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Nebraska Supreme Court Advance Sheets

314 Nebraska Reports

SWICORD V. POLICE STDS. ADV. COUNCIL

Cite as 314 Neb. 816

Kendel Blake Swicord, appellant, v. Nebraska 

Police Standards Advisory Council and 

Nebraska Commission on Law Enforcement 

and Criminal Justice, also known as 

Nebraska Crime Commission, appellees.

___ N.W.2d ___

Filed July 28, 2023. No. S-22-648.

1. Judgments: Jurisdiction: Appeal and Error. A jurisdictional issue that 

does not involve a factual dispute presents a question of law, which an 

appellate court independently decides.

2. Administrative Law: Statutes: Appeal and Error. The meaning and 

interpretation of statutes and regulations are questions of law for which 

an appellate court has an obligation to reach an independent conclusion 

irrespective of the decision made by the court below.

3. Jurisdiction: Appeal and Error. It is the power and duty of an appellate court to determine whether it has jurisdiction over the matter before 

it, irrespective of whether the parties raise the issue.

4. Appeal and Error. In Nebraska, the right to appeal is purely statutory 

in that the right to appeal does not exist unless a statute provides for 

an appeal.

5. 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 over the subject 

matter of the action.

6. Jurisdiction: Appeal and Error. If the court from which an appeal 

was taken lacked jurisdiction, then the appellate court acquires no 

jurisdiction.

7. Administrative Law: Parties: Jurisdiction: Appeal and Error. The 

requirements contained in Neb. Rev. Stat. § 84-917(2)(a)(i) (Cum. 

Supp. 2022) are prerequisites to vest the district court with subject 

matter jurisdiction under the Administrative Procedure Act, and a 

petitioner’s failure to make all parties of record to the proceedings for 

Nebraska Supreme Court Online Library

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

07/28/2023 09:06 AM CDT
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Cite as 314 Neb. 816

review means jurisdiction to hear the petition never vested with the 

district court.

Appeal from the District Court for Hall County: Ryan C. 

Carson, Judge. Appeal dismissed.

Steven M. Delaney and Megan E. Shupe, of Reagan, Melton 

& Delaney, L.L.P., for appellant.

Michael T. Hilgers, Attorney General, and Elizabeth O. Gau 

for appellees.

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

and Freudenberg, JJ., and Lux, D.J.

Heavican, C.J.

INTRODUCTION

Kendel Blake Swicord petitioned the district court for 

review under Neb. Rev. Stat. § 84-917 (Cum. Supp. 2022) 

of the Administrative Procedure Act (APA) of an order of 

the Nebraska Police Standards Advisory Council (Council) 

that, ultimately, denied him admission into the basic officer certification training at the Nebraska Law Enforcement 

Training Center (Training Center). The district court affirmed 

the order of the Council. Swicord appeals from that order 

under Neb. Rev. Stat. § 84-918 (Reissue 2014). Because we 

conclude that the district court lacked jurisdiction to review 

Swicord’s denial of admission into basic training, we dismiss 

Swicord’s appeal.

BACKGROUND

The Seward County sheriff’s office hired Swicord as a 

noncertified conditional law enforcement officer. Swicord was 

previously a certified law enforcement officer in the State 

of Georgia. The Seward County sheriff applied, on behalf 

of Swicord, for “Reciprocity Certification [training] in lieu 

of attending Basic Officer Certification [training]” at the 

Training Center. That application was denied by the director 
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314 Nebraska Reports

SWICORD V. POLICE STDS. ADV. COUNCIL

Cite as 314 Neb. 816

of the Training Center (Director) and upheld by the Council. 

Swicord was found to lack good character because he could 

not be characterized as being truthful, honest, or trustworthy 

due to the fact that he knowingly made false statements on his 

application. Swicord petitioned the district court for review 

of the decision of the Council under the APA. We ultimately 

upheld that denial in Swicord v. Police Stds. Adv. Council

(Swicord I). 1

The issue in Swicord I centered around Swicord’s answers 

to certain questions on his application regarding professional 

licenses or certifications. These questions included whether 

Swicord had “ever, either as an adult or juvenile, been cited, 

arrested, charged, or convicted for a violation of any law” 

and if Swicord “ever had a professional license that you hold 

be under investigation?” Although Swicord answered these 

questions in the negative, he, in fact, had been arrested for 

alleged battery in January 2018, for which he completed a 

pretrial diversion program, and the “Georgia Peace Officer 

Standards and Training Council” had voted to revoke Swicord’s 

law enforcement certification in December 2018 after an internal affairs investigation revealed he had violated agency policies and had displayed a lack of veracity during an internal 

investigation. Swicord also failed to disclose these facts in the 

personal character affidavit included in his application for reciprocity training.

After the Council heard Swicord’s reciprocity application 

appeal, the sheriff asked the Director whether Swicord was 

“wasting his time” if he applied for basic training. During this 

discussion, the Director told the sheriff that Swicord should 

answer “yes” to those same questions, but the Director did 

not directly answer the question posed. Before the resolution of judicial review of Swicord’s denial of his reciprocity 

application, he applied for admission into basic training at 

1 Swicord v. Police Stds. Adv. Council, 309 Neb. 43, 958 N.W.2d 388 

(2021).
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SWICORD V. POLICE STDS. ADV. COUNCIL

Cite as 314 Neb. 816

the Training Center. This time, Swicord answered “yes” to 

the pertinent questions in his application as directed by the 

sheriff. Pursuant to 79 Neb. Admin. Code, ch. 8, § 005.05 

(2005), the sheriff verified that a thorough background investigation was conducted and that he determined Swicord met 

the minimum standards for admission, including that Swicord 

demonstrated good character.

After reviewing Swicord’s application packet and conducting 

further investigation into Swicord’s background, the Director 

denied Swicord’s application for admission. The Director specified that Swicord could not be characterized as being honest, 

truthful, or trustworthy based on the false statements he made 

on his application for reciprocity training. The Director also 

specified that revocation proceedings for Swicord’s Georgia 

law enforcement certification were presently pending. Swicord 

appealed the Director’s decision to the Council under 79 Neb. 

Admin. Code, ch. 13 (2005). 2

After Swicord had submitted his appeal of the Director’s 

denial of admission to basic training, he resigned as a noncertified conditional law enforcement officer, but continued his 

employment with the Seward County sheriff’s office in a civilian capacity.

Upon Swicord’s request, the Council stayed the basic training appeal pending resolution of the judicial review of the 

denial of Swicord’s reciprocity application. After we upheld 

the denial of Swicord’s reciprocity application in Swicord I, the 

Council held a hearing on Swicord’s appeal of the Director’s 

denial of his application for entrance to basic training.

After the hearing, the Council found, in part, that (1) 

Swicord should be expected to understand the importance of 

being honest and truthful, (2) his dishonest behavior surrounding his reciprocity application was recent, (3) he failed to 

accept responsibility for his prior actions, (4) he demonstrated 

2 Compare 79 Neb. Admin. Code, ch. 13, § 4.02, with 79 Neb. Admin. Code 

ch. 8, § 9 (2005).
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Cite as 314 Neb. 816

a lack of honesty and truthfulness at the hearing before the 

Council related to the status of his certification in Georgia, 

and (5) although he presented a multitude of references that 

endorsed his general character, they did not address the lack 

of honesty and truthfulness that Swicord had shown before 

the Council. The Council concluded that Swicord could not 

be characterized as being honest, truthful, and trustworthy and 

had failed to meet his burden by clear and convincing evidence 

that he possessed good character. The Council affirmed the 

Director’s denial of Swicord’s application for entrance into 

basic training for failing to meet the minimum requirements 

for admission.

Swicord petitioned the district court for review under 

§ 84-917 of the APA. Swicord argued that the sheriff was the 

only person authorized by regulation to conduct a background 

investigation and that, in essence, the sheriff’s character determination was binding on the Council. In addition, Swicord 

argued that the Council failed to properly consider his application for entrance into basic training.

On its review de novo on the record, the district court 

rejected Swicord’s arguments. The court concluded that 

although the sheriff was primarily responsible for conducting 

a background investigation, the determination of Swicord’s 

character was subject to further inquiry by the Director, and 

that the final decision rested with the Council. In addition, the 

court found that in reaching its conclusion, the Council independently reviewed the evidence and evaluated the credibility 

of witnesses before it. Ultimately, the court concluded that 

Swicord did not meet the mandatory admission requirements 

and affirmed the Council’s order.

Swicord filed a timely appeal, and we moved this case to our 

docket. 3 Before hearing arguments in this case, we requested 

the parties to submit supplemental briefs that addressed 

3 See, Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2022); Neb. Ct. R. App. P. 

§ 2-102(C) (2022).
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whether judicial review under the APA was proper, particularly 

whether the proceeding before the Council was a contested 

case. Both parties submitted supplemental briefs, which we 

have considered.

ASSIGNMENTS OF ERROR

Swicord assigns that the district court erred by concluding that (1) the Director did not usurp the sheriff’s authority 

to conduct a background investigation and (2) the Council 

properly evaluated all mitigating factors concerning his 

application.

STANDARD OF REVIEW

[1,2] A jurisdictional issue that does not involve a factual 

dispute presents a question of law, which an appellate court 

independently decides. 4 The meaning and interpretation of statutes and regulations are questions of law for which an appellate court has an obligation to reach an independent conclusion 

irrespective of the decision made by the court below. 5

ANALYSIS

[3] It is the power and duty of an appellate court to determine whether it has jurisdiction over the matter before it, irrespective of whether the parties raise the issue. 6 Accordingly, 

before turning to the merits of Swicord’s appeal, we must first 

consider whether we have jurisdiction of this matter.

[4-6] In Nebraska, the right to appeal is purely statutory in 

that the right to appeal does not exist unless a statute provides 

for an appeal. 7 In order for this court to have jurisdiction 

over an appeal, appellate jurisdiction must be specifically 

4 In re Interest of K.C., 313 Neb. 385, 984 N.W.2d 277 (2023).

5 State v. Sullivan, 313 Neb. 293, 983 N.W.2d 541 (2023).

6 County of Lancaster v. County of Custer, 313 Neb. 622, 985 N.W.2d 612 

(2023).

7 See Heckman v. Marchio, 296 Neb. 458, 894 N.W.2d 296 (2017).
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provided by the Legislature. 8 The requirements of a statute 

underlying a right to appeal are mandatory and must be complied with before the appellate court acquires jurisdiction 

over the subject matter of the action. 9 If the court from which 

an appeal was taken lacked jurisdiction, then the appellate 

court acquires no jurisdiction. 10 Consequently, if the district 

court failed to have jurisdiction over Swicord’s petition, then 

this court likewise lacks jurisdiction over his appeal.

Having asked for briefs and having focused the parties on 

whether the Council’s decision was made “in a contested case,” 

we choose to leave such analysis for a more appropriate future 

case. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy 

before it. 11 Upon our review of the record, we conclude that 

§ 84-917(2) is dispositive of the jurisdictional question. Hence, 

we do not determine whether the Council’s decision was “in a 

contested case.”

Our review of the record shows that the district court lacked 

jurisdiction over Swicord’s petition for review because he 

failed to include all parties of record.

Amended in 2020, § 84-917(2)(a)(i) provides in relevant part:

All parties of record shall be made parties to the proceedings for review. A party of record for district court 

proceedings for review shall include any person who 

appeared either personally or through an attorney, who 

was a participant in the agency’s contested hearing, and 

who was treated as a party by the agency’s hearing officer. If an agency’s only role in a contested case is to act 

as a neutral factfinding body, the agency shall not be a 

8 Id. See Neb. Const. art. V, § 2.

9 Omaha Expo. & Racing v. Nebraska State Racing Comm., 307 Neb. 172, 

949 N.W.2d 183 (2020).

10 County of Lancaster v. County of Custer, supra note 6.

11 Charter West Bank v. Riddle, ante p. 263, 989 N.W.2d 428 (2023).
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party of record. In all other cases, the agency shall be a 

party of record.

[7] We have held that the requirements contained in 

§ 84-917(2)(a)(i) are prerequisites to vest the district court 

with subject matter jurisdiction under the APA and that a petitioner’s failure to make all parties of record to the proceedings 

for review means jurisdiction to hear the petition never vested 

with the district court. 12 In that way, although we have used the 

term “necessary parties,” the inclusion of the proper parties of 

record is a matter of “indispensable parties.” 13

Under 79 Neb. Admin. Code, ch. 13, § 004.02A, “[a]n 

aggrieved individual and or [law enforcement] agency may 

appeal decisions of the Director related to admission to training, certification status, and discipline.” The appeal must be 

first presented to the Director by submitting a written “request 

for review and reconsideration” and “a proposed resolution” 

for the Director’s consideration. 14 After investigating and 

considering the written request and proposed resolution, the 

Director must “provide a written decision.” 15 That decision 

of the Director may then be appealed to the Council. 16 “The 

issues presented to the Council on appeal [are] limited to those 

raised in the request for review and reconsideration . . . and 

the Director’s written decision in response.” 17 Additionally, 

“[t]he Director or his/her designee shall respond to [the appellant’s] arguments” before the Council. 18 Thereafter, the Council 

12 See, Omaha Expo. & Racing v. Nebraska State Racing Comm., supra note 

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

147 (2017).

13 See Omaha Expo. & Racing v. Nebraska State Racing Comm., supra note 

9 (citing cases).

14 79 Neb. Admin. Code, ch. 13, § 004.02C.

15 Id., § 004.02D.

16 Id., § 004.02E.

17 Id., § 004.02G.

18 Id., § 004.02H.
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“shall affirm, modify or deny” the Director’s decision, and 

“[t]he decision of the Council is final.” 19

The administrative record shows that the Director needed to 

be included as a party of record under § 84-917(2)(a)(i). At the 

hearing on Swicord’s appeal from the Director’s denial of his 

application for entrance into basic training, the Director was 

present and represented by counsel. The Director’s counsel 

made an opening statement, cross-examined Swicord’s witnesses, presented evidence, and made a closing argument. 

Since the Director appeared, participated, and was treated as 

a party at the hearing before the Council, the Director was 

required to be made a party to the district court proceedings 

for review under § 84-917(2). Accordingly, because Swicord 

failed to properly make the Director a party to the proceedings 

for review, the district court lacked subject matter jurisdiction 

to consider Swicord’s petition.

CONCLUSION

Because the district court lacked jurisdiction, we acquired 

no jurisdiction, and Swicord’s appeal must be dismissed.

Appeal dismissed.

Stacy, J., not participating.

19 Id., § 004.02J. See id., § 004.02H.