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Appeal from the District Court for Lancaster County: STEVEN D. BURNS, Judge.
Reversed in part, and in part dismissed.
Jon Bruning, Attorney General, and John L. Jelkin for appellant.
Elaine A. Waggoner, of Waggoner Law Office, for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller-Lerman, and Cassel, JJ.
1. Jurisdiction: Appeal and Error. An appellate court determines jurisdictional questions that do not involve a factual dispute as a matter of law.
2. Summary Judgment: Immunity: Appeal and Error. The district court's denial of summary judgment on grounds of qualified immunity is subject to de novo review.
3. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it, irrespective of whether the issue is raised by the parties.
4. Final Orders: Appeal and Error. Generally, only final orders are appealable.
5. Final Orders: Appeal and Error. Under Neb.Rev.Stat. § 25-1902 (Reissue 2008), the three types of final orders that an appellate court may review are (1) an order that affects a substantial right and that determines the action and prevents a judgment, (2) an order that affects a substantial right made during a special proceeding, and (3) an order that affects a substantial right made on summary application in an action after a judgment is rendered.
6. Summary Judgment: Final Orders. An order denying summary judgment is not a final order under Neb.Rev.Stat. § 25-1902 (Reissue 2008).
7. Final Orders. The collateral order doctrine is an exception to the final order rule.
8. Final Orders: Immunity: Appeal and Error. Under the collateral order doctrine, the denial of a claim of qualified immunity is appealable, notwithstanding the absence of a final judgment, if the denial of immunity turns on a question of law.
9. Final Orders: Immunity: Appeal and Error. The denial of a claim of qualified immunity is immediately reviewable under the collateral order doctrine where the issues presented are purely questions of law.
[287 Neb. 401] 10. Civil Rights: Public Officers and Employees: Immunity. Qualified immunity provides a shield from liability for public officials sued under 42 U.S.C. § 1983 (2006) in their individual capacity, so long as an official's conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.
11. Public Officers and Employees: Immunity. Whether an official may prevail in his or her qualified immunity defense depends upon the objective reasonableness of his or her conduct as measured by reference to clearly established law.
12. Trial: Immunity. Where appropriate, the issues relating to qualified immunity may be determined via a separate trial or evidentiary hearing.
13. Final Orders: Appeal and Error. In order to determine whether a case presents an order reviewable under the collateral order doctrine, an appellate court engages in a three-part inquiry: (1) whether the plaintiff has alleged the violation of a constitutional right, (2) whether that right was clearly established at the time of the alleged violation, and (3) whether the evidence shows that the particular conduct alleged was a violation of the right at stake.
14. Constitutional Law: Public Officers and Employees. The identification of protected conduct is a two-step process. As a threshold matter, the speech must have addressed a matter of public concern. Then, the interest of the employee in so speaking must be balanced against the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.
15. Constitutional Law. The inquiry into the protected status of speech is one of law.
16. Constitutional Law: Public Officers and Employees. The content, form, and context of a given statement must be considered in determining whether an employee's speech addresses a matter of public concern.
17. Constitutional Law: Public Officers and Employees. To fall within the realm of public concern, an employee's speech must relate to a matter of political, social, or other concern to the community.
18. Constitutional Law: Public Officers and Employees. The public concern test functions to prevent every employee's grievance from becoming a constitutional case and to protect a public employee's right as a citizen to speak on issues of concern to the community.
19. Constitutional Law: Public Officers and Employees. When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment.
20. Constitutional Law: Public Officers and Employees. First Amendment protection is not lost when a public employee communicates privately with his or her employer rather than choosing to spread his or her views before the public.
21. Constitutional Law: Public Officers and Employees. While a public employee does not give up his or her right to free speech simply because the employee's speech is private, the internal nature of the speech is a factor to be considered.
22. Constitutional Law: Public Officers and Employees. A public employee's speech on matters of purely personal interest or internal office affairs does not constitute a matter of public concern and is not entitled to constitutional protection.
23. Constitutional Law: Public Officers and Employees. The fundamental question in determining whether a public employee is speaking upon matters only of personal interest or upon matters of public [287 Neb. 402] concern is whether the employee is seeking to vindicate personal interests or bring to light a matter of political, social, or other concern to the community.
24. Constitutional Law: Public Officers and Employees. Factors relevant in determining whether an employee's speech undermines the effective functioning of the public employer's enterprise are whether the speech creates disharmony in the workplace, impedes the speaker's ability to perform his or her duties, or impairs working relationships with other employees.
25. Constitutional Law: Equal Protection: Public Officers and