State ex rel. Rhiley v. Neb. State Patrol
| Decision Date | 05 October 2018 |
| Docket Number | No. S-17-1261.,S-17-1261. |
| Citation | 301 Neb. 241,917 N.W.2d 903 |
| Parties | STATE of Nebraska EX REL. Billy D. RHILEY, appellant and cross-appellee, v. NEBRASKA STATE PATROL, Appellee and cross-appellant. |
| Court | Nebraska Supreme Court |
Jared J. Krejci, of Leininger, Smith, Johnson, Baack, Placzek & Allen, Grand Island, for appellant.
Douglas J. Peterson, Attorney General, and David A. Lopez, Lincoln, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
Billy D. Rhiley filed this mandamus action against the Nebraska State Patrol (NSP) seeking an order commanding the NSP to remove from the public record information regarding his 1991 arrest. The NSP argued (1) the mandamus action was barred by sovereign immunity and thus the court lacked subject matter jurisdiction, (2) the action was moot, and (3) mandamus relief was unavailable because Rhiley had an adequate remedy at law. The district court rejected the sovereign immunity defense, but granted judgment in favor of the NSP and dismissed the mandamus action on the other grounds. Rhiley appeals the dismissal of his mandamus action, and the NSP cross-appeals the rejection of its sovereign immunity defense. We conclude the sovereign immunity defense is meritorious and dismiss the appeal for lack of subject matter jurisdiction.
On February 1, 1991, Rhiley was arrested by police in Grand Island, Nebraska, pursuant to a felony arrest warrant for burglary issued in Laramie, Wyoming. The arresting officers informed the NSP’s Criminal Identification Division (CID) of the arrest. The CID serves as a repository of criminal history information1 in Nebraska. Under Nebraska’s Security, Privacy, and Dissemination of Criminal History Information Act2 (the Criminal History Act), each criminal justice agency is required to maintain "complete and accurate criminal history record information with regard to the actions taken by the agency."3 Under the Criminal History Act, "complete" information means that "arrest records shall show the subsequent disposition of the case as it moves through the various stages of the criminal justice system" and "accurate" information "shall mean containing no erroneous information of a material nature."4
According to Rhiley, after he was arrested, officials determined he was not involved in the burglary, he was released, and Wyoming prosecutors voluntarily dismissed the burglary charge. The NSP’s CID was not notified of the Wyoming action.
In 2016, Rhiley obtained a copy of his NSP criminal history information and found it included information about the 1991 arrest for burglary. Regarding disposition of the arrest, the report provided: "ARREST DISPOSITION: TRANSFERRED TO ANOTHER AGENCY—WYOMING." The criminal history report did not indicate the burglary charge had been dismissed by the Wyoming prosecutor. Rhiley’s attorney telephoned the NSP’s CID to request correction, and was told to contact the arresting agency. Rhiley’s counsel then contacted the Hall County Attorney in an attempt to resolve the matter, but was unsuccessful.
On March 28, 2017, Rhiley filed a lawsuit in the Hall County District Court seeking to have the 1991 arrest information removed from the public record pursuant to § 29-3523. That statute generally provides that in the case of an arrest, all criminal history record information relating to the case "shall be removed from the public record" as follows:
Initially, Rhiley’s lawsuit was brought against several defendants, including the city of Grand Island, Hall County, the Hall County Attorney, and the NSP’s Superintendent of Law Enforcement and Public Safety, individually and in his official capacity. On July 13, 2017, Rhiley voluntarily dismissed all defendants except the NSP. Thus, Rhiley elected to proceed with a mandamus action against only the NSP, seeking to compel the removal of criminal history information regarding his 1991 arrest from the public record. After the lawsuit was filed, the NSP removed Rhiley’s arrest information from the public record.
Rhiley claims that § 29-3528 authorizes a mandamus action directly against the NSP to compel compliance with the Criminal History Act. Section 29-3528 provides:
Whenever any officer or employee of the state, its agencies, or its political subdivisions, or whenever any state agency or any political subdivision or its agencies fails to comply with the requirements of [the Criminal History Act] or of regulations lawfully adopted to implement [that act], any person aggrieved may bring an action, including but not limited to an action for mandamus, to compel compliance and such action may be brought in the district court of any district in which the records involved are located or in the district court of Lancaster County. The commission may request the Attorney General to bring such action.
The NSP moved for judgment on the pleadings, arguing the mandamus action was barred by the doctrine of sovereign immunity. The district court overruled the motion. The NSP subsequently filed another motion, styled as a motion for summary judgment, asserting: (1) Rhiley’s mandamus action was barred by sovereign immunity; (2) Rhiley had a plain and adequate remedy at law, so mandamus was not available; and (3) the action was rendered moot when the 1991 arrest information was removed from the public record shortly after the mandamus action was filed. No party challenges the use of summary judgment within a mandamus action.
The district court again rejected the sovereign immunity defense, but granted judgment in favor of the NSP on the other two grounds and denied mandamus relief. It reasoned Rhiley’s claim was rendered moot by the NSP’s removal of his arrest information from the public record. Alternatively, it reasoned regulations promulgated pursuant to the Criminal History Act created procedures for challenging incorrect criminal history6 and found such procedures were a "plain and adequate remedy" available to Rhiley that precluded mandamus relief.7
Rhiley appeals, and the NSP cross-appeals. We granted the NSP’s petition to bypass.
Rhiley assigns, restated and summarized, that the district court erred in (1) determining the action is moot, (2) determining he failed to avail himself of a plain and adequate remedy at law, (3) relying on an administrative exhaustion defense when the NSP did not assert such a defense in its answer, (4) sustaining the NSP’s hearsay objection to certain evidence, and (5) failing to bind the NSP to its guidance documents.
On cross-appeal, the NSP contends both the district court and this court lack jurisdiction, because Rhiley’s claim against the NSP, a state agency, is barred by the doctrine of sovereign immunity and the language in § 29-3528 is not a waiver of such immunity.
Sovereign immunity is jurisdictional in nature, and courts have a duty to determine whether they have subject matter jurisdiction over a matter.8
A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law, which requires the appellate court to reach a conclusion independent of the lower court’s decision.9
Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the appeal.10 Because the NSP’s cross-appeal presents a jurisdictional question, we address it first.
The 11th Amendment makes explicit reference to the states’ immunity from suits "commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."11 This court has, as a result, sometimes referred to the 11th Amendment when discussing Nebraska’s sovereign immunity from suit.12 However, the sovereign immunity of a state neither derives from nor is limited by the terms of the 11th Amendment.13 Rather, as we have recognized, a state’s immunity from suit is a fundamental aspect of sovereignty.14
Neb. Const. art. V, § 22, provides: "The state may sue and be sued, and the Legislature shall provide by law in what manner and in what courts suits shall be brought." Long ago, we held that this provision is not self-executing and that no suit may be maintained against the State unless the Legislature, by law, has so provided.15 Over time, we have examined the Legislature’s limited waivers of the State’s sovereign immunity, usually in the context of either the State Tort Claims Act or the Political Subdivisions Tort Claims Act.16
In doing so, we have found it well settled that statutes that purport to waive the State’s protection of sovereign immunity are strictly construed in favor of the sovereign and against the waiver.17 A waiver of sovereign immunity is found only where...
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