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Ditter v. Nebraska Board of Parole11/26/2002
e Legislature has provided an appellate procedure other than the APA for appeals from an administrative agency, the APA does not apply, see R.D.B., Inc. v. Nebraska Liquor Control Comm., 229 Neb. 178, 425 N.W.2d 884 (1988); but to the extent that another method of appeal has not been provided, the APA controls, see § 84-919.
The Board argues that since there is no other appellate procedure for review of the Board's decision, the APA provides the exclusive means of judicial review. The Board attempts to distinguish § 83-199 by arguing that the statute "speaks to the Board's internal procedures and not to the appeal of [the Board's] final decisions," which was also the position taken by the district court in its order sustaining the Board's demurrers to Ditter's petitions in error. Brief for appellee in case No. A-00-657 at 7. The Board further argues that the APA contains specific provisions relating to appeals from final decisions of an agency, which provisions should control over the general provisions in the petition in error statutes.
Section 84-901(1) of the APA defines the term "agency" as follows:
Agency shall mean each board, commission, department, officer, division, or other administrative office or unit of the state government authorized by law to make rules and regulations, except the Adjutant General's office as provided in Chapter 55, the courts including the Nebraska Workers' Compensation Court, the Commission of Industrial Relations, the Legislature, and the Secretary of State with respect to the duties imposed by the act.
In the instant case, the district court concluded that the Board is an "agency" under the APA pursuant to § 84-901(1) because the chairperson of the Board has authority to "' dopt and promulgate rules and regulations for the administration and operation . . .' of the Board," and that therefore, under § 84-919, the APA is the exclusive means of judicial review. The court then made the distinction that although § 83-199 provides that the APA does not apply to the Board or to the exercise of its functions, it does not indicate that the APA does not apply to persons aggrieved by decisions of the Board. We disagree with this interpretation.
While the APA clearly applies to appeals from agency decisions where another method of appeal is not provided and while there is no other method of appeal specified in the statutes concerning appeals from the Board's decisions, we are still faced with the plain language of § 83-199 contained in the statutes governing the Board. Section 83-199 states: "The provisions of the Administrative Procedure Act shall not apply to the Board of Parole or to the exercise of its functions." While the district court correctly interpreted the statute insofar as it noted that the APA does not apply to the exercise of the Board's functions, we cannot agree with the district court's conclusion that § 83-199 somehow excepts from its application appeals from persons aggrieved by Board decisions. We find no support, statutory or otherwise, for this proposition. Rather, we find that the plain language of the statute—that the provisions of the APA shall not apply to the Board—means just that and does not exclude appeals from Board decisions.
We therefore conclude that the provisions of the APA do not apply to appeals from the Board. Having so concluded, it is unnecessary for us to address whether the Board's review proceeding was a "contested case" under the APA.
We must next address whether a petition in error is the appropriate procedure for an appeal of a Board's decision in connection with an offender review. Section 25-1901 of the petition in error statutes allows a judgment render
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