Engler v. State

expenses in accordance with Neb. Rev. Stat. §§ 7‑114 and 7‑115
(Reissue 2007) and Neb. Ct. R. §§ 3‑310(P) and 3‑323(B) of
the disciplinary rules within 60 days after an order imposing
costs and expenses, if any, is entered by this court.
Judgment of public reprimand.
dave engler et al ., appellants , v. state
of nebraska accountability and
disclosure commission, appellee .
814 N.W.2d 387
Filed June 8, 2012. 	No. S‑11‑182.
1. Jurisdiction: Judgments: 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.
2. Statutes: Appeal and Error. Statutory interpretation is a question of law, which
an appellate court resolves independently of the trial court.
3. Constitutional Law: Legislature: Immunity: Waiver. Neb. Const. art. V, § 22,
is not self‑executing, but instead requires legislative action for waiver of the
State’s sovereign immunity.
4. Statutes: Immunity: Waiver. Statutes that purport to waive the protection of
sovereign immunity of the State or its subdivisions are strictly construed in favor
of the sovereign and against the waiver.
5. Immunity: 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.
6. Jurisdiction: Immunity. Sovereign immunity deprives a trial court of subject
matter jurisdiction unless the State consents to suit.
7. Jurisdiction: Appeal and Error. When a lower court lacks the authority to exer‑
cise its subject matter jurisdiction to adjudicate the merits of the 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.
Petition for further review from the Court of Appeals, irwin,
moore, and cassel, Judges, on appeal thereto from the District
Court for Lancaster County, robert r. otte, Judge. Judgment
of Court of Appeals affirmed.
Edward 	F. 	Fogarty, 	of 	Fogarty, 	Lund 	& 	Gross, 	for
appellants.
ENGLER v. StAtE 	985
Cite as 283 Neb. 985
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:42 AM CST

Jon Bruning, Attorney General, and Lynn A. Melson for
appellee.
H eavican, c.J., wrigHt, connolly, stepHan, mccormack ,
and miller-lerman, JJ.
miller-lerman, J.
NAtURE OF tHE CASE
the 	State 	of 	Nebraska 	Accountability 	and 	Disclosure
Commission 	(Commission) 	issued 	an 	advisory 	opinion
(Advisory Opinion No. 199), answering the question of whether
Omaha firefighters can engage in a campaign to raise funds for
the Muscular Dystrophy Association (MDA) during on‑duty
time paid for with taxpayer funds or using city‑owned uni‑
forms and equipment. the Commission answered “no,” stating
that such activities constitute a violation of Neb. Rev. Stat.
§ 49‑14,101.01(2) (Reissue 2010) of the Nebraska Political
Accountability and Disclosure Act (NPADA).
Nebraska Professional Firefighters Association; its president,
Dave Engler, and the MDA (collectively the appellants) filed
an action against the Commission, asking the district court for
Lancaster County to declare that Advisory Opinion No. 199
was invalid and to order it withdrawn from publication. the
district court determined that it lacked subject matter jurisdic‑
tion to review a Commission advisory opinion and granted the
Commission’s motion to dismiss.
On appeal, the Nebraska Court of Appeals agreed with the
district court’s analysis, summarily dismissed the appellants’
appeal for lack of jurisdiction, and denied the appellants’ sub‑
sequent motion for rehearing. We granted the appellants’ peti‑
tion for further review. Because we determine that the district
court correctly concluded that it lacked subject matter jurisdic‑
tion, we conclude that the Court of Appeals correctly dismissed
the appeal. We affirm.
StAtEMENt OF FACtS
In March 2010, the city of Omaha requested that the
Commission consider whether it was a violation of the NPADA
for Omaha firefighters to engage in fundraising for the MDA
986 	283 NEBRASkA REPORtS

while on city time using city‑owned uniforms and equip‑
ment. See Neb. Rev. Stat. §§ 49‑14,100 and 49‑14,123(10)
(Reissue 2010). the issue arose out of the firefighters’ par‑
ticipation in the MDA’s “Fill the Boot” campaign as part
of the Jerry Lewis Labor Day telethon. On March 12, the
Commission issued Advisory Opinion No. 199, in which the
Commission determined that such activities constitute a viola‑
tion of § 49‑14,101.01(2). Advisory Opinion No. 199 stated
that “Omaha Firefighters may not, under the terms of Section
49[‑14],101.01(2), use on duty time, paid for with taxpayer
funds, to engage in a campaign to raise funds for the [MDA],
which is a private, charitable corporation.”
On August 19, 2010, the appellants filed an amended peti‑
tion captioned “Amended Petition for Declaratory Judgment
(84‑911)” in which they requested that the district court review
the validity of Advisory Opinion No. 199. the petition alleged
that the advisory opinion was invalid and asked the court to
order it withdrawn from publication.
On September 1, 2010, the Commission filed a motion to
dismiss pursuant to Neb. Ct. R. Pldg. § 6‑1112(b)(1), for lack
of subject matter jurisdiction, and § 6‑1112(b)(6), for failure
to state a claim for relief. In an order, filed February 2, 2011,
the district court dismissed the action for lack of subject mat‑
ter jurisdiction. In its order, the court stated that the appellants
had alleged that the court had jurisdiction over the matter
pursuant to Neb. Rev. Stat. § 49‑14,131 (Reissue 2010) of the
NPADA and Neb. Rev. Stat. §§ 84‑911 and 84‑917 (Reissue
2008) of the Administrative Procedure Act (APA). However,
we note that the controlling petition did not allege § 84‑917 as
a jurisdictional basis and that the appellants did not claim on
appeal that jurisdiction is based on § 84‑917, which pertains
to contested cases. Further, because we determine below that
the appellants’ action did not meet the threshold requirements
of § 49‑14,131, we make no comment on the propriety of spe‑
cifically invoking § 84‑911 as the APA jurisdictional basis had
they done so.
In its order, the district court referenced § 49‑14,131 of
the NPADA, which provides that “[a]ny final decision by the
ENGLER v. StAtE 	987
Cite as 283 Neb. 985

[C]ommission in a contested case or a declaratory ruling made
pursuant to the [NPADA] may be appealed. the appeal shall be
in accordance with the [APA].”
Section 84‑911(1) of the APA provides in part that
[t]he validity of any rule or regulation may be deter‑
mined upon a petition for a declaratory judgment thereon
addressed to the district court of Lancaster County if
it appears that the rule or regulation or its threatened
application interferes with or impairs or threatens to
interfere with or impair the legal rights or privileges of
the petitioner.
the district court rejected the appellants’ argument that
Advisory Opinion No. 199 constituted a rule or regulation that
could be reviewed pursuant to § 84‑911 of the APA. the dis‑
trict court relied on cases such as Perryman v. Nebraska Dept.
of Corr. Servs., 253 Neb. 66, 568 N.W.2d 241 (1997), over-
ruled on other grounds, Johnson v. Clarke, 258 Neb. 316, 603
N.W.2d 373 (1999), and Logan v. Department of Corr. Servs.,
254 Neb. 646, 578 N.W.2d 44 (1998). thus, the court deter‑
mined that § 84‑911 did not provide jurisdiction for the court
to review Advisory Opinion No. 199.
Because the district court found there was no subject mat‑
ter jurisdiction, it declined to address the Commission’s argu‑
ment that the appellants’ petition failed to state a claim upon
which relief can be granted, pursuant to § 6‑1112(b)(6) of the
Nebraska Court Rules of Pleading in Civil Cases, thus follow‑
ing the procedure outlined in Doe v. Board of Regents, 280
Neb. 492, 788 N.W.2d 264 (2010), in which we held that con‑
sideration should first be given to subject matter jurisdiction
before considering possible dismissal based on a failure to state
a claim for relief. the court granted the Commission’s motion
to dismiss.
the appellants appealed the district court’s order. On April
11, 2011, the Nebraska Court of Appeals summarily dismissed
the appeal with the following docket entry:
Appeal 	dismissed 	pursuant 	to 	Neb. 	Ct. 	R. App. 	P.
§ 2‑107(A)(2). When a lower court lacks the authority to
exercise its subject matter jurisdiction to adjudicate the
merits of the claim, issue, or question, an appellate court
988 	283 NEBRASkA REPORtS

also lacks the power to determine the merits of the claim,
issue, or question presented to the lower court. kaplan v.
McClurg, 271 Neb. 101, 710 N.W.2d 96 (2006).
On April 21, 2011, the appellants filed a motion for rehearing.
the motion was denied.
We granted the appellants’ petition for further review.
ASSIGNMENt OF ERROR
the appellants claim, summarized and restated, that the
Court of Appeals erred when it concluded that both the district
court and the appellate court lacked jurisdiction to review the
Commission’s Advisory Opinion No. 199. Because there is no
merit to this assignment of error, we need not consider other
assigned errors addressed to the correctness of the content of
Advisory Opinion No. 199. See In re Interest of Hansen, 281
Neb. 693, 798 N.W.2d 398 (2011) (stating that appellate court
is not obligated to engage in analysis that is not necessary to
adjudicate case and controversy before it).
StANDARDS OF REVIEW
[1] 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. City of Waverly v. Hedrick, ante p. 464, 810 N.W.2d
706 (2012).
[2] Statutory interpretation is a question of law, which
an appellate court resolves independently of the trial court.
Republic Bank v. Lincoln Cty. Bd. of Equal., ante p. 721, 811
N.W.2d 682 (2012).
ANALYSIS
the appellants claim on further review that because the dis‑
trict court had erred when it determined that it lacked subject
matter jurisdiction over their petition, the Court of Appeals
also erred when it dismissed their appeal for lack of jurisdic‑
tion. there are no disputed issues of fact in this case, and thus
the jurisdictional issue before us is a matter of law which we
review independently of the lower courts. See City of Waverly
v. Hedrick, supra. We find no merit to the appellants’ claim
of error.
ENGLER v. StAtE 	989
Cite as 283 Neb. 985

the appellants sought relief in district court from an unfa‑
vorable advisory opinion issued by the Commission. the appel‑
lants refer us to §§ 49‑14,131 and 84‑911 as the jurisdictional
bases for seeking relief in district court. Section 49‑14,131 pro‑
vides: “Any final decision by the [C]ommission in a contested
case or a declaratory ruling made pursuant to the [NPADA]
may be appealed. the appeal shall be in accordance with the
[APA].” the appellants specifically relied on § 84‑911 of the
APA which concerns appeals involving the validity of rules or
regulations as the alleged APA basis of jurisdiction.
the language of § 49‑14,131 is clear that a petitioner can
file an appeal to the district court from outcomes in two identi‑
fied types of matters before the Commission: (1) a contested
case or (2) a declaratory ruling. Where there is a decision in
one of these two identified matters, the appeal shall follow
the procedure set forth in the APA. Reading §§ 49‑14,131 and
84‑911 together, it is also clear that the threshold requirements
of § 49‑14,131 must be met before taking an appeal in accord‑
ance with the APA. In sum, § 49‑14,131 identifies a “contested
case” and a “declaratory ruling” as the matters suitable for
APA appeal.
the parties agree that this matter does not involve a “con‑
tested case” under § 49‑14,131, and therefore, the issue
is whether an “advisory opinion” should be treated as a
“declaratory ruling” for the purposes of appealability under
§ 49‑14,131. the appellants contend that an advisory opinion
equates to a declaratory ruling and is thus appealable pursuant
to § 49‑14,131. We do not agree.
Statutory interpretation is a question of law. Republic Bank,
supra. the plain language of § 49‑14,131 does not support the
appellants’ interpretation. Section 49‑14,131 authorizes appeals
seeking relief against the Commission for the actions speci‑
fied, and such appeals shall be in accordance with the APA.
In this case, § 84‑911 of the APA is alleged to be the basis for
jurisdiction over the Commission. A suit against an agency of
the state is the same as a suit against the state, and therefore
the doctrine of sovereign immunity is implicated. See, Doe
v. Board of Regents, 280 Neb. 492, 788 N.W.2d 264 (2010);
Concerned Citizens v. Department of Environ. Contr., 244 Neb.
990 	283 NEBRASkA REPORtS

152, 505 N.W.2d 654 (1993). We have stated that § 84‑911
provides a limited statutory waiver of sovereign immunity.
See, Gaylen v. Balka, 253 Neb. 270, 570 N.W.2d 519 (1997);
Perryman v. Nebraska Dept. of Corr. Servs., 253 Neb. 66, 568
N.W.2d 241 (1997).
[3‑5] Neb. Const. art. V, § 22, provides that “[t]he state may
sue and be sued, and the Legislature shall provide by law in
what manner and in what courts suits shall be brought.” this
provision of the Constitution is not self‑executing, but instead
requires legislative action for waiver of the State’s sovereign
immunity. McKenna v. Julian, 277 Neb. 522, 763 N.W.2d 384
(2009). Statutes that purport to waive the protection of sover‑
eign immunity of the State or its subdivisions are strictly con‑
strued in favor of the sovereign and against the waiver. Britton
v. City of Crawford, 282 Neb. 374, 803 N.W.2d 508 (2011). A
waiver of sovereign immunity is found only where stated by
the most express language of a statute or by such overwhelm‑
ing implication from the text as will allow no other reasonable
construction. Id. As we consider § 49‑14,131, which provides
the rationale for invoking § 84‑911, we will not expand the
meaning of “declaratory ruling” in § 49‑14,131 to include
“advisory opinion” and thereby effectively expand § 84‑911—
unless the express language of § 49‑14,131 or the text of the
statute and the Commission’s rules and regulations provide an
overwhelming implication to do so. Neither the text nor the
rules and regulations so imply.
the express language of § 49‑14,131 allows appeals under
the APA only for contested cases and declaratory rulings: the
express language of the statute does not include appeals for
advisory opinions. Notwithstanding the statutory language, the
appellants urge us to imply that advisory opinions are encom‑
passed by § 49‑14,131. An examination of the rules and regula‑
tions of the Commission convinces us that it would not be pru‑
dent for us to imply that an advisory opinion is the equivalent
of a declaratory ruling for purposes of § 49‑14,131.
the Commission is authorized to “[p]rescribe and pub‑
lish . . . rules and regulations . . . pursuant to the [APA].”
§ 49‑14,123(1). We have stated that we may take judicial
notice of state agencies’ rules and regulations. See, JCB
ENGLER v. StAtE 	991
Cite as 283 Neb. 985

Enters. v. Nebraska Liq. Cont. Comm., 275 Neb. 797, 749
N.W.2d 873 (2008); Gase v. Gase, 266 Neb. 975, 671 N.W.2d
223 (2003); Neb. Rev. Stat. § 84‑906.05 (Reissue 2008). the
Commission’s rules and regulations make clear that advisory
opinions, contested cases, and declaratory rulings are three dif‑
ferent and distinct categories of matters that come before the
Commission. the Commission’s rules and regulations provide
three separate rules, identified as “1‑(5) Advisory Opinions,”
“1‑(6) Contested Cases,” and “1‑(4) Declaratory Rulings.”
4 Neb. Admin. Code, ch. 1 (1990). Each rule has subparts
not repeated here regarding detailed procedures for pursuing
each avenue. Where advisory opinions, contested cases, and
declaratory rulings are so clearly distinct from one another,
the Commission’s rules and regulations do not permit us to
imply that advisory opinions are the equivalent of either of the
appealable matters identified in § 49‑14,131, to wit, contested
cases and declaratory rulings.
For completeness, we note that the Commission’s rules
and regulations further provide that an advisory opinion can
be challenged by seeking a declaratory ruling regarding the
same subject. the Commission’s rules provide: “GRIEVANCE
WItH 	ADVISORY 	OPINION: 	Any 	person 	or 	governing
body aggrieved by an official advisory opinion issued by the
Commission may file a petition for declaratory ruling pursu‑
ant to the provisions of 1‑(4).” 4 Neb. Admin. Code, ch. 1,
§ 1‑(5)(b). If a grievance with an advisory opinion is pursued
and results in an unfavorable declaratory ruling, such declara‑
tory ruling can then be appealed pursuant to § 49‑14,131 in
accordance with the APA.
there is no allegation or suggestion that a grievance regard‑
ing Advisory Opinion No. 199 was filed seeking a declara‑
tory ruling. the appellants did not exhaust or allege that they
exhausted the available administrative remedies which, if unsuc‑
cessful, could have recast the advisory opinion into an appeal‑
able declaratory ruling. See 73 C.J.S. Public Administrative
Law and Procedure § 79 at 272 (2004) (stating that “[w]here
an administrative remedy is provided, particularly where it is
provided by statute or rules or regulations having the force
of law, relief ordinarily must be sought initially from the
992 	283 NEBRASkA REPORtS

appropriate administrative agency and the administrative rem‑
edy usually must be exhausted before a litigant may resort to
the courts”). Compare § 84‑911(1) (not requiring exhaustion
with respect to rules and regulations). Under the Commission’s
rules and regulations, there was an opportunity for the appel‑
lants whose standing has not been challenged to turn Advisory
Opinion No. 199 into a declaratory ruling which is the kind
of matter appealable under § 49‑14,131 in accordance with
the APA.
[6,7] In sum, the appellants rely on § 49‑14,131 as the
rationale for jurisdiction under the APA, but they do not have
a decision that fits under § 49‑14,131. Sovereign immunity
deprives a trial court of subject matter jurisdiction unless the
State consents to suit. See McKenna v. Julian, 277 Neb. 522,
763 N.W.2d 384 (2009). Section 84‑911, upon which appel‑
lants rely and upon which the case was considered in the lower
courts, is a limited waiver of sovereign immunity, and the
advisory opinion which the appellants seek to have reviewed
in their case against the Commission is not a matter for which
waiver has been granted. Accordingly, the district court cor‑
rectly determined that it lacked subject matter jurisdiction
to review Advisory Opinion No. 199. When a lower court
lacks the authority to exercise its subject matter jurisdiction
to adjudicate the merits of the 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.
Kaplan v. McClurg, 271 Neb. 101, 710 N.W.2d 96 (2006).
thus, the Court of Appeals did not err when it dismissed the
appellants’ appeal.
CONCLUSION
the Court of Appeals correctly determined that the district
court lacked subject matter jurisdiction over the appellants’
petition for review of the Commission’s Advisory Opinion No.
199. the Court of Appeals summarily dismissed the appellants’
appeal. On further review, we conclude the Court of Appeals
did not err and we affirm.
affirmed.
ENGLER v. StAtE 	993
Cite as 283 Neb. 985