J.S. v. Grand Island Public Schools ( 2017 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    10/20/2017 01:12 AM CDT
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    Nebraska Supreme Court A dvance Sheets
    297 Nebraska R eports
    J.S. v. GRAND ISLAND PUBLIC SCHOOLS
    Cite as 
    297 Neb. 347
    J.S., appellant, v. Grand Island
    Public Schools, appellee.
    ___ N.W.2d ___
    Filed July 28, 2017.    No. S-16-875.
    1.	 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.
    2.	 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.
    3.	 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.
    4.	 ____: ____: ____. 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.
    5.	 Jurisdiction: Appeal and Error. Before reaching the legal issues pre-
    sented for review, it is the power and duty of an appellate court to deter-
    mine whether it has jurisdiction over the matter before it, irrespective of
    whether the issue is raised by the parties.
    6.	 Jurisdiction: Service of Process: Parties. The voluntary appearance
    of a party is equivalent to service of process for purposes of per-
    sonal jurisdiction.
    7.	 Jurisdiction: Words and Phrases. Personal jurisdiction is the power of
    a tribunal to subject and bind a particular entity to its decisions.
    8.	 ____: ____. 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 mat-
    ter involved.
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    Nebraska Supreme Court A dvance Sheets
    297 Nebraska R eports
    J.S. v. GRAND ISLAND PUBLIC SCHOOLS
    Cite as 
    297 Neb. 347
    9.	 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.
    10.	 Actions: Jurisdiction. Lack of subject matter jurisdiction may be raised
    at any time by any party or by the court sua sponte.
    11.	 ____: ____. A court action taken without subject matter jurisdiction
    is void.
    12.	 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.
    13.	 Appeal and Error. The right of appeal in Nebraska is purely statutory.
    14.	 Statutes: Appeal and Error. Unless a statute provides for an appeal
    from the decision of a quasi-judicial tribunal, such right does not exist.
    15.	 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.
    16.	 Actions: Jurisdiction: Appeal and Error. Where a district court has
    statutory authority to review an action, the district court may acquire
    jurisdiction only if the review is sought in the mode and manner and
    within the time provided by statute.
    17.	 Administrative Law: Schools and School Districts: Appeal and
    Error. Appeals from the district court under the Student Discipline Act
    are governed by the Administrative Procedure Act.
    18.	 Administrative Law: Jurisdiction: Appeal and Error. The filing
    of the petition and the service of summons are the two actions nec-
    essary to establish the jurisdiction of the district court to review the
    final decision of an administrative agency under the Administrative
    Procedure Act.
    Appeal from the District Court for Hall County: Teresa K.
    Luther, Judge. Appeal dismissed.
    Mitchell C. Stehlik, of Lauritsen, Brownell, Brostrom &
    Stehlik, P.C., L.L.O., for appellant.
    Jeanelle R. Lust and Paul B. Donahue, of Knudsen,
    Berkheimer, Richardson & Endacott, L.L.P., for appellee.
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    Nebraska Supreme Court A dvance Sheets
    297 Nebraska R eports
    J.S. v. GRAND ISLAND PUBLIC SCHOOLS
    Cite as 
    297 Neb. 347
    Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
    K elch, and Funke, JJ.
    Funke, J.
    NATURE OF CASE
    This case concerns a 15-day suspension of a student for a
    post made on a social media website from her home that, in
    part, caused a substantial disruption at her school. The super-
    intendent and the school board each upheld the suspension.
    On appeal under the Student Discipline Act, Neb. Rev. Stat.
    § 79-254 et seq. (Reissue 2014), the Hall County District Court
    affirmed, finding the suspension did not exceed the authority
    provided by §§ 79-264 and 79-267.
    BACKGROUND
    On Sunday, April 3, 2016, a group of students from Barr
    Middle School (Barr), which is part of the Grand Island Public
    Schools (GIPS), were communicating on a social media web-
    site. A post was made anonymously: “Tomorrow gonna be
    hella fire [fire emoji] be there (School).” This post was fol-
    lowed by another anonymous post: “Don’t show up to school
    tomorrow [gun emoji].” That evening, the Barr administration
    was notified by the Grand Island Police Department of these
    anonymous postings.
    The following morning, April 4, 2016, extra security was
    present at the school and the police and Barr staff searched the
    school for any potential threats. During the morning, the school
    received over 100 telephone calls from parents concerned
    about safety. That day, 17 students were checked out of school
    and four of them remained checked out on April 5.
    Police and Barr staff conducted interviews of students to
    identify who had made the anonymous postings. J.S., a stu-
    dent at Barr, was one of the students interviewed. During
    her interview, she admitted to making the “hella fire” post.
    The post with the gun emoji was not made by J.S., and no
    evidence was uncovered that she had any connection with the
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    J.S. v. GRAND ISLAND PUBLIC SCHOOLS
    Cite as 
    297 Neb. 347
    second post. Barr’s principal sent J.S. home and suspended
    her for 15 days.
    J.S. requested an administrative hearing to contest her
    removal, which hearing was held on April 14, 2016.
    At the administrative hearing, Barr’s principal testified that
    when he talked with J.S. and her parents on April 4, 2016, she
    stated that she did not know why she made the post or could
    not explain it to them. He also stated that J.S.’ social media
    posting was the sole reason for her removal from school and
    that at the time of J.S.’ removal, there were no further threats
    to the safety of other students by her.
    J.S. testified that on Sunday evening, April 3, 2016, she was
    at home using her cell phone to communicate with other stu-
    dents on a social media website. The context of the discussion,
    when she made her post, was about skipping school the next
    day. She explained that “hella fire” means “good” or “cool.”
    Accordingly, she stated that her post was a sarcastic statement
    that school would be good or cool the next day and that the
    other students should be there.
    After the administrative hearing, the superintendent of GIPS
    upheld J.S.’ suspension. J.S. next appealed to the GIPS board
    of education (Board). In May 2016, the Board held a hearing
    and also upheld the suspension.
    J.S. timely filed a petition with the district court to appeal
    the Board’s decision. After the filing of the petition, the
    Board filed a voluntary appearance, under Neb. Rev. Stat.
    § 25-516.01 (Reissue 2016). Specifically, the voluntary appear-
    ance stated, “[GIPS] acknowledges receipt of the [petition],
    enters its Voluntary Appearance . . . , and waives service of
    Summons pursuant to Neb.Rev.Stat. § 79-289.” The record
    does not show that the Board was ever served with a copy of
    the petition.
    After a hearing, the court affirmed J.S.’ 15-day suspen-
    sion, stating that it did not exceed the authority provided by
    §§ 79-264 and 79-267. The court reasoned that J.S.’ posting
    was open to several interpretations, including one of violence,
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    J.S. v. GRAND ISLAND PUBLIC SCHOOLS
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    297 Neb. 347
    and that it in fact prompted a posting that could also be con-
    sidered threatening or violent. Therefore, it found that “[J.S.’]
    posting on social media set in motion a series of events that
    cause[d] substantial disruption to the school environment.”
    J.S. appealed.
    ASSIGNMENT OF ERROR
    J.S. assigns, restated, that the district court erred in affirming
    her suspension.
    STANDARD OF REVIEW
    [1] A jurisdictional question which does not involve a fac-
    tual dispute is determined by an appellate court as a matter
    of law.1
    [2] 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.2
    [3,4] 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.3 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.4
    ANALYSIS
    [5] Before reaching the legal issues presented for review,
    it is the power and duty of an appellate court to determine
    1
    Medicine Creek v. Middle Republican NRD, 
    296 Neb. 1
    , 
    892 N.W.2d 74
          (2017).
    2
    Estermann v. Bose, 
    296 Neb. 228
    , 
    892 N.W.2d 857
    (2017).
    3
    Medicine Creek, supra note 1.
    4
    
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    J.S. v. GRAND ISLAND PUBLIC SCHOOLS
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    297 Neb. 347
    whether it has jurisdiction over the matter before it, irrespec-
    tive of whether the issue is raised by the parties.5
    On appeal, a show cause order was issued ordering the
    parties to provide authority to the court showing that the dis-
    trict court obtained subject matter jurisdiction over the matter
    under § 79-289. GIPS argues that the district court lacked
    subject matter jurisdiction because a party cannot voluntarily
    confer subject matter jurisdiction on a court,6 while J.S. asserts
    that the Legislature allows courts to acquire subject matter
    jurisdiction over a party by its compliance with § 25-516.01.
    Further, J.S. contends that GIPS’ voluntary appearance waived
    summons and acknowledged that it had obtained a copy of the
    petition, so § 79-289 was satisfied.
    [6,7] To support her contention, J.S. points us to
    § 25-516.01(1), which states that “[t]he voluntary appearance
    of the party is equivalent to service.” However, we have held
    that the voluntary appearance of a party is equivalent to serv­
    ice of process for purposes of personal jurisdiction.7 Personal
    jurisdiction is the power of a tribunal to subject and bind a
    particular entity to its decisions.8
    [8-11] Subject matter jurisdiction is the power of a tri-
    bunal 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.9 Parties can-
    not 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
    
    5 Cl. Ch. v
    . First Nat. Bank of Omaha, 
    296 Neb. 632
    , 
    895 N.W.2d 284
          (2017).
    6
    Concordia Teachers College v. Neb. Dept. of Labor, 
    252 Neb. 504
    , 
    563 N.W.2d 345
    (1997).
    7
    Burns v. Burns, 
    293 Neb. 633
    , 
    879 N.W.2d 375
    (2016).
    8
    Abdouch v. Lopez, 
    285 Neb. 718
    , 
    829 N.W.2d 662
    (2013).
    9
    In re Estate of Evertson, 
    295 Neb. 301
    , 
    889 N.W.2d 73
    (2016).
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    J.S. v. GRAND ISLAND PUBLIC SCHOOLS
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    297 Neb. 347
    conduct of the parties.10 Lack of subject matter jurisdiction
    may be raised at any time by any party or by the court sua
    ­sponte.11 A court action taken without subject matter jurisdic-
    tion is void.12
    Section 79-289(1) sets forth that proceedings for review
    under the Student Discipline Act pursuant to §§ 79-288 to
    79-292 shall be instituted by filing a petition in the dis-
    trict court of the county where the action is taken within 30
    days after the service of the final decisions by the school
    board or board of education under §§ 79-286 and 79-287.
    Further, § 79-289(3) requires that “[s]ummons shall be served
    as in other actions, except that a copy of the petition shall be
    served upon the board together with the summons.” (Emphasis
    supplied.)
    [12] We have held that 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 stat-
    ute considered in its plain, ordinary, and popular sense.13
    [13-16] The right of appeal in Nebraska is purely statu­
    tory.14 Unless a statute provides for an appeal from the deci-
    sion of a quasi-judicial tribunal, such right does not exist.15
    The requirements of the statute are mandatory and must be
    complied with before the appellate court acquires jurisdiction
    of the subject matter of the action.16 Where a district court has
    statutory authority to review an action, the district court may
    10
    
    Id. 11 Id.
    12
    
    Id. 13 Concordia
    Teachers College, supra note 6.
    14
    Heckman v. Marchio, 
    296 Neb. 458
    , 
    894 N.W.2d 296
    (2017).
    15
    Gage Cty. Bd. v. Nebraska Tax Equal. & Rev. Comm., 
    260 Neb. 750
    , 
    619 N.W.2d 451
    (2000).
    16
    Boone Cty. Bd. v. Nebraska Tax Equal. & Rev. Comm., 
    9 Neb. Ct. App. 298
    ,
    
    611 N.W.2d 119
    (2000).
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    J.S. v. GRAND ISLAND PUBLIC SCHOOLS
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    acquire jurisdiction only if the review is sought in the mode
    and manner and within the time provided by statute.17
    [17,18] Appeals from the district court under the Student
    Discipline Act are governed by the APA.18 The filing of the
    petition and the service of summons are the two actions
    necessary to establish the jurisdiction of the district court to
    review the final decision of an administrative agency under
    the APA.19
    In Concordia Teachers College v. Neb. Dept. of Labor,20 we
    considered an appeal under the APA. In doing so, we reviewed
    the language of Neb. Rev. Stat. § 84-917(2)(a) (Reissue 1994),
    which provided in pertinent part:
    Proceedings for review shall be instituted by filing a
    petition in the district court of the county where the
    action is taken within thirty days after the service of
    the final decision by the agency. . . . Summons shall
    be served within thirty days of the filing of the petition
    in the manner provided for service of a summons in a
    civil action.
    We held that in giving the statute its plain, ordinary, and
    popular sense, it was apparent that the Legislature intended
    that a summons be served within 30 days of the filing of
    the petition for review as a prerequisite to the exercise by
    the district court of its jurisdiction over the subject matter
    on an appeal from an adverse decision of an administra-
    tive agency.21
    The record indicated that the appellant in Concordia
    Teachers College filed an amended petition, but failed to
    17
    See, Butler Cty. Sch. Dist. v. Freeholder Petitioners, 
    283 Neb. 903
    , 
    814 N.W.2d 724
    (2012); Essman v. Nebraska Law Enforcement Training Ctr.,
    
    252 Neb. 347
    , 
    562 N.W.2d 355
    (1997).
    18
    J.P. v. Millard Public Schools, 
    285 Neb. 890
    , 
    830 N.W.2d 453
    (2013).
    19
    Essman, supra note 17.
    20
    Concordia Teachers College, supra note 6.
    21
    
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    serve the summons within 30 days and served it on the wrong
    entity. We determined that the appellant failed to invoke the
    subject matter jurisdiction of the district court.22 As a result,
    the district court did not acquire authority to review a labor
    commissioner’s ruling under the APA.23
    Similarly, in the instant case, the record indicates that J.S.
    timely filed her petition with the district court. However, she
    failed to serve a summons and a copy of the petition upon the
    Board. As a result, only one of the two actions required by
    § 79-289 was accomplished. J.S.’ failure to comply with the
    statutory requirements prevented the district court from obtain-
    ing subject matter jurisdiction, and as a result, its decision
    was void.
    CONCLUSION
    J.S. failed to seek district court review in the mode and
    manner provided by statute. By failing to serve the summons
    and a copy of the petition upon the Board, she failed to timely
    petition for review. The district court lacked subject matter
    jurisdiction under the Student Discipline Act. We likewise lack
    subject matter jurisdiction, and we dismiss J.S.’ appeal for
    lack of jurisdiction.
    A ppeal dismissed.
    22
    
    Id. 23 Id.