
port Walz’ argument. Neb. Rev. Stat. § 84-914(6)(b) (Reissue
2008) states:
No hearing officer or agency head or employee who is or
may reasonably be expected to be involved in the decision-
making process of the contested case shall make or know-
ingly 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.
In the instant case, Ortiz and Miner were potential witnesses
at Walz’ AlR hearing; neither Ortiz nor Miner was a party in
Walz’ AlR proceeding or a person outside the Department hav-
ing an interest in Walz’ case. Therefore, the record fails to show
that Walz’ due process rights were violated by the Director’s ex
parte communication with Ortiz and Miner.
In Stoetzel v. Neth, 16 Neb. App. 348, 744 N.W.2d 465
(2008), this court addressed the question of whether a sworn
WAlz v. NeTh 	895
Cite as 17 Neb. App. 891

report that had been amended after the arresting officer
submitted the report to the Director could be considered
for purposes of establishing jurisdiction. We found that the
Department lacked jurisdiction to initiate an AlR proceed-
ing, because the original sworn report failed to include the
date the arresting officer received the blood test results and
because the amended sworn report was not received in a
timely manner and was not properly sworn. We made no find-
ing that a properly notarized and timely received amendment
cannot be properly considered by the Director in determining
whether the Department has jurisdiction to proceed with an
AlR proceeding.
In the instant case, we find that the Department had jurisdic-
tion to proceed with an AlR proceeding against Walz, because
the addendum to the original sworn report was properly nota-
rized and timely received. Walz argues that the sworn report
was improper because only Ortiz executed the addendum to
the sworn report. Walz contends that because the original
sworn report was executed by two arresting officers, “it would
seem that an addendum, in order to be valid, would also have
to be executed by the original officers.” Brief for appellant
at 8.
Walz offers no support for his contention, and we see no
reason why the addendum needed to be executed by more than
one officer. Neb. Rev. Stat. § 60-498.01(2) (Reissue 2004)
states that a sworn report must be forwarded to the Director
within 10 days of the arrest by an “arresting peace officer.” The
record clearly shows that Ortiz was an arresting peace officer,
and there is no requirement that both Ortiz and Miner were
required to sign the addendum.
[6] Regarding the requirement that the addendum be received
in a timely manner, § 60-498.01(2) provides, “If a person
arrested as described in subsection (2) of section 60-6,197
refuses to submit to the chemical test of blood, breath, or urine
required by section 60-6,197, . . . [t]he arresting peace officer
shall within ten days forward to the [D]irector a sworn report
. . . .” In Forgey v. Nebraska Dept. of Motor Vehicles, 15 Neb.
App. 191, 724 N.W.2d 828 (2006), this court held that the 10-
day time limit set forth in § 60-498.01(2) which states that an
896 	17 NeBRASKA APPellATe RePORTS

arresting officer shall forward a sworn report to the Director of
the Department is directory rather than mandatory. We further
held that the violation of such time limit did not invalidate the
AlR proceedings.
Therefore, even though the addendum to the sworn report
was forwarded to the Director 13 days after Walz’ arrest, we
conclude that the Department had jurisdiction to initiate an
AlR proceeding against Walz. The original sworn report alone
did not confer jurisdiction upon the Department, but the adden-
dum to the sworn report was properly received as evidence, and
the addendum and the original sworn report together conferred
jurisdiction upon the Department.
Jurisdiction—No Finding That Walz Was
Arrested for Refusal to Submit.
[7] Walz also argues that the Department did not have juris-
diction to revoke his driver’s license and/or operating privileges
for 1 year, because the hearing officer did not make a finding
that Walz was arrested for refusal to submit to a chemical test.
Although Walz discusses this assignment, he did not assign it
as error. In the absence of plain error, an appellate court consid-
ers only claimed errors which are both assigned and discussed.
Kirkwood v. State, 16 Neb. App. 459, 748 N.W.2d 83 (2008).
After reviewing the record, we find no plain error.
CONClUSION
For the reasons set forth above, we conclude that the trial
court did not err in determining that the Department had juris-
diction to initiate an AlR proceeding against Walz. The trial
court did not err in receiving the sworn report into evidence,
and such admission did not violate Walz’ due process rights.
Additionally, the trial court did not err in failing to find that the
addendum to a sworn report need not be executed by both of
the officers who executed the original sworn report. We do not
discuss Walz’ argument that the Department did not have juris-
diction to revoke his driver’s license and/or operating privileges
because the hearing officer failed to find that Walz was arrested
for refusal to submit to a chemical test. Walz did not assign this
argument as error. For these reasons, we affirm the order of the
WAlz v. NeTh 	897
Cite as 17 Neb. App. 891

district court for Red Willow County, affirming the revocation
of Walz’ driver’s license and privileges for 1 year.
A ffirmed.
irWin, Judge, dissenting.
I respectfully dissent from the decision of the majority
affirming the practice of the Director of reviewing the sworn
report prior to the AlR hearing, assessing its sufficiency to
confer jurisdiction and prove the Department’s prima facie
case, ex parte advising the arresting officer of potential defi-
ciencies, and then receiving an addendum at the AlR hearing
remedying potential defects in accordance with the Director’s
concerns. I do not believe there is any authority for the Director
to act in this fashion.
I find it troubling that the ultimate decisionmaker in this
administrative action, the Director, in an ex parte fashion,
previewed the document which both confers jurisdiction and
amounts to prima facie proof of the Department’s case and
assessed its sufficiency, contacted the arresting officer, and
sought to bolster the evidence prior to the AlR hearing. It is
well established in Nebraska case law that administrative bod-
ies have no power or authority other than that specifically con-
ferred by statute or by construction necessary to accomplish the
plain purpose of an administrative act. See, Brunk v. Nebraska
State Racing Comm., 270 Neb. 186, 700 N.W.2d 594 (2005);
Hahn v. Neth, 270 Neb. 164, 699 N.W.2d 32 (2005). In this
case, there is no statute conferring authority on the Director to
review the sworn report and seek to bolster its sufficiency prior
to the hearing, without notice to the driver.
In addition, inasmuch as the sworn report acts both as the
jurisdictional document and as the prima facie case for the
Department, the Director’s assessing and seeking to bolster the
sufficiency of the sworn report without notice to the driver has
an additional feel of impropriety and lack of impartiality. In my
assessment, the Director is limited either to that authority spe-
cifically granted by the statutes or to those actions necessary
to carry out the purposes of the AlR statutes; the majority’s
endorsement of this practice appears to take the approach that
there is no statute prohibiting the action, which seems to me to
turn the basic general rule about the authority of administrative
898 	17 NeBRASKA APPellATe RePORTS

bodies upside down. I also note that there does not appear to
be any authority from the Nebraska Supreme Court approving
of or endorsing this practice.
Finally, I am also troubled by the potential due process
implications of the sworn report’s being substantively supple-
mented with an addendum that may not have ever been pro-
vided to Walz prior to the hearing. Although I recognize that,
as the majority notes, Taylor v. Wimes, 10 Neb. App. 432, 632
N.W.2d 366 (2001), stands for the proposition that there is no
statutory requirement that an arrested person be given the rea-
sons for his or her arrest, I find the present case significantly
distinguishable from Taylor. In that case, the sworn report spe-
cifically indicated that the more detailed reasons for the arrest
were contained on a separate “‘probable cause form,’” id. at
435, 632 N.W.2d at 370, and this court specifically noted in its
rejection of the driver’s due process challenge that the driver
could have obtained a copy of the report through discovery,
being aware of its existence, but made no apparent effort to
do so. In the present case, the sworn report itself was arguably
deficient to confer jurisdiction and there was nothing to indi-
cate to Walz that an additional supplementary document was
in existence.
The record suggests that the Director sent a true and accu-
rate copy of the notice and exhibits for the hearing to Walz on
January 3, 2008. The addendum, however, was not received
by the Department until January 4. As such, the record pre-
sented suggests that the addendum was never provided to Walz
prior to the hearing. The Department, in its brief on appeal,
indicates that “[t]he Department’s transcript also shows that
on January 7, 2008, the Director mailed a copy of Sergeant
Ortiz’s completed addendum to both Walz and Walz’s counsel”
and cites to “(Department T15).” Brief for appellee at 12. The
record presented to this court on appeal does not include the
“Department’s transcript” and does not include any such indi-
cation of mailing to Walz.
Unlike the sworn report in Taylor v. Wimes, supra, the sworn
report presented to Walz was arguably insufficient to confer
jurisdiction and included no reference to any other supple-
mental documents that would cure the jurisdictional defect.
WAlz v. NeTh 	899
Cite as 17 Neb. App. 891

Without notice of the existence of an addendum solicited by
the Director, it is arguable that Walz would have been justified
in preparing for the hearing by preparing to simply challenge
the jurisdiction of the Director based on the deficiencies of the
sworn report. The record presented to us does not indicate that
Walz was provided notice prior to the hearing that there was
any need to prepare a substantive case to challenge revoca-
tion, because the materials provided to Walz indicated a lack
of jurisdiction.
For the foregoing reasons, I respectfully dissent from the
decision of the majority.
WilliAm mUrrAy, APPellAnt, v. Beverly neth , director ,
StAte of neBrASkA dePArtment of motor vehicleS,
And the neBrASkA dePArtment of
motor vehicleS, APPelleeS.
773 N.W.2d 394
Filed September 8, 2009. 	No. A-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), an appellate
court may reverse, vacate, or modify a district court’s judgment 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: Statutes: Appeal and Error. The interpretation of statutes
and regulations presents questions of law, in connection with which an appellate
court has an obligation to reach an independent conclusion irrespective of the
decision made by the court below.
4. 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 applicable statute, in order to con-
fer jurisdiction.
5. Administrative Law: Motor Vehicles: Licenses and Permits: Revocation:
Proof. The Department of Motor Vehicles makes a prima facie case for license
revocation once it establishes that the officer provided a sworn report containing
the statutorily required recitations.
900 	17 NeBRASKA APPellATe RePORTS