Riley v. State

Decision Date01 October 1993
Docket NumberNo. S-91-541,S-91-541
PartiesBryan RILEY, Appellant, v. STATE of Nebraska, Appellee.
CourtNebraska Supreme Court

Syllabus by the Court

1. Jurisdiction: Words and Phrases. Subject matter jurisdiction is a court's power to hear and determine a case of the general class or category to which the proceedings in question belong and to deal with the general subject involved in the action before the court.

2. Constitutional Law: Legislature: States: Immunity: Waiver. Although 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," Neb. Const. art. V, § 22, is not self-executing. Rather, Neb. Const. art. V, § 22, requires legislative action for waiver of a state's sovereign immunity.

3. Actions: Statutes: States: Immunity. A statute authorizing an action against the state is strictly construed because the statute is in derogation of the state's sovereign immunity.

4. Actions: Declaratory Judgments: Statutes: States: Immunity. Generally, an action for a declaratory judgment cannot be maintained against the state without its consent because the state's immunity from suit is unaffected by declaratory judgment statutes, although a declaratory judgment action may be maintained under statutes permitting actions against the state.

5. Declaratory Judgments: Immunity: Waiver. Nebraska's Uniform Declaratory Judgments Act, Neb.Rev.Stat. §§ 25-21,149 to 25-21,164 (Reissue 1989 & Cum.Supp.1992), is inoperative as a waiver of the State of Nebraska's sovereign immunity.

6. Administrative Law: Declaratory Judgments: Statutes: Immunity: Waiver: Jurisdiction. Neb.Rev.Stat. § 84-911 (Reissue 1987) of the Administrative Procedure Act provides a limited statutory waiver of sovereign immunity and confers subject matter jurisdiction for a declaratory judgment concerning the validity of a state agency's rule or regulation.

7. Administrative Law. Neb.Rev.Stat. § 84-911 (Reissue 1987) of the Administrative Procedure Act is limited to judicial determination of the validity of any rule or regulation of a state agency and does not confer jurisdiction for judicial resolution of a factual question pertaining to the merits of a controversy.

8. Declaratory Judgments: Summary Judgment. Summary judgment may be obtained in a declaratory judgment proceeding.

9. Summary Judgment: Evidence. A summary judgment involves a judicial evaluation of evidence to determine whether an issue of material fact exists and, therefore, is 10. Courts: Judgments: Jurisdiction. For validity of a judgment, a court must have jurisdiction to decide a question or issue in the subject matter presented to the court and to render a particular remedy or relief appropriate to the subject matter and controversy adjudicated.

a factual determination resulting in a disposition of the factual merits of a controversy.

J. Murry Shaeffer, Lincoln, for appellant.

Don Stenberg, Atty. Gen., and Lisa D. Martin-Price, Lincoln, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, FAHRNBRUCH, and LANPHIER, JJ.

SHANAHAN, Justice.

Bryan Riley brought a declaratory judgment action, see Neb. Rev.Stat. ss25-21,149 to 25-21,164 (Reissue 1989 & Cum.Supp.1992), concerning administrative termination of his employment as a correctional officer at the Community Corrections Center in Lincoln. The district court for Lancaster County entered judgments that the court lacked subject matter jurisdiction and that the State of Nebraska was entitled to a summary judgment. Riley appeals from those judgments.

ADMINISTRATIVE BACKGROUND

On January 22, 1990, and while employed by the Department of Correctional Services (Department) as a correctional officer, Bryan Riley was directed by written order from the Department's interim director to take a polygraph examination concerning an allegation that Riley had removed checks from within the correctional facility contrary to the Department's regulations. On January 23, Riley appeared for the polygraph, which was to be administered by a Nebraska State Patrol investigator, but refused to sign a waiver that stated that Riley's participation in the examination was voluntary.

The Department's administrative regulation § 112.32 states that Department employees may be ordered to submit to polygraph examinations "upon penalty of dismissal, if their duties involve public law enforcement." Subsection E of that same regulation further provides that when an employee submits to a polygraph examination ordered by the director of the Department,

the employee's execution of such a waiver shall only indicate that the employee has complied with the Department's order and shall not be deemed by the Department to waive any rights that the employee may have under the terms of the Director's order. The employee's failure to submit to a polygraph examination due to a refusal to sign such a waiver shall be deemed to be a violation of the Director's order.

On January 24, a "statement of charges" was presented to Riley, charging him with

(a) violating a written order, specifically not submitting to a polygraph examination on January 23, 1990[;]

(b) carrying inmate checks and cash out of the institution contrary to Department regulations[;]

(c) disrespectful conduct toward ... a Department security coordinator; and

(d) committing an act on or off the job which adversely affected the employee's performance and/or the Department's performance and functions.

After an evidentiary hearing before the warden, Riley was found guilty of all charges and was discharged from his employment on February 13.

On February 27, Riley invoked the grievance procedure prescribed by article 27 of the labor contract between the State of Nebraska and the Nebraska Association of Correctional Employees/American Federation of State, County, and Municipal Employees. Riley's grievance was denied, and on March 23, in accordance with the labor contract, he filed an "Appeal to Arbitration" for a hearing by the Nebraska Department of Personnel. See Neb.Rev.Stat. § 81-1301 et seq. (Reissue 1987 & Cum.Supp.1992). Section 81-1319 of the personnel act allows an employee's appeal from the personnel board's decision so that the employee may obtain a judicial de novo review on the record of the agency pursuant to the Administrative Procedure Act, Neb.Rev.Stat. §§ 84-901 to 84-920 (Reissue 1987 & Cum.Supp.1992).

JUDICIAL PROCEEDINGS

While the proceedings before the State Personnel Board were pending, Riley, on May 24, filed his petition for declaratory relief in the district court for Lancaster County. Generally, Riley asked the court to define "law enforcement officer," as used in Neb.Rev.Stat. § 81-1401(3) (Reissue 1987), and declare the rights of the parties under Neb.Rev.Stat. § 81-1901 et seq. (Reissue 1987 & Cum.Supp.1992), the Licensing of Truth and Deception Examiner's Act. Specifically, Riley requested declarations that, notwithstanding the Department's regulations, (1) the Department's employees are not required to submit to polygraph examinations; (2) Riley is not a law enforcement officer as defined by the statutes of the State of Nebraska; and (3) if Riley is a law enforcement officer, he is not required to sign a waiver of liability for the polygraph examiner or a statement that he was voluntarily taking the polygraph examination when he was under a departmental order to submit to the examination.

The State demurred to Riley's petition on the ground that the district court lacked subject matter jurisdiction. After the court overruled the demurrer, the State moved for summary judgment. After receipt of evidence for a summary judgment on Riley's claim, the court concluded that it lacked subject matter jurisdiction, granted summary judgment to the State, and dismissed Riley's action with prejudice.

ASSIGNMENTS OF ERROR

Riley contends that the district court erred in (1) finding that it lacked subject matter jurisdiction and (2) entering a summary judgment for the State when there was a genuine issue of material fact.

STANDARD OF REVIEW

"When a jurisdictional question does not involve a factual dispute, determination of the jurisdictional issue is a matter of law, which requires an appellate court to reach a conclusion independent from the trial court's conclusion on the jurisdictional issue." Williams v. Gould, Inc., 232 Neb. 862, 871, 443 N.W.2d 577, 584 (1989). See, also, Huffman v. Huffman, 232 Neb. 742, 441 N.W.2d 899 (1989).

Summary judgment is appropriate where "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Neb.Rev.Stat. § 25-1332 (Reissue 1989). See, also, Sports Courts of Omaha v. Meginnis, 242 Neb. 768, 497 N.W.2d 38 (1993); Anderson v. Service Merchandise Co., 240 Neb. 873, 485 N.W.2d 170 (1992); Union Pacific RR. Co. v. Kaiser Ag. Chem. Co., 229 Neb. 160, 425 N.W.2d 872 (1988).

SUBJECT MATTER JURISDICTION

Apparently, the district court's conclusion concerning its lack of subject matter jurisdiction is based on the sovereign immunity of the State of Nebraska and the absence of a waiver of sovereign immunity.

"Jurisdiction is the inherent power or authority to decide a case." Chicago Lumber Co. v. School Dist. No. 71, 227 Neb. 355, 365, 417 N.W.2d 757, 763 (1988). Accord, Sports Courts of Omaha v. Meginnis, supra; State ex rel. Gaddis v. Gaddis, 237 Neb. 264, 465 N.W.2d 773 (1991); Millman v. County of Butler, 235 Neb. 915, 458 N.W.2d 207 (1990). "Subject matter jurisdiction is a court's power to hear and determine a case of the general class or category to which the proceedings in question belong and to deal with the general subject involved in the action before the court." State ex rel. Gaddis v. Gaddis, 237 Neb. at 266-67, 465 N.W.2d at...

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