Melissa Burke, appellant and cross-appellee.
Board of Trustees of the Nebraska State Colleges, appellee and cross-appellant.
immunity is jurisdictional in nature, and courts have a duty
to determine whether they have subject matter jurisdiction
over a matter. Subject matter jurisdiction is a question of
Judgments: Jurisdiction: Appeal and Error.
jurisdictional question does not involve a factual dispute,
the issue is a matter of law. An appellate court reviews
questions of law independently of the lower court's
Actions: Colleges and Universities.
action against the Board of Trustees of the Nebraska State
Colleges is an action against the State of Nebraska.
Constitutional Law: Immunity: States. The
sovereign immunity of a state neither derives from nor is
limited by the terms of the 11th Amendment to the U.S.
Constitution. Rather, a state's immunity from suit is a
fundamental aspect of sovereignty.
Statutes: Immunity: Waiver.
that purport to waive the State's protection of sovereign
immunity are strictly construed in favor of the sovereign and
against the waiver.
___: ___:___ .A waiver of sovereign immunity is found only
where stated by the most express language of a statute or by
such overwhelming implication from the text as will allow no
other reasonable construction.
Immunity: Waiver: Jurisdiction:
legislative action waiving sovereign immunity, a trial court
lacks subject matter jurisdiction over an action against the
State. [302 Neb. 495]
Declaratory Judgments: Immunity: Waiver.
Nebraska's Uniform Declaratory Judgments Act does not
waive the State's sovereign immunity.
Actions: Colleges and Universities:
Immunity: Waiver: Legislature.
in Neb. Rev. Stat. § 85-302 (Reissue 2014) permitting
the Board of Trustees of the Nebraska State Colleges to
"sue and be sued" is not self-executing, prescribes
no terms or conditions under which the board can be sued, and
is not an express legislative waiver of sovereign immunity.
Jurisdiction: Appeal and Error.
lower court does not gain jurisdiction over the case before
it, an appellate court also lacks jurisdiction to review the
merits of the claim.
from the District Court for Dawes County: Derek C. Weimer,
Nicholas J. Welding, of Norby & Welding, L.L.P., for
E. Martin III, of Baird Holm, L.L.P., for appellee.
Heavican, C.J., Cassel, Stacy, Funke, Papik, and Freudenberg
Burke began working at Chadron State College in 2007. In
April 2016, she was notified her employment contract would
not be renewed for the upcoming contract year. Burke filed a
declaratory judgment action in district court against the
governing body of Chadron State College, alleging she had not
been notified of the nonrenewal within the timeframe required
by a collective bargaining agreement. The district court
dismissed the action on summary judgment, and Burke appeals.
We find Burke's action is barred by the doctrine of
sovereign immunity, and therefore, we vacate the district
court's judgment and dismiss this appeal for lack of
subject matter jurisdiction.
underlying facts are largely undisputed, and most have been
stipulated by the parties. Burke brought this action against
[302 Neb. 496] the Board of Trustees of the Nebraska State
Colleges (the Board). The Board is the governing body of
Chadron State College, Wayne State College, and Peru State
College. The Board was created by article VII,
§ 13, of the Nebraska Constitution, and its duties and
powers are prescribed by the Legislature. The Legislature
describes the Board as "a body
corporate" and as a "representative" of the
2007, Burke was hired to work at Chadron State College. At
all relevant times, she was a member of a bargaining unit
represented by the Nebraska State College System Professional
Association. As such, the terms and conditions of her
emploment were provided in collective bargaining agreements
between the association and the Board.
entered into yearly employment contracts with the Board for
specific positions at Chadron State College. The term of each
contract was from July 1 to June 30. As relevant to this
case, the collective bargaining agreement requires that
association members in their first year of employment must be
given notice that their contract will not be renewed 30 days
prior to its expiration. Association members in their second
year of employment must be given notice 120 days prior to
contract expiration, and members in their third and
subsequent years of employment must be given notice 180 days
prior to contract expiration.
2007 to 2011, Burke was an athletic administrative assistant
at Chadron State College. From 2011 to 2015, Burke was a
compliance coordinator at Chadron State College. In early
2015, Burke requested a review of her job duties, and in
March 2015, her job was changed and she began working [302
Neb. 497] as an associate athletic director. The parties
generally dispute whether this change was a reclassification
or a transfer. If it was a reclassification, then under the
collective bargaining agreement, Burke kept her prior years
of service for purposes of notice of nonrenewal. If it was a
transfer, then Burke's years of service started over for
purposes of notice of nonrenewal. The parties do not dispute
the meaning of the terms "reclassification" and
"transfer" in the collective bargaining agreement;
rather, the dispute is over the underlying facts of
Burke's change in employment and whether it amounted to a
"reclassification" or a "transfer" under
April 8, 2016, Burke was notified via letter from the
president of Chadron State College that her employment
contract would not be renewed for the 2016-17 contract year.
Her 2015 contract was due to expire on June 30, 2016. Burke
believed this notice was untimely, because she understood
that her job had been reclassified and that she retained her
prior years of service and, per the collective bargaining
agreement, was entitled to 180 days' notice that her
contract would not be renewed. The Board, however, reasoned
that Burke had been transferred in 2015, and not
reclassified, and that her years of service for computing
notice of nonrenewal started over and she was entitled to
only 30 days' notice of nonrenewal.
collective bargaining agreement contains a grievance
procedure designated as "the exclusive method for
resolving grievances concerning the administration of this
Agreement." It defines a grievance as a "dispute .
. . concerning the interpretation or application of this
Agreement." The grievance procedure has several steps,
one of which involves an evidentiary hearing before a
committee. The grievance procedure culminates with an appeal
to the chancellor. Thereafter, any party who is dissatisfied
with the chancellor's decision "may seek relief
under applicable State or Federal laws" or, if the
parties agree, through binding arbitration. The parties agree
Burke did [302 Neb. 498] not initiate or exhaust the
grievance procedure before filing this declaratory judgment
action in district court.
Declaratory Judgment Action
8, 2016, a few weeks before her 2015 employment contract was
to expire, Burke filed what she styled as a declaratory
judgment action in the district court for Dawes County,
Nebraska. Her complaint alleged the Board had breached the
collective bargaining agreement by failing to timely notify
her in writing of its intent not to renew her employment
contract. The complaint sought a declaration that as a result
of the breach, Burke was entitled to an employment contract
for the 2016-17 contract year. The complaint also sought a
declaration that Burke was entitled to "all salary and
fringe benefits associated with her employment," as well
as back pay and consequential damages.
Burke filed her complaint, the Board moved to dismiss. It
argued the court lacked subject matter jurisdiction, because
Burke's action was not really seeking a declaration
regarding construction of a contract, but, rather, was
seeking relief for breach of contract. The Board also argued
that to the extent the complaint sought declaratory relief,
Burke had another equally serviceable remedy, namely, an
action for breach of contract. The district court overruled
the motion to dismiss, reasoning it had subject matter
jurisdiction over the declaratory judgment action and had the
discretion to entertain it.
Burke's declaratory judgment action was pending, we
issued our opinion in Armstrong v. Clarkson College,
that case, we held that the "exhaustion of a mandatory
grievance procedure in a contract is a condition precedent to
enforcing the rights under that contract." In response to
Armstrong, the Board moved for summary judgment,
arguing Burke's action [302 Neb. 499] was barred because
she failed to exhaust the mandatory grievance procedure in
the collective bargaining agreement before filing suit.
district court granted summary judgment in favor of the Board
and dismissed Burke's complaint. Burke filed this timely
appeal, and the Board ...