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Pettit v. Nebraska Department of Correctional Services

Supreme Court of Nebraska

August 7, 2015


Page 554

Appeal from the District Court for Lancaster County: STEVEND. BURNS, Judge.


1. Declaratory Judgments. An action for declaratory judgment is sui generis; whether such action is to be treated as one at law or one in equity is to be determined by the nature of the dispute.

2. Statutes. Statutory interpretation presents a question of law.

3. Judgments: Appeal and Error. When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court.

4. Declaratory Judgments: Appeal and Error. In a declaratory judgment action treated as an action at law, an appellate court does not disturb factual determinations unless they are clearly wrong.

5. Prisoners: Records: Good Cause: Appeal and Error. Whether a person seeking access to an inmate's institutional file under Neb. Rev. Stat. § 83-178 (Reissue 2014) shows good cause is a mixed question of law and fact. What the parties show presents questions of fact, which an appellate court reviews for clear error. Whether the showing establishes good cause is a question of law, and an appellate court reviews questions of law independently. Where the facts are undisputed, the entire question becomes one of law.

6. Statutes: Legislature: Intent: Appeal and Error. Statutory language is to be given its plain and ordinary meaning, and an appellate court's duty in discerning the meaning of a statute is to determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense.

7. Statutes: Actions: Legislature: Intent. Whether a statute creates a private right of action depends on the statute's purpose and whether the Legislature intended to create a private right of action.

8. Prisoners: Records: Good Cause: Legislature: Intent: Words and Phrases. For purposes of Neb. Rev. Stat. § 83-178(2) (Reissue 2014), " good cause" means a logical or legally sufficient reason in light of all of the surrounding facts and circumstances and in view of the very narrow access intended by the Legislature.

Jon Bruning, Attorney General, and James D. Smith for appellants.

Robert B. Creager, of Anderson, Creager & Wittstruck, P.C., L.L.O., for appellee.



Page 555

[291 Neb. 514] Cassel, J.


The district court determined that Mark Pettit showed " good cause" [1] for public inspection and reproduction of an executed inmate's drawings placed by the Nebraska Department of Correctional Services (DCS) in the inmate's institutional file. DCS and Frank Hopkins appeal. We first settle the standard of appellate review, reviewing the factual findings for clear error and the existence of good cause as a question of law. We then examine the entire statute, recognizing its emphasis of confidentiality rather than openness. Finally, we define the phrase in view of the entire statute. We conclude that the undisputed facts present a question of law and that Pettit failed to demonstrate a legally sufficient reason for inspection of the drawings.


Pettit, a former anchorman and investigative reporter for an Omaha, Nebraska, television station, reported on the murders [291 Neb. 515] committed by John Joubert of two children in 1983 in Sarpy County, Nebraska. Joubert pled guilty to two counts of first degree murder and was sentenced to death. The State ultimately executed him.

While Joubert was on death row, Pettit interviewed him a number of times. Pettit was then in the process of writing a book in order to have a historical record about the Joubert case. During the interviews,

Page 556

Joubert confessed to a string of violent crimes and admitted that he continued to have fantasies about murdering children. Joubert told Pettit that he illustrated those fantasies in two graphic drawings that had been confiscated as contraband by authorities with DCS. The drawings were placed in Joubert's institutional file maintained by DCS under § 83-178.

Before Joubert was executed, Pettit attempted to gain access to the drawings. In 1988, Joubert handed Pettit a letter that he had written to the prison warden authorizing the release of the drawings to Pettit for analysis by a mental health professional. The body of the letter stated:

Please release to . . . Pettit of KMTV, Channel 3, the two drawings which were confiscated from my cell on 05 May 87. He intends to take them to a psychiatrist for analysis. At this time there is no agreement for them to be used in the book ...

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