Kowalewski v. Madison Cty. Bd. of Comrs.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/15/2022 09:09 AM CDT
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
KOWALEWSKI v. MADISON CTY. BD. OF COMRS.
Cite as 310 Neb. 812Ronald and Linda Kowalewski and Robert and
Sally Schroeter, appellants, v. Madison
County Board of Commissioners and
Elkhorn Valley Sportsman
Club, appellees.
___ N.W.2d ___
Filed January 28, 2022. No. S-21-229.
1. Jurisdiction: Appeal and Error. A jurisdictional question that does not
involve a factual dispute is determined by an appellate court as a matter
of law.
2. Judgments: Appeal and Error. When reviewing questions of law, an
appellate court resolves the questions independently of the lower court’s
conclusions.
3. Statutes: Judicial Construction: Legislature: Intent: Presumptions.
Where a statute has been judicially construed and that construction has
not evoked an amendment, it will be presumed that the Legislature has
acquiesced in the court’s determination of the Legislature’s intent.
4. Time: Appeal and Error. In order to perfect an appeal, a notice of
appeal and the docket fee (or application to proceed in forma pauperis
in place of the docket fee) must be filed within the applicable period.
Appeal from the District Court for Madison County: James
G. Kube, Judge. Appeal dismissed.
George H. Moyer, of Moyer, Moyer & Lafleur, for appellants.
Joseph M. Smith, Madison County Attorney, for appellee
Madison County Board of Commissioners.
Michelle M. Schlecht, of Copple, Rockey, Schlecht &
Mason, P.C., L.L.O., for appellee Elkhorn Valley Sportsman
Club.
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
KOWALEWSKI v. MADISON CTY. BD. OF COMRS.
Cite as 310 Neb. 812Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Heavican, C.J.
INTRODUCTION
The Madison County Board of Commissioners (Board)
approved the Elkhorn Valley Sportsman Club’s application for
a conditional use permit. Ronald and Linda Kowalewski and
Robert and Sally Schroeter (collectively the Kowalewskis)
appealed to the Madison County District Court. That court dis-
missed the appeal for failure to pay the docket fee. We agree
and, accordingly, dismiss this appeal.
BACKGROUND
The Elkhorn Valley Sportsman Club applied for a condi-
tional use permit to operate a trap and skeet shooting range.
A public hearing was held, after which the Board granted the
application on September 15, 2020.
The Kowalewskis appealed that decision to the district
court on October 14, 2020. With that notice of appeal, the
Kowalewskis also deposited with the county clerk for Madison
County a $100 check as a cash bond for costs, as well as a
check for $82 payable to the Madison County District Court
intended to cover the filing fee. In fact, the filing fee to per-
fect an appeal from the Board to the district court was, at that
time, $83.
Day 30, for purposes of filing an appeal, was October 15,
2020. According to the facts as found by the district court, on
October 16 (or day 31), an additional $1 was paid to the clerk
of the district court. The record does not reveal any request or
attempt by the Kowalewskis asking the county clerk to apply
the money from the bond to the filing fee.
On December 2, 2020, the Kowalewskis filed a petition
detailing their allegations that the Board erred in granting
the conditional use permit. The next day, December 3, the
Board filed a motion to dismiss on the basis that the docket
fee had not been timely paid. On December 4, the Elkhorn
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
KOWALEWSKI v. MADISON CTY. BD. OF COMRS.
Cite as 310 Neb. 812Valley Sportsman Club filed its own motion to dismiss on the
same grounds.
The district court held a hearing on the motions to dismiss.
During that hearing, the court was asked to take, and took,
judicial notice of its own file, “particularly those notations
from the clerk concerning the filing fee and the notice filed by
counsel.” Following the hearing, the district court dismissed
the appeal for failure to pay the required docket fee. This
appeal followed.
ASSIGNMENTS OF ERROR
The Kowalewskis assign that the district court erred in (1)
sustaining the motions to dismiss, (2) dismissing the appeal,
and (3) considering Elkhorn Valley Sportsman Club’s motion
to dismiss.
STANDARD OF REVIEW
[1,2] A jurisdictional question that does not involve a factual
dispute is determined by an appellate court as a matter of law. 1
When reviewing questions of law, an appellate court resolves
the questions independently of the lower court’s conclusions. 2
ANALYSIS
The primary issue presented by this appeal is whether the
district court erred in dismissing the Kowalewskis’ appeal from
the decision of the Board for lack of appellate jurisdiction.
The Kowalewskis’ appeal is governed by Neb. Rev. Stat.
§§ 23-114.01(5) (Reissue 2012), 25-1937 (Reissue 2016), and
25-2729 (Cum. Supp. 2020). Section 23-114.01(5) provides for
a right of appeal from the decision of a county board of com-
missioners granting a conditional use permit, but that section
provides no procedure to pursue an appeal.
State law covers that scenario in § 25-1937, which states
that when “the Legislature enacts a law providing for an
1
In re Estate of Beltran, ante p. 174, 964 N.W.2d 714 (2021).
2
Id.- 815 -
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310 Nebraska Reports
KOWALEWSKI v. MADISON CTY. BD. OF COMRS.
Cite as 310 Neb. 812appeal without providing the procedure therefor, the procedure
for appeal to the district court shall be the same as for appeals
from the county court to the district court in civil actions.”
And § 25-2729 sets forth the procedure for perfecting an
appeal from the county court to the district court sitting as an
intermediary court of appeals.
Section 25-2729 specifically provides:
(1) In order to perfect an appeal from the county court,
the appealing party shall within thirty days after the entry
of the judgment or final order complained of:
(a) File with the clerk of the county court a notice of
appeal; and
(b) Deposit with the clerk of the county court a docket
fee of the district court for cases originally commenced in
district court.
(2) Satisfaction of the requirements of subsection (1) of
this section shall perfect the appeal and give the district
court jurisdiction of the matter appealed.
We have repeatedly held that the failure to pay the docket
fee is jurisdictional, 3 and § 25-2729 states as much. The
Kowalewskis do not take issue with this assertion. Instead, they
argue that in addition to the $82 docket fee, the county clerk
also had a $100 cash bond on deposit and the clerk should have
applied $1 from that bond to the filing fee.
In support of this contention, the Kowalewskis direct us to
Stigge v. Graves 4 and In re Application of Olmer (Olmer). 5
In Stigge, the appellant was appealing under the prior ver-
sions of §§ 25-1937 and 25-2729 from an order of a county
super­intendent. In Olmer, the appeal was from the denial by a
county board of a conditional use permit.
3
Cf., State v. Melton, 308 Neb. 159, 953 N.W.2d 246 (2021); State v. Jones,
307 Neb. 809, 950 N.W.2d 625 (2020); Great Northern Ins. Co. v. Transit
Auth. of Omaha, 305 Neb. 609, 941 N.W.2d 497 (2020).
4
Stigge v. Graves, 213 Neb. 847, 332 N.W.2d 49 (1983).
5
In re Application of Olmer, 275 Neb. 852, 752 N.W.2d 124 (2008).
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310 Nebraska Reports
KOWALEWSKI v. MADISON CTY. BD. OF COMRS.
Cite as 310 Neb. 812In Olmer, we cited Stigge and noted that because § 25-2729
was intended to apply to appeals from a county court to a dis-
trict court, it “cannot be applied literally” to an appeal from
the county board of commissioners. 6 The Kowalewskis argue
that we should similarly not apply the docket fee requirement
“literally” because the $100 bond meant that the full amount of
the filing fee was on deposit with the clerk.
But the two scenarios are different. When Olmer and Stigge
are read in context, we were simply noting the reality that
under § 25-1937, appellants were to treat their appeals as if
they were from the county court to the district court, when in
reality it was an appeal from a county entity (in Olmer, the
county board; in Stigge, the county superintendent) to the dis-
trict court. We held as much because that interpretation made
the most sense given the statutory scheme as a whole. What
we were not saying in Olmer and Stigge was that payment of
a docket fee, which we have held is jurisdictional, could be
met through something other than strict compliance with that
requirement.
[3] At the time we decided Stigge, and later Olmer, we inter-
preted § 25-1937 to apply in those respective situations, and
that interpretation has not evoked an amendment. As such, we
will presume that the Legislature has acquiesced in the court’s
determination of the Legislature’s intent. 7
The Board directs us to State v. Moore, 8 which is factually
similar, though unpublished. That case presented the Nebraska
Court of Appeals with the issue of whether an appeal had
been perfected despite nonpayment of the docket fee. There,
the defendant failed to file either a docket fee or a poverty
affidavit with his notice of appeal to the district court. The
defendant had previously filed a $50 bond following his arrest,
6
Id. at 860, 752 N.W.2d at 130.
7
See Baker-Heser v. State, 309 Neb. 979, 963 N.W.2d 59 (2021).
8
State v. Moore, No. A-92-906, 1993 WL 385782 (Neb. App. Sept. 28,
1993) (not designated for permanent publication).
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310 Nebraska Reports
KOWALEWSKI v. MADISON CTY. BD. OF COMRS.
Cite as 310 Neb. 812and that bond was still deposited with the court at the time of
his appeal. He sought to have that bond retroactively applied to
cover his filing fees. The Court of Appeals rejected this argu-
ment and dismissed the appeal for lack of jurisdiction.
[4] Nebraska law is clear that in order to perfect an appeal,
a notice of appeal and the docket fee (or application to pro-
ceed in forma pauperis in place of the docket fee) must be
filed within the applicable period. 9 We have found no case law
suggesting that a prospective appellant can pay less than the
entire docket fee or that the county clerk has any responsibil-
ity in this instance to use money from a bond to make up the
difference for an underpaid docket fee. There is no merit to the
Kowalewskis’ appeal.
CONCLUSION
The Kowalewskis’ appeal is dismissed for lack of jurisdiction.
Appeal dismissed.
9
See § 25-2729(1)(b).
Cassel, J., concurring.
Like my concurring colleague, I agree with the court’s
opinion. I write separately to respectfully contend that my
colleague’s suggestion regarding an alternative approach to
Neb. Rev. Stat. § 25-1937 (Reissue 2016) is neither literal nor
practical.
Historically, both county courts and quasi-judicial tribunals
were recognized as inferior to the district court. 1 Most appeals
from county court still run to the district court. 2 While in recent
years a small number of statutory appeal procedures have
been provided from an executive branch official to a county
1
See, Neb. Rev. Stat. § 25-1901 (Reissue 1943); McEwen v. Nebraska State
College Sys., 303 Neb. 552, 931 N.W.2d 120 (2019); From v. Sutton, 156
Neb. 411, 56 N.W.2d 441 (1953).
2
See, e.g., Neb. Rev. Stat. §§ 25-2728 (Cum. Supp. 2020) and 25-2733
(Reissue 2016).
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KOWALEWSKI v. MADISON CTY. BD. OF COMRS.
Cite as 310 Neb. 812court or county judge, 3 the principal statute still recognizes the
district court as the court empowered to entertain petitions in
error where no right of appeal is provided. 4 Certainly, when
§ 25-1937 was first adopted in 1963, no statute provided for
county court involvement with any administrative or quasi-
judicial appeal or petition in error. I find nothing in the text
or legislative history of § 25-1937 or any of its subsequent
amendments suggesting that it contemplates actual involve-
ment by a county court. 5
Section 25-1937 provides no literal assignment of any power
or duty to the county court. Instead, it states that the “procedure
for appeal to the district court shall be the same as for appeals
from the county court to the district court in civil actions.” 6 It
does not say that appeal documents shall be filed in the county
court. The context of the phrase “the same as for” denotes an
appellate procedure identical to appeals from the county court
to the district court in civil actions—not an assignment of a
function to the county court. 7
Moreover, practical difficulties abound. The county court
would have no records pertaining to the subject of the quasi-
judicial proceeding. It would have no case established in its
case management system. It would have no funds from which
to pay for the costs of preparing and transmitting a record.
It would have no means of certifying to the accuracy of any
records of the tribunal from which an appeal is to be taken.
3
See, e.g., Neb. Rev. Stat. §§ 69-2406 and 71-617.07 (Reissue 2016).
4
See § 25-1901 (Reissue 2016).
5
See, 1963 Neb. Laws, ch. 138, § 1, p. 515; 1988 Neb. Laws, L.B. 352,
§ 26; 1991 Neb. Laws, L.B. 732, § 66.
6
§ 25-1937 (emphasis supplied).
7
See “Same,” Oxford English Dictionary Online, http://www.oed.com/
view/Entry/170362 (last visited Jan. 24, 2022) (“[w]ith forward reference:
[i]dentical with what is indicated in the following context”). See, also,
Webster’s Third New International Dictionary of the English Language,
Unabridged 2007 (1993) (“same” defined as “in the same manner”);
Webster’s New International Dictionary, Second Edition, Unabridged 2209
(1934) (“same” defined as “[e]qually; just; likewise”).
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KOWALEWSKI v. MADISON CTY. BD. OF COMRS.
Cite as 310 Neb. 812It would have no statutory recognition of the county court
as superior to the tribunal. It would have literally no judicial
function whatsoever regarding such an appeal. The scheme
contemplated by my colleague would have the county court
acting in a purely ministerial capacity, but without any statute
imposing upon it any power or duty to do so.
I recognize that on several occasions, this court has at least
hinted that § 25-1937 deserves legislative attention. 8 Some 13
years have passed since this court’s initial decision drawing
application of the county court appeal statutes 9 to § 25-1937
by analogy. 10 Where a statute has been judicially construed
and that construction has not evoked an amendment, it will
be presumed that the Legislature has acquiesced in the court’s
determination of the Legislature’s intent. 11 This principle seems
particularly apt where this court has repeatedly addressed the
statute’s difficulties.
The right of appeal in Nebraska is purely statutory. 12 I do
not believe that this court can, by some change of statutory
interpretation, remedy the ill fit of § 25-1937 to modern proce-
dure. However frustrating it may seem, only the Legislature is
empowered to address this problem.
8
See, Preserve the Sandhills v. Cherry County, ante p. 184, 964 N.W.2d
721 (2021); Champion v. Hall County, 309 Neb. 55, 958 N.W.2d 396(2021); Egan v. County of Lancaster, 308 Neb. 48, 952 N.W.2d 664(2020); Cargill Meat Solutions v. Colfax Cty. Bd. of Equal., 281 Neb. 93,
798 N.W.2d 823 (2011); In re Application of Olmer, 275 Neb. 852, 752
N.W.2d 124 (2008).
9
See Neb. Rev. Stat. §§ 25-2728 to 25-2738 (Reissue 2016 & Cum. Supp.
2020).
10
In re Application of Olmer, supra note 8.
11
Baker-Heser v. State, 309 Neb. 979, 963 N.W.2d 59 (2021).
12
Porter v. Porter, 309 Neb. 167, 959 N.W.2d 235 (2021).
Stacy, J., concurring.
I agree we lack jurisdiction over this appeal, because the
docket fee deposited by the appellants was a day late and a
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KOWALEWSKI v. MADISON CTY. BD. OF COMRS.
Cite as 310 Neb. 812dollar short. I write separately, however, to suggest that in
an appropriate case, we should revisit the appeal procedure
announced in In re Application of Olmer (Olmer). 1
In 2004, when the Legislature amended what is now Neb.
Rev. Stat. § 23-114.01 (Reissue 2012) to authorize appeals to
the district court from decisions granting or denying condi-
tional use permits, it failed to prescribe a procedure for perfect-
ing such appeals. Olmer attempted to resolve that problem by
looking to Neb. Rev. Stat. § 25-1937 (Reissue 2016), which
provides that when the Legislature confers a right to appeal
to the district court but fails to provide a procedure for doing
so, the procedure “shall be the same as for appeals from the
county court to the district court in civil actions.” Olmer cor-
rectly noted, “The statute governing the procedure for appeals
from county court to district court is Neb. Rev. Stat. § 25-2729(Cum. Supp. 2006).” 2 Then and now, § 25-2729(1) set out
two requirements for perfecting an appeal: within 30 days
after entry of the judgment or final order complained of, the
appellant must (1) file a notice of appeal “with the clerk of the
county court” and (2) “[d]eposit with the clerk of the county
court a docket fee of the district court for cases originally com-
menced in district court.” 3
Olmer reasoned the procedure under § 25-2729 “cannot
be applied literally” 4 to appeals from decisions granting or
denying conditional use permits, because such matters do
not originate in the county court. So Olmer applied the pro-
cedure in § 25-2729 “by analogy” 5 and held that in appeals
from decisions of a county planning commission or county
board of commissioners or supervisors, § 25-2729, “in essence,
1
In re Application of Olmer, 275 Neb. 852, 752 N.W.2d 124 (2008).
2
Id. at 860, 752 N.W.2d at 130.
3
See Neb. Rev. Stat. § 25-2729(1)(a) and (b) (Cum. Supp. 2020).
4
In re Application of Olmer, supra note 1, 275 Neb. at 860, 752 N.W.2d at
130.
5
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KOWALEWSKI v. MADISON CTY. BD. OF COMRS.
Cite as 310 Neb. 812requires that the appealing party file a notice of appeal with the
lower tribunal or decisionmaker,” 6 instead of filing it with the
clerk of the county court. The appellant in Olmer was found
to have satisfied that jurisdictional requirement by filing his
notice of appeal with the county commissioners and having it
file stamped by the county clerk. Olmer did not elaborate on
how to satisfy the jurisdictional requirement of depositing the
docket fee.
In the instant appeal, the majority opinion appears to assume
the procedure described in Olmer requires an appellant to
deposit the docket fee with the county clerk rather than with
the clerk of the county court. That is what occurred here, and
while it may be a reasonable application of the Olmer analogy,
I question whether that analogy was necessary or appropriate
in the first instance. I respectfully suggest that Olmer may have
concluded too quickly that the same procedure for perfect-
ing appeals from the county court to the district court under
§ 25-2729(1) cannot be applied to appeals from decisions of a
county entity granting or denying a conditional use permit.
Olmer did not discuss the significant differences between
the statutory duties of the county clerk and the clerk of the
county court. The duties of a county clerk are set out in Neb.
Rev. Stat. §§ 23-1301 to 23-1302 (Reissue 2012) and are pri-
marily focused on keeping the records of county board pro-
ceedings. These duties do not include or contemplate accept-
ing court fees or court filings. 7 And while there is a statutory
procedure governing how a county clerk transfers funds to the
county treasury, 8 there is no statutory procedure authorizing or
requiring a county clerk to transmit court filings or docket
fees to the clerk of the district court. Here, the majority opin-
ion correctly notes that no case requires a county clerk to use
deposited court costs to make up a shortfall in the required
6
Id.7
See §§ 23-1301 and 23-1302.
8
See Neb. Rev. Stat. § 23-1303(6) (Reissue 2012).
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KOWALEWSKI v. MADISON CTY. BD. OF COMRS.
Cite as 310 Neb. 812docket fee, but the reality is there is no case or statute requir-
ing the county clerk to do anything with a notice of appeal, a
court docket fee, or court costs. Under the judicial procedure
we sanctioned in Olmer, appellants must rely on the good will
of the county clerk to accept and file stamp their notice of
appeal, accept their tendered docket fee, and timely transmit
the same to the clerk of the district court.
In contrast, it is the statutory duty of the “clerk of each of
the courts” to file and carefully preserve all papers delivered to
him or her for filing 9 and to “perform the duties conferred and
imposed upon him [or her] by other provisions of this code,
by other statutes and by the common law.” 10 In light of a court
clerk’s statutory duty to accept filings, I question whether
Olmer correctly concluded that the jurisdictional require-
ments of § 25-2729(1) (filing notice of appeal and depositing
required docket fee with clerk of county court within 30 days
of decision being appealed) could not be applied literally to
perfect an appeal from a decision granting or denying a con-
ditional use permit. I see no reason why a clerk of the county
court would, or could, refuse to accept a notice of appeal or
a docket fee tendered by one who is following the statutory
procedure expressly authorized by § 25-2729 to perfect an
appeal to the district court, which is expressly authorized by
§ 23-114.01. Moreover, once a notice of appeal is filed and
the required docket fee is deposited, it is the statutory duty of
the clerk of the county court to timely transmit the same to the
clerk of the district court, after which the district court clerk
then has a statutory duty to docket the appeal in that court. 11
In short, the clerk of the county court has a clear statutory
duty and an established statutory procedure to follow when
accepting filings and deposits necessary to perfect an appeal to
the district court, as well as a commensurate statutory duty to
9
See Neb. Rev. Stat. § 25-2205 (Cum. Supp. 2018).
10
See Neb. Rev. Stat. § 25-2214 (Reissue 2016).
11
See Neb. Rev. Stat. § 25-2731 (Reissue 2016).
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KOWALEWSKI v. MADISON CTY. BD. OF COMRS.
Cite as 310 Neb. 812timely transmit the same to the clerk of the district court. The
county clerk does not.
I agree with the majority’s observation that the Legislature
appears to have acquiesced in the modified application of
§ 25-2729 in Olmer. But legislative acquiescence does not make
the modified appeal procedure in Olmer either workable or
principled. And in retrospect, it is possible the judicial solution
we devised in Olmer created more problems than it solved.
In my opinion, this court should, in an appropriate case,
revisit Olmer to more thoroughly examine whether the statu-
tory procedure for perfecting appeals under § 25-2729(1) can
be applied literally to appeals from decisions of county entities
granting or denying conditional use permits. To be sure, practi-
cal challenges exist whether the statutory procedure set out in
§ 25-2729(1) is applied literally or whether the analogous judi-
cial procedure recognized in Olmer is followed. But until the
Legislature chooses to enact an appellate procedure that spe-
cifically accommodates the appeals allowed by § 23-114.01, it
seems to me the more principled approach would be to follow
the statutory procedure enacted by the Legislature, even if that
procedure is imperfect. After all, the Nebraska Constitution
allocates regulation of appellate jurisdiction to the Legislature,
not the courts. 12
12
Heckman v. Marchio, 296 Neb. 458, 894 N.W.2d 296 (2017).