Omaha Expo. & Racing v. Nebraska State Racing Comm.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/30/2020 12:07 AM CDT
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
OMAHA EXPO. & RACING v. NEBRASKA STATE RACING COMM.
Cite as 307 Neb. 172
Omaha Exposition and Racing, Inc., appellee,
v. Nebraska State Racing Commission et al.,
appellees, and Hall County Livestock
Improvement Association and
Nebraska Thoroughbred Breeders
Association, appellants.
___ N.W.2d ___
Filed September 18, 2020. No. S-19-020.
1. Administrative Law: Judgments: Appeal and Error. A judgment or
final order rendered by a district court in a judicial review pursuant to
the Administrative Procedure Act may be reversed, vacated, or modified
by an appellate court for errors appearing on the record.
2. ____: ____: ____. When reviewing an order of a district court under
the Administrative Procedure Act for errors appearing on the record, the
inquiry is whether the decision conforms to the law, is supported by com-
petent evidence, and is neither arbitrary, capricious, nor unreasonable.
3. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, for which an appellate court has an obligation to reach
an independent conclusion irrespective of the decision made by the
court below.
4. Jurisdiction: Appeal and Error. A jurisdictional question which does
not involve a factual dispute is determined by an appellate court as a
matter of law.
5. Jurisdiction: Words and Phrases. Subject matter jurisdiction is the
power of a tribunal to hear and determine a case in the general class or
category to which the proceedings in question belong and to deal with
the general subject matter involved.
6. Actions: Jurisdiction. Lack of subject matter jurisdiction may be raised
at any time by any party or by the court sua sponte.
7. ____: ____. A court action taken without subject matter jurisdiction
is void.
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
OMAHA EXPO. & RACING v. NEBRASKA STATE RACING COMM.
Cite as 307 Neb. 172
8. 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.
9. Appeal and Error. The right of appeal in Nebraska is purely statutory.
10. Jurisdiction: Statutes: Appeal and Error. The requirements of a stat-
ute underlying a right to appeal are mandatory and must be complied
with before the appellate court acquires jurisdiction of the subject matter
of the action.
11. Statutes: Legislature: Intent. In construing a statute, a court must
determine and give effect to the purpose and intent of the Legislature
as ascertained from the entire language of the statute considered in its
plain, ordinary, and popular sense.
12. Administrative Law: Jurisdiction: Appeal and Error. In analyzing
the requirements to initiate judicial review under the Administrative
Procedure Act, for a district court to acquire jurisdiction to review a
final decision of an administrative agency, the appellant must file the
petition and serve summons.
13. Jurisdiction. Parties cannot confer subject matter jurisdiction upon a
judicial tribunal by either acquiescence or consent, nor may subject mat-
ter jurisdiction be created by waiver, estoppel, consent, or conduct of
the parties.
14. Administrative Law: Parties: Appeal and Error. Determining whether
an agency acted beyond its role as a neutral fact finder to qualify as
one of the “parties of record” under Neb. Rev. Stat. § 84-917 (Reissue
2014) requires looking at the nature of the administrative proceeding
under review.
15. Administrative Law: Words and Phrases. An administrative agency is
a neutral factfinding body when it is neither an adversary nor an advo-
cate of a party.
16. Administrative Law: Parties. When an administrative agency acts as
the primary civil enforcement agency, as distinguished from determining
the rights of two or more individuals in a dispute before such agency, it
is more than a neutral factfinding body.
17. ____: ____. An agency that is charged with the responsibility of protect-
ing the public interest, and not merely determining the rights of two or
more individuals in a dispute, is more than a neutral factfinding body.
18. Administrative Law: Parties: Appeal and Error. When evaluating
whether an agency is a neutral fact finder under Neb. Rev. Stat.
§ 84-917(2)(a) (Reissue 2014), courts look to the agency’s actions as
to the dispute at issue, the statutory basis upon which the agency was
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
OMAHA EXPO. & RACING v. NEBRASKA STATE RACING COMM.
Cite as 307 Neb. 172
acting, and the participation of the agency in the matters surrounding
the dispute.
19. Administrative Law. Where an agency acts beyond the role of a neutral
fact finder due to its responsibility to the public interest, its role as the
primary civil enforcement entity, or its licensing and credentialing func-
tion, the agency takes some action or is required to make some consid-
eration beyond merely resolving a dispute between outside parties.
Appeal from the District Court for Lancaster County: Susan
I. Strong, Judge. Vacated and dismissed.
Cathy S. Trent-Vilim, John M. Walker, and Daniel J. Waters,
of Lamson, Dugan & Murray, L.L.P., for appellant Hall County
Livestock Improvement Association.
O. William VonSeggern for appellant Nebraska Thoroughbred
Breeders Association.
Christopher D. Jerram, Raymond E. Walden, and Michael
T. Gibbons, of Woodke & Gibbons, P.C., L.L.O., for appellee
Omaha Exposition and Racing, Inc.
Tara Tesmer Paulson, of Rembolt Ludtke, L.L.P., for
appellee Nebraska Horsemen’s Benevolent and Protective
Association, Inc.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Funke, J.
This case concerns moneys accumulated from deductions
of horseracing wagers under Neb. Rev. Stat. §§ 2-1207(2)
(Cum. Supp. 2018) and 2-1207.01 (Reissue 2012) for the
promotion, support, and preservation of agriculture and horse
breeding in Nebraska. Pursuant to a request from the Nebraska
Thoroughbred Breeders Association (NTBA), the Nebraska
State Racing Commission (Commission) directed § 2-1207(2)
funds collected by the Nebraska Horsemen’s Benevolent &
Protective Association, Inc. (HBPA), from Nebraska horserac-
ing tracks be transferred to NTBA. The district court reversed
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
OMAHA EXPO. & RACING v. NEBRASKA STATE RACING COMM.
Cite as 307 Neb. 172
and vacated the order, finding the Commission exceeded its
statutory authority in ordering that the funds be paid over to
NTBA for distribution. Because the district court lacked sub-
ject matter jurisdiction to consider the petition, its order revers-
ing and vacating the Commission’s order is void and must be
vacated, and we must dismiss this appeal.
BACKGROUND
Appellant NTBA is a nonprofit corporation formed to pro-
mote breeding of thoroughbred horses in Nebraska. Appellant
Hall County Livestock Improvement Association, doing busi-
ness as Fonner Park, is a nonprofit corporation for the pro-
motion of agriculture, fairs, and horseracing. Fonner Park is
licensed and authorized to operate as a horseracing track and
participate in the simulcasting of horseraces in Grand Island,
Nebraska. Fonner Park and Agricultural Park, a Nebraska race-
track located in Columbus, Nebraska, account for 90 percent of
all live horseracing in Nebraska.
Omaha Exposition and Racing, Inc. (OER), is a nonprofit
corporation and is licensed and authorized for horseracing
and simulcasting services. OER operates and does business
as Horsemen’s Park in Omaha, Nebraska, and Lincoln Race
Course in Lincoln, Nebraska. Horsemen’s Park and Lincoln
Race Course hold live races each year, but most of their reve-
nues are derived from simulcasting. The facilities at Horsemen’s
Park and Lincoln Race Course are owned by HBPA, which is
a member of OER and holds two of the four OER governing
board seats. HBPA is a nonprofit corporation representing a
majority of all licensed owners and trainers that race thorough-
bred horses at Nebraska licensed racetracks.
Nebraska horseracing tracks are statutorily required to
deduct a percentage of all wagers made at their tracks to pro-
mote and preserve agriculture, horse breeding, and horseracing
in Nebraska. 1 These deducted amounts are to be ­distributed
1
§§ 2-1207(2) and 2-1207.01.
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307 Nebraska Reports
OMAHA EXPO. & RACING v. NEBRASKA STATE RACING COMM.
Cite as 307 Neb. 172
as purse supplements and breeder and stallion awards for
Nebraska-bred horses. 2 Distribution is to be made at the race-
track where the funds are generated unless the racetrack does
not conduct live race meets, in which case the deducted
funds may be distributed to those racetracks which do con-
duct live race meets for the promotion of horseracing or as
purse supplements. 3
Prior to the 1990’s, each horseracing track in Nebraska
had individual bookkeepers, including HBPA who used its
bookkeeper to distribute purse awards at the tracks. In 1996,
Ak-Sar-Ben, an Omaha racetrack, closed and the remaining
tracks determined it would be economically beneficial to trans-
fer their bookkeeping duties to a single bookkeeper, the one
used by HBPA. NTBA alleges this system was approved by the
Commission and worked without issue until the current dispute
arose in 2017.
In 1998, because the majority of live horseracing occurred
at only a few of the parks, the presidents of HBPA and NTBA
entered into an agreement for the redistribution of a portion
of the funds collected from the statutorily required deductions
from wagers on simulcast races. That year, the amount deducted
from simulcast races totaled approximately $175,000. The par-
ties agreed to distribute $80,000 to Fonner Park, $25,000 to
Agricultural Park, and $70,000 to a now-relocated Lincoln
racetrack. Appellants allege that until 2017, the parties con-
tinued to allocate a portion of funds deducted from simulcast
races to individual racetracks by determining what an equitable
amount of breeder purses were to be and HBPA’s bookkeeper
paying out those amounts.
By a letter in June 2017, HBPA advised NTBA that the
bookkeeper, at HBPA’s direction, was suspending distribution
of the deducted funds because Fonner Park failed to contribute
its share. According to Fonner Park, this alleged deficit was
2
§ 2-1207.01.
3
Id.
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
OMAHA EXPO. & RACING v. NEBRASKA STATE RACING COMM.
Cite as 307 Neb. 172
created by the addition to Fonner Park’s earnings of simulcast
funds allocated by NTBA. Fonner Park asserts such deficits
have historically been satisfied by HBPA’s bookkeeper using
surplus deducted simulcast funds from other Nebraska race-
tracks. In the June 2017 letter, HBPA claimed this use of
deducted simulcast funds from other Nebraska racetracks to
satisfy Fonner Park’s contribution requirements appeared to
be contrary to a statutory directive that all contributions of the
deducted funds must come from the individual track and can-
not come from another.
On July 7, 2017, NTBA submitted an emailed request to be
on the agenda for the upcoming Commission meeting. In the
email, NTBA asked the Commission to order “the HBPA[’s]
Purse Bookkeeper to pay all NTBA accumulated funds in the
Purse Bookkeeper[’]s possession to the [NTBA].” In a sub-
sequent email, NTBA modeled the statutory language for the
deducted funds and described “NTBA accumulated funds” as
“funds generated for our breeders’ awards, purse supplements,
and purses.” NTBA also asked the Commission to order that all
future deducted funds by Nebraska racetracks be paid over to
NTBA and its bookkeeper for allocation and disbursement.
The Commission held hearings on NTBA’s request at its
meetings on July 20, October 25, and December 19, 2017.
On February 21, 2018, the Commission issued an order grant-
ing NTBA’s request. The order stated that the Commission’s
statutory authority to enforce all state laws covering horserac-
ing extended to enforcement of the deduction statutes and
determination of a proper custodian of the funds generated.
The Commission found that the current structure wherein the
HBPA bookkeeper collected and distributed the funds allowed
for the potential of future conflicts such as underpayment or
misappropriation. Finding NTBA is the proper entity to serve
as custodian of the funds, the Commission directed that all
current deducted funds held by HBPA and its bookkeeper be
transferred to NTBA and that all future funds deducted by any
Nebraska racetracks be paid to NTBA.
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
OMAHA EXPO. & RACING v. NEBRASKA STATE RACING COMM.
Cite as 307 Neb. 172
OER submitted a petition for judicial review of the
Commission’s order to the district court on February 28,
2018. On March 1, OER filed a copy of a summons for the
Commission that was addressed to the Attorney General through
certified mail, although no return receipt was filed. OER also
sent a summons with a copy of the petition by certified mail
directly to the Commission, of which a return receipt was
signed March 19, and the Commission filed a transcript of its
proceedings in this matter on March 28. The Attorney General
filed an answer to OER’s petition on March 27. OER sent
another notice for the Commission through certified mail to the
Attorney General’s office on March 28, which return receipt
was signed April 3.
Additionally on March 1, 2018, OER filed a copy of a
summons for NTBA addressed to “Linda F. Hoffman & Zack
Mader.” However, no return receipt was filed. On March 22,
NTBA filed an answer.
After a hearing on the matter, the district court reversed
and vacated the Commission’s order. The court found the
Commission lacked statutory authority to appoint a custodian
of the funds and require payment of the funds by Nebraska
racetracks to that appointed entity. The court explained that
the statutes governing the deduction of the funds are unambig­
uous and that the Legislature did not empower any entity other
than the licensed racetracks with responsibility to collect the
funds or delegate custody of the funds to anyone other than
the licensed racetracks. The court additionally determined that
the past practice of subsidizing other racetracks by allowing
NTBA to allocate a portion of the generated funds based on
its determination of what was equitable was contrary to the
statutory directive that the funds be distributed at the racetrack
where they were generated. Accordingly, the court concluded
that the Commission erred in appointing NTBA as custodian
and granting NTBA the authority to collect and determine dis-
tribution of the deducted funds.
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
OMAHA EXPO. & RACING v. NEBRASKA STATE RACING COMM.
Cite as 307 Neb. 172
ASSIGNMENTS OF ERROR
Appellants assign, consolidated and restated, that the district
court erred by (1) considering the petition for further review
while lacking subject matter jurisdiction due to OER’s failure
to sufficiently serve NTBA and the Commission, (2) determin-
ing the Commission did not have authority to appoint a custo-
dian of the deducted funds, (3) reaching the issue of where the
deducted funds may be used when the issue was not brought
before the Commission, and (4) determining all deducted funds
must be used at the racetrack where the funds are generated.
STANDARD OF REVIEW
[1,2] A judgment or final order rendered by a district court
in a judicial review pursuant to the Administrative Procedure
Act (APA) may be reversed, vacated, or modified by an appel-
late court for errors appearing on the record. 4 When reviewing
an order of a district court under the APA for errors appearing
on the record, the inquiry is whether the decision conforms to
the law, is supported by competent evidence, and is neither
arbitrary, capricious, nor unreasonable. 5
[3] Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an inde-
pendent conclusion irrespective of the decision made by the
court below. 6
[4] A jurisdictional question which does not involve a fac-
tual dispute is determined by an appellate court as a matter
of law. 7
ANALYSIS
Before we can consider whether the Commission was autho-
rized to appoint NTBA as the custodian of the funds and
4
J.S. v. Grand Island Public Schools, 297 Neb. 347, 899 N.W.2d 893
(2017).
5
Id.
6
Id.
7
Id.
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
OMAHA EXPO. & RACING v. NEBRASKA STATE RACING COMM.
Cite as 307 Neb. 172
the merits of the appeal, we must first determine whether the
district court had subject matter jurisdiction to consider OER’s
petition for further review and whether we, in turn, have juris-
diction to consider an appeal of the district court’s order.
Neb. Rev. Stat. § 84-917 (Reissue 2014) provides the pro-
cedure for judicial review of an agency’s final decision in a
contested case. Under this statute, an aggrieved party may seek
review of a final decision by filing a petition in district court
within 30 days after service of the decision. 8 All parties of
record to the agency action must be made parties to the pro-
ceedings for judicial review. 9
Appellants claim that the district court lacked subject matter
jurisdiction due to insufficiencies in OER’s service of NTBA
and the Commission under § 84-917(2)(a)(i). Appellees, in
turn, claim service of a petition for judicial review under the
APA is not an issue of subject matter jurisdiction, that NTBA
entered a voluntary appearance which is the equivalent of proc­
ess, and that OER properly served the Commission.
Subject Matter Jurisdiction
Contrary to appellees’ arguments, under the APA, service of
necessary parties in a petition for further review is an issue of
subject matter jurisdiction. 10
[5-7] Subject matter jurisdiction is the power of a tribunal
to hear and determine a case in the general class or category
to which the proceedings in question belong and to deal with
the general subject matter involved. 11 Lack of subject matter
jurisdiction may be raised at any time by any party or by the
8
§ 84-917(2)(a)(i).
9
Id.
10
See, Candyland, LLC v. Nebraska Liquor Control Comm., 306 Neb. 169,
944 N.W.2d 740 (2020); J.S., supra note 4; Concordia Teachers College v.
Neb. Dept. of Labor, 252 Neb. 504, 563 N.W.2d 345 (1997).
11
J.S., supra note 4.
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
OMAHA EXPO. & RACING v. NEBRASKA STATE RACING COMM.
Cite as 307 Neb. 172
court sua sponte. 12 A court action taken without subject matter
jurisdiction is void. 13
[8] 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. 14
[9-11] The right of appeal in Nebraska is purely statutory. 15
The requirements of a statute underlying a right to appeal are
mandatory and must be complied with before the appellate
court acquires jurisdiction of the subject matter of the action. 16
In construing a statute, a court must determine and give effect
to the purpose and intent of the Legislature as ascertained from
the entire language of the statute considered in its plain, ordi-
nary, and popular sense. 17
[12] In analyzing the requirements to initiate judicial review
under the APA, we have held that for a district court to
acquire jurisdiction to review a final decision of an adminis-
trative agency, the appellant must file the petition and serve
summons. 18 Section 84-917(2)(a)(i) states that judicial review
“shall be instituted by filing a petition in the district court . . .
within thirty days after the service of the final decision by the
agency”; “[a]ll parties of record shall be made parties to the
proceedings for review”; and, if the agency is a party of record,
“[s]ummons shall be served within thirty days of the filing
of the petition in the manner provided for service of a sum-
mons in section 25-510.02.” (Emphasis supplied.) When Neb.
12
Id.
13
Id.
14
Kozal v. Nebraska Liquor Control Comm., 297 Neb. 938, 902 N.W.2d 147
(2017). See J.S., supra note 4.
15
J.S., supra note 4.
16
Id.
17
Id.
18
See Candyland, LLC, supra note 10. See, also, J.S., supra note 4;
Concordia Teachers College, supra note 10.
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
OMAHA EXPO. & RACING v. NEBRASKA STATE RACING COMM.
Cite as 307 Neb. 172
Rev. Stat. § 25-510.02 (Reissue 2016) applies, a summons
must be served on the Attorney General in order to institute
judicial review. 19 Additionally, while § 84-917(2)(a)(i) states
service shall be provided “in the manner provided for service
of a summons in section 25-210.02” and the required means of
service under § 25-510.02 only addresses the means of service
of the agency, we have held that “service on nongovernmental
entities under § 84-917(2)(a)(i) is required ‘within thirty days
of the filing of the petition’” and have applied such require-
ment as an issue of subject matter jurisdiction when there is
insufficient service of nongovernmental entities. 20
Because § 84-917(2)(a)(i) requires service within 30 days
of necessary parties to an agency action—including nongov-
ernmental parties of record and, if the agency is a party of
record, the agency through the Attorney General—in order to
initiate a judicial review, such service is an issue of subject
matter jurisdiction.
Sufficiency of OER’s
Service of NTBA
Appellees do not contest that OER failed to serve NTBA
within 30 days of the filing of the petition. Instead, appellees
claim NTBA voluntarily appeared by filing its answer and sub-
mitted itself to the district court’s authority.
Appellees’ argument is premised on the proposition that
serv­ice of nongovernmental parties of record is an issue of only
personal and not subject matter jurisdiction. As discussed, this
proposition is incorrect and the service of nongovernmental
parties of record under § 84-917(2) is necessary to provide the
reviewing court with subject matter jurisdiction. 21
[13] Parties cannot confer subject matter jurisdiction upon
a judicial tribunal by either acquiescence or consent, nor may
19
See Concordia Teachers College, supra note 10.
20
Candyland, LLC, supra note 10.
21
See id.
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307 Nebraska Reports
OMAHA EXPO. & RACING v. NEBRASKA STATE RACING COMM.
Cite as 307 Neb. 172
subject matter jurisdiction be created by waiver, estoppel,
consent, or conduct of the parties. 22 Accordingly, NTBA was
unable to voluntarily submit itself to the district court’s author-
ity and NTBA’s filing its answer did not overcome OER’s fail-
ure to serve NTBA as required by § 84-917(2).
Because NTBA was a party of record to the agency action
and it is undisputed that OER did not serve NTBA within 30
days of filing the petition, the district court lacked subject mat-
ter jurisdiction to consider the petition.
Sufficiency of OER’s
Service of Commission
Similarly, OER’s service of the Commission was insuf-
ficient and also deprived the district court of subject mat-
ter jurisdiction.
The required means and manner of service of an agency
under the APA depends on whether the agency was a party
of record to the proceedings. When determining whether the
agency is a party of record, § 84-917(2)(a)(i) clarifies that the
agency is not a party of record “[i]f an agency’s only role in a
contested case is to act as a neutral factfinding body . . . .” If
the agency is not a party of record, the petitioner is required to
serve only a copy of the petition and a request for preparation
of the official record upon the agency within 30 days of filing
the petition. 23 However, when the agency functions beyond
a neutral factfinding body, the agency is a party of record
and summons shall be served within 30 days of the filing of
the petition as provided by § 25-510.02. 24 Section 25-510.02
requires that service upon a state agency be executed by leav-
ing the summons at the office of the Attorney General or by
certified mail or designated delivery service addressed to the
office of the Attorney General. The purpose of § 25-510.02 is
22
J.S., supra note 4.
23
§ 84-917(2)(a)(i).
24
Id.
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OMAHA EXPO. & RACING v. NEBRASKA STATE RACING COMM.
Cite as 307 Neb. 172
to give the State, its agencies, and its employees “‘adequate
notice of the case against it’” and to “‘eliminate ineffec-
tual service.’” 25
Appellants argue that OER’s service on the Commission was
insufficient because the Commission acted beyond a neutral
factfinding body, making it a necessary party of record and
requiring service of the Attorney General within 30 days of the
filing of the petition. Because OER failed to serve the Attorney
General in accordance with § 25-510.02 until after the run-
ning of the 30 days, appellants claim service was insufficient
and the district court lacked subject matter jurisdiction over
the review.
[14-17] Determining whether an agency acted beyond its
role as a neutral fact finder to qualify as one of the “parties of
record” under § 84-917 requires looking at the nature of the
administrative proceeding under review. 26 An administrative
agency is a neutral factfinding body when it is neither an adver-
sary nor an advocate of a party. 27 In contrast, when an admin-
istrative agency acts as the primary civil enforcement agency,
as distinguished from determining the rights of two or more
individuals in a dispute before such agency, it is more than
a neutral factfinding body. 28 Also, an agency that is charged
with the responsibility of protecting the public interest, and not
merely determining the rights of two or more individ­uals in a
dispute, is more than a neutral factfinding body. 29
[18,19] When evaluating whether an agency is a neutral
fact finder under § 84-917(2)(a), we have repeatedly looked
to the agency’s actions as to the dispute at issue, the statutory
basis upon which the agency was acting, and the participation
of the agency in the matters surrounding the dispute. In cases
25
Anthony K. v. State, 289 Neb. 523, 532, 855 N.W.2d 802, 810 (2014).
26
See Kozal, supra note 14.
27
McDougle v. State ex rel. Bruning, 289 Neb. 19, 853 N.W.2d 159 (2014).
28
See id.
29
See id.
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OMAHA EXPO. & RACING v. NEBRASKA STATE RACING COMM.
Cite as 307 Neb. 172
where an agency acts beyond the role of a neutral fact finder
due to its responsibility to the public interest, its role as the
primary civil enforcement entity, or its licensing and creden-
tialing function, the agency takes some action or is required to
make some consideration beyond merely resolving a dispute
between outside parties. 30
For instance, in McDougle v. State ex rel. Bruning, 31 the
Division of Public Health of the Department of Health and
Human Services revoked a practitioner’s licenses to practice
as a mental health practitioner and as a provisional alcohol
and drug counselor after previously adopting regulations on
statutorily impermissible unprofessional conduct of a licensee,
conducting an investigation as to the practitioner’s possi-
ble violations of the regulation, recommending the Attorney
General file a petition for disciplinary action, and holding
a hearing before the department’s chief medical officer and
director. In re 2007 Appropriations of Niobrara River Waters 32
involved a challenge to the Department of Natural Resources’
issuance of closing notices for the purpose of administering
water, and the department sought to advocate for the valid-
ity of its administration. In In re Application of Metropolitan
Util. Dist., 33 a utilities district applied to the Nebraska Public
Service Commission (PSC) for certification as a competitive
natural gas provider, the PSC had authority to approve or
30
See, Shaffer v. Nebraska Dept. of Health & Human Servs., 289 Neb.
740, 857 N.W.2d 313 (2014); McDougle, supra note 27; 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); Becker v. Nebraska Acct. & Disclosure Comm.,
249 Neb. 28, 541 N.W.2d 36 (1995); Leach v. Dept. of Motor Vehicles,
213 Neb. 103, 327 N.W.2d 615 (1982) (superseded by statute as stated in
Candyland, LLC, supra note 10).
31
McDougle, supra note 27.
32
In re 2007 Appropriations of Niobrara River Waters, supra note 30.
33
In re Application of Metropolitan Util. Dist., supra note 30.
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OMAHA EXPO. & RACING v. NEBRASKA STATE RACING COMM.
Cite as 307 Neb. 172
deny and set conditions on a certification, the PSC had the
authority to enforce any order on the certification, and the
PSC denied the utilities district’s application. In Becker v.
Nebraska Acct. & Disclosure Comm., 34 following a taxpayer’s
complaint against the Board of Regents of the University
of Nebraska, the Nebraska Accountability and Disclosure
Commission investigated, found probable cause of violations,
and entered into a settlement wherein the disclosure commis-
sion agreed to certain prosecutorial concessions in exchange
for the board’s making certain disclosures and refraining from
the alleged violations in the future. Finally, in Leach v. Dept.
of Motor Vehicles, 35 the Department of Motor Vehicles had
revoked a driver’s license pursuant to the implied consent
law in execution of the department’s given responsibility
of protecting the public interest, as opposed to determining
the rights of two or more people in a dispute, and the driver
attempted to challenge the revocation by the department.
In the current action, the Commission was not merely deter-
mining the rights of two or more individuals in a dispute. It
was also acting pursuant to its claimed licensing and creden-
tialing authority to approve a custodian of the funds based
upon the public interest.
NTBA requested that funds deducted under §§ 2-1207(2)
and 2-1207.01 be transferred to NTBA and that NTBA be
appointed custodian of the funds to be collected and distributed
by an independent bookkeeper hired by NTBA. NTBA did this
because it alleged the current structure utilizing HBPA’s book-
keeper resulted in delayed distribution of the funds due to an
external dispute among multiple horseracing organizations.
The Commission’s statutory purpose is to provide statewide
regulation of horseracing in order to prevent and eliminate
corrupt practices and fraudulent behavior, and thereby main-
tain a high level of integrity and honesty in the horseracing
34
Becker, supra note 30.
35
Leach, supra note 30.
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industry of Nebraska and to ensure that all funds received by
the Commission are properly distributed. 36 As to the oversight
of racetracks’ compliance with §§ 2-1207(2) and 2-1207.01,
the Commission has the statutory authority to review account-
ing of the racetracks, 37 license racetracks and racing industry
participants, 38 revoke any license issued at any time for good
cause, 39 and enforce horseracing statutes and regulations. 40
The Commission also has the authority to adopt rules and reg-
ulations governing horseracing and the licensing of horserac-
ing associations. 41
Under this authority, the Commission adopted an administra-
tive regulation, which states:
Each Association shall have a bookkeeper, approved by
the Commission, whose duty it is to keep and preserve
books which will reflect the deposits or other credits and
withdrawals or other charges that may be made by an
owner or other licensee. Said bookkeeper shall have an
office at the track and said office shall be open on each
racing day during the hours specified by the Commission.
Said bookkeeper must also furnish such reports and infor-
mation as may be required by the Commission or its
representatives. 42
In reviewing NTBA’s request, the Commission considered
whether to approve NTBA and its appointed bookkeeper for
the management of the deducted funds or to maintain its
alleged approval of HBPA’s bookkeeper for such management.
The Commission based its ruling on consideration of either
36
Neb. Rev. Stat. § 2-1201.01 (Reissue 2012).
37
§ 2-1207.01; Neb. Rev. Stat. §§ 2-1205 and 2-1211 (Reissue 2012).
38
Neb. Rev. Stat. § 2-1203.01 (Cum. Supp. 2018).
39
§ 2-1205.
40
Neb. Rev. Stat. § 2-1203 (Cum. Supp. 2018); § 2-1203.01.
41
§ 2-1203.
42
294 Neb. Admin. Code ch. 3, § 001.08 (2006).
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option’s potential for corrupt practices and fraudulent behavior
such as underpayment or misappropriation. The designation
of the bookkeeper was not merely resolving an independent
dispute between the parties, but was the Commission’s exer-
cising compliance assurance authority grounded in its role as
the racetrack licensor and certifying agency. In approving the
bookkeeper, the Commission indicated that it was attempt-
ing to prevent the exposure of possible future corruption
and fraud.
In arguing the Commission was acting as a neutral fact
finder, appellees note the Commission held evidentiary hear-
ings where interested parties made appearances, exhibits were
received, and the parties briefed their arguments. However,
such procedures and similarities to the judicial process do
not necessitate that the Commission was acting as a neutral
fact finder.
In Shaffer v. Nebraska Dept. of Health & Human Servs., 43
a Medicaid recipient was denied the continuation of coverage
for private duty nursing services by a managed care organi-
zation because the managed care organization deemed the
services were not medically necessary. The recipient appealed
to the Department of Health and Human Services (DHHS),
which held a hearing where the parties appeared before a
DHHS hearing officer, presented testimony and evidence,
and submitted arguments. 44 Based upon the record made at
the hearing, DHHS’ director of the Division of Medicaid &
Long-Term Care concluded that the services were not medi-
cally necessary and agreed with the managed care organiza-
tion’s denial of coverage. 45 While DHHS’ order involved a
dispute between two or more parties and was the result of
an evidentiary hearing, we determined DHHS’ involvement
43
Shaffer, supra note 30.
44
Id.
45
Id.
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went beyond that of a neutral fact finder because DHHS was
charged with the administration of the Medicaid program
and had broad regulatory and oversight powers, adopted and
promulgated the rules and regulations to determine eligibil-
ity, and was authorized to and did contract with the managed
care organization for the provision of medical assistance for
eligible recipients. 46
The Commission’s actions in the instant case are similar
to DHHS’ actions in Shaffer. The Commission was acting
under broad regulatory, enforcement, and licensing author-
ity. The Commission adopted and promulgated rules that
require racetracks to have bookkeepers and which require the
Commission’s approval of those bookkeepers. In approving
NTBA as the custodian of the funds and the use of its book-
keeper while revoking the approval of HBPA’s bookkeeper, the
Commission considered the potential effect its decision would
have on the horseracing industry and its exposure to potential
mistake, corrupt practices, and fraud.
This case is distinguishable from Metropolitan Util. Dist.
v. Aquila, Inc. 47 There, a dispute between a utilities district
and Aquila, Inc., two distributers of natural gas which both
had contracts with the same natural gas supplier, arose over
the utilities district’s proposed construction of a gas main
extension. 48 Aquila argued in a complaint before the PSC
that the utilities district’s extension violated Neb. Rev. Stat.
§§ 57-1301 to 57-1307 (Reissue 2004), because it was not
in the public interest. 49 Following a hearing, the PSC agreed
and granted Aquila’s request to order a cease and desist of
the construction. 50
46
Id.
47
Aquila, Inc., supra note 30.
48
Id.
49
Id.
50
Id.
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In determining the PSC was not a party of record under
§ 84-917, we concentrated our review on the PSC’s actions in
considering the dispute then at issue. 51 The statute authorizing
the PSC to consider such a complaint, § 57-1306, expressly
stated that the PSC “‘shall have no jurisdiction over a metro-
politan utilities district or natural gas utility beyond the deter-
mination of disputes’” brought under the relevant statutes. 52
These statutes specified that no utility could extend or enlarge
its natural gas mains or services unless it was in the public
interest and that, if a complaint was brought alleging an action
was not in the public interest, the PSC was instructed to con-
sider the question of public interest by weighing statutorily
prescribed factors. 53
There are no such limiting statutes that restrained the
Commission’s consideration in approving a bookkeeper and
custodian of the deducted funds. The Commission was gen-
erally charged with overseeing the horseracing industry to
ensure all funds received by the Commission are properly
distributed, licensing and credentialing horseracing entities,
enforcing horseracing statutes and regulations, and establishing
rules and regulations governing horseracing and the licensing
of horseracing associations. 54 Additionally, in the requirement
of the Commission’s approval of racetracks’ bookkeepers, the
Commission was not limited in its evaluation to specific statu-
torily prescribed factors.
For the reasons stated above, we find that the Commission
was acting beyond its neutral factfinding role when it consid-
ered NTBA’s request to approve NTBA and its bookkeeper as
the custodian of the deducted funds and revoke the previous
approval of HBPA. Therefore, the Commission was a party of
record and appellees were required to serve summons on the
51
Id.
52
Id. at 458, 712 N.W.2d at 285.
53
Id.
54
§§ 2-1203, 2-1203.01, 2-1205, 2-1207.01, and 2-1211.
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Commission through the Attorney General’s office within 30
days of filing the petition for further review. 55
Appellees contend that OER complied with § 84-917(2)
because OER filed its petition for judicial review on February
28, 2018, and a summons was issued for the Commission
on March 1, which alleged it would be sent to the Attorney
General’s office through certified mail, and that it can be
implied such summons was sent by certified mail because
the Attorney General filed an answer on March 27. Appellees
claim this proof of service was sufficient because §§ 84-917(2)
and 25-510.02 do not require a return receipt.
In analyzing the service of an agency under § 25-510.02,
as when analyzing the option to serve an individual through
certified mail under Neb. Rev. Stat. § 25-508.01 (Reissue
2016), we look to Neb. Rev. Stat. § 25-505.01(1)(c) (Reissue
2016) for the requirements of service by certified mail. 56
Section 25-505.01(1) requires the servicing party request a
return receipt and states:
[A] plaintiff may elect to have service made by . . . :
....
(c) Certified mail service which shall be made by (i)
within ten days of issuance, sending the summons to the
defendant by certified mail with a return receipt requested
showing to whom and where delivered and the date of
delivery, and (ii) filing with the court proof of service
with the signed receipt attached[.]
In order for the district court to obtain subject matter juris-
diction, OER was required to serve the Commission within
30 days of filing the petition as provided by § 25-510.02;
one option for service under § 25-510.02 is through certified
mail, and § 25-505.01(1)(c) explains the process of service
by certified mail to include requesting and filing a return
55
§ 84-917(2)(a)(i); § 25-510.02.
56
See Anthony K., supra note 25. See, also, Mendoza v. Osterberg, No.
8:13CV65, 2014 WL 3784122 (D. Neb. July 31, 2014).
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receipt as proof of service. As such, OER was required to
request a return receipt on any service of the Commission it
sent through certified mail. Without the return receipt, it is
unknown whether OER sent the summons or whether service
upon the Attorney General occurred. There is no affidavit of
service or other evidence to establish service, and the fact that
the Attorney General filed an answer is insufficient to establish
service was executed. Accordingly, the issued summons listing
the Attorney General’s address is insufficient to prove proper
service under § 84-917(2).
Though perhaps not the only method available to challenge
the Commission’s order, a petition for judicial review was the
method chosen by OER. As a result, OER was obligated to
bring the action in compliance with § 84-917(2). Because the
Commission acted beyond the role of a neutral fact finder and
was a party of record and because OER failed to execute service
on the Attorney General in compliance with § 84-917(2)(a)(i),
the district court lacked subject matter jurisdiction to review
the Commission’s order and its order reversing and vacating
the Commission’s order is void. 57
Because the district court lacked subject matter jurisdiction
to consider OER’s petition for judicial review, we, in turn, lack
jurisdiction to consider the district court’s review. 58 Even when
appellate jurisdiction is lacking, however, we have the power
to vacate a void order and, if necessary, to remand the cause
with appropriate directions. 59 As a result, we must vacate the
order of the district court.
In vacating the order of the district court, we make no
determination as to the merits of the Commission’s order,
whether the Commission had authority to consider NTBA’s
request, whether the Commission had authority to appoint
57
See J.S., supra note 4.
58
See In re Estate of Evertson, 295 Neb. 301, 889 N.W.2d 73 (2016).
59
See Francisco v. Gonzalez, 301 Neb. 1045, 921 N.W.2d 350 (2019).
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a custodian, or the extent of the Commission’s authority to
approve a bookkeeper.
CONCLUSION
OER failed to seek district court review of the Commission’s
order in the mode and manner provided by § 84-197(2) by
failing to timely serve the summons and a copy of the peti-
tion upon NTBA and the Commission through the Attorney
General’s office. The district court, therefore, lacked subject
matter jurisdiction under the APA to consider the petition for
judicial review and its order is void. We likewise lack subject
matter jurisdiction over this appeal. We vacate the order of the
district court and dismiss this appeal.
Vacated and dismissed.
Papik, J., concurring.
Nebraska’s Administrative Procedure Act (APA) allows those
aggrieved by decisions of state agencies to seek review of those
decisions in district court. See Neb. Rev. Stat. § 84‑917(1)
(Reissue 2014). In Concordia Teachers College v. Neb. Dept.
of Labor, 252 Neb. 504, 563 N.W.2d 345 (1997), this court
interpreted the APA to require that all parties of record before
the agency be timely served with a summons in order for the
district court to have subject matter jurisdiction of such a
judicial review proceeding. We have followed that principle in
subsequent APA cases, see, e.g., Candyland, LLC v. Nebraska
Liquor Control Comm., 306 Neb. 169, 944 N.W.2d 740 (2020),
and in a case brought pursuant to similar statutes, see J.S. v.
Grand Island Public Schools, 297 Neb. 347, 899 N.W.2d 893
(2017), and the court applies it today to find that the district
court lacked subject matter jurisdiction in this case. While I
believe the court’s decision faithfully applies the cases cited
above, I write separately to observe that the interpretation of
the APA we adopted in Concordia Teachers College resulted
in a rule that is legally anomalous and, in my view, can lead to
peculiar results.
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The interpretation we first adopted in Concordia Teachers
College is a legal anomaly because in most cases, properly
serving a party with a summons is necessary to confer personal
rather than subject matter jurisdiction. See, e.g., Henderson v.
Department of Corr. Servs., 256 Neb. 314, 589 N.W.2d 520
(1999) (holding that district court lacked personal jurisdiction
over named parties because they were not served with sum-
mons and did not enter voluntary appearance); Rudd v. Debora,
20 Neb. Ct. App. 850, 855, 835 N.W.2d 765, 770 (2013) (“[t]he
father was properly served with a valid summons, and the court
thereby obtained personal jurisdiction over him”). See, also,
Omni Capital Int’l v. Rudolf Wolff & Co., 484 U.S. 97, 104,
108 S. Ct. 404, 98 L. Ed. 2d 415 (1987) (“[b]efore a federal
court may exercise personal jurisdiction over a defendant, the
procedural requirement of service of summons must be satis-
fied”); York Group, Inc. v. Wuxi Taihu Tractor Co., Ltd., 632
F.3d 399, 403 (7th Cir. 2011) (“[t]he effectiveness of service
concerns personal jurisdiction, not subject matter jurisdiction”
(emphasis in original)). Treating service of a summons as an
issue of personal rather than subject matter jurisdiction is con-
sistent with how those concepts have been traditionally under-
stood by this court. As we have often stated, personal jurisdic-
tion is the power of a tribunal to subject and bind a particular
person or entity to its decisions while subject matter jurisdic-
tion refers to the power of a tribunal to hear and determine a
case in the general class or category to which the proceedings
in question belong and to deal with the general subject matter
involved. See, e.g., Young v. Govier & Milone, 286 Neb. 224,
835 N.W.2d 684 (2013).
But the interpretation of the APA we embraced in Concordia
Teachers College affects more than just those concerned with
consistent use of legal terminology. As this case illustrates,
application of the Concordia Teachers College rule can pre-
clude judicial review in cases in which judicial review would
be available if service of summons were, as in other con-
texts, a matter of personal jurisdiction. Here, NTBA and the
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Commission filed answers in the judicial review proceeding
less than 30 days after OER filed its petition. Their answers did
not assert that the district court lacked jurisdiction, but asked
that the district court affirm the decision of the Commission
on its merits. If proper service of summons were a mat-
ter of personal jurisdiction, there would be no jurisdictional
problem under these circumstances. The answers of NTBA
and the Commission amounted to a general appearance and
authorized the exercise of personal jurisdiction over them.
See Hunt v. Trackwell, 262 Neb. 688, 635 N.W.2d 106 (2001).
But because subject matter jurisdiction cannot be waived or
conferred by the consent or conduct of the parties, see id.,
under the rule of Concordia Teachers College, the district
court lacked subject matter jurisdiction over OER’s petition for
judicial review.
While dictated by Concordia Teachers College and its prog-
eny, this strikes me as a strange outcome. One would expect
the purpose of a requirement that parties be served with a sum-
mons to be to ensure that parties involved have notice of the
proceedings and an opportunity to participate before the court
takes action that potentially affects the outcome of the agency
proceedings in which they had an interest. But when parties
make a general appearance within the time before which sum-
mons must be served, as the NTBA and the Commission did
here, there is no need to worry about whether those parties
received adequate notice. And I cannot conceive of any other
reason why a district court should be precluded from exercis-
ing judicial review when a party who was not served with a
summons nonetheless willingly engages on the merits in a
judicial review proceeding. As far as I can tell, our interpre-
tation of the APA in Concordia Teachers College has estab-
lished, at best, a counterintuitive exception to the general rule
that effective service is a requirement of personal rather than
subject matter jurisdiction, and, at worst, a jurisdictional trap.
See, e.g., J.S. v. Grand Island Public Schools, 297 Neb. 347,
899 N.W.2d 893 (2017) (citing Concordia Teachers College v.
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Neb. Dept. of Labor, 252 Neb. 504, 563 N.W.2d 345 (1997),
and holding that district court lacked subject matter jurisdic-
tion because there was no evidence school board that filed
voluntary appearance in which it purported to waive service of
summons was served with summons).
Given the important role of judicial review of administrative
agency actions, this strikes me as a particularly unfortunate
area for counterintuitive rules or jurisdictional traps. While
usually belonging to the executive branch, administrative agen-
cies that promulgate rules and regulations and adjudicate vio-
lations of those rules and regulations also exercise functions
that appear to be more legislative or judicial in character. See
Arlington v. FCC, 569 U.S. 290, 304 n.4, 133 S. Ct. 1863, 185
L. Ed. 2d 941 (2013) (explaining that administrative agency
actions can take “‘legislative’ and ‘judicial’ forms”). So how
is the exercise of all these powers by the same entity not, as
James Madison famously wrote, “the very definition of tyr-
anny”? See The Federalist No. 47 at 298 (James Madison)
(Clinton Rossiter ed., 2003) (“accumulation of all powers, leg-
islative, executive, and judiciary, in the same hands . . . may
justly be pronounced the very definition of tyranny”). While
different jurists would surely offer different answers to that
question, one that is commonly offered is that courts, through
judicial review provisions, can hold agencies in check. See,
e.g., Brietta R. Clark, APA Deference After Independent Living
Center: Why Informal Adjudicatory Action Needs a Hard Look,
102 Ky. L.J. 211, 229 (2014) (“judicial review helps guard
against abuse of power and arbitrariness”); Robert J. Pushaw,
Jr., Justiciability and Separation of Powers: A Neo‑Federalist
Approach, 81 Cornell L. Rev. 393, 471 (1996) (“[i]n fact, the
huge growth of executive agencies has not resulted in tyr-
anny primarily because of congressional oversight and judicial
review”). At the risk of stating the obvious, courts cannot
perform this important function if they do not acquire subject
matter jurisdiction.
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None of these observations should be taken as criticism of
the court’s decision in this case. OER did not ask that we over-
rule Concordia Teachers College, and, even if it had, it would
have to overcome the doctrine of legislative acquiescence. But
even if the Legislature has, up to this point, acquiesced in our
interpretation of the APA in Concordia Teachers College, the
outcome in this case may provide reason for the Legislature to
consider anew whether the APA should be amended to allow
courts to exercise subject matter jurisdiction when parties are
not served with a summons but nonetheless make a timely gen-
eral appearance in a judicial review proceeding.