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Nebraska Supreme Court Advance S

297 Nebraska Report

J.S. v. GRAND ISLAND PUBLIC SCHOOLS

Cite as 297 Neb. 347

J.S., appellant, v. Grand Is

Public Schools, appe

___ N.W.2d ___

Filed July 28, 2017. No. S-16-875.

1. 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.

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

an independent conclusion irrespective of the decision made by the 

court below.

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

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

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

by an appellate court for errors appearing on the record.

4. ____: ____: ____. When reviewing an order of a district court under 

the Administrative Procedure Act for errors appearing on the record, the 

inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable.

5. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for review, 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 issue is raised by the parties.

6. Jurisdiction: Service of Process: Parties. The voluntary appearance 

of a party is equivalent to service of process for purposes of personal jurisdiction.

7. Jurisdiction: Words and Phrases. Personal jurisdiction is the power of 

a tribunal to subject and bind a particular entity to its decisions.

8. ____: ____. Subject matter jurisdiction is the power of a tribunal to 

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

proceedings in question belong and to deal with the general subject matter involved.

Nebraska Supreme Court Online Library

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

09/15/2017 01:10 AM CDT
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J.S. v. GRAND ISLAND PUBLIC SCHOOLS

Cite as 297 Neb. 347

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

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

the parties.

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

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

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

is void.

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

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

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

plain, ordinary, and popular sense.

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

14. Statutes: Appeal and Error. Unless a statute provides for an appeal 

from the decision of a quasi-judicial tribunal, such right does not exist.

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

with before the appellate court acquires jurisdiction of the subject matter 

of the action.

16. Actions: Jurisdiction: Appeal and Error. Where a district court has 

statutory authority to review an action, the district court may acquire 

jurisdiction only if the review is sought in the mode and manner and 

within the time provided by statute.

17. Administrative Law: Schools and School Districts: Appeal and 

Error. Appeals from the district court under the Student Discipline Act 

are governed by the Administrative Procedure Act.

18. Administrative Law: Jurisdiction: Appeal and Error. The filing 

of the petition and the service of summons are the two actions necessary to establish the jurisdiction of the district court to review the 

final decision of an administrative agency under the Administrative 

Procedure Act.

Appeal from the District Court for Hall County: Teresa K

Luther, Judge. Appeal dismissed

Mitchell C. Stehlik, of Lauritsen, Brownell, Brostrom & 

Stehlik, P.C., L.L.O., for appellant.

Jeanelle R. Lust and Paul B. Donahue, of Knudsen, 

Berkheimer, Richardson & Endacott, L.L.P., for appellee.
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297 Nebraska Report

J.S. v. GRAND ISLAND PUBLIC SCHOOLS

Cite as 297 Neb. 347

Heavican, C.J., Wright, Miller-Lerman, Cas

Kelch, and Funke, 

Funke, J

NATURE OF CASE

This case concerns a 15-day suspension of a student for a 

post made on a social media website from her home that, in 

part, caused a substantial disruption at her school. The superintendent and the school board each upheld the suspension. 

On appeal under the Student Discipline Act, Neb. Rev. Stat. 

§ 79-254 et seq. (Reissue 2014), the Hall County District Court 

affirmed, finding the suspension did not exceed the authority 

provided by §§ 79-264 and 79-267.

BACKGROUND

On Sunday, April 3, 2016, a group of students from Barr 

Middle School (Barr), which is part of the Grand Island Public 

Schools (GIPS), were communicating on a social media website. A post was made anonymously: “Tomorrow gonna be 

hella fire [fire emoji] be there (School).” This post was followed by another anonymous post: “Don’t show up to school 

tomorrow [gun emoji].” That evening, the Barr administration 

was notified by the Grand Island Police Department of these 

anonymous postings.

The following morning, April 4, 2016, extra security was 

present at the school and the police and Barr staff searched the 

school for any potential threats. During the morning, the school 

received over 100 telephone calls from parents concerned 

about safety. That day, 17 students were checked out of school 

and four of them remained checked out on April 5.

Police and Barr staff conducted interviews of students to 

identify who had made the anonymous postings. J.S., a student at Barr, was one of the students interviewed. During 

her interview, she admitted to making the “hella fire” post. 

The post with the gun emoji was not made by J.S., and no 

evidence was uncovered that she had any connection with the 
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J.S. v. GRAND ISLAND PUBLIC SCHOOLS

Cite as 297 Neb. 347

second post. Barr’s principal sent J.S. home and suspended 

her for 15 days.

J.S. requested an administrative hearing to contest her 

removal, which hearing was held on April 14, 2016.

At the administrative hearing, Barr’s principal testified that 

when he talked with J.S. and her parents on April 4, 2016, she 

stated that she did not know why she made the post or could 

not explain it to them. He also stated that J.S.’ social media 

posting was the sole reason for her removal from school and 

that at the time of J.S.’ removal, there were no further threats 

to the safety of other students by her.

J.S. testified that on Sunday evening, April 3, 2016, she was 

at home using her cell phone to communicate with other students on a social media website. The context of the discussion, 

when she made her post, was about skipping school the next 

day. She explained that “hella fire” means “good” or “cool.” 

Accordingly, she stated that her post was a sarcastic statement 

that school would be good or cool the next day and that the 

other students should be there.

After the administrative hearing, the superintendent of GIPS 

upheld J.S.’ suspension. J.S. next appealed to the GIPS board 

of education (Board). In May 2016, the Board held a hearing 

and also upheld the suspension.

J.S. timely filed a petition with the district court to appeal 

the Board’s decision. After the filing of the petition, the 

Board filed a voluntary appearance, under Neb. Rev. Stat. 

§ 25-516.01 (Reissue 2016). Specifically, the voluntary appearance stated, “[GIPS] acknowledges receipt of the [petition], 

enters its Voluntary Appearance . . . , and waives service of 

Summons pursuant to Neb.Rev.Stat. § 79-289.” The recor

does not show that the Board was ever served with a copy of 

the petition.

After a hearing, the court affirmed J.S.’ 15-day suspension, stating that it did not exceed the authority provided by 

§§ 79-264 and 79-267. The court reasoned that J.S.’ posting 

was open to several interpretations, including one of violence, 
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Cite as 297 Neb. 347

and that it in fact prompted a posting that could also be considered threatening or violent. Therefore, it found that “[J.S.’] 

posting on social media set in motion a series of events that 

cause[d] substantial disruption to the school environment.” 

J.S. appealed.

ASSIGNMENT OF ERROR

J.S. assigns, restated, that the district court erred in affirming 

her suspension.

STANDARD OF REVIEW

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

of law.1

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

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

court below.2

[3,4] A judgment or final order rendered by a district court 

in a judicial review pursuant to the Administrative Procedure 

Act (APA) may be reversed, vacated, or modified by an appellate court for errors appearing on the record.3

 When reviewing 

an order of a district court under the APA for errors appearing 

on the record, the inquiry is whether the decision conforms to 

the law, is supported by competent evidence, and is neither 

arbitrary, capricious, nor unreasonable.4

ANALYSIS

[5] Before reaching the legal issues presented for review, 

it is the power and duty of an appellate court to determine 

1 Medicine Creek v. Middle Republican NRD, 296 Neb. 1, 892 N.W.2d 74 

(2017).

2 Estermann v. Bose, 296 Neb. 228, 892 N.W.2d 857 (2017).

3 Medicine Creek, supra note 1.

4 Id.
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J.S. v. GRAND ISLAND PUBLIC SCHOOLS

Cite as 297 Neb. 347

whether it has jurisdiction over the matter before it, irrespective of whether the issue is raised by the parties.5

On appeal, a show cause order was issued ordering the 

parties to provide authority to the court showing that the district court obtained subject matter jurisdiction over the matter 

under § 79-289. GIPS argues that the district court lacked 

subject matter jurisdiction because a party cannot voluntarily 

confer subject matter jurisdiction on a court,6 while J.S. asserts 

that the Legislature allows courts to acquire subject matter 

jurisdiction over a party by its compliance with § 25-516.01. 

Further, J.S. contends that GIPS’ voluntary appearance waived 

summons and acknowledged that it had obtained a copy of the 

petition, so § 79-289 was satisfied.

[6,7] To support her contention, J.S. points us to 

§ 25-516.01(1), which states that “[t]he voluntary appearance 

of the party is equivalent to service.” However, we have held 

that the voluntary appearance of a party is equivalent to service of process for purposes of personal jurisdiction.

7

 Personal 

jurisdiction is the power of a tribunal to subject and bind a 

particular entity to its decisions.8

[8-11] Subject matter jurisdiction is the power of a tribunal to hear and determine a case in the general class or 

category to which the proceedings in question belong and to 

deal with the general subject matter involved.9 Parties cannot confer subject matter jurisdiction upon a judicial tribunal 

by either acquiescence or consent, nor may subject matter jurisdiction be created by waiver, estoppel, consent, or 

5 Clarke v. First Nat. Bank of Omaha, 296 Neb. 632, 895 N.W.2d 284 

(2017).

6 Concordia Teachers College v. Neb. Dept. of Labor, 252 Neb. 504, 563 

N.W.2d 345 (1997).

7 Burns v. Burns, 293 Neb. 633, 879 N.W.2d 375 (2016).

8 Abdouch v. Lopez, 285 Neb. 718, 829 N.W.2d 662 (2013).

9 In re Estate of Evertson, 295 Neb. 301, 889 N.W.2d 73 (2016).
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Cite as 297 Neb. 347

conduct of the parties.10 Lack of subject matter jurisdiction 

may be raised at any time by any party or by the court sua 

sponte.11 A court action taken without subject matter jurisdiction is void.12

Section 79-289(1) sets forth that proceedings for review 

under the Student Discipline Act pursuant to §§ 79-288 to 

79-292 shall be instituted by filing a petition in the district court of the county where the action is taken within 30 

days after the service of the final decisions by the school 

board or board of education under §§ 79-286 and 79-287. 

Further, § 79-289(3) requires that “[s]ummons shall be served 

as in other actions, except that a copy of the petition shall be 

served upon the board together with the summons.” (Emphasis 

supplied.)

[12] We have held that in construing a statute, a court must 

determine and give effect to the purpose and intent of the 

Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense.13

[13-16] The right of appeal in Nebraska is purely statutory.14 Unless a statute provides for an appeal from the decision of a quasi-judicial tribunal, such right does not exist.15

The requirements of the statute are mandatory and must be 

complied with before the appellate court acquires jurisdiction 

of the subject matter of the action.16 Where a district court has 

statutory authority to review an action, the district court may 

10 Id.

11 Id.

12 Id.

13 Concordia Teachers College, supra note 6.

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

15 Gage Cty. Bd. v. Nebraska Tax Equal. & Rev. Comm., 260 Neb. 750, 619 

N.W.2d 451 (2000).

16 Boone Cty. Bd. v. Nebraska Tax Equal. & Rev. Comm., 9 Neb. App. 298, 

611 N.W.2d 119 (2000).
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Cite as 297 Neb. 347

acquire jurisdiction only if the review is sought in the mode 

and manner and within the time provided by statute.17

[17,18] Appeals from the district court under the Student 

Discipline Act are governed by the APA.18 The filing of the 

petition and the service of summons are the two actions 

necessary to establish the jurisdiction of the district court to 

review the final decision of an administrative agency under 

the APA.19

In Concordia Teachers College v. Neb. Dept. of Labor,

20 we 

considered an appeal under the APA. In doing so, we reviewed 

the language of Neb. Rev. Stat. § 84-917(2)(a) (Reissue 1994), 

which provided in pertinent part:

Proceedings for review shall be instituted by filing a 

petition in the district court of the county where the 

action is taken within thirty days after the service of 

the final decision by the agency. . . . Summons shall 

be served within thirty days of the filing of the petition 

in the manner provided for service of a summons in a 

civil action.

We held that in giving the statute its plain, ordinary, and 

popular sense, it was apparent that the Legislature intended 

that a summons be served within 30 days of the filing of 

the petition for review as a prerequisite to the exercise by 

the district court of its jurisdiction over the subject matter 

on an appeal from an adverse decision of an administrative agency.21

The record indicated that the appellant in Concordia 

Teachers College filed an amended petition, but failed to 

17 See, Butler Cty. Sch. Dist. v. Freeholder Petitioners, 283 Neb. 903, 814 

N.W.2d 724 (2012); Essman v. Nebraska Law Enforcement Training Ctr., 

252 Neb. 347, 562 N.W.2d 355 (1997).

18 J.P. v. Millard Public Schools, 285 Neb. 890, 830 N.W.2d 453 (2013).

19 Essman, supra note 17.

20 Concordia Teachers College, supra note 6.

21 Id.
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Cite as 297 Neb. 347

serve the summons within 30 days and served it on the wrong 

entity. We determined that the appellant failed to invoke the 

subject matter jurisdiction of the district court.22 As a result, 

the district court did not acquire authority to review a labor 

commissioner’s ruling under the APA.23

Similarly, in the instant case, the record indicates that J.S. 

timely filed her petition with the district court. However, she 

failed to serve a summons and a copy of the petition upon the 

Board. As a result, only one of the two actions required by 

§ 79-289 was accomplished. J.S.’ failure to comply with the 

statutory requirements prevented the district court from obtaining subject matter jurisdiction, and as a result, its decision 

was void.

CONCLUSION

J.S. failed to seek district court review in the mode and 

manner provided by statute. By failing to serve the summons 

and a copy of the petition upon the Board, she failed to timely 

petition for review. The district court lacked subject matter 

jurisdiction under the Student Discipline Act. We likewise lack 

subject matter jurisdiction, and we dismiss J.S.’ appeal for 

lack of jurisdiction.

Appeal dismiss

22 Id.

23 Id.