[Link to
GCH-0015](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0015LOPS.doc)

[Link to
GCH-0016](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0016LOPS.doc)

[Link to
GCH-0017](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0017LOPS.doc)

[Link to
GCH-0018](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0018LOPS.doc)

[Link to
GCH-0020](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0020LOPS.doc)

[Link to
GCH-0021](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0021LOPS.doc)

Legal Opinion: GCH-0058

Index: 2.245

Subject: PH Due Process Determination: Nebraska

June 1, 1992

DUE PROCESS DETERMINATION

for the

STATE OF NEBRASKA

TABLE OF CONTENTS

I. Jurisdiction.

II\. Elements of Due Process.

III\. Overview of Nebraska Eviction Procedures.

IV\. Analysis of Nebraska Eviction Procedures for

Each of the Regulatory Due Process Elements.

V. Conclusion.

ANALYSIS

I. Jurisdiction: State of Nebraska.

II\. Elements of Due Process

Section 6(k) of the United States Housing Act of 1937

(42 U.S.C. 1437d(k), as amended by section 503(a) of the National

Affordable Housing Act of 1990, Pub. L. 101-625, approved

November 28, 1990), provides that:

For any grievance concerning an eviction or termination of

tenancy that involves any criminal activity that threatens

the health, safety, or right to peaceful enjoyment of the

premises of other tenants or employees of the public housing

agency or any drug-related criminal activity on or near such

premises, the agency may . . . exclude from its grievance

procedure any such grievance, in any jurisdiction which

requires that prior to eviction, a tenant be given a hearing

in court which the Secretary determines provides the basic

elements of due process . . . .

The statutory phrase \"elements of due process\" is defined by

HUD at 24 CFR § 966.53(c) as:

. . . an eviction action or a termination of tenancy in a

State or local court in which the following procedural

safeguards are required:

NEBRASKA: DUE PROCESS DETERMINATION

\(l\) Adequate notice to the tenant of the grounds for

terminating the tenancy and for eviction;

\(2\) Right of the tenant to be represented by counsel;

\(3\) Opportunity for the tenant to refute the evidence

presented by the PHA including the right to confront

and cross-examine witnesses and to present any

affirmative legal or equitable defense which the tenant

may have; and

\(4\) A decision on the merits.

HUD\'s determination that a State\'s eviction procedures

satisfy this regulatory definition is called a \"due process

determination.\"

The present due process determination is based upon HUD\'s

analysis of the laws of the State of Nebraska to determine if

eviction procedures under those laws require a hearing with all

of the regulatory \"elements of due process,\" as defined in

966.53(c).

HUD finds that the requirements of Nebraska law governing a

civil action for the restitution of real property in the county

or district courts of Nebraska under the Nebraska Uniform

Residential Landlord and Tenant Act (N.R.L.T.A.) ( 76-1401 et

seq. of the Revised Statues of Nebraska (N.R.S.)) include all of

the elements of basic due process, as defined in 24 CFR

966.53(c). This conclusion is based upon the Nebraska

Constitution, the N.R.L.T.A., the Nebraska Rules of Civil

Procedure, the Nebraska Rules of Evidence and case law.

III\. Overview of Nebraska Eviction Procedures

Under the N.R.L.T.A., a civil action for the restitution of

real property may be commenced in either the county courts or the

district courts of the State of Nebraska. N.R.S. 76-1409.

The N.R.L.T.A states the substantive requirements for a

restitution action brought in the State of Nebraska. N.R.S.

76-1401 et seq. The procedural requirements are found in

N.R.L.T.A., the Nebraska Rules of Evidence and the Nebraska Rules

of Civil Procedure. The Nebraska Rules of Evidence and Rules of

Civil Procedure are set forth by Nebraska statute. See N.R.S.

27-101 to 27-1103 and 25-101 et seq. According to the

promulgating order of the Supreme Court of Nebraska, the rules of

civil procedure apply in the \"district court and in all other

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NEBRASKA: DUE PROCESS DETERMINATION

courts of Nebraska to the extent they are not inconsistent with

other statutes.\"

The N.R.S. states the procedures for commencement of a

possessory action. N.R.S. 76-1440 to 76-1447.

Due Process Clause of the Nebraska Constitution

Article I, Section 3 of the Nebraska Constitution provides

that:

No person shall be deprived of life, liberty, or

property, without due process of law.

IV\. Analysis of Nebraska Eviction Procedures for Each of the

Regulatory Due Process Elements

The following analysis considers whether each element of

HUD\'s regulatory due process definition is satisfied in a

restitution action commenced in the county or district courts of

the State of Nebraska.

This determination will focus on the use of an action for

restitution for those evictions which may be excluded from a

PHA\'s grievance procedure pursuant to a HUD due process

determination: evictions for drug-related criminal activity or

criminal activity that threatens health or safety of a tenant or

PHA employee.

A. Adequate notice to the tenant of the grounds for

terminating the tenancy and for eviction

(24 CFR 966.53(c)(l))

N.R.S. 71-1536(i)(4) provides that a tenant of a Nebraska

housing authority whose tenancy is terminated:

shall be sent a written notice of termination setting

forth the reasons for such termination, and any tenant

served with a notice shall be given the opportunity to

contest the termination in an appropriate hearing if

required by state or federal law . . . . Such notice

may provide that if the tenant fails to pay his or her

rent or comply with any covenant or condition of his or

her lease, of the rules and regulations of such

authority, or cure a violation of default thereof, as

the case may be, as specified in such notice or follow

the procedure for a hearing as set forth in the notice,

all within the time or times set forth in such notice,

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NEBRASKA: DUE PROCESS DETERMINATION

the tenancy shall be automatically terminated and no

other notice or notices need be given of such

termination or the intent to terminate the tenancy, and

upon such termination, and without any notice other

than as provided for in this subsection, an authority

may file suit against any tenant for recovery of

possession, of the premises and may recover the same as

provided by law.

N.R.S. 71-1436(i)(4) further provides that:

i f a tenant has created or maintained a threat

constituting a serious and clear danger to the health or

safety of other tenants or authority employees, an authority

may, after three days written notice and without a hearing,

file suit against any such tenant for recovery of possession

of the premises. A serious and clear danger to the health

or safety of other tenants or authority employees shall

include, but is not limited to, any of the following

activities of the tenant or of any other person on the

premises with the consent of the tenant: (a) Physical

assault or the threat of physical assault; (b) illegal use

of a firearm or other weapon or the threat to use an illegal

firearm or other weapon; or (c) possession of a controlled

substance by the tenant or any other person on the premises

with the consent of the tenant if the tenant knew of or

should have known of the possession by such other person of

a controlled substance . . . .

In the State of Nebraska, a civil action for the restitution

of real property is commenced when the person seeking possession

files a petition for restitution with the clerk of the district

or county court. N.R.S. 76-1441. The petition must: (l) state

with particularity the facts upon which the plaintiff seeks

recovery; (b) describe with reasonable accuracy the premises; and

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NEBRASKA: DUE PROCESS DETERMINATION

\(c\) comply with the notice provisions of 25-21,2191 and

76-1401 to 76-1449 of N.R.L.T.A.. N.R.S. 76-1441.

A summons with a copy of the petition attached must be

served upon the defendant within 3 days from the date the court

clerk issued the summons. N.R.S. 76-1442; N.R.S. 25-2204.

The summons must state:

the cause of the complaint, the time and place of trial of

the action for possession . . . and notice that if the

defendant fails to appear judgment shall be entered against

him. (N.R.S. 76-1442)

Under Nebraska law, service of the summons and attached

petition may be made by any person. N.R.S. 76-1442. The

person making the service must file an affidavit with the court

stating with particularity the manner in which service was made.

N.R.S. 76-1442.

Thus, under the procedural requirements of the N.R.L.T.A., a

tenant receives adequate notice of the grounds for an action

brought for the restitution of real property. N.R.S. 76-1441.

See also, Housing Authority of the City of Lincoln v. Wolfe, 324

N.W.2d 891, 893 (Neb. Sup. Ct. 1982).

Adequate notice of the grounds for terminating the tenancy

and for eviction is also required by the due process clause of

the Nebraska Constitution (Article I, Section 3). The Nebraska

due process clause states that \" n o person shall be deprived of

life, liberty, or property without due process of law.\"

1Section 25-21,219 (Forcible entry and detainer;

jurisdiction; exception) does not have any notice requirements.

It would seem that the section referenced should be 25-21,21

(Forcible entry and detainer; notice to leave premises; when and

how served.) This section provides that:

i t shall be the duty of the party, desiring to

commence an action under 25-21,219 to 21, 235, the

forcible entry and detainer procedures to notify the

adverse party to leave the premises for the possession

of which the action is about to be brought. This

notice shall be served at least three days before

commencing the action by leaving a written copy with

such adverse party, or at his usual place of abode, if

he cannot be found.

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NEBRASKA: DUE PROCESS DETERMINATION

B. Right to be represented by counsel

(24 CFR 966.53(c)(2))

Many provisions of the code of civil procedure refer to the

role of counsel, e.g., Neb. R. Evd., Rule 27 (depositions);

N.R.S. 25-2702 (appearances, representation, attorney,

qualification). These provisions assume and imply that litigants

have the right to be represented by counsel.

The right to be represented by counsel is also afforded by

the due process clause of the Nebraska Constitution (Article I,

Section 3).

C. Opportunity for the tenant to refute the evidence

presented by the PHA, including the right to confront

and cross-examine witnesses (24 CFR 966.53(c)(3))

In accordance with the Nebraska Rules of Evidence and Rules

of Civil Procedure, the defendant has the right to interrogate

witnesses and present evidence. N.R.S. 27-611; N.R.S.

25-1107. Appearance of witnesses may be compelled by subpoena.

\"The clerks of the several courts and judges of the county courts

shall on application of any person having a cause or any matter

pending in the court, issue a subpoena for witnesses . . . .\"

N.R.S. 25-1223. Further, depositions of witnesses not

available at trial are admissible if taken in accordance with the

Rules of Evidence. See, Neb. R. Evd., Rule 27; see also, State

v\. Priest, 223 N.W. 635 (Neb. Sup. Ct. 1929) (deposition

admissible where the defendant had been provided notice and was

represented by counsel who had the opportunity to cross-examine).

Thus, a tenant in an action for restitution of real

property has adequate opportunity to refute evidence presented by

the plaintiff.

The right to refute evidence presented by the plaintiff is

also guaranteed by the due process clause of the Nebraska

Constitution (Article I, Section 3).

D. Opportunity to present any affirmative legal or

equitable defense which the tenant may have

(24 CFR 966.53(c)(3))

The defendant may appear \"on or before the day fixed for his

appearance . . . and answer and assert any legal or equitable

defense . . . . \" N.R.S. 76-1445.

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NEBRASKA: DUE PROCESS DETERMINATION

N.R.S. 25-811 provides that:

t he answer shall contain (1) a general or specific denial

of each material allegation of the petition controverted by

the defendant; and (2) a statement of any new matter

constituting a defense, counterclaim or setoff, in ordinary

and precise language . . . .

E. A decision on the merits (24 CFR 966.53(c)(4))

HUD finds that Nebraska law requires a determination on the

merits - a decision based upon the facts and the law.

The Nebraska Rules of Civil Procedure, N.R.S. 25-1101,

provides that \" i ssues arise on the pleadings where a fact or

conclusion of law is maintained by one party and controverted by

the other. These are of two kinds: (1) of law; (2) of fact.\"

N.R.S. 25-1103 provides that \" a trial is a judicial

examination of the issues, whether of law or of fact in an

action.\" (See also Krepcik v. Interstate Transit Lines, 38

N.W.2d 533, 536 (Neb. Sup. Ct., 1949)).

N.R.S. 25-1301 provides that \" a judgement is the final

determination of the rights of the parties in action.\" Where a

court decides a case upon its merits after introduction of

evidence, it is a trial. Shipley v. McNeel, 32 N.W.2d 639, 641

(Neb. Sup. Ct. 1948).

A decision on the merits is also required by the due process

clause of the Nebraska Constitution (Article I, Section 3).

Based on the above, HUD concludes that Nebraska law requires

a decision on the merits.

V. Conclusion

Nebraska law governing a restitution action for possession

of real property in the Nebraska county or district courts

requires that the tenant have the opportunity for a pre-eviction

hearing in court which provides the basic elements of due process

as defined in 24 CFR 966.53(c) of the HUD regulations.

By virtue of this due process determination by HUD under

section 6(k) of the U.S. Housing Act of 1937, a PHA in Nebraska

may evict a public housing tenant pursuant to an action for

restitution of possession of real property in the county or

district courts, for any criminal activity that threatens the

health, safety, or right to peaceful enjoyment of the premises of

7

NEBRASKA: DUE PROCESS DETERMINATION

other tenants or employees of the PHA, or any drug-related

criminal activity on or near the premises. The PHA is not

required to first afford the tenant the opportunity for an

administrative hearing on the eviction.

8