Before Nebraska Supreme Court: Were Whiteclay liquor stores treated fairly?

The positions taken by opposing sides in the debate over Whiteclay, beer sales, and the law were were technical, but essential during Tuesday's arguments before the Nebraska Supreme Court.

Blocking four liquor licenses in Whiteclay, Nebraska was “blatantly wrong” according to the attorney representing the out-of-business beer stores in front of the Nebraska Supreme Court. Andrew Snyder argued Tuesday the Liquor Control Commission “did not have the right to do what it did.” The Nebraska attorney general and a group of citizens opposing beer sales argued the stores had a fair hearing before the commission’s decision led to the closing of the stores.

Meanwhile, the stores remain closed while the seven judges review arguments made by opposing attorneys. An opinion is expected this fall.

Nebraska’s Liquor Control Commission refused to give the stores permission to stay open. Local and state law enforcement, according to the commission, was insufficient to protect the public safety in the unincorporated town with a history of open drunkenness and violence. A ten-volume record of the process included evidence and hours of public testimony.

When an opinion is issued by the Supreme Court it may focus the legal process and who has the legal authority over the stores.

In one corner, the Nebraska attorney general says the Liquor Control Commission had the final word.

On the other side, the store owners argue District Court Judge Andrew Jacobsen had the authority declare the commission’s action void. The judge agreed with the businesses who challenged the ruling, claiming they had been treated unfairly.

Opponents came to the Nebraska Supreme Court in hopes of nullifying the district court. The stores remain closed after the attorney general issued a rarely used mandate blocking the court order.

Solicitor General James Smith, representing the attorney general, challenged the authority of Judge Jacobsen to block the commission’s action in April. The term is “subject matter jurisdiction,” identifying which legal entity has the authority to review cases relating to a particular subject matter. In this case, whether an administrative body like the Liquor Control Commission has the final say in certain instances involving regulation of that industry.

When the store owners brought their challenge to the district court, Smith argued the stores owners failed to give the commission and the concerned citizen’s notice of the appeal.

“As far as the Liquor Control Commission is concerned, we were not served with a summons nor were we summoned with a copy of the petition,” Smith told the court.

Attorney David Domina told the court his clients, the Sheridan County residents opposing the beer licenses, were also not included in the district court hearing. He said there is a specific the five-step process to raise challenges to in district court.

“The beer stores are 0 for 5,” Domina told the court. “None of those things appear in the record.”

Domina also challenged the store owners claims they were not given full notice of the commission’s intent to review their licenses at the original hearing.

The beer store owners “where given specific notice that law enforcement was an issue after a Sheridan County commissioner testified to that effect and the Liquor Control Commission learned of that testimony.”

According to Domina, the district court ruling, issued in a matter of days, failed to take into account the massive record of evidence and testimony compiled by the commission.

Andrew Snyder, the attorney representing the beer stores claimed the District Court judge didn’t need to review the evidence from the commission hearing. Snyder argued the judge “would not have any benefit in having any record” since state law clearly layouts the process that should have been used by the regulators.

From the bench, Judge Lindsey Miller-Lerman questioned that premise, asking Snyder “your argument is the absence of a record is not important when it is a matter of law?”

Snyder replied, “My argument would be in this case the commission’s decision was such a blatant violation of its authority that the full record wasn’t necessary and not needed."

After the hearing, Snyder told reporters he believes the four stores in Whiteclay will reopen if the court favors their position, overturning the Liquor Commission's denial of license.

“I’m sure they would,” Snyder. said “I haven’t talked to them specifically about those plans, but I don’t think they would have me pursuing this if that wasn’t one of their options.”

The stores have been closed since April 29.

After the hearing opponents of the stores gathered on the steps of the State Capitol. Native American activist Frank LaMere had been in the courtroom. He said he realizes many who are in the moment may not recognize they are part of something historic.

“I’m going to come away form that hearing with the feeling that I was part of something very historic,” LaMere told the gathering. “Someday in a year, ten years, twenty years from now we are going to look back and say I was there and I was there to say to all Nebraska, we are better than this.”

The small crowd applauded as some shouted “Close Whiteclay!”