Nebuda v. Dodge Cty. Sch. Dist. 0062 ( 2015 )

Nebraska Advance Sheets
740 290 NEBRASKA REPORTS
Richard J. Nebuda et al., appellants, v.
Dodge County School District 0062
(Scribner-Snyder Community Schools)
in the State of Nebraska, appellee.
___ N.W.2d ___
Filed April 23, 2015. No. S-14-477.
1. Judgments: Appeal and Error. An appellate court independently reviews ques-
tions of law decided by a lower court.
2. Statutes. The meaning and interpretation of a statute presents a question of law.
3. Judgments: Justiciable Issues. A justiciability issue that does not involve a
factual dispute presents a question of law.
4. Moot Question: Jurisdiction: Appeal and Error. Although mootness does not
always preclude appellate jurisdiction, it is a justiciability doctrine that weighs
against rendering a decision that will no longer have an impact on a live dispute
between the parties.
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. Moot Question: Words and Phrases. A moot case is one which seeks to deter-
mine a question that no longer rests upon existing facts or rights—i.e., a case in
which the issues presented are no longer alive.
7. 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.
8. ____. A case is not moot if a court can fashion some meaningful form of relief,
even if that relief only partially redresses the prevailing party’s grievances.
9. Injunction: Intent. Injunctive relief is intended to prevent future harm and is not
available when the act complained of is already completed.
10. Moot Question: Injunction. A court’s inability to grant injunctive relief does not
necessarily render a claim for declaratory relief moot.
11. Declaratory Judgments: Justiciable Issues. A plaintiff’s interest in a declara-
tory judgment action must be more than the satisfaction of having a court declare
that the defendant’s conduct was wrong. The declaration must be relevant to a
live controversy or threat of harm.
12. Moot Question. A case becomes moot when the issues initially presented in
litigation cease to exist or the litigants lack a legally cognizable interest in the
litigation’s outcome.
13. ____. Unless an exception applies, a court or tribunal must dismiss a moot case
when changed circumstances have precluded it from providing any meaningful
relief because the litigants no longer have a legally cognizable interest in the
dispute’s resolution.
14. ____. Nebraska recognizes a public interest exception to the mootness doctrine.
15. Moot Question: Appeal and Error. Under the public interest exception to moot-
ness, an appellate court can review an otherwise moot case if it involves a matter
Nebraska Advance Sheets
NEBUDA v. DODGE CTY. SCH. DIST. 0062 741
Cite as 290 Neb. 740
affecting the public interest or when other rights or liabilities may be affected by
its determination.
16. ____: ____. When determining whether a case involves a matter of public inter-
est, an appellate court considers (1) the public or private nature of the question
presented, (2) the desirability of an authoritative adjudication for future guidance
of public officials, and (3) the likelihood of future recurrence of the same or a
similar problem.
17. ____: ____. A party’s strategic mistakes do not preclude an appellate court’s
review under the public interest exception to mootness when the issues on appeal
require a generic statutory analysis instead of a fact-specific inquiry unique to
the parties.
18. Statutes: Appeal and Error. Absent a statutory indication to the contrary, an
appellate court gives words in a statute their ordinary meaning.
19. Statutes: Legislature: Intent: Appeal and Error. An appellate court will not
look beyond a statute to determine the legislative intent when the words are plain,
direct, or unambiguous.
20. Bonds: Words and Phrases. Generally, a governmental entity’s issuing of
bonds refers to its offering and delivery of certificates of indebtedness for sale
in a market to raise money for improvements—not to executing an instrument of
indebtedness to a single lender.
21. Statutes: Judicial Construction: Legislature: Presumptions: Intent. When
judicial interpretation of a statute has not evoked a legislative amendment,
an appellate court presumes that the Legislature has acquiesced in the court’s
interpretation.
Appeal from the District Court for Dodge County: Geoffrey
C. Hall, Judge. Affirmed.
Jovan W. Lausterer, of Bromm, Lindahl, Freeman-Caddy &
Lausterer, for appellants.
James B. Gessford, Gregory H. Perry, and Derek A.
Aldridge, of Perry, Guthery, Haase & Gessford, P.C., L.L.O.,
for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Connolly, J.
SUMMARY
After the voters in the appellee school district rejected a
bond proposal to build an addition, the school district entered
into a lease-purchase agreement with Scribner Bank to finance
an addition. The appellants, residents and taxpayers in the
Nebraska Advance Sheets
742 290 NEBRASKA REPORTS
district, sought declaratory and injunctive relief. The taxpayers
contend that the agreement violates Neb. Rev. Stat. § 79-10,105
(Reissue 2012).
After a trial, the district court denied relief and dismissed
the taxpayers’ complaint. It concluded that under § 79-10,105,
we have upheld the use of lease-purchase agreements to
make school improvements without the voters’ approval if
the project is not funded by bonded debt. The court found
that the school district had not funded the project through
bonded indebtedness.
Because the addition has been completed, we address
the issues presented under the public interest exception to
the mootness doctrine. We conclude that a lease-purchase
agreement is not the issuance of a bond under § 79-10,105.
We affirm.
BACKGROUND
Dodge County School District 0062, Scribner-Snyder
Community Schools, is a Class III school district. At some
point in 2009, the State Fire Marshal declared that the high
school building had several safety concerns and code deficien-
cies. The marshal gave the district until January 2014 to make
corrections. The district’s superintendent worked with an archi-
tectural firm and construction manager to obtain cost estimates
for their work on improvements and then made recommenda-
tions to the board for a bond proposal.
In March 2012, the voters rejected a $7.5 million bond
proposal to construct additional classrooms and renovate the
existing building. Afterward, the district asked the construc-
tion company and architectural firm to modify its project. The
new plan called for adding an additional six classrooms in a
detached preengineered metal building. The estimated con-
struction cost was $623,000. The district did not submit a bond
proposal to the voters for the modified project. The school
board president testified that the district had funds to pay for
the modified project but that it could not have done so without
borrowing money to pay its monthly bills.
Nebraska Advance Sheets
NEBUDA v. DODGE CTY. SCH. DIST. 0062 743
Cite as 290 Neb. 740
In June 2012, the school board passed a resolution to
authorize the superintendent to create a nonprofit “leasing”
corporation, which would be controlled by the district, to
make the improvements and lease the building back to the
district. The superintendent and two school board members
served as the corporation’s board of directors. The resolution
stated that it did not constitute the board’s final approval of
the project’s financing or the leasing corporation’s issuance
of any bond obligations. In July, the school board authorized
a lease-purchase agreement with the leasing corporation. The
leasing corporation’s board then approved a resolution autho-
rizing the corporation to issue “certificates of participation” to
a bond underwriter to solicit buyers. The leasing corporation
intended to raise a maximum principal of $750,000 through
bonds with a maximum interest rate of 3 percent. When
the underwriter sought interested buyers (primarily banks),
Scribner Bank expressed interest in “buying” the entire lease-
purchase agreement.
In October 2012, the school board received construction
bids and the taxpayers filed their complaint, alleging that the
lease-purchase agreement with the leasing corporation violated
§ 79-10,105. They sought a declaration that the district’s lease-
purchase agreement was unlawful and an injunction barring
the district from taking action in furtherance of the agreement.
They did not seek a temporary restraining order.
On November 1, 2012, the district changed course and
entered into a lease-purchase agreement with Scribner Bank,
which agreed to finance the project (the addition and its
equipment). The leasing corporation never issued any bond
certificates. The new lease-purchase agreement called for the
district to lease the building site to the bank so that the bank
could make and pay for the improvements, with the district
acting as the bank’s agent in making the improvements. The
bank agreed to pay the costs of the project up to $750,000.
The district was unconditionally obligated to pay the “Base
Rentals” and “Additional Rentals.” The base rental payments
were set out in a schedule to repay $750,000 in principal
Nebraska Advance Sheets
744 290 NEBRASKA REPORTS
plus interest. The parties incorporated the legal fees and
underwriter fees for the original bond program into the prin-
cipal indebtedness. The additional rental payments were the
district’s obligations to pay for taxes, utilities, insurance, and
legal fees.
The agreement provided that the lease term ended in
November 2019 or upon the earliest of four events: (1) the
month in which the district paid its base rental obligation; (2)
August 31 of any fiscal year in which the district failed to
appropriate payments toward its obligations; (3) the date on
which the district purchased the leased property by paying for
the base rentals and additional rentals; or (4) upon the district’s
default on its obligations. If a default occurred, the district’s
accrued obligations continued and it lost the right to possess
the leased property. It agreed to vacate the site and return the
equipment to the bank if it defaulted. The attorney who pre-
pared the lease-purchase agreement testified as a bond expert
for the district and stated that the agreement did not constitute
a bond. But he admitted that the interest paid to the bank was
tax-exempt income for the bank, just like the interest paid
on bonds.
In a separate project construction agreement, the bank
agreed to make the planned improvements, with the school
district acting as its agent. The bank did not participate in the
design and work decisions. In a site lease agreement, the dis-
trict leased the school building and the property underlying the
proposed addition to the bank for $1 for the entire lease period.
In this agreement, the district warranted that the site was not
subject to any encumbrances and not threatened by environ-
mental hazards. Before signing these agreements, the district
paid for surveying work and an environmental study. It had
also paid for an architectural firm’s services. On November
12, 2012, the school board explicitly abandoned its plan to
finance the project through its leasing corporation by repeal-
ing the authorizing resolution. On the same day, the construc-
tion company and the architectural firm signed addendums to
their agreements with the school district. They acknowledged
that the district had assigned its rights and obligations under
Nebraska Advance Sheets
NEBUDA v. DODGE CTY. SCH. DIST. 0062 745
Cite as 290 Neb. 740
the original agreements to the bank and would be working as
the bank’s agent.
The project was completed in August 2013, before the trial
began in September. The evidence showed that the detached
building was built in sections at a factory, assembled at the site,
and set in a permanent foundation. The district planned to pay
its obligations within 4 to 5 years. It was making payments out
of a special building fund at the time of trial but intended to
make payments out of its general funds.
After a bench trial, the court issued an order that denied
relief for the taxpayers and dismissed their complaint. The
court concluded that the Legislature had acquiesced in this
court’s interpretations of § 79-10,105 in George v. Board
of Education1 and Foree v. School Dist. No. 7.2 It reasoned
that in Foree, we did not interpret § 79-10,105 to preclude
a school from entering into a lease-purchase agreement for
school improvements. The court further noted that in Banks
v. Board of Education of Chase County,3 this court held that
architectural fees are general expenses, not building expendi-
tures that a school district must submit to the voters. It stated
that the taxpayers would have been better served by a transpar-
ent discussion and input from the taxpayers and that the school
board’s actions appeared to be a “back-door effort to circum-
vent the will of the voters.” But it concluded that we have held
“the lease purchase of a school building is allowed without the
vote of the people if the project is not funded by bonded debt.”
It concluded that because there was no evidence that this had
occurred, the taxpayers’ claim failed.
ASSIGNMENTS OF ERROR
The taxpayers assign, restated and reduced, that the district
court erred as follows:
1
George v. Board of Education, 210 Neb. 127, 313 N.W.2d 259 (1981).
2
Foree v. School Dist. No. 7, 242 Neb. 166, 493 N.W.2d 625 (1993).
3
Banks v. Board of Education of Chase County, 202 Neb. 717, 277 N.W.2d
76 (1979).
Nebraska Advance Sheets
746 290 NEBRASKA REPORTS
(1) considering the school district’s safety concerns and
code deficiencies;
(2) failing to consider that before the district entered into its
lease-purchase agreement with Scribner Bank, it had entered
into or approved an architectural agreement, construction
agreement, final construction design, site survey, environmen-
tal study, and construction bids;
(3) failing to consider testimony that the district could not
relocate significant parts of the project;
(4) considering the district’s attempt to retroactively rescind
its prior acts;
(5) concluding that the Legislature had acquiesced in this
court’s decision in George4 when that decision preceded the
1985 amendment to § 79-10,105;
(6) concluding that the Legislature had acquiesced in Banks5
when Banks preceded the 1985 amendment to § 79-10,105;
(7) failing to conclude that Foree6 is distinguishable and
does not apply to lease-purchase agreements for the construc-
tion of a school building;
(8) finding that the lease-purchase agreement here was not
funded by bonded debt;
(9) concluding that our case law permits a school dis-
trict to construct a school building through a lease-purchase
agreement;
(10) admitting exhibit 47, because it contains legal conclu-
sions by an attorney for the school district, and overruling the
taxpayers’ objections to legal conclusions by an attorney testi-
fying for the district.
STANDARD OF REVIEW
[1-3] We independently review questions of law decided
by a lower court.7 The meaning and interpretation of a statute
4
George, supra note 1.
5
Banks, supra note 3.
6
Foree, supra note 2.
7
See Kelliher v. Soundy, 288 Neb. 898, 852 N.W.2d 718 (2014).
Nebraska Advance Sheets
NEBUDA v. DODGE CTY. SCH. DIST. 0062 747
Cite as 290 Neb. 740
presents a question of law.8 A justiciability issue that does not
involve a factual dispute also presents a question of law.9
ANALYSIS
Taxpayers’ Claims Are Moot
[4] Although mootness does not always preclude appellate
jurisdiction,10 it is a justiciability doctrine that weighs against
rendering a decision that will no longer have an impact on a
live dispute between the parties.11 So we first address the dis-
trict’s claim that the taxpayers’ claims on appeal are moot. It
argues that the taxpayers never sought a temporary restraining
order to stop the project from proceeding and that injunctive
relief could no longer bar any district actions. Additionally, the
district argues that the taxpayers’ request for declaratory relief
is moot because they did not seek repayment of any illegally
expended funds under the lease-purchase agreement.
[5-8] 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 litiga-
tion.12 A moot case is one which seeks to determine a ques-
tion that no longer rests upon existing facts or rights—i.e., a
case in which the issues presented are no longer alive.13 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.14 A case
is not moot if a court can fashion some meaningful form of
8
See McDougle v. State ex rel. Bruning, 289 Neb. 19, 853 N.W.2d 159
(2014).
9
Blakely v. Lancaster County, 284 Neb. 659, 825 N.W.2d 149 (2012).
10
See, e.g., In re Interest of Elizabeth S., 282 Neb. 1015, 809 N.W.2d 495
(2012).
11
See, Blakely, supra note 9; 13B Charles Alan Wright et al., Federal
Practice and Procedure § 3533 (2008).
12
Blakely, supra note 9.
13
Id.
14
In re Interest of Nathaniel M., 289 Neb. 430, 855 N.W.2d 580 (2014).
Nebraska Advance Sheets
748 290 NEBRASKA REPORTS
relief, even if that relief only partially redresses the prevailing
party’s grievances.15
[9] In Rath v. City of Sutton,16 we addressed a mootness
problem arising from the plaintiff’s unsuccessful action to
enjoin a city’s construction project because the city had unlaw-
fully awarded the contract to a contractor who did not submit
the lowest bid. While the case was pending on appeal, the
project was completed. We explained that injunctive relief is
intended to prevent future harm and is not available when the
act complained of is already completed. So, “any opinion on
the court’s denial of injunctive relief would be ‘worthless.’ . . .
Simply put, we lack the power, ‘once a bell has been rung, to
unring it.’”17 We concluded that the plaintiff’s claim for injunc-
tive relief was moot.
[10] We also explained that a court’s inability to grant
injunctive relief does not necessarily render a claim for declar-
atory relief moot. But we rejected the plaintiff’s argument that
he was entitled to declaratory relief because if he prevailed, he
could then seek to recover funds that the city paid out under
an illegal contract. We concluded that he was required to spe-
cifically allege in his complaint that he was entitled to recoup
the funds and had not done so. Thus, the declaratory judgment
claim was also moot because the declaration would have been
advisory, with no effect on the plaintiff’s rights.
[11,12] In sum, a plaintiff’s interest in a declaratory judg-
ment action must be more than the satisfaction of having a
court declare that the defendant’s conduct was wrong. The
declaration must be relevant to a live controversy or threat of
harm. A case becomes moot when the issues initially presented
in litigation cease to exist or the litigants lack a legally cogni-
zable interest in the litigation’s outcome.18
As in Rath, we cannot provide any relief to the taxpay-
ers. Injunctive relief is not available to them because the
15
Blakely, supra note 9.
16
Rath v. City of Sutton, 267 Neb. 265, 673 N.W.2d 869 (2004).
17
Id. at 273, 673 N.W.2d at 880 (citations omitted).
18
State v. Johnson, 287 Neb. 190, 842 N.W.2d 63 (2014).
Nebraska Advance Sheets
NEBUDA v. DODGE CTY. SCH. DIST. 0062 749
Cite as 290 Neb. 740
construction under the lease-purchase agreement that they chal-
lenged was already completed by the time of trial. And like the
taxpayer in Rath, they did not allege that they were entitled
to recoup any illegal expenditures. Because declaratory relief
would not affect a live controversy, the taxpayers no longer
have a cognizable interest in the appeal.
Public Interest Exception
to Mootness A pplies
[13,14] Unless an exception applies, a court or tribunal
must dismiss a moot case when changed circumstances have
precluded it from providing any meaningful relief because
the litigants no longer have a legally cognizable interest in
the dispute’s resolution.19 Nebraska recognizes a public inter-
est exception to the mootness doctrine,20 and we consider its
application here.
[15,16] Under the public interest exception to mootness,
we can review an otherwise moot case if it involves a matter
affecting the public interest or when other rights or liabilities
may be affected by its determination.21 When determining
whether a case involves a matter of public interest, we consider
(1) the public or private nature of the question presented, (2)
the desirability of an authoritative adjudication for future guid-
ance of public officials, and (3) the likelihood of future recur-
rence of the same or a similar problem.22
In Rath, we concluded that the public interest exception
applied to two issues presented by the appeal: (1) the proof
required to establish an irreparable harm based on an alleged
illegal expenditure of public funds and (2) the meaning of the
statutory phrase “lowest responsible bidder.” We concluded
that a decision on the proof question was obviously of para-
mount importance to Nebraska’s taxpayers and would provide
needed guidance because we had not previously decided the
19
Professional Firefighters Assn. v. City of Omaha, 282 Neb. 200, 803
N.W.2d 17 (2011).
20
See id.
21
In re Trust Created by Nabity, 289 Neb. 164, 854 N.W.2d 551 (2014).
22
In re Interest of Thomas M., 282 Neb. 316, 803 N.W.2d 46 (2011).
Nebraska Advance Sheets
750 290 NEBRASKA REPORTS
question. We further concluded that the issue was likely to
recur because taxpayers frequently filed suits to enjoin ille-
gal expenditures.
Similarly, we concluded that (1) the statutory interpretation
question was of a public nature, because competitive bidding
statutes exist to protect the public and the taxpayer had com-
menced the suit on behalf of the public; (2) our interpreta-
tion would provide guidance to all state entities and officials
charged with procuring products and services; and (3) the issue
was likely to recur because of frequent disputes over pub-
lic contracting.
[17] Finally, in Rath, we rejected the city’s argument that
we should not apply the exception because the taxpayer failed
to take actions to prevent the claim from becoming moot. We
concluded that a party’s strategic mistakes do not preclude our
review under the public interest exception to mootness when
the issues on appeal require a generic statutory analysis instead
of a fact-specific inquiry unique to the parties.
This reasoning from Rath also applies here. The meaning
of § 79-10,105 unquestionably involves a matter affecting the
public interest because it governs whether taxpayers in every
school district can be taxed for capital improvements without
their approval of the expenditure. Although we previously
considered this issue in Foree, the taxpayers argue that Foree
is factually distinguishable. Finally, despite the district’s argu-
ment in its brief, at oral argument, its attorney stated that many
school districts have used lease-purchase agreements to make
capital improvements and that others are looking for further
guidance from this decision. We conclude that the requirements
for the public interest exception to mootness are satisfied and
address the merits of the taxpayers’ appeal.
3. § 79-10,105 Does Not R equire Voter
Approval for All Lease-Purchase
Agreements Exceeding $25,000
Despite the taxpayers’ multiple assignments of error, the cen-
tral issue in this appeal is whether the district’s lease-purchase
Nebraska Advance Sheets
NEBUDA v. DODGE CTY. SCH. DIST. 0062 751
Cite as 290 Neb. 740
contract with Scribner Bank to finance capital improvements
violated § 79-10,105, which provides the following:
The school board or board of education of any public
school district may enter into a lease or lease-purchase
agreement for the exclusive use of its individual jurisdic-
tion for such buildings or equipment as the board deter-
mines necessary. Such lease or lease-purchase agreements
may not exceed a period of seven years, except that lease-
purchase agreements entered into as part of an energy
financing contract pursuant to section 66-1065 may not
exceed a period of thirty years. All payments pursuant to
such leases shall be made from current building funds or
general funds. No school district shall directly or indi-
rectly issue bonds to fund any such lease-purchase plan
for a capital construction project exceeding twenty-five
thousand dollars in costs unless it first obtains a favor-
able vote of the legal voters pursuant to Chapter 10,
article 7. This section does not prevent the school board
or board of education of any public school district from
refinancing a lease or lease-purchase agreement without
a vote of the legal voters for the purpose of lowering
finance costs regardless of whether such agreement was
entered into prior to July 9, 1988.
(Emphasis supplied.)
The taxpayers’ argument focuses on the italicized language
in the above quote, which was added in 1985 to the precursor
of § 79-10,105.23 They argue that through this amendment,
the Legislature intended to bar school districts from using
lease-purchase agreements as a way to avoid requirements for
voter approval of construction projects that cost more than
$25,000. They point to senators’ arguments during the 1985
floor debate that they contend support their interpretation. And
they argue that the definition of a “bond” broadly includes a
23
See, Neb. Rev. Stat. § 79-4,154 (Reissue 1981); 1996 Neb. Laws, L.B. 900,
§ 751 (renumbering statute); Legislative Journal, 89th Leg., 1st Sess.
1974-76 (Apr. 30, 1985) (adding amendment language to L.B. 633).
Nebraska Advance Sheets
752 290 NEBRASKA REPORTS
“certificate or evidence of a debt on which the issuing com-
pany or governmental body promises to pay the bondholders a
specified amount of interest for a specified length of time, and
to repay the loan on the expiration date.”24
The school district contends that under our decision in
Foree, the 1985 amendment’s restriction applies only when
a school district directly or indirectly issues bonds to fund a
lease-purchase plan for a capital construction project, which
did not happen here. The taxpayers counter that Foree is
distinguishable because the school district used a lease-­
purchase agreement to acquire modular units, not to construct
a building.
[18,19] Absent a statutory indication to the contrary, we give
words in a statute their ordinary meaning.25 We will not look
beyond a statute to determine the legislative intent when the
words are plain, direct, or unambiguous.26 So we first consider
whether the meaning of the 1985 amendment to the precursor
of § 79-10,105 is clear from the text itself: “No school dis-
trict shall directly or indirectly issue bonds to fund any such
lease-purchase plan for a capital construction project exceed-
ing twenty-five thousand dollars in costs unless it first obtains
a favorable vote of the legal voters pursuant to Chapter 10,
article 7.”
Section 79-10,105 is one of many statutes dealing with a
school district’s “Site and Facilities Acquisition, Maintenance,
and Disposition.”27 It is true that neither § 79-10,105 nor any
of the other statutes in this section define the word “bond” for
applying the 1985 restriction on the issuing of bonds. But we
disagree for three reasons that the word “bond” in the amend-
ment has the broad meaning that the taxpayers assign to it.
First, the taxpayers’ interpretation of § 79-10,105 is contrary
to statutory interpretation principles. If the Legislature had
meant for school districts to obtain the voters’ approval before
24
See Black’s Law Dictionary 178 (6th ed. 1990).
25
Coffey v. Planet Group, 287 Neb. 834, 845 N.W.2d 255 (2014).
26
Id.
27
See Neb. Rev. Stat. §§ 79-1094 to 79-10,136 (Reissue 2014).
Nebraska Advance Sheets
NEBUDA v. DODGE CTY. SCH. DIST. 0062 753
Cite as 290 Neb. 740
entering into any lease-purchase agreement exceeding $25,000,
it would have simply stated that. This supports the school dis-
trict’s argument that the restriction is focused on the issuing
of bonds.
Moreover, the taxpayers’ interpretation of § 79-10,105—
to include a lease-purchase agreement as the issuing of a
bond—gives the amendment a nonsensical reading: “No school
district shall directly or indirectly issue bonds [i.e., any instru-
ment of indebtedness, including a lease-purchase agreement]
to fund any such lease-purchase plan for a capital construc-
tion project exceeding twenty-five thousand dollars” without
voter approval.
[20] Obviously, no district enters into a lease-purchase
agreement to fund a lease-purchase agreement. So this inter-
pretation renders the language absurd or the reference to the
issuing of bonds meaningless, and we attempt to avoid both
results when interpreting statutes.28 Because the taxpayers’
broad interpretation of the word bond renders the amendment
nonsensical, it illustrates that the restriction on the issuing of
bonds has a different meaning than the word “bond” standing
alone. That is, the word bond in this context does not mean
any debt obligation. Government entities do not “issue” all
instruments of debt. Generally, a governmental entity’s issuing
of bonds refers to its offering and delivery of certificates of
indebtedness for sale in a market to raise money for improve-
ments—not to executing an instrument of indebtedness to a
single lender.29
Second, even if the amendment could be construed as
ambiguous, the legislative history of the original 1985 bill to
amend the statute does not support the taxpayers’ argument.
It shows that the Legislature intended to preclude school
28
See, Stick v. City of Omaha, 289 Neb. 752, 857 N.W.2d 561 (2015); In re
Interest of Nedhal A., 289 Neb. 711, 856 N.W.2d 565 (2014).
29
See, e.g., Alabama Power Co. v. City of Scottsboro, 238 Ala. 230, 190 So.
412 (1939); Moore v. Vaughn, 167 Miss. 758, 150 So. 372 (1933); Black’s
Law Dictionary 217, 960 (10th ed. 2014); 64 Am. Jur. 2d Public Securities
and Obligations § 165 (2011); 64A C.J.S. Municipal Corporations § 2118
(2011).
Nebraska Advance Sheets
754 290 NEBRASKA REPORTS
districts from creating nonprofit corporations to issue bonds
for the district’s capital improvements without a bond election,
which obligation the district repays through a lease-purchase
agreement with its own corporation.30 But that did not happen
here. It is true that the district attempted this maneuver, but
the school board repealed the resolution that created its leasing
corporation and abandoned that plan. The leasing corporation
never issued any bond certificates to finance the construc-
tion project.
Third, and most important, the district court correctly con-
cluded that the Legislature has acquiesced in our 1993 interpre-
tation of § 79-10,105 in Foree. Although the taxpayers argue
that the court erred in relying on our 1981 decision in George,
because it preceded the 1985 amendment, the court correctly
reasoned that understanding George was relevant to under-
standing the holding in Foree.
In George, the school district formed a “Building
Corporation” that issued bonds for a school addition and then
“donated” the addition to the school at the end of a 5-year lease
term.31 We rejected the taxpayer’s argument that the school dis-
trict had no power to issue bonds without the voters’ approval
because the district had not issued any bonds. We also rejected
the argument that the building corporation was a sham because
the Legislature had specifically authorized this method of
financing under the lease-purchase statute.
After the 1985 amendment, we decided Foree.32 There,
the school district entered into a 4-year “‘Equipment Lease/
Purchase Agreement’” with a corporation for the “lease/­
purchase of eight modular homes for use as classrooms.”33
The taxpayer argued that the agreement was invalid under the
30
See, Introducer’s Statement of Intent, L.B. 50, Committee on Education,
89th Leg., 1st Sess. (Mar. 18, 1985); Committee on Education Hearing,
L.B. 50, 89th Leg., 1st Sess. 46 (Mar. 18, 1985); Floor Debates, 1st Sess.
3790-91 (Apr. 19, 1985) and 1st Sess. 4429-30 and 4436-37 (Apr. 30,
1985).
31
George, supra note 1, 210 Neb. at 128, 313 N.W.2d at 260-61.
32
Foree, supra note 2.
33
Id. at 167, 493 N.W.2d at 625.
Nebraska Advance Sheets
NEBUDA v. DODGE CTY. SCH. DIST. 0062 755
Cite as 290 Neb. 740
amended lease-purchase statute and that the Legislature had
amended the statute in response to our decision in George.
We concluded that even if the amendment was in response to
George, the statute, as amended, still did not require the voters’
approval of a lease-purchase agreement:
The plaintiff’s principal contention seems to be that
the provision requiring a favorable vote of the electorate
for a direct or indirect issue of bonds to fund a lease-
purchase agreement for a capital construction project
exceeding $25,000 prohibits the defendant from enter-
ing into its lease-purchase agreement for the modular
units. . . .
While the Legislature’s amendment to § 79-4,154 in
1985 may have been in response to the George decision,
it is clear that § 79-4,154 still authorizes school districts
to acquire buildings or equipment through lease-purchase
agreements. See George v. Board of Education, supra.
In the present case, no bonds were issued directly or
indirectly by any party in order to fund the modular units.
Furthermore, the defendants are not required to finance
the lease/purchase of the modular units by bonds.34
This passage shows that we rejected the taxpayer’s argu-
ment that the lease-purchase agreement was an “indirect”
bond. We implicitly interpreted the issuing of bonds to mean
the issuing of certificates of indebtedness to be purchased
by unknown investors in a market. We further stated that the
funds for the lease payments were properly budgeted. In this
regard, § 79-10,105, then and now, explicitly authorizes school
districts to make payments under lease-purchase agreements
“from current building funds or general funds.”
Contrary to the taxpayers’ argument, Foree is not distin-
guishable because we said the lease-purchase statute “autho-
rizes school districts to acquire buildings or equipment through
lease-purchase agreements.”35 In stating this, we focused on
upholding the district’s challenged act—acquiring premade
modular units. But the statutory language we were interpreting
34
Id. at 168-69, 493 N.W.2d at 626-27 (emphasis supplied).
35
Id. at 169, 493 N.W.2d at 626.
Nebraska Advance Sheets
756 290 NEBRASKA REPORTS
restricts issuing bonds “‘to fund any such lease-purchase plan
for a capital construction project.’”36 So our reasoning logically
applies to any capital construction project financed through a
lease-purchase agreement.
[21] When judicial interpretation of a statute has not evoked
a legislative amendment, we presume that the Legislature has
acquiesced in the court’s interpretation.37 We recognize that
other statutes that authorize expenditures for a school district’s
capital improvements require the voters’ approval to raise
the funds.38 But any incongruity between these statutes and
§ 79-10,105 is a policy issue for the Legislature to resolve.
Because it has not amended § 79-10,105 in response to Foree,
we presume that it has decided the issue in accordance with
that decision.
CONCLUSION
We conclude that the taxpayers’ claims for injunctive and
declaratory relief are moot because they no longer have a cog-
nizable interest in our resolution of the case. But because of
the public nature of their dispute, we have resolved the issue
presented under the public interest exception to the mootness
doctrine. We conclude that § 79-10,105 does not prohibit a
school district from entering into a lease-purchase agreement
to finance a capital construction project, if it has not created
a nonprofit corporation to issue bonds for the school district.
Because that maneuver did not occur here, the district did not
violate § 79-10,105 by entering into a lease-purchase agree-
ment with the bank.
Affirmed.
36
Id. at 168, 493 N.W.2d at 626 (quoting § 79-4,154).
37
Lenz v. Central Parking System of Neb., 288 Neb. 453, 848 N.W.2d 623
(2014).
38
See Neb. Rev. Stat. §§ 79-1098 (Reissue 2014) and 10-701 and 10-702
(Reissue 2012).