Kowalewski v. Madison Cty. Bd. of Comrs. , 310 Neb. 812 ( 2022 )


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    Nebraska Supreme Court Advance Sheets
    310 Nebraska Reports
    KOWALEWSKI v. MADISON CTY. BD. OF COMRS.
    Cite as 
    310 Neb. 812
    Ronald 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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    KOWALEWSKI v. MADISON CTY. BD. OF COMRS.
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    310 Neb. 812
    Heavican, 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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    KOWALEWSKI v. MADISON CTY. BD. OF COMRS.
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    310 Neb. 812
    Valley 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.
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    appeal 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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    KOWALEWSKI v. MADISON CTY. BD. OF COMRS.
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    310 Neb. 812
    In 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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    and 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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    court 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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    It 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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    dollar 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
    
    Id.
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    requires 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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    docket 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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    timely 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).