overruling, The 20’s, Inc. v. Nebraska Liquor Control Commission, 190 Neb. 761, 212 N.W.2d 344 (1973), and Weiner v. State ex rel. Real Estate Comm., 214 Neb. 404, 333 N.W.2d 915 (1983)
How later courts described this case
- overruling, The 20’s, Inc. v. Nebraska Liquor Control Commission, 190 Neb. 761, 212 N.W.2d 344 (1973), and Weiner v. State ex rel. Real Estate Comm., 214 Neb. 404, 333 N.W.2d 915 (1983)
- Supreme Court’s de novo review under Administrative Procedure Act
- Supreme Court’s de novo review under Administrative Procedure Act before amendment in 1989
Written by the judges who cited it.
The opinion
Shanahan, J.,
concurring.
As the result of the majority’s opinion, an appeal to a district court is similar to a bald man’s trip to a barbershop; it affords an opportunity for conversation but accomplishes little. Nevertheless, the result reached by the majority is correct because the personnel board’s decision is supported by competent, material, and substantial evidence. See Administrative Procedures Act, Neb. Rev. Stat. § 84-917 (6)(e) (Reissue 1981).
The majority gives lukewarm lipservice to some principles mentioned in its opinion; for example,
only issues properly presented to and passed upon by the district court may be raised on appeal to this court. In the absence of plain error, where an issue is raised for the first time in the Supreme Court, it will be disregarded inasmuch as the district court cannot commit error in resolving an issue never presented and submitted for disposition.
In re Estate of Kothe, 131 Neb. 780 , 270 N.W. 117 (1936). Although State v. Ledingham, 217 Neb. 135 , 347 N.W.2d 865 (1984), involved a district court’s appellate review of a conviction in a county court, Ledingham supplies an analogy and proposition for appellate procedure: “[T]o deny [a] trial court the opportunity to pass upon [a] matter, is not an appropriate way to conduct either trial courts or appellate courts.” Id. at 138 , 347 N.W.2d at 867 . That immutable *568 proposition announced last year has been changed today by the majority’s opinion.
Bearing in mind our somewhat ephemeral enunciations, it is clear the Administrative Procedures Act, Neb. Rev. Stat. § 84-918 (Reissue 1981), indicates a de novo review by this court, while the act, § 84-917, prescribes different and more restrictive criteria for a district court exercising appellate jurisdiction in reviewing an agency’s decision. A de novo review by this court necessarily includes finding and weighing facts anew. Yet, a district court reviewing an agency’s decision under the standards prescribed by § 84-917 is not permitted to independently determine facts or reweigh evidence presented to the board making the decision to be reviewed. Therefore, we witness an anomaly wherein this court and the district court, as appellate courts, review the identical subject matter, an agency’s decision, but conduct a judicial review of that subject under dissimilar standards. If uniformity is one characteristic of a sound system of justice, one would have thought that identical issues presented to courts of appellate jurisdiction should be disposed by reference to an equivalent index and resolved by utilization of the same standard. Common sense, as well as efficiency and practicality in a judicial system, demands application of a uniform principle in answering like questions. As inescapable consequences of the majority’s ruling, logical questions arise. Are not questions of fact and weight of evidence matters presented for the. first time to the Supreme Court, but never to a district court, in a judicial review pursuant to the Administrative Procedures Act? If a determination of fact and evaluation of evidence are outside the scope of a district court’s review, how does this court review for error in a matter never presented to a district court? Is deciding matters not presented to a district court an appropriate manner to conduct an appellate court?
By its decision the majority has eliminated the district court as a significant and efficient appellate step in judicial review of an agency’s decision. Circumvention of the district court in effect creates a direct appeal to this court from an agency’s decision. Thus, an appeal to the district court from an agency’s decision becomes an expensive and inefficient detour on a *569 litigant’s journey through a part of our legal system. Consequently, economy and efficiency in our judicial system become elusive and perhaps illusive.
Today’s decision by the majority is absolute adherence to ill-advised legislation dictating an impractical framework to resolve disputes. What is more worrisome is the ominous course we have charted for the judicial process in Nebraska— capitulation to a statutory directive, notwithstanding a contrary conclusion compelled by practicality, logic, inherent judicial authority, and, moreover, this court’s ultimate responsibility to the people for judicial administration required by Neb. Const, art. V, § 1.
Our review of a district court’s judgment entered upon appellate review of an agency’s decision should be made in reference to the standards contained in § 84-917 rather than a review de novo on the record as indicated in § 84-918. Undoubtedly, Milton envisioned such a situation as results from the majority’s opinion, when he wrote, “Confusion worse confounded.”