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State ex rel. Peterson v. Ebke

Supreme Court of Nebraska

July 12, 2019

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.

         1. 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.

         2. 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.

         3. Jurisdiction. An actual case or controversy is necessary for the exercise of judicial power.

         4. 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.

         5. 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.

         6. 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.

         7. 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.

         [303 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 relief.

         9. 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.

         10. Legislature. Any current legislative body represents the people who elected it and should have power equal to its predecessor.

         11. __ . The will of the past electorate should not control the future electorate and its representatives.

         12. Legislature: Time. The authority of a legislature is limited to the period of its own existence.

         13. 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 law.

         14. 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.

         15. Legislature. The Nebraska Unicameral Legislature, while unique because it is not a bicameral system, is not a continuing body.

         16. 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 they will.

         17. 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.

         18. 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.

         19. 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.

         20. 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 determination.

         21. 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 problem.

          [303 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.

          PER CURIAM.

         I. NATURE OF CASE

         The 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[1] 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."[2] 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.


         1. Internal Complaint Under § 84-907.10

         On 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.

         [303 Neb. 641] 2. Complaint Forwarded to Judiciary Committee

         Watermeier 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 wrong committee.

         3. Public Hearing

         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.

         Section 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.

         Section 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 Legislature.

         Rule 3, § 1, of the Rules of the 105th Nebraska Unicameral Legislature, in part, described committee investigatory hearings:

(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 investigations.
(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.

         Rule 3, § 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 ...

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