Griffith v. Neb. Dep't of Corr. Servs.

304 Neb. 287

934 N.W.2d 169

Rev. Stephen C. GRIFFITH and Senator Ernie Chambers, appellants,

v.NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES et al., appellees.

No. S-18-569.

Supreme Court of Nebraska.

Filed October 18, 2019

Amy A. Miller, of American Civil Liberties Union of Nebraska, Christopher L. Eickholt, of Eickholt Law, L.L.C., and David Litterine-Kaufman, Rene Kathawala, and Suzette J. Barnes, of Orrick, Herrington & Sutcliffe, L.L.P., for appellants.

Douglas J. Peterson, Attorney General, and Ryan S. Post, Lincoln, for appellees.

Heavican, C.J., Miller -Lerman, Cassel, Stacy, Funke, and Papik, JJ., and Arterburn, Judge.

Papik, J. Two Nebraska citizens brought this action alleging that the Nebraska Department of Correctional Services (DCS) did not comply with statutory and constitutional requirements when, in January 2017, it adopted an "Execution Protocol," a regulation setting forth how death sentences are to be carried out. The plaintiffs, proceeding under Neb. Rev. Stat. § 84-911 (Reissue 2014), asked that the Execution Protocol be declared void and that DCS and other defendants be enjoined from carrying out executions under the Execution Protocol. The district court, however, found that the plaintiffs lacked standing to bring the action and dismissed it without reaching the merits.

On appeal, we reach the same conclusion as the district court. The plaintiffs do not face death sentences, and thus the Execution Protocol does not impair or threaten to interfere with their legal rights. And while we have recognized, under our common law of standing, some exceptions to the requirement that a plaintiff show a concrete injury to his or her legal rights in order to invoke a court’s jurisdiction, we find that those exceptions do not apply in an action brought under § 84-911. Accordingly, we affirm the district court’s dismissal.

BACKGROUND

Adoption of Execution Protocol.

Plaintiffs are Rev. Stephen C. Griffith and Senator Ernie Chambers (hereinafter collectively Plaintiffs). Griffith is a retired minister. Chambers is a member of the Nebraska State Legislature. Both are Nebraska citizens.

Plaintiffs' allegations in this case center on DCS' adoption of an Execution Protocol. After the 2016 general election in which Nebraska voters, via referendum, repealed a 2015 law that abolished the death penalty, DCS sought to make revisions to its Execution Protocol. The Execution Protocol is a regulation that sets forth the process to be followed when carrying out a death sentence. Generally, the Execution Protocol provides for how drugs for lethal injection procedures shall be obtained, verified, and maintained; notification requirements; and the process for carrying out executions. 69 Neb. Admin. Code, ch. 11 (2017).

Plaintiffs allege that after DCS announced that it was considering revisions to the Execution Protocol and would be holding a public hearing on the proposed revisions, Griffith requested information regarding the proposed revisions from DCS. Plaintiffs admit that DCS gave Griffith a draft regulation, but they contend that he was also entitled to a fiscal impact statement and "working copies" of the proposed revisions under Neb. Rev. Stat. § 84-907(2) (Reissue 2014) and that DCS did not give him these materials.

Both Griffith and Chambers later testified at the public hearing on the proposed revisions to the Execution Protocol. They assert, however, that they were unable to provide fully informed testimony, because Griffith was not given access to all the materials to which he was entitled under § 84-907.

Following the public hearing, DCS adopted the Execution Protocol.

Plaintiffs' Lawsuit.

Plaintiffs filed this lawsuit against DCS and the following individuals in their official capacities: Gov. John Peter Ricketts, Attorney General Doug Peterson, and DCS director Scott Frakes (hereinafter collectively Defendants). In the lawsuit, Plaintiffs contended that the Execution Protocol should be declared invalid for two reasons.

First, Plaintiffs contended that because Griffith was not given access to all the materials to which he was entitled under § 84-907, the Execution Protocol was adopted without compliance with statutory procedures. Second, and alternatively, Plaintiffs alleged that if "[DCS] did not prepare any drafts or revisions of the ... Execution Protocol and did not consult with anyone regarding the [Execution] Protocol," the adoption of the Execution Protocol violated the due process clause of the Nebraska State Constitution.

Plaintiffs requested a declaration that the Execution Protocol was void. They also asked that Defendants be enjoined from carrying out any executions until a new Execution Protocol was adopted.

District Court’s Dismissal.

Defendants moved to dismiss on the grounds that the district court lacked subject matter jurisdiction and that Plaintiffs failed to state a claim upon which relief can be granted. After a hearing, the district court granted Defendants' motion to dismiss.

In a written order, the district court found that Plaintiffs lacked standing to pursue the action. The district court found that because the Execution Protocol did not affect Plaintiffs' rights, they did not have traditional common-law standing to challenge the validity of the regulation. The district court also found that Plaintiffs did not fall within any of the exceptions to the traditional common-law standing doctrine. It therefore dismissed Plaintiffs' complaint for lack of subject matter jurisdiction.

Plaintiffs appealed, and we granted their petition to bypass the Nebraska Court of Appeals.

ASSIGNMENTS OF ERROR

Plaintiffs assign multiple errors on appeal, but they can effectively be condensed into one: that the district court erred in finding that they did not have standing.

STANDARD OF REVIEW

Standing is a jurisdictional component of a party’s case, because only a party who has standing may invoke the jurisdiction of a court; determination of a jurisdictional issue which does not involve a factual dispute is a matter of law which requires an appellate court to reach its conclusions independent from those of a trial court. Ritchhart v. Daub , 256 Neb. 801, 594 N.W.2d 288 (1999).

Statutory interpretation is a question of law, which an appellate court resolves independently of the trial court. DeLima v. Tsevi , 301 Neb. 933, 921 N.W.2d 89 (2018).

ANALYSIS

General Principles Regarding Doctrine of Standing.

The district court dismissed Plaintiffs' lawsuit on the ground that they lacked standing. Before turning to Plaintiffs' contentions that this decision was incorrect, we pause to review some basics regarding the doctrine of standing.

A party must have standing before a court can exercise jurisdiction, and either a party or the court can raise a question of standing at any time during the proceeding. Central Neb. Pub. Power Dist. v. North Platte NRD , 280 Neb. 533, 788 N.W.2d 252 (2010). Standing relates to a court’s power to address the issues presented and serves to identify those disputes which are appropriately resolved through the judicial process. See Ritchhart v. Daub, supra . The focus of the standing inquiry is not on whether the claim the plaintiff advances has merit; it is on whether the plaintiff is the proper party to assert the claim. See Heiden v. Norris , 300 Neb. 171, 912 N.W.2d 758 (2018). Indeed, in considering standing, the legal and factual validity of the claim presented must be assumed. Id.

While the U.S. Constitution limits the jurisdiction of federal courts to certain "[c]ases" and "[c]ontroversies," U.S. Const. art. III, § 2, and federal courts have interpreted that language to impose standing requirements for the exercise of federal court jurisdiction, see, e.g., West v. Lynch , 845 F.3d 1228 (D.C. Cir. 2017), the Nebraska Constitution does not contain an analogous provision, see Mullendore v. Nuernberger , 230 Neb. 921, 434 N.W.2d 511 (1989). As we will discuss in more detail below, in some cases, the Legislature provides by statute who has standing to pursue relief. See Schauer v. Grooms , 280 Neb. 426, 786 N.W.2d 909 (2010). In other cases, we rely on common-law standards to determine whether a plaintiff has standing. See Metropolitan Utilities Dist. v. Twin Platte NRD , 250 Neb. 442, 550 N.W.2d 907 (1996) (concluding Legislature did not supplant common-law standing doctrine by statute). Our common-law standing doctrine, like other doctrines of justiciability, arises "out of prudential considerations of the proper role of the judiciary in democratic government." Nebraska Coalition for Ed. Equity v. Heineman , 273 Neb. 531, 546, 731 N.W.2d 164, 176 (2007).

Our common-law standing inquiry generally focuses on whether the party bringing suit has suffered or will suffer an injury in fact. See, e.g., Central Neb. Pub. Power Dist. v. North Platte NRD, supra . We have said that such an injury must be "concrete in both a qualitative and temporal sense" and that it must be "distinct and palpable, as opposed to merely abstract." Id. at 542, 788 N.W.2d at 260. We have also phrased the standing inquiry as whether the plaintiff demonstrated a "direct injury" as a result of the action or anticipated action of the defendant and emphasized that it is generally insufficient for a plaintiff to have "merely a general interest common to all members of the public." Ritchhart v. Daub , 256 Neb. 801, 806, 594 N.W.2d 288, 292 (1999). Accordingly, in order to have standing to bring suit to restrain an act of a municipal body, the persons seeking such action must usually show some injury peculiar to themselves. See State ex rel. Reed v. State , 278 Neb. 564, 773 N.W.2d 349 (2009).

Does § 84-911 Confer Standing for "Procedural" Injuries?

Plaintiffs brought this action under § 84-911 and contend that they have standing thereunder. Section 84-911, a provision within Nebraska’s Administrative Procedure Act, provides as follows:

(1) The validity of any rule or regulation may be determined upon a petition for a declaratory

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