Omaha Expo. & Racing v. Nebraska State Racing Comm. , 307 Neb. 172 ( 2020 )


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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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    OMAHA EXPO. & RACING v. NEBRASKA STATE RACING COMM.
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    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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    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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    OMAHA EXPO. & RACING v. NEBRASKA STATE RACING COMM.
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    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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    OMAHA EXPO. & RACING v. NEBRASKA STATE RACING COMM.
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    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
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    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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    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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    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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    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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    OMAHA EXPO. & RACING v. NEBRASKA STATE RACING COMM.
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    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. - 183 -
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    OMAHA EXPO. & RACING v. NEBRASKA STATE RACING COMM.
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    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
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    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. - 185 -
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    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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    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.