Kozal v. Nebraska Liquor Control Comm.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/09/2017 09:13 AM CST
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
KOZAL v. NEBRASKA LIQUOR CONTROL COMM.
Cite as 297 Neb. 938Stuart Kozal, doing business as Jumping Eagle Inn,
et al., appellees and cross-appellees, v. Nebraska
Liquor Control Commission, appellant, and
A bram Neumann et al., appellees
and cross-appellants.
___ N.W.2d ___
Filed September 29, 2017. No. S-17-441.
1. Judgments: Jurisdiction: Appeal and Error. Determination of a juris-
dictional issue which does not involve a factual dispute is a matter of
law which requires an appellate court to reach its conclusions indepen-
dent from a trial court.
2. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, it is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it.
3. ____: ____. Where a lower court lacks subject matter jurisdiction to
adjudicate the merits of a claim, issue, or question, an appellate court
also lacks the power to determine the merits of the claim, issue, or ques-
tion presented to the lower court.
4. ____: ____. When an appellate court is without jurisdiction to act, the
appeal must be dismissed. However, an appellate court has the power to
determine whether it lacks jurisdiction over an appeal because the lower
court lacked jurisdiction to enter the order; to vacate a void order; and,
if necessary, to remand the cause with appropriate directions.
5. Administrative Law: Liquor Licenses: Judgments: Appeal and
Error. Under the Nebraska Liquor Control Act, an order of the Nebraska
Liquor Control Commission granting, denying, suspending, cancel-
ing, revoking, or renewing or refusing to suspend, cancel, revoke, or
renew a license may be appealed in accordance with the Administrative
Procedure Act.
6. Administrative Law: Final Orders: Appeal and Error. Under the
Administrative Procedure Act, any person aggrieved by a final decision
in a contested case may obtain judicial review in district court.
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Nebraska Supreme Court A dvance Sheets
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KOZAL v. NEBRASKA LIQUOR CONTROL COMM.
Cite as 297 Neb. 9387. Administrative Law: Courts: Appeal and Error. An Administrative
Procedure Act proceeding in district court for review of a decision by an
administrative agency is not an “appeal” in the strict sense of the term,
meaning the power and authority conferred upon a superior court to
reexamine and redetermine causes tried in inferior courts, but, rather, is
the institution of a suit to obtain judicial branch review of a nonjudicial
branch decision.
8. Administrative Law: Judgments: Appeal and Error. In an
Administrative Procedure Act review proceeding, the district court
reviews the agency’s decision de novo on the record of the agency and
may affirm, reverse, or modify the decision of the agency or remand the
case for further proceedings.
9. ____: ____: ____. The Administrative Procedure Act provides that a
party initiating review in the district court must do so by filing a peti-
tion in the district court of the county where the action is taken within
30 days of service of the agency’s final decision and that all parties of
record shall be made parties to the proceedings for review.
10. Administrative Law: Jurisdiction: Appeal and Error. Where a dis-
trict court has statutory authority to review an action of an adminis-
trative agency, the district court may acquire jurisdiction only if the
review is sought in the mode and manner and within the time provided
by statute.
11. Administrative Law: Parties: Jurisdiction: Appeal and Error. The
Administrative Procedure Act’s requirement that a petitioner make all
parties of record in the agency proceeding parties to the proceeding
for review is necessary to confer subject matter jurisdiction on the dis-
trict court.
12. Administrative Law: Parties: Appeal and Error. Because the
Administrative Procedure Act is a procedural statute that applies to a
variety of agencies and types of agency proceedings, determining which
parties qualify as “parties of record” requires looking at the nature of
the administrative proceeding under review.
13. Legislature: Statutes: Intent. The Legislature may limit the scope of a
statutory definition to a particular section, act, or chapter.
14. Administrative Law: Liquor Licenses: Parties: Appeal and Error.
Neb. Rev. Stat. § 53-1,115 (Reissue 2010) defines which parties qual-
ify as “parties of record” in proceedings of the Nebraska Liquor
Control Commission and thus must be included in the district court’s
Administrative Procedure Act review of the commission’s proceedings.
15. Statutes: Intent. When interpreting a statute, the starting point and
focus of the inquiry is the meaning of the statutory language, understood
in context.
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
KOZAL v. NEBRASKA LIQUOR CONTROL COMM.
Cite as 297 Neb. 93816. ____: ____. A court ascertains the meaning of a statute by reading it
in pari materia, in light of the broader structure of the relevant act and
related statutes.
17. Statutes: Legislature: Intent. Where appropriate, a court may consider
legislative history in order to better understand a statute’s context.
18. Statutes. It is a fundamental rule of statutory interpretation that courts
should, if possible, avoid any interpretation that renders a portion of the
statute as superfluous.
19. Statutes: Words and Phrases. A statutory definition of a term found in
one statute may be considered when interpreting that same term as used
in a different statute.
20. Administrative Law: Parties: Jurisdiction: Appeal and Error. The
failure to make a party of record in the agency proceedings a party to the
proceedings for review as required by the Administrative Procedure Act
is a failure to seek review in the mode and manner provided by statute
that deprives the district court of jurisdiction.
Appeal from the District Court for Lancaster County:
A ndrew R. Jacobsen, Judge. Vacated and dismissed.
Douglas J. Peterson, Attorney General, James D. Smith, and
Milissa D. Johnson-Wiles for appellant.
David A. Domina, of Domina Law Group, P.C., L.L.O., for
appellees Abram Neumann et al.
Andrew W. Snyder, of Chaloupka, Holyoke, Snyder,
Chaloupka & Longoria, P.C., L.L.O., for appellees Stuart
Kozal, doing business as Jumping Eagle Inn, et al.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Wright, J.
NATURE OF CASE
The often unremarkable process of renewing a liquor license
has involved considerable controversy for the four beer retail-
ers in this case. These retailers are located in the unincor-
porated border town of Whiteclay, Nebraska, which is just
across the state line from the Pine Ridge Indian Reservation
in South Dakota, where the sale and consumption of alcohol is
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
KOZAL v. NEBRASKA LIQUOR CONTROL COMM.
Cite as 297 Neb. 938prohibited. The Nebraska Liquor Control Commission
(Commission) denied the retailers’ license renewal applica-
tions. Pursuant to the Administrative Procedure Act (APA),1
the retailers petitioned for review to the Lancaster County
District Court, which vacated the Commission’s order. The
Commission and some of the citizen objectors appealed.
Our decision today does not address the merits of the par-
ties’ respective positions, but rests solely on jurisdictional
grounds. To obtain judicial review of an administrative agen-
cy’s order under the APA, a party must include all “parties
of record”2 from the agency proceeding. Under the Nebraska
Liquor Control Act,3 local residents who formally object to the
issuance of a liquor license (citizen objectors) are “parties of
record” in the licensure proceeding before the Commission.
In this case, when they sought review in the district court,
the retailers failed to include the citizen objectors. Thus, the
retailers did not comply with the requirements for judicial
review under the APA and the district court lacked jurisdic-
tion over the retailers’ petition for review. Because the district
court lacked jurisdiction, its order is void and we lack juris-
diction over this appeal from the district court. We vacate the
district court’s order and dismiss this appeal.
BACKGROUND
The appellees, Stuart Kozal, doing business as Jumping
Eagle Inn; Arrowhead Inn, Inc., doing business as Arrowhead
Inn; Clay Brehmer and Daniel Brehmer, doing business as
State Line Liquor; and Sanford Holdings, L.L.C., doing busi-
ness as D & S Pioneer Services (collectively the retailers), held
Class B liquor licenses, authorizing them to sell packaged beer
for consumption off the premises.4 The Commission required
the retailers to submit “long form” applications to renew their
1
Neb. Rev. Stat. §§ 84-901 to 84-920 (Reissue 2014 & Cum. Supp. 2016).
2
See § 84-917.
3
Neb. Rev. Stat. §§ 53-101 to 53-1,122 (Reissue 2010 & Cum. Supp. 2016).
4
See § 53-124(6)(a)(ii).
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KOZAL v. NEBRASKA LIQUOR CONTROL COMM.
Cite as 297 Neb. 938liquor licenses rather than allowing them to use the “short
form” automatic renewal process.
After the retailers submitted their applications, the
Commission received 13 written objections from citizens of
Sheridan County, protesting the renewal of the retailers’ licenses.
That number was later reduced to 12 when the Commission
determined in a prehearing order that one of the objectors was
not a resident of Sheridan County. Under § 53-133(1)(h), the
filing of “objections in writing by not less than three persons
residing within such city, village, or county, protesting the issu-
ance of the license” triggers a requirement that the Commission
hold a hearing on the contested applications.
The hearing was held on April 6, 2017. On April 19,
the Commission voted to deny the retailers’ applications and
issued a written order detailing its findings of fact and conclu-
sions of law on April 24.
The following day, the retailers filed a petition, pursuant to
§ 84-917 of the APA, in the Lancaster County District Court.5
The retailers argued that the Commission’s requirement that
they file “long form” applications and the denial of those
applications was arbitrary and capricious and contrary to the
Nebraska Liquor Control Act and the rulings of this court.
But in seeking review in the district court, the retailers failed
to make the citizen objectors parties to the petition for review
under the APA.
The retailers simultaneously filed a motion to stay the
Commission’s order during the pendency of the review, which
order was set to go into effect on April 30, 2017. A hearing
was scheduled and held on April 26 in the Lancaster County
District Court. Notice of the hearing was given only to the
assistant attorney general representing the Commission. The
only attorneys appearing at the hearing were those for the
retailers and the Commission. The citizen objectors were not
included at any point in the district court proceedings.
5
See § 53-1,116.
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KOZAL v. NEBRASKA LIQUOR CONTROL COMM.
Cite as 297 Neb. 938On April 27, 2017, the district court entered an order. In spite
of holding a hearing and receiving arguments on the motion to
stay, the district court ruled on the merits of the case. The dis-
trict court, relying on this court’s holdings in Pump & Pantry,
Inc. v. City of Grand Island 6 and Grand Island Latin Club v.
Nebraska Liq. Cont. Comm.,7 vacated the Commission’s order
and remanded the cause to the Commission with instructions
to allow the retailers to renew their licenses through the “short
form” automatic renewal process.
On April 27, 2017, the same day as the district court’s
order, the Commission appealed the order. We moved the
appeal from the Nebraska Court of Appeals’ docket to this
court’s docket.8
On May 26, 2017 (more than 30 days after the Commission’s
order but less than 30 days after the district court’s order), four
of the citizen objectors, represented by counsel, filed a notice
of appeal from the district court’s order. These citizen objectors
argued that they were “parties of record” in the Commission’s
licensure proceeding, but were not made parties to the APA
review in the district court. We docketed this appeal together
with the Commission’s appeal, designating the citizen objec-
tors as appellees and cross-appellants.
ASSIGNMENTS OF ERROR
The Commission and the citizen objectors claim the district
court lacked subject matter jurisdiction to enter its order vacat-
ing the Commission’s order.
STANDARD OF REVIEW
[1] Determination of a jurisdictional issue which does not
involve a factual dispute is a matter of law which requires an
6
Pump & Pantry, Inc. v. City of Grand Island, 233 Neb. 191, 444 N.W.2d
312 (1989).
7
Grand Island Latin Club v. Nebraska Liq. Cont. Comm., 251 Neb. 61, 554
N.W.2d 778 (1996).
8
See Neb. Rev. Stat. § 24-1106(3) (Reissue 2016).
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KOZAL v. NEBRASKA LIQUOR CONTROL COMM.
Cite as 297 Neb. 938appellate court to reach its conclusions independent from a
trial court.9
ANALYSIS
[2-4] Before reaching the legal issues presented for review,
it is the duty of an appellate court to determine whether it
has jurisdiction over the matter before it.10 Where a lower
court lacks subject matter jurisdiction to adjudicate the merits
of a claim, issue, or question, an appellate court also lacks
the power to determine the merits of the claim, issue, or
question presented to the lower court.11 When an appellate
court is without jurisdiction to act, the appeal must be dis-
missed.12 However, an appellate court has the power to deter-
mine whether it lacks jurisdiction over an appeal because the
lower court lacked jurisdiction to enter the order; to vacate a
void order; and, if necessary, to remand the cause with appro-
priate directions.13
[5] Under the Nebraska Liquor Control Act, an order of
the Commission “granting, denying, suspending, canceling,
revoking, or renewing or refusing to suspend, cancel, revoke,
or renew a license” may be appealed “in accordance with
the [APA].”14
[6-8] Under the APA, “[a]ny person aggrieved by a final
decision in a contested case” may obtain judicial review in
district court.15 An APA proceeding in district court for review
9
deNourie & Yost Homes v. Frost, 295 Neb. 912, 893 N.W.2d 669 (2017).
10
In re Interest of Luz P. et al., 295 Neb. 814, 891 N.W.2d 651 (2017).
11
See, Midwest Renewable Energy v. American Engr. Testing, 296 Neb.
73, 894 N.W.2d 221 (2017); In re Estate of Evertson, 295 Neb. 301, 889
N.W.2d 73 (2016); Conroy v. Keith Cty. Bd. of Equal., 288 Neb. 196, 846
N.W.2d 634 (2014).
12
In re Estate of Evertson, supra note 11; Conroy v. Keith Cty. Bd. of Equal.,
supra note 11.
13
Id.
14
§ 53-1,116.
15
§ 84-917(1).
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
KOZAL v. NEBRASKA LIQUOR CONTROL COMM.
Cite as 297 Neb. 938of a decision by an administrative agency is not an “appeal” in
the strict sense of the term, meaning “the power and authority
conferred upon a superior court to reexamine and redetermine
causes tried in inferior courts,” but, rather, is “the institution of
a suit to obtain judicial-branch review of a nonjudicial-branch
decision.”16 In an APA review proceeding, the district court
reviews the agency’s decision “de novo on the record of the
agency” and “may affirm, reverse, or modify the decision of
the agency or remand the case for further proceedings.”17
[9] The APA provides that a party initiating review in the
district court must do so “by filing a petition in the district
court of the county where the action is taken” within 30 days
of service of the agency’s final decision.18 It further provides
that “[a]ll parties of record shall be made parties to the pro-
ceedings for review.”19
[10,11] Where a district court has statutory authority to
review an action of an administrative agency, the district court
may acquire jurisdiction only if the review is sought in the
mode and manner and within the time provided by statute.20
We have held that the APA’s requirement that a petitioner make
all “parties of record” in the agency proceeding parties to the
proceeding for review is necessary to confer subject matter
jurisdiction on the district court.21
Here, the citizen objectors were “parties of record” in the
Commission’s proceeding. The retailers failed to include the
16
Glass v. Nebraska Dept. of Motor Vehicles, 248 Neb. 501, 506, 536
N.W.2d 344, 347 (1995).
17
§ 84-917(5)(a) and (6)(b).
18
§ 84-917(2)(a)(i).
19
Id.
20
See, J.S. v. Grand Island Public Schools, ante p. 347, 899 N.W.2d 893(2017); Nebraska Dept. of Health & Human Servs. v. Weekley, 274 Neb.
516, 741 N.W.2d 658 (2007).
21
See Shaffer v. Nebraska Dept. of Health & Human Servs., 289 Neb. 740,
857 N.W.2d 313 (2014).
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KOZAL v. NEBRASKA LIQUOR CONTROL COMM.
Cite as 297 Neb. 938citizen objectors in the district court’s review. The result is that
the district court never acquired subject matter jurisdiction to
review the Commission’s order.
[12] The citizen objectors were “parties of record” in the
Commission’s hearing on the retailers’ license applications.
While the APA provides some guidance for when an agency is
considered a “part[y] of record” that must be included in APA
review of that agency’s decision,22 it provides no guidance for
when a nonagency party is a “part[y] of record.” Nor does it
include an all-encompassing definition of “parties of record,”
applicable to every type of administrative proceeding. Because
the APA is a procedural statute that applies to a variety of
agencies and types of agency proceedings, determining which
parties qualify as “parties of record” requires looking at the
nature of the administrative proceeding under review.23
Here, we must look to the Nebraska Liquor Control Act,
which governs the Commission and its liquor license appli-
cation proceedings, in order to determine whether the citi-
zen objectors were “parties of record.” And we must look
to the proceedings in this case to see whether the citizen
objectors acted as parties and were treated as parties by the
Commission.
Nebraska Liquor Control Act Defines
Citizen Objectors as Parties
of R ecord
The Nebraska Liquor Control Act, in § 53-1,115,
defines which parties qualify as “part[ies] of record” in the
22
See § 84-917(2)(a)(i).
23
See, generally, Shaffer v. Nebraska Dept. of Health & Human Servs.,
supra note 21, 289 Neb. at 750, 857 N.W.2d at 321 (reviewing underlying
regulations for “State fair hearing” Medicaid coverage proceeding before
Department of Health and Human Services to determine whether Medicaid
provider was “party of record” for purposes of APA review); McDougle v.
State ex rel. Bruning, 289 Neb. 19, 853 N.W.2d 159 (2014).
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KOZAL v. NEBRASKA LIQUOR CONTROL COMM.
Cite as 297 Neb. 938Commission’s proceedings. It provides that “[i]n the case
of an administrative proceeding before the [C]ommission on
the application for a retail [liquor] license,” the “part[ies] of
record” include: the applicant, the local government (if it has
objected to the issuance of the license or requested a hearing),
the Commission itself, and each citizen objector.24 Thus, the act
itself defines citizen objectors as “part[ies] of record” in the
Commission’s license application proceedings.
[13,14] The retailers argue that the definition of a “party
of record” in § 53-1,115(4) “applies only to that particular
section.”25 Section 53-1,115(4) begins: “For purposes of this
section, party of record means . . . .” (Emphasis supplied.)
It is true that the Legislature may limit the scope of a statu-
tory definition to a particular section, act, or chapter.26 But
§ 53-1,115 defines which parties qualify as “part[ies] of
record” in the Commission’s proceedings. Thus, it defines
which parties are “parties of record” that must be included
in the district court’s APA review of the Commission’s
proceedings.
[15-17] When interpreting a statute, the starting point and
focus of the inquiry is the meaning of the statutory lan-
guage, understood in context.27 We ascertain the meaning of
a statute by reading it in pari materia,28 in light of the broader
24
§ 53-1,115(4)(a). See, also, § 53-133(1)(b).
25
Supplemental brief for appellees Kozal et al. at 3.
26
See, 2A Norman J. Singer and Shambie Singer, Statutes and Statutory
Construction § 47:7 (rev. 7th ed. 2014); Antonin Scalia & Bryan A.
Garner, Reading Law: The Interpretation of Legal Texts 225-33 (2012).
27
See, Doty v. West Gate Bank, 292 Neb. 787, 874 N.W.2d 839 (2016). See,
also, generally, Ross v. Blake, ___ U.S. ___, 136 S. Ct. 1850, 1856, 195
L. Ed. 2d 117 (2016) (“[s]tatutory interpretation, as we always say, begins
with the text”); State ex rel. Kalal v. Dane County, 271 Wis. 2d 633, 681
N.W.2d 110 (2004) (statutory language is interpreted in context in which
it is used); Scalia & Garner, supra note 26.
28
See Black’s Law Dictionary 911 (10th ed. 2014).
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KOZAL v. NEBRASKA LIQUOR CONTROL COMM.
Cite as 297 Neb. 938structure of the relevant act and related statutes.29 And where
appropriate, we may consider legislative history in order to
better understand a statute’s context.30
Our conclusion that the definition of “party of record” in
§ 53-1,115(4) controls for purposes of the APA’s require-
ment that “[a]ll parties of record shall be made parties to the
proceedings for review”31 in a review of the Commission’s
proceedings is confirmed by a closer look at that statute. First,
the definition of “party of record” was enacted in the very
same bill that amended the Nebraska Liquor Control Act to
allow for review of the Commission through the APA.32 Prior
to that bill, § 53-1,116 provided for review through petition
in error33 and expressly stated that the APA did not apply.34
The fact that the Legislature adopted the definition of “party
of record” in § 53-1,115(4)—a key term of art in the APA—
in the very same bill in which it adopted APA review of the
Commission’s orders, leads to the conclusion that the defini-
tion in § 53-1,115(4) is the controlling definition of “party
of record” for purposes of APA review of the Commission’s
proceedings.
Second, the legislative history of the bill in which the “party
of record” definition was adopted in § 53-1,115 indicates that
29
See, e.g., King v. Burwell, ___ U.S. ___, 135 S. Ct. 2480, 2492, 192
L. Ed. 2d 483 (2015) (relying on “‘the fundamental canon of statutory
construction that the words of a statute must be read in their context and
with a view to their place in the overall statutory scheme’”); County of
Webster v. Nebraska Tax Equal. & Rev. Comm., 296 Neb. 751, 896 N.W.2d
887 (2017).
30
See, generally, Matter of Sinclair, 870 F.2d 1340, 1342 (7th Cir. 1989)
(“[c]larity [of a statute] depends on context, which legislative history may
illuminate”); Doe v. McCoy, ante p. 321, 899 N.W.2d 899 (2017).
31
See § 84-917(2)(a)(i).
32
See 1999 Neb. Laws, L.B. 267.
33
See Neb. Rev. Stat. §§ 25-1901 to 25-1910 (Reissue 2016).
34
§ 53-1,116(1) (Reissue 1998) (“[t]he [APA] shall not apply to review
under this section”).
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Cite as 297 Neb. 938the definition applies to APA review. The bill as introduced
would have placed in § 53-1,115 both the definition of “party
of record” in the Commission’s proceedings and the provision
providing for APA review of the Commission’s proceedings.35
The bill was later amended so that the APA review provision
would be placed in § 53-1,116.36 This amendment made a
variety of changes, which, in the words of the amendment’s
introducer, “[we]re technical and intend[ed] for the purpose
of clarifying the provisions of [the bill].”37 Thus, the sec-
tion originally referred to by the language “[f]or purposes of
this section” included the provision regarding APA review of
the Commission’s orders.38 And the legislative history indi-
cates that the amendment which moved the APA provision
to the following section was not intended to change the fact
that the definition of “party of record” would apply to APA
review of the Commission’s proceedings.39 Thus, § 53-1,115
defines who are “parties of record” in a hearing before the
Commission that the APA requires be made parties to the pro-
ceeding for review.
For purposes of defining who are “parties of record” in a
hearing before the Commission, § 53-1,115 defines such par-
ties and § 53-1,116 provides that any order of the Commission
may be appealed in accordance with the APA.
[18] Third, the definition of “party of record” in § 53-1,115
includes the Commission itself.40 If the definition of “party
of record” for the Commission’s proceedings had no appli-
cation to APA review of those proceedings, it would seem
35
Introduced Copy, L.B. 267, General Affairs Committee, 96th Leg., 1st
Sess. 42-45 (Jan. 11, 1999).
36
See Legislative Journal, 96th Leg., 1st Sess. 1446 (Apr. 14, 1999).
37
Floor Debate, 96th Leg., 1st Sess. 5655-56 (May 3, 1999) (Senator Charlie
Janssen).
38
See Introduced Copy, supra note 35.
39
See Floor Debate, supra note 37.
40
§ 53-1,115(4)(a)(iv) and (c)(ii).
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Cite as 297 Neb. 938odd that the Commission is defined as a party of record.
Section 53-1,115(1) through (3) addresses which parties are
entitled to receive notice of the Commission’s order, have the
right to move for rehearing, and may be assessed costs. The
Commission has no need to give itself notice of the hearings
it conducts, to move itself for rehearing, or to assess costs
against itself. To strictly limit the application of the defini-
tion of “party of record” in § 53-1,115(4) to that section alone
would render the definition of the Commission as a “party of
record” as superfluous. It is a fundamental rule of statutory
interpretation that courts should, if possible, avoid any inter-
pretation that renders a portion of the statute as superfluous.41
But the inclusion of the Commission as a “party of record”
in § 53-1,115(4) makes much more sense if that definition
applies not only to that section, but also to APA review of the
Commission’s proceedings.
[19] And even if we were to read the phrase “[f]or purposes
of this section” in § 53-1,115(4) such that the definition of
“party of record” did not expressly apply beyond § 53-1,115,
it could still be viewed as persuasive evidence of the mean-
ing of “parties of record” as used in the APA and applied to
review of the Commission’s proceedings. A statutory defini-
tion of a term found in one statute may be considered when
interpreting that same term as used in a different statute.42
41
See, State v. Artis, 296 Neb. 172, 893 N.W.2d 421 (2017), modified on
denial of rehearing 296 Neb. 606, 894 N.W.2d 349; Scalia & Garner,
supra note 26, 174-79 (discussing surplusage canon).
42
Matter of J.M.M., 890 N.W.2d 750, 754 (Minn. App. 2017) (“[w]e may
look to related statutes when interpreting an ambiguous statute. . . . More
specifically, we may borrow from other statutes’ definitions of terms that
are undefined in the statute at issue”); State v. Turner, 567 N.E.2d 783,
784 (Ind. 1991) (“a legislative definition of certain words in one statute,
although not conclusive, is entitled to consideration in construing the same
words in another statute”). See, also, Jaster v. Comet II Const., Inc., 438
S.W.3d 556 (Tex. 2014); Schaefer v. Putnam, 841 N.W.2d 68 (Iowa 2013)
(as corrected Dec. 18, 2013).
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Cite as 297 Neb. 938Because the APA contains no definition of “parties of record”
and because there is no other definition of “party” or “party
of record” in the Nebraska Liquor Control Act, the definition
in § 53-1,115(4) is, at a minimum, strongly suggestive of the
conclusion that citizen objectors are “parties of record” that
must be included in a district court’s APA review.
And the retailers do not argue that the definition of “party
of record” in § 53-1,115 is entirely irrelevant to determin-
ing which parties are “parties of record” under the APA.
Rather, what they argue is that the controlling definition of
“party of record” is the one found in subsection (4)(c) of
§ 53-1,115, which applies to “administrative proceed­ ing[s]
before the [C]ommission to suspend, cancel, or revoke a retail
. . . license,” rather than subsection (4)(a), which applies
to “administrative proceeding[s] before the [C]ommission
on the application for a retail . . . license.” (Emphasis
supplied.)
The retailers argue that we should look to the definition
of “party of record” under § 53-1,115(4)(c), applicable to
proceedings to suspend, cancel, or revoke liquor licenses,
because “[t]he end result was the same as a cancelation [sic]
or revocation.”43 But the end result of this proceeding was not
the same as the cancellation or revocation of a liquor license.
The retailers’ licenses were set to expire, and their applications
for the following year were denied. Liquor licenses provide
an entitlement for the sale, distribution, or production of alco-
hol (depending on the type of license) for a period of only
1 year. As § 53-149(1) provides, “[a] license shall be purely
a personal privilege, good for not to exceed one year after
issuance unless sooner revoked as provided in the Nebraska
Liquor Control Act, and shall not constitute property . . . .”
(Emphasis supplied.) Thus, renewal applications (short form
or long form) and applications for new licenses are both
applications, because the applicant is seeking an entitlement
43
Supplemental brief for appellees Kozal et al. at 6.
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KOZAL v. NEBRASKA LIQUOR CONTROL COMM.
Cite as 297 Neb. 938to which he or she is not currently entitled. This is different
from the cancellation or revocation of a license, which takes
away an existing entitlement from the license holder. The
denial of a license renewal application simply allows the exist-
ing 1-year entitlement to expire.
The Commission’s proceeding, in name and in substance,
was “an administrative proceeding before the commission on
the application for a retail . . . license.”44 Thus, the relevant
definition of “party of record” in § 53-1,115 is that found in
subsection (4)(a), not subsection (4)(c). The fact that citizen
objectors are defined by the Nebraska Liquor Control Act as
“parties of record” in license renewal proceedings establishes
that they are “parties of record” that the APA requires to be
included in an APA review proceeding.45
Citizen Objectors Acted As and Were
Treated As Parties of R ecord
in Commission H earing
Not only does the Nebraska Liquor Control Act define citi-
zen objectors as “parties of record” in the Commission’s liquor
license application proceedings, but the citizen objectors in this
case acted as and were treated as parties in the Commission’s
hearing on the retailers’ license renewal applications.
In Shaffer v. Nebraska Dept. of Health & Human Servs.,46
we concluded that a Medicaid provider was a “party of record”
in a Department of Health and Human Services hearing regard-
ing Medicaid coverage of nursing care that should have been
included in the district court’s APA review. One of the princi-
pal reasons we relied upon to conclude that the provider was a
“party of record” was that “it [was] clear from the administra-
tive record that [the provider] participated in the [department’s
Medicaid] hearing and was treated as a party by the hearing
44
See § 53-1,115(4)(a) (emphasis supplied).
45
See § 84-917.
46
Shaffer v. Nebraska Dept. of Health & Human Servs., supra note 21.
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Cite as 297 Neb. 938officer.”47 We looked to the fact that the Medicaid provider’s
“representatives presented evidence, cross-examined witnesses,
entered into stipulations, and presented arguments” and that
“[a]t the beginning and conclusion of the hearing, the hearing
officer referred to [the Medicaid recipient] and [the Medicaid
provider] as the ‘parties.’”48
Here too, the citizen objectors acted as and were treated
as parties. The attorney for four of the objectors made a for-
mal appearance as an attorney of record and was listed as an
attorney of record in the record of the proceeding. The hearing
officer conducted the hearing by allowing the objectors to call
witnesses and make their case first, followed by the retailers’
case and response to the objectors’ arguments and evidence.
The citizen objectors’ attorney submitted pretrial witness
and exhibit lists, filed and responded to prehearing motions,
called witnesses at the hearing, made stipulations, objected to
evidence, and examined and cross-examined witnesses. The
primary examination of witnesses at the hearing was conducted
by the citizen objectors’ attorney and the retailers’ attorney,
with just a few questions asked by the hearing officer and the
commissioners. The hearing officer referred to citizen objectors
and the retailers as the “parties.” And he referred to the unrep-
resented objectors as “pro se litigant[s].”
And the Commission wrote in its order that in making its
decision, it “considered, foremost, the existence of citizen
protest, and the adequacy of existing law enforcement.” For
all practical purposes, the citizen objectors were “parties of
record” in the retailers’ licensure proceeding.
Conclusion: Citizen Objectors
A re Parties of R ecord
[20] Because citizen objectors are defined by the Nebraska
Liquor Control Act as “part[ies] of record” in the Commission’s
47
Id. at 751, 857 N.W.2d at 322.
48
Id.
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Cite as 297 Neb. 938liquor license application proceedings and because the citi-
zen objectors acted as and were treated as parties in the
Commission’s hearing, we conclude that they are “parties of
record” for purposes of the APA. The APA requires all “par-
ties of record” in the agency proceeding to be made parties in
the district court’s review. Where a district court has statutory
authority to review an action of an administrative agency, the
district court may acquire jurisdiction only if the review is
sought in the mode and manner and within the time provided
by statute.49 The failure to make a “part[y] of record” a party to
the proceedings for review as required by the APA is a failure
to seek review in the mode and manner provided by statute that
deprives the district court of jurisdiction. Here, the result of the
retailers’ failure to include the citizen objectors is that the dis-
trict court never acquired subject matter jurisdiction to review
the Commission’s order.
CONCLUSION
The retailers failed to include all “parties of record” in
the Commission proceeding when they sought review in the
district court. The district court never acquired subject mat-
ter jurisdiction, and as a result, we lack jurisdiction over this
appeal. We vacate the judgment of the district court and dis-
miss this appeal.
Vacated and dismissed.
49
J.S. v. Grand Island Public Schools, supra note 20; Nebraska Dept. of
Health & Human Servs. v. Weekley, supra note 20.