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Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

IN RE APPEAL OF Z.H.

Cite as 311 Neb. 746

In re Appeal of Z.H. From Request of Accommodations 

for February 2021 Bar Examination. 

Z.H., appellant, v. Nebraska State Bar 

Commission, appellee.

___ N.W.2d ___

Filed June 10, 2022. No. S-21-232.

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. On questions of law, an appellate court 

has an obligation to reach its own independent conclusions.

3. Rules of the Supreme Court: Attorneys at Law: Appeal and Error.

The Nebraska Supreme Court considers the appeal of an applicant from 

a final ruling of the Nebraska State Bar Commission de novo on the 

record made at the hearing before the commission.

4. Jurisdiction: Appeal and Error. 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.

5. Rules of the Supreme Court: Attorneys at Law. The Nebraska 

Supreme Court is vested with the sole power to admit persons to the 

practice of law in this state and to fix qualifications for admission to the 

Nebraska bar.

6. ____: ____. The Nebraska Supreme Court has delegated administrative responsibility for bar admissions solely to the Nebraska State 

Bar Commission.

7. Administrative Law. An administrative agency has limited power, and 

its power is to be strictly construed.

Appeal from the Nebraska State Bar Commission. Appeal 

dismissed.

Z.H., pro se.

Nebraska Supreme Court Online Library

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

06/17/2022 01:05 AM CDT
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Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

IN RE APPEAL OF Z.H.

Cite as 311 Neb. 746

Douglas J. Peterson, Attorney General, and James A. 

Campbell, Solicitor General, for appellee.

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

Papik, and Freudenberg, JJ.

Per Curiam.

INTRODUCTION

Z.H. seeks reimbursement from the Nebraska State Bar 

Commission (Bar Commission) for costs and damages associated with her application for admission to the Nebraska State 

Bar Association. For the reasons stated herein, we conclude 

that we lack jurisdiction to hear the appeal and the appeal 

is dismissed.

BACKGROUND

Z.H. completed law school in 2000. In July 2019 and 

February 2020, Z.H. took the Nebraska bar examination, but 

did not obtain passing scores. In February 2021, Z.H. took and 

passed the Nebraska bar examination.

Because of a diagnosis of rheumatoid arthritis that limits 

her mobility, Z.H. applied for and received accommodations 

of 33 percent more time to complete the bar examination and 

a separate room in which to take each of her examinations. 

For the February 2020 examination, Z.H. also received an 

accommodation to use an adjustable chair to help her manage 

the stress and pain of sitting and typing for long periods. For 

the July 2020 examination, Z.H. requested an accommodation 

to allow her to use speech recognition software to overcome 

her deteriorating mobility. According to Z.H., that request was 

denied as untimely filed. As a result of COVID-19 protocols 

put in place for the July 2020 examination, Z.H. was unable to 

take that examination or the special September 2020 examination. Z.H. deferred to the February 2021 examination, which 

was scheduled to be held remotely.

On January 7, 2021, the Bar Commission granted Z.H. 

the following testing accommodations: extra testing time of 
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311 Nebraska Reports

IN RE APPEAL OF Z.H.

Cite as 311 Neb. 746

33 percent, as well as a private single examinee room and 

a chair with adjustable height. The Bar Commission denied 

Z.H.’s request for the use of the speech recognition software 

after concluding the software would impact the security of the 

examination. The commission agreed to provide Z.H. with a 

scribe who would type Z.H.’s answers from Z.H.’s dictation. 

The accommodation required Z.H. to conduct the examination in the Bar Commission’s office in Lincoln, Nebraska. 

On February 4, Z.H. requested a review hearing before the 

Bar Commission, presumably under Neb. Ct. R. § 3-123 (rev. 

2020), which allows an applicant to request a hearing regarding 

an adverse decision of the Bar Commission.

A hearing on Z.H.’s appeal was held on February 12, 2021, 

at which time Z.H. represented herself. On February 13, the 

Bar Commission entered an order which provided Z.H. a 

choice of two options to assist her in taking the examination. 

“Option I” allowed Z.H. the following:

An additional 33% extra time to complete each of the 3 

exam parts. [Z.H.] will be provided an adjustable chair. 

The exam will be administered in the [Bar] Commission’s 

office located at 3806 Normal Blvd in Lincoln, Nebraska. 

This will be a private examinee room. A scribe, of the 

[Bar] Commission’s choosing, will transcribe as [Z.H.] 

dictates for the MPT and MEE. The transcription will be 

projected to a big screen where [Z.H.] may edit as the 

content is typed. The second day of the exam will be the 

MBE which may be taken at a location [Z.H.] designates 

which may include the [Bar] Commission Office. The 

MBE exam will be administered -on [Z.H.’s] computer 

equipment as a secure . . . exam.

[Z.H.] shall provide the [Bar] Commission with a 

negative COVID-19 test - obtained as close as possible 

to the exam - and she shall isolate herself as much as 

possible up to arriving at the [Bar] Commission office 

to minimize the likelihood of contracting or spreading 

COVID-19. A mask shall be worn by [Z.H.] throughout 
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IN RE APPEAL OF Z.H.

Cite as 311 Neb. 746

the time in the [Bar] Commission office when others are 

present. Failure to wear a mask will subject [Z.H.] to the 

cancellation of the exam.

“Option II” allowed Z.H. the following:

An additional 33% extra time to complete each of the 

3 exam parts and an adjustable chair. The exam will be 

administered in the [Bar] Commission’s office located 

at 3806 Normal Blvd in Lincoln, Nebraska. In the presence of a proctor and/or audio and video equipment that 

records what is said and what is typed. This will be a private examinee room. [Speech recognition] software may 

be used to do the transcription for the exam by dictating 

into a Word document and then transferring the content 

into the [secure exam software] question fields. The word 

document may not be saved. [Z.H.] must supply her own 

computer which has been wiped of all programs and 

documents with the exception of the [speech recognition 

software, word processing software, and secure exam 

software] programs. [Z.H.] must execute an affidavit prepared by the [Bar] Commission attesting to the deletion 

of all programs with the exception of [speech recognition 

software, word processing software, and secure exam 

software], and that the computer has been purged of all 

bar preparation outlines, practice essays and other related 

documents. [Z.H.’s] computer will be inspected upon 

arrival on exam day. [Z.H.] will not be allowed to take the 

exam if the computer is not cleared of all documents and 

programs other than the 3 designated programs. If [Z.H.] 

encounters any problems removing any applications or 

documents, she must inform the [Bar] Commission staff 

in advance of the Bar Exam. [Z.H.] will not access the 

internet at any time during the exam.

The second day of the exam will be the MBE which 

may be taken at a location [Z.H.] designates -and may 

include the [Bar] Commission office. The MBE exam 
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311 Nebraska Reports

IN RE APPEAL OF Z.H.

Cite as 311 Neb. 746

will be administered through [Z.H.’s] computer equipment as a secure . . . exam.

[Z.H.] shall provide the [Bar] Commission with a 

negative COVID-19 test obtained as close to the exam as 

possible and she shall isolate herself as much as possible 

up to arriving at the [Bar] Commission office to minimize 

the likelihood of contracting and spreading COVID-19. A 

mask must be worn by [Z.H.] whenever there is someone 

else in the room with her. Failure to wear a mask will 

subject the exam to cancellation.

Z.H. chose Option II and sat for the February 2021 examination. According to Z.H., prior to the examination, her computer 

operated normally with the software necessary to comply with 

the Bar Commission’s order. However, during the examination, 

Z.H.’s laptop encountered difficulties. Ultimately, Z.H., with 

the assistance of a proctor, was able to complete the examination in 111

⁄2 hours. Z.H. averred that due to the computer difficulties, she experienced extreme mental stress, anxiety, and 

physical pain.

On March 15, 2021, Z.H. filed a notice of appeal with 

the Clerk of the Nebraska Supreme Court under Neb. Ct. R. 

§ 3-126(A) and (B) (rev. 2020). In her notice of appeal, Z.H. 

requested that she have an opportunity to prove damages; that 

if she failed the examination, the Bar Commission be enjoined 

from denying the use of speech recognition software for the 

next examination; and that she be allowed to use speech recognition software without the interruption of other software used 

by the Bar Commission to monitor her test taking.

On March 17, 2021, Z.H. filed a document labeled 

“Amendment pursuant to Neb. Ct. R. § 6-1115(a).” Attached 

to the filing were three affidavits in which Z.H. reiterated the 

information contained within her initial notice of appeal. On 

that same date, Z.H. submitted a brief in support of her appeal. 

In that brief, Z.H. sought an unspecified award of damages and 

costs for the February 2021 bar examination, assumingly to be 

paid by the Bar Commission.
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311 Nebraska Reports

IN RE APPEAL OF Z.H.

Cite as 311 Neb. 746

On March 31, 2021, a notice was sent to Z.H. by the Bar 

Commission, informing her that she had successfully passed 

the February 2021 bar examination.

On April 1, 2021, Z.H. filed a second amended brief requesting damages. That same day, Z.H. filed an affidavit in support 

of her request for damages. The affidavit set forth expenses for 

attorney fees and mailing costs totaling $4,825.84; travel costs, 

lodging costs, and software costs totaling $468.76; and unspecified general damages for violations of 29 U.S.C. § 794(a) 

and (b) (2018) and 42 U.S.C. §§ 12133 and 12188 (2018). 

Z.H.’s attorney fees were based upon her expending 631⁄2 hours 

researching and drafting appeal documents at the rate of $75 

per hour.

On May 3, 2021, Z.H. filed a third amended brief. In 

the third amended brief, Z.H. requested damages to include 

$5,906.25 in attorney fees and mailing costs and $450,000 in 

damages for violations of the Americans with Disabilities Act 

of 1990 (ADA), 42 U.S.C. § 12101 et seq. (2018).

After reviewing the briefs filed by Z.H., this court ordered 

supplemental briefing on the issue of whether this court has 

jurisdiction to rule upon Z.H.’s request for damages. Both Z.H. 

and the Bar Commission complied with our order for supplemental briefing.

ASSIGNMENTS OF ERROR

On appeal, Z.H. assigns that the Bar Commission erred in 

(1) discriminating against her by reason of her disability, in 

violation of the ADA and its regulations; (2) failing to provide 

Z.H. with “‘meaningful access’” to the February 2021 bar 

examination, which “‘best ensures’” measurement of Z.H.’s 

knowledge of the law rather than her inability to type with 

speed and accuracy under timed testing conditions, in conflict with the ADA and its regulations; (3) requiring Z.H. 

to test in person by reason of her disability, in conflict with 

the Supreme Court’s remote-only testing order and in conflict with the ADA and its regulations; and (4) disregarding 
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Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

IN RE APPEAL OF Z.H.

Cite as 311 Neb. 746

verification of Z.H.’s worsening disability provided by Z.H.’s 

qualified medical practitioners of almost 8 years and, instead, 

requiring “‘further documentation’” in the form of additional 

physical evaluation reports and laboratory testing reports in 

conflict with the ADA regulations.

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

On questions of law, an appellate court has an obligation to 

reach its own independent conclusions. 2

[3] The Nebraska Supreme Court considers the appeal of an 

applicant from a final ruling of the Bar Commission de novo 

on the record made at the hearing before the commission. 3

ANALYSIS

Z.H. claims that she was discriminated against, in that she 

was required to take the bar examination in Lincoln while other 

applicants took the examination remotely. Z.H. also claims 

that she was subject to additional scrutiny and unfair treatment while seeking accommodations and while taking the bar 

examination. As a result, Z.H. claims this treatment violated 

her rights pursuant to the ADA; the Rehabilitation Act of 1973, 

29 U.S.C. § 701 et seq. (2018 and Supp. II 2020); and the Due 

Process and Equal Protection Clauses of the U.S. Constitution. 

Z.H. claims she is entitled to reimbursement for hotel costs and 

other expenses incurred while taking the bar examination in 

Lincoln and for attorney fees. Z.H. seeks punitive damages and 

a declaration that her rights were violated.

Under Neb. Ct. R. § 3-115(A) (rev. 2020), it is the policy 

of the Bar Commission to administer the bar examination 

1 In re Estate of Severson, 310 Neb. 982, 970 N.W.2d 94 (2022).

2 Nebraska Dept. of Health & Human Servs. v. Struss, 261 Neb. 435, 623 

N.W.2d 308 (2001).

3 In re Application of Collins, 288 Neb. 519, 849 N.W.2d 131 (2014).
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IN RE APPEAL OF Z.H.

Cite as 311 Neb. 746

in a manner that does not discriminate on the basis of disability. Under § 3-115(K), the Bar Commission will grant 

a request and provide special testing accommodations to an 

applicant if it finds all of the following: “(1) the applicant 

has a disability and is otherwise eligible to take the bar 

examination; (2) the special testing accommodations are necessary to ameliorate the impact of the applicant’s disability; 

and (3) the special testing accommodations are reasonable 

accommodations.”

Section 3-115(B)(3) defines a “reasonable accommodation” 

as follows:

[A]n adjustment or modification of the standard testing 

conditions that ameliorates the impact of the applicant’s 

disability without doing any of the following:

(a) Fundamentally altering the nature of the examination or the [Bar] Commission’s ability to determine 

through the bar examination whether the applicant possesses the essential skills, level of achievement, and aptitudes that are among the essential eligibility requirements 

set forth in § 3-112, that the Nebraska Supreme Court and 

the [Bar] Commission have determined are required for 

admission to the practice of law in Nebraska;

(b) Imposing an undue burden on the [Bar] Commission;

(c) Compromising the security of the examination; or

(d) Compromising the integrity, the reliability, or the 

validity of the examination.

Section 3-115(L) states: “The [Bar] Commission will have 

sole discretion to determine what special testing accommodations are reasonable accommodations. The [Bar] Commission 

may provide accommodations different than those requested 

by the applicant if the [Bar] Commission determines that 

the accommodations provided will effectively ameliorate the 

impact of the applicant’s disability.”

Under § 3-126(A), an applicant is entitled to appeal to 

the Supreme Court from an adverse decision of the Bar 

Commission in accordance with § 3-123. Under § 3-126(C), 
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Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

IN RE APPEAL OF Z.H.

Cite as 311 Neb. 746

the Supreme Court may appoint a master to hear arguments 

of the applicant and the Bar Commission, make findings, and 

report them to the court with a recommended disposition. 

Section 3-126(D) states that if no hearing before a master is 

held, the court shall consider the matter de novo on the record 

made at the hearing before the Bar Commission.

We have defined an “adverse decision” as “a denial by 

the Bar Commission of a request for special testing accommodation.” 4 In a previous case, we assumed, without deciding, that a request for accommodations can be effectively 

denied if an applicant’s request is substantially granted by the 

Bar Commission but the Bar Commission places additional 

conditions on the accommodations that the applicant claims 

are unacceptable. 5

[4] 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. 6 Only one other case has come 

before us on the issue of the denial of accommodations and the 

award of damages in conjunction with the bar examination. 7

In In re Appeal of Stoller,

 8 Asher L. Stoller, an applicant 

for admission to the Nebraska State Bar Association, appealed 

the denial of reimbursement from the Bar Commission for 

costs and damages he allegedly incurred as a result of his 

application for admission. Stoller had sought double time to 

complete his examination due to his dyslexia. In considering 

his request for accommodation, the Bar Commission required 

Stoller to undergo an evaluation by an expert selected by the 

Bar Commission. The examination was to be completed at 

Stoller’s expense. Stoller then sought reimbursement for the 

4 Neb. Ct. R. § 3-101(B)(2) (rev. 2020).

5 In re Appeal of Stoller, 261 Neb. 150, 622 N.W.2d 878 (2001).

6 In re Estate of Larson, 308 Neb. 240, 953 N.W.2d 535 (2021).

7 See In re Appeal of Stoller, supra note 5.

8 Id.
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IN RE APPEAL OF Z.H.

Cite as 311 Neb. 746

cost of the examination and attorney fees. Stoller’s requests 

were denied, and Stoller appealed.

On appeal, we appointed a special master to preside over 

a hearing into Stoller’s claims. Though we ultimately dismissed the appeal as untimely filed, we held that “an applicant 

to the bar who is denied an accommodation for a disability, 

or who claims that an accommodation offered by the Bar 

Commission is unsatisfactory, may appeal that determination 

. . . despite not failing or being denied permission to take the 

bar examination.” 9

In the instant matter, Z.H.’s claims are similar to those 

raised by Stoller. However, in In re Appeal of Stoller, we did 

not reach the issue of whether we could award damages in an 

appeal from the Bar Commission.

The Bar Commission contends that since Z.H.’s request 

for accommodations was granted, it was not an adverse decision from which she could appeal. The Bar Commission also 

contends that there is nothing in this court’s rules authorizing 

appeals from denials of requests for special testing accommodations which permits an applicant to recover damages or 

to raise a statutory or constitutional claim for damages. The 

Bar Commission further contends that there is nothing in this 

court’s rules governing requests for special testing accommodations which permits the Bar Commission to award damages 

to the applicant.

For purposes of this appeal, we again assume without deciding that a request for accommodations can be effectively 

denied within the meaning of § 3-126(A) if an applicant’s 

request is substantially granted by the Bar Commission but the 

Bar Commission places additional conditions on the accommodations that the applicant claims are unacceptable.

[5,6] In turning to the issue of damages, we note that the 

Nebraska Supreme Court is vested with the sole power to 

9 Id. at 156, 622 N.W.2d at 884.
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IN RE APPEAL OF Z.H.

Cite as 311 Neb. 746

admit persons to the practice of law in this state and to fix 

qualifications for admission to the Nebraska bar. 10 In turn, we 

have delegated administrative responsibility for bar admissions 

solely to the Bar Commission. 11 We have also established 

specific rules and processes which set forth how the Bar 

Commission is to carry out its duties and responsibilities. 12

[7] Our rules do not establish a process for an applicant to 

seek costs which the applicant may have incurred in taking the 

bar examination. Further, our rules do not authorize the Bar 

Commission to award costs incurred by applicants when taking 

the bar examination. We have held that “[a]n administrative 

agency . . . has limited power, and its power is to be strictly 

construed.” 13 As such, the Bar Commission is without authority 

to award damages or costs to Z.H. and failure to do so cannot 

be error.

Z.H. counters that we have jurisdiction to award her damages and the other relief she seeks under our original jurisdiction as set forth in article V, § 2, of the Nebraska Constitution. 

However, this case is not an original action, but, rather, 

an appeal challenging the Bar Commission’s order granting Z.H.’s request for special testing accommodations. The 

prior proceedings before the Bar Commission are set out in 

the transcript, including the order on appeal setting forth the 

accommodations. The case is docketed in this court as an 

appeal. There is no application for a writ to issue from the 

Supreme Court, which would be the practice if this were an 

original case, and nowhere except in the argument is there 

any pretense of invoking the original jurisdictional powers 

10 In re Application of McDonnell, 299 Neb. 289, 908 N.W.2d 32 (2018). See 

Neb. Const. art. II, § 1, and art. V, §§ 1 and 25.

11 See Neb. Ct. R. § 3-102 (rev. 2020).

12 Neb. Ct. R. § 3-101 et seq (rev. 2020).

13 Governor’s Policy Research Office v. KN Energy, 264 Neb. 924, 932, 652 

N.W.2d 865, 872 (2002).
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IN RE APPEAL OF Z.H.

Cite as 311 Neb. 746

of this court. There is no question but that this action invokes 

the appellate jurisdiction of this court, as distinguished from 

its original jurisdiction. 14 As such, we too lack jurisdiction to 

award Z.H. the relief she seeks.

Our lack of jurisdiction to award Z.H. costs, damages, and 

other relief does not mean that Z.H. is without legal recourse to 

seek redress from the harms she has alleged. Our ruling merely 

means that she must seek her relief in another venue.

CONCLUSION

The remedies Z.H. seeks from the Bar Commission and 

the Supreme Court are not authorized by statute or court 

rule. Consequently, this court lacks jurisdiction to address her 

claims. We therefore dismiss Z.H.’s appeal.

Appeal dismissed.

14 See State v. Amsberry, 104 Neb. 273, 178 N.W. 822 (1920).