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Ditter v. Nebraska Board of Parole11/26/2002
ed or final order made by any tribunal, board, or officer exercising judicial functions and inferior in jurisdiction to the district court to be reversed, vacated, or modified by the district court with the exception of appeals made from juvenile court or appeals from a county court in matters arising under the Nebraska Probate Code, in matters involving adoption or inheritance tax, or in domestic relations matters.
The question then becomes whether a decision by the Board after a review constitutes the exercise of a "judicial function" under the petition in error statutes such that the decision can be appealed to the district court.
[4-8] A board or tribunal exercises a judicial function if it decides a dispute of adjudicative fact or if a statute requires it to act in a judicial manner. Douglas Cty. Bd. of Comrs. v. Civil Serv. Comm., 263 Neb. 544, 641 N.W.2d 55 (2002); Hawkins v. City of Omaha, 261 Neb. 943, 627 N.W.2d 118 (2001). Adjudicative facts are facts which relate to a specific party and are adduced from formal proof. Hawkins v. City of Omaha, supra. Adjudicative facts pertain to questions of who did what, where, when, how, why, and with what motive or intent. They are roughly the kind of facts which would go to a jury in a jury case. Id. Whether a board or tribunal is required to conduct a hearing and receive evidence may be considered in determining whether the inferior board or tribunal exercised judicial functions. Id. See School Dist. No. 23 v. School Dist. No. 11, 181 Neb. 305, 307-08, 148 N.W.2d 301, 303 (1967) ("'trial type of hearing is ordinarily required for disputes of adjudicative facts'"). Where an inferior board or tribunal decides no question of adjudicative fact and no statute requires the board or tribunal to act in a judicial manner, such orders are not reviewable by error proceedings. Hawkins v. City of Omaha, supra.
While § 83-1,111 provides that an offender may present evidence, call witnesses, and be represented by counsel at a parole hearing, no such rights are provided at a review by the Board. A parole hearing obviously did not occur in this case and was not required because § 83-1,111 does not require a hearing unless the Board first determines the offender is likely to be paroled. As mentioned previously, the review is designed to counsel the offender concerning his progress and prospect for future parole. The Board does not decide disputes of adjudicative facts at a review and the statute does not require the Board to act in a judicial manner at a review. We conclude that the Board is not exercising judicial functions at a review and that therefore, the petition in error proceeding is not available as a means of appeal from the Board's decision following a review. See Pratt v. Nebraska Bd. of Parole, 252 Neb. 906, 567 N.W.2d 183 (1997). Given this conclusion, it is unnecessary for us to address Ditter's remaining assignment of error, that being whether the district court erred in finding that even if the petition in error proceeding was appropriate, the Board's finding did not affect a substantial right and was therefore not appealable.
Although we conclude that the district court erred in determining that the APA applies to appeals from the decisions of the Board, we conclude that a petition in error proceeding is not available as a means of appeal from the Board following a review by the Board under § 83-1,111. Thus, dismissal of Ditter's appeals by the district court was appropriate, although for reasons other than relied upon by the district court.
CONCLUSION
The dismissal of the appeals by the district court is affirmed.
Affirmed.
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