State ex rel. Rhiley v. Nebraska State Patrol , 301 Neb. 241 ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
STATE EX REL. RHILEY v. NEBRASKA STATE PATROL
Cite as 301 Neb. 241
State of Nebraska ex rel. Billy D. R hiley, appellant
and cross-appellee, v. Nebraska State Patrol,
appellee and cross-appellant.
___ N.W.2d ___
Filed October 5, 2018. No. S-17-1261.
1. Immunity: Jurisdiction. Sovereign immunity is jurisdictional in nature,
and courts have a duty to determine whether they have subject matter
jurisdiction over a matter.
2. Jurisdiction: Appeal and Error. A jurisdictional question which does
not involve a factual dispute is determined by an appellate court as a
matter of law, which requires the appellate court to reach a conclusion
independent of the lower court’s decision.
3. ____: ____. Before reaching the legal issues presented for review, it is
the duty of an appellate court to determine whether it has jurisdiction
over the appeal.
4. Immunity. A state’s immunity from suit is a fundamental aspect of
sovereignty.
5. Constitutional Law: Actions: Legislature. The provisions of Neb.
Const. art. V, § 22, are not self-executing, and no suit may be maintained
against the State unless the Legislature, by law, has so provided.
6. Statutes: Immunity: Waiver. Statutes that purport to waive the State’s
protection of sovereign immunity are strictly construed in favor of the
sovereign and against the waiver.
7. ____: ____: ____. A waiver of sovereign immunity is found only
where stated by the most express language of a statute or by such over-
whelming implication from the text as will allow no other reasonable
construction.
8. Immunity: Waiver: Jurisdiction: Legislature. Absent legislative
action waiving sovereign immunity, a trial court lacks subject matter
jurisdiction over an action against the State.
9. Criminal Law: Political Subdivisions: Immunity: Waiver. Neb. Rev.
Stat. § 29-3528 (Reissue 2016) does not expressly waive sovereign
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STATE EX REL. RHILEY v. NEBRASKA STATE PATROL
Cite as 301 Neb. 241
immunity for actions brought against a state agency seeking to compel
compliance with the Security, Privacy, and Dissemination of Criminal
History Information Act, nor does the text overwhelmingly imply that
waiver of sovereign immunity is the only reasonable construction.
Appeal from the District Court for Hall County: John H.
M arsh, Judge. Vacated and dismissed.
Jared J. Krejci, of Leininger, Smith, Johnson, Baack, Placzek
& Allen, for appellant.
Douglas J. Peterson, Attorney General, and David A. Lopez
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Stacy, J.
Billy D. Rhiley filed this mandamus action against the
Nebraska State Patrol (NSP) seeking an order commanding
the NSP to remove from the public record information regard-
ing his 1991 arrest. The NSP argued (1) the mandamus action
was barred by sovereign immunity and thus the court lacked
subject matter jurisdiction, (2) the action was moot, and (3)
mandamus relief was unavailable because Rhiley had an ade-
quate remedy at law. The district court rejected the sovereign
immunity defense, but granted judgment in favor of the NSP
and dismissed the mandamus action on the other grounds.
Rhiley appeals the dismissal of his mandamus action, and
the NSP cross-appeals the rejection of its sovereign immu-
nity defense. We conclude the sovereign immunity defense is
meritorious and dismiss the appeal for lack of subject mat-
ter jurisdiction.
FACTS
On February 1, 1991, Rhiley was arrested by police in
Grand Island, Nebraska, pursuant to a felony arrest warrant for
burglary issued in Laramie, Wyoming. The arresting officers
informed the NSP’s Criminal Identification Division (CID)
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STATE EX REL. RHILEY v. NEBRASKA STATE PATROL
Cite as 301 Neb. 241
of the arrest. The CID serves as a repository of criminal his-
tory information1 in Nebraska. Under Nebraska’s Security,
Privacy, and Dissemination of Criminal History Information
Act 2 (the Criminal History Act), each criminal justice agency
is required to maintain “complete and accurate criminal his-
tory record information with regard to the actions taken by the
agency.”3 Under the Criminal History Act, “complete” infor-
mation means that “arrest records shall show the subsequent
disposition of the case as it moves through the various stages
of the criminal justice system” and “accurate” information
“shall mean containing no erroneous information of a mate-
rial nature.” 4
According to Rhiley, after he was arrested, officials deter-
mined he was not involved in the burglary, he was released,
and Wyoming prosecutors voluntarily dismissed the burglary
charge. The NSP’s CID was not notified of the Wyoming
action.
In 2016, Rhiley obtained a copy of his NSP criminal history
information and found it included information about the 1991
arrest for burglary. Regarding disposition of the arrest, the
report provided: “ARREST DISPOSITION: TRANSFERRED
TO ANOTHER AGENCY—WYOMING.” The criminal his-
tory report did not indicate the burglary charge had been
dismissed by the Wyoming prosecutor. Rhiley’s attorney tele-
phoned the NSP’s CID to request correction, and was told to
contact the arresting agency. Rhiley’s counsel then contacted
1
See Neb. Rev. Stat. § 29-3506 (Reissue 2016) (“[c]riminal history record
information [means] information collected by criminal justice agencies on
individuals consisting of identifiable descriptions and notations of issuance
of arrest warrants, arrests, detentions, indictments, charges by information,
and other formal criminal charges, and any disposition arising from such
arrests, charges, sentencing, correctional supervision, and release”).
2
See Neb. Rev. Stat. §§ 29-209, 29-210, 29-3501 to 29-3528 (Reissue
2016), and 81-1423 (Cum. Supp. 2016).
3
§ 29-3515.
4
§ 29-3507.
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STATE EX REL. RHILEY v. NEBRASKA STATE PATROL
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the Hall County Attorney in an attempt to resolve the matter,
but was unsuccessful.
On March 28, 2017, Rhiley filed a lawsuit in the Hall
County District Court seeking to have the 1991 arrest informa-
tion removed from the public record pursuant to § 29-3523.
That statute generally provides that in the case of an arrest, all
criminal history record information relating to the case “shall
be removed from the public record” as follows:
(a) When no charges are filed as a result of the deter-
mination of the prosecuting attorney, the criminal history
record information shall not be part of the public record
after one year from the date of arrest, citation in lieu of
arrest, or referral for prosecution without citation;
(b) When charges are not filed as a result of a com-
pleted diversion, the criminal history record information
shall not be part of the public record after two years from
the date of arrest, citation in lieu of arrest, or referral for
prosecution without citation; and
(c) When charges are filed, but the case is dismissed by
the court (i) on motion of the prosecuting attorney, (ii) as
a result of a hearing not the subject of a pending appeal,
(iii) after acquittal, or (iv) after completion of a program
prescribed by a drug court or any other problem solving
court approved by the Supreme Court, the criminal his-
tory record information shall not be part of the public
record immediately upon notification of a criminal justice
agency after acquittal pursuant to subdivision (3)(c)(iii)
of this section or after the entry of an order dismissing
the case.5
Initially, Rhiley’s lawsuit was brought against several
defend­ants, including the city of Grand Island, Hall County,
the Hall County Attorney, and the NSP’s Superintendent
of Law Enforcement and Public Safety, individually and in
his official capacity. On July 13, 2017, Rhiley voluntarily
5
§ 29-3523 (3)(a) through (c) (emphasis supplied).
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STATE EX REL. RHILEY v. NEBRASKA STATE PATROL
Cite as 301 Neb. 241
dismissed all defendants except the NSP. Thus, Rhiley elected
to proceed with a mandamus action against only the NSP,
seeking to compel the removal of criminal history information
regarding his 1991 arrest from the public record. After the
lawsuit was filed, the NSP removed Rhiley’s arrest informa-
tion from the public record.
Rhiley claims that § 29-3528 authorizes a mandamus action
directly against the NSP to compel compliance with the
Criminal History Act. Section 29-3528 provides:
Whenever any officer or employee of the state, its
agencies, or its political subdivisions, or whenever any
state agency or any political subdivision or its agencies
fails to comply with the requirements of [the Criminal
History Act] or of regulations lawfully adopted to imple-
ment [that act], any person aggrieved may bring an action,
including but not limited to an action for mandamus, to
compel compliance and such action may be brought in the
district court of any district in which the records involved
are located or in the district court of Lancaster County.
The commission may request the Attorney General to
bring such action.
The NSP moved for judgment on the pleadings, arguing
the mandamus action was barred by the doctrine of sovereign
immunity. The district court overruled the motion. The NSP
subsequently filed another motion, styled as a motion for sum-
mary judgment, asserting: (1) Rhiley’s mandamus action was
barred by sovereign immunity; (2) Rhiley had a plain and ade-
quate remedy at law, so mandamus was not available; and (3)
the action was rendered moot when the 1991 arrest information
was removed from the public record shortly after the manda-
mus action was filed. No party challenges the use of summary
judgment within a mandamus action.
The district court again rejected the sovereign immunity
defense, but granted judgment in favor of the NSP on the other
two grounds and denied mandamus relief. It reasoned Rhiley’s
claim was rendered moot by the NSP’s removal of his arrest
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STATE EX REL. RHILEY v. NEBRASKA STATE PATROL
Cite as 301 Neb. 241
information from the public record. Alternatively, it reasoned
regulations promulgated pursuant to the Criminal History Act
created procedures for challenging incorrect criminal history 6
and found such procedures were a “plain and adequate rem-
edy” available to Rhiley that precluded mandamus relief.7
Rhiley appeals, and the NSP cross-appeals. We granted the
NSP’s petition to bypass.
ASSIGNMENTS OF ERROR
Rhiley assigns, restated and summarized, that the district
court erred in (1) determining the action is moot, (2) determin-
ing he failed to avail himself of a plain and adequate remedy at
law, (3) relying on an administrative exhaustion defense when
the NSP did not assert such a defense in its answer, (4) sustain-
ing the NSP’s hearsay objection to certain evidence, and (5)
failing to bind the NSP to its guidance documents.
On cross-appeal, the NSP contends both the district court
and this court lack jurisdiction, because Rhiley’s claim against
the NSP, a state agency, is barred by the doctrine of sovereign
immunity and the language in § 29-3528 is not a waiver of
such immunity.
STANDARD OF REVIEW
[1] Sovereign immunity is jurisdictional in nature, and courts
have a duty to determine whether they have subject matter
jurisdiction over a matter.8
[2] A jurisdictional question which does not involve a fac-
tual dispute is determined by an appellate court as a matter of
law, which requires the appellate court to reach a conclusion
independent of the lower court’s decision.9
6
See, § 29-3526; 78 Neb. Admin. Code, ch. 1 (1978).
7
Neb. Rev. Stat. § 25-2157 (Reissue 2016).
8
Cappel v. State, 298 Neb. 445, 905 N.W.2d 38 (2017).
9
Tilson v. Tilson, 299 Neb. 64, 907 N.W.2d 31 (2018); In re Interest of
Meridian H., 281 Neb. 465, 798 N.W.2d 96 (2011).
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STATE EX REL. RHILEY v. NEBRASKA STATE PATROL
Cite as 301 Neb. 241
ANALYSIS
[3] Before reaching the legal issues presented for review, it
is the duty of an appellate court to determine whether it has
jurisdiction over the appeal.10 Because the NSP’s cross-appeal
presents a jurisdictional question, we address it first.
Actions Against State A re Barred Unless
Sovereign Immunity Is Waived
[4] The 11th Amendment makes explicit reference to the
states’ immunity from suits “commenced or prosecuted against
one of the United States by Citizens of another State, or by
Citizens or Subjects of any Foreign State.”11 This court has, as
a result, sometimes referred to the 11th Amendment when dis-
cussing Nebraska’s sovereign immunity from suit.12 However,
the sovereign immunity of a state neither derives from nor is
limited by the terms of the 11th Amendment.13 Rather, as we
have recognized, a state’s immunity from suit is a fundamen-
tal aspect of sovereignty.14
[5] Neb. Const. art. V, § 22, provides: “The state may
sue and be sued, and the Legislature shall provide by law
in what manner and in what courts suits shall be brought.”
Long ago, we held that this provision is not self-­executing
and that no suit may be maintained against the State unless
the Legislature, by law, has so provided.15 Over time, we
have examined the Legislature’s limited waivers of the
10
Bloedorn Lumber Co. v. Nielson, 300 Neb. 722, 915 N.W.2d 786 (2018).
11
U.S. Const. amend. XI. See Alden v. Maine, 527 U.S. 706, 119 S. Ct.
2240, 144 L. Ed. 2d 636 (1999).
12
See, e.g., Amend v. Nebraska Pub. Serv. Comm., 298 Neb. 617, 905 N.W.2d
551 (2018); Gillpatrick v. Sabatka-Rine, 297 Neb. 880, 902 N.W.2d 115
(2017); Lamb v. Fraternal Order of Police Lodge No. 36, 293 Neb. 138,
876 N.W.2d 388 (2016).
13
Alden, supra note 11.
14
Id. See Jill B. & Travis B. v. State, 297 Neb. 57, 899 N.W.2d 241 (2017).
15
Shear v. State, 117 Neb. 865, 223 N.W. 130 (1929).
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STATE EX REL. RHILEY v. NEBRASKA STATE PATROL
Cite as 301 Neb. 241
State’s sovereign immunity, usually in the context of either
the State Tort Claims Act or the Political Subdivisions Tort
Claims Act.16
[6-8] In doing so, we have found it well settled that stat-
utes that purport to waive the State’s protection of sovereign
immunity are strictly construed in favor of the sovereign and
against the waiver.17 A waiver of sovereign immunity is found
only where stated by the most express language of a statute or
by such overwhelming implication from the text as will allow
no other reasonable construction.18 Absent legislative action
waiving sovereign immunity, a trial court lacks subject matter
jurisdiction over an action against the State.19
This action originally involved other parties and claims, but
Rhiley voluntarily dismissed all parties except the NSP and
all claims except mandamus. The NSP is an administrative
department of the State of Nebraska,20 and an action against a
state agency is an action against the State.21 Therefore, Rhiley’s
mandamus action against the NSP is barred by sovereign
immunity unless the Legislature has waived it.
Rhiley argues § 29-3528 waives the State’s sovereign immu-
nity in a mandamus action seeking to compel compliance with
the Criminal History Act. His argument is generally twofold.
First, he asserts we should construe § 29-3528 as a waiver
of the State’s sovereign immunity. Second, he contends our
16
See, e.g., Shipley v. Department of Roads, 283 Neb. 832, 813 N.W.2d 455
(2012).
17
Amend, supra note 12; Zawaideh v. Nebraska Dept. of Health & Human
Servs., 285 Neb. 48, 825 N.W.2d 204 (2013).
18
Amend, supra note 12; Jill B. & Travis B., supra note 14.
19
Henderson v. Department of Corr. Servs., 256 Neb. 314, 589 N.W.2d 520
(1999).
20
Neb. Rev. Stat. § 81-2001 (Reissue 2014).
21
See Henderson, supra note 19. See, also, Perryman v. Nebraska Dept. of
Corr. Servs., 253 Neb. 66, 568 N.W.2d 241 (1997), disapproved on other
grounds, Johnson v. Clarke, 258 Neb. 316, 603 N.W.2d 373 (1999).
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STATE EX REL. RHILEY v. NEBRASKA STATE PATROL
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decision in Henderson v. Department of Corr. Servs.22 inter-
preting the Nebraska mandamus statutes was incorrect and
should be overruled. We address these arguments in reverse
order and ultimately reject both.
Henderson Correctly Held M andamus Statutes
Do Not Waive Sovereign Immunity
for State Agency
Rhiley seeks a writ of mandamus. Mandamus is a law action
and is defined as an extraordinary remedy, not a writ of right,
issued to compel the performance of a purely ministerial act
or duty, imposed by law upon an inferior tribunal, corporation,
board, or person, where (1) the relator has a clear right to the
relief sought, (2) there is a corresponding clear duty existing
on the part of the respondent to perform the act, and (3) there
is no other plain and adequate remedy available in the ordinary
court of law.23 Mandamus is statutorily authorized by Neb.
Rev. Stat. §§ 25-2156 to 25-2169 (Reissue 2016).
In State ex rel. Steinke v. Lautenbaugh,24 we addressed
whether a suit seeking a writ of mandamus against the Douglas
County election commissioner, in his official capacity, was
barred by sovereign immunity. We found it was not, reasoning:
When an action is brought against an individual employee
of a state agency, a court must determine whether the
action against the individual official is in reality an action
against the state and therefore barred by sovereign immu-
nity.[25] In addressing this issue, we have stated that an
action against a public officer to obtain relief from an
invalid act or from an abuse of authority by the officer or
agent is not a suit against the state and is not prohibited
22
Henderson, supra note 19.
23
State ex rel. Steinke v. Lautenbaugh, 263 Neb. 652, 642 N.W.2d 132
(2002).
24
Id.
25
See County of Lancaster v. State, 247 Neb. 723, 529 N.W.2d 791 (1995).
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by sovereign immunity.[26] This exception to the rule of
sovereign immunity exists because “‘acts of state offi-
cers not legally authorized, or which exceed or abuse the
authority conferred upon them, are judicially regarded as
their own acts and not acts of the state.’” [27] . . .
Application of the foregoing principles demonstrates
that this is not in reality an action brought against the
state or one of its political subdivisions. The basis for
relators’ claims is that [the election commissioner]
exceeded his statutory authority to adjust subdistrict
boundaries, and thus, they seek relief from what they
allege to be an invalid act or an abuse of authority by [the
commissioner].28
Lautenbaugh did not rely on any Legislative waiver of sov-
ereign immunity to find the action proper. Instead, it relied on
the rationale that an act done by a state official that exceeds or
abuses his or her authority is not an act of the State. As such,
Lautenbaugh recognized the general principle that sovereign
immunity does not bar mandamus actions against a public
officer seeking relief from what is alleged to be an invalid act
or an abuse of authority by the public officer.
Under the principle announced in Lautenbaugh, if Rhiley
had proceeded with his mandamus action against a public
officer of the NSP, our sovereign immunity analysis would
be different. But Rhiley’s mandamus action against the NSP
superintendent was voluntarily dismissed, leaving the NSP, a
state agency, as the only named party.
We addressed a similar situation in Henderson.29 There, an
inmate sought a writ of mandamus directing the Department
26
Johnson, supra note 21.
27
Concerned Citizens v. Department of Environ. Contr., 244 Neb. 152, 156,
505 N.W.2d 654, 658 (1993), quoting Rein v. Johnson, 149 Neb. 67, 30
N.W.2d 548 (1947).
28
Lautenbaugh, supra note 23, 263 Neb. at 661-62, 642 N.W.2d at 140.
29
Henderson, supra note 19.
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of Correctional Services to establish his projected release date
in accordance with his interpretation of a statute. The inmate
sued several state officers in addition to the Department of
Correctional Services, but he failed to perfect service on any
of the officers. Thus, the mandamus action proceeded against
only the department, and we phrased the jurisdictional ques-
tion as whether the district court had subject matter jurisdic-
tion over a mandamus action against the department, a state
agency, absent legislative action waiving the State’s sover-
eign immunity.30
In considering whether sovereign immunity had been
waived, Henderson looked to the general statute authorizing
mandamus, § 25-2156. That statute provides in relevant part:
“The writ of mandamus may be issued to any inferior tribunal,
corporation, board or person, to compel the performance of an
act which the law specifically enjoins as a duty resulting from
an office, trust or station.”31 We concluded that “[n]othing in
the statutes governing mandamus . . . indicates a legislative
intent to waive sovereign immunity for mandamus actions
against a state agency.”32
Rhiley argues we erred in Henderson, and he invites us to
overrule that case. He contends that although the NSP is a state
agency, it can also be an “inferior tribunal” within the context
of § 25-2156, and he asks us to find that the Legislature has
waived the State’s sovereign immunity for inferior tribunals.
We adhere to the holding in Henderson and do not con-
sider Rhiley’s argument, because it is hypothetical. There is
nothing in the record suggesting the NSP acted as a tribunal
in this case, and it is not the function of the courts to render
a judgment that is merely advisory.33 Moreover, appellate
30
Id.
31
§ 25-2156.
32
Henderson, supra note 19, 256 Neb. at 317, 589 N.W.2d at 522.
33
In re Applications of Koch, 274 Neb. 96, 736 N.W.2d 716 (2007).
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courts do not generally consider arguments and theories raised
for the first time on appeal,34 and there is nothing in the
record indicating Rhiley ever presented this theory to the dis-
trict court.
§ 29-3528 Does Not Waive Sovereign Immunity
for Actions Seeking to Enforce
Criminal History Act
Rhiley argues § 29-3528 waives sovereign immunity for
actions brought against state agencies to compel compliance
with the Criminal History Act. As noted, § 29-3528 provides:
Whenever any officer or employee of the state, its
agencies, or its political subdivisions, or whenever any
state agency or any political subdivision or its agencies
fails to comply with the requirements of [the Criminal
History Act] or of regulations lawfully adopted to imple-
ment [that act], any person aggrieved may bring an
action, including but not limited to an action for man-
damus, to compel compliance and such action may be
brought in the district court of any district in which
the records involved are located or in the district court
of Lancaster County. The commission may request the
Attorney General to bring such action.
As we recently reiterated in Amend v. Nebraska Pub. Serv.
Comm.35:
It is well settled that statutes that purport to waive the
State’s protection of sovereign immunity are strictly con-
strued in favor of the sovereign and against the waiver.
. . . A waiver of sovereign immunity is found only where
stated by the most express language of a statute or by
such overwhelming implication from the text as will allow
no other reasonable construction.
34
Maria T. v. Jeremy S., 300 Neb. 563, 915 N.W.2d 441 (2018).
35
Amend, supra note 12, 298 Neb. at 624, 905 N.W.2d at 557 (emphasis
supplied).
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The question, then, is whether, strictly construed against
waiver, § 29-3528 contains language that either (1) expressly
waives sovereign immunity for actions brought against a state
agency seeking compliance with the Criminal History Act or
(2) contains text from which the overwhelming implication
allows no other reasonable construction.
Rhiley concedes, as he must, that there is no language in
§ 29-3528 which expressly waives sovereign immunity for
actions to compel compliance with the Criminal History Act.
He argues, however, that the overwhelming implication of the
statutory language allows no other reasonable construction.
Rhiley essentially contends that because the statute references
“state agency” and, later in the same sentence, references
bringing an “action, including but not limited to an action for
mandamus,” to compel compliance, the only reasonable way
to construe the statute is that it waives the State’s sovereign
immunity in such actions. We disagree.
When strictly construed in favor of the sovereign and
against waiver, a reasonable construction of the relevant text
in § 29-3528 is that it recognizes a private civil right of action
to enforce the Criminal History Act. So construed, § 29-3528
allows an aggrieved party to bring a civil action, including
a mandamus action, to enforce compliance with the require-
ments of the Criminal History Act, assuming all other jurisdic-
tional and statutory requirements for bringing any particular
action are met.
But nothing about allowing a private right of action is an
express or implied waiver of the State’s sovereign immunity.
While a court must attempt to give effect to all parts of a stat-
ute, and if it can be avoided, no word, clause, or sentence will
be rejected as superfluous or meaningless,36 a court also must
not read into a statute a meaning that is not there.37 Section
36
Stick v. City of Omaha, 289 Neb. 752, 857 N.W.2d 561 (2015).
37
DMK Biodiesel v. McCoy, 290 Neb. 286, 859 N.W.2d 867 (2015).
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29-3528 simply does not address the issue of sovereign immu-
nity either expressly or by necessary implication, and we reject
Rhiley’s suggestion to the contrary.
We also reject Rhiley’s contention that the federal district
court for Nebraska has determined that § 29-3528 waives the
State’s sovereign immunity. In Estate of Wondercheck, ex rel.
Wondercheck v. Nebraska,38 an unpublished opinion of the U.S.
District Court for the District of Nebraska, that court discussed
§ 29-3528. It did so, however, in the context of analyzing
a different issue—whether § 29-3528 authorized a party to
bring a mandamus action against the State of Nebraska in fed-
eral court.
As to that issue, the federal court concluded “section
29-3528 does not constitute a waiver [of the State’s] immu-
nity from suit in federal court for violation of the [Criminal
History Act].”39 It reached this conclusion because the statu-
tory language did not include a clear declaration that the
State intended to submit to federal jurisdiction, and instead
referenced only “‘the district court of any district in which
the records involved are located or in the district court of
Lancaster County.’” 40 In the course of explaining its reasoning,
the federal court broadly stated that “section 29-3528 waives
Nebraska’s immunity only for [Criminal History Act] claims
brought in state district court.” 41 We read this statement in the
context of the court’s entire analysis of federal jurisdiction,
and not as a precise holding on the statutory interpretation
question presented in the instant case. In any event, to the
extent the federal district court’s interpretation of § 29-3528
38
Estate of Wondercheck, ex rel. Wondercheck v. Nebraska, No. 4:06CV3087,
2006 WL 3392185 (D. Neb. Oct. 18, 2006) (unpublished memorandum
and order).
39
Id. at *4.
40
Id., quoting § 29-3528.
41
Id. at *4.
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differs from ours, we respectfully observe that this court is
the final arbiter of Nebraska law.42
[9] We hold that § 29-3528 does not expressly waive sov-
ereign immunity for actions brought against a state agency
seeking to compel compliance with the Criminal History Act,
nor does the text overwhelmingly imply that waiver of sov-
ereign immunity is the only reasonable construction. We thus
hold that Rhiley’s mandamus action against the NSP seeking to
compel compliance with the Criminal History Act is barred by
the doctrine of sovereign immunity.
CONCLUSION
The Legislature has not waived the State’s sovereign immu-
nity in mandamus actions brought directly against a state
agency to enforce the Criminal History Act. As such, the
district court lacked subject matter jurisdiction over Rhiley’s
mandamus action against the NSP, a state agency.43 When a
lower court does not gain jurisdiction over the case before it,
an appellate court also lacks the jurisdiction to review the mer-
its of the claim.44 We thus vacate the district court’s judgment,
and dismiss this appeal for lack of subject matter jurisdiction.
Vacated and dismissed.
42
State v. Gales, 269 Neb. 443, 694 N.W.2d 124 (2005).
43
See Henderson, supra note 19.
44
Id.