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OMAHA EXPO. & RACING v. NEBRASKA STATE RACING COMM.

Cite as 307 Neb. 172

Omaha Exposition and Racing, Inc., appellee, 

v. Nebraska State Racing Commission et al., 

appellees, and Hall County Livestock 

Improvement Association and 

Nebraska Thoroughbred Breeders 

Association, appellants.

___ N.W.2d ___

Filed September 18, 2020. No. S-19-020.

1. Administrative Law: Judgments: Appeal and Error. A judgment or 

final order rendered by a district court in a judicial review pursuant to 

the Administrative Procedure Act may be reversed, vacated, or modified 

by an appellate court for errors appearing on the record.

2. ____: ____: ____. 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. Statutes: Appeal and Error. Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach 

an independent conclusion irrespective of the decision made by the 

court below.

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. Jurisdiction: Words and Phrases. Subject matter jurisdiction is the 

power of a tribunal to hear and determine a case in the general class or 

category to which the proceedings in question belong and to deal with 

the general subject matter involved.

6. Actions: Jurisdiction. Lack of subject matter jurisdiction may be raised 

at any time by any party or by the court sua sponte.

7. ____: ____. A court action taken without subject matter jurisdiction 

is void.

Nebraska Supreme Court Online Library

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

10/30/2020 08:07 AM CDT
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8. Administrative Law: Jurisdiction: Appeal and Error. Where a district court has statutory authority to review an action of an administrative agency, the district court may acquire jurisdiction only if the 

review is sought in the mode and manner and within the time provided 

by statute.

9. Appeal and Error. The right of appeal in Nebraska is purely statutory.

10. Jurisdiction: Statutes: Appeal and Error. The requirements of a statute underlying a right to appeal are mandatory and must be complied 

with before the appellate court acquires jurisdiction of the subject matter 

of the action.

11. Statutes: Legislature: Intent. In construing a statute, a court must 

determine and give effect to the purpose and intent of the Legislature 

as ascertained from the entire language of the statute considered in its 

plain, ordinary, and popular sense.

12. Administrative Law: Jurisdiction: Appeal and Error. In analyzing 

the requirements to initiate judicial review under the Administrative 

Procedure Act, for a district court to acquire jurisdiction to review a 

final decision of an administrative agency, the appellant must file the 

petition and serve summons.

13. Jurisdiction. Parties cannot confer subject matter jurisdiction upon a 

judicial tribunal by either acquiescence or consent, nor may subject matter jurisdiction be created by waiver, estoppel, consent, or conduct of 

the parties.

14. Administrative Law: Parties: Appeal and Error. Determining whether 

an agency acted beyond its role as a neutral fact finder to qualify as 

one of the “parties of record” under Neb. Rev. Stat. § 84-917 (Reissue 

2014) requires looking at the nature of the administrative proceeding 

under review.

15. Administrative Law: Words and Phrases. An administrative agency is 

a neutral factfinding body when it is neither an adversary nor an advocate of a party.

16. Administrative Law: Parties. When an administrative agency acts as 

the primary civil enforcement agency, as distinguished from determining 

the rights of two or more individuals in a dispute before such agency, it 

is more than a neutral factfinding body.

17. ____: ____. An agency that is charged with the responsibility of protecting the public interest, and not merely determining the rights of two or 

more individuals in a dispute, is more than a neutral factfinding body.

18. Administrative Law: Parties: Appeal and Error. When evaluating 

whether an agency is a neutral fact finder under Neb. Rev. Stat. 

§ 84-917(2)(a) (Reissue 2014), courts look to the agency’s actions as 

to the dispute at issue, the statutory basis upon which the agency was 
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acting, and the participation of the agency in the matters surrounding 

the dispute.

19. Administrative Law. Where an agency acts beyond the role of a neutral 

fact finder due to its responsibility to the public interest, its role as the 

primary civil enforcement entity, or its licensing and credentialing function, the agency takes some action or is required to make some consideration beyond merely resolving a dispute between outside parties.

Appeal from the District Court for Lancaster County: Susan 

I. Strong, Judge. Vacated and dismissed.

Cathy S. Trent-Vilim, John M. Walker, and Daniel J. Waters, 

of Lamson, Dugan & Murray, L.L.P., for appellant Hall County 

Livestock Improvement Association.

O. William VonSeggern for appellant Nebraska Thoroughbred 

Breeders Association.

Christopher D. Jerram, Raymond E. Walden, and Michael 

T. Gibbons, of Woodke & Gibbons, P.C., L.L.O., for appellee 

Omaha Exposition and Racing, Inc.

Tara Tesmer Paulson, of Rembolt Ludtke, L.L.P., for 

appellee Nebraska Horsemen’s Benevolent and Protective 

Association, Inc.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Funke, J.

This case concerns moneys accumulated from deductions 

of horseracing wagers under Neb. Rev. Stat. §§ 2-1207(2) 

(Cum. Supp. 2018) and 2-1207.01 (Reissue 2012) for the 

promotion, support, and preservation of agriculture and horse 

breeding in Nebraska. Pursuant to a request from the Nebraska 

Thoroughbred Breeders Association (NTBA), the Nebraska 

State Racing Commission (Commission) directed § 2-1207(2) 

funds collected by the Nebraska Horsemen’s Benevolent & 

Protective Association, Inc. (HBPA), from Nebraska horseracing tracks be transferred to NTBA. The district court reversed 
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and vacated the order, finding the Commission exceeded its 

statutory authority in ordering that the funds be paid over to 

NTBA for distribution. Because the district court lacked subject matter jurisdiction to consider the petition, its order reversing and vacating the Commission’s order is void and must be 

vacated, and we must dismiss this appeal.

BACKGROUND

Appellant NTBA is a nonprofit corporation formed to promote breeding of thoroughbred horses in Nebraska. Appellant 

Hall County Livestock Improvement Association, doing business as Fonner Park, is a nonprofit corporation for the promotion of agriculture, fairs, and horseracing. Fonner Park is 

licensed and authorized to operate as a horseracing track and 

participate in the simulcasting of horseraces in Grand Island, 

Nebraska. Fonner Park and Agricultural Park, a Nebraska racetrack located in Columbus, Nebraska, account for 90 percent of 

all live horseracing in Nebraska.

Omaha Exposition and Racing, Inc. (OER), is a nonprofit 

corporation and is licensed and authorized for horseracing 

and simulcasting services. OER operates and does business 

as Horsemen’s Park in Omaha, Nebraska, and Lincoln Race 

Course in Lincoln, Nebraska. Horsemen’s Park and Lincoln 

Race Course hold live races each year, but most of their revenues are derived from simulcasting. The facilities at Horsemen’s 

Park and Lincoln Race Course are owned by HBPA, which is 

a member of OER and holds two of the four OER governing 

board seats. HBPA is a nonprofit corporation representing a 

majority of all licensed owners and trainers that race thoroughbred horses at Nebraska licensed racetracks.

Nebraska horseracing tracks are statutorily required to 

deduct a percentage of all wagers made at their tracks to promote and preserve agriculture, horse breeding, and horseracing 

in Nebraska. 1 These deducted amounts are to be distributed 

1 §§ 2-1207(2) and 2-1207.01.
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as purse supplements and breeder and stallion awards for 

Nebraska-bred horses. 2 Distribution is to be made at the racetrack where the funds are generated unless the racetrack does 

not conduct live race meets, in which case the deducted 

funds may be distributed to those racetracks which do conduct live race meets for the promotion of horseracing or as 

purse supplements. 3

Prior to the 1990’s, each horseracing track in Nebraska 

had individual bookkeepers, including HBPA who used its 

bookkeeper to distribute purse awards at the tracks. In 1996, 

Ak-Sar-Ben, an Omaha racetrack, closed and the remaining 

tracks determined it would be economically beneficial to transfer their bookkeeping duties to a single bookkeeper, the one 

used by HBPA. NTBA alleges this system was approved by the 

Commission and worked without issue until the current dispute 

arose in 2017.

In 1998, because the majority of live horseracing occurred 

at only a few of the parks, the presidents of HBPA and NTBA 

entered into an agreement for the redistribution of a portion 

of the funds collected from the statutorily required deductions 

from wagers on simulcast races. That year, the amount deducted 

from simulcast races totaled approximately $175,000. The parties agreed to distribute $80,000 to Fonner Park, $25,000 to 

Agricultural Park, and $70,000 to a now-relocated Lincoln 

racetrack. Appellants allege that until 2017, the parties continued to allocate a portion of funds deducted from simulcast 

races to individual racetracks by determining what an equitable 

amount of breeder purses were to be and HBPA’s bookkeeper 

paying out those amounts.

By a letter in June 2017, HBPA advised NTBA that the 

bookkeeper, at HBPA’s direction, was suspending distribution 

of the deducted funds because Fonner Park failed to contribute 

its share. According to Fonner Park, this alleged deficit was 

2 § 2-1207.01.

3 Id.
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created by the addition to Fonner Park’s earnings of simulcast 

funds allocated by NTBA. Fonner Park asserts such deficits 

have historically been satisfied by HBPA’s bookkeeper using 

surplus deducted simulcast funds from other Nebraska racetracks. In the June 2017 letter, HBPA claimed this use of 

deducted simulcast funds from other Nebraska racetracks to 

satisfy Fonner Park’s contribution requirements appeared to 

be contrary to a statutory directive that all contributions of the 

deducted funds must come from the individual track and cannot come from another.

On July 7, 2017, NTBA submitted an emailed request to be 

on the agenda for the upcoming Commission meeting. In the 

email, NTBA asked the Commission to order “the HBPA[’s] 

Purse Bookkeeper to pay all NTBA accumulated funds in the 

Purse Bookkeeper[’]s possession to the [NTBA].” In a subsequent email, NTBA modeled the statutory language for the 

deducted funds and described “NTBA accumulated funds” as 

“funds generated for our breeders’ awards, purse supplements, 

and purses.” NTBA also asked the Commission to order that all 

future deducted funds by Nebraska racetracks be paid over to 

NTBA and its bookkeeper for allocation and disbursement.

The Commission held hearings on NTBA’s request at its 

meetings on July 20, October 25, and December 19, 2017. 

On February 21, 2018, the Commission issued an order granting NTBA’s request. The order stated that the Commission’s 

statutory authority to enforce all state laws covering horseracing extended to enforcement of the deduction statutes and 

determination of a proper custodian of the funds generated. 

The Commission found that the current structure wherein the 

HBPA bookkeeper collected and distributed the funds allowed 

for the potential of future conflicts such as underpayment or 

misappropriation. Finding NTBA is the proper entity to serve 

as custodian of the funds, the Commission directed that all 

current deducted funds held by HBPA and its bookkeeper be 

transferred to NTBA and that all future funds deducted by any 

Nebraska racetracks be paid to NTBA.
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OER submitted a petition for judicial review of the 

Commission’s order to the district court on February 28, 

2018. On March 1, OER filed a copy of a summons for the 

Commission that was addressed to the Attorney General through 

certified mail, although no return receipt was filed. OER also 

sent a summons with a copy of the petition by certified mail 

directly to the Commission, of which a return receipt was 

signed March 19, and the Commission filed a transcript of its 

proceedings in this matter on March 28. The Attorney General 

filed an answer to OER’s petition on March 27. OER sent 

another notice for the Commission through certified mail to the 

Attorney General’s office on March 28, which return receipt 

was signed April 3.

Additionally on March 1, 2018, OER filed a copy of a 

summons for NTBA addressed to “Linda F. Hoffman & Zack 

Mader.” However, no return receipt was filed. On March 22, 

NTBA filed an answer.

After a hearing on the matter, the district court reversed 

and vacated the Commission’s order. The court found the 

Commission lacked statutory authority to appoint a custodian 

of the funds and require payment of the funds by Nebraska 

racetracks to that appointed entity. The court explained that 

the statutes governing the deduction of the funds are unambiguous and that the Legislature did not empower any entity other 

than the licensed racetracks with responsibility to collect the 

funds or delegate custody of the funds to anyone other than 

the licensed racetracks. The court additionally determined that 

the past practice of subsidizing other racetracks by allowing 

NTBA to allocate a portion of the generated funds based on 

its determination of what was equitable was contrary to the 

statutory directive that the funds be distributed at the racetrack 

where they were generated. Accordingly, the court concluded 

that the Commission erred in appointing NTBA as custodian 

and granting NTBA the authority to collect and determine distribution of the deducted funds.
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ASSIGNMENTS OF ERROR

Appellants assign, consolidated and restated, that the district 

court erred by (1) considering the petition for further review 

while lacking subject matter jurisdiction due to OER’s failure 

to sufficiently serve NTBA and the Commission, (2) determining the Commission did not have authority to appoint a custodian of the deducted funds, (3) reaching the issue of where the 

deducted funds may be used when the issue was not brought 

before the Commission, and (4) determining all deducted funds 

must be used at the racetrack where the funds are generated.

STANDARD OF REVIEW

[1,2] A judgment or final order rendered by a district court 

in a judicial review pursuant to the Administrative Procedure 

Act (APA) may be reversed, vacated, or modified by an appellate court for errors appearing on the record. 4 When reviewing 

an order of a district court under the APA 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. 5

[3] Statutory interpretation presents a question of law, for 

which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the 

court below. 6

[4] A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter 

of law. 7

ANALYSIS

Before we can consider whether the Commission was authorized to appoint NTBA as the custodian of the funds and 

4 J.S. v. Grand Island Public Schools, 297 Neb. 347, 899 N.W.2d 893 

(2017).

5 Id.

6 Id.

7 Id.
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the merits of the appeal, we must first determine whether the 

district court had subject matter jurisdiction to consider OER’s 

petition for further review and whether we, in turn, have jurisdiction to consider an appeal of the district court’s order.

Neb. Rev. Stat. § 84-917 (Reissue 2014) provides the procedure for judicial review of an agency’s final decision in a 

contested case. Under this statute, an aggrieved party may seek 

review of a final decision by filing a petition in district court 

within 30 days after service of the decision. 8 All parties of 

record to the agency action must be made parties to the proceedings for judicial review. 9

Appellants claim that the district court lacked subject matter 

jurisdiction due to insufficiencies in OER’s service of NTBA 

and the Commission under § 84-917(2)(a)(i). Appellees, in 

turn, claim service of a petition for judicial review under the 

APA is not an issue of subject matter jurisdiction, that NTBA 

entered a voluntary appearance which is the equivalent of process, and that OER properly served the Commission.

Subject Matter Jurisdiction

Contrary to appellees’ arguments, under the APA, service of 

necessary parties in a petition for further review is an issue of 

subject matter jurisdiction. 10

[5-7] Subject matter jurisdiction is the power of a tribunal 

to hear and determine a case in the general class or category 

to which the proceedings in question belong and to deal with 

the general subject matter involved. 11 Lack of subject matter 

jurisdiction may be raised at any time by any party or by the 

8 § 84-917(2)(a)(i).

9 Id.

10 See, Candyland, LLC v. Nebraska Liquor Control Comm., 306 Neb. 169, 

944 N.W.2d 740 (2020); J.S., supra note 4; Concordia Teachers College v. 

Neb. Dept. of Labor, 252 Neb. 504, 563 N.W.2d 345 (1997).

11 J.S., supra note 4.
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court sua sponte. 12 A court action taken without subject matter 

jurisdiction is void. 13

[8] Where a district court has statutory authority to review 

an action of an administrative agency, the district court may 

acquire jurisdiction only if the review is sought in the mode 

and manner and within the time provided by statute. 14

[9-11] The right of appeal in Nebraska is purely statutory. 15

The requirements of a statute underlying a right to appeal are 

mandatory and must be complied with before the appellate 

court acquires jurisdiction of the subject matter of the action. 16

In construing a statute, a court must determine and give effect 

to the purpose and intent of the Legislature as ascertained from 

the entire language of the statute considered in its plain, ordinary, and popular sense. 17

[12] In analyzing the requirements to initiate judicial review 

under the APA, we have held that for a district court to 

acquire jurisdiction to review a final decision of an administrative agency, the appellant must file the petition and serve 

summons. 18 Section 84-917(2)(a)(i) states that judicial review 

“shall be instituted by filing a petition in the district court . . . 

within thirty days after the service of the final decision by the 

agency”; “[a]ll parties of record shall be made parties to the 

proceedings for review”; and, if the agency is a party of record, 

“[s]ummons shall be served within thirty days of the filing 

of the petition in the manner provided for service of a summons in section 25-510.02.” (Emphasis supplied.) When Neb. 

12 Id.

13 Id.

14 Kozal v. Nebraska Liquor Control Comm., 297 Neb. 938, 902 N.W.2d 147 

(2017). See J.S., supra note 4.

15 J.S., supra note 4.

16 Id.

17 Id.

18 See Candyland, LLC, supra note 10. See, also, J.S., supra note 4; 

Concordia Teachers College, supra note 10.
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Rev. Stat. § 25-510.02 (Reissue 2016) applies, a summons 

must be served on the Attorney General in order to institute 

judicial review. 19 Additionally, while § 84-917(2)(a)(i) states 

service shall be provided “in the manner provided for service 

of a summons in section 25-210.02” and the required means of 

service under § 25-510.02 only addresses the means of service 

of the agency, we have held that “service on nongovernmental 

entities under § 84-917(2)(a)(i) is required ‘within thirty days 

of the filing of the petition’” and have applied such requirement as an issue of subject matter jurisdiction when there is 

insufficient service of nongovernmental entities. 20

Because § 84-917(2)(a)(i) requires service within 30 days 

of necessary parties to an agency action—including nongovernmental parties of record and, if the agency is a party of 

record, the agency through the Attorney General—in order to 

initiate a judicial review, such service is an issue of subject 

matter jurisdiction.

Sufficiency of OER’s 

Service of NTBA

Appellees do not contest that OER failed to serve NTBA 

within 30 days of the filing of the petition. Instead, appellees 

claim NTBA voluntarily appeared by filing its answer and submitted itself to the district court’s authority.

Appellees’ argument is premised on the proposition that 

service of nongovernmental parties of record is an issue of only 

personal and not subject matter jurisdiction. As discussed, this 

proposition is incorrect and the service of nongovernmental 

parties of record under § 84-917(2) is necessary to provide the 

reviewing court with subject matter jurisdiction. 21

[13] Parties cannot confer subject matter jurisdiction upon 

a judicial tribunal by either acquiescence or consent, nor may 

19 See Concordia Teachers College, supra note 10.

20 Candyland, LLC, supra note 10.

21 See id.
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subject matter jurisdiction be created by waiver, estoppel, 

consent, or conduct of the parties. 22 Accordingly, NTBA was 

unable to voluntarily submit itself to the district court’s authority and NTBA’s filing its answer did not overcome OER’s failure to serve NTBA as required by § 84-917(2).

Because NTBA was a party of record to the agency action 

and it is undisputed that OER did not serve NTBA within 30 

days of filing the petition, the district court lacked subject matter jurisdiction to consider the petition.

Sufficiency of OER’s 

Service of Commission

Similarly, OER’s service of the Commission was insufficient and also deprived the district court of subject matter jurisdiction.

The required means and manner of service of an agency 

under the APA depends on whether the agency was a party 

of record to the proceedings. When determining whether the 

agency is a party of record, § 84-917(2)(a)(i) clarifies that the 

agency is not a party of record “[i]f an agency’s only role in a 

contested case is to act as a neutral factfinding body . . . .” If 

the agency is not a party of record, the petitioner is required to 

serve only a copy of the petition and a request for preparation 

of the official record upon the agency within 30 days of filing 

the petition. 23 However, when the agency functions beyond 

a neutral factfinding body, the agency is a party of record 

and summons shall be served within 30 days of the filing of 

the petition as provided by § 25-510.02. 24 Section 25-510.02 

requires that service upon a state agency be executed by leaving the summons at the office of the Attorney General or by 

certified mail or designated delivery service addressed to the 

office of the Attorney General. The purpose of § 25-510.02 is 

22 J.S., supra note 4.

23 § 84-917(2)(a)(i).

24 Id.
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to give the State, its agencies, and its employees “‘adequate 

notice of the case against it’” and to “‘eliminate ineffectual service.’” 25

Appellants argue that OER’s service on the Commission was 

insufficient because the Commission acted beyond a neutral 

factfinding body, making it a necessary party of record and 

requiring service of the Attorney General within 30 days of the 

filing of the petition. Because OER failed to serve the Attorney 

General in accordance with § 25-510.02 until after the running of the 30 days, appellants claim service was insufficient 

and the district court lacked subject matter jurisdiction over 

the review.

[14-17] Determining whether an agency acted beyond its 

role as a neutral fact finder to qualify as one of the “parties of 

record” under § 84-917 requires looking at the nature of the 

administrative proceeding under review. 26 An administrative 

agency is a neutral factfinding body when it is neither an adversary nor an advocate of a party. 27 In contrast, when an administrative agency acts as the primary civil enforcement agency, 

as distinguished from determining the rights of two or more 

individuals in a dispute before such agency, it is more than 

a neutral factfinding body. 28 Also, an agency that is charged 

with the responsibility of protecting the public interest, and not 

merely determining the rights of two or more individuals in a 

dispute, is more than a neutral factfinding body. 29

[18,19] When evaluating whether an agency is a neutral 

fact finder under § 84-917(2)(a), we have repeatedly looked 

to the agency’s actions as to the dispute at issue, the statutory 

basis upon which the agency was acting, and the participation 

of the agency in the matters surrounding the dispute. In cases 

25 Anthony K. v. State, 289 Neb. 523, 532, 855 N.W.2d 802, 810 (2014).

26 See Kozal, supra note 14.

27 McDougle v. State ex rel. Bruning, 289 Neb. 19, 853 N.W.2d 159 (2014).

28 See id.

29 See id.
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where an agency acts beyond the role of a neutral fact finder 

due to its responsibility to the public interest, its role as the 

primary civil enforcement entity, or its licensing and credentialing function, the agency takes some action or is required to 

make some consideration beyond merely resolving a dispute 

between outside parties. 30

For instance, in McDougle v. State ex rel. Bruning,

 31 the 

Division of Public Health of the Department of Health and 

Human Services revoked a practitioner’s licenses to practice 

as a mental health practitioner and as a provisional alcohol 

and drug counselor after previously adopting regulations on 

statutorily impermissible unprofessional conduct of a licensee, 

conducting an investigation as to the practitioner’s possible violations of the regulation, recommending the Attorney 

General file a petition for disciplinary action, and holding 

a hearing before the department’s chief medical officer and 

director. In re 2007 Appropriations of Niobrara River Waters 32

involved a challenge to the Department of Natural Resources’ 

issuance of closing notices for the purpose of administering 

water, and the department sought to advocate for the validity of its administration. In In re Application of Metropolitan 

Util. Dist.,

 33 a utilities district applied to the Nebraska Public 

Service Commission (PSC) for certification as a competitive 

natural gas provider, the PSC had authority to approve or 

30 See, Shaffer v. Nebraska Dept. of Health & Human Servs., 289 Neb. 

740, 857 N.W.2d 313 (2014); McDougle, supra note 27; In re 2007 

Appropriations of Niobrara River Waters, 283 Neb. 629, 820 N.W.2d 44 

(2012); Metropolitan Util. Dist. v. Aquila, Inc., 271 Neb. 454, 712 N.W.2d 

280 (2006); In re Application of Metropolitan Util. Dist., 270 Neb. 494, 

704 N.W.2d 237 (2005); Becker v. Nebraska Acct. & Disclosure Comm., 

249 Neb. 28, 541 N.W.2d 36 (1995); Leach v. Dept. of Motor Vehicles, 

213 Neb. 103, 327 N.W.2d 615 (1982) (superseded by statute as stated in 

Candyland, LLC, supra note 10).

31 McDougle, supra note 27.

32 In re 2007 Appropriations of Niobrara River Waters, supra note 30.

33 In re Application of Metropolitan Util. Dist., supra note 30.
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deny and set conditions on a certification, the PSC had the 

authority to enforce any order on the certification, and the 

PSC denied the utilities district’s application. In Becker v. 

Nebraska Acct. & Disclosure Comm.,

 34 following a taxpayer’s 

complaint against the Board of Regents of the University 

of Nebraska, the Nebraska Accountability and Disclosure 

Commission investigated, found probable cause of violations, 

and entered into a settlement wherein the disclosure commission agreed to certain prosecutorial concessions in exchange 

for the board’s making certain disclosures and refraining from 

the alleged violations in the future. Finally, in Leach v. Dept. 

of Motor Vehicles,

 35 the Department of Motor Vehicles had 

revoked a driver’s license pursuant to the implied consent 

law in execution of the department’s given responsibility 

of protecting the public interest, as opposed to determining 

the rights of two or more people in a dispute, and the driver 

attempted to challenge the revocation by the department.

In the current action, the Commission was not merely determining the rights of two or more individuals in a dispute. It 

was also acting pursuant to its claimed licensing and credentialing authority to approve a custodian of the funds based 

upon the public interest.

NTBA requested that funds deducted under §§ 2-1207(2) 

and 2-1207.01 be transferred to NTBA and that NTBA be 

appointed custodian of the funds to be collected and distributed 

by an independent bookkeeper hired by NTBA. NTBA did this 

because it alleged the current structure utilizing HBPA’s bookkeeper resulted in delayed distribution of the funds due to an 

external dispute among multiple horseracing organizations.

The Commission’s statutory purpose is to provide statewide 

regulation of horseracing in order to prevent and eliminate 

corrupt practices and fraudulent behavior, and thereby maintain a high level of integrity and honesty in the horseracing 

34 Becker, supra note 30.

35 Leach, supra note 30.
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industry of Nebraska and to ensure that all funds received by 

the Commission are properly distributed. 36 As to the oversight 

of racetracks’ compliance with §§ 2-1207(2) and 2-1207.01, 

the Commission has the statutory authority to review accounting of the racetracks, 37 license racetracks and racing industry 

participants, 38 revoke any license issued at any time for good 

cause, 39 and enforce horseracing statutes and regulations. 40

The Commission also has the authority to adopt rules and regulations governing horseracing and the licensing of horseracing associations. 41

Under this authority, the Commission adopted an administrative regulation, which states:

Each Association shall have a bookkeeper, approved by 

the Commission, whose duty it is to keep and preserve 

books which will reflect the deposits or other credits and 

withdrawals or other charges that may be made by an 

owner or other licensee. Said bookkeeper shall have an 

office at the track and said office shall be open on each 

racing day during the hours specified by the Commission. 

Said bookkeeper must also furnish such reports and information as may be required by the Commission or its 

representatives. 42

In reviewing NTBA’s request, the Commission considered 

whether to approve NTBA and its appointed bookkeeper for 

the management of the deducted funds or to maintain its 

alleged approval of HBPA’s bookkeeper for such management. 

The Commission based its ruling on consideration of either 

36 Neb. Rev. Stat. § 2-1201.01 (Reissue 2012).

37 § 2-1207.01; Neb. Rev. Stat. §§ 2-1205 and 2-1211 (Reissue 2012).

38 Neb. Rev. Stat. § 2-1203.01 (Cum. Supp. 2018).

39 § 2-1205.

40 Neb. Rev. Stat. § 2-1203 (Cum. Supp. 2018); § 2-1203.01.

41 § 2-1203.

42 294 Neb. Admin. Code ch. 3, § 001.08 (2006).
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option’s potential for corrupt practices and fraudulent behavior 

such as underpayment or misappropriation. The designation 

of the bookkeeper was not merely resolving an independent 

dispute between the parties, but was the Commission’s exercising compliance assurance authority grounded in its role as 

the racetrack licensor and certifying agency. In approving the 

bookkeeper, the Commission indicated that it was attempting to prevent the exposure of possible future corruption 

and fraud.

In arguing the Commission was acting as a neutral fact 

finder, appellees note the Commission held evidentiary hearings where interested parties made appearances, exhibits were 

received, and the parties briefed their arguments. However, 

such procedures and similarities to the judicial process do 

not necessitate that the Commission was acting as a neutral 

fact finder.

In Shaffer v. Nebraska Dept. of Health & Human Servs.,

 43

a Medicaid recipient was denied the continuation of coverage 

for private duty nursing services by a managed care organization because the managed care organization deemed the 

services were not medically necessary. The recipient appealed 

to the Department of Health and Human Services (DHHS), 

which held a hearing where the parties appeared before a 

DHHS hearing officer, presented testimony and evidence, 

and submitted arguments. 44 Based upon the record made at 

the hearing, DHHS’ director of the Division of Medicaid & 

Long-Term Care concluded that the services were not medically necessary and agreed with the managed care organization’s denial of coverage. 45 While DHHS’ order involved a 

dispute between two or more parties and was the result of 

an evidentiary hearing, we determined DHHS’ involvement 

43 Shaffer, supra note 30.

44 Id.

45 Id.
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went beyond that of a neutral fact finder because DHHS was 

charged with the administration of the Medicaid program 

and had broad regulatory and oversight powers, adopted and 

promulgated the rules and regulations to determine eligibility, and was authorized to and did contract with the managed 

care organization for the provision of medical assistance for 

eligible recipients. 46

The Commission’s actions in the instant case are similar 

to DHHS’ actions in Shaffer. The Commission was acting 

under broad regulatory, enforcement, and licensing authority. The Commission adopted and promulgated rules that 

require racetracks to have bookkeepers and which require the 

Commission’s approval of those bookkeepers. In approving 

NTBA as the custodian of the funds and the use of its bookkeeper while revoking the approval of HBPA’s bookkeeper, the 

Commission considered the potential effect its decision would 

have on the horseracing industry and its exposure to potential 

mistake, corrupt practices, and fraud.

This case is distinguishable from Metropolitan Util. Dist. 

v. Aquila, Inc. 47 There, a dispute between a utilities district 

and Aquila, Inc., two distributers of natural gas which both 

had contracts with the same natural gas supplier, arose over 

the utilities district’s proposed construction of a gas main 

extension. 48 Aquila argued in a complaint before the PSC 

that the utilities district’s extension violated Neb. Rev. Stat. 

§§ 57-1301 to 57-1307 (Reissue 2004), because it was not 

in the public interest. 49 Following a hearing, the PSC agreed 

and granted Aquila’s request to order a cease and desist of 

the construction. 50

46 Id.

47 Aquila, Inc., supra note 30.

48 Id.

49 Id.

50 Id.
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In determining the PSC was not a party of record under 

§ 84-917, we concentrated our review on the PSC’s actions in 

considering the dispute then at issue. 51 The statute authorizing 

the PSC to consider such a complaint, § 57-1306, expressly 

stated that the PSC “‘shall have no jurisdiction over a metropolitan utilities district or natural gas utility beyond the determination of disputes’” brought under the relevant statutes. 52

These statutes specified that no utility could extend or enlarge 

its natural gas mains or services unless it was in the public 

interest and that, if a complaint was brought alleging an action 

was not in the public interest, the PSC was instructed to consider the question of public interest by weighing statutorily 

prescribed factors. 53

There are no such limiting statutes that restrained the 

Commission’s consideration in approving a bookkeeper and 

custodian of the deducted funds. The Commission was generally charged with overseeing the horseracing industry to 

ensure all funds received by the Commission are properly 

distributed, licensing and credentialing horseracing entities, 

enforcing horseracing statutes and regulations, and establishing 

rules and regulations governing horseracing and the licensing 

of horseracing associations. 54 Additionally, in the requirement 

of the Commission’s approval of racetracks’ bookkeepers, the 

Commission was not limited in its evaluation to specific statutorily prescribed factors.

For the reasons stated above, we find that the Commission 

was acting beyond its neutral factfinding role when it considered NTBA’s request to approve NTBA and its bookkeeper as 

the custodian of the deducted funds and revoke the previous 

approval of HBPA. Therefore, the Commission was a party of 

record and appellees were required to serve summons on the 

51 Id.

52 Id. at 458, 712 N.W.2d at 285.

53 Id.

54 §§ 2-1203, 2-1203.01, 2-1205, 2-1207.01, and 2-1211.
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Commission through the Attorney General’s office within 30 

days of filing the petition for further review. 55

Appellees contend that OER complied with § 84-917(2) 

because OER filed its petition for judicial review on February 

28, 2018, and a summons was issued for the Commission 

on March 1, which alleged it would be sent to the Attorney 

General’s office through certified mail, and that it can be 

implied such summons was sent by certified mail because 

the Attorney General filed an answer on March 27. Appellees 

claim this proof of service was sufficient because §§ 84-917(2) 

and 25-510.02 do not require a return receipt.

In analyzing the service of an agency under § 25-510.02, 

as when analyzing the option to serve an individual through 

certified mail under Neb. Rev. Stat. § 25-508.01 (Reissue 

2016), we look to Neb. Rev. Stat. § 25-505.01(1)(c) (Reissue 

2016) for the requirements of service by certified mail. 56

Section 25-505.01(1) requires the servicing party request a 

return receipt and states:

[A] plaintiff may elect to have service made by . . . :

. . . .

(c) Certified mail service which shall be made by (i) 

within ten days of issuance, sending the summons to the 

defendant by certified mail with a return receipt requested 

showing to whom and where delivered and the date of 

delivery, and (ii) filing with the court proof of service 

with the signed receipt attached[.]

In order for the district court to obtain subject matter jurisdiction, OER was required to serve the Commission within 

30 days of filing the petition as provided by § 25-510.02; 

one option for service under § 25-510.02 is through certified 

mail, and § 25-505.01(1)(c) explains the process of service 

by certified mail to include requesting and filing a return 

55 § 84-917(2)(a)(i); § 25-510.02.

56 See Anthony K., supra note 25. See, also, Mendoza v. Osterberg, No. 

8:13CV65, 2014 WL 3784122 (D. Neb. July 31, 2014).
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receipt as proof of service. As such, OER was required to 

request a return receipt on any service of the Commission it 

sent through certified mail. Without the return receipt, it is 

unknown whether OER sent the summons or whether service 

upon the Attorney General occurred. There is no affidavit of 

service or other evidence to establish service, and the fact that 

the Attorney General filed an answer is insufficient to establish 

service was executed. Accordingly, the issued summons listing 

the Attorney General’s address is insufficient to prove proper 

service under § 84-917(2).

Though perhaps not the only method available to challenge 

the Commission’s order, a petition for judicial review was the 

method chosen by OER. As a result, OER was obligated to 

bring the action in compliance with § 84-917(2). Because the 

Commission acted beyond the role of a neutral fact finder and 

was a party of record and because OER failed to execute service 

on the Attorney General in compliance with § 84-917(2)(a)(i), 

the district court lacked subject matter jurisdiction to review 

the Commission’s order and its order reversing and vacating 

the Commission’s order is void. 57

Because the district court lacked subject matter jurisdiction 

to consider OER’s petition for judicial review, we, in turn, lack 

jurisdiction to consider the district court’s review. 58 Even when 

appellate jurisdiction is lacking, however, we have the power 

to vacate a void order and, if necessary, to remand the cause 

with appropriate directions. 59 As a result, we must vacate the 

order of the district court.

In vacating the order of the district court, we make no 

determination as to the merits of the Commission’s order, 

whether the Commission had authority to consider NTBA’s 

request, whether the Commission had authority to appoint 

57 See J.S., supra note 4.

58 See In re Estate of Evertson, 295 Neb. 301, 889 N.W.2d 73 (2016).

59 See Francisco v. Gonzalez, 301 Neb. 1045, 921 N.W.2d 350 (2019).
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a custodian, or the extent of the Commission’s authority to 

approve a bookkeeper.

CONCLUSION

OER failed to seek district court review of the Commission’s 

order in the mode and manner provided by § 84-197(2) by 

failing to timely serve the summons and a copy of the petition upon NTBA and the Commission through the Attorney 

General’s office. The district court, therefore, lacked subject 

matter jurisdiction under the APA to consider the petition for 

judicial review and its order is void. We likewise lack subject 

matter jurisdiction over this appeal. We vacate the order of the 

district court and dismiss this appeal.

Vacated and dismissed.

Papik, J., concurring.

Nebraska’s Administrative Procedure Act (APA) allows those 

aggrieved by decisions of state agencies to seek review of those 

decisions in district court. See Neb. Rev. Stat. § 84‐917(1) 

(Reissue 2014). In Concordia Teachers College v. Neb. Dept. 

of Labor, 252 Neb. 504, 563 N.W.2d 345 (1997), this court 

interpreted the APA to require that all parties of record before 

the agency be timely served with a summons in order for the 

district court to have subject matter jurisdiction of such a 

judicial review proceeding. We have followed that principle in 

subsequent APA cases, see, e.g., Candyland, LLC v. Nebraska 

Liquor Control Comm., 306 Neb. 169, 944 N.W.2d 740 (2020), 

and in a case brought pursuant to similar statutes, see J.S. v. 

Grand Island Public Schools, 297 Neb. 347, 899 N.W.2d 893 

(2017), and the court applies it today to find that the district 

court lacked subject matter jurisdiction in this case. While I 

believe the court’s decision faithfully applies the cases cited 

above, I write separately to observe that the interpretation of 

the APA we adopted in Concordia Teachers College resulted 

in a rule that is legally anomalous and, in my view, can lead to 

peculiar results.
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The interpretation we first adopted in Concordia Teachers 

College is a legal anomaly because in most cases, properly 

serving a party with a summons is necessary to confer personal

rather than subject matter jurisdiction. See, e.g., Henderson v. 

Department of Corr. Servs., 256 Neb. 314, 589 N.W.2d 520 

(1999) (holding that district court lacked personal jurisdiction 

over named parties because they were not served with summons and did not enter voluntary appearance); Rudd v. Debora, 

20 Neb. App. 850, 855, 835 N.W.2d 765, 770 (2013) (“[t]he 

father was properly served with a valid summons, and the court 

thereby obtained personal jurisdiction over him”). See, also, 

Omni Capital Int’l v. Rudolf Wolff & Co., 484 U.S. 97, 104, 

108 S. Ct. 404, 98 L. Ed. 2d 415 (1987) (“[b]efore a federal 

court may exercise personal jurisdiction over a defendant, the 

procedural requirement of service of summons must be satisfied”); York Group, Inc. v. Wuxi Taihu Tractor Co., Ltd., 632 

F.3d 399, 403 (7th Cir. 2011) (“[t]he effectiveness of service 

concerns personal jurisdiction, not subject matter jurisdiction” 

(emphasis in original)). Treating service of a summons as an 

issue of personal rather than subject matter jurisdiction is consistent with how those concepts have been traditionally understood by this court. As we have often stated, personal jurisdiction is the power of a tribunal to subject and bind a particular 

person or entity to its decisions while subject matter jurisdiction refers to the power of a tribunal to hear and determine a 

case in the general class or category to which the proceedings 

in question belong and to deal with the general subject matter 

involved. See, e.g., Young v. Govier & Milone, 286 Neb. 224, 

835 N.W.2d 684 (2013).

But the interpretation of the APA we embraced in Concordia 

Teachers College affects more than just those concerned with 

consistent use of legal terminology. As this case illustrates, 

application of the Concordia Teachers College rule can preclude judicial review in cases in which judicial review would 

be available if service of summons were, as in other contexts, a matter of personal jurisdiction. Here, NTBA and the 
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Commission filed answers in the judicial review proceeding 

less than 30 days after OER filed its petition. Their answers did 

not assert that the district court lacked jurisdiction, but asked 

that the district court affirm the decision of the Commission 

on its merits. If proper service of summons were a matter of personal jurisdiction, there would be no jurisdictional 

problem under these circumstances. The answers of NTBA 

and the Commission amounted to a general appearance and 

authorized the exercise of personal jurisdiction over them. 

See Hunt v. Trackwell, 262 Neb. 688, 635 N.W.2d 106 (2001). 

But because subject matter jurisdiction cannot be waived or 

conferred by the consent or conduct of the parties, see id., 

under the rule of Concordia Teachers College, the district 

court lacked subject matter jurisdiction over OER’s petition for 

judicial review.

While dictated by Concordia Teachers College and its progeny, this strikes me as a strange outcome. One would expect 

the purpose of a requirement that parties be served with a summons to be to ensure that parties involved have notice of the 

proceedings and an opportunity to participate before the court 

takes action that potentially affects the outcome of the agency 

proceedings in which they had an interest. But when parties 

make a general appearance within the time before which summons must be served, as the NTBA and the Commission did 

here, there is no need to worry about whether those parties 

received adequate notice. And I cannot conceive of any other 

reason why a district court should be precluded from exercising judicial review when a party who was not served with a 

summons nonetheless willingly engages on the merits in a 

judicial review proceeding. As far as I can tell, our interpretation of the APA in Concordia Teachers College has established, at best, a counterintuitive exception to the general rule 

that effective service is a requirement of personal rather than 

subject matter jurisdiction, and, at worst, a jurisdictional trap. 

See, e.g., J.S. v. Grand Island Public Schools, 297 Neb. 347, 

899 N.W.2d 893 (2017) (citing Concordia Teachers College v. 
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Neb. Dept. of Labor, 252 Neb. 504, 563 N.W.2d 345 (1997), 

and holding that district court lacked subject matter jurisdiction because there was no evidence school board that filed 

voluntary appearance in which it purported to waive service of 

summons was served with summons).

Given the important role of judicial review of administrative 

agency actions, this strikes me as a particularly unfortunate 

area for counterintuitive rules or jurisdictional traps. While 

usually belonging to the executive branch, administrative agencies that promulgate rules and regulations and adjudicate violations of those rules and regulations also exercise functions 

that appear to be more legislative or judicial in character. See 

Arlington v. FCC, 569 U.S. 290, 304 n.4, 133 S. Ct. 1863, 185 

L. Ed. 2d 941 (2013) (explaining that administrative agency 

actions can take “‘legislative’ and ‘judicial’ forms”). So how 

is the exercise of all these powers by the same entity not, as 

James Madison famously wrote, “the very definition of tyranny”? See The Federalist No. 47 at 298 (James Madison) 

(Clinton Rossiter ed., 2003) (“accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may 

justly be pronounced the very definition of tyranny”). While 

different jurists would surely offer different answers to that 

question, one that is commonly offered is that courts, through 

judicial review provisions, can hold agencies in check. See, 

e.g., Brietta R. Clark, APA Deference After Independent Living 

Center: Why Informal Adjudicatory Action Needs a Hard Look, 

102 Ky. L.J. 211, 229 (2014) (“judicial review helps guard 

against abuse of power and arbitrariness”); Robert J. Pushaw, 

Jr., Justiciability and Separation of Powers: A Neo‐Federalist 

Approach, 81 Cornell L. Rev. 393, 471 (1996) (“[i]n fact, the 

huge growth of executive agencies has not resulted in tyranny primarily because of congressional oversight and judicial 

review”). At the risk of stating the obvious, courts cannot 

perform this important function if they do not acquire subject 

matter jurisdiction.
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None of these observations should be taken as criticism of 

the court’s decision in this case. OER did not ask that we overrule Concordia Teachers College, and, even if it had, it would 

have to overcome the doctrine of legislative acquiescence. But 

even if the Legislature has, up to this point, acquiesced in our 

interpretation of the APA in Concordia Teachers College, the 

outcome in this case may provide reason for the Legislature to 

consider anew whether the APA should be amended to allow 

courts to exercise subject matter jurisdiction when parties are 

not served with a summons but nonetheless make a timely general appearance in a judicial review proceeding.