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State of Nebraska ex rel. Billy D. Rhiley, appellant

and cross-appellee, v. Nebraska State Patrol, 

appellee and cross-appellant.

___ N.W.2d ___

Filed October 5, 2018. No. S-17-1261.

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.

2. 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, which requires the appellate court to reach a conclusion 

independent of the lower court’s decision.

3. ____: ____. Before reaching the legal issues presented for review, it is 

the duty of an appellate court to determine whether it has jurisdiction 

over the appeal.

4. Immunity. A state’s immunity from suit is a fundamental aspect of 

sovereignty.

5. Constitutional Law: Actions: Legislature. The provisions of Neb. 

Const. art. V, § 22, are not self-executing, and no suit may be maintained 

against the State unless the Legislature, by law, has so provided.

6. 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.

7. ____: ____: ____. 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.

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

action waiving sovereign immunity, a trial court lacks subject matter 

jurisdiction over an action against the State.

9. Criminal Law: Political Subdivisions: Immunity: Waiver. Neb. Rev. 

Stat. § 29-3528 (Reissue 2016) does not expressly waive sovereign 

Nebraska Supreme Court Online Library

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

11/09/2018 12:11 AM CST
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immunity for actions brought against a state agency seeking to compel 

compliance with the Security, Privacy, and Dissemination of Criminal 

History Information Act, nor does the text overwhelmingly imply that 

waiver of sovereign immunity is the only reasonable construction.

Appeal from the District Court for Hall County: John H. 

Marsh, Judge. Vacated and dismissed.

Jared J. Krejci, of Leininger, Smith, Johnson, Baack, Placzek 

& Allen, for appellant.

Douglas J. Peterson, Attorney General, and David A. Lopez 

for appellee.

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

Papik, and Freudenberg, JJ.

Stacy, J.

Billy D. Rhiley filed this mandamus action against the 

Nebraska State Patrol (NSP) seeking an order commanding 

the NSP to remove from the public record information regarding his 1991 arrest. The NSP argued (1) the mandamus action 

was barred by sovereign immunity and thus the court lacked 

subject matter jurisdiction, (2) the action was moot, and (3) 

mandamus relief was unavailable because Rhiley had an adequate remedy at law. The district court rejected the sovereign 

immunity defense, but granted judgment in favor of the NSP 

and dismissed the mandamus action on the other grounds. 

Rhiley appeals the dismissal of his mandamus action, and 

the NSP cross-appeals the rejection of its sovereign immunity defense. We conclude the sovereign immunity defense is 

meritorious and dismiss the appeal for lack of subject matter jurisdiction.

FACTS

On February 1, 1991, Rhiley was arrested by police in 

Grand Island, Nebraska, pursuant to a felony arrest warrant for 

burglary issued in Laramie, Wyoming. The arresting officers 

informed the NSP’s Criminal Identification Division (CID) 
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of the arrest. The CID serves as a repository of criminal history information1

 in Nebraska. Under Nebraska’s Security, 

Privacy, and Dissemination of Criminal History Information 

Act2 (the Criminal History Act), each criminal justice agency 

is required to maintain “complete and accurate criminal history record information with regard to the actions taken by the 

agency.”3 Under the Criminal History Act, “complete” information means that “arrest records shall show the subsequent 

disposition of the case as it moves through the various stages 

of the criminal justice system” and “accurate” information 

“shall mean containing no erroneous information of a material nature.”4

According to Rhiley, after he was arrested, officials determined he was not involved in the burglary, he was released, 

and Wyoming prosecutors voluntarily dismissed the burglary 

charge. The NSP’s CID was not notified of the Wyoming 

action.

In 2016, Rhiley obtained a copy of his NSP criminal history 

information and found it included information about the 1991 

arrest for burglary. Regarding disposition of the arrest, the 

report provided: “ARREST DISPOSITION: TRANSFERRED 

TO ANOTHER AGENCY—WYOMING.” The criminal history report did not indicate the burglary charge had been 

dismissed by the Wyoming prosecutor. Rhiley’s attorney telephoned the NSP’s CID to request correction, and was told to 

contact the arresting agency. Rhiley’s counsel then contacted 

1 See Neb. Rev. Stat. § 29-3506 (Reissue 2016) (“[c]riminal history record 

information [means] information collected by criminal justice agencies on 

individuals consisting of identifiable descriptions and notations of issuance 

of arrest warrants, arrests, detentions, indictments, charges by information, 

and other formal criminal charges, and any disposition arising from such 

arrests, charges, sentencing, correctional supervision, and release”).

2 See Neb. Rev. Stat. §§ 29-209, 29-210, 29-3501 to 29-3528 (Reissue 

2016), and 81-1423 (Cum. Supp. 2016).

3 § 29-3515.

4 § 29-3507.
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the Hall County Attorney in an attempt to resolve the matter, 

but was unsuccessful.

On March 28, 2017, Rhiley filed a lawsuit in the Hall 

County District Court seeking to have the 1991 arrest information removed from the public record pursuant to § 29-3523. 

That statute generally provides that in the case of an arrest, all 

criminal history record information relating to the case “shall 

be removed from the public record” as follows:

(a) When no charges are filed as a result of the determination of the prosecuting attorney, the criminal history 

record information shall not be part of the public record 

after one year from the date of arrest, citation in lieu of 

arrest, or referral for prosecution without citation;

(b) When charges are not filed as a result of a completed diversion, the criminal history record information 

shall not be part of the public record after two years from 

the date of arrest, citation in lieu of arrest, or referral for 

prosecution without citation; and

(c) When charges are filed, but the case is dismissed by 

the court (i) on motion of the prosecuting attorney, (ii) as 

a result of a hearing not the subject of a pending appeal, 

(iii) after acquittal, or (iv) after completion of a program 

prescribed by a drug court or any other problem solving 

court approved by the Supreme Court, the criminal history record information shall not be part of the public 

record immediately upon notification of a criminal justice 

agency after acquittal pursuant to subdivision (3)(c)(iii) 

of this section or after the entry of an order dismissing 

the case.5

Initially, Rhiley’s lawsuit was brought against several 

defendants, including the city of Grand Island, Hall County, 

the Hall County Attorney, and the NSP’s Superintendent 

of Law Enforcement and Public Safety, individually and in 

his official capacity. On July 13, 2017, Rhiley voluntarily 

5 § 29-3523 (3)(a) through (c) (emphasis supplied).
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dismissed all defendants except the NSP. Thus, Rhiley elected 

to proceed with a mandamus action against only the NSP, 

seeking to compel the removal of criminal history information 

regarding his 1991 arrest from the public record. After the 

lawsuit was filed, the NSP removed Rhiley’s arrest information from the public record.

Rhiley claims that § 29-3528 authorizes a mandamus action 

directly against the NSP to compel compliance with the 

Criminal History Act. Section 29-3528 provides:

Whenever any officer or employee of the state, its 

agencies, or its political subdivisions, or whenever any 

state agency or any political subdivision or its agencies 

fails to comply with the requirements of [the Criminal 

History Act] or of regulations lawfully adopted to implement [that act], any person aggrieved may bring an action, 

including but not limited to an action for mandamus, to 

compel compliance and such action may be brought in the 

district court of any district in which the records involved 

are located or in the district court of Lancaster County. 

The commission may request the Attorney General to 

bring such action.

The NSP moved for judgment on the pleadings, arguing 

the mandamus action was barred by the doctrine of sovereign 

immunity. The district court overruled the motion. The NSP 

subsequently filed another motion, styled as a motion for summary judgment, asserting: (1) Rhiley’s mandamus action was 

barred by sovereign immunity; (2) Rhiley had a plain and adequate remedy at law, so mandamus was not available; and (3) 

the action was rendered moot when the 1991 arrest information 

was removed from the public record shortly after the mandamus action was filed. No party challenges the use of summary 

judgment within a mandamus action.

The district court again rejected the sovereign immunity 

defense, but granted judgment in favor of the NSP on the other 

two grounds and denied mandamus relief. It reasoned Rhiley’s 

claim was rendered moot by the NSP’s removal of his arrest 
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information from the public record. Alternatively, it reasoned 

regulations promulgated pursuant to the Criminal History Act 

created procedures for challenging incorrect criminal history6

and found such procedures were a “plain and adequate remedy” available to Rhiley that precluded mandamus relief.7

Rhiley appeals, and the NSP cross-appeals. We granted the 

NSP’s petition to bypass.

ASSIGNMENTS OF ERROR

Rhiley assigns, restated and summarized, that the district 

court erred in (1) determining the action is moot, (2) determining he failed to avail himself of a plain and adequate remedy at 

law, (3) relying on an administrative exhaustion defense when 

the NSP did not assert such a defense in its answer, (4) sustaining the NSP’s hearsay objection to certain evidence, and (5) 

failing to bind the NSP to its guidance documents.

On cross-appeal, the NSP contends both the district court 

and this court lack jurisdiction, because Rhiley’s claim against 

the NSP, a state agency, is barred by the doctrine of sovereign 

immunity and the language in § 29-3528 is not a waiver of 

such immunity.

STANDARD OF REVIEW

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

have a duty to determine whether they have subject matter 

jurisdiction over a matter.8

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

law, which requires the appellate court to reach a conclusion 

independent of the lower court’s decision.9

6 See, § 29-3526; 78 Neb. Admin. Code, ch. 1 (1978).

7 Neb. Rev. Stat. § 25-2157 (Reissue 2016).

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

9 Tilson v. Tilson, 299 Neb. 64, 907 N.W.2d 31 (2018); In re Interest of 

Meridian H., 281 Neb. 465, 798 N.W.2d 96 (2011).
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ANALYSIS

[3] Before reaching the legal issues presented for review, it 

is the duty of an appellate court to determine whether it has 

jurisdiction over the appeal.10 Because the NSP’s cross-appeal 

presents a jurisdictional question, we address it first.

Actions Against State Are Barred Unless

Sovereign Immunity Is Waived

[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.”11 This court has, as 

a result, sometimes referred to the 11th Amendment when discussing Nebraska’s sovereign immunity from suit.12 However, 

the sovereign immunity of a state neither derives from nor is 

limited by the terms of the 11th Amendment.13 Rather, as we 

have recognized, a state’s immunity from suit is a fundamental aspect of sovereignty.14

[5] Neb. Const. art. V, § 22, provides: “The state may 

sue and be sued, and the Legislature shall provide by law 

in what manner and in what courts suits shall be brought.” 

Long ago, we held that this provision is not self-executing 

and that no suit may be maintained against the State unless 

the Legislature, by law, has so provided.15 Over time, we 

have examined the Legislature’s limited waivers of the 

10 Bloedorn Lumber Co. v. Nielson, 300 Neb. 722, 915 N.W.2d 786 (2018).

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

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

12 See, e.g., Amend v. Nebraska Pub. Serv. Comm., 298 Neb. 617, 905 N.W.2d 

551 (2018); Gillpatrick v. Sabatka-Rine, 297 Neb. 880, 902 N.W.2d 115 

(2017); Lamb v. Fraternal Order of Police Lodge No. 36, 293 Neb. 138, 

876 N.W.2d 388 (2016).

13 Alden, supra note 11.

14 Id. See Jill B. & Travis B. v. State, 297 Neb. 57, 899 N.W.2d 241 (2017).

15 Shear v. State, 117 Neb. 865, 223 N.W. 130 (1929).
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State’s sovereign immunity, usually in the context of either 

the State Tort Claims Act or the Political Subdivisions Tort 

Claims Act.16

[6-8] In doing so, we have found it well settled that statutes that purport to waive the State’s protection of sovereign 

immunity are strictly construed in favor of the sovereign and 

against the waiver.17 A waiver of sovereign immunity is found 

only where stated by the most express language of a statute or 

by such overwhelming implication from the text as will allow 

no other reasonable construction.18 Absent legislative action 

waiving sovereign immunity, a trial court lacks subject matter 

jurisdiction over an action against the State.19

This action originally involved other parties and claims, but 

Rhiley voluntarily dismissed all parties except the NSP and 

all claims except mandamus. The NSP is an administrative 

department of the State of Nebraska,20 and an action against a 

state agency is an action against the State.21 Therefore, Rhiley’s 

mandamus action against the NSP is barred by sovereign 

immunity unless the Legislature has waived it.

Rhiley argues § 29-3528 waives the State’s sovereign immunity in a mandamus action seeking to compel compliance with 

the Criminal History Act. His argument is generally twofold. 

First, he asserts we should construe § 29-3528 as a waiver 

of the State’s sovereign immunity. Second, he contends our 

16 See, e.g., Shipley v. Department of Roads, 283 Neb. 832, 813 N.W.2d 455 

(2012).

17 Amend, supra note 12; Zawaideh v. Nebraska Dept. of Health & Human 

Servs., 285 Neb. 48, 825 N.W.2d 204 (2013).

18 Amend, supra note 12; Jill B. & Travis B., supra note 14.

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

(1999).

20 Neb. Rev. Stat. § 81-2001 (Reissue 2014).

21 See Henderson, supra note 19. See, also, Perryman v. Nebraska Dept. of 

Corr. Servs., 253 Neb. 66, 568 N.W.2d 241 (1997), disapproved on other 

grounds, Johnson v. Clarke, 258 Neb. 316, 603 N.W.2d 373 (1999).
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decision in Henderson v. Department of Corr. Servs.22 interpreting the Nebraska mandamus statutes was incorrect and 

should be overruled. We address these arguments in reverse 

order and ultimately reject both.

Henderson Correctly Held Mandamus Statutes

Do Not Waive Sovereign Immunity

for State Agency

Rhiley seeks a writ of mandamus. Mandamus is a law action 

and is defined as an extraordinary remedy, not a writ of right, 

issued to compel the performance of a purely ministerial act 

or duty, imposed by law upon an inferior tribunal, corporation, 

board, or person, where (1) the relator has a clear right to the 

relief sought, (2) there is a corresponding clear duty existing 

on the part of the respondent to perform the act, and (3) there 

is no other plain and adequate remedy available in the ordinary 

court of law.23 Mandamus is statutorily authorized by Neb. 

Rev. Stat. §§ 25-2156 to 25-2169 (Reissue 2016).

In State ex rel. Steinke v. Lautenbaugh,

24 we addressed 

whether a suit seeking a writ of mandamus against the Douglas 

County election commissioner, in his official capacity, was 

barred by sovereign immunity. We found it was not, reasoning:

When an action is brought against an individual employee 

of a state agency, a court must determine whether the 

action against the individual official is in reality an action 

against the state and therefore barred by sovereign immunity.[25]

 In addressing this issue, we have stated that an 

action against a public officer to obtain relief from an 

invalid act or from an abuse of authority by the officer or 

agent is not a suit against the state and is not prohibited 

22 Henderson, supra note 19.

23 State ex rel. Steinke v. Lautenbaugh, 263 Neb. 652, 642 N.W.2d 132 

(2002). 

24 Id.

25 See County of Lancaster v. State, 247 Neb. 723, 529 N.W.2d 791 (1995).
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by sovereign immunity.[26] This exception to the rule of 

sovereign immunity exists because “‘acts of state officers not legally authorized, or which exceed or abuse the 

authority conferred upon them, are judicially regarded as 

their own acts and not acts of the state.’”[27] . . .

Application of the foregoing principles demonstrates 

that this is not in reality an action brought against the 

state or one of its political subdivisions. The basis for 

relators’ claims is that [the election commissioner] 

exceeded his statutory authority to adjust subdistrict 

boundaries, and thus, they seek relief from what they 

allege to be an invalid act or an abuse of authority by [the 

commissioner].28

Lautenbaugh did not rely on any Legislative waiver of sovereign immunity to find the action proper. Instead, it relied on 

the rationale that an act done by a state official that exceeds or 

abuses his or her authority is not an act of the State. As such, 

Lautenbaugh recognized the general principle that sovereign 

immunity does not bar mandamus actions against a public 

officer seeking relief from what is alleged to be an invalid act 

or an abuse of authority by the public officer.

Under the principle announced in Lautenbaugh, if Rhiley 

had proceeded with his mandamus action against a public 

officer of the NSP, our sovereign immunity analysis would 

be different. But Rhiley’s mandamus action against the NSP 

superintendent was voluntarily dismissed, leaving the NSP, a 

state agency, as the only named party.

We addressed a similar situation in Henderson.

29 There, an 

inmate sought a writ of mandamus directing the Department 

26 Johnson, supra note 21.

27 Concerned Citizens v. Department of Environ. Contr., 244 Neb. 152, 156, 

505 N.W.2d 654, 658 (1993), quoting Rein v. Johnson, 149 Neb. 67, 30 

N.W.2d 548 (1947).

28 Lautenbaugh, supra note 23, 263 Neb. at 661-62, 642 N.W.2d at 140.

29 Henderson, supra note 19.
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of Correctional Services to establish his projected release date 

in accordance with his interpretation of a statute. The inmate 

sued several state officers in addition to the Department of 

Correctional Services, but he failed to perfect service on any 

of the officers. Thus, the mandamus action proceeded against 

only the department, and we phrased the jurisdictional question as whether the district court had subject matter jurisdiction over a mandamus action against the department, a state 

agency, absent legislative action waiving the State’s sovereign immunity.30

In considering whether sovereign immunity had been 

waived, Henderson looked to the general statute authorizing 

mandamus, § 25-2156. That statute provides in relevant part: 

“The writ of mandamus may be issued to any inferior tribunal, 

corporation, board or person, to compel the performance of an 

act which the law specifically enjoins as a duty resulting from 

an office, trust or station.”31 We concluded that “[n]othing in 

the statutes governing mandamus . . . indicates a legislative 

intent to waive sovereign immunity for mandamus actions 

against a state agency.”32

Rhiley argues we erred in Henderson, and he invites us to 

overrule that case. He contends that although the NSP is a state 

agency, it can also be an “inferior tribunal” within the context 

of § 25-2156, and he asks us to find that the Legislature has 

waived the State’s sovereign immunity for inferior tribunals.

We adhere to the holding in Henderson and do not consider Rhiley’s argument, because it is hypothetical. There is 

nothing in the record suggesting the NSP acted as a tribunal 

in this case, and it is not the function of the courts to render 

a judgment that is merely advisory.33 Moreover, appellate 

30 Id.

31 § 25-2156.

32 Henderson, supra note 19, 256 Neb. at 317, 589 N.W.2d at 522.

33 In re Applications of Koch, 274 Neb. 96, 736 N.W.2d 716 (2007).
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courts do not generally consider arguments and theories raised 

for the first time on appeal,34 and there is nothing in the 

record indicating Rhiley ever presented this theory to the district court.

§ 29-3528 Does Not Waive Sovereign Immunity

for Actions Seeking to Enforce

Criminal History Act

Rhiley argues § 29-3528 waives sovereign immunity for 

actions brought against state agencies to compel compliance 

with the Criminal History Act. As noted, § 29-3528 provides:

Whenever any officer or employee of the state, its 

agencies, or its political subdivisions, or whenever any 

state agency or any political subdivision or its agencies 

fails to comply with the requirements of [the Criminal 

History Act] or of regulations lawfully adopted to implement [that act], any person aggrieved may bring an 

action, including but not limited to an action for mandamus, to compel compliance and such action may be 

brought in the district court of any district in which 

the records involved are located or in the district court 

of Lancaster County. The commission may request the 

Attorney General to bring such action.

As we recently reiterated in Amend v. Nebraska Pub. Serv. 

Comm.

35:

It is 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. 

. . . 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.

34 Maria T. v. Jeremy S., 300 Neb. 563, 915 N.W.2d 441 (2018).

35 Amend, supra note 12, 298 Neb. at 624, 905 N.W.2d at 557 (emphasis 

supplied).
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The question, then, is whether, strictly construed against 

waiver, § 29-3528 contains language that either (1) expressly 

waives sovereign immunity for actions brought against a state 

agency seeking compliance with the Criminal History Act or 

(2) contains text from which the overwhelming implication 

allows no other reasonable construction.

Rhiley concedes, as he must, that there is no language in 

§ 29-3528 which expressly waives sovereign immunity for 

actions to compel compliance with the Criminal History Act. 

He argues, however, that the overwhelming implication of the 

statutory language allows no other reasonable construction. 

Rhiley essentially contends that because the statute references 

“state agency” and, later in the same sentence, references 

bringing an “action, including but not limited to an action for 

mandamus,” to compel compliance, the only reasonable way 

to construe the statute is that it waives the State’s sovereign 

immunity in such actions. We disagree.

When strictly construed in favor of the sovereign and 

against waiver, a reasonable construction of the relevant text 

in § 29-3528 is that it recognizes a private civil right of action 

to enforce the Criminal History Act. So construed, § 29-3528 

allows an aggrieved party to bring a civil action, including 

a mandamus action, to enforce compliance with the requirements of the Criminal History Act, assuming all other jurisdictional and statutory requirements for bringing any particular 

action are met.

But nothing about allowing a private right of action is an 

express or implied waiver of the State’s sovereign immunity. 

While a court must attempt to give effect to all parts of a statute, and if it can be avoided, no word, clause, or sentence will 

be rejected as superfluous or meaningless,36 a court also must 

not read into a statute a meaning that is not there.37 Section 

36 Stick v. City of Omaha, 289 Neb. 752, 857 N.W.2d 561 (2015).

37 DMK Biodiesel v. McCoy, 290 Neb. 286, 859 N.W.2d 867 (2015).
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29-3528 simply does not address the issue of sovereign immunity either expressly or by necessary implication, and we reject 

Rhiley’s suggestion to the contrary.

We also reject Rhiley’s contention that the federal district 

court for Nebraska has determined that § 29-3528 waives the 

State’s sovereign immunity. In Estate of Wondercheck, ex rel. 

Wondercheck v. Nebraska,

38 an unpublished opinion of the U.S. 

District Court for the District of Nebraska, that court discussed 

§ 29-3528. It did so, however, in the context of analyzing 

a different issue—whether § 29-3528 authorized a party to 

bring a mandamus action against the State of Nebraska in federal court.

As to that issue, the federal court concluded “section 

29-3528 does not constitute a waiver [of the State’s] immunity from suit in federal court for violation of the [Criminal 

History Act].”39 It reached this conclusion because the statutory language did not include a clear declaration that the 

State intended to submit to federal jurisdiction, and instead 

referenced only “‘the district court of any district in which 

the records involved are located or in the district court of 

Lancaster County.’”40 In the course of explaining its reasoning, 

the federal court broadly stated that “section 29-3528 waives 

Nebraska’s immunity only for [Criminal History Act] claims 

brought in state district court.”41 We read this statement in the 

context of the court’s entire analysis of federal jurisdiction, 

and not as a precise holding on the statutory interpretation 

question presented in the instant case. In any event, to the 

extent the federal district court’s interpretation of § 29-3528 

38 Estate of Wondercheck, ex rel. Wondercheck v. Nebraska, No. 4:06CV3087, 

2006 WL 3392185 (D. Neb. Oct. 18, 2006) (unpublished memorandum 

and order).

39 Id. at *4.

40 Id., quoting § 29-3528.

41 Id. at *4.
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differs from ours, we respectfully observe that this court is 

the final arbiter of Nebraska law.42

[9] We hold that § 29-3528 does not expressly waive sovereign immunity for actions brought against a state agency 

seeking to compel compliance with the Criminal History Act, 

nor does the text overwhelmingly imply that waiver of sovereign immunity is the only reasonable construction. We thus 

hold that Rhiley’s mandamus action against the NSP seeking to 

compel compliance with the Criminal History Act is barred by 

the doctrine of sovereign immunity.

CONCLUSION

The Legislature has not waived the State’s sovereign immunity in mandamus actions brought directly against a state 

agency to enforce the Criminal History Act. As such, the 

district court lacked subject matter jurisdiction over Rhiley’s 

mandamus action against the NSP, a state agency.43 When a 

lower court does not gain jurisdiction over the case before it, 

an appellate court also lacks the jurisdiction to review the merits of the claim.44 We thus vacate the district court’s judgment, 

and dismiss this appeal for lack of subject matter jurisdiction.

Vacated and dismissed.

42 State v. Gales, 269 Neb. 443, 694 N.W.2d 124 (2005).

43 See Henderson, supra note 19.

44 Id.