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Ditter v. Nebraska Board of Parole11/26/2002
ctober 1999. The Board responded in writing, indicating that it was allowed by statute to defer its annual reviews up to 10 years, and the Board thus denied Ditter's request. Ditter persisted in his request for a review, claiming that the statute upon which the Board relied was enacted after his conviction and sentence and therefore violated the prohibition of ex post facto laws. The Board subsequently reconsidered its position and held an annual review of Ditter's case on November 9, 1999. The "Offender Board Review Notice," dated November 10, 1999, deferred Ditter's next review until November 2004.
Unhappy with the results of the Board's review, Ditter filed a petition in error pursuant to Neb. Rev. Stat. § 25-1901 et seq. (Reissue 1995 & Cum. Supp. 2000) on December 9, 1999. The Board demurred to the petition, arguing that the district court was without jurisdiction and that the petition did not state facts sufficient to constitute a cause of action. The Board argued that the Administrative Procedure Act (APA), found at Neb. Rev. Stat. § 84-901 et seq. (Reissue 1999), was Ditter's exclusive method to appeal the Board's decision, specifically relying on §§ 84-919 and 84-917(7). The district court sustained the demurrer, reasoning that the Legislature has not articulated a procedure for appeals from decisions of the Board; that when a method of appeal has not been provided for, the APA controls; and that the Board is an agency as defined by the APA. The district court, citing Neb. Rev. Stat. § 83-199 (Reissue 1999), further stated that while the APA does not apply to the Board or to the performance of its duties, operation, and functions, § 83-199 does not provide that the APA does not apply to persons aggrieved by decisions of the Board. Therefore, the district court ruled that the APA applies to appeals from decisions of the Board.
Ditter timely appealed from the district court's order filed June 8, 2000, sustaining the Board's demurrer and dismissing his case without the opportunity to amend. The court stated that the defect could not be cured. This was Ditter's appeal in case No. A-00-657.
With regard to Ditter's appeal in case No. A-01-1155, the Board held another review of Ditter's case in November 2000. After that review, the Board informed Ditter via an "Offender Board Review Notice" that his next review was not scheduled until November 2003. However, the Board subsequently issued a "Corrected Offender Board Review Notice" dated November 16, 2000, that advised Ditter his next review date had been rescheduled for November 2002. Again unhappy with the results, Ditter filed a petition in the district court for Lancaster County under both the petition in error statutes and the APA statutes. The Board again demurred to Ditter's petition, arguing that the APA was Ditter's exclusive method to appeal the decision of the Board, but that the APA was not available to Ditter because his case was not a "contested case," as required by § 84-919. The Board's demurrer was sustained as to the petition in error allegations, and the case proceeded under the APA, with the Board later filing a motion for summary judgment on the merits of Ditter's appeal under the APA. Accepting the Board's argument, the district court dismissed Ditter's petition, stating that the Board's review proceeding was not a "contested case," and further found that even if a petition in error was a proper method of appeal, the court did not have jurisdiction because the Board's decision was not a final order affecting a substantial right. Ditter appealed the order of the district court dated September 27, 2001, and raised essentially the same issues as in his appeal in case No. A-00-657.
ASSIGNMENTS OF ERR
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