Hashman v. Neth
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Decisions
Nebraska Court of
hashman v. neth
Cite as 18 Neb. App. 951
of the
Appeals
951
Ron Hashman, appellant, v. Beverly Neth, director,
State of Nebraska, Department of
Motor Vehicles, appellee.
___ N.W.2d ___
Filed May 3, 2011.
No. A-10-256.
1. Administrative Law: Final Orders: Appeal and Error. Under the Administrative
Procedure Act, Neb. Rev. Stat. §§ 84-901 to 84-920 (Reissue 2008 & Supp.
2009), an appellate court may reverse, vacate, or modify a district court’s judgment or final order for errors appearing on the record.
2. Administrative Law: Judgments: Appeal and Error. When reviewing an order
of a district court under the Administrative Procedure Act for errors appearing on
the record, the inquiry is whether the decision conforms to the law, is supported
by competent evidence, and is neither arbitrary, capricious, nor unreasonable.
3. Judgments: Appeal and Error. Whether a decision conforms to law is by definition a question of law, in connection with which an appellate court reaches a
conclusion independent of that reached by the lower court.
4. Jurisdiction: Appeal and Error. A jurisdictional question which does not
involve a factual dispute is determined by an appellate court as a matter of law.
5. ____: ____. Before reaching the legal issues presented for review, it is the power
and duty of an appellate court to determine whether it has jurisdiction over the
matter before it, irrespective of whether the issue is raised by the parties.
6. Administrative Law: Judgments. Every decision and order adverse to a party to
the proceeding, rendered by an agency in a contested case, shall be in writing or
stated in the record and shall be accompanied by findings of fact and conclusions
of law.
7. Statutes: Appeal and Error. Absent anything to the contrary, an appellate court
will give statutory language its plain and ordinary meaning.
8. Jurisdiction: Appeal and Error. 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.
9. Jurisdiction: Judgments: Appeal and Error. When an appeal is dismissed
because the lower court lacked jurisdiction to enter the order appealed from, an
appellate court may nevertheless enter an order vacating the order issued by the
lower court without jurisdiction.
Appeal from the District Court for Box Butte County: Brian
C. Silverman, Judge. Vacated and dismissed.
Bell Island, of Island, Huff & Nichols, P.C., L.L.O., for
appellant.
Jon Bruning, Attorney General, and Gregory J. Walklin
for appellee.
Decisions
952
of the Nebraska Court of Appeals
18 nebraska appellate reports
Sievers and Cassel, Judges, and Hannon, Judge, Retired.
Cassel, Judge.
INTRODUCTION
Ron Hashman appeals from a district court judgment affirming an “automatic” order issued by the director of the Nebraska
Department of Motor Vehicles (the Department) revoking his
motor vehicle operator’s license for 1 year. Although we reject
the Department’s argument that a continuance ordered by the
hearing officer was not chargeable to the director, we conclude that Hashman’s subsequent written rest concluded the
hearing and that because the rest occurred prior to the expiration of the statutory 30-day temporary license, it operated to
terminate the stay resulting from the director’s continuance.
Because the “automatic” order was not a final, appealable
order, the district court lacked jurisdiction of Hashman’s
petition for review, and accordingly, we lack jurisdiction of
this appeal.
BACKGROUND
Hashman was arrested by Alliance police officer Jim
Grumbles on March 28, 2009, for driving under the influence of alcohol. After being arrested, Hashman submitted
to a blood test that revealed the presence of alcohol in the
amount of .219 of a gram of alcohol per 100 milliliters of
blood. Hashman subsequently received a notice of administrative license revocation (ALR) dated April 16, 2009, stating that
he was receiving a temporary 30-day license, which would
expire on May 16. Hashman timely requested an ALR hearing
before the Department to determine whether his license should
be revoked.
An ALR hearing was held via teleconference on May 6,
2009. At the hearing, Grumbles was called as a witness by
the Department. Grumbles testified that he completed a sworn
report in regard to Hashman, which he signed in the presence
of a notary and submitted to the Department. The hearing officer received the sworn report into evidence. When testifying
about the details of Hashman’s arrest on cross-examination,
Grumbles testified that he used his police report to help refresh
Decisions
Nebraska Court of
hashman v. neth
Cite as 18 Neb. App. 951
of the
Appeals
953
his memory for his testimony. Hashman’s counsel requested a
copy of Grumbles’ report. The following exchange took place
in regard to Hashman’s counsel’s request:
[Hashman’s counsel]: And at this point, Ms. Hearing
Officer, I’m going to ask for a copy of the police report
be provided to me so I can finish my cross-examination
to see if there is anything I have missed based on the
police report that [Grumbles] used to base his testimony
for this hearing.
HEARING OFFICER . . . : Officer Grumbles, are you
anywhere you can fax this to [Hashman’s counsel]?
[Grumbles]: I am not.
HEARING OFFICER . . . : Okay. Well, you’ll have to
get it later, [Hashman’s counsel].
[Hashman’s counsel]: You’re denying my request; is
that —
HEARING OFFICER . . . : I can’t comply with your
request. I’m unable to provide it at this time, so, you
know, you can always ask for discovery prior to the
h
earing.
....
HEARING OFFICER . . . : I’m not denying it to you,
but we may have to continue it because of this.
[Hashman’s counsel]: Otherwise, I would ask to just
strike the officer’s testimony, then, if I can’t —
HEARING OFFICER . . . : No, I’m not going to
do that.
[Hashman’s counsel]: I’m asking for some type of remedy here.
[The Department’s counsel]: I would have no objection
to a continuance so that you can — I will get the officer’s
report for you and forward it to you if you wish to ask for
a continuance.
[Hashman’s counsel]: Fine.
[The Department’s counsel]: But we can’t get it to you
right now. There really isn’t any choice.
[Hashman’s counsel]: I understand that. I didn’t hear. Is
the [D]epartment asking for a continuance to be able to be
allowed to do that?
Decisions
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of the Nebraska Court of Appeals
18 nebraska appellate reports
HEARING OFFICER . . . : No, it’s your continuance.
[Hashman’s counsel]: It’s not my continuance.
HEARING OFFICER . . . : Yes, it is.
....
HEARING OFFICER . . . : Well, you have got your
option: We continue this so that you can get the reports
and you may finish . . . cross-examining Officer Grumbles
or —
[Hashman’s counsel]: If the [D]epartment is asking for
a continuance, fine.
HEARING OFFICER . . . : No, it’s not the
[D]epartment’s motion.
[Hashman’s counsel]: I’ll ask to strike the testimony.
Those are the remedies I’m asking for which I think are
appropriate under the circumstances.
[The Department’s counsel]: You’ll just have to make a
decision, [hearing officer].
HEARING OFFICER . . . : All right. We’ll continue
this. It will be rescheduled.
At the conclusion of the hearing, Hashman’s counsel told the
hearing officer that he “ha[d] no further evidence other than
cross-examination.”
Following the hearing, the hearing officer issued an order to
continue, finding that good cause existed to continue the ALR
hearing. The order also stated that the expiration of Hashman’s
temporary license was not stayed. The hearing was continued
to June 5, 2009.
On May 15, 2009, Hashman filed a motion to strike the testimony of Grumbles and then stated in the written motion that
he rested his case.
On May 18, 2009, the director issued an “automatic” order
of ALR, revoking Hashman’s license for 1 year. On May 20,
Hashman filed an appeal in the district court for Box Butte
County, and the district court affirmed the director’s order of
revocation. Hashman filed a timely appeal to this court.
ASSIGNMENT OF ERROR
Hashman assigns that the district court erred in affirming the
director’s order revoking his driver’s license for 1 year.
Decisions
Nebraska Court of
hashman v. neth
Cite as 18 Neb. App. 951
of the
Appeals
955
STANDARD OF REVIEW
[1,2] Under the Administrative Procedure Act, Neb. Rev.
Stat. §§ 84-901 to 84-920 (Reissue 2008 & Supp. 2009), an
appellate court may reverse, vacate, or modify a district court’s
judgment or final order for errors appearing on the record.
Murray v. Neth, 279 Neb. 947, 783 N.W.2d 424 (2010). When
reviewing an order of a district court under the Administrative
Procedure Act for errors appearing on the record, the inquiry
is whether the decision conforms to the law, is supported by
competent evidence, and is neither arbitrary, capricious, nor
unreasonable. Murray v. Neth, supra.
[3] Whether a decision conforms to law is by definition
a question of law, in connection with which an appellate
court reaches a conclusion independent of that reached by
the lower court. Nothnagel v. Neth, 276 Neb. 95, 752 N.W.2d
149 (2008).
[4] A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of
law. O’Hara v. Department of Motor Vehicles, 14 Neb. App.
709, 713 N.W.2d 508 (2006).
ANALYSIS
Hashman argues that the “automatic” order of revocation
should not have been issued because the director was charged
with continuing the ALR hearing, thereby staying the expiration of Hashman’s temporary license. The State argues,
on the other hand, that the director’s “automatic” order of
revocation was not a final, appealable order, that the district
court was without jurisdiction to hear Hashman’s petition for
review, and that therefore we do not have jurisdiction of the
instant appeal.
[5] We first consider whether the district court had jurisdiction over this matter and, consequently, whether we have jurisdiction. Before reaching the legal issues presented for review,
it is the power and duty of an appellate court to determine
whether it has jurisdiction over the matter before it, irrespective of whether the issue is raised by the parties. Id.
[6] The State argues that Hashman’s appeal is premature in
that he should have waited for the director to issue an order
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of the Nebraska Court of Appeals
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with findings of fact and conclusions of law and appealed
from that order. The Administrative Procedure Act, specifically
§ 84-915, provides in part that “[e]very decision and order
adverse to a party to the proceeding, rendered by an agency in
a contested case, shall be in writing or stated in the record and
shall be accompanied by findings of fact and conclusions of
law.” Hashman’s case became a “contested case,” as that term
is defined in § 84-901(3), when he requested an ALR hearing.
The order that Hashman received was an order revoking his
driver’s license for 1 year, and it contained no findings of fact
or conclusions of law. Thus, the “automatic” order failed to
provide the findings of fact and conclusions of law required by
§ 84-915 in a contested case.
[7] As authority for this argument, the State relies upon
Neb. Rev. Stat. § 60-498.01(6)(b) (Reissue 2010) and asserts
that this section mandated the issuance of an “automatic and
ministerial order.” Brief for appellee at 4. Before considering
the effect of subsection (6)(b), we note that under subsection
(6)(a) where the results of a chemical test are not available
to the arresting peace officer while the arrested person is
in custody, such person’s operator’s license shall be “automatically revoked upon the expiration of thirty days after
the date of mailing of the notice of revocation by the director.” Subsection (6)(a) then authorizes a timely petition for a
hearing. The State does not dispute that Hashman’s petition
was timely filed. Next, subsection (6)(b) states that “[t]he
filing of the petition shall not prevent the automatic revocation of the petitioner’s operator’s license at the expiration of
the thirty-day period.” According to the State, this language
mandated the “automatic” order. However, subsection (6)(b)
then continues, stating that “[a] continuance of the hearing
to a date beyond the expiration of the temporary operator’s
license shall stay the expiration of the temporary license when
the request for continuance is made by the director.” Absent
anything to the contrary, an appellate court will give statutory
language its plain and ordinary meaning. Metropolitan Comm.
College Area v. City of Omaha, 277 Neb. 782, 765 N.W.2d 440
(2009). Plainly, if the request for continuance was “made by
the director” and continued the hearing to a date “beyond the
Decisions
Nebraska Court of
hashman v. neth
Cite as 18 Neb. App. 951
of the
Appeals
957
expiration of the temporary operator’s license,” the expiration
of Hashman’s temporary license was stayed. It would naturally
follow that in such circumstances, the automatic order should
not be issued.
Hashman argues that the “automatic” order of revocation
should not have been issued because the director is charged
with continuing the ALR hearing, which stayed the expiration
of Hashman’s temporary license. In the present case, Hashman
received his 30-day temporary license on April 16, 2009, and
was told it would expire on May 16. The ALR hearing was
initially held on May 6 and was continued to June 5. Thus, the
hearing was continued to a date beyond the expiration of the
temporary operator’s license. However, we must determine if
the request for the continuance was made by the director, as
Hashman contends.
Under the circumstances of this case, the hearing officer
“request[ed]” the continuance. There was a discussion at
the ALR hearing, as set forth in the background section of
this opinion, about who should be charged with the continuance to allow Hashman’s counsel to obtain the police
report. Hashman specifically disclaimed making a request
for continuance. The Department’s counsel also emphasized
that he was not requesting a continuance and told the hearing officer, “[y]ou’ll just have to make a decision . . . .”
The hearing officer then ordered a continuance. We disagree
with the Department’s argument that Hashman requested the
c
ontinuance.
The continuance requested by the hearing officer was the
equivalent of a continuance requested by the director. Section
60-498.01(6)(b) states that “[t]he director shall conduct the
hearing . . . .” Section 60-498.01(7) provides in part that “[t]he
director may appoint a hearing officer to preside at the hearing,
administer oaths, examine witnesses, take testimony, and report
to the director.” The statute requires the director to conduct the
hearing, but allows the director to appoint a hearing officer to
preside at the hearing. Thus, the hearing officer serves as the
director’s agent. Because the hearing officer acts for the director, who by statute is to conduct the hearing, the continuance
was chargeable to the director.
Decisions
958
of the Nebraska Court of Appeals
18 nebraska appellate reports
However, the written rest later filed on Hashman’s behalf
concluded the hearing and ended the stay of the expiration of
Hashman’s temporary license. As previously stated, the hearing
was continued to a date beyond the expiration of Hashman’s
temporary license. Pursuant to § 60-498.01(6)(b), the director’s
continuance stayed the expiration of Hashman’s temporary
license, despite the hearing officer’s conclusion to the contrary.
However, on May 15, 2009, Hashman’s counsel filed a notice
of rest. We conclude that such notice of rest effectively concluded the ALR hearing and that the stay of the expiration of
the temporary license was also terminated by Hashman’s rest.
Accordingly, the temporary license expired on May 16—the
day Hashman was initially notified it would expire—and the
director issued the automatic order revoking Hashman’s license
on May 18. Because the hearing was concluded prior to the
expiration of the 30-day period, the director’s continuance
did not have the effect of continuing the hearing to a date
after the 30-day period. In the absence of such a continuance,
§ 60-498.01(6) clearly mandated that Hashman’s operator’s
license be automatically revoked at the conclusion of the 30day period. Thus, the automatic order was properly issued by
the director.
Although the automatic order was properly issued, the
order did not resolve Hashman’s “contested case” because it
did not set forth findings of fact and conclusions of law as
required by § 84-915. When Hashman rested his case on May
15, 2009, effectively concluding the ALR hearing, the director had 7 days after the conclusion of the hearing to make a
determination of the issue. See § 60-498.01(7). Hashman filed
his notice of appeal to the district court on May 20. At that
time, the 7-day period after the conclusion of the hearing had
not expired and the director had not issued an order setting
forth the required findings and conclusions. Thus, Hashman’s
appeal to the district court was premature. Consequently, when
the district court reviewed the director’s automatic order of
revocation and entered its order of affirmance, it was without
jurisdiction to do so because of the absence of a final, appealable order. Because the district court lacked jurisdiction to
enter its order, we do not have jurisdiction over an appeal from
Decisions
Nebraska Court of
hashman v. neth
Cite as 18 Neb. App. 951
of the
Appeals
959
such order, and we must dismiss the appeal. See O’Hara v.
Department of Motor Vehicles, 14 Neb. App. 709, 713 N.W.2d
508 (2006).
CONCLUSION
Before disposing of the instant appeal, we summarize the
analysis. The continuance was “request[ed]” by the hearing
officer. As the hearing officer acted on behalf of the director,
the request was chargeable to her. However, Hashman’s written
notice of rest both concluded the hearing and ended the stay of
the termination of the 30-day period before automatic revocation. Because this occurred prior to the expiration of the 30-day
period, § 60-498.01(6) mandated that Hashman’s license be
automatically revoked. The director was thereby required to
issue the “automatic” order, even though such order had only
temporary effect until a final order—one which included the
required findings of fact and conclusions of law—was issued
by the director to conclude the contested case. Because of the
absence of a final, appealable order, the district court lacked
subject matter jurisdiction of Hashman’s petition for review
under the Administrative Procedure Act. And we therefore lack
jurisdiction of this appeal.
[8,9] We dispose of the instant appeal by vacating the
district court’s judgment and dismissing the instant appeal.
Although we lack jurisdiction to adjudicate the merits of the
appeal, we do have jurisdiction to vacate the district court’s
order issued without jurisdiction. 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. McClellan v.
Board of Equal. of Douglas Cty., 275 Neb. 581, 748 N.W.2d
66 (2008). However, when an appeal is dismissed because
the lower court lacked jurisdiction to enter the order appealed
from, an appellate court may nevertheless enter an order vacating the order issued by the lower court without jurisdiction.
Id. We therefore vacate the judgment of the district court and
dismiss the appeal.
Vacated and dismissed.
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