Current through September 17, 2024
002.01 Generally. A
request for a declaratory order must be made by a petition that meets the
requirements of this section.
002.02 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.
002.03 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:
002.03A A declaratory order may be requested
only on the applicability of existing statutes and rules and
regulations.
002.03B 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.
002.03C A declaratory
order is not a mechanism for review or appeal of a decision made by the agency
in a contested case.
002.03D 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.
002.03E 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.
002.04
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:
002.04A A caption, which shall include:
002.04A1 The venue: BEFORE THE NEBRASKA
DEPARTMENT OF CORRECTIONAL SERVICES, STATE OF NEBRASKA;
002.04A2 A heading specifying the subject
matter and the name of the petitioner; and
002.04A3 The name of the pleading: PETITION
FOR DECLARATORY ORDER.
002.04B The statements required in subsection
002.05 of this chapter.
002.04C The signature of the petitioner, or
when represented by an attorney, the signature of the attorney.
002.04D The name and address of the
petitioner, and when represented by an attorney, the name, address, telephone
number, and bar number of the attorney.
002.04E Size and Paper. The petition shall be
made on white, letter-sized (8- 1/2 " x 11") paper.
002.04F 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.
002.04G
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.
002.05
Contents of Petition. To be considered, the petition shall include the
following:
002.05A The name and address of
the petitioner;
002.05B 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.
002.05C The
statute, rule, regulation, or order upon which the petitioner seeks issuance of
a declaratory order;
002.05D A
detailed statement of all of the material facts and specific circumstances
which apply to petitioner's request for issuance of a declaratory
order;
002.05E All propositions of
law or contentions asserted by the petitioner;
002.05F 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
002.05G Any
documents pertinent to the petition that the petitioner wishes to be considered
by the agency.
002.06
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.
002.07 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
002.04,
002.05, and
002.06 of this chapter are
satisfied.
002.08 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.
