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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

KOWALEWSKI v. MADISON CTY. BD. OF COMRS.

Cite as 310 Neb. 812

Ronald and Linda Kowalewski and Robert and 

Sally Schroeter, appellants, v. Madison 

County Board of Commissioners and 

Elkhorn Valley Sportsman 

Club, appellees.

___ N.W.2d ___

Filed January 28, 2022. No. S-21-229.

1. Jurisdiction: Appeal and Error. A jurisdictional question that does not 

involve a factual dispute is determined by an appellate court as a matter 

of law.

2. Judgments: Appeal and Error. When reviewing questions of law, an 

appellate court resolves the questions independently of the lower court’s 

conclusions.

3. Statutes: Judicial Construction: Legislature: Intent: Presumptions.

Where a statute has been judicially construed and that construction has 

not evoked an amendment, it will be presumed that the Legislature has 

acquiesced in the court’s determination of the Legislature’s intent.

4. Time: Appeal and Error. In order to perfect an appeal, a notice of 

appeal and the docket fee (or application to proceed in forma pauperis 

in place of the docket fee) must be filed within the applicable period.

Appeal from the District Court for Madison County: James 

G. Kube, Judge. Appeal dismissed.

George H. Moyer, of Moyer, Moyer & Lafleur, for appellants.

Joseph M. Smith, Madison County Attorney, for appellee 

Madison County Board of Commissioners.

Michelle M. Schlecht, of Copple, Rockey, Schlecht & 

Mason, P.C., L.L.O., for appellee Elkhorn Valley Sportsman 

Club.

Nebraska Supreme Court Online Library

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

03/25/2022 09:08 AM CDT
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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

KOWALEWSKI v. MADISON CTY. BD. OF COMRS.

Cite as 310 Neb. 812

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

Papik, and Freudenberg, JJ.

Heavican, C.J.

INTRODUCTION

The Madison County Board of Commissioners (Board) 

approved the Elkhorn Valley Sportsman Club’s application for 

a conditional use permit. Ronald and Linda Kowalewski and 

Robert and Sally Schroeter (collectively the Kowalewskis) 

appealed to the Madison County District Court. That court dismissed the appeal for failure to pay the docket fee. We agree 

and, accordingly, dismiss this appeal.

BACKGROUND

The Elkhorn Valley Sportsman Club applied for a conditional use permit to operate a trap and skeet shooting range. 

A public hearing was held, after which the Board granted the 

application on September 15, 2020.

The Kowalewskis appealed that decision to the district 

court on October 14, 2020. With that notice of appeal, the 

Kowalewskis also deposited with the county clerk for Madison 

County a $100 check as a cash bond for costs, as well as a 

check for $82 payable to the Madison County District Court 

intended to cover the filing fee. In fact, the filing fee to perfect an appeal from the Board to the district court was, at that 

time, $83.

Day 30, for purposes of filing an appeal, was October 15, 

2020. According to the facts as found by the district court, on 

October 16 (or day 31), an additional $1 was paid to the clerk 

of the district court. The record does not reveal any request or 

attempt by the Kowalewskis asking the county clerk to apply 

the money from the bond to the filing fee.

On December 2, 2020, the Kowalewskis filed a petition 

detailing their allegations that the Board erred in granting 

the conditional use permit. The next day, December 3, the 

Board filed a motion to dismiss on the basis that the docket 

fee had not been timely paid. On December 4, the Elkhorn 
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KOWALEWSKI v. MADISON CTY. BD. OF COMRS.

Cite as 310 Neb. 812

Valley Sportsman Club filed its own motion to dismiss on the 

same grounds.

The district court held a hearing on the motions to dismiss. 

During that hearing, the court was asked to take, and took, 

judicial notice of its own file, “particularly those notations 

from the clerk concerning the filing fee and the notice filed by 

counsel.” Following the hearing, the district court dismissed 

the appeal for failure to pay the required docket fee. This 

appeal followed.

ASSIGNMENTS OF ERROR

The Kowalewskis assign that the district court erred in (1) 

sustaining the motions to dismiss, (2) dismissing the appeal, 

and (3) considering Elkhorn Valley Sportsman Club’s motion 

to dismiss.

STANDARD OF REVIEW

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

dispute is determined by an appellate court as a matter of law. 1

When reviewing questions of law, an appellate court resolves 

the questions independently of the lower court’s conclusions. 2

ANALYSIS

The primary issue presented by this appeal is whether the 

district court erred in dismissing the Kowalewskis’ appeal from 

the decision of the Board for lack of appellate jurisdiction.

The Kowalewskis’ appeal is governed by Neb. Rev. Stat. 

§§ 23-114.01(5) (Reissue 2012), 25-1937 (Reissue 2016), and 

25-2729 (Cum. Supp. 2020). Section 23-114.01(5) provides for 

a right of appeal from the decision of a county board of commissioners granting a conditional use permit, but that section 

provides no procedure to pursue an appeal.

State law covers that scenario in § 25-1937, which states 

that when “the Legislature enacts a law providing for an 

1 In re Estate of Beltran, ante p. 174, 964 N.W.2d 714 (2021).

2 Id.
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KOWALEWSKI v. MADISON CTY. BD. OF COMRS.

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appeal without providing the procedure therefor, the procedure 

for appeal to the district court shall be the same as for appeals 

from the county court to the district court in civil actions.” 

And § 25-2729 sets forth the procedure for perfecting an 

appeal from the county court to the district court sitting as an 

intermediary court of appeals.

Section 25-2729 specifically provides:

(1) In order to perfect an appeal from the county court, 

the appealing party shall within thirty days after the entry 

of the judgment or final order complained of:

(a) File with the clerk of the county court a notice of 

appeal; and

(b) Deposit with the clerk of the county court a docket 

fee of the district court for cases originally commenced in 

district court.

(2) Satisfaction of the requirements of subsection (1) of 

this section shall perfect the appeal and give the district 

court jurisdiction of the matter appealed.

We have repeatedly held that the failure to pay the docket 

fee is jurisdictional, 3 and § 25-2729 states as much. The 

Kowalewskis do not take issue with this assertion. Instead, they 

argue that in addition to the $82 docket fee, the county clerk 

also had a $100 cash bond on deposit and the clerk should have 

applied $1 from that bond to the filing fee.

In support of this contention, the Kowalewskis direct us to 

Stigge v. Graves 4 and In re Application of Olmer (Olmer). 5

In Stigge, the appellant was appealing under the prior versions of §§ 25-1937 and 25-2729 from an order of a county 

superintendent. In Olmer, the appeal was from the denial by a 

county board of a conditional use permit.

3 Cf., State v. Melton, 308 Neb. 159, 953 N.W.2d 246 (2021); State v. Jones, 

307 Neb. 809, 950 N.W.2d 625 (2020); Great Northern Ins. Co. v. Transit 

Auth. of Omaha, 305 Neb. 609, 941 N.W.2d 497 (2020).

4 Stigge v. Graves, 213 Neb. 847, 332 N.W.2d 49 (1983).

5 In re Application of Olmer, 275 Neb. 852, 752 N.W.2d 124 (2008).
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In Olmer, we cited Stigge and noted that because § 25-2729 

was intended to apply to appeals from a county court to a district court, it “cannot be applied literally” to an appeal from 

the county board of commissioners. 6 The Kowalewskis argue 

that we should similarly not apply the docket fee requirement 

“literally” because the $100 bond meant that the full amount of 

the filing fee was on deposit with the clerk.

But the two scenarios are different. When Olmer and Stigge

are read in context, we were simply noting the reality that 

under § 25-1937, appellants were to treat their appeals as if 

they were from the county court to the district court, when in 

reality it was an appeal from a county entity (in Olmer, the 

county board; in Stigge, the county superintendent) to the district court. We held as much because that interpretation made 

the most sense given the statutory scheme as a whole. What 

we were not saying in Olmer and Stigge was that payment of 

a docket fee, which we have held is jurisdictional, could be 

met through something other than strict compliance with that 

requirement.

[3] At the time we decided Stigge, and later Olmer, we interpreted § 25-1937 to apply in those respective situations, and 

that interpretation has not evoked an amendment. As such, we 

will presume that the Legislature has acquiesced in the court’s 

determination of the Legislature’s intent. 7

The Board directs us to State v. Moore,

 8 which is factually 

similar, though unpublished. That case presented the Nebraska 

Court of Appeals with the issue of whether an appeal had 

been perfected despite nonpayment of the docket fee. There, 

the defendant failed to file either a docket fee or a poverty 

affidavit with his notice of appeal to the district court. The 

defendant had previously filed a $50 bond following his arrest, 

6 Id. at 860, 752 N.W.2d at 130.

7 See Baker-Heser v. State, 309 Neb. 979, 963 N.W.2d 59 (2021).

8 State v. Moore, No. A-92-906, 1993 WL 385782 (Neb. App. Sept. 28, 

1993) (not designated for permanent publication).
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Cite as 310 Neb. 812

and that bond was still deposited with the court at the time of 

his appeal. He sought to have that bond retroactively applied to 

cover his filing fees. The Court of Appeals rejected this argument and dismissed the appeal for lack of jurisdiction.

[4] Nebraska law is clear that in order to perfect an appeal, 

a notice of appeal and the docket fee (or application to proceed in forma pauperis in place of the docket fee) must be 

filed within the applicable period. 9 We have found no case law 

suggesting that a prospective appellant can pay less than the 

entire docket fee or that the county clerk has any responsibility in this instance to use money from a bond to make up the 

difference for an underpaid docket fee. There is no merit to the 

Kowalewskis’ appeal.

CONCLUSION

The Kowalewskis’ appeal is dismissed for lack of jurisdiction.

Appeal dismissed.

9 See § 25-2729(1)(b).

Cassel, J., concurring.

Like my concurring colleague, I agree with the court’s 

opinion. I write separately to respectfully contend that my 

colleague’s suggestion regarding an alternative approach to 

Neb. Rev. Stat. § 25-1937 (Reissue 2016) is neither literal nor 

practical.

Historically, both county courts and quasi-judicial tribunals 

were recognized as inferior to the district court. 1 Most appeals 

from county court still run to the district court. 2 While in recent 

years a small number of statutory appeal procedures have 

been provided from an executive branch official to a county 

1 See, Neb. Rev. Stat. § 25-1901 (Reissue 1943); McEwen v. Nebraska State 

College Sys., 303 Neb. 552, 931 N.W.2d 120 (2019); From v. Sutton, 156 

Neb. 411, 56 N.W.2d 441 (1953).

2 See, e.g., Neb. Rev. Stat. §§ 25-2728 (Cum. Supp. 2020) and 25-2733 

(Reissue 2016).
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court or county judge, 3 the principal statute still recognizes the 

district court as the court empowered to entertain petitions in 

error where no right of appeal is provided. 4 Certainly, when 

§ 25-1937 was first adopted in 1963, no statute provided for 

county court involvement with any administrative or quasijudicial appeal or petition in error. I find nothing in the text 

or legislative history of § 25-1937 or any of its subsequent 

amendments suggesting that it contemplates actual involvement by a county court. 5

Section 25-1937 provides no literal assignment of any power 

or duty to the county court. Instead, it states that the “procedure 

for appeal to the district court shall be the same as for appeals 

from the county court to the district court in civil actions.” 6 It 

does not say that appeal documents shall be filed in the county 

court. The context of the phrase “the same as for” denotes an 

appellate procedure identical to appeals from the county court 

to the district court in civil actions—not an assignment of a 

function to the county court. 7

Moreover, practical difficulties abound. The county court 

would have no records pertaining to the subject of the quasijudicial proceeding. It would have no case established in its 

case management system. It would have no funds from which 

to pay for the costs of preparing and transmitting a record. 

It would have no means of certifying to the accuracy of any 

records of the tribunal from which an appeal is to be taken. 

3 See, e.g., Neb. Rev. Stat. §§ 69-2406 and 71-617.07 (Reissue 2016).

4 See § 25-1901 (Reissue 2016).

5 See, 1963 Neb. Laws, ch. 138, § 1, p. 515; 1988 Neb. Laws, L.B. 352, 

§ 26; 1991 Neb. Laws, L.B. 732, § 66.

6 § 25-1937 (emphasis supplied).

7 See “Same,” Oxford English Dictionary Online, http://www.oed.com/

view/Entry/170362 (last visited Jan. 24, 2022) (“[w]ith forward reference: 

[i]dentical with what is indicated in the following context”). See, also, 

Webster’s Third New International Dictionary of the English Language, 

Unabridged 2007 (1993) (“same” defined as “in the same manner”); 

Webster’s New International Dictionary, Second Edition, Unabridged 2209 

(1934) (“same” defined as “[e]qually; just; likewise”).
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It would have no statutory recognition of the county court 

as superior to the tribunal. It would have literally no judicial 

function whatsoever regarding such an appeal. The scheme 

contemplated by my colleague would have the county court 

acting in a purely ministerial capacity, but without any statute 

imposing upon it any power or duty to do so.

I recognize that on several occasions, this court has at least 

hinted that § 25-1937 deserves legislative attention. 8 Some 13 

years have passed since this court’s initial decision drawing 

application of the county court appeal statutes 9 to § 25-1937 

by analogy. 10 Where a statute has been judicially construed 

and that construction has not evoked an amendment, it will 

be presumed that the Legislature has acquiesced in the court’s 

determination of the Legislature’s intent. 11 This principle seems 

particularly apt where this court has repeatedly addressed the 

statute’s difficulties.

The right of appeal in Nebraska is purely statutory. 12 I do 

not believe that this court can, by some change of statutory 

interpretation, remedy the ill fit of § 25-1937 to modern procedure. However frustrating it may seem, only the Legislature is 

empowered to address this problem.

8 See, Preserve the Sandhills v. Cherry County, ante p. 184, 964 N.W.2d 

721 (2021); Champion v. Hall County, 309 Neb. 55, 958 N.W.2d 396 

(2021); Egan v. County of Lancaster, 308 Neb. 48, 952 N.W.2d 664 

(2020); Cargill Meat Solutions v. Colfax Cty. Bd. of Equal., 281 Neb. 93, 

798 N.W.2d 823 (2011); In re Application of Olmer, 275 Neb. 852, 752 

N.W.2d 124 (2008).

9 See Neb. Rev. Stat. §§ 25-2728 to 25-2738 (Reissue 2016 & Cum. Supp. 

2020).

10 In re Application of Olmer, supra note 8.

11 Baker-Heser v. State, 309 Neb. 979, 963 N.W.2d 59 (2021).

12 Porter v. Porter, 309 Neb. 167, 959 N.W.2d 235 (2021).

Stacy, J., concurring.

I agree we lack jurisdiction over this appeal, because the 

docket fee deposited by the appellants was a day late and a 
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KOWALEWSKI v. MADISON CTY. BD. OF COMRS.

Cite as 310 Neb. 812

dollar short. I write separately, however, to suggest that in 

an appropriate case, we should revisit the appeal procedure 

announced in In re Application of Olmer (Olmer).

 1

In 2004, when the Legislature amended what is now Neb. 

Rev. Stat. § 23-114.01 (Reissue 2012) to authorize appeals to 

the district court from decisions granting or denying conditional use permits, it failed to prescribe a procedure for perfecting such appeals. Olmer attempted to resolve that problem by 

looking to Neb. Rev. Stat. § 25-1937 (Reissue 2016), which 

provides that when the Legislature confers a right to appeal 

to the district court but fails to provide a procedure for doing 

so, the procedure “shall be the same as for appeals from the 

county court to the district court in civil actions.” Olmer correctly noted, “The statute governing the procedure for appeals 

from county court to district court is Neb. Rev. Stat. § 25-2729 

(Cum. Supp. 2006).” 2 Then and now, § 25-2729(1) set out 

two requirements for perfecting an appeal: within 30 days 

after entry of the judgment or final order complained of, the 

appellant must (1) file a notice of appeal “with the clerk of the 

county court” and (2) “[d]eposit with the clerk of the county 

court a docket fee of the district court for cases originally commenced in district court.” 3

Olmer reasoned the procedure under § 25-2729 “cannot 

be applied literally” 4 to appeals from decisions granting or 

denying conditional use permits, because such matters do 

not originate in the county court. So Olmer applied the procedure in § 25-2729 “by analogy” 5 and held that in appeals 

from decisions of a county planning commission or county 

board of commissioners or supervisors, § 25-2729, “in essence, 

1 In re Application of Olmer, 275 Neb. 852, 752 N.W.2d 124 (2008).

2 Id. at 860, 752 N.W.2d at 130.

3 See Neb. Rev. Stat. § 25-2729(1)(a) and (b) (Cum. Supp. 2020).

4 In re Application of Olmer, supra note 1, 275 Neb. at 860, 752 N.W.2d at 

130.

5 Id.
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requires that the appealing party file a notice of appeal with the 

lower tribunal or decisionmaker,” 6 instead of filing it with the 

clerk of the county court. The appellant in Olmer was found 

to have satisfied that jurisdictional requirement by filing his 

notice of appeal with the county commissioners and having it 

file stamped by the county clerk. Olmer did not elaborate on 

how to satisfy the jurisdictional requirement of depositing the 

docket fee.

In the instant appeal, the majority opinion appears to assume 

the procedure described in Olmer requires an appellant to 

deposit the docket fee with the county clerk rather than with 

the clerk of the county court. That is what occurred here, and 

while it may be a reasonable application of the Olmer analogy, 

I question whether that analogy was necessary or appropriate 

in the first instance. I respectfully suggest that Olmer may have 

concluded too quickly that the same procedure for perfecting appeals from the county court to the district court under 

§ 25-2729(1) cannot be applied to appeals from decisions of a 

county entity granting or denying a conditional use permit.

Olmer did not discuss the significant differences between 

the statutory duties of the county clerk and the clerk of the 

county court. The duties of a county clerk are set out in Neb. 

Rev. Stat. §§ 23-1301 to 23-1302 (Reissue 2012) and are primarily focused on keeping the records of county board proceedings. These duties do not include or contemplate accepting court fees or court filings. 7 And while there is a statutory 

procedure governing how a county clerk transfers funds to the 

county treasury, 8 there is no statutory procedure authorizing or 

requiring a county clerk to transmit court filings or docket 

fees to the clerk of the district court. Here, the majority opinion correctly notes that no case requires a county clerk to use 

deposited court costs to make up a shortfall in the required 

6 Id.

7 See §§ 23-1301 and 23-1302.

8 See Neb. Rev. Stat. § 23-1303(6) (Reissue 2012).
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docket fee, but the reality is there is no case or statute requiring the county clerk to do anything with a notice of appeal, a 

court docket fee, or court costs. Under the judicial procedure 

we sanctioned in Olmer, appellants must rely on the good will 

of the county clerk to accept and file stamp their notice of 

appeal, accept their tendered docket fee, and timely transmit 

the same to the clerk of the district court.

In contrast, it is the statutory duty of the “clerk of each of 

the courts” to file and carefully preserve all papers delivered to 

him or her for filing 9 and to “perform the duties conferred and 

imposed upon him [or her] by other provisions of this code, 

by other statutes and by the common law.” 10 In light of a court 

clerk’s statutory duty to accept filings, I question whether 

Olmer correctly concluded that the jurisdictional requirements of § 25-2729(1) (filing notice of appeal and depositing 

required docket fee with clerk of county court within 30 days 

of decision being appealed) could not be applied literally to 

perfect an appeal from a decision granting or denying a conditional use permit. I see no reason why a clerk of the county 

court would, or could, refuse to accept a notice of appeal or 

a docket fee tendered by one who is following the statutory 

procedure expressly authorized by § 25-2729 to perfect an 

appeal to the district court, which is expressly authorized by 

§ 23-114.01. Moreover, once a notice of appeal is filed and 

the required docket fee is deposited, it is the statutory duty of 

the clerk of the county court to timely transmit the same to the 

clerk of the district court, after which the district court clerk 

then has a statutory duty to docket the appeal in that court. 11

In short, the clerk of the county court has a clear statutory 

duty and an established statutory procedure to follow when 

accepting filings and deposits necessary to perfect an appeal to 

the district court, as well as a commensurate statutory duty to 

9 See Neb. Rev. Stat. § 25-2205 (Cum. Supp. 2018).

10 See Neb. Rev. Stat. § 25-2214 (Reissue 2016).

11 See Neb. Rev. Stat. § 25-2731 (Reissue 2016).
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timely transmit the same to the clerk of the district court. The 

county clerk does not.

I agree with the majority’s observation that the Legislature 

appears to have acquiesced in the modified application of 

§ 25-2729 in Olmer. But legislative acquiescence does not make 

the modified appeal procedure in Olmer either workable or 

principled. And in retrospect, it is possible the judicial solution 

we devised in Olmer created more problems than it solved.

In my opinion, this court should, in an appropriate case, 

revisit Olmer to more thoroughly examine whether the statutory procedure for perfecting appeals under § 25-2729(1) can 

be applied literally to appeals from decisions of county entities 

granting or denying conditional use permits. To be sure, practical challenges exist whether the statutory procedure set out in 

§ 25-2729(1) is applied literally or whether the analogous judicial procedure recognized in Olmer is followed. But until the 

Legislature chooses to enact an appellate procedure that specifically accommodates the appeals allowed by § 23-114.01, it 

seems to me the more principled approach would be to follow 

the statutory procedure enacted by the Legislature, even if that 

procedure is imperfect. After all, the Nebraska Constitution 

allocates regulation of appellate jurisdiction to the Legislature, 

not the courts. 12

12 Heckman v. Marchio, 296 Neb. 458, 894 N.W.2d 296 (2017).