Stuart Kozal, doing business as Jumping Eagle Inn. et al., appellees and cross-appellees, Nebraska Liquor Control Commission, appellant, and Abram Neumann et al., appellees and cross-appellants.
1. Judgments: Jurisdiction: Appeal
and Error. Determination of a jurisdictional issue
which does not involve a factual dispute is a matter of law
which requires an appellate court to reach its conclusions
independent from a trial court.
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.
___:___ . Where a lower court lacks subject matter
jurisdiction to adjudicate the merits of a claim, issue, or
question, an appellate court also lacks the power to
determine the merits of the claim, issue, or question
presented to the lower court.
___:___. When an appellate court is without jurisdiction to
act, the appeal must be dismissed. However, an appellate
court has the power to determine whether it lacks
jurisdiction over an appeal because the lower court lacked
jurisdiction to enter the order; to vacate a void order; and,
if necessary, to remand the cause with appropriate
Administrative Law: Liquor Licenses: Judgments:
Appeal and Error. Under the Nebraska Liquor Control
Act, an order of the Nebraska Liquor Control Commission
granting, denying, suspending, canceling, revoking, or
renewing or refusing to suspend, cancel, revoke, or renew a
license may be appealed in accordance with the Administrative
Administrative Law: Final Orders: Appeal and
Error. Under the Administrative Procedure Act, any
person aggrieved by a final decision in a contested case may
obtain judicial review in district court.
Neb. 939] 7. Administrative Law: Courts: Appeal and
Error. An Administrative Procedure Act proceeding in
district court for review of a decision by an administrative
agency is not an "appeal" in the strict sense of
the term, meaning the power and authority conferred upon a
superior court to reexamine and redetermine causes tried in
inferior courts, but, rather, is the institution of a suit to
obtain judicial branch review of a nonjudicial branch
Administrative Law: Judgments: Appeal and
Error. In an Administrative Procedure Act review
proceeding, the district court reviews the agency's
decision de novo on the record of the agency and may affirm,
reverse, or modify the decision of the agency or remand the
case for further proceedings.
___: ___ . The Administrative Procedure Act provides that a
party initiating review in the district court must do so by
filing a petition in the district court of the county where
the action is taken within 30 days of service of the
agency's final decision and that all parties of record
shall be made parties to the proceedings for review.
Administrative Law: Jurisdiction: Appeal and
Error. 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.
Administrative Law: Parties: Jurisdiction: Appeal and
Error. The Administrative Procedure Act's
requirement that a petitioner make all parties of record in
the agency proceeding parties to the proceeding for review is
necessary to confer subject matter jurisdiction on the
Parties: Appeal and Error.
Because the Administrative Procedure Act is a procedural
statute that applies to a variety of agencies and types of
agency proceedings, determining which parties qualify as
"parties of record" requires looking at the nature
of the administrative proceeding under review.
Legislature: Statutes: Intent. The
Legislature may limit the scope of a statutory definition to
a particular section, act, or chapter.
Administrative Law: Liquor Licenses: Parties: Appeal
and Error. Neb. Rev. Stat. § 53-1, 115 (Reissue
2010) defines which parties qualify as "parties of
record" in proceedings of the Nebraska Liquor Control
Commission and thus must be included in the district
court's Administrative Procedure Act review of the
Statutes: Intent. When interpreting a
statute, the starting point and focus of the inquiry is the
meaning of the statutory language, understood in context.
Neb. 940] 16. ___:___.A court ascertains the meaning of a
statute by reading it in pari materia, in light of the
broader structure of the relevant act and related statutes.
Statutes: Legislature: Intent. Where
appropriate, a court may consider legislative history in
order to better understand a statute's context.
Statutes. It is a fundamental rule of
statutory interpretation that courts should, if possible,
avoid any interpretation that renders a portion of the
statute as superfluous.
Statutes: Words and Phrases. A statutory
definition of a term found in one statute may be considered
when interpreting that same term as used in a different
Administrative Law: Parties: Jurisdiction: Appeal and
Error. The failure to make a party of record in the
agency proceedings a party to the proceedings for review as
required by the Administrative Procedure Act is a failure to
seek review in the mode and manner provided by statute that
deprives the district court of jurisdiction.
from the District Court for Lancaster County: Andrew R.
Jacobsen, Judge. Vacated and dismissed.
Douglas J. Peterson, Attorney General, James D. Smith, and
Milissa D. Johnson-Wiles for appellant. David A. Domina, of
Domina Law Group, PC, L.L.O., for appellees Abram Neumann et
W. Snyder, of Chaloupka, Holyoke, Snyder, Chaloupka &
Longoria, P.C., L.L.O., for appellees Stuart Kozal, doing
business as Jumping Eagle Inn, et al.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch,
and Funke, JJ.
often unremarkable process of renewing a liquor license has
involved considerable controversy for the four beer retailers
in this case. These retailers are located in the
unincorporated border town of Whiteclay, Nebraska, which is
just across the state line from the Pine Ridge Indian
Reservation in South Dakota, where the sale and consumption
of alcohol is [297 Neb. 941] prohibited. The Nebraska Liquor
Control Commission (Commission) denied the retailers'
license renewal applications. Pursuant to the Administrative
Procedure Act (APA), the retailers petitioned for review to the
Lancaster County District Court, which vacated the
Commission's order. The Commission and some of the
citizen objectors appealed.
decision today does not address the merits of the
parties' respective positions, but rests solely on
jurisdictional grounds. To obtain judicial review of an
administrative agency's order under the APA, a party must
include all "parties of record" from the agency
proceeding. Under the Nebraska Liquor Control Act,
local residents who formally object to the issuance of a
liquor license (citizen objectors) are "parties of
record" in the licensure proceeding before the
Commission. In this case, when they sought review in the
district court, the retailers failed to include the citizen
objectors. Thus, the retailers did not comply with the
requirements for judicial review under the APA and the
district court lacked jurisdiction over the retailers'
petition for review. Because the district court lacked
jurisdiction, its order is void and we lack jurisdiction over
this appeal from the district court. We vacate the district
court's order and dismiss this appeal.
appellees, Stuart Kozal, doing business as Jumping Eagle Inn;
Arrowhead Inn, Inc., doing business as Arrowhead Inn; Clay
Brehmer and Daniel Brehmer, doing business as State Line
Liquor; and Sanford Holdings, L.L.C., doing business as D
& S Pioneer Services (collectively the retailers), held
Class B liquor licenses, authorizing them to sell packaged
beer for consumption off the premises. The Commission
required the retailers to submit "long form"
applications to renew their [297 Neb. 942] liquor licenses
rather than allowing them to use the "short form"
automatic renewal process.
the retailers submitted their applications, the Commission
received 13 written objections from citizens of Sheridan
County, protesting the renewal of the retailers'
licenses. That number was later reduced to 12 when the
Commission determined in a prehearing order that one of the
objectors was not a resident of Sheridan County. Under §
53-133(1)(h), the filing of "objections in writing by
not less than three persons residing within such city,
village, or county, protesting the issuance of the
license" triggers a requirement that the Commission hold
a hearing on the contested applications.
hearing was held on April 6, 2017. On April 19, the
Commission voted to deny the retailers' applications and
issued a written order detailing its findings of fact and
conclusions of law on April 24.
following day, the retailers filed a petition, pursuant to
§ 84-917 of the APA, in the Lancaster County District
Court.The retailers argued that the
Commission's requirement that they file "long
form" applications and the denial of those applications
was arbitrary and capricious and contrary to the Nebraska
Liquor Control Act and the rulings of this court. But in
seeking review in the district court, the retailers failed to
make the citizen objectors parties to the petition for review
under the APA.
retailers simultaneously filed a motion to stay the
Commission's order during the pendency of the review,
which order was set to go into effect on April 30, 2017. A
hearing was scheduled and held on April 26 in the Lancaster
County District Court. Notice of the hearing was given only
to the assistant attorney general representing the
Commission. The only attorneys appearing at the hearing were
those for the retailers and the Commission. The citizen
objectors were not included at any point in the district
Neb. 943] On April 27, 2017, the district court entered an
order. In spite of holding a hearing and receiving arguments
on the motion to stay, the district court ruled on the merits
of the case. The district court, relying on this court's
holdings in Pump & Pantry, Inc. v. City of Grand
Island and Grand Island Latin Club v.
Nebraska Liq. Cont. Comm.,  vacated the Commission's
order and remanded the cause to the Commission with
instructions to allow the retailers to renew their licenses
through the "short form" automatic renewal process.
April 27, 2017, the same day as the district court's
order, the Commission appealed the order. We moved the appeal
from the Nebraska Court of Appeals' docket to this
26, 2017 (more than 30 days after the Commission's order
but less than 30 days after the district court's order),
four of the citizen objectors, represented by counsel, filed
a notice of appeal from the district court's order. These
citizen objectors argued that they were "parties of
record" in the Commission's licensure proceeding,
but were not made parties to the APA review in the district
court. We docketed this ...