Summary Judgment: Appeal and Error. In
reviewing a summary judgment, an appellate court views the
evidence in the light most favorable to the party against
whom the judgment was granted, and gives that party the
benefit of all reasonable inferences deducible from the
Attorney Fees: Appeal and Error. When
attorney fees are authorized, the trial court exercises its
discretion in setting the amount of the fee, which ruling an
appellate court will not disturb on appeal unless the court
abused its discretion.
Summary Judgment. In the summary judgment
context, a fact is material only if it would affect the
outcome of the case.
Justiciable Issues. A justiciable issue
requires a present, substantial controversy between parties
having adverse legal interests susceptible to immediate
resolution and capable of present judicial enforcement.
Courts: Justiciable Issues. A court decides
real controversies and determines rights actually
controverted, and does not address or dispose of abstract
questions or issues that might arise in a hypothetical or
fictitious situation or setting.
Justiciable Issues: Standing. Standing is a
key function in determining whether a justiciable controversy
Standing: Jurisdiction. Standing requires
that a litigant have such a personal stake in the outcome of
a controversy as to warrant invocation of a court's
jurisdiction and justify the exercise of the court's
remedial powers on the litigant's behalf.
Actions: Justiciable Issues: Standing. The
ripeness doctrine is rooted in the same general policies of
justiciability as standing and mootness. As compared to
standing, ripeness assumes that an asserted injury is [296
Neb. 263] sufficient to support standing, but asks whether
the injury is too contingent or remote to support present
Actions: Jurisdiction. An appellate court
uses a two-part inquiry to determine ripeness: (1) the
jurisdictional question of the fitness of the issues for
judicial decision and (2) the prudential question concerning
the hardship to the parties of withholding court
Declaratory Judgments. The function of a
declaratory judgment is to determine justiciable
controversies which either are not yet ripe for adjudication
by conventional forms of remedy or, for other reasons, are
not conveniently amenable to the usual remedies.
Equal Protection: Discrimination. The injury
in an equal protection case is the imposition of a barrier
that makes it more difficult for members of one group to
obtain a benefit, rather than the ultimate inability to
obtain the benefit.
Discrimination. When the government erects a
barrier that makes it more difficult for members of one group
to obtain a benefit than it is for members of another group,
a member of the former group seeking to challenge the barrier
need only demonstrate that he or she is ready and able to
perform and that a discriminatory policy prevents him or her
from doing so on an equal basis.
Discrimination: Standing. For those persons
who are personally subject to discriminatory treatment,
stigmatizing injury caused by discrimination is a serious
noneconomic injury that is sufficient to support standing.
Standing. Standing does not require
exercises in futility.
Actions: Moot Question. An action becomes
moot when the issues initially presented in the proceedings
no longer exist or the parties lack a legally cognizable
interest in the outcome of the action.
Discrimination: Declaratory Judgments: Injunction:
Proof. If a discriminatory policy is openly
declared, then it is unnecessary for a plaintiff to
demonstrate it is followed in order to obtain injunctive or
Actions: Moot Question. A defendant cannot
automatically moot a case simply by ending its unlawful
conduct once sued.
Actions: Moot Question: Proof. A defendant
claiming that its voluntary compliance moots a case bears the
formidable burden of showing that it is absolutely clear the
allegedly wrongful behavior could not reasonably be expected
Appeal and Error. A court's
consideration of a cause on appeal is limited to errors
assigned and discussed.
Attorney Fees: Appeal and Error. On appeal,
a trial court's decision awarding or denying attorney
fees will be upheld absent an abuse of discretion.
Neb. 264] Appeal from the District Court for Lancaster
County: John A. Colborn, Judge. Affirmed.
Douglas J. Peterson, Attorney General, James D. Smith, Ryan
S. Post, and Jessica M. Forch for appellants.
Miller, of ACLU Nebraska Foundation, Inc., Leslie Cooper, of
ACLU Foundation, Inc., and Garrard R. Beeney and W. Rudolph
Kleysteuber, of Sullivan & Cromwell, L.L.P, for
McEwen and Sarah Helvey, of Nebraska Appleseed Center for Law
in the Public Interest, for amicus curiae Nebraska Appleseed
Center for Law in the Public Interest.
S. Volchok and Kevin M. Lamb, of Wilmer, Cutler, Pickering,
Hale & Dorr, L.L.P, and Robert F. Bartle, of Bartle &
Geier Law Firm, for amici curiae Child Welfare League of
America et al.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch,
and Funke, JJ.
NATURE OF CASE
plaintiffs, three same-sex couples, sought, pursuant to 42
U.S.C. § 1983 (2012), to enjoin the defendants, Dave
Heineman, the former Governor of the State of Nebraska; Kerry
Winterer, in his official capacity as the chief executive
officer of the Department of Health and Human Services
(DHHS); and Thomas Pristow, in his official capacity as the
director of the Division of Children and Family Services,
from enforcing a 1995 administrative memorandum and from
restricting gay and lesbian individuals and couples from
being considered or selected as foster or adoptive parents.
The court ordered the memorandum rescinded and stricken and
enjoined the defendants and those acting in concert with them
from enforcing the memorandum and/or applying a categorical
ban [296 Neb. 265] to gay and lesbian individuals and couples
seeking to be licensed as foster care parents or to adopt a
state ward. The court further ordered the defendants and
those acting in concert to "refrain from adopting or
applying policies, procedures, or review processes that treat
gay and lesbian individuals and couples differently from
similarly situated heterosexual individuals and couples when
evaluating foster care or adoption applicants under the
'best interests of the child' standard set forth in
DHHS' regulations." The court awarded the plaintiffs
costs and attorney fees.
defendants appeal. They do not assert that it is
constitutional to discriminate on the basis of sexual
orientation in the licensing or placement of state wards in
foster care. Instead, the defendants argue that the
plaintiffs lack standing because they have not yet applied
for and been rejected in obtaining a foster care license or
in having a state ward placed in their homes. Alternatively,
the defendants argue that there was no case and controversy,
because the memorandum that was the focus of the
plaintiffs' complaint ceased to be the policy of DHHS by
the time this lawsuit was filed, despite the fact that the
memorandum was never rescinded and it remained on the DHHS
website. Finally, the defendants claim that the
plaintiffs' lawsuit became moot when the policy
memorandum was removed from the DHHS website 3 weeks after
the plaintiffs' motion for summary judgment was filed.
Complaint The complaint, filed on August 27, 2013, centered
on an administrative memorandum (Memo 1-95) issued in 1995 by
the then Department of Social Services, which subsequently
became DHHS in 1996. Memo 1-95 was written by the director of
the department and states in relevant part:
It is my decision that effective immediately, it is the
policy of the Department of Social Services that children
will not be placed in the homes of persons who identify [296
Neb. 266] themselves as homosexuals. This policy also applies
to the area of foster home licensure in that, effective
immediately, no foster home license shall be issued to
persons who identify themselves as homosexuals.
similar policy was set forth in Memo 1-95 regarding unmarried
heterosexual couples. An addendum to Memo 1-95 directed staff
not to specifically ask about an individual's sexual
orientation or marital status beyond those inquiries already
included in the licensing application and home study. The
stated reason for the policy was this State's intent to
place children in the most "family-like setting"
when out-of-home care is necessary. Though Memo 1-95 and the
addendum stated that staff would be drafting a proposed
program and licensing regulation to be brought before a
public hearing in a more formal manner, such proceedings
apparently never occurred.
plaintiffs' complaint alleged that Memo 1-95 was still
"in effect" as of April 1, 2013. It was not
disputed by the defendants that Memo 1-95 had not been
"rescinded or replaced."
complaint alleged that Memo 1-95 set forth a policy
prohibiting the Department of Social Services, now DHHS, from
issuing foster home licenses to or placing foster children
with persons who identify themselves as homosexuals or
unrelated, unmarried adults living together. The plaintiffs
alleged that this policy also effectively banned homosexuals
from adopting children from state custody, because
individuals may adopt children from state care only if they
have first been licensed as foster parents.
plaintiffs consist of three homosexual couples who alleged in
the complaint that they are able and ready to apply to be
foster parents and would do so but for the policy stated in
couple, Greg Stewart and Stillman Stewart, further alleged
that they were married in 2008 in California. They alleged
they had contacted DHHS in October 2012 to inquire about
obtaining a foster home license. Greg and Stillman [296 Neb.
267] alleged they were told by a DHHS representative that
they could not obtain a license because same-sex couples are
barred from becoming licensed under DHHS policy.
couple, Todd Vesely (Todd) and Joel Busch (Joel), alleged
that they "began the process of applying" to become
foster parents in July 2008. They completed training, a home
study, and submitted to background checks. But, in 2010, Todd
Reckling, the director of DHHS' Division of Children and
Family Services at that time, informed Todd and Joel that it
was DHHS' policy to bar licensing unrelated adults living
together. In their answer, the defendants admitted that
Reckling informed this couple of Memo 1-95.
plaintiffs generally alleged that the policy expressed in
Memo 1-95 violated equal protection and due process under the
state and federal Constitutions and violated 42 U.S.C. §
1983 of the Civil Rights Act. They alleged that prospective
foster and adoptive parents were being subjected to
differential treatment on the basis of their sexual
orientation, and they asserted that sexual orientation
constituted a suspect class. The plaintiffs asserted that
there was no compelling interest, or even a rational basis,
justifying such disparate treatment. The plaintiffs asserted
that the policy found in Memo 1-95 impermissibly burdened
their personal liberty and privacy rights to enter into and
maintain intimate personal relationships within their own
plaintiffs asserted that they had no adequate remedy at law
to redress these wrongs, which were of a continuing nature
and would cause irreparable harm. They prayed for a
declaration that the policy stated in Memo 1-95 is
unconstitutional, void, and unenforceable, and an order
enjoining the defendants from enforcing Memo 1-95.
addition, the plaintiffs asked for an order "directing
Defendants to evaluate applications of gay and lesbian
individuals and couples seeking to serve as foster or
adoptive parents consistently with the evaluation process
applied to applicants that are not categorically
Neb. 268] Finally, the plaintiffs asked for attorney fees and
further relief as the court deemed proper.
defendants alleged as affirmative defenses that the
plaintiffs had failed to state a cause of action and that the
defendants had not violated any of the plaintiffs'
constitutional, civil, or statutory rights. The defendants
did not affirmatively allege that Memo 1-95 was no longer in
effect or enforced.
defendants moved to dismiss on the grounds that on the face
of the complaint, the plaintiffs lacked standing and stated
no claim upon which relief could be granted. The court
overruled the motion to dismiss.
issue of standing, the court relied upon Gratz v.
Bollinger for the proposition that the injury in
fact in an equal protection case is the denial of equal
treatment resulting from the imposition of a barrier, not the
ultimate inability to obtain the benefit. Under
Gratz, the plaintiffs need only show they are
"'able and ready'" to apply for a benefit
should the discriminatory policy that prevents them from
doing so be removed.The court concluded that because the
plaintiffs alleged they were able and ready to apply for
foster care licenses, their complaint sufficiently alleged
issue of failure to state a claim, the court first observed
that nothing in Nebraska law sets forth a policy prohibiting
homosexuals or unmarried couples from fostering or
adopting. It then concluded that the allegations of
disparate treatment were sufficient to state causes of action
under equal protection and due process.
December 11, 2014, the defendants moved for summary judgment.
On January 27, 2015, the plaintiffs filed [296 Neb. 269] a
cross-motion for summary judgment. On October 16, the
plaintiffs moved for attorney fees. The court's orders on
these motions are the subject of the current appeal.
Evidence at Summary Judgment Hearing
support of their motion for summary judgment, the plaintiffs
submitted affidavits in which they generally confirmed the
truth of their factual allegations made in the complaint. The
plaintiffs expressed their desire to serve as foster parents
and "be subject to the same approval process that is
applied to heterosexuals and not be subject to any
discriminatory approval process based on our sexual
orientation.'' Greg and Stillman clarified they no
longer live in Nebraska, but that they still wish to adopt a
Nebraska child out of foster care. Numerous exhibits,
including the transcripts of the depositions of several DHHS
employees, were also entered into evidence.
was the director of the Division of Children and Family
Services of DHHS when Todd and Joel were communicating with
DHHS about the then almost 2-year delay in making any
licensing or placement decision since Todd and Joel had
completed all the necessary training and background checks. A
letter written in June 2010, by Reckling to Todd and Joel,
was entered into evidence.
wrote to Todd and Joel that DHHS policy "allows for an
exception" which would have to be made in order for
either one of them to foster a child, given that they are two
unmarried individuals living together. Reckling gave no
indication that such an exception would be made in their
case. Even if such an exception were made, Reckling
explained, a child could not be placed jointly with or
adopted jointly by Todd and Joel. Reckling explained that
'"second parent adoptions'" were not
permitted by a second person who is not married to the first
and that Todd and Joel could not marry, because the [296 Neb.
270] Nebraska Constitution states that only marriage between
a man and a woman shall be recognized in Nebraska.
and Joel were subsequently in contact with Winterer, who has
been the chief executive officer of DHHS since July 2009.
Winterer sent a letter to Todd and Joel's attorney in
November 2011, which was also entered into evidence. By that
time, Todd and Joel had waited over 3 years to foster a
child. In the letter, Winterer repeatedly cited to Memo 1-95.
Winterer explicitly stated that "Policy Memorandum #
1-95 is still in force.''
his deposition taken in July 2014, Winterer deferred to
Pristow, the director of the Division of Children and Family
Services for DHHS at that time, regarding the precise details
of the then-current policy and the reasons for it. He noted
that Pristow's practice permitted placement with
homosexual applicants as long as their placement was approved
by Pristow in his capacity as director.
testified that he could imagine no reason for this extra
layer of review and approval except to ensure there was no
bias against persons who identify themselves as homosexual.
However, he also noted that because the Nebraska Constitution
does not recognize marriage between two persons of the same
gender, homosexual couples who have married in another state
would be considered as cohabitating, unrelated adults.
Winterer then elaborated that there are "stability"
concerns in placing children with cohabitating, unrelated
adults. Winterer stated that the current regulations do not
allow for both adults in a cohabitating, unmarried
relationship to hold a joint license and that there can only
be one license issued per address.
testified he did not believe identifying as homosexual was
relevant to that person's qualification as a foster or
adoptive parent, but that he could envision sexual
orientation being a factor in the best interests analysis, in
the event [296 Neb. 271] it could cause a problem with the
relationship between the biological parent and the foster
stated that Memo 1-95 was "modified by practice and ...
the policy of the current director." Winterer thought
that Memo 1-95 was still used in DHHS training materials.
Nevertheless, he believed new employees were "informed
about what the current practice is and the current process in
terms of dealing with applicants." He was "assuming
that [the new practice] has been communicated to [the
caseworkers and supervisors in the service areas] through one
means or another." He testified that there was no
documentation of any new policy or practice.
regard to the failure to formally rescind Memo 1-95. Winterer
said, "I think our attitude would be it's probably
unnecessary because policy evolves and is the expression of
practice and policy of the director, who is in charge of
making policy for the division under which this falls."
He also thought it was "probably unnecessary" to
rescind Memo 1-95, which "goes back 20 years and was
issued by a director of a[n] agency that no longer
exists." He did not specifically discuss any possible
distinction between "policy" and
Winterer explained that there "may be, shall we say,
some . . . implications" in formally rescinding Memo
1-95. Winterer stated that rescinding Memo 1-95 "could
draw attention on the part of certain individuals in the
state of Nebraska to . . . the issue of gay marriage and some
other . . . sensitive issues" and that it could increase
scrutiny and "complicate our going about doing our
business." He elaborated that he was concerned formal
rescission of Memo 1-95 could result in elected officials
taking actions that would make it difficult for DHHS to place
children with homosexual applicants.
March 2012, Pristow took over Reckling's position of
director of the Division of Children and Family Services for
[296 Neb. 272] DHHS, and remained in that position at the
time his deposition was taken in September 2014. In his
deposition, Pristow indicated that it was his
"understanding" that the same licensing
restrictions existed for single, cohabitating, unmarried,
married, heterosexual, or homosexual applicants, even before
he adopted any policies or procedures with regard to
homosexual applicants. He was speaking in terms of a single
license, however, and not the ability to obtain a joint
license. An email from 2012 indicates that legal advisors
before Pristow's tenure had opined that Memo 1-95 could
not be enforced as to licensing, because the regulations
concerning licensing are silent on the sexual orientation of
licensing is different than placement. While a child
generally cannot be placed in a nonlicensed home, having a
person licensed in a home does not mean a child will be
in the summer of 2012, Pristow verbally instructed his
service area administrators and his deputy director that
homosexual applicants could be considered for foster or
adoptive placements. Pristow did not specifically address
whether this was a change in "policy" versus a
change in "practice, " though most of the questions
and answers referred to "policy."
placement protocol, hereinafter referred to as the
"Pristow Procedure, " set forth different
procedures for homosexual applicants than for heterosexual
applicants. When a caseworker recommends a placement in the
home of a married, heterosexual couple, that placement is
effective if the caseworker's supervisor agrees with the
recommendation. But, under the Pristow Procedure, as
described by Pristow, if the caseworker recommends a
placement in the home of a homosexual couple or individual,
then the placement recommendation can only take effect after
being approved by the caseworker's supervisor, the
service area administrator, and, finally, Pristow himself.
Other DHHS employees clarified that as to homosexual
applicants under the Pristow Procedure there are actually
five layers of placement review: the caseworker, [296 Neb.
273] the caseworker's supervisor, the administrator, the
service area administrator, and then the director (Pristow).
to Pristow, the protocol for an unmarried heterosexual adult
living with another adult-or for a married, heterosexual
felon-would require only three levels of approval: the
caseworker's, the caseworker's supervisor, and the
service area administrator's approval to effect the
placement recommendation. Other DHHS employees clarified that
this would be four levels of approval, as it would include
the administrator. Such applicants would not require
explained that there was no category of applicants, other
than homosexuals, that required Pristow's personal
approval before a caseworker's placement recommendation
could be implemented. And Pristow clarified that he did not
review denials of placement with homosexual applicants. He
only reviewed recommendations for placement.
testified that there was no reason, with respect to child
welfare, that a person who identifies as homosexual, or that
unmarried persons living together, should be treated
differently than heterosexual, married persons in the
licensing or placement of a child in a foster or adoptive
home. He said that in his 20 years of experience in children
and family services, "gay and lesbian foster parents do
just as good on - if not better than regular foster parents,
everything being equal." Pristow agreed that there was a
consensus in the scientific literature that the outcome for
children was not adversely affected by being raised by
homosexual persons, and he said that he had no reason to
doubt that consensus.
explained that Nebraska was a conservative state with a
constitutional amendment banning gay marriage. He
"take[s] that into account when [he] make[s] these
type[s] of placements." When asked how he takes that
into account, Pristow explained, "I make it my decision
and not the field's."
explained that when reviewing placement recommendations with
homosexual applicants, he did not consider the sexual
orientation of the recommended foster or adoptive [296 Neb.
274] parent in making his decision. The applicant's
sexual orientation was only relevant insofar as it was the
triggering factor of the extra layer of review.
Pristow also indicated that Nebraska's laws and the
constitutional amendment regarding homosexual couples were
somehow taken into account in his decisonmaking:
I do work for the State, and I am supportive of its laws and
its amendments to the constitution. And I take that in
balance when I, you know, make those type[s] of decisions
about placing children in gay and lesbian foster homes. . . .
. . . [T]his is a conservative state, and I'm cognizant
of that, and I want to make sure that I - that my process is
- has foundation, and that, again, it reflects what the best
interest of that child is ... .
however, denied that he took a "harder look" at
placements with homosexual applicants. And he stated that he
had no reason to doubt the competency of caseworkers and
their supervisors in making best interests decisions. He
explained that it is just "a process so that I can take
on the responsibility of making that decision from the field
so that these placements can be made in accordance with the
best interests of the child."
acknowledged that, as of the time of the deposition in
September 2014, Memo 1-95 was still on DHHS' website and
that there was nothing in writing on the website or elsewhere
disavowing the policies stated in Memo 1-95. To the contrary,
it was his understanding that Memo 1-95 was included in the
packet of administrative memorandums that was given to new
trainees as they enter into the system.
was there anything in writing, to his knowledge, reflecting
the Pristow Procedure. But Pristow said that, as new trainees
go out into the field, they are supposed to be told of it.
Pristow was unsure exactly how thoroughly this was done. He
[296 Neb. 275] As the new trainee goes out to the field,
either through a mentoring protocol that we have or through
[his or her] new supervisor, there is - they are - they begin
to learn the practice of how we do child welfare in Nebraska.
And as this would come up or when it does come up, they are
told of the protocol that I put - the policy that I put in
... I can't speak to whether [a caseworker, when
approached for the first time by a homosexual applicant]
would know [Memo 1-95 is no longer the current practice] . My
instructions were to the service area administrators when I
gave my verbal policy out, and my direction was to make sure
that it was disseminated throughout the field.
agreed that there "might be some confusion" for new
employees as to whether Memo 1-95 is still DHHS' policy
and practice, but he believed "the field is very
competent, very competent in making sure that information is
disseminated and that we look out for the best interests of
the child and we find the best ...