McDougle v. State ex rel. Bruning

Nebraska Advance Sheets
McDOUGLE v. STATE EX REL. BRUNING 19
Cite as 289 Neb. 19
CONCLUSION
For the foregoing reasons, we reverse the decision of the
Court of Appeals. We remand the cause with direction to enter
an order affirming the district court’s entry of summary judg-
ment in favor of State Farm.
R eversed and remanded with direction.
Eric McDougle, LMHP, PLADC, appellant, v.
State of Nebraska ex rel. Jon Bruning,
Attorney General, appellee.
___ N.W.2d ___
Filed September 12, 2014. No. S-12-1186.
1. Jurisdiction. Subject matter jurisdiction is a question of law for the court.
2. Statutes: Appeal and Error. The meaning and interpretation of a statute
are questions of law, which an appellate court reviews independently of the
lower court.
3. Administrative Law: Jurisdiction: Appeal and Error. Where a district court
has statutory authority to review an action of an administrative agency, the dis-
trict court may acquire jurisdiction only if the review is sought in the mode and
manner and within the time provided by statute.
4. Jurisdiction: Appeal and Error. If the court from which an appeal was taken
lacked jurisdiction, the appellate court acquires no jurisdiction.
5. Administrative Law: Words and Phrases. An administrative agency is a neutral
factfinding body when it is neither an adversary nor an advocate of a party.
6. Administrative Law: Parties. When an administrative agency acts as the pri-
mary civil enforcement agency, it is more than a neutral factfinding body.
7. ____: ____. An agency that is charged with the responsibility of protecting the
public interest, as distinguished from determining the rights of two or more
individuals in a dispute before such agency, is more than a neutral factfind-
ing body.
8. ____: ____. The Attorney General’s involvement as the plaintiff in a petition
for discipline does not negate the role of the Division of Public Health of the
Department of Health and Human Services in disciplining a credential holder as
something more than only a neutral factfinding body.
9. Statutes: Words and Phrases. As a general rule, the word “shall” in a statute is
considered mandatory and is inconsistent with the idea of discretion.
10. Statutes: Appeal and Error. While statutes relating to the same subject matter
will be construed so as to maintain a sensible and consistent scheme, an appellate
court must do so by giving effect to every provision.
11. Administrative Law: Parties: Appeal and Error. There is no inherent incon­
sistency between Neb. Rev. Stat. §§ 38-186 (Cum. Supp. 2012) and 38-187
Nebraska Advance Sheets
20 289 NEBRASKA REPORTS
(Reissue 2008) and the plain mandate of Neb. Rev. Stat. § 84-917(2)(a)(i) (Cum.
Supp. 2012) that an agency that acted as more than just a neutral factfinding body
be classified as a “party of record” for purposes of determining what entities shall
be parties to the proceedings for review.
Appeal from the District Court for Lancaster County:
Andrew R. Jacobsen, Judge. Reversed and remanded for fur-
ther proceedings.
Denise M. Destache, of Lamson, Dugan & Murray, L.L.P.,
for appellant.
Jon Bruning, Attorney General, and Julie L. Agena for
appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
McCormack, J.
NATURE OF CASE
Eric McDougle’s licenses to practice as a mental health
practitioner and as a provisional alcohol and drug counselor
were revoked in a decision by the director of the Division
of Public Health of the Department of Health and Human
Services (Department). McDougle petitioned the district court
for review of the decision, naming the Department and the
State as parties to the petition for review and timely serv-
ing process upon them. The issue in this case is whether
the Department was properly a “party of record” under the
Administrative Procedure Act, such that the petitioner was not
required to separately serve the Department with a copy of the
petition and a request for preparation of the official record as a
prerequisite to the district court’s jurisdiction over the petition
for review.
BACKGROUND
McDougle held a mental health license and a provisional
alcohol and drug counseling license issued by the Department.
The Department is the agency of the State of Nebraska autho-
rized to enforce the provisions of the Uniform Credentialing
Nebraska Advance Sheets
McDOUGLE v. STATE EX REL. BRUNING 21
Cite as 289 Neb. 19
Act1 regulating the practice of mental health and alcohol and
drug counseling.
Subsections (2) and (23) of § 38-178 state that a professional
licensee may be disciplined for dishonorable conduct evidenc-
ing unfitness to meet the standards of practice of the profession
or for unprofessional conduct. Unprofessional conduct includes
“any departure from or failure to conform to the standards of
acceptable and prevailing practice of a profession.”2
The regulations relating to mental health practitioners pro-
vide that “[s]exual intimacy with a former client for 2 years fol-
lowing termination of therapy is prohibited.”3 It is undisputed
that McDougle had a sexual relationship with a client approxi-
mately 1 month after terminating their professional relation-
ship. McDougle self-reported the incident to the Department.
He asserted that at the time of the relationship, he did not know
it was in violation of applicable regulations.
The Department conducted an investigation, which was
considered by the Board of Mental Health Practice. The
board recommended that the State file a petition, pursuant
to § 38-186, for disciplinary action seeking revocation of
McDougle’s licenses.
Under § 38-186(1), “[a] petition shall be filed by the Attorney
General in order for the director [of the Department4] to disci-
pline a credential obtained under the Uniform Credentialing
Act.” Under § 38-187 of the Uniform Credentialing Act:
The following rules shall govern the form of the peti-
tion in cases brought pursuant to section 38-186:
(1) The state shall be named as plaintiff and the creden-
tial holder as defendant;
(2) The charges against the credential holder shall be
stated with reasonable definiteness;
1
See Neb. Rev. Stat. § 38-101 to 38-1,140 (Reissue 2008 & Cum. Supp.
2012).
2
See § 38-179.
3
172 Neb. Admin. Code, ch. 94, § 016.05 (2004).
4
§ 38-116.
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22 289 NEBRASKA REPORTS
(3) Amendments may be made as in ordinary actions in
the district court; and
(4) All allegations shall be deemed denied, but the cre-
dential holder may plead thereto if he or she desires.
A petition for disciplinary action accordingly was filed with
the Department naming the “STATE OF NEBRASKA ex rel.
JON BRUNING, Attorney General,” as plaintiff and McDougle
as defendant.
A hearing upon the petition was held before the chief medi-
cal officer and director of the Department (Director). On May
18, 2012, the Director issued an order revoking McDougle’s
licenses to practice as a mental health practitioner and provi-
sional alcohol and drug counselor in the State of Nebraska. The
Director found clear and convincing evidence that McDougle’s
conduct was unprofessional and was grounds for discipline.
The Director then concluded that revocation was the appropri-
ate disciplinary sanction for such conduct.
On June 13, 2012, McDougle filed in the district court a
petition for judicial review of the Director’s decision. The
Uniform Credentialing Act states that “[b]oth parties to disci-
plinary proceedings under the Uniform Credentialing Act shall
have the right of appeal, and the appeal shall be in accord­
ance with the Administrative Procedure Act.”5 Neb. Rev. Stat.
§ 84-917(2)(a)(i) (Cum. Supp. 2012) of the Administrative
Procedure Act states in turn:
All parties of record shall be made parties to the proceed-
ings for review. If an agency’s only role in a contested
case is to act as a neutral factfinding body, the agency
shall not be a party of record. In all other cases, the
agency shall be a party of record. Summons shall be
served within thirty days of the filing of the petition in the
manner provided for service of the summons in section
25-510.02. If the agency whose decision is appealed from
is not a party of record, the petitioner shall serve a copy
of the petition and a request for preparation of the official
record upon the agency within thirty days of the filing of
5
§ 38-1,102.
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McDOUGLE v. STATE EX REL. BRUNING 23
Cite as 289 Neb. 19
the petition. The court, in its discretion, may permit other
interested persons to intervene.
(Emphasis supplied.)
In his petition for review, McDougle named the Department
and the State as the defendants. Summons was served within
30 days of the filing of the petition for review.6 McDougle
did not separately request within 30 days of the petition for
review that the Department prepare an official record. The
parties agree that McDougle made such a request later, on
August 1, 2012, although that request is not in the appel-
late record.
On July 5, 2012, McDougle moved for leave to file an
amended petition changing the designation of the defendant “to
appropriately reflect State of Nebraska, ex rel. Jon Bruning,
Attorney General.” But the motion was apparently never ruled
upon. Although there is an amended petition in the transcript,
it is not dated, signed, or file stamped.
On July 19, 2012, the State filed a motion to dismiss
McDougle’s petition for review on the ground that he failed
to request preparation of the official record upon the agency
within 30 days of the filing of the petition. The State noted
that in Payne v. Nebraska Dept. of Corr. Servs.,7 we held that
when the agency is not a party of record, a timely request for
the preparation of the official record under § 84-917(2)(a)(i)
is a prerequisite to the district court’s jurisdiction over the
petition for review. The State argued that the Department
could not be a “party of record” because § 38-186 states that
the Attorney General shall file the underlying petition for
discipline and § 38-187 provides that “[t]he state shall be
named as plaintiff and the credential holder as defendant” in
the underlying petition for discipline. The State further argued
that McDougle had effectively admitted that the agency was
not a proper party of record by moving to amend his peti-
tion for review. McDougle objected to the State’s motion to
6
See § 84-917(2)(a)(i).
7
Payne v. Nebraska Dept. of Corr. Servs., 249 Neb. 150, 542 N.W.2d 694
(1996).
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24 289 NEBRASKA REPORTS
dismiss, arguing that the Department was not simply a neutral
factfinding body and was therefore a proper “party of record”
under § 84-917(2)(a)(i).
The district court granted the motion to dismiss for lack of
jurisdiction. McDougle appeals.
ASSIGNMENT OF ERROR
McDougle assigns that “[t]he district court erred when it
failed to consider the Agency’s regulations and [McDougle’s]
reliance on those regulations which do not require request
for preparation of the record, in order for the district court to
obtain jurisdiction.”
STANDARD OF REVIEW
[1] Subject matter jurisdiction is a question of law for
the court.8
[2] The meaning and interpretation of a statute are questions
of law, which an appellate court reviews independently of the
lower court.9
ANALYSIS
[3,4] 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.10 If the
court from which an appeal was taken lacked jurisdiction, the
appellate court acquires no jurisdiction.11
The jurisdictional question before us hinges on whether the
Department is a “party of record” under § 84-917(2)(a)(i). We
find no need to delve into McDougle’s argument concerning
the Department’s regulations for the preparation of records
in the case of petitions for review of its decisions. If the
Department is a “party of record,” then McDougle satisfied
the requisite statutory mode and manner of obtaining judicial
8
Ptak v. Swanson, 271 Neb. 57, 709 N.W.2d 337 (2006).
9
State v. Hettle, 288 Neb. 288, 848 N.W.2d 582 (2014).
10
Nebraska Dept. of Health & Human Servs. v. Weekley, 274 Neb. 516, 741
N.W.2d 658 (2007).
11
Anderson v. Houston, 274 Neb. 916, 744 N.W.2d 410 (2008).
Nebraska Advance Sheets
McDOUGLE v. STATE EX REL. BRUNING 25
Cite as 289 Neb. 19
review by naming the Department as a party to the proceed-
ings for review and serving summons upon the Department
within 30 days of the filing of the petition in the man-
ner provided for service of summons in Neb. Rev. Stat.
§ 25-510.02 (Cum. Supp. 2012). If the Department is not a
proper “party of record,” then, pursuant to our decision in
Payne, McDougle failed to satisfy the mandatory requirement
of § 84-917(2)(a)(i) that “[i]f the agency whose decision is
appealed from is not a party of record,” he “shall” serve upon
the agency “a request for preparation of the official record”
within 30 days of filing the petition. Departmental regulations
cannot change the unambiguous jurisdictional mandates of
§ 84-917.
[5-7] Again, § 84-917(2)(a)(i) states:
All parties of record shall be made parties to the proceed-
ings for review. If an agency’s only role in a contested
case is to act as a neutral factfinding body, the agency
shall not be a party of record. In all other cases, the
agency shall be a party of record.
We have repeatedly explained that an administrative agency
is a neutral factfinding body when it is neither an adversary
nor an advocate of a party.12 In contrast, when an administra-
tive agency acts as the primary civil enforcement agency, it is
more than a neutral factfinding body.13 Also, an agency that is
charged with the responsibility of protecting the public interest,
as distinguished from determining the rights of two or more
individuals in a dispute before such agency, is more than a
neutral factfinding body.14
12
In re 2007 Appropriations of Niobrara River Waters, 283 Neb. 629, 820
N.W.2d 44 (2012); Metropolitan Util. Dist. v. Aquila, Inc., 271 Neb. 454,
712 N.W.2d 280 (2006); In re Application of Metropolitan Util. Dist., 270
Neb. 494, 704 N.W.2d 237 (2005); City of Omaha v. C.A. Howell, Inc., 20
Neb. Ct. App. 711, 832 N.W.2d 30 (2013).
13
In re Application of Metropolitan Util. Dist., supra note 12. See, also,
In re 2007 Appropriations of Niobrara River Waters, supra note 12;
Metropolitan Util. Dist. v. Aquila, Inc., supra note 12; City of Omaha v.
C.A. Howell, Inc., supra note 12.
14
See, City of Omaha v. C.A. Howell, Inc., supra note 12; Tlamka v. Parry,
16 Neb. Ct. App. 793, 751 N.W.2d 664 (2008).
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Several cases illustrate the circumstances under which an
agency acts as more than “only . . . a neutral factfinding body,”
as defined by § 84-917(2)(a)(i).
In In re 2007 Appropriations of Niobrara River Waters,15
we held that in a petition for review from hearings on junior
appropriators’ challenges to senior water appropriation rights,
the Department of Natural Resources was more than a neu-
tral factfinding body. Thus, in that case, it was a “party of
record” under § 84-917(2). We explained that the Department
of Natural Resources is the primary civil enforcement agency
charged with the administration and enforcement of water
rights. Under applicable statutes, it has the authority to resolve
disputes, investigate the validity of water rights, engage in
water administration, and issue and enforce orders.
Similarly, in Becker v. Nebraska Acct. & Disclosure Comm.,16
we held that the Nebraska Accountability and Disclosure
Commission was more than only a neutral factfinding body
in proceedings determining the proper response to a taxpayer
complaint before the commission alleging expenditures by
members of the University of Nebraska Board of Regents
violated the Nebraska Political Accountability and Disclosure
Act. We looked no further than the language of the statutes
governing the commission’s powers, which stated that the
commission “‘shall . . . [a]ct as the primary civil and criminal
enforcement agency for violations of the Nebraska Political
Accountability and Disclosure Act and the rules or regulations
promulgated thereunder.’”17
In Leach v. Dept. of Motor Vehicles,18 we also held that
the Department of Motor Vehicles was more than a neutral
factfinding body and, thus, was a necessary party in a peti-
tion for review of a driver’s license revocation. We explained
that the department is charged with the responsibility of pro-
tecting the public interest as distinguished from determining
15
In re 2007 Appropriations of Niobrara River Waters, supra note 12.
16
Becker v. Nebraska Acct. & Disclosure Comm., 249 Neb. 28, 541 N.W.2d
36 (1995).
17
Id. at 34, 541 N.W.2d at 40.
18
Leach v. Dept. of Motor Vehicles, 213 Neb. 103, 327 N.W.2d 615 (1982).
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McDOUGLE v. STATE EX REL. BRUNING 27
Cite as 289 Neb. 19
the rights of two or more individuals in a dispute before
such agency.
In In re Application of Metropolitan Util. Dist.,19 we
held that the Public Service Commission was more than
only a neutral factfinding body in connection with the com-
mission’s denial of the Metropolitan Utilities District of
Omaha’s application to be certified as a competitive natural
gas provider outside its service area. Again, we examined
the statutory powers of the commission. We summarized that
the commission was more than a neutral factfinding body,
because it has the authority to set conditions on certifications,
resolve disputes, investigate complaints, issue orders, and
enforce orders.
And in Beatrice Manor v. Department of Health,20 we held
that the former Department of Health, not the state, was the
necessary party in the proceedings to review the Department
of Health’s determination, through the Nebraska Health Care
Certificate of Need Appeal Panel, which denied a health care
facility permission to add more beds. We explained that an
agency that is charged with the responsibility of the public
interest, as distinguished from determining the rights of two or
more individuals in a dispute before such agency, is more than
a neutral factfinding body.
In Tlamka v. Parry,21 the Nebraska Court of Appeals held
that the Department of Correctional Services was more than a
neutral factfinding body and therefore was a necessary “party
of record,” in an inmate’s petition for review of the denial of
his request for reclassification. The Court of Appeals reasoned
that the department is charged with protecting the public
interest from persons convicted of crime, and, as part of this
responsibility, it classifies offenders.
In City of Omaha v. C.A. Howell, Inc.,22 the Court of
Appeals held that the Nebraska Liquor Control Commission
19
In re Application of Metropolitan Util. Dist., supra note 12.
20
Beatrice Manor v. Department of Health, 219 Neb. 141, 362 N.W.2d 45
(1985).
21
Tlamka v. Parry, supra note 14.
22
City of Omaha v. C.A. Howell, Inc., supra note 12.
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was more than a neutral factfinding body and thus was a nec-
essary party to the city’s petition for review of the commis-
sion’s order granting an applicant a liquor license. In so hold-
ing, the Court of Appeals examined the commission’s broad
statutory authority to regulate all phases of the control of the
manufacture, distribution, sale, and traffic of alcoholic liquor;
to receive, issue, suspend, cancel, and revoke liquor licenses;
to inspect premises where liquor is located; and to hear and
determine appeals. The Court of Appeals summarized that the
commission is charged with the responsibility of protecting the
public interest through its regulation of all phases of alcoholic
liquor. In addition, the commission’s decision to grant the
applicant a license against the city council’s recommendation
made the commission an “adversarial party.”23
In only two cases have our courts determined that the agen-
cy’s “only role” in the underlying contested case was “to act as
a neutral factfinding body.24
First, in Metropolitan Util. Dist. v. Aquila, Inc.,25 we held
that the same agency that was more than a neutral factfind-
ing body in In re Application of Metropolitan Util. Dist.26
was only a neutral factfinding body in the proceedings under
review, because of its uniquely limited statutory powers relat-
ing to the proceedings below. Aquila, Inc. involved a com-
plaint before the Public Service Commission that a proposed
gasline extension agreement violated the former Neb. Rev.
Stat. §§ 57-1301 to 57-1307 (Reissue 2004).27 We observed
that although the commission’s jurisdiction did extend to
§§ 57-1301 to 57-1307, the commission’s statutory powers
in that role are limited. Section 57-1306 stated in relevant
part: “The commission shall have no jurisdiction over a met-
ropolitan utilities district or natural gas utility beyond the
23
Id. at 722, 832 N.W.2d at 40.
24
See § 84-917(2)(a)(i).
25
Metropolitan Util. Dist. v. Aquila, Inc., supra note 12.
26
In re Application of Metropolitan Util. Dist., supra note 12.
27
See, Neb. Rev. Stat. §§ 66-1858 to 66-1864 (Reissue 2009); 2006 Neb.
Laws, L.B. 669.
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McDOUGLE v. STATE EX REL. BRUNING 29
Cite as 289 Neb. 19
determination of disputes brought before it under sections
57-1301 to 57-1307.” Thus, we reasoned, the commission
was not acting in the underlying contested case as a certifying
agency or the primary civil enforcement agency. Nor was it
acting in the role of an adversarial party or enforcing a previ-
ous order. The commission was only acting, and only could
act, as a factfinding body to determine the validity of the com-
plaint between the two parties before it.
Second, in Payne v. Nebraska Dept. of Corr. Servs.,28 we
held that the Equal Opportunity Commission was only a neu-
tral factfinding body. We did not elaborate on our reasoning,
but noted in the facts that the commission’s only role in the
underlying case was to determine whether the Department of
Correctional Services, as employer of the plaintiff, had violated
the Nebraska Fair Employment Practice Act.
We hold in this case that the Department acted as more
than “only . . . a neutral factfinding body,” as defined by
§ 84-917(2)(a)(i). As in other cases wherein we have found
the agency to be more than a neutral factfinding body, the
Department is given broad statutory powers to protect the
public interest. The Uniform Credentialing Act sets forth that
the Board of Mental Health Practice,29 which is under the
Department,30 has numerous powers relating to credentialing
the profession, including the power to adopt rules and regula-
tions to specify the standards for continuing competency and
the power to define additional unprofessional conduct not
specified by statute.31 Under § 38-161(1), the purpose of the
board is “to protect the health, safety, and welfare of the pub-
lic.” The Department has the broad power to promulgate and
enforce such rules and regulations.32
The Department’s role under the Uniform Credentialing
Act is similar to other licensing agencies having the power to
28
Payne v. Nebraska Dept. of Corr. Servs., supra note 7.
29
§ 38-167(p).
30
See § 38-174.
31
§ 38-126(1)(a).
32
§ 38-126.
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revoke or grant licenses. In Leach33 and C.A. Howell, Inc.,34 we
held that the agencies in those cases were more than neutral
factfinding bodies. The Department is also obviously similar to
the Department of Health, the predecessor to the Department’s
parent entity, which we found to be more than a neutral fact-
finding body in Beatrice Manor.35 The Department is charged
with the responsibility of protecting the public interest by
creating and enforcing standards for practice of the health
care professions.
[8] The Attorney General’s involvement as the “plaintiff”
in a petition for discipline does not negate the role of the
Department as something more than “only . . . a neutral
factfinding body.” Under § 38-161(2)(c), it is the Board of
Mental Health Practice that first provides recommendations
for the disciplinary action. That recommendation is sent to
the Attorney General’s office, which determines whether
to file a petition for discipline. The petition is filed by the
Attorney General’s office, ensuring proper notice and form.36
But the petition is filed “in order for the director to disci-
pline a credential obtained under the Uniform Credentialing
Act.”37 After a hearing conducted by the Director,38 pursu-
ant to § 38-192, the Director determines not just the factual
question of whether a violation has occurred; rather, the
Director “shall have the authority through entry of an order
to exercise in his or her discretion any or all of the sanc-
tions authorized under section 38-196.” The Department is
thus the primary civil enforcement agency for credentialing
violations pertaining to the health care professions. In that
sense, no matter what entity brought the petition before the
Department as the “plaintiff,” the Department is like the
agencies in In re 2007 Appropriations of Niobrara River
33
Leach v. Dept. of Motor Vehicles, supra note 18.
34
City of Omaha v. C.A. Howell, Inc., supra note 12.
35
Beatrice Manor v. Department of Health, supra note 20.
36
See § 38-187.
37
§ 38-186(1) (emphasis supplied).
38
See 38-186(3).
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Waters39 and Becker,40 which we held were more than neutral
factfinding bodies.
The State does not actually present an argument that under
the case law presented above, the Department acted as only
a neutral factfinding body. Instead, the State argues we must
interpret § 84-917(2)(a)(i) together with §§ 38-186 and 38-187
such that the Department cannot be a “party of record,” regard-
less of whether it acted as more than a neutral factfinding body
in the proceedings below. The State also argues that McDougle
effectively conceded lack of jurisdiction by moving to amend
his petition.
The State points to no legal authority for its theory that
McDougle’s motion to amend his petition for review operates
as a waiver of the argument on appeal that the Department
was properly a party to the petition for review. The motion
to amend was apparently never ruled upon, thus leaving the
Department as the named party. And McDougle consistently
objected below to the motion to dismiss, arguing that the
Department was a party of record, because it acted as more
than a neutral factfinding body. We find no merit to the State’s
waiver argument.
We also find no merit to the State’s argument that §§ 38-186
and 38-187 require that the State, which, under § 38-187, was
the designated “plaintiff” below, be the only “party of record”
for purposes of determining under § 84-917(2)(a)(i) who must
be a party to the proceedings for review of decisions under
the Uniform Credentialing Act. The State’s argument ignores
the plain language of § 84-917(2)(a)(i) that “[i]n all . . . cases
[where the agency’s role was more than a neutral factfinding
body], the agency shall be a party of record.”41
[9,10] As a general rule, the word “shall” in a statute is
considered mandatory and is inconsistent with the idea of
discretion.42 While statutes relating to the same subject matter
39
In re 2007 Appropriations of Niobrara River Waters, supra note 12.
40
Becker v. Nebraska Acct. & Disclosure Comm., supra note 16.
41
§ 84-917(2)(a)(i) (emphasis supplied).
42
Burns v. Nielsen, 273 Neb. 724, 732 N.W.2d 640 (2007).
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32 289 NEBRASKA REPORTS
will be construed so as to maintain a sensible and consist­
ent scheme, we must do so by giving effect to every provi-
sion.43 We cannot ignore the plain mandatory provision of
§ 84-917(2)(a)(i) that the agency “shall” be a party of record
to the petition for review if the agency acted as more than only
a neutral factfinding body.
[11] Moreover, we disagree with the State’s contention
that the statutes are somehow inconsistent if we fail to adopt
the State’s interpretation of a “party of record.” The State
apparently understands the term “party of record” as being
limited to those entities named as parties in the administra-
tive proceedings below. But nowhere in the relevant statutes
does the Legislature define “parties of record” for purposes
of determining necessary parties to a petition for review as
being limited to those parties who were named in the underly-
ing proceedings. The State, as the plaintiff below, may also
be a “party of record” under § 84-917(2)(a)(i), an issue not
squarely before us here, but there is no inherent inconsistency
between §§ 38-186 and 38-187 and the plain mandate of
§ 84-917(2)(a)(i) that an agency that acted as more than just
a neutral factfinding body be classified as a “party of record”
for purposes of determining what entities shall be parties to the
proceedings for review.
Because the Department acted as more than a neutral
factfinding body when it revoked McDougle’s licenses, the
Department was properly named as a party to McDougle’s
petition for review of that decision. Because the Department
was properly a party to the petition for review and was prop-
erly served with a copy of that petition within 30 days as
required by § 84-917, McDougle was not required to sepa-
rately serve the Department with a copy of the petition and a
request to prepare the official record. Therefore, the district
court’s determination under Payne44 that it lacked jurisdiction
was in error.
43
See In re Interest of Katrina R., 281 Neb. 907, 799 N.W.2d 673 (2011).
44
Payne v. Nebraska Dept. of Corr. Servs., supra note 7.
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STATE EX REL. COUNSEL FOR DIS. v. COUNCIL 33
Cite as 289 Neb. 33
CONCLUSION
We reverse the district court’s dismissal of McDougle’s peti-
tion for review and remand the cause for further proceedings.
R eversed and remanded for
further proceedings.
State of Nebraska ex rel. Counsel for Discipline
of the Nebraska Supreme Court, relator, v.
Brenda J. Council, respondent.
___ N.W.2d ___
Filed September 12, 2014. No. S-13-379.
1. Disciplinary Proceedings. A proceeding to discipline an attorney is a trial de
novo on the record.
2. ____. The basic issues in a disciplinary proceeding against an attorney are
whether the Nebraska Supreme Court should impose discipline and, if so, the
appropriate discipline under the circumstances.
3. Disciplinary Proceedings: Appeal and Error. When no exceptions to the ref-
eree’s findings of fact are filed, the Nebraska Supreme Court may consider the
referee’s findings final and conclusive.
4. Disciplinary Proceedings. To determine whether and to what extent discipline
should be imposed in an attorney discipline proceeding, the Nebraska Supreme
Court considers the following factors: (1) the nature of the offense, (2) the need
for deterring others, (3) the maintenance of the reputation of the bar as a whole,
(4) the protection of the public, (5) the attitude of the offender generally, and (6)
the offender’s present or future fitness to continue in the practice of law.
5. ____. In determining the proper discipline of an attorney, the Nebraska Supreme
Court considers the attorney’s actions both underlying the events of the case and
throughout the proceeding, as well as any aggravating or mitigating factors.
6. ____. Each attorney discipline case must be evaluated individually in light of its
particular facts and circumstances. In addition, the propriety of a sanction must
be considered with reference to the sanctions imposed in prior similar cases.
7. ____. Multiple acts of attorney misconduct are deserving of more serious sanc-
tions and are distinguishable from isolated incidents.
8. Disciplinary Proceedings: Presumptions. In an attorney discipline case, miti-
gating factors may overcome the presumption of disbarment in misappropriation
and commingling cases where such factors are extraordinary and substantially
outweigh any aggravating circumstances. Absent such mitigating circumstances,
the appropriate sanction is disbarment.
Original action. Judgment of disbarment.