Moore v. Black
| Decision Date | 31 May 1985 |
| Docket Number | No. 84-715,84-715 |
| Citation | 220 Neb. 122,368 N.W.2d 488 |
| Parties | Robert N. MOORE, Jr., Also Known As Robert Thomas, Appellant, v. Charles BLACK, Warden, Nebraska State Penitentiary, et al., Appellees. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Appeal and Error. Where no other method of appeal is provided, one may obtain judicial review by proceedings in error under Neb.Rev.Stat. §§ 25-1901 et seq. (Reissue 1979).
2. Jurisdiction: Time: Appeal and Error. The time within which an appeal must be taken is mandatory and must be met in order for the appellate tribunal to acquire jurisdiction of the subject matter.
3. Administrative Law: Collateral Attack. Unless void, the determination of state and county officers or boards of officers who act judicially in matters of administration is not subject to collateral attack.
4. Declaratory Judgment. A declaratory judgment action is not a substitute for new trial or appeal, nor does it operate to supersede former adjudications or proper proceedings already pending in a court.
5. Declaratory Judgment. Ordinarily, an action for a declaratory judgment will not be entertained where another equally serviceable remedy has been provided by law.
Dennis R. Keefe, Lancaster County Public Defender, and Richard L. Goos, Special Deputy Public Defender, Lincoln, for appellant.
A. Eugene Crump, Deputy Atty. Gen., and Linda L. Willard, Lincoln, for appellees.
Plaintiff, Robert N. Moore, Jr., appeals from the dismissal of his petition against the defendant prison warden and others, which petition sought a declaration that his rights were violated by the manner in which his prison disciplinary proceeding was conducted, and for restoration of his good time and other relief. His five assignments of error present two issues: (1) Whether the sole avenue for judicial review of the decision of the Administrative Appeal Board of the Nebraska Penal Complex was by a proceeding in error; and (2) Whether the hearing before the disciplinary committee of the Nebraska Penal Complex was conducted in such a manner as to violate his rights under the statutes of this state, under the state and federal Constitutions, and under the rules and regulations of the Department of Correctional Services. We determine that Moore's sole avenue of review was by a proceeding in error. In view of that determination we do not reach the second issue. We affirm.
Moore, an inmate at the Nebraska Penal and Correctional Complex, was charged with assault and possession or manufacture of a weapon, in violation of prison disciplinary rules, in connection with a stabbing incident in which another inmate was injured. The disciplinary committee, on September 1, 1982, found, after an evidentiary hearing, that Moore was guilty of both charges. The committee then ordered him to serve 4 years in the Adjustment Center at the penal complex and revoked all of his good time. Moore appealed to the Administrative Appeal Board which, on November 23, 1982, denied relief.
On May 19, 1983, Moore made a pro se filing in the district court of a document entitled "Petition for Writ of Habeas Corpus" against Charles Black, warden of the penitentiary, seeking restoration of his good time. No transcript of the proceedings before the board was filed with the petition.
On June 6, 1983, the Lancaster County public defender's office entered the case by filing a document entitled "Amended Petition for Declaratory Judgment," seeking the reliefs mentioned in the first paragraph of this opinion. This document alleges that at the hearing before the disciplinary committee a variety of Moore's constitutional rights were violated by the denial of his right to produce witnesses and his right to have his accusers present and that the evidence was inadequate to support the committee's findings. On July 21, 1983, Moore made a second pro se filing, entitled "Second Amended Petition for Declaratory Judgement," against Black and the unnamed members of the disciplinary committee, setting forth in greater detail the events which allegedly violated his constitutional rights.
On June 27, 1984, following a trial at which evidence was presented, the district court dismissed the action on the basis that an appeal from the board can only be had by a proceeding in error under the provisions of Neb.Rev.Stat. §§ 25-1901 et seq. (Reissue 1979). The trial court concluded that Moore's failure to file his appeal within a month of the date of the board's order deprived that court of jurisdiction.
The statutes dealing with disciplinary proceedings in adult institutions administered by the Department of Correctional Services do not make any provision for an appeal from the determinations of the board. Neb.Rev.Stat. §§ 83-4,109 through 83-4,123 (Reissue 1981). However, §§ 83-4,123 provides: "Nothing in sections 83-4,109 to 83-4,123 shall be construed as to restrict or impair an inmate's free access to the courts and necessary legal assistance in any cause of action arising under sections 83-4,109 to 83-4,123."
Section 25-1901 provides: "A judgment rendered, or final order made, by any tribunal, board or officer exercising judicial functions, and inferior in jurisdiction to the district court, may be reversed, vacated or modified by the district court."
We have held that where no other method of appeal is provided, one may obtain judicial review by proceedings in error under §§ 25-1901 et seq. Fisher v. Housing Auth. of City of Omaha, 214 Neb. 499, 334 N.W.2d 636 (1983), discussed in detail later in this opinion; Languis v. De Boer, 181 Neb. 32, 146 N.W.2d 750 (1966); Cacek v. Munson, 160 Neb. 187, 69 N.W.2d 692 (1955). However, as in all appeals, the time requirements are mandatory and must be met in order for the appellate tribunal to acquire jurisdiction of the subject matter. Wood v. Village of Culbertson, 220 Neb. 94, 368 N.W.2d 468 (1985); Marcotte v. City of Omaha, 196 Neb. 217, 241 N.W.2d 838 (1976).
Section 25-1931 provides: "No proceedings for reversing, vacating, or modifying judgments or final orders shall be commenced unless within one calendar month after the rendition of the judgment or making of the final order complained of...." Section 25-1905 further requires: "The plaintiff in error shall file with his petition a transcript of the proceedings containing the final judgment or order sought to be reversed, vacated or modified."
Since Moore failed to satisfy the requirements of §§ 25-1905 and 25-1931, it is clear that no valid proceeding for review by error was perfected. Fisher v. Housing Auth. of City of Omaha, supra.
Thus, we confront Moore's claim that he is entitled to a judicial review by his suit for a declaratory judgment.
Neb.Rev.Stat. §§ 25-21,149 through 25-21,164 (Reissue 1979) address the nature and the use of such actions. Section 25-21,149 provides:
Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect; and such declarations shall have the force and effect of a final judgment or decree.
Section 25-21,150 provides in pertinent part: "Any person ... whose rights, status or other legal relations are affected by a statute ... may have determined any question of construction or validity arising under the ... statute ... and obtain a declaration of rights, status or other legal relations thereunder."
In Fisher v. Housing Auth. of City of Omaha, supra, Fisher brought an appeal to the district court under the Administrative Procedures Act, Neb.Rev.Stat. §§ 84-901 et seq. (Reissue 1981), together with a separate claim for damages on the ground that his...
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