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BURKE v. BOARD OF TRUSTEES

Cite as 302 Neb. 494

Melissa Burke, appellant and cross-appellee, 

v. Board of Trustees of the Nebraska

State Colleges, appellee and

cross-appellant.

___ N.W.2d ___

Filed March 15, 2019. No. S-17-1167.

1. Immunity: Jurisdiction. Sovereign immunity is jurisdictional in nature, 

and courts have a duty to determine whether they have subject matter jurisdiction over a matter. Subject matter jurisdiction is a question 

of law.

2. Judgments: Jurisdiction: Appeal and Error. When a jurisdictional 

question does not involve a factual dispute, the issue is a matter of law. 

An appellate court reviews questions of law independently of the lower 

court’s conclusion.

3. Actions: Colleges and Universities. An action against the Board of 

Trustees of the Nebraska State Colleges is an action against the State 

of Nebraska.

4. Constitutional Law: Immunity: States. The sovereign immunity of 

a state neither derives from nor is limited by the terms of the 11th 

Amendment to the U.S. Constitution. Rather, a state’s immunity from 

suit is a fundamental aspect of sovereignty.

5. Statutes: Immunity: Waiver. Statutes that purport to waive the State’s 

protection of sovereign immunity are strictly construed in favor of the 

sovereign and against the waiver.

6. ____: ____: ____. 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.

7. Immunity: Waiver: Jurisdiction: Legislature. Absent legislative 

action waiving sovereign immunity, a trial court lacks subject matter 

jurisdiction over an action against the State.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

04/12/2019 08:07 AM CDT
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8. Declaratory Judgments: Immunity: Waiver. Nebraska’s Uniform 

Declaratory Judgments Act does not waive the State’s sovereign immunity.

9. Actions: Colleges and Universities: Immunity: Waiver: Legislature. 

Language in Neb. Rev. Stat. § 85-302 (Reissue 2014) permitting the 

Board of Trustees of the Nebraska State Colleges to “sue and be sued” 

is not self-executing, prescribes no terms or conditions under which the 

board can be sued, and is not an express legislative waiver of sovereign immunity.

10. Jurisdiction: Appeal and Error. When a lower court does not gain 

jurisdiction over the case before it, an appellate court also lacks jurisdiction to review the merits of the claim.

Appeal from the District Court for Dawes County: Derek C. 

Weimer, Judge. Vacated and dismissed.

Nicholas J. Welding, of Norby & Welding, L.L.P., for 

appellant.

George E. Martin III, of Baird Holm, L.L.P., for appellee.

Heavican, C.J., Cassel, Stacy, Funke, Papik, and

Freudenberg JJ.

Stacy, J.

Melissa Burke began working at Chadron State College in 

2007. In April 2016, she was notified her employment contract 

would not be renewed for the upcoming contract year. Burke 

filed a declaratory judgment action in district court against 

the governing body of Chadron State College, alleging she 

had not been notified of the nonrenewal within the timeframe 

required by a collective bargaining agreement. The district 

court dismissed the action on summary judgment, and Burke 

appeals. We find Burke’s action is barred by the doctrine 

of sovereign immunity, and therefore, we vacate the district 

court’s judgment and dismiss this appeal for lack of subject 

matter jurisdiction.

I. FACTS

The underlying facts are largely undisputed, and most have 

been stipulated by the parties. Burke brought this action against 
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the Board of Trustees of the Nebraska State Colleges (the 

Board). The Board is the governing body of Chadron State 

College, Wayne State College, and Peru State College.1 The 

Board was created by article VII, § 13, of the Nebraska 

Constitution, and its duties and powers are prescribed by the 

Legislature.2 The Legislature describes the Board as “a body 

corporate”3 and as a “representative” of the State.4

In 2007, Burke was hired to work at Chadron State College. 

At all relevant times, she was a member of a bargaining unit 

represented by the Nebraska State College System Professional 

Association. As such, the terms and conditions of her employment were provided in collective bargaining agreements 

between the association and the Board.

1. Burke’s Employment

Burke entered into yearly employment contracts with the 

Board for specific positions at Chadron State College. The 

term of each contract was from July 1 to June 30. As relevant 

to this case, the collective bargaining agreement requires that 

association members in their first year of employment must be 

given notice that their contract will not be renewed 30 days 

prior to its expiration. Association members in their second 

year of employment must be given notice 120 days prior to 

contract expiration, and members in their third and subsequent 

years of employment must be given notice 180 days prior to 

contract expiration.

From 2007 to 2011, Burke was an athletic administrative 

assistant at Chadron State College. From 2011 to 2015, Burke 

was a compliance coordinator at Chadron State College. In 

early 2015, Burke requested a review of her job duties, and 

in March 2015, her job was changed and she began working 

1 See Neb. Rev. Stat. § 85-301 et seq. (Reissue 2014 & Cum. Supp. 2018).

2 See Neb. Const. art. VII, § 13.

3 § 85-302.

4 See Neb. Rev. Stat. §§ 81-1370 and 81-1371 (Reissue 2014).
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as an associate athletic director. The parties generally dispute 

whether this change was a reclassification or a transfer. If it 

was a reclassification, then under the collective bargaining 

agreement, Burke kept her prior years of service for purposes 

of notice of nonrenewal. If it was a transfer, then Burke’s years 

of service started over for purposes of notice of nonrenewal. 

The parties do not dispute the meaning of the terms “reclassification” and “transfer” in the collective bargaining agreement; rather, the dispute is over the underlying facts of Burke’s 

change in employment and whether it amounted to a “reclassification” or a “transfer” under that agreement.

On April 8, 2016, Burke was notified via letter from the 

president of Chadron State College that her employment contract would not be renewed for the 2016-17 contract year. 

Her 2015 contract was due to expire on June 30, 2016. Burke 

believed this notice was untimely, because she understood that 

her job had been reclassified and that she retained her prior 

years of service and, per the collective bargaining agreement, 

was entitled to 180 days’ notice that her contract would not be 

renewed. The Board, however, reasoned that Burke had been 

transferred in 2015, and not reclassified, and that her years of 

service for computing notice of nonrenewal started over and 

she was entitled to only 30 days’ notice of nonrenewal.

2. Grievance Procedure

The collective bargaining agreement contains a grievance 

procedure designated as “the exclusive method for resolving 

grievances concerning the administration of this Agreement.” 

It defines a grievance as a “dispute . . . concerning the interpretation or application of this Agreement.” The grievance procedure has several steps, one of which involves an evidentiary 

hearing before a committee. The grievance procedure culminates with an appeal to the chancellor. Thereafter, any party 

who is dissatisfied with the chancellor’s decision “may seek 

relief under applicable State or Federal laws” or, if the parties 

agree, through binding arbitration. The parties agree Burke did 
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not initiate or exhaust the grievance procedure before filing 

this declaratory judgment action in district court.

3. Declaratory Judgment Action

On June 8, 2016, a few weeks before her 2015 employment 

contract was to expire, Burke filed what she styled as a declaratory judgment action in the district court for Dawes County, 

Nebraska. Her complaint alleged the Board had breached the 

collective bargaining agreement by failing to timely notify her 

in writing of its intent not to renew her employment contract. 

The complaint sought a declaration that as a result of the 

breach, Burke was entitled to an employment contract for the 

2016-17 contract year. The complaint also sought a declaration 

that Burke was entitled to “all salary and fringe benefits associated with her employment,” as well as back pay and consequential damages.

After Burke filed her complaint, the Board moved to dismiss. It argued the court lacked subject matter jurisdiction, 

because Burke’s action was not really seeking a declaration 

regarding construction of a contract, but, rather, was seeking 

relief for breach of contract. The Board also argued that to 

the extent the complaint sought declaratory relief, Burke had 

another equally serviceable remedy, namely, an action for 

breach of contract. The district court overruled the motion to 

dismiss, reasoning it had subject matter jurisdiction over the 

declaratory judgment action and had the discretion to entertain it.

While Burke’s declaratory judgment action was pending, we 

issued our opinion in Armstrong v. Clarkson College.5 In that 

case, we held that the “exhaustion of a mandatory grievance 

procedure in a contract is a condition precedent to enforcing 

the rights under that contract.”6 In response to Armstrong, the 

Board moved for summary judgment, arguing Burke’s action 

5 Armstrong v. Clarkson College, 297 Neb. 595, 901 N.W.2d 1 (2017).

6 Id. at 633, 901 N.W.2d at 28-29.
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was barred because she failed to exhaust the mandatory grievance procedure in the collective bargaining agreement before 

filing suit.

The district court granted summary judgment in favor of the 

Board and dismissed Burke’s complaint. Burke filed this timely 

appeal, and the Board cross-appealed. We granted the Board’s 

petition to bypass.

II. ASSIGNMENTS OF ERROR

All four of Burke’s assigned errors challenge the district 

court’s application of Armstrong to this case. Burke assigns, 

reordered and restated, that the district court erred in (1) granting summary judgment in favor of the Board on the basis 

that Burke failed to exhaust the grievance procedure in the 

collective bargaining agreement; (2) interpreting Armstrong

to require, as a matter of law, the exhaustion of a grievance 

procedure contained in a contract as a condition precedent to 

bringing an action to enforce the contract; (3) rejecting her 

argument that requiring exhaustion of a grievance procedure 

violates the constitutional right to access the courts without 

delay; and (4) rejecting her argument that requiring exhaustion 

of the grievance procedure unlawfully infringes on the court’s 

original equity jurisdiction.

On cross-appeal, the Board assigns, restated, that the district 

court erred in overruling its motion to dismiss, because (1) the 

court lacked subject matter jurisdiction over the declaratory 

action and (2) the complaint failed to state a claim upon which 

relief could be granted.

III. STANDARD OF REVIEW

[1,2] Sovereign immunity is jurisdictional in nature, and 

courts have a duty to determine whether they have subject 

matter jurisdiction over a matter.7 Subject matter jurisdiction 

is a question of law.8 When a jurisdictional question does not 

7 Cappel v. State, 298 Neb. 445, 905 N.W.2d 38 (2017).

8 LeRette v. Howard, 300 Neb. 128, 912 N.W.2d 706 (2018).
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involve a factual dispute, the issue is a matter of law. An appellate court reviews questions of law independently of the lower 

court’s conclusion.9

IV. ANALYSIS

After oral argument, the parties were ordered to file supplemental briefs addressing (1) whether Burke’s action is an 

action against the State and (2) if so, whether the Legislature 

has enacted any statute waiving the State’s sovereign immunity for this action. In their responsive briefs, the parties 

agree Burke’s action against the Board is an action against 

the State. They disagree, however, as to whether the doctrine 

of sovereign immunity applies or has been waived by the 

Legislature.

As a threshold matter, we agree with the parties that Burke’s 

action is one against the State of Nebraska. Her operative complaint names the Board as the only defendant. The Board was 

created by article VII, § 13, of the Nebraska Constitution, and 

its duties and powers are prescribed by the Legislature.10 The 

Legislature describes the Board as “a body corporate”11 and as 

a “representative” of the State.12 The Nebraska State Treasurer 

serves as treasurer of the Board,13 and the Board must report all 

expenditures to the Governor annually.14

[3] We have at times, perhaps imprecisely, characterized the 

Board as a political subdivision of the State.15 We also have 

9 Abdouch v. Lopez, 285 Neb. 718, 829 N.W.2d 662 (2013); S.L. v. Steven 

L., 274 Neb. 646, 742 N.W.2d 734 (2007).

10 See Neb. Const. art. VII, § 13.

11 § 85-302.

12 See §§ 81-1370 and 81-1371.

13 § 85-302.

14 § 85-303.

15 Chase v. Board of Trustees of Nebraska State Colleges, 194 Neb. 688, 235 

N.W.2d 223 (1975). See, also, Brady v. Board of Trustees of Nebraska 

State Colleges, 196 Neb. 226, 242 N.W.2d 616 (1976).
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compared the Board to the Board of Regents of the University 

of Nebraska.16 Most recently, in Thomas v. Board of Trustees,

17

we applied the State Tort Claims Act to the Board. That 

act provides that a “State agency” includes “all departments, 

agencies, boards, bureaus, and commissions of the State of 

Nebraska and corporations the primary function of which is to 

act as, and while acting as, instrumentalities or agencies of the 

State.”18 Regardless of the precise terminology used historically, it is beyond debate that the Board is an instrumentality 

of the State and is accountable to the State. As such, an action 

against the Board is an action against the State.19

1. Sovereign Immunity

Principles

[4] 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.”20 This court has, as 

a result, sometimes referred to the 11th Amendment when discussing Nebraska’s sovereign immunity from suit.21 However, 

the sovereign immunity of a state neither derives from nor is 

limited by the terms of the 11th Amendment.22 Rather, as we 

have recognized, a state’s immunity from suit is a fundamental 

16 State ex rel. Spire v. Conway, 238 Neb. 766, 472 N.W.2d 403 (1991).

17 Thomas v. Board of Trustees, 296 Neb. 726, 895 N.W.2d 692 (2017).

18 Neb. Rev. Stat. § 81-8,210(1) (Reissue 2014).

19 See, State ex rel. Rhiley v. Nebraska State Patrol, 301 Neb. 241, 917 

N.W.2d 903 (2018); Henderson v. Department of Corr. Servs., 256 

Neb. 314, 589 N.W.2d 520 (1999). See, also, Davis v. State, 297 Neb. 

955, 902 N.W.2d 165 (2017) (describing Nebraska’s Board of Parole as 

constitutionally created body of state government).

20 U.S. Const. amend. XI. See Alden v. Maine, 527 U.S. 706, 119 S. Ct. 

2240, 144 L. Ed. 2d 636 (1999).

21 See State ex rel. Rhiley, supra note 19.

22 Alden, supra note 20; State ex rel. Rhiley, supra note 19.
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aspect of sovereignty.23 And a trial court lacks subject matter 

jurisdiction over an action against the State unless the State has 

consented to suit.24

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.25 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.26

[5-7] 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.27 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.28 Absent legislative action 

waiving sovereign immunity, a trial court lacks subject matter 

jurisdiction over an action against the State.29 The question, 

then, is whether the Legislature has waived sovereign immunity for purposes of this declaratory judgment action. Before 

we directly address this question, we pause to address an argument made by Burke in her supplemental brief.

23 State ex rel. Rhiley, supra note 19. See Jill B. & Travis B. v. State, 297 

Neb. 57, 899 N.W.2d 241 (2017).

24 Davis, supra note 19.

25 State ex rel. Rhiley, supra note 19; Shear v. State, 117 Neb. 865, 223 N.W. 

130 (1929).

26 State ex rel. Rhiley, supra note 19.

27 Id.; Amend v. Nebraska Pub. Serv. Comm., 298 Neb. 617, 905 N.W.2d 551 

(2018).

28 Id.

29 State ex rel. Rhiley, supra note 19; Henderson, supra note 19.
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Burke argues that her declaratory judgment action does 

not implicate the State’s sovereign immunity because, she 

contends, her suit “is not in essence one for the recovery of 

money.”30 She relies on Doe v. Board of Regents31 to argue that 

actions against the State “to compel or restrain state action do 

not implicate sovereign immunity if such actions do not seek 

monetary relief,”32 and she contends that sovereign immunity 

applies only when an action against the State “requires the 

expenditure of public funds.”33

Burke’s argument is premised on a fundamental misunderstanding of Doe and sovereign immunity principles. In Doe, we 

were addressing a situation not present here—how sovereign 

immunity applies when a suit is brought against individuals 

sued in their official capacity as State employees. We recognized the following general rule:

[A]ctions to restrain a state official from performing an 

affirmative act and actions to compel an officer to perform 

an act the officer is legally required to do are not barred by 

state sovereign immunity unless the affirmative act would 

require the state official to expend public funds. As the 

[U.S.] Supreme Court has consistently stated, “‘when the 

action is in essence one for the recovery of money from the 

state, the state is the real, substantial party in interest and 

is entitled to invoke its sovereign immunity from suit even 

though individual officials are nominal defendants.’”34

Here, Burke brought the action only against the Board. She 

did not name as a defendant any state official, whether in an 

30 Supplemental brief for appellant at 7.

31 Doe v. Board of Regents, 280 Neb. 492, 788 N.W.2d 264 (2010), overruled 

on other grounds, Davis, supra note 19.

32 Supplemental brief for appellant at 5.

33 Id.

34 Doe, supra note 31, 280 Neb. at 511-12, 788 N.W.2d at 282, quoting 

Regents of Univ. of Cal. v. Doe, 519 U.S. 425, 117 S. Ct. 900, 137 L. Ed. 

2d 55 (1997).
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individual or official capacity. As such, the distinctions iterated 

in Doe are inapplicable here. Because Burke’s action against 

the Board is an action directly against the State, sovereign 

immunity applies to bar the action, unless the Legislature has 

waived it.

2. No Statute Waives Board’s Immunity

It is well settled that statutes purporting to waive the State’s 

protection of sovereign immunity are strictly construed in favor 

of the sovereign and against the waiver.35 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.36

With these key principles in mind, we turn to the parties’ arguments regarding waiver of sovereign immunity.

(a) Uniform Declaratory Judgments Act 

Does Not Waive Sovereign Immunity

[8] Burke has styled her action as one for declaratory judgment, and the Board correctly points out that Nebraska’s 

Uniform Declaratory Judgments Act37 does not waive the 

State’s sovereign immunity.38 Thus, a party who seeks declaratory relief by suing only the State must find authorization for 

such remedy from a source other than the Uniform Declaratory 

Judgments Act.39

35 State ex rel. Rhiley, supra note 19; Amend, supra note 27; Zawaideh v. 

Nebraska Dept. of Health & Human Servs., 285 Neb. 48, 825 N.W.2d 204 

(2013).

36 State ex rel. Rhiley, supra note 19; Amend, supra note 27; Jill B. & Travis 

B., supra note 23.

37 Neb. Rev. Stat. §§ 25-21,149 to 25-21,164 (Reissue 2016).

38 County of Lancaster v. State, 247 Neb. 723, 529 N.W.2d 791 (1995); Riley 

v. State, 244 Neb. 250, 506 N.W.2d 45 (1993); Concerned Citizens v. 

Department of Environ. Contr., 244 Neb. 152, 505 N.W.2d 654 (1993).

39 Northwall v. State, 263 Neb. 1, 637 N.W.2d 890 (2002). See Zawaideh, 

supra note 35.
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(b) § 85-302 Does Not Waive 

Sovereign Immunity

[9] Nor do the statutes creating the state college system and 

the Board directly address sovereign immunity.40 Burke points 

out that § 85-302 provides that the Board, as a body corporate, 

“may sue and be sued,” but, as previously noted, we have not 

found such language to be sufficient to waive sovereign immunity. Specifically, in Livengood v. Nebraska State Patrol Ret. 

Sys.,

41 we considered whether the State’s sovereign immunity 

had been waived for an action against the Nebraska State Patrol 

seeking a declaration that retirement annuities had been miscalculated. We noted that under the Nebraska Constitution, “‘[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.’”42

But we reasoned this provision merely permits the State to lay 

its sovereignty aside and consent to be sued on such terms 

and conditions as the Legislature may prescribe. We held that 

language permitting the State to “sue and be sued” is not selfexecuting, but instead requires the Legislature to take specific 

action to waive the State’s sovereign immunity.43 Based on this 

rationale, we find the language in § 85-302 permitting the Board 

to “sue and be sued” is not self-executing, prescribes no terms 

or conditions under which the Board can be sued, and is not an 

express legislative waiver of sovereign immunity.

(c) State Contract Claims Act 

Does Not Apply

Nor is the State Contract Claims Act44 a possible source of 

waiver on this record. Section 81-8,303 of that act specifies 

40 See § 85-301 et seq.

41 Livengood v. Nebraska State Patrol Ret. Sys., 273 Neb. 247, 729 N.W.2d 

55 (2007).

42 Id. at 251, 729 N.W.2d at 60.

43 Id. Accord Cappel, supra note 7.

44 Neb. Rev. Stat. §§ 81-8,302 to 81-8,306 (Reissue 2014).
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that it does not apply to employment contracts entered into 

pursuant to the State Employees Collective Bargaining Act,45

and the contract at issue was entered into pursuant to that 

act.46 Thus, we can find no waiver of sovereign immunity for 

Burke’s suit under the State Contract Claims Act.

(d) § 25-21,206 Does Not Apply

Finally, both parties discuss Neb. Rev. Stat. § 25-21,206 

(Reissue 2016), which provides that the State may be sued 

in “any matter founded upon or growing out of a contract, 

express or implied, originally authorized or subsequently ratified by the Legislature, or founded upon any law of the state.” 

Burke’s action is founded upon or growing out of her contract 

with the Board, and that contract was founded upon the State 

Employees Collective Bargaining Act,47 a law of the state. 

Both parties suggest the waiver of sovereign immunity under 

§ 25-21,206 could be broad enough to cover an action such as 

Burke’s, but we need not decide that question, because Burke 

has failed to comply with the requirements of that statute, 

and thus she cannot rely on it as a potential waiver of sovereign immunity.

Section 25-21,206 contains specific requirements, one of 

which is that the complaint must comply with the pleading 

requirements in Neb. Rev. Stat. § 25-21,202 (Reissue 2016). 

Section 25-21,202 lists five specific allegations that must be 

included in the complaint and requires that “in all cases,” the 

complaint “shall” set forth:

(1) the facts out of which the claim originally arose; (2) 

the action of the Legislature, or of any department of the 

government thereon, if any such has been had; (3) what 

person or persons is the owner or are the owners thereof, 

45 Neb. Rev. Stat. §§ 81-1369 to 81-1388 (Reissue 2014).

46 See §§ 81-1370 and 81-1371.

47 See § 81-1371(6).
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or in anywise interested therein; (4) that no assignment 

or transfer of the same, or any part thereof, or interest 

therein, has been made, except as stated in the complaint; 

and (5) that the claimant is justly entitled to the amount 

claimed therein from the state after allowance of all just 

credits and setoffs.

Even liberally construed, Burke’s complaint does not address 

the requirements of subsections (4) or (5) in § 25-21,202. In 

fact, because Burke has consistently taken the position that she 

is not seeking any monetary amount from the Board in this 

action, it is questionable whether she could ever plead factual 

allegations that satisfy § 25-21,202(5).

As noted, statutes that purport to waive the State’s protection of sovereign immunity must be strictly construed in favor 

of the sovereign and against the waiver.48 Here, § 25-21,206 

expressly waives the State’s sovereign immunity, but only if 

the requirements of the statute are met. Burke’s complaint 

does not contain the necessary factual allegations to satisfy 

§ 25-21,202, and therefore she cannot rely on § 25-21,206 

to waive the State’s sovereign immunity here. And because 

we conclude that § 25-21,206 does not apply on this record, 

we need not address the Board’s argument that Burke cannot rely on § 25-21,206 because she failed to comply with 

the presuit procedures of Neb. Rev. Stat. § 81-1170.01 

(Reissue 2014).

V. CONCLUSION

[10] Burke’s declaratory judgment action against the Board 

is an action against the State, and we have not been directed 

to any statute that serves to waive the State’s sovereign immunity. As such, we must find the district court lacked subject 

matter jurisdiction over Burke’s action against the Board.49

48 State ex rel. Rhiley, supra note 19; Amend, supra note 27.

49 See State ex rel. Rhiley, supra note 19.
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When a lower court does not gain jurisdiction over the case 

before it, an appellate court also lacks jurisdiction to review 

the merits of the claim.50 We thus vacate the district court’s 

judgment and dismiss this appeal for lack of subject matter jurisdiction.

Vacated and dismissed.

Miller-Lerman, J., not participating.

50 Id.