Friday, March 03, 2006
Nebraska Supreme Court dismisses guardianship and State administrative personnel cases for lack of jurisdiction Kaplan v. McClurg, 271 Neb. 101 Filed March 3, 2006. No. S-04-1097. In re Guardianship of Sophia M., S-05-154, 271 Neb. 133 McClurg: Staff attorneys for Nebraska Department of Health sought to prevent reclassification of their jobs. District Court dismissed their action because there was no adverse action the State had taken against the staff attorneys. Supreme Court affirms as there was no jurisdiction to review this personnel action. Sophia M. No appeal from order for a Rule 35 mental/physical exam in a guardianship case. Although guardianships are special proceedings, the discovery order was not a final order. The trial court had jurisdiction after filing notice ofappeal from a non-appealable order MClurg: For purposes of the APA, a "[c]ontested case" is defined as "a proceeding before an agency in which the legal rights, duties, or privileges of specific parties are required by law or constitutional right to be determined after an agency hearing." § 84-901(3). The parties did not petition DAS for a declaratory order "as to the applicability to specified circumstances of a statute, rule, regulation, or order within the primary jurisdiction of the agency." See § 84-912.01(1) and 10 Neb. Admin. Code, ch. 20, § 008.01. Thus, § 84-912.01 did not require a hearing before DAS to decide the issues raised by the petitioners, the petition for a declaratory order did not require DAS to act in a quasi-judicial manner, and the proceeding was not a contested case under the APA Sophia M.: A rule 35 order does not affect a substantial right and, therefore, is not a final, appealable order.A notice of appeal from a nonappealable order does not render void for lack of jurisdiction acts of the trial court taken in the interval between the filing of the notice and the dismissal of the appeal by the appellate court. In re Guardianship & Conservatorship of Woltemath, 268 Neb. 33, 680 N.W.2d 142 (2004).
Posted by stan_sipple at 12:19 PM