Swicord v. Police Stds. Adv. Council , 314 Neb. 816 ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/28/2023 09:06 AM CDT
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
SWICORD V. POLICE STDS. ADV. COUNCIL
Cite as 314 Neb. 816Kendel Blake Swicord, appellant, v. Nebraska
Police Standards Advisory Council and
Nebraska Commission on Law Enforcement
and Criminal Justice, also known as
Nebraska Crime Commission, appellees.
___ N.W.2d ___
Filed July 28, 2023. No. S-22-648.
1. Judgments: Jurisdiction: Appeal and Error. A jurisdictional issue that
does not involve a factual dispute presents a question of law, which an
appellate court independently decides.
2. Administrative Law: Statutes: Appeal and Error. The meaning and
interpretation of statutes and regulations are questions 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. Jurisdiction: Appeal and Error. It is the power and duty of an appel-
late court to determine whether it has jurisdiction over the matter before
it, irrespective of whether the parties raise the issue.
4. Appeal and Error. In Nebraska, the right to appeal is purely statutory
in that the right to appeal does not exist unless a statute provides for
an appeal.
5. 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 over the subject
matter of the action.
6. Jurisdiction: Appeal and Error. If the court from which an appeal
was taken lacked jurisdiction, then the appellate court acquires no
jurisdiction.
7. Administrative Law: Parties: Jurisdiction: Appeal and Error. The
requirements contained in Neb. Rev. Stat. § 84-917(2)(a)(i) (Cum.
Supp. 2022) are prerequisites to vest the district court with subject
matter jurisdiction under the Administrative Procedure Act, and a
petitioner’s failure to make all parties of record to the proceedings for
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314 Nebraska Reports
SWICORD V. POLICE STDS. ADV. COUNCIL
Cite as 314 Neb. 816review means jurisdiction to hear the petition never vested with the
district court.
Appeal from the District Court for Hall County: Ryan C.
Carson, Judge. Appeal dismissed.
Steven M. Delaney and Megan E. Shupe, of Reagan, Melton
& Delaney, L.L.P., for appellant.
Michael T. Hilgers, Attorney General, and Elizabeth O. Gau
for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Funke, Papik,
and Freudenberg, JJ., and Lux, D.J.
Heavican, C.J.
INTRODUCTION
Kendel Blake Swicord petitioned the district court for
review under Neb. Rev. Stat. § 84-917 (Cum. Supp. 2022)
of the Administrative Procedure Act (APA) of an order of
the Nebraska Police Standards Advisory Council (Council)
that, ultimately, denied him admission into the basic offi-
cer certification training at the Nebraska Law Enforcement
Training Center (Training Center). The district court affirmed
the order of the Council. Swicord appeals from that order
under Neb. Rev. Stat. § 84-918 (Reissue 2014). Because we
conclude that the district court lacked jurisdiction to review
Swicord’s denial of admission into basic training, we dismiss
Swicord’s appeal.
BACKGROUND
The Seward County sheriff’s office hired Swicord as a
noncertified conditional law enforcement officer. Swicord was
previously a certified law enforcement officer in the State
of Georgia. The Seward County sheriff applied, on behalf
of Swicord, for “Reciprocity Certification [training] in lieu
of attending Basic Officer Certification [training]” at the
Training Center. That application was denied by the director
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314 Nebraska Reports
SWICORD V. POLICE STDS. ADV. COUNCIL
Cite as 314 Neb. 816of the Training Center (Director) and upheld by the Council.
Swicord was found to lack good character because he could
not be characterized as being truthful, honest, or trustworthy
due to the fact that he knowingly made false statements on his
application. Swicord petitioned the district court for review
of the decision of the Council under the APA. We ultimately
upheld that denial in Swicord v. Police Stds. Adv. Council
(Swicord I). 1
The issue in Swicord I centered around Swicord’s answers
to certain questions on his application regarding professional
licenses or certifications. These questions included whether
Swicord had “ever, either as an adult or juvenile, been cited,
arrested, charged, or convicted for a violation of any law”
and if Swicord “ever had a professional license that you hold
be under investigation?” Although Swicord answered these
questions in the negative, he, in fact, had been arrested for
alleged battery in January 2018, for which he completed a
pretrial diversion program, and the “Georgia Peace Officer
Standards and Training Council” had voted to revoke Swicord’s
law enforcement certification in December 2018 after an inter-
nal affairs investigation revealed he had violated agency poli-
cies and had displayed a lack of veracity during an internal
investigation. Swicord also failed to disclose these facts in the
personal character affidavit included in his application for reci-
procity training.
After the Council heard Swicord’s reciprocity application
appeal, the sheriff asked the Director whether Swicord was
“wasting his time” if he applied for basic training. During this
discussion, the Director told the sheriff that Swicord should
answer “yes” to those same questions, but the Director did
not directly answer the question posed. Before the resolu-
tion of judicial review of Swicord’s denial of his reciprocity
application, he applied for admission into basic training at
1
Swicord v. Police Stds. Adv. Council, 309 Neb. 43, 958 N.W.2d 388(2021).
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SWICORD V. POLICE STDS. ADV. COUNCIL
Cite as 314 Neb. 816the Training Center. This time, Swicord answered “yes” to
the pertinent questions in his application as directed by the
sheriff. Pursuant to 79 Neb. Admin. Code, ch. 8, § 005.05
(2005), the sheriff verified that a thorough background inves-
tigation was conducted and that he determined Swicord met
the minimum standards for admission, including that Swicord
demonstrated good character.
After reviewing Swicord’s application packet and conducting
further investigation into Swicord’s background, the Director
denied Swicord’s application for admission. The Director spec-
ified that Swicord could not be characterized as being honest,
truthful, or trustworthy based on the false statements he made
on his application for reciprocity training. The Director also
specified that revocation proceedings for Swicord’s Georgia
law enforcement certification were presently pending. Swicord
appealed the Director’s decision to the Council under 79 Neb.
Admin. Code, ch. 13 (2005). 2
After Swicord had submitted his appeal of the Director’s
denial of admission to basic training, he resigned as a noncer-
tified conditional law enforcement officer, but continued his
employment with the Seward County sheriff’s office in a civil-
ian capacity.
Upon Swicord’s request, the Council stayed the basic train-
ing appeal pending resolution of the judicial review of the
denial of Swicord’s reciprocity application. After we upheld
the denial of Swicord’s reciprocity application in Swicord I, the
Council held a hearing on Swicord’s appeal of the Director’s
denial of his application for entrance to basic training.
After the hearing, the Council found, in part, that (1)
Swicord should be expected to understand the importance of
being honest and truthful, (2) his dishonest behavior surround-
ing his reciprocity application was recent, (3) he failed to
accept responsibility for his prior actions, (4) he demonstrated
2
Compare 79 Neb. Admin. Code, ch. 13, § 4.02, with 79 Neb. Admin. Code
ch. 8, § 9 (2005).
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SWICORD V. POLICE STDS. ADV. COUNCIL
Cite as 314 Neb. 816a lack of honesty and truthfulness at the hearing before the
Council related to the status of his certification in Georgia,
and (5) although he presented a multitude of references that
endorsed his general character, they did not address the lack
of honesty and truthfulness that Swicord had shown before
the Council. The Council concluded that Swicord could not
be characterized as being honest, truthful, and trustworthy and
had failed to meet his burden by clear and convincing evidence
that he possessed good character. The Council affirmed the
Director’s denial of Swicord’s application for entrance into
basic training for failing to meet the minimum requirements
for admission.
Swicord petitioned the district court for review under
§ 84-917 of the APA. Swicord argued that the sheriff was the
only person authorized by regulation to conduct a background
investigation and that, in essence, the sheriff’s character deter-
mination was binding on the Council. In addition, Swicord
argued that the Council failed to properly consider his applica-
tion for entrance into basic training.
On its review de novo on the record, the district court
rejected Swicord’s arguments. The court concluded that
although the sheriff was primarily responsible for conducting
a background investigation, the determination of Swicord’s
character was subject to further inquiry by the Director, and
that the final decision rested with the Council. In addition, the
court found that in reaching its conclusion, the Council inde-
pendently reviewed the evidence and evaluated the credibility
of witnesses before it. Ultimately, the court concluded that
Swicord did not meet the mandatory admission requirements
and affirmed the Council’s order.
Swicord filed a timely appeal, and we moved this case to our
docket. 3 Before hearing arguments in this case, we requested
the parties to submit supplemental briefs that addressed
3
See, Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2022); Neb. Ct. R. App. P.
§ 2-102(C) (2022).
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SWICORD V. POLICE STDS. ADV. COUNCIL
Cite as 314 Neb. 816whether judicial review under the APA was proper, particularly
whether the proceeding before the Council was a contested
case. Both parties submitted supplemental briefs, which we
have considered.
ASSIGNMENTS OF ERROR
Swicord assigns that the district court erred by conclud-
ing that (1) the Director did not usurp the sheriff’s authority
to conduct a background investigation and (2) the Council
properly evaluated all mitigating factors concerning his
application.
STANDARD OF REVIEW
[1,2] A jurisdictional issue that does not involve a factual
dispute presents a question of law, which an appellate court
independently decides. 4 The meaning and interpretation of stat-
utes and regulations are questions of law for which an appel-
late court has an obligation to reach an independent conclusion
irrespective of the decision made by the court below. 5
ANALYSIS
[3] It is the power and duty of an appellate court to deter-
mine whether it has jurisdiction over the matter before it, irre-
spective of whether the parties raise the issue. 6 Accordingly,
before turning to the merits of Swicord’s appeal, we must first
consider whether we have jurisdiction of this matter.
[4-6] In Nebraska, the right to appeal is purely statutory in
that the right to appeal does not exist unless a statute provides
for an appeal. 7 In order for this court to have jurisdiction
over an appeal, appellate jurisdiction must be specifically
4
In re Interest of K.C., 313 Neb. 385, 984 N.W.2d 277 (2023).
5
State v. Sullivan, 313 Neb. 293, 983 N.W.2d 541 (2023).
6
County of Lancaster v. County of Custer, 313 Neb. 622, 985 N.W.2d 612(2023).
7
See Heckman v. Marchio, 296 Neb. 458, 894 N.W.2d 296 (2017).
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SWICORD V. POLICE STDS. ADV. COUNCIL
Cite as 314 Neb. 816provided by the Legislature. 8 The requirements of a statute
underlying a right to appeal are mandatory and must be com-
plied with before the appellate court acquires jurisdiction
over the subject matter of the action. 9 If the court from which
an appeal was taken lacked jurisdiction, then the appellate
court acquires no jurisdiction. 10 Consequently, if the district
court failed to have jurisdiction over Swicord’s petition, then
this court likewise lacks jurisdiction over his appeal.
Having asked for briefs and having focused the parties on
whether the Council’s decision was made “in a contested case,”
we choose to leave such analysis for a more appropriate future
case. An appellate court is not obligated to engage in an analy-
sis that is not necessary to adjudicate the case and controversy
before it. 11 Upon our review of the record, we conclude that
§ 84-917(2) is dispositive of the jurisdictional question. Hence,
we do not determine whether the Council’s decision was “in a
contested case.”
Our review of the record shows that the district court lacked
jurisdiction over Swicord’s petition for review because he
failed to include all parties of record.
Amended in 2020, § 84-917(2)(a)(i) provides in relevant part:
All parties of record shall be made parties to the pro-
ceedings for review. A party of record for district court
proceedings for review shall include any person who
appeared either personally or through an attorney, who
was a participant in the agency’s contested hearing, and
who was treated as a party by the agency’s hearing offi-
cer. If an agency’s only role in a contested case is to act
as a neutral factfinding body, the agency shall not be a
8
Id. See Neb. Const. art. V, § 2.
9
Omaha Expo. & Racing v. Nebraska State Racing Comm., 307 Neb. 172,
949 N.W.2d 183 (2020).
10
County of Lancaster v. County of Custer, supra note 6.
11
Charter West Bank v. Riddle, ante p. 263, 989 N.W.2d 428 (2023).
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SWICORD V. POLICE STDS. ADV. COUNCIL
Cite as 314 Neb. 816party of record. In all other cases, the agency shall be a
party of record.
[7] We have held that the requirements contained in
§ 84-917(2)(a)(i) are prerequisites to vest the district court
with subject matter jurisdiction under the APA and that a peti-
tioner’s failure to make all parties of record to the proceedings
for review means jurisdiction to hear the petition never vested
with the district court. 12 In that way, although we have used the
term “necessary parties,” the inclusion of the proper parties of
record is a matter of “indispensable parties.” 13
Under 79 Neb. Admin. Code, ch. 13, § 004.02A, “[a]n
aggrieved individual and or [law enforcement] agency may
appeal decisions of the Director related to admission to train-
ing, certification status, and discipline.” The appeal must be
first presented to the Director by submitting a written “request
for review and reconsideration” and “a proposed resolution”
for the Director’s consideration. 14 After investigating and
considering the written request and proposed resolution, the
Director must “provide a written decision.” 15 That decision
of the Director may then be appealed to the Council. 16 “The
issues presented to the Council on appeal [are] limited to those
raised in the request for review and reconsideration . . . and
the Director’s written decision in response.” 17 Additionally,
“[t]he Director or his/her designee shall respond to [the appel-
lant’s] arguments” before the Council. 18 Thereafter, the Council
12
See, Omaha Expo. & Racing v. Nebraska State Racing Comm., supra note
9; Kozal v. Nebraska Liquor Control Comm., 297 Neb. 938, 902 N.W.2d
147 (2017).
13
See Omaha Expo. & Racing v. Nebraska State Racing Comm., supra note
9 (citing cases).
14
79 Neb. Admin. Code, ch. 13, § 004.02C.
15
Id., § 004.02D.
16
Id., § 004.02E.
17
Id., § 004.02G.
18
Id., § 004.02H.
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Cite as 314 Neb. 816“shall affirm, modify or deny” the Director’s decision, and
“[t]he decision of the Council is final.” 19
The administrative record shows that the Director needed to
be included as a party of record under § 84-917(2)(a)(i). At the
hearing on Swicord’s appeal from the Director’s denial of his
application for entrance into basic training, the Director was
present and represented by counsel. The Director’s counsel
made an opening statement, cross-examined Swicord’s wit-
nesses, presented evidence, and made a closing argument.
Since the Director appeared, participated, and was treated as
a party at the hearing before the Council, the Director was
required to be made a party to the district court proceedings
for review under § 84-917(2). Accordingly, because Swicord
failed to properly make the Director a party to the proceedings
for review, the district court lacked subject matter jurisdiction
to consider Swicord’s petition.
CONCLUSION
Because the district court lacked jurisdiction, we acquired
no jurisdiction, and Swicord’s appeal must be dismissed.
Appeal dismissed.
Stacy, J., not participating.
19
Id., § 004.02J. See id., § 004.02H.