Attorney General of Nebraska — Opinion
DATE: October 23, 1987
SUBJECT: Questions Related to the Certificate of Need Law
REQUESTED BY: Senator James E. Pappas Nebraska State Legislature
WRITTEN BY: Robert M. Spire, Attorney General Marilyn B. Hutchinson, Assistant Attorney General
1. Creation of an independent review panel. As part of a task force developing legislation to change the Certificate of Need law, you want to propose legislation that will create a review panel which is independent of the Department of Health and which is a quasi-judicial body.
These objectives appear to be mutually exclusive. An administrative agency with only judicial functions would be judicial, not quasi-judicial. That is, its judicial functions would not be merely practical discretion reasonably incident to the exercise of ministerial police power by that review panel. See, Department of Banking v. Hedges, 136 Neb. 382, 401, 286 N.W. 277 (1939), and Hadden v. Aitken, 156 Neb. 215, 225, 55 N.W.2d 620 (1952). Therefore, creation of such an agency would be in violation of the constitutional requirement that the executive and judicial branches of government be separate. See, Neb. Const., Art. II, sec. 1.
2. Providing legal counsel for such independent review panel.
You want the independent review panel you create to be represented by a lawyer to rule on evidentiary matters. You ask if such a panel would be able to hire a lawyer independently or if such a lawyer would need to be from this office.
Current law makes the Attorney General the attorney for the state and for enumerated state officers who may not use state funds to pay any special counsel without written authorization of the Governor or the Attorney General. See, Neb.Rev.Stat. § 84-205 (Reissue 1981). The head of an independent review panel would arguably be covered by that section.
Thus, such an independent agency could not hire a lawyer independently without the consent of the Governor or the Attorney General. An attorney on the staff of the Department of Health could not represent an independent appeal panel. An attorney from this office could.
Sincerely yours,
ROBERT M. SPIRE Attorney General
Marilyn B. Hutchinson Assistant Attorney General