State of Nebraska ex rel. Douglas J. Peterson. Attorney General, and Scott Frakes, director of the Nebraska Department of Correctional Services, appellees,
Senator Laura Ebke, chairperson of the judiciary committee of the Nebraska Legislature, et al., appellants.
Moot Question: Jurisdiction: Appeal and
Error. Because mootness is a justiciability doctrine
that operates to prevent courts from exercising jurisdiction,
appellate courts review mootness determinations under the
same standard of review as other jurisdictional questions.
Judgments: Jurisdiction: Appeal and Error. A
jurisdictional question that does not involve a factual
dispute is determined by an appellate court as a matter of
law, which requires the appellate court to reach a conclusion
independent of the lower court's decision.
Jurisdiction. An actual case or controversy
is necessary for the exercise of judicial power.
Courts: Judgments. In the absence of an
actual case or controversy requiring judicial resolution, it
is not the function of the courts to render a judgment that
is merely advisory.
Moot Question. Mootness refers to events
occurring after the filing of a suit which eradicate the
requisite personal interest in the dispute's resolution
that existed at the beginning of the litigation.
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.
Moot Question: Words and Phrases. A moot
case is one which seeks to determine a question that no
longer rests upon existing facts or rights-i.e., a case in
which the issues presented are no longer alive.
Neb. 638] 8. Moot Question.
The central question in a mootness analysis is whether
changes in circumstances that prevailed at the beginning of
litigation have forestalled any occasion for meaningful
Legislature: Contracts: Time. The typical
understanding of state legislative bodies is that, with the
limited exception of valid contractual obligations with third
parties, pending matters die at the expiration of the
legislative body's 2-year term.
Legislature. Any current legislative body
represents the people who elected it and should have power
equal to its predecessor.
. The will of the past electorate should not control the
future electorate and its representatives.
Legislature: Time. The authority of a
legislature is limited to the period of its own existence.
Public Purpose: Statutes. An investigatory
committee, being the mere agency of the body which appointed
it, dies when the body itself dies, unless it is continued by
Legislature: Time. The general rule is that
the period of legislative existence is its 2-year term, and
committee investigations and attendant subpoenas
automatically expire upon the expiration of that term.
Legislature. The Nebraska Unicameral
Legislature, while unique because it is not a bicameral
system, is not a continuing body.
Constitutional Law: Legislature. The
Nebraska Constitution is not a grant, but, rather, is a
restriction on the legislative power in light of the
otherwise plenary power of the people of each state to do as
Legislature: Time. Because the Nebraska
Legislature is not a continuing body, a particular legislature's biennium period of
existence ceases at the end its biennium term.
Legislature: Time: Presumptions. Like other
pending matters, committee investigations and attendant
subpoenas are presumed to cease to exist at the end of the
term in which they commenced.
Legislature: Statutes: Time. There is no
applicable statute or legislative rule providing for the
continuing viability of pending subpoenas issued by an
investigatory committee of a prior biennium term.
Moot Question: Appeal and Error. Under
certain circumstances, an appellate court may entertain the
issues presented by a moot case when the claims presented
involve a matter of great public interest or when other
rights or liabilities may be affected by the case's
Moot Question: Words and Phrases. In
determining whether the public interest exception should be
invoked, the court considers the public or private nature of
the question presented, the desirability of an authoritative
adjudication for future guidance of public officials, and the
likelihood of future recurrence of the same or a similar
Neb. 639] Appeal from the District Court for Lancaster
County: Lori A. Maret, Judge.
William M. Connolly and Patrick R. Guinan, of Erickson &
Sederstrom, PC, for appellants.
Douglas J. Peterson, Attorney General, Ryan S. Post, James D.
Smith, and David A. Lopez for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
NATURE OF CASE
underlying action in this case involves resistance to an
investigatory subpoena issued during the 105th Legislature by
the Judiciary Committee of the Nebraska Legislature, with the
approval of the Executive Committee of the 105th Legislature.
The subpoena commanded the attendance of the director of the
Department of Correctional Services to testify at a scheduled
committee hearing. Before the scheduled hearing, the State of
Nebraska, represented by the Attorney General, and the
director of the Department of Correctional Services
(collectively the Department) sued the senators who were on
the Judiciary Committee and the Executive Board of the
Legislative Council at the time the subpoena was issued, as
well as the Clerk of the Legislature who signed the subpoena
(collectively the Senators). The Department alleged, among
other things, that the Legislature as a whole did not vote to
approve the investigation or the issuance of the subpoena;
thus, the subpoena was not in the discharge of any duty
imposed by the Legislative Council, by statute, or by a
resolution of the Legislature, as described by Neb. Rev.
Stat. § 50-401 (Reissue 2010). The Department filed an
action to quash the subpoena pursuant to Neb. Rev. Stat.
§ 50-406 (Cum. Supp. 2018), and also sought, as to the
Senators, declaratory judgment under the Uniform [303 Neb.
640] Declaratory Judgments Act and injunctive relief in relation
to various aspects of the procedure leading up to and
including the subpoena. Before the Senators filed an answer
to the complaint, the court granted the Department's
motion to quash the subpoena and denied the Senators'
motion to dismiss. The Senators appeal from the court's
order. The Department asserts that the appeal is moot because
the subpoena was "issued by a committee of a Legislature
which no longer exists." We agree and hold that there is
no longer a case and controversy as required for the exercise
of our judicial power. A determination of the underlying
merits of the dispute would be purely advisory.
Internal Complaint Under § 84-907.10
March 21, 2018, Senator Ernie Chambers filed a complaint
under Neb. Rev. Stat. § 84-907.10(1) (Reissue 2014) with
Senator Dan Watermeier, chairperson of the Executive Board of
the Legislative Council of the 105th Legislature.
Chambers' complaint questioned, among other things,
whether the Nebraska Department of Correctional Services
followed applicable state and federal laws in selecting the
substances for execution by lethal injection and in allegedly
withholding notices and public access to various documents,
in violation of Neb. Rev. Stat. §§ 84-906.01
(Reissue 2014) and 84-907(2) (Cum. Supp. 2018). The complaint
also alleged that the Department of Correctional
Services' protocol violated the prohibition against cruel
and unusual punishment found in the U.S. and Nebraska
Constitutions, because the paralytic agent of the four-drug
protocol served no valid purpose and would mask any signs of
the condemned prisoner's distress, pain, or suffering
during the execution.
Neb. 641] 2. Complaint Forwarded to Judiciary Committee
referred the internal complaint to Senator Laura Ebke, as
chairperson of the Judiciary Committee of the 105th
Legislature, pursuant to § 84-907.10(2), which requires
the chairperson or committee staff member of the Executive
Board to refer the complaint to "the standing committee
of the Legislature which has subject matter jurisdiction over
the issue involved in the rule or regulation or which has
traditionally handled the issue." Apparently, there was
no objection, as provided for by rule 6, § 2(a), of the
Rules of the 105th Nebraska Unicameral Legislature, Second
Session (2018), that the matter had been referred to the
Judiciary Committee of the 105th Legislature apparently chose
to forgo requesting a written response from the agency as
described in § 84-907.10(3). Instead, on April 9, 2018,
the Judiciary Committee elected, by majority vote, to conduct
a public hearing pursuant to § 50-406 and rule 3, §
1, of the Rules of the 105th Nebraska Unicameral Legislature,
and it sent a letter to the chairperson of the Executive
Board so stating. The investigation sought to address
concerns relating to the Department of Correctional
Services' rules and regulations outlining the protocol
for execution of the death penalty, codified at title 69,
chapter 11, of the Nebraska Administrative Code. The concerns
related to the process by which the protocol was adopted, its
constitutionality, and whether it is consistent with the
Legislature's intent when it passed 2009 Neb. Laws, L.B.
36. The hearing was scheduled for May 8.
50-406 provides in full:
In the discharge of any duty imposed by the Legislative
Council, by statute, or by a resolution of the Legislature,
the council, any committee thereof, and any standing or
special committee created by statute or resolution of the
Legislature may hold public hearings and may administer [303
Neb. 642] oaths, issue subpoenas when the committee has
received prior approval by a majority vote of the Executive
Board of the Legislative Council to issue subpoenas in
connection with the specific inquiry or investigation in
question, compel the attendance of witnesses and the
production of any papers, books, accounts, documents, and
testimony, and cause the depositions of witnesses to be taken
in the manner prescribed by law for taking depositions in
civil actions in the district court. The council or the
committee may require any state agency, political
subdivision, or person to provide information relevant to the
committee's work, and the state agency, political
subdivision, or person shall provide the information
requested within thirty days after the request except as
provided for in a subpoena. The statute or resolution
creating a committee may prescribe limitations on the
authority granted by this section.
Litigation to compel or quash compliance with authority
exercised pursuant to this section shall be advanced on the
trial docket and heard and decided by the court as quickly as
possible. Either party may appeal to the Court of Appeals
within ten days after a decision is rendered.
The district court of Lancaster County has jurisdiction over
all litigation arising under this section. In all such
litigation the executive board shall provide for legal
representation for the council or committee.
50-401 creates the Legislative Council, "which shall
consist of all of the members of the Legislature" and
shall have as its function "to consider legislative
policies between sessions of the Legislature and carry out
the duties imposed by section 50-402." Neb. Rev. Stat.
§ 50-402(8) (Reissue 2010), in turn, provides that it
shall be the duty of the Legislative Council to
set up subcommittees within the executive board to carry out
functions such as investigation of any area which it may
decide is in the public interest with power to employ [303
Neb. 643] such additional personnel as may be needed to carry
out the intent and activities of the executive board or the
§ 1, of the Rules of the 105th Nebraska Unicameral
Legislature, in part, described committee investigatory
(a) Each committee of the Legislature is authorized to hold
such hearings, to sit and act at such times and places
during the sessions, recesses, and adjourned periods of the
Legislature, to require by subpoena or otherwise the
attendance of such witnesses and the production of such
correspondence, books, papers, and documents, and to take
such testimony, as it deems advisable. Each committee may
make investigation into any matter within its jurisdiction,
may report such hearings as may be had by it, and may
present to the Legislature for its consideration any final
reports and recommendations for action resulting from such
(b)A committee's subject-matter jurisdiction extends to
all matters specified in the act creating the committee, or
to all matters reasonably comprehended in the name of the
committee. A committee's particular jurisdiction extends
to any bill, resolution, or other measure referred to it by
the Legislature, until final report of the measure has been
made by the committee to the Legislature. A committee's
particular jurisdiction shall also include review of the
budgets of agencies, boards, and commissions reasonably
encompassed in its subject-matter jurisdiction.
(c)No committee may exercise any of the above mentioned
powers in a manner contrary to the Rules of the Legislature
or in a manner which exceeds the scope of the act defining
the purpose of the committee.
§ 21, of the Rules of the 105th Nebraska Unicameral
Legislature described the subpoena powers of committees in
relation to such hearings:
It is within the inherent power of any legislative committee
to gather information pursuant to its regular [303 Neb. 644]
functions, and to conduct investigations of matters within
its subject-matter jurisdiction.
A committee's power of subpoena should not be exercised
unless the committee has determined that no other method of
securing the desired information would be successful or
practicable, and that the matter is of primary importance to
the welfare of the State of Nebraska.
A committee of the Legislature conducting an investigation
and gathering information, whether pursuant to legislative
direction or pursuant to its regular functions of oversight
and bill preparation, shall observe the following procedures
in addition to ...