McDougle v. State ex rel. BruningMcDougle v. State ex rel. Bruning
Case Information
*1 n eBraSKa a DvanCe S heetS C v
CONCLUSION
For the foregoing reasons, we reverse the decision of the Court of Appeals. We remand the cause with direction to enter an order affirming the district court’s entry of summary judg- ment in favor of State Farm.
r everSeD anD remanDeD With DireCtion . e riC m D ouGle , lmhp, plaDC, appellant , . S tate oF n eBraSKa ex rel . J on B runinG , a ttorney G eneral , appellee .
___ N.W.2d ___ Filed September 12, 2014. No. S-12-1186.
1.
Jurisdiction.
Subject matter jurisdiction is a question of law for the court.
2.
Statutes: Appeal and Error.
The meaning and interpretation of a statute
are questions of law, which an appellate court reviews independently of the
lower court.
3.
Administrative Law: Jurisdiction: Appeal and Error.
Where a district court
has statutory authority to review an action of an administrative agency, the dis-
trict court may acquire jurisdiction only if the review is sought in the mode and
manner and within the time provided by statute.
4.
Jurisdiction: Appeal and Error.
If the court from which an appeal was taken
lacked jurisdiction, the appellate court acquires no jurisdiction.
5.
Administrative Law: Words and Phrases.
An administrative agency is a neutral
factfinding body when it is neither an adversary nor an advocate of a party.
6.
Administrative Law: Parties.
When an administrative agency acts as the pri-
mary civil enforcement agency, it is more than a neutral factfinding body.
7. ____: ____. An agency that is charged with the responsibility of protecting the
public interest, as distinguished from determining the rights of two or more
individuals in a dispute before such agency, is more than a neutral factfind-
ing body.
8. ____: ____. The Attorney General’s involvement as the plaintiff in a petition
for discipline does not negate the role of the Division of Public Health of the
Department of Health and Human Services in disciplining a credential holder as
something more than only a neutral factfinding body.
9.
Statutes: Words and Phrases.
As a general rule, the word “shall” in a statute is
considered mandatory and is inconsistent with the idea of discretion.
10.
Statutes: Appeal and Error.
While statutes relating to the same subject matter
will be construed so as to maintain a sensible and consistent scheme, an appellate
court must do so by giving effect to every provision.
11.
Administrative Law: Parties: Appeal and Error.
There is no inherent incon-
sistency between
(Reissue 2008) and the plain mandate of
Denise M. Destache, of Lamson, Dugan & Murray, L.L.P., for appellant.
Jon Bruning, Attorney General, and Julie L. Agena for appellee.
h eaviCan , C.J., W riGht , C onnolly , S tephan , m C C ormaCK , m iller -l erman , and C aSSel , JJ.
m C C ormaCK , J.
NATURE OF CASE
Eric McDougle’s licenses to practice as a mental health practitioner and as a provisional alcohol and drug counselor were revoked in a decision by the director of the Division of Public Health of the Department of Health and Human Services (Department). McDougle petitioned the district court for review of the decision, naming the Department and the State as parties to the petition for review and timely serv- ing process upon them. The issue in this case is whether the Department was properly a “party of record” under the Administrative Procedure Act, such that the petitioner was not required to separately serve the Department with a copy of the petition and a request for preparation of the official record as a prerequisite to the district court’s jurisdiction over the petition for review.
BACKGROUND
McDougle held a mental health license and a provisional alcohol and drug counseling license issued by the Department. The Department is the agency of the State of Nebraska autho- rized to enforce the provisions of the Uniform Credentialing Act regulating the practice of mental health and alcohol and drug counseling.
Subsections (2) and (23) of § 38-178 state that a professional licensee may be disciplined for dishonorable conduct evidenc- ing unfitness to meet the standards of practice of the profession or for unprofessional conduct. Unprofessional conduct includes “any departure from or failure to conform to the standards of acceptable and prevailing practice of a profession.”
The regulations relating to mental health practitioners pro- vide that “[s]exual intimacy with a former client for 2 years fol- lowing termination of therapy is prohibited.” It is undisputed that McDougle had a sexual relationship with a client approxi- mately 1 month after terminating their professional relation- ship. McDougle self-reported the incident to the Department. He asserted that at the time of the relationship, he did not know it was in violation of applicable regulations.
The Department conducted an investigation, which was
considered by the Board of Mental Health Practice. The
*3
board recommended that the State file a petition, pursuant
to
Under
The following rules shall govern the form of the peti- tion in cases brought pursuant tosection 38-186 : (1) The state shall be named as plaintiff and the creden- tial holder as defendant;
(2) The charges against the credential holder shall be
stated with reasonable definiteness;
[1]
See
[2] See § 38-179.
[3] 172 Neb. Admin. Code, ch. 94, § 016.05 (2004).
[4] § 38-116.
(3) Amendments may be made as in ordinary actions in the district court; and
(4) All allegations shall be deemed denied, but the cre- dential holder may plead thereto if he or she desires.
A petition for disciplinary action accordingly was filed with the Department naming the “STATE OF NEBRASKA ex rel. JON BRUNING, Attorney General,” as plaintiff and McDougle as defendant.
A hearing upon the petition was held before the chief medi- cal officer and director of the Department (Director). On May 18, 2012, the Director issued an order revoking McDougle’s licenses to practice as a mental health practitioner and provi- sional alcohol and drug counselor in the State of Nebraska. The Director found clear and convincing evidence that McDougle’s conduct was unprofessional and was grounds for discipline. The Director then concluded that revocation was the appropri- ate disciplinary sanction for such conduct.
On June 13, 2012, McDougle filed in the district court a
petition for judicial review of the Director’s decision. The
Uniform Credentialing Act states that “[b]oth parties to disci-
plinary proceedings under the Uniform Credentialing Act shall
have the right of appeal, and the appeal shall be in accord-
ance with the Administrative Procedure Act.”
All parties of record shall be made parties to the proceed- ings for review. If an agency’s only role in a contested case is to act as a neutral factfinding body, the agency shall not be a party of record. In all other cases, the agency shall be a party of record. Summons shall be served within thirty days of the filing of the petition in the manner provided for service of the summons in section 25-510.02. If the agency whose decision is appealed from *4 is not a party of record, the petitioner shall serve a copy of the petition and a request for preparation of the official record upon the agency within thirty days of the filing of [5] § 38-1,102.
the petition. The court, in its discretion, may permit other interested persons to intervene.
(Emphasis supplied.)
In his petition for review, McDougle named the Department and the State as the defendants. Summons was served within 30 days of the filing of the petition for review. McDougle did not separately request within 30 days of the petition for review that the Department prepare an official record. The parties agree that McDougle made such a request later, on August 1, 2012, although that request is not in the appel- late record.
On July 5, 2012, McDougle moved for leave to file an amended petition changing the designation of the defendant “to appropriately reflect State of Nebraska, ex rel. Jon Bruning, Attorney General.” But the motion was apparently never ruled upon. Although there is an amended petition in the transcript, it is not dated, signed, or file stamped.
On July 19, 2012, the State filed a motion to dismiss
McDougle’s petition for review on the ground that he failed
to request preparation of the official record upon the agency
within 30 days of the filing of the petition. The State noted
that in
Payne v. Nebraska Dept. of Corr. Servs.
we held that
when the agency is not a party of record, a timely request for
the preparation of the official record under
[7] Payne v. Nebraska Dept. of Corr. Servs. , 249 Neb. 150, 542 N.W.2d 694
(1996).
n eBraSKa a DvanCe S heetS
dismiss, arguing that the Department was not simply a neutral
factfinding body and was therefore a proper “party of record”
under
The district court granted the motion to dismiss for lack of jurisdiction. McDougle appeals.
ASSIGNMENT OF ERROR
McDougle assigns that “[t]he district court erred when it failed to consider the Agency’s regulations and [McDougle’s] reliance on those regulations which do not require request for preparation of the record, in order for the district court to obtain jurisdiction.”
STANDARD OF REVIEW
[1] Subject matter jurisdiction is a question of law for the court. [8]
[2] The meaning and interpretation of a statute are questions of law, which an appellate court reviews independently of the lower court. [9]
ANALYSIS
[3,4] Where a district court has statutory authority to review an action of an administrative agency, the district court may acquire jurisdiction only if the review is sought in the mode and manner and within the time provided by statute. If the court from which an appeal was taken lacked jurisdiction, the appellate court acquires no jurisdiction.
The jurisdictional question before us hinges on whether the
Department is a “party of record” under
[9]
State v. Hettle
,
N.W.2d 658 (2007).
Anderson v. Houston
[5-7] Again,§ 84-917(2)(a)(i) states: All parties of record shall be made parties to the proceed- ings for review. If an agency’s only role in a contested case is to act as a neutral factfinding body, the agency shall not be a party of record. In all other cases, the agency shall be a party of record.
We have repeatedly explained that an administrative agency is a neutral factfinding body when it is neither an adversary nor an advocate of a party. [12] In contrast, when an administra- tive agency acts as the primary civil enforcement agency, it is more than a neutral factfinding body. Also, an agency that is charged with the responsibility of protecting the public interest, as distinguished from determining the rights of two or more individuals in a dispute before such agency, is more than a neutral factfinding body.
In re 2007 Appropriations of Niobrara River Waters
, 283 Neb. 629, 820
N.W.2d 44 (2012);
Metropolitan Util. Dist. v. Aquila, Inc.
,
Several cases illustrate the circumstances under which an
agency acts as more than “only . . . a neutral factfinding body,”
as defined by
In
In re 2007 Appropriations of Niobrara River Waters
, we held that in a petition for review from hearings on junior
appropriators’ challenges to senior water appropriation rights,
the Department of Natural Resources was more than a neu-
tral factfinding body. Thus, in that case, it was a “party of
record” under
Similarly, in Becker v. Nebraska Acct. & Disclosure Comm. we held that the Nebraska Accountability and Disclosure Commission was more than only a neutral factfinding body in proceedings determining the proper response to a taxpayer complaint before the commission alleging expenditures by members of the University of Nebraska Board of Regents violated the Nebraska Political Accountability and Disclosure Act. We looked no further than the language of the statutes governing the commission’s powers, which stated that the *7 commission “‘shall . . . [a]ct as the primary civil and criminal enforcement agency for violations of the Nebraska Political Accountability and Disclosure Act and the rules or regulations promulgated thereunder.’”
In
Leach v. Dept. of Motor Vehicles
,
[18]
we also held that
the Department of Motor Vehicles was more than a neutral
factfinding body and, thus, was a necessary party in a peti-
tion for review of a driver’s license revocation. We explained
that the department is charged with the responsibility of pro-
tecting the public interest as distinguished from determining
[15]
In re 2007 Appropriations of Niobrara River Waters, supra
note 12.
[16]
Becker v. Nebraska Acct. & Disclosure Comm.
,
36 (1995).
Id.
at 34,
In In re Application of Metropolitan Util. Dist. , [19] we held that the Public Service Commission was more than only a neutral factfinding body in connection with the com- mission’s denial of the Metropolitan Utilities District of Omaha’s application to be certified as a competitive natural gas provider outside its service area. Again, we examined the statutory powers of the commission. We summarized that the commission was more than a neutral factfinding body, because it has the authority to set conditions on certifications, resolve disputes, investigate complaints, issue orders, and enforce orders.
And in Beatrice Manor v. Department of Health , we held that the former Department of Health, not the state, was the necessary party in the proceedings to review the Department of Health’s determination, through the Nebraska Health Care Certificate of Need Appeal Panel, which denied a health care facility permission to add more beds. We explained that an agency that is charged with the responsibility of the public interest, as distinguished from determining the rights of two or more individuals in a dispute before such agency, is more than a neutral factfinding body.
In Tlamka v. Parry , the Nebraska Court of Appeals held that the Department of Correctional Services was more than a neutral factfinding body and therefore was a necessary “party of record,” in an inmate’s petition for review of the denial of his request for reclassification. The Court of Appeals reasoned that the department is charged with protecting the public interest from persons convicted of crime, and, as part of this responsibility, it classifies offenders.
In City of Omaha v. C.A. Howell, Inc. , the Court of Appeals held that the Nebraska Liquor Control Commission In re Application of Metropolitan Util. Dist., supra note 12. Beatrice Manor v. Department of Health 219 Neb. 141, 362 N.W.2d 45 (1985). Tlamka v. Parry, supra
[22] City of Omaha v. C.A. Howell, Inc., supra note 12.
n eBraSKa a DvanCe S heetS
was more than a neutral factfinding body and thus was a nec- essary party to the city’s petition for review of the commis- sion’s order granting an applicant a liquor license. In so hold- ing, the Court of Appeals examined the commission’s broad statutory authority to regulate all phases of the control of the manufacture, distribution, sale, and traffic of alcoholic liquor; to receive, issue, suspend, cancel, and revoke liquor licenses; to inspect premises where liquor is located; and to hear and determine appeals. The Court of Appeals summarized that the commission is charged with the responsibility of protecting the public interest through its regulation of all phases of alcoholic liquor. In addition, the commission’s decision to grant the applicant a license against the city council’s recommendation made the commission an “adversarial party.”
In only two cases have our courts determined that the agen- cy’s “only role” in the underlying contested case was “to act as a neutral factfinding body.
First, in
Metropolitan Util. Dist. v. Aquila, Inc.
we held
that the same agency that was more than a neutral factfind-
ing body in
In re Application of Metropolitan Util. Dist.
was only a neutral factfinding body in the proceedings under
review, because of its uniquely limited statutory powers relat-
ing to the proceedings below.
Aquila, Inc.
involved a com-
plaint before the Public Service Commission that a proposed
gasline extension agreement violated the former
Laws, L.B. 669.
determination of disputes brought before it under
Second, in Payne v. Nebraska Dept. of Corr. Servs. , [28] we held that the Equal Opportunity Commission was only a neu- tral factfinding body. We did not elaborate on our reasoning, but noted in the facts that the commission’s only role in the underlying case was to determine whether the Department of Correctional Services, as employer of the plaintiff, had violated the Nebraska Fair Employment Practice Act.
We hold in this case that the Department acted as more
than “only . . . a neutral factfinding body,” as defined by
The Department’s role under the Uniform Credentialing Act is similar to other licensing agencies having the power to Payne v. Nebraska Dept. of Corr. Servs., supra § 38-167(p). See § 38-174. § 38-126(1)(a). § 38-126. revoke or grant licenses. In Leach and C.A. Howell, Inc. we held that the agencies in those cases were more than neutral factfinding bodies. The Department is also obviously similar to the Department of Health, the predecessor to the Department’s parent entity, which we found to be more than a neutral fact- finding body in Beatrice Manor . The Department is charged with the responsibility of protecting the public interest by creating and enforcing standards for practice of the health care professions.
[8] The Attorney General’s involvement as the “plaintiff”
in a petition for discipline does not negate the role of the
Department as something more than “only . . . a neutral
factfinding body.” Under § 38-161(2)(c), it is the Board of
*10
Mental Health Practice that first provides recommendations
for the disciplinary action. That recommendation is sent to
the Attorney General’s office, which determines whether
to file a petition for discipline. The petition is filed by the
Attorney General’s office, ensuring proper notice and form.
[36]
But the petition is filed “in order for
the director to disci-
pline
a credential obtained under the Uniform Credentialing
Act.” After a hearing conducted by the Director,
[38]
pursu-
ant to § 38-192, the Director determines not just the factual
question of whether a violation has occurred; rather, the
Director “shall have the authority through entry of an order
to exercise in his or her discretion any or all of the sanc-
tions authorized under section 38-196.” The Department is
thus the primary civil enforcement agency for credentialing
violations pertaining to the health care professions. In that
sense, no matter what entity brought the petition before the
Department as the “plaintiff,” the Department is like the
agencies in
In re 2007 Appropriations of Niobrara River
[33]
Leach v. Dept. of Motor Vehicles, supra
note 18.
City of Omaha v. C.A. Howell, Inc., supra
note 12.
Beatrice Manor v. Department of Health, supra
See § 38-187.
Waters and Becker which we held were more than neutral factfinding bodies.
The State does not actually present an argument that under
the case law presented above, the Department acted as only
a neutral factfinding body. Instead, the State argues we must
interpret
The State points to no legal authority for its theory that McDougle’s motion to amend his petition for review operates as a waiver of the argument on appeal that the Department was properly a party to the petition for review. The motion to amend was apparently never ruled upon, thus leaving the Department as the named party. And McDougle consistently objected below to the motion to dismiss, arguing that the Department was a party of record, because it acted as more than a neutral factfinding body. We find no merit to the State’s waiver argument.
We also find no merit to the State’s argument that
[9,10] As a general rule, the word “shall” in a statute is
considered mandatory and is inconsistent with the idea of
discretion. While statutes relating to the same subject matter
[39]
In re 2007 Appropriations of Niobrara River Waters, supra
note 12.
Becker v. Nebraska Acct. & Disclosure Comm., supra
note 16.
[11] Moreover, we disagree with the State’s contention
that the statutes are somehow inconsistent if we fail to adopt
the State’s interpretation of a “party of record.” The State
apparently understands the term “party of record” as being
limited to those entities named as parties in the administra-
tive proceedings below. But nowhere in the relevant statutes
does the Legislature define “parties of record” for purposes
of determining necessary parties to a petition for review as
being limited to those parties who were named in the underly-
ing proceedings. The State, as the plaintiff below, may also
be a “party of record” under
Because the Department acted as more than a neutral
factfinding body when it revoked McDougle’s licenses, the
Department was properly named as a party to McDougle’s
petition for review of that decision. Because the Department
was properly a party to the petition for review and was prop-
erly served with a copy of that petition within 30 days as
required by
See
In re Interest of Katrina R.
,
CONCLUSION
We reverse the district court’s dismissal of McDougle’s peti- tion for review and remand the cause for further proceedings.
r everSeD anD remanDeD For Further proCeeDinGS . S tate oF n eBraSKa ex rel . C ounSel For D iSCipline oF the n upreme C ourt , relator , . B renDa J. C ounCil , reSponDent .
___ N.W.2d ___ Filed September 12, 2014. No. S-13-379.
1. Disciplinary Proceedings. A proceeding to discipline an attorney is a trial de novo on the record. 2. ____. The basic issues in a disciplinary proceeding against an attorney are whether the Nebraska Supreme Court should impose discipline and, if so, the appropriate discipline under the circumstances. 3. Disciplinary Proceedings: Appeal and Error. When no exceptions to the ref- eree’s findings of fact are filed, the Nebraska Supreme Court may consider the referee’s findings final and conclusive. 4. Disciplinary Proceedings. To determine whether and to what extent discipline should be imposed in an attorney discipline proceeding, the Nebraska Supreme Court considers the following factors: (1) the nature of the offense, (2) the need for deterring others, (3) the maintenance of the reputation of the bar as a whole, (4) the protection of the public, (5) the attitude of the offender generally, and (6) the offender’s present or future fitness to continue in the practice of law. 5. ____. In determining the proper discipline of an attorney, the Nebraska Supreme Court considers the attorney’s actions both underlying the events of the case and throughout the proceeding, as well as any aggravating or mitigating factors. 6. ____. Each attorney discipline case must be evaluated individually in light of its particular facts and circumstances. In addition, the propriety of a sanction must be considered with reference to the sanctions imposed in prior similar cases. 7. ____. Multiple acts of attorney misconduct are deserving of more serious sanc- tions and are distinguishable from isolated incidents. 8. Disciplinary Proceedings: Presumptions. In an attorney discipline case, miti- gating factors may overcome the presumption of disbarment in misappropriation and commingling cases where such factors are extraordinary and substantially outweigh any aggravating circumstances. Absent such mitigating circumstances, the appropriate sanction is disbarment.
Original action. Judgment of disbarment.