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Opinion 97016




DATE: March 5, 1997




SUBJECT: LB 100; Constitutionality of a bill which would specify that newspaper carriers are employees for purposes of the Nebraska Workers' Compensation statutes.




REQUESTED BY: Senator Edward J. Schrock

Nebraska State Legislature




WRITTEN BY: Don Stenberg, Attorney General

Dale A. Comer, Assistant Attorney General




Neb. Rev. Stat. § 48-115 (Cum. Supp. 1996) specifies, in

some detail, what the terms "employee" and "worker" should be

construed to include for purposes of the Nebraska Workers'

Compensation Act. LB 100 would add a new subsection 5 to § 48-

115 in order to have that statute read, in pertinent part:




The terms employee and worker are used interchangeably

and have the same meaning throughout the Nebraska

Workers' Compensation Act. Such terms include the

plural and all ages and both sexes and shall be

construed to mean:




* * * *




(5) Every person who delivers or distributes newspapers

for the owner or operator of a newspaper business or

the owner or owners of a business hired to deliver or

distribute newspapers shall be an employee of such

business under the Nebraska Workers' Compensation Act.






(emphasis added). You state that you have "several grave

concerns about LB 100," and therefore you have posed two

questions to us concerning its constitutionality.




Your first question involves a concern that the language of

LB 100 emphasized above is "extremely vague and ambiguous." You

point out that "every person" could include a newspaper carrier

along with a host of other persons such as parents, spouses,

etc., who might be involved at some time and in some way in the

delivery process. You also point out that "every person" could

include people who are in the delivery business who are hired to

transport or distribute newspapers together with other products

such as auto parts or beauty supplies. Your concern extends

further to the terms "such business," "operator of a newspaper

business," and "owners of a newspaper business hired to deliver

or distribute newspapers" which you also believe are extremely

ambiguous and unclear. In light of these concerns, you ask:




. . . should LB100 be deemed void for vagueness based

on the due process guarantees of the U.S. Constitution

and Article I, section 3, of our Nebraska Constitution?

Persons of ordinary intelligence should not have to

guess at its meaning especially when violations of

Nebraska's workers' compensation laws can have criminal

ramifications (see, e.g. Neb. Rev. Stat. Sec. 48-

144.04).




With respect to state legislation such as the language at

issue in LB 100, the void for vagueness doctrine is based on the

due process requirements contained in the Fourteenth Amendment to

the United States Constitution and in Article I, section 3, of

the Nebraska Constitution. U.S. v. Articles of Drug, 825 F.2d

1238 (8th Cir. 1987). In order to pass constitutional muster, a

statute must be sufficiently specific so that persons of ordinary

intelligence do not have to guess at its meaning, and the statute

must contain ascertainable standards by which it may be applied.

Articles of Drug, 825 F.2d at 1243. The void for vagueness

doctrine applies to both criminal and civil statutes. Id. at

1244. However, greater vagueness is tolerated in civil statutes

than in criminal statutes. Id.




In regards to Nebraska's workers' compensation laws, a

violation of those laws could result in criminal ramifications

pursuant to Neb. Rev. Stat. § 48-144.04 (1993) and Neb. Rev.

Stat. § 48-145.01 (1993). However, an employer is not directly

subject to criminal sanctions for any violation of the workers'

compensation laws, but only indirectly subject to them for

violating an order of the Nebraska Workers' Compensation Court.

For example, § 48-144.04 states, in relevant part, that "[a]ny

employer . . . who fails, neglects, or refuses to file any report

required of him or her by the Nebraska Workers' Compensation

Court shall be guilty of a Class II misdemeanor for each such

failure, neglect, or refusal. . . ." Similarly, § 48-145.01

states in relevant part that "[a]ny employer required [by the

Nebraska Workers' Compensation Court] to secure the payment of

compensation under the Nebraska Workers' Compensation Act who

willfully fails to secure the payment of such compensation shall

be guilty of a Class I misdemeanor. . . ." Therefore, it is

likely that greater vagueness would be tolerated with respect to

LB 100 since, for all intents and purposes, Nebraska's workers'

compensation laws, including the definitional change proposed LB

100, involve civil rather than criminal statutes.




The Nebraska Supreme Court has indicated that a civil

statute which is otherwise valid will not be held void for

vagueness unless it is so deficient in its terms as to render it

impossible to enforce. Neeman v. Nebraska Natural Resources

Comm'n, 191 Neb. 672, 217 N.W.2d 166 (1974). In State ex rel.

Douglas v. Herrington, 206 Neb. 516, 294 N.W.2d 330 (1980), the

court said that the established test for vagueness in a statute

is whether it either forbids or requires the doing of an act in

terms so vague that persons of common intelligence must

necessarily guess at its meaning and differ as to its

application. Id. at 521, 294 N.W.2d at 333.


In applying that due process test to LB 100, it first must

be determined, based upon your various concerns, whether "every

person" in the context of that bill is a phrase of ordinary

understanding such that persons of common intelligence would not

have to guess at its meaning in terms of complying with the

prohibitions in the bill. There are several reasons why we

believe that it is.




Considering "every person" in the context of LB 100, it

appears to us that persons of common intelligence would not have

to guess at its meaning or differ as to its application. It is

true that the phrase "every person" could include not only the

newspaper carrier, but also the carrier's husband, children,

siblings or others. However, under the language of LB 100, in

order to be subject to the workers' compensation laws, "every

person" must be delivering newspapers "for the owner or operators

of a newspaper business or the owner or owners of a business

hired to deliver or distribute newspapers." (Emphasis added.)

Thus, only the carrier would be the person who is responsible for

delivering the newspapers for the owner. A spouse, child or

sibling of the carrier would be delivering the newspapers for the

carrier, not for the owner. Accordingly, persons of common

intelligence would not have to guess at the meaning of the phrase

"every person," read in context with the whole of LB 100, since

most people would assume that its scope covers only those hired

by the business to deliver its newspapers.




In addition, according to the clear language of LB 100, if a

carrier delivers more than one newspaper, the carrier would be

deemed an employee of every business in which he has a contract

of employment to deliver its papers. For example, if the carrier

delivers newspapers for the Omaha World-Herald and the Wall

Street Journal, then the carrier would be an employee of both

papers. Indeed, the clear and unambiguous language of LB 100

dictates that both the Omaha World-Herald and the Wall Street

Journal would be deemed employers of the carrier and both would

be subject to the workers' compensation laws. Similarly, the

phrase "every person" could include people who are in the

delivery business who are hired to distribute newspapers to

various drop points, but who typically haul other products such

as auto parts and beauty supplies. Once again, the language of

LB 100 would make these people employees of the newspaper

business. Thus, we believe that the phrase "every person" in LB

100 is not unconstitutionally vague. When the phrase is read in

conjunction with the whole of the bill, persons of ordinary

intelligence would not have to guess at its meaning.




In applying the due process test to the other language of LB

100 which causes you concern, we must determine whether the

phrases "such business," "operator of a newspaper business," and

"owners of a business hired to deliver or distribute newspapers"

are phrases of ordinary understanding such that persons of common

intelligence would not have to guess at their meaning in terms of

complying with the prohibitions in the bill. LB 100 states that

any operator of a newspaper business or an owner of a business

who hires an individual to deliver newspapers should be deemed an

employer of that individual and subject to the workers'

compensation laws. We believe that persons of ordinary

intelligence would assume that LB 100 applies to either a

specific operator of a newspaper business who hires individuals

to deliver newspapers or to an owner of a non-newspaper business

that hires individuals to deliver newspapers. In other words,

either the carrier will be delivering newspapers for the

newspaper business itself or the carrier will be delivering

newspapers for a non-newspaper business that hires individuals to

deliver newspapers. Again, we do not believe that this language

is unconstitutionally vague.




As a result, it appears to us that LB 100 generally uses

ordinary terms which find adequate interpretation in common usage

and understanding. On that basis, we do not believe that LB

100 is sufficiently vague so as to violate due process.

Nevertheless, if you continue to believe that LB 100 is confusing

and unclear, you may wish to introduce further amendatory

language to deal with the interpretation problems which you

perceive.




Your second question involves art. III, § 18 of the Nebraska

Constitution. You state that the Nebraska Workers Compensation

Act currently applies to every employer in the state of Nebraska

except for certain enumerated nonhazardous occupations, and that

LB 100 seems premised on an assumption that all newspaper

carriers and distributors are currently being treated as

independent contractors who require special legislation separate

and apart from all other independent contractors. You then note

two potential problems with the bill from that prospective.

First, some newspapers apparently already hire their carriers as

employees, and LB 100 would be duplicative of those efforts.

Second, "bestowing special protection to a limited group of

people who are otherwise part of a larger group of independent

contractors appears to be a creation of an unreasonable class and

unconstitutional. LB 100 seems to be trying to differentiate

between independent contractors with no rational basis for the

distinction." Based upon these concerns, you ask ". . . whether

LB100 constitutes `class legislation' that is in contravention of

Article III, Section 18 of the Nebraska Constitution?"




Art. III, § 18 of the Nebraska Constitution provides, as is

pertinent:




The Legislature shall not pass local or special

laws in any of the following cases, that is to say:




* * * *




Granting to any corporation, association, or individual

any special or exclusive privileges, immunity, or

franchise whatever . . . . In all other cases where a

general law can be made applicable, no special law

shall be enacted.




A legislative bill can violate art. III, § 18 by (1) creating a

totally arbitrary and unreasonable method of classification, or

(2) by creating a permanently closed class. MAPCO v. State Board

of Equalization, 238 Neb. 565, 471 N.W.2d 734 (1991); Haman v.

Marsh, 237 Neb. 699, 467 N.W.2d 836 (1991). As a result, LB 100

must be measured under those criteria.




At the outset, we are not entirely sure that the language at

issue from LB 100 even creates a classification. You state that

the bill attempts to treat one group of independent contractors

(newspaper carriers) differently than all other independent

contractors, and therefore, separately classifies them. However,

it is not completely clear that most newspaper carriers are

independent contractors under the current statutes. In Larson

v. Hometown Communications, Inc., 248 Neb. 942, 540 N.W.2d 339

(1995), the Nebraska Supreme Court determined that a young girl

who was injured while delivering newspapers was an employee of

the paper involved under the facts of that case and the current

Workers' Compensation statutes. Obviously, the decision in

Larson that the carrier was an employee rather than an

independent contractor was based upon the factual situation in

that specific case. However, we suspect that the circumstances

surrounding the employment of the plaintiff in the Larson case

are not very different from the employment situation with respect

to many other newspaper carriers across the state. Therefore, it

could be argued that the bill does not treat one group of

independent contractors differently from all others.




Assuming, however, that a classification is involved in LB

100, under the initial test described above, that classification

cannot be totally arbitrary and unreasonable. In that regard,

the Nebraska Supreme Court has indicated that legislative

"[c]lassifications must be based on some substantial difference

of situation or circumstances that would naturally suggest the

justice or expediency of diverse legislation with respect to the

objects to be classified." Haman v. Marsh supra at 713, 467

N.W.2d at 847 (emphasis in original). "The test for statutes

challenged under the special-laws prohibitions . . . is that they

must bear `a reasonable and substantial relation to the objects

sought to be accomplished by the legislation.'" Id.




We cannot say, as a matter of law, that there is no

substantial difference of situation or circumstances that would

naturally suggest the justice or expediency of diverse

legislation with respect to newspaper carriers versus other

independent contractors, or that any such classification does not

bear a reasonable and substantial relation to the objects sought

to be accomplished. For one thing, it is apparent that many

newspaper carriers are minors. Therefore, it could be argued

that children carrying newspapers should, as a matter of justice

or expediency, be treated differently from other independent

contractors who are operating businesses as adults, and that such

separate treatment bears a substantial relation to the object of

protecting those minors. As the trial judge stated in the Larson

case, "[i]t is beyond sophistry and closer to outright dishonesty

to characterize a 10-year[-]old party to a contract as a `little

merchant' and thus an independent contractor." Larson at 959,

540 N.W.2d at 351. As a result, since there may well be

differences of circumstances which suggest the necessity for

different treatment of newspaper carriers under statute, we do

not believe that any classifications inherent in LB 100 are

clearly arbitrary or unreasonable.




Art. III, § 18 is also violated by legislation which creates

a permanently closed class. With regard to a closed class in

this context, "a classification which limits the application of

the law to a present condition, and leaves no room for

opportunity for an increase in the numbers of the class by future

growth or development, is special." Haman v. Marsh, supra at

716, 467 N.W.2d at 848. In the present instance, the provisions

at issue in LB 100 would apply to existing newspaper carriers and

also to those individuals who become newspaper carriers in the

future. Consequently, LB 100 does not involve a closed class,

since it allows for an increase in the numbers of the class. It,

therefore, does not violate art. III, § 18 on that basis. See

also Op. Att'y Gen. No. 92129 (December 30, 1992) (statutory

classification which allowed additional members in the future was

not a closed class under art. III, § 18).




Sincerely yours,




DON STENBERG

Attorney General








Dale A. Comer

Assistant Attorney General




5-14-7.1




cc. Patrick J. O'Donnell

Clerk of the Legislature




Approved by:








____________________________________

Attorney General