Current through March 20, 2024
003.01 Generally
A request for a declaratory order must be made by a petition
that meets the requirements of section 003.
003.02 Who May File
Any person may petition the agency for issuance of a
declaratory order as to the applicability to specified circumstances of a
statute, rule, regulation, or order which is within the primary jurisdiction of
the agency.
003.03 When
Orders Appropriate
A declaratory order may be requested on the applicability of
a statute, rule, regulation, or order enforced by the agency.
"Applicability" refers to the appropriateness of the relation
of the law to the person, property, or state of facts, or its relevance under
the circumstances given. It may include such questions as whether the law
applies at all, to whom it applies, when it applies, how it applies, or which
law applies. Considerations as to whether issuance of a declaratory order is
appropriate include:
003.03A A
declaratory order may be requested only on the applicability of existing
statutes and rules and regulations.
003.03B A declaratory order may be requested
to obtain a determination of proposed conduct, not to obtain a determination of
the effect of conduct that has already occurred.
003.03C A declaratory order is not a
mechanism for review or appeal of a decision made by the agency in a contested
case.
003.03D A declaratory order
may not be requested to obtain a declaration by the agency that a statute or
regulation is unconstitutional or that a regulation of the agency is
invalid.
003.03E A declaratory
order may not be issued by the agency that would substantially prejudice the
rights of a person who would be a necessary party and who does not consent in
writing to the determination of the matter by a declaratory order
proceeding.
003.04 Form
of Petition
A petition for declaratory order shall be in the form of
either a pleading or letter which shall contain each of the following:
003.04A A caption, which shall include:
003.04A1 The venue: BEFORE THE [AGENCY],
STATE OF NEBRASKA;
003.04A2 A
heading specifying the subject matter and the name of the petitioner;
and
003.04A3 The name of the
pleading: PETITION FOR DECLARATORY ORDER.
003.04B The statements required in subsection
003.05 of this chapter.
003.04C The
signature of the petitioner, or when represented by an attorney, the signature
of the attorney.
003.04D The name
and address of the petitioner, and when represented by an attorney, the name,
address, telephone number, and bar number of the attorney.
003.04E Size and Paper. The petition shall be
made on white, letter-sized ( 8-1 /2" x 11") paper.
003.04F Print. The petition shall be legibly
typewritten, photostatically reproduced, printed, or handwritten. If
handwritten, the petition must be written in ink. Only one side of a page shall
contain any writing.
003.04G
Attachments. Any documents attached to a petition shall be securely fastened to
the pleading and shall meet the requirements of 003.04E and
003.04F and, when
possible, be reproduced on 8-1 /2" x 11" paper or placed in an 8-1 /2" x 11"
envelope and clearly marked as an attachment to the petition.
003.05 Contents of Petition
To be considered, the petition shall include the
following:
003.05A The name and
address of the petitioner;
003.05B
The name and address of all persons or entities, known to the petitioner, who
may have a specific interest in the applicability of the statute, rule,
regulation, or order or who may be adversely affected by the issue sought to be
resolved by the petitioner.
003.05C
The statute, rule, regulation, or order upon which the petitioner seeks
issuance of a declaratory order;
003.05D A detailed statement of all of the
material facts and specific circumstances which apply to petitioner's request
for issuance of a declaratory order;
003.05E All propositions of law or
contentions asserted by the petitioner;
003.05F A demand for the relief to which the
petitioner alleges entitlement. The petition shall state the petitioner's
position as to how the agency should rule and why the agency should rule in the
manner requested; and
003.05G Any
documents pertinent to the petition that the petitioner wishes to be considered
by the agency.
003.06
The petition
The petition shall be subscribed and verified by the
petitioner. If the petitioner is a corporation, political subdivision, or other
entity, then the petition shall be subscribed and verified by a duly authorized
agent of the petitioning entity.
003.07 Sample Petition
The petitioner may use the sample form of a petition which
is attached as "Appendix A" and incorporated within this chapter. The
petitioner may also prepare a reasonable facsimile of "Appendix A" so long as
the requirements of subsections
003.04, 003.05, and 003.06 of this
chapter are satisfied.
003.08 Written Consents
The petitioner shall also attach to the petition any written
consents obtained from any necessary party that the petition may be determined
by use of a declaratory order proceeding.
