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Griffith v. Nebraska Department of Correctional Services

Supreme Court of Nebraska

October 18, 2019

Rev. Stephen C. Griffith and Senator Ernie Chambers, appellants,
v.
Nebraska Department of Correctional Services et al., appellees.

         1. Standing: Jurisdiction: Judgments: Appeal and Error. 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.

         2. Statutes: Appeal and Error. Statutory interpretation is a question of law, which an appellate court resolves independently of the trial court.

         3. Standing: Jurisdiction. 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.

         4. Standing. 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.

          Appeal from the District Court for Lancaster County: Lori A. Maret, Judge.

          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 for appellees.

         [304 Neb. 288] 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 [304 Neb. 289] 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 ...


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