J.S. v. Grand Island Public Schools , 2017 Neb. LEXIS 135 ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/28/2017 09:08 AM CDT
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
J.S. v. GRAND ISLAND PUBLIC SCHOOLS
Cite as 297 Neb. 347
J.S., appellant, v. Grand Island
Public Schools, appellee.
___ N.W.2d ___
Filed July 28, 2017. No. S-16-875.
1. 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.
2. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, for which an appellate court has an obligation to reach
an independent conclusion irrespective of the decision made by the
court below.
3. Administrative Law: Judgments: Appeal and Error. A judgment or
final order rendered by a district court in a judicial review pursuant to
the Administrative Procedure Act may be reversed, vacated, or modified
by an appellate court for errors appearing on the record.
4. ____: ____: ____. When reviewing an order of a district court under
the Administrative Procedure Act for errors appearing on the record, the
inquiry is whether the decision conforms to the law, is supported by com-
petent evidence, and is neither arbitrary, capricious, nor unreasonable.
5. Jurisdiction: Appeal and Error. Before reaching the legal issues pre-
sented for review, it is the power and duty of an appellate court to deter-
mine whether it has jurisdiction over the matter before it, irrespective of
whether the issue is raised by the parties.
6. Jurisdiction: Service of Process: Parties. The voluntary appearance
of a party is equivalent to service of process for purposes of per-
sonal jurisdiction.
7. Jurisdiction: Words and Phrases. Personal jurisdiction is the power of
a tribunal to subject and bind a particular entity to its decisions.
8. ____: ____. Subject matter jurisdiction is the power of a tribunal to
hear and determine a case in the general class or category to which the
proceedings in question belong and to deal with the general subject mat-
ter involved.
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
J.S. v. GRAND ISLAND PUBLIC SCHOOLS
Cite as 297 Neb. 347
9. Jurisdiction. Parties cannot confer subject matter jurisdiction upon a
judicial tribunal by either acquiescence or consent, nor may subject mat-
ter jurisdiction be created by waiver, estoppel, consent, or conduct of
the parties.
10. Actions: Jurisdiction. Lack of subject matter jurisdiction may be raised
at any time by any party or by the court sua sponte.
11. ____: ____. A court action taken without subject matter jurisdiction
is void.
12. Statutes: Legislature: Intent. In construing a statute, a court must
determine and give effect to the purpose and intent of the Legislature
as ascertained from the entire language of the statute considered in its
plain, ordinary, and popular sense.
13. Appeal and Error. The right of appeal in Nebraska is purely statutory.
14. Statutes: Appeal and Error. Unless a statute provides for an appeal
from the decision of a quasi-judicial tribunal, such right does not exist.
15. Jurisdiction: Statutes: Appeal and Error. The requirements of a stat-
ute underlying a right to appeal are mandatory and must be complied
with before the appellate court acquires jurisdiction of the subject matter
of the action.
16. Actions: Jurisdiction: Appeal and Error. Where a district court has
statutory authority to review an action, the district court may acquire
jurisdiction only if the review is sought in the mode and manner and
within the time provided by statute.
17. Administrative Law: Schools and School Districts: Appeal and
Error. Appeals from the district court under the Student Discipline Act
are governed by the Administrative Procedure Act.
18. Administrative Law: Jurisdiction: Appeal and Error. The filing
of the petition and the service of summons are the two actions nec-
essary to establish the jurisdiction of the district court to review the
final decision of an administrative agency under the Administrative
Procedure Act.
Appeal from the District Court for Hall County: Teresa K.
Luther, Judge. Appeal dismissed.
Mitchell C. Stehlik, of Lauritsen, Brownell, Brostrom &
Stehlik, P.C., L.L.O., for appellant.
Jeanelle R. Lust and Paul B. Donahue, of Knudsen,
Berkheimer, Richardson & Endacott, L.L.P., for appellee.
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
J.S. v. GRAND ISLAND PUBLIC SCHOOLS
Cite as 297 Neb. 347
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Funke, J.
NATURE OF CASE
This case concerns a 15-day suspension of a student for a
post made on a social media website from her home that, in
part, caused a substantial disruption at her school. The super-
intendent and the school board each upheld the suspension.
On appeal under the Student Discipline Act, Neb. Rev. Stat.
§ 79-254 et seq. (Reissue 2014), the Hall County District Court
affirmed, finding the suspension did not exceed the authority
provided by §§ 79-264 and 79-267.
BACKGROUND
On Sunday, April 3, 2016, a group of students from Barr
Middle School (Barr), which is part of the Grand Island Public
Schools (GIPS), were communicating on a social media web-
site. A post was made anonymously: “Tomorrow gonna be
hella fire [fire emoji] be there (School).” This post was fol-
lowed by another anonymous post: “Don’t show up to school
tomorrow [gun emoji].” That evening, the Barr administration
was notified by the Grand Island Police Department of these
anonymous postings.
The following morning, April 4, 2016, extra security was
present at the school and the police and Barr staff searched the
school for any potential threats. During the morning, the school
received over 100 telephone calls from parents concerned
about safety. That day, 17 students were checked out of school
and four of them remained checked out on April 5.
Police and Barr staff conducted interviews of students to
identify who had made the anonymous postings. J.S., a stu-
dent at Barr, was one of the students interviewed. During
her interview, she admitted to making the “hella fire” post.
The post with the gun emoji was not made by J.S., and no
evidence was uncovered that she had any connection with the
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
J.S. v. GRAND ISLAND PUBLIC SCHOOLS
Cite as 297 Neb. 347
second post. Barr’s principal sent J.S. home and suspended
her for 15 days.
J.S. requested an administrative hearing to contest her
removal, which hearing was held on April 14, 2016.
At the administrative hearing, Barr’s principal testified that
when he talked with J.S. and her parents on April 4, 2016, she
stated that she did not know why she made the post or could
not explain it to them. He also stated that J.S.’ social media
posting was the sole reason for her removal from school and
that at the time of J.S.’ removal, there were no further threats
to the safety of other students by her.
J.S. testified that on Sunday evening, April 3, 2016, she was
at home using her cell phone to communicate with other stu-
dents on a social media website. The context of the discussion,
when she made her post, was about skipping school the next
day. She explained that “hella fire” means “good” or “cool.”
Accordingly, she stated that her post was a sarcastic statement
that school would be good or cool the next day and that the
other students should be there.
After the administrative hearing, the superintendent of GIPS
upheld J.S.’ suspension. J.S. next appealed to the GIPS board
of education (Board). In May 2016, the Board held a hearing
and also upheld the suspension.
J.S. timely filed a petition with the district court to appeal
the Board’s decision. After the filing of the petition, the
Board filed a voluntary appearance, under Neb. Rev. Stat.
§ 25-516.01 (Reissue 2016). Specifically, the voluntary appear-
ance stated, “[GIPS] acknowledges receipt of the [petition],
enters its Voluntary Appearance . . . , and waives service of
Summons pursuant to Neb.Rev.Stat. § 79-289.” The record
does not show that the Board was ever served with a copy of
the petition.
After a hearing, the court affirmed J.S.’ 15-day suspen-
sion, stating that it did not exceed the authority provided by
§§ 79-264 and 79-267. The court reasoned that J.S.’ posting
was open to several interpretations, including one of violence,
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
J.S. v. GRAND ISLAND PUBLIC SCHOOLS
Cite as 297 Neb. 347
and that it in fact prompted a posting that could also be con-
sidered threatening or violent. Therefore, it found that “[J.S.’]
posting on social media set in motion a series of events that
cause[d] substantial disruption to the school environment.”
J.S. appealed.
ASSIGNMENT OF ERROR
J.S. assigns, restated, that the district court erred in affirming
her suspension.
STANDARD OF REVIEW
[1] A jurisdictional question which does not involve a fac-
tual dispute is determined by an appellate court as a matter
of law.1
[2] Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an inde-
pendent conclusion irrespective of the decision made by the
court below.2
[3,4] A judgment or final order rendered by a district court
in a judicial review pursuant to the Administrative Procedure
Act (APA) may be reversed, vacated, or modified by an appel-
late court for errors appearing on the record.3 When reviewing
an order of a district court under the APA for errors appearing
on the record, the inquiry is whether the decision conforms to
the law, is supported by competent evidence, and is neither
arbitrary, capricious, nor unreasonable.4
ANALYSIS
[5] Before reaching the legal issues presented for review,
it is the power and duty of an appellate court to determine
1
Medicine Creek v. Middle Republican NRD, 296 Neb. 1, 892 N.W.2d 74
(2017).
2
Estermann v. Bose, 296 Neb. 228, 892 N.W.2d 857 (2017).
3
Medicine Creek, supra note 1.
4
Id.
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
J.S. v. GRAND ISLAND PUBLIC SCHOOLS
Cite as 297 Neb. 347
whether it has jurisdiction over the matter before it, irrespec-
tive of whether the issue is raised by the parties.5
On appeal, a show cause order was issued ordering the
parties to provide authority to the court showing that the dis-
trict court obtained subject matter jurisdiction over the matter
under § 79-289. GIPS argues that the district court lacked
subject matter jurisdiction because a party cannot voluntarily
confer subject matter jurisdiction on a court,6 while J.S. asserts
that the Legislature allows courts to acquire subject matter
jurisdiction over a party by its compliance with § 25-516.01.
Further, J.S. contends that GIPS’ voluntary appearance waived
summons and acknowledged that it had obtained a copy of the
petition, so § 79-289 was satisfied.
[6,7] To support her contention, J.S. points us to
§ 25-516.01(1), which states that “[t]he voluntary appearance
of the party is equivalent to service.” However, we have held
that the voluntary appearance of a party is equivalent to serv­
ice of process for purposes of personal jurisdiction.7 Personal
jurisdiction is the power of a tribunal to subject and bind a
particular entity to its decisions.8
[8-11] Subject matter jurisdiction is the power of a tri-
bunal to hear and determine a case in the general class or
category to which the proceedings in question belong and to
deal with the general subject matter involved.9 Parties can-
not confer subject matter jurisdiction upon a judicial tribunal
by either acquiescence or consent, nor may subject mat-
ter jurisdiction be created by waiver, estoppel, consent, or
5
Cl. Ch. v. First Nat. Bank of Omaha, 296 Neb. 632, 895 N.W.2d 284
(2017).
6
Concordia Teachers College v. Neb. Dept. of Labor, 252 Neb. 504, 563
N.W.2d 345 (1997).
7
Burns v. Burns, 293 Neb. 633, 879 N.W.2d 375 (2016).
8
Abdouch v. Lopez, 285 Neb. 718, 829 N.W.2d 662 (2013).
9
In re Estate of Evertson, 295 Neb. 301, 889 N.W.2d 73 (2016).
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
J.S. v. GRAND ISLAND PUBLIC SCHOOLS
Cite as 297 Neb. 347
conduct of the parties.10 Lack of subject matter jurisdiction
may be raised at any time by any party or by the court sua
­sponte.11 A court action taken without subject matter jurisdic-
tion is void.12
Section 79-289(1) sets forth that proceedings for review
under the Student Discipline Act pursuant to §§ 79-288 to
79-292 shall be instituted by filing a petition in the dis-
trict court of the county where the action is taken within 30
days after the service of the final decisions by the school
board or board of education under §§ 79-286 and 79-287.
Further, § 79-289(3) requires that “[s]ummons shall be served
as in other actions, except that a copy of the petition shall be
served upon the board together with the summons.” (Emphasis
supplied.)
[12] We have held that in construing a statute, a court must
determine and give effect to the purpose and intent of the
Legislature as ascertained from the entire language of the stat-
ute considered in its plain, ordinary, and popular sense.13
[13-16] The right of appeal in Nebraska is purely statu­
tory.14 Unless a statute provides for an appeal from the deci-
sion of a quasi-judicial tribunal, such right does not exist.15
The requirements of the statute are mandatory and must be
complied with before the appellate court acquires jurisdiction
of the subject matter of the action.16 Where a district court has
statutory authority to review an action, the district court may
10
Id.
11
Id.
12
Id.
13
Concordia Teachers College, supra note 6.
14
Heckman v. Marchio, 296 Neb. 458, 894 N.W.2d 296 (2017).
15
Gage Cty. Bd. v. Nebraska Tax Equal. & Rev. Comm., 260 Neb. 750, 619
N.W.2d 451 (2000).
16
Boone Cty. Bd. v. Nebraska Tax Equal. & Rev. Comm., 9 Neb. Ct. App. 298,
611 N.W.2d 119 (2000).
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
J.S. v. GRAND ISLAND PUBLIC SCHOOLS
Cite as 297 Neb. 347
acquire jurisdiction only if the review is sought in the mode
and manner and within the time provided by statute.17
[17,18] Appeals from the district court under the Student
Discipline Act are governed by the APA.18 The filing of the
petition and the service of summons are the two actions
necessary to establish the jurisdiction of the district court to
review the final decision of an administrative agency under
the APA.19
In Concordia Teachers College v. Neb. Dept. of Labor,20 we
considered an appeal under the APA. In doing so, we reviewed
the language of Neb. Rev. Stat. § 84-917(2)(a) (Reissue 1994),
which provided in pertinent part:
Proceedings for review shall be instituted by filing a
petition in the district court of the county where the
action is taken within thirty days after the service of
the final decision by the agency. . . . Summons shall
be served within thirty days of the filing of the petition
in the manner provided for service of a summons in a
civil action.
We held that in giving the statute its plain, ordinary, and
popular sense, it was apparent that the Legislature intended
that a summons be served within 30 days of the filing of
the petition for review as a prerequisite to the exercise by
the district court of its jurisdiction over the subject matter
on an appeal from an adverse decision of an administra-
tive agency.21
The record indicated that the appellant in Concordia
Teachers College filed an amended petition, but failed to
17
See, Butler Cty. Sch. Dist. v. Freeholder Petitioners, 283 Neb. 903, 814
N.W.2d 724 (2012); Essman v. Nebraska Law Enforcement Training Ctr.,
252 Neb. 347, 562 N.W.2d 355 (1997).
18
J.P. v. Millard Public Schools, 285 Neb. 890, 830 N.W.2d 453 (2013).
19
Essman, supra note 17.
20
Concordia Teachers College, supra note 6.
21
Id.
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
J.S. v. GRAND ISLAND PUBLIC SCHOOLS
Cite as 297 Neb. 347
serve the summons within 30 days and served it on the wrong
entity. We determined that the appellant failed to invoke the
subject matter jurisdiction of the district court.22 As a result,
the district court did not acquire authority to review a labor
commissioner’s ruling under the APA.23
Similarly, in the instant case, the record indicates that J.S.
timely filed her petition with the district court. However, she
failed to serve a summons and a copy of the petition upon the
Board. As a result, only one of the two actions required by
§ 79-289 was accomplished. J.S.’ failure to comply with the
statutory requirements prevented the district court from obtain-
ing subject matter jurisdiction, and as a result, its decision
was void.
CONCLUSION
J.S. failed to seek district court review in the mode and
manner provided by statute. By failing to serve the summons
and a copy of the petition upon the Board, she failed to timely
petition for review. The district court lacked subject matter
jurisdiction under the Student Discipline Act. We likewise lack
subject matter jurisdiction, and we dismiss J.S.’ appeal for
lack of jurisdiction.
A ppeal dismissed.
22
Id.
23
Id.