Rev. Stephen C. Griffith and Senator Ernie Chambers, appellants,
Nebraska Department of Correctional Services et al., appellees.
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.
Statutes: Appeal and Error. Statutory
interpretation is a question of law, which an appellate court
resolves independently of the trial court.
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.
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
from the District Court for Lancaster County: Lori A. Maret,
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
Neb. 288] Heavican, C.J., Miller-Lerman, Cassel, Stacy,
Funke, and Papik, JJ., and Arterburn, Judge.
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.
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.
of Execution Protocol.
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.
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).
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.
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 §
the public hearing, DCS adopted the Execution Protocol.
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,