Champion v. Hall County , 309 Neb. 55 ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/29/2021 08:07 AM CDT
- 55 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CHAMPION v. HALL COUNTY
Cite as 309 Neb. 55Eddy Champion and Fraternal Order of
Police Lodge No. 78, appellants, v.
Hall County, Nebraska,
et al., appellees.
___ N.W.2d ___
Filed April 23, 2021. No. S-20-481.
1. Jurisdiction: Appeal and Error. A jurisdictional question that 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 indepen-
dent of the lower court’s decision.
2. Statutes: Appeal and Error. The right of appeal in this state is purely
statutory; unless a statute provides for an appeal from the decision of a
quasi-judicial tribunal, such right does not exist.
3. Judgments: Final Orders: Jurisdiction: Appeal and Error.
Proceedings in error under Neb. Rev. Stat. §§ 25-1901 to 25-1908
(Reissue 2016 & Cum. Supp. 2020) provide a means of judicial review
of the judgments and final orders of tribunals exercising judicial func-
tions and inferior in jurisdiction to the district court.
4. Judgments: Final Orders: Appeal and Error. A petition in error in the
district court to review a judgment or final order of an inferior tribunal
is in its nature an independent proceeding having for its purpose the
removal of the record from an inferior to a superior tribunal to deter-
mine whether the judgment or final order entered is in accordance with
the law.
5. Appeal and Error: Words and Phrases. A petition in error is the
removal of proceedings from one court or tribunal to another for review.
6. Judgments: Appeal and Error. A petition in error is designed to review
the decision of the inferior tribunal and is not to act as a super legisla-
tive or administrative agency to come to an independent conclusion.
7. Administrative Law. When exercising rulemaking, administrative agen-
cies act in a quasi-legislative capacity.
- 56 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CHAMPION v. HALL COUNTY
Cite as 309 Neb. 558. ____. When administrative agencies are called upon to make factual
determinations and thus adjudicate, they act in a quasi-judicial capacity.
9. ____. When any tribunal, board, or officer is required to conduct a hear-
ing and receive evidence, it exercises “judicial functions” in determining
questions of fact.
10. ____. If the decision made by any tribunal, board, or officer is purely
discretionary after an evaluation of facts, it is a decision of policy or a
political decision rather than judicial.
11. Administrative Law: Words and Phrases. A function is quasi-judicial
when the law, in words or by implication, commits to any officer the
duty of looking into facts, and acting upon them, not in a way which it
specifically directs, but after a discretion in its nature judicial.
12. Administrative Law: Appeal and Error. The mere act of deciding
a question of adjudicative fact after an evidentiary hearing, when the
law has not contemplated the entity and any power to exercise judicial
functions, does not render any tribunal’s, board’s, or officer’s decision
reviewable in district court by petition in error.
13. Judgments: Final Orders. Only when the law, by word or implication,
authorizes the judicial function will the result of that exercise be either
a “judgment rendered” or “final order” for purposes of Neb. Rev. Stat.
§ 25-1901 (Reissue 2016).
14. Actions: Words and Phrases. The term “action” is a comprehensive
one, and is applicable to almost any proceeding in a court of justice by
which an individual pursues that remedy which the law affords.
15. Final Orders: Words and Phrases. A “special proceeding” occurs
where the law confers a right and authorizes a special application to a
court to enforce the right.
16. Contracts: Legislature: Administrative Law: Judgments: Final
Orders: Jurisdiction: Appeal and Error. Regardless of whether col-
lective bargaining is generally legislatively authorized, the adjudicatory
procedures set forth in a collective bargaining agreement for a commit-
tee that was never expressly contemplated by the Legislature do not
establish any tribunal, board, or officer inferior in jurisdiction to the
district court, which is capable of rendering judgments and final orders
in the exercise of judicial functions for purposes of review by petition
in error.
Appeal from the District Court for Hall County: John H.
Marsh, Judge. Affirmed.
Thomas P. McCarty, of Keating, O’Gara, Nedved & Peter,
P.C., L.L.O., for appellants.
- 57 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CHAMPION v. HALL COUNTY
Cite as 309 Neb. 55Ashley H. Connell and Erin Ebeler Rolf, of Woods &
Aitken, L.L.P., for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
I. NATURE OF CASE
The question presented in this appeal is whether a grievance
committee of a county with fewer than 150,000 inhabitants
exercised “judicial functions” for purposes of the petition in
error statute, 1 when, after a hearing involving the presentation
of sworn testimony and other evidence, conducted pursuant to
procedures in the applicable collective bargaining agreement
giving the aggrieved party the right to an evidentiary hearing,
the committee decided, under largely undisputed facts, that
the managerial and disciplinary rights of the applicable collec-
tive bargaining agreement permitted the director of the county
department of corrections to exclude a correctional officer from
working overtime unarmed transport shifts, as a consequence
of a prior disciplinary action removing that officer from trans-
port duty. The district court held that it lacked jurisdiction over
the petition in error, because no statute specifically requires
an evidentiary hearing before such a grievance committee and
the grievance committee decided matters of law concerning
the meaning of the collective bargaining agreement rather than
matters of disputed fact.
II. BACKGROUND
Eddy Champion, a corrections officer with the Hall County
Department of Corrections (Department), filed a grievance
in relation to the denial of overtime working unarmed trans-
port after Champion was subjected to discipline that included
the indefinite removal from “transport duty.” The parties
1
Neb. Rev. Stat. § 25-1901 (Reissue 2016).
- 58 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CHAMPION v. HALL COUNTY
Cite as 309 Neb. 55followed the grievance procedures set forth as part of a col-
lective bargaining agreement between the Department, as the
employer, and the Fraternal Order of Police Lodge No. 78
(FOP), as representative of employee correctional officers and
corporals of the Department. The collective bargaining agree-
ment was signed by the president of the FOP and the chair­
person of the Hall County Board of Corrections and Hall
County Board of Supervisors. Following an evidentiary hear-
ing before the Hall County Grievance Committee (Grievance
Committee) and its written decision denying the grievance,
Champion filed a petition in error, which the district court dis-
missed for lack of jurisdiction.
1. Disciplinary Action
On January 18, 2019, following an administrative hearing,
the director of the Department (Director) disciplined Champion
for sending 48 fellow employees a post on social media he
had written alluding to a “‘story’” he had to tell about the
Department’s lying to employees’ families and tricking them in
order to get information and “‘what they want.’” This revolved
around the Department’s attempt to get employees’ family
members’ contact information in order to plan a surprise appre-
ciation project for its officers.
The Director determined that the post sent to fellow employ-
ees was in violation of the staff code of conduct provision that
states, “Staff shall refrain from participating in the spreading
of rumors, innuendo, or other unfounded information which
may have a hurtful or negative effect on other employees, the
Department or any county agency.”
As part of Champion’s discipline, he was “removed from
transport duty indefinitely effective immediately.”
2. Management and Disciplinary Rules Under
Collective Bargaining Agreement
In taking this disciplinary measure, the Director relied
on article 3 of the collective bargaining agreement, which
- 59 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CHAMPION v. HALL COUNTY
Cite as 309 Neb. 55provided: “All management rights, functions, responsibilities
and authority not specifically limited by the express terms of
this Agreement are retained by the Employer and remain exclu-
sively within the rights of the Employer.”
This article further specified that management rights
included, but were “not limited” to,
[t]he right to direct and arrange working forces including
the right to hire, examine, classify, promote or not to pro-
mote, train, transfer, assign, and retain employees; main-
tain discipline and control and use of Department prop-
erty; suspend, demote, discharge or take other disciplinary
action against employees; and to relieve employees from
duty due to lack of work, lack of funds, a decision to
subcontract or discontinue Department operations or other
legitimate reasons.
The rights identified in article 3 “are not in any way intended
to be exclusive, but are merely intended to illustrate the rights
retained by the Employer.”
The Director also relied on article 11 of the collective bar-
gaining agreement, which gives the Director the “full discre-
tion and authority to impose disciplinary action.”
Article 11 lists progressive discipline measures that “may
be used, depending on the particular situation and severity
of the infraction.” These begin with an oral warning and end
with suspension. They do not specify a restriction from cer-
tain duties.
Article 11 provides: “In most instances this procedure shall
be followed. However, in instances of flagrant or repeated vio-
lations suspension or termination may be used.” But article 11
then continues:
The . . . Director and the Employer reserves [sic] the
right to investigate, make judgments, and take appropriate
disciplinary action in each individual incident. The level
of severity of any infraction and the level and type of dis-
cipline to be imposed is solely at the discretion of the . . .
Director and the Employer.
- 60 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CHAMPION v. HALL COUNTY
Cite as 309 Neb. 553. Grievance
Champion did not file a grievance immediately from this
disciplinary action. However, he subsequently filed an infor-
mal, and later a formal, grievance in relation to the denial of
overtime for unarmed transport shifts that the Director denied
pursuant to the disciplinary action.
(a) General Grievance Procedure Under
Collective Bargaining Agreement
Grievance procedures set forth in the collective bargain-
ing agreement state that they must begin with an informal
resolution process involving a problem-solving meeting. If
the aggrieved party is not satisfied with the response from the
informal resolution process, the aggrieved party may submit
the problem, in writing, to the Director, who must respond in
writing within 14 days. Thereafter, the aggrieved party may
present the appealed grievance to the Grievance Committee.
Under the collective bargaining agreement, the Grievance
Committee is to consist of two or more members of the Hall
County Board of Corrections appointed by the county board
chairperson.
(b) Factual Allegations
Champion’s grievance alleged that on February 1, 2019,
an overtime requirement for an unarmed transport position
developed and was posted in advance. Champion was the most
senior officer to request to work the shift, but was denied the
opportunity. At the time of the grievance, Champion had been
denied a total of two unarmed transport shifts for which he was
the most senior officer to sign up.
(c) Overtime Provisions of Collective
Bargaining Agreement
Champion asserted that these denials violated article 22,
section 7, of the collective bargaining agreement. Article
22, section 7, provides: “When an overtime requirement is
- 61 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CHAMPION v. HALL COUNTY
Cite as 309 Neb. 55identified in advance, the Department may post the opening
and allow staff to sign up. The senior officer will be scheduled
and expected to work the overtime.”
Champion asserted that the Director lacked the power under
the collective bargaining agreement to remove him from trans-
port duty, because the “disciplinary actions” described in arti-
cle 11 therein referred only to oral warnings, written warnings,
suspension without pay, suspensions with pay, and discharge.
They did not refer to the removal of what Champion described
as “negotiated contractual benefits and rights.” Further,
Champion asserted that the overtime provision of article 22,
section 7, was an express term of the agreement that specifi-
cally limited the Director’s management rights.
Champion sought to distinguish armed transport postings
from unarmed transport officer postings, stating:
To be sure, [the] Director . . . generally had the right
to reassign . . . Champion to a post other than his armed
transport post. And, this was a significant change for . . .
Champion, who was assigned to the armed transport post
following testing and a competitive selection process. By
assigning . . . Champion back to a non-transport post,
[the] Director . . . placed . . . Champion in the same
position as other officers who are not armed transport
officers; and all of those other officers not assigned as
armed transport officers have the right to work unarmed
transport officer overtime shifts based upon seniority.
Champion also thought it arbitrary and capricious to deprive
him from working as an unarmed transport officer, because
it had no logical relationship with the actions for which he
was disciplined.
(d) Director’s Denial of Grievance
On March 15, 2019, the Director denied the formal griev-
ance. The Director noted that transport duty is considered to
be a “‘plum’” position that was appropriate to take away in
light of the seriousness of Champion’s inappropriate behavior.
- 62 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CHAMPION v. HALL COUNTY
Cite as 309 Neb. 55And other overtime, not involving transport duties, was still
available to Champion.
4. Grievance Committee Review
Champion and the FOP appealed to the Grievance Committee
and sought a hearing pursuant to article 8, section 4, of the bar-
gaining agreement.
(a) Committee Review Procedures Under
Collective Bargaining Agreement
The collective bargaining agreement sets forth that the
Grievance Committee shall consist of two or more members of
the Hall County Board of Corrections appointed by the county
board chairperson. A meeting of the Grievance Committee
shall take place in a timely manner after the notice of appeal,
and it shall furnish the aggrieved party of its disposition in
writing within 14 days.
The agreement further states: “At a grievance hearing held
at the request of an employee,” certain procedures “will be
used.” These include that the hearing will be conducted by
an attorney who will serve as the hearings officer, who “will
be responsible for insuring that the evidence is presented in
an orderly fashion and that all participants are treated with
respect.” The aggrieved party shall present evidence first, with
the employer able to ask questions of the aggrieved party or the
aggrieved party’s witness at the end of the aggrieved party’s
presentation. The employer shall then present evidence, and
the aggrieved party may ask questions of the employer or its
witnesses. Both parties shall designate one person to speak
on their behalf and to ask questions of the other party or wit-
nesses, and the parties may give a brief statement summarizing
their respective positions at the end of the presentation of all
the evidence. The Grievance Committee “shall not ask ques-
tions but may, through the Hearings Officer, ask for clarifica-
tion of statements or evidence.” At the end of the hearing, the
Grievance Committee “shall privately deliberate” before issu-
ing its written decision concerning the grievance.
- 63 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CHAMPION v. HALL COUNTY
Cite as 309 Neb. 55(b) Joint Stipulation of Facts
Before the scheduled hearing, the parties filed with the
Grievance Committee a joint stipulation of facts. They stip­
ulated that the collective bargaining agreement was in effect
and applied to Champion. They stipulated that before January
18, 2019, Champion worked as a corrections officer with the
additional duty of armed transport. To qualify to work as armed
transport, Champion had been selected through an examination
process that included competitive testing and psychological
examination. The parties stipulated that on several occasions
beginning on or about February 1, Champion was the most
senior correctional officer to request to work overtime trans-
port shifts made generally available to the “day shift” officers
after the overtime had first been offered to and declined by
the armed transport officers. But he was denied the overtime.
A total of 76.5 overtime hours were at issue, and the parties
agreed as to the rate of compensation for those hours in the
event the Grievance Committee found Champion was entitled
to them.
(c) Hearing
The Grievance Committee held a hearing on May 22, 2019.
At the hearing, Champion offered exhibit 1, a copy of the
stipulated facts, along with its attachments “A” through “D,”
which represented the collective bargaining agreement, the
Director’s predisciplinary letter, the final disposition of dis-
ciplinary action, and the appeal letter. Champion also offered
exhibit 2, which contained emails reflecting denials of over-
time. Pursuant to a joint stipulation, the exhibits were received.
Champion called several witnesses, including himself, who
were sworn in before testifying at the hearing.
(i) Champion’s Testimony
In addition to the facts stated in the stipulation and the his-
torical facts reflected in the exhibits, Champion testified that
from 2010 to 2016, he had been assigned to a full-time trans-
port officer post with the Department. He had to go through
- 64 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CHAMPION v. HALL COUNTY
Cite as 309 Neb. 55a special interview and training process to qualify for that posi-
tion, because it entailed carrying a weapon.
After 2016, there was less demand for transport and he was
reassigned “back to shift,” though he still worked some armed
transport duties. Champion explained that as an armed trans-
port officer, an unarmed transport officer sometimes accompa-
nied him. Champion described that there always had to be at
least two corrections officers for transports, but only one had
to be armed.
(ii) FOP President’s Testimony
The FOP president, a fellow corrections officer, also testi-
fied on behalf of Champion. He testified that in his experience
as the vice president and then president of the FOP for the prior
5 years, he was unaware of overtime ever being denied as part
of a disciplinary action.
(iii) Director’s Testimony
Champion called the Director to testify, who acknowledged
that the overtime in question was available to every regular
corrections officer on the day shift with the sole exception
of Champion. Champion is the only officer the Director has
removed from a transport position and the only person whose
discipline has involved the denial of overtime related to cer-
tain duties.
The Director described that nontransport officers during
their regular shifts often do unarmed transport duties. The
Director stated that while he considered employment termina-
tion as a possible sanction for Champion’s behavior, he decided
against it. And he was unable to consider a general demotion,
because Champion did not hold any rank. He did not believe
a suspension to be adequate, because it lasts a short period of
time and is soon forgotten. So, the Director decided that the
removal from certain duties was an appropriate compromise
short of termination of employment and similar to demotion.
He wanted to send a message not just to Champion, but to
other employees.
- 65 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CHAMPION v. HALL COUNTY
Cite as 309 Neb. 55While the disciplinary letter did not specifically refer to
overtime, the Director saw no distinction between Champion’s
regular shifts and overtime work in relation to the discipli­
nary prohibition of working transport. The Director observed
that when he suspends an employee, that employee cannot get
around the financial consequences of that discipline by work-
ing overtime while suspended.
(iv) Opening and Closing Arguments
Both parties made opening and closing arguments at the
hearing.
Champion argued that article 11 of the collective bargaining
agreement establishes a scheme of progressive discipline that
the Director failed to implement. Further, he argued that article
22, section 7, entitled him, as the senior officer signing up, to
posted overtime, without any express exception for discipli­
nary action. This, he argued, limited the Director’s manage-
ment rights.
Champion asserted that taking away the opportunity to work
overtime was not set forth in the bargaining agreement as a
disciplinary action and that if overtime could be taken away
as a matter of discipline, then so could things such as health
insurance or leave time. While Champion acknowledged that
the Director had the authority to generally reassign Champion
from transport duties, which is an armed transport position,
he argued that was different from depriving him of unarmed
transport overtime that has been made generally available to
day shift corrections officers who are not posted to transport.
Such overtime, he said, is merely a “ride along with the armed
transport officer.”
In its closing argument, the Department summarized that
the case came down to “a dispute of two facts,” which the
Department described as (1) whether the discipline was limited
to removing Champion from a transport “post” and (2) what
the Director’s management rights are.
The Department pointed out that the issue presented was
not whether disciplinary action was appropriate, which was
- 66 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CHAMPION v. HALL COUNTY
Cite as 309 Neb. 55not grieved. The Department described the transport work as
involving a lot of free time on the clock, and thus a “plum
position.” The discipline the Director imposed did not distin-
guish between armed and unarmed transport and was not lim-
ited to a transport “post,” which Champion did not in any event
have; rather, the disciplinary measure deprived Champion of
all transport duties.
The Department argued that the deprivation of the ability to
work transport duties, both armed and unarmed, both during
regular shifts and overtime, was an “effective way of man-
aging disciplinary problems.” The Department asserted that
while there was a list in the collective bargaining agreement
of some examples of acceptable disciplinary measures, noth-
ing therein limited managerial rights to traditional disciplinary
actions. To the contrary, the collective bargaining agreement
generally gave the Director sole discretion in determining
the level and type of discipline to be imposed. Finally, the
Department asserted that the Director acted reasonably in tak-
ing away transport duties as a means of imposing discipline
akin to demotion.
(d) Grievance Committee’s Decision
The Grievance Committee voted to enter into an execu-
tive session, following which the members voted to return to
regular session to vote. The Grievance Committee then unani-
mously voted that the Director acted within his rights pursu-
ant to the bargaining agreement. The Grievance Committee
issued a written decision on May 31, 2019, denying the
grievance and affirming the Department’s denial of the over-
time opportunities.
The Grievance Committee described in its decision that the
historical facts were not in dispute. And it specifically found
no merit to Champion’s argument that indefinite suspension
violated a progressive disciplinary scheme, noting that under
the bargaining agreement, such a scheme was discretionary.
The Grievance Committee made no findings regarding the
- 67 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CHAMPION v. HALL COUNTY
Cite as 309 Neb. 55intent of the parties in entering into the collective bargain-
ing agreement.
The Grievance Committee did, however, suggest that the
suspension from transport duty assignments be subject to
review by the Director after a specific period of time and that
his decision to continue the suspension or terminate employ-
ment should be communicated to Champion in writing.
5. Petition in Error
Champion and the FOP timely filed a petition in error with
the district court for Hall County, filing therewith a praecipe
for transcript and bill of exceptions in accordance with Neb.
Rev. Stat. § 25-1905 (Reissue 2016). The respondents were
named as Hall County, Nebraska; the Department; the Hall
County Board of Corrections; and the Grievance Committee
(collectively Hall County).
Champion and the FOP assigned as error the Grievance
Committee’s denial of his grievance in the following respects:
(1) failing to properly interpret, apply, and enforce article
22, section 7, of the collective bargaining agreement, which
entitled Champion, as the most senior officer, to work the
overtime shifts; (2) concluding that the Director had author-
ity under the bargaining agreement to bar an employee from
receiving the benefits of article 22, section 7, of the bargain-
ing agreement as a form of “disciplinary action” or “other
disciplinary action” under the bargaining agreement; (3) fail-
ing to define or interpret the bargaining agreement’s phrase
“disciplinary action” or “other disciplinary action” in article 3
as limited to traditional forms of disciplinary action, discipli­
nary actions expressly recognized under the bargaining agree-
ment, and disciplinary actions established by the past practice
and custom of the parties (none of which allegedly include
the denial of negotiated overtime rights); (4) interpreting the
management rights provisions in article 3 of the bargaining
agreement as superseding the overtime provisions in article
22, section 7, of the bargaining agreement; (5) failing to give
full force and effect to article 3’s limiting language that “[a]ll
- 68 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CHAMPION v. HALL COUNTY
Cite as 309 Neb. 55management rights, functions, responsibilities and authority
not specifically limited by the express terms of this Agreement
are retained by the Employer and remain exclusively within
the rights of the Employer”; (6) interpreting the disciplinary
provisions in article 11 of the bargaining agreement as super-
seding the overtime provisions in article 22, section 7, of the
bargaining agreement; (7) concluding that article 11 of the
bargaining agreement authorized the Director to bar Champion
from working the overtime shifts at issue; and (8) acting in an
arbitrary and capricious manner by disregarding the facts and
circumstances of the case and the substantive rules of the col-
lective bargaining agreement.
Hall County generally admitted all the factual allegations of
the petition that did not involve interpretation of the bargain-
ing agreement. As affirmative defenses, Hall County alleged
that the petition failed to state a claim upon which relief could
be granted, was barred by the doctrine of unclean hands,
and was barred by Champion and the FOP’s failure to miti-
gate damages.
The district court dismissed the petition in error for lack of
jurisdiction. The district court observed that review by petition
in error under § 25-1901 is for “[a] judgment rendered or final
order made by any tribunal, board, or officer exercising judi-
cial functions and inferior in jurisdiction to the district court . .
. .” Further, the district court noted that we have said any tribu-
nal, board, or officer exercises a judicial function if it decides
a dispute of adjudicative fact or if a statute requires it to act in
a judicial manner. 2
The court reasoned that no statute required the Grievance
Committee to act in a judicial manner. And, citing to Kropp
v. Grand Island Pub. Sch. Dist. No. 2 3 and Hawkins v.
2
Medicine Creek v. Middle Republican NRD, 296 Neb. 1, 892 N.W.2d 74(2017).
3
Kropp v. Grand Island Pub. Sch. Dist. No. 2, 246 Neb. 138, 517 N.W.2d
113 (1994).
- 69 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CHAMPION v. HALL COUNTY
Cite as 309 Neb. 55City of Omaha, 4 the district court reasoned that the Grievance
Committee did not in this instance decide a dispute of adjudi-
cative fact, because the facts were not in dispute and neither
party asserted that the collective bargaining agreement was
ambiguous. Instead, the Grievance Committee solely deter-
mined questions of law relating to the meaning of the collec-
tive bargaining agreement and its application to the undisputed
facts. Therefore, the Grievance Committee did not exercise
judicial functions.
Champion and the FOP appeal.
III. ASSIGNMENTS OF ERROR
Champion and the FOP assign that the district court erred
(1) in holding it had no jurisdiction over the petition in error,
“because the [Grievance] Committee was required, under a
bargaining agreement, to conduct an adversarial evidentiary
hearing and, in fact, did so,” and “in relying upon Kropp v.
Grand Island Pub. School Dist. No. 2, 246 Neb. 138, 517
N.W.2d 113 (1994) and Hawkins v. City of Omaha, 261
Neb. 943, 627 N.W.2d 118 (2001) to the extent this Court
determines overruling these cases is necessary to reverse the
District Court’s decision” and (2) “when it assumed, without
deciding, that the bargaining agreement is unambiguous and
that the [Grievance] Committee was not required to decide an
adjudicative fact.”
IV. STANDARD OF REVIEW
[1] A jurisdictional question that 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 inde-
pendent of the lower court’s decision. 5
4
Hawkins v. City of Omaha, 261 Neb. 943, 627 N.W.2d 118 (2001).
5
See McEwen v. Nebraska State College Sys., 303 Neb. 552, 931 N.W.2d
120 (2019).
- 70 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CHAMPION v. HALL COUNTY
Cite as 309 Neb. 55V. ANALYSIS
[2,3] The question presented in this appeal is whether the
district court had jurisdiction over Champion and the FOP’s
petition in error. The right of appeal in this state is purely
statutory; 6 unless a statute provides for an appeal from the
decision of a quasi-judicial tribunal, such right does not exist. 7
Proceedings in error under Neb. Rev. Stat. §§ 25-1901 to
25-1908 (Reissue 2016 & Cum. Supp. 2020) provide a means
of judicial review of the judgments and final orders of tribunals
exercising judicial functions and inferior in jurisdiction to the
district court. 8
[4] A petition in error in the district court to review a judg-
ment or final order of an inferior tribunal is in its nature an
independent proceeding having for its purpose the removal of
the record from an inferior to a superior tribunal to determine
whether the judgment or final order entered is in accordance
with the law. 9 Rather than a “review on appeal” under Neb.
Rev. Stat. §§ 25-1911 to 25-1937 (Reissue 2016 & Cum. Supp.
2020), 10 a petition in error is in the nature of a new action, in
that a petition in error is required to be perfected, with a sum-
mons required to be issued upon the written praecipe of the
petitioner in error. 11 The subjects of a review on petition in
error and an appeal are so distinctively different and dissimilar
that the provisions of the statute relating to each question can-
not be taken together and construed as if they were one law
and effect given to every provision. 12
6
Id.7
Id.8
Id.9
Id.10
See id.11
See id.12
From v. Sutton, 156 Neb. 411, 56 N.W.2d 441 (1953).
- 71 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CHAMPION v. HALL COUNTY
Cite as 309 Neb. 55[5,6] At the same time, a petition in error is not a right of
action and does not exist at common law. 13 It is a legislatively
created method of review. 14 Thus, a petition in error is in a
broader sense an appeal, because it is the removal of proceed-
ings from one court or tribunal to another for review. 15 The
reviewing court may reverse, vacate, or modify the lower judi-
cial tribunal’s judgment or final order for error on the record. 16
In an error proceeding in the district court, that court must look
to the transcript of the proceedings of the inferior tribunal filed
with the petition in error to ascertain what happened there. 17
Such a proceeding is ordinarily tried on the appropriate and
relevant questions of law, set out in the petition in error and
appearing in the transcript. 18 A petition in error is designed to
review the decision of the inferior tribunal and is not to act
as a super legislative or administrative agency to come to an
independent conclusion. 19
The governing petition in error statute, § 25-1901, provides
in full:
A judgment rendered or final order made by any tri-
bunal, board, or officer exercising judicial functions
and inferior in jurisdiction to the district court may be
reversed, vacated, or modified by the district court, except
that the district court shall not have jurisdiction over
(1) appeals from a juvenile court as defined in section
43-245, (2) appeals from a county court in matters aris-
ing under the Nebraska Probate Code or the Nebraska
13
See McEwen v. Nebraska State College Sys., supra note 5.
14
See id.15
See id.16
See § 25-1901, § 25-1911, and Neb. Rev. Stat. § 25-2733 (Reissue 2016).
See, also, McEwen v. Nebraska State College Sys., supra note 5.
17
In re Estate of Vance, 149 Neb. 220, 30 N.W.2d 677 (1948).
18
Id.19
Andrews v. City of Fremont, 213 Neb. 148, 328 N.W.2d 194 (1982).
- 72 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CHAMPION v. HALL COUNTY
Cite as 309 Neb. 55Uniform Trust Code, in matters involving adoption or
inheritance tax, or in domestic relations matters, or (3)
appeals within the jurisdiction of the Tax Equalization
and Review Commission.
The parties dispute in this appeal whether the Grievance
Committee was “exercising judicial functions.” But also neces-
sarily presented is whether the Grievance Committee was any
“tribunal, board, or officer . . . inferior in jurisdiction to the
district court.” Finally, under the plain language of § 25-1901,
the Grievance Committee’s decision must have been a “judg-
ment rendered” or “final order” for it to be subject to review by
a district court under a petition in error.
[7-10] We describe an inferior tribunal, board, or officer’s
rendition of a judgment or final order in the exercise of
judicial functions as being “quasi-judicial.” 20 An administra-
tive agency has been said to be a governmental authority,
other than a court and other than a legislative body, which
affects the rights of private parties through either adjudication
or rulemaking. 21 When exercising rulemaking, administrative
agencies act in a quasi-legislative capacity. 22 When adminis-
trative agencies are called upon to make factual determina-
tions and thus adjudicate, they act in a quasi-judicial capac­
ity. 23 We have explained that when any tribunal, board, or
officer is required to conduct a hearing and receive evidence,
it exercises “judicial functions” in determining questions of
fact. 24 In contrast, if the decision made by any tribunal,
20
See, e.g., In re Application of Olmer, 275 Neb. 852, 752 N.W.2d 124(2008); Nicholson v. Red Willow Cty. Sch. Dist. No. 0170, 270 Neb.
140, 699 N.W.2d 25 (2005); Singleton v. Kimball County Board of
Commissioners, 203 Neb. 429, 279 N.W.2d 112 (1979); Moser v. Turner,
180 Neb. 635, 144 N.W.2d 192 (1966).
21
State ex rel. Stenberg v. Murphy, 247 Neb. 358, 527 N.W.2d 185 (1995).
22
See id.23
See id.24
See Medicine Creek v. Middle Republican NRD, supra note 2.
- 73 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CHAMPION v. HALL COUNTY
Cite as 309 Neb. 55board, or officer is purely discretionary after an evaluation of
facts, it is a decision of policy or a political decision rather
than judicial. 25
[11] One of the considerations for a petition in error is
whether the decision being reviewed has taken place in a way
that would create a record for meaningful appellate review, 26
but we have explained that a function is not quasi-judicial
whenever a hearing is required by statute to ascertain some fact
relevant to the performance of a ministerial duty. 27 Instead, a
function is quasi-judicial when the law, in words or by implica-
tion, commits to any officer the duty of looking into facts, and
acting upon them, not in a way which it specifically directs, but
after a discretion in its nature judicial. 28
No statute contemplates the existence of a Grievance Com­
mittee, let alone commits to the Grievance Committee the
duty to act in a judicial manner. The County Civil Service
Commission Act 29 provides for a civil service commission
to hear appeals from any employee who is discharged, sus-
pended, or demoted in rank, 30 and the County Civil Service
Act 31 provides there “shall” be a personnel policy board that
has the power to review any grievance or case of discipli­
nary action of a classified service employee. 32 These acts,
25
See Sarpy Cty. Bd. of Comrs. v. Sarpy Cty. Land Reutil., 9 Neb. App. 552,
615 N.W.2d 490 (2000).
26
See Hawkins v. City of Omaha, supra note 4.
27
See Singleton v. Kimball County Board of Commissioners, supra note 20.
See, also, Little v. Board of County Commissioners, 179 Neb. 655, 140
N.W.2d 1 (1966).
28
State ex rel. School Dist. v. Ellis, 163 Neb. 86, 77 N.W.2d 809 (1956).
29
See Neb. Rev. Stat. §§ 23-401 to 23-418 (Cum. Supp. 2020).
30
§ 23-411.
31
Neb. Rev. Stat. §§ 23-2517 to 23-2533 (Reissue 2012 & Cum. Supp.
2020).
32
§ 23-2522(5).
- 74 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CHAMPION v. HALL COUNTY
Cite as 309 Neb. 55however, do not apply to counties such as Hall County with
fewer than 150,000 inhabitants. 33
Hall County is governed by Neb. Rev. Stat. §§ 23-2534to 23-2544 (Reissue 2012). Section 23-2534 describes that
the county board of any county with a population of less
than 150,000 inhabitants “may” adopt policies and procedures
pursuant to §§ 23-2534 to 23-2544 which concern employee
hiring, advancement, training, career development, position
classification, salary administration, fringe benefits, discharge,
and other related activities. It also “may” have a personnel
policy board that, if established, “shall” review any grievance
or case of disciplinary action of a classified service employee
when appealed by such employee in accordance with approved
personnel rules and regulations and issue a determination that
is binding on all parties concerned. 34
The Grievance Committee is not Hall County’s personnel
board. Thus, Champion and the FOP do not rely on §§ 23-2534
to 23-2544 for the source of the Grievance Committee’s judi-
cial power.
Champion and the FOP instead direct us to the county
board’s general, statutorily conferred powers to enter into con-
tracts in relation to its concerns 35 and Nebraska’s Industrial
Relations Act, 36 pursuant to which Champion and the FOP
assert the Hall County Board of Supervisors, as the collec-
tive bargaining agent, 37 entered into the collective bargaining
agreement that specified the adjudicatory procedures utilized.
Champion and the FOP then direct us to our prior state-
ment that any tribunal, board, or officer exercises a judicial
33
§ 23-2518(2).
34
§ 23-2538(5).
35
Neb. Rev. Stat. §§ 23-103 and 23-104 (Reissue 2012).
36
Neb. Rev. Stat. §§ 48-801 to 48-839 (Reissue 2010 & Cum. Supp. 2020).
37
§ 48-838.
- 75 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CHAMPION v. HALL COUNTY
Cite as 309 Neb. 55function if a statute requires it to act in a judicial manner or if
it decides a dispute of adjudicative fact. 38
Hall County does not contest that it had the legislatively
conferred power to enter into the collective bargaining agree-
ment, but argues that such conferral was insufficient to estab-
lish the Grievance Committee as having a statutory obligation
to act in a judicial manner. Relying on the same proposition as
Champion and the FOP, Hall County states its decision was not
reviewable unless it decided questions of adjudicative facts.
Champion and FOP’s disagreement centers on whether the
Grievance Committee actually decided adjudicative facts.
But we find that the decisive question of appellate juris-
diction is not whether the Grievance Committee decided
any question of adjudicative fact. The threshold question is
whether the Legislature conferred quasi-judicial power in the
first instance. If it did not, then the Grievance Committee’s
decision, even if of adjudicative facts, was not a judgment
rendered or final order made by any tribunal, board, or officer
exercising judicial functions and inferior in jurisdiction to the
district court.
[12] Our statement referring to deciding a dispute of adju-
dicative fact or a statute requiring an entity to act in a judicial
manner has been made in contexts where a law contemplated
the tribunal, board, or officer in question. The mere act of
deciding a question of adjudicative fact after an evidentiary
hearing, when the law has not contemplated the entity and
any power to exercise judicial functions, does not render any
tribunal’s, board’s, or officer’s decision reviewable in district
court by petition in error. That would be an act of self-creation
at odds with the concepts set forth in § 25-1901 of judgments,
final orders, inferiority in jurisdiction to the district court, and
judicial functions.
38
See Medicine Creek v. Middle Republican NRD, supra note 2. See, also,
Hawkins v. City of Omaha, supra note 4.
- 76 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CHAMPION v. HALL COUNTY
Cite as 309 Neb. 55[13-15] Only when the law, by word or implication, autho-
rizes the judicial function will the result of that exercise be
either a “judgment rendered” or “final order” for purposes
of § 25-1901. A “judgment” is defined by Neb. Rev. Stat.
§ 25-1301(1) (Cum. Supp. 2018) as “the final determination
of the rights of the parties in an action.” The term “action” is
a comprehensive one, and is applicable to almost any proceed-
ing in a court of justice by which an individual pursues that
remedy which the law affords. 39 A “final order” is defined by
§ 25-1902 as follows:
(a) An order affecting a substantial right in an action,
when such order in effect determines the action and pre-
vents a judgment;
(b) An order affecting a substantial right made during a
special proceeding;
(c) An order affecting a substantial right made on
summary application in an action after a judgment is
entered; and
(d) An order denying a motion for summary judgment
when such motion is based on the assertion of sovereign
immunity or the immunity of a government official.
There is no “final order” unless it is made either in the context
of an action or a special proceeding. A “special proceeding”
occurs where the law confers a right and authorizes a special
application to a court to enforce the right. 40 A special proceed-
ing includes every special statutory remedy that is not in itself
an action. 41
Entities thus cannot confer upon themselves the power to
render a “judgment” or “final order” reviewable by a district
court through an action for petition in error. The law must
confer it. And the statutes upon which Champion and the
39
Gibson v. Sidney, 50 Neb. 12, 69 N.W. 314 (1896) (emphasis supplied).
40
In re Claim of Roberts for Attorney Fees, 307 Neb. 346, 949 N.W.2d 299(2020) (emphasis supplied).
41
Id.- 77 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CHAMPION v. HALL COUNTY
Cite as 309 Neb. 55FOP rely for the conferral of quasi-judicial power upon the
Grievance Committee have too tenuous a connection to the
Grievance Committee and its designated functions for its deci-
sions to be within the purview of the petition in error statutes.
The county’s adoption of mandatory adjudicatory procedures
in its exercise of a broad, discretionary authority to enter into
collective bargaining agreements is not the equivalent of the
law conferring a remedy to enforce a right.
We observe that in Kropp v. Grand Island Pub. Sch. Dist.
No. 2, 42 the statutorily conferred power was the ability to enter
into collective bargaining agreements for the administration of
grievances arising under the terms and conditions of employ-
ment, and we decided that because the school board grievance
committee was not required by statute to act in a judicial man-
ner and did not decide a question of adjudicatory fact, there
was no petition in error jurisdiction. We also observe that in the
case of Turnbull v. County of Pawnee, 43 the Nebraska Court of
Appeals held that because the county board of commissioners
decided questions of adjudicative fact, there was jurisdiction
under petition in error to review a decision of the board deny-
ing a grievance in accordance with procedures established by a
collective bargaining agreement.
We do not view these cases as apposite to the case at bar.
There is no statute that the parties direct us to that specifically
contemplates, through collective bargaining or otherwise, the
determinations of grievances by Hall County employees. And,
unlike the Grievance Committee, the Legislature has specifi-
cally contemplated boards of commissioners. 44 We disapprove
of Turnbull to the extent it is inconsistent with this opinion.
[16] We hold that regardless of whether collective bar-
gaining is generally legislatively authorized, the adjudicatory
42
Kropp v. Grand Island Pub. Sch. Dist. No. 2, supra note 3.
43
Turnbull v. County of Pawnee, 19 Neb. App. 43, 810 N.W.2d 172 (2011).
44
See Neb. Rev. Stat. § 23-297 (Reissue 2012).
- 78 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CHAMPION v. HALL COUNTY
Cite as 309 Neb. 55procedures set forth in a collective bargaining agreement for
a committee that was never expressly contemplated by the
Legislature do not establish any tribunal, board, or officer
inferior in jurisdiction to the district court, which is capable of
rendering judgments and final orders in the exercise of judicial
functions for purposes of review by petition in error. In such
a case, the law, in words or by implication, has not committed
to any entity the duty of looking into facts, and acting upon
them, after a discretion that is in its nature judicial. Because
no statute expressly contemplates the Grievance Committee, its
decision was not reviewable by petition in error. Accordingly,
the district court did not err when it dismissed the present peti-
tion in error for lack of jurisdiction.
VI. CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district court.
Affirmed.